Comments of the Pulp & Paperworkers’ Resource Council on the U.S. Environmental Protection Agency’s and U.S. Army Corps of Engineers’ Proposed Definition of “Waters of the United States” – Recodification of Preexisting Rules

Dear Ms. Downing:

The Pulp & Paperworkers’ Resource Council (PPRC) appreciates the opportunity to comment on the U.S. Environmental Protection Agency’s (EPA) and the U.S. Army Corps of Engineers’ (Corps) (together, “the Agencies”) proposed rule: Definition of “Waters of the United States”—Recodification of Pre-existing Rules. 82 Fed. Reg. 34899 (July 27, 2017) (“Proposed Rule”).

The PPRC is a grassroots organization representing the interests of the nation’s pulp, paper, solid wood products, and other natural resource-based workers. The U.S. forest products industry is vitally important to our nation’s economy, employing 900,000 people. We rank among the top 10 manufacturers in 45 states and represent 4% of the total Gross Domestic Products (GDP). We are people dedicated to conserving the environment while taking into account the economic stability of the workforce and surrounding community.

PPRC members are employed by companies with membership in the American Forest & Paper Association (AF&PA) and supports and incorporates by reference the comments filed by AF&PA. PPRC supports the Agencies’ proposal to rescind the Clean Water Act (CWA) Rule: Definition of “Waters of the United States (WOTUS) (the 2015 Rule)” and recodify the status quo that is now being implemented under the Sixth Circuit stay of the 2015 Rule. The Agencies should rescind the 2015 Rule because its provisions are, in various respects, beyond the Agencies’ statutory authority, inconsistent with Supreme Court precedent, and contrary to the goals of the CWA, including the Act’s goal to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution.” 33 U.S.C. § 1251(b). The Agencies failure to seek meaningful input from state and local entities during the development of the 2015 Rule contributed to the rule’s legal flaws and lack of clarity.

Of particular importance to PPRC, whose companies are subject to regulation under the CWA, is the regulatory uncertainty that flows from the 2015 Rule’s lack of clarity on key terms and definitions, such as “tributary,” “adjacent,” “floodplain,” and “significant nexus.” In particular, We work at pulp and paper mills that must obtain CWA permits to operate their facilities. Most of those mills operate near waters that would be considered jurisdictional waters. Due to these expansive definitions, the jurisdictional status of waters on their facilities is called into question.

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.” The agencies properly acknowledged in the record for the 2015 rule that their interpretation of the CWA is “informed” by the scientific record and the comments of the Science Advisory Board, “but not dictated by them.” Technical Support Document for the Clean Water Rule at 93. Nonetheless, the agencies adopted a fatally flawed interpretation of the statute that intrudes upon state and local authority over land and water use in direct defiance of Congress’s stated policy in Section 101(b).

To address these concerns, the Agencies should rescind the 2015 Rule and recodify the regulations in place immediately prior so that the Code of Federal Regulations accurately reflects the regulations as they existed prior to the 2015 Rule’s amendments. Since the Sixth Circuit’s October 2015 issuance of a nationwide stay, the Agencies have been implementing the regulations defining WOTUS that were in effect before the 2015 Rule. The proposed action would simply continue that practice and recodify the status quo that has been in place for decades.

Finally, PPRC supports the Agencies’ efforts to undertake a substantiverulemaking to reconsider the definition of “waters of the United States.” Although codifying the status quo is important to ensure clarity and regulatory certainty in the near term, there are many issues with the current regulations and guidance documents that should be addressed through a new rulemaking. PPRC will continue to support a rulemaking to clearly articulate the extent of federal CWA authority.

Thank you for the opportunity to comment on the Proposed Rule.

Sincerely,
David M. Wise
Pulp and Paperworkers’ Resource Council
National Steering Committee Chairman
Southeast Region Director
POB 100544
Florence, SC 29502-544
david.wise@westrock.com
(843)269-0164
(843)319-7189m