RDC Comment Letter: Support of Environmental Protection Agency and Army Corps of Engineers proposal to rescind the “Water of the United States” (WOTUS) Definition, Docket No. EPA-HQ-OW-2017-0203

September 27, 2017

The Honorable Scott Pruitt, Administrator
U.S. Environmental Protection Agency
Office of the Administrator: Mail Code 1101A
1200 Pennsylvania Avenue, N.W.
Washington, DC 20460

Via www.regulations.gov

Dear Administrator Pruitt:

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

The Resource Development Council for Alaska, Inc. writes to comment on the U.S. Environmental Protection Agency’s (EPA) and U.S. Army Corps of Engineers (Corps) proposed rule to redefine the “Waters of the United States,” Recodification of Pre-existing Rules, Docket No. EPA-HQ-OW-2017-0203.

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 proposal to rescind the Clean Water Rule: Definition of "Waters of the United States," 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. 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 Alaska’s resource development industries.   

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

The definition of WOTUS is of utmost importance to RDC and its membership. As Alaska is a resource development state, 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 will undoubtedly result in significant delay and additional cost burden in permitting – which is not aligned with this Administration’s priorities. 

The Alaskan economy is dependent on natural resource development, therefore 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 "waters of the United States."

To immediately address these concerns, RDC supports the rescinding the 2015 Rule and urges the EPA to recodify the regulations in place immediately prior so that the Code of Federal Regulations 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. 

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 little or no opportunities for compensatory mitigation.

RDC urges the EPA and Corps to improve and clarify the proposed rule to avoid litigation and unintended consequences. In an effort to provide a better understanding of the potential impacts to Alaska, RDC appreciates continued communications and opportunities to comment on the proposed rule, and we are grateful for the additional time afforded for us to fully understand and formally comment on the proposed rule.

Thank you for the opportunity to provides comments on the proposal to withdraw the poorly promulgated 2015 rule. RDC looks forward to working with the EPA as a rulemaking is developed that articulates the extent of the CWA authority while providing regulatory clarity for important projects across Alaska.


Resource Development Council for Alaska, Inc.