Editorial

A Fairbanks company won an important victory earlier this summer that helps set a reasonable high water mark on the federal government’s power to limit development in certain wetlands in Alaska’s communities.

Several years ago, Great Northwest Inc. started a tussle with the U.S. Army Corps of Engineers about whether the company needed a permit to continue pulling gravel from its land in south Fairbanks. In June, the company won — hands down. No “dredge and fill” permit is necessary, the court said.

U.S. District Court Judge Ralph Beistline issued a summary judgment, meaning the facts of the matter were so clear that he didn’t need a long exchange of arguments to explore the conflict. The corps and the U.S. Department of Justice should dismiss any thought of appeal.

The federal government, under the authority of the Clean Water Act, requires companies to obtain permits before they dig into wetlands. Such permits typically come with a variety of stipulations requiring a company to create or protect other wetlands or pay money to some organization that will do such work. These stipulations can be costly. For example, Great Northwest, to obtain its most recent permit, had to put $55,000 in an escrow fund that would pay for environmental remediation work in case the company lost an administrative appeal of the corps’ authority to require that permit.

Deciding what wetlands are subject to the permit requirement has been a matter of great dispute, especially in Alaska, where underlying permafrost holds water on the surface across vast areas during the summer. The Army Corps of Engineers has had the unenviable job of making these tough calls as the law evolved under different federal administrations and court interpretations. In Great Northwest’s case, Beistline said, the agency reached too far.

Great Northwest’s land lies off the southwest corner of Peger Road and Van Horn Road, north of the railroad track. The Tanana River lies about a third of a mile to the south of the property. A drainage channel crosses the southeast corner of the parcel, meets a culvert that passes under the railroad track and continues westward parallel to the track until it meets the Tanana.

The federal Clean Water Act gives the corps power to regulate dredging and filling in “waters of the United States.” Such waters include all navigable rivers and lakes such as the Tanana River. Wetlands “adjacent” to navigable waters also are defined as waters of the United States.

The corps decided Great Northwest’s property is part of a continuous wetland adjacent to the Tanana River. Thus, the company needed a permit, the corps said.

Beistline, however, concluded that Great Northwest’s property cannot be considered “adjacent” to the river, from a regulatory standpoint. Under the his ruling, the only wetlands likely to be considered adjacent to the river are those south of the railroad track.

The corps’ own regulations state that wetland areas become separated into distinct “adjacent wetlands” when they fall beyond “man-made dikes or barriers, natural river berms, beach dunes and the like,” the judge said. The track is such a barrier.

“The corps has declined to assert jurisdiction over wetlands that are themselves adjacent to other jurisdictional wetlands,” the judge said. In other words, Great Northwest’s wetlands are two steps removed from the navigable waters of the Tanana River, so the corps doesn’t have authority on them.

In Alaska, the decision creates a useful and reasonable limit on the extent to which the corps’ authority reaches into developed communities that are already criss-crossed with roads, railroads and other barriers. Federal officials should let the decision stand.