[Senate Hearing 114-55]
[From the U.S. Government Publishing Office]





                                                         S. Hrg. 114-55

 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 6, 2015--ANCHORAGE, AK

                               __________

  Printed for the use of the Committee on Environment and Public Works

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]




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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

                              ----------                              
                                                                   Page

                             APRIL 6, 2015
                           OPENING STATEMENT

Sullivan, Hon. Dan, U.S. Senator from the State of Alaska........     1

                               WITNESSES

Hale, Michelle, Director, Division of Water, Alaska Department of 
  Environmental Conservation.....................................     3
    Prepared statement...........................................     5
Sweeney, Tara, Executive Vice President, External Affairs, Arctic 
  Slope Regional Corporation.....................................    11
    Prepared statement...........................................    14
Moriarty, Kara, President/CEO, Alaska Oil and Gas Association....    24
    Prepared statement...........................................    26
Rogers, Rick, Executive Director, Resource Development Council 
  for Alaska.....................................................    29
    Prepared statement...........................................    31
Hanson, Rod, Vice President, Alyeska Pipeline Service Company....    35
    Prepared statement...........................................    37
Wasserman, Kathie, Executive Director, Alaska Municipal League...    43
    Prepared statement...........................................    46
Simon, Lorali, Vice President, External Affairs, Usibelli Coal 
  Mine...........................................................    50
    Prepared statement...........................................    52
Troll, Tim, Executive Director, Bristol Bay Heritage Land Trust..    55
    Prepared statement...........................................    57
Kunaknana, Samuel, Tribal President, Native Village of Nuiqsut...    60
    Prepared statement...........................................    62
Litmans, Brian, Senior Staff Attorney, Trustees for Alaska.......    64
    Prepared statement...........................................    66
Richards, Mark, Chairman, Alaska Backcountry Hunters and Anglers.    70
    Prepared statement...........................................    72

                         ADDITIONAL STATEMENTS

November 14, 2014, letter from the Governor of Alaska to the 
  Environmental Protection Agency and the Department of the Army.    85
November 14, 2014, letter from the Alaska Department of 
  Environmental Conservation to the Environmental Protection 
  Agency and the Department of the Army                              87
    Attachment 1--December 16, 2013, oral testimony to SAB panel.   117
    Attachment 2--November 6, 2013, State of Alaska comments on 
      EPA connectivity study.....................................   119
    Attachment 3--October 1, 2014, review by the Small Business 
      Administration's Office of Advocacy regarding the economic 
      impact of the proposed rule on small businesses............   132
    Attachment 4--Image of Alaska superimposed on the contiguous 
      U.S........................................................   141
    Attachment 5--Alaska permafrost map..........................   142
April 4, 2015, statement of the Alaska Association of REALTORS..   143
April 6, 2015, statement of the National Association of REALTORS   145

 
 IMPACTS OF THE PROPOSED WATERS OF THE UNITED STATES RULE ON STATE AND 
                   LOCAL GOVERNMENTS AND STAKEHOLDERS

                              ----------                              


                         MONDAY, APRIL 6, 2015

                               U.S. Senate,
         Committee on Environment and Public Works,
            Subcommittee on Fisheries, Water, and Wildlife,
                                                     Anchorage, AK.

            OPENING STATEMENT OF HON. DAN SULLIVAN, 
             U.S. SENATOR FROM THE STATE OF ALASKA

    Senator Sullivan. Good morning, everybody.
    The Subcommittee on Fisheries, Water, and Wildlife, under 
the Environment and Public Works Committee of the U.S. Senate 
will now come to order.
    I'm Senator Dan Sullivan, junior Senator from Alaska. I 
want to welcome everybody to this important hearing. I also 
want to give you kind of a little bit of an overview of how 
we're going to conduct the hearing today.
    We're going to start--we're actually going to have two 
panels: Michelle Hale, from the State of Alaska, will be 
testifying first; and then we're going to take a quick recess 
and have a much larger panel, of several Alaskans who represent 
different organizations, who will be testifying in the second 
panel.
    I appreciate everybody coming here today, and we will begin 
with my opening statement on the very important issue of the 
impacts of the proposed ``Waters of the U.S.'' rule on State 
and local governments.
    So, good morning, again, and thanks for being here to 
discuss the proposed ``Waters of the U.S.'' rule issued by the 
EPA. I know that some of you have traveled very far to be here. 
We actually have staff from Washington, DC, both majority and 
minority staff on the EPW Committee. I very much appreciate 
everybody coming to this important hearing.
    In Washington, DC, we have held several hearings with the 
EPA administrator, the assistant secretary of the Army, the 
State government representatives and stakeholders on this 
proposed rule.
    This hearing is a continuation of these efforts. It will 
also give voice to a cross section of Alaskans on this rule and 
its possible impacts. And as Alaskans, we are the State that 
certainly will be most impacted by this rule.
    Beyond those testifying today, the subcommittee will hear 
from the Farm Bureau, the Associated General Contractors, the 
Alaska Miners Association, the mayor of the North Slope 
Borough, State Senator Click Bishop, and the Citizens' Advisory 
Commission on Federal Areas in a hearing on Wednesday in 
Fairbanks. They will join three-fifths of the States who have 
now indicated opposition to the proposed rule and more than 300 
trade groups and associations from across the Country.
    I also think it's very important to make sure that as we 
conduct these hearings, it's not just citizens coming to 
Washington, DC, to hear concerns and address their concerns but 
Washington, DC, coming to the States. And that's what we're 
trying to do today with this field hearing.
    Alaska's 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 important, significant 
expansions of Federal jurisdiction we have seen to date in 
Alaska.
    Unlike most of the Federal overreach that has impacted 
Alaska, the tentacles of the Clean Water Act extend far beyond 
simply Federal lands, and it would impact the ability of States 
and private landowners to use their land.
    Already a huge percentage of Alaska falls under Federal 
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.
    Let me be clear: There is no doubt that many of these lakes 
and rivers, such as the Yukon, Susitna and other tributaries, 
are jurisdictional under the Clean Water Act. No one is 
suggesting otherwise; instead, we're here to talk about the 
regulations of waters that Congress never intended to be 
jurisdictional.
    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, with regard to 
the ``Waters of the U.S.,'' are not at all aimed at 
jeopardizing these characteristics that are fundamental to the 
identity of Alaska; instead, our efforts are about clarifying 
jurisdiction and pushing back on Federal agencies that are 
asserting authority over even more features, such as roadside 
ditches, culverts, stormwater systems, isolated ponds and 
activities on adjacent lands, bypassing Congress, and ducking 
Supreme Court rulings.
    Regardless of this rule, discharges of pollutants into 
these features would remain subject to Clean Water Act 
regulation. However, 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 dig ditches 
even in their own back yard. It would mean that a farmer might 
have to get a permit to plow new land. It would mean that 
harbors, roads, weed and pesticide control, and certainly 
natural resource development, would fall under even more 
extensive Federal permitting processes, effectively granting 
the EPA 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 half an acre that happened to be 
near a lake. The EPA determined that their property was a 
wetland and forced them to stop development and rehabilitate 
the property to its natural state or face fines of $75,000 a 
day. With this rulemaking, more landowners across the U.S. 
would be subjected to similar treatment.
    Just a couple weeks ago, the Senate passed, by 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 step as 
we craft legislation to ensure that the Clean Water Act is 
focused on maintaining water quality. We sent a strong message 
through the Senate that the Clean Water Act should not be 
transformed into a tool to expand the authority of the EPA and 
control entirely unrelated activities.
    Thank you again for being here. We have several witnesses, 
who will be presenting on both sides of this issue. We want to 
hear all views here today in Alaska.
    And I want to ask our first witness, Michelle Hale, 
Director of the Division of Water at the Department of 
Environmental Conservation for the State of Alaska, to please 
take the stand on the witness dais and present her testimony.
    Miss Hale.

STATEMENT OF MICHELLE HALE, DIRECTOR, DIVISION OF WATER, ALASKA 
            DEPARTMENT OF ENVIRONMENTAL CONSERVATION

    Ms. Hale. Good morning. My name is Michelle Hale, and I'm 
Director of the Division of Water of the Alaska Department of 
Environmental Conservation. My commissioner, Larry Hartig, was 
supposed to have been here, but he was needed down in Juneau 
today. There's a lot going on down in Juneau.
    The State of Alaska has submitted comments to the U.S. EPA 
and the Army Corps of Engineers, and I've submitted those 
comments for the record, as well.
    So the State of Alaska believes that the ``Waters of the 
U.S.'' rule will lead to a significantly larger number of 
waters and wetlands that are subject to Federal jurisdiction 
that will be considered ``jurisdictional'' and will require 
permits for development and also require expensive compensatory 
mitigation.
    The high costs are already borne by all permittees, and 
they'll be higher once this rule goes into effect, we believe. 
That's our understanding of the rule.
    Currently the Army Corps of Engineers takes about 6 months 
to issue a standard dredge and fill permit. For larger 
projects, that can be many years. So, in addition to high costs 
and permitting and compensatory mitigation, often those costs 
include missing entire seasons of development opportunity. That 
will continue under the rule and become worse.
    As you said, Senator Sullivan, Alaska has more coastline 
than all the other States, all the other lower 48 States 
combined. Alaska has more than 3 million lakes and more than 
15,000 streams that support anadromous fish. We also have 
somewhere between 130 million and 170 million acres of the 
wetlands, as you say. More than a third, close to a half of the 
State is wet, and that's, again, more wetlands than all the 
other States combined.
    This information just demonstrates that Alaska has more at 
stake for this rulemaking. This rulemaking has more potential 
impacts on Alaska than any other State. Yet, the published 
``Waters of the U.S.'' rule was based on a Connectivity Study; 
a draft Connectivity Study that made only glancing reference to 
Alaska, contained no reference to permafrost, no reference to 
tundra.
    We commented significantly on that report, and in the final 
report they did make more references to Alaska, but 
astonishingly, as we're all accustomed to the maps in the 
report, eliminated both Alaska and Hawaii. We're not even 
included in any of the maps in that draft--in that final 
connectivity report.
    EPA and the Corps failed to adequately consult with the 
States in the development of the rulemaking and the process for 
the development of that rulemaking is flawed. The published 
rule was published before the Connectivity Study was final. So, 
before any of that information about Alaska was able to make it 
into the rule, it was used to support the draft rulemaking.
    Interestingly, I'll use the national Office of Management 
and Budget's own words and quote that ``when an information 
product, like the Connectivity Study, is a critical component 
of lawmaking, it is important to obtain peer review before the 
agency announces its regulatory options, so that any technical 
corrections can be made before the agency becomes invested in a 
specific approach and the positions of interest groups have 
hardened.''
    We have commented at every opportunity on both the 
Connectivity Study and the rulemaking. We commented on the 
Connectivity Study, we sent somebody to Washington, DC, to 
testify orally before the Science Advisory Board, we have 
commented on the draft rulemaking, and our comments seem like 
they're falling on deaf ears. We're not hearing anything in 
response to those comments.
    The rule doesn't account for regional differences and it 
doesn't seem to account for any of the uniqueness of Alaska. It 
might be EPA's intent to finalize the ``Waters of U.S.'' rule 
and then attempt to implement it in ways that will work in 
Alaska, but this is unacceptable for us. If that happened, 
there would have to be Alaska-specific guidance, and that 
guidance would have to go through some kind of a public 
process. That public process would have to take into account 
Alaska's concerns. However, the EPA's and the Corps' track 
record on this is not very good. They don't seem to have been 
good at taking those concerns into account.
    We have long protected our waters under statutory and 
regulatory authority. We've got more authority than the Federal 
Government has now to protect our waters. We don't believe 
there's any need to expand the Corps' and EPA's regulatory 
reach by increasing the numbers of waters that they regulate.
    Thank you.
    [The prepared statement of Ms. Hale follows:]
 
 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Sullivan. Thank you, Ms. Hale. And I really 
appreciate you coming and testifying before the Committee 
today. I think it's very important for Alaskans to hear exactly 
what the State of Alaska's view is on this rule.
    So let me just: More specifically, did we, in our specific 
comments to the EPA, did we propose that they withdraw the rule 
and start over?
    Ms. Hale. Yes, that's one of the proposals. And we've also 
made a lot of comments specifically about components of the 
rule, as well.
    Senator Sullivan. And do you think that--so were there any 
State officials involved in actually drafting the proposals?
    Ms. Hale. No. There was what's called a ``federalism 
consulting process'' that EPA and the Corps kicked off in 2011, 
and that process lasted for a little more than a month. And it 
was supposed to be this process where States were involved in 
the development of the rule. But I participated in that and I 
found that it was more EPA and the Corps talking and States 
listening, and I did not find an opportunity for Alaska to 
actually provide our Alaska-specific comments and issues at 
that stage.
    Senator Sullivan. So, and just for the record, I want it to 
be clear that Alaska has opposed the rule and asked for its 
withdrawal and is one of 34 States in the United States that is 
opposing the rule.
    Are you familiar with what some of the other States' 
concerns are?
    Ms. Hale. We've worked a lot with multi-State agencies and 
organizations, and a lot of the issues that we have are echoed 
throughout many States, particularly western States.
    Senator Sullivan. And with regard to the Clean Water Act, I 
want to read a section that is very important.
    Section 101(b) clearly states, ``It is the policy of the 
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 
(including restoration, preservation, and enhancement) of land 
and water resources, and to consult with the Administrator''--
of the EPA--``in the exercise of his''--or her--``authority 
under this chapter.''
    Why do you think the sovereign State of Alaska was not 
treated as a critical contributor to the rulemaking, 
particularly during the public comment section; and, as you 
mentioned, importantly, the study, on which the rule was based, 
was promulgated to the public after the rule was issued? Could 
you address those two questions?
    Ms. Hale. It's been our experience that the Federal 
Government thinks that they know how to regulate better than 
the State governments, and that probably answers the first 
question as well as I can. I don't remember the exact sequence 
of events, but I think that the way it worked was that a draft 
of the rulemaking was leaked, but that draft was leaked--and 
that was a complete draft--before that Connectivity Study was 
out. So there is some kind of sequence of events, but the 
rulemaking was intact before the Connectivity Study was 
released.
    Senator Sullivan. But the rule itself is based on the 
Connectivity Study, correct?
    Ms. Hale. Yes. It does seem to be a bit of a ``cart before 
the horse,'' Senator Sullivan.
    Senator Sullivan. So, again, just so everybody's clear, for 
the record: The Connectivity Study, upon which the rule is 
based, came out several months after the rule was proposed, 
correct?
    Ms. Hale. It was finalized after the rule was proposed. The 
Connectivity Study--and again, I don't have the sequence of 
events, and I'll get back to you with that. But a draft of the 
rulemaking was leaked, I believe, before the final, or before 
the draft Connectivity Study was released. But again, I'll get 
back with you on the sequence of dates there.
    Senator Sullivan. Great. Thank you.
    And do you think that this rule, the way it was 
promulgated, the jurisdictional reach of it, do you think 
that--and the process, which I think is important for Alaskans 
to understand how it was promulgated, do you think that this is 
consistent with the spirit of the Clean Water Act provision 
that I read, Section 101(b), that talks about the policy of the 
Congress is to protect the primary responsibilities and rights 
of the States to manage Clean Water?
    Ms. Hale. Our experience with EPA, in particular, 
especially at the headquarters level, is that this rarely 
happens, that they actually meaningfully consult with the 
States. We have a different relationship with our Region 10 
counterparts----
    Senator Sullivan. Right.
    Ms. Hale [continuing]. Our EPA Region 10 counterparts in 
Seattle. We're often--when national rulemakings don't work in 
Alaska, they work closely with us. They recognize the 
uniqueness of the State. We rarely find that with headquarters 
rules.
    Senator Sullivan. So one of the things that the EPA 
administrator and other officials in Washington, as you 
mentioned, have stated about this rule is that it's not 
intended to expand the jurisdictional reach of the EPA's 
authority under the Waters of the Clean Air Act, it's simply 
meant to clarify existing law.
    Do you see this as a significant expansion of the EPA's 
jurisdictional authorities over waters in Alaska?
    Ms. Hale. Senator Sullivan, as written, we are very 
concerned that it will lead to expansion of jurisdiction, yes.
    Senator Sullivan. So I think that it's important for the 
record to indicate that your views are similar to the views of 
the Congressional Research Service, which in a report on March 
27th, 2014, did say that this proposed rule would ``increase 
the asserted geographic scope of Clean Water Act 
jurisdictions.'' And it goes into a whole host of areas where 
this would happen.
    So, even the State of Alaska, but even the Congressional 
Research Service seems to be at odds with the administrator of 
the EPA and EPA officials, who have stated on the record, 
before this committee, that this rule does not seek or will not 
expand the jurisdiction of the ``Waters of the U.S.'' But the 
State of Alaska believes otherwise; is that correct?
    Ms. Hale. Senator, that is correct, yes.
    Senator Sullivan. So I also want to talk just briefly, Ms. 
Hale. I know that Commissioner Hartig was going to be here 
originally, and again, I appreciate DEC testifying on this 
important issue.
    As you know, Commissioner Hartig is certainly one of the 
most impressive, in my view, public servants in the State of 
Alaska, having now served consistently as the commissioner of 
DEC for over three different administrations in the State of 
Alaska.
    And there was a case that Commissioner Hartig and I worked 
on, when we were both in State government. It ended up going 
all the way to the U.S. Supreme Court. It was called Utility 
Air Regulator Group v. EPA. It was about another EPA rule that 
dealt with the Clean Air Act in the State of Alaska, similar to 
this rule. We challenged that rule, because we thought that the 
EPA didn't have the authority to issue that rule.
    That case went all the way to the U.S. Supreme Court, and 
in a decision last year, the Supreme Court reprimanded the EPA 
for exceeding its authority as an agency and actually ignoring 
the separation of powers, because it was undertaking authority 
that was the realm of the Congress, not a Federal agency.
    I want to just briefly read what the Supreme Court stated 
with regard to that rule. They stated, ``The rule,''--in that 
case, a Clean Air regulation--``would place plainly excessive 
demands on limited government resources, and that is alone a 
good reason for rejecting it; but that is not the only reason. 
The EPA's interpretation is also unreasonable because it would 
bring about an enormous and transformative expansion in EPA's 
regulatory authority without clear congressional authorization. 
When an agency claims to discover in a long-extant statute an 
unheralded power to regulate `a significant portion of the 
American economy,' ``we''--the Supreme Court--``typically greet 
its announcement with a measure of skepticism. We expect 
Congress to speak clearly if it wishes to assign to an agency 
decisions of vast `economic and political significance.' ''
    Do you think that this rule would have significant economic 
impact on business interests or other interests, local 
communities, the State of Alaska; do you think it would have 
significant economic impact over such entities in the State of 
Alaska if this rule was promulgated?
    Ms. Hale. Senator Sullivan, that is our read of the rule as 
it is proposed. We think that it could have impact on 
individuals, on corporations, on municipalities, on the State 
of Alaska, who, incidentally, the Department of Transportation, 
has the largest number of 404 permits and is thus affected by 
jurisdiction rules more than anyone, and we think that it would 
have--as written, we believe it would have an impact on the 
economy of the State of Alaska.
    Senator Sullivan. So my view is, particularly given what 
you're talking about, that despite having had the Supreme Court 
just a year ago reprimand the EPA for taking over with regard 
to regulatory authority that they did not have, because there 
was not a clear instance of the Congress granting them that 
authority, that they're ignoring the Supreme Court, who issued 
this very important ruling just a year ago, that the State of 
Alaska was very involved with, and they're doing it again: 
They're issuing a regulation that has significant impact over 
the economy of the United States, the economy of Alaska, 
without congressional authorization.
    Do you agree that that's what they're attempting to do with 
this rule?
    Ms. Hale. Senator, I'm not an attorney, so I can't really 
speak from a legal point of view. I certainly agree that, as 
written and as proposed, the rule did seem like it would expand 
jurisdiction significantly.
    I can get back to you, consult with my supervisors and with 
the commissioner and get back to you.
    Senator Sullivan. Great. Thank you very much.
    So, Ms. Hale, let me ask one other quick question: What can 
be done, now that the rule has been released, to ensure 
sufficient consultation with the States, that that consultation 
is taken seriously? It sounds like this is a pattern that the 
State of Alaska has been objecting to literally for years, and 
yet, we do not seem to get the consultation that is required 
and mandated from the statutes. What do you think can be done? 
And obviously, the State wants this rule to be withdrawn and to 
start over, but what else? Do you have any other suggestions 
with regard to what Congress can do in this regard?
    Ms. Hale. Senator, I'm not certain exactly what Congress 
can do. I think we need to leave that to you. However, EPA and 
the Corps could restart and sit down and meaningfully discuss 
the Alaska-specific issues, really talk about what this kind of 
permitting means relative to permafrost and relative to tundra 
and relative to the state that we've got. They could 
meaningfully sit down, start over and sit down with us and 
actually consult with us so that we could come up with some 
kind of a joint way of addressing the questions that are raised 
by those Supreme Court decisions. They could also just exempt 
Alaska from the rule.
    Senator Sullivan. Great. And let me ask one final question.
    You talked about consultation, you talked about the 
process, the frustration the State of Alaska has had with 
regard to the EPA on this and other issues. There's many of us 
who believe that this rulemaking process was a clear example of 
Executive Order 13132, a very important executive order called 
the federalism executive order, that was not abided by in this 
process.
    Let me give you a quote, and for the record, what portions 
of that federalism executive order state. ``When undertaking to 
formulate and implement policies that have federalism 
implications, agencies shall''--Federal agencies shall--``in 
determining whether to establish uniform national standards, 
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.''
    Do you believe that the EPA clearly abided by this 
federalism executive order, which they are required to do?
    Ms. Hale. Senator, I can't speak to the exact letter of the 
law, but I can speak to the process that occurred. And I do not 
believe that the State of Alaska was meaningfully involved in 
the development of that rule and even the decision to make that 
rule, to develop that rule.
    Senator Sullivan. Great.
    Ms. Hale. We did not have an opportunity.
    Senator Sullivan. Thank you for your outstanding testimony.
    Please give my regards to Commissioner Hartig and the other 
members of DEC. You are doing great work for the State of 
Alaska.
    I try to remind the EPA, the administrator and other senior 
members of the EPA in Washington, DC, that Alaskans love our 
environment. We care more about having a clean environment, 
clean water, pristine environment, than any Federal bureaucrat 
in Washington, DC, and I think DEC does a great job in 
representing the State. So I appreciate your testimony.
    We are going to recess for a short 5 minutes, and we're 
going to call the next panelists to come to the dais for your 
testimony.
    Thank you, Ms. Hale.
    Ms. Hale. Thank you.
    [Recess.]
    Senator Sullivan. We are going to resume the hearing, and 
if all the witnesses will please have a seat at the dais.
    So I just wanted to give just another quick little update 
here. As you see, we have a fantastic panel of witnesses, and I 
want to welcome all of them. We have witnesses from both sides 
of the debate here with regard to the rule. We certainly want 
to hear all views with regard to the proposed rule.
    We have a setup that's a little unique here. So what we're 
going to do is, we're going to have each witness, when they're 
called, to present their testimony from the dais in front of 
the committee, and then when they're all--all the testimony is 
complete, we will conduct some questions and answers from the 
dais here.
    So, again, I want to thank everybody for coming. You'll 
have 5 minutes. The witnesses will have 5 minutes to read their 
testimony. If there's longer written testimony, we can submit 
that for the record.
    So for the first witness I'd like to have Tara Sweeney, the 
executive vice president for external affairs for ASRC, please 
proceed to the witness stand and present your testimony.

 STATEMENT OF TARA SWEENEY, EXECUTIVE VICE PRESIDENT, EXTERNAL 
           AFFAIRS, ARCTIC SLOPE REGIONAL CORPORATION

    Ms. Sweeney. Chairman Sullivan, good morning. I'm Tara 
Sweeney, Executive Vice President of External Affairs for 
Arctic Slope Regional Corporation or ASRC. ASRC is the Alaska 
Native Corporation created under the terms of the Alaska Native 
Claims Settlement Act of 1971.
    Today I will highlight the main points of my written 
comments, which I have submitted to the Committee. Thank you 
for the opportunity to testify.
    The proposed rule would designate riparian areas as 
jurisdictional waters subject to regulation by the Federal 
Government. The way the proposed rule defines ``riparian 
areas'' makes it applicable to virtually all wetlands in 
Alaska.
    The size of the State of Texas is about 172 million acres. 
However, we have more wetlands in Alaska than the size of the 
entire State of Texas. According to Fish and Wildlife, Alaska 
is 403 million acres, with almost 174 million acres of 
wetlands, or 43.3 percent of Alaska's surface area compared to 
only 5.2 percent of wetland surface area in the Lower 48.
    Their proposed rule creates the very real risk that any 
development, with at least 43 percent of Alaska, would 
immediately fall within the Clean Water Act, Section 404 
jurisdiction, for permits to dredge, and the Clean Water Act, 
Section 402 jurisdiction, for discharge pollutants.
    Closer to home, the Arctic Foothills and the Coastal Plain 
are two areas that roughly correspond with the area and the 
jurisdiction of the North Slope Borough. Fish and Wildlife 
calculates that 46.9 million acres of these areas are wetlands. 
That's 83.1 percent of the lands that lie within the boundaries 
of the North Slope Borough. Only a small fraction of these are 
traditional navigable waters that would have been subject to 
regulation prior to the proposed rule.
    There are over 2 million acres of lakes on the North Slope 
larger than 50 acres. There are another over 250,000 acres of 
rivers. Not all of these larger lakes and rivers are 
traditional navigable waters, but their total acreage, 2.7 
million acres, represents the outside limit that would 
conceivably--that could conceivably be regarded as traditional 
navigable waters.
    The proposed rule expands the area of the federally 
regulated waters within the North Slope from approximately 2.7 
million acres to almost 47 million acres. This rule has the 
potential to multiply the area of federally regulated waters on 
the North Slope more than 1600 percent.
    The scope of the rule on Alaska Natives: The U.S. Fish and 
Wildlife Study of Alaska Wetlands calculates that 19.6 million 
acres of the lands owned by Alaska Natives are wetlands, 
representing 44.5 percent of their ANCSA land entitlement, and 
are now at risk to become jurisdictional wetlands, which means 
that the burden on private landowners is severe. Those lands 
are privately owned by Alaska Natives who received them from 
the United States when the Federal Government abolished Alaska 
Native rights to claim land; and further mandated the use of 
those lands and other corporate assets to facilitate the self-
determination, economic development and future prosperity of 
Alaska Native people.
    This rule is in direct conflict with the congressional 
mandate handed down through ANCSA and threatens the viability 
of Alaska Native corporations to provide meaningful benefits to 
its members, its Alaska Native shareholders.
    The proposed rule does not take into account Alaska's 
unique geography, and population into account. It creates no 
exception for any material portion of the wetlands in Alaska, 
yet, provides many exceptions for other uses, like agriculture. 
Alaskan waters are unusual in many respects, and that may make 
them unsuitable for this broad assertion of jurisdiction.
    Many of Alaska's wetlands are frozen for 9 months out of 
the year and lie on top of a layer of permafrost. Unlike 
wetlands in temperate zones, Arctic wetlands, lying above 
thousands of feet of permafrost, are not connected to aquifers 
subject to waterflow. Because water on top of permafrost 
travels across the frozen tundra surface in sheet flow, these 
wetlands provide little function in controlling runoff. The 
proposed rule reflects no consideration for any of these unique 
aspects of Alaskan wetlands. Indeed, neither the word 
``tundra'' nor the word ``permafrost'' appears anywhere in the 
88 pages of the proposed rule.
    The population of Alaska's remote regions is particularly 
dependent on resource development, which is jeopardized by the 
proposed rule. In our region the only durable economic 
development is resource development. No other use of land 
provides the necessary funding that translates into educational 
and employment opportunities, infrastructures such as sewer 
systems, fire and police protection. Shutting down development 
will breed a cycle of displacement, which is antithetical to 
the purpose of the Alaska Native Claims Settlement Act and to 
this administration's commitment to ensuring a bright future 
for Alaska Native youth.
    In conclusion, ASRC believes that the proposed rule, in its 
current form, will impose enormous burdens on Alaska Natives, 
ASRC, our shareholders, and all residents of the North Slope, 
without any correlative benefit to the environment.
    When the Federal Government proposes changes to established 
rules and regulations that it believes will help protect and 
conserve natural elements for the future enjoyment of all 
people, they, in fact, adversely affect the lives of those 
people who actually live in those areas and depend on those 
resources. This is particularly true in the North Slope region 
of Alaska, where a long history of subsistence overlaps with 
the legal imperative to allow development within the region for 
the benefit of our shareholders. Both elements define who we 
are as Inupiat people and are important to the long-term 
success of ASRC.
    Further research and consideration may show that an 
exemption for permafrost is warranted. In addition, the Federal 
Government needs to provide additional clarification on the 
lands as to which areas within Alaska will be classified as 
jurisdictional waters. Regardless, because so many millions of 
acres of Alaska lands are potentially affected, the Agencies 
should specify how they intend to guarantee exemptions for 
private Alaska Native landowners, like Alaska Native 
corporations, and for the State of Alaska.
    Thank you for the opportunity to provide comments.
    [The prepared statement of Ms. Sweeney follows:]
    
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    Senator Sullivan. Thank you very much, Ms. Sweeney. That 
was very powerful testimony. Particularly the conflict with 
ANCSA, that's something I'd like to explore in some of the Q&A, 
if we have the time.
    Thank you very much.
    Our next witness will be Kara Moriarty, President/CEO of 
the Alaska Oil and Gas Association.

 STATEMENT OF KARA MORIARTY, PRESIDENT/CEO, ALASKA OIL AND GAS 
                          ASSOCIATION

    Ms. Moriarty. Good morning. My name is Kara Moriarty, and I 
serve as President and CEO of the Alaska Oil and Gas 
Association, commonly referred to as AOGA. We are the 
professional trade association for the industry here in Alaska.
    Thank you for the opportunity, Senator, to testify and 
explain what we view are the negative consequences that will 
inevitably follow if the proposed rule continues down this 
path.
    As context for my testimony, Alaska has 63 percent of the 
Nation's jurisdictional waters and represents 20 percent of the 
U.S. landmass. I cannot emphasize enough that Federal rules of 
the nature proposed by EPA in this instance have a huge and 
disproportionate impact on the Alaskan public, private and 
Native interests, yet, EPA has given no attention and 
attributed no significance of which I'm aware to the unique and 
profound significance of changes in the Clean Water Act 
jurisdiction proposed here in Alaska.
    The rule would serve to dramatically, and we believe 
illegally, expand the Clean Water Act jurisdiction here in the 
State. Enacted in 1972, the Clean Water Act endeavored to 
create a workable partnership between the States and Federal 
agencies to effectively manage identified pollution sources. 
The proposed rule represents an unfortunate revision to an 
agreement Alaskans have long honored.
    The EPA has repeatedly suggested that the rule is intended 
to simply provide ``clarity'' and reduce ``uncertainty.'' 
However, the rule has had just the opposite effect, causing 
members of the regulated community, and others, to have great 
and grave concerns. We believe this rule will result in 
significant regulatory burdens by causing water features, such 
as canals and ditches with only remote and speculative 
hydrological connections to traditionally navigable and 
interstate waters, to become ``jurisdictional'' under the Clean 
Water Act for the first time.
    Despite the EPA's statements to the contrary, the EPA--the 
rule will allow the EPA to exercise authority under the act 
potentially on virtually any water feature with any tentative 
or hypothetical connection, directly or indirectly, to a 
traditionally navigable or interstate water.
    Despite the guidance of the Supreme Court that has said, 
time and time again, that there are limits to Federal 
jurisdiction under the Clean Water Act, the proposed rule will 
extend coverage to many features that are remote and/or carry 
only minor volumes. The proposed rule, read together, serve to 
provide no meaningful limit to Federal jurisdiction. 
Understandably, all Alaskans should be concerned that the EPA's 
proposed rule would allow it to regulate far more bodies of 
waters than it attempted to regulate prior to being rebuked by 
successive Supreme Court decisions.
    Moving past the issues of legality, another primary concern 
remains that the proposed rule will expand regulatory gridlock 
and uncertainty by subjecting even more activities to 
permitting requirements, NEPA analysis, mitigation 
requirements, and citizen lawsuits challenging the applications 
of new terms and provisions. Naturally, these impacts will be 
felt by the entire regulated community, and will result in an 
exponential increase in the costs of projects large and small.
    Nevertheless, the EPA has largely ignored the potential 
adverse effect on economic activity and job creation, by 
relying on its highly flawed economic analysis for the proposed 
rule. Based on the EPA's calculations, the total estimated cost 
ranges from $133 million to $230 million, when, in reality, 
private and public sectors spend approximately $1.7 billion a 
year today to obtain Section 404 permits. It takes over 2 years 
to obtain a 404 permit. It is impossible to understate how 
significantly the proposed rule will affect operations in 
Alaska, through both increased delay and increased costs.
    So, finally, despite the obvious disproportionate and 
adverse effects in Alaska of a dramatic expansion of Clean 
Water Act regulation, the EPA has failed to include adequate 
analysis of how the proposed rule will affect Alaska. The EPA 
should be mandated to consider Alaska's unique circumstances.
    So, Senator, I encourage the committee to consider the 
profound impacts this rule will have on Alaska and its 
citizens. It is an ill-conceived rule that serves only to 
frustrate State sovereignty and local regulations.
    Thank you.
    [The prepared statement of Ms. Moriarty follows:]

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    Senator Sullivan. Thank you, Ms. Moriarty. And thank you, 
again: Powerful testimony, particularly with regard to the 
issue of costs, which I think, again, we should explore a 
little bit more in the Q&A session.
    Our next witness is Rick Rogers, Executive Director of the 
Resource Development Council for Alaska.

    STATEMENT OF RICK ROGERS, EXECUTIVE DIRECTOR, RESOURCE 
                 DEVELOPMENT COUNCIL FOR ALASKA

    Mr. Rogers. Good morning, Senator. Welcome back home.
    For the record, my name is Rick Rogers. I'm Executive 
Director of the Resource Development Council for Alaska. RDC is 
a membership-funded statewide trade association. We represent 
oil and gas, mining, fishery, tourism, and forest industries. 
Our membership is really a broad cross section of Alaska 
businesses and organizations. We include all 12 Alaska regional 
Native corporations, organized labor, utilities, communities, 
and we all share the common vision that resource development is 
vital to the well-being for Alaskans and that responsible 
resource development is essential for our well-being.
    The EPA's proposed ``Waters of the U.S.'' rule will have a 
disproportionate impact on the resource-dependent industries 
and on Alaska's economy as a whole. It's appropriate that this 
field hearing is being held in Alaska, because as other folks 
have already stated, according to the U.S. Fish and Wildlife 
Service, Alaska has 63 percent of the Nation's wetland 
ecosystems, and estimates place the total acreage at 
approximately 130 million acres.
    The rule will have a disproportionate impact on Alaska. 
Before commenting on the specific problems we see with the 
proposed rule, it's important to underscore how classification 
of a wetland as jurisdictional or ``waters of the U.S.'' 
impacts community and resource development projects in Alaska.
    The Federal Government already enjoys a disproportionate 
jurisdiction over land use and economic development in our 
State. Approximately 222 million acres, or about 61 percent of 
Alaska, is already under direct jurisdiction by the Federal 
Government. Much of this is in conservation system units and 
other land designations that are closed to development. So 
Section 404 of the Clean Water Act expands that Federal reach 
to private, Alaska Native corporation, State and municipal 
lands if wetlands are determined to be jurisdictional and 404 
permits are required.
    So, if you look at the cumulative impact of both the vast 
Federal lands, the fact that we have ubiquitous wetlands in our 
State, and an ever-expanding definition of which of those 
wetlands fall under Federal jurisdiction, it means that few 
projects in Alaska are outside the reach of Federal oversight.
    The rule fails to meet the EPA's stated objectives. We are 
in agreement with the EPA in its stated intent that the rule 
should remove uncertainty and confusion in determining what 
lands and activities require Section 404 permits. However, 
rather than reducing confusion, the proposed rule, as written, 
takes a very aggressive and broad interpretation of Federal 
jurisdiction, rendering adjacent waters, floodplains, ephemeral 
streams, tributaries, and ditches with limited exceptions as 
jurisdictional.
    Perhaps the EPA's vision of ``clarity'' simply means 
defaulting on the side of Federal jurisdiction and broadening 
the definitions of existing regulatory categories of 
tributaries and regulating new areas that are not 
jurisdictional under current regulations, such as adjacent non-
wetlands, riparian areas, floodplains and other waters.
    The EPA's assurances fall flat upon a plain reading of the 
rule. The EPA has lost an aggressive public relations campaign 
in an effort to refute the concerns of RDC and other concerned 
members of the public who have concluded, through a plain 
reading of the rule, that it materially expands the scope and 
reach of the Clean Water Act. The EPA's assurances don't match 
with the plain language in the rule.
    The ``tributaries,'' the newly defined term, automatically 
jurisdictional. Adjacent wetlands are considered 
jurisdictional, the legal test of nexus having all but been 
assumed. Many ``other waters'' are likely to be jurisdictional 
under the rule. Even ditches. And one thing that really 
concerns us is this concept of ``inside the fence,'' or a ditch 
within a project that's already been developed could be 
considered jurisdictional, even after you get your permits.
    And finally, we think the EPA grossly underestimates the 
costs of the rule. The EPA estimates that the rule will 
increase jurisdictional wetlands by about 3 percent. We think 
this is a gross understatement. The Waters Advocacy Coalition 
refutes the EPA's methodology as grossly understating this 
effect, both because of flawed methodology as well as they 
failed to consider the impacts of much of the new 
jurisdictional technology: ``neighboring,'' ``adjacent,'' 
``tributary,'' ``riparian areas,'' and ``floodplain.''
    So, even assuming the EPA's conservative estimate is 
correct, it would still increase jurisdictional wetlands in 
Alaska by 3.6 million acres, if you just take the 3 percent and 
apply it to the 130 million. And of course, that--I do note 
your colleague, Senator Whitehouse isn't here today, but that 
would be five times of his home State of Rhode Island.
    Senator Sullivan. I'll make sure he's aware of that when I 
go back and forth.
    Mr. Rogers. So we applaud the congressional oversight on 
this issue, Senator Sullivan, and as currently drafted we're 
concerned the rule will have significant negative impacts on 
Alaskans. And we really thank you for the opportunity to 
comment on this very important initiative.
    Thank you.
    [The prepared statement of Mr. Rogers follows:]

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    Senator Sullivan. Thank you, Mr. Rogers. I appreciate the 
testimony.
    Rod Hanson, Vice President of Alyeska Pipeline Service 
Company, will be our next witness.
    Mr. Hanson.

   STATEMENT OF ROD HANSON, VICE PRESIDENT, ALYESKA PIPELINE 
                        SERVICE COMPANY

    Mr. Hanson. Senator Sullivan, thank you for the opportunity 
to appear here today and discuss the proposed rule regarding 
``Waters of the U.S.'' and its possible impact on Alyeska 
Pipeline Service Company. My full statement has been submitted 
in writing, and so I'm offering an abbreviated version for you 
here this morning.
    Senator Sullivan. Thank you.
    Mr. Hanson. My name is Rod Hanson. I'm Vice President for 
System Integrity, Engineering and Projects with Alyeska. I 
joined Alyeska in 1991 as a civil and structural engineer, and 
I've had a variety of roles with the company over the years, 
including Terminal Manager, Pipeline Manager. I headed up our 
commercial and supply chain group for a while, and also our 
HSE, health, safety and environment group.
    I'm proud to work for an Alaska company. I came to Alaska 
in 1978. My wife was born and raised here. We've raised our 
kids here, our kids are now raising their kids here, and so 
it's great to be here speaking not only as an employee of 
Alyeska but as an Alaskan today.
    I'm here representing 1,600 employees and contractors who 
operate and maintain TAPS, the 800-mile Trans-Alaska Pipeline 
System, and our job is transporting crude oil from the North 
Slope to Valdez, where it's then put on tankers and sent south 
to the Lower 48, to the West Coast. Since startup in 1977, 
we've moved over 17 billion barrels of crude oil, and at peak 
production, we were moving 2.1 million barrels a day. However, 
that production has been declining steadily over the years, and 
we are currently transporting just over 500,000 barrels per 
day.
    This lower throughput creates serious operational 
challenges for us. The oil takes much longer to get to Valdez, 
and it loses heat rapidly. Colder crude oil creates wax and ice 
and allows that opportunity for wax and ice to buildup in the 
system and interfere with our operations.
    While we're confident of our abilities and our resources to 
meet these challenges, we know that they will continue to grow 
as throughput declines. We're committed to protecting the 
environment that we operate in here in Alaska, and to this end 
we fully support appropriate regulatory efforts to protect our 
Nation's waters.
    There are 21 different Federal and State agencies that 
oversee our work. We work hard to ensure that we comply with 
all regulations; we obtain all required permits and 
authorizations, and we keep our regulators very well informed 
of our activity. Occasionally, though, a new regulation is 
proposed which does not seem to consider the Arctic environment 
here in Alaska or the practical complexities of operating an 
800-mile pipeline through this environment. That is the case 
here with the proposed rule, on the ``Waters of the U.S.'' We 
believe this rule will significantly increase how much of our 
work is regulated under the Clean Water Act.
    Many of the discharges associated with our operations 
consist of water removed from construction project sites and 
drainage from precipitation events which do not reach waters of 
the U.S. The expansive definition of ``waters of the U.S.'' 
could really make these discharges jurisdictional and subject 
to the Clean Water Act permitting and regulatory requirements. 
This could significantly delay our ability to get critical work 
done, in what is a short Alaska construction and maintenance 
season.
    As we review the proposed rule, we've identified numerous 
potential impacts to TAPS. These include, first, unique 
features common in Alaska, such as permafrost, wet tundra, 
muskegs and bogs, may end up being considered jurisdictional 
waters, or they may result in the designation of ``other 
waters'' as jurisdictional. Any TAPS discharges to upland, dry, 
and isolated areas that are hydrologically connected to or even 
in the vicinity of those geographical or water features may 
become subject to Clean Water Act requirements.
    Second, discharges to dry stream channels, tundra and 
upland areas could now be considered discharges to 
jurisdictional waters and subject to new permitting and 
treatment requirements.
    Third, manmade structures, ditches, effluent channels and 
storage pits may themselves become jurisdictional under the 
proposal, and if these engineered structures were to be 
considered jurisdictional waters, we may be required to manage 
the water quality even within those structures and features.
    Fourth, these same concerns arise even with naturally 
occurring stormwater features, such as roadside ditches and 
other natural drainages on or adjacent to TAPS property.
    Even gravel pits could be subject to Clean Water Act 
requirements, since manmade ponds, lagoons or other water 
storage areas could be considered jurisdictional.
    These are just a few of the ways we believe the proposed 
rule could impact our management of TAPS. We're hopeful that 
the proposal will be withdrawn, or dramatically changed, so 
that these impacts are not added to our current challenges.
    Safety and integrity of the pipeline are paramount, core 
values here at Alyeska, and I'm proud to report that we 
currently have the best safety record we've had in our entire 
history. We've been named as one of the World's Most Ethical 
Companies by the Ethisphere Institute now for 4 years in a row. 
Our Vessel of Opportunity Program received a 2015 Alaska Ocean 
Leadership Award for stewardship and sustainability from the 
Alaska SeaLife Center.
    A couple weeks ago, we received a Governor's Safety Award. 
And, over the years, we've been honored many times with both 
the American Petroleum Institute's Distinguished Operator Award 
and Environmental Performance Award. Our record for protecting 
the environment has and will continue to be one of the best in 
our industry or any industry in Alaska.
    And, Senator, I appreciate the opportunity to testify here 
today.
    [The prepared statement of Mr. Hanson follows:]
 
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    Senator Sullivan. Thanks again, Mr. Hanson, and 
congratulations on those important awards that you listed there 
at the end.
    Our next witness is Kathie Wasserman, who is Executive 
Director of the Alaska Municipal League.

   STATEMENT OF KATHIE WASSERMAN, EXECUTIVE DIRECTOR, ALASKA 
                        MUNICIPAL LEAGUE

    Ms. Wasserman. Senator Sullivan, thank you for the 
opportunity to testify on ``Waters of the U.S.''
    My name is Kathie Wasserman. I'm Executive Director of the 
Alaska Municipal League, a membership league made up of all 164 
cities and boroughs throughout the State of Alaska.
    The cities and boroughs in Alaska are diverse. They vary in 
their types of natural resources that they contain, their 
social and political environments, their culture, their 
economies and, to a degree, the powers that they are allowed 
under Alaska State law. Many of the duties that Alaska's 
municipalities have are required or mandated by State law. They 
have varying degrees of authority, with regards to roads, 
bridges, property taxes, schools, recordkeeping, elections, 
hospitals, economic development, land use planning, zoning and 
air and water quality.
    Cities and boroughs own and maintain a wide variety of 
public safety infrastructure that would be impacted by the 
proposed rule, including roads and roadside ditches, bridges, 
stormwater systems, maintenance projects, drinking water 
facilities and infrastructure that was never designed to meet 
new CWA requirements under the proposed rule.
    Cities and boroughs are responsible for a large percentage 
of the road maintenance, such as snowplowing, debris clean up 
and surface repairs. Many of these small roads are in rural 
areas. Any additional cost burdens are challenging to these 
small governments. As Alaska's municipalities realize cuts in 
State Revenue Sharing, the potential loss of Timber Receipts, 
or Secure Funding for Rural Schools, and the tenuous situation 
with PILT, which is Payment in Lieu of Taxes, historically 
provide by the U.S. Government, it now seems to reflect a lack 
of analysis by that same Federal Government to mandate added 
extra expenses, while at the same time making economic 
development more difficult and while still considering not 
paying Alaska's municipalities' PILT payments for their 
property taxes that they--for which they own inside each 
municipality.
    I know what municipalities do to the local taxpayer if they 
don't pay their taxes. We're not in the position yet to do that 
to the local governments, but I certainly have suggested that 
to my local government.
    According to a 2014 County Economic Tracker report released 
by NACo, it found that only 65 of the Nation's 3,069 counties, 
boroughs or parishes have fully recovered to pre-recession 
levels. Many State and local projects would be significantly 
impacted by the changes to the definition of ``waters of the 
U.S.'' that have been proposed.
    Therefore, the Alaska Municipal League and all 164 
municipalities urge and have urged the agency to withdraw the 
proposed rule until further analysis of its potential impacts 
have been completed.
    Most of Alaska's municipalities are situated in low-lying 
areas with large bodies of water near the municipality. Simply, 
the choice of habitation by Alaska Natives, the first Alaskans, 
was dictated, in large part, by the accessibility of salt and 
freshwater; for either travel, drinking and the foods contained 
therein.
    If the U.S. Government had bothered to talk to local Alaska 
governments and tribes, they would have realized that planning 
and zoning regulations in our respective communities are 
already put in place to minimize impacts to those lakes, 
streams, rivers, and springs. Municipalities encourage the 
preservation of wildlife corridors, being as so many of our 
people live a subsistence lifestyle. We protect vistas, 
archeological sites, national land characteristics and fish 
habitat.
    The original settlers of this great State survive still 
through subsistence. Far be it for of the Federal Government to 
tell these people how to take care of the land and its 
resources for the long haul.
    This also brings up the legal question as to how this 
ruling would work on privately owned Native corporation lands, 
as much of these lands lie within municipal jurisdictions.
    Municipalities are the first line of defense for disasters: 
Police, firefighting, emergency personnel are the first on the 
scene. In the aftermath of the city of Galena flood, while FEMA 
responded in what could be called a reasonable amount of time, 
it was the residents and the city government and the tribes 
that did everything possible to help make sure that the 
community would come back to what it once was and to protect 
themselves from what might come again.
    While many of Alaska's communities are doing everything 
possible to protect themselves from Alaska's large ever-
changing rivers, with the record of huge erosion problems and 
catastrophic floods, the U.S. Government, through EPA, is 
adamant about Alaska's communities protecting every water-
filled ditch.
    We just believe, Senator Sullivan, that as municipalities 
in the State of Alaska, are the ones that will be tasked along 
with the State and tribes in implementing these rules, that the 
fact that we were not--that we were not contacted in any great 
form is a terrible, terrible thing to do to Alaska's 
municipalities.
    As I told you before--and I have some records to give to 
your staff--we found out about a meeting that was held by EPA. 
I have the brochure. It says it was an opportunity for tribes, 
local government and State government to give input on an EPA 
proposed rule. I got the notice from another organization late 
on a Friday night. The meeting was on a Wednesday.
    One of my mayors that deals with EPA rules negatively all 
the time lives in Unalaska. It would have taken her--she would 
have had to leave Tuesday or Monday to even get there. I called 
EPA in Washington, DC, and was told that oh, they didn't have 
our phone number. I don't know what that means, but--also, I 
have a copy of all the maps that are on the EPA website. None 
of them include Alaska. And when I asked the EPA gentleman in 
Washington, DC, a couple of months ago why they did not include 
Alaska, I was told because esthetically, it just didn't look 
right.
    I probably have a little bit harder line. I just think this 
is despicable that we have been left out in the cold on this.
    Thank you, Senator. Obviously, I got off my writing.
    Senator Sullivan. No, no. That was great testimony. And 
thank you for flying in to Anchorage for this important 
hearing. Thank you very much.
    Ms. Wasserman. Thank you.
    [The prepared statement of Ms. Wasserman follows:]

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    Senator Sullivan. Our next witness will be Lorali Simon, 
who is Vice President for External Affairs at the Usibelli Coal 
Mine.

 STATEMENT OF LORALI SIMON, VICE PRESIDENT, EXTERNAL AFFAIRS, 
                       USIBELLI COAL MINE

    Ms. Simon. Good morning. Thank you, Senator.
    My name is Lorali Simon. I'm Vice President of External 
Affairs for Usibelli Coal Mine. I certainly appreciate the 
opportunity to come before you today to discuss the proposed 
rule regarding the expansion of the definition of the ``waters 
of the United States'' and its potential impacts to Alaska.
    Usibelli is celebrating our 72nd year in operation this 
year. We proudly supply 100 percent of the in-State demand to 
six coal-fired power plants in Alaska. We also supply coal to 
our export customers in Chile, South Korea and Japan. Currently 
Usibelli employs 115 people. The average wage paid to Usibelli 
employees is more than double the average wage in Alaska. 
Usibelli's operations directly provide 25 percent of all 
employment for Healy year-round residents. The $12.9 million 
paid to our Healy employees in 2013 represented nearly 60 
percent of all wages paid to Healy residents.
    Usibelli is deeply concerned about the proposed rule by the 
EPA which would significantly increase the jurisdictional 
waters of the United States under the Clean Water Act. Should 
this proposed rule be finalized, it would likely stop all 
development in Alaska; small, private developments, as well as 
large resource development projects.
    The proposed rule expands Federal jurisdiction over State 
lands, to include all ephemeral and intermittent drainages, 
seeps, and marginal wetlands. According to the EPA's website, 
the proposed rule determines that all streams regardless of 
size or how frequently they flow are jurisdictional waters; all 
wetlands and open waters in floodplains and riparian areas are 
jurisdictional waters; and that there is insufficient 
information to generalize jurisdiction of waters not in 
floodplains or riparian areas.
    You've already heard this today, but Alaska is very unique, 
in that over 60 percent of our State is already under Federal 
jurisdiction, and 88 percent of the jurisdictional waters are 
under public management. We believe this proposed rule will 
subject many more mining activities and operations to 
regulation under the Clean Water Act than currently are covered 
by law or regulation.
    You have also already heard about Alaska's unique features, 
such as our permafrost and tundra that could be considered 
jurisdictional waters. The mining industry uses sophisticated 
and engineered structures, such as impoundments, ditches, 
channels, ponds, and pits that could also become jurisdictional 
waters under the proposed rule.
    I hope you understand our concern over the possibility that 
historically non-jurisdictional onsite stormwater and surface 
water management features could be deemed jurisdictional, and 
the complications surrounding distinguishing ephemeral 
tributaries from non-jurisdictional features, will increase 
delays, costs, and permitting requirements. Usibelli is 
troubled by the breadth of the definitions in the proposed 
rule, which could be misconstrued as encompassing previously 
non-jurisdictional waters and treatment systems on mine sites 
across the Country.
    As you know, the EPA and the U.S. Corps currently require 
compensatory mitigation to promote no net loss of wetlands from 
development projects. Anyone wishing to obtain a permit to 
impact a wetland or other aquatic resource must first avoid and 
minimize impacts, and then compensate for unavoidable impacts. 
Typically, for every one acre disturbed, there must be 3 to 10 
acres preserved.
    If the proposed expansion of jurisdictional waters becomes 
final, it will be nearly impossible in Alaska to meet the 
compensatory mitigation requirements, as most of the wetlands 
in Alaska are already under public management and not available 
for selection. The result will be an increase in price for the 
small amount of land remaining available for compensatory 
mitigation.
    The local, statewide, national, and global economic 
benefits that mining provides are unquestionable. These 
benefits are derived from employment, wages, economic activity 
due to purchases of goods and services, and payment of taxes, 
royalties, and fees to local, State and national governments.
    Usibelli is committed to conduct our activities in a manner 
that recognizes the needs of society and the needs for economic 
prosperity, national security, and a healthy environment. 
Accordingly, Usibelli is committed to integrating social, 
environmental, and economic principles in our mining operations 
from exploration through development, operation, reclamation, 
closure, and post-closure activities.
    I would also like to point out that Usibelli is also a 
recent recipient of the Governor's Safety Award, and that last 
year we celebrated 703 days without a lost-time injury.
    Thank you for the opportunity to testify today, Senator. 
And I'm happy to answer your questions.
    [The prepared statement of Ms. Simon follows:]

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    Senator Sullivan. Thank you, Ms. Simon. And thank you for 
the powerful testimony. And again, I think one of the issues 
you raise on the compensatory mitigation is something that we 
need to explore further.
    Our next witness is Tim Troll. He's Executive Director for 
the Bristol Bay Heritage Land Trust.
    Mr. Troll.

    STATEMENT OF TIM TROLL, EXECUTIVE DIRECTOR, BRISTOL BAY 
                      HERITAGE LAND TRUST

    Mr. Troll. Senator Sullivan, thank you very much for the 
opportunity to talk here today.
    My name is Tim Troll. I am Executive Director of the 
Bristol Bay Heritage Land Trust, an organization I helped found 
15 years ago while living in Dillingham. The Bristol Bay 
Heritage Land Trust is one of six land trusts in Alaska that 
serve different geographic areas. Our service area encompasses 
the watersheds that flow into Bristol Bay.
    Land trusts are conservation organizations that work with 
willing landowners to preserve places that are special: Working 
farms; wilderness parks; historic sites; and not surprisingly 
in Alaska, salmon habitat. We exist because 25 years ago the 
Alaska legislature adopted the Uniform Conservation Easement 
Act. A conservation easement is a statutory creation that 
allows a property owner to sell or donate development rights to 
a qualified organization, like a land trust, while retaining 
ownership.
    So why would a land trust care about the water? Well, when 
we formed our land trust in Dillingham in 2000, our concern was 
for salmon habitat in the Nushagak River Watershed. The 
Nushagak is a giant producer of salmon in the Nation's greatest 
salmon stronghold, Bristol Bay. It supports a robust 
subsistence culture and a commercial fishery with a longevity 
approaching 150 years. The 20 year average for abundance of 
sockeye salmon alone in the Nushagak River is 1.8 million with 
a range of 674,000 to 3.4 million.
    The problem we needed to address was the fact that except 
for the Wood-Tikchik State Park most of the salmon habitat in 
the Nushagak Watershed is not conserved. The vast majority of 
the watershed is owned by the State and is managed under an 
area plan that does not guarantee permanent protection for 
salmon habitat. The uplands along the lower river corridor are 
private lands owned by the Alaska Native corporations, five 
Alaska Native corporations, and more than 300 individual Native 
allotments.
    So looking into the future and taking an admittedly 
jaundiced view of human nature we could foresee a time when 
this fragmentation of ownership and land management could lead 
to habitat fragmentation and the loss of connectivity between 
lakes, rivers and streams, those that salmon need most to 
survive.
    We decided that one way we could protect the habitat and 
hopefully get ahead of history was to document salmon streams 
and nominate previously undocumented streams for inclusion in 
Alaska's Anadromous Waters Catalog. Once a stream is in the 
catalog, State law provides a higher level of protection 
because an anadromous stream cannot be disturbed without a 
permit from the Habitat Division of ADF&G. Most of the streams 
in the headwaters of the Nushagak are undocumented because they 
are remote and can only be accessed by helicopter.
    We launched our effort in the late summer of 2008 with 
funding and other support provided by various Native partners, 
including the Native tribes of the Nushagak River. The 
biologists we engaged sample streams using backpack electro-
fishers. Sampling is done in late summer when rearing salmon 
have generally gone as far up into the headwaters as they can. 
Fish are stunned, identified, measured, occasionally 
photographed, and returned to the water. All sampling sites are 
georeferenced, and each year before September 30, we submit all 
the information we gather to ADF&G. Salmon observations are 
added to the Anadromous Waters Catalog and other fish 
observations are added to Alaska's Freshwater Fish Inventory.
    I've been fortunate to go along on many of these sampling 
trips. I'm not a scientist, I'm a lawyer, but they invited me 
anyway. Over the last 6 years, I've stood in many little tundra 
streams barely a foot wide, burrowed down into alder-choked 
creeks and sunk up to my waist in muddy-bottom sloughs. To my 
astonishment, we have found fish in all of these places, and 
often salmon. Particularly surprising for me was to land near 
some isolated pocket of water above a dry streambed and still 
find rearing coho salmon. No surprise to our biologists and no 
surprise to the Native folks who often joined us on our 
surveys.
    So we have logged hundreds of hours in helicopters sampling 
hundreds of headwater streams in Bristol Bay looking for fish. 
We find fish in virtually every place we sample, and salmon in 
most. We have raised and spent hundreds of thousands of dollars 
to add hundreds of stream miles to the Anadromous Waters 
Catalog.
    But it doesn't take a biologist to help us understand the 
significance of these little creeks, mud holes, backwaters, 
side sloughs, and even ephemeral and intermittent stream 
channels. Even a Senate subcommittee, if you could visit these 
headwaters, would have to concede the obvious: These places are 
the perfect breeding ground and rearing habitat for our salmon 
and a wide variety of other fish. Certainly, in this region, 
firm protection of these headwater complexes should be given. 
EPA's Clean Water Act rulemaking affirms the obvious and 
provides protection for these headwaters and ephemeral streams.
    If we pretend these areas are unimportant and let them fall 
victim to abuse, then, as history has shown, everything 
downstream could be lost: No salmon; no commercial fishery; no 
world-class fly fishing; no bears; no belugas; no Natives; no 
economy, and no reason to protect the land.
    Thank you, Senator.
    [The prepared statement of Mr. Troll follows:]
 
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    Senator Sullivan. Thank you, Mr. Troll.
    Our next witness is Mr. Sam Kunaknana. He's Tribal 
President of the Native Village of Nuiqsut.

STATEMENT OF SAMUEL KUNAKNANA, TRIBAL PRESIDENT, NATIVE VILLAGE 
                           OF NUIQSUT

    Mr. Kunaknana. Good morning, good morning. My name is 
Samuel C. Kunaknana, Tribal President of the Tribal Council of 
the Native Village of Nuiqsut, a federally recognized tribe of 
Alaska Native people. Before I begin I would like to thank the 
esteemed members of this committee for allowing me to testify 
on behalf of the people of my tribe.
    As Tribal President, I represent the Native Colville River 
Delta people, a group known as Kuukpigmiut, and as their 
representative I want to communicate just how important clean 
water is in sustaining the subsistence resources of my 
community. For thousands of years the Inupiat people of the 
North Slope have subsisted on the bountiful natural resources 
of our region. We rely upon marine and land mammals and 
waterfowl to maintain food security.
    Traditional subsistence foods of our region maintain the 
health of all our people, and with the magnitude of oil and gas 
development on the North Slope in recent times, access to these 
resources has become more and more limited. Recently the 
quality of our subsistence resources has now begun to suffer in 
large part due to problems related to the quality of our 
waters.
    The tundra of the North Slope on which we live might best 
be described as an aquatic environment, the hydrology of which 
is quite complex. The Inupiat people rely upon a wealth of 
traditional knowledge passed from one generation to the next 
via stories and word of mouth. We do not rely upon reference 
scientific documentation to understand the interconnectedness 
of our environment, instead we have lived it for thousands of 
years.
    We know that water flows across the surface quite freely 
during the warm season and that our hydrology involves not only 
surface waterflow but the subterranean movement of the water as 
well. Water that runs over the land in spring and summer not 
only moves from one waterway to the next, but interflow just 
below the surface also connects these waterways.
    All of these water systems are connected in one way or 
another, and they, in turn, are connected to the land surface, 
as well. What falls to the land surface through atmospheric 
deposition, including industrial compounds, ends up in the 
lichen that our caribou feed upon and in the waters that 
provide food for our fish and other sea mammals.
    When I was a young boy in school, I was told of the food 
chain and how all of the animals and fish are connected to the 
environment. This was nothing new to me, as I learned it from 
my parents, grandparents and ancestors. This was knowledge 
passed from one generation to the next.
    Many years of industrial development in my homeland has now 
resulted in water and air quality problems, and ultimately 
industrial aerosols are deposited on the surface to be carried 
into our hydrological systems that support our land and sea 
mammals and waterfowl. These compounds accumulate within our 
systems and cause health problems for us.
    We are told today that we need to limit our consumption of 
bird due to mercury contamination. Many of our Broad white are 
now diseased, and when we butcher our caribou, we find diseased 
organs. Within our Village of 435 people, two children have 
been diagnosed with leukemia and one has already passed away. 
What are the odds of a single child being diagnosed with such a 
disease within a community of 435, let alone two?
    We need our better rules to control the quality of water in 
our region, whether the headwaters of the streams and 
tributaries, or wetlands that support or subsistence resources. 
We do understand and are working to address the loss of food 
security due to access problems to our subsistence resources, 
as our region becomes inundated with oil and gas development 
and perhaps mining in the future. However, it would be 
unconscionable to allow the health of the limited subsistence 
resources we have left to continue to erode due to a decline in 
water quality.
    As an elected representative of the Native people of 
Nuiqsut, I fully support this Clean Water proposal, because it 
will protect a crucial part of the food chain that will allow 
my people to maintain food security with respect to the 
traditional foods we have relied upon for thousands of years.
    Thank you very much for your time and for this opportunity 
to testify on this crucial issue.
    Thank you.
    [The prepared statement of Mr. Kunaknana follows:]

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    Senator Sullivan. Thank you, Mr. President, and thank you 
for your travel all the way from Nuiqsut for this testimony. 
Thank you.
    Mr. Kunaknana. Quyanaqpak.
    Senator Sullivan. Our next witness is Brian Litmans. He's 
Senior Staff Attorney for Trustees for Alaska.

STATEMENT OF BRIAN LITMANS, SENIOR STAFF ATTORNEY, TRUSTEES FOR 
                             ALASKA

    Mr. Litmans. Good morning, Chairman Sullivan. My name is 
Brian Litmans and I am a senior staff attorney with Trustees 
for Alaska, a nonprofit environmental law firm providing legal 
counsel to protect and sustain Alaska's natural environment. 
Thank you for inviting me today to testify on the joint-
proposed rule by the U.S. Environmental Protection Agency and 
the U.S. Army Corps of Engineers defining ``waters of the 
United States.'' I ask that my written testimony be included in 
the record.
    This rule provides clarity and certainty on the scope of 
the Clean Water Act in light of the two U.S. Supreme Court 
decisions: Rapanos, and Solid Waste Agency of Northern Cook 
County. Prior to these two decisions, the regulating agencies 
took a more expansive view of the definition of ``waters of the 
United States.'' The proposed rule narrows the definition and 
is consistent with the Clean Water Act, as interpreted by the 
U.S. Supreme Court.
    The Clean Water Act sets out a national goal to restore and 
maintain the chemical, physical and biological integrity of our 
Nation's waters. The proposed rule is rooted in sound science, 
supported by an EPA report that reviewed more than 1,200 peer-
reviewed scientific publications. The scientific literature 
unequivocally demonstrates that protecting upstream waters and 
wetlands is important to protecting the integrity of downstream 
waters. The rule implements the intent of the Act to protect 
our Nation's waters while also complying with the Court's 
decisions.
    In Alaska, the vital role of wetlands cannot be 
understated. They are sociologically, ecologically and 
economically important to Alaska, providing essential habitat 
for fish and wildlife. Alaska's wetlands sustain some of the 
world's richest commercial, sport and subsistence fisheries. 
Providing such essential habitat for such a large number of 
fish and wildlife, these wetlands are paramount to the culture 
and economy of Alaska Native and rural communities. Without 
wetlands, that way of life would disappear.
    This proposed rule is borne out of the Rapanos decision, 
where the justices issued five separate opinions. Chief Justice 
Roberts predicted the troubles to come, noting that with no one 
test confirmed by the Court, lower courts and regulated 
entities would have to feel their way on a case-by-case basis. 
When there is no majority opinion from the Supreme Court, the 
lower courts must parse through the variety of Supreme Court 
opinions to determine the governing rule of law. This has left 
the lower courts to fumble along, which in turn has only 
created more confusion.
    Senator Inhofe, Chairman of the Environment and Public 
Works Committee, remarked back in 2011 that a rulemaking 
consistent with the Clean Water Act and the Supreme Court 
decisions was critical. This sentiment has also been echoed by 
regulated entities, government agencies and environmental NGOs, 
all clamoring for rulemaking to address this problem.
    At this point in time, the majority of circuits follow 
Justice Kennedy's significant nexus test. This is the same test 
EPA and the Corps now seek to implement through regulation, 
bringing an end to the confusion and uncertainty faced by 
courts and regulators. The rule provides the certainty and 
regulatory efficiency that the regulated entities assert is 
critical to both the U.S. and Alaskan economy.
    A cloud has hung over the regulating agencies, the 
applicants, and those like Trustees for Alaska seeking to 
ensure the purposes and intent of the Clean Water Act are 
complied with. This rule removes that cloud. The rule clarifies 
the process to determine which streams and wetlands are 
protected under the Act. The rule does not expand the Act's 
protection to any new type of waters that have not been 
considered a jurisdictional water of the United States to this 
date.
    Clean water and a healthy environment are essential to all 
of us. Whether it is clean water for drinking or a clean river 
to swim in, clean water for salmon, or clean water for today 
and for future generations, the Clean Water Act set out a goal 
that we can all agree on. This rule supports that goal.
    Thank you.
    [The prepared statement of Mr. Litmans follows:]

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    Senator Sullivan. Thank you, Mr. Litmans, I appreciate you 
laying out some of the legal background of the rule, as well.
    Our final witness is Mark Richards. He's Co-Chair of Alaska 
Backcountry Hunters and Anglers.

   STATEMENT OF MARK RICHARDS, CHAIRMAN, ALASKA BACKCOUNTRY 
                      HUNTERS AND ANGLERS

    Mr. Richards. Good morning, Senator Sullivan. Thank you for 
the opportunity to testify before you today, and I certainly 
want to commend you for bringing D.C. to Alaska. We need--we 
need more of that.
    My name is Mark Richards. I'm Chairman of the Alaska 
Chapter of Backcountry Hunters and Anglers. We're a national 
hunting and fishing conservation organization dedicated to 
ensuring our heritage of hunting and fishing traditions can 
continue through education and hard work on behalf of wild 
public lands and waters.
    We are a grassroots, nonpartisan organization, and part of 
my volunteer duties as Chairman of our Alaska chapter involves 
attending a wide array of meetings and giving testimony on 
various issues that affect hunting and fishing and conservation 
in Alaska.
    One issue we recently commented on was the National Park 
Service's rulemaking changes governing hunting and trapping 
regulations on National Preserve lands. We opposed the 
Service's new rulemaking because we felt it was not based on 
any clear scientific or conservation concern and that it was a 
clear example of Federal overreach.
    The question before this committee, and the Country, and 
specifically Alaska, is whether or not this new proposed rule 
on ``Waters of the United States,'' clarifying what waters are 
protected under the Clean Water Act and what waters are subject 
to Federal jurisdiction, is also Federal overreach. We don't 
believe that it is.
    Court decisions in the last decade, as you have heard 
earlier, have made it unclear what waters are protected under 
the Clean Water Act and under Federal jurisdiction. Our Former 
Governor Sean Parnell, along with others, was among those who 
requested that the EPA and the Army Corps of Engineers clarify 
these issues via the rulemaking process.
    This final rule will result in less waters being under 
Federal jurisdiction than were in place for the first 30 years 
of the Clean Water Act. During that same time period, when I 
was here, the State of Alaska saw enormous economic growth and 
development while our population quadrupled. We built a 
pipeline under the regulations of the Clean Water Act before 
the Supreme Court weighed in. Even when more waters were under 
Federal CWA jurisdiction than there are now under this new 
rule, Alaska prospered and development soured.
    Sure, there are costs associated with regulation that 
govern and protect our streams and rivers and wetlands, costs 
to developers and industry and the private sector and 
communities, but those are the costs associated with clean 
water and healthy habitat for fish and game. Those are the 
costs that allowed me to drink out of the Sag River when my 
wife and I worked up north during the summer; those are the 
costs that allow me to catch a lunker Dolly Varden out of the 
Sag, three miles downstream of where the Pipeline goes 
underneath the Sag River.
    And speaking of costs, there are of course costs to the 
regulatory agencies, as well. Back in 2013, Senator, when you 
were Department of Natural Resources Commissioner under 
Governor Parnell, the administration sought to get primacy 
rights for the State of Alaska, to take over the job of 
wetlands regulation from the Federal Government under the Clean 
Water Act. The Federal laws protecting wetlands would still be 
in place under the Clean Water Act, but the State would take 
over wetlands permitting issuance from the Army Corps of 
Engineers. The rationale was that if the State had primacy 
rights, they could do as good a job as the EPA and Corps in 
regulating wetlands, but the State could permit development 
projects at a much faster pace.
    As you said at the time, Senator, as DNR Commissioner, 
``It's not about cutting corners, it's about making our 
permitting more timely, efficient and certain.'' We support 
that. The problem, however, then and especially now, should the 
State of Alaska ever gain those primacy rights, is that the 
costs of assuming regulation and permitting of wetlands for the 
State are extremely high, and in today's fiscal climate with 
our ongoing budget crisis is, frankly, not achievable.
    I bring up this to point out that it is extremely unlikely 
the State of Alaska will ever gain primacy rights from the 
Federal Government over wetlands, but at the same time we still 
need to clarify what bodies of water are under Federal 
jurisdiction according to the Clean Water Act.
    That's what this new rule does. It clarifies what waters 
are under Federal jurisdiction. And it is that clarification 
that does not sit well with many here today because of fears of 
how it could impact future development and costs to individuals 
and businesses.
    We understand and respect those concerns, but overall, the 
Clean Water Act has been very much a positive for our Country 
and for our States and communities, for our fish and game and 
for our hunters and anglers. We view this clarification and new 
rule as a positive, as well.
    And we would like to say, Senator, we also have concerns. 
We support this new rule, but if you could, work with Senator 
Barrasso and others and fix the concerns that we have as a 
State, without going back to the starting block and starting 
over again. Right now, according to the Bush administration 
rules, things are slowed down; permitting is slowed down 
because we don't have this definition. So we want to see it 
fixed.
    We understand the concerns everybody has here and we're 
willing to work with you.
    And just thank you for the opportunity to testify and for 
your service to our Country, really appreciate it.
    [The prepared statement of Mr. Richards follows:]
 
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    Senator Sullivan. Thank you, Mr. Richards. Thanks for the 
reminder on the primacy issue. It's an important issue.
    And I will add, that one of the things that we are trying 
to do, as I mentioned at the outset, Senator Barrasso and I had 
an amendment in the budget process that did try to look at the 
clarification that you mentioned, and I think that that's what 
a lot of people are focused on.
    Well, listen, I want to thank the witnesses again.
    What I propose to do right now, since we're all on the 
panel here, is I'm going to start with a few questions. We have 
a little bit of time. I'll direct them at individual witnesses, 
but I--but I do want to add that if others want to jump in, 
just please raise your hand. And I think that's the most 
efficient way to do this.
    I want to--I do want to thank everybody again. As I 
mentioned, we're trying to bring Washington, DC to Alaska on a 
hearing of importance, and I think every witness here 
recognizes how important this issue is, not only to educate our 
citizens but to, for the record--and this is an official 
Environment and Public Works hearing in the U.S. Senate--is to 
get on the record some of these Alaska-unique issues that I 
think most of us can agree on here.
    But even though we're trying to bring DC to Alaska, I do 
recognize that so many of you traveled very far distances just 
to be here, so I want to thank the witnesses again.
    So let me start out with some of the questions.
    Ms. Sweeney, I thought that your comment with regard to the 
potential conflict, with regard to ANCSA and other consultation 
requirements, with regard to Alaska Natives was a very 
insightful comment that you made during your testimony. Would 
you care to expand upon that at all, and also, with regard to 
the consultation that took place?
    You know, the Federal Government does have a particularly 
important requirement with regard to consultation with all 
members of the State, the State of Alaska, but also 
particularly with regard to Alaska Natives.
    President Kunaknana, if you could also talk about that 
consultation issue, if you believe you were--had the 
appropriate consultation in that regard.
    I'd appreciate both of you commenting on that, and anyone 
else.
    Ms. Sweeney. Samuel, did you want to go first?
    Mr. Kunaknana. No, quyanaqpak.
    Ms. Sweeney. Thank you, Chairman Sullivan. I appreciate the 
question.
    The EPA, in this instance, with respect to the proposed 
rule, did not reach out to ASRC. And as we've gone through 
several different hearings on issues affecting Alaska Natives 
and Alaska Native corporations, the Federal Government 
certainly can do a better job in reaching out to consult with 
Alaska Native corporations. And on top of that, they're 
required to, whether it's through the executive orders that 
have been issued prescribing that consultation.
    One of the issues that we find is, regardless of whether or 
not an Alaska Native corporation or a tribal entity agree or 
disagree on an issue, if there's alignment or not, it's 
important to get that feedback from the front end. And the way 
that the process is established now, they make their decision, 
they draft their rule and then they go out for comment.
    And it would be nice, as we move forward in this 
consultation era, that the Federal Government actually sit down 
with all aspects of the Native community, especially those that 
are prescribed in the executive orders that prescribe the 
government to do so. And they're certainly not following 
through in the manner in which they could.
    Senator Sullivan. Mr. President.
    Mr. Kunaknana. [Indiscernible.]
    Senator Sullivan. I'm sorry?
    Mr. Kunaknana. I will include this in writing.
    Senator Sullivan. OK.
    [Reporter requested clarification.]
    Senator Sullivan. Yes. If you'd please turn your mic on, so 
she can follow what----
    Mr. Kunaknana. I will include it in writing.
    Senator Sullivan. OK. Great. Thank you.
    Let me go to the issue of costs. I think that that is one 
that there are very, very significant differences of opinion on 
this issue. Several of us who examined the rule think that it 
could have enormous costs, not only in terms of money but in 
terms of time with regard to the issuing of additional permits.
    Perhaps Mr. Rogers or Ms. Moriarty could speak to that, and 
others who want to address that issue. It's obviously a big 
issue with regard to the State of Alaska, not only in terms of, 
as I mentioned, the cost of doing business but the time it 
takes to get permits, which is, in my view, a very significant 
problem that we have in the State with regard to the Federal 
permitting, that can take literally years to get projects 
moving.
    Mr. Rogers.
    Mr. Rogers. Thank you, Senator.
    It's really an important point. I think we have enough 
experience under the status quo with the Clean Water Act to be 
able to highlight that there's a significant cost of compliance 
with the Clean Water Act. Expanding the jurisdiction, of 
course, would just exacerbate that problem.
    I think you mentioned the direct cost of applying for 
permits, but the cost of the time, while difficult to quantify, 
is very significant.
    Kara testified that in some cases it can take 2 years to 
get a Clean Water Act permit, and time equals money. That 
affects the delays on getting the project moving forward, to 
get it sanctioned. And frankly, it makes us less competitive 
than other jurisdictions around the world where our resources 
are competing in a global marketplace. And the second aspect of 
cost is the compensatory mitigation, and that's a current issue 
that's very important to us.
    There have been some prior agreements. Back in 1994, there 
was a wetland initiative to actually acknowledge the unique 
circumstances in Alaska and provided far more flexibility, and 
we are working with other stakeholders to try to make sure that 
the Corps and the EPA acknowledge that existing agreement 
that's still in place. But irrespective, compensatory 
mitigation is a big cost, and of course, if you expand the 
jurisdiction, it gets even bigger.
    Ms. Moriarty. Senator, I think, to follow up on Rick's 
comments, you know, I did talk about, you know, the current 
cost. What I didn't say is that, you know, it does--it can take 
over 2--up to 2 years to obtain a 404 permit, and the average 
cost of each 404 permit is about $300,000. And so I don't 
know--I know that Kathy from the Municipal League also talked 
about that, you know, with her municipalities, that, you know, 
this isn't just resource development projects this could 
impact, it's also these small communities that would need a 
permit for their local projects, whether it be a utility 
project or whatnot.
    But I just would like to add: It's a bit difficult, I 
think, to give an exact analysis, because I would argue the EPA 
wasn't completely transparent in the type of approach that they 
did use.
    But I want to just give one other quote, that according to 
a professor at the University of California Berkeley, David 
Sunding--he's a professor of agricultural and resource 
economics--he says, ``The EPA's entire analysis is fraught with 
uncertainty,'' and is not an accurate evaluation of the actual 
cost of implementing the rule. Furthermore, the professor 
stated that``The errors, omissions and lack of transparency in 
the EPA study are so severe that he renders it virtually 
meaningless.''
    And so this isn't just Alaskans pointing out that the 
economic analysis is flawed; others have, as well.
    Senator Sullivan. Great.
    Kathie.
    Ms. Wasserman. Thank you, Mr. Chairman.
    And one thing that I would like to point out is, most of 
Alaska's communities, the lifeblood of that community is their 
harbor. You can kill a community in many ways, but if you close 
down the harbors, I can guarantee you most of Alaska 
communities will not be able to thrive.
    And right now, just to dredge is almost impossible and very 
costly and takes a lot of time. And if we now include more 
small waterways, with perhaps no fish, and more hoops to jump 
through, municipalities will not be able to keep their harbors 
going. And that's how you get into most of these communities.
    Thank you.
    Senator Sullivan. Ms. Simon, I wanted to kind of dig a 
little deeper on an issue that is very unique in many ways to 
Alaska, and that's not just what we're talking about with 
regard to costs, but the compensatory mitigation issue.
    Could you provide a little bit more detail on what you were 
talking about in terms of our inability as a State to even be 
able to start meeting that, given the relatively small amount 
of opportunities we have for compensatory mitigation, relative 
to, say, other places in the Lower 48?
    Ms. Simon. It's a really difficult-to crack, Senator. Like 
I said in my testimony, for every one acre of disturbance, you 
have to mitigate that with 3 to 10 acres for preservation.
    We have had a difficult time in Healy trying to identify 
appropriate lands or even finding an appropriate land bank to 
partner with. So I would say that in Alaska, the land bank 
system isn't as sophisticated as it is in other areas, and 
certainly the opportunities for lands to select is also 
uncertain. But definitely with this proposed rule it really 
makes it near impossible for Alaskans to adhere with 
compensatory mitigation, because so many of our wetlands are 
already under public management and unavailable for selection. 
So it takes a very difficult situation and makes it much worse.
    Senator Sullivan. Thank you. Mr. Richards, do you have 
any--as you were talking--and I appreciate, again, your 
testimony. Do you have any suggestions on ways in which the 
rule could be clarified, or do you think that in its current 
form it provides the clarification that's needed?
    There's a lot of people who, in a lot of States, who think 
that it actually doesn't do that, but I appreciate your 
constructive comments about looking at ways to try and do that.
    You may have seen, as I mentioned, the amendment we put 
forward that was passed as part of the Senate budget process 
last week that tried to do that. Do you have any other 
suggestions that way?
    Mr. Richards. Senator, thank you.
    The main suggestion I would have is that this has become 
overly polarized, just like our Country is right now, and so--
you mentioned in your opening comments about hyperbole. And 
well, one of the comments Ms. Simon made was that this new rule 
would likely stop all development projects, and that's not 
true. So I think we need to--I think we need to get on the page 
where we can all come to a consensus, like what it would do and 
what it wouldn't. What I'm hearing, from a lot of the 
opposition here, is a lot of coulds: ``It could do this.''
    So clarification, yes, would be needed, should be needed, 
especially for the State of Alaska. But I would like to see 
your office work on this in a bipartisan manner to, instead of 
kicking this back to start over, to let's look at what the new 
rule is and look at the concerns we have and look at trying to 
work with Barrasso and others in trying to, you know, come up 
with a fix.
    Senator Sullivan. OK. Good suggestion.
    I do think, though, that--you mentioned hyperbole, but even 
Obama administration's--some of their own agencies have 
resorted to----
    Mr. Richards. We don't disagree with that.
    Senator Sullivan [continuing]. Concerns.
    And let me give you one example, and then I do want to just 
mention this to all the panelists here, the issue of small 
businesses, the issue of small communities. As Ms. Moriarty 
mentioned, you know, an EPA 404 permit can cost on average 
$300,000 and take 2 years.
    Interestingly enough, when this rule came out, the EPA and 
Corps certified that the proposed rule will not have 
significant economic impacts on a substantial number of small 
entities, small communities, small businesses, which lead to 
the chief counsel for the Small Business Administration Office 
of Advocacy, that they determined that this statement by the 
EPA and Corps was in error and improper, and the comments that 
they filed, this office of the SBA in the Obama administration 
stated advocacy in 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 the agencies submitted with the rule, 
provides ample evidence of a potentially significant economic 
impact.
    Advocacy at the SBA advises the agencies to withdraw the 
rule and conduct an SBRA panel prior to promulgating any 
further rule on this issue.
    So, even within the Obama administration, there are 
concerns, significant concerns, that we have not undertaken the 
proper analysis on how this will impact small communities and 
small businesses.
    And I would like to just open that up for any concerns. You 
know, most of our employers in this--in our great State are 
small businesses. And any of the witnesses care to comment on 
that?
    Rick, I know that you represent literally hundreds of small 
businesses.
    Mr. Rogers. Yes. Senator, that's really a good point. You 
know, we think about our big projects. We heard testimony from 
Alyeska and from the oil and gas industry. But the Clean Water 
Act has such a broad jurisdiction, of course it affects 
everything from a community project to small construction jobs. 
So clearly it's not just about larger organizations, it affects 
every aspect.
    And like I mentioned in my testimony, Senator, the 
ubiquitous nature of wetlands and the fact that they're so 
widespread in Alaska, and particularly under the proposed rule, 
it's really hard to find an activity that does not require a 
404 permit; if you're doing any filling, any dredging, if 
you're building a road, driveways, culverts.
    And so I think you're correct in probing that issue, 
because small business, both here in Alaska and nationwide, is, 
you know, a significant job creator and a significant, you 
know, important aspect of our economy.
    Senator Sullivan. Thank you.
    Any other comment?
    Kathie.
    Ms. Wasserman. I did a little research on this, Senator, 
and under the SISNOSE Act--and someone obviously gave it an 
acronym but then went no further to pay attention to it--if a 
community or an organization is a small entity, which of all 
164 municipalities, that includes 160 of them, they're supposed 
to do a--they're supposed to provide a factual basis to 
determine the rule does not impact these small entities. And 
under the proposed ruling that was never done. I know no 
municipalities were ever contacted as a small entity, and I 
have not heard of any businesses that were.
    Ms. Moriarty. And, Senator, if I could just add one more 
comment. I do represent the oil and gas industry, and we might 
not be viewed as a small business in Alaska, but we do--are the 
heartbeat of the economy, I would argue, with one-third of all 
Alaska jobs can be attributed to our industry. And $300,000 
here and $500,000 there may not sound like a lot, but we're--
the State's not the only one suffering a financial situation at 
50-dollar oil.
    And mineral prices change and oil prices change. It's a 
tough--it's a tough environment to do business. And I think the 
main problem with this rule is that it is going to have such an 
impact on Alaska but Alaska isn't really considered.
    And I think when you think about specific things that can 
be done without starting over, if starting over isn't an 
option, we need to consider how does this impact Alaska.
    Senator Sullivan. I think that's a great comment.
    One of the--you know, there's obviously very differing 
views here on the impact of the rule, the importance of the 
rule, whether you support or don't support the rule. I do 
think--and I don't want to speak for all the witnesses, 
though--there certainly seems to be broad consensus that this 
rule has not done much to consider the unique circumstances of 
Alaska, particularly given what a large swath of the Clean 
Water Act jurisdiction we're already under. And I think that 
that, certainly to me, is one of the takeaways. I don't know if 
there's a consensus on that throughout.
    But let me ask another question, for Mr. Litmans and Mr. 
Troll.
    There seems to be, again, kind of a differing view on how 
this could expand the jurisdiction of the EPA's wetlands 
authority in the State and throughout the Country.
    Mr. Litmans, you mentioned ``didn't at all, just clarified 
it.'' Even the EPA admits to an expansion of about 3 percent, 
which 3 percent in Alaska would be a pretty big expansion.
    And I don't want to put words in your mouth, Mr. Troll, but 
you seemed to, through your testimony, also indicate that you 
thought it would expand the jurisdiction of the Clean Water Act 
by getting into areas that weren't previously covered.
    Do you want to comment on that? Do you think that this rule 
expands the jurisdiction of the Clean Water Act by the EPA?
    Mr. Troll. Well, Senator, mostly I just wanted to testify 
to the fact of actually what I've seen and is of concern, as I 
understand it, about ephemeral streams and intermittent 
streams. And certainly our observations, in this extensive work 
at the headwaters of the Nushagak, and now of the Kvichak, as 
well, it's not uncommon to find ephemeral streams and pockets 
of water above them that do hold rearing salmon and other 
species of fish. You know, we found cohos that hold over for a 
year or two, just waiting for the water to come back. And so we 
want to make sure, at least from the standpoint of, you know, 
all the downstream effects on commercial fishing and 
subsistence fishing, that those kinds of areas are protected.
    Senator Sullivan. But do you think that it expands the 
jurisdiction as presently understood by the law right now?
    Mr. Troll. I'll have to defer to Mr. Litmans on that. But 
certainly, if they are not, they should be. And there may be 
some question as to whether it's an expansion or just a 
clarification that these systems already do exist, or are 
already covered by the Clean Water Act.
    Senator Sullivan. OK. Mr. Litmans.
    Mr. Litmans. Thank you, Senator Sullivan.
    I stand by my testimony that the proposed rule does not 
expand jurisdiction for the Army Corps of Engineers by defining 
``waters of the United States'' as they have.
    Again, the rule is borne out of Rapanos, Bayview, SWANCC. 
Bayview established that adjacent waters are jurisdictional. 
That was a decision where there was no question by the Supreme 
Court about whether or not jurisdictional waters extend beyond 
the traditional navigable, in fact, waters of the United 
States.
    Justice Scalia said they did, in fact, stretch beyond 
traditional navigable waters, in fact, and would include 
adjacent waters because adjacent waters have the ability to 
impact waters of the United States. They have the ability to 
impact the chemical, biological and physical integrity of our 
Nation's waters, and they're therefore rightly regulated under 
the Clean Water Act.
    The bigger issue with respect to jurisdiction was 
established in Rapanos. And there we have a split decision with 
four justices--a 4-4-1 decision by the U.S. Supreme Court, 
which is incredibly unusual.
    The most important thing is that we're discussing today the 
impacts to Alaska. Well, the test for determining jurisdiction 
in Alaska will be controlled by the Ninth Circuit, and the 
Ninth Circuit has adopted Justice Kennedy's test, the 
significant nexus test. That test is the same test that EPA has 
now codified. The only difference post rulemaking, should this 
rule be adopted, is that that significant nexus test will be 
codified.
    Currently, the law of the land is that, if there is a 
significant nexus, that those waters are jurisdictional. 
Because the test is the same for purposes of determining 
whether or not one must get a 404 permit, there's no change in 
circumstances. If there is a significant nexus, then one must 
get a 404 permit.
    With respect to the 3 percent expansion, this comes from 
EPA's March 2014 economic analysis of proposed revisions to the 
definition of ``waters of the United States.'' What EPA and the 
Corps tried to do in that report is assess what the impacts are 
under the new test. And when you look at the 3 percent, it's 
actually a 2.7 percent increase of jurisdictional waters. It 
was 2.7 percent based on an analysis of some 290 permitted 
actions between 2009 and 2010.
    And those--what the Corps did is they went back and they 
said: Under the proposed rule, what would--what would the world 
look like? And it looks very similar if there's a 2.7 percent 
change. And the EPA noted: Well, where does that 2.7 percent 
change come from? It comes from largely the result of 
clarifying current confusion and assessing--over the difficulty 
of assessing ``other waters.''
    There is the potential--when assessing significant nexus, 
we are talking about hydrology, we are talking about science, 
we are talking about impacts to waters of the United States. Is 
there significant impact to the downstream waters? There is the 
potential that you could have scientists look at this and have 
a differing opinion.
    So the 2.7 percent, there's a small margin of error between 
pre and post rule. And I would say, because the significant 
nexus test is the law of the land in the Ninth Circuit, it is 
what EPA adopted, that there is no expansion.
    Senator Sullivan. Would you like to respond, Ms. Sweeney?
    Ms. Sweeney. Thank you, Chairman Sullivan.
    I would like to just hit on the significant nexus test. 
While I respect your opinion, I disagree with my fellow witness 
here.
    With respect to Alaska, especially on the North Slope, 
there is a major disconnect or potential overreach in the 
proposed rule because it provides the Federal Government a 
workaround against the significant nexus test if wetlands on 
top of permafrost are characterized as riparian areas adjacent 
to jurisdictional waters.
    The Congressional Research Service, in their report on page 
3 and 4, they acknowledge that the proposed rule expands 
Federal jurisdiction through the inclusion of all waters that 
are adjacent to--and they list the five different areas: Waters 
susceptible to interstate commerce; all interstate waters 
including interstate wetlands; territorial seas; impoundment of 
the above waters, or tributary. And tributaries of the above 
waters is a broadly defined term in the proposed rule.
    When you look at the decision in Rapanos v. United States, 
Justice Kennedy's concurring opinion concluded that wetlands 
were only waters of the U.S. if those wetlands had a 
significant nexus test to navigable waters. The proposed rule 
prescribes that a significant nexus test will only be performed 
in cases of waters categorized as ``other waters.''
    If wetlands on top of permafrost are categorically 
determined to be riparian areas, then no test is needed. And 
according to the proposed rule there is no significant analysis 
required, thus placing those wetlands predominant to the North 
Slope as ``waters of the U.S.''
    It's important to note that the definition of the 
``riparian area'' in the proposed rule and the language that 
Fish and Wildlife use to define wetlands in Alaska are very, 
very similar. So I would jurisdiction disagree with the notion 
that it does not expand jurisdiction of the Clean Water Act in 
Alaska specific to the North Slope.
    Senator Sullivan. I'd like to just make a broader comment 
with regard to this discussion, because I think it's a 
critically important one.
    You know, one of the concerns I certainly have as Alaska's 
Senator, but I think a lot of Alaskans have, is what's 
happening with regard to Federal overreach that kind of goes in 
a little bit of a rhythm that we've seen with this 
Administration, in a whole host of areas, where they try to do 
something through the Congress, they can't get it done because 
it's not popular, they can't get it through the Congress, so 
they take action or direct action through Federal agencies to 
do it anyway. And I think Alaskans have seen this. I've 
certainly seen this in our State, across a whole host of areas, 
and I think this is one that certainly looks to fit that 
pattern.
    So, in March 2009, the EPA, in the new Obama 
administration, wrote the Congress to try to look at ways to 
maybe clarify, maybe expand the jurisdiction of the Clean Water 
Act. A couple Members of Congress introduced bills to do so. 
Those bills went nowhere.
    In the interim, the Supreme Court reprimanded the EPA for 
taking regulatory action that was in the realm of the powers of 
the Congress, and yet, many view this rule as doing the exact 
same thing.
    So let me ask, Mr. Litmans, if this is an expansion of the 
Clean Water Act, if it's an expansion, which a lot of people 
believe--and Ms. Sweeney, I think, did a good job of laying out 
why, including the Congressional Research Service, that this is 
an expansion--isn't that, under the separation of powers of the 
United States, in the Supreme Court's ruling in Utility Air 
Regulator Group, in which the State of Alaska played an 
important role, isn't that the realm for Congress to make the 
decision on whether the Clean Water Act should be expanded, not 
the realm of an agency? Which does have the role, and I admit 
it, to clarify the law, but certainly not to write the law or 
expand the law, which would be a violation of the separation of 
powers.
    Mr. Litmans. The proposed rule does not expand 
jurisdiction.
    Senator Sullivan. No. But if it did, wouldn't that be the 
realm of Congress and not the EPA?
    Mr. Litmans. The----
    Senator Sullivan. Just simple question, simple answer.
    Mr. Litmans. I can't give a simple answer. It depends on 
how--on what the agencies have done with respect to defining a 
particular term from a statute. The statute, the Clean Water 
Act, the regulatory ability to regulate discharges and fill is 
governed by the Congress. And so if you have a Congress-based 
question, I don't have enough facts to answer your question, 
sir.
    Senator Sullivan. OK. Thank you.
    Let me ask a final question with regard to consultation. 
And as I mentioned, particularly with regard to Alaska, do any 
of the witnesses believe that there was extensive consultation 
on this issue, given the groups that you represent? Whether 
it's tribes, whether it's small communities, whether it's 
agency or organizations that represent different private sector 
entities, was there extensive consultation with regard to this 
rule, particularly how it applies to our unique Alaska 
circumstances?
    Ms. Simon. No.
    Ms. Wasserman. No.
    Ms. Moriarty. No, Senator.
    Mr. Rogers. No. And several of us commented on the 
connectivity rule, Senator, which was of course out for public 
comment before they initiated this rule and it was in draft 
format. There were great concerns over that report, 
particularly how it failed to recognize things like permafrost 
and unique Alaska conditions, and yet, the EPA just marched 
forward with this rulemaking and kind of after the fact made 
amendments to that connectivity report; and yet, it still is 
really void of very thoughtful Alaskan-specific analysis.
    Senator Sullivan. Mr. President, do you have any views on 
it?
    Mr. Kunaknana. [Indication in the negative.]
    Senator Sullivan. Mr. Troll.
    Mr. Troll. No.
    Senator Sullivan. Mr. Litmans.
    Mr. Litmans. I stand by my previous testimony.
    Senator Sullivan. OK. Well, listen, I want to thank 
everybody again. I know we've run over, a little bit of time. I 
really appreciate the great testimony here. The differing views 
are important views. We will certainly be taking these back to 
Washington. But more importantly, we're going to continue to 
try to have these kind of field hearings, so we're coming to 
you, to your communities.
    We're going to conduct another hearing on the proposed 
``Waters of the U.S.'' in Fairbanks on Wednesday. And we just 
appreciate the time, the concern, and we look forward to a 
continuing discussion. Which for Alaska is a very important 
regulation, a very important rule, that as you have seen from 
some of the witness testimony, a lot of the witness testimony, 
there's very big concerns, bipartisan concerns, in the U.S. 
Congress, and I would certainly say bipartisan concerns among 
the vast majority of the States in the United States about this 
proposed rule.
    So I want to thank the witnesses again, and the hearing is 
now adjourned.
    Thank you.
    [Whereupon, at 12:22 p.m., the hearing was adjourned.]
    [Additional material submitted for the record follows:]
 
 
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