Alaska houses more than half the wetlands in the United States. This makes it especially vulnerable to the impacts of the 2023 case Sackett vs. EPA. The case changed which wetlands fall under federal jurisdiction and trigger Clean Water Act protection. Only wetlands with surface water, and that touches a “relatively permanent” water body, are now deemed worthy of protection. Impacted federal regulatory agencies including EPA and the Army Corps of Engineers have been slow to adopt this ruling in practice and regulation, but this month EPA leadership reported to staff that is soon to change.
The new criteria to determine if wetlands within the impact area of a permit application fall within federal jurisdiction and trigger a Clean Water Act 404 permit process is a two part test:
- Does the wetland have standing water during the wet season?
- Is the wetland contiguous with (touching) a stream, river or other water body?
If the answer is no to either of these benchmarks, the wetlands will no longer receive Clean Water Act protections.
This shift is not based in science—we know that, even if they are not visibly connected to water bodies via surface waters, wetlands are often connected to water bodies via groundwater, and still provide vital ecosystem services that fish, people and our planet depend on. And while Gov. Dunlevy celebrates the impacts of Sackett vs. EPA touting a reduction in federal overreach, there is nothing to celebrate about the degraded salmon habitat, higher flood risk, and the diminished carbon sinks and clean water this new rule will result in.
Foreign mining companies and other proponents of the West Su Access Road are one group that is sure to benefit from this new rule. The largest portion of the road is being driven by the Alaska Industrial Development and Export Authority (AIDEA) using public dollars. Recently, AIDEA submitted their Clean Water Act permit application to the Army Corps of Engineers for the fourth time, and for the fourth time, the Army Corps has deemed it incomplete. Nonetheless, the application revealed that AIDEA is already trying to leverage this new ruling, claiming that the vast majority of wetlands along their 78 miles road corridor are not under federal jurisdiction. Furthermore, once the application is deemed complete, it has already been approved to be expedited based on the president’s executive order to fast track critical mineral projects. If there was ever a question about the true purpose of this road being recreation or mineral access, this makes it clear.
This ruling and rushed permitting process comes as a one-two punch for the West Su. Eliminating protection for wetlands and streamlining the process for the few wetlands remaining under Clean Water Act protection cuts corners, and people out of the process. People deserve to have a say in the environmental decisions that affect the health and wellbeing of their communities. This should be at the core of our regulatory agencies work. If they continue to stray from this duty, they can expect to spend a lot more time in court. Inletkeeper will see them there.