Unfortunately, the EPA sent its proposal to the Office of Management and Budget (OMB) before its scientific report on the issue was even completed. By acting prematurely, the agency has undermined the results of the study.
What constitutes "waters of the U.S." in the Clean Water Act (CWA) has long been a subject of controversy. Federal agencies such as the EPA and the Corps have interpreted the phrase broadly. Recently, the Supreme Court rejected the broad, federal interpretation.
In July, the EPA created a Scientific Advisory Board for the purpose of issuing a report that, the EPA said, "will provide scientific basis needed to clarify CWA jurisdiction." But two months later, the EPA went ahead and sent its proposed rules on CWA jurisdiction to the OMB, before the Board had even met to discuss the issue. In fact, the Advisory Board did not have its first meeting until December 16.
Jumping ahead to the final rule without using the scientific report as a basis undermines the forthcoming report and the rulemaking process:
- If the EPA has to make major changes to its rule following the report, it would be an admission that its proposed rules were not, in fact, based upon science. As such, the agency has an incentive not to make changes to its proposed rules, even if the scientific report recommends such changes.
- The whole process could be an expensive waste of time, as courts routinely require agencies to start anew when their proposed rules differ significantly from the final rules.
Source: Daren Bakst, "EPA and the Corps Ignoring Sound Science on Critical Clean Water Act Regulations," Heritage Foundation, January 8, 2014.