DESPITE SACKETT, ALASKA UNDER FEDERAL THUMB
Wetlands regulations remain muddled despite High Court's ruling BY TIM BRADNER THINK THE U.S. SUPREME COURT SOLVED THE WETLANDS REGULATION? THINK AGAIN. Alaskans hoped the high court’s ruling on federal regulation of wetlands last May would clarify this thorny and complex is- sue, and in Alaska’s favor. But things are still muddled, say sources familiar with the issue. In its historic Sackett decision, the court ruled that federally regulated wa- ters, called wetlands, “Waters of the United States,” under the U.S. Clean Water Act or “wetlands” must be: (1) “relatively permanent, standing or continuously flowing bodies of water described as navigable streams, oceans, rivers, or lakes.” (2) And adjacent “wetlands” with a continuous surface connection to such wa- ters such that they are indistinguishable. On its face, the ruling would appear to exempt large areas of land from the defini- tion of federal jurisdictional wetlands. This would leave states to do the regulating and issuing of permits instead of the U.S. Army Corps of Engineers (USACE). Alaska is heavily affected because much of the state is covered by land that is only wet for part of the year, or with no visible surface flow of water, which before Sackett, had been deemed federal wetlands. Construction projects that disturb wet- lands, as many do, act as a trigger for a Na- tional Environmental Policy Act (NEPA) review and permit process. Such permits can take years or decades, and are often litigated by environmental groups. A sep- arate USACE Section 404 permit and its expensive requirements to mitigate the impacts of the disturbance also is required.
As seen from a plane, many areas of the North Slope are still wet in the summer.
lands to be so close to an ocean, river, lake or stream was dropped out of the regula- tions. Instead, the USACE regulations rely on various asserted “connections” that lack surface water and connections that are not continuous, which conflicts with the Sack- ett decision. The Pacific Legal Foundation, which argued Sackett in the Supreme Court, said EPA has taken a position that the
But post-Sackett, the U.S. Environ- mental Protection Agency, under former President Biden, pushed back against the Supreme Court decision with its own reg- ulatory interpretation of “continuous con- nection.” This came in August, when the EPA is- sued a new rule on how it will comply with the decision. The USACE regulations con- tinue to assert authority over many types of isolated wetlands and dry land. The Court’s decision requiring adjacent wet-
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ALASKA RESOURCE REVIEW WINTER 2025
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