As the fate of the waters of the United States rule that agriculture and other groups claim will significantly expand federal jurisdiction of waters across the country plays out in court, Rep. Paul A. Gosar, R-Arizona, is calling for the impeachment of U.S. Environmental Protection Agency Administrator Gina McCarthy in a letter circulated among colleagues this week.
Along with a letter, Gosar posted a news release on his website Wednesday, http://tinyurl.com/…, indicating he would offer legislation outlining articles of impeachment against McCarthy, based on comments she made to Congress regarding the particulars of the rule. Gosar alleges McCarthy committed perjury, based on a set of U.S. Army Corps of Engineers internal memos released this summer.
Gosar's Press Secretary Steven Smith told DTN the congressman is building support for legislation outlining alleged articles of impeachment.
"We currently have around nine co-sponsors but that number is constantly changing," he said. "We have received interest from another 20 members of Congress. We expect to submit the legislation later tonight or tomorrow morning."
In those memos legal beagles for the Corps expressed concern the rule was not legally defensible. In particular Corps personnel were critical of EPA's work on the rule, saying much of it was not based in science.
When contacted by DTN a spokesperson for McCarthy declined comment.
"On July 9, 2015, administrator McCarthy appeared before the House Committee on Space, Science, and Technology and made false statements in violation of section 1001 of title 18, United States Code," Gosar writes in the letter to colleagues in the House.
"When questioned on how a provision in the administration's new waters of the United States rule was developed which allows previously non-jurisdictional waters to be regulated if they have a 'significant nexus' to jurisdictional waters within 4,000 feet, McCarthy falsely claimed, 'It is available in the docket...and that's what we relied on, both the knowledge and expertise of our staff, the information that we received from the public and comments and the science that's available to us.'
"An April 27th memo to Jo-Ellen Darcy, Assistant Secretary of the Army for Civil Works, from Major General John Peabody, proves that this was a false statement and that the 4,000-foot determination was not based on science stating, 'The arbitrary nature of the 4,000-foot cutoff of jurisdiction is demonstrated by the fact that EPA staff engaged in drafting the rule told Corps staff during a conference call in March 2015 that EPA was going to cut off (Clean Water Act) jurisdiction at a distance of 5,000 feet from the (ordinary high water mark) of traditional navigable waters, interstate waters, territorial seas, impoundments or tributaries."
Gosar writes in the letter that three days later, "EPA staff changed its position and went with the 4,000-foot cutoff; 'EPA staff never provided any scientific support or justification for either a 5,000-foot or 4,000-foot cutoff.' Furthermore, Federal Judge Ralph R. Erickson also found 'the 4,000-foot cutoff to establish jurisdiction over 'similarly situated' waters has no connection to relevant scientific data' and cited this fact as one of the primary reasons for his injunction issued Aug. 27, 2015."
Erickson is the judge in the U.S. District Court for the District of North Dakota who recently issued an injunction preventing implementation of the rule in 13 states.
Gosar then points to a July 29, 2015, McCarthy appearance before the House Committee on Oversight and Government Reform as another example of perjury.
"At the hearing, I entered into the congressional record the April 27th and May 15th memorandums from Corps' Major General Peabody," Gosar writes in the letter.
"These memos include remarks that directly contradict statements made under oath by administrator McCarthy at the hearing including: that Gen. Peabody and other Army Corps employees had 'serious concerns about certain aspects of the draft final rule;' that 'the Corps' recommendations related to our most serious concerns have gone unaddressed;' that 'the rule's contradictions with legal principles generate multiple legal and technical consequences that, in the view of the Corps, would be fatal to the rule in its current form;' that 'our technical review of both documents indicate that the Corps data provided to EPA has been selectively applied out of context, and mixes terminology and disparate data sets;' and that 'In the Corps' judgment, the documents contain numerous inappropriate assumptions with no connection to the data provided, misapplied data, analytical deficiencies, and logical inconsistencies.
"As a result, the Corps' review could not find a justifiable basis in the analysis for many of the documents' conclusions."
Gosar said on June 10, 2015, Assistant Secretary of the Army (Civil Works) Jo-Ellen Darcy appeared before the House Committee on Transportation and Infrastructure.
"When asked about the Peabody memos she stated, 'We took those concerns and talked through them and walked through them with the Environmental Protection Agency,'" Gosar writes in the letter. "I asked administrator McCarthy about these memos at the July 29th hearing stating, 'Are you aware of the legal and scientific deficiencies raised by the Corps in those memos?' Administrator McCarthy replied, 'Just from what I've read, I have not seen the memo myself.'
"Later in this exchange, administrator McCarthy stated, 'In moving forward with the final; I individually had conversations with (Assistant Secretary of the Army Jo-Ellen Darcy) about the changes that the Army Corps was interested in making, and as the proposal moved through the interagency process I understood that everything had been fully satisfied.' Administrator McCarthy committed perjury at this hearing by stating under oath that 'all of the changes that the Army Corps was interested in making...had been fully satisfied...' and by failing to initially disclose that the Corps of Engineers made her aware of the legal and scientific deficiencies expressed in the Peabody memos."
Gosar then talks about a Feb. 4, 2015 appearance before Congress during which McCarthy made claims the new rule does not expand jurisdiction -- a claim disputed by EPA's own analysis of the rule that found at least some expansion of jurisdiction is likely. Gosar claims McCarthy committed perjury.
"Perjury and making false statements to Congress are an affront to the fundamental principles of our republic and the rule of law, and such behavior cannot be tolerated," Gosar said in the letter. "This bill holds administrator McCarthy accountable for her blatant deceptions and unlawful conduct."
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