Governor Sean Parnell is fighting the federal government’s recent attempt at regulatory expansion and control under the Clean Water Act (CWA). Parnell detailed Alaska’s concerns with the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) expanding their control over private, state, and municipal lands under newly proposed guidelines identifying waters protected by the CWA.
Obtaining wetlands permits from federal agencies is often an expensive and slow process. Alaska already has more wetlands acreage than all 49 other states combined and more coastline than the entire contiguous 48 states.
“The agencies have candidly conceded that this process will “significantly increase” the waters and lands which will be deemed under federal jurisdiction and will, by the agencies’ own estimation, cost somewhere between $87 to $171 million,” Parnell said. “The fact that EPA and the Corps are willing to rush in and further commit enormous staff and monetary resources to a legally-binding process founded on informal guidance while the nation is dealing with a fiscal crisis is astounding.”
If allowed to stand, these guidelines could place an additional 40 percent of Alaska’s wetlands and non-navigable waters under federal jurisdiction.
The state has offered to work with the agencies on developing regulations that protect the nation’s waters, while preserving a primary role for states and citizens in meeting state water and resource management objectives.
Under the guidelines, federal agencies can assert jurisdiction even though there is no continuous flow of surface water.
In comments to the EPA and Corps, RDC urged the agencies to not publish the proposed guidance. RDC noted the proposed guidance would expand federal jurisdiction under the CWA to virtually all waters of the United States.
RDC warned that the joint guidance will affect wetlands, as well as the National Pollutant Discharge Elimination System (NPDES) permitting program, EPA’s oil spill program, and state water quality certification processes. The guidance will have an impact on numerous industries, at a time when the nation is struggling with a weak economy, and chronically high unemployment.
The expanded definition of “waters of the U.S.” in the proposed guidance would impose additional burdens on American manufacturing and the general economy, RDC warned. “Here in Alaska, those additional burdens would further hamper responsible development of the state’s natural resources, including oil and gas and mining,” RDC said. “Moreover, community infrastructure projects could be impacted, given most of Alaska’s non-mountainous lands are or would be considered wetlands.” Both RDC and the state believe the guidance exceeds congressional intent.
Lower 48 business and industry groups have warned that expanding EPA and Corps jurisdiction to all waters, whether intrastate or interstate, will create significant problems in permitting, increased costs for compliance, new land use restrictions, and yet more uncertainty for industries and communities. They argue that the guidance is also vague as to where the EPA’s and Corps’ jurisdiction ends.
While the guidance applies to wetlands, it is unclear as to how the EPA and Corps will address other bodies of water such as temporary run-offs and snowpack.
Although the agencies claim the guidance is legally nonbinding, it will potentially give them jurisdiction over most U.S. waters, private property, and federal lands. Given so much of Alaska is under federal ownership, the 49th state stands to be disproportionately impacted.
The new guidance appears to be a step in the direction of ultimately overturning the Rapanos and SWANCC Supreme Court decisions of 2006 and 2001 that limited wetlands regulation jurisdiction of the EPA and Corps to “navigable waters” as passed by Congress in the 1972 CWA. The draft guidance could potentially expand federal oversight to nearly all U.S. waters by giving federal agency field staff a plethora of approaches to make jurisdictional determinations.
“Considering the many important issues addressed by the proposal and the economic interests at stake, RDC urges the EPA and Corps to not publish the proposed guidance,” RDC noted in its comment letter. “Jurisdiction should not be expanded beyond congressional intent, but limited to navigable waters as intended by Congress under the CWA. Changes in the regulatory scheme of the CWA should be done consistent with the law or legislative action by Congress, not vague definitions and broad interpretations that empower EPA and Corps officials with informal and ambiguous controls over private, state, and federal lands.”
More than 41 U.S. senators, a majority of the members of the House, and many governors have expressed concern.
Return to newsletter headlines
