The EPA rule attempting to clarify the scope of Clean Water Act jurisdiction took another gut punch when the Government Accountability Office found that the EPA's use of social media in connection with its rulemaking violated anti-lobbying laws.
The rule in question attempts to define the term "waters of the United States" (WOTUS), in which a CWA section 404 permit is needed to conduct activities that result in discharge of a pollutant.
In particular, the GAO concluded that the EPA's use of Thunderclap, a "crowdspeaking" social media platform, constituted "covert propaganda" because the messages that went out did not disclose to the ultimate recipients that the EPA was the source of the information.
The GAO's report may have little practical effect on the rule other than to add insult to the EPA's injury. On October 9, 2015, the Sixth Circuit Court of Appeals issued a preliminary injunction staying the WOTUS rule nationwide. The EPA and the U.S. Army Corps are complying with the stay while the litigation, involving dozens of states and other stakeholders, is resolved.
In the meantime, jurisdictional determinations for the purpose of section 404 permitting should proceed under the case-by-case analysis in place prior to this summer's issuance of the WOTUS rule.