An Agency Boondoggle

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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

A DEC Budget Trap

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[cs_content][cs_element_section _id=”1″ ][cs_element_layout_row _id=”2″ ][cs_element_layout_column _id=”3″ ][cs_element_text _id=”4″ ][cs_content_seo]So far, only three states in the United States have assumed primacy for dredge and fill permitting in wetlands. One of those states – Florida – assumed permit primacy in the waning days of the Trump administration. Like Governor Sean Parnell before him, Governor Dunleavy wants Alaska to pay for wetland permitting that is now being paid for by the federal government. The rationale for this proposed forever budget increase paid for by our schools and universities and roads in lean years is that there is an expectation that there will be a return on investment. Through far more relaxed permitting requirements, zero Tribal consultation, and minimal enforcement, Alaska will see a massive influx of Mines.
Governor Dunleavy convinced the state House Finance Committee to add $5 million to the operating budget so that the Alaska Department of Environmental Conservation could hire 32 full-time staff. This means 32 new full-time salaries, benefits, travel budgets, etc., to create a state wetland dredge and fill program that is equivalent to the program already paid for by the federal EPA. Perhaps the Dunleavy administration is going to pay these new workers peanuts. $5 million is a far cry from the cost estimate in 2013 when Governor Parnell foisted primacy on the Legislature. At that time – EPA had 49 positions administering its permitting program at a cost of $7.9 million in 2013 dollars. You don’t have to read a crystal ball to see how this will play out for Alaska should the Senate adopt the House numbers and we start a wetland permitting program. You can bet that if the Legislature agrees to this initial $5 million allocation, we should more realistically expect to pay at least a 10 million dollar figure, subject to inflation, moving forward in countless budget years.
It will require more money than was described initially by a less than trustable Dunleavy Administration and the former Pebble spokesperson running DEC now – you can bank on that as a fact. It will lead to costly litigation for the state – bank on that. It will be a messy and costly tug of war between the state and federal government–look at what happened in Florida.
In Florida, with a Governor who is predictably combative with the federal government, there is significant disagreement on the scope of what are to be considered wetlands. Florida continues to apply the Trump EPA version, a predictably and significantly restrictive definition. This definition (Waters Of The United States – WOTUS) was invalidated by a district court opinion, and the Biden EPA is applying a pre-2015 version of WOTUS to which Florida disagrees. Alaska has 65% of the nation’s wetlands and a Governor who loves nothing more than to spend state money fighting the Feds, so the Legislature should anticipate this allocation to DEC will also kick off endless increases in “Statehood Defense” spending. 
The return on investment for paying to take over wetland permitting is likely to be this: 1. Good grandstanding politics for Governors. 2. Mine development plans that factor in lax state permitting and no Tribal consultation, so Mines are freer to destroy salmon habitat, and 3. Jobs–mainly for State attorneys paid out of the General Fund to fight with the EPA. That sounds like a great deal!
The State Senate should say No to this allocation of our money.
Sincerely,
The Alaska Center\n\n[/cs_content_seo][/cs_element_layout_column][/cs_element_layout_row][/cs_element_section][cs_element_section _id=”5″ ][cs_element_layout_row _id=”6″ ][cs_element_layout_column _id=”7″ ][cs_element_button _id=”8″ ][cs_content_seo]Bills to Watch This Week\n\n[/cs_content_seo][/cs_element_layout_column][cs_element_layout_column _id=”9″ ][cs_element_button _id=”10″ ][cs_content_seo]More Bills This Session\n\n[/cs_content_seo][/cs_element_layout_column][/cs_element_layout_row][/cs_element_section][/cs_content]

It’s baaaaack!

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Last week, we wrote about the approximately $5 Million that the Governor is requesting for the Department of Environmental Conservation (DEC) to hire 32 full-time staff to take over and administer wetland dredge and fill permitting currently done by the federal government EPA. Ironically, at the same time that DEC is asking for more responsibility over permitting (to benefit large scale mining development); they are also trying to dodge their responsibility to administer protections for high ecological value waters under the federal Outstanding National Resource Waters. Instead, they have introduced HB 398, which would require that the Legislature take responsibility.

HB 398 is the 2022 version of a bill that has been around for many many years, and different legislative sessions – yet has never enjoyed enough support to pass. In essence, it would require that high-value water protection be determined by the state legislature instead of through DEC regulation. HB 398 seeks to make it impossible for Alaskans to protect waters of high ecological value as Tier III waters under the Clean Water Act. Right now, federal law requires states to craft a process for citizens to nominate pristine high-value (fish spawning, culturally critical, etc.) top Tier or Tier III waters for protection from pollution. DEC is legally authorized to protect waters under a Tier III status, but they don’t want to do it.

Instead of DEC simply taking legal responsibility to protect high-value waters nominated by Alaskans, they propose HB 398, which creates more bureaucracy, expense, and red tape that strips Alaskans of our right to protect our waters. This bill is bad.

It would remove Alaskan’s right to have a voice in protecting water in Alaska by putting the power in the hands of politicians instead of the experts with Indigenous, local, and scientific knowledge.

It would allow committee chairs in the House and Senate to prevent Tier III nominations from moving through the Legislature, creating a de facto ban on water protections.

It would take power away from Alaskans and give an upper hand to outside mining companies and big businesses with no interest in protecting our fisheries and the clean water.

It would create additional bureaucracy, expense, and political paralysis that leaves our most essential and vulnerable waterways unprotected.

It would put our $2 billion salmon industry at risk.

It would silence constituents from being a part of the decision-making process around the use of waters integral to our cultures, livelihoods, and survival.

Legislative attorneys have time and again concluded that DEC can already establish and administer a process for Alaskans to seek the protection of high-value water through agency regulation. DEC has time and time again sought to shirk its responsibility, hiding behind bogus legal interpretations and philosophical objections.

Why should the Legislature approve increasing the budget to give DEC the complex responsibility of permitting mining projects in wetlands that support our salmon when, simultaneously, DEC is telling everyone with HB 398 that it does not want to be the agency to protect salmon?

Keep an eye on this bad bill.

Wetland Permitting

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The Dunleavy Administration is making a push in their budget proposal this year to take over wetland development permitting from the federal government. The proposed allocation of 4.9 million dollars in the Governor’s budget before the legislature would initiate a process where the state Department of Environmental Conservation (DEC) would assume “primacy” from the federal Environmental Protection Agency over permitting development activities that impact wetlands protected under section 404 of the Clean Water Act.

Well-functioning and intact wetlands are critical to the protection of salmon, especially in their early stages of life. Wetlands and peatlands also serve a climate-protecting function, a major force in earthly carbon sequestration. The Biden Administration will likely be expanding the protection of wetlands which was decreased under the Trump Administration.

There are downsides with the state primacy of wetland permitting. The cost and complexity of a wetland permitting program is the main factor why only three states out of fifty have assumed primacy. This year, Alaska’s fiscal situation, buoyed up by high oil prices and federal dollars, is not in the long-term position to attract and retain the 28 new full-time employees requested to administer the wetland permitting function or even ensure these positions have funding into the future. Indeed, DEC has seen some of the most aggressive budget cuts of all state agencies over the past decade. (None of this is to point out the blatant irony of our red-pen Governor proposing a budget growth to make the state pay for something that the Federal Government provides freely.)

The cozy relationship between industry and regulatory agencies in Alaska is another cause for concern. The current Commissioner of DEC used to lobby on behalf of the Pebble Mine project when he was a government relations staff for the Anglo-American mining company. Wetland permits are critical to large mining and other industrial operations, so putting this authority in a shop run by a mine promoter is, well, probably a pretty bad idea.

Under federal primacy, the EPA must conduct government-to-government consultation with Alaska Native Tribes regarding wetland permit decisions to seek input and mitigate impacts to the land and water on which Tribal members rely. Should the State of Alaska take over the wetland permitting program, Tribal consultation is not a legal requirement. For this reason alone, the legislature should scrap the state primacy proposal.

Our salmon runs are in a perilous state across much of Alaska. One outlier is Bristol Bay, where the rivers flow from millions of acres of intact wetlands, the beating heart of the largest and last greatest sockeye run on earth. The Dunleavy Administration, DEC, and mine promoters want state primacy over wetland permitting to streamline the industrialization of areas like the Bristol Bay watershed. Unable to prevail in the court of public opinion or with the Federal EPA, the Dunleavy Administration is now attempting an end-run around both to permit the Pebble Mine with a budget allocation that would put an enforcement agency in place more closely tied to big industrial concerns.

On Monday, March 14th, at 9 a.m., the Senate Finance Committee will hear from DEC on its wetland permitting primacy proposal. Tune in.