In the U.S. Congress, opportunities for true bipartisan problem solving appear to be far too rare. Recent developments in federal Clean Water Act wetlands permitting have provided a unique opportunity for bipartisan reform, and our Alaska delegation should help lead the charge.
The federal Clean Water Act requires permits for dredge and fill of “jurisdictional wetlands.” Over half of Alaska lands are considered wetlands, with Alaska boasting more wetlands than the entire Lower 48 states combined. In Alaska, virtually any activity from building roads, schools, homes, churches, mines, oil and gas facilities, docks, and harbors require Clean Water Act permits, called “Section 404” permits. The U.S. Army Corps of Engineers issues these permits, but the Environmental Protection Agency (EPA) reserves the authority to determine specific wetland areas that are not suitable for disposal of fill.
Section 404 permits for major projects require a full Environmental Impact Statement (EIS), an exhaustive review of the direct, indirect, and cumulative impacts of the project. While cumbersome and time consuming, this thorough process has served to allow Alaska to move forward and develop the infrastructure and economy we have today. Lesser projects may require an Environmental Assessment.
The EPA, under the Obama administration, has turned decades of 404 permitting on its ear. In a case in West Virginia, it retroactively eliminated close to 90 percent of a coal mine’s fill disposal areas, which had been approved. In spite of efforts by RDC, 27 states (including Alaska), and a host of concerned stakeholders from home builders, manufacturers, and other job-creating industries, the U.S. Supreme court has refused to rehear a court case challenging the EPA’s ability to retroactively veto a valid 404 permit. So unless Congress steps in, permit holders now are at risk of having their lawful permits revoked at the whim of the EPA.
Here in Alaska the EPA is embarking on an unprecedented effort to condemn state mineral resources in the Bristol Bay region worth billions of dollars before a mine plan or permit application has even been filed. Irrespective of your views on Pebble, the EPA should not have the authority to preemptively condemn projects before they apply for permits, make their development and mitigation plans known, and conduct an EIS.
The EPA’s recent preemptive and retroactive approach to 404 puts a cloud of uncertainty on any project impacting wetlands. It will serve to discourage investment in Alaska, and could put a chilling effect on projects big and small, given the ubiquitous wetlands in Alaska and the need for 404 permits for most activities.
Fortunately, there is a bipartisan effort in Congress to restore the 404 program back to what the record shows was the original intent of Congress. In a simple three-page bill sponsored by Senators Manchin (D–WV) and Vitter (R–LA), the authority of EPA to restrict specified fill disposal areas is limited to the project stage where the 404 permit is evaluated, after a 404 permit has been applied for, and before a final permit is issued. The existing rules for enforcement and revocation for non-compliance would remain unchanged; the permits conditions would remain enforceable.
Senator Murkowski signed on to this bipartisan effort and Senator Begich should build upon it as a cosponsor and encourage his colleagues to do the same. Reaching out to senators from the list of 27 states that encouraged the Supreme Court to reconsider the legality of the EPA’s retroactive permit veto authority would be a great place to start. When a companion bill arrives in the House, we trust Congressman Young will join the effort to achieve consensus.
What a great opportunity for our congressional delegation to reach across the aisle to bring back some certainty to the 404 permitting process.
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