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Waters of the U.S. Rule Drowning to Start 2016

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by Patrick J. Paul

Although likely to survive a presidential veto of a joint resolution seeking to nullify the June 29, 2015 rule submitted by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers amending the definition of “waters of the United States” under the Clean Water Act, this rule is starting 2016 under dark clouds. As reported here previously, the WOTUS Rule was subject to swift and numerous court challenges. On August 27, 2015 a District Court in North Dakota issued a preliminary injunction that blocked implementation of the rule in 13 states but not in the remaining 37 states. Then, on October 9, 2015, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit placed a nationwide stay on the 2015 rule pending further developments, including the need to determine the court’s own jurisdictional authority. In November, the U.S. Senate passed a resolution aimed at blocking the enforcement of the rule and, on January 14, 2016, the House passed the resolution by a vote of 253 to 166.

In response to the onslaught of litigation, EPA issued a “clean water rule litigation statement” stating that it would resume nationwide use of the prior regulations defining the term waters of the United States as they existed before the North Dakota decision on August 27, “by applying relevant case law, applicable policy, and the best science and technical data . . . .”

On December 14, 2015, the United States Government Accountability Office issued a report concluding that EPA’s rule violated federal law with respect to its use of social media to garner support for the rule. The GAO determined that EPA violated express limits on the use of appropriations for indirect or grassroots lobbying, and that in doing so, the agency violated the Anti-Deficiency Act, 31 U.S.C. § 1341(a)(1)(A). The GAO noted that EPA needed to determine the cost associated with the prohibited conduct and include that amount in its report of its Anti-Deficiency Act violation.

The GAO analyzed whether EPA violated publicity or propaganda and anti-lobbying provisions given its use of Thunderclap, #ditchthemyth, and #cleanwaterrules social media campaigns. The GAO concluded that EPA’s use of Thunderclap constituted covert propaganda in violation of the publicity or propaganda prohibition. However, the GAO determined that EPA’s #ditchthemyth and #cleanwaterrules social media campaigns did not implicate the publicity or propaganda prohibition. GAO also concluded that EPA’s hyperlinks to the NRDC and Surfrider Foundation webpages provided in the EPA blog post constituted grassroots lobbying again in violation of the grassroots lobbying prohibition.

The GAO determined that EPA should report its Anti-Deficiency Act violations to the President and Congress and determine the cost associated with the prohibited conduct.