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95–764 PDF 2015

S. HRG. 114–55 

IMPACTS OF THE PROPOSED WATERS OF THE 

UNITED STATES RULE ON STATE AND LOCAL 

GOVERNMENTS AND STAKEHOLDERS 

FIELD HEARING 

BEFORE THE

SUBCOMMITTEE ON FISHERIES, WATER, 

AND WILDLIFE 

OF THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

APRIL 6, 2015—ANCHORAGE, AK 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys 
(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

JAMES M. INHOFE, Oklahoma, Chairman 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

SHELLEY MOORE CAPITO, West Virginia 

MIKE CRAPO, Idaho 

JOHN BOOZMAN, Arkansas 

JEFF SESSIONS, Alabama 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

MIKE ROUNDS, South Dakota 

DAN SULLIVAN, Alaska 

BARBARA BOXER, California 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

RYAN JACKSON, Majority Staff Director 

BETTINA POIRIER, Democratic Staff Director 

SUBCOMMITTEE ON FISHERIES, WATER, AND WILDLIFE

DAN SULLIVAN, Alaska, Chairman 

JOHN BARRASSO, Wyoming 

SHELLEY MOORE CAPITO, West Virginia 

JOHN BOOZMAN, Arkansas 

JEFF SESSIONS, Alabama 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

MIKE ROUNDS, South Dakota 

JAMES M. INHOFE, Oklahoma (ex officio) 

SHELDON WHITEHOUSE, Rhode Island 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

BARBARA BOXER, California (ex officio) 
(III) 

C O N T E N T S 

Page 

APRIL 6, 2015 

OPENING STATEMENT 

Sullivan, Hon. Dan, U.S. Senator from the State of Alaska ................................ 1 

WITNESSES 

Hale, Michelle, Director, Division of Water, Alaska Department of Environmental Conservation ............................................................................................ 3 

Prepared statement .......................................................................................... 5 

Sweeney, Tara, Executive Vice President, External Affairs, Arctic Slope Regional Corporation ................................................................................................ 11 

Prepared statement .......................................................................................... 14 

Moriarty, Kara, President/CEO, Alaska Oil and Gas Association ....................... 24 

Prepared statement .......................................................................................... 26 

Rogers, Rick, Executive Director, Resource Development Council for Alaska ... 29 

Prepared statement .......................................................................................... 31 

Hanson, Rod, Vice President, Alyeska Pipeline Service Company ...................... 35 

Prepared statement .......................................................................................... 37 

Wasserman, Kathie, Executive Director, Alaska Municipal League ................... 43 

Prepared statement .......................................................................................... 46 

Simon, Lorali, Vice President, External Affairs, Usibelli Coal Mine .................. 50 

Prepared statement .......................................................................................... 52 

Troll, Tim, Executive Director, Bristol Bay Heritage Land Trust ....................... 55 

Prepared statement .......................................................................................... 57 

Kunaknana, Samuel, Tribal President, Native Village of Nuiqsut ..................... 60 

Prepared statement .......................................................................................... 62 

Litmans, Brian, Senior Staff Attorney, Trustees for Alaska ............................... 64 

Prepared statement .......................................................................................... 66 

Richards, Mark, Chairman, Alaska Backcountry Hunters and Anglers ............. 70 

Prepared statement .......................................................................................... 72 

ADDITIONAL STATEMENTS 

November 14, 2014, letter from the Governor of Alaska to the Environmental 

Protection Agency and the Department of the Army ........................................ 85 

November 14, 2014, letter from the Alaska Department of Environmental 

Conservation to the Environmental Protection Agency and the Department 

of the Army ........................................................................................................... 87 

Attachment 1—December 16, 2013, oral testimony to SAB panel ............... 117 

Attachment 2—November 6, 2013, State of Alaska comments on EPA 

connectivity study ......................................................................................... 119 

Attachment 3—October 1, 2014, review by the Small Business Administration’s Office of Advocacy regarding the economic impact of the proposed rule on small businesses .................................................................... 132 

Attachment 4—Image of Alaska superimposed on the contiguous U.S. ...... 141 

Attachment 5—Alaska permafrost map ......................................................... 142 

April 4, 2015, statement of the Alaska Association of REALTORS® ................. 143 

April 6, 2015, statement of the National Association of REALTORS® .............. 145 

(1) 

IMPACTS OF THE PROPOSED WATERS OF 

THE UNITED STATES RULE ON STATE AND 

LOCAL GOVERNMENTS AND STAKEHOLDERS 

MONDAY, APRIL 6, 2015 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

SUBCOMMITTEE ON FISHERIES, WATER, AND WILDLIFE, 

Anchorage, AK. 

OPENING STATEMENT OF HON. DAN SULLIVAN, 

U.S. SENATOR FROM THE STATE OF ALASKA 

Senator SULLIVAN. Good morning, everybody. 

The Subcommittee on Fisheries, Water, and Wildlife, under the 

Environment and Public Works Committee of the U.S. Senate will 

now come to order. 

I’m Senator Dan Sullivan, junior Senator from Alaska. I want to 

welcome everybody to this important hearing. I also want to give 

you kind of a little bit of an overview of how we’re going to conduct 

the hearing today. 

We’re going to start—we’re actually going to have two panels: 

Michelle Hale, from the State of Alaska, will be testifying first; and 

then we’re going to take a quick recess and have a much larger 

panel, of several Alaskans who represent different organizations, 

who will be testifying in the second panel. 

I appreciate everybody coming here today, and we will begin with 

my opening statement on the very important issue of the impacts 

of the proposed ‘‘Waters of the U.S.’’ rule on State and local governments. 

So, good morning, again, and thanks for being here to discuss the 

proposed ‘‘Waters of the U.S.’’ rule issued by the EPA. I know that 

some of you have traveled very far to be here. We actually have 

staff from Washington, DC, both majority and minority staff on the 

EPW Committee. I very much appreciate everybody coming to this 

important hearing. 

In Washington, DC, we have held several hearings with the EPA 

administrator, the assistant secretary of the Army, the State government representatives and stakeholders on this proposed rule. 

This hearing is a continuation of these efforts. It will also give 

voice to a cross section of Alaskans on this rule and its possible impacts. And as Alaskans, we are the State that certainly will be 

most impacted by this rule. 
2 

Beyond those testifying today, the subcommittee will hear from 

the Farm Bureau, the Associated General Contractors, the Alaska 

Miners Association, the mayor of the North Slope Borough, State 

Senator Click Bishop, and the Citizens’ Advisory Commission on 

Federal Areas in a hearing on Wednesday in Fairbanks. They will 

join three-fifths of the States who have now indicated opposition to 

the proposed rule and more than 300 trade groups and associations 

from across the Country. 

I also think it’s very important to make sure that as we conduct 

these hearings, it’s not just citizens coming to Washington, DC, to 

hear concerns and address their concerns but Washington, DC, 

coming to the States. And that’s what we’re trying to do today with 

this field hearing. 

Alaska’s no stranger to overreaching Federal agencies. However, 

it should be stressed that the proposed ‘‘Waters of the U.S.’’ rule 

may be one of the most important, significant expansions of Federal jurisdiction we have seen to date in Alaska. 

Unlike most of the Federal overreach that has impacted Alaska, 

the tentacles of the Clean Water Act extend far beyond simply Federal lands, and it would impact the ability of States and private 

landowners to use their land. 

Already a huge percentage of Alaska falls under Federal Clean 

Water Act jurisdiction. Alaska has 43,000 miles of coastline, millions of lakes. More than 43 percent of our State’s surface area is 

composed of wetlands, which accounts for 65 percent of all the wetlands in the United States. 

Let me be clear: There is no doubt that many of these lakes and 

rivers, such as the Yukon, Susitna and other tributaries, are jurisdictional under the Clean Water Act. No one is suggesting otherwise; instead, we’re here to talk about the regulations of waters 

that Congress never intended to be jurisdictional. 

Alaska has some of the cleanest waterways in the world, leading 

to our vibrant, world-class fisheries and award-winning drinking 

water. Concerns over this rulemaking, with regard to the ‘‘Waters 

of the U.S.,’’ are not at all aimed at jeopardizing these characteristics that are fundamental to the identity of Alaska; instead, our efforts are about clarifying jurisdiction and pushing back on Federal 

agencies that are asserting authority over even more features, such 

as roadside ditches, culverts, stormwater systems, isolated ponds 

and activities on adjacent lands, bypassing Congress, and ducking 

Supreme Court rulings. 

Regardless of this rule, discharges of pollutants into these features would remain subject to Clean Water Act regulation. However, if the rule is finalized in its current form, it would mean that 

many Alaskans could be subject to having to get a permit from the 

EPA in order to dig ditches even in their own back yard. It would 

mean that a farmer might have to get a permit to plow new land. 

It would mean that harbors, roads, weed and pesticide control, and 

certainly natural resource development, would fall under even 

more extensive Federal permitting processes, effectively granting 

the EPA power to dictate energy and infrastructure policy in most 

of Alaska. 

This is not hyperbole. Just ask the Idaho couple who wanted to 

build a house on just over half an acre that happened to be near 
3 

a lake. The EPA determined that their property was a wetland and 

forced them to stop development and rehabilitate the property to 

its natural state or face fines of $75,000 a day. With this rulemaking, more landowners across the U.S. would be subjected to 

similar treatment. 

Just a couple weeks ago, the Senate passed, by strong, bipartisan 

vote, an amendment that I co-sponsored with Senator John 

Barrasso of Wyoming that would rein in the scope of this rulemaking. This amendment was an important, bipartisan step as we 

craft legislation to ensure that the Clean Water Act is focused on 

maintaining water quality. We sent a strong message through the 

Senate that the Clean Water Act should not be transformed into 

a tool to expand the authority of the EPA and control entirely unrelated activities. 

Thank you again for being here. We have several witnesses, who 

will be presenting on both sides of this issue. We want to hear all 

views here today in Alaska. 

And I want to ask our first witness, Michelle Hale, Director of 

the Division of Water at the Department of Environmental Conservation for the State of Alaska, to please take the stand on the 

witness dais and present her testimony. 

Miss Hale. 

STATEMENT OF MICHELLE HALE, DIRECTOR, DIVISION OF 

WATER, ALASKA DEPARTMENT OF ENVIRONMENTAL CONSERVATION 

Ms. HALE. Good morning. My name is Michelle Hale, and I’m Director of the Division of Water of the Alaska Department of Environmental Conservation. My commissioner, Larry Hartig, was supposed to have been here, but he was needed down in Juneau today. 

There’s a lot going on down in Juneau. 

The State of Alaska has submitted comments to the U.S. EPA 

and the Army Corps of Engineers, and I’ve submitted those comments for the record, as well. 

So the State of Alaska believes that the ‘‘Waters of the U.S.’’ rule 

will lead to a significantly larger number of waters and wetlands 

that are subject to Federal jurisdiction that will be considered ‘‘jurisdictional’’ and will require permits for development and also require expensive compensatory mitigation. 

The high costs are already borne by all permittees, and they’ll be 

higher once this rule goes into effect, we believe. That’s our understanding of the rule. 

Currently the Army Corps of Engineers takes about 6 months to 

issue a standard dredge and fill permit. For larger projects, that 

can be many years. So, in addition to high costs and permitting 

and compensatory mitigation, often those costs include missing entire seasons of development opportunity. That will continue under 

the rule and become worse. 

As you said, Senator Sullivan, Alaska has more coastline than all 

the other States, all the other lower 48 States combined. Alaska 

has more than 3 million lakes and more than 15,000 streams that 

support anadromous fish. We also have somewhere between 130 

million and 170 million acres of the wetlands, as you say. More 
4 

than a third, close to a half of the State is wet, and that’s, again, 

more wetlands than all the other States combined. 

This information just demonstrates that Alaska has more at 

stake for this rulemaking. This rulemaking has more potential impacts on Alaska than any other State. Yet, the published ‘‘Waters 

of the U.S.’’ rule was based on a Connectivity Study; a draft 

Connectivity Study that made only glancing reference to Alaska, 

contained no reference to permafrost, no reference to tundra. 

We commented significantly on that report, and in the final report they did make more references to Alaska, but astonishingly, 

as we’re all accustomed to the maps in the report, eliminated both 

Alaska and Hawaii. We’re not even included in any of the maps in 

that draft—in that final connectivity report. 

EPA and the Corps failed to adequately consult with the States 

in the development of the rulemaking and the process for the development of that rulemaking is flawed. The published rule was 

published before the Connectivity Study was final. So, before any 

of that information about Alaska was able to make it into the rule, 

it was used to support the draft rulemaking. 

Interestingly, I’ll use the national Office of Management and 

Budget’s own words and quote that ‘‘when an information product, 

like the Connectivity Study, is a critical component of lawmaking, 

it is important to obtain peer review before the agency announces 

its regulatory options, so that any technical corrections can be 

made before the agency becomes invested in a specific approach 

and the positions of interest groups have hardened.’’ 

We have commented at every opportunity on both the 

Connectivity Study and the rulemaking. We commented on the 

Connectivity Study, we sent somebody to Washington, DC, to testify orally before the Science Advisory Board, we have commented 

on the draft rulemaking, and our comments seem like they’re falling on deaf ears. We’re not hearing anything in response to those 

comments. 

The rule doesn’t account for regional differences and it doesn’t 

seem to account for any of the uniqueness of Alaska. It might be 

EPA’s intent to finalize the ‘‘Waters of U.S.’’ rule and then attempt 

to implement it in ways that will work in Alaska, but this is unacceptable for us. If that happened, there would have to be Alaskaspecific guidance, and that guidance would have to go through 

some kind of a public process. That public process would have to 

take into account Alaska’s concerns. However, the EPA’s and the 

Corps’ track record on this is not very good. They don’t seem to 

have been good at taking those concerns into account. 

We have long protected our waters under statutory and regulatory authority. We’ve got more authority than the Federal Government has now to protect our waters. We don’t believe there’s 

any need to expand the Corps’ and EPA’s regulatory reach by increasing the numbers of waters that they regulate. 

Thank you. 

[The prepared statement of Ms. Hale follows:] 
5 
6 
7 

Senator SULLIVAN. Thank you, Ms. Hale. And I really appreciate 

you coming and testifying before the Committee today. I think it’s 

very important for Alaskans to hear exactly what the State of Alaska’s view is on this rule. 

So let me just: More specifically, did we, in our specific comments 

to the EPA, did we propose that they withdraw the rule and start 

over? 

Ms. HALE. Yes, that’s one of the proposals. And we’ve also made 

a lot of comments specifically about components of the rule, as well. 

Senator SULLIVAN. And do you think that—so were there any 

State officials involved in actually drafting the proposals? 

Ms. HALE. No. There was what’s called a ‘‘federalism consulting 

process’’ that EPA and the Corps kicked off in 2011, and that process lasted for a little more than a month. And it was supposed to 

be this process where States were involved in the development of 

the rule. But I participated in that and I found that it was more 

EPA and the Corps talking and States listening, and I did not find 

an opportunity for Alaska to actually provide our Alaska-specific 

comments and issues at that stage. 

Senator SULLIVAN. So, and just for the record, I want it to be 

clear that Alaska has opposed the rule and asked for its withdrawal and is one of 34 States in the United States that is opposing the rule. 

Are you familiar with what some of the other States’ concerns 

are? 

Ms. HALE. We’ve worked a lot with multi-State agencies and organizations, and a lot of the issues that we have are echoed 

throughout many States, particularly western States. 

Senator SULLIVAN. And with regard to the Clean Water Act, I 

want to read a section that is very important. 

Section 101(b) clearly states, ‘‘It is the policy of the Congress to 

recognize, preserve and protect the primary responsibilities and 

rights of the States to prevent, reduce, and eliminate pollution, to 

plan the development and use (including restoration, preservation, 

and enhancement) of land and water resources, and to consult with 

the Administrator’’—of the EPA—‘‘in the exercise of his’’—or her— 

‘‘authority under this chapter.’’ 

Why do you think the sovereign State of Alaska was not treated 

as a critical contributor to the rulemaking, particularly during the 

public comment section; and, as you mentioned, importantly, the 

study, on which the rule was based, was promulgated to the public 

after the rule was issued? Could you address those two questions? 

Ms. HALE. It’s been our experience that the Federal Government 

thinks that they know how to regulate better than the State governments, and that probably answers the first question as well as 

I can. I don’t remember the exact sequence of events, but I think 

that the way it worked was that a draft of the rulemaking was 

leaked, but that draft was leaked—and that was a complete draft— 

before that Connectivity Study was out. So there is some kind of 

sequence of events, but the rulemaking was intact before the 

Connectivity Study was released. 

Senator SULLIVAN. But the rule itself is based on the 

Connectivity Study, correct? 
8 

Ms. HALE. Yes. It does seem to be a bit of a ‘‘cart before the 

horse,’’ Senator Sullivan. 

Senator SULLIVAN. So, again, just so everybody’s clear, for the 

record: The Connectivity Study, upon which the rule is based, came 

out several months after the rule was proposed, correct? 

Ms. HALE. It was finalized after the rule was proposed. The 

Connectivity Study—and again, I don’t have the sequence of 

events, and I’ll get back to you with that. But a draft of the rulemaking was leaked, I believe, before the final, or before the draft 

Connectivity Study was released. But again, I’ll get back with you 

on the sequence of dates there. 

Senator SULLIVAN. Great. Thank you. 

And do you think that this rule, the way it was promulgated, the 

jurisdictional reach of it, do you think that—and the process, which 

I think is important for Alaskans to understand how it was promulgated, do you think that this is consistent with the spirit of the 

Clean Water Act provision that I read, Section 101(b), that talks 

about the policy of the Congress is to protect the primary responsibilities and rights of the States to manage Clean Water? 

Ms. HALE. Our experience with EPA, in particular, especially at 

the headquarters level, is that this rarely happens, that they actually meaningfully consult with the States. We have a different relationship with our Region 10 counterparts—— 

Senator SULLIVAN. Right. 

Ms. HALE [continuing]. Our EPA Region 10 counterparts in Seattle. We’re often—when national rulemakings don’t work in Alaska, they work closely with us. They recognize the uniqueness of the 

State. We rarely find that with headquarters rules. 

Senator SULLIVAN. So one of the things that the EPA administrator and other officials in Washington, as you mentioned, have 

stated about this rule is that it’s not intended to expand the jurisdictional reach of the EPA’s authority under the Waters of the 

Clean Air Act, it’s simply meant to clarify existing law. 

Do you see this as a significant expansion of the EPA’s jurisdictional authorities over waters in Alaska? 

Ms. HALE. Senator Sullivan, as written, we are very concerned 

that it will lead to expansion of jurisdiction, yes. 

Senator SULLIVAN. So I think that it’s important for the record 

to indicate that your views are similar to the views of the Congressional Research Service, which in a report on March 27th, 2014, 

did say that this proposed rule would ‘‘increase the asserted geographic scope of Clean Water Act jurisdictions.’’ And it goes into a 

whole host of areas where this would happen. 

So, even the State of Alaska, but even the Congressional Research Service seems to be at odds with the administrator of the 

EPA and EPA officials, who have stated on the record, before this 

committee, that this rule does not seek or will not expand the jurisdiction of the ‘‘Waters of the U.S.’’ But the State of Alaska believes 

otherwise; is that correct? 

Ms. HALE. Senator, that is correct, yes. 

Senator SULLIVAN. So I also want to talk just briefly, Ms. Hale. 

I know that Commissioner Hartig was going to be here originally, 

and again, I appreciate DEC testifying on this important issue. 
9 

As you know, Commissioner Hartig is certainly one of the most 

impressive, in my view, public servants in the State of Alaska, having now served consistently as the commissioner of DEC for over 

three different administrations in the State of Alaska. 

And there was a case that Commissioner Hartig and I worked 

on, when we were both in State government. It ended up going all 

the way to the U.S. Supreme Court. It was called Utility Air Regulator Group v. EPA. It was about another EPA rule that dealt with 

the Clean Air Act in the State of Alaska, similar to this rule. We 

challenged that rule, because we thought that the EPA didn’t have 

the authority to issue that rule. 

That case went all the way to the U.S. Supreme Court, and in 

a decision last year, the Supreme Court reprimanded the EPA for 

exceeding its authority as an agency and actually ignoring the separation of powers, because it was undertaking authority that was 

the realm of the Congress, not a Federal agency. 

I want to just briefly read what the Supreme Court stated with 

regard to that rule. They stated, ‘‘The rule,’’—in that case, a Clean 

Air regulation—‘‘would place plainly excessive demands on limited 

government resources, and that is alone a good reason for rejecting 

it; but that is not the only reason. The EPA’s interpretation is also 

unreasonable because it would bring about an enormous and transformative expansion in EPA’s regulatory authority without clear 

congressional authorization. When an agency claims to discover in 

a long-extant statute an unheralded power to regulate ‘a significant 

portion of the American economy,’ ‘‘we’’—the Supreme Court—‘‘typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency 

decisions of vast ‘economic and political significance.’ ’’ 

Do you think that this rule would have significant economic impact on business interests or other interests, local communities, the 

State of Alaska; do you think it would have significant economic 

impact over such entities in the State of Alaska if this rule was 

promulgated? 

Ms. HALE. Senator Sullivan, that is our read of the rule as it is 

proposed. We think that it could have impact on individuals, on 

corporations, on municipalities, on the State of Alaska, who, incidentally, the Department of Transportation, has the largest number of 404 permits and is thus affected by jurisdiction rules more 

than anyone, and we think that it would have—as written, we believe it would have an impact on the economy of the State of Alaska. 

Senator SULLIVAN. So my view is, particularly given what you’re 

talking about, that despite having had the Supreme Court just a 

year ago reprimand the EPA for taking over with regard to regulatory authority that they did not have, because there was not a 

clear instance of the Congress granting them that authority, that 

they’re ignoring the Supreme Court, who issued this very important ruling just a year ago, that the State of Alaska was very involved with, and they’re doing it again: They’re issuing a regulation 

that has significant impact over the economy of the United States, 

the economy of Alaska, without congressional authorization. 

Do you agree that that’s what they’re attempting to do with this 

rule? 
10 

Ms. HALE. Senator, I’m not an attorney, so I can’t really speak 

from a legal point of view. I certainly agree that, as written and 

as proposed, the rule did seem like it would expand jurisdiction significantly. 

I can get back to you, consult with my supervisors and with the 

commissioner and get back to you. 

Senator SULLIVAN. Great. Thank you very much. 

So, Ms. Hale, let me ask one other quick question: What can be 

done, now that the rule has been released, to ensure sufficient consultation with the States, that that consultation is taken seriously? 

It sounds like this is a pattern that the State of Alaska has been 

objecting to literally for years, and yet, we do not seem to get the 

consultation that is required and mandated from the statutes. 

What do you think can be done? And obviously, the State wants 

this rule to be withdrawn and to start over, but what else? Do you 

have any other suggestions with regard to what Congress can do 

in this regard? 

Ms. HALE. Senator, I’m not certain exactly what Congress can do. 

I think we need to leave that to you. However, EPA and the Corps 

could restart and sit down and meaningfully discuss the Alaskaspecific issues, really talk about what this kind of permitting 

means relative to permafrost and relative to tundra and relative to 

the state that we’ve got. They could meaningfully sit down, start 

over and sit down with us and actually consult with us so that we 

could come up with some kind of a joint way of addressing the 

questions that are raised by those Supreme Court decisions. They 

could also just exempt Alaska from the rule. 

Senator SULLIVAN. Great. And let me ask one final question. 

You talked about consultation, you talked about the process, the 

frustration the State of Alaska has had with regard to the EPA on 

this and other issues. There’s many of us who believe that this 

rulemaking process was a clear example of Executive Order 13132, 

a very important executive order called the federalism executive 

order, that was not abided by in this process. 

Let me give you a quote, and for the record, what portions of that 

federalism executive order state. ‘‘When undertaking to formulate 

and implement policies that have federalism implications, agencies 

shall’’—Federal agencies shall—‘‘in determining whether to establish uniform national standards, consult with appropriate State 

and local officials as to the need for national standards and any alternatives that would limit the scope of national standards or otherwise preserve State prerogatives and authority.’’ 

Do you believe that the EPA clearly abided by this federalism executive order, which they are required to do? 

Ms. HALE. Senator, I can’t speak to the exact letter of the law, 

but I can speak to the process that occurred. And I do not believe 

that the State of Alaska was meaningfully involved in the development of that rule and even the decision to make that rule, to develop that rule. 

Senator SULLIVAN. Great. 

Ms. HALE. We did not have an opportunity. 

Senator SULLIVAN. Thank you for your outstanding testimony. 

Please give my regards to Commissioner Hartig and the other 

members of DEC. You are doing great work for the State of Alaska. 
11 

I try to remind the EPA, the administrator and other senior 

members of the EPA in Washington, DC, that Alaskans love our 

environment. We care more about having a clean environment, 

clean water, pristine environment, than any Federal bureaucrat in 

Washington, DC, and I think DEC does a great job in representing 

the State. So I appreciate your testimony. 

We are going to recess for a short 5 minutes, and we’re going to 

call the next panelists to come to the dais for your testimony. 

Thank you, Ms. Hale. 

Ms. HALE. Thank you. 

[Recess.] 

Senator SULLIVAN. We are going to resume the hearing, and if 

all the witnesses will please have a seat at the dais. 

So I just wanted to give just another quick little update here. As 

you see, we have a fantastic panel of witnesses, and I want to welcome all of them. We have witnesses from both sides of the debate 

here with regard to the rule. We certainly want to hear all views 

with regard to the proposed rule. 

We have a setup that’s a little unique here. So what we’re going 

to do is, we’re going to have each witness, when they’re called, to 

present their testimony from the dais in front of the committee, 

and then when they’re all—all the testimony is complete, we will 

conduct some questions and answers from the dais here. 

So, again, I want to thank everybody for coming. You’ll have 5 

minutes. The witnesses will have 5 minutes to read their testimony. If there’s longer written testimony, we can submit that for 

the record. 

So for the first witness I’d like to have Tara Sweeney, the executive vice president for external affairs for ASRC, please proceed to 

the witness stand and present your testimony. 

STATEMENT OF TARA SWEENEY, EXECUTIVE VICE PRESIDENT, EXTERNAL AFFAIRS, ARCTIC SLOPE REGIONAL CORPORATION 

Ms. SWEENEY. Chairman Sullivan, good morning. I’m Tara 

Sweeney, Executive Vice President of External Affairs for Arctic 

Slope Regional Corporation or ASRC. ASRC is the Alaska Native 

Corporation created under the terms of the Alaska Native Claims 

Settlement Act of 1971. 

Today I will highlight the main points of my written comments, 

which I have submitted to the Committee. Thank you for the opportunity to testify. 

The proposed rule would designate riparian areas as jurisdictional waters subject to regulation by the Federal Government. The 

way the proposed rule defines ‘‘riparian areas’’ makes it applicable 

to virtually all wetlands in Alaska. 

The size of the State of Texas is about 172 million acres. However, we have more wetlands in Alaska than the size of the entire 

State of Texas. According to Fish and Wildlife, Alaska is 403 million acres, with almost 174 million acres of wetlands, or 43.3 percent of Alaska’s surface area compared to only 5.2 percent of wetland surface area in the Lower 48. 

Their proposed rule creates the very real risk that any development, with at least 43 percent of Alaska, would immediately fall 
12 

within the Clean Water Act, Section 404 jurisdiction, for permits 

to dredge, and the Clean Water Act, Section 402 jurisdiction, for 

discharge pollutants. 

Closer to home, the Arctic Foothills and the Coastal Plain are 

two areas that roughly correspond with the area and the jurisdiction of the North Slope Borough. Fish and Wildlife calculates that 

46.9 million acres of these areas are wetlands. That’s 83.1 percent 

of the lands that lie within the boundaries of the North Slope Borough. Only a small fraction of these are traditional navigable waters that would have been subject to regulation prior to the proposed rule. 

There are over 2 million acres of lakes on the North Slope larger 

than 50 acres. There are another over 250,000 acres of rivers. Not 

all of these larger lakes and rivers are traditional navigable waters, 

but their total acreage, 2.7 million acres, represents the outside 

limit that would conceivably—that could conceivably be regarded 

as traditional navigable waters. 

The proposed rule expands the area of the federally regulated 

waters within the North Slope from approximately 2.7 million 

acres to almost 47 million acres. This rule has the potential to multiply the area of federally regulated waters on the North Slope 

more than 1600 percent. 

The scope of the rule on Alaska Natives: The U.S. Fish and Wildlife Study of Alaska Wetlands calculates that 19.6 million acres of 

the lands owned by Alaska Natives are wetlands, representing 44.5 

percent of their ANCSA land entitlement, and are now at risk to 

become jurisdictional wetlands, which means that the burden on 

private landowners is severe. Those lands are privately owned by 

Alaska Natives who received them from the United States when 

the Federal Government abolished Alaska Native rights to claim 

land; and further mandated the use of those lands and other corporate assets to facilitate the self-determination, economic development and future prosperity of Alaska Native people. 

This rule is in direct conflict with the congressional mandate 

handed down through ANCSA and threatens the viability of Alaska 

Native corporations to provide meaningful benefits to its members, 

its Alaska Native shareholders. 

The proposed rule does not take into account Alaska’s unique geography, and population into account. It creates no exception for 

any material portion of the wetlands in Alaska, yet, provides many 

exceptions for other uses, like agriculture. Alaskan waters are unusual in many respects, and that may make them unsuitable for 

this broad assertion of jurisdiction. 

Many of Alaska’s wetlands are frozen for 9 months out of the 

year and lie on top of a layer of permafrost. Unlike wetlands in 

temperate zones, Arctic wetlands, lying above thousands of feet of 

permafrost, are not connected to aquifers subject to waterflow. Because water on top of permafrost travels across the frozen tundra 

surface in sheet flow, these wetlands provide little function in controlling runoff. The proposed rule reflects no consideration for any 

of these unique aspects of Alaskan wetlands. Indeed, neither the 

word ‘‘tundra’’ nor the word ‘‘permafrost’’ appears anywhere in the 

88 pages of the proposed rule. 
13 

The population of Alaska’s remote regions is particularly dependent on resource development, which is jeopardized by the proposed 

rule. In our region the only durable economic development is resource development. No other use of land provides the necessary 

funding that translates into educational and employment opportunities, infrastructures such as sewer systems, fire and police protection. Shutting down development will breed a cycle of displacement, which is antithetical to the purpose of the Alaska Native 

Claims Settlement Act and to this administration’s commitment to 

ensuring a bright future for Alaska Native youth. 

In conclusion, ASRC believes that the proposed rule, in its current form, will impose enormous burdens on Alaska Natives, 

ASRC, our shareholders, and all residents of the North Slope, without any correlative benefit to the environment. 

When the Federal Government proposes changes to established 

rules and regulations that it believes will help protect and conserve 

natural elements for the future enjoyment of all people, they, in 

fact, adversely affect the lives of those people who actually live in 

those areas and depend on those resources. This is particularly 

true in the North Slope region of Alaska, where a long history of 

subsistence overlaps with the legal imperative to allow development within the region for the benefit of our shareholders. Both 

elements define who we are as Inupiat people and are important 

to the long-term success of ASRC. 

Further research and consideration may show that an exemption 

for permafrost is warranted. In addition, the Federal Government 

needs to provide additional clarification on the lands as to which 

areas within Alaska will be classified as jurisdictional waters. Regardless, because so many millions of acres of Alaska lands are potentially affected, the Agencies should specify how they intend to 

guarantee exemptions for private Alaska Native landowners, like 

Alaska Native corporations, and for the State of Alaska. 

Thank you for the opportunity to provide comments. 

[The prepared statement of Ms. Sweeney follows:] 
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Senator SULLIVAN. Thank you very much, Ms. Sweeney. That 

was very powerful testimony. Particularly the conflict with ANCSA, 

that’s something I’d like to explore in some of the Q&A, if we have 

the time. 

Thank you very much. 

Our next witness will be Kara Moriarty, President/CEO of the 

Alaska Oil and Gas Association. 

STATEMENT OF KARA MORIARTY, PRESIDENT/CEO, ALASKA 

OIL AND GAS ASSOCIATION 

Ms. MORIARTY. Good morning. My name is Kara Moriarty, and 

I serve as President and CEO of the Alaska Oil and Gas Association, commonly referred to as AOGA. We are the professional trade 

association for the industry here in Alaska. 

Thank you for the opportunity, Senator, to testify and explain 

what we view are the negative consequences that will inevitably 

follow if the proposed rule continues down this path. 

As context for my testimony, Alaska has 63 percent of the Nation’s jurisdictional waters and represents 20 percent of the U.S. 

landmass. I cannot emphasize enough that Federal rules of the nature proposed by EPA in this instance have a huge and disproportionate impact on the Alaskan public, private and Native interests, 

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. 

The rule would serve to dramatically, and we believe illegally, 

expand the Clean Water Act jurisdiction here in the State. Enacted 

in 1972, the Clean Water Act endeavored to create a workable partnership between the States and Federal agencies to effectively 

manage identified pollution sources. The proposed rule represents 

an unfortunate revision to an agreement Alaskans have long honored. 

The EPA has repeatedly suggested that the rule is intended to 

simply provide ‘‘clarity’’ and reduce ‘‘uncertainty.’’ However, the 

rule has had just the opposite effect, causing members of the regulated community, and others, to have great and grave concerns. We 

believe this rule will result in significant regulatory burdens by 

causing water features, such as canals and ditches with only remote and speculative hydrological connections to traditionally navigable and interstate waters, to become ‘‘jurisdictional’’ under the 

Clean Water Act for the first time. 

Despite the EPA’s statements to the contrary, the EPA—the rule 

will allow the EPA to exercise authority under the act potentially 

on virtually any water feature with any tentative or hypothetical 

connection, directly or indirectly, to a traditionally navigable or 

interstate water. 

Despite the guidance of the Supreme Court that has said, time 

and time again, that there are limits to Federal jurisdiction under 

the Clean Water Act, the proposed rule will extend coverage to 

many features that are remote and/or carry only minor volumes. 

The proposed rule, read together, serve to provide no meaningful 

limit to Federal jurisdiction. Understandably, all Alaskans should 

be concerned that the EPA’s proposed rule would allow it to regu-
25 

late far more bodies of waters than it attempted to regulate prior 

to being rebuked by successive Supreme Court decisions. 

Moving past the issues of legality, another primary concern remains that the proposed rule will expand regulatory gridlock and 

uncertainty by subjecting even more activities to permitting requirements, NEPA analysis, mitigation requirements, and citizen 

lawsuits challenging the applications of new terms and provisions. 

Naturally, these impacts will be felt by the entire regulated community, and will result in an exponential increase in the costs of 

projects large and small. 

Nevertheless, the EPA has largely ignored the potential adverse 

effect on economic activity and job creation, by relying on its highly 

flawed economic analysis for the proposed rule. Based on the EPA’s 

calculations, the total estimated cost ranges from $133 million to 

$230 million, when, in reality, private and public sectors spend approximately $1.7 billion a year today to obtain Section 404 permits. 

It takes over 2 years to obtain a 404 permit. It is impossible to understate how significantly the proposed rule will affect operations 

in Alaska, through both increased delay and increased costs. 

So, finally, despite the obvious disproportionate and adverse effects in Alaska of a dramatic expansion of Clean Water Act regulation, the EPA has failed to include adequate analysis of how the 

proposed rule will affect Alaska. The EPA should be mandated to 

consider Alaska’s unique circumstances. 

So, Senator, I encourage the committee to consider the profound 

impacts this rule will have on Alaska and its citizens. It is an illconceived rule that serves only to frustrate State sovereignty and 

local regulations. 

Thank you. 

[The prepared statement of Ms. Moriarty follows:] 
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Senator SULLIVAN. Thank you, Ms. Moriarty. And thank you, 

again: Powerful testimony, particularly with regard to the issue of 

costs, which I think, again, we should explore a little bit more in 

the Q&A session. 

Our next witness is Rick Rogers, Executive Director of the Resource Development Council for Alaska. 

STATEMENT OF RICK ROGERS, EXECUTIVE DIRECTOR, 

RESOURCE DEVELOPMENT COUNCIL FOR ALASKA 

Mr. ROGERS. Good morning, Senator. Welcome back home. 

For the record, my name is Rick Rogers. I’m Executive Director 

of the Resource Development Council for Alaska. RDC is a membership-funded statewide trade association. We represent oil and 

gas, mining, fishery, tourism, and forest industries. Our membership is really a broad cross section of Alaska businesses and organizations. We include all 12 Alaska regional Native corporations, organized labor, utilities, communities, and we all share the common 

vision that resource development is vital to the well-being for Alaskans and that responsible resource development is essential for our 

well-being. 

The EPA’s proposed ‘‘Waters of the U.S.’’ rule will have a disproportionate impact on the resource-dependent industries and on 

Alaska’s economy as a whole. It’s appropriate that this field hearing is being held in Alaska, because as other folks have already 

stated, according to the U.S. Fish and Wildlife Service, Alaska has 

63 percent of the Nation’s wetland ecosystems, and estimates place 

the total acreage at approximately 130 million acres. 

The rule will have a disproportionate impact on Alaska. Before 

commenting on the specific problems we see with the proposed 

rule, it’s important to underscore how classification of a wetland as 

jurisdictional or ‘‘waters of the U.S.’’ impacts community and resource development projects in Alaska. 

The Federal Government already enjoys a disproportionate jurisdiction over land use and economic development in our State. Approximately 222 million acres, or about 61 percent of Alaska, is already under direct jurisdiction by the Federal Government. Much 

of this is in conservation system units and other land designations 

that are closed to development. So Section 404 of the Clean Water 

Act expands that Federal reach to private, Alaska Native corporation, State and municipal lands if wetlands are determined to be 

jurisdictional and 404 permits are required. 

So, if you look at the cumulative impact of both the vast Federal 

lands, the fact that we have ubiquitous wetlands in our State, and 

an ever-expanding definition of which of those wetlands fall under 

Federal jurisdiction, it means that few projects in Alaska are outside the reach of Federal oversight. 

The rule fails to meet the EPA’s stated objectives. We are in 

agreement with the EPA in its stated intent that the rule should 

remove uncertainty and confusion in determining what lands and 

activities require Section 404 permits. However, rather than reducing confusion, the proposed rule, as written, takes a very aggressive and broad interpretation of Federal jurisdiction, rendering adjacent waters, floodplains, ephemeral streams, tributaries, and 

ditches with limited exceptions as jurisdictional. 
30 

Perhaps the EPA’s vision of ‘‘clarity’’ simply means defaulting on 

the side of Federal jurisdiction and broadening the definitions of 

existing regulatory categories of tributaries and regulating new 

areas that are not jurisdictional under current regulations, such as 

adjacent non-wetlands, riparian areas, floodplains and other waters. 

The EPA’s assurances fall flat upon a plain reading of the rule. 

The EPA has lost an aggressive public relations campaign in an effort to refute the concerns of RDC and other concerned members 

of the public who have concluded, through a plain reading of the 

rule, that it materially expands the scope and reach of the Clean 

Water Act. The EPA’s assurances don’t match with the plain language in the rule. 

The ‘‘tributaries,’’ the newly defined term, automatically jurisdictional. Adjacent wetlands are considered jurisdictional, the legal 

test of nexus having all but been assumed. Many ‘‘other waters’’ 

are likely to be jurisdictional under the rule. Even ditches. And one 

thing that really concerns us is this concept of ‘‘inside the fence,’’ 

or a ditch within a project that’s already been developed could be 

considered jurisdictional, even after you get your permits. 

And finally, we think the EPA grossly underestimates the costs 

of the rule. The EPA estimates that the rule will increase jurisdictional wetlands by about 3 percent. We think this is a gross understatement. The Waters Advocacy Coalition refutes the EPA’s methodology as grossly understating this effect, both because of flawed 

methodology as well as they failed to consider the impacts of much 

of the new jurisdictional technology: ‘‘neighboring,’’ ‘‘adjacent,’’ 

‘‘tributary,’’ ‘‘riparian areas,’’ and ‘‘floodplain.’’ 

So, even assuming the EPA’s conservative estimate is correct, it 

would still increase jurisdictional wetlands in Alaska by 3.6 million 

acres, if you just take the 3 percent and apply it to the 130 million. 

And of course, that—I do note your colleague, Senator Whitehouse 

isn’t here today, but that would be five times of his home State of 

Rhode Island. 

Senator SULLIVAN. I’ll make sure he’s aware of that when I go 

back and forth. 

Mr. ROGERS. So we applaud the congressional oversight on this 

issue, Senator Sullivan, and as currently drafted we’re concerned 

the rule will have significant negative impacts on Alaskans. And 

we really thank you for the opportunity to comment on this very 

important initiative. 

Thank you. 

[The prepared statement of Mr. Rogers follows:] 
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Senator SULLIVAN. Thank you, Mr. Rogers. I appreciate the testimony. 

Rod Hanson, Vice President of Alyeska Pipeline Service Company, will be our next witness. 

Mr. Hanson. 

STATEMENT OF ROD HANSON, VICE PRESIDENT, ALYESKA 

PIPELINE SERVICE COMPANY 

Mr. HANSON. Senator Sullivan, thank you for the opportunity to 

appear here today and discuss the proposed rule regarding ‘‘Waters 

of the U.S.’’ and its possible impact on Alyeska Pipeline Service 

Company. My full statement has been submitted in writing, and so 

I’m offering an abbreviated version for you here this morning. 

Senator SULLIVAN. Thank you. 

Mr. HANSON. My name is Rod Hanson. I’m Vice President for 

System Integrity, Engineering and Projects with Alyeska. I joined 

Alyeska in 1991 as a civil and structural engineer, and I’ve had a 

variety of roles with the company over the years, including Terminal Manager, Pipeline Manager. I headed up our commercial and 

supply chain group for a while, and also our HSE, health, safety 

and environment group. 

I’m proud to work for an Alaska company. I came to Alaska in 

1978. My wife was born and raised here. We’ve raised our kids 

here, our kids are now raising their kids here, and so it’s great to 

be here speaking not only as an employee of Alyeska but as an 

Alaskan today. 

I’m here representing 1,600 employees and contractors who operate and maintain TAPS, the 800-mile Trans-Alaska Pipeline System, and our job is transporting crude oil from the North Slope to 

Valdez, where it’s then put on tankers and sent south to the Lower 

48, to the West Coast. Since startup in 1977, we’ve moved over 17 

billion barrels of crude oil, and at peak production, we were moving 

2.1 million barrels a day. However, that production has been declining steadily over the years, and we are currently transporting 

just over 500,000 barrels per day. 

This lower throughput creates serious operational challenges for 

us. The oil takes much longer to get to Valdez, and it loses heat 

rapidly. Colder crude oil creates wax and ice and allows that opportunity for wax and ice to buildup in the system and interfere with 

our operations. 

While we’re confident of our abilities and our resources to meet 

these challenges, we know that they will continue to grow as 

throughput declines. We’re committed to protecting the environment that we operate in here in Alaska, and to this end we fully 

support appropriate regulatory efforts to protect our Nation’s waters. 

There are 21 different Federal and State agencies that oversee 

our work. We work hard to ensure that we comply with all regulations; we obtain all required permits and authorizations, and we 

keep our regulators very well informed of our activity. Occasionally, 

though, a new regulation is proposed which does not seem to consider the Arctic environment here in Alaska or the practical complexities of operating an 800-mile pipeline through this environment. That is the case here with the proposed rule, on the ‘‘Waters 
36 

of the U.S.’’ We believe this rule will significantly increase how 

much of our work is regulated under the Clean Water Act. 

Many of the discharges associated with our operations consist of 

water removed from construction project sites and drainage from 

precipitation events which do not reach waters of the U.S. The expansive definition of ‘‘waters of the U.S.’’ could really make these 

discharges jurisdictional and subject to the Clean Water Act permitting and regulatory requirements. This could significantly delay 

our ability to get critical work done, in what is a short Alaska construction and maintenance season. 

As we review the proposed rule, we’ve identified numerous potential impacts to TAPS. These include, first, unique features common 

in Alaska, such as permafrost, wet tundra, muskegs and bogs, may 

end up being considered jurisdictional waters, or they may result 

in the designation of ‘‘other waters’’ as jurisdictional. Any TAPS 

discharges to upland, dry, and isolated areas that are 

hydrologically connected to or even in the vicinity of those geographical or water features may become subject to Clean Water Act 

requirements. 

Second, discharges to dry stream channels, tundra and upland 

areas could now be considered discharges to jurisdictional waters 

and subject to new permitting and treatment requirements. 

Third, manmade structures, ditches, effluent channels and storage pits may themselves become jurisdictional under the proposal, 

and if these engineered structures were to be considered jurisdictional waters, we may be required to manage the water quality 

even within those structures and features. 

Fourth, these same concerns arise even with naturally occurring 

stormwater features, such as roadside ditches and other natural 

drainages on or adjacent to TAPS property. 

Even gravel pits could be subject to Clean Water Act requirements, since manmade ponds, lagoons or other water storage areas 

could be considered jurisdictional. 

These are just a few of the ways we believe the proposed rule 

could impact our management of TAPS. We’re hopeful that the proposal will be withdrawn, or dramatically changed, so that these impacts are not added to our current challenges. 

Safety and integrity of the pipeline are paramount, core values 

here at Alyeska, and I’m proud to report that we currently have 

the best safety record we’ve had in our entire history. We’ve been 

named as one of the World’s Most Ethical Companies by the 

Ethisphere Institute now for 4 years in a row. Our Vessel of Opportunity Program received a 2015 Alaska Ocean Leadership Award 

for stewardship and sustainability from the Alaska SeaLife Center. 

A couple weeks ago, we received a Governor’s Safety Award. And, 

over the years, we’ve been honored many times with both the 

American Petroleum Institute’s Distinguished Operator Award and 

Environmental Performance Award. Our record for protecting the 

environment has and will continue to be one of the best in our industry or any industry in Alaska. 

And, Senator, I appreciate the opportunity to testify here today. 

[The prepared statement of Mr. Hanson follows:] 
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Senator SULLIVAN. Thanks again, Mr. Hanson, and congratulations on those important awards that you listed there at the end. 

Our next witness is Kathie Wasserman, who is Executive Director of the Alaska Municipal League. 

STATEMENT OF KATHIE WASSERMAN, EXECUTIVE DIRECTOR, 

ALASKA MUNICIPAL LEAGUE 

Ms. WASSERMAN. Senator Sullivan, thank you for the opportunity 

to testify on ‘‘Waters of the U.S.’’ 

My name is Kathie Wasserman. I’m Executive Director of the 

Alaska Municipal League, a membership league made up of all 164 

cities and boroughs throughout the State of Alaska. 

The cities and boroughs in Alaska are diverse. They vary in their 

types of natural resources that they contain, their social and political environments, their culture, their economies and, to a degree, 

the powers that they are allowed under Alaska State law. Many of 

the duties that Alaska’s municipalities have are required or mandated by State law. They have varying degrees of authority, with 

regards to roads, bridges, property taxes, schools, recordkeeping, 

elections, hospitals, economic development, land use planning, zoning and air and water quality. 

Cities and boroughs own and maintain a wide variety of public 

safety infrastructure that would be impacted by the proposed rule, 

including roads and roadside ditches, bridges, stormwater systems, 

maintenance projects, drinking water facilities and infrastructure 

that was never designed to meet new CWA requirements under the 

proposed rule. 

Cities and boroughs are responsible for a large percentage of the 

road maintenance, such as snowplowing, debris clean up and surface repairs. Many of these small roads are in rural areas. Any additional cost burdens are challenging to these small governments. 

As Alaska’s municipalities realize cuts in State Revenue Sharing, 

the potential loss of Timber Receipts, or Secure Funding for Rural 

Schools, and the tenuous situation with PILT, which is Payment in 

Lieu of Taxes, historically provide by the U.S. Government, it now 

seems to reflect a lack of analysis by that same Federal Government to mandate added extra expenses, while at the same time 

making economic development more difficult and while still considering not paying Alaska’s municipalities’ PILT payments for their 

property taxes that they—for which they own inside each municipality. 

I know what municipalities do to the local taxpayer if they don’t 

pay their taxes. We’re not in the position yet to do that to the local 

governments, but I certainly have suggested that to my local government. 

According to a 2014 County Economic Tracker report released by 

NACo, it found that only 65 of the Nation’s 3,069 counties, boroughs or parishes have fully recovered to pre-recession levels. 

Many State and local projects would be significantly impacted by 

the changes to the definition of ‘‘waters of the U.S.’’ that have been 

proposed. 

Therefore, the Alaska Municipal League and all 164 municipalities urge and have urged the agency to withdraw the proposed rule 

until further analysis of its potential impacts have been completed. 
44 

Most of Alaska’s municipalities are situated in low-lying areas 

with large bodies of water near the municipality. Simply, the choice 

of habitation by Alaska Natives, the first Alaskans, was dictated, 

in large part, by the accessibility of salt and freshwater; for either 

travel, drinking and the foods contained therein. 

If the U.S. Government had bothered to talk to local Alaska governments and tribes, they would have realized that planning and 

zoning regulations in our respective communities are already put 

in place to minimize impacts to those lakes, streams, rivers, and 

springs. Municipalities encourage the preservation of wildlife corridors, being as so many of our people live a subsistence lifestyle. 

We protect vistas, archeological sites, national land characteristics 

and fish habitat. 

The original settlers of this great State survive still through subsistence. Far be it for of the Federal Government to tell these people how to take care of the land and its resources for the long haul. 

This also brings up the legal question as to how this ruling 

would work on privately owned Native corporation lands, as much 

of these lands lie within municipal jurisdictions. 

Municipalities are the first line of defense for disasters: Police, 

firefighting, emergency personnel are the first on the scene. In the 

aftermath of the city of Galena flood, while FEMA responded in 

what could be called a reasonable amount of time, it was the residents and the city government and the tribes that did everything 

possible to help make sure that the community would come back 

to what it once was and to protect themselves from what might 

come again. 

While many of Alaska’s communities are doing everything possible to protect themselves from Alaska’s large ever-changing rivers, with the record of huge erosion problems and catastrophic 

floods, the U.S. Government, through EPA, is adamant about Alaska’s communities protecting every water-filled ditch. 

We just believe, Senator Sullivan, that as municipalities in the 

State of Alaska, are the ones that will be tasked along with the 

State and tribes in implementing these rules, that the fact that we 

were not—that we were not contacted in any great form is a terrible, terrible thing to do to Alaska’s municipalities. 

As I told you before—and I have some records to give to your 

staff—we found out about a meeting that was held by EPA. I have 

the brochure. It says it was an opportunity for tribes, local government and State government to give input on an EPA proposed rule. 

I got the notice from another organization late on a Friday night. 

The meeting was on a Wednesday. 

One of my mayors that deals with EPA rules negatively all the 

time lives in Unalaska. It would have taken her—she would have 

had to leave Tuesday or Monday to even get there. I called EPA 

in Washington, DC, and was told that oh, they didn’t have our 

phone number. I don’t know what that means, but—also, I have a 

copy of all the maps that are on the EPA website. None of them 

include Alaska. And when I asked the EPA gentleman in Washington, DC, a couple of months ago why they did not include Alaska, I was told because esthetically, it just didn’t look right. 

I probably have a little bit harder line. I just think this is despicable that we have been left out in the cold on this. 
45 

Thank you, Senator. Obviously, I got off my writing. 

Senator SULLIVAN. No, no. That was great testimony. And thank 

you for flying in to Anchorage for this important hearing. Thank 

you very much. 

Ms. WASSERMAN. Thank you. 

[The prepared statement of Ms. Wasserman follows:] 
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Senator SULLIVAN. Our next witness will be Lorali Simon, who 

is Vice President for External Affairs at the Usibelli Coal Mine. 

STATEMENT OF LORALI SIMON, VICE PRESIDENT, EXTERNAL 

AFFAIRS, USIBELLI COAL MINE 

Ms. SIMON. Good morning. Thank you, Senator. 

My name is Lorali Simon. I’m Vice President of External Affairs 

for Usibelli Coal Mine. I certainly appreciate the opportunity to 

come before you today to discuss the proposed rule regarding the 

expansion of the definition of the ‘‘waters of the United States’’ and 

its potential impacts to Alaska. 

Usibelli is celebrating our 72nd year in operation this year. We 

proudly supply 100 percent of the in-State demand to six coal-fired 

power plants in Alaska. We also supply coal to our export customers in Chile, South Korea and Japan. Currently Usibelli employs 115 people. The average wage paid to Usibelli employees is 

more than double the average wage in Alaska. Usibelli’s operations 

directly provide 25 percent of all employment for Healy year-round 

residents. The $12.9 million paid to our Healy employees in 2013 

represented nearly 60 percent of all wages paid to Healy residents. 

Usibelli is deeply concerned about the proposed rule by the EPA 

which would significantly increase the jurisdictional waters of the 

United States under the Clean Water Act. Should this proposed 

rule be finalized, it would likely stop all development in Alaska; 

small, private developments, as well as large resource development 

projects. 

The proposed rule expands Federal jurisdiction over State lands, 

to include all ephemeral and intermittent drainages, seeps, and 

marginal wetlands. According to the EPA’s website, the proposed 

rule determines that all streams regardless of size or how frequently they flow are jurisdictional waters; all wetlands and open 

waters in floodplains and riparian areas are jurisdictional waters; 

and that there is insufficient information to generalize jurisdiction 

of waters not in floodplains or riparian areas. 

You’ve already heard this today, but Alaska is very unique, in 

that over 60 percent of our State is already under Federal jurisdiction, and 88 percent of the jurisdictional waters are under public 

management. We believe this proposed rule will subject many more 

mining activities and operations to regulation under the Clean 

Water Act than currently are covered by law or regulation. 

You have also already heard about Alaska’s unique features, 

such as our permafrost and tundra that could be considered jurisdictional waters. The mining industry uses sophisticated and engineered structures, such as impoundments, ditches, channels, ponds, 

and pits that could also become jurisdictional waters under the proposed rule. 

I hope you understand our concern over the possibility that historically non-jurisdictional onsite stormwater and surface water 

management features could be deemed jurisdictional, and the complications surrounding distinguishing ephemeral tributaries from 

non-jurisdictional features, will increase delays, costs, and permitting requirements. Usibelli is troubled by the breadth of the definitions in the proposed rule, which could be misconstrued as encom-
51 

passing previously non-jurisdictional waters and treatment systems 

on mine sites across the Country. 

As you know, the EPA and the U.S. Corps currently require compensatory mitigation to promote no net loss of wetlands from development projects. Anyone wishing to obtain a permit to impact a 

wetland or other aquatic resource must first avoid and minimize 

impacts, and then compensate for unavoidable impacts. Typically, 

for every one acre disturbed, there must be 3 to 10 acres preserved. 

If the proposed expansion of jurisdictional waters becomes final, 

it will be nearly impossible in Alaska to meet the compensatory 

mitigation requirements, as most of the wetlands in Alaska are already under public management and not available for selection. 

The result will be an increase in price for the small amount of land 

remaining available for compensatory mitigation. 

The local, statewide, national, and global economic benefits that 

mining provides are unquestionable. These benefits are derived 

from employment, wages, economic activity due to purchases of 

goods and services, and payment of taxes, royalties, and fees to 

local, State and national governments. 

Usibelli is committed to conduct our activities in a manner that 

recognizes the needs of society and the needs for economic prosperity, national security, and a healthy environment. Accordingly, 

Usibelli is committed to integrating social, environmental, and economic principles in our mining operations from exploration through 

development, operation, reclamation, closure, and post-closure activities. 

I would also like to point out that Usibelli is also a recent recipient of the Governor’s Safety Award, and that last year we celebrated 703 days without a lost-time injury. 

Thank you for the opportunity to testify today, Senator. And I’m 

happy to answer your questions. 

[The prepared statement of Ms. Simon follows:] 
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Senator SULLIVAN. Thank you, Ms. Simon. And thank you for the 

powerful testimony. And again, I think one of the issues you raise 

on the compensatory mitigation is something that we need to explore further. 

Our next witness is Tim Troll. He’s Executive Director for the 

Bristol Bay Heritage Land Trust. 

Mr. Troll. 

STATEMENT OF TIM TROLL, EXECUTIVE DIRECTOR, BRISTOL 

BAY HERITAGE LAND TRUST 

Mr. TROLL. Senator Sullivan, thank you very much for the opportunity to talk here today. 

My name is Tim Troll. I am Executive Director of the Bristol Bay 

Heritage Land Trust, an organization I helped found 15 years ago 

while living in Dillingham. The Bristol Bay Heritage Land Trust 

is one of six land trusts in Alaska that serve different geographic 

areas. Our service area encompasses the watersheds that flow into 

Bristol Bay. 

Land trusts are conservation organizations that work with willing landowners to preserve places that are special: Working farms; 

wilderness parks; historic sites; and not surprisingly in Alaska, 

salmon habitat. We exist because 25 years ago the Alaska legislature adopted the Uniform Conservation Easement Act. A conservation easement is a statutory creation that allows a property owner 

to sell or donate development rights to a qualified organization, 

like a land trust, while retaining ownership. 

So why would a land trust care about the water? Well, when we 

formed our land trust in Dillingham in 2000, our concern was for 

salmon habitat in the Nushagak River Watershed. The Nushagak 

is a giant producer of salmon in the Nation’s greatest salmon 

stronghold, Bristol Bay. It supports a robust subsistence culture 

and a commercial fishery with a longevity approaching 150 years. 

The 20 year average for abundance of sockeye salmon alone in the 

Nushagak River is 1.8 million with a range of 674,000 to 3.4 million. 

The problem we needed to address was the fact that except for 

the Wood-Tikchik State Park most of the salmon habitat in the 

Nushagak Watershed is not conserved. The vast majority of the 

watershed is owned by the State and is managed under an area 

plan that does not guarantee permanent protection for salmon 

habitat. The uplands along the lower river corridor are private 

lands owned by the Alaska Native corporations, five Alaska Native 

corporations, and more than 300 individual Native allotments. 

So looking into the future and taking an admittedly jaundiced 

view of human nature we could foresee a time when this fragmentation of ownership and land management could lead to habitat fragmentation and the loss of connectivity between lakes, rivers 

and streams, those that salmon need most to survive. 

We decided that one way we could protect the habitat and hopefully get ahead of history was to document salmon streams and 

nominate previously undocumented streams for inclusion in Alaska’s Anadromous Waters Catalog. Once a stream is in the catalog, 

State law provides a higher level of protection because an anadromous stream cannot be disturbed without a permit from the 
56 

Habitat Division of ADF&G. Most of the streams in the headwaters 

of the Nushagak are undocumented because they are remote and 

can only be accessed by helicopter. 

We launched our effort in the late summer of 2008 with funding 

and other support provided by various Native partners, including 

the Native tribes of the Nushagak River. The biologists we engaged 

sample streams using backpack electro-fishers. Sampling is done in 

late summer when rearing salmon have generally gone as far up 

into the headwaters as they can. Fish are stunned, identified, 

measured, occasionally photographed, and returned to the water. 

All sampling sites are georeferenced, and each year before September 30, we submit all the information we gather to ADF&G. 

Salmon observations are added to the Anadromous Waters Catalog 

and other fish observations are added to Alaska’s Freshwater Fish 

Inventory. 

I’ve been fortunate to go along on many of these sampling trips. 

I’m not a scientist, I’m a lawyer, but they invited me anyway. Over 

the last 6 years, I’ve stood in many little tundra streams barely a 

foot wide, burrowed down into alder-choked creeks and sunk up to 

my waist in muddy-bottom sloughs. To my astonishment, we have 

found fish in all of these places, and often salmon. Particularly surprising for me was to land near some isolated pocket of water 

above a dry streambed and still find rearing coho salmon. No surprise to our biologists and no surprise to the Native folks who often 

joined us on our surveys. 

So we have logged hundreds of hours in helicopters sampling 

hundreds of headwater streams in Bristol Bay looking for fish. We 

find fish in virtually every place we sample, and salmon in most. 

We have raised and spent hundreds of thousands of dollars to add 

hundreds of stream miles to the Anadromous Waters Catalog. 

But it doesn’t take a biologist to help us understand the significance of these little creeks, mud holes, backwaters, side sloughs, 

and even ephemeral and intermittent stream channels. Even a 

Senate subcommittee, if you could visit these headwaters, would 

have to concede the obvious: These places are the perfect breeding 

ground and rearing habitat for our salmon and a wide variety of 

other fish. Certainly, in this region, firm protection of these headwater complexes should be given. EPA’s Clean Water Act rulemaking affirms the obvious and provides protection for these headwaters and ephemeral streams. 

If we pretend these areas are unimportant and let them fall victim to abuse, then, as history has shown, everything downstream 

could be lost: No salmon; no commercial fishery; no world-class fly 

fishing; no bears; no belugas; no Natives; no economy, and no reason to protect the land. 

Thank you, Senator. 

[The prepared statement of Mr. Troll follows:] 
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Senator SULLIVAN. Thank you, Mr. Troll. 

Our next witness is Mr. Sam Kunaknana. He’s Tribal President 

of the Native Village of Nuiqsut. 

STATEMENT OF SAMUEL KUNAKNANA, TRIBAL PRESIDENT, 

NATIVE VILLAGE OF NUIQSUT 

Mr. KUNAKNANA. Good morning, good morning. My name is Samuel C. Kunaknana, Tribal President of the Tribal Council of the 

Native Village of Nuiqsut, a federally recognized tribe of Alaska 

Native people. Before I begin I would like to thank the esteemed 

members of this committee for allowing me to testify on behalf of 

the people of my tribe. 

As Tribal President, I represent the Native Colville River Delta 

people, a group known as Kuukpigmiut, and as their representative 

I want to communicate just how important clean water is in sustaining the subsistence resources of my community. For thousands 

of years the Inupiat people of the North Slope have subsisted on 

the bountiful natural resources of our region. We rely upon marine 

and land mammals and waterfowl to maintain food security. 

Traditional subsistence foods of our region maintain the health 

of all our people, and with the magnitude of oil and gas development on the North Slope in recent times, access to these resources 

has become more and more limited. Recently the quality of our subsistence resources has now begun to suffer in large part due to 

problems related to the quality of our waters. 

The tundra of the North Slope on which we live might best be 

described as an aquatic environment, the hydrology of which is 

quite complex. The Inupiat people rely upon a wealth of traditional 

knowledge passed from one generation to the next via stories and 

word of mouth. We do not rely upon reference scientific documentation to understand the interconnectedness of our environment, instead we have lived it for thousands of years. 

We know that water flows across the surface quite freely during 

the warm season and that our hydrology involves not only surface 

waterflow but the subterranean movement of the water as well. 

Water that runs over the land in spring and summer not only 

moves from one waterway to the next, but interflow just below the 

surface also connects these waterways. 

All of these water systems are connected in one way or another, 

and they, in turn, are connected to the land surface, as well. What 

falls to the land surface through atmospheric deposition, including 

industrial compounds, ends up in the lichen that our caribou feed 

upon and in the waters that provide food for our fish and other sea 

mammals. 

When I was a young boy in school, I was told of the food chain 

and how all of the animals and fish are connected to the environment. This was nothing new to me, as I learned it from my parents, grandparents and ancestors. This was knowledge passed from 

one generation to the next. 

Many years of industrial development in my homeland has now 

resulted in water and air quality problems, and ultimately industrial aerosols are deposited on the surface to be carried into our 

hydrological systems that support our land and sea mammals and 
61 

waterfowl. These compounds accumulate within our systems and 

cause health problems for us. 

We are told today that we need to limit our consumption of bird 

due to mercury contamination. Many of our Broad white are now 

diseased, and when we butcher our caribou, we find diseased organs. Within our Village of 435 people, two children have been diagnosed with leukemia and one has already passed away. What are 

the odds of a single child being diagnosed with such a disease within a community of 435, let alone two? 

We need our better rules to control the quality of water in our 

region, whether the headwaters of the streams and tributaries, or 

wetlands that support or subsistence resources. We do understand 

and are working to address the loss of food security due to access 

problems to our subsistence resources, as our region becomes inundated with oil and gas development and perhaps mining in the future. However, it would be unconscionable to allow the health of 

the limited subsistence resources we have left to continue to erode 

due to a decline in water quality. 

As an elected representative of the Native people of Nuiqsut, I 

fully support this Clean Water proposal, because it will protect a 

crucial part of the food chain that will allow my people to maintain 

food security with respect to the traditional foods we have relied 

upon for thousands of years. 

Thank you very much for your time and for this opportunity to 

testify on this crucial issue. 

Thank you. 

[The prepared statement of Mr. Kunaknana follows:] 
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Senator SULLIVAN. Thank you, Mr. President, and thank you for 

your travel all the way from Nuiqsut for this testimony. Thank 

you. 

Mr. KUNAKNANA. Quyanaqpak. 

Senator SULLIVAN. Our next witness is Brian Litmans. He’s Senior Staff Attorney for Trustees for Alaska. 

STATEMENT OF BRIAN LITMANS, SENIOR STAFF ATTORNEY, 

TRUSTEES FOR ALASKA 

Mr. LITMANS. Good morning, Chairman Sullivan. My name is 

Brian Litmans and I am a senior staff attorney with Trustees for 

Alaska, a nonprofit environmental law firm providing legal counsel 

to protect and sustain Alaska’s natural environment. Thank you for 

inviting me today to testify on the joint-proposed rule by the U.S. 

Environmental Protection Agency and the U.S. Army Corps of Engineers defining ‘‘waters of the United States.’’ I ask that my written testimony be included in the record. 

This rule provides clarity and certainty on the scope of the Clean 

Water Act in light of the two U.S. Supreme Court decisions: 

Rapanos, and Solid Waste Agency of Northern Cook County. Prior 

to these two decisions, the regulating agencies took a more expansive view of the definition of ‘‘waters of the United States.’’ The 

proposed rule narrows the definition and is consistent with the 

Clean Water Act, as interpreted by the U.S. Supreme Court. 

The Clean Water Act sets out a national goal to restore and 

maintain the chemical, physical and biological integrity of our Nation’s waters. The proposed rule is rooted in sound science, supported by an EPA report that reviewed more than 1,200 peer-reviewed scientific publications. The scientific literature unequivocally demonstrates that protecting upstream waters and wetlands 

is important to protecting the integrity of downstream waters. The 

rule implements the intent of the Act to protect our Nation’s waters while also complying with the Court’s decisions. 

In Alaska, the vital role of wetlands cannot be understated. They 

are sociologically, ecologically and economically important to Alaska, providing essential habitat for fish and wildlife. Alaska’s wetlands sustain some of the world’s richest commercial, sport and 

subsistence fisheries. Providing such essential habitat for such a 

large number of fish and wildlife, these wetlands are paramount to 

the culture and economy of Alaska Native and rural communities. 

Without wetlands, that way of life would disappear. 

This proposed rule is borne out of the Rapanos decision, where 

the justices issued five separate opinions. Chief Justice Roberts 

predicted the troubles to come, noting that with no one test confirmed by the Court, lower courts and regulated entities would 

have to feel their way on a case-by-case basis. When there is no 

majority opinion from the Supreme Court, the lower courts must 

parse through the variety of Supreme Court opinions to determine 

the governing rule of law. This has left the lower courts to fumble 

along, which in turn has only created more confusion. 

Senator Inhofe, Chairman of the Environment and Public Works 

Committee, remarked back in 2011 that a rulemaking consistent 

with the Clean Water Act and the Supreme Court decisions was 

critical. This sentiment has also been echoed by regulated entities, 
65 

government agencies and environmental NGOs, all clamoring for 

rulemaking to address this problem. 

At this point in time, the majority of circuits follow Justice Kennedy’s significant nexus test. This is the same test EPA and the 

Corps now seek to implement through regulation, bringing an end 

to the confusion and uncertainty faced by courts and regulators. 

The rule provides the certainty and regulatory efficiency that the 

regulated entities assert is critical to both the U.S. and Alaskan 

economy. 

A cloud has hung over the regulating agencies, the applicants, 

and those like Trustees for Alaska seeking to ensure the purposes 

and intent of the Clean Water Act are complied with. This rule removes that cloud. The rule clarifies the process to determine which 

streams and wetlands are protected under the Act. The rule does 

not expand the Act’s protection to any new type of waters that have 

not been considered a jurisdictional water of the United States to 

this date. 

Clean water and a healthy environment are essential to all of us. 

Whether it is clean water for drinking or a clean river to swim in, 

clean water for salmon, or clean water for today and for future generations, the Clean Water Act set out a goal that we can all agree 

on. This rule supports that goal. 

Thank you. 

[The prepared statement of Mr. Litmans follows:] 
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Senator SULLIVAN. Thank you, Mr. Litmans, I appreciate you 

laying out some of the legal background of the rule, as well. 

Our final witness is Mark Richards. He’s Co-Chair of Alaska 

Backcountry Hunters and Anglers. 

STATEMENT OF MARK RICHARDS, CHAIRMAN, ALASKA 

BACKCOUNTRY HUNTERS AND ANGLERS 

Mr. RICHARDS. Good morning, Senator Sullivan. Thank you for 

the opportunity to testify before you today, and I certainly want to 

commend you for bringing D.C. to Alaska. We need—we need more 

of that. 

My name is Mark Richards. I’m Chairman of the Alaska Chapter 

of Backcountry Hunters and Anglers. We’re a national hunting and 

fishing conservation organization dedicated to ensuring our heritage of hunting and fishing traditions can continue through education and hard work on behalf of wild public lands and waters. 

We are a grassroots, nonpartisan organization, and part of my 

volunteer duties as Chairman of our Alaska chapter involves attending a wide array of meetings and giving testimony on various 

issues that affect hunting and fishing and conservation in Alaska. 

One issue we recently commented on was the National Park 

Service’s rulemaking changes governing hunting and trapping regulations on National Preserve lands. We opposed the Service’s new 

rulemaking because we felt it was not based on any clear scientific 

or conservation concern and that it was a clear example of Federal 

overreach. 

The question before this committee, and the Country, and specifically Alaska, is whether or not this new proposed rule on ‘‘Waters 

of the United States,’’ clarifying what waters are protected under 

the Clean Water Act and what waters are subject to Federal jurisdiction, is also Federal overreach. We don’t believe that it is. 

Court decisions in the last decade, as you have heard earlier, 

have made it unclear what waters are protected under the Clean 

Water Act and under Federal jurisdiction. Our Former Governor 

Sean Parnell, along with others, was among those who requested 

that the EPA and the Army Corps of Engineers clarify these issues 

via the rulemaking process. 

This final rule will result in less waters being under Federal jurisdiction than were in place for the first 30 years of the Clean 

Water Act. During that same time period, when I was here, the 

State of Alaska saw enormous economic growth and development 

while our population quadrupled. We built a pipeline under the 

regulations of the Clean Water Act before the Supreme Court 

weighed in. Even when more waters were under Federal CWA jurisdiction than there are now under this new rule, Alaska prospered and development soured. 

Sure, there are costs associated with regulation that govern and 

protect our streams and rivers and wetlands, costs to developers 

and industry and the private sector and communities, but those are 

the costs associated with clean water and healthy habitat for fish 

and game. Those are the costs that allowed me to drink out of the 

Sag River when my wife and I worked up north during the summer; those are the costs that allow me to catch a lunker Dolly 
71 

Varden out of the Sag, three miles downstream of where the Pipeline goes underneath the Sag River. 

And speaking of costs, there are of course costs to the regulatory 

agencies, as well. Back in 2013, Senator, when you were Department of Natural Resources Commissioner under Governor Parnell, 

the administration sought to get primacy rights for the State of 

Alaska, to take over the job of wetlands regulation from the Federal Government under the Clean Water Act. The Federal laws 

protecting wetlands would still be in place under the Clean Water 

Act, but the State would take over wetlands permitting issuance 

from the Army Corps of Engineers. The rationale was that if the 

State had primacy rights, they could do as good a job as the EPA 

and Corps in regulating wetlands, but the State could permit development projects at a much faster pace. 

As you said at the time, Senator, as DNR Commissioner, ‘‘It’s not 

about cutting corners, it’s about making our permitting more timely, efficient and certain.’’ We support that. The problem, however, 

then and especially now, should the State of Alaska ever gain those 

primacy rights, is that the costs of assuming regulation and permitting of wetlands for the State are extremely high, and in today’s 

fiscal climate with our ongoing budget crisis is, frankly, not achievable. 

I bring up this to point out that it is extremely unlikely the State 

of Alaska will ever gain primacy rights from the Federal Government over wetlands, but at the same time we still need to clarify 

what bodies of water are under Federal jurisdiction according to 

the Clean Water Act. 

That’s what this new rule does. It clarifies what waters are 

under Federal jurisdiction. And it is that clarification that does not 

sit well with many here today because of fears of how it could impact future development and costs to individuals and businesses. 

We understand and respect those concerns, but overall, the Clean 

Water Act has been very much a positive for our Country and for 

our States and communities, for our fish and game and for our 

hunters and anglers. We view this clarification and new rule as a 

positive, as well. 

And we would like to say, Senator, we also have concerns. We 

support this new rule, but if you could, work with Senator Barrasso 

and others and fix the concerns that we have as a State, without 

going back to the starting block and starting over again. Right now, 

according to the Bush administration rules, things are slowed 

down; permitting is slowed down because we don’t have this definition. So we want to see it fixed. 

We understand the concerns everybody has here and we’re willing to work with you. 

And just thank you for the opportunity to testify and for your 

service to our Country, really appreciate it. 

[The prepared statement of Mr. Richards follows:] 
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Senator SULLIVAN. Thank you, Mr. Richards. Thanks for the reminder on the primacy issue. It’s an important issue. 

And I will add, that one of the things that we are trying to do, 

as I mentioned at the outset, Senator Barrasso and I had an 

amendment in the budget process that did try to look at the clarification that you mentioned, and I think that that’s what a lot of 

people are focused on. 

Well, listen, I want to thank the witnesses again. 

What I propose to do right now, since we’re all on the panel here, 

is I’m going to start with a few questions. We have a little bit of 

time. I’ll direct them at individual witnesses, but I—but I do want 

to add that if others want to jump in, just please raise your hand. 

And I think that’s the most efficient way to do this. 

I want to—I do want to thank everybody again. As I mentioned, 

we’re trying to bring Washington, DC to Alaska on a hearing of importance, and I think every witness here recognizes how important 

this issue is, not only to educate our citizens but to, for the 

record—and this is an official Environment and Public Works hearing in the U.S. Senate—is to get on the record some of these Alaska-unique issues that I think most of us can agree on here. 

But even though we’re trying to bring DC to Alaska, I do recognize that so many of you traveled very far distances just to be here, 

so I want to thank the witnesses again. 

So let me start out with some of the questions. 

Ms. Sweeney, I thought that your comment with regard to the 

potential conflict, with regard to ANCSA and other consultation requirements, with regard to Alaska Natives was a very insightful 

comment that you made during your testimony. Would you care to 

expand upon that at all, and also, with regard to the consultation 

that took place? 

You know, the Federal Government does have a particularly important requirement with regard to consultation with all members 

of the State, the State of Alaska, but also particularly with regard 

to Alaska Natives. 

President Kunaknana, if you could also talk about that consultation issue, if you believe you were—had the appropriate consultation in that regard. 

I’d appreciate both of you commenting on that, and anyone else. 

Ms. SWEENEY. Samuel, did you want to go first? 

Mr. KUNAKNANA. No, quyanaqpak. 

Ms. SWEENEY. Thank you, Chairman Sullivan. I appreciate the 

question. 

The EPA, in this instance, with respect to the proposed rule, did 

not reach out to ASRC. And as we’ve gone through several different 

hearings on issues affecting Alaska Natives and Alaska Native corporations, the Federal Government certainly can do a better job in 

reaching out to consult with Alaska Native corporations. And on 

top of that, they’re required to, whether it’s through the executive 

orders that have been issued prescribing that consultation. 

One of the issues that we find is, regardless of whether or not 

an Alaska Native corporation or a tribal entity agree or disagree 

on an issue, if there’s alignment or not, it’s important to get that 

feedback from the front end. And the way that the process is estab-
76 

lished now, they make their decision, they draft their rule and then 

they go out for comment. 

And it would be nice, as we move forward in this consultation 

era, that the Federal Government actually sit down with all aspects of the Native community, especially those that are prescribed 

in the executive orders that prescribe the government to do so. And 

they’re certainly not following through in the manner in which they 

could. 

Senator SULLIVAN. Mr. President. 

Mr. KUNAKNANA. [Indiscernible.] 

Senator SULLIVAN. I’m sorry? 

Mr. KUNAKNANA. I will include this in writing. 

Senator SULLIVAN. OK. 

[Reporter requested clarification.] 

Senator SULLIVAN. Yes. If you’d please turn your mic on, so she 

can follow what—— 

Mr. KUNAKNANA. I will include it in writing. 

Senator SULLIVAN. OK. Great. Thank you. 

Let me go to the issue of costs. I think that that is one that there 

are very, very significant differences of opinion on this issue. Several of us who examined the rule think that it could have enormous 

costs, not only in terms of money but in terms of time with regard 

to the issuing of additional permits. 

Perhaps Mr. Rogers or Ms. Moriarty could speak to that, and 

others who want to address that issue. It’s obviously a big issue 

with regard to the State of Alaska, not only in terms of, as I mentioned, the cost of doing business but the time it takes to get permits, which is, in my view, a very significant problem that we have 

in the State with regard to the Federal permitting, that can take 

literally years to get projects moving. 

Mr. Rogers. 

Mr. ROGERS. Thank you, Senator. 

It’s really an important point. I think we have enough experience 

under the status quo with the Clean Water Act to be able to highlight that there’s a significant cost of compliance with the Clean 

Water Act. Expanding the jurisdiction, of course, would just exacerbate that problem. 

I think you mentioned the direct cost of applying for permits, but 

the cost of the time, while difficult to quantify, is very significant. 

Kara testified that in some cases it can take 2 years to get a 

Clean Water Act permit, and time equals money. That affects the 

delays on getting the project moving forward, to get it sanctioned. 

And frankly, it makes us less competitive than other jurisdictions 

around the world where our resources are competing in a global 

marketplace. And the second aspect of cost is the compensatory 

mitigation, and that’s a current issue that’s very important to us. 

There have been some prior agreements. Back in 1994, there was 

a wetland initiative to actually acknowledge the unique circumstances in Alaska and provided far more flexibility, and we are 

working with other stakeholders to try to make sure that the Corps 

and the EPA acknowledge that existing agreement that’s still in 

place. But irrespective, compensatory mitigation is a big cost, and 

of course, if you expand the jurisdiction, it gets even bigger. 
77 

Ms. MORIARTY. Senator, I think, to follow up on Rick’s comments, 

you know, I did talk about, you know, the current cost. What I 

didn’t say is that, you know, it does—it can take over 2—up to 2 

years to obtain a 404 permit, and the average cost of each 404 permit is about $300,000. And so I don’t know—I know that Kathy 

from the Municipal League also talked about that, you know, with 

her municipalities, that, you know, this isn’t just resource development projects this could impact, it’s also these small communities 

that would need a permit for their local projects, whether it be a 

utility project or whatnot. 

But I just would like to add: It’s a bit difficult, I think, to give 

an exact analysis, because I would argue the EPA wasn’t completely transparent in the type of approach that they did use. 

But I want to just give one other quote, that according to a professor at the University of California Berkeley, David Sunding— 

he’s a professor of agricultural and resource economics—he says, 

‘‘The EPA’s entire analysis is fraught with uncertainty,’’ and is not 

an accurate evaluation of the actual cost of implementing the rule. 

Furthermore, the professor stated that‘‘The errors, omissions and 

lack of transparency in the EPA study are so severe that he renders it virtually meaningless.’’ 

And so this isn’t just Alaskans pointing out that the economic 

analysis is flawed; others have, as well. 

Senator SULLIVAN. Great. 

Kathie. 

Ms. WASSERMAN. Thank you, Mr. Chairman. 

And one thing that I would like to point out is, most of Alaska’s 

communities, the lifeblood of that community is their harbor. You 

can kill a community in many ways, but if you close down the harbors, I can guarantee you most of Alaska communities will not be 

able to thrive. 

And right now, just to dredge is almost impossible and very costly and takes a lot of time. And if we now include more small waterways, with perhaps no fish, and more hoops to jump through, municipalities will not be able to keep their harbors going. And that’s 

how you get into most of these communities. 

Thank you. 

Senator SULLIVAN. Ms. Simon, I wanted to kind of dig a little 

deeper on an issue that is very unique in many ways to Alaska, 

and that’s not just what we’re talking about with regard to costs, 

but the compensatory mitigation issue. 

Could you provide a little bit more detail on what you were talking about in terms of our inability as a State to even be able to 

start meeting that, given the relatively small amount of opportunities we have for compensatory mitigation, relative to, say, other 

places in the Lower 48? 

Ms. SIMON. It’s a really difficult-to crack, Senator. Like I said in 

my testimony, for every one acre of disturbance, you have to mitigate that with 3 to 10 acres for preservation. 

We have had a difficult time in Healy trying to identify appropriate lands or even finding an appropriate land bank to partner 

with. So I would say that in Alaska, the land bank system isn’t as 

sophisticated as it is in other areas, and certainly the opportunities 

for lands to select is also uncertain. But definitely with this pro-
78 

posed rule it really makes it near impossible for Alaskans to adhere with compensatory mitigation, because so many of our wetlands are already under public management and unavailable for selection. So it takes a very difficult situation and makes it much 

worse. 

Senator SULLIVAN. Thank you. Mr. Richards, do you have any— 

as you were talking—and I appreciate, again, your testimony. Do 

you have any suggestions on ways in which the rule could be clarified, or do you think that in its current form it provides the clarification that’s needed? 

There’s a lot of people who, in a lot of States, who think that it 

actually doesn’t do that, but I appreciate your constructive comments about looking at ways to try and do that. 

You may have seen, as I mentioned, the amendment we put forward that was passed as part of the Senate budget process last 

week that tried to do that. Do you have any other suggestions that 

way? 

Mr. RICHARDS. Senator, thank you. 

The main suggestion I would have is that this has become overly 

polarized, just like our Country is right now, and so—you mentioned in your opening comments about hyperbole. And well, one 

of the comments Ms. Simon made was that this new rule would 

likely stop all development projects, and that’s not true. So I think 

we need to—I think we need to get on the page where we can all 

come to a consensus, like what it would do and what it wouldn’t. 

What I’m hearing, from a lot of the opposition here, is a lot of 

coulds: ‘‘It could do this.’’ 

So clarification, yes, would be needed, should be needed, especially for the State of Alaska. But I would like to see your office 

work on this in a bipartisan manner to, instead of kicking this back 

to start over, to let’s look at what the new rule is and look at the 

concerns we have and look at trying to work with Barrasso and 

others in trying to, you know, come up with a fix. 

Senator SULLIVAN. OK. Good suggestion. 

I do think, though, that—you mentioned hyperbole, but even 

Obama administration’s—some of their own agencies have resorted 

to—— 

Mr. RICHARDS. We don’t disagree with that. 

Senator SULLIVAN [continuing]. Concerns. 

And let me give you one example, and then I do want to just 

mention this to all the panelists here, the issue of small businesses, 

the issue of small communities. As Ms. Moriarty mentioned, you 

know, an EPA 404 permit can cost on average $300,000 and take 

2 years. 

Interestingly enough, when this rule came out, the EPA and 

Corps certified that the proposed rule will not have significant economic impacts on a substantial number of small entities, small 

communities, small businesses, which lead to the chief counsel for 

the Small Business Administration Office of Advocacy, that they 

determined that this statement by the EPA and Corps was in error 

and improper, and the comments that they filed, this office of the 

SBA in the Obama administration stated advocacy in small businesses are extremely concerned about the rule as proposed. The 

rule will have a direct and potentially costly impact on small busi-
79 

nesses. The limited economic analysis, which the agencies submitted with the rule, provides ample evidence of a potentially significant economic impact. 

Advocacy at the SBA advises the agencies to withdraw the rule 

and conduct an SBRA panel prior to promulgating any further rule 

on this issue. 

So, even within the Obama administration, there are concerns, 

significant concerns, that we have not undertaken the proper analysis on how this will impact small communities and small businesses. 

And I would like to just open that up for any concerns. You 

know, most of our employers in this—in our great State are small 

businesses. And any of the witnesses care to comment on that? 

Rick, I know that you represent literally hundreds of small businesses. 

Mr. ROGERS. Yes. Senator, that’s really a good point. You know, 

we think about our big projects. We heard testimony from Alyeska 

and from the oil and gas industry. But the Clean Water Act has 

such a broad jurisdiction, of course it affects everything from a 

community project to small construction jobs. So clearly it’s not just 

about larger organizations, it affects every aspect. 

And like I mentioned in my testimony, Senator, the ubiquitous 

nature of wetlands and the fact that they’re so widespread in Alaska, and particularly under the proposed rule, it’s really hard to find 

an activity that does not require a 404 permit; if you’re doing any 

filling, any dredging, if you’re building a road, driveways, culverts. 

And so I think you’re correct in probing that issue, because small 

business, both here in Alaska and nationwide, is, you know, a significant job creator and a significant, you know, important aspect 

of our economy. 

Senator SULLIVAN. Thank you. 

Any other comment? 

Kathie. 

Ms. WASSERMAN. I did a little research on this, Senator, and 

under the SISNOSE Act—and someone obviously gave it an acronym but then went no further to pay attention to it—if a community or an organization is a small entity, which of all 164 municipalities, that includes 160 of them, they’re supposed to do a— 

they’re supposed to provide a factual basis to determine the rule 

does not impact these small entities. And under the proposed ruling that was never done. I know no municipalities were ever contacted as a small entity, and I have not heard of any businesses 

that were. 

Ms. MORIARTY. And, Senator, if I could just add one more comment. I do represent the oil and gas industry, and we might not 

be viewed as a small business in Alaska, but we do—are the heartbeat of the economy, I would argue, with one-third of all Alaska 

jobs can be attributed to our industry. And $300,000 here and 

$500,000 there may not sound like a lot, but we’re—the State’s not 

the only one suffering a financial situation at 50-dollar oil. 

And mineral prices change and oil prices change. It’s a tough— 

it’s a tough environment to do business. And I think the main problem with this rule is that it is going to have such an impact on 

Alaska but Alaska isn’t really considered. 
80 

And I think when you think about specific things that can be 

done without starting over, if starting over isn’t an option, we need 

to consider how does this impact Alaska. 

Senator SULLIVAN. I think that’s a great comment. 

One of the—you know, there’s obviously very differing views here 

on the impact of the rule, the importance of the rule, whether you 

support or don’t support the rule. I do think—and I don’t want to 

speak for all the witnesses, though—there certainly seems to be 

broad consensus that this rule has not done much to consider the 

unique circumstances of Alaska, particularly given what a large 

swath of the Clean Water Act jurisdiction we’re already under. And 

I think that that, certainly to me, is one of the takeaways. I don’t 

know if there’s a consensus on that throughout. 

But let me ask another question, for Mr. Litmans and Mr. Troll. 

There seems to be, again, kind of a differing view on how this 

could expand the jurisdiction of the EPA’s wetlands authority in 

the State and throughout the Country. 

Mr. Litmans, you mentioned ‘‘didn’t at all, just clarified it.’’ Even 

the EPA admits to an expansion of about 3 percent, which 3 percent in Alaska would be a pretty big expansion. 

And I don’t want to put words in your mouth, Mr. Troll, but you 

seemed to, through your testimony, also indicate that you thought 

it would expand the jurisdiction of the Clean Water Act by getting 

into areas that weren’t previously covered. 

Do you want to comment on that? Do you think that this rule 

expands the jurisdiction of the Clean Water Act by the EPA? 

Mr. TROLL. Well, Senator, mostly I just wanted to testify to the 

fact of actually what I’ve seen and is of concern, as I understand 

it, about ephemeral streams and intermittent streams. And certainly our observations, in this extensive work at the headwaters 

of the Nushagak, and now of the Kvichak, as well, it’s not uncommon to find ephemeral streams and pockets of water above them 

that do hold rearing salmon and other species of fish. You know, 

we found cohos that hold over for a year or two, just waiting for 

the water to come back. And so we want to make sure, at least 

from the standpoint of, you know, all the downstream effects on 

commercial fishing and subsistence fishing, that those kinds of 

areas are protected. 

Senator SULLIVAN. But do you think that it expands the jurisdiction as presently understood by the law right now? 

Mr. TROLL. I’ll have to defer to Mr. Litmans on that. But certainly, if they are not, they should be. And there may be some 

question as to whether it’s an expansion or just a clarification that 

these systems already do exist, or are already covered by the Clean 

Water Act. 

Senator SULLIVAN. OK. Mr. Litmans. 

Mr. LITMANS. Thank you, Senator Sullivan. 

I stand by my testimony that the proposed rule does not expand 

jurisdiction for the Army Corps of Engineers by defining ‘‘waters of 

the United States’’ as they have. 

Again, the rule is borne out of Rapanos, Bayview, SWANCC. 

Bayview established that adjacent waters are jurisdictional. That 

was a decision where there was no question by the Supreme Court 
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about whether or not jurisdictional waters extend beyond the traditional navigable, in fact, waters of the United States. 

Justice Scalia said they did, in fact, stretch beyond traditional 

navigable waters, in fact, and would include adjacent waters because adjacent waters have the ability to impact waters of the 

United States. They have the ability to impact the chemical, biological and physical integrity of our Nation’s waters, and they’re 

therefore rightly regulated under the Clean Water Act. 

The bigger issue with respect to jurisdiction was established in 

Rapanos. And there we have a split decision with four justices— 

a 4–4–1 decision by the U.S. Supreme Court, which is incredibly 

unusual. 

The most important thing is that we’re discussing today the impacts to Alaska. Well, the test for determining jurisdiction in Alaska will be controlled by the Ninth Circuit, and the Ninth Circuit 

has adopted Justice Kennedy’s test, the significant nexus test. That 

test is the same test that EPA has now codified. The only difference post rulemaking, should this rule be adopted, is that that 

significant nexus test will be codified. 

Currently, the law of the land is that, if there is a significant 

nexus, that those waters are jurisdictional. Because the test is the 

same for purposes of determining whether or not one must get a 

404 permit, there’s no change in circumstances. If there is a significant nexus, then one must get a 404 permit. 

With respect to the 3 percent expansion, this comes from EPA’s 

March 2014 economic analysis of proposed revisions to the definition of ‘‘waters of the United States.’’ What EPA and the Corps 

tried to do in that report is assess what the impacts are under the 

new test. And when you look at the 3 percent, it’s actually a 2.7 

percent increase of jurisdictional waters. It was 2.7 percent based 

on an analysis of some 290 permitted actions between 2009 and 

2010. 

And those—what the Corps did is they went back and they said: 

Under the proposed rule, what would—what would the world look 

like? And it looks very similar if there’s a 2.7 percent change. And 

the EPA noted: Well, where does that 2.7 percent change come 

from? It comes from largely the result of clarifying current confusion and assessing—over the difficulty of assessing ‘‘other waters.’’ 

There is the potential—when assessing significant nexus, we are 

talking about hydrology, we are talking about science, we are talking about impacts to waters of the United States. Is there significant impact to the downstream waters? There is the potential that 

you could have scientists look at this and have a differing opinion. 

So the 2.7 percent, there’s a small margin of error between pre 

and post rule. And I would say, because the significant nexus test 

is the law of the land in the Ninth Circuit, it is what EPA adopted, 

that there is no expansion. 

Senator SULLIVAN. Would you like to respond, Ms. Sweeney? 

Ms. SWEENEY. Thank you, Chairman Sullivan. 

I would like to just hit on the significant nexus test. While I respect your opinion, I disagree with my fellow witness here. 

With respect to Alaska, especially on the North Slope, there is 

a major disconnect or potential overreach in the proposed rule because it provides the Federal Government a workaround against 
82 

the significant nexus test if wetlands on top of permafrost are characterized as riparian areas adjacent to jurisdictional waters. 

The Congressional Research Service, in their report on page 3 

and 4, they acknowledge that the proposed rule expands Federal 

jurisdiction through the inclusion of all waters that are adjacent 

to—and they list the five different areas: Waters susceptible to 

interstate commerce; all interstate waters including interstate wetlands; territorial seas; impoundment of the above waters, or tributary. And tributaries of the above waters is a broadly defined term 

in the proposed rule. 

When you look at the decision in Rapanos v. United States, Justice Kennedy’s concurring opinion concluded that wetlands were 

only waters of the U.S. if those wetlands had a significant nexus 

test to navigable waters. The proposed rule prescribes that a significant nexus test will only be performed in cases of waters categorized as ‘‘other waters.’’ 

If wetlands on top of permafrost are categorically determined to 

be riparian areas, then no test is needed. And according to the proposed rule there is no significant analysis required, thus placing 

those wetlands predominant to the North Slope as ‘‘waters of the 

U.S.’’ 

It’s important to note that the definition of the ‘‘riparian area’’ 

in the proposed rule and the language that Fish and Wildlife use 

to define wetlands in Alaska are very, very similar. So I would jurisdiction disagree with the notion that it does not expand jurisdiction of the Clean Water Act in Alaska specific to the North Slope. 

Senator SULLIVAN. I’d like to just make a broader comment with 

regard to this discussion, because I think it’s a critically important 

one. 

You know, one of the concerns I certainly have as Alaska’s Senator, but I think a lot of Alaskans have, is what’s happening with 

regard to Federal overreach that kind of goes in a little bit of a 

rhythm that we’ve seen with this Administration, in a whole host 

of areas, where they try to do something through the Congress, 

they can’t get it done because it’s not popular, they can’t get it 

through the Congress, so they take action or direct action through 

Federal agencies to do it anyway. And I think Alaskans have seen 

this. I’ve certainly seen this in our State, across a whole host of 

areas, and I think this is one that certainly looks to fit that pattern. 

So, in March 2009, the EPA, in the new Obama administration, 

wrote the Congress to try to look at ways to maybe clarify, maybe 

expand the jurisdiction of the Clean Water Act. A couple Members 

of Congress introduced bills to do so. Those bills went nowhere. 

In the interim, the Supreme Court reprimanded the EPA for taking regulatory action that was in the realm of the powers of the 

Congress, and yet, many view this rule as doing the exact same 

thing. 

So let me ask, Mr. Litmans, if this is an expansion of the Clean 

Water Act, if it’s an expansion, which a lot of people believe—and 

Ms. Sweeney, I think, did a good job of laying out why, including 

the Congressional Research Service, that this is an expansion— 

isn’t that, under the separation of powers of the United States, in 

the Supreme Court’s ruling in Utility Air Regulator Group, in 
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which the State of Alaska played an important role, isn’t that the 

realm for Congress to make the decision on whether the Clean 

Water Act should be expanded, not the realm of an agency? Which 

does have the role, and I admit it, to clarify the law, but certainly 

not to write the law or expand the law, which would be a violation 

of the separation of powers. 

Mr. LITMANS. The proposed rule does not expand jurisdiction. 

Senator SULLIVAN. No. But if it did, wouldn’t that be the realm 

of Congress and not the EPA? 

Mr. LITMANS. The—— 

Senator SULLIVAN. Just simple question, simple answer. 

Mr. LITMANS. I can’t give a simple answer. It depends on how— 

on what the agencies have done with respect to defining a particular term from a statute. The statute, the Clean Water Act, the 

regulatory ability to regulate discharges and fill is governed by the 

Congress. And so if you have a Congress-based question, I don’t 

have enough facts to answer your question, sir. 

Senator SULLIVAN. OK. Thank you. 

Let me ask a final question with regard to consultation. And as 

I mentioned, particularly with regard to Alaska, do any of the witnesses believe that there was extensive consultation on this issue, 

given the groups that you represent? Whether it’s tribes, whether 

it’s small communities, whether it’s agency or organizations that 

represent different private sector entities, was there extensive consultation with regard to this rule, particularly how it applies to our 

unique Alaska circumstances? 

Ms. SIMON. No. 

Ms. WASSERMAN. No. 

Ms. MORIARTY. No, Senator. 

Mr. ROGERS. No. And several of us commented on the 

connectivity rule, Senator, which was of course out for public comment before they initiated this rule and it was in draft format. 

There were great concerns over that report, particularly how it 

failed to recognize things like permafrost and unique Alaska conditions, and yet, the EPA just marched forward with this rulemaking 

and kind of after the fact made amendments to that connectivity 

report; and yet, it still is really void of very thoughtful Alaskanspecific analysis. 

Senator SULLIVAN. Mr. President, do you have any views on it? 

Mr. KUNAKNANA. [Indication in the negative.] 

Senator SULLIVAN. Mr. Troll. 

Mr. TROLL. NO. 

Senator SULLIVAN. Mr. Litmans. 

Mr. LITMANS. I stand by my previous testimony. 

Senator SULLIVAN. OK. Well, listen, I want to thank everybody 

again. I know we’ve run over, a little bit of time. I really appreciate 

the great testimony here. The differing views are important views. 

We will certainly be taking these back to Washington. But more 

importantly, we’re going to continue to try to have these kind of 

field hearings, so we’re coming to you, to your communities. 

We’re going to conduct another hearing on the proposed ‘‘Waters 

of the U.S.’’ in Fairbanks on Wednesday. And we just appreciate 

the time, the concern, and we look forward to a continuing discussion. Which for Alaska is a very important regulation, a very im-
84 

portant rule, that as you have seen from some of the witness testimony, a lot of the witness testimony, there’s very big concerns, bipartisan concerns, in the U.S. Congress, and I would certainly say 

bipartisan concerns among the vast majority of the States in the 

United States about this proposed rule. 

So I want to thank the witnesses again, and the hearing is now 

adjourned. 

Thank you. 

[Whereupon, at 12:22 p.m., the hearing was adjourned.] 

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