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Lisa M.
Republican AK

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  • Providing for Congressional Disapproval of a Rule Submitted By the Corps of Engineers and the Environmental Protection Agency

    by Senator Lisa Murkowski

    Posted on 2015-11-04

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    MURKOWSKI. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

    The PRESIDING OFFICER. Without objection, it is so ordered.

    Ms. MURKOWSKI. Mr. President, I thank my colleague from Iowa who has led the effort this morning as we speak about the waters of the United States rule that would lead to a resolution of disapproval on this very wrong-headed rule.

    I also want to acknowledge the good work of my colleague from Wyoming, Senator Barrasso, who had the opportunity yesterday to discuss the devastating impact of the WOTUS rule, as we lovingly refer to it. It was a combined effort to address the concerns that so many of us have across the country about the waters of the United States rule that has stemmed from the EPA and Army Corps of Engineers.

    This WOTUS rule that so many of us speak to is not only an overreach, it is a significant overreach that will allow for a dramatic expansion of the Federal Government's ability to regulate our land and regulate our waters and will harm the people in the State of Alaska and other States across the Nation. They have said in no uncertain terms that this rule could have as damaging an impact on our State and our State's ability to engage in any level of development--this rule would have greater impact than most anything we have seen before.

    So I am here to urge my colleagues in the Senate to support the resolution of disapproval that we now have pending, which we will have an opportunity to vote on in just a little over an hour.

    I have had dozens of meetings--meetings with constituents, meetings with people across the country who have raised this as an issue. We have sent letters, and we have questioned the EPA Administrator about the impact of the rule.

    I had an opportunity to have a field hearing in Alaska earlier this year, joined by Senator Sullivan, focusing on those areas we would consider to be Federal overreach, those areas that hold our State back from any level of economic activity and development. Time after time, the concern was whether this waters of the United States--again, this expansive interpretation of the Clean Water Act literally designed by the EPA, a concern about how its negative impact on our State will be felt.

    In addition to many of the legislative efforts that are out there, as chairman of the Appropriations interior subcommittee, I included a provision within the Interior appropriations bill to halt the implementation of the waters of the United States rule. I am a cosponsor of the bill we tried to advance yesterday. Unfortunately, it was blocked. I am also a cosponsor of the disapproval resolution that is being offered by our colleague from Iowa.

    My position on this is pretty simple: The WOTUS rule cannot be allowed to stand. The agencies have to go back to the drawing board. I am not alone in this view. It is a highly controversial rule. It stands out among many of the rules we have seen finalized by this administration. Of the controversial ones that are out there, I would argue that if this is not in the top tier, if it is not the top, it is certainly No. 2.

    It is a rule that is controversial enough that it draws bipartisan opposition as well. We have a large majority, a bipartisan majority of the House that opposes it. When we look to how this has been addressed by the States, some 31 States, including the State of Alaska, have sued to block it. A wide range of local governments and business groups have done the same. Just last month, the Sixth Circuit Court of Appeals issued a nationwide injunction to prevent the implementation of this rule.

    I welcome what the courts have done so far, but I do not think Congress should sit back on this and hope we get the right legal outcome. We should not just be sitting back because that right legal outcome may come. It may come in months, it may come years from now, or it may not be the right outcome. Our opinions here in the Congress are not based solely on what the courts say. We have to look to the reach, to the impact of this rule, and then determine whether it is appropriate. Again, my answer to this is pretty simple: It is no. It is just not appropriate.

    The agencies are claiming the WOTUS rule is somehow or other just a clarification. They have gone one step further and they renamed it. They are calling it the clean water rule because who out there is going to oppose clean water? Nobody opposes clean water. We all strive for cleaner water, cleaner air. This is something we all should be working to. But just changing the name on this rule does not make it so. In fact, this rule is really just muddying the waters. Excuse the pun, but that is what EPA is doing. They are creating confusion. They are certainly creating greater uncertainty. It opens the door to higher regulatory costs and delays for projects all over the country.

    There have been many colleagues who have come to the floor and talked about kind of the mechanics of the WOTUS rule. Unfortunately, they are pretty complicated. When you start talking about ``categorically jurisdictional waters,'' when you try to explain the ``significant nexus'' analysis, the only people in the room who are really captivated by what you are talking about are the lawyers who might be in a position to gain some benefit because they are working these cases. But most farmers in Iowa and most miners in Alaska are not thinking about what a categorically jurisdictional water is and whether there is a significant nexus from my little plaster mining operation to a body of water. That is not what people are thinking about.

    I want to use a little bit of my time this morning to speak to how, in the State of Alaska, people will be harmed by application of this rule.

    To understand the reach of the rule in the State, take a look at this map of the State of Alaska. It is so big, we cannot even fit it all on one floor chart because really we need to go all of the way out to the Aleutian Chain and we do not have all of the southeastern part of the State in it, but we have the bulk here. Alaska, plain and short, is covered in water. It is just wet. According to our State government, Alaska has more than 40 percent of the Nation's surface water resources. Think about that. Think about the entire United States of America, and then appreciate that in one State, in my State, we have more than 40 percent of the Nation's entire surface water resources. So we are talking over 3 million lakes, over 12,000 rivers. We have approximately 174 million acres of wetlands. There are more wetlands in the State of Alaska than in the entire rest of the country combined.

    So all you colleagues, all you folks in the 49 other States who are concerned about the impact of this rule, I don't mean to diminish your problems, but think about what this rule would do in Alaska.

    We have more wetlands in the State of Alaska than in all of the rest of the country combined. Out of 283 communities in the State, 215 of these communities are located within either 2 miles of the coast or a navigable waterway. We live on the water, even in the inland part of the state, where I was raised and went to high school--the lakes, the rivers, up in the north country here, where you have just a small lake. Out in the whole southwest of Alaska--when you fly over it, you look at it, and it is dotted with small lakes and bodies of water. Plainly said, it is wet in Alaska.

    Surprise--if it is not wet, it is frozen. Think about the permafrost we have there. How do you deal with the permafrost? How is that considered in this proposed rule, in this waters of the United States? If it is frozen, is it [[Page S7738]] waters of the United States? Well, you know, we don't know because the rule is unclear, but we are going to go ahead and just assume that it is going to be covered.

    We have a map here where what you see is blue. The reason it is blue is because all of it is water.

    This is the National Hydrography Dataset, Streams, Rivers and Bodies for the State of Alaska, September 2015.

    EPA has produced maps of the waters and wetlands in each of our 50 States. Our colleagues in the House actually had to force the Agency to release these maps last year. Almost the full State of Alaska is shaded in. That is what the EPA wants to be able to regulate under this rule. So what exactly could that cover? What are we talking about? It could be out here in Bristol Bay, where it is all about fishing. It could be a new runway project there that would be subject to regulation or a seafood processing plant out there in Bristol Bay.

    Up here in the interior of Alaska, in Fairbanks, it could be a new neighborhood they want to accommodate to deal with the growing population there that would be subject to regulation.

    It could be a parcel of land awarded under the Native Land Claims Settlement Act that just so happens to be in a wetlands area or have a small river present. But the fact that it was a conveyance of land under the Native Claims Settlement Act does not get you beyond regulation through the EPA.

    It could be the new industrial park in Anchorage that wants to diversify, wants to help expand the economy there.

    It could be an energy project up on the North Slope that the Arctic Slope Regional Corporation wants to pursue. But, again, it is either wetlands or it is clearly permafrost up there.

    It could be Alaska's proposed gas line. We are hoping to run a gas line from the Slope all of the way down to tidewater in Valdez. This is a major project our State's legislature is working on. Right now they are in the midst of a special session. It is going to run across--if you want to talk about wetlands and rivers and areas that will be subject to this permitting requirement, it could be any of those. It could be many more.

    That brings us to the potential impact under the WOTUS rule. I am not certain that the agencies will try to stop every project in the State-- that is too much even for them--but I recognize that they could use this rule to stop any project that they want, whenever they want, and for as long as they may want. So maybe not every project will be affected, but any project could be targeted. Think about that. If you are trying to make an investment decision, if you are a business that is seeking to expand but you have that level of uncertainty because you don't know if you are going to be targeted, that is tough. It is tough to make these decisions.

    We know these agencies have cast an extremely wide net with this rule. We know from Keystone XL and from our experiences in Alaska that regulatory decisions are not always fair or impartial or even logical within this administration. We know that almost everything in Alaska is either near water, it is wetlands, or it is permafrost. You add it all up, folks, and almost every project in Alaska could suddenly be subject to Federal permitting under the Clean Water Act. That, in turn, means most projects in our State will end up costing more, taking longer, or being indefinitely delayed.

    I would remind friends that the cost of securing a section 404 permit can easily run $300,000 and take over 2 years to do. So you are adding cost and you are adding delay. The delay adds to further cost. Some developers just give up. They raise the white flag and they say: I am tired. I am frustrated. I just cannot run this regulatory gauntlet.

    They give up. All of this would be in addition to the significant regulatory burdens Alaska is already facing.

    One last example I will leave you with comes from Craig, AK, down here in the southeast. This is a small town of about 1,200 people. We have a local tribal organization that wants to construct a 16-unit affordable housing project. The Army Corps required a $46,000 downpayment to a mitigation bank prior to permitting. Again, this is for a small project in a community of 1,200 people. It is a tribal organization trying to bring in some low-income housing units, and they are going to have to spend $46,000 just to get started. Think about what they could have done if they could have put those dollars toward that project. Imagine then--a town like Craig--when you scale this up to communities such as Anchorage and Fairbanks, what do those costs mean to you? There is just too much at stake.

    Again, I strongly oppose the WOTUS rule because of the uncertainty it will create, the delays it will deliver, the costs it will impose, because Alaska is the only State that has permafrost and we still have no idea whether or under what circumstances these areas will be regulated and, further, because this rule could dampen our efforts to begin new resource-extraction projects, which we depend upon for a majority of our State's budget.

    Finally, I oppose the WOTUS rule because it is yet another regulatory burden for Alaskans, for people all over the country. This is on top of all of the other regulations we have seen in our State and from the Interior Department's anti-energy decisions to EPA's quest for project veto authority before, during, and after the permitting process. It gets to a point where it is just too much. It is just too much, and this is where we must come together and stand to stop it.

    I thank my colleagues for their leadership and look forward to the opportunity to support the disapproval resolution that is pending before the body.

    With that, I yield the floor.

    The PRESIDING OFFICER (Mr. Sullivan). The Senator from Michigan.

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