It will now be up to US states to determine how wetland areas should be protected after the Supreme Court threw out the previous definition of a federal waterway
A US Supreme Court ruling in favour of an Idaho couple who had challenged federal jurisdiction over some waterways will now leaving it up to individual states to decide how to protect them. That could have a major impact on Alaska, where more than half of America’s wetlands are located.
Alaska’s tundra is dotted with wetlands, small ponds, pools and other small bodies of water. And all of these, along with coastal waters, streams, lakes and marshes, had been considered “waters of the United States”, making them subject to the Clean Water Act of 1972. President Joe Biden added new measures to the act earlier this year that applied to wetlands, but, after the court’s ruling, the EPA, the federal agency responsible for environmental protection, will need to redefine which waterways it has jurisdiction over. “In light of this decision, the agency will interpret the phrase ‘waters of the United States’ consistent with the Supreme Court’s decision,” an EPA statement said.
In its ruling, the court said only wetlands that have a “continuous surface connection” to navigable waters such as streams, rivers, lakes and oceans are covered by the Clean Water Act. The Biden administration’s regulation had said that any wetland with a “significant nexus” to a navigable waterway was subject to the law. But that definition would place nearly all of the nation’s waters and wetlands under federal jurisdiction, with little room for state enforcement, Justice Samuel Alito, writing on behalf of the majority, said in the court’s decision.
Alaska had submitted arguments to the court in support of the Idaho couple, asking in the process for exemptions for special wetlands such as permafrost. Mike Dunleavy, Alaska’s governor, said: “The court made the right call in limiting federal jurisdiction over wetlands and placing decision-making power back in the hands of states. This ruling stands to promote the kind of responsible development my administration is working to bring to Alaska. There is no doubt, thanks to today’s ruling, that Alaska is once again open for business.”
There is no doubt, thanks to today’s ruling, that Alaska is once again open for business.”
For decades, there has been confusion over the precise definition of “waters of the United States”. It was also at issue in the Idaho couple’s lawsuit against the EPA, which began back in 2008 when they challenged whether they needed a costly federal permit to build on their lakeside property.
For wetlands protection in Alaska, the ruling may not bode well. The state can still enact its own stricter rules to protect wetlands from pollution, but Mr Dunleavy’s Republican administration is focused on economic development.
Environmentalists like Janette Brimmer, a senior attorney at Earthjustice, an environmental law firm, fear that the door is now open for large industrial projects. “Presumably the building industry, the mining industry and agriculture … they’re all going to be very interested in this because it is what they sought,” said Ms Brimmer, who had argued in favour of keeping the broad definition.
The myriad small ponds and lakes that line the main branches of major rivers such as the Yukon and Kuskokwim are not connected to them above ground and, under the ruling, are now considered “isolated wetlands”, a designation that means that, even if they are connected to the river below the surface, they would be likely to fall under state jurisdiction.
“It’s as though the science of hydrology never happened,” Ms Brimmer said.
Wetlands are important habitats and resting places for birds, but they are also “something like the kidneys of our ecosystem”, according to Dyani Chapman, the director of the Alaska Environment Research and Policy Center. Should contamination occur, it could pollute drinking water and harm fish in nearby waters.
She fears that the decision to give states a larger role in managing wetlands could result in less funding for federal protection. She said: “I worry about losing some of those federal resources to be able to make sure we’re thoughtful about our drinking water and our fish and our habitat.”
Julia Hager, PolarJournal
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