[Congressional Record Volume 161, Number 103 (Thursday, June 25, 2015)]
[Senate]
[Pages S4629-S4631]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EPA RULE ON WATERS OF THE UNITED STATES
Ms. MURKOWSKI. Madam President, I came to the floor today to speak
about an issue--a regulation that has raised a level of concern and
controversy in my State of Alaska like no other we have seen in a long
time, and this is in regard to the EPA and the Army Corps of Engineers
and their release of a final version of a rule that significantly
increases the ability of these agencies to regulate more of our land
and our water. I am speaking specifically to the rule that expands the
definition of ``waters of the United States'' under the Clean Water
Act.
Coming from the State of Nebraska, an agriculture State, I am sure
the Presiding Officer has heard concerns from constituents and farmers
about the expansion of this definition and what it may mean to our
economies.
The EPA claims this rule--and we lovingly refer to it as WOTUS--is a
clarification to provide certainty and predictability as to where clean
air permits are required. But the view of so many Alaskans--and really
the view around the country--is that this rule is far beyond a simple
clarification because it substantially increases EPA's regulatory
reach. It will subject countless new projects to permitting
requirements that will be difficult to satisfy, increasing cost and
certainly increasing project delays.
The application of the WOTUS in Alaska is expansive and it is
negative. It is something I have described as a showstopper in the
past, and none of the changes in the final rule alter that
[[Page S4630]]
description. If anything, they just serve to reinforce it. The rule
really was a showstopper when it was drafted, and it remains at least
as bad and damaging today.
According to the U.S. Fish and Wildlife Service, there are more than
174 million acres in Alaska that are wetlands. There are 174 million
acres in the State that are considered wetlands, so compare this: The
entire State of Texas is 172 million acres. Everyone in the lower 48
thinks Texas is a pretty big State. My friend John Cornyn was here
earlier. Texas has 172 million acres. In Alaska, we have 174 million
acres of wetlands. So take the whole State of Texas and turn it into
wetlands, and that is what we are looking at in Alaska.
Look at this map for a little bit of context. Under the old rule,
43.3 percent of Alaska's surface is considered wetlands compared to
about 5.2 percent of the surface area in the lower 48. This map is
pulled from the U.S. Fish and Wildlife Service's wetlands finder Web
site. It may be difficult to see, but these areas in the brighter green
are all the wetlands. The area of southeastern Alaska, where I was born
and raised, is entirely wetlands. The entire southeastern part of the
State is wetlands--in Fairbanks, in the interior area, Southcentral,
all around Prince William Sound, all the southwest.
But I think it is important to note that this Web site which Fish and
Wildlife has is lacking data for a significant part of Alaska, and so
the map is effectively incomplete. The last study conducted by the
Service on the status of wetlands in the State was done back in 1994,
which really puts it out of date. It doesn't take into account the
recent Supreme Court decisions of Rapanos and SWANCC. So we have
another map here that I think is instructive to look at as well.
This map is pulled from a study by the University of Michigan and the
Jet Propulsion Laboratory at the California Institute of Technology. In
this map, they use L-band radar satellite imagery. It probably produces
a more complete and accurate view of the wetlands in the State. Again,
we see all of these areas that are considered wetlands, but, in effect,
more parts of the State are considered wetlands or viewed as wetlands
than not.
So what we have between these two maps--between what Fish and
Wildlife has done and what the University of Michigan and the
California Institute of Technology has done--are some discrepancies,
but it illustrates the problem. The problem is that nobody really knows
what will be considered wetlands by the EPA and by the Corps, and if
the new rule takes effect, that problem will only be compounded because
it declares that any water or wetland within 4,000 feet of a
``categorically jurisdictional water'' will now be subject to this
``significant nexus'' analysis. That analysis will include the entire
water at issue even if only a tiny part of that lies within the 4,000-
foot boundary.
If you are like most Americans, you probably and understandably have
no idea how to define a categorically jurisdictional water. You
probably don't have any interest in learning how to define it. But what
you may soon find is that it is going to impact you because it will
include all waters used or susceptible to use in interstate commerce,
all interstate waters, the territorial seas, all tributaries to those
bodies of waters, and all waters adjacent to all those other enumerated
waters. That is a lot of water.
Again, you probably and understandably aren't familiar with this
significant nexus analysis, either. I mean, really, what does that
mean? Here is a way to help put it into context. If you have a 500-acre
plot of land and within that 500 acres you have 10 square feet that are
within 4,000 feet of any jurisdictional water, your entire parcel--the
whole 500-acre plot--will now be evaluated as a whole. Even though the
area we are talking about where there are wetlands is like 10 square
feet out of 500 acres, the whole thing is considered as a whole. The
significant nexus analysis must include all similarly situated waters.
So, again, you will have a situation where EPA and the Corps are going
to interpret broadly.
What does all this mean in terms of application? It is interesting,
looking at maps and having this discussion about categorically
jurisdictional waters and significant nexus, but let's take a specific
example.
Take the community of Fairbanks, where I spent a lot of time growing
up. Fairbanks is in a valley, it is in the Tanana Valley surrounded by
a pretty large watershed. The Tanana River, Chena River, we have a
situation in this area in Fairbanks where all of the wetlands in the
basin have been declared similarly situated. What that means is that a
landowner will be forced to prove that none of the wetlands in the
basin, as a whole, have a significant physical, chemical or biological
connection to either the Tanana or the Chena Rivers. That is
practically an impossible hurdle. There are thousands of acres of
wetlands in that basin that are now all effectively subject to
jurisdiction under this new rule. Every single person who wants to do
any sort of development in Alaska's second-largest city will now be
required to get some form of a permit. This includes the guy who wants
to build a cabin up on Chena Ridge or the small dredge operator out in
the Goldstream Valley or the developer out in North Pole who wants to
put in a new subdivision. To all of them: Go out and get your permit.
The bureaucratic mess that is the 404 permitting process has already
held back crucial development within the State, and this new rule is
only going to make things worse. Now, I wish to go further to the
Fairbanks example and to tell the story of Richard Schok. He has a
company called Flowline. He has been engaged in an ongoing battle with
the Corps since May 21, 2008. That was the day Richard submitted a
permit application to the Corps. It was a reapplication for a permit
which had been granted back in 2003. We might think, OK, this is just a
reapplication. This is a permit which has been in place now for 5
years. It should have been an easy matter. Instead, Richard is still
fighting the Corps--this many years after, still fighting the Corps for
a new permit. Since 2008, the Corps has connected the piece of property
at issue to the Tanana River, the Chena River, and something known as
Channel B, which is a manmade waterway used for flood control purposes.
The Agency's first attempt to establish jurisdiction over his private
land, which consists of 455 acres outside of Fairbanks, was through the
Tanana River. They looked at it, and after administrative review, it
was held there was no connection between the subject land and the
Tanana. So we would have thought we were done with it. But, no, rather
than just allow Mr. Schok to develop his private land, the Corps then
switched theories on him and said: No, we think the land is connected
to the Chena River instead. But then they went further than that. They
settled on a third theory, and that was that the wetlands had a direct
connection to Channel B. Channel B is over 2 miles away from Mr.
Schok's property via a small 20- to 50-foot-wide wetland arm, since
Channel B drains into the Chena River. So when you are talking about a
significant nexus, how remote could you possibly be.
So there are a couple problems with this analysis. First, the strip
of land they labeled as wetlands wasn't wetlands at all. People drive
four-wheelers on it. You can walk on it in tennis shoes. Basically,
this is the land they are describing as wetlands. The guy has taken a
core sample here. It is muddy underneath, but effectively this is what
is being considered the wetlands. Second, Channel B contributes less
than 1 percent of the total flow to the Chena River. We would think
that should not suffice for a finding of a significant nexus, but the
Corps thinks it does. So to date, this permitting battle has cost Mr.
Schok over $200,000, and that doesn't count the 1,000 man-hours he and
his staff have put into the project. All he is trying to do is move his
business from its current location, which is limited in size, to this
new piece of land--his private property--and open a new powder coating
plant. The move would allow him to expand his operations, employ more
people, and contribute to the growth of Alaska. But since 2008, he
can't make it happen.
The PRESIDING OFFICER. The Senator's time has expired.
Ms. MURKOWSKI. Madam President, I ask unanimous consent to continue
for an additional 4 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
[[Page S4631]]
Ms. MURKOWSKI. I also wish to speak to how the rule impacts the
development of hydropower in the State of Alaska. We are looking to
find energy solutions, clean energy solutions. Hydropower is huge for
us. Alaska has nearly 300 prime locations for hydrodevelopment, nearly
200 in Southeast Alaska alone, but many of them require the
construction of powerhouses or transmission lines that may rest on
wetlands or cross wetlands as defined by the new rule--and that is a
big problem.
A good example of this is Crater Lake, a fishing community of
Cordova, down in Prince William Sound. Crater Lake is at an elevation
of 1,600 feet, straight up from the ocean. Cordova has been looking at
this small hydro opportunity to advance their energy solutions. It is
clean. It is renewable. It is carbon free. There are no fish issues. So
this is perfect for them. Prior to WOTUS, it was anticipated that it
would be about a 12- to 18-month process to permit this small
hydroproject. What the Federal nexus WOTUS brings, this project is now
likely to end up in the FERC process, and what was expected to be about
$150,000 to $200,000 in permitting costs is now looking to be closer to
$1 million and take potentially 3 to 5 years. Think about it. For a
small community like Cordova that is trying to find small energy
solutions for this fishing community, these additional costs are likely
going to kill this small project. And what happens? The community
continues providing their power by diesel, when we have a clean
opportunity, but that opportunity is going to be suffocated by this
rule.
Most of coastal Alaska, with its rugged mountains filled with
rivulets and waters, will be subject to these case-by-case
determinations. Simply performing the science and providing
justification to the EPA for these adjacent water determinations will
add cost to projects and likely delay any development as the
determinations are litigated.
If any projects do make it to the finish line, their higher costs
under this rule will mean their electricity is ultimately less
affordable for Alaskans. The costs we face when developing in Alaska
are already steep enough. They will be magnified and worsened by the
final WOTUS rule. I am grateful to our colleagues on the EPW Committee,
who recently reported out bipartisan legislation, which I cosponsored,
which requires the agencies to develop a better rule.
These two bills will help provide relief to local governments. The
Infrastructure Rehabilitation Act will allow the Secretary of the Army
to waive the notice and comment period required by the Clean Water Act
when a natural disaster has damaged critical infrastructure and a local
government needs to rebuild.
We also have the Mitigation Facilitation Act, which will allow the
Secretary to provide loans to local governments in order to ease the
burden created by 404 permits and the overreaching scope of the new
WOTUS rule. If the Federal Government is going to require hugely
burdensome and expensive mitigation projects, effectively an unfunded
mandate, the government should assist municipalities by providing loans
and loan guarantees to small local entities. So I have introduced these
two bills and am looking forward to having them move forward, in
addition to what the EPW Committee has done.
Alaska will be the State most heavily impacted just because of the
nature of our wetlands. An analyst done by EPA and the Corps suggests
that at the high end, the mitigation costs to Alaska could be $55,000
per acre--$55,000 an acre. With 43 percent of our land requiring
mitigation for any sort of development, these costs will halt many
development projects. And when combined with the cost of even getting a
permit, which averages about $270,000, economic development will be
seemingly impossible in many parts of the State.
But it goes further than that because EPA can also issue civil
penalties for violations of a permit or for failing to have a permit
when it thinks you should have one. These penalties can be assessed at
a rate of up to $37,500 per day and doubled if the person being fined
has been issued an administrative compliance order and EPA decides
there has been a violation of that order. The threat of these penalties
is another cost that people have to take into account when they are
developing property.
There are so many places in Alaska that are more than 4,000 feet away
from some kind of water. We are close to water. We are close to water
everywhere. We have too many rivers, too many lakes, too many wetlands.
We love them all. But we are the only State that has permafrost, and we
have no idea at this point in time whether or not, and under what
circumstances, these areas might be regulated. We have incredible
uncertainty working against.
The bottom line is that the new WOTUS rule will have results that in
many cases will just be absurd in Alaska and add significant,
significant costs. For us, this rule is the equivalent of the Roadless
Rule that killed off logging in the Tongass National Forest, ending
hundreds of jobs.
I know this is an issue that many of us in this body care about, many
of us in this country care about. It speaks to what we see when we have
agencies that go beyond their jurisdictional authority, that go beyond
the scope of the laws that were passed with good intentions. I want us
to get back to that place of laws that allow us to have clean air,
clean water. But when we see interpretations like we have with this, it
is time to stop them.
Madam President, I thank my colleague for the indulgence of some
additional time.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Jersey.
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