U.S. Supreme Court limits EPA jurisdiction to regulate wetlands
May 31, 2023
A new ruling by the U.S. Supreme Court likely exempts large areas of wetlands in Alaska from federal regulation under the Clean Water Act, a decision that has alarmed environmentalists and could speed road construction, mining and other development projects here.
The decision, in a case known as Sackett v. EPA, means that the Environmental Protection Agency can only regulate navigable bodies of water and only those wetlands that have a “continuous surface connection” to navigable lakes, rivers, streams and ponds.
Before the ruling, the EPA interpreted the Clean Water Act to cover a much broader area, and the change has big implications for Alaska, which contains 174 million acres of wetlands, more than every other state in the United States — combined.
Nothing prevents states from regulating wetlands more stringently than the federal government. In Alaska’s case, the state argued in favor of a more limited role for the EPA, saying in a friend-of-the-court brief that Alaska is harmed by a broad interpretation that forces developers to undergo an unnecessary federal process in order to obtain permits to build through wetlands.
The new guidelines adopted last Thursday by the court are in line with what the state had suggested.
“In short, it appropriately reduces the reach of (the waters of the United States) in Alaska and limits the federal government’s control over our communities, lands, and the development and protection of our resources,” said Randy Bates, Division of Water director at the Alaska Department of Environmental Conservation.
Janette Brimmer, a senior attorney in the Seattle office of the environmental law firm Earthjustice, was among those who had been arguing against the state’s interpretation. She said that it’s hard to know how exactly the EPA and the Army Corps of Engineers will interpret the Supreme Court’s guidance, but that “industries, particularly the mining industry, big ag, the development industry … they’ve all been wanting this result for a very long time.”
“Presumably the building industry, the mining industry and agriculture … they’re all going to be very interested in this because it is what they sought,” she said.
In many wetlands, such as the massive river deltas of the Yukon and Kuskokwim in Southwest Alaska, the rivers’ main channels are fringed by “isolated wetlands,” small ponds and lakes that aren’t connected to the mainstream above ground. Even though they may be connected below ground, they are likely now exempt from EPA regulation.
“It’s as though the science of hydrology never happened,” said Brimmer, denouncing the decision.
Dyani Chapman, director of the Alaska Environment Research and Policy Center, said wetlands matter because they act as “something like the kidneys of our ecosystem.” Disturbing them can mean dirty drinking water or harm to fish that live in nearby waters.
She noted that the court’s decision effectively places more of a burden on state environmental regulators. With less role for the EPA, the state — by default — assumes greater responsibility.
But in Alaska, “our budget is tight,” she said, and there are regular struggles to fund essential things in the state.
“I worry about losing some of those federal resources to be able to make sure we’re thoughtful about our drinking water and our fish and our habitat,” she said.
The Alaska Beacon is an independent, donor-funded news organization. Alaskabeacon.com.