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Alaska, other states sue EPA over controversial water rule

  • Author: Erica Martinson
  • Updated: September 28, 2016
  • Published June 29, 2015

Alaska Gov. Bill Walker is taking the Environmental Protection Agency to court over the agency's new regulation that defines which waters are subject to federal oversight.

Alaska is one of at least 16 states suing so far over the rule, which the EPA issued on May 27. The state joined 12 others in a suit filed Monday in North Dakota district court and the 8th U.S. Circuit Court of Appeals. Texas, Mississippi and Louisiana filed a lawsuit against the rule in a different federal court.

The rule is aimed at bringing clarity to the term "waters of the United States" as employed by the Clean Water Act to determine when people are subject to federal permit requirements.

Walker and others have accused the EPA of using the rule -- called "WOTUS" by its many supporters and detractors -- as a power grab, expanding the agency's authority. The agency claims it has done no such thing.

"This final rule will likely have detrimental impacts on development in Alaska," Walker said in a statement Monday. "In addition to being incredibly expansive, the rule is also unclear. It will only lead to more expensive permitting and legal fights over 'what is in' and 'what is out' under the federal law."

"This new rule just creates confusion and unnecessary bureaucracy for our state," Walker said.

Of particular concern to many in Alaska is that the state has more than 174 million acres of wetlands, which could be caught up under the new rule, Walker said.

The EPA said that the rule was necessary to ease the permit process and clarify the law following Supreme Court rulings in 2001 and 2006 that left some confusion in their wake. And EPA said that it does not protect any "new" waters, add requirements for agriculture, or change private property rights.

But Alaska and other states claim that EPA didn't give enough weight to the different circumstances of each state and failed to "meaningfully consult with the states" as it developed the rule.

"In failing to consult with the states, the Agencies did not take into account the unique ecological, geological, and hydrological differences amongst all states and have ignored the scientific expertise of the state regulators charged with protecting state resources under both federal and state law," the lawsuit said.

Other states involved in the lawsuit include North Dakota, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming and New Mexico.

The issue had already gained plenty of interest outside of state attorneys general. The EPA reviewed nearly a million public comments before issuing the final rule.

The U.S. House has passed bills to retract the rule, and a similar bill has passed out of the Senate Environment and Public Works Committee but not made it for a vote by the whole body.

Alaska Sen. Dan Sullivan, who is on that committee, has said that opposition to the rule is "huge and growing. The EPA, however, has refused to listen to the American people."

Sen. Lisa Murkowski's Interior and Environment Appropriations bill, which passed out of its committee in recent weeks, also included a provision that would forbid the agency from spending any money implementing the rule.

On the Senate floor last week, Murkowski said the rule "will subject countless new projects to permitting requirements that will be difficult to satisfy, increasing both costs and certainly increasing project delays."

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