Sen. Sullivan, Alaska Chamber of Commerce, and AK trade groups blast Biden over new water rule

U.S. Sen. Dan Sullivan, a member of the Senate Environment and Public Works Committee, today released the following statement criticizing the Biden administration’s recently-announced Waters of the United States Rule under the Clean Water Act.

“The Biden administration today announced its ‘final’ Waters of the United States (WOTUS) Rule, resuscitating the burdensome and overreaching Obama-era ‘final’ interpretation of the Clean Water Act and giving the EPA vast authority over lands across the country, particularly in Alaska, which has more wetlands than any other state in the country by far,” Sullivan said. “Remarkably, the Biden administration refused to pause issuing this WOTUS Rule just a few months until the Supreme Court rules in a case (Sackett vs. EPA II) that will determine the scope of the agency’s authority under the Clean Water Act. As a result, millions of hard-working Americans and Alaskans are left in regulatory limbo.”

“Under this rule, land owners face the potential for thousands of dollars in litigation and months of bureaucratic back-and-forth just to fill a ditch or build a structure on their own property. This rule abandons the balanced, bipartisan and statutorily-based implementation of the Clean Water Act that we had achieved working with the Trump administration, through multiple court victories, and through multiple field hearings I chaired as a member of the Environment and Public Works Committee—including in Alaska.

“The truth is, all Americans want clean water, and we have some of the country’s cleanest water right here in Alaska. But the federal government should not take authority from states and run rough shod over the law, good-paying jobs, and our economy—which is on the verge of a recession—to achieve that goal. I will do everything I can to fight this illegal federal power grab, and I look forward to the Supreme Court once again reining in this out-of-control federal agency.”

Trade groups in Alaska also voiced their criticism of the Biden Administration’s return to draconian water rules.

The Alaska Chamber, the Associated General Contractors of Alaska, the Alaska Oil and Gas Association, the Alaska Miners Association, the Alaska Support Industry Alliance, the Council of Alaska Producers, and the Resource Development Council for Alaska expressed frustration with the newest WOTUS Rule.

It’s the third change in 10 years to the definition of WOTUS, even as a landmark decision from the U.S. Supreme Court is expected within weeks, which could require another significant revision and further regulatory changes, the groups noted. Friday’s announcement contains literally thousands of pages of documents, which Alaskans are working to analyze and understand, the trade groups wrote.

“Every Alaskan demands and deserves clean water, whether it’s in the rivers they fish from, coming out of their faucet at home, or being used in development projects,” said Kati Capozzi, Alaska Chamber president and CEO. “Unfortunately, today’s one size fits all ruling only adds more regulatory hurdles and uncertainty to the permitting process, while increasing its reach to impact even the smallest of projects. This will chill the investment climate in Alaska at a time when we simply can’t afford it. We urge the agencies to pause before taking any additional steps that would further complicate resource, infrastructure, and community permitting decisions.”

“The precise definition of WOTUS—which dictates the scope of the federal control and CWA permitting responsibility as well as enforcement jurisdiction—is fundamentally important to the construction industry,” said Alicia Amberg, executive director, Associated General Contractors of Alaska.  “AGC members perform many construction activities on land and water that require a jurisdictional determination from the US Army Corps of Engineering before proceeding. Construction work that involves the discharge of dredged material or the placement of fill material in a WOTUS cannot legally start without authorization from the federal government, which takes the form of a Clean Water Act Section 404 permit (and may require additional permissions and reporting duties under other CWA programs). So changes to CWA regulations, case law, and resultant guidance throughout the years have impacted our members’ ability to secure financing and approval to construct new projects or maintain existing infrastructure and facilities across Alaska.”

“The definition of ‘waters of the United States’ is especially important to Alaskans,” said Deantha Skibinski, executive director, Alaska Miners Association.  “175 million acres of land in Alaska are classified wetlands; this constitutes 43% of the land base. Alaska’s coastline and tidally influenced waters exceed that of the rest of the nation combined. In addition, Alaska is the only state with permafrost. Therefore, any rule addressing wetland and coastal environments will very likely have a greater effect on Alaska than anywhere else in the nation.  We urged the EPA and Corps to evaluate the impacts from the proposed changes differently for Alaska, and not apply a broad nationwide rule to a state with such a unique water landscape.  We are disappointed this did not happen.”

“With today’s new, complicated definition of WOTUS, the already heavily regulated oil and gas industry in Alaska will see more complex regulation with long permitting timelines when what the industry and Alaskans need is regulatory consistency and opportunities to move projects forward,” said Kara Moriarty, president and CEO of the Alaska Oil and Gas Association.

“RDC is disappointed to see this massive final rule released on the last business day of the year,” said Leila Kimbrell, Resource Development Council for Alaska’s executive director. “While we are still in the process of reviewing the hundreds of pages of the new final rule, we have significant concerns over our initial assessment that this rule unnecessarily expands federal jurisdiction over state waters and brings further uncertainty to federal permitting requirements.  The definition of WOTUS is of utmost importance to RDC and its membership because Alaska is uniquely vulnerable when it comes to EPA regulation and federal overreach.  This new rule will result in disproportionate impacts to Alaska and RDC’s members, from oil and gas, to maritime, fishing, tourism, timber, as well as Alaska Native corporations, and rural communities.  While we continue to review the final document released today, RDC is committed to working with our federal and state partners to ensure a workable solution for Alaska’s unique needs.” 

EPA prepares to undo Trump-era part of Clean Water Act, add back road ditches to federal wetland oversight