Parnell administration objects to EPA wetlands guidelines

In the Parnell administration's latest foray against what it sees as federal overreach in the management of the Alaska's lands and natural resources, it has voiced strong objections to proposed new water and wetlands guidelines from the Environmental Protection Agency.

The proposed guidelines rework the definition of what constitutes waters protected by the U.S. Clean Water Act, expanding the scope of the definition and potentially creating a need for U.S. Corps of Engineers and EPA permits for planned activities impacting waterways and wetlands previously considered outside federal jurisdiction.

Any requirement for federal permitting also triggers the need for a review under the National Environmental Policy Act, a procedure that can lead to a requirement to develop an environmental impact statement.

"The State of Alaska has significant concerns about the draft guidance, including the validity of formulating a critical component of permitting processes through guidance rather than through formal rulemaking, as well as the short time frame in which the federal agencies have allowed public comment," wrote Gov. Sean Parnell in a July 30 letter to the EPA and the Corps of Engineers.

The controversy relates to what are commonly referred to as "the waters of the United States," a term encapsulating the scope of waterways and wetlands subject to federal permitting but unfortunately lacking complete clarity as to its definition. The term clearly encompasses waters that are navigable for interstate or international commerce, but has also been applied to tributaries of these waters and adjacent wetlands. Given the possibility of environmental contamination in one waterway moving into another waterway, just how far from "traditionally navigable" waterways should the scope of federal jurisdiction extend?

The U.S. Supreme Court has ruled in three legal challenges to the scope of Clean Water Act jurisdiction, with those rulings extending the scope of U.S. waters to "relatively permanent, standing or flowing bodies of water," and to include any wetlands that could significantly impact the chemical, physical and biological integrity of any waterway that falls within the scope of the act.

EPA says that it is now bringing its guidelines for determining the scope of U.S. waters into line with the Supreme Court decisions.

In addition to traditional navigable waters, relatively permanent tributaries to those waters and wetlands adjacent to the waters, the new EPA guidelines want agency field staff to determine whether additional tributaries, wetlands adjacent to tributaries and certain other open waters fall under the scope of the Clean Water Act.

Wetlands or waters would fall within the scope of the act "if they, either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters or interstate waters," EPA wrote in its draft guidelines document.

The state, in addition to its concerns about the extension of federal jurisdiction, says that the guidelines will provide an avenue for litigation by those who want to see more federal involvement in environmental permitting. Alaska has more wetlands than all other states combined, the state said in written comments on the proposed guidelines.

"The consequences of the application of the proposed guidance will be staggering in terms of federal overreach, infringement on states' traditional land and water resource management role, permitting expenditures, and project delays," the state wrote. "This guidance will undoubtedly lead to increased litigation, including more citizen suits where the EPA and Corps may decide not to assert jurisdiction."

EPA allowed a 60-day comment period for the new guidelines, a period that the state says is much too short for adequate discussion of such a complex and far-reaching issue. The state, with its huge areas of wetlands, is also miffed that EPA has not consulted it over the proposals. And the state thinks that EPA has grossly underestimated the cost of implementing the guidelines, given that the guidelines would impact several permitting programs.

"The fact that EPA and the Corps are willing to rush in and further commit enormous staff and monetary resources to a legally binding process founded on informal guidance while the nation is dealing with a fiscal crisis is astounding," Parnell wrote in his July 30 letter.

In its comments on the guidelines, the state said that undefined terminology in the guidelines will serve to confuse rather than streamline the permitting process. And the specification of federal jurisdiction over waterways should be developed through a formal rulemaking procedure, rather than as informal guidelines, the state said.

"Notwithstanding the agencies' claim that the guidance is not a rule, is not binding, and does not have the force of law, once finalized, the agencies fully expect field staff to rely upon the guidance to make jurisdictional determinations about whether a water or wetland is subject to federal jurisdiction," the state comments read.

Parnell said the state remains ready and willing to collaborate on developing regulations to enhance environmental programs, several of which the state itself administers.