Mining News: Alaska joins legal uprising over WOTUS

At least 24 states ask courts to strike down EPA’s Clean Water Rule; Walker condemns reg as ‘incredibly expansive’ and ‘unclear’

Shane Lasley

Mining News

Alaska has joined 11 other states in challenging the “waters of the United States” rule recently adopted by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers in one of a growing number of lawsuits seeking to overturn the onerous regulation.

The 299-page Clean Water Rule unveiled by the Obama Administration in May attempts to define which waters are covered by the Clean Water Act, resulting in the need for a federal permit.

However, instead of clarifying federal law, Alaska Gov. Bill Walker said the WOTUS rule creates a murky future for states.

“This final rule will likely have detrimental impacts on development in Alaska,” Walker said upon the June 29 announcement that Alaska has joined the suit against EPA and the Corps. “In addition to being incredibly expansive, the rule is also unclear. It will only lead to more expensive permitting and legal fights over ‘what is in’ and ‘what is out’ under the federal law.”

Muddled process

The states are not only disgruntled about the contents of the rule, but how EPA and the Corps went about creating the problematic guidelines.

The filers of the complaint point to the Tenth Amendment, which reserves the authority to regulate intrastate land use and water resources to states.

Despite this sovereign authority, the states claim EPA and the Corps failed to meaningfully consult with them in the development of the Clean Water Rule.

“This rule came about under a muddled process, which failed to consider information specific to Alaska,” said Walker. “By overlooking our state’s unique circumstances, the rulemaking fails to disclose the regulatory and economic impacts it will have on Alaska, which is required by law.”

Unique circumstances

“Alaska has over 174 million acres of wetlands, and more coastline and wetlands than all of the Lower 48 combined,” said Gov. Walker. “While not all of these waters are covered by the Clean Water Act, we have long protected these important resources under statutory and regulatory authorities.”

The new rule substantially expands what falls under federal jurisdiction by encompassing added tributaries and neighboring wetlands upstream of waters already covered by federal law.

Tributaries include anything that has the features of a stream – a bed, bank, and ordinary high-water mark – even if it does not flow year-round. Nearby waters include wetlands and other watery features within 1,500 feet of navigable waters and sometimes such features within 4,000 feet of high-tide or high water mark also are covered under the rule.

Even if a small portion of one of these neighboring wet features fall within the guidelines, the entire body falls under the new WOTUS rule, regardless of its connection to downstream waters.

For Alaska – with its plentiful streams, river, rivulets, coasts and wetlands – this means that vast swaths of lands would fall under the Clean Water Act and the added federal regulatory requirements that come with it.

“This new rule just creates confusion and unnecessary bureaucracy for our state,” said Walker.

Many of the large western states that joined the suit have similar but different unique circumstances – such as broad floodplains and prairie potholes, which are dry most of the time but would still fall under the expanded jurisdiction – that make the Clean Water Rule troublesome.

The case is to be heard in the North Dakota Federal District Court.

Texas, Mississippi and Louisiana have filed a similar suit in a federal court in Houston that challenges the constitutionality of the Clean Water Rule Another nine states (Georgia, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah and Wisconsin) have filed a third lawsuit against EPA and Corps over the Clean Water Rule.