Fairbanks borough files lawsuit over wetlands

Posted: Wednesday, August 30, 2006

FAIRBANKS - The Fairbanks North Star Borough has sued the U.S. Army Corps of Engineers, claiming the corps uses an improper method of identifying wetlands in Alaska.

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The Pacific Legal Foundation of Bellevue, Wash., self-described as an organization dedicated to property rights, limited government and a balanced approach to environmental protection, filed the lawsuit Monday on behalf of the borough in U.S. District Court.

The corps requires a permit for developing wetlands to protect water quality and wildlife habitat and for flood control. Permits can require landowners to take actions to reduce the effect of the development.

The lawsuit focuses on two acres of moss and spruce near the University of Alaska Fairbanks that borough officials hope to turn into recreational fields. The corps designated them wetlands and placed conditions for a proposed permit that borough officials say will make development difficult and expensive.

"The borough believes the corps has wrongfully asserted jurisdiction over these lots, and this administration has directed that we challenge it," said Joe Miller, an assistant borough attorney.

The borough claims the corps improperly created a separate method of identifying wetlands in Alaska in 2003. That method should have gone through a rule-making process under the federal Administrative Procedures Act, according to the borough.

Rules elsewhere are set out in a 1987 manual that Congress subsequently made into law, the borough said. Christy Everett of the corps' regulatory branch said her agency does follow rules in the 1987 manual.

The borough suit focuses on the hydrology. To indicate wetlands, water must inundate or saturate the land to the surface for a certain percentage of the growing season. The borough claims the site has no officially recognized growing season.

"Frozen doesn't cut it," said Russ Brooks of the Pacific Legal Foundation.

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