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Bennett, Tate [/0=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECI PI ENTS/CN=1FA92542F7CA4D01973B18B2F11B9141-BEN NETT, EL] 12/20/2017 3:44:09 PM Todd F. Gaziano [TGaziano@pacificlegal.org] Jonathan Wood [JWood@pacificlegal.org]; Bakst, Daren [Daren.Bakst@heritage.org]; Forsgren, Lee [/o=ExchangeLabs/ou=Exchange Administrative Group (FYDIBOHF23SPDLT)/cn=Recipients/cn=a055d7329d5b470fbaa9920celb68a7d-Forsgren, D] RE: Tate: phone Mtg. request re: Sec. 431 on WOTUS rule in Minibus/cromnibus
HiToddWe are not in a position to speak on behalf of the hill, but I can certainly connect you with Lee Forsgren in the Office of Water (cc'd). He's very familiar with the issue and different perspectives surrounding it. You are always welcome to email me! Sorry for the delay. Tate
Elizabeth Tate Bennett Associate Administrator for Public Engagement & Environmental Education Office o f the Administrator U.S. Environmental Protection Agency (202) 564-1460 Bennett.Tate@epa.gov
From: Todd F. Gaziano [mailto:TGaziano@pacificlegal.org] Sent: Wednesday, December 20, 2017 10:12 AM To: Bennett, Tate <Bennett.Tate@epa.gov> Cc: Jonathan Wood <JWood@pacifclegal.org>; Bakst, Daren <Daren.Bakst@heritage.org> Subject: Tate: phone Mtg. request re: Sec. 431 on WOTUS rule in Minibus/cromnibus
Tate,
I d o n 't know if you saw' my m eeting request below , but at this point, a phone connection is probably b est.... unless you or som eone else at EPA can confirm that subsection (b) it out o f the bill.
I don't m ean to bug you unreasonably, but this is a fair warning I will continue to try to reach you "reasonably"
(and m ore frequently) until you tell m e the provision is out, you connect m e to som eone who is w orking the
issue, or you affirmatively tell m e to go away.
Todd
Todd F. G azian o I Senior Fellow in Constitutional Law
Executive Director of the DC Center Pacific Lega! Foundation
Ex.
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From: Todd F. Gaziano Sent: Friday, December 15, 2017 10:55 AM To: 'Bennett, Tate' <Bennett.Tate@epa.gov> Cc: Bakst, Daren <Daren.Bakst@heritage.org>; Jonathan Wood <jWood@pacificiegai.org> Subject: Mtg. request re: Sec. 431 on WOTUS rule in Minibus
Tate:
T hanks for your action to date (and I've been confused w ith m y b ro th er Tom before, so I'm only amused by
that).
W e 've discussed the provision m ore am ongst ourselves, and w ith som e other C W A experts. I am even m ore concerned about it the longer I study it, and I'm m ore convinced that subsection (b) can serve no good purpose anyway. As for its unintended harm, it would not just codify one had guidance from one year. The provision,
on its face, w ould codify all regulations (plural) and guidance (that w ould be interpreted as plural in th a t phrase) in existence in 2015. Thus, it w ould codify or insulate (at least tem porarily) scores o f bad and otherwise illegal guidance docum ents from decades of horrible adm inistration, m any of which w e have been litigating against. EPA would likely need a "reasoned justification" to depart from any and all of them in the new rule. I
think Daren agrees with me about the harm, even if he is a little less apocalyptic than I am.
G iven our deep concern, w e'd like to be introduced to and m eet (or at least talk) w ith the appropriate folks in
the W ater O ffice w ho m ight be responsible for pushing back on the subsection or w ho m ight be saddled w ith it if it is not killed. C an you connect us and help arrange such a m eeting?
Todd
Todd F. Gaziano I Senior Fellow in Constitutional Law
Executive Director of the DC Center Pacific Legal Foundation .... f o s f o i
From: Bennett, Tate [m3ilto:Bennett.Tate@ep3.gov1 Sent: Friday, December 15, 2017 10:21 AM To: Todd F. Gaziano <TGaziano@pacificiegai.org> Cc: Bakst, Daren <Daren.Bakst@heritage.org>; Jonathan Wood <JWood@pacifidegai.org> Subject: RE: Sec. 431 on WOTUS rule in Minibus
Hi Tom-
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Apologies for the delay. We understand your position on this section/1986 guidance and have passed this along to the Office of Water. We will let you know if we have any questions. It's
Don't be a stranger.
Tate
Elizabeth Tate Bennett Associate Administrator for Public Engagement & Environmental Education Office o f the Administrator U.S. Environmental Protection Agency (202) 564-1460 Bennett.Tate@epa.gov
From: Todd F. Gaziano [mailto:TGaziano@pacifidegaS.org1 Sent: Thursday, December 7, 2017 8:54 AM To: Bennett, Tate <Bennett.Taie@ep3.gov> Cc: Bakst, Daren <Daren.Bakst@heritage.org>; Jonathan Wood <JWood@pacifidegai.org> Subject: Sec. 431 on WOTUS rule in Minibus
Tate,
It w as great to m eet you yesterday at the H eritage roundtable event. M y colleagues and I at PL.F m ay have
m any occasions to w ork w ith you and others at EPA.
A s the below correspondence with D aren indicates, subsection 431(b) in the H ouse m inibus bill m ay not be quite as "disastrous" as I first thought in locking in 2015 regs and guidance, but it w ould tie EPA's hands in
some clear and harm ful w ays until a final rule is issued, and it may still com plicate the eventual replacem ent o f
the WOTUS rule under the APA. It needs to be m odified or dropped to have the effect that I think was
intended, but I at least see some method to the legislative madness.
Please let us know if we can provide any further help or advice on this matter.
Todd
Todd F. Gaziano I Senior Fellow in Constitutional Law
Executive Director of the DC Center Pacific Leai Foundation
[1 x 7 6 1 ;
From: Todd F. Gaziano Sent: Wednesday, December 06, 2017 6:20 PM To: 'Bakst, Daren' <Daren.Bakst@heritage.org>; Jonathan Wood <JWood@pacifidegai.org> Subject: RE: Tomorrow on WOTUS
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Two issues:
1. A t a minimum, it says that E PA M U S T follow R apanos G uidance (not Scalia) until it issues a final rule,
or at least an. interim, final rule. H ow long will that tak e 9
2. It still is am biguous enough that it m ight com plicate replacing the R apanos G uidance. F or exam ple, it m ight allow E PA to replace the now m andated R apanos G uicance, but as to th a t it would have to give sufficient reasons under the A.PA, since section (a) do not apply to the new rule, only the w ithdraw of
WOTUS.
egardless o f how bad it is, it should go.
From: Bakst, Daren [mailto: Daren. Bakst@heritaRe.orRl Sent: Wednesday, December 06, 2017 6:08 PM To: Todd F. Gaziano <TGaziano@pacifideRai.org>; Jonathan Wood <JWood@pacificieRai.org> Subject: FW: Tomorrow on WOTUS
Todd and Jonathan,
Iam trying to process this language, I am trying to figure out the impact of this language: "Except as otherwise provided by any Act or rule that takes effect after the date o f enactment o f this Act."
This seems to be saying that the EPA could still issue a rule that does not implement the old guidance so long as such rule goes into effect after the date o f the appropriations bill. The problem is the language in (b) still likely gives a Congressional blessing to the old rales and guidance.
I think Congress is also trying to give legal cover for the interim stuff as well.
Thoughts?
Daren
Daren Bakst Research Fellow in Agricultural Policy Institute fo r Economic Freedom The Heri sage Foundation 214 Massachusetts Avenue, NE Washington. DC 20002
L ii-rii
hentage.org
From: Bakst, Daren Sent: Wednesday, December 6, 2017 11:22 AM To: 'Todd F. Gaziano' <TG3ziano@pacificieg3l.org> Cc: Jonathan Wood <JWQQd@padfideg3j.org> Subject: RE: Tomorrow on WOTUS
This was in a "minibus" bill that passed the Fiouse. I am not saying that this bill will pass, but I think there is a good chance that the following language would be included in any omnibus hill:
See this recent article: https://www.washinRtonpost.com/news/enerRy~environment/wp/2Q17/ll/3Q/gQp-crafts~ spendingbill-provisions-aimed-atspeeding-repealofwater-protection-rule/?utm term--.0ec68799fla7
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H.R. 3354: https://www.congress.gov/bn5/115th-congress/house-bSn/3354/text
SEC. 431.
(a) A U T HO RIZ AT IO N The Administrator o f the Environmental Protection Agency and die Secretary o f the Army
may withdraw7the Waters o f the United States rale without regard to any provision o f statute or regulation that establishes a requirement for such withdrawal.
(b) E F F ECT OF WITHDRAW AL.....Except as otherwise provided by any Act or rule that takes effect after the date of enactment of this Act, if the Administrator o f the Environmental Protection Agency and the Secretary of the Army
withdraw the Waters o f the United States rule under subsection (a), the Administrator and Secretary7shall implement the
provisions of law under which such rule was issued in accordance with the regulations and guidance in effect under such
provisions immediately before the effective date o f such rule.
(c) D E F I N I T I O N S ,-- In this section the term "Waters o f the United States rule" means the final ade issued by the
Administrator o f the Environmental Protection Agency and the Secretary o f the Army entitled "Clean W ater Rule:
Definition o f `Waters of the United States'" on June 29, 2015 (80 Fed. Reg. 37053),
From: Todd F. Gaziano [mailto:TGaziano@padfidegal,orgl Sent: Wednesday, December 6, 2017 11:16 AM To: Bakst, Daren <D3ren.8akst@hetitage.otg> Cc: Jonathan Wood <JWood@pacifideg3l.org> Subject: RE: Tomorrow on WOTUS
Sorry for my delay in responding to this, but 5may try to talk to you for a couple of minutes when 1arrive if you can't respond by email to my question, but 1was unaware of the legislation that exempts this rulemaking change from APA requirements. I'd like to know more about: that.
Todd F. Gaziano I Senior Fellow in Constitutional Law
Executive Director of the DC Center -P^dfiS.ka.U undation
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From: Bakst, Daren [mailto:Daren.Baksf@heritage.orgl
Sent: Tuesday, December 5, 2017 2:55 PM
To: Todd F. Gaziano <TGazianQ@pacificlegaS.org>
Cc: Gordon, Robert <Robe^^
Jonathan Wood <JWood@pacifidegal.org>
Subject: RE: Tomorrow on WOTUS
Todd,
i don't have an answer to your question about groups like AFBF, but 1highly doubt that such groups will be there, i would aiso just assume that our audience are folks who have some knowledge of WOTUS, but not at the level of those groups.
What if i provide a 5-6 minute update that would:
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Explain the latest developments - Lay out the principles and substance of what a definition of WOTU5 should look like
I'd like to get buy-in on the need to limit waters to traditional navigable waters {TNRs), tributaries to TNRs, and wetlands of TNRs. Basically, my presentation would cover the attached comment.
Then, as a suggestion, you could discuss:
- Concerns regarding the process (e.g. need for the agencies to look beyond Rapanos for support (I wiil mention Riverside and SWANCC in my brief discussion regarding defining tributaries; issue regarding getting better support for getting rid of the rule itself; please be aware that Congress has appropriations language that would allow the agencies to withdraw the rule without having to worry about the APA. I can provide more info on this if you need it) - Enforcement changes (my suggested ideas include the Corps and ERA identifying how they could develop an MOU to allow property owners to secure JDs within 60 days or so, directing that certain enforcement actions cease until after review by HQs, and set new priorities)
i am still thinking through what i think of the ERA and Corps proposing (and seeking comment) on extending the applicability date of the Clean Wafer Rule (it seems odd to seek to repeal the ruie and extend its applicability date; S think it is just another way to make sure that it doesn't go into effect):
The Environmental Protection Agency and the Department of the Army ("the agencies") are proposing to add an applicability date to the "Clean Water Rule: Definition of 'Waters of the United States'" (the "2015 Rule") to two years from the date of final action on this proposal. On October 9, 2015, the Sixth Circuit stayed the 2015 Rule nationwide pending further action of the court, but the Supreme Court is currently reviewing the question of whether the court of appeals has original jurisdiction to review challenges to the 2015 Rule. On February 28, 2017, the President signed an Executive Order, "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule." With this proposed rule, the agencies intend to maintain the status quo by proposing to add an applicability date to the 2015 Rule and thus provide continuity and regulatory certainty for regulated entities, the States and Tribes, agency staff, and the public while the agencies continue to work to consider possible revisions to the 2015 Rule. See https://www.reguiatjons.gov/documenf7D-EPA-HQ-OW-2Q17-0644-0001
Best,
Daren
Daren Bakst Research Fellow in Agricultural Policy Institute for Economic Freedom The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 Z Z l* :jC Z ] heritage.org H From: Todd F. Gaziano [mailto:TGaziano@pacifidegag.org1 Sent: Tuesday, December 5, 2017 1:56 PM To: Bakst, Daren <Daren,Bakst@herit3ge.org>
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Cc: Gordon, Robert ^Robert G o ^ Subject: RE: Tomorrow on WOTUS
Jonathan Wood <JWood@p3dfidegai.org>
I was on a series o f calls, and m ay have a n o th e r...
W e can condense our discussion. M y m ain question on w ho will be there is w hether there will be anyone else w ith extensive WOTUS experience, like AFBF, the mining association, home builders?
As far as the substance o f our discussion:
I especially agree we should discuss, and try to raise with Pruitt, concerns about the rulem aking
process. For exam ple, w e should suggest that he bo lster his position for change if E P A cites legal
concerns with the W OTIJS rule.
1 d o n 't object to m ost o f the discussion about w hat should go in the new mile, but som e o f th at m ay be in the w eeds for folks w ho aren 't into it and possibly Pruitt.
W e m ight also discuss what m ore can/should be done to reign in bureaucrats who are acting as if nothing has changed. I w ant to suggest: that E PA /C orps m ight com e up with some enforcement: policy priorities th at state w hat violations are priorities and what are not, w hich m ight help get: bureaucrats to
change behavior during the rulem aking process.
From: Bakst, Daren [maiito:Daren.Bakst@heritage.orgl Sent: Tuesday, December 05, 2017 11:47 AM To: Todd F. Gaziano <TGaziano@pacifidegai.org> Cc: Gordon, Robert <RobertGordon@herit3ge.org>; Jonathan Wood <JWood@pacificiegai.org> Subject: RE: Tomorrow on WOTUS
Todd,
Rob and I just chatted; he is out of the office.
Even though we are allotted 30 minutes, we should expect about 15 minutes, with you and I presenting for about 10 minutes.
Our audience is going to be our friends, e.g. CEI, Capital Research Center, Heartland, etc. There will be about 30-40 people.
I thought we could discuss:
-The latest developments and process to develop a new definition (the two-step process and the recent: and current comment period) - Our Ideas on what a new definition should look like, highlighting key principles such as CWA expressly envisions a significant state role, having dear and objective definitions, and then going through what waters we think should constitute "waters of the U.S." in any new ruie.
it seems our goal should be to get buy-in from the group on the substance of any new definition.
Also, if we have time, we might want to propose some Ideas on how the EPA and Corps could improve the enforcement of the CWA during this interim period before a new rule goes into effect. For example, could the EPA and Corps direct that certain actions, even if currentiy in litigation, being reviewed by the central offices?
Best,
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Daren
My plan, based on what you said, is to provide an update on what is happening, the issues that exist regarding defining "waters of the U.S.", and what we have argued the definition should look like. My goal is to get buy-in on our general principles and definition.
There is one issue that I am not sure if we should address but it is important:
Daren Bakst Research Fellow in Agricultural Policy Institute fo r Economic Freedom The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 !i_______x__.'______ _i heritage.org Til From: Todd F. Gaziano [mailto:TGaziano@padfidegal,orgl Sent: Tuesday, December 5, 2017 11:24 AM To: Bakst, Daren <Daren. 8akst@hent3ge.org> Cc: Gordon, Robert <RobertGordQn@heritage.org>; Jonathan Wood <JW00d@p3cifidegal.0rg> Subject: RE: Tomorrow on WOTUS
Glad to try to come up with an agenda, but it would be helpful for me to know who else will be attending, in part to know who else is an expert or up to speed on WOTUS issues. Can you or Rob send me a list of attendees?
From: Bakst, Daren [mailto:Daren.Bakst@heritage.orgl Sent: Tuesday, December 05, 2017 10:40 AM To: Todd F. Gaziano <TGaziano@p3dfsdegal.org> Subject: Tomorrow on WOTUS Importance: High
Todd,
You and I will be discussing WOTUS tomorrow. It seems like it would be good if we could come up with a game plan on how to organize the presentation. I am around today if you can chat. It would be good if we could divide up what we would like to present.
Thanks,
Daren
Daren Bakst Research Fellow in Agricultural Policy Institute fo r Economic Freedom The Hen sage Foundation 214 Massachusetts Avenue. NE Washington. DC 20002
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