Sen. Jim Inhofe, chairman of the Environment and Public Works Committee, asked the Corps of Engineers to provide documents that came to his attention concerning the EPA’s and Corps’ development of the rule. The Corps provided the documents, but asked that they be kept from public view. Evidently, they show that Corps staff had questions about the validity of EPA’s economic analysis and the rule’s unworkability due to lack of clarity concerning what “waters” were to be regulated. The documents also show that staff’s concerns, even those based on the view that the rule didn’t go as far as they would like, were ignored or overridden. Chairman Inhofe remarked that while the rule was “purportedly a joint effort of EPA and the Corps,” it appears that the Corps was cut out of the process.

Unfortunately, this isn’t very surprising. All of this seems to validate much of what we have been saying about the serious flaws in EPA’s economic analysis, and about how difficult it is for anyone, including apparently the Corps, to know what is a “water” and which “waters” are regulated under the rule.

The fact that these documents exist and that the Corps has asked the committee to keep them hidden from the public begs the question: what else is out there? What other internal agency documents might reveal what’s behind the flawed economic analysis, or other factors that shaped the rule? What EPA documents have not been revealed that would shed light on how the agency made decisions and whether it genuinely considered the public’s concerns?

It’s time for some transparency.