Comment Letter on the EPA's Revised Definition of WOTUS

February 7, 2022

Damaris Christensen
Oceans, Wetlands and Communities Division
Office of Water (4504-T)
Environmental Protection Agency
1200 Pennsylvania Avenue NW
Washington, DC 20460


Stacey Jensen
Office of the Assistant Secretary of the Army for Civil Works
Department of the Army
108 Army Pentagon
Washington, DC 20310-0104


Submitted via 

Re: Revised Definition of “Waters of the United States” – Docket ID No. EPA-HQ-OW-2021-0602

Dear Ms. Christensen and Ms. Jensen:

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) revised definition of “Waters of the United States” (WOTUS) definition under the Clean Water Act (CWA).

RDC is an Alaskan trade association comprised of individuals and companies from Alaska’s fishing, forestry, mining, oil and gas, and tourism 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 has long urged the EPA and Corps to withdraw, rescind or clarify the proposed rule for Waters of the United States (WOTUS). The WOTUS definition that was adopted in 2020 through the Navigable Waters Protection Rule provided needed clarity and certainty for permitting and project implementation that had been missing in prior WOTUS interpretations. The definition adopted in 2020 clearly established the waters that met the definition and those that did not. Unfortunately, the newly revised definition proposed in this notice does not retain that certainty or clarity. Instead, the proposed definition creates new complications and complexities that could hinder implementation and permitting processes. 

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.

Alaska contains approximately 174 million acres of wetlands (65% of the nation’s total), with nearly 80% of the state underlain in permafrost. Alaska has 63% of the nation’s jurisdictional waters and is one-fifth of the U.S. land mass. RDC is further concerned this new proposed definition would result in disproportionate impacts to Alaska. RDC’s members, from oil and gas, to maritime, Alaska Native corporations, and rural communities, would be unreasonably burdened by the revised definition.  

RDC previously provided comments on WOTUS in 2014, 2017, 2018, 2019, and in 2021. Those previous concerns are still applicable today. A broadened definition as contemplated by the newly revised definition will require more projects to get federal permits. This will increase project expenses, timelines, and uncertainty without a corresponding environmental benefit. Protections are already in place and working to protect Alaska’s water resources and communities that adhere and are consistent with the CWA. Alaska has some of the most stringent regulatory protections in place. Alaska and other states should have the authority to develop land use practices and protections, not the federal government.

The pre-2015 definition of WOTUS, which this new revised definition reverts to, did not work for Alaska. The pre-2015 definition, including the 1986 definition as amended, was too much a one-size-fits-all approach that increased uncertainty and hindered development without added protections for the environment.  

RDC previously commented in favor of retaining the Navigable Waters Protection Rule (NWPR) Clean water as a top priority for Alaskans. RDC maintains that position. The NWPR provided struck the proper balance for both clean water and much needed clarity. The NWPR made water and land protection, management, and planning more efficient and effective by drawing clearer lines between areas subject to federal versus state jurisdiction and clarifying that usually dry areas should not be considered federally regulated waters. Repealing the current NWPR and replacing it with a “rule that builds on regulatory foundation” is a step in the wrong direction. 

RDC previously urged the retention of the NWPR and encourages a return to that approach. It afforded Alaska, as well as other states, more oversight of waters and provided more clarity on regulatory applicability. The NWPR provided clarity and ended a one-size-fits-all approach that did not work for Alaska, or other areas of the U.S.

The proposal will return uncertainty to communities and development projects across Alaska and the U.S., and return the regulatory overreach of the old rule, without adding additional protections to federal waters. 

Thank you for the opportunity to comment on this important issue.