[Congressional Record (Bound Edition), Volume 161 (2015), Part 8]
[Senate]
[Pages 10466-10468]
[From the U.S. 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

[[Page 10467]]

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 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

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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.
  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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