EPA and the Army Corps of Engineers are fortifying requirements for when offsets are required for wetlands damaged by development in Alaska.
A new memorandum of agreement, signed by EPA Administrator Scott Pruitt and Army Corps chief R.D. James today, clarifies how existing regulations apply on the Last Frontier.
As the permitting agency for development in wetlands, the Army Corps is supposed to require "compensatory mitigation" — restoring or preserving wetlands and streams to offset damage done by projects. But an E&E News analysis published last month found that the Army Corps' Alaska District had required mitigation in only 26 percent of permits since 2015 (Greenwire, May 29).
The new memorandum does not change mitigation requirements but takes aim at justifications the Alaska District had been using to allow unmitigated wetlands impacts by clarifying when and where offsets are required.
The new agreement jettisons two agreements between the Army Corps and EPA from the 1990s that the Alaska District had been misinterpreting to justify its decisions. They often argued that even large projects that would destroy hundreds of acres of wetlands could have minor environmental impacts, allowing a "less rigorous" project review under current regulations.
Under the new agreement, "less rigorous" permit reviews are allowed only if projects are "small in size," would cause little direct impact or only temporary impacts to the watershed, or would only affect wetlands and aquatic resources that provide limited environmental benefits.
In addition, the new agreement expressly states that mitigation may be required for projects that could impact anadromous fish like salmon, affect endangered species or contribute to already-degraded water quality. E&E News' permit review found that the Alaska District had allowed multiple unmitigated impacts in all of those categories.
"Our revised guidance offers a consistent and practical approach to wetlands protection and aquatic resource restoration in Alaska," Pruitt said. "We look forward to working with the State of Alaska and our federal partners to implement the guidance, which will produce better environmental and economic results across the state."
The agreement maintains a long-held understanding that compensatory mitigation can be especially difficult in Alaska, which is home to 174 million acres of wetlands covering 43 percent of the land area.
As such, while regulations require developers to avoid wetlands and minimize impacts to them, the new agreement still acknowledges that doing so may be impossible in some areas of Alaska where wetlands are abundant and pristine.
In response, the agreement includes options the Army Corps and developers can use to satisfy mitigation requirements in areas where wetlands are mostly untouched.
For example, while current regulations require mitigation to occur in the same watershed where wetlands or streams are destroyed, the new agreement notes that the term watershed can be somewhat subjective.
Like concentric circles, watersheds can be located within larger sub-basins and basins, and each watershed can contain multiple subwatersheds. So a project located on Alaska's Chena River, a tributary to the Yukon River, is located within both the Chena River watershed and Yukon River watershed.
In its permitting, the Army Corps Alaska District had been artificially constraining the size of the watershed where projects occurred in order to determine that there were no mitigation opportunities.
The new agreement, however, says that when there are no mitigation opportunities in the immediate watershed where a project is located, the mitigation opportunities should be sought in the larger watersheds or basins.
The agreement also clarifies that "out of kind" mitigation — where offsets do not exactly match to impacts — is allowed in order to help restore watersheds. So, for example, if a project destroys wetlands in a watershed where most other wetlands are pristine but where a nearby stream is damaged, the Alaska District could allow a developer to restore the stream to compensate for wetlands losses.
Both the use of larger watersheds and "out of kind" mitigation are already allowed under current regulations in cases where other more local, in-kind options are not available. The new memorandum clarifies that it applies in Alaska, too.
The new agreement also clarifies that mitigation projects are allowed on federally and state-owned land in some cases, and that developers of projects near public land can explore those options.
James said in a statement that the agreement "provides a commonsense approach to [compensatory mitigation] in Alaska given its abundance of wetlands and other unique circumstances."
"The guidance is consistent with existing regulations and offers reasonable opportunities for restoring those areas in most need of improvement," he said in a statement.
Reaction on the Hill
Alaska's congressional delegation applauded the agreement, including Sen. Lisa Murkowski (R-Alaska), who put pressure on the corps Alaska District in 2014 and 2015, prompting the district to develop internal compensation policies that severely decreased mitigation rates in Alaska during the past three years.
Murkowski, who, in pushing for less mitigation, has said she wants requirements to be predictable, called the agreement "an important step toward a consistent and meaningful mitigation policy for Alaska," and noted that it does not technically change mitigation requirements in the state.
"I appreciate the assurance the agencies have given us that this new framework will not simply increase the amount of mitigation that is being required or place new rules on small projects that don't currently require mitigation," she said in a statement. "Instead, this will allow mitigation dollars to be used where they are most needed and to address real environmental needs."
This week, Army Corps Deputy Assistant Secretary Ryan Fisher and EPA Office of Water Deputy Assistant Administrator Lee Forsgren will be in Alaska to discuss mitigation with officials from the Alaska District, third-party providers and developers.
Forsgren's former boss is Alaska Rep. Don Young (R), who, throughout his congressional career, has pushed for federal compensatory mitigation regulations to include special loopholes and exemptions for Alaska (Greenwire, May 31).
Young said in a statement that the new agreement shows that Pruitt and James "understand the challenges that Alaska faces with wetland mitigation."
"Wetlands are critical to the environmental health of Alaska and wetland mitigation is an important consideration to responsible resource development, however, in a state like mine that is home to 63 percent of the nation's wetland ecosystems, this means mitigation needs to look different than it does in other areas of the country," he said.