Letter to the Office of Management and Budget (OMB) Regarding Waters of the United States Guidance

March 7, 2012

Mr. Jeffrey Zients
Acting Director
The Office of Management and Budget
725 17 Street, NW
Washington, D.C. 20503

Dear Director Zients,

We the undersigned organizations representing the nations’ state legislators, mayors, cities, and counties are writing to you to express our ongoing concerns regarding the Clean Water Protection Guidance submission (RIN: 2040-ZA11) from the U.S. Environmental Protection Agency (EPA) that is currently under review by the Office of Management and Budget (OMB). We request a meeting to further discuss these concerns.

For more than a year we have been involved in ongoing conversations with staff at OMB, EPA and the U.S. Army Corps of Engineers (Corps) regarding the Draft Guidance on Identifying Waters Protected by the Clean Water Act (Draft Guidance). We have been consistent in our comments regarding the Draft Guidance and a call for EPA and the Corps to undertake a formal rulemaking process, inclusive of a federalism consultation process with state and local governments. Additionally, we requested a study of the full costs this proposed policy would have on all CWA programs, beyond the 404 permit program.

We were encouraged by EPA’s recent decision to shift gears and initiate the process to address the numerous and complex issues raised in the Draft Guidance through a formal rulemaking. Our organizations played a key role in facilitating both formal and informal consultation meetings between the agency and state and local elected officials. We believe that each of these meetings provided both sides with additional information that served to advance the conversation.

We now understand that EPA has sent to OMB for approval a draft final version of the guidance to be issued while the agency continues to work on the development of a new regulation. We have long contended that the agency should not move forward with finalizing the guidance document while undertaking the rulemaking process. The potential implications the guidance could have on both public and private sector activity at the state and local level, as well as the potential expansion of federal jurisdiction under the Clean Water Act that would effectively preempt existing state authority, are too significant to be addressed in a guidance document. We urge OMB to remand the guidance document back to EPA in light of the ongoing rulemaking process to ensure that unnecessary confusion and complications are avoided.



William T. Pound
Executive Director
National Conference of State Legislatures

Donald Borut
Executive Director
National League of Cities

Larry Naake
Executive Director
National Association of Counties

Tom Cochran
CEO & Executive Director
The United States Conference of Mayors

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