Document VbZ7MXenxKgqR1pqv0nXgNj8

MATTHEW H. MEAD GOVERNOR *5 ^ * THE STATE 'T S lfc P :'y WOVON G Office of the Governor STATE CAPITOL CHEYENNE VVY 82002 September 30, 2014 Honorable Gina McCarthy Administrator U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW (1101 A) Washington, DC 20460 Honorable Jo-Ellen Darcy Assistant Secretary o f the Army (Civil Works) 108 Army Pentagon Washington, DC 20310 Re: Docket Number EPA-HQ-OW-2013-0820 Dear Administrator McCarthy and Assistant Secretary Darcy, I write with deep concern over agency actions in defining "Waters o f the United States," Docket ID No. EPA-HQ-OW-2011-0880. While I thank you for the extensions provided to allow additional comments, it is clear that there are fundamental problems with both process and content that cannot be rectified by the extension. In the best interest o f all, the proposed rule needs to be withdrawn. Several key concerns warrant this action. In a recent meeting with the U.S. Environmental Protection Agency (EPA) in Washington, D.C., (which included the Administrator and several key deputies) the EPA acknowledged that little was done to solicit input specific to the proposed rule prior to publication. EPA staff indicated that the agency considered comment related to previously proposed and withdrawn guidance documents as a substitute. The EPA then acknowledged that additional consultation was needed, and in an attempt to rectify the lack o f opportunity for comment, the agency has been working to visit stakeholders and provide information during an extended comment period. This approach is problematic. These sessions are public meetings publicized as "not recorded, not for comments and only to provide information." Holding public information presentations is an inadequate alternative to public comment and the consultation process that should have occurred specific to this proposed rule. The EPA reached out for input on "guidance," and then plugged this unrelated input into a rulemaking process as comment. This is unacceptable. It invites questions about whether the agency has a pre-determined goal and plans a course o f action to arrive at that goal. The EPA's admission that it has little substantive change in preferred direction or content as guidance morphed into rule adds to the question. PHONE; (307) 777-7434 FAX; (307) 832-3903 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00035411-00001 Administrator McCarthy Assistant Secretary Darcy September 30, 2014 Page 2 There is also a question on the validity of the upcoming "science report" a still pending report that the EPA has said it is comfortable supports their proposal. The implication - pre-knowledge o f the conclusions of the science report not yet issued raises concern. A report should not be developed to justify a pre-determined agency position as it appears may be the case here. Rather, science should be the neutral foundation to begin discussions with the states (where, for the most part, regulatory responsibility rests) and other interested partners. In public meetings, the EPA continues to assert that concerns with the content o f the proposed rule are unfounded. In presentations a variety o f interpretations for the proposed rule have been presented by the EPA. To be clear, the intent being expressed by the agency in verbal, non-recorded sessions, does not match the content o f the proposed rule. The EPA is stating publicly that no new protections, expansion, broadening o f coverage, or expanded jurisdiction o f regulatory authorities is occurring. The conclusion is not borne out by the content o f the rule or by the interpretation of the rule by outside agencies and states. The rule both expands authorities and discounts the narrowed reach directed by the United States Supreme Court in the Solid Waste Agency o f Northern Crook County v. Army Corps o f Engineers and Rapanos v. United States decisions. The EPA has approached agriculture, industry, and government representatives to help "fix" problems being identified. The juxtaposition o f assurance that there is no need for concern and hurried "fixing" is unsettling. Cobbling together "fixes" cannot address the significant deficiencies in clarity and content that underlie the proposal. Further, the EPA's information sharing does not meet the bar o f consultation and is misleading at best. The question is at what point does management responsibility shift from the states to the EPA? This cannot be pre-determined and is as much a question o f policy as it is o f science, arguably more so. I have growing concern with the EPA and other federal agencies. Decisions are being made without consultation or consideration o f the states, the public and outside experts. The current process is directed to justify decisions that have already been made. There is a closing window o f opportunity for the EPA to rectify the problems with this rule and to proceed in a manner that is designed to work substantively with partners in regulation - the states. The EPA should withdraw this proposed rule now. Sincerely, Governor MHM:md cc: The Honorable Michael B. Enzi, U. S. Senate The Honorable John Barrasso, U. S. Senate The Honorable Cynthia Lummis, U. S. House o f Representatives Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00035411-00002