Special Topics in Environmental Management

Senator Seeks More Info on WOTUS Benefits Analysis

Senator Tom Carper (D-DE), ranking member of the Senate Environment and Public Works Committee (EPW), is requesting documentation from EPA Administrator Scott Pruitt about an August 11, 2017, New York Times story that reported that the Agency had deleted all economic benefits related to wetlands in an economic-analysis package of the Agency and Army Corps of Engineers’ 2015 Clean Water Rule (CWR).

The package was submitted to the Office of Management and Budget (OMB) as part of  EPA’s current effort to rescind and replace the CWR. In his letter, Carper notes that he also held discussions with “individuals with first-hand knowledge of the process,” who confirmed what the Times had reported.

New WOTUS Rulemaking

The CWR provided a definition of waters of the United States (WOTUS), arguably the central phrase in the Clean Water Act (CWA) and one for which Congress did not provide a definition that would guide the EPA and the Corps in implementing the Act. The CWR is currently stayed by order of the 6th Circuit Court of Appeals. Also, the detailed WOTUS definition provided in the CWR found no favor with President Donald Trump, who directed Pruitt to move forward with the rescind and replace process. The EPA responded by initiating a two-step rule-making. As proposed, the first rule would recodify the identical WOTUS regulatory text that was in place before the CWR. In the second step, the Agency would propose a new definition of WOTUS.

$500 Million Wetlands Benefit

In the 2015 action, the EPA projected that the rule would cost between $236.7 and $465 million each year, but it would provide at least $554.9 to $572.3 million in annual benefits, including $501.2 million in benefits to wetlands. According to Carper, when the EPA initially submitted the first step of its proposed repeal and replace rule to the OMB, the draft stated that a new cost-benefit analysis would be subsequently undertaken as part of the second step of its process. That analysis was submitted to the OMB June 8, 2017, with a revised cost-benefit table. According to Carper, the OMB interpreted this table to mean that repealing the rule would cost more in lost benefits than it would save in industry compliance costs.

Wetlands Benefits Deleted

“On June 13, 2017, presumably to avoid such an admission on the part of EPA, EPA career staff were verbally directed by political staff to solve this ‘problem’ by simply deleting the majority of the benefits of the rule from the table and re-submitting it to OMB, which they did,” wrote Carper.

“Erasing the scientific and economic benefits of a rule designed to protect the drinking water of 117 million Americans will not erase the environmental and public health risk that the drinking water sources may pose if the rule is repealed,” Carper continued.

To find out whether, in fact, EPA political staff ordered career staff to “make inconvenient analysis disappear,” Carper asked that Pruitt provide him with all cost-related CWR documents submitted to the OMB in 2017 along with any other documents EPA political staff developed related to the inter-agency and OMB review of costs and benefits of the CWR.

Carper’s letter is here.