State files opposition to US water rule

The state of Alaska has submitted comments opposing a proposed Environmental Protection Agency rule defining “the Waters of the United States” under the Clean Water Act. The state, saying that the rule would unlawfully place most of Alaska’s waters and lands under the control of the EPA and the Army Corps of Engineers, has asked the two agencies to withdraw the rule.

“The proposed rule would significantly expand EPA’s reach onto state, local, and private lands under Clean Water Act regulation,” said Gov. Sean Parnell in a Nov. 15 statement. “This proposed rule not only federalizes land use decisions for state, local and private landowners, it places them under threat of fines and penalties up to $72,500 a day and jail time.”

EPA introduced the proposed rule in the spring in an attempt to clarify the murky and thorny question of what water bodies are subject to federal jurisdiction, and hence to federal permitting. And at its core, the concept of U.S. waters is straightforward: They are waters that could be used for interstate or foreign commerce, including traditional navigable waters and the territorial seas around the country. But the water-flow linkages between navigable waters and the tributaries and wetlands that feed them lead to the possibility of pollution from some inland water body reaching a navigable water channel. As a consequence EPA wants to spread the federal jurisdiction net far and wide over any water that might connect in some way with a navigable waterway.

The proposed rule, while praised by environmental organizations as providing needed environmental protection, has met with vociferous opposition from those who see the rule as an example of federal permitting overreach.

Parnell said that a bill that would stop the EPA’s action is stalled in Congress, passed by the House of Representatives but not picked up by the Senate.

The public comment period for the proposed rule ended on Nov. 14 after twice being extended.

- Alan Bailey