GAO Determines EPA Violated Law by Promoting WOTUS

Written by M. Sean High – Staff Attorney

On December 14, 2015, the U.S. Government Accountability Office (GAO) (an independent, nonpartisan federal agency charged with investigating how the federal government spends taxpayer dollars) issued a report declaring that the U.S. Environmental Protection Agency (EPA) illegally used “certain social media platforms in association with its ‘Waters of the United States’ (WOTUS) rulemaking in fiscal years (FY) 2014 and 2015 [and as a result] violated publicity or propaganda and anti‑lobbying provisions contained in appropriations acts.”

For historical context, in March 2014, EPA and the Army Corps of Engineers issued a proposed rule in an attempted to define which waters in the United States fell under control of the federal Clean Water Act [79 Fed. Reg. 22188 (April 21, 2014).  Significantly, from February 2014 until July 2015, EPA admittedly used social media in connection with WOTUS for the purpose of 1) providing clarity about the rule; 2) providing information demonstrating the rule’s relevance; 3) providing an opportunity to engage the public; and 4) correcting any misinformation about the rule.

Under Section 718 of the Financial Services and General Government Appropriations Act, 2014 (H.R. 5016), government agencies, departments and corporations are prohibited from using government funds “for propaganda and publicity purposes not authorized by Congress.” Furthermore, Section 715 of the Financial Services and General Government Appropriations Act, 2015 (H.R. 2995) “[p]rohibits an agency of the executive branch from using funds for publicity or propaganda purposes and for the preparation or distribution of materials designed to support or defeat legislation pending before Congress.”  According to GAO, Section 715 “prohibits indirect or “grassroots lobbying” in support of, or in opposition to, pending legislation.”

GAO stated that portions of EPA’s social media activities in connection to WOTUS constituted covert propaganda in violation of Section 718 of H.R. 5016 and grassroots lobbying in violation of Section 715 of H.R. 2995.  Ultimately, GAO determined that “[b]ecause EPA obligated and expended appropriated funds in violation of specific prohibitions…EPA violated the Antideficiency Act, 31 U.S.C. § 1341(a)(1)(A), as the agency’s appropriations were not available for these prohibited purposes.” As a result GAO asserted that “EPA should report the violation to the President and Congress, with a copy to the Comptroller General, as required by the Antideficiency Act” and “should determine the cost associated with the prohibited conduct and include the amount in its report of its Antideficiency Act violation.”