Letters & Comments

The following comments to the proposal of April 21, 2014 by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE), hereinafter referred to as ”the agencies”, defining the scope of waters protected under the Clean Water Act (CWA), in light of the U.S. Supreme Court cases in U.S. v. Riverside Bayview, and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), and Rapanos v. United States (Rapanos) (7 6 Fed. Reg. 22187, April 21, 2014 ), are submitted on behalf of the Independent Petroleum Association of America, the American Exploration & Production Council and the Western Energy Alliance. Collectively, these three groups will be referred to as ”the Associations.” The comments are also supported by the listed organizations set forth below.

The Waters Advocacy Coalition (WAC) writes to provide comments on the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) proposed rule to re-define “waters of the United States” under the Clean Water Act (CWA), 79 Fed. Reg. 22,188 (Apr. 21, 2014). In enacting the CWA, Congress exercised its commerce power over navigation and granted EPA and the Corps (together, the agencies) very specific, limited powers to regulate navigable waters, defined as “waters of the United States.” Congress recognized and sought to preserve the States’ traditional and primary authority over land and water use. For years, the agencies’ regulations and guidance documents have attempted to expand the definition of “waters of the United States” beyond its constitutional and statutory limits. On two occasions, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001) (SWANCC), and Rapanos v. United States, 547 U.S. 715 (2006), the Supreme Court has recognized the Congressional limits placed on CWA jurisdiction and invalidated the agencies’ sweeping assertions of regulatory authority. Despite this history, the agencies’ proposed rule ignores the limits and structure that Congress put in place, as well as the limits recognized by the Supreme Court, and continues the agencies’ practice of overreaching in their assertions of CWA jurisdiction and impinging on the traditional power of the States to regulate land and water.

The undersigned 375 groups from each of the 50 states, representing a broad range of businesses, industries, and commercial interests of every size, in every part of the country, write to express our strong opposition to the revised definition of “Waters of the United States” proposed by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (COE). Along with many other affected interests, the undersigned groups believe they will be seriously and adversely affected by the revised definition, for the reasons explained in detail below.

Independent producers drill about 95 percent of American oil and natural gas wells, produce about 54 percent of American oil, and more than 85 percent of American natural gas. Many of their activities require federal permits, and thus are subject to the full range of Endangered Species Act (ESA) requirements that apply in areas designated as critical habitat. The Services have proposed to amend their regulations that govern the designation of critical habitat. IPAA’s comments in this docket focus on the proposed changes to 50 CFR § 424.12(b) and (e), which deal with the criteria for designating critical habitat “outside the geographical area occupied by a listed species at the time it is listed” (the unoccupied areas).

Independent producers drill about 95 percent of American oil and natural gas wells, produce about 54 percent of American oil, and more than 85 percent of American natural gas. Many of the wells they develop and operate require federal permits because they involve activities that are regulated by federal law. As a result, those activities, if conducted in an area that has been designated as critical habitat, must be conducted so that they are not likely to result in the “destruction or adverse modification” of that habitat. For the reasons explained in detail below, the Independent Petroleum Association of America (IPAA) and cooperating associations respectfully request that the draft “Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act,” as it pertains to the exclusion of federal lands from critical habitat designations, be withdrawn.

Independent producers drill about 95 percent of American oil and natural gas wells, produce about 54 percent of American oil, and more than 85 percent of American natural gas. Many of their activities require federal permits, and thus are subject to the requirement that they not be conducted in such a way as to be likely to result in the “destruction or adverse modification” of any habitat that has been designated as critical for a listed species under the Endangered Species Act (ESA). For the reasons explained in detail below, IPAA in cooperation with the aforementioned associations request the proposed changes to the definition of “destruction or adverse modification” not be adopted.

The government can and should take steps to ensure greater safety without stalling the energy renaissance that is creating good jobs, growing our economy and improving America’s energy security. New proposals for safety improvements should be data-driven, involve all stakeholders and produce measurable improvements to safety without creating new risks, or inadvertently shifty the risks to other businesses or operations.

The American Exploration and Production Council (AXPC) and Independent Petroleum Association of America (IPAA) appreciate the opportunity to provide input and comment on the Environmental Protection Agency’s (EPA’s) Advanced Notice of Proposed Rulemaking (ANPR) under 40 CFR Chapter I, Subchapter R, under the Toxic Substances Control Act (TSCA) on Hydraulic Fracturing Chemicals and Mixtures, published May 19, 2014 . While the ANPR is broad in scope and in information requested, these comments will focus specifically on three specific areas: that (1) due to the availability of FracFocus and other authorities, there is no demonstrated necessity for EPA to use TSCA authority to acquire the information discussed in the ANPR, (2) without such necessity TSCA does not authorize new reporting requirements and (3) TSCA should not apply to the use of chemicals in fracturing because producers are not putting the products into commerce.

The Independent Petroleum Association of America (IPAA) represents 9,000 independent oil and gas companies across the United States. Independent producers drill about 95 percent of American oil and natural gas wells, produce about 54 percent of American oil, and more than 85 percent of American natural gas. The National Ocean Industries Association (NOIA) is the only national trade association representing all segments of the offshore industry with an interest in the exploration and production of both traditional and renewable energy resources on the U.S. Outer Continental Shelf (OCS). The NOIA membership comprises more than 320 companies engaged in a variety of business activities, including production, drilling, engineering, marine and air transport, offshore construction, equipment manufacture and supply, telecommunications, finance and insurance, and renewable energy.