A collection of letters that have been adopted and sent by the Western States Water Council:

EPA and Corps Rulemaking on Waters of the United States

On February 20, the Environmental Protection Agency and the Department of the Army held a “WOTUS Outreach Webinar for State Partners” to discuss their direction and progress as they consider revising the jurisdictional definition of “waters of the United States.” The agencies noted that they view the webinar and opportunity for questions as an important part of their enhanced pre-proposal engagement with their state partners.

The Presentation included an overview of the rulemaking process, including federalism consultations, feedback from states, and a preliminary assessment of state authorities and programs that the agencies have prepared and plan to transmit to the states next week.  The agencies discussed considerations for a proposed rule, including clarifications and definitions for tributaries, wetlands, and exclusions.

The agencies said that all states have a legal definition for state waters, as well as approved water quality standards under the Clean Water Act (CWA). The states vary in their permitting authority programs and limitations on their ability to expand state programs beyond federally authorized programs. They are interested in hearing back from the states whether the assessments of their programs are accurate, how state limitations apply in the context of changes to jurisdictional definitions, how the states have dealt with past jurisdictional uncertainty, what plans the states have to respond to updated clarifications, and whether there are other questions the agencies should be asking.

State recommendations on jurisdictional waters varied, including: (1) traditional navigable waters only; (2) permanent lakes, and perennial streams that contain water at all times except extreme drought; (3) perennial, intermittent, and ephemeral streams; (4) only wetlands that directly touch waters of the U.S.; (5) include wetlands within a set distance, that have a direct hydrologic connection, or that have a minimum level of flow.

State feedback on exclusions also varied, with recommendations on groundwater, shallow subsurface flow, farm ponds, artificial drains, stock ponds, dip ponds for fire suppression, municipal storm sewer system features, irrigation ditches, roadside ditches, man-made ditches without perennial flow, ephemeral streams, wet meadows, sheet flow, drain tiles, dry arroyos, prairie potholes, and playa lakes.

Although there is no current national data set or map that the agencies are aware of, they’re working on analytical tools to help clarify the scope of CWA jurisdiction. They’re seeking to estimate stream mileage and differentiate between perennial, intermittent and ephemeral streams, using input from the National Hydrography Dataset and the National Wetlands Inventory, as refined by data from the U.S. Army Corps of Engineers. Given the limitations of the data sets, the agencies are also seeking input from the states on the utility of the exercise and whether the states are aware of other state-specific mapping resources or other recommended approaches.


In accordance with President Trump’s February 28th Executive Order, Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule, EPA initiated a multifaceted federalism consultation process to obtain state and local government officials’ perspectives. EPA Administrator Scott Pruitt said they are “restoring states’ important role in the regulation of water,” and working “with our state governments to understand what they think is the best way to protect their waters, and what actions they are already taking to do so. We want to return to a regulatory partnership, rather than regulate by executive fiat.”

EPA is particularly interested in hearing from states regarding the impact of such a change and how states do or would regulate those waters excluded from federal jurisdiction, or “Waters of the State.”

EPA held several webinars to provide an overview of potential changes under consideration for the definition of “Waters of the U.S.” EPA and the U.S. Army Corps of Engineers plan to propose a new definition that would replace the approach in the 2015 Clean Water Rule with one that reflects the principles that Supreme Court Justice Antonin Scalia outlined in the Rapanos plurality opinion, indicating CWA jurisdiction includes relatively permanent waters and wetlands with a continuous surface connection to relatively permanent waters.

Below are a few of the letters sent to EPA concerning the development of a new rule.

Western States Water Council

Western Governors’ Association

Association of Clean Water Administrators


South Dakota


Corps Rulemaking on Water Supply and Surplus Waters

On December 16, the U.S. Army Corps of Engineers (Corps) published a notice of proposed rulemaking, 81 FR 91556, updating its policies on the use of Corps reservoir projects for domestic, municipal, and industrial water supply. The revisions are intended to “enhance the Corps’ ability to cooperate with State and local interests in the development of water supplies,” take into account court decisions, legislative provisions and other developments, to bring greater clarity and consistency across regions, and to facilitate or avoid interfering with other lawful uses of water. The Corps proposes to define key terms and improve its interpretations and practices under the authority of the 1944 Flood Control Act (33 USC §708) and the 1958 Water Supply Act (43 USC §390b).  Further information may be found here.  Comments may be posted to www.regulations.gov under docket #COE-2015-0016 through May 15.  A selection of some of the related letters submitted is included below:

Western States Water Council

Western Governors’ Association




South Dakota


City of Hillsboro, Oregon

Missouri Tristate Water Association

Nebraska Lewis and Clark Natural Resource District

North Dakota Water Users Association


EPA Rulemaking on Water Quality Standards for Tribes

EPA is considering a rulemaking effort regarding baseline Water Quality Standards for hundreds of tribes without Treatment as States authority. EPA first informed WSWC about this effort during our Council meeting in Washington, D.C. in March 2016, and reached out in multiple webinars during the year to provide information and answer questions.
On September 19, 2016, the EPA Administrator signed an advance notice of proposed rulemaking (ANPRM) to invite comments on whether to establish federal baseline water quality standards (WQS) for Indian reservation waters that do not currently have Clean Water Act (CWA)-effective WQS in place, and if so, what those WQS should be and how they should be implemented. Additional information is available at: https://www.regulations.gov/docket?D=EPA-HQ-OW-2016-0405 or at EPA’s site https://www.epa.gov/wqs-tech/advance-notice-proposed-rulemaking-federal-baseline-water-quality-standards-indian#comment
The deadline to respond to EPA’s solicitation for comments was December 28, 2016. A selection of some of the related letters submitted is included below:

WSWC Comment on EPA Baseline WQS

South Dakota Department of Environment and Natural Resources

North Dakota Division of Water Quality

Washington State Department of Ecology

Agua Caliente Band of Cahuilla Indians

Colorado Department of Public Health and Environment

Cow Creek Band of Umpqua Tribe of Indians

Michigan Department of Environmental Quality

National Congress of American Indians