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The tricky question of what water is whose
To someone enjoying a summer fishing trip to some remote spot in the Alaska wilderness, it may seem obvious that the lake or creek containing those elusive salmon or trout is part of Alaska. But the question of whether federal or state authorities should have jurisdiction over the permitting of activities impacting such quintessentially Alaska water can prove contentious.
Environmental regulation of surface water in the United States is mandated by the federal Clean Water Act, a statute that applies to what are termed “waters of the United States.” But trying to define exactly what is meant by a “water of the United States” is a fuzzy, imprecise affair, giving federal regulators scope for conflict with state officials over limits of federal authority and leading some to accuse the Environmental Protection Agency, the federal agency administering the statute, of using the Clean Water Act as an unwarranted opportunity to meddle in territory far beyond areas of real federal significance.
The question of what are “U.S. waters” impacts the scope of application of federal permitting schemes such as 404 permitting, the permitting required to put dredge and fill material into those U.S. waters.
Navigable waters Federal jurisdiction clearly applies to waters used by shipping for interstate commerce. And “waters of the United States” generally include all navigable waters. But just where do these navigable waters end, and hence where does federal jurisdiction stop?
In February, during the Seminar Group’s annual Permitting Strategies in Alaska seminar, Ruth Hamilton Heese, senior assistant attorney general in the Alaska Department of Law, commented on the importance to Alaska of this confusing issue. Alaska has thousands of streams, countless remote water bodies and more than 174 million acres of wetlands, she said.
A dispute over federal water jurisdiction reached the U.S. Supreme Court in 2006. But rather than resolving the problem, the justices failed to come to a majority decision on an acceptable definition of U.S. waters, thus continuing the water-borne confusion.
The court came up with two tests for U.S. waters: whether a wetland or non-navigable water body has a continuous surface water connection to a navigable water body and whether there is a “significant nexus” between the wetland and the navigable water, Heese said.
And, although some justices said that jurisdictional questions of this type should be determined through formal agency rulemaking, the EPA and the U.S. Army Corps of Engineers, the agency administering much wetlands permitting, have only proposed guidance rather than rules for how U.S. waters should be recognized. And that guidance, which would be non-binding and would likely greatly expand federal jurisdiction, has not been issued, while the Environmental Protection Agency has prevaricated about making a formal rule, Heese said.
—Alan Bailey
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