November 14, 2014
Environmental Protection Agency
Mail Code 2822T
1200 Pennsylvania Avenue NW.
Washington, D C 20460
Re: Attention: Docket ID No. EPA-HQ-OW-2011-0880
To Whom It May Concern:
The Resource Development Council for Alaska, Inc. (RDC) is writing to comment on the U.S. Environmental Protection Agency’s (EPA) and the U.S. Army Corps of Engineers (Corps) proposed rule defining the scope of waters protected under the Clean Water Act (CWA).
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 urges the EPA and Corps to withdraw the proposed rule for “water of the United States.” (WOTUS), and halt efforts to further expand the EPA’s jurisdiction of areas in Alaska and across the United States. RDC has many concerns regarding the proposed rule, including many Alaska-specific issues, as well as broader concerns at the national level.
As the CWA triggers the onerous permitting process for areas in Alaska considered “waters of the U.S.,” RDC is further concerned the broad expansion that will likely result from this proposed rule will devastate the Alaskan economy.
The expense and uncertainty in the process for obtaining a permit under the CWA discourages investment in Alaska, a place where the cost of doing business is already high and the extreme weather conditions often delay or impact projects. The proposed rule would significantly expand the scope of navigable waters subject to Clean Water Act jurisdiction by regulating small and remote waters – many of which are in Alaska.
The proposal is too fluid, and asserts federal control over waters that were under jurisdiction of Alaska and each individual state. Ultimately, WOTUS includes wetlands, creeks, ponds, lakes, sloughs, and other wet areas. More resource and community development projects will be subject to additional lengthy and expensive federal permitting, likely without added benefit to the environment.
Alaska contains approximately 174 million acres of wetlands (65% of the nation’s total), with nearly 80% of the state underlain in permafrost. RDC is concerned about the potential vast consequences the proposed rule to define “waters of the United States” will have because of the immense wetlands and permafrost.
Alaska has 63% of the nation’s jurisdictional waters and is one-fifth of the U.S. land mass, yet EPA’s analysis for the definition of WOTUS rule making did not include adequate analysis of Alaska. RDC is further concerned the rule will result in disproportionate impacts to Alaska, and the agencies should address the flawed economic analysis described in the rule. RDC’s members, from oil and gas, to maritime, Alaska Native corporations, and rural communities, will be unreasonably burdened by this proposed rule. Alaska and other states should have the authority to develop land use practices and protections, not the federal government.
Clarifications and definitions
The following is an example of areas in the proposed rule where further clarity is necessary, as well as defined examples for terms:
- The rule introduces terms such as “tributary,” “riparian area,” and “flood plain” and then defines these terms extremely broadly, likely inferring large amounts of intrastate land and waters are always within the agencies’ authority.
- The technical definition of permafrost as “soil and/or rock that has remained below 32°F for more than two years, regardless if significant amounts of ice exist or not” will likely cause confusion for Alaska when considering how EPA and the Corps use it to define WOTUS.
- The definition of a “significant nexus” remains unclear, and should have a specific definition applicable to the distinct characteristics in Alaska. Additionally, “floodplain” and “adjacent waters” should be clearly defined, as a “floodplain” could encompass all of the North Slope.
- The rule should offer clarity on ditches and trenches, as well as snowpack, artificial ponds, and ephemeral streams.
- In regards to “permafrost,” as the larger part of Alaska is considered permafrost, clarify if the inclusion of permafrost would then put even more of Alaska under the CWA permitting regime.
- Whether or not the rule would make industrial ditches into “tributaries,” where maintenance activities in ditches and other “tributaries” would trigger costly dredge and fill permits.
Equally important is the inclusion and use of the best available science, as well as research that includes temperate regions and is reflective of connections in an arctic environment.
Instead of allowing the science to be developed, peer-reviewed, and released for public review, the EPA compiled a Draft Report on the Connectivity of Waters while developing this proposed rule. The draft scientific report was released for public comment at the same time the EPA released the rule to the Office of Management and Budget for inter-agency review. The Science Advisory Board had not finished its peer review, and the public already began commenting.
Existing permits and regulations
The EPA and Corps should evaluate the potential impacts approval of the proposed rule will have on existing permits and permit stipulations. The evaluation should be published with potential opportunities for mitigation.
Given Alaska’s unique conditions, any revised or new guidance provided by the Corps should include regional guidance with examples or case studies. Development of regional guidance should include broad participation in the process from the regulated and regulatory communities. Likewise, the revised form the Corps and EPA are developing for field regulators for documenting the assertion or delineation of CWA jurisdiction should be specific to Alaska. Development of both national and regional forms should be a public process, open to review and comment.
Agency guidance should recognize Alaska’s unique circumstances. While scarcity is an overriding concern elsewhere in the nation, the sheer abundance of wetlands in Alaska is an important element to take into consideration. Further, Alaska is a state with substantial, remote wetlands. Often there are challenges associated with identifying a nexus to traditional navigable waters, especially in ice-rich regions. The limited field season and the lack of understanding of functions for some types of Alaskan wetlands are two other challenging elements that should be recognized.
Additionally, the proposed rule creates more confusion. It does not streamline the process, or provide permitting clarity.
The State of Alaska should continue to have existing jurisdiction of waters without a new, additional level of bureaucracy such as this proposed rule.
In the CWA, Congress granted the Corps and the EPA jurisdiction over “navigable waters,” defined in the Act as “waters of the United States” without further clarification. The Act grants that all waters not regulated by the federal government fall under the jurisdiction of state and local governments for protection.
Maps prepared by the EPA show that the rule will expand federal jurisdiction over waters from 3.5 million river and stream miles to well over eight million river and stream miles, much of which is in Alaska.
Cost of permitting to public and private sectors
According to the Waters Advocacy Coalition, private and public sectors spend $1.7 billion a year to obtain Section 404 permits. The timeline to obtain a 404 permit through the Corps takes an estimated 788 days, with an average cost of over $271,000, excluding additional expenses such as mitigation. Expanding jurisdiction will cause delays and increase construction costs.
Expanding federal authority over water and land use will increase the number of projects required to obtain a federal clean water act permit. The expanded federal permitting process will slow economic growth by increasing the cost of and delay necessary improvements to the public and private infrastructure that forms the foundation of our nation’s economy, such as: highways, bridges, airports, schools, and drinking and waste water facilities.
In addition to increased permitting costs, the cost of implementing expansion of the 404 section will unnecessarily increase the federal government budget.
Impacts to future infrastructure, rural Alaska
Alaska, being a relatively young state with vast lands and few inhabitants, is mostly undeveloped. Alaska lacks critical infrastructure for community and resource development. RDC is concerned the proposed rule will further impact projects, given most of Alaska’s non-mountainous lands are or would be considered wetlands.
Rural Alaska, which has a vital need for improved infrastructure and projects, such as roadways, power lines, and pipelines, will have to obtain additional permits and be under greater, yet unnecessary scrutiny in order to be approved. RDC notes the impact will disproportionately affect rural Alaska, and in particular, Alaska Natives.
Furthermore, much of Alaska’s lands are already owned by the government, with less than one percent in conventional private ownership. As a large percent of wetlands is under public management, it’s likely not to be available for development nor for compensatory mitigation.
Under the proposal, even if a project can get a permit, businesses will likely have to agree to costly restoration and/or mitigation projects. Moreover, the proposal does little or nothing to actually improve water quality. Instead, it gives EPA and the Corps virtually limitless authority to control community and development projects, especially in Alaska. This proposed rule is seriously legally flawed and again, RDC urges EPA and the Corps to withdraw it.
In addition to the concerns listed in this letter, RDC urges you to consider and address the comments of the Waters Advocacy Coalition, National Mining Association, American Exploration and Mining Association, the Energy Producing States Coalition, and the U.S. Chamber of Commerce. These organizations have submitted extensive technical comments detailing issues with legality, clarification, and implementation, and RDC urges you to consider their recommendations.
If ultimately necessary, and to develop a balanced rule to continue to protect wetlands, RDC urges the EPA and Corps to meet with Alaskans and stakeholders in other states. These groups can help the EPA and Corps better understand what is already in place and effectively working in each state, while protecting the livelihood of Americans. It is in the best interest of all Alaskans to protect the lands and waters within Alaska’s borders.
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.
Resource Development Council for Alaska, Inc.
1 Source: http://water.epa.gov/grants_funding/wetlands/facts/upload/alaska.pdf