Resource Development Council

RDC Comment Letter:
EPA Docket ID No. EPA-HQ-OW-2011-0409

July 29, 2011

Ms. Donna Downing
Office of Water Environmental Protection Agency
1200 Pennsylvania Ave., NW
Washington, D.C. 20460

Attn: Docket ID No. EPA-HQ-OW-2011-0409

Dear Ms. Downing:

The Resource Development Council (RDC) is writing to urge the Environmental Protection Agency (EPA) and the Corps of Engineers (Corps) to not publish the proposed guidance that will expand their jurisdiction under the Clean Water Act (CWA) to virtually all waters of the United States. The joint guidance will affect wetlands, as well as the National Pollutant Discharge Elimination System (NPDES) permitting program, EPA’s oil spill program, and state water quality certification processes. The guidance will have an impact on numerous industries, at a time when the nation is struggling with a potential debt default, a weak economy, and chronically high unemployment.

RDC is an Alaskan non-profit association comprised of individuals and companies from Alaska’s oil and gas, mining, timber, tourism, and fisheries industries, as well as Alaska Native corporations, local communities, organized labor, and industry support firms. RDC’s purpose is to link these diverse interests together to encourage a strong, diversified private sector in Alaska and expand the state’s economic base through the responsible development of our natural resources.

The expanded definition of “waters of the U.S.” in the proposed guidance would impose additional burdens on American manufacturing and the general economy. Here in Alaska, those additional burdens would further hamper responsible development of the state’s natural resources, including oil and gas and mining. Moreover, community infrastructure projects could be impacted, given most of Alaska’s non-mountainous lands are or would be considered wetlands. RDC believes the guidance exceeds congressional intent.

Expanding EPA and Corps jurisdiction to all waters, whether intrastate or interstate, will create significant problems in permitting, increased costs for compliance, new land use restrictions, and yet more uncertainty for industries and communities. The guidance is also vague as to where the EPA’s and Corps’ jurisdiction ends. While the guidance applies to wetlands, it is unclear as to how the EPA and Corps will address other bodies of water such as temporary runoffs and snowpack. It will be a hindrance and outright barrier to economic growth.

While the agencies claim the guidance is legally nonbinding, it will potentially give the agencies jurisdiction over most U.S. waters, private property, and federal lands. Given so much of Alaska is under federal ownership, the 49th state stands to be disproportionately impacted.

The new guidance appears to be a step in the direction of ultimately overturning the Rapanos and SWANCC Supreme Court decisions of 2006 and 2001 that limited wetlands regulation jurisdiction of the EPA and Corps to “navigable waters” as passed by Congress in the 1972 CWA. The draft guidance could potentially expand federal oversight to nearly all U.S. waters by giving federal agency field staff a plethora of approaches to make jurisdictional determinations.

The draft guidance will allow the federal government to expand CWA coverage to any and all bodies of waters which have a “significant nexus” to a traditional navigable water or interstate water, including:

  • Tributaries to traditional navigable waters or interstate waters;
  • Wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate water;
  • Waters that fall under the “other waters” category of regulations

According to the EPA’s release on the guidance, the agency will divide these “other waters” into two categories, those that are physically proximate to other jurisdictional waters, and those that are not, and discuss how each category should be evaluated. RDC understands that the EPA and Corps will also continue to regulate:

  • Traditional navigable waters;
  • Interstate waters;
  • Wetlands adjacent to either traditional navigable waters or interstate waters;
  • Non-navigable tributaries to traditional navigable waters that are relatively permanent, meaning they contain water at least seasonally;
  • Wetlands that directly abut relatively permanent waters

In conclusion, considering the many important issues addressed by the proposal and the economic interests at stake, RDC urges the EPA and Corps to not publish the proposed guidance. Jurisdiction should not be expanded beyond congressional intent, but limited to navigable waters as intended by Congress under the CWA. Changes in the regulatory scheme of the CWA should be done consistent with the law or legislative action by Congress, not vague definitions and broad interpretations that empower EPA and Corps officials with informal and ambiguous controls over private, state, and federal lands.

Thank you for the opportunity to comment on the draft guidance.

Resource Development Council for Alaska, Inc.