In a May 15, 2015 memorandum published just prior to the U.S. EPA's issuance of regulations clarifying the scope of the Clean Water Act ("CWA"), the Corps of Engineers ("Corps") claims that the economic and technical analysis provided by the Corps to the U.S. EPA regarding Section 404 permitting spanning fiscal years 2009 to 2014 was misapplied by the EPA in crafting the CWA rule which was jointly published on June 2015. The memo claims that the Corps provided the EPA with raw dredge-and-fill permitting data, and that the Corps had no role in selecting or analyzing the data that the EPA used in drafting the new rule. In addition, the memo concludes that the Corps should not be identified as a co-author or substantive contributor to the rule as the Corps and the EPA were not on the same page with regard to the conclusions reached by the EPA to justify the rule. It is believed that the memorandum could be instrumental in the lawsuit challenging the rule which currently includes 30 states and nearly 20 industry groups.
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