Waters of the U.S.

The Honorable Gina McCarthy
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW (1101A)
Washington, D.C. 20510

The Honorable Jo-Ellen Darcy
Assistant Secretary of the Army
Civil Works
108 Army Pentagon
Washington, D.C. 20310

Dear Administrator McCarthy and Assistant Secretary Darcy:

On behalf of the National Governors Association, we write to ask for greater clarity and continued consultation with states regarding your proposal to define what waters come under the jurisdiction of the Clean Water Act.

There is a substantial need to continue to collaborate and consult with states throughout this rulemaking process, as states are the primary authority for regulating waters within their boundaries. The rule should give as much weight and deference as possible to state needs, priorities and concerns, as they will be tasked with much of the responsibility of implementing and enforcing any final rule. We request that you thoughtfully consider the comments by individual states, recognizing their authorities under the CWA, as well as the protections they can provide beyond the scope of the Act.

A key issue for states is increasing clarity in the definitions of the proposed rule determining what constitutes a “significant nexus” between bodies of water for jurisdictional purposes. The rule must be clear for state officials tasked with its implementation. Likewise, developing clarity, in close coordination with states, on the proposed interpretive rule for agricultural exemptions is vital.

We look forward to working with you to increase the level of consultation with states and provide the clarity that is needed for this proposed rule.


Governor Edmund G. Brown Jr., California
Chair, Natural Resources Committee

Governor Matthew H. Mead, Wyoming
Vice Chair, Natural Resources Committee