Waters of the United States (WOTUS) Information

Alaska Wetland Background: On September 8, 2023 the Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) published in the federal register a final Rule "Revised Definition of 'Waters of the United States'; Conforming". This Rule modified 40 CFR 120 and 33 CFR 328 to conform to a 2023 Supreme Court decision in Sackett v. EPA, 598 U.S., 143 S. Ct. 1322 (2023) (“Sackett”). The revised WOTUS Rule went into effect on September 8, 2023.

In Alaska, as a result of ongoing litigation on the January 2023 Rule, the federal agencies are interpreting "waters of the United States" consistent with the pre-2015 regulatory regime and the Supreme Court's decision in Sackett until further notice.

Potential Impact: The Supreme Court's decision in Sackett and the revised WOTUS Rule potentially reduces the total area of Waters of the State (WOTS) which are designated as WOTUS for jurisdictional regulation. This is particularly true for waters and wetlands which may not be adjacent to traditionally navigable waters or do not demonstrate a continuous surface water connection to traditionally navigable waters.

Under previous definitions of WOTUS, nearly all waters and wetlands in Alaska were considered WOTUS. The Division of Water issued Alaska Pollutant Discharge Elimination Program (APDES) permits and certifications under the Clean Water Act (CWA) and consistent with Alaska Statutes to authorize and monitor discharges of wastewater into these waters.

Frequently Asked Questions

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Does this mean that much of the waters of Alaska are now unregulated and unprotected?: No. Alaska regulates its waters using Water Quality Standards (WQS), implemented as regulation at 18 AAC 70. These WQS apply to ALL discharges of wastewater to ALL WOTS regardless of the jurisdiction of the water permitting. For wastewater discharges, Alaska Statute AS 46.03.100 requires all discharges of wastewater have an approval using various permits or engineering plan approvals. In all cases, the same WQS apply.
Will wetlands be recategorized under this new WOTUS Rule?: No. The new WOTUS Rule only addresses the jurisdiction of which agency has authority to regulate the discharges. The factors used to determine if an area is a wetlands or not remains unchanged.
I have a project that involves dredge and/or fill activity in state waters or wetlands that are not under the Corps jurisdiction. What do I do?: DEC is still deliberating on permitting strategies regarding dredge and/or fill projects as it responds to the new WOTUS Rule and Sackett decision. This may include leveraging technology and resources to implement a permitting strategy to facilitate a seamless and consistent pathway that balances protection of human health and the environment and promotes responsible Alaska resource development.
I have an APDES permit, but the new WOTUS Rule seems to indicate my discharge is no longer to WOTUS. Should I terminate my APDES permit?: No. AS 46.03.100 still requires an authorization to discharge to WOTS. Your APDES permit serves this purpose currently and needs to remain in effect. The Division is developing modifications to transfer non-WOTUS discharges to State authority. Until these actions are complete, you should continue to follow your APDES permit conditions the same as prior to September 8, 2023.
Do I need to do anything different with my APDES permit?: No. Continue to follow all conditions in your permit and continue reporting normally until further notice.
Will facility inspection or compliance and enforcement change?: Potentially, but to be determined. Inspection frequencies for APDES permits are driven by CWA requirements. If your permit has no discharges to WOTUS but discharges to WOTS, your inspection schedule may change. The Division is still deliberating on compliance and enforcement strategies for non-APDES permits.