On Tuesday November 4th, lawyers for state and industry challengers of the Obama Administration’s Waters Of The U.S. (WOTUS) rule will submit their opening briefs to the 6th Circuit Court of Appeals. Two separate environmentalist groups will also submit opening briefs.

The rules challengers will be without a key memos from the Army Corps of Engineers. Leaked memos from an Army Corps. general in protest that his agency was cut out of the EPA’s rule making processed warned the rule is riddled with ‘contradictions’ and ‘fatally’ flawed have been bared from the lawsuit. The three-judge panel disallowed the documents by deeming them deliberative process materials, fearing allowing them would deter agency officials from speaking openly about the rule making process.

According to Politico, these memo’s revealed last summer by the House Oversight and Government Reform Committee show an intense disagreement between on-the-ground experts at the Army Corps and the political appointee overseeing the agency and the EPA.

“The rule’s contradictions with legal principles generates multiple legal and technical consequences that, in the view of the Corps, would be fatal to the rule in its current form,” Maj. Gen. John Peabody, then the corps’ second-in-command, wrote in a highly unusual April 2015 memo to Jo-Ellen Darcy, the Assistant Secretary of the Army for Civil Works.

Regardless of the court’s refusal to allow these memo’s, there is now no doubt that the WOTUS rule is deeply flawed, as the CWC and many other groups have been saying since it began the regulatory process at EPA. These memos also show a stark divide between political and non-political opinions, calling into question the merits and motivations behind the rule.

At CWC, we oppose the WOTUS rule, which will do more harm than good. The rule will vastly expand the definition of ‘wetlands’ under the Clean Water Act, which will make it much more bureaucratic, costly, and time consuming for the construction of desperately needed water infrastructure projects. In many cases, without these water infrastructure projects, the environmental repercussions will continue to mount, calling into questions the motives of those in favor of this rule. In other words, proponents of this rule argue it will help the environment, but if construction and wetland redevelopment projects are stymied by bureaucracy resulting from this rule, the environment will suffer worse than without the rule.