JUN - 6 2014

The Honorable C.L. "Butch" Otter Governor ofIdaho State Capitol Boise, Idaho 83720
Dear Governor Otter: Thank you for your letter dated December 6, 2013 , to the Department ofthe 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 ofCW Ajurisdiction and to improve national consistency and predictability

. The agencies took this step in response to requests from a broad range ofinterests, including members ofCongress, states, industry, agriculture, environmental groups, and other stakeholders, that we clarify the geographic scope ofCW 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 ofIdaho as well as other state and local governments identified a number ofissues, 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 ofLands, and the Idaho Department ofFish 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 tothe 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 staffmay 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 ofthe Assistant Secretary ofthe 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 ofTexas P.O. Box 12428 Austin, Texas 78711
Dear Governor Perry:
Thank you for your January 17, 2014, letter to the Department ofthe Army and the U

.S

. Environmental Protection Agency regarding the agencies ' joint rulemaking to clarify thejurisdiction ofthe Clean Water Act.
The agencies released a proposed rule on March 25 , 2014, in order to provide additional clarity regarding the geographic scope ofCW Ajurisdiction and to improve national consistency and predictability. The agencies took this step in response to requests from a broad range ofinterests including members ofCongress, states, industty, agriculture, environmental groups, and other stakeholders that we clarify the geographic scope of CW Ajurisdiction 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 ofTexas as well as other state and local governments identified a number ofissues, which our agencies have considered in developing the proposed rule.
As part ofour work to develop a proposed rule, the agencies voluntarily undertook Federalism consultation, holding a series ofmeetings 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 ofthis effort, we consulted with the National Governors Association, the National Conference of State Legislatures, the Council of State Governments, the National Association ofCounties, the National League of Cities, the U.S

. Conference ofMayors, the County Executives ofAmerica, the National Associations ofTowns and Townships, the International City/County Management Association, and the Environmental Council ofthe States. In addition, we also invited the National Association of Clean Water Agencies, the Western Governors ' Association and the Association ofClean Water Administrators to participate

. As part ofthis effort, we asked participants to provide input on what should be contained in a proposed rule and what areas ofthe definition of " waters ofthe 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 ofissues, including concerns about state authority over water rights , thejurisdictional status ofgroundwater, andthe overall scope and extent of jurisdiction. More than 400 people participated in these discussions, and participants represented a wide variety ofstate 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 ofintergovernmental concerns raised during the course ofthe rule's development and a description ofthe agencies ' efforts to address them.
Thank you again for your letter. Ifyou 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 ofthe 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 AgencyThe Honorable Brian Sandoval Governor ofNevada 101 North Carson Street Carson City, Nevada 89701
Dear Governor Sandoval:
Thank you for your letter dated March 25 , 2014, sent to the Department ofthe Army and to the U

.S. Environmental Protection Agency, in which you express concerns regarding the lack ofconsultation with the states on the proposed Clean Water Actjurisdiction rulemaking and possible effects on state authority. The agencies have coordinated and are providing thisjoint response.
The U.S. Army Corps ofEngineers and the EP.A (collectively, the "agencies") havejointly drafted a proposed rule that would revise the definition of " waters ofthe 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 ofthe 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 ofthe comment period, the agencies will evaluate all public comments received in order to inform the development ofa final rule. This process ensures the principles oftransparency, participation, and collaboration are followed throughout the rulemaking effort. The proposed rule is intended to provide additional clarity regarding the geographic scope ofCW Ajurisdiction 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 ofwater 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 ofthe CW A to express the agencies ' intent that the rule not affect the position expressed in CWA 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 oftheir water resources. We respect and appreciate states ' efforts as co-regulators

2 See page 6 ofthe preamble ofthe proposed rule, available at http ://www2.epa.gov/sites/production/files/2014- 03/documents/wus_proposed

_rule

_20140325_prepublication

.pdf. JUN - 6 

### 2014as 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 , thejurisdictional status ofgroundwater, 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 ofthe public comment process. Additionally, the agencies will include a detailed narrative ofintergovernmental concerns raised during the course ofthe rule's development and a description ofthe agencies' efforts to address them with the final rule.
Thank you again for your letter. Ifyou have further questions or concerns, please feel free to contact us, or your staffmay contact Mr. Mark Rupp in the EPA's Office ofCongressional and Intergovernmental Relations at rupp.mark@ epa.gov or (202) 564-7178 ; or Mr. Chip Smith in the Office ofthe Assistant Secretary ofthe 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 ofthe Army and to the U.S. Environmental Protection Agency, in which you express concerns regarding the lack ofconsultation with the states on the proposed Clean Water Actjurisdiction rulemaking and possible effects on state authority. The agencies have coordinated and are providing thisjoint response.
The U.S. Army Corps ofEngineers and the EPA (collectively, the "agencies") havejointly drafted a proposed rule that would revise the definition of "waters ofthe 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 ofthe 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 ofthe comment period, the agencies will evaluate all public comments received in order to inform the development ofa final rule. This process ensures the principles oftransparency, 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 ofCW 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 ofwater 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 ofthe 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 oftheir water resources. We respect and appreciate states' efforts as co-regulators JUN

- 

### 6 2014

1 See page 6 ofthe preamble ofthe 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, thejurisdictional status ofgroundwater, 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 ofthe public comment process. Additionally, the agencies will include a detailed narrative ofintergovernmental concerns raised during the course ofthe rule ' s development and a description ofthe agencies ' efforts to address them with the final rule.
Thank you again for your letter. Ifyou have further questions or concerns, please feel free to contact us , or your staffmay contact Mr

. Mark Rupp in the EPA's Office ofCongressional and Intergovernmental Relations at rupp
.mark@ epa.gov or (202) 564-7178 ; or Mr. Chip Smith in the Office ofthe Assistant Secretary ofthe 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.milor (703) 693-3655.The Honorable Steve Bullock Governor ofMontana State Capitol Building Helena, Montana 69620
Dear Governor Bullock: 

## JAN 1 52015

Thank you for your letter dated November 13 , 2014, to the U.S

. Environmental Protection Agency and the Department ofthe Army recognizing the importance ofcontinued coordination between our agencies and the states as we work to complete a final rule to define "Waters ofthe United States" under the Clean Water Act.
The perspectives ofyou 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 ofCongress, 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 ofconference calls organized by both the Association of Clean Water Administrators and the Environmental Council ofthe States, helping the agencies to hear valuable state perspectives.
Your letter also raises questions about the agencies' interpretive rule regarding the applicability ofClean 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 ofUnderstanding co-signed by Army Civil Works, the U.S. Department ofAgriculture, and the EPA. Withdrawal ofthe interpretive rule does not impact the agencies' work to finalize their rulemaking to define the scope ofthe 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 ofClean Water Act programs, and we will continue our close coordination as we work to develop a final rule.
Thank you again for your letter. Ifyou have further questions or concerns, please contact us, or your staffmay contact Mr. Mark Rupp in the EPA's Office ofCongressional and Intergovernmental Relations at rupp.mark@epa.gov or (202) 564-7178, or Mr. Chip Smith in the Office ofthe Assistant Secretary ofthe Army (Civil Works) at charles.r.smith567.civ@mail.mil or (703) 693-3655. Sincerely,

inistrator U.S. Environmental Protection Agency