EPA pushes ahead on new wetlands rules; Alaska wants exemptions

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EPA pushes ahead on new wetlands rules; Alaska wants exemptions


Elwood Brehmer

Alaska Journal of Commerce

Post date: 

Thu, 03/10/2022 – 10:37am

  • The Kogoluktuk River flows past the Arctic mine prospect on July 24, 2021, about 20 miles north of Kobuk. The owners of the Arctic project have indicated they plan to apply for the mine’s Clean Water Act Section 404 wetlands permit this year. (Loren Holmes / ADN)

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, develop

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