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Proposed US waters rule raises hackles Opponents of proposed Clean Water Act rule claim federal overreach, increased project costs and insufficient Alaska consultation Alan Bailey Petroleum News
Concerns and a lively debate continue over the scope of federal jurisdiction over water bodies in Alaska, following the March 14 publication by the Environmental Protection Agency and the U.S. Corps of Engineers of a proposed rule that attempts to clarify the definition of what is meant by the waters of the United States, the waters subject to federal regulation under the Clean Water Act.
On April 6 Sen. Dan Sullivan, R-Alaska, held a field hearing in Anchorage of the Senate Environment and Public Works Committee. Sullivan, chair of the Fisheries, Water, and Wildlife subcommittee, wanted to gather views on the proposed new rule.
Waters of the US The issue of federal jurisdiction over water is simple in principle but complex in practice: While most people agree that the federal government can regulate navigable waters that are capable of supporting interstate commerce, problems arise from the fact that these obvious waters of the United States can become polluted by materials discharged into other connecting waterways or wetlands. So where, exactly, do the waters of the U.S. end and local or state waters begin?
This question matters, because any activity impacting U.S. waters typically requires federal permits, such as a dredge-and-fill permit. And federal permitting then triggers the need for a federal environmental review, potentially leading to the development of an environmental impact statement, a process that might take a couple of years to complete. All of this adds up to cost as well as time for the activity in question.
And, with a myriad of water bodies and vast areas of wetlands, the state of Alaska has much at stake.
Lack of clarity Previous challenges over federal jurisdiction have ended up in the U.S. Supreme Court. But the court, rather than settling the issue, failed to reach consensus, instead in 2006 issuing two differing opinions. Hence the need for greater regulatory clarity.
Under the proposed new rule, all territorial seas, navigable waters, interstate water and tributaries of these waters, would be considered to be U.S. waters, as would navigable waters impounded behind a structure such as a dam, and wetlands adjacent to these other water bodies. The federal agencies also want the ability to designate some other waters as U.S. waters, depending on the relationships between the various water bodies involved.
Strong exception Sullivan has taken strong exception to the proposed rule, claiming that the rule would greatly extend the scope of water bodies over which the federal government has jurisdiction, hence expanding the scope of the Clean Water Act without U.S. congressional approval.
“It should be stressed that the proposed water of the U.S. rule may be one of the most important, significant expansions of federal jurisdiction we have seen to date in Alaska,” Sullivan said during his introductory comments in the field hearing. “The tentacles of the Clean Water Act extend far beyond simply federal lands and would impact the ability of states and private landowners to use their land.”
Scope increase Michelle Hale, director of the Division of Water in the Alaska Department of Environmental Conservation, said that her agency believes that the proposed rule would significantly increase the number of water bodies that would come under federal jurisdiction and hence require federal permits. Hale also accused the federal agencies of failing to adequately consult with the state in the development of the rule.
“It’s been our experience that the federal government thinks that they know how to make rules better than the state governments,” Hale said.
Hale said that the rule does not take into account Alaska’s unique features - there is no mention in the role of tundra or permafrost, for example, she said.
Tara Sweeney, executive vice president for external affairs for Arctic Slope Regional Corp., the Native regional corporation for the North Slope, expressed concern that the proposed rule would designate 44.5 percent of Native land as jurisdictional wetlands - this land has been assigned to Native ownership under the terms of the Alaska Native Claims Settlement Act. The designation would limit the ability of the Native people to use their lands for their self-determination and future prosperity, Sweeney argued.
However, Sam Kunaknana, president of the tribal council for the Native Village of Nuiqsut on the North Slope, said that he supports the proposed rule as a means of preventing water pollution entering the food chain of the Arctic wildlife that underpins the Native subsistence way of life. All of the various water systems on the Slope are interconnected, he said.
Cost implications Representatives of Alaska resource development industries homed in on the potential cost implications of the proposed rule. Rick Rogers, executive director of the Resource Development Council for Alaska, said that, as well as grossly understating the scope of the increase in jurisdictional wetlands, EPA had grossly underestimated the cost of implementing the rule. The federal government already has jurisdiction over 61 percent of Alaska land: The proposed rule, by determining wetlands to be jurisdictional, would extend that federal jurisdiction to private, Alaska Native corporation, state and municipal lands, Rogers said.
Kara Moriarty, president and CEO of the Alaska Oil and Gas Association, said that the rule will give EPA regulatory authority over virtually any water feature in Alaska with any tentative or hypothetical connection to traditional navigable waters.
“I cannot emphasize enough that federal rules of the nature proposed by EPA in this instance have a huge and disproportionate impact on the Alaska public, private and Native interests,” Moriarty said. “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.”
Moriarty commented that it can take up to two years to obtain a Corps of Engineers wetlands permit and that the cost of applying for and obtaining a permit for discharges into U.S. water can amount to $300,000.
Trans-Alaska pipeline Rod Hanson, vice president for system integrity, engineering and projects for Alyeska Pipeline Service Co., operator of the trans-Alaska oil pipeline, expressed concern that the proposed rule would increase the cost of operating the pipeline at a time when the pipeline is already facing significant operational challenges. For example, under the rule, water removed from construction project sites, as well as drainage from precipitation, could become subject to federal jurisdiction and thus require federal permits, he said.
Lorali Simon, vice president of external affairs for Usibelli Coal Mine, expressed concern about project delays and costs, should the water impoundments, ditches, ponds and other structures common in mining operations become subject to federal permitting requirements. Simon also commented on possible increased requirements for what is called “compensatory mitigation,” the mandated restoration of wetlands in compensation for wetlands impacted by industrial operations.
“If the proposed expansion of jurisdictional water becomes final, it will be nearly impossible in Alaska to meet the compensatory mitigation requirements,” Simon said.
Kathie Wasserman, executive director of the Alaska Municipal League, said that a variety of items of municipal infrastructure could be impacted by the new rule, including roadside ditches and stormwater systems.
Brian Litmans, senior staff attorney for environmental law firm Trustees for Alaska, argued that, by clarifying the definition of U.S. waters, the proposed rule would actually narrow the scope of waterways that fall under federal jurisdiction. Following lack of clarity from Supreme Court decisions, the regulating agencies have taken an expansive view of that definition, with the 9th Circuit Court of Appeals, the court that handles Alaska regulatory appeals, tending to support that more expansive approach, he said.
Mark Richards, chairman of the Alaska chapter of Backcountry Hunters and Anglers, also said that, by clarifying the designation of U.S. water, the proposed rule would reduce the extent of federal jurisdiction. Richards also commented that the cost of the regulation forms part of the cost of ensuring clean water and a healthy habitat for fish and game.
Tim Troll, executive director of Bristol Bay Heritage Land Trust, expressed support for the proposed rule, saying that a survey of water bodies that his organization had conducted in the Nushagak River watershed had demonstrated that virtually all of the water bodies were interconnected, thus indicating that environmental abuse in the headwaters would impact everything downstream.
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