Alaska Pollutant Discharge Elimination System (APDES) Update
The Department of Environmental Conservation (DEC) has finalized a policy establishing a clear, statewide framework for determining whether wastewater discharges in Alaska require federal authorization under the Alaska Pollutant Discharge Elimination System (APDES) or state authorization under Alaska law.
The policy is intentionally designed to align with the U.S. Supreme Court's decision in Sackett v. EPA (2023) and the existing WOTUS rules in place for Alaska while providing a predictable, administratively workable permitting process for Alaska.
What We Accomplished
The policy:
- Establishes a consistent statewide decision-making framework for permit jurisdiction.
- Relies on existing federal datasets and mapping tools rather than creating new regulatory requirements.
- Limits federal permitting to waters that clearly satisfy the Sackett standard.
- Places waters and wetlands that do not meet the federal standard under state authority.
- Provides certainty to permit applicants, agencies, and regulated entities.
- Incorporates the policy into Alaska's approved Section 402 program description to ensure transparency and consistency.
How the Policy Implements Sackett
The Supreme Court held that federal Clean Water Act jurisdiction extends only to:
- Traditional navigable waters and relatively permanent waters connected to them; and
- Wetlands that are directly adjacent and have a continuous surface-water connection such that they are indistinguishable from those jurisdictional waters.
Consistent with that decision, DEC's policy:
- Limits federal jurisdiction to tidal waters, traditional navigable waters, and perennial waters with continuous surface-water connections.
- Excludes intermittent and seasonal streams from federal jurisdiction unless otherwise required by law.
- Requires wetlands to be directly abutting jurisdictional waters and possess a continuous surface-water connection.
- Requires wetlands to be effectively indistinguishable from adjacent jurisdictional waters.
- Generally excludes Alaska's extensive wetland mosaics and permafrost-associated wetlands from federal jurisdiction because they are distinguishable from adjacent waters and do not satisfy the Sackett test.
Alaska-Specific Considerations
Because Alaska contains approximately 175 million acres of wetlands and waterbodies, the policy uses existing federal mapping resources — including the National Wetlands Inventory (NWI), National Hydrography Dataset (NHD), and U.S. Army Corps of Engineers navigable waters listings — to conduct initial jurisdictional determinations.
This approach provides a practical and defensible method for applying Sackett across Alaska's vast and remote landscape while reserving site-specific review when necessary.
Alaska now has a clear, transparent, and administratively workable determination policy that applies the Supreme Court's Sackett decision as narrowly and faithfully as practicable.
The result is a permitting framework that reduces uncertainty, limits federal jurisdiction to the extent allowed under current law, clarifies state permitting authority where appropriate, and provides regulated entities with a predictable path forward.
Indicates an external site.