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Governor Dunleavy Challenges New WOTUS Definition

Feb 11, 2022

– Governor Mike Dunleavy challenged the proposed new definition of WOTUS, Waters of the United States, in comments submitted to the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (USACE) this week. The Biden Administration is proposing to expand the definition for WOTUS, under which significantly more Alaska waters would be designated as WOTUS and thus fall under federal control.

“Alaska stands to be disproportionately affected by the Proposed Rule, and particularly, by the vast expansion of federal jurisdiction it will inflict on states,” said Governor Dunleavy. “Alaska needs regulations tailored to the diversity and abundance of its waters, not a one-size-fits-all rule imposing excessive federal requirements.”

The Governor noted that Alaska has significantly more water than all other states: Alaska has roughly 900,000 miles of navigable rivers and streams; 22,000 square miles of lakes; nearly 27,000 miles of coastline. In addition, Alaska has more wetlands than every other state combined, which cover 43 percent of the state’s surface area.

The submitted comments highlight four areas of concern:

  • The Proposed Rule would expand WOTUS beyond any previous definition, highlighting the failure of Congress to adequately define WOTUS in statute.
  • The science underpinning the Proposed Rule is insufficient to support its application to several Alaska-specific categories of waters.
  • The Proposed Rule impedes Alaska in carrying out its constitutionally imposed responsibility to manage its own natural resources and impinges on Alaska’s management rights under the federal Alaska Statehood Act. 
  • The Proposed Rule disregards the language in the federal Clean Water Act which “recognize[s], preserve[s], and protect[s] the primary responsibilities and rights of state[s]” to manage and protect water resources.

“Rest assured my Administration will stand up for the rights of Alaska and for Alaskan property owners,” said Governor Dunleavy. 

 In his response, Governor Dunleavy has requested four exclusions for Alaska from the WOTUS definition based on the data gaps in the science used to support the Proposed Rule: (1) Alaska permafrost wetlands, (2) Alaska forested wetlands, (3) Alaska wetland mosaics, and (4) Alaska waters and lands falling under the “other waters” category in the Proposed Rule.

The full text of Governor Dunleavy’s response is available on the Department of Environmental Conservation’s webpage.