WOTUS and Alaska: issues with the latest rule of the Clean Water Act.

• Author: Anderson, Tasha
• Position: ENVIRONMENTAL SERVICES - Waters of the United States

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The Clean Water Act rule Waters of the United States (WOTUS) was issued in June 2015. That same month Alaska joined twelve other states in suing the Environmental Protection Agency (EPA) and the US Army Corps of Engineers over the new rule. RDC (Resource Development Council for Alaska, Inc.) Executive Director Marleanna Hall says this lawsuit against the federal government, along with several from other states, is awaiting a ruling by the Ninth Circuit Court. In January of this year, President Barack Obama vetoed a congressional resolution that would have overturned the rule.

So for now, the highly contested rule remains and may be around for the long haul. The history of WOTUS starts with the 2006 court case Rapanos v. United States, an environmental case challenging federal jurisdiction to regulate isolated wetlands under the Clean Water Act. The US Supreme Court had a three way split: four, four, and one, the one being Justice Anthony Kennedy. AOGA (Alaska Oil and Gas Association) Environmental Counsel Joshua Kindred summarized Kennedy's opinion: "What he basically said is, 'I'm not for unfettered discretion and absolute jurisdictions, but I do think [the EPA] has some discretion'; and he used the term 'significant nexus.' He sort of established they'll have jurisdiction if there's a significant nexus to traditional navigable waters."

Significant Nexus

And that leads directly to one significant WOTUS issue--as Kindred put it, "Significant nexus isn't necessarily a legal term." While on an individual, lay person level the term may seem clear and intuitive, legally it's not. Based on this term, within the WOTUS rule the EPA assumed that there would be many waterways that automatically pass the "significant nexus test," for example tributaries to rivers and streams that "aren't necessarily navigable in the traditional sense, but they go right into navigable waters; therefore the test is passed," Kindred says. "But then the other problem is they built that significant nexus test into the rule itself," he continues.

So immediately the EPA assumed a certain amount of expanded jurisdiction, and then issued a new rule containing legally ambiguous language that allows room for even further expansion. "The ruling is another example of federal overreach, which Alaska must continue to push back on," Hall says. There is a lot of potential in the rule for additional oversight, Kindred says: "It's going to call into question a...