Document rxZ8obJkRM28KG2zZ8GN9zKaa

Message From: Sent: To: CC: Subject: Attachments: Todd F. Gaziano [TGaziano@pacificlegal.org] 1/3/2018 3:58:39 PM Forsgren, Lee [/o=ExchangeLabs/ou=Exchange Administrative Group (FYDIBOHF23SPDLT)/cn=Recipients/cn=a055d7329d5b470fbaa9920celb68a7d-Forsgren, D] Bennett, Tate [/o=ExchangeLabs/ou=Exchange Administrative Group (FYDIBOHF23SPDLT)/cn=Recipients/cn=lfa92542f7ca4d01973bl8b2fllb9141-Bennett, El]; Bakst, Daren [Daren.Bakst@heritage.org] 2-page analysis of WOTUS provision in FY2018 Omnibus bill Unintended Impact of WOTUS Provision in FY2018 Omninbus Bill final.docx Lee, Thanks again for taking the time to speak with Daren (from Heritage) arid me shortly before the end of the last congressional session. It was very good of you to do so given how busy you must be in general, but especially on Dec. 20. We were unsure then whether the WOTUS language we were concerned about would be included in stop-gap spending bill for that week, but as you probably confirmed, It was not on that bill. However, it likely will be in the Omnibus bill slated for enactment before Jan. 19. We want to try' to influence this provision as soon as we possibly can, especially since it may take time to properly elevate the issue to the right people. Attached please find a two-page analysis that mv colleagues at PLF drafted, with helpful Input from Daren. We know the executive branch did not ask for die rider in question. And while subsection (a) may not be necessary, like you all, we think it could be helpful. Thus, there is no reason to oppose subsection (a), whether you asked for it or not. As a reminder, our only concern is with the unintended Impact on subsection (b). EPA/Corps appointees may not agree (or not agree as strongly) that the pre-2015 rules and guidelines that are essentially ratified arid statutorily approved by subsection (b) are quite as bad as we do, but we think von should agree that congressional endorsement of them will complicate your job of writing a new' rule and make it much harder to get what we think Administrator Pruitt wants through the courts. My colleague who argued and won the Rapcmos case, Reed Hopper, was involved in drafting the attached analysis before his unexpected death on Christmas Day. Our litigation director, James Burling, and our other Clean Water Act experts stand behind the attached too. After you review it, we ask you to forward it to other relevant folks. We'd be eager to hear your and their reaction to our analysis, including in another call with whomever you think should be present We are circulating the analysis to folks on the Hill as well, but we still think that EPA may need to be the one to forcefully push for change. One option is to cut out subsection (b) entirely since it is not necessary for the purpose we think it was intended to serve. At the end of the analysis, however, we have alternative language to accomplish that same purpose but not do any harm. Todd Todd F. Gaziano I Senior Fellow in Constitutional Law Executive Director of the DC Center Ex;6]:; Pacific Legal Foundation Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00058361-00001 From: Forsgren, Lee [mailto:Forsgren.Lee@epa.gov] Sent: Wednesday, December 20, 2017 1:27 PM To: Todd F. Gaziano <TGaziano@pacificlegal.org> Cc: Bennett, Tate <Bennett.Tate@epa.gov>; Jonathan Wood <JWood@pacificlegal.org>; Bakst, Daren <Daren.Bakst@heritage.org> Subject: RE: Tate/Lee: phone Mtg. request re: Sec. 431 on WOTUS rule in Minibus/cromnibus Since I am going to be stepping out of a meeting why don't we set up a conference line. We can use my line. I will send a meeting request ASAP. Lee From: Todd F. Gaziano [mailto:TGazi3no@pacifidegal.org1 Sent: Wednesday, December 20, 2017 12:54 PM To: Forsgren, Lee <Forsgren.Lee@epa.gov> Cc: Bennett, Tate <Bennett.Tate@epa.gov>; Jonathan Wood <JWQQd@patifSdegaS.org>; Bakst, Daren <Daren. B3kst@heritage.0rg> Subject: RE: Tate/Lee: phone Mtg. request re: Sec. 431 on WOTUS rule in Minibus/cromnibus Lee; Thanks for making yourself available at: any time. I would be happy to talk for a few minutes at 6:00. Ill confirm with Jonathan and Daren whether they are free as well. Is there a # we should try to reach you9 If not, I can send you a conference code to reach us. Todd From: Forsgren, Lee [m3ilto:Forsgren.Lee@epa.gov1 Sent: Wednesday, December 20, 2017 11:30 AM To: Todd F. Gaziano <TGaziano@paaficiegai,org> Cc: Bennett, Tate <Bennett.T3te@epa.gov>; Jonathan Wood <JWoQd@pacificlegal.org>; Bakst, Daren <Daren.Bakst@heritage.org> Subject: Re: Tate/Lee: phone Mtg. request re: Sec. 431 on WOTUS rule in Minibus/cromnibus I am swamped till late this evening. Maybe I dan talk at 6:00 pm for a few minutes. Sent from my iPhone On Dec 20, 2017, at 11:23 AM, Todd F. Gaziano <TGaziano@pacifidegai.Qrg>wrote: Tate: Thanks much. Lee: Fro. tied up until almost noon or so. Can. one or more of us talk to you any time after that today? Todd F. Gaziano I Senior Fellow in Constitutional Law Executive Director of the DC Center Pacific Legai Foundation Ex. 6 !(o) j(c) Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00058361-00002 From: Bennett, Tate [mailto: Bennett. Tate@epa.govl Sent: Wednesday, December 20, 2017 10:44 AM To: Todd F. Gaziano <TGazi3no@pacifjciegai.org> Cc: Jonathan Wood <JWood@pac.ific.iegal.org>; Bakst, Daren <Daren.Bakst@heritage.org>; Forsgren, Lee <Forsgren. Lee@epa.gov> Subject: RE: Tate: phone Mtg. request re: Sec. 431 on WOTUS rule in Minibus/cromnibus HiTodd- We 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 Beimeft.Tate@epa.gov From: Todd F. Gaziano [mailto:TGaziano@pacifidegal.org1 Sent: Wednesday, December 20, 2017 10:12 AM To: Bennett, Tate <Bennetf.Tate@ep3.gov> Cc: Jonathan Wood <jWood@pac.ifidegal.org>; Bakst, Daren <Daren.Bakst@heritage.org> Subject: Tate: phone Mtg. request re: Sec. 431 on WOTUS rule in Minibus/cromnibus Tate, I don't know if you saw my meeting request below, but at this point, a phone connection is probably best.... unless you or someone else at EPA can confirm that subsection (b) it. out of the bill. I don't mean to bug you unreasonably, but this is a fair warning I will continue to try to reach you "reasonably" (and more frequently) until you. tell me the provision is out, you connect me to someone who is working the issue, or you affirmatively tell me to go away. Todd Todd F. Gaziano I Senior Fellow in Constitutional Law Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00058361-00003 Executive Director of the DC Center BafiifiQ.Lejgaj.Foun dati on Ex 6 i0) From: Todd F. Gaziano Sent: Friday, December 15, 2017 10:55 AM To: 'Bennett, Tate' <Bennett.'T a fe @ e pa .gQy> Cc: Bakst, Daren <Daren.B3kst@heritage.org>; Jonathan Wood <jWood@pacifidegaLorg> Subject: Mtg. request re: Sec. 431 on WOTUS rule in Minibus Tate: Thanks for your action to date (and I've been confused with my brother Tom before, so I'm only amused by that). We've discussed the provision more amongst ourselves, and with some other CWA experts. I am even more concerned about it the longer' I study it, and Fm more convinced that subsection (b) can serve no good purpose anyway. As for its unintended harm, it would not just codify one bad guidance from one year The provision, on its face, would codify all regulations (plural) and guidance (that would be interpreted as plural in that phrase) in existence in 2015. Thus, it would codify or insulate (at least temporarily ) scores of bad and otherwise illegal guidance documents from decades of horrible administration, many of which we 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. Given our deep concern, we'd like to be introduced to and meet (or at least talk) with the appropriate folks in the Water Office who might be responsible for pushing back on the subsection or who might be saddled with it if it is not killed. Can you connect us and help arrange such a meeting? Todd Todd F. Gaziano I Senior Fellow in Constitutional Law Executive Director of the DC Center Pacific Legal Foundation From: Bennett, Tate [mailto:Bennett.Tate@epa.gov1 Sent: Friday, December 15, 2017 10:21 AM Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00058361-00004 To: Todd F. Gaziano <TGazianofSp acificiegag.org> Cc: Bakst, Daren <Daren.Bakst@heritage.org>; Jonathan Wood <JWood@pacifidegai.org> Subject: RE: Sec. 431 on WOTUS rule in Minibus Hi Tom- 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 Beimett.Tateifajepa.gov From: Todd F. Gaziano [mailto:TGaziano@pacifidegal.orgl Sent: Thursday, December 7, 2017 8:54 AM To: Bennett, Tate <Bennetf.Tate@ep3.gov> Cc: Bakst, Daren <Daren.Bakst@heritage.org>: Jonathan Wood <JWood@pacifidegal.org> Subject: Sec. 431 on WOTUS rule in Minibus Tate, It was great to meet you yesterday at the Heritage roundtable event. My colleagues and I at PLF may have many occasions to work with von and others at EPA. As the below correspondence with Daren indicates, subsection 431(b) in the House minibus bill may not be quite as "disastrous" as I first thought in locking in 2015 regs and guidance, but. it would tie EPA's hands in some clear and harmful ways until a final rule is issued, and it may still complicate the eventual replacement of the WOTUS rule under the APA. It needs to be modified 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 Lega! Foundation Ex. 6 (0) (c) Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00058361-00005 From: Todd F. Gaziano Sent: Wednesday, December 06, 2017 6:20 PM To: 'Bakst, Daren' <Daren.B3kst@hentage.org>; Jonathan Wood <jWood@pacificlegai.org> Subject: RE: Tomorrow on WOTUS Two issues: 1. At a minimum, it says that EPA MUST follow Rapanos Guidance (not Scalia) until it issues a final rule, or at least an interim final rule. How long will that take? 2. It still is ambiguous enough that it might complicate replacing the Rapanos Guidance. For example, it might allow EPA to replace the now mandated Rapanos Guicance, but as to that, it would have to give sufficient reasons under the APA, since section (a) do not apply to the new rule, only the withdraw of WOTUS. Regardless of how bad it is, it should go. From: Bakst, Daren fmaiito:Daren.Bakst@heritage.orgl Sent: Wednesday, December 06, 2017 6:08 PM To: Todd F. Gaziano <TGaziano@padfidegai.org>; Jonathan Wood <JWood@padfidegai.org> Subject: FW: Tomorrow on WOTUS Todd and Jonathan, Sam trying to process this language, i am trying to figure out the impact of this language: "Except as otherwise provided by any Act or rale that takes effect after the date of enactment o f this Act." This seem s to be saying that the EPA could still issue a rale that does not implement the old guidance so long as such rale 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 rules 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 for Economic Freedom The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC ::000A, Ex. 6 heritage.org From: Bakst, Daren Sent: Wednesday, December 6, 2017 11:22 AM Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00058361-00006 To: 'Todd F. Gaziano' <TGa2ian0@pac.ifSciegal.org> Cc: Jonathan Wood <JWood@pacificiegal.org> Subject: RE: Tomorrow on WOTUS This was in a "minibus" bill that passed the House. 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 bill: See this recent article: https://www.washingtonpost.com/news/energyenvironmenit/wp/2017/11/30/gop-crafts-spending-bi'li-provisions-aimed-at-speeding-repeal-Df-waterprotectionrule/?utm term--.Qec68799fla7 H.R. 3354: https://www.CDnBress.BOv/bigi/115th-congress/house-bSig/3354/text SEC. 431. (a) A U T HO RI ZA TI ON The Administrator of the Environmental Protection Agency and the Secretary of the Army may withdraw the Waters of'the United States rule without regard to any provision of statute or regulation that establishes a requirement for such withdrawal. (b) EFFECT OF W IT H D RA W A L .-- Except as otherwise provided by any Act or rule that takes effect after the date of enactment of'this Act, if the Administrator of the Environmental Protection Agency and the Secretary of the Army withdraw the Waters of the United States rule under subsection (a), the Administrator and Secretary' shall 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 of such rule. (c) DE FIN IT IO N S .....In this section the term "Waters of the United States rule"' means the final rule issued by the Administrator o f the Environmental Protection Agency and the Secretary of the Army entitled "Clean Water 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 <Daren.Bakst@heritage.org> Cc: Jonathan Wood <JWood@pacificiegal.org> Subject: RE: Tomorrow on WOTUS Sorry for my delay in responding to this, but I may try to talk to you for a couple of minutes when I arrive if you can't respond by email to my question, but I was 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 ...?9Tj!.9..k9.i.F undati on Ex. 6 j(0 ) lie ) Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00058361-00007 From: Bakst, Daren fmaiito:Daren.Bakst@heritage.orgl Sent: Tuesday, December 5, 2017 2:55 PM To: Todd F. Gaziano <TGazi3no@pacjficiegai.org> Cc: Gordon, Robert <Roberf.Gordon@herifage.org>; Jonathan Wood <JWood@pacificiegai.org> Subject: RE: Tomorrow on WOTUS Todd, i don't have an answer to your question about groups iike AFBF, but I highiy doubt that such groups wiii be there. I would aiso just assume that our audience are folks who have some knowledge of WOTUS, but not at the ievel of those groups. What if i provide a 5-6 minute update that wouid: - Explain the latest developments - Lay out the principles and substance of what a definition of WOTUS 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 wetiands 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 wiii mention Riverside and SWANCC in my brief discussion regarding defining tributaries; issue regarding getting better support for getting rid of the rule itself; piease be aware that Congress has appropriations language that would allow the agencies to withdraw the rule without having to worry about the APA. ! 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 SV10U to ailow 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) ! am still thinking through what i think of the ERA and Corps proposing (and seeking comment) on extending the applicability date of the Ciean Water Rule (it seems odd to seek to repeal the rule and extend its applicabiiity date; I 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.reguiatiQns.gQy/dGCument.7D~EPA~HG~QW~2017~0644-0Q01 Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00058361-00008 Best, Daren Daren Bakst Research Fellow in Agricultural Policy Institute for Economic Freedom The Heritage Foundation 214 Massachusetts Avenue. NE Washington, DC 20002 [ _____Ex: 6___ heritage.org m From: Todd F. Gaziano [mailto:TGaziano@padfidegai.orgl Sent: Tuesday, December 5, 2017 1:56 PM To: Bakst, Daren <Daren.Bakst@herit3ge.org> Cc: Gordon, Robert <Robert.Gordon@herit3ge.org>; Jonathan Wood <JWood@pacificiegai.org> Subject: RE: Tomorrow on WOTUS 1was on a series of calls, and may have another ... We can condense our discussion. My main question on who will be there is whether there will be anyone else with extensive WOTUS experience, like AFBF, the mining association, home builders? As far as the substance of our discussion: I especially agree we should discuss, and try to raise with Pruitt, concerns about the rulemaking process. For example, we should suggest that he bolster his position for change if EPA cites legal concerns with the WOTUS rule. I don't object to most of the discussion about what should go in the new rule, but some of that may be in the weeds for folks who aren't into it and possibly Pruitt. We might also discuss what more can/should be done to reign in bureaucrats who are acting as if nothing has changed. I want to suggest: that EPA/Corps might come up with some enforcement policy priorities that state what violations are priorities and what are not, which might help get bureaucrats to change behavior during the rulemaking process. From: Bakst, Daren [mailto:Daren.Bakst@herifage.orgl Sent: Tuesday, December 05, 2017 11:47 AM To: Todd F. Gaziano <TGaziano@pacifidegal.org> Cc: Gordon, Robert <RobertGordon@herit3ge.org>; Jonathan Wood <JWood@paafidegaj.orfl> 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. Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00058361-00009 Our audience is going to be our friends, e.g. CEI, Capital Research Center, Heartland, etc. There will be about: 30-40 people. Sthought 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 clear and objective definitions, and then going through what waters we think should constitute "waters of the U.S." in any new rule. 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 ERA and Corps could improve the enforcement of the CWA during this interim period before a new rule goes into effect. For example, could the ERA and Corps direct that certain actions, even if currently in litigation, being reviewed by the central offices? Best, 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 Institutefo r Economic Freedom The Heritage Foundation 214 Massachusetts Avenue. NE Washington. DC 20002 i!_____Ex_._6____ ]i heritage.org m From: Todd F. Gaziano [mailto:TGaziano@padfidegaS.org1 Sent: Tuesday, December 5, 2017 11:24 AM To: Bakst, Daren <Daren.Bakst@herit3ge.org> Cc: Gordon, Robert <Robert.Gordon@herit3ge.org>; Jonathan Wood <jWood@padftciegal.org> 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? Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00058361-00010 From: Bakst, Daren [maiito:Daren.Bakst@heritage.orgl Sent: Tuesday, December 05, 2017 10:40 AM To: Todd F. Gaziano <TGazianogppacificiegaS.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 Institutefo r Economic Freedom The Heritage Foundation 214 Massachusetts Avenue. NE Washington, DC 20002 Ex. 6 heritage.org [i Sierra Club v. EPA 18cv3472 NDCA Tier 5 ED 002061 00058361-00011