Comment Letter on the EPA's Request for Recommendations on the Definition of WOTUS

Comment Extension Request 

September 3, 2021

U.S. Environmental Protection Agency
1200 Pennsylvania Avenue NW
Washington, DC 20460

Submitted via www.regulations.gov

Re: Request for recommendations on the definition of Waters of the United States 86 Fed. Reg. 41911 (August 4, 2021), Docket ID No. EPA-HQ-OW-2021-0328

To Whom It May Concern:

The Resource Development Council for Alaska, Inc. (RDC) is writing in response to the request by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) notice in the Federal Register providing information about their plans to revise the definition of the term “Waters of the United States” (WOTUS) under the Clean Water Act (CWA) and seeking feedback from the public on several topics.

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 is very concerned by the efforts of the EPA and the Corps to redefine WOTUS. The definition of WOTUS is of utmost importance to RDC and its membership. Alaska contains approximately 174 million acres of wetlands (65% of the nation’s total), has 63% of the nation’s jurisdictional waters and is one-fifth of the U.S. land mass.

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. RDC is concerned the new regulations are an attempt to
expand the waters over which the agencies are asserting jurisdiction under the CWA.

Moreover, RDC is concerned reverting to the previous rule would result in disproportionate impacts to Alaska. RDC’s members, from maritime to energy, Alaska Native corporations, and rural communities, would be unreasonably burdened by the rule. Alaska and other states should have the authority to
develop land use practices and protections, not the federal government. RDC has previously provided comments on WOTUS in 2014, 2017, and again in 2019.

The current efforts to redefine WOTUS will further remove Alaska’s ability to manage its own lands and water, when Alaska’s current management of these resources is truly a model for the nation. The reinstatement of previous rules, could result in conflict with other regulations, adding further uncertainty, and would undoubtedly result in significant delay and additional cost burden in permitting for community and resource development.

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 redefining WOTUS will impact the ability of its membership to responsibly develop Alaska’s natural resources.

A broadened 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.

Navigable Waters Protection Rule
Executive Order 13990, the Navigable Waters Protection Rule (NWPR) review order should not result in a repeal of the current NWPR. Clean water is a top priority for Alaskans, and the NWPR provided both clean water and much needed clarity.

The current rule makes 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. Please do not repeal the current Navigable Waters Protection Rule and replace it with a “rule that builds on regulatory foundation.”

RDC urges the retention of the NWPR as it has afforded Alaska, as well as other states, more oversight of waters and provided more clarity on regulatory applicability. The most current version provides clarity and ended a one-size-fits-all approach that did not work for Alaska, or other areas of the U.S.

Conclusion
The previous definition of WOTUS did not work for Alaska. It was a one-size-fits-all approach that increased uncertainty and hindered development without added protections for the environment. In addition, the NWPR should not be repealed and replaced.

The proposal is a step in the wrong direction and 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.