Ocean Zone News Blog

This spring, the Environmental Protection Agency and Army Corps of Engineers released a draft guidance document that will be used to decide which waters and wetlands will be protected by the Clean Water Act.

If allowed to stand, these guidelines could place an additional 40 percent of Alaska’s wetlands and non-navigable waters under federal jurisdiction.

The proposed guidance is ambiguous, capricious and unlawful. It ignored using a cooperative process with the 50 states, as mandated by the Clean Water Act. And it skirted the formal rule making required by the Administrative Procedures Act.

These draft guidelines hit Alaskans especially hard. Alaska possesses the largest geographic footprint of any state, more wetlands than all other states combined, and more coastline than the entire contiguous 48 states. Wetlands and deepwater habitat occupy more than 50 percent of the state’s surface area.

The average Alaskan hoping to build a home could face financial disaster, because unless you apply for, and are denied, a wetlands permit, you cannot be certain that your home construction project will avoid an EPA stop work order and tens of thousands of dollars in fines. Imagine trying to secure financing, in today’s difficult home finance market, with increased, unnecessary uncertainty introduced.

The severity of the impact of this federal government action on Alaskans is illustrated by a recent case in Idaho. The Sackett family began building a modest home, only to have the EPA show up on the property, shut down the construction, force the family to replant the disturbed land with native vegetation, and then wait for three years before they could apply for a permit. 

In violation of their rights, the Sacketts were denied due process. Because of the profound impact this case has on Alaskans, the state of Alaska will file a brief in support of the family with the U.S. Supreme Court, which has agreed to hear the case.

The guidelines abandon any reasonable interpretation of what waters and wetlands are subject to federal jurisdiction under the Clean Water Act. Under the guidelines, federal agencies can assert jurisdiction even though there is no continuous flow of surface water between a wetland and navigable water. Millions of acres in our northernmost region, frozen solid for three out of four seasons, could be designated as wetlands.

The federal agencies argue that their new guidelines are not rules. But in practice, the guidelines look like a duck and walk like a duck: The relevant federal agencies will rely on them as though they are rules — and this will directly impact the lives of Alaskans.

This issue represents another part of a discouraging and re-occurring pattern: The White House has tried to lock up lands by creating a new wild lands designation, has delayed permitting and posted moratoriums on domestic oil exploration, and it is undertaking preparatory work for comprehensive ocean zoning.

EPA’s 2010 budget funding was the highest in agency history. Its “favored-agency status” with the White House has allowed it to attempt to enact ozone standards technically and financially impossible for American cities to attain, vilify oil as an energy source, and now attempt a back-door wetland grab using “guidance” language.

Along with more than 41 U.S. senators, the majority of the members of the House, and other governors, I have expressed concern about the recent unrelenting federal attack on states’ rights.

My administration sent a formal response to the EPA and Corps outlining the potential legal consequences of their proposed guidance, and the absurdity of applying these “ghost regulations” in Alaska, where the resulting uncertainty would dissuade human endeavor.

Enough is enough. Alaska has laws to protect its waters. The EPA and Corps of Engineers have no authority to expand their jurisdictions and the state of Alaska will continue to appropriately assert its rights in this arena.