August 13, 2018

Mr. Andrew Wheeler, Acting Administrator
U.S. Environmental Protection Agency
Office of the Administrator: Mail Code 1101A
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460

Via www.regulations.gov

Re: Environmental Protection Agency and Army Corps of Engineers proposal to rescind the “Water of the United States” Definition, Docket No. EPA-HQ-OW-2017-0203

Dear Acting Administrator Wheeler:

The Resource Development Council for Alaska, Inc. (RDC) is writing to comment on the U.S. Environmental Protection Agency’s (EPA) and U.S. Army Corps of Engineers (Corps) proposed rule to repeal the 2015 Rule Defining Waters of the United States, which amended portions of the Code of Federal Regulations (CFR).

RDC is an Alaskan business association comprised of individuals and companies from Alaska’s oil and gas, mining, forest products, tourism and fisheries industries. RDC’s membership includes Alaska Native Corporations, local communities, organized labor, and industry support firms. RDC’s purpose is to encourage a strong, diversified private sector in Alaska and expand the state’s economic base through the responsible development of our natural resources.

RDC supports the proposed rule to rescind the 2015 Rule: Definition of "Waters of the United States," (WOTUS) 80 Fed. Reg. 37,054 (June 29, 2015), and codify the status quo that is now being implemented under the U.S. Court of Appeals for the Sixth Circuit’s stay of the 2015 Rule. In Alaska, the 2015 Rule, if implemented, would inhibit job creation and economic investment and growth, subject resource development operations to undue permitting delays and expenses, unlawfully expand federal jurisdiction over land and waterways, and create further regulatory confusion and financial risks for the state’s resource development industries.   

RDC submitted comments on the proposed 2015 Rule on November 14, 2014, and at that time stated that the agencies had introduced a rule that radically defined the definition of a WOTUS much further than what is statutorily authorized. Additionally, our letter explained the significant negative impacts the 2015 Rule would have on Alaska, and RDC’s membership. 

The definition of WOTUS is of utmost importance to RDC and its membership. As Alaska’s economy is based on the development of its natural resources, and with more wetlands than all other states combined, and more coastline than the contiguous 48 states, Alaska is uniquely vulnerable when it comes to EPA regulations.

Under the 2015 Rule, the obscure and poorly defined changes and significant expansion of the Clean Water Act jurisdiction in 2015 could result in conflict with other Federal regulations, such as 43 C.F.R. 3809 reclamation regulations, and would undoubtedly result in significant delay and additional cost burden in permitting – which is not aligned with this Administration’s priorities. 

Given Alaska’s dependence on development of its natural resources, it is vital to have predictable and efficient federal and state permitting processes that are based on sound science. Article VIII, Section I of the Alaska Constitution mandates “the settlement of Alaska’s land and the development of its resources by making them available for maximum use consistent with the public interest,” to encourage economic prosperity for Alaska’s peoples. RDC is concerned the 2015 rule will impact the ability of its membership to responsibly develop Alaska’s natural resources.

One major concern lies in the lack of clarity throughout the document. Definitions of numerous key terms and concepts, like waters, floodplain, wetlands, subsurface connection, adjacent, ordinary high water mark, dry land, and significant nexus, etc. are ambiguous and unclear. Without explicit definition of all technical and enforceable terms, we are left with an unpredictable and confusing rule.

Moreover, by allowing for jurisdiction over remote, isolated features, ephemeral washes and on-site water management features, the 2015 Rule improperly reads the word "navigable" out of the statute and implicates significant constitutional concerns about the appropriate scope of federal authority.  Furthermore, nothing in the record created during the 2015 rulemaking process dictated the adoption of such a sweeping definition of WOUSA.

To effectively address these concerns, RDC supports rescinding the 2015 Rule and urges the EPA and Corps to recodify the regulations in place immediately prior so that the CFR accurately reflects the applicable regulations. Since the Sixth Circuit's October 2015 issuance of a nationwide stay, the agencies have been currently implementing the regulations defining WOTUS that were in effect immediately before the 2015 Rule. The proposed action would simply continue that practice and recodify the status quo that has been in place for decades. 

RDC agrees with the agencies’ proposed conclusions from the supplemental notice: 

  • That the “administrative goals of regulatory certainty would be best served by repealing the 2015 Rule”;
  • That “the 2015 Rule exceeded the agencies' authority under the CWA”;
  • That “the 2015 Rule may have altered the balance of authorities between the federal and State governments” in violation of the CWA;
  • That “many features that are categorically jurisdictional under the 2015 Rule…test the limits of the scope of the Commerce Clause…”;
  • That “the definitional changes in the 2015 Rule [may have had] a more substantial impact on the scope of jurisdictional determinations…than acknowledged in the analysis for the rule…;” and
  • That “regulatory certainty may be best served by repealing the 2015 Rule [because the] 2015 Rule creates significant uncertainty for agency staff, regulated entities, and the public, which is compounded by court decisions [in litigation challenging the 2015 Rule] that have increased litigation risk and cast doubt on the legal viability of the rule.

The validity of these and other conclusions will be the central issues in litigation that is likely to follow if the agencies finalize their proposal.

Furthermore, in regards to wetlands policy, RDC members across Alaska’s natural resource sectors have serious concerns regarding the requirement of compensatory mitigation for development projects in the state. A “no net loss” of wetlands policy designed for the Lower 48 states is not practicable or realistic in Alaska due to the limited availability of sites or technical/logistical limitations. The Corps needs a policy that is unique to Alaska and recognizes the reality of the Alaska environment – a state with vast areas that have little or no opportunities for compensatory mitigation. 

Thank you for the opportunity to provide comments on the proposal to withdraw the poorly promulgated 2015 rule and restore the regulatory text that existed prior to the 2015 Rule. 

Sincerely,

Resource Development Council