Last week, the State of Alaska sent a friend-of-the-court brief weighing in on an important environmental case before the U.S. Supreme Court. Sackett v. Environmental Protection Agency could determine how much of Alaska’s wetlands are subject to federal regulation under the Clean Water Act.
If the ruling goes the way the Dunleavy administration would like, the Environmental Protection Agency (EPA) will no longer have oversight over pollution and contaminants in Alaska’s isolated wetlands. The State of Alaska will. Isolated wetlands are wetlands that are not right next to large bodies of water. They cover much of the Yukon-Kuskokwim (Y-K) Delta, and other parts of Alaska.
“If you look at the tundra habitat all along the coast and the marshes, there are thousands, and thousands, and thousands of little isolated wetlands,” said Boyd Blihovde.
Blihovde is the refuge manager for the Yukon Delta National Wildlife Refuge, which encompasses most of the Y-K region. Blihovde said that at least 20% of the refuge is isolated wetlands. Under the 1972 Clean Water Act, the EPA has regulated pollutants and toxins in the country’s waters, including these isolated wetlands. What Sackett vs. EPA will decide is if isolated wetlands count as "waters of the United States."
In a 2006 case, Rapanos v. United States, the Supreme Court decided that all wetlands next to a “navigable” waterway counted as water of the United States and would be protected under the Clean Water Act. The idea was that if pollutants go into the land near a large river, they’ll make their way to the river. What the justices didn’t agree on was what to do about isolated wetlands not close to a navigable waterway.
In general, the EPA has been claiming jurisdiction over isolated wetlands and things like bodies of water that are dry part of the year. The State of Alaska is asking for the court to take a narrower view of the Clean Water Act.
The state’s brief says that leaving the EPA in charge impedes the state’s ability to develop its own resources and build rural infrastructure. It cites the community of Chefornak, which needs a new sewer system. To build one under EPA oversight would cost $8 million. The state says that it would rather build an “economical lagoon.” Sewage lagoons are among the cheapest available option to treat raw sewage, but they do come with risks. Recently, a sewage lagoon burst open in the Y-K Delta Community of Hooper Bay, dumping the entirety of the town’s sewage into protected wetlands.
These isolated wetlands are important stopover points for migratory birds, said Blihovde. “That's why the refuge was established, because it's good for waterfowl,” he said.
In the brief, Alaska Attorney General Treg Taylor also asks the Supreme Court to consider exempting frozen permafrost from protection under the Clean Water Act.
Janette Brimmer is a lawyer at the environmental law firm Earthjustice. She said that frozen water is still water.
“It's weird to me that Alaska thinks that permafrost wetlands are somehow different just because it’s frozen,” said Brimmer.
Twenty-six other states, most of them run by Republican governors, are also asking the Supreme Court to end federal Clean Water Act protection of isolated wetlands.
Robert Glennon is a professor of water law and policy. He said that there is no way to predict how the Supreme Court will rule.
“Many members of the court are from the eastern part of the United States, a whole bunch from the metropolitan New York area. And they're just not aware of or sensitive to Western land issues,” said Glennon.
This brief is just part of Gov. Mike Dunleavy’s fight against what he considers to be federal overreach that limits Alaska’s development. He is trying to pass a bill in the state legislature that he says would give Alaska greater control over riverbeds and other submerged lands. He has also proposed that the state take over the water quality permitting process in federal waters. All of these actions together could open up the state to more development, and less federal oversight over contaminants in public land.
