Alaska News

New federal waters rule blasted at US Senate field hearing

Depending on who you ask, a new federal proposal will make Alaska water safer for animals and humans, or it will gut the economy by putting millions of new acres of lakes, wetlands, even wet tundra under the permitting requirements of the Clean Water Act.

Welcome to the national debate over what the Environmental Protection Agency, working with the U.S. Army Corps of Engineers, says is an effort to clarify its definitions of waters that fall under the act's jurisdiction, a process sparked by Supreme Court decisions and requests for clarity from Congress.

Much of the discussion has taken place outside Alaska, but the issue came to the state Monday, with Sen. Dan Sullivan holding his first field hearing as chair of a subcommittee of the U.S. Senate Environment and Public Works Committee.

With 43,000 miles of coastline, millions of lakes and two-thirds of the nation's wetlands, Alaska will be the most-impacted state, Sullivan said. He pointed out that the hearing was designed to highlight Alaska's broad concerns for Washington lawmakers and administrators.

The EPA, countering what it calls "myths" and inviting supporters to "Tweet the truth," has said on its website that the rule does not protect any types of waters that have not already been covered under the Clean Water Act of 1972.

But several of the panelists at the meeting said the proposed rule would bring about immense changes.

Sullivan, calling the measure one of the "most important, significant expansions of federal jurisdiction" in Alaska to date, said it will greatly expand the waters regulated by the EPA under the act. He has co-sponsored a Senate measure designed to rein in the proposal.


Natural resource projects would face more extensive federal permitting requirements than they do now, he said. New permitting hurdles would be required for everything from harbors to roads to farmers plowing land or even homeowners doing backyard work. He said the rule was a typical approach by the Obama administration, attempting to expand laws on its own without approval from Congress.

"If the rule is finalized in its final form, many Alaskans would be subject to getting a permit from the EPA even to dig ditches in their own backyard," he said.

But panelist Brian Litmans, senior staff attorney for Trustees for Alaska, an environmental law firm, said the rule simply clarifies existing language. The additional clarity would help capture some water that was not previously under the act's jurisdiction but should have been.

The proposal stems from actions by the U.S. Supreme Court, which defined the current law of the land to determine what falls under the act's jurisdiction, he said. "This rule codifies the determinations that have come out of the Supreme Court," he said.

The EPA estimated that 2.7 percent more area would become "jurisdictional waters" if the proposed rule goes into effect, Litmans said.

Sullivan said that expansion would be massive in Alaska, expanding those waters by millions of acres. But he said the EPA was understating the act's effect, as well as the huge economic impact to businesses, governments and individuals.

Six of the 10 panelists invited by leaders of the Republican-led subcommittee opposed the new rule and wanted it shelved. Four said they supported it.

Views differed widely between the two sides' most extreme views.

Lorali Simon, vice president of external affairs for Usibelli coal mine in Healy, said the rule would likely stop all development in the Alaska, from small private undertakings to large resource projects.

"Alaska has unique features such as permafrost and tundra that could be considered jurisdictional waters," she said. Many more mining efforts would be affected because they use structures such as impoundments, ditches, channels, ponds and pits that could fall under the act's permitting requirements.

Tim Troll, executive director for the Bristol Bay Heritage Land Trust, said the new rule confirms the obvious. Not protecting upstream areas, including even isolated water pockets where maturing salmon might wait two years for higher water and an ocean link, could destroy commercial fisheries, sport fishing and local economies.

"If we pretend these areas aren't important and let them fall victims to abuse, history has shown everything downstream could be lost," he said.

Despite the wide differences, there was no dispute on whether Alaska was adequately consulted by the EPA, though Litmans said he did not have enough information to comment on that topic.

An EPA spokeswoman reached in Washington, D.C., said in an email that the agency has "conducted robust outreach to the full spectrum of stakeholders," held more than 400 meetings all across the country, and responded to every request from outside groups to discuss the proposal.

"EPA officials from Washington, D.C., traveled across the country, holding roundtables in nine states and visiting farms in Texas, Colorado, Pennsylvania, Arizona, Missouri, New York, Vermont, Maryland, and Mississippi," said Marianne Holsman.

"The EPA and the U.S. Army Corps of Engineers will give careful consideration to all comments received and aim to publish a final rule in spring 2015," she said.

But many of the panelists contended Alaska had been ignored. Panelist Kathie Wasserman, executive director of the Alaska Municipal League, said her group represents more than 150 local governments in Alaska. But it was never contacted by the agency.


During one meeting last year, the EPA invited tribes and local and state governments to attend a meeting in Washington state. But as far as she could tell, Alaska entities weren't notified, she said. She learned of the meeting three weeks after the invitation had been issued, through the National Association of Counties based in Washington, D.C. By then, it was too late for the league's expert on the topic to travel from remote Unalaska, she said.

"I called the EPA in Washington, D.C., and was told that, 'Oh, they didn't have my phone number.' I don't know what that means," she said.

She said numerous municipal projects that were never designed to meet the act's requirements could be affected, including roadside ditches, bridges and storm water systems. That would put additional costs on small governments that are already struggling to make ends meet.

"I think this is despicable that we have been left out in the cold on this," she said of Alaska.

Tara Sweeney, executive vice president of external affairs at ASRC, a regional Native corporation, said vast new areas of the North Slope would fall under the rule, including even tundra and permafrost. Still, she said, the EPA had not consulted with ASRC and had not done a good job of consulting with other Native groups, including other corporations and tribes.

Samuel Kunaknana, president of the tribal village of Nuiqsuit, supported the proposed rule to protect clean drinking water and caribou, fish and other subsistence animals near his Arctic community. But he said he concurred with Sweeney's view that the agency had not met its consultation requirements to Alaska Natives.

Alex DeMarban

Alex DeMarban is a longtime Alaska journalist who covers business, the oil and gas industries and general assignments. Reach him at 907-257-4317 or