An Agency Boondoggle

Tucked into the operating budget passed by the State House is an appropriation that would authorize the Alaska Department of Environmental Conservation to take over the federal wetlands permitting program under Section 404 of the Clean Water Act.  

There would be a significant cost to the state of assuming the program, and this is not a one-year program; this is a forever program. The Department of Environmental Conservation (DEC) has requested a nearly five-million-dollar appropriation to staff 28 employees. It is not clear how DEC came up with this estimate. As of many years ago, the Corps' regulatory program in Alaska had 49 full-time positions and an annual budget of $7.9 million.

We know that the assumption of the permitting program will likely also require additional staff from other resources agencies, the Department of Law, and additional third-party contractors. In Florida (one of only three states nationwide that has assumed responsibility for wetland permitting functions), they underestimated the staff they would need to run the program and recently requested an additional 17 positions to administer its program. States administering the Section 404 permit program receive no federal funds specifically dedicated to supporting the operation of the permit program.

The legislature investigated taking over primacy in 2013 and subsequently abandoned the effort when the state ran into lean fiscal times. As DEC testified to the House Resources Committee in 2013, a primary purpose of the bill authorizing 404 assumptions was to determine the full costs of primacy. DEC testified this year that it has no additional information about the program's costs. DEC also made clear in 2013 that "the unknowns about this effort are significant. Until the state performs the detailed evaluation of assumption of the program as provided for in SB 27, it is impossible to forecast the cost or size of a State program." There is no indication that the state has actually done any further due diligence since 2013, making this current budget rather reckless.

We know this much: Tribes would lose the right to consultation that occurs with federal permits, and state policies regarding consultation do not ensure the same rights. Notably, DEC and other state agencies have declined requests for consultation with Alaska tribes. Tribes will have a harder time making their voices heard. Plus, the state's assumption of the program would eliminate the protections of the National Historic Preservation Act. Mitigation measures to protect cultural and historic resources will be more challenging.

Should the State of Alaska assume the 404 permitting program, it is unclear how consultation with FWS and NMFS would work for threatened or endangered species. In Florida, which adopted the 404 permitting process most recently, no ESA consultations occur at the permit level. Permits may therefore bring more significant harm to endangered and threatened species. No environmental impact statement would be required for a state-issued 404 permit. The public would lose the opportunity to participate in the NEPA process.

Budget items can be sneaky and difficult to track. The Senate is still working on its version of the operating budget, and the House and Senate will ultimately reconcile their versions in a conference committee. Now is an excellent time to weigh in with your Senator. Let them know that this budget item will create unnecessary bureaucracy at the expense of our state government. Wetland permitting in Alaska is already being done by the federal government at no cost to the state government. Tell them to remove the $5 million budgeted to start a program that is not necessary.

The Alaska Center

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