February 16, 2023
(Anchorage, AK) – Alaska Attorney General Treg Taylor filed a lawsuit against the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers, along with 23 other states, asking a federal court to vacate and declare unlawful a newly published final rule that redefines Waters of the United States (WOTUS).
The lawsuit highlights the uncertainty this new rule casts over much of Alaska’s waters, emphasizing Alaska’s “unique features” like Alaska’s “vast permafrost regions and forested wetlands” and implores the court to “stop an improper federal power grab over State waters once more.”
The flawed and unlawful rule will affect landowners and developers of all stripes who may need permission from the EPA and the Army Corps of Engineers to fill or dredge wetlands or waterways on their own property, even if that property sits miles away from a traditionally navigable water.
“Anyone who examines the rule closely will find that the Biden Administration has created a definition of WOTUS that is broader than ever before,” said Alaska Governor Mike Dunleavy. “The final rule impedes Alaska’s ability to carry out its constitutional mandate to provide for the development and conservation of all natural resources belonging to the State and to carefully balance competing interests in managing its natural resources.”
Alaska Attorney General Treg Taylor said the federal agencies are not recognizing States as sovereigns. “The federal agencies are pushing the States aside and grabbing control over the nation’s water management,” said Attorney General Taylor. “This conflicts with what Congress intended when it passed the Clean Water Act in 1972: that the primary responsibilities and rights of States for water management are preserved.”
"Alaska--and Alaskans--could be impacted more than any other state by this new federal rule and the uncertainty it will create," said Department of Natural Resources Deputy Commissioner Brent Goodrum. "The lack of clarity in the WOTUS rule directly interferes with our ability to responsibly develop the state as directed by Alaska's Constitution."
The new final rule is the result of a decades-long rulemaking process to define the geographic reach of the EPA’s and Army Corps of Engineers’ authority to regulate streams, lakes, tributaries, wetlands and other water bodies under the Clean Water Act. This rule also defines the reach of EPA’s power to veto projects pursuant to section 404(c) of the Clean Water Act, which EPA exercised in January of this year to place a blanket prohibition on development for a 309 square-mile area of primarily Alaska-owned land.
“This expansive new rule exposes even more projects to EPA control and their one-size-fits-all approach, which disregards Alaska’s robust environmental protections and unique hydrological conditions,” said Department of Environmental Conservation Commissioner Jason Brune.
The new rule redefines “navigable waters” to include any wetland that, either alone or in combination with other “similarly situated” waters in the region, has a “material influence” on the “chemical, physical, or biological integrity” of a traditionally navigable water using a host of factors. This highly discretionary determination is made by the EPA and the Army Corps of Engineers.
What’s more, the lawsuit noted that the EPA and Army Corps rushed to issue the final rule “even though the Supreme Court is expected to issue a key decision on the scope of WOTUS in just a few weeks’ time.”
The U.S. Supreme Court heard arguments last October on Sackett v. Environmental Protection Agency, a years-long battle over the reach of the Clean Water Act. Attorney General Taylor filed an amicus brief urging the high court to recognize constitutional and statutory limitations on this power.
“My Administration is standing up for the rights of Alaska and Alaskan property owners,” said Governor Dunleavy.
Twenty-four states joined the complaint, led by West Virginia, including Alaska, Georgia, Iowa and North Dakota, Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia and Wyoming.
For more information contact Assistant Attorney General Julie Pack at Julie.Pack@alaska.gov
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Department Media Contacts: Communications Director Patty Sullivan at patty.sullivan@alaska.gov or (907) 269-6368. Information Officer Sam Curtis at sam.curtis@alaska.gov or (907) 269-6379.
