Usibelli Coal official raises issues with EPA’s ‘waters of the U.S.’ proposal

Lorali Simon, the Vice President of External Affairs at Usibelli Coal Mine Inc., Alaska’s only coal producer, was among the Alaska officials testifying at an April 6 field hearing in Alaska of the U.S. Senate Environment and Public Works Committee on a federal initiative to expand the regulatory definition of “waters of the United States.”

U.S. Senator Dan Sullivan, R-Alaska, chairman of the Fish, Water, and Wildlife subcommittee, chaired this field hearing in Anchorage, Alaska.

Simon noted that Usibelli supplies 100% of the in-state demand to six coal-fired power plants, as well as exports close to one million tons of coal to customers in Chile, South Korea and Japan. Usibelli currently employs 115 people. The average wage paid to Usibelli employees is more than double the average wage in Alaska.

“Usibelli is deeply concerned about a proposed rule by the Environmental Protection Agency which would significantly increase the jurisdictional waters of the United States under the Clean Water Act,” Simon wrote in prepared testimony. “Should this proposed rule be finalized, it will 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 flood plains and riparian areas are jurisdictional waters; and that there is insufficient information to generalize jurisdiction of waters not in flood plains or riparian areas.

“An illustration of the extent of the federal jurisdictional expansion of state lands was conducted by the Waters Advocacy Coalition for a section of Kentucky. A map of Alaska would look worse. Alaska is unique in that 61 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 and regulation. Alaska has unique features such as 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 on-site stormwater and surface water management features will be deemed jurisdictional, and the complications surrounding distinguishing ephemeral tributaries from nonjurisdictional 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 encompassing previously non-jurisdictional waters and treatment systems on mine sites across the country. As you know, the EPA and the U.S. Army Corps of Engineers 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 three 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.”

Witnesses say this proposal would stifle resource development

Sen. Sullivan said in an April 6 statement: “Alaska is no stranger to overreaching federal agencies. However, it should be stressed that the proposed Waters of the U.S. rule may be the most massive expansion of federal jurisdiction we have seen to date.”

In his opening statement, Sullivan detailed what could happen if the WOTUS rule is finalized. “If the rule is finalized, it would mean that many Alaskans might be subject to having to get a permit from the EPA in order to dig ditches in their backyards. It could mean that a farmer might have to get a permit to plow new land. It could mean that harbors, roads, and certainly natural resource development, could fall under a more rigorous federal permitting process, effectively granting the EPA the power to dictate energy, and infrastructure policy in most all of Alaska.”

He added: “In Washington D.C., we have held hearings with the EPA Administrator, Assistant Secretary of the Army, State government representatives, and stakeholders. This hearing is a continuation of those efforts. It will also give voice to a cross section of Alaskans on this rule and its possible impacts.” 

Excerpts that Sullivan cited from hearing testimony include:

  • Michelle Hale, Director of the Division of Water in the Alaska Department of Environmental Conservation – “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 ‘jurisdictional’ and that will require permits for development, further driving up already high costs of permitting and compensatory mitigation.”
  • Tara M. Sweeney, Executive Vice President of External Affairs, Arctic Slope Regional Corp. – “ASRC believes that if the Proposed Rule regarding ‘Definition of ‘Waters of the United States’ Under the Clean Water Act’ is adopted, not only will it hamper ASRC’s use of its lands for the benefit of Alaska Natives, but it will also constrain the development of natural resources on Alaska’s North Slope.”
  • Rod Hanson, Vice President, System Integrity, Engineering & Projects, Alyeska Pipeline Service Co. – “Under our reading of the proposal, it would significantly expand Clean Water Act jurisdiction to cover many more waterbodies and features than currently are covered under the law. As a result, we believe this proposed rule will subject many more TAPS activities and operations to regulation under the Clean Water Act than currently are covered by the statute and regulation.”
  • Rick Rogers, Executive Director, Resource Development Council for Alaska – “(R)ather than reducing confusion, the proposed rule as written takes the most aggressive and broad interpretation of federal jurisdiction, rendering adjacent waters, floodplains, ephemeral streams, tributaries, and ditches with limited exceptions as jurisdictional.”
About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.