JUN - 6 2014 

The Honorable C.L. "Butch" Otter 

Governor of Idaho 

State Capitol 

Boise, Idaho 83 720 

Dear Governor Otter: 

Thank you for your letter dated December 6, 2013, to the Department of the Army and the U.S. 

Environmental Protection Agency regarding the agencies' joint rulemaking to clarify the jurisdiction of 

the Clean Water Act. 

The agencies released a proposed rule on March 25, 2014, in order to provide additional clarity 

regarding the geographic scope of CW A jurisdiction and to improve national consistency and 

predictability. The agencies took this step in response to requests from a broad range of interests, 

including members of Congress, states, industry, agriculture, environmental groups, and other 

stakeholders, that we clarify the geographic scope of CW A jurisdiction through formal notice and 

comment rulemaking. The proposed rule will be open for public comment until July 21 , 91 days after it 

was published in the Federal Register on April 21 , 2014. 

We respect and appreciate states' efforts as co-regulators as we strive together to protect our nation's 

waters. State governments have well-defined and longstanding relationships with Federal agencies in 

implementing CW A programs, and our agencies have carried out this rulemaking process in a way that 

recognizes these strong relationships. As we developed the proposed rule, our agencies held several inperson meetings and numerous phone calls with state associations and state and local government 

agencies to seek input. During this process, the State of Idaho as well as other state and local 

governments identified a number of issues, which our agencies have considered in developing the 

proposed rule. 

We look forward to further engagement with Idaho and other state partners now that we have released a 

proposed rule for public comment. During the 91-day public comment period, we welcome additional 

comments from states and other stakeholders. We have also begun additional outreach with state and 

local government officials and associations to review states' prior comments and to discuss how the 

agencies addressed such concerns in the proposed rule. We look forward to additional dialogue with 

states and other stakeholders across the country in the coming weeks. We will ensure the procedures we 

follow throughout our rulemaking process are as transparent as possible and consistent with the 

Administrative Procedure Act and other applicable requirements. 

Finally, thank you for comments from your state agencies, the Idaho Department of Lands, and the 

Idaho Department of Fish and Game on the EPA' s draft scientific report, "Connectivity of Streams and 

Wetlands to Downstream Waters." This draft report synthesizes available peer-reviewed scientific 

literature to inform the agencies' rulemaking efforts. Your agencies' comments have been provided to 
the EPA's Science Advisory Board for consideration as the Panel reviews the EPA's draft report and 

prepares a final peer review report. 

Thank you again for your interest in the agencies' rulemaking efforts. Please feel free to contact us if 

you have any questions on this important issue, or your staff may contact Mr. Mark Rupp, EPA Deputy 

Associate Administrator for Intergovernmental Relations at rupp.mark@epa.gov or (202) 564-7178; or 

Mr. Chip Smith in the Office of the Assistant Secretary of the Army (Civil Works) at 

charles.r.smith567.civ@mail.mil or (703) 693-3655. 

Sincerely, 

Gina 

Admi rator 

U.S. Environmental Protection Agency 

len Darcy 

s · tant Secretary oft 

( ivil Works) 
JUN - 6 2014 

The Honorable Rick Perry 

Governor of Texas 

P.O. Box 12428 

Austin, Texas 78711 

Dear Governor Perry: 

Thank you for your January 17, 2014, letter to the Department of the Army and the U.S. Environmental 

Protection Agency regarding the agencies' joint rulemaking to clarify the jurisdiction of the Clean Water 

Act. 

The agencies released a proposed rule on March 25, 2014, in order to provide additional clarity 

regarding the geographic scope of CW A jurisdiction and to improve national consistency and 

predictability. The agencies took this step in response to requests from a broad range of interests 

including members of Congress, states, industty, agriculture, environmental groups, and other 

stakeholders that we clarify the geographic scope of CW A jurisdiction through formal notice and 

comment rulemaking. The prdposed rule will be open for public comment until July 21, 91 days after it 

was published in the Federal Register on April 21, 2014. 

We respect and appreciate states' efforts as co-regulators as we both strive to protect aquatic resources. 

State governments have well-defined and longstanding relationships in implementing affected CW A 

programs and our agencies have undertaken the rulemaking process in a way that has recognized these 

strong relationships. As we developed the draft proposed rule, our agencies held several in-person 

meetings and numerous phone calls with state associations and state and local government agencies to 

seek input. During this process, the State of Texas as well as other state and local governments identified 

a number of issues, which our agencies have considered in developing the proposed rule. 

As part of our work to develop a proposed rule, the agencies voluntarily undertook Federalism 

consultation, holding a series of meetings and outreach calls with state and local governments and their 

representatives soliciting input on a potential rule, and the agencies considered the written and oral 

comments from state and local governments when developing the proposed rule. As part of this effort, 

we consulted with the National Governors Association, the National Conference of State Legislatures, 

the Council of State Governments, the National Association of Counties, the National League of Cities, 

the U.S. Conference of Mayors, the County Executives of America, the National Associations of Towns 

and Townships, the International City/County Management Association, and the Environmental Council 

of the States. In addition, we also invited the National Association of Clean Water Agencies, the 

Western Governors' Association and the Association of Clean Water Administrators to participate. As 

part of this effort, we asked participants to provide input on what should be contained in a proposed rule 

and what areas of the definition of "waters of the United States" needed additional clarity. We received 

written comments from twelve counties, eight associations, and agencies from Texas and five other 

states. In their written and oral comments, state and local governments identified a number of issues, 

including concerns about state authority over water rights, the jurisdictional status of groundwater, and 
the overall scope and extent of jurisdiction. More than 400 people participated in these discussions, and 

participants represented a wide variety of state and local agencies and associations, including the 

Western Governors' Association and the Western States Water Council. 

We look forward to further engagement with Texas and other state partners now that we have released a 

proposed rule for public comment. During the 91-day public comment period, we welcome additional 

comments from states and other stakeholders. We have also begun additional outreach with state and 

local government officials and associations to review states' prior comments and to discuss how the 

agencies addressed such concerns in the proposed rule. We look forward to additional dialogue with 

states and other stakeholders across the country in the coming weeks. We will ensure the procedures we 

follow throughout our rulemaking process are as transparent as possible and consistent with the 

Administrative Procedure Act and other applicable requirements. Additionally, the agencies will include 

with the final rule a detailed narrative of intergovernmental concerns raised during the course of the 

rule's development and a description of the agencies' efforts to address them. 

Thank you again for your letter. If you have further questions or concerns, please contact us or your staff 

may call Mark Rupp, Deputy Associate Administrator for Intergovernmental Relations, at 

rupp.mark@epa.gov or (202) 564-7178; or Mr. Chip Smith in the Office of the Assistant Secretary of 

the Army (Civil Works) at charles.r.smith567.civ@mail.mil or (703) 693-3655. 

Sincerely, 

• 

Gina 

Admi ator 

U.S. Environmental Protection Agency 
The Honorable Brian Sandoval 

Governor of Nevada 

101 North Carson Street 

Carson City, Nevada 89701 

Dear Governor Sandoval: 

Thank you for your letter dated March 25, 2014, sent to the Department of the Army and to the U.S. 

Environmental Protection Agency, in which you express concerns regarding the lack of consultation 

with the states on the proposed Clean Water Act jurisdiction rulemaking and possible effects on state 

authority. The agencies have coordinated and are providing this joint response. 

The U.S. Army Corps of Engineers and the EP.A (collectively, the "agencies") have jointly drafted a 

proposed rule that would revise the definition of "waters of the United States." On March 25, the 

agencies released this proposed rule, which clarifies protection under the CW A for streams and wetlands 

that form the foundation of the nation's water resources. The proposed rule will be open for public 

comment until July 21 , 91 days after it was published in the Federal Register on April 21, 2014. 

After the close of the comment period, the agencies will evaluate all public comments received in order 

to inform the development of a final rule. This process ensures the principles of transparency, 

participation, and collaboration are followed throughout the rulemaking effort. The proposed rule is 

intended to provide additional clarity regarding the geographic scope of CW A jurisdiction and improve 

national consistency and predictability of jurisdictional decisions applicable to all CW A programs (e.g., 

Sections 303, 309, 311 , 402, and 404). 

You recommend that the rule not diminish or in any way detract from the intent and purpose of CW A 

Section lOl(g) regarding the states' primary and exclusive authority over water allocation and water 

rights administration, as well as state-federal co-regulation of water quality. We understand and 

appreciate your recommendation and have worked hard to assure that the proposed rule reflects these 

fundamental CW A principles. The agencies included specific references in the proposed rule to these 

sections of the CW A to express the agencies' intent that the rule not affect the position expressed in 

CW A section 101(g).2 We welcome any additional comments you may have on this issue now that we 

have released a proposed rule. 

Your letter requests that the agencies fully consult and engage with states in any process that may affect 

the state management of their water resources. We respect and appreciate states' efforts as co-regulators 

2 See page 6 of the preamble of the proposed rule, available at http://www2.epa.gov/sites/production/files/2014-

03/documents/wus _proposed_ rule_ 20140325 _prepublication.pdf. 

JUN - 6 2014 
as we work together to protect aquatic resources. We also agree that states play a crucial role in 

implementing the CW A. As expressed in the EPA' s letter to the Western States Water Council on 

February 10, 2014, the agencies voluntarily undertook federalism consultation, holding a series of 

meetings and outreach calls with state and local governments and their representatives soliciting input 

on a potential rule, receiving written and oral comments from state and local governments on issues, 

including concerns about state authority over water rights, the jurisdictional status of groundwater, and 

the overall scope and extent of jurisdiction. The agencies have carefully considered these comments in 

drafting the proposed rule. 

Now that the agencies have released a proposed rule, we look forward to additional opportunities for 

close collaboration with state and local governments, including the Western Governors' Association and 

Western States Water Council, to review the comments we received during our voluntary federalism 

consultation and to discuss how the proposed rule addresses those comments. The agencies will continue 

to take input from state and local governments through the end of the public comment process. 

Additionally, the agencies will include a detailed narrative of intergovernmental concerns raised during 

the course of the rule's development and a description of the agencies' efforts to address them with the 

final rule. 

Thank you again for your letter. If you have further questions or concerns, please feel free to contact us, 

or your staff may contact Mr. Mark Rupp in the EPA's Office of Congressional and Intergovernmental 

Relations at rupp.mark@epa.gov or (202) 564-7178; or Mr. Chip Smith in the Office of the Assistant 

Secretary of the Army (Civil Works) at charles.r.smith567.civ@mail.mil or (703) 693-3655. 

Sincerely, 

Hen Darcy 

strator As istant Secretary o 

U.S. Environmental Protection Agency 1vil Works) 
The Honorable John Hickenlooper 

Governor of Colorado 

136 State Capitol 

Denver, Colorado 80203 

Dear Governor Hickenlooper: 

Thank you for your letter dated March 25, 2014, sent to the Department of the Army and to the U.S. 

Environmental Protection Agency, in which you express concerns regarding the lack of consultation 

with the states on the proposed Clean Water Act jurisdiction rulemaking and possible effects on state 

authority. The agencies have coordinated and are providing this joint response. 

The U.S. Army Corps of Engineers and the EPA (collectively, the "agencies") have jointly drafted a 

proposed rule that would revise the definition of "waters of the United States." On March 25, the 

agencies released this proposed rule, which clarifies protection under the CW A for streams and wetlands 

that form the foundation of the nation's water resources. The proposed rule will be open for public 

comment until July 2~, 91 ~ays after it was published in the Federal Register on April 21, 2014. 

After the close of the comment period, the agencies will evaluate all public comments received in order 

to inform the development of a final rule. This process ensures the principles of transparency, 

participation, and collaboration are followed throughout the rulemaking effort. The proposed rule is 

intended to provide additional clarity regarding the geographic scope of CW A jurisdiction and improve 

national consistency and predictability of jurisdictional decisions applicable to all CW A programs (e.g., 

Sections 303, 309, 311, 402, and 404). 

You recommend that the rule not diminish or in any way detract from the intent and purpose of CW A 

Section lOl(g) regarding the states' primary and exclusive authority over water allocation and water 

rights administration, as well as state-federal co-regulation of water quality. We understand and 

appreciate your recommendation and have worked hard to assure that the proposed rule reflects these 

fundamental CW A principles. The agencies included specific references in the proposed rule to these 

sections of the CW A to express the agencies' intent that the rule not affect the position expressed in 

CW A section 101(g). 1 We welcome any additional comments you may have on this issue now that we 

have released a proposed rule. 

Your letter requests that the agencies fully consult and engage with states in any process that may affect 

the state management of their water resources. We respect and appreciate states' efforts as co-regulators 

JUN - 6 2014 

1 See page 6 of the preamble of the proposed rule, available at http://www2.epa.gov/sites/production/files/2014-

03/documents/wus _proposed _rule_ 20140325 _prepublication.pdf. 
as we work together to protect aquatic resources. We also agree that states play a crucial role in 

implementing the CW A. As expressed in the EPA' s letter to the Western States Water Council on 

February 10, 2014, the agencies voluntarily undertook federalism consultation, holding a series of 

meetings and outreach calls with state and local governments and their representatives soliciting input 

on a potential rule, receiving written and oral comments from state and local governments on issues, 

including concerns about state authority over water rights, the jurisdictional status of groundwater, and 

the overall scope and extent of jurisdiction. The agencies have carefully considered these comments in 

drafting the proposed rule. 

Now that the agencies have released a proposed rule, we look forward to additional opportunities for 

close collaboration with state and local governments, including the Western Governors' Association and 

Western States Water Council, to review the comments we received during our voluntary federalism 

consultation and to discuss how the proposed rule addresses those comments. The agencies will continue 

to take input from state and local governments through the end of the public comment process. 

Additionally, the agencies will include a detailed narrative of intergovernmental concerns raised during 

the course of the rule's development and a description of the agencies' efforts to address them with the 

final rule. 

Thank you again for your letter. If you have further questions or concerns, please feel free to contact us, 

or your staff may contact Mr. Mark Rupp in the EPA's Office of Congressional and Intergovernmental 

Relations at rupp.mark@epa.gov or (202) 564-7178; or Mr. Chip Smith in the Office of the Assistant 

Secretary of the Army (Civil Works) at charles.r.smith567.civ@mail.mil or (703) 693-3655. 

Sincerely, 

• 

Gina 

Adm' strator 

U.S. Environmental Protection Agency 

o- llen Darcy 

A istant Secretary o 

ivil Works) 
n Darcy 

t Secretary of the Army (CiviI\Vorks) 

nent of the Army 

Giia)McCarthy 

Administrator 

U.S. Environmental Protection Agency

The Honorable Terry E, Branstad 

Governor of Iowa 

State Capitol 

1007 East Grand Avenue 

Des Moines, Iowa 50319 

Dear Governor Branstad: 

Thank you br your and your colleagues' letter dated October 16. 2014, to the U.S. Environmental 

Protection Agency and the Department of the Army expressing comments regarding the proposed rule, 

"Definition of 'Waters of the United States' Under the Clean Water Act." 

We appreciate the coordinated approach that you and your Iowa colleagues have taken in your letter, 

which we have added to the official docket, identified by Docket ID EPA-HQ-OW-2011 hwwrlatioj.gv. .0880 at 

We will carefully consider your comments and all comments received on 

the proposed rule when deciding what changes to make to the final rule. 

Thank you again Ibr your letter. If you have further questions or concerns, please contact us, or your 

staff may contact Mr. Mark Rupp in the EPA's Office of Congressional and Intergovernmental 

Relations at rupp.markepa,gov or (202) 564-7178, or Mr. Chip Smith in the Office of the Assistant 

Secretary of the Army (Civil Works) at charles.r,smith567.civ@mail.mil or (703) 693-3655. 


The Honorable Steve Bullock 

Governor of Montana 

State Capitol Building 

Helena, Montana 69620 

Dear Governor Bullock: 

JAN 1 5 2015 

Thank you for your letter dated November 13, 2014, to the U.S. Environmental Protection Agency and 

the Department of the Army recognizing the importance of continued coordination between our agencies 

and the states as we work to complete a final rule to define "Waters of the United States" under the 

Clean Water Act. 

The perspectives of you and your state colleagues are critical to our agencies' efforts to protect clean 

water. Even before releasing the proposed rule, our agencies began engaging with our stakeholders 

about how to clarify protection for streams and wetlands under the Clean Water Act. Specifically, since 

2011, we have been discussing these changes with our state and tribal partners, the regulated 

community, and the general public. Our ultimate decision to pursue a rulemaking was in direct response 

to this earlier engagement and requests from members of Congress, state and local officials, industry, 

agriculture, environmental groups, and the public. 

Since the proposed rule was published on April 21 , 2014, the EPA and the Army have participated in 

more than 400 meetings with stakeholders, including states and state organizations, to better understand 

their perspectives on the proposed rule. The agencies' close coordination with states continued during 

the public comment period through a series of conference calls organized by both the Association of 

Clean Water Administrators and the Environmental Council of the States, helping the agencies to hear 

valuable state perspectives. 

Your letter also raises questions about the agencies' interpretive rule regarding the applicability of Clean 

Water Act Section 404(f)(l)(A). On December 16, 2014, President Obama signed the Consolidated and 

Further Continuing Appropriations Act, 2015, which instructs the EPA and the Army to withdraw the 

agencies' interpretive rule. The EPA and the Army will follow the statutory directive and withdraw the 

interpretive rule and interagency Memorandum of Understanding co-signed by Army Civil Works, the 

U.S. Department of Agriculture, and the EPA. Withdrawal of the interpretive rule does not impact the 

agencies' work to finalize their rulemaking to define the scope of the Clean Water Act. 
The agencies are committed to carefully reviewing the approximately 800,000 written comments we 

have received on the proposed rule. Those comments, including your letter, are in the official docket, 

identified by Docket ID EPA-HQ-OW-2011-0880 at http://www.regulations.gov. The states are vital 

partners in the implementation of Clean Water Act programs, and we will continue our close 

coordination as we work to develop a final rule. 

Thank you again for your letter. If you have further questions or concerns, please contact us, or your 

staff may contact Mr. Mark Rupp in the EPA's Office of Congressional and Intergovernmental 

Relations at rupp.mark@epa.gov or (202) 564-7178, or Mr. Chip Smith in the Office of the Assistant 

Secretary of the Army (Civil Works) at charles.r.smith567.civ@mail.mil or (703) 693-3655. 

Sincerely, 

inistrator 

U.S. Environmental Protection Agency