EPA pushes ahead on new wetlands rules; Alaska wants exemptions
In what is quickly becoming a tradition of sorts for new presidential administrations, one of the country’s most arcane but important environmental rules is getting overhauled once more.
Leaders of the U.S. Army Corps of Engineers and the Environmental Protection Agency were in Alaska in late February to, among other things, discuss their plans for the “waters of the U.S.” rule, more commonly known as WOTUS, with stakeholders in Alaska, the state with more wetlands than the entirety of the Lower 48.
The protracted debate over WOTUS largely centers on which of those wetlands are subject to federal regulation under Section 404 of the Clean Water Act, which, in turn, can trigger a comprehensive and often costly National Environmental Policy Act review of a proposed development.
Being more than 40% wetlands, virtually every large project in Alaska requires a Clean Water Act Section 404 “wetlands fill” permit.
Alaska Republican Sen. Lisa Murkowski said in a lengthy statement from her office following a previously unpublicized Feb. 25 meeting with Assistant EPA Administrator for Water Radhika Fox and Acting Assistant Army Civil Works Secretary Jaime Pinkham and Alaska officials that the roundtable allowed the federal officials to hear of the challenges caused by ambiguity surrounding the applicability of WOTUS in recent years.
The Army Corps of Engineers administers the Clean Water Act wetlands permitting program for the EPA, which has ultimate authority over how the rules are implemented.
The two-step approach to revising the the rule proposed by the EPA in November is “the most expansive yet” in terms of the wetlands that would fall under its jurisdiction, according to Murkowski, who is among those who believe the administration should wait at least until the U.S. Supreme Court rules on a potential precedent-setting WOTUS case.
Technical supporting documents to the proposed rule in several instances reference intermittently flowing streams in Alaska used by juvenile salmon and other small fish as justification for parts of the regulatory changes.
“While I have called on the agencies to stop their work on WOTUS until after the Supreme Court rules on the Sackett case, they have not agreed to do so, and I did not want to lose the opportunity to have leadership hear directly from Alaskans about how their latest proposal would impact us. EPA and the Army Corps bear responsibility for making sure that WOTUS works for Alaska, our economy and the people who live here,” Murkowski said.
“I thank Ms. Fox and Mr. Pinkham for traveling to Alaska for a very candid conversation and hope what they have heard and seen while here will be reflecting in their agencies’ actions going forward.”
The Supreme Court announced in January it would again hear the Sackett v. EPA case in which an Idaho couple was prohibited from building on their property in the mid-2000s due to Clean Water Act wetlands permitting requirements. The court ruled in the Sackett’s favor in 2012 and remanded the case back to a lower court, where the legal battle continued.
Traditionally conservative justices currently hold a 6-3 majority in the high court.
EPA officials said when they proposed the new rule that they wanted to not only repeal the Trump administration’s version of WOTUS — dubbed the Navigable Waters Protection Rule and finalized in 2020 — but also go back to pre-2015 standards for identifying jurisdictional wetlands, with updated language to comply with recent federal rulings on the issue.
U.S. District Court rulings vacating the Navigable Waters Protection Rule in New Mexico and Arizona emphasize the need for certainty in the definition of WOTUS, according to administration officials.
The plan is for EPA to then hold a series of stakeholder roundtables across the country, as well as public comment periods, to inform a new form of WOTUS that EPA Administrator Michael Regan has said will be “durable” while protecting the country’s waters.
The back-and-forth over WOTUS started in 2015 when the EPA under former President Barack Obama finalized some of the first significant changes to Clean Water Act wetlands regulations in decades.
The Obama administration’s WOTUS, which partly relied on a series of calculations to determine of a wetland area was close enough to a primary water body to be under Clean Water Act jurisdiction, drew the ire of Republicans, development advocates and some conservationists who were unhappy with the method of determining jurisdiction limits.
Numerous states sued the EPA over the rule and in August 2015 a U.S. District Court of North Dakota judge blocked implementation of Obama’s WOTUS in 22 Midwest and Western states, including Alaska. The ruling led to an appeals court issuing a nationwide stay of the rule that was lifted in 2018.
Also in 2018, then-EPA Administrator Scott Pruitt signed a memorandum of agreement with Army Corps leadership giving Army Corps Alaska District officials more leeway in approving wetlands mitigation plans for large projects in Alaska, where the traditional Lower 48 methods of preserving nearby endangered wetlands or improving areas damaged by development are difficult or expensive to employ, particularly in rural parts of the state.
Some observers saw the agreement as an assist to the developers of the Pebble mine project, which submitted its Section 404 permit application earlier that year.
However, Alaska District officials denied Pebble’s permit application in November 2020 after deeming the wetlands mitigation plan for the project insufficient to offset the loss of wetlands from the large-scale mine.
Alaska District regulators continue to operate under the 2018 agreement, according to an Army Corps spokesman.
Brian Litmans, legal director for the Anchorage-based environmental law firm Trustees for Alaska, said he believes the administration is taking a sensible approach by stepping back before taking input from all sides for the final rule. Until then, it’s unclear exactly what the new wetlands parameters will be.
Eric Fjelstad, a natural resources attorney for the Anchorage office of the Seattle-based business firm Perkins Coie, said in Alaska the new rule would likely impact homeowners and small commercial projects the most, given large-scale developments in the state need wetlands permits nearly without exception.
However, Fjelstad, like Murkowski and others, said he thinks the administration is getting ahead of itself given the Sackett case is still out there. That’s because a Supreme Court decision ending the long-running court battle could significantly alter the parameters under which the administration could draft new regulations defining jurisdictional wetlands, according to Fjelstad and others.
“Honestly, until the Sackett ruling this all feels academic to me,” he said of the WOTUS rule making process.
State officials stressed in 21 pages of comments to the EPA that the Biden administration’s initial WOTUS proposal is more expansive than any prior rule, is “legally unjustifiable and precludes any possibility of a partnership between states and the federal government.”
An initial WOTUS comment period ended Feb. 7.
As a result, Gov. Mike Dunleavy requested exemptions for permafrost wetlands, forested wetlands, wetland mosaics and other undefined wetland areas in the state in a letter accompanying the state’s comments.
State officials insist it is difficult to identify hydrologic connections to wetlands formed on top of permafrost are, particularly those in flat areas such as the North Slope, partly because of the freeze-thaw cycle.
Forested wetlands and wetland mosaics are sometimes expansive areas fed mostly be precipitation that are typically isolated from larger waters but could be regulated under the proposed rule, according to the state’s comments.
Dunleavy cited Supreme Court opinions in claiming that the average wetlands permit applicant spends 788 days and more than $271,000 to obtain a permit, costs that do not include expenses for mitigation work.
“Alaska needs regulations tailored to the diversity and abundance of its waters, not a one-size-fits-all rule imposing excessive federal requirements,” Dunleavy wrote.
The governor included just more than $4.9 million in his 2023 fiscal year state budget proposal for the Department of Environmental Conservation to start work toward taking over Clean Water Act Section 404 permitting for development in wetlands and other water bodies with federal jurisdiction.
State administration officials say the state could run the program more efficiently than the Army Corps, which typically handles between 600 and 800 wetlands permit applications in Alaska per year.
Elwood Brehmer can be reached at [email protected].