“continuous connection” need not be aquatic, i.e., no water flow, is sufficient to bring adjacent lands under regulation. This sidesteps the plain language in the Sackett decision, the Pacific Legal Foundation said, nullifying it in several U.S. states, including Alaska. Until the USACE regulations interpreting Sackett are challenged and struck down, the pre-Sackett regulatory definitions remain in effect in large parts of the United States, including Alaska. In the nation, the practical effect for now is that 27 states including Alaska still fall under the USACE’s pre-Sackett rules while 23 are under the USACE’s new rule post-Sackett, which doesn’t appear to clarify things. The wetlands “Waters of the United States” rule, or WOTUS, has been altered by each presidential administration during the past 20 years. Each attempted to establish its own definition. A cascade of litigation resulted. There are now several challenges to the latest USACE regulations. These cases will eventually result in court decisions, but the question may once again land in the nation’s high Court in some form. Nothing much seems to have changed in Alaska. Developers still have to determine which lands are federally regulated wetlands and which aren’t under the all-important federal “jurisdiction” test. Regulated wetlands remain subject to federal permits administered by the USACE and with the EPA also involved. The USACE doesn’t tell a developer whether the lands are regulated wetlands. The developer must do a study and convince the agency that they aren’t. Or refuse to get a permit and face penalties that could include jail and massive fines. It is possible that upland tundra, dry in the summer, would not be subject to the “continuous flow” test, but large areas of the North Slope are still wet in the summer. As before Sackett, developers' costs include not only the NEPA permit application process and the wetland study but also the time this takes and the potential cost of compensatory mitigation the USACE may require. The USACE also may or may not agree with the developer’s study results. Hoping to help ease this uncertainty, the Alaska Industrial Development and Export Authority (AIDEA), the state’s development finance corporation, has developed a tool that can help assist. “Because the presence or lack of federal wetlands can delay a project for years and cost huge amounts of funds, AIDEA worked with professional hydrologists to develop a method, a tool, for applying the new post-Sackett wetlands determination standards,” AIDEA’s Executive Director Randy Ruaro said. The new tool is called “JEM,” or Jurisdiction Evaluation Method. Whether the federal government has jurisdiction over the wetlands is key to whether or not the USACE controls the permits or whether the state does. AIDEA could begin using this tool for the first time when it initiates the federal Environmental Impact Statement process for its planned West Susitna Access Project early this year. This would show how the USACE will respond to the wetlands defined with JEM. The West Susitna Access Project is a proposed 80-mile industrial road that would open large areas of the Matanuska-Susitna Borough to economic and community development. If built, the road could help mining companies explore discoveries near Skwentna. Demonstrations of AIDEA’s new tool show promise, the authority said. Reductions of federally regulated wetlands up to 80% are indicated compared with the pre-Sackett analysis, which often makes blanket assumptions that large areas of land fall under federal jurisdiction. The authority believes its new JEM will reflect the significantly reduced amount of federal jurisdictional wetlands, Ruaro said. Alaska Gov. Mike Dunleavy said this will be a significant turning point. 14 ALASKA RESOURCE REVIEW WINTER 2025 CONTINUED FROM PAGE 12 The wetlands “Waters of the United States” rule, or WOTUS, has been altered by each presidential administration during the past 20 years. Each attempted to establish its own definition.
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