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Letter to Gina McCarthy, Administrator of the Environmental Protection Agency - EPA and New Clean Water Act


Location: Washington, DC

October 2, 2013

The Honorable Gina McCarthy
U.S. Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Ave, NW
Washington, DC 20460

Dear Administrator McCarthy:

We write in response to the Environmental Protection Agency's (EPA) announcement last month that a draft rule on Clean Water Act (CWA) jurisdiction has been sent to the Office of Management and Budget (OMB) for interagency review. We are concerned that EPA created ambiguity regarding the status of the agency's 2011 draft guidance on CWA jurisdiction. In order to confirm EPA's quiet revelation that the draft guidance has been withdrawn, we request that EPA immediately and publicly instruct agency and Army Corps of Engineers (Corps) personnel and field staff that the draft guidance may not be used or relied on in making CWA jurisdictional determinations.

This request stems from EPA's September 17, 2013 blog post indicating that the agency and the Corps would proceed with rulemaking for CWA jurisdiction.[1] In conjunction with this announcement, EPA informed congressional staff that it would "withdraw[] the draft guidance previously sent to OMB and concentrat[e] on the rule per stakeholder request."[2] News reports likewise indicated that the draft guidance would be withdrawn.[3]

Yet EPA conspicuously refrained from explaining the draft guidance's status in correspondence with the public at large. The apparent withdrawal of the draft guidance was not mentioned in the September 17 blog post, nor was it referenced in contemporaneous email correspondence to stakeholder groups.[4] To our knowledge, EPA has not provided a notice or statement for public and agency dissemination which confirms the draft guidance's termination. Further, EPA's claim that it is "withdrawing the draft guidance" leads to questions on what exactly the draft's "withdrawal" means and when precisely the "withdrawal" takes effect.[5]

EPA's lack of transparency regarding the draft guidance's status is troubling. Given the significant criticism generated by the draft guidance's expansive interpretation of CWA jurisdiction, EPA should have completely and unconditionally abandoned the draft in any and all circumstances. But because EPA chose to be less than forthright, the agency's rulemaking efforts may now be plagued by uncertainty and distrust on interim jurisdictional questions.

We are likewise unconvinced that the draft guidance's "withdrawal" will result in a meaningful practical change. To illustrate, we were disturbed to learn that Corps field staff have apparently relied on the draft guidance in making recent CWA jurisdictional determinations, despite the fact that the draft was never finalized. It is disconcerting to hear of the Corps' eagerness to use the draft guidance's improper "aggregation" approach in order to assert jurisdiction over one particular farmer's drainage ditches. EPA's vague announcement last month leaves open the possibility that federal officials may for the foreseeable future look to the draft guidance and its dubious regulatory agenda when making jurisdictional determinations.

Accordingly, we request that EPA formally announce to the public and to EPA and Corps field personnel no later than October 9, 2013 that the draft guidance is withdrawn and that the draft may not be used or otherwise relied on when making CWA jurisdictional determinations. We also request that you provide Committee staff with copies of such correspondence. As there is no legitimate reason for EPA's vague approach thus far, the agency's failure to accommodate our requests will serve as a confirmation that EPA and the Corps intend to improperly rely on the draft guidance when making jurisdictional determinations during the rulemaking period.


David Vitter
Ranking Member
Environment and Public Works

John Barrasso, M.D.
United States Senate

Mike Crapo
United States Senate

Deb Fischer
United States Senate

John Boozman
United States Senate

James Inhofe
United States Senate


The Honorable Jo-Ellen Darcy
Assistant Secretary of the Army (Civil Works)
108 Army Pentagon
Room 3E446
Washington, DC 20310-0108

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