State of Alaska Weighs In on U.S. Supreme Court Review Involving Federal Jurisdictional Limits Under the Clean Water Act
December 5, 2005
(Anchorage) – Attorney General David Márquez announced that the state filed an amicus brief last Friday with the U.S. Supreme Court over a legal dispute regarding the reach of federal jurisdictional limitations over wetlands under the Clean Water Act (CWA).
The Court has consolidated two cases** where the primary issue under review is whether wetlands located long distances from, or not directly connected to "navigable waters," should be deemed "adjacent" under the CWA for purposes of exercising federal permitting jurisdiction by the Army Corps of Engineers.
"This court's decision will have a profound impact in the area of state's rights and economic development in Alaska," said Governor Frank H. Murkowski. "The Supreme Court should give pointed recognition and force to Congress' objective that under the CWA, the management of land and water resources is primarily reserved to the States and local agencies, and that federal jurisdiction is not absolute over all waters and wetlands."
Alaska contains 174 million acres of wetlands, more wetlands than all of the other states combined. "Almost any public infrastructure development, such as water and sewer, roads, or airport projects -- not just private or industrial projects -- involves these kinds of lands," said Márquez. "Absent a significant relationship to navigable waters, we believe that many of Alaska's wetlands -- like vast portions of the North Slope or across the Yukon-Kuskokwim Delta -- are beyond Corps of Engineers' jurisdiction and subject only to regulation by the State."
"Achieving a more clear understanding of which wetlands are subject to federal jurisdiction and which are subject to state jurisdiction is critical," said Kurt Fredriksson, Commissioner of the Alaska Department of Environmental Conservation. "We hope that the Supreme Court will bring into focus what has been and remains a blurry jurisdictional situation."
Alaska and Utah have joined several California public water agencies and a farm bureau on this brief.
**The consolidated cases on appeal from the Sixth Circuit are Carabell v. United States Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004) and United States v. Rapanos, 376 F.3d 619 (6th Cir. 2004).
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