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Alaska Joins Amicus Brief on Federal Waters

Oct 27, 2021

Alaska Governor Mike Dunleavy yesterday called on the U.S. Supreme Court to rein in the scope of an environmental law that could have a significant impact on how Alaska property owners manage their land.

Governor Dunleavy announced that Attorney General Treg Taylor has joined in an amicus brief asking the high court to clarify what constitutes Waters of the United States (WOTUS). If left unchecked by the court, much of Alaska’s wetlands would be exposed to federal overreach.

Alaska is asking the Justices to reject a lower court’s decision in Sackett v. EPA that federal authority extends to any waters that have a “significant nexus” to navigable waters currently regulated under the Clean Water Act. Under the lower court’s interpretation, an adjacent “soggy lot” while not a part of a wetland complex would be federally regulated under the Clean Water Act.

This broad interpretation of WOTUS could dramatically impact Alaskans and their property.

“As the federal government moves to increase control over Alaskans by expansively defining WOTUS, it’s more important than ever to fight to preserve our autonomy,” said Governor Dunleavy. “Alaska holds nearly half our nation’s water and over 60% of our nation’s wetlands. By joining the West Virginia amicus brief that asks to establish a more restrictive definition, we are protecting Alaskans’ ability to own and use their private property, farm, hunt, mine, harvest timber, and develop oil and gas.”

In the amicus brief signed by Taylor, attorneys general from 21 states called on the Supreme Court to eliminate the “significant nexus” test and institute a new test defining what constitutes WOTUS.

“The Supreme Court can provide clarity to thousands of Alaskans about whether the federal government can regulate drainage ditches or marshy areas on their personal property,” Taylor said. “Without court action, the federal government could easily extend its reach and give EPA authority over lands never intended for federal oversight under the Clean Water Act.”

In addition to Alaska, 20 other states joined the brief. The states are Alabama, Arizona, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming.

Click here to read the brief.