WASHINGTON — The Trump administration has agreed to ease the process of handing over control of wetland fill permitting to the states — the latest in a long process partly prompted by a disagreement with Alaska's environmental regulators.
Five years ago, Alaska's legislature and governor gave the green light to a plan for the state to take over wetland fill permitting from the federal government, with the goal of speeding the permitting process.
But it ran into some red tape. The state and the federal government couldn't agree on who would control which waters, and the whole thing fell into the throes of a long, bureaucratic process. Until now.
This month, the Trump administration announced that the Army Corps of Engineers and the Environmental Protection Agency agreed to what Alaska wanted and released guidance meant to make state takeover of wetlands permitting more attractive to states.
But Alaska's executive branch officials aren't so sure about it anymore, and some environmentalists in the state are adamantly opposed.
Taking over the job of federal permitting authorities could be costly, and funding and some staff members who previously worked on the transfer plan are long gone, said Department of Environmental Conservation Commissioner Larry Hartig. Hartig held the same job in 2013, and has been continually reappointed to his post since he assumed the position under former Gov. Sarah Palin.
Last week, the Army Corps of Engineers announced it was issuing a memo to states and tribes meant to clarify when and how it and the EPA can hand over federal permitting power to states.
The Corps and the EPA jointly issue Clean Water Act permits that set the rules for construction projects around waterways, streams and wetlands — the Corps does the bulk of the work and EPA has a duty to review the permits and a very rarely used veto authority. The projects affected are those that dredge and fill those wetlands, like building bridges, mines, levees and homes.
Federal law allows for states to take over the permitting program, known as "404," named for the relevant section of the Clean Water Act. But for 404 permits, just two states — New Jersey and Michigan — have done so, and that was decades ago.
But during the Obama administration, Alaska wanted to take over the program. Supporters of the plan thought the state could streamline the process and get permits finished quicker and more efficiently.
In 2013, the Alaska Legislature, Gov. Sean Parnell and then-Natural Resources Commissioner Dan Sullivan made a bid to take over wetlands permitting from the federal government. The Legislature passed a bill, which Parnell signed, allowing the state to assume "primacy" — responsibility for the federal wetlands permitting program.
At the time, some Democrats worried about expanding the state government, and environmental groups worried that the state would offer weaker wetlands protection.
Asked recently about the state taking over the 404 program, environmentalists were still worried — that the state would do a subpar job of environmental review, that suing to stop project permits could be more difficult and expensive and that the state would shortcut any wetlands mitigation requirements.
"I don't think the state of Alaska is in any position to fully implement and do a good job on 404 permitting," said Guy Archibald, staff scientist at the Southeast Alaska Conservation Council.
"I think the state falls back on the boogeyman of federal overreach and that's what's pushing them here. They would like projects to go faster with less level of review, less consultation with the sovereign Native nations within the state, and this is a process that accomplishes those things," Archibald said. Conservationists want to see more stringent permitting, not less, he said.
Back in 2013, state officials said that assuming primacy would cost about $1.8 million a year for five to six years, according to an Alaska Dispatch article. State officials said last week that accurate 2013 figures were not available because of the prior dispute with the Corps over the scope of the program.
The plan was for state regulators at the Department of Environmental Conservation to issue wetlands fill permits, rather than roughly 50 Alaska-based staff of the U.S. Army Corps of Engineers.
But the Army Corps wanted to retain a broad swath of authority, and the state and federal governments found themselves at an impasse.
The Corps "was interpreting the Clean Water Act in a way that really limited the types of waters that the state would write permits for," Hartig said. "And so, you could create a program, you could spend the money on hiring people and training them and all this, and then you would be sitting there with not many permits to write, and the permits you were writing were for minor facilities in areas that weren't relatively significant."
To resolve the dispute, the federal government launched a working group, a subcommittee of the National Advisory Council for Environmental Policy and Technology, to determine for which waters a state could assume 404 permitting authority, and over which waters the Army Corps would retain authority.
In addition to Michigan and New Jersey –the only two states that have, for decades now, been issuing 404 permits on their own — Alaska and seven other states provided representatives for the working group. It also included members from the National Association of Home Builders, the Association of State Wetland Managers, the Midwest Alliance of Sovereign Tribes, the National Farmers Union and the National Wildlife Federation, an environmental organization.
The group held its first meeting in early October 2015, and ultimately filed recommendations and a final report to then-EPA Administrator Scott Pruitt in 2017.
The working group's recommendations fell in line with what Alaska wanted in 2013. The recommendation was unanimous, but for a dissenting vote from the Army Corps of Engineers, Hartig said. So the Corps and the EPA announced this month that they are taking the committee's recommendation, "which would then give the states a broader set of waters that would be covered in an assumed program," Hartig said.
But the state still has plenty to consider.
The new memo "makes it more attractive to the states, but where that leaves Alaska, I don't know yet," Hartig said.
"We still need to know more about how the Corps plans to implement these changes before we can say how they would impact a potential Alaska 404 program," said Alaska Gov. Bill Walker's press secretary, Austin Baird. "Another barrier to Alaska assuming the 404 program would be costs: Since federal funding doesn't come with the program, state appropriations would be necessary."
It's not just the new guidance on permitting that the state needs to consider, Hartig said.
The EPA and the Army Corps are undertaking several actions that could reshape the scope of wetlands regulations and management in Alaska for a generation.
The EPA is also considering changing the definition of "waters of the United States" — what waters are beholden to the restrictions of the Clean Water Act overall.
And recently, representatives from the Army Corps and the EPA came to Alaska to sign a new memorandum of understanding between the two agencies on how they would handle "compensatory mitigation" — when builders are required to take on environmental projects to make up for wetlands that may be destroyed because of a development project.
But even if the decision were simple, Hartig said, there's the matter of money.
The state government has made major budget cuts in recent years, and they hit the state's environmental agencies hard — including the funding for assuming permitting control from the federal government. "All our funding for DEC, DNR, Department of Law, that were all working on the assumption, that was cut, and all our positions taken that were relating to that work. And so we still have the statutory authority … but we don't have any funding or positions to do it," Hartig said.
Nevertheless, Hartig said now might be the best time for the state to go through the process. Leading the process at the EPA is Dennis "Lee" Forsgren Jr., EPA's deputy assistant administrator for water, and a former staffer for Alaska Congressman Don Young, Hartig pointed out.
"So it may be that this would be a good time to pursue assumption, with people in place at senior positions that know the state pretty well, and the wetland concerns and opportunities that we have here."
To take over the program, however, the state would once again have to convince the Legislature that it's a worthwhile endeavor.