Obama administration's controversial water regulation raises alarm among some Alaskans

WASHINGTON -- Alaska lawmakers and a wide swath of industry groups cried "federal overreach" Wednesday when the Obama administration released its long-awaited and controversial "Waters of the United States" rule.

The Environmental Protection Agency, along with the U.S. Army Corps of Engineers, issued the rule to clarify what waters are beholden to federal oversight -- and permitting requirements -- under the Clean Water Act.

"The rule will make it easier to identify protected waters" and is "consistent with the law and the latest peer-reviewed science," EPA Administrator Gina McCarthy said Wednesday. She noted that the agency gathered more than a million public comments and took hundreds of meetings with interested parties over the last year.

Supreme Court rulings in 2001 and 2006 left the agencies to "operate under a lot of confusion" about what requires a permit, said Corps chief Jo-Ellen Darcy. The current state of things often requires a "long, expensive case-by-case process to determine whether the Clean Water Act applies," even before the permit process begins, Darcy said. The result was a "lack of predictability for America's taxpayers."

"Our rule will make it clear which waters are covered and which are not," Darcy said.

But others say the rule could have disastrous impacts on energy and agricultural industries, particularly in Alaska. House Speaker John Boehner, R-Ohio, called it a "raw and tyrannical power grab."

Alaska Rep. Don Young called the rule an "unprecedented expansion of federal jurisdiction over states and private property."


"There's a saying -- a government big enough to give you everything you want is big enough to take away everything you have. This administration's rule-making is exactly one of those instances," Young said.

Sen. Lisa Murkowski said the rule will "threaten economic activities across the country -- and nowhere is the impact more likely than Alaska," which contains more than half the nation's wetlands. That puts Alaska "directly in the sights of the federal bureaucrats back in Washington, D.C., who will now be able to make decisions from more than 4,000 miles away about how we develop almost any part of our state."

And Alaska Sen. Dan Sullivan said the rule "impacts no state more than my own." Having held multiple hearings on the rule in Washington and Alaska, he said, "it is clear that Americans from vastly different industries, ideologies and regions are clearly opposed to the scope of this rule and the process through which it was crafted."

Courts have been unsure about how to apply the Supreme Court's rulings on the scope of the law, resulting in case-by-case determinations across the U.S. for whether a water body has a "significant nexus" to an already protected waterway. The administration argues that the new rule will provide clarity and limit the need for all those costly case-by-case decisions.

The issue has consumed nearly a decade of EPA and Corps efforts, and the efforts of a slew of industry groups, such as the Chamber of Commerce, the American Farm Bureau Federation, the National Association of Home Builders, along with oil and gas, mining, timber and other industries.

The EPA began during the George W. Bush administration with a "guidance" document to clarify the scope of the rule. But the document got a lot of pushback and drew requests for a more extensive rule-making process, including from many that today oppose the outcome, such as former Alaska Gov. Sean Parnell and the Alaska Miners Association.

"Members of Congress, developers, farmers, state and local governments, energy companies, and many others requested new regulations to make the process of identifying waters protected under the CWA clearer, simpler, and faster," the rule's preamble says. While the rule itself is brief, the preamble, detailing the reason for the rule-making and much of the agency's thinking on the matter, clocks in at nearly 300 pages.

But the rule isn't what they wanted.

Earlier this month, the House passed a bill requiring the agencies to start over. The White House already threatened to veto it, saying the bill would "derail current efforts to clarify the scope of the CWA, hamstring future regulatory efforts, and deny businesses and communities the regulatory certainty needed to invest in projects that rely on clean water."

Nevertheless, on Wednesday Sullivan called on the Senate to quickly pass a similar bill that he co-sponsored requiring the administration to redo the rule. The legislation would "not only help to clarify jurisdiction and prevent unlawful federal overreach, but it would also help to ensure that the protection of Alaska's precious resources remain in the hands of those who live near and rely on them," Sullivan said.

The junior senator held two field hearings in Alaska in April, in Anchorage and Fairbanks.

Alaska-specific issues

Alaska-related concerns with the regulation abound.

The state's congressional delegation and others, including the Council of Alaska Producers, have expressed concern that the rule doesn't adequately deal with Alaska's many areas with underlying permafrost that become covered with wetlands during the summer months.

"Oil and gas operations, road transportation projects, mining, and even some of the most basic types of activity undertaken where permafrost or seasonal wet areas exist, will in all likelihood become subject to federal jurisdiction -- even if these waters never reach 'navigable waters,' " Young said Wednesday.

And like the rest of the nation, Alaska farmers have long worried they'll be scooped up under a new interpretation of federal jurisdiction.

Bryce Wrigley, president of the Alaska Farm Bureau and founder of the Alaska Flour Co., said this week that he and other farmers worry that the administration will expand the definition of "significant nexus," which determines what waters are connected to traditionally-protected waterways, and thus also beholden to permitting requirements. He worries that swales on his farm that hold water as snow melts in the spring, though temporarily, would now be subject to EPA jurisdiction. Before he could till the fields, he'd have to get a dredge and fill permit, he said. That means a lot of money and time that he and many farmers just don't have.

"The result of this rule will be to take land that has traditionally been under the jurisdiction of the state and place under federal jurisdiction. That should be a big concern of Alaska," Wrigley said. But to be clear, Wrigley added, "I don't want to see an exemption for Alaska. I just want to see a defeat of the rule."


The Obama EPA has long faced conflict with farmers over its regulatory efforts. Wrigley and others have questions about which farmland qualifies for exemptions. He said current law applies only to land farmed since 1977, with no change in ownership or operation. Most of the farmland in Alaska was cleared after that, he said.

But the EPA says that's not the case: "Prior converted crop lands" is a term managed by the U.S. Department of Agriculture, and refers to "wetlands that were drained before December 1985 or where a farmer received a commenced conversion determination that allowed farmers to continue their conversion activities into the 90s," the agency said. "Current law does not require the land to be farmed every year. The land only needs to remain in an agricultural use. EPA respects the determinations made by USDA."

And the agency argues that the rule won't get in the way of farmers. "The rule does not add any new requirements for agriculture and retains all the decades-long exemptions for farming," EPA chief Gina McCarthy said Wednesday. She called farmers and ranchers "America's original conservationists," and said the rule "will not get in the way of agriculture."

Changes between the draft and final rule include a clearer definition of "tributary," measurable boundaries for determining what is "adjacent" to a navigable water, and more clarity about when agricultural "ditches" are covered -- essentially when they act as a tributary, McCarthy said.

"They asked us about ditches, and they asked us about ditches, and they asked us about ditches," McCarthy said of the agency's interaction with farmers.

"I'm not diminishing the fact that they have real concerns," McCarthy said, but "we really paid attention to this issue."

The final rule says that the Clean Water Act permitting requirements do not apply to groundwater or shallow subsurface water, McCarthy added.

Vocal critics

Over the last year, the Obama administration has heard from a slew of Alaska industries, lawmakers and individual citizens -- most of them critical or outright opposed to the rule.


The Alaska Independent Fishermen's Marketing Association was one of the few to back the rule, aside from individuals supporting environmental groups' efforts.

"Unfortunately, some in Congress and even in the agricultural industry misunderstand what EPA is doing," AIFMA president David Harsila told the agency late last year. "EPA's proposed rule does not add to what has always been covered by the Act," he said.

To the contrary, the agencies got a lashing from the Arctic Slope Regional Corp. and the Alaska Miners Association, which said the rule "radically redefines" and broadens what is covered under the law. Local lawmakers from rural areas, including Aleutians East Mayor Stanley Mack and Kodiak Island Borough Mayor Jerrol Friend, raised concerns that the rule could have an outsized negative impact on development in their rural areas.

Then-Alaska Senate President Charlie Huggins, R-Wasilla, told the EPA last year that broadening federal jurisdiction over waters "means that costs will certainly rise for Alaskans," because construction and oil and gas industries will be saddled with new permitting costs.

The EPA did respond to some Alaska concerns. The Resource Development Council for Alaska, for instance, asked the EPA to be clearer about when a water should be included if it is part of a flood plain. A "floodplain could encompass all of the North Slope," RDCA told the agency late last year. In the final rule, the agency clarified that only flood plain waters within 1,000 feet of a waterway would be protected by the law.

In recent weeks the EPA has caught flak not just over the content of the rule, but how the agency went about it. A recent New York Times story detailed the agency's extensive "grass roots" style efforts on social media and elsewhere to drum up support.

Republican members of the Senate Environment and Public Works Committee, including Sullivan, wrote the EPA last week asking for more information on the agency's promotional efforts. The senators accused EPA officials of dissembling public opinion by focusing on the agency's haul of 1 million mostly positive public comments when the vast majority of those comments were the result of mass mailings the EPA supported and promoted. The bulk of substantive comments were actually critical of the proposed rule, the lawmakers said.

On Wednesday, New York Times public editor Margaret Sullivan rejected allegations that the article was a "hit piece," filled with "erroneous" and "sloppy" reporting, according to a top EPA official. After a review of the reporting, Sullivan said it was "a solid story that raises important questions about how executive agencies may engage in advocacy" and a "legitimate examination of a worthwhile issue."

McCarthy said Wednesday that the EPA did "very effective" outreach using social media, "and we did nothing that would cross any legal lines." The rule "generated a million comments ... and we paid attention to each and every one of them," McCarthy said.

While the EPA rejected assertions of improper activities, the agency doubled down on its promotional tactics Wednesday, releasing a long list of quotes from approving environmental groups to the media, and providing some preferred Washington, D.C., media outlets an advance on the rule's release and an exclusive call with White House officials Wednesday morning.

"EPA officials have been on a public relations campaign as of late to generate support for their rule," Murkowski said. "I wish the administration had instead spent their time and focus listening to Alaskans and others across the country about the serious issues this rule poses, and made changes to bring certainty to the permitting process."

Erica Martinson

Erica Martinson is Alaska Dispatch News' Washington, DC reporter, and she covers the legislation, regulation and litigation that impact the Last Frontier.  Erica came to ADN after years as a reporter covering energy at POLITICO. Before that, she covered environmental policy at a DC trade publication and worked at several New York dailies.