Key Takeaways
The Biden-Harris Administration’s Army Corps of Engineers is attempting to seize control of a Utah-sized region of Alaska’s North Slope.
The Corps argument is that because the ground is permanently frozen to depths of up to 2000 feet, it constitutes water over which it asserts control under Clean Water Act jurisdiction.
This assertion appears to run counter to the Supreme Court’s decision limiting the federal government’s control over land by a backdoor expansion of what constitutes “water of the United States.”
The case, Sackett v. EPA, concluded the federal government’s assertion over waters belonging to the United States had been grossly exaggerated and narrowed the law’s scope.
Alaska views the new power grab for control over lands in its state as one of several actions taken by the Biden-Harris administration to limit the state’s economic potential.
The Biden-Harris administration has claimed to have jurisdiction over a significant portion of wetlands on Alaska’s North Slope. The Army Corps of Engineers is indicating that extensive areas across the nation, including wetlands, can still be governed by the Clean Water Act, despite the Supreme Court’s 2023 decision in Sackett v. EPA, which significantly limited the law’s applicability.
This assertion by the Army Corps casts a broad jurisdictional net over the entire Arctic region. The Supreme Court determined that for wetlands to qualify for federal oversight as waters of the United States, they must be “relatively permanent” and exhibit a continuous surface connection to larger bodies of water to the extent that they are “indistinguishable” from them. This ruling has effectively removed federal oversight from many wetlands and waterways, particularly in arid regions like Colorado, where state officials report that around 90 percent of the state’s wetlands are no longer federally regulated.
In contrast, the Biden-Harris administration contends in legal documents that any “physical” connection between a wetland and navigable waters is adequate to establish the continuous surface link necessary for federal jurisdiction. The Army Corps is extending this interpretation to a Utah-sized area of Alaska’s North Slope, primarily composed of moist permafrost that remains frozen for most of the year, reaching depths of up to 2,000 feet. The Army Corps claims that nearly all wetlands and other waters on Alaska’s Arctic Coastal Plain have a continuous surface connection to a larger waterway, making it “safe to assume that the vast majority of aquatic resources in this region will be considered waters of the US.”
The Army Corps seems to be trying to re-establish the “significant nexus” test, which the high court tossed out in Sackett, said Larry Liebesman, a senior adviser at the environmental and water permitting firm Dawson & Associates. Under the test, isolated waters and wetlands fell under Clean Water Act jurisdiction if they had hydrological connections that allowed pollution to affect the biology and chemistry of a larger distant navigable water body. Justice Samuel Alito wrote in Sackett that the significant nexus test puts “a staggering array of homeowners at risk of criminal prosecution for such mundane activities as moving dirt.”
The Army Corps is intensifying the legal discussion about whether the presence of water is necessary to determine if wetlands maintain a continuous surface connection to a river or lake, according to Anna Wildeman, counsel at Troutman Pepper Hamilton Sanders LLP in Washington, D.C., and a former official in the Trump administration’s EPA Office of Water. “The agencies are acting improperly and overstepping the boundaries set by Sackett,” Wildeman said. “State leaders in Alaska have not hesitated to challenge this administration when they believe federal authority is intruding on state rights.”
Kevin Minoli, a partner at Alston & Bird LLP, cautioned that the Army Corps’ statement is not an official legal opinion. The Army Corps’ approach to determining Clean Water Act jurisdiction in Alaska may not apply to the rest of the United States because the state’s Arctic hydrology and climate are unique, according to Minoli. That unique hydrology puts the Army Corps’ approach on solid legal ground, said Dave Owen, an environmental law professor at the University of California College of the Law in San Francisco and supporter of government control. “Pretty much every wetland will connect to streams or rivers, and those stream and river networks will flow continuously to the ocean,” he said. “The combination of a very cold climate and poorly drained permafrost makes the North Slope the kind of landscape where those interconnections are a common feature.”
Currently, twenty-seven states, along with various trade groups and private landowners, are contesting the EPA’s and Army Corps’ regulations implementing Sackett in at least four federal lawsuits.
Conclusion
The Biden-Harris Army Corps of Engineers is hinting at reviving the ‘significant nexus’ test to claim Clean Water Act jurisdiction over most wetlands on Alaska’s North Slope. Critics argue that the agency is ignoring the Supreme Court’s ruling in Sackett vs. EPA. The Supreme Court justices ruled that for wetlands to receive federal protections as waters of the United States, they must be “relatively permanent,” and have a continuous surface connection with larger waterways to such a degree that the wetlands must be “indistinguishable” from them. Litigation is already proceeding in at least four federal lawsuits over the Biden-Harris administration’s implementation of the Sackett ruling. The Army Corps assertion is extremely vexing for Alaska, which wants to have the prerogative to make decisions for its state and its residents.
