November 5, 2014

Dear Administrator McCarthy:

Thank you for your continuing emphasis on partnership as the EPA and 

US Army Corps of Engineers evaluate the public comments on the 

proposed rule regarding Waters of the United States. We are especially 

appreciative that you have engaged the Local Government Advisory 

Committee’s (LGAC) Protecting America’s Waters Workgroup to 

facilitate outreach to local, state and tribal agencies in the spirit of 

collaborative partnership. We are hopeful that these face-to-face 

community conversations will make an impactful contribution towards 

creating a rule that is embraced throughout the country.

The Workgroup has completed a series of public outreach meetings 

regarding the proposed rule. The regional meetings, held in St. Paul, 

Minnesota; Atlanta, Georgia; Tacoma, Washington and Worcester, 

Massachusetts, provided a strong sense of local perspectives and 

perceptions regarding the proposed rule.

In summary, there was strong agreement that clean water is an 

essential foundation for public health, recreation and commerce. 

However, the Workgroup heard strong sentiments in these areas:

Permitting: While the outreach effort focused on the proposed rule,

the preponderance of discussion focused on the permitting process. It 

became clear that many local agencies are frustrated with the 

uncertainties and challenges of trying to permit good projects in their 

communities. Introducing the proposed rule brought all of these 

concerns to the forefront. A clear and predictable permitting process is 

an essential foundation upon which any new regulatory proposal 

would be built.

Clarity: There is also a strong sentiment that the proposed rule does 

not, as written, provide clear definitions nor achieve the 

objective of clarifying the extent of federal jurisdiction over local water 

bodies. Lack of clarity is especially problematic because, in 

many cases, permitting occurs at the local level and is under the 

jurisdiction of the U.S. Army Corps of Engineers (USACE). 

Interpretation of jurisdictional authority by the USACE can be a locally 

frustrating experience and many local agencies are fearful that the 
proposed rule will add to the confusion and/or increase the jurisdictional assertion 

by the USACE.

Exemptions: The question as to what is and what is not a Water of the United States 

was a common theme among speakers. Questions arose regarding agricultural 

exemptions as well as the status of MS4 permittees. These are critical questions that 

must be easily answered in order for the rule and the permitting process to be 

effective.

The LGAC report provides several recommendations to the Administrator that can be 

summarized as follows:

 The permitting process deficiencies must be addressed. Any proposed rule, 

regardless of its merits, will likely be poorly received until the permitting process 

becomes more streamlined, effective and predictable.

 The rule must be written so that local agencies, states, EPA and the USACE all clearly 

understand key definitions and the scope of federal jurisdiction so that 

implementation is predictable. Whether a water body is or is not under federal 

jurisdiction must be clear to all parties.

 Agricultural exemptions must be explicitly and clearly stated

 Cost remains a concern, especially in the context of uncertain jurisdictional 

assertion and an unpredictable permitting process.

 There are significant regional differences which must be considered and addressed 

in the rule. Regional differences and/or unique circumstances strongly justify the 

need for flexibility in permitting/implementation.

 There are many local, state and federal (specifically MS4) programs and regulations 

that protect the nation’s water quality. The rule should acknowledge and incentivize 

best management practices already underway.

The development of a rule that is both clear from a nationwide perspective and adaptable 

to local conditions is challenging. The rule clarifying the Waters of the United States has 

such significance, the LGAC would encourage additional collaboration to address the issues 

raised throughout the public outreach process. There is no doubt that the proposed rule, as 

written, should be modified to reflect the comments received through the public outreach 

process as enumerated in our attached report.

Consequently, the LGAC recommends that the EPA continue to engage state, local and tribal 

agencies in the rule development process. The LGAC has been encouraged by the extensive 
3 | L G A C – W a t e r s o f t h e U . S . P r o p o s e d R u l e

level of local participation and the strong concurrence that clean water is a national asset 

that must be respected and preserved.

Thank you for engaging the LGAC and the Water Workgroup in your outreach efforts. We 

will continue our work as needed throughout the rule development process.

Sincerely,

Mayor Robert Dixson Susan Hann

Chair Chairwoman, Protecting America’s 

Waters Workgroup

Commissioner Robert Cope Mayor Lisa Wong

Chair, Small Community Chairwoman, Environmental 

Advisory Subcommittee (SCAS) Justice Workgroup