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How Does the U.S. Supreme Court’s Sharp Swing to the Right Affect Wetlands in Alaska?
By Hal Shepherd
The recent ruling in Sackett v. Environmental Protection Agency could have significant implications for wetlands within Alaska. The ruling is the latest in the effort by conservative presidents and the Supreme Court to dismantle the Clean Water Act (CWA), in this case, by limiting the scope of waters that are protected by the Act. Although Congress defined “navigable waters” under the Act broadly to simply mean “Waters of the United States” (WOTUS), starting in 2001, a succession of the Court’s opinions concluded that Congress’ use of the term “navigable waters,” somehow indicated an intent to restrict protections to only those waterways (including wetlands related to those waters) that have been traditionally navigable and ignored its previous finding that the term “navigable” was not that relevant to which waters were covered by the Act.
Following the early Supreme Court decisions, the Bush administration issued a series of new policies that went beyond even the Court’s narrow definition of WOTUS to remove protection for non-navigable “isolated” water bodies, intermittent and ephemeral streams, and many adjacent wetlands, and making it more difficult to determine whether a waterway is “traditionally navigable.
After the confusion created by the Supreme Court decisions, combined with the Bush Administration’s misinterpretation of the CWA, the Obama Administration attempted to clarify the definition of WOTUS by adopting the “Clean Water Rule” which sought to, among other things, affirm accepted scientific principles that the network of small and interconnected wetlands and headwater streams, even those that flow intermittently or remotely from navigable water bodies, serve a critically important purpose protecting downstream waters by capturing flow and waterborne pollutants.
The Trump Administration, however, brought back the conflicting interpretations of the CWA when, in the summer of 2019, the Environmental Protection Agency and the U.S. Army Corps of Engineers signed a final rule repealing the Obama Clean Water Rule (OCWR) that the Administration claimed “impermissibly expanded the definition of…WOTUS.” According to R.D. James, Assistant Secretary of the Army for Civil Works at the time, the repeal ended a “patchwork of regulations existed across the country” resulting from earlier and conflicting judicial interpretations of the rule.
In reality, however, the repeal was part of a systematic effort by the Trump administration to roll back the nation’s environmental laws including the CWA and resulted in the same regulatory confusion that led to broad-based calls for clarity about which of the nation’s waterways the Act protects. Combined with the Trump Administration’s proposed budget that decimated water protection programs, the repeal of the OCWR was the biggest threat to water since before adoption of the CWA.
Moreover, repeal of the Rule followed a secretive process in an attempt to exclude public comment. Before finalizing the OCRW in 2015, EPA held more than 400 meetings with stakeholders across the country and published a synthesis of more than 1200 peer-reviewed scientific publications, which showed that the small streams and wetlands the Rule safeguarded are vital to larger downstream waters. Instead of meaningful consideration or proper public engagement, however, the Trump administration rushed through the repeal of the Obama Rule in less than a year, then adopted a less protective rule referred to somewhat tongue-in-cheek as the “Navigable Waters Protection Rule.”
As a result, in August 2018, a federal judge in South Carolina revoked the EPA and Corps’ February 2018 order suspending the OCWR and ruled that the agencies did not follow the proper rulemaking protocol and had not complied with the federal law regarding public notice and comment. As a result, the OCWR became the law in most states but still remained in limbo in others due to ongoing litigation.
Stepping in to maintain the integrity of the battered WOTUS Rule once again, on December 30, 2022, the Biden Administration announced a final rule to reestablish a consistent definition of WOTUS:
... to reduce uncertainty from changing regulatory definitions, protect people’s health, and support economic opportunity. The final rule restores essential water protections that were in place prior to 2015 under the Clean Water Act for traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters.
Almost immediately after the Biden Administration adopted its version of the Rule, however, 23 states, including Alaska, went to court and obtained preliminary injunction of the new definition which stands to this day.
And then, just last week, the ultra-conservative majority in Supreme Court delt a fatal blow to the Biden WOTUS Rule and the Clean Water Act by concluding that wetlands are only protected by the Act if they have a continuous surface connection with a larger body of water that makes it “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” This ruling, therefore, likely excludes even more wetlands from federal protection than the 51 percent that would have lost protection under the Trump regulation.
In addition to opening wetlands to development which can now be destroyed or filled in to accommodate such projects under Sackett, pesticides, fertilizers and other toxins can be dumped directly into wetlands even if they are hydrologically connected to drinking or other pristine waters. Similarly, according to EPA’s Toxic Release Inventory, mining is the nation’s number one toxic polluter, and one of the most important functions of the WOTUS Rule was to protect tribal and other communities facing the impacts of mining to water and subsistence resources.
With 174 million acres of wetlands in Alaska currently protected under the Clean Water Act and 230 native tribes, no other state has more to lose due to Sackett. This was made clear by long time Clean Water Act opponent, Governor Michael Dunleavy who said the “Court made the right call in limiting federal jurisdiction over wetlands and placing decision-making power back in the hands of States.” Because neither the state nor local boroughs generally have regulations that limit development in wetlands or other impacts to them, what this really means is that the Governor wants to remove the last vestiges of protections for the state’s wetlands which currently exist only under federal law.
Because the Sackett decision addresses only wetlands, one wonders what the ultra-conservative majority of the Supreme Court has in store next for removal of protection of Alaska’s more than three million lakes, nearly a million miles of rivers, and more coastline than the rest of the Lower 48 combined. Governor Dunleavy sums it up best for what is in store for these other unique and biologically diverse water bodies when he says, There is no doubt, thanks to today’s ruling, that Alaska is once again open for business.”
Because the U.S Supreme Court has targeted federal environmental laws including the Clean Water Act, what is needed is for Congress to step in and clarify once and for all the broad protections over our nation’s waters, so that there is no room for interpretation.