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April 20, 2017
Is EPA outsourcing WOTUS?

Senator Tom Carper (DE), the Democrat’s top environmental spokesperson in the Senate, reacted with “incredulity” to a story in Politico indicating that the EPA was exploring the possibility of having the private sector participate in rewriting the Clean Water Rule (CWR). Upon publication of the story, Carper wrote to EPA Administrator Scott Pruitt questioning whether Pruitt is exploring outsourcing “to the polluters themselves” development of a major rule intended to protect public health and the environment. In his letter, Carper says that such an approach “suggests either that EPA lacks the appropriate staff or budgetary resources to complete a new rule or that the Agency intends to devolve its regulatory obligations to industry.”

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Rule under review

The June 2015 CWR provided a definition of the Clean Water Act term waters of the United States (WOTUS). Opponents said the definition expanded the regulatory reach of the EPA and the Army Corps of Engineers (Corps) far beyond Congress’s intention that federal authority be limited to navigable waters. In a February 2017 Executive Order, President Donald Trump ordered the EPA and the Corps to rescind or revise the rule consistent with the navigable-waters limitation and in a way that did not harm U.S. economic growth.

Industry coalition

Carper writes:

“According to the article in today’s Politico, the Waters Advocacy Coalition is involved in active discussions about how the EPA might utilize the private sector to re-write the Clean Water Rule, and do so rapidly. This group, represented by Hunton & Williams LLP, advocates on behalf of more than 60 industry organizations who seek to restrict the degree to which they are regulated. If it were employed, such outsourcing would enable EPA to avoid having to work as closely with the career officials who drafted the last version of this rule during the Obama Administration, and it would also address the failure by EPA to appoint political officials who could themselves oversee such an effort.”

Budget-based decision?

Carper also questions whether the outsourcing option results from the president’s proposed 30 percent cut to EPA’s fiscal year 2018 budget and elimination of 20 percent of its workforce, which would “constrain the agency’s ability to function as it is obligated to do.”

Urging Pruitt in the “strongest possible terms” to disavow the reported industry plan, Carper also asks that the administrator recommit to ensuring that the Agency budget and workforce are maintained at levels necessary to its health and environmental mission. To better understand how the Agency is proceeding, the senator asks that Pruitt provide answers to several questions:

  • Do you agree that it is EPA’s sole responsibility to draft regulations designed to protect the environment by itself, after seeking input from all stakeholders? If not, why not?
  • Would you be supportive of an industry-led effort to rewrite the CWR (or any other) regulation? If so, why, and on what legal basis?

In addition, the letter requests that Pruitt provide copies of all correspondence, e-mails, memos, phone logs, and any other material related to any rewrite of the CWR; who would do the rewriting; and the legality of delegating all or part of the rewrite to nongovernmental individuals.

Carper’s letter is here.

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