Alaska enters WOTUS court battle, again
Joins 20 other states in a fight to rein in federal overreach North of 60 Mining News – October 29, 2021
Last updated 11/18/2021 at 4pm
Alaska once again finds itself joining other states in asking the U.S. Supreme Court to rein in a broadened definition of "waters of the United States," or WOTUS, a federal environmental rule that could significantly impact the management of private and public property across the Last Frontier.
WOTUS has been a concern for Alaska and many other states since the Obama administration set out to broaden the definition of U.S. waters in 2014, a move that would significantly expand the geographic scope of federal jurisdiction under the Clean Water Act.
This transfer of authority away from states is especially profound for Alaska, which already hosts 175 million acres of wetlands, or roughly 43% of the state's surface area.
With a broader definition of U.S. waters, much larger swaths of Alaska would fall under federal control and the burdensome regulatory requirements that come with that. Mining, road construction, pipeline and utility installations, commercial, and even residential construction would be affected by an expanded WOTUS definition.
To fight what he considers federal overreach, Alaska Gov. Mike Dunleavy Oct. 25 announced that Attorney General Treg Taylor has joined in an amicus brief calling on the high court to clarify WOTUS.
"As the federal government moves to increase control over Alaskans by expansively defining WOTUS, it's more important than ever to fight to preserve our autonomy," said Dunleavy.
Redefining WOTUS, again
Under an Obama-era rule finalized in 2015, WOTUS would have been expanded to include anything that remotely resembled a stream – a bed, bank, and ordinary high-water mark – even arroyos and other gullies where water only flows during infrequent heavy rainfall events. Nearby waters, including wetlands and other watery features within 1,500 feet of navigable waters and sometimes such features within 4,000 feet of high tide or high-water mark of a stream, also would have been covered under the rule.
Even if a small portion of one of these neighboring wet features falls within the guidelines, the entire area is subject to "significant nexus" analysis under the new WOTUS rule, which could extend Clean Water Act authority over the entire area, even if it is not connected to downstream waters.
For Alaska – with by far America's largest coastline and wetlands inventory, along with plentiful rivers, streams, and rivulets – this redefining of U.S. waters would have resulted in vast swaths of state-regulated lands falling under the federal Clean Water Act and the regulatory agencies that administer it.
This 2015 definition, however, was never fully implemented due to federal courts blocking it until a lawsuit brought by nearly 90 parties, including 32 states, was resolved.
Almost immediately after taking office, former President Trump signed an order to undo his predecessor's WOTUS rule.
Upon signing the executive order to roll back WOTUS, Trump called the rule a "massive power grab" by the EPA.
Trump's order culminated in the Navigable Waters Protection Rule, which included a more traditional definition of waters of the U.S. – seas, lakes, rivers, ponds, and wetlands. The 2020 rule expressly excluded features that only contain water in direct response to rainfall, groundwater, many ditches, and prior converted cropland.
Now, the Biden administration has instructed the U.S. Environmental Agency and Army Corps of Engineers to again broaden the definition of WOTUS "to better protect our nation's vital water resources."
"We are committed to establishing a durable definition of 'waters of the United States' based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations, as well as input from a wide array of stakeholders, so we can better protect our nation's waters, foster economic growth, and support thriving communities," said EPA Administrator Michael Regan.
Upon review of the Navigable Waters Protection Rule, the EPA and Army identified 333 projects that would have previously been subjected to federal Clean Water Act Section 404 permitting but were reverted to state permitting under the Trump rule.
As a result of these findings, EPA said the U.S. Department of Justice has filed a motion requesting the court to remand the Navigable Waters Protection Rule.
Dunleavy sees the current administration's attempts to undo this rule and reinstate WOTUS definitions similar to those established while Vice President Biden was in office as a move that would put vast swaths of Alaska off-limits.
"Make no mistake, the ability of Alaskans to harvest timber, develop oil and gas, mine the critical minerals needed for national security, and the ability to farm and hunt are in danger with this announcement," the Alaska governor wrote in June. "It would be less insulting to the state of Alaska if the Biden EPA came out transparently with its intent to turn our land into a national park under the management of rangers."
In August, the U.S. District Court for Arizona issued an order vacating and remanding the Trump-era Navigable Waters Protection Rule.
With this order, EPA and Army Corps have reverted to the Obama-era definition of U.S. water until they finish crafting a more durable WOTUS definition.
Back to the Supreme Court
Alaska has joined 20 other states in asking U.S. Supreme Court justices to reject the Arizona district court's ruling in the Sackett v. EPA case that once again expands EPA authority to any waters that have a significant nexus to navigable waters currently regulated under the Clean Water Act.
"The Supreme Court can provide clarity to thousands of Alaskans about whether the federal government can regulate drainage ditches or marshy areas on their personal property," said Alaska Attorney General Taylor. "Without court action, the federal government could easily extend its reach and give EPA authority over lands never intended for federal oversight under the Clean Water Act."
This challenge to WOTUS is being led by West Virginia and includes Alabama, Alaska, Arizona, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming.
"Alaska holds nearly half our nation's water and over 60% of our nation's wetlands," said Gov. Dunleavy. "By joining the West Virginia amicus brief that asks to establish a more restrictive definition, we are protecting Alaskans' ability to own and use their private property, farm, hunt, mine, harvest timber, and develop oil and gas."