U.S. District Court Rules Against Feds on WOTUS
April 15, 2023
“It’s good news to see the Court recognize that Alaska needs regulations tailored to the diversity and abundance of its waters, not a one-size-fits-all rule imposing excessive federal requirements,” said Alaska Governor Mike Dunleavy. “Alaska stands to be disproportionately affected by the new rule, and particularly, by the vast expansion of federal jurisdiction it would inflict on states.”
The Clean Water Act was passed to protect the nation’s waters. It requires permits to discharge pollutants from point sources into “navigable waters,” and it requires permits to discharge dredge and fill material into “navigable waters.” Both are key for development in Alaska to proceed. The statute defines “navigable waters” as “waters of the United States, including the territorial seas.” The federal government’s new rule redefined “waters of the United States” to include non-navigable purely intrastate waters.
The preliminary injunction applies to the 24 states that sued the federal government.
“I am glad the District Court saw the harm to the states that would come from implementing this rule,” said Attorney General Treg Taylor. “Its massive breadth and vagueness would lead to a lot of unnecessary uncertainty for not only the state but also companies seeking to do business in Alaska. This is especially troublesome when the Supreme Court will be ruling on a case that may give us all some clarity on what waters are covered by the Clean Water Act in the next couple of months. We are hopeful that decision alone will force the EPA to re-think the rule and really get back to the original intent of Congress when the Clean Water Act was passed.”
The U.S. Supreme Court heard arguments last October in 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.
“This new rule would call “navigable” all kinds of wetlands in Alaska that cannot float a boat and are miles away from truly “navigable” waters like the Kenai. This is absurd. As the U.S. Supreme Court said in 2001, the term “navigable” cannot be read out of law. This is precisely what EPA has tried to do in its quest to halt development in Alaska—to the detriment of Alaskans and to the disparagement of my Department, whose very mission is to ensure that development may proceed while the environment remains protected,” said Department of Environmental Conservation Commissioner Jason Brune.
Recognizing the new rule’s absurdity, the District Court concluded that EPA’s new rule “is neither understandable nor intelligible,” its “boundaries are unlimited,” and that, in particular, its “treatment of wetlands is plagued with uncertainty.”
“Clean water is critical to ensuring the sustainability of our fisheries and the benefits they provide. Alaska has an excellent track record of ensuring for clean water, and we view this as a victory toward allowing Alaskans to continue to manage our waters that our fisheries depend on,” said Alaska Department of Fish and Game Commissioner Doug Vincent-Lang.
"This new federal WOTUS rule is likely to impact Alaska, and Alaskans, more than any other state due to the lack of clarity," said Department of Natural Resources Commissioner-designee John Boyle. "The uncertainty it creates directly interferes with our ability to responsibly develop the state as directed by Alaska's Constitution and DNR’s mission."