In one of final acts at EPA, Pruitt updates Alaska wetlands management

In his final weeks leading the agency, former Environmental Protection Agency Administrator Scott Pruitt issued a memo reemphasizing the unique abundance of wetlands in Alaska and outlining how the EPA will manage them.

The joint memo, signed June 15 by Pruitt and Assistant Army Secretary for Civil Works R.D. James, replaces longstanding guidance in prior memos from 1992 and 1994 covering wetlands mitigation.

The U.S. Army Corps of Engineers manages Clean Water Act Section 404 wetlands fill permits under the direction of the EPA, which has ultimate say over if and how often-sensitive wetlands areas are developed.

Pruitt abruptly resigned as EPA administrator July 5.

Southeast Alaska Land Trust Executive Director Allison Gillum said she sees the memo as largely clarifying the language in Clean Water Act requirements and regulations with the recognition that wetlands management in Alaska is a much different task than it is in the Lower 48.

Gillum also attended a stakeholder meeting the EPA held in Anchorage to discuss how the guidance will be applied by the agencies going forward.

“I felt like they just wanted to remind people that there’s room in the rule for doing things (in Alaska) kind of outside how they are done in the Lower 48. I’m not really sure what’s going to come of it,” she said.

The Southeast Alaska Land Trust is an in-lieu fee wetlands mitigation sponsor. An in-lieu fee sponsor organization is certified by the Corps of Engineers to take on the responsibility of finding wetlands to preserve that will offset those damaged by a project.

The 10-page memo highlights the agencies’ mitigation sequence, describing when avoiding, minimizing or compensating for wetlands disturbances is warranted.

“Given the unique climatological and physiographic circumstances found in Alaska, it is appropriate to apply the inherent flexibility provided by the guidelines to proposed projects in Alaska. Applying this flexibility in a reasoned, commonsense approach will lead to effective decision-making and sound environmental protection in Alaska,” the memo states.

The members of Alaska’s all-Republican congressional delegation have for years stressed that more than half the state is classified as wetlands — accounting for more than 60 percent of the remaining wetlands in the entire country — and therefore the stringent requirements for wetlands protections used in the Lower 48 should not apply to Alaska.

“When the Lower 48 were being developed, they didn’t need to deal with today’s onerous regulatory restrictions. I am encouraged to see EPA and the Army Corps recognizing these issues,” Sen. Dan Sullivan said in a formal statement accompanying the memo. “I hope we can continue to work together to set up a practical regulatory structure that protects our watersheds and cleans up existing environmental problems, while allowing us to build the projects we need to build in Alaska.”

EPA Region 10 spokeswoman Suzanne Skadowski wrote in an emailed response to questions that the new guidance is meant to improve consistency and remove ambiguity regarding the agencies’ authority to be flexible in making decisions on when to require compensatory wetlands mitigation.

In Alaska, compensatory mitigation usually means preserving an undisturbed wetlands area to offset filled wetlands elsewhere, Gillum noted, while in the Lower 48, compensatory mitigation is often aimed at restoring previously damaged wetlands areas.

“The updated guidance ensures fair and transparent implementation of mitigation requirements across Alaska,” Skadowski wrote in response to whether or not the guidance loosens mitigation requirements in light of the Trump administration’s overarching push to ease federal regulations.

“Practicable,” a key word in determining what shall be required to meet the EPA’s mitigation standards, is defined in the memo as “available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purpose.”

When avoiding or compensating for development impacts to wetlands is not practicable, minimizing wetlands impacts will be the main means of complying with Clean Water Act requirements, according to the memo.

“In Alaska, minimization of impacts has been in many circumstances the only mitigation required,” the memo notes.

The memo also explains that compensatory mitigation over larger watershed scales could be appropriate for Alaska given that options to offset wetlands losses on a more localized scale are often limited.

Gillum said looking at using larger watershed scales allows for more flexibility when compensatory mitigation is required.

“Our service area is all of Southeast Alaska, so we could see an impact in Ketchikan and we could potentially offset it in the Juneau area; depending on a lot of different factors,” she said.

Additionally, it states that “applying a less rigorous permit review” for projects deemed small, with minor environmental impacts, is consistent with Clean Water Act regulations.

The guidance does not lay out quantitative thresholds for determining major versus minor impacts — that is decided on a case-by-case basis — but it outlines what should be considered in making that determination, according to Skadowski.

Gillum added that she found it interesting that the memo points out the challenges of wetlands development, specifically on the North Slope.

“I feel like it could be setting it up to defend certain decision that the EPA and the Army Corps might be making on big projects in that area but I don’t necessarily feel like the memorandum said anything completely new,” Gillum said.

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Elwood Brehmer can be reached at [email protected].

Updated: 
07/11/2018 - 10:22am

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