Memo Reveals Flaws with Waters of the U.S. Final Rule

Significant Disagreements among Corps & EPA

U.S. Army Corps of Engineers (USACE) Deputy Commanding General for Civil and Emergency Operations, Major General John Peabody, cited significant issues in the Waters of the United States final rule prior to its release in a May 15 memorandum to Assistant U.S. Secretary for the Army for civil works, Jo-Ellen Darcy.  The final rule redefines ‘waters of the U.S.’ and expands the waters over which the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers claim jurisdiction.  The two agencies jointly published the final rule on June 29, and it takes effect on August 28.

In the memo, General Peabody notes that the final rule contains “numerous inappropriate assumptions, with no connection to the data provided, misapplied data, analytical deficiencies, and logistical inconsistencies.” USACE’s economist Paul Scodari also notes that “[t]he corps had no role in selecting or analyzing the data that the EPA used in drafting” the rulemaking’s economic analysis or technical support document. “As a result,” Scodari states, “the documents can only be characterized as having been developed by the EPA and should not identify the corps [sic] as an author, co-author or substantive contributor.”

The Senate Environment and Public Works Committee recently sent a letter questioning Assistant Secretary Darcy on statements in the memo and the final rule. At least 30 states have filed suit, and a request for injunction against the rule has been filed as well. Legislative efforts to reverse and repeal the rule have been gaining support, and provisions in pending appropriations bills would block the administration from implementing the rule during fiscal year 2016. AGC will continue to work with its Congressional allies to require the agencies to revisit their rulemaking process and also intends to meet with officials from the agencies to discuss the rule’s implementation.

For more information contact Scott Berry at or Leah Pilconis at