[Senate Hearing 114-56]
[From the U.S. Government Publishing Office]
S. Hrg. 114-56
IMPACTS OF THE PROPOSED WATERS OF THE
UNITED STATES RULE ON STATE AND LOCAL
GOVERNMENTS AND STAKEHOLDERS
=======================================================================
FIELD HEARING
BEFORE THE
SUBCOMMITTEE ON FISHERIES, WATER,
AND WILDLIFE
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
APRIL 8, 2015--FAIRBANKS, AK
__________
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
JAMES M. INHOFE, Oklahoma, Chairman
DAVID VITTER, Louisiana BARBARA BOXER, California
JOHN BARRASSO, Wyoming THOMAS R. CARPER, Delaware
SHELLEY MOORE CAPITO, West Virginia BENJAMIN L. CARDIN, Maryland
MIKE CRAPO, Idaho BERNARD SANDERS, Vermont
JOHN BOOZMAN, Arkansas SHELDON WHITEHOUSE, Rhode Island
JEFF SESSIONS, Alabama JEFF MERKLEY, Oregon
ROGER WICKER, Mississippi KIRSTEN GILLIBRAND, New York
DEB FISCHER, Nebraska CORY A. BOOKER, New Jersey
MIKE ROUNDS, South Dakota EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska
Ryan Jackson, Majority Staff Director
Bettina Poirier, Democratic Staff Director
----------
Subcommittee on Fisheries, Water, and Wildlife
DAN SULLIVAN, Alaska, Chairman
JOHN BARRASSO, Wyoming SHELDON WHITEHOUSE, Rhode Island
SHELLEY MOORE CAPITO, West Virginia THOMAS R. CARPER, Delaware
JOHN BOOZMAN, Arkansas BENJAMIN L. CARDIN, Maryland
JEFF SESSIONS, Alabama BERNARD SANDERS, Vermont
ROGER WICKER, Mississippi KIRSTEN GILLIBRAND, New York
DEB FISCHER, Nebraska CORY A. BOOKER, New Jersey
MIKE ROUNDS, South Dakota EDWARD J. MARKEY, Massachusetts
JAMES M. INHOFE, Oklahoma (ex BARBARA BOXER, California (ex
officio) officio)
C O N T E N T S
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Page
APRIL 8, 2015
OPENING STATEMENT
Sullivan, Hon. Dan, U.S. Senator from the State of Alaska........ 1
WITNESSES
Bishop, Hon. Click, Alaska State Senator from Senate District C.. 4
Prepared statement........................................... 6
Brower, Charlotte E., Mayor, North Slope Borough................. 9
Prepared statement........................................... 11
Taylor, Sara, Executive Director, Citizens' Advisory Commission
on Federal Areas............................................... 26
Prepared statement........................................... 28
Mauger, Sue, Science Director, Cook Inletkeeper.................. 31
Prepared statement........................................... 33
Wrigley, Bryce, President, Alaska Farm Bureau.................... 36
Prepared statement........................................... 38
MacKinnon, John, Executive Director, Associated General
Contractors of Alaska.......................................... 40
Prepared statement........................................... 42
Williams, Austin, Alaska Director of Law and Policy, Trout
Unlimited...................................................... 46
Prepared statement........................................... 48
Crockett, Deantha, Executive Director, Alaska Miners Association. 53
Prepared statement........................................... 56
Carroll, Shannon, attorney and commercial fisherman.............. 59
Prepared statement........................................... 61
ADDITIONAL STATEMENTS
Letters to Senator Sullivan:
From Flowline Alaska, Inc., dated April 13, 2015............. 76
From Great Northwest, Inc., undated.......................... 79
From Travis/Peterson Environmental Consulting, Inc., dated
April 15, 2015............................................. 81
IMPACTS OF THE PROPOSED WATERS OF THE UNITED STATES RULE ON STATE AND
LOCAL GOVERNMENTS AND STAKEHOLDERS
----------
WEDNESDAY, APRIL 8, 2015
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Fisheries, Water, and Wildlife
Fairbanks, AK.
OPENING STATEMENT OF HON. DAN SULLIVAN,
U.S. SENATOR FROM THE STATE OF ALASKA
Senator Sullivan. The Subcommittee on Fisheries, Water, and
Wildlife will now come to order, and I would please ask all the
witnesses to take their seats up front at the witness stand,
please. And we have two witnesses on the line from Barrow and
Juneau.
I want to thank everybody for being here. I'm Senator Dan
Sullivan, Senator from Alaska. We are here to discuss the
proposed Waters of the United States rule by the Environmental
Protection Agency. I know that some of you have had to travel
to be here. Most of you had to shuffle competing schedules, so
I want to thank everybody. I appreciate all of you for
participating today.
This is an official hearing of the U.S. Senate Environment
and Public Works Committee. I serve as the chair of the
Subcommittee on Waters, Wildlife, and Fisheries. In Washington,
DC, we have held numerous hearings with the EPA Administrator,
Assistant Secretary of the Army, State government
representatives, and stakeholders about this issue. This
hearing is a continuation of these efforts, and it will also
give voice to a cross-section of Alaskans on this proposed rule
and its possible impacts.
Beyond those testifying today, the subcommittee heard
testimony from many Alaskans in Anchorage 2 days ago, including
the Resource Development Council, Alaska Municipal League,
Arctic Slope Regional Corporation, Alyeska Pipeline. They
joined three-fifths of States in the United States that oppose
the rule and more than 300 trade groups and associations from
across the Country that oppose the rule.
I want to state at the outset, certainly, as Alaska's
Senator, the obvious, but sometimes I think it needs to be
stated: We clearly, as Alaskans, believe in the importance of
clean water. We've seen the Clean Water Act over the years do
many important positive things. I think we certainly have some
of the cleanest water, the most pristine environment of any
place in the world, and Alaskans cherish that. I've also told
the EPA administrator we probably care about that living here
more than any EPA official in Washington, DC, does. So I think
that's important.
I also think that it's important today to emphasize that
this hearing is also about respecting our citizens, as I think
almost every witness will testify. Certainly, they all did in
Anchorage. This is a unique rule that will impact Alaska more
than any other State by far. And we have certainly unique
aspects of our State that have not been taken into
consideration with regard to this rule, and it's important for
us in Washington, the Senators in Washington, to bring
Washington, DC, to Alaska, to the State, so we can hear
directly from you as opposed to having everybody have to fly
thousands of miles to Washington to testify on this rule.
Alaska is no stranger to overreaching Federal agencies;
however, it should be stressed that the proposed Waters of the
U.S. rule may be one of the most massive expansions of Federal
jurisdiction we have seen to date. Unlike much of the Federal
overreach that has impacted Alaska, the tentacles of the Clean
Water Act extend far beyond Federal lands and this rule would
impact the ability for State and private landowners to use
their land.
Already a huge percentage of Alaska falls under the Clean
Water Act jurisdiction. Alaska has 43,000 miles of coastline,
millions of lakes, more than 43 percent of our State's surface
area is composed of wetlands, which accounts for 65 percent of
all the wetlands in the United States. A whopping 63 percent of
the Nation's jurisdictional waters under the Clean Water Act
are in Alaska, meaning those who are building or doing business
on or near those waters have to wrangle with the Federal
Government to get permits or approval.
Let me be clear, there is no doubt that many of our
wonderful lakes and rivers, such as the Yukon and Chena and
their tributaries are jurisdictional under the Clean Water Act.
No one is suggesting otherwise. Instead, we are here to talk
about the proposed rule and regulations of waters that I
believe Congress never intended to be jurisdictional under the
act. As I mentioned earlier, Alaska has some of the cleanest
waterways in the world, leading to our vibrant world-class
fisheries and award-winning drinking water. Concerns over this
rulemaking are not at all aimed at jeopardizing those
characteristics which we all hold dear and that are fundamental
to the identity of Alaska.
Instead, our efforts are about clarifying jurisdiction and,
if it's a major expansion of Federal jurisdiction, pushing back
on Federal agencies that are asserting such authority, such
authority over even the possibility of roadside ditches,
culverts, stormwater systems, isolated ponds, and activities on
adjacent lands, bypassing Congress and ducking Supreme Court
rulings. Regardless of this rule, discharge of pollutants into
these features would remain subject to Clean Water Act
regulations.
If the rule is finalized in its current form, it would mean
that many Alaskans could be subject to having to get a permit
from the EPA in order to do things such as dig ditches in their
backyards; it would mean that a farmer might have to get a
permit to plow new land. It would be a huge burden possibly on
our placer miners in the Interior. It would mean that harbors,
roads, pesticide control, and certainly natural resource
development could fall under a more rigorous Federal permitting
process, effectively granting the EPA the power to dictate
energy and infrastructure policy in most of Alaska. This is not
hyperbole. Just ask the Idaho couple who wanted to build a
house on just over a half-acre of their own private land that
happened to be near a lake. The EPA determined that their
property was a wetland and forced them to stop development,
rehabilitate the property to its natural state, or face tens of
thousands of dollars in fines a day. With this rulemaking, more
landowners across the U.S. would be subject to the same
treatment.
Just a couple of weeks ago, the Senate passed by a strong
bipartisan vote an amendment that I co-sponsored with Senator
John Barrasso of Wyoming that would rein in the scope of this
rulemaking. This amendment was an important bipartisan first
step as we craft legislation to ensure that the Clean Water Act
is focused on maintaining pristine water quality. We sent a
strong bipartisan message that the Clean Water Act should not
be transformed into a tool to expand the authority of the EPA
without congressional authority and control entirely unrelated
activities.
So, again, I want to thank everybody for being here. We
have a very distinguished panel of witnesses. As the chair, I
want to emphasize that we have selected witnesses, both here
and in Anchorage, who are opposed to this rule and who are in
favor of this rule, and we want to be respectful of all
viewpoints. We will have two panels today to discuss this, and
we will begin here in a minute. I just want to mention one
final thing. Yesterday, in a presentation that I gave, there
were questions on whether other Alaskans, other Fairbanksans
could weigh in on this proposed rule in addition to the invited
witnesses that we have here today. And, as chair of the
subcommittee, I am requesting to keep the record of this
hearing open for the next 10 days for all additional written
testimony from any Alaskan, whether they support or oppose this
rule, so all of your voices can be heard.
I'm going to provide for the record an address to send any
additional written testimony from anybody here or other
Alaskans who want to participate. The address would be to my
office: Senator Dan Sullivan, Chair of the Subcommittee on
Fisheries, Wildlife, and Waters of the Environment and Public
Works Committee, and that is in the Dirksen Senate Building,
room number SDB-40A, Washington, DC, 20515. And, again, we want
to encourage all Alaskans to participate with regard to the
importance of their voices being heard with regard to this
rule.
So we will begin with our first panel and that--again,
we're very, very pleased with the distinguished witnesses that
we have. The first panel is going to be remotely testifying,
first, from Senator Click Bishop who is obviously the State
senator from the Interior; and, Charlotte Brower, the mayor of
the North Slope Borough. I believe that both Senator Bishop and
Mayor Brower are on the line. We will begin with the testimony
of Senator Bishop and we'll move to the testimony of Mayor
Brower, and then I'm going to ask them a few questions, and
then we will turn to our second panel of distinguished
witnesses.
Senator Bishop, if you're on the line, the floor is yours.
STATEMENT OF HON. CLICK BISHOP, ALASKA STATE SENATOR FROM
SENATE DISTRICT C
Senator Bishop. Thank you, Chairman Sullivan, and welcome
home.
Senator Sullivan. Thank you.
Senator Bishop. As previously stated, my name is Click
Bishop, currently serving as Alaska State senator representing
west Fairbanks and a broad sweep of rural Alaska, including 63
small villages situated in the Yukon-Koyukuk, Tanana, and
Copper River Valleys. As former labor commissioner, I am
intimately familiar with the impacts of Government decisions on
our economy and on our working families through delay or
outright denial of resource development projects.
My previous career was a heavy equipment operator working
on the TransAlaska Pipeline and many other associated
construction projects throughout Alaska. In my younger life, I
spent over 18 years racing Yukon 800 style outboard riverboats
on Alaska's Interior rivers, the Tanana and the Yukon. So it's
safe to say that everything I've been involved in was, since I
got out of high school and quite a bit of what I did before,
has taken place on or near waters of the United States,
especially under these new definitions.
In speaking with you today, it's not my intention to
regurgitate a long list of facts and counter-arguments showing
how and where Federal agencies have overstepped their
boundaries in this action. Those have been entered into the
record hundreds of times after the proposed rule was published
in the Federal Record over a year ago. Instead, I want to sound
a warning that there will be a huge negative impact on the
Nation and Alaska's economy if the EPA and the Corps adopt
these definitional changes, which it appears they are
proceeding to do. I fear the impacts of the EPA's new enhanced
and onerous powers generated by these proposed changes, impacts
on small family owned and operated businesses as well as large
projects proposed in Alaska.
It's interesting to note that whenever a Government agency
like the EPA or the Corps of Engineers seeks to clarify the
meaning or a definition of a term or a phrase, it very seldom
narrows its definition, but rather broadens it to areas never
envisioned by those who passed the Clean Water Act in 1972.
Wouldn't it be more honest to look at the programs enabling
legislation and keep any clarifications as true to the original
intent of what Congress passed? As so often happens, we also
see that the words agencies are proposing to use to clarify and
better define their regulations only further muddy the waters.
How will they determine what is a significant connection to
downstream water quality? What is a significant nexus?
I note, also, that agencies are headlong rushed to impose
this rule, ignoring the public process, in the case of their
Connectivity Report, getting the decision done before the so-
called science upon which this decision is supposed to be made,
is available. While stakeholders from State agencies to local
governments express their concerns about this cart-before-the-
horse process, the EPA and the Corps move forward regardless.
The agencies have moved forward their proposed changes without
consultation with State and local agencies that will be
required to implement and enforce the changes. In addition,
they have moved forward with no regard or meaningful analysis
of the fiscal impact to State and local agencies.
It's clear to me the EPA in lockstep with the Corps view it
as their mission to control every human activity within the
water column, from the moment the raindrop hits the earth until
it diffuses into the ocean. We, in Alaska, we take great pride
in our State's superlatives, which set us apart from our sister
States. Little things like our millions of acres of wetlands,
millions of lakes, 30,000 miles of shoreline. We know it's cold
and dark here and there's midnight sun in the summer. I see no
evidence that the agencies will accommodate our unique features
such as permafrost, a pervasive feature found in 63 percent of
the State, yet unacknowledged in the new proposed regulatory
scheme. Permafrost is an inhibitor of water flow; it's a sink
for the storage of water. It should be specifically excluded
from these regulations.
Again, we are not sure how the agencies will determine what
is a significant nexus, but there is simply no nexus between
cryogenically isolated permafrost and waters of the United
States. Unique as we may be in Alaska in regard to this new
definition of waters of the United States, we are truly in the
same boat as all our sister States and territories. With this
definition change, we will see projects shut down in Anchorage,
Sheridan, Wyoming, Seattle, Washington, and Topeka, Kansas.
With that being said, I'd just like to wrap up in summary.
This whole wetlands adjacent regulation is the EPA's attempt to
circumvent the Supreme Court. I don't know if the EPA knows
this or not, but the Supreme Court is the highest law in the
land. They get the last word and they have spoken. Implementing
this adjacent regulation would overturn the Great Northwest
decision and that has terrible implications for Alaskans all
over the State.
Thank you, Mr. Chairman.
[The prepared statement of Senator Bishop follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Sullivan. Thank you, Senator Bishop, for that very
powerful testimony. I look forward to digging a little deeper
with some of the questions.
Mayor Brower, if you're still on the line, the floor is
yours.
STATEMENT OF CHARLOTTE E. BROWER, MAYOR, NORTH SLOPE BOROUGH
Mayor Brower. Chairman Sullivan, good morning [speaks in
Inupiat language].
Senator Sullivan. Good morning.
Mayor Brower. My name is Charlotte Brower. I am mayor of
the North Slope Borough. I am also an Inupiat, the wife of a
whaling captain, and mother to 6 children and 26 grandchildren
ranging from 21 years old to 2 weeks old.
Thank you for the invitation to address the subcommittee
today regarding the proposed rule put forward by the EPA and
the Corps of Engineers, which they define the jurisdiction of
those two agencies to regulate waters of the United States
under the Clean Water Act.
I understand the proposed rule was submitted yesterday to
the White House Office of Information and Regulatory Affairs,
which is typically one of the last steps taken before a
proposed rule is finalized. It is our sincere hope that the
agencies have taken into consideration the comments we
submitted jointly with the Inupiat Community of the Arctic
Slope and the Arctic Slope Regional Corporation to the agencies
in the record, which expressed our serious concerns with the
proposed rule and the disproportionate impacts that the
proposed rule would have on our community.
As you know, the North Slope Borough is the largest
municipality in the United States in terms of land mass and
serves as the regional government for eight villages within
89,000 square miles of the Alaska Arctic. Over 70 percent of
our nearly 8,000 full residents are Inupiat Eskimo who continue
to rely heavily on the natural environment for subsistence and
for food security. While the borough believes it is very
important to protect our waters and wetlands, we also believe
that the proposed rule will cause much more harm to the borough
and its residents than the EPA and the Corps of Engineers
understand.
The scope of the proposed rule's impact on Alaska is
immense and its impact on Alaskans, Alaska Natives, and the
North Slope is disproportionate to the rest of the country.
43.3 percent of Alaska's surface area is wetlands. In the Lower
48, wetlands only occupy 5.2 percent of the surface area. The
U.S. Fish and Wildlife Service calculates that 47 million acres
in the Arctic foothills and the coastal plains are wetlands.
Together, these areas correspond roughly with the borders of
the North Slope Borough.
It appears that all 47 million acres, more than 80 percent
of the entire North Slope region, could be considered
jurisdictional waters of the United States under the proposed
rule. I am a mayor of a borough that is larger than the State
of Utah. Most of the North Slope region is characterized by
tundra and permafrost, yet the proposed rule has left no
consideration for any of the unique aspects of Alaska's
wetlands. Neither the word ``tundra'' nor the word
``permafrost'' appears anywhere in the proposed rule. Unlike
the many exceptions in the proposed rule that are created for
farming and other preferences, the proposed rule creates no
exception for any material portions of the wetlands in Alaska,
yet Alaska's waters and wetlands are unusual in many ways that
may make them unsuitable for this broad view assertion of
jurisdiction by the agencies. For one thing, many of Alaska's
wetlands are frozen for 9 months out of the year and lie on top
of permafrost. Also, unlike wetlands in temperate zones, Arctic
wetlands which lie above thousands of feet of frozen permafrost
are not connected to apply for--subject to water flow.
As one more example, because water on top of permafrost
travels across frozen tundra surface in sheet flows, these
wetlands provide little function in controlling the runoff.
To conclude, we believe that the proposed rule in its
truest form will impose enormous burdens on the North Slope
with very little benefit to the environment. For thousands of
years our people have relied on the natural environment for
subsistence purposes and the social fabric of our community
revolves around subsistence traditions. But the ability of the
Inupiat to maintain our traditions, our communities, and the
rudimentary services that make it possible for us to survive
and thrive on the North Slope all depends upon our access to
and our ability to use natural resources.
The borough is the sole provider for nearly every essential
service available to Alaska Natives and other residents on
Alaska's North Slope such as housing, utilities, first
responders, health care, and education. Over 97 percent of the
municipal budget used to provide these services is derived from
property taxes collected on oil and gas infrastructure.
Consequently, any [inaudible] defining natural resource
development attributable to [inaudible] permitting or
mitigation requirements will have a direct and immediate impact
on the borough's ability to pay for the services on which the
health and welfare of residents depends. And because most of
the land around the communities we serve would be classified as
wetlands under the new regulation, the borough will face steep
costs any time it attempts to provide new services or
infrastructure that impacts wetlands.
Under the proposed rule, 80 percent of the North Slope
could be considered waters of the United States as compared to
5 percent in the rest of the Country. Imagine how the Governor
of New York State would react if 80 percent of the State of New
York was suddenly considered waters of the United States
[inaudible] regulation under the Clean Water Act. We're almost
twice the size of New York and yet the EPA and Corps of
Engineers did not bother to tailor their rule in a way that
would make sense for our State and our region. At the very
least, the proposed rule needs to be rewritten to clearly and
unambiguously address the unique nature of wetlands that lies
on top of permafrost.
Bottom line, the proposed rule would have a
disproportionate and entirely negative impact on the North
Slope Borough and the Inupiat people. This is why we stand
unified with all of our sister regional organizations in
opposition to this proposed rulemaking and [inaudible]
constituents. We thank you for the opportunity to testify this
morning.
[The prepared statement of Mayor Brower follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Sullivan. Thank you, Madam Mayor, and thank you for
that very powerful testimony. Congrats on the new grandchild. I
hope the child and mother are doing well. I do want to just
make a quick comment on your very insightful point about the
State of New York and the Governor of New York and how they
would feel if it wasn't 5 percent, but close to 85 percent of
their territory being impacted. I think that it would be very
different. And you're right, there's no element of addressing
any aspect of the uniqueness of Alaska in this proposed rule.
But you mentioned Governors. It should be noted that 35 States,
including Alaska, a State official from DEC testified 2 days
ago in Anchorage, 35 States oppose this rule and want it
changed or either completely done away with, which I think
speaks to your broader point about how Governors and States
view this current proposed rule.
Well, Senator Bishop and Mayor Brower, I was going to ask a
series of questions. I'll just make it easy, so they'll be
really addressed to both of you so either of you can respond or
build on the other's answers. Let me first by just asking,
given that you represent very large parts of the State of
Alaska, as you mentioned, Mayor Brower, and I'm sure it's the
same with Senator Bishop, the geographic scope of the
responsibilities that you cover is larger, both of you, than
many States in the Lower 48.
Can you just briefly describe to the extent your
constituents are aware of this rule and one of the--you know,
one of the problems with a rule like this is that oftentimes
our constituents are not aware and then all of a sudden it
becomes a final rule and they're surprised. But to the extent
your constituents are aware, what has been their reaction?
Senator Bishop. Chairman Sullivan.
Senator Sullivan. Yes.
Senator Bishop. I'll take the first stab at that. It--I
would note, you know, even as late as last night at 9:30 after
I got done here in the building, I'm still fielding phone calls
from concerned citizens, business owners, and as early as 6:30
this morning I'm on my phone again. I've been contacted, you
know, by all forms, e-mails, phones, faxes, et cetera, et
cetera, postings on Facebook. They're all united in their
opposition to this rule, which, you know, if you look up the
definition of ``Federal overreach'' in the dictionary, you'll
find a picture of the EPA extra--and in the original definition
of ``navigable waters'' to eventually include every drop of
water. They are not happy.
Senator Sullivan. Madam Mayor, how about your constituents?
Mayor Brower. Senator Sullivan, thank you for that
question. My constituents, who are predominantly Inupiat
people, everyday common people, people who are involved also in
their Native village corporations, in their tribes, in their
cities, who thrive every day in hopes that the North Slope
Borough would help in every way. We do help, and they're not
fully aware of this proposed rule and the impacts that it would
have for the future of the North Slope, not because of what
we're going after for the North Slope Borough, but for the
people, for the existence of the people and the ruling that it
would make. And I'm afraid that once this is out as the way it
is, what is going to come down the road that's going to be like
a big cannonball being thrown all over the North Slope, and
that's the fear that I have.
Senator Sullivan. Thank you, Madam Mayor, and I will note
in the testimony in Anchorage 2 days ago, there was a senior
executive from Arctic Slope Regional Corporation who testified
and they were very opposed and had very detailed concerns about
the rule.
Let me turn to the issue--Senator Bishop, I know that
you've been a leader on this throughout the State, the issue of
federalism. You know, there's been a lot of concerns that this
rulemaking process was very rushed and, indeed, it was very
rushed. And there is an executive order; it's an executive
order numbered 13132. It's called the federalism Executive
Order and it states, ``When undertaking to formulate and
implement policies that have federalism implications, agencies
shall, in determining whether to establish uniform national
standards, they shall consult with appropriate State and local
officials as to the need for national standards and any
alternatives that would limit the scope of national standards
or otherwise preserve State prerogatives and authority.''
Madam Mayor, that federalism Executive Order is in addition
to the trust responsibilities the Federal Government has with
regard to consulting with Alaska's Native people. Do you
believe that the federalism Executive Order in this case was
abided by?
Mayor Brower. Senator Sullivan, no, we were never properly
consulted on this nor was it consulted to--directly to the
tribes as well. So there is a failure of communication.
Senator Sullivan. Thank you, Madam Mayor. Senator Bishop.
Senator Bishop. Senator Sullivan, I concur with Mayor
Brower. No, they obviously didn't read their own memo down at
the EPA.
Senator Sullivan. Thank you. I want to dig into an issue
that you raised, which I think is very important for Alaskans
to know about. Senator Bishop, if you could talk a little bit
more about the Connectivity Report. And, just for the record,
the Connectivity Report was a report that the EPA was using to
base--as a basis of the science to move forward with the rule;
however, the rule was promulgated well before the Connectivity
Report was ever made public, which, as you can see, as you
mentioned, is a bit of the cart before the horse.
Can you talk a little bit more about that issue? I think
most people are unaware of that and it does show the rushed
process.
Senator Bishop. Yes. Briefly, I just--you know, in
reviewing the three Supreme Court decisions as it relates to
your question at hand, I just find it--I'm just--I'm
flabbergasted at the EPA, you know, on these three Supreme
Court decisions on the connectivity piece. The Supreme Court
has spoken very clearly on this, but yet the EPA just doesn't
get it and they're trying to circumvent the Supreme Court. And
I just find it--I'm overwhelmed. I just can't believe that they
can't--you've got three Supreme Court decisions that's written
in plain English, even I understand it, but yet the EPA doesn't
understand it and they still want to try to connect these
waters.
Senator Sullivan. Let me ask a related question with regard
to a simple but critical issue that I'm sure I'm going to dig
into with regards to the next panel as well.
Do you see this, Mayor Brower and Senator Bishop, do you
see this as an expansion of the EPA's jurisdiction over waters
in Alaska as the rule is currently written?
Senator Bishop. Chairman Sullivan, this is definitely,
definitely a grab to include all waters, everything they can
get their hands on.
Senator Sullivan. So you would see this as an expansion of
the EPA's jurisdiction?
Senator Bishop. Absolutely. Absolutely. You know, and
furthermore I just--you know, what really floors me about this
whole process is they have not done a cost-benefit analysis on
what the impact is to the United States economy or the Alaskan
economy.
Senator Sullivan. Madam Mayor, do you see this as an
expansion of the EPA's jurisdiction over waters in Alaska?
Mayor Brower. Yes. Senator Sullivan, this would have a
tremendous impact on the lives of the whole North Slope, not
only the North Slope, but the whole State of Alaska. Their
continuous presence that they want to do, they're doing it in
the wrong way. We hardly ever see EPA up in our area. The only
time that EPA comes out is when they're having the Alaska
Eskimo Whaling Commission meetings and they're there talking
about rules that concerns [inaudible] or rules that they have
to do. And they're not--they're just doing a textbook theory;
it's not going to work. They need to come to us and face us and
then turn every waters, every--all our land has been submerged
in water, but yet they're not coming to us. They're not seeing
the fact that we can live on top of snow, we can travel on top
of snow, we can travel on frozen oceans and go out whaling,
everything.
But, you know what, it does become spring and it does
become water and it always appears like it's wetlands, but
we've lived with it for ten thousands of years. They are not
here; they're living in DC.
Senator Sullivan. Thank you for that very powerful
testimony. Let me go on to another issue that, Senator Bishop,
you raised and I would like again both of our distinguished
witnesses to address this.
The EPA has stated in their cost-benefit that there would
not be--there would not be--significant costs with regard to
implementing this rule. Do you--Senator Bishop, do you agree
with that? Do you agree that there would be no significant
costs? And in particular with regard to the Interior, what do
you think the impact would be on the small placer miners that
are still trying to eke out a living in this part of the State?
Senator Bishop. Oh, you know, and that's a good question,
you know, because they haven't done a cost-benefit analysis. It
would--I would say it would be in the millions of dollars and
put--you know, it has the potential to put 360 to 460 small
placer miners out of business, but bigger than that, we're
trying to monetize Alaska's North Slope gas with the AK-
Language project and to date just the impacts of the wetlands
mitigation disturbance just on the route that's been identified
to date has already added a quarter of a billion dollars to the
project that's already--you know, it needs to be looking at
every nook, cranny, and corner to save a nickel. And proposing
this rule, who knows what it will add to the cost of that
pipeline, and that's Alaska's economic future for the next
hundred years.
Senator Sullivan. Madam Mayor, do you agree with the EPA,
there's no significant cost to this rule?
Mayor Brower, are you still with us?
Mayor Brower. Yes. There will be a future where we'll
struggle to provide basic services because of the increased
cost of wetlands mitigation. We have already captured a glimpse
of this future with our recent efforts to permit an expansion
of a local landfill. The cost assessed on the borough for
wetland mitigation exceeded $1 million, not including what we
have to spend throughout the permitting process. That's 1
million less dollars to pay for teachers, health aides, for
police officers, or to provide any number of other services.
Even worse, we know that much of this money won't be used
to benefit the North Slope. Part of the reason is that we have
been such good environmental stewards. We don't have toxic land
to clean up like they do in the Lower 48. It seems like in some
ways we're being penalized for being responsible. In addition,
the borough's rural villages are mostly populated by the
Inupiat Eskimos and they all lie in the areas that would be
classified as wetlands. Nearly every kind of construction
activity would be required from impact to wetlands. So our
villages would be constrained by additional permitting
requirements and mitigation if they required any additional
infrastructure in their communities. There is no other place in
America where the impacts of the proposed rule would fall so
heavily on one minority.
Senator Sullivan. Thank you, again. That was very powerful
testimony. And your point about wetlands mitigation came up in
the Anchorage hearing and perhaps in the next panel we can
discuss that because that is another area where Alaska is
clearly, uniquely impacted.
I also want to just mention for the record with regard to
the issue of cost, the Regulatory Flexibility Act, which is a
Federal law, requires agencies to examine the impacts of a
proposed regulation on small government entities, like we have
in Alaska, and small businesses. The EPA and the Corps, under
this rulemaking, instead certified that this proposed rule will
not have significant impacts on small entities, businesses, or
small communities. They certified that.
Kathie Wasserman, the executive director of the Alaska
Municipal League, which represents over 130 small communities
in Alaska, testified that that was completely incorrect. More
importantly, in some ways, the Obama administration's own Small
Business Association, the SBA, the chief counsel for the SBA
Office of Advocacy, determined that this certification by the
EPA and the Corps was in error and improper. Under the
regulatory act, the Corps and the EPA are required to conduct
small business advocacy review panels to determine costs, as
Senator Bishop mentioned. They failed to do that on this rule,
which led to the comments filed by the SBA of the Obama
administration's Office of Advocacy, and they stated,
``Advocacy, the SBA, and small businesses are extremely
concerned about the rule as proposed. The rule will have a
direct and potentially costly impact on small businesses. The
limited economic analysis,'' which is what Senator Bishop
mentioned, ``which the agency submitted with the rule provides
ample evidence of a potentially significant economic impact.
The SBA Advocacy Office advises the agencies to withdraw the
rule and conduct an SBAR panel prior to promulgating any
further rule on this issue.'' This is the Obama
administration's own Small Business Administration saying the
rule needs to be withdrawn because of its negative impacts on
small businesses.
So, Senator Bishop, Madam Mayor, I think that you even have
elements of the Obama administration that are in agreement with
you.
I'd like to conclude by asking a final question. Do you
think the EPA would have benefited from the assistance of those
with actual knowledge of wetlands, of the waters of Alaska in
your communities and the unique hydrology and geographic
features that we have here before promulgating a rule that is
the classic Washington, DC, one-size-fits-all approach to clean
water? We all want clean water. As I mentioned at the outset,
Alaskans do a much better job than the EPA and Washington on
keeping our waters clean.
Do you think that this rule would have benefited from the
input of constituents from your senate district, Senator
Bishop, or you, Madam Mayor, constituents from the North Slope
Borough or you and your staff?
Senator Bishop. Chairman Sullivan, it would behoove the
department greatly to take into serious consideration with
boots on the ground, I mean boots on the ground, not boots in
Washington, DC, but boots on the ground walking from maybe
Kaktovik to Barrow looking at what permafrost looks like, or
walking from the Charlie River to Fort Yukon looking at what
the ground looks like. And, I mean, I'm serious, this is--I'm
just flabbergasted. You know, again, you said it very
eloquently: it's done in Washington, DC, it's done in a vacuum.
The people--if I would have proposed a regulation like this at
the Department of Labor without giving the people of Alaska
their full and just due or a proper hearing and proper
notification, I would have been strung up by my bootstraps.
And the last thing I'd like to say in closing is--you might
want to have your staff reference this and send a copy to the
EPA. In President Obama's State of the State speech 4 years
ago, on page 2 or page 3, he says, ``Where my agencies are
overreaching and stifling business in the United States, I'm
going to work to lessen that impact.''
They need to go read the President's own memo from his
State of the State speech.
Senator Sullivan. Thank you, Senator Bishop. Madam Mayor,
would the EPA have benefited from the very, very significant
expertise and wisdom and traditional knowledge that exists on
the North Slope before promulgating this rule?
Mayor Brower. Yes, we'd like to say that Alaska is a unique
and a special place, and that is especially true in the context
of our geography and hydrology. No other State in our union has
tundra or permafrost, and many people in the Lower 48 fail to
grasp the sheer size and expanse of our State and regions. As I
mentioned in my comments, the proposed rule does not even
reference these critical features. On the North Slope,
particularly, relatively little is known about the nature and
function of our Arctic wetlands and much of what we do know has
come from studies conducted by the oil industry.
Given these facts, I don't believe that EPA has the
information that's needed to make an informed ruling. It is
important for the Federal Government to recognize the role that
the State and local municipalities can play in the permitting
process. Our local knowledge and expertise is critical in
recognizing impacts and mitigating negative consequences
associated with a potential project. State and local
governments are also more in tuned with the desires of the
local communities and are well-equipped to understand the
proper balance between facilitating economic development and
the protection of the environment.
Senator Sullivan. Well, I want to thank both of you for
your very powerful testimony. I will note for the record,
sometimes the written record doesn't convey the sense of
frustration and exasperation that these two important witnesses
have articulated, but it was clearly there. And they represent
very, very important elements of the State, large swaths of the
State. And, for the record, I want to note that.
Senator Bishop, Mayor Brower, do you have any concluding
comments that you'd like to leave before we move to the next
panel?
Senator Bishop. Yes. Chairman Sullivan, thank you so much
for coming home, holding this hearing in Fairbanks and
throughout Alaska. It's greatly appreciated. And don't give up
the fight. Keep fighting the fight and we're behind you 110
percent.
Senator Sullivan. Thank you, senator. Madam Mayor, any
concluding comments?
Mayor Brower. Thank you, Senator Sullivan. I personally
want to thank you for [inaudible] me as mayor of the North
Slope Borough and as an Inupiat woman, very strong in issues
that you have in my region. And I think that the EPA needs to
delay implementing this rule in Alaska until it conducts public
meetings of which you are giving throughout the towns and
villages that would be so heavily impacted by this rulemaking.
I don't think our people understand the extent this rulemaking
will impact their lives. I also think the agencies should
conduct an extensive analysis of the Arctic hydrology
environment and have a better understanding of our region
before they implement this rule.
And thank you very much for having this in Fairbanks, and I
apologize, I am between three meetings, and I thank you very
much for allowing me to testify; although I would have loved to
have testified in every one and be very vibrant in what I say.
Thank you very much.
Senator Sullivan. Well, thank you both again for your
powerful testimony and we really appreciate the insights that
you provided to the EPW committee. These will be important as
we move forward with regard to the national debate on this
rule.
So we're going to move forward from the first panel and
we're now going to move on to our second panel of distinguished
witnesses. We have seven witnesses. We will have 5-minute
statements from each, and then we will then conduct a series of
questions and answers.
So why don't we begin with Sara Taylor, the executive
director of the Citizens' Advisory Committee on Federal Areas.
STATEMENT OF SARA TAYLOR, EXECUTIVE DIRECTOR, CITIZENS'
ADVISORY COMMISSION ON FEDERAL AREAS
Ms. Taylor. Chairman, thank you for allowing me to testify
today and especially thank you for coming to Alaska to have
hearings on this very important issue.
For the record, my name is Sara Taylor. I am the executive
director of the Citizens' Advisory Commission on Federal Areas,
commonly known as CACFA. The CACFA was established by the
Alaska State Legislature in 1981 to monitor and mitigate
negative impacts to Alaskans from the complex mandates, diverse
management schemes, and highly discretionary rules and
regulations that apply to just about 222 million acres of our
State. We work with individuals and agencies to safeguard and
preserve the rights and interests of Alaskans and we maintain
decades of institutional memory of engagement with over a dozen
Federal agencies.
I could explain in great detail how the proposed rule is
legally indefensible or just really bad public policy, but I'd
much rather spend the time talking about what it means to
Alaskans. One recurring theme of management of Federal lands in
Alaska is a manifest paternalism, blind to our needs and
experiences which stifles our opportunity for social and
economic autonomy and prosperity. We are quite accustomed to
and frankly tired of being the subject of a table-top exercise
thousands of miles away. In many ways, the proposed rule is
very emblematic of this approach to Alaska.
When the agencies say that Alaskan waters require Federal
protection, they mean protection from us, the people whose very
survival depends on clean water. To most Americans, Alaska is
an idea. It's a trophy hunt. It's a dream vacation. It's a post
card. It's a reality show. It's a means of preservation and
atonement for the industrialized state of our Nation. But
Alaska is not an abstract concept to us. Alaska is our home.
This is our being and water is the intravenous system which
feeds us both spiritually and physically.
The Clean Water Act recognizes that there are no better
stewards of clean water than the people who fish in it and swim
in it and drink it, and the State of Alaska has the authority
and the responsibility and the very detailed expertise to
manage water regardless of jurisdiction in our State. And the
regulation of water and land use is a very traditional State
and local power that deserves both legal and intuitive
deference, but the EPA and the Corps of Engineers did not even
consult with the State in developing this rulemaking, and this
rulemaking unapologetically hijacks those powers and
obligations. But Alaskans do more than depend on our water. We
also understand it and if our water needs protection, it's from
administrators who do not understand it.
Alaska has more wetlands than all the other States
combined. Alaska has more coastline than all the other States
combined, but the proposed rule and the 2013 draft Connectivity
Report completely failed to acknowledge our very unique
geomorphological and hydrologic conditions. These would be the
conditions that apply to the vast majority of areas impacted by
this rulemaking, things that have been mentioned like
permafrost, like tundra, spruce bogs, muskegs, just those types
of situations, ice fields, glaciers. It's confusing. It's very
confusing to see how this proposed rule will actually impact
Alaska, which begs the question as to why application of this
rule is left to agencies who do not care or do not know enough
to even include the consideration of these very unique
conditions.
The proposed rule will not only deprive Alaska of its
traditional and sovereign powers. It will also
disproportionately impact our ability to grow and prosper. Out
of 283 total communities in Alaska, 215 of them live within 2
miles of a navigable, in fact, water or coastline and the
proposed rule expands the area that will be subject to Federal
permitting authority to the point where the development and
sustainability of these communities is going to be either
subject to a very expensive jurisdictional question or a very
expensive concession of jurisdiction, and both scenarios raise
major due process concerns where private property owners,
communities, and sovereign States need to pay to ask the
Federal Government if permission is needed or pay the Federal
Government for permission regardless of whether permission is
actually needed just to safely avoid fines, penalties, even
endless litigation. And what happens to your property rights
when you can't afford to ask that question?
Alaskans are no strangers to Federal regulations governing
essential aspects of our lives and I'm not sure how much more
can be demanded of us, but I do know that this demand
mischaracterizes the state of the law and unconstitutionally
interferes with our authorities, but what's worse is it's not
going to enhance the protection of our waters. Thank you very
much.
[The prepared statement of Ms. Taylor follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Sullivan. Thank you, Ms. Taylor. Very eloquent
testimony there. Our next witness is Sue Mauger. She is a
science director for Cook Inletkeeper.
STATEMENT OF SUE MAUGER, SCIENCE DIRECTOR, COOK INLETKEEPER
Ms. Mauger. Chairman Sullivan, thank you for the
opportunity to testify today. I've submitted written testimony
and ask that it be included in the record.
My name is Sue Mauger and I am the science director for
Cook Inletkeeper, which is a community-based non-profit
organization started in 1995 and dedicated to protecting clean
water and healthy salmon for Alaskans. Please accept this
testimony on behalf of Cook Inletkeeper's staff, board of
directors, and more than 2,000 members and supporters across
Southcentral Alaska.
My comments and support for clarifying protections of
Waters of the United States under the Clean Water Act are based
on my experiences working in Alaska's fresh water systems for
the last 15 years. Recently my work has involved using thermal
infrared technology to identify and map shallow groundwater
connections that provide key sources of cold water in the
summer as well as warm water for juvenile salmon in the winter.
Exploring these complex surface and subsurface connections
reinforces to me that in Alaska, as in the rest of the United
States, protecting tributaries and adjacent wetlands is vital
for protection of the integrity of downstream waters.
In my opinion, the impact of the proposed rule will be
decidedly positive for Alaskans and I'd like to share with you
three reasons why. First, Alaskans rely on wild salmon and
other cold water fish for commercial, economic, cultural, and
nutritional health. Presently, Alaska's fresh water habitats
are largely intact and support some of the most robust wild
salmon populations in the world. This is, in part, due to the
extensively connected systems of small headwater streams and
supporting wetlands. State biologists down on the Kenai
Peninsula are doing exciting research which shows how broader
landscapes are linked to stream productivity and juvenile
salmon densities. Through the delivery of alder-derived
nitrogen and peatland-derived carbon into headwater streams,
whole ecosystem responses are generated, which underscores the
importance of landscape connectivity.
This makes me think of wetlands functioning like a coffee
filter. Just as my morning cup of caffeine helps bring me back
to life and increases my productivity, rich nutrient-laden
waters percolating out of saturated wetlands helps drive stream
productivities. The investment of nutrients from the landscape
into the smallest of our streams pays off huge dividends in the
form of vibrant fisheries. The proposed rule will clarify these
protections for key habitats that help salmon and, in turn,
helps Alaskans thrive.
Second, Alaskans rely on wetlands to reduce flood peaks,
which put our heavily subsidized transportation infrastructure
at risk. Fall storms are hard on our roads and bridges. I
remember well the devastating floods of 2002 when sections of
the Sterling Highway blew out, leaving the lower Kenai
Peninsula cut off for days. We had two 100-year flood events
within a month of each other. Poorly placed inadequately sized
culverts in the upper watersheds failed which resulted in
pulses of debris torrents causing extensive damage downstream.
Fall storms will continue; however, a decrease in wetland cover
can greatly increase peak flows and increase downstream flood
damage.
In fiscal year 2015, the Federal budget covers
approximately 90 percent--90 percent--over $1 billion of
Alaska's road costs. It hardly seems like Federal overreach for
the EPA to implement a rule which will reduce flooding
potential by keeping wetlands intact when the Federal budget is
footing the bills to fix our flood damage.
Third, Alaskans rely on groundwater sources of drinking
water. Across our rural landscape, the majority of Alaskans
have private wells or use surface springs for drinking water.
Our wetland-dominated landscape makes this possible by
consistently recharging our aquifers. Most wells used to supply
water to individual homes yield water from shallow aquifers,
which were recharged within the last 25 years. Shallow aquifers
contain groundwater that is primarily from infiltration of
local rain and snow and discharge from streams, lakes, and
wetlands and thus are susceptible to contamination. Keeping
potential contaminants away from these water sources is by far
less expensive than trying to remove contaminants once they
move into the groundwater. The proposed rule, by clarifying
protections for these water bodies, will reinstate Alaska's
confidence that their drinking water is safe for their
families.
One argument that some have made to delay or significantly
alter the proposed rule is that Alaska's hydrologic
circumstances are unique. And I couldn't agree more with that
observation. Alaska's fresh water situation is unique, uniquely
intact and connected. Rare circumstances for the Lower 48. But
with the current uncertainty of what constitutes the waters of
the United States, Alaskans' clean water and healthy salmon are
at risk of a death by a thousand cuts.
Now the EPA and the Army Corps of Engineers, agencies not
known for playing nicely together, have, in fact, come up with
language that they can work with to fulfill the goal of the
Clean Water Act. Congress ought to move forward now by
approving the protections provided by the proposed rule.
Alaskans will be better off for it. Thank you.
[The prepared statement of Ms. Mauger follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Sullivan. Thank you, Ms. Mauger. Our next witness
is Bryce Wrigley and Mr. Wrigley is president of the Alaska
Farm Bureau. I've worked with him on many issues. So, President
Wrigley, the floor is yours.
STATEMENT OF BRYCE WRIGLEY, PRESIDENT, ALASKA FARM BUREAU
Mr. Wrigley. Thank you, Senator Sullivan. I appreciate the
opportunity to testify at this hearing.
The Clean Water Act regulates navigable waters and is
defined as waters of the United States. It does not regulate
all waters. The U.S. Supreme Court has recognized that the term
``navigable'' delineates what Congress had in mind when it
enacted the Clean Water Act. That was its traditional
jurisdiction over waters that were or had been navigable, in
fact, or which could be reasonably made. In fact, it was very
clear that Congress did not intend for the Clean Water Act to
cover all waters. When it enacted the Clean Water Act, Congress
explicitly recognized, preserved, and protected the States'
primary authority and responsibility over local land and water
resources. The proposed Waters of the U.S. rule attempts to
usurp the States' traditional and primary authority over land
and water use.
The EPA and the Army Corps have made several attempts to
assert jurisdiction over waters and water bodies that the
Supreme Court has found to be outside their jurisdiction. The
agencies have demonstrated a continual pattern of pushing and
bullying the State and local governments and intimidating
private citizens as they have repeatedly sought to assert
control over additional waters and land. For example, after the
Supreme Court found that isolated waters fall outside the Clean
Water Act jurisdiction, it clarified that in classifying a new
area as a wetland, a significant nexus to an existing navigable
water must exist. The agencies next asserted that the decision
was limited to isolated waters and that if a water body had any
connection to a navigable water, it was no longer an isolated
water body and could therefore be regulated as a navigable
water under the Clean Water Act. The agencies' rationale was
that, in the end, all waters are connected, which essentially
include all wet areas, including ditches, drains, desert
washes, and ephemeral streams that flow infrequently and may be
miles from traditional navigable waters.
The Supreme Court again rejected the Corps' broad
interpretation and the court found that the plain language of
the Clean Water Act does not authorize this expansion of
Federal jurisdiction and that in applying the definition so
broadly to seasonally wet features, the Corps had stretched the
term ``waters of the United States'' beyond parody. Further,
the court clarified that the act confers jurisdiction only over
relatively permanent bodies of water.
The implementation of the rule as it now stands will expose
farmers and ranchers to legal action if they engage in normal
farming activities. If a low spot in a field is, indeed,
determined to be a wetland under the expanded definition
because it sometimes holds or sheds water, it may require
dredge or fill permits to plant or harvest our fields. It may
also require a discharge permit for applying fertilizer or
pesticides to crops. And just because an operation is organic
doesn't mean that it would get a pass. Organic operations would
also need dredge and fill permits for planting and harvesting
and would also need discharge permits to apply manure or
compost to their fields.
I decided on the way in today that most of those listening
have no idea of what I'm even talking about. Your experience
with agriculture is through the food you eat, so you cannot
understand the impact of this rule on America's farmers. So, in
an effort to help you understand, I've decided that I'm going
to start a project to redefine food.
According to the Supreme Court, a significant nexus must
occur or be present. It is required to be able to--and that is
required to be able to reclassify a substance as food. Applying
EPA's logic to this model, I've determined, and I'm sure you'll
agree, that what animals eat and then poop out meets the
significant nexus requirement for human food. They eat the same
things we do. Then, to make sure that these resources are not
wasted, I'm going to impose a $37,000 fine per day on anyone
who does not eat this new food. So your menu options at the
restaurant will change. You can now choose chicken poop
tenders, poop chops, or cow pie steak. Now, you laugh because
you realize that I have no authority to implement these food
changes. Imagine if I was a powerful Federal agency with the
full power and backing of the U.S. Government behind it and
decided to implement these changes. What would your reaction
be?
Congress has allowed the creation of this vast bureaucracy
which, in all practicality, is a fourth branch of the
government. This fourth branch is not beholding to nor can it
be removed by we, the people. Our only recourse is to rely on
Congress to impose strict limits on their authority and their
rulemaking. Both Congress and the Supreme Court have told EPA
that this rule oversteps the intent of Congress.
I urge you in the strongest possible terms to confine EPA's
authority to those navigable waters, as was clearly intended by
Congress when the Clean Water Act was passed. Thank you.
[The prepared statement of Mr. Wrigley follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Sullivan. Thank you, President Wrigley, and thank
you for all the work you do on behalf of Alaska's farmers. It's
a group of our citizens that do incredible work for all of us,
and I appreciate your testimony.
Our next witness is John MacKinnon, executive director of
the Associated General Contractors of Alaska. Mr. MacKinnon,
the floor is yours.
STATEMENT OF JOHN MacKINNON, EXECUTIVE DIRECTOR, ASSOCIATED
GENERAL CONTRACTORS OF ALASKA
Mr. MacKinnon. Thank you, Chairman Sullivan. For the
record, my name is John MacKinnon. I'm the executive director
of the Associated General Contractors. The AGC is a
construction trade association representing approximately 650
contractors, suppliers, manufacturers, and businesses in
Alaska. Within our membership is the majority of Alaska's
construction industry. AGC contractors are involved in the
construction of Alaska's public and private buildings,
highways, bridges, docks, and harbors, and the preparation of
access roads and development pads necessary for the extraction
of our natural resources.
The industry obtains general and individual permits to
perform construction activities in or near waters of the United
States and permits for stormwater discharges, both covered
under the Clean Water Act. As such, this proposed guidance will
pervade all stages of construction and will have a substantial
impact on the construction industry.
Prior to joining AGC 8 years ago, I was--and becoming an
advocate for the construction industry, I was a deputy
commissioner of the Alaska Department of Transportation and an
advocate for transportation projects in Alaska. During that
time, you know, DOT oversees 249 airports throughout the State,
11 ferries serving 35 communities, 5,600 miles of highways, and
720 buildings throughout Alaska. And one of my responsibilities
at DOT was overseeing the maintenance and construction programs
for all of those facilities. Major projects in this State often
require--trigger NEPA and require an environmental impact
statement, and the challenge we had was that the average EIS
for a federally funded transportation project takes about 5
years from beginning to reaching a record of decision. From
that point of the record of decision, the project sponsor then
begins to get the dozens and dozens of permits required in
order to go to construction. The average time for a major
highway project that requires an EIS from beginning the EIS to
completion of the project--this is the average time--is 13
years. It's no wonder transportation projects take so long to
deliver when you consider all of the permits and permissions
required.
I have attached to my written testimony a graph like this
which shows the Federal environmental requirements affecting
transportation. That's about 1965 where it starts on that
trajectory upward.
Senator Sullivan. We want to make sure that will be
submitted for the record.
Mr. MacKinnon. Yes, thank you. You know, I might add that
in--about 40 years ago, 1970 or so, approximately 90 cents out
of every dollar for a construction project went out as a
payment to contractors. That was dirt in the ground, pavement
and that. Today it's under 70 cents on every dollar of a
construction project goes out as a payment to contractor. The
balance in there, that twenty-some cents, is going into process
and permits and much of it adds very little value to the
project.
In Alaska, a lack of adequate transportation is one of the
biggest impediments to our economy. Forty years ago, the
biggest obstacle we had to doing something was scraping the
money together. Today, the biggest obstacle is getting
permission, and this will only exacerbate that.
Development of wetlands falls under the guideline hierarchy
of avoid, minimize, and mitigate. And when designing a project,
the first objective is to avoid any impact to wetlands. People
don't set out to impact wetlands. It just happens because roads
and airport construction, projects in general, prefer flat
ground and in Alaska that's where you find wetlands. When
avoidance isn't possible, you work to minimize the impact on
wetlands and any wetlands impacted are subject to a fee-in-lieu
mitigation payment. Depending on the class of the wetlands
disturbed, mitigation can be up to $55,000 per acre. This is up
from $10,000 an acre relatively few years ago. That makes
Alaska's 170 million acres of wetlands worth over $9 trillion.
The simple conclusion to draw is that this proposed
guidance is increased jurisdiction, it is increased permitting,
it is increased mitigation, and it is increased cost.
The Clean Water Act has worked as intended in the 40-some
years since it became law. We've corrected most of our
environmental problems and degradation. We probably have the
cleanest country on Earth. We've overcompensated in so many
areas as the chart shows, and now the bureaucracy is again
taking the law, and through regulations, stretching it beyond
its original intent.
In conclusion, in Alaska's case, we're held to the same
standard as the rest of the Country and we're not the same
condition. The present jurisdiction exceeds what's necessary to
protect the environment and maintain interstate commerce. The
proposed changes will have a significant negative effect on the
construction industry and the economy and the guidance under
WOTUS will have a further material impact on permitting and
enforcement nationwide. Thank you.
[The prepared statement of Mr. MacKinnon follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Sullivan. Thank you, Mr. MacKinnon, for that very
powerful testimony.
Our next witness is Austin Williams. He is the Alaska
Director of Law and Policy for Trout Unlimited. Mr. Williams,
the floor is yours.
STATEMENT OF AUSTIN WILLIAMS, ALASKA DIRECTOR OF LAW AND
POLICY, TROUT UNLIMITED
Mr. Williams. Thank you. Chairman Sullivan, my name is
Austin Williams. I'm the Alaska Director of Law and Policy for
Trout Unlimited, which I will abbreviate as TU.
Thank you for the opportunity to testify and please also
include the written testimony that I have provided as part of
the record.
TU is the Nation's largest sportsmen organization dedicated
to cold water conservation, with more than 1,000 members in
Alaska. They are passionate anglers, lodge owners, fishing and
hunting guides, commercial fishermen, among various other
occupations. In addition to our members in more remote parts of
the State, we have active chapters in Fairbanks, Anchorage, and
the Mat-Su, on the Kenai Peninsula, and in Southeast. TU
supports the Clean Water Act rule because it will ensure
protection of critical water resources, the Nation's millions
of miles of headwater streams, and Alaska's most important and
productive waterways. We cannot ensure clean water in our most
valuable rivers and streams without also protecting the smaller
waters that feed in to them, yet recent administrative guidance
following two Supreme Court cases, SWANCC in 2001 and Rapanos
in 2006, has thrown decades of precedence, logic, and stability
on its head.
After repeated requests from TU, along with many other
sportsmen organizations, businesses, and industry groups, the
Corps and the EPA have finally taken the strong step to propose
a fix that will help provide clarity and consistency within the
act while ensuring clean water protections for our fish and
wildlife, including Alaska's iconic salmon runs.
At the heart of the agencies' proposal is what every
sportsman knows: that small streams influence the health of
large rivers and that clean water for small streams help grow
big fish. Like many Alaskans, I first came to our great State
to experience its legendary fish and wildlife and, like many
more Alaskans, these qualities are why I continue to call
Alaska home, and why my wife and I choose to raise our family
here. My son is only 3 and my daughter is not yet 2 months old,
but my hope is that they can grow up and enjoy the same great
fishing and hunting opportunities available to you and me,
which all depend on clean water.
Fishing isn't just part of the Alaska way of life, it's
also big business. Nearly $650 million a year is spent on sport
fishing in Alaska. When you factor in multiplier effects, sport
fishing accounts for more than a billion dollars in economic
impact to Alaska communities. Add in hunting and other
wildlife-related recreation, then the total climbs to $3.4
billion each year. Alaskans also commercially harvested 157
million salmon last year worth more than half a billion dollars
at the dock and the number is projected to increase this year
to more than $220 million--or 220 million salmon. I'm sorry.
And all of this is possible because of clean water.
Those that claim the sky is falling with regard to the cost
of complying with the proposed rule or that claim that
development will come to a screeching halt fail to recognize
that even greater value, clean water and the fish and wildlife
it supports, provides to Alaskans. And, besides, before SWANCC,
when the jurisdictional reach of the Clean Water Act was even
greater than what is proposed under the current rule, Alaska's
population nearly doubled from 324,000 to 633,000 people, and
its gross domestic product nearly doubled from $15 billion to
$29 billion per year. Oil, gas, and coal production all
increased several times over during the same period. Economic
development and clean water protections can co-exist under this
proposed rule.
In a recent statewide poll, 96 percent of Alaskans said
salmon are essential to the Alaskan way of life. Eighty-nine
percent said that even in tough economic times, funding for
salmon conservation should be maintained. Eighty percent said
that protecting the forests, tundra, and wetlands around
streams is as important as protecting the streams themselves.
Seventy-nine percent of Alaskans were concerned about pollution
in rivers, lakes, and streams, which is on par with issues like
reducing the Federal budget deficit and unemployment.
TU is a science-driven organization and in this case the
science is clear: headwater streams provide essential habitat
for important fish and wildlife, contribute to the water
quality of larger downriver streams. Better habitat means
better fishing and better fishing is good for Alaska. Thank
you.
[The prepared statement of Mr. Williams follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Sullivan. Thank you, Mr. Williams. I appreciate the
testimony.
Our next witness is Deantha Crockett. She is the executive
director of the Alaska Miners Association. And, Ms. Crockett,
appreciate your testimony. Thank you.
STATEMENT OF DEANTHA CROCKETT, EXECUTIVE DIRECTOR, ALASKA
MINERS ASSOCIATION
Ms. Crockett. Thank you very much. For the record, my name
is Deantha Crockett and I'm the executive director of the
Alaska Miners Association. AMA is a trade association. It
represents all aspects of Alaska's mining industry.
As you mentioned, this rule is massive and, I'll add,
inappropriate of an expansion. The reality here has been
discussed, so I'll move on.
Aside from the legality issues, AMA has spent considerable
amount of time in collaboration with our partners in other
States to examine the impacts of this proposed rule. We found
that no matter what geographic location with the constituency
reviewing the proposal, all had significant issue with the
proposed rule. Yes, what effects water permitting and mining
operations in Nevada is significantly different than operations
here in Alaska, but therein lies the complexity of this
proposal. The Clean Water Act is explicit in governing how
water is managed across the Nation and, since its passage,
operations have understood the requirements of the act. This
proposal dramatically shifts that understanding by redefining
what a water actually is. Nevada, clearly a dry, arid region,
is seeing the possibility of regulation of manmade water bodies
at mining operations. Alaska, with water being one of our most
plentiful resources, is seeing the possibility of having to
regulate stormwater and diversion ditches.
You've asked me here today to discuss impacts of this
proposed rule on Alaska's miners. First, I'd like to be clear
and address our previous 2008 comments that were taken out of
context at your hearing on Monday. The Trustees for Alaska
indicated that we asked for clarity at that time, and they are
correct, but this is not it. The lack of clarity throughout
this document is actually our major concern. Definitions of key
terms and concepts like waters, flood plain, wetlands,
subsurface connection, et cetera, are completely ambiguous.
There is no room for confusion when it comes to permitting and
regulating mining projects in Alaska. We depend on, and we
believe the public does, too, a rigorous science-based
permitting system. Without explicit definition of all technical
and enforceable terms we are left with an unpredictable and
confusing proposed rule. We can only assume that we will also
be left with undefined terms that will be subject to
interpretation by the agencies.
To be perfectly frank, we fear this provides an avenue for
our Federal agencies to take a large leap into overreach and
place unreasonable regulations on mining projects simply
because they can. Both agencies have hosted public forums in
which stakeholders have posed questions about the rules and in
the forums that I've participated in, the agencies could not
provide definitions or responded that the intent of the
proposed rule isn't actually what they meant in the language,
et cetera, and that we should put in our comments what our
concerns are and allow them to address it at that time.
One of the instances I'm thinking of here is in July, the
National Mining Association hosted a meeting with Greg Peck,
he's the office--head of the Office of Water in--with EPA,
excuse me, that proposes this rule and we spent a lot of time
talking to him and asking him for clarification on these
things, in which he responded, no, that's not what we meant and
be sure to put that in your comments so we can address it. And
we specifically asked, those of us participating from Alaska,
for a lot more information because he didn't understand. At
that time, AMA in conjunction with RDC who represents all of
Alaska's resource industries, as well as all of Alaska's Native
corporations, sent him a letter inviting him to Alaska and
offered to hold some sort of public meeting with a lot of
stakeholders to bring him up to speed on how this would affect
Alaska. We didn't hear back. And in August, we asked Senator
Murkowski and then Senator Begich and Congressman Young and
they did remind Gregory Peck of that invitation, still never
heard back and did not get any engagement from him.
So I bring that up because you asked the previous
testifiers if it would have helped, and I think it would have
helped EPA to consult with Alaskans and come see for themselves
what they're proposing to do.
You, in talking with Senator Bishop and Mayor Brower,
touched on this, but EPA didn't consult with the State on this
proposed rule, nor did they consider a consult with the Alaska
Native landowners. The Native landowners were granted 44
million acres of land that Congress intended to be a partial
settlement of outstanding Native claims. The new definitions
will undoubtedly have the direct result of significantly
undermining the intent of Congress for these acres to be
available for responsible resource development, including
minerals, now owned in fee title by the corporations
established by the Alaska Native Claims Settlement Act.
Furthermore, the rule encroaches on traditional power of
the States to regulate land and water within our borders. It's
just as vital to ensure that States' rights are not being
violated. It's statutorily mandated and affirmed by our legal
system that regulation of Interior waters is a quintessential
State function.
Categorizing many new features as waters of the U.S. and
determining that all adjacent features also qualify will
consequently subject nearly every parcel of land to
jurisdiction under the act. In Alaska, 175 million acres are
classified as wetlands, thus 45 percent of our land base. We're
the only State in the union with extensive permafrost and our
coastline and tidally influenced waters exceed that of the rest
of the Nation combined. Any regulation or rule addressing
wetland and coastal environments will have a potentially
greater effect in Alaska than anywhere else in the Nation,
particularly if ill-conceived. The combination of these Alaska-
specific issues and those that all stakeholders must manage
means Alaska's miners have an enormous burden at stake.
AMA has recommended that the agencies table this proposed
rule and engage in meaningful dialog with the regulated
community and with the States about more appropriate and clear
changes to existing regulations. Only then should agencies
replace the proposed rule with one that reflects those
consultations and is supported by science and case law. Doing
so will ensure responsible, legally defensible rulemaking that
captures the intent of Congress and the Supreme Court and does
not place unnecessary burdens on Americans.
Thank you, Senator Sullivan.
[The prepared statement of Ms. Crockett follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Sullivan. Thank you, Ms. Crockett.
Our final witness today before we have some Q and A is
Shannon Carroll. He is an attorney and a commercial fisherman.
Mr. Carroll.
STATEMENT OF SHANNON CARROLL, ATTORNEY AND COMMERCIAL FISHERMAN
Mr. Carroll. Thank you. My name is Shannon Carroll. I'm a
commercial fisherman and a solo practitioner attorney. I thank
the committee for the opportunity to testify today.
My comments and support for the proposed regulations are
based on my experience working in the commercial fishing
industries in Alaska, Washington, and Maine. And as someone who
has fished elsewhere in the Country, I am proud to live and
work in a State that takes the health of its fisheries so
seriously. I also want to thank you, Senator Sullivan, for
supporting our industry during your time in office thus far.
In 1977, Congress re-examined the necessity of wetland
protections within Section 404 of the Clean Water Act. Then, as
now, commercial fisherman vocalized their support for the
provision, coining the phrase ``no wetlands, no seafood.'' I
mention this phrase now because in the case of Alaska, it
cannot be more apropos. With over 43 percent of our State
covered in wetlands, it is not surprising that 76 percent of
our State's seafood harvest comes from wetland-dependent
fisheries each year. In addition to the State's iconic salmon
fisheries, wetlands are also critical to other keystone
fisheries such as halibut, pollack, herring, and crab.
I support the proposed rule because it clarifies
protections to waters upon which these fisheries rely, all
while reserving existing exemptions for farmers, ranchers, and
foresters.
In addition to promoting the health of our fisheries, the
proposed rule further protects the brand of Alaskan seafood. As
the Alaska Seafood Marketing Institute noted, the perception of
Alaskan stewardship is an immeasurable but important component
of both the seafood and visitor industries. Millions of people
eat Alaskan seafood for the same reason that over 1 million
visitors travel to the State each year, because they value
Alaska's pristine environment. By categorically including
wetlands, the proposed rule ensures that Alaska's seafood
sterling reputation will continue into the future.
My support of healthy fisheries is not entirely out of
self-interest. Fishing means business and it means jobs in
Alaska. As Alaska's third largest industry, recent figures
place the combined value of Alaska seafood exports and domestic
sales at $6.4 billion and when secondary economic output is
included, the Alaska fishing industry accounts for $15.7
billion in economic production. That's over 94,000 jobs that
are directly tied to the commercial fishing industry and an
estimated $6.4 billion in labor wages. And, importantly, most
of these jobs stay in Alaska, with nearly one in eight Alaskan
workers earning at least a portion of their income directly
from the fishing industry.
Fishing is also the backbone of Alaska's coastal
communities employing 50 percent of private sector workers in
coastal towns. And perhaps equally important in places like
Kodiak, Petersburg, Dillingham, Cordova, commercial fishing is
not just the engine that drives the local economy, it's a means
of opportunity and a means of mobility. These are good jobs
that can provide high school-age kids with the opportunity to
pay for college, a down payment on a boat or a permit. These
are jobs that bestow self-worth amongst those in the industry
and further a tradition that one is proud to pass down to the
next generation. Most importantly, however, these are jobs that
are built on the back of a sustainable resource, meaning that
these jobs can, with proper management and self-restraint,
support local communities for generations to come.
And there will, no doubt, be costs associated with the
proposed rule, but it seems equitable that these costs at least
be initially borne by those seeking to benefit from the
proposed development. And just as before SWANCC and Rapanos,
development and resource extraction will continue to occur and
the economy will continue to grow. I will also add that having
commercial fished in Washington and Maine, two States that
previously held some of the world's largest salmon runs, that
there are much greater costs associated with the restoration of
a crippled fishery than there are with development fees and
mitigation banks. To give you an example, Washington State has
invested more than $1 billion in public funds to its hatchery
program and continues to spend $60 million a year with little
effect on its dwindling salmon fishery.
So, in closing, I urge Senator Sullivan and the members of
this committee to consider the wide-reaching and economic and
cultural benefits that this proposed rule will have for the
State. Thank you.
[The prepared statement of Mr. Carroll follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Sullivan. Thank you, Mr. Carroll, and thank you for
reminding us of the importance of the fishery--fishing
communities and industry to our State. You're spot-on with
regard to those comments.
We have about 20, 25 minutes until the hearing is supposed
to adjourn and what I thought we would do is conduct some
questions, follow up questions. And the way I like to do this
is start with a question maybe of a certain witness, but I want
to encourage everybody who wants to weigh in on any question to
just be recognized. And certainly all of you can feel free to
weigh in on any of the questions that are posed, even if
they're initially posed for certain members of the panel.
I guess I'll start. And, Ms. Taylor, you, as I mentioned
were very eloquent in terms of some of the things that you laid
out with regard to the views that some of our Lower 48 citizens
have with regard to Alaska. But, importantly, and there's a lot
of lawyers on the panel, so feel free to weigh in, it's
important to remind people what the Clean Water Act tried to do
with regard to States' abilities to keep their waters clean.
So Section 101(b) of the Clean Water Act clearly states,
``It is the policy of Congress to recognize, preserve, and
protect the primary responsibilities and rights of the States
to prevent, reduce, and eliminate pollution, to plan the
development and use in restoration, preservation, and
enhancement of land and water resources, and to consult with
the EPA administrator in the exercise of his authority under
this chapter.'' His or her authority.
Do you think that the EPA is abiding by this directive of
Congress under the Clean Water Act as making sure that the
policy of the Congress is to protect, preserve, and recognize
the primary responsibility of States and other entities to
protect their waters? I'll start with you, Ms. Taylor, and then
anyone else who wants to jump in on that issue. This is the
law. This is the law.
Ms. Taylor. No, absolutely not. Not legally or even kind of
holistically. If you look at this rule, it presumes that where
Federal jurisdiction ends, complete and utter lawlessness
exists thereafter, which is incredibly disrespectful to the
States' management obligations and traditional and primary
powers, and authorities to manage and protect its waters. But
even on a legal basis, if you look at other parts of the Clean
Water Act, like the--it gives the States regulatory
responsibilities, significant regulatory responsibilities, and
it gives opportunities to assume primacy over certain
permitting aspects for discharge, for dredge and fill. But the
primacy aspect exists, you know, where it's not waters of the
U.S. I'm generalizing, but where the Federal Government has
jurisdiction, it kind of keeps it, and then the States kind of
get a little primacy, you know, left--it's very complicated.
Sorry. But the whole aspect of primacy would mean nothing if
there's nothing left.
So the Clean Water Act has created the system where States
can assume primacy, but we would be paying millions of dollars
to manage like a million acres. You know, so it wouldn't--it
would read all of those provisions completely out of the law to
assume that this regulation can go forward as written.
Senator Sullivan. Any other comments on that initial
primacy directive from Congress to the EPA with regard to the
States' primacy--primary responsibilities on these issues? Sir.
Mr. Wrigley. Yes. All the States have incentives to
encourage and improve their water resources and water--and
there are a lot of water success stories that are, in fact,
featured on EPA's website. Those success stories came about
without the heavy hand of EPA regulating and permitting. The
success stories were due to voluntary conservation efforts
under the existing definitions of the Clean Water Act. The
presumption here is that without--and I agree with Sara. The
presumption is that without this rule going forward, we are--in
fact, do not have any Clean Water Act in place. And in reality,
what we have is a Clean Water Act that is functioning and still
allows the States to assert primacy, to control and to manage
those waters within their jurisdiction.
Senator Sullivan. Let me ask another question with regard
to the hearing today, the first panel, this panel, and the
hearing we held 2 days ago in Anchorage. Two themes come out, I
believe, and I believe that even though there's differing
opinions, obviously from the witnesses here on their support or
lack thereof of this rule, that there was agreement in
Anchorage on two key issues. One is that Alaska, under this
rule, given our size, given the huge amount of wetlands, given
the huge amount of clean water that we have is uniquely
impacted by this rule.
Is there general agreement among the witnesses on that
issue? Say, we had a witness that mentioned some category, I
think even a State park in our State, the Wood-Tikchik, which
is larger than certainly Rhode Island and some other States.
It's important for my fellow Senators in the Lower 48 to
recognize this. But is there a general agreement among the
witnesses here that we are uniquely impacted one way or the
other with regard to this rule for all the reasons that have
been discussed by the witnesses today? I see everybody's head
nodding. Sue, is your head nodding?
Ms. Mauger. I guess it's just a choice of words. We're
impacted, but we're also protected.
Senator Sullivan. OK. And then I do want to get into the
issue of consultation. This process, I believe, has been
flawed, has been very rushed. I have raised this with the EPA
administrator. The issue of getting the Connectivity Report
that the rule is based upon out after the rule is promulgated
is beyond bizarre in terms of a process that's supposed to work
well.
Were any of your organizations or your members--do you
think you had the proper consultation with the EPA? And, you
know, Ms. Crockett, you mentioned how hard you worked to try to
get an EPA administrator up here to try and understand Alaska.
Do you think that the consultation that is required by the EPA
and the whole host of Federal statutes and regulations was
undertaken in a way that was sufficient, particularly to allow
Alaskans to give their voice to what is going to be possibly a
rule that can have enormous impact on our State?
Ms. Crockett. Absolutely not.
Senator Sullivan. Yes, Mr. Williams.
Mr. Williams. Senator, if I may, TU has participated
throughout the public processes through development of this
proposed rule, and we had no special treatment beyond what any
other member of the public had. But we found the EPA's
procedures to be typical with what would be expected of a
rulemaking process and felt that the opportunity to participate
was adequate for our purposes and believe that the rule should
go forward as currently proposed.
Senator Sullivan. OK. Let me turn to the impact on small
entities. I read the rule. I read the SBA's--Obama
administration's SBA's concerns. President Wrigley, Ms.
Crockett, Mr. McKinnon, a lot of your members represent not
huge organizations, but placer miners, small farmers, small
contractors. Could you describe what you think is the impact on
particularly small businesses, small farmers that I think is so
often overlooked as really the backbone of our economy here in
Alaska and throughout the Country.
Ms. Crockett. I'll go first. Thank you, Senator Sullivan.
As you mentioned, I'm the representative on the panel here that
represents placer miners and I can tell you that my very small
placer mining operations that I represent, they're very scared.
I do want to point out, at the end of 2014, AMA published a
research survey we did with the McDowell Group here in Alaska
to figure out what the economic impact of placer mining in the
State of Alaska is. And we found out, and what we term it is,
is that it's our seventh large mine in Alaska, meaning with all
of the placer mines in Alaska, the job numbers, the economic
procurement numbers, the revenues to local, State, and Federal
Governments, is as much as one large operating mine, yet these
are really small projects and very small parcels of acreage
with real small amounts of employees.
I bring this up because a proposal like the waters of the
U.S. proposal, these guys have been operating on their land,
many of them, for three or four decades and they understand it
better than nobody else, and they understand their permits and
they understand specifically what every piece of land on their
property--what permits go about it and how to work it and how
to manage it in responsibility to the environment. So when a
change like this comes along and they have a water body that
for--whether it's the intent of the EPA or not the intent of
the EPA, because this rule is so confusing, may become
jurisdictional. Now they're entering into the realm of what Mr.
MacKinnon described to you as wetlands mitigation. So now they
have a body of water that they could be required to pay, like
Mr. MacKinnon said, it used to be $11,000 an acre, now it could
be up to $55,000 an acre for a very small placer mining
operation in which very often is one or two, almost always no
more than ten employees. Fifty-five thousand dollars an acre
for a small business like that will absolutely put them out of
business.
I don't think it's fair to say that we are claiming the sky
is falling. The sky will fall for an operation like that if
they have to start paying amounts on that, on a body of water
on their property that they've been managing and treating and
doing the right way for several decades.
Senator Sullivan. Thank you. Mr. MacKinnon.
Mr. MacKinnon. Senator Sullivan, I'll touch a little bit
more on the mitigation aspect of it. You know, it goes by a
number of different terms. Formally, it is mitigation and the
fees can be quite onerous, relative to the size of the project.
Mitigation dollars are intended to be spent to restore or
enhanced damaged or impacted wetlands within the same region,
preferably watershed of where the proposed wetlands would be
impacted. And it's very difficult to do in Alaska because we
have such vast undeveloped acreage. When you want to develop in
one particular area, there may be nothing nearby to mitigate.
We've got situations right now that I've been told about where
projects that are desired to go forward, going through the
permitting process cannot find mitigation projects in order to
offset. So we've got stalled projects, according to the rule.
This guidance--you know, we've got a difference of opinion.
Some say it isn't an expansion and some say it is. I think,
unfortunately, time will only tell as the expansion of the
Clean Water Act has happened. You know, we're adding more
acreage in there to potentially be mitigated and we're
potentially shutting down a tremendous amount of development,
of resource extraction, of jobs, of future. And I know Austin,
to the left of me, wants his son to grow up here and enjoy the
fish and game and I think everyone does want their children to
grow up and have a good employment, fish and game, and the
great outdoors, and no one wants to ruin that, but unless we
have an economy to build upon, that's not going to happen.
Senator Sullivan. And who makes the--you talked about the
increase in the mitigation per acreage from--what did you say,
$10,000 to about----
Mr. MacKinnon. Ten thousand--again, it depends on the value
of the wetlands.
Senator Sullivan. Right.
Mr. MacKinnon. There are high-value wetlands, lower-value
wetlands, but there is a sum attached to each one of those.
That comes from the Corps of Engineers through consultation.
Senator Sullivan. And they just do that--I mean, I've seen
the numbers grow. They're just making--they just have the
discretion to say, heh, here it's 10,000, over here it's going
to be 100,000. Good luck. I mean, is that what happens?
Mr. MacKinnon. You know, they're the permitting agency. You
don't have much opportunity or leg to stand on and argue
against them. If they say the mitigation fee is $55,000 an
acre, it's either pay up if you want to construct or go away.
Senator Sullivan. Just from my perspective, I think that's
something that needs a lot more congressional oversight because
in my experience in Alaska, it seems completely random and
prohibitive in terms of some of the value that they've put on
some of these projects that essentially make them uneconomic.
Mr. Wrigley, do you want to comment at all with regard to
the cost to the small farmer? I know that the National Farm
Bureau, in addition to the Alaska Farm Bureau, is very
concerned about this rule.
Mr. Wrigley. Yes, thank you. Yes, I think of my operation.
I've got a--and for the other members of your committee that
probably have never been outside a city, I have a field that's
2 miles long, about a quarter-mile wide, so basically the size
of the Washington Mall. So if you can picture that. Now, this
field is not flat. It's got low undulating terrain that bisects
that field on a diagonal. So every--you've got high spots and
then you've got low spots, and then high spots and low spots.
During the wintertime, it obviously gets cold here, the
ground freezes, and then when summertime comes or springtime
comes, then the snow melts and it runs to the low spots. So the
top, the high ground is free of snow and thaws out while the
bottom ground is covered with snow and then ice and water and
until that frost goes out of the ground, that area is wet. Now,
because the ground is not flat, then this water that has melted
and accumulated in these low spots, drifts toward the
downstream side.
Two weeks later it's completely dry. I can farm it up and
down, up and down, up and down. According to this rule, those
low spots, and there's half a dozen of them in this field, I
could not farm those low spots even though they're dry, I could
not farm through those low spots unless I had a dredge and fill
permit because, while we talk about the exemptions to
agriculture that are within the Clean Water Act, in order to
apply those exemptions, you have to have been farming that area
continuously since 1977. Now, that area was cleared for
agriculture in 1979 and 1980 and 1981, and so none of that area
is even eligible for it. And the new ground that gets broken
would also require a dredge and fill permit.
So what is the cost of those permits? If you make a mistake
and don't get the right permit, then it's $37,500 a day. A day.
And so how can a small farmer or small business afford those
kinds of things? There's no way. And so what you're going to
have is large, large corporations who can afford to hire
somebody and chase these permits and make sure that the
reporting is done, because getting the permit is only part of
the process; you still have to report on it. And so the
permitting and chasing these permits and reporting on that can
be done by somebody who can do this for a large corporation
because he can afford to do that. And that's going to result
in--98 percent of our farmers in America are still family
farms. That's going to completely change the dynamics of those
numbers.
So I think that it's very clear that--again, I--and I state
again, this rule has nothing to do with the Clean Water Act.
The Clean Water Act is in place. We're not debating whether to
drop it or throw it out or anything like that. We're just
talking about Federal overreach because we're not just talking
about the waters that EPA controls, we're talking about the
land underneath those waters.
And so my field becomes land underneath those waters. Even
though there's no water on it, that comes under the
jurisdiction of the EPA now, or Army Corps.
Senator Sullivan. And we know that if that were the case,
it would take some time just to be able to apply for and get
the permits.
Mr. Wrigley. Yes, and there is no schedule as far as how
long they can take to get those permits. You apply for a
permit. What if you had--suddenly had a grasshopper infestation
and now you need to apply a pesticide to kill the grasshoppers
before they destroy your crop? How long does that take to get
that permit? Because over a wetland you would not only need
dredge and fill permits to do normal farming activities, put a
fence in, pull weeds, all of this stuff is required for dredge
and fill permits, but now you need a discharge permit to be
able to kill the grasshoppers. And how long is that going to
take? Your crop is gone before you can get that permit process
through.
Senator Sullivan. Let me follow up on a--oh, go ahead, Mr.
Carroll.
Mr. Carroll. I just want to add since we're talking about
small businesses that I think it's important for the record to
note that every fishing vessel is quite literally a small
business.
Senator Sullivan. I couldn't agree more.
Mr. Carroll. They're all LLCs. And, you know, mitigation
serves a purpose and while I can't speak to the difficulty of
obtaining mitigation land in this State, I will say that
fishermen will suffer if wetlands are not covered under this
protection, and they will go out of business. I've seen it
other States where I've lived. Those coastal communities shut
down and people from out of State move in and those coastal
communities change a lot in character.
So these are small businesses that are adversely affected
by, you know, an effort to repeal this proposed rule.
Senator Sullivan. Well, trust me, there is an EPA reg right
now that I'm trying to get excepted permanently. You're
probably quite aware of it--we're making some good progress--
that is directly impacting small businesses in the form of our
fishermen, which is the discharge permit required for decks.
Literally, hosing off the fish guts off your vessel after
you're fishing.
Mr. Carroll. Right.
Senator Sullivan. Lunacy, in my view, that's killing our
small fishermen.
Mr. Carroll. Yes, and I----
Senator Sullivan. And, by the way, we're making very good
progress on getting rid of that one hopefully forever. So I
certainly--you make a very good point. Our fishermen and women
are classic--the definition of small businesses. They take
risks, they create a great product, which is Alaska seafood,
and they often pass on their businesses to their kids and
grandkids. In my experience, they're impacted by EPA
regulations in a negative way almost more than anybody, even
our miners. So I certainly recognize that. It's a good point.
Let me just ask an issue that's related that I--it's
actually one of the critical issues. We have a lot of lawyers
on the panel. There's a big debate here. Is this an expansion
of the EPA's jurisdiction under the Clean Water Act or not? If
it is, if it's a major expansion, it is clear, it is clear,
it's abundantly clear that the power to dramatically expand the
jurisdiction of the Clean Water Act does not reside with the
EPA. It resides with the Congress of the United States.
I was, as Alaska's attorney general, part of a lawsuit that
went to the Supreme Court last year. It was a similar case in
many ways. It was the EPA's rulemaking under the Clean Air Act,
and they had promulgated a rule that would have negatively
impacted the State of Alaska dramatically under the Clean Air
Act and the Supreme Court reprimanded the EPA and essentially
said, if you don't have--if you're expanding the jurisdiction
of the Clean Air Act, you have to go to Congress to get
permission to do that. You can't do that through a rulemaking.
And they had some very strong language with regard to the EPA's
overreach, saying it's a violation of the separation of powers.
So let me get to that issue. It's the critical issue. Right
now the EPA is saying, no, no, no, this is not an expansion;
this is a limitation, this is a clarification. And yet I think
some of the testimony here believes that this is a massive
expansion of the jurisdiction of the Clean Water Act.
Mr. Wrigley, your testimony just now in terms of what it
would do to a family farm in Alaska certainly is powerful
evidence that this is an expansion. Would anyone like to
comment one way or the other? If it is an expansion, they have
to go to Congress to get that permission, period. Which is why
I think the administrator of the EPA is kind of playing a
little bit footloose and fancy free with her depiction of what
this rule would do by saying, no, it's a clarification, it's a
limitation on us. I personally don't believe that, but I'd like
any of the witnesses to opine either with regard to whether
they see this as an expansion or--that's the critical issue
that we're looking at. Mr. Williams. Oh, I'm sorry, Ms. Taylor,
go ahead.
Ms. Taylor. I'm going to say that it's such an expansion if
you look at what would be jurisdictional under the rule that I
don't even think Congress could authorize the extent of that
jurisdiction if they asked.
Senator Sullivan. Meaning it would violate the
Constitution?
Ms. Taylor. That's correct. Yes.
Senator Sullivan. So you think it's not only within the
realm of the EPA's because they're a--remember, they're a
Federal agency that has to get its authority from Congress. You
think it would be beyond the power of Congress even to expand
it this far? What would--that would violate----
Ms. Taylor. That would violate the commerce clause of the
U.S. Constitution. It would be too attenuated from a connection
to interstate commerce because you'd be regulating very solely
intrastate things that are under the sovereign power of the
States.
Senator Sullivan. Thank you. Anyone else? Mr. Wrigley. Mr.
Williams.
Mr. Williams. Yes, Mr. Chairman. I do not believe that the
proposed rule is an expansion of jurisdictional reach of the
Clean Water Act. In fact, as the Congressional Research Service
report on the proposed rule shows, the proposed rule would
bring into its scope 3 percent more area than the 2008
guidance. But as compared to the reach of the Clean Water Act
prior to the Supreme Court cases in 2001 and 2006, the proposed
rule would affect 5 percent less wetlands than were originally
under jurisdiction of the Clean Water Act.
And I think it's important to also look at some of the
Congressional Record that we have relating to when the Clean
Water Act was initially passed and when the amendments of 1977
were considered. In particular--and I highlighted and
referenced these in my written testimony, but if I may I'd like
to read a short quote from Republican Senator Baker from the
1977 deliberations. ``A fundamental element of the water act is
broad jurisdiction over water for pollution control purposes.
It is important to understand that toxic substances threaten
the aquatic environment when discharged into small streams or
into major waterways. Similarly, pollutants are available to
degrade water and attendant biota when discharged into marshes
and swamps, both below and above the mean and ordinary high
water marks. The once seemingly separable types of aquatic
systems are, we now know, interrelated and interdependent. We
cannot expect to preserve the remaining qualities of our water
resources without providing appropriate protection for the
entire resource.''
And I think it's also, when we're looking at this,
important to remember that in the Rapanos decision, Justice
Kennedy was very careful to describe the significant nexus
requirement that bounds the EPA's and the Corps' jurisdictional
reach on Clean Water Act issues, and to recognize that under
the 2008 guidance, on a case by case basis, the Corps and the
EPA applied the significant nexus test. What's new about the
proposed rule is that there is clarity to the significant nexus
test.
We no longer will have to go through the case by case
determination for waters that have always been under Clean
Water Act jurisdiction and now we only will have to mess with
the complication of a case by case jurisdictional determination
for those waters--the other waters category.
And so this is not an expansion of jurisdiction and, in
fact, it's compared to application of the Clean Water Act prior
to SWANCC and Rapanos; it's restricted by 5 percent.
Senator Sullivan. OK. I appreciate that. I just think for
the record, the Rapanos/Kennedy opinion was a concurring
opinion, so there's not a five justice majority on that test.
And also for the record, the Congressional Research Service
report that you cite states, ``Changes proposed in the proposed
rule would increase the assertive geographic scope of Clean
Water Act jurisdiction, in part, as a result of the agencies
expressly declaring some types of waters categorically
jurisdictional and also by application of new definitions which
give larger regulatory context to some types of waters such as
tributaries.''
So in my view and, more importantly, in the view of the
Congressional Research Service, the rule does expand
jurisdiction. And with regard to the EPA, I think you give them
an inch, they're going to take a mile. And that's my concern.
Mr. Wrigley, do you have a----
Mr. Wrigley. Yes, just a couple of comments with respect to
clarity. Certainly, the rule provides clarity. If you make
everything that rain touches or water touches a wetland, then
there is clarity there. So from that standpoint, the rule does
provide clarity. Is it an expansion? I don't think that there
can be any dissent really, I mean, in all honesty, that it does
expand that. I look at my farm, my field, if I have to leave
those low spots or get a permit for them because they're under
Clean Water Act jurisdiction now, where up until now they had
not been, that's an expansion of that authority. I'm not
required to do it right now.
And as far as the significant nexus requirement, the courts
held that a significant nexus was required and EPA's
interpretation of that was that essentially all waters are
connected, therefore there is a significant nexus that exists.
In my field when that water goes downstream until it's stopped
by a road, which is in existence, and then the frost goes out
and the water melts away, that's a significant nexus; it
actually picks up underground at that point. But that would
require me to have that permit.
So I don't think that there's any way that you can really
state that it's not an expansion because that area is not under
Clean Water Act jurisdiction right now--not under EPA
jurisdiction right now. And we have talked a number of times
about that the current amount of land under jurisdiction at
this time is less than before SWANCC. The fact of the matter is
that those Supreme Court decisions were in--were found to be
there because they were already overstepping their bounds.
That's why they were restricted. That's why they pulled back.
So we can't go back to pre-1977 and say, well, this is what
the traditional interpretation was, because that was clarified
by the court and now we are looking at not just the 3 percent
increase--that's what EPA is saying, that we're going to
increase that amount by 3 percent. In reality, we're talking
about millions and millions and millions of acres across the
Country.
Senator Sullivan. Well, even 3 percent in Alaska is huge.
Let me turn to another final couple of questions. I do want
to--you know, Mr. Carroll, Mr. Williams, Ms. Mauger, you guys
importantly, and I think it is important testimony, you raise
the--you emphasize the importance of our fisheries and I think
everybody in the room can agree on the importance of Alaska's
fisheries. You know, you mentioned they're actually--the
numbers I have seen, they're actually the No. 1 employer in
State of Alaska, more than oil and gas. So incredibly important
for all of us, for our heritage, for recreation, for
livelihood.
But I want to ask you, can we make sure that we protect our
fisheries without the Federal Government being involved in such
a heavy-handed way? You know, the State actually has a--we're
not perfect, certainly, but we have a pretty good record
certainly relative to some of the States that you mentioned,
Maine, Massachusetts, the sustainable fisheries at the Federal
and the State level. Is this the kind of Federal intervention
that we need to make sure our fisheries stay healthy or can we
do this with regard to our own interests? In my view, we're
better at this than anyone in Washington, DC, and you guys are
very involved in this important part of our livelihood and life
in Alaska.
Ms. Mauger. Thank you for the question. With our current
State government budget, I think the answer has to be no; that
Alaska cannot protect its waterways sufficiently and that just
as the Federal Government pays for the vast majority of our
infrastructure and things that make living here possible, I
think we need the benefit of being part of the larger Country
and taking advantage of those resources. And I think personally
that that is what the EPA is bringing to us, is bringing----
Senator Sullivan. But remember the Federal Government is
not paying for this. We're going to pay for this, this
regulation. I don't see the EPA doing anything in terms of
additional expenditures. They're just going to promulgate a reg
that we pay for. So, I don't see the connection to Federal
spending in the rule.
Ms. Mauger. Presently, the vast majority of efforts to
monitor and research our water bodies in the State is from
Clean Water Act money that is passed through to the States. The
Alaska Clean Water Action program is one of the few pots of
money available for monitoring of water quality issues. And in
many cases, there are infractions or lack of permits and
discharges that can only be identified through the efforts of
monitoring and the Federal Government is paying for that kind
of oversight on what is actually getting into our water bodies
through the Nonpoint Source Program.
And so I do think that the Federal Government is an
important player in ensuring that those permits are being
properly instituted and that there are plenty of examples where
discharges are happening and they're only being identified by
people monitoring. So I do think the Federal Government is
playing an important piece in keeping the waters clean.
Senator Sullivan. OK. Mr. Williams.
Mr. Williams. I think some of the points that Ms. Mauger
raised, especially regarding the difficulty--the difficult
financial status of our State budget at the moment, really need
to be given our consideration here. One of the initiatives that
Trout Unlimited has throughout many parts of the Country, but
that is particularly relevant in Alaska, is many of our members
will go out and document the presence and absence of anadromous
fishes and nominate waters to the State's anadromous waters
catalog for--you know, that would then potentially benefit from
our anadromous fish protection laws.
Most recently we submitted a handful of nominations as we
do most years and these are nominations that include scientific
documentation of the presence and absence of anadromous fishes,
typically coho salmon, high in the watershed for spawning,
rearing, or migration that have, in the past, been readily
accepted as viable nominations. This past year, the Alaska Fish
and Game denied our nominations on the grounds that they did
not have the funds to process our nomination requests. These
are waters that are not currently in the Anadromous Waters
Catalog, but that nonetheless have coho salmon spawning,
rearing, or migrating through. These are small headwater areas,
areas that don't necessarily even flow continuously year-round,
but nonetheless have coho juvenile salmon in them.
Senator Sullivan. That are not currently covered by the
Clean Water Act?
Mr. Williams. These are areas that are not currently
protected by our State's anadromous waters laws. If we did not
have protections like those afforded by the Clean Water Act and
we were relying exclusively on State protections, these are
areas that would not be protected under State law, but that
nonetheless contribute significantly to the production of
salmon that support, as you, yourself, indicated, the largest
employer in our State.
So if we want to repeal Clean Water Act protection----
Senator Sullivan. Nobody is talking about doing that, so
that's not----
Mr. Williams. If----
Senator Sullivan. Let's not go there.
Mr. Williams. If we----
Senator Sullivan. That's an area that's a red herring.
Nobody is talking about that.
Mr. Williams. If we are talking about the value or the
potential for the State to provide the same clean water
protective services that the EPA, under the Clean Water Act, or
the Corps under the Clean Water Act do, I think there's a real
problem from a financial standpoint with our State being able
to fund those programs in a way that meaningfully protects our
fisheries.
Senator Sullivan. I just worry that the way this is being
discussed, it's going to make farmers like, you know, Mr.
Wrigley, be the one holding the financial costs, because it
isn't--Mr. MacKinnon?
Mr. MacKinnon. Along the same lines, you know, I remember
statehood, I remember before statehood. I'm probably one of the
oldest ones up on this panel. You know, fisheries under Federal
protection and Federal management were on a downhill trajectory
and it didn't improve until the State took management over and
that was in the late sixties. A number of programs the State
put in place are the result--resulted in the vibrant fisheries
we have today, and at the same time development occurred in
Alaska, absent the Clean Water Act. And fisheries and
development can co-exist, they do co-exist, and the
development, you know, is one of those things that allows the
fisheries to be here because without that development we
wouldn't have shoreside facilities, roads to get to the boat
launch facilities and everything else. They have to co-exist
and they do co-exist.
Senator Sullivan. Listen, I want to end with one final--
you've been very patient. I appreciate it. We've run over our
time.
Ms. Taylor, your opening statement I thought was very
powerful in terms of this idea that--and I'll let you
articulate it because you'll do so way better than I would. But
in some people minds, whether it's senators from the East Coast
or outside environmental groups, that Alaska is some kind of
snow globe, you know, some kind of dream destination that they
can feel great about particularly given that some of these
States with some of their policies over the years certainly
have not done a good job of keeping their water as clean as
ours or their air as clean as ours, or their environment as
pristine as ours. So once they've kind of ruined--well, I
shouldn't go that far, but they look at us as saying we have to
preserve Alaska and nothing can happen. The 10-02 area of ANWR,
several of my colleagues on the other side of the aisle have
written the Secretary of Interior saying, keep it up, lock it
up. That makes them feel good. My view is it hurts us. It hurts
our future. It hurts my kids' future. It hurts your kids'
future.
And can you comment about that, because it is something
that I see, but you stated it so well and I think it's very
important for our fellow Alaskans to hear about that. And I'd
just like to conclude the hearing on kind of what you started
with in regard to those issues. We all certainly want the
cleanest water, the cleanest environment. We live here. We care
more about it than the EPA administrator does, I guarantee you.
But there is this notion to keep us down so they can feel good.
Ms. Taylor. Yes, you put it very well. There is a sense
that, you know, it always comes from people who don't really
understand how we are able to both thrive, survive; that
there's a balancing act that we have to do as Alaskans because
Alaska, it's not a place where we can just massively grow our
own food, it's not a place where--we can hunt and we can fish,
but so long as somebody lets us. You know, there is--I was
talking to--actually, Mayor Brower put it really well, too. I
was talking to a group of people last weekend and I said, you
know, if everybody outside wants us to go back to living in sod
houses and heat it with whale oil and trying to kill our own
food and feed our families, we couldn't do it because there's
not a single way that any of that could happen anymore because
of Federal permitting. We couldn't mine the sod, we couldn't
actually kill the whales, we couldn't go and, you know, kill
enough to feed a family to do it. So we're really kind of stuck
in a situation where, and this is how I usually refer to it,
we're kind of being idealized into powerlessness.
People have this ideation and they want to preserve Alaska,
that they fail to recognize the fact that people live here and
that we live in these communities. And the Alaska National
Interest Lands Conservation Act was a really great opportunity
where everybody got to kind of take a minute and realize this
is what--this how we'll divide up Alaskans, but we will protect
their lifestyle. And you don't see that anymore. You don't see
that anymore at all.
Senator Sullivan. Well, listen, I want to thank all of you.
This is a very informative panel. I want to thank those of you
who attended the hearing today. Please, if you'd like to submit
comments to the committee, we will keep the record open for the
next 10 days to receive any other comments in addition to the
comments from our two panels. And I really appreciate your
interest in this important issue, and we look forward to
hearing more as we move forward on this matter.
Thank you very much. The hearing is hereby adjourned.
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