Letter on Behalf of NCSL in Support of the "Preserve the Waters of the U.S. Act"

March 28, 2012

The Honorable John Barrasso
United States Senate
307 Dirksen Senate Office Building
Washington, DC 20510

Dear Senator Barrasso:

On behalf of the National Conference of State Legislatures (NCSL) we are writing in support of your legislation entitled “Preserve the Waters of the U.S. Act”. For more than a year NCSL has been involved in ongoing conversations with staff at the Office of Management and Budget (OMB), the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) regarding the Draft Guidance on Identifying Waters Protected by the Clean Water Act (Draft Guidance). We have been consistent in our comments regarding the Draft Guidance and a call for EPA and the Corps to undertake a formal rulemaking process, inclusive of a federalism consultation process with state and local governments.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 Clean Water Act programs, beyond the 404 permit program. 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 support your efforts through this legislation to prevent EPA and the Corps from using the guidance document process to enable such an expansive change in responsibilities under the Clean Water Act and urge EPA and the Corps to instead move forward and undertake the necessary steps to engage in the rulemaking process under the Administrative Procedures Act.



Senator Beverly Gard, Indiana
Co-Chair, NCSL Environment Standing Committee

Representative Jeff Morris, Washington
Co-Chair, NCSL Environment Standing Committee

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