Hawaii & Alaska
The Alaska State Capitol / (Peter Segall / Juneau Empire File)

AK - Alaska seeking a 404 redirect for wetlands development

State wants to take over permitting control from feds, but costs and murky legal questions linger. State regulators say the move will allow more flexibility that will benefit both businesses and the environment in “Alaska’s unique conditions,” however, some senators expressed skepticism over efforts to take over what are known as “Clean Water Act Section 404” permits.

A massive change in Alaska’s development rules, where the state rather than the federal government decides if companies can dredge and fill wetlands and waterways for projects, is facing something of a “404” glitch that has nothing to do with a broken website (although the state’s FAQ page for the topic is indeed blank).

State regulators say that taking over what are known as “Clean Water Act Section 404” permits will allow more flexibility that benefits both businesses and the environment in “Alaska’s unique conditions.” Most construction, resource and community development projects require such 404 permits, and regulators hope the state could take over up to 75% of them beginning in 2024.

But since almost every other state is opting against such control, the question is if Gov. Mike Dunleavy’s administration is pitching only the positive aspects while ignoring the drawbacks — such as $5 million in annual costs and murky rules that allow the federal government to retain the ability to overrule the state’s decisions.

A detailed overview of Alaska’s possible takeover has been presented to legislators this session, based on a feasibility study the state Department of Environmental Conservation was asked during last year’s session to conduct. The 404 permits involving projects where dredged or fill material is discharged into what are officially classified as “Waters of the United States” are currently issued by the U.S. Army Corps of Engineers, which considers about 775 cases annually in the state.

Shannon Miller, the DEC’s program manager, told the Senate Resources Committee last Monday that Alaska has two-thirds of the country’s wetlands, with 174 million acres representing 43% of Alaska’s surface area. Such terrain includes tundra, permafrost, marshes and bogs. Less than 0.1% have been developed to date.

“We need to be able to focus in on a program that is written and built for Alaska,” Miller said.

The federal government would retain authority for permits affecting oceans, tidally influenced wetlands, and navigable rivers and lakes.

Such a takeover was approved by the Legislature in 2013, but abandoned after oil prices plummeted.

Dunleavy is requesting nearly $5 million in next year’s budget to begin implementing the takeover, and expects it will cost about that much for 32 employees to administer the program annually. The Army Corps in Alaska has about 50 regulators and an $8.5 million annual budget for wetlands permitting.

State DEC officials said they plan to submit an application for the takeover to the U.S. Environmental Protection Agency at the beginning of 2025 in the hope of getting approval later that year.

While a primary intent of state control is streamlining the permitting process compared to the EPA, DEC Commissioner Jason Brune said state regulations would need to be at least as strong as the federal agency’s — but could be adapted so they are more suited to Alaska’s geography.

“Permittees are required to compensate for unavoidable impacts to wetlands,” he wrote in an introduction in the feasibility study. “We will have the opportunity to provide compensatory mitigation options that are presently not utilized and veer from the federal focus of restoring damaged wetlands, creating new wetlands, or putting lands into perpetual conservation easements as their primary mitigation options.”

Nearly 90% of Alaska’s wetlands already have protected status and there are few in need of restoration, Brune noted.

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