The Biden administration’s assertion last week that it has jurisdiction over most wetlands on Alaska’s North Slope is inflaming tensions over the scope of federal power.
More legal battles are likely because the Army Corps of Engineers is suggesting that wide regions of the country that include wetlands can remain under Clean Water Act jurisdiction even after the Supreme Court in 2023 drastically narrowed the law’s scope in Sackett v. EPA, environmental attorneys say.
The Biden administration “is walking a thin line here,” said Steven Miano, a shareholder at Hangley Aronchick Segal Pudlin & Schiller PC. “They are throwing a very large jurisdictional blanket over the entire Arctic area.”
The justices ruled that for wetlands to receive federal protections as waters of the US, or WOTUS, they must be “relatively permanent,” and have a continuous surface connection with larger waterways to such a degree that the wetlands must be “indistinguishable” from them.
The ruling effectively lifted federal protections for numerous wetlands and waterways, especially in arid states such as Colorado, where state officials say that about 90% of the state’s wetlands are no longer federally protected.
‘Staggeringly Broad Authority’
The Biden administration has argued in court filings that any “physical” connection between a wetland and a navigable water is sufficient to establish the continuous surface connection required for the wetland to fall under federal jurisdiction.
The Army Corps is applying that thinking to a Utah-sized region of Alaska’s North Slope, which is made up mostly of moist permafrost that stays frozen most of the year, Emma Pokon, commissioner of the Alaska Department of Environmental Conservation, testified at a Sept. 11 congressional hearing on WOTUS regulations.
Nearly all wetlands and other waters on Alaska’s Arctic Coastal Plain have a continuous surface connection to a larger waterway, making it “safe to assume that the vast majority of aquatic resources in this region will be considered waters of the US,” Army Corps spokesman John Budnik said in an email.
That interpretation of the justices’ ruling shows that the agency is “continuing to assert staggeringly broad authority over many types of isolated wetlands and other dry land features,” said Charles Yates, an attorney at the Pacific Legal Foundation, which represented the plaintiffs in Sackett.
“They continue to rely upon various asserted ‘connections’ that are not ‘continuous’ under any plausible understanding of that word,” he said.
Reviving ‘Significant Nexus’
The Army Corps is inflaming the legal debate over whether water actually needs to be a factor in whether wetlands have a continuous surface connection to a river or lake, said Anna Wildeman, counsel at Troutman Pepper Hamilton Sanders LLP in Washington, D.C., and a former Trump administration official in EPA’s Office of Water.
Twenty-seven states and a slate of trade groups and private landowners are challenging the Environmental Protection Agency’s and Army Corps’ regulation implementing Sackett in at least four federal lawsuits.
“The agencies are behaving badly and acting beyond the limitations established in Sackett,” Wildeman said. “State leadership in Alaska has not been shy about calling out this administration where they believe the federal government is encroaching on state authority.”
The Army Corps seems to be trying to re-establish the “significant nexus” test, which the high court tossed out in Sackett, said Larry Liebesman, a senior adviser at the environmental and water permitting firm Dawson & Associates.
Under the test, isolated waters and wetlands fell under Clean Water Act jurisdiction if they had hydrological connections that allowed pollution to affect the biology and chemistry of a larger distant navigable water body.
Justice
The Army Corps’ assertion that merely a physical connection is enough for wetlands to be WOTUS, “that’s pretty far-reaching,” and would sweep in large areas of the US, Liebesman said. “This is going to be litigated.”
No Conclusive Proof
Kevin Minoli, a partner at Alston & Bird LLP, cautioned that the Army Corps’ statement is not an official legal opinion.
“The only way to know whether the Army Corps and its Alaska District are following the Supreme Court’s decision is to review individual jurisdictional determinations,” Minoli said. “One should not take this statement as conclusive proof of regulatory overreach.”
The Army Corps’ approach to determining Clean Water Act jurisdiction in Alaska may not apply to the rest of the US because the state’s Arctic hydrology and climate are unique, Minoli said.
That unique hydrology puts the Army Corps’ approach on solid legal ground, said Dave Owen, an environmental law professor at the University of California College of the Law in San Francisco.
“Pretty much every wetland will connect to streams or rivers, and those stream and river networks will flow continuously to the ocean,” he said. “The combination of a very cold climate and poorly drained permafrost makes the North Slope the kind of landscape where those interconnections are a common feature. That means the Army Corps is following the law.”
But Owen said he suspects that Alaska officials believe that the true meaning of Sackett is that the Army Corps should regulate less, not more.
“The justices seem sympathetic to that view, but agencies are bound by holdings, not judicial sympathies,” Owen said.
Ultimately, Alaska just wants to issue developers good permits for construction on the North Slope in a timely manner, Pokon said in an interview.
“Our frustration has been the state wants to have prerogative to make decisions for our own state and our own residents,” she said.
