The Wide World Of Wetlands: Does Science Trump Regulation?
by Kathryn G. Arlen

     Following our last Miners News’ issue exploring reclamation-related concerns, I accepted an invitation from Travis/Peterson Environmental Consulting, Inc. here in Fairbanks to revisit the complexity of wetlands issues affecting both Alaska and many other parts of the country. But what began as a logical, even predictable, sequel ended as intriguing and revealing research currently relevant to the mining industry.
     In our traditional, more aesthetic concepts we envision wetlands as wildlife habitat, beautiful and diverse landscapes—from the Florida Everglades to the Alaskan Muskeg, subject to human use and entertainment, and critical to both fresh and saltwater filtering and nutrient recycling.  
       But from another pragmatic approach, wetlands are also subject to human development [i.e. industrial/construction] and target for Supreme Court dicta (e.g. Rapanos vs. United States, July 2006) focusing on interpreting the Clean Water Act (CWA) of 1972. According to an EPA website, the CWA “establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters.” Originally targeting direct programs and sources, the CWA’s focus over the years has evolved into inclusion of more holistic, watershed-based strategies addressing other environmental goals and water quality issues. A wide variety of construction sites, including dredging, fall under this category.
       Wetlands of all types, sizes, and sources are subject to CWA definition, although much debate currently focuses on specific interpretations and subsequent concurrences: for example, “waters of the United States” vs. “navigable waters” and increasing problems surrounding the meaning of “significant nexus” (Or, as suggested from a National Wildlife Federation website, “significant confusion.”) In simple analysis, the concept of “significant nexus” of a water source is based upon its hydrological, chemical or ecological relationship to waters of the United States (or “navigable” waters? Which shall/will it be?) Envision an original source with access to a second, accessing a third, and so on until some drop of that original source (does/may?) reaches “waters of the United States.”
        The ramifications of this wording are startling, as Eddie Packee, Phd. mining, senior scientist with Travis/Peterson postulated, “This could be the mud puddle in your front yard.” Or the lily pond I dug last summer. But after the CWA has established definitions and goals, the Army Corps of Engineers assumes responsibility for maintaining and regulating these standards and “the final determination of whether an area is a wetland and whether the activity requires a permit must be made by the appropriate Corps District Office” (www.nao.usace.army.mil).
      Wetlands designation must first satisfy three basic requirements: supporting specific vegetation (out of approximately 5000 various types,) containing hydric (oxygen-limiting) soil, and sustaining the hydrology affecting those plants and soils. Briefly backtracking to specific Alaskan concerns, “wetlands” also includes permafrost which, by definition, maintains a temperature below 32 degrees F (or 0 degrees C) continuously for two or more years. Packee outlined how permafrost conditions significantly affects Alaska’s wetlands status:
       “In Alaska it’s almost a given, because of permafrost, that you have wetlands on the property… Since most of Alaska is not developed, it is relatively contiguous with a water body that may be 20 miles away, so, because there’s no interruption of the permafrost, most of our wetlands are adjacent.” But a critical determining issue arises, as he stressed, within the guidelines of the Corps’ 1988 manual dealing with definitions and a required growing season specifying soil temperatures to be 5 degrees C or higher at a depth of 19”, because, he reasoned, “obviously, permafrost never meets that.”
       To help visualize the extent to which precise, accurate written interpretations apply here,  consider that 60% of the Corps’ and EPA’s entire nationwide wetlands’ jurisdiction is concentrated in this state (175 million acres.) Any current and pending regulatory legislation is intensely critical to ensure vital construction permitting. But wetlands still exist throughout the country in one form or another, and acquiring the requisite permitting affects land filling, leveling, clearing, dredging, road and dam construction, and other related activities. The current frustrating challenge, as Packee described, materialized because “what we’re talking about now is an everybody-type problem. Right now the Corps is having difficulty determining where their jurisdiction stops.”
      In the 2006 Rapanos Supreme Court decision, the Court finally told the Corps and the EPA that “there is a limit to their Federal power,” Packee continued, “and that isolated bodies [of water] were not included.” The Rapanos case involved a Michigan mall construction requiring landfill of a potential wetlands area. After eleven years of legal and subsequent appellate activity, the case ended in a 4-1-4 plurality Supreme Court decision rejecting the U.S. Army Corps of Engineers’ claim to have limitless authority over waters of the United States. But within this lengthy, legal appellate process one pertinent consideration dramatically appeared: “The Achilles’ heel of every agency is science,” Packee declared. “As you go through the process, and you don’t like the decision, before you go to court you have to stand on the science. You cannot count on regulation, because interpretation of the regulation is at the discretion of the agency.”
      The appeal process is expensive, time-consuming, and personally draining, so when terms like “wetlands vs. non-wetlands,” “navigable waters vs. waters of the U.S.” and interpretation of “significant nexus” are thrown about freely, scientific preparation can become the sole determinant. “In the appeals process, the science, the facts trump. They are what are evaluated. Science trumps everything.” Is permafrost actually wetlands in fact? Or only in theory?
      When asking Packee what concerned individuals, businesses, and organizations in the mining industry should be focusing on right now regarding any and all wetlands-permitting related questions, he quickly responded: “The mining industry needs to pay attention to the Clean Water Restoration Act going through under the radar now in Congress. It basically federalizes all surface waters, and removes ‘navigable waters’ from the definition of ‘waters of the United States.’ This is a major issue. And if you want to protect your long term interests, you need to evaluate, consult fairly rigorously. And do the delineation and functional assessments at the same time.” But do this prior to agency consultation. “Remember,” Packee cautioned, “be sure to research your own concerns.”

Kathryn Arlen holds a Masters degree in communication and is a freelance writer and communication consultant in Fairbanks, Alaska. She can be reached at mindmerger@hotmail.com.