State considers taking control of wetland permit process

A group of state agencies is evaluating what it would mean for the state to manage wetlands permitting for development projects.

Wetlands permitting has largely been controlled by the Environmental Protection Agency under Section 404 of the Clean Water Act since it was passed in 1972. It is locally overseen by the U.S. Army Corps of Engineers.

Section 404 requires “anyone discharging dredged or fill material in waters of the United States” to obtain a permit to do so from the Corps of Engineers.

The state currently has a similar Certification of Reasonable Assurance granted it under Section 401 of the Clean Water Act that gives states the ability to review federal wetlands permit applications.

In its last session, the Legislature passed Senate Bill 27, which directed the state to begin the process of filing the necessary applications with EPA and the Corps of Engineers to obtain wetlands oversight, or primacy.

SB 27 also allocated resources to add staff to the Department of Natural Resources and the Department of Environmental Conservation to undertake the task. DEC Division of Water Director Michelle Hale told the Alaska Miners Association during a Nov. 7 presentation that DNR has two people working full-time on the effort and her agency has five with further help from Department of Law staff.

Right now the agencies are going through a cost-benefit analysis to see if taking on more permitting responsibility is worth it for the state, she said. Since the Clean Water Act was amended in 1977 to give states the option of wetlands primacy, only Michigan and New Jersey have taken advantage.

DNR Deputy Commissioner Ed Fogels has said obtaining wetlands primacy would add about 30 full-time positions to the agency group and that cost is something that must be considered.

Hale said the move would be right for Alaska, given the fact that the state holds 65 percent of the nation’s wetlands, which make up 43 percent of the state. Being the only state with permafrost, Alaska has wetlands that aren’t found anywhere else in the country, she added.

“Decisions in Alaska — if we assume the 404 program — made by Alaskans, accountable to the State of Alaska,” Hale said.

The state has recent experience in shifting permitting jurisdiction since it fully took over the Section 402, the National Pollution Discharge Elimination System program, in 2012. The application process for the primacy in NPDES began in 2003, Hale said, and the federal to state transition began in 2008.

The Section 404 primacy process should be expected to take just as long as both require “many binders” worth of paperwork being sent to the Corps of Engineers and EPA, said Ruth Hamilton Heese, a senior assistant attorney with the Department of Law.

Because the state already has primacy over Section 402 permits it could potentially combine the permits and issue one public notice period, Hale said.

“It provides us an opportunity to create clear and consistent regulations and there’s a real opportunity for regulatory integration,” she said.

Regardless of who controls Section 404 primacy, the federal standards those working in wetlands must adhere to likely won’t change, and if they do, it would be to the side of environmental protection. The Clean Water Act requires state standards to be “no less stringent” than federal guidelines.

The state also would not assume primacy over all wetlands inside its borders. Waterways considered navigable for commercial use and adjacent wetlands would remain under Corps of Engineers jurisdiction. Defining “adjacent” will be part of the back-and-forth of the primacy process, Hamilton Heese said.

An area of the Section 404 permit that often causes consternation for project managers is its wetlands mitigation requirements. Anyone disturbing wetlands is required to improve an equal area elsewhere or pay the federal agencies for wetlands disruption.

Hamilton Heese said the state would look at creative ways to “maximize the flexibility we can get in terms of (wetlands) mitigation” and still meet federal requirements. She suggested solutions such as fixing “perched” culverts in salmon streams to allow fish easier passage as a mitigation tool the state could allow that hasn’t been previously considered.

Elwood Brehmer can be reached at [email protected].