Challenging an Army Corps of Engineers assertion that permafrost 20 inches thick is a “navigable water” of the United States, an Alaskan borough attempting to build public playgrounds and athletic fields on a two-acre parcel of permafrost has sued the Corps over its enforcement of the Clean Water Act.
“This case is a classic example of the Corps operating without boundaries, limits, or common sense in its application of the Clean Water Act,” said Russell Brooks, managing attorney of Pacific Legal Foundation’s (PLF) Northwest Center. “In no way does permafrost constitute ‘waters of the United States’ or establish a connection to navigable waters of the United States, as required for regulation under the Act.”
‘Significant Nexus’ Required
The case, filed August 28 by Fairbanks North Star Borough and PLF, a public interest legal organization, is among the first to test the Corps’ interpretation of the Clean Water Act following the U.S. Supreme Court’s June 2006 decision in Rapanos v. United States.
In Rapanos, the Court held the federal government cannot regulate remote wetlands under the Clean Water Act without a “significant nexus” to truly navigable waters.
In the Fairbanks case, the Corps asserted it had jurisdiction to regulate lands that are saturated by surface or groundwater frequently enough to support a prevalence of vegetation typically adapted for life in saturated soil conditions.
Using that definition, the Corps asserted two acres of permafrost land owned by the Fairbanks North Star Borough constitute “waters of the United States” and are therefore subject to regulation under the Clean Water Act.
90 Percent of State at Risk
Challenging the Corps’ assertion, Fairbanks North Star Borough contends permafrost-covered land never enters the growing season and thus cannot support a prevalence of vegetation typically adapted for life in saturated soil conditions.
“This particular Alaska rule would change the definition of wetlands so as much as 90 percent of Alaska could qualify as a wetland,” said Brooks. “We’re not about to let the Corps make some sort of power grab whereby it can exercise authority over the majority of Alaska.
“PLF is actively pursuing litigation all over the country that will, once and for all, return common sense and the rule of law to enforcement of the Clean Water Act,” added Brooks.
“Claiming that local government property in a perpetual frozen state is a ‘navigable water’ or has a close nexus to navigable waters demanding Clean Water Act protection is a stretch, even for the Army Corps of Engineers,” said James Hoare, a Syracuse, New York attorney.
The Fairbanks North Star Borough, with a population 87,650, is located 300 miles north of Anchorage.
James M. Taylor ([email protected]) is managing editor of Environment & Climate News.
For more information …
The full text of the U.S. Supreme Court’s June 2006 decision in Rapanos v. United States is available through PolicyBot™, The Heartland Institute’s free online research database. Point your Web browser to http://www.policybot.org and search for document #19391. Or select the topic/subtopic combination Environment/Wetlands.
