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It has been a significant week for the new federal rule defining waters of the United States, sometimes called the WOTUS rule:

  • The General Accountability Office found that the U.S. Environmental Protection Agency violated the law in a social media campaign that occurred during the rule’s development.
  • Meanwhile, language defunding implementation of the rule did not get included in an omnibus spending agreement before Congress this week.

What is WOTUS?

Update on EPA's "Waters of the U.S." ruleThe controversial WOTUS rule redefines waters that are subject to the federal Clean Water Act. The act, in turn, regulates discharges into waters of the U.S. and the quality of those waters under programs best known by their acronyms: the NPDES program and TMDL program. Most significant for Florida, the WOTUS rule would decide what waters are considered federal wetlands. Such wetlands require a permit from the Army Corps of Engineers before the lands can be altered, and also involve review under the Endangered Species Act.

GAO findings: What happened

During rule development, the EPA used a variety of social media platforms to disseminate its messages about the WOTUS rule. The GAO concluded that the EPA’s message on the social media platform Thunderclap constituted illegal covert propaganda. Failure by a government agency to identify its role in developing publicly disseminated information constitutes illegal covert propaganda. Thunderclap is a “crowdspeaking” platform that allows the organizer, in this case the EPA, to have a message simultaneously posted on Facebook pages and other social media accounts for a predesignated number of people after enough people agree to post it. Through this method, messages saying “Clean Water is important to me. I support EPA’s efforts to protect it…” reached about 1.8 million people via almost 1,000 different social media accounts. The people viewing these messages, e.g., on Facebook, would not have known that the EPA had drafted it, said the GAO, thus making it covert propaganda. Similarly, the EPA’s hyperlinking to third-party sites such as Surfrider, from the EPA’s WOTUS blog, ran afoul of the law prohibiting agencies from engaging in grassroots lobbying, when those third-party sites contained messages urging people to contact Congress to support the rule.

Spending bill: What happened

Last minute negotiations on the omnibus spending bill saw a number of policy riders stripped out, reportedly as part of the give-and-take of negotiations necessary to lift the ban on oil exports that was ultimately included in the spending bill.

What’s next?

Despite its findings, the GAO’s opinion has no immediate impact on the status of the WOTUS rule. For now, the WOTUS rule remains stayed by the U.S. Court of Appeals for the 6th Circuit. That court is still determining whether the stay will remain in place while the challenge moves forward or whether a trial court will have to re-examine the stay.

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If you have any questions about how this may affect your business or property, please contact Gunster environmental & land use attorney Greg Munson. Prior to joining Gunster in 2013, Munson twice held senior positions at the Florida Department of Environmental Protection: as general counsel from 2004 to 2006, and most recently as the deputy secretary for water policy and ecosystem restoration. More info: Reach of the Clean Water Act remains unclear (Florida Fruit & Vegetable Association | Harvester, 12/17/15) Image courtesy of Photokanok via FreeDigitalPhotos.net

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