Legislature(2023 - 2024)BUTROVICH 205
02/27/2023 03:30 PM Senate RESOURCES
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| Audio | Topic |
|---|---|
| Start | |
| Presentation: Continuation of the Overview of the Section 404 Feasibility Study | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
February 27, 2023
3:30 p.m.
MEMBERS PRESENT
Senator Click Bishop, Co-Chair
Senator Cathy Giessel, Co-Chair
Senator Bill Wielechowski, Vice Chair
Senator Scott Kawasaki
Senator James Kaufman
Senator Forrest Dunbar
Senator Matt Claman
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
PRESENTATION(S): CONTINUATION OF THE OVERVIEW OF THE SECTION
404 FEASIBILITY STUDY.
- HEARD
PREVIOUS COMMITTEE ACTION
See the 2/13/2023 Senate Resources Committee minutes
WITNESS REGISTER
JASON BRUNE, Commissioner
Department of Environmental Conservation (DEC)
Juneau, Alaska
POSITION STATEMENT: Provided information about the 404 Primacy
Feasibility Study.
SHANNON MILLER, Program Manager
Division of Water
Department of Environmental Conservation (DEC)
Anchorage, Alaska
POSITION STATEMENT: Participated in the overview and answered
questions about the 404 Primacy Feasibility Study.
JULIE PACK, Assistant Attorney General
Environmental Section
Civil Division
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Participated in the overview and answered
questions about the 404 Primacy Feasibility Study.
ACTION NARRATIVE
3:30:52 PM
CO-CHAIR CLICK BISHOP called the Senate Resources Standing
Committee meeting to order at 3:30 p.m. Present at the call to
order were Senators Dunbar, Kaufman, Claman, Wielechowski, Co-
Chair Giessel, and Co-Chair Bishop. Senator Kawasaki arrived
soon thereafter.
^PRESENTATION: CONTINUATION OF THE OVERVIEW OF THE SECTION 404
FEASIBILITY STUDY
PRESENTATION: CONTINUATION OF THE OVERVIEW OF THE SECTION 404
FEASIBILITY STUDY
3:31:28 PM
CO-CHAIR BISHOP announced the committee would continue the
overview of the Section 404 Feasibility Study.
He asked Ms. Miller and Ms. Pack to continue the overview.
3:32:20 PM
JULIE PACK, Assistant Attorney General, Environmental Section,
Civil Division, Department of Law, Anchorage, Alaska, directed
attention to slide 4 and said she wanted to address the concerns
the committee expressed about the way EPA's 404(c) veto power
interfaces with the state-assumed 404 primacy program.
1. The committee wanted to understand the mechanisms available
to stop a 404 permit that should not be issued, and
2. How often EPA has made use of the mechanisms.
3:33:50 PM
At ease
3:34:19 PM
CO-CHAIR BISHOP reconvened the meeting and noted that Senator
Kawasaki joined the committee some time ago.
MS. PACK repeated her previous statement for Senator Kawasaki
and continued to say the Department of Law was looking at the
language itself, absent a court interpretation. She noted that
she previously spoke about the 404(j) process for federalizing a
project and that it was a separate subsection from 404(c). Those
distinct subsections intersect when EPA uses its 404(j) power to
federalize a state permit. Federalization returns the permit to
the Corps of Engineers ("Corps") and Section 404(c) applies.
She conveyed to Senator Claman that regulation 40 CFR 233.20 (c)
clearly addresses the question he asked during the earlier
hearing about EPA's power to use 404(c) on a state issued
permit. She cited the following:
No permit shall be issued by the Director in the
following circumstances:
(c) When the proposed discharges would be in an area
which has been prohibited, withdrawn, or denied as a
disposal site by the Administrator under section
404(c) of the Act, or when the discharge would fail to
comply with a restriction imposed thereunder.
3:36:30 PM
SENATOR CLAMAN said EPA has not used its 404(c) authority very
often because some of the discharge situations might never arise
unless the state has assumed 404 permitting, and only three
have. Forty-seven states have not assumed 404 permitting so it's
no surprise that there have been no lawsuits.
MS. PACK agreed that there have been very few opportunities for
a court to opine on how 404(c) applies to a state-assumed
program.
She addressed EPA's 404 veto exercise in Bristol Bay this last
January. The 404 veto was issued to protect the anadromous fish
in the area, but it was finalized before the state's Title 16
permitting process was allowed to begin. She referenced Senator
Wielechowski's earlier point, and said the Department of Law
believes that the state's unique permitting process that was
specifically designed to protect anadromous fish should have
been taken into account before EPA issued the veto. When agency
staff flew to Washington, DC to discuss why the state's
permitting process wasn't considered, they were met with
silence.
MS. PACK said her final point is that the legislature has power
under the Bristol Bay Forever Initiative to veto Pebble Mine
specifically. That will be entirely unaffected by the 404
assumption program.
3:39:20 PM
MS. PACK reviewed slides 5 and 6.
Clean Water Act
Section 404
• Regulates the discharge of dredged or fill
material into Waters of the United States (WOTUS)
Examples of Activities Requiring 404 Permits
• Site improvement fill for residential,
commercial, or recreational development
• Construction of revetments, breakwaters, levees,
dams, dikes, and weirs
• Placement of riprap and fill material for roads,
airports, or buildings
• Resource development projects
CO-CHAIR BISHOP asked for confirmation that a dredge and fill
permit was specifically for backfill in wetlands.
MS. PACK said the backfill of wetlands does trigger a 404
permit, but other waters such as streams and tributaries also
require a 404 permit.
CO-CHAIR BISHOP asked if a specific de minimis amount of fill or
size of land or water would be exempt from the 404 requirements.
MS. PACK replied there are exemptions but none were based on the
size of land or waters of the United States to be filled. She
mentioned Sackett v. Environmental Protection Agency that went
before the US Supreme Court.
CO-CHAIR BISHOP asked whether a property owner could be
authorized by the state to go forward without a 404 permit if
they brought accredited science and analysis from a specialized
third-party engineering firm that indicated the land was not
wetland.
MS. PACK replied that is a current practice; consultants prepare
such reports and are submitted as a preliminary jurisdictional
determination. Only the Corps has the power to accept a report a
consultant submitted in lieu of a 404 permit.
CO-CHAIR BISHOP asked whether DEC would still have to get the
Corps' blessing on a permit if the state had assumed primacy.
MS. PACK answered that the state would make those jurisdictional
determinations if it had the program.
CO-CHAIR BISHOP asked whether an annual desk audit by EPA would
be required for the state to keep its primacy program.
MS. PACK answered that three mechanisms are written into the
statute regarding EPA oversight. One is that EPA gets a copy of
every permit and every significant jurisdictional determination,
so they are able to object. The second mechanism is that the
state is required to submit an annual report and EPA can use
that to audit the state. Third, EPA can withdraw the state's
program under another section of 404.
CO-CHAIR BISHOP asked who would defend the landowner if DEC
signed off on a permit under primacy and EPA didn't agree when
it looked at the annual report.
MS. PACK explained that EPA's opportunity to raise an objection
would be when it receives a copy of the permit. If EPA misses
the window to object, the state has the final say on the permit.
She noted that the one permit that was federalized in Florida
was specifically over the definition of WOTUS.
3:46:14 PM
SENATOR DUNBAR asked what EPA's determination was when it
federalized the permit in Florida.
MS. PACK explained that EPA's objection was specifically to
Florida's use of the old Trump rule to determine the extent of
WOTUS for a warehouse project in Florida.
SENATOR DUNBAR asked if she agreed that it wasn't wetlands
versus not wetlands; it was WOTUS versus not WOTUS.
MS. PACK answered that the technical analysis is whether it is
WOTUS and WOTUS can include wetlands but doesn't include all
wetlands.
3:48:07 PM
SENATOR WIELECHOWSKI asked how much time EPA has to review the
state's jurisdictional determinations.
MS. PACK explained that under Section 404(j), if EPA intends to
provide written comment about a permit application or proposed
general permit, it shall notify the state not later than the
thirtieth day after it received the permit application or
proposed general permit. At that point other agencies have 90
days to comment on the permit application or proposed general
permit. If EPA or another agency objects or 90 days has passed,
the state shall not issue the proposed permit if it has received
the written objections from EPA.
SENATOR WIELECHOWSKI asked if it was reasonable to expect that
developers would wait until after the ninetieth day to start a
project because they wouldn't know before then whether EPA was
going to object in writing.
MS. PACK said she wasn't sure because the state typically
resolves any EPA objection, and only a handful of permits have
been federalized. She offered to look into the matter and get
back to the committee with the information.
SENATOR WIELECHOWSKI said the information would be helpful
because, depending on the time of the filing, a developer might
have to wait an entire season.
MS. PACK said it was a good point.
CO-CHAIR BISHOP asked Ms. Pack to send the information to the
committee and he'd distribute it to the members.
MS. PACK agreed.
3:51:32 PM
SENATOR CLAMAN referenced Co-Chair Bishop's example of an
analysis that said there were no waters of the United States and
the property owner could develop as they wished. He asked if
there was a problem today with the Corps approving those
applications and issuing permits timely.
MS. PACK asked him to restate the question.
CO-CHAIR BISHOP clarified that his example was specific to
wetlands, not WOTUS.
SENATOR CLAMAN said his question relates to somebody who wants
to develop their land without having to get a 404 permit. That
property owner gets a report that says the property has
moisture, but it is not WOTUS, so a 404 permit is not necessary.
He asked if there are problems today with the Corps timely
ruling on those requests.
3:53:33 PM
MS. PACK deferred the question to the regulated community and
the DEC team because that wasn't in her knowledge base.
SENATOR CLAMAN referenced the earlier discussion with Senator
Dunbar about the Florida lawsuit. He asked if the core of the
question was that Florida believed it could use old regulations
that applied to the Trump definition of WOTUS and the current
administration disagreed saying that the state had to use the
current definition of WOTUS.
MS. PACK said the crux of the question was which rule applies
and the issue was technical and procedural. Under the 404 rules,
the state has one or two years to update its regulations to
comport with the changes in federal law. Florida and EPA took
different positions on whether a court vacatur of the Trump rule
constituted a change in federal law. The issue is moot because
the required amount of time has passed.
3:55:32 PM
CO-CHAIR GIESSEL asked where permafrost fits in the definition
of WOTUS.
MS. PACK said Alaska's view is that it was not addressed in the
proposed rule, but permafrost should and sometimes does act as a
shelf. If there is a WOTUS test based on connectivity,
permafrost could inhibit the connection of water sitting on top
of the permafrost shelf and create wetlands. Under the current
wetland definition, that land would test positive for a wetland
but not result in connectivity between the wetland that is at
the top of permafrost and a traditionally navigable water. She
said this is unclear and the state commented on that in 2022.
3:56:36 PM
SENATOR DUNBAR asked whether Michigan and New Jersey have issued
permits appreciably faster since they assumed the program.
3:57:31 PM
SHANNON MILLER, Program Manager, Division of Water, Department
of Environmental Conservation (DEC), Anchorage, Alaska, said
that question is outlined in the feasibility report and she
would follow up in writing with the details.
3:58:05 PM
SENATOR KAWASAKI referenced Senator Giessel's question and asked
if the state, not EPA, would have to permit activities on
permafrost if the federal government were to recommend that
permafrost is considered wetland that is guided by WOTUS.
MS. PACK said she wasn't sure because such a recommendation
would not have gone through the required public notice and
comment period. But similar to Florida, it might be a question
of whether that was a change in federal law and whether Alaska
would have one or two years to change its regulations to comply.
SENATOR KAWASAKI asked if EPA had imposed additional
requirements on issuing permits since the state assumed 402
primacy.
MS. PACK deferred the question to DEC.
SENATOR KAWASAKI said he was wondering about the wisdom of
assuming primacy when there were many unanswered questions.
4:00:01 PM
MS. PACK discussed the legal landscape as outlined on slides 7-
9:
• Clean Water Act (CWA)(1972)
• "Navigable Waters" - Waters of the United States
(WOTUS)
• Defines scope of CWA coverage
• Challenging
• Frequently changing
• 2015 Obama Administration (Clean Water Rule)
• 2020 Trump Administration (NWPR)
• 2023 Biden Rule
• Sackett v. EPA
She reminded the committee of Ron Opsahl's explanation that
Congress has inartfully used navigable waters in multiple
contexts, one of which was this. For this purpose, navigable
waters are defined as WOTUS, and WOTUS defines the extent of the
jurisdiction.
4:01:22 PM
MS. PACK continued to slide 8.
• CWA 404(g) State administration of 404 program
over certain waters
• Congress's intent (CWA 101(b))
• How much does the State get to assume?
• State = "Assumable Waters"
• Corps = "Retained Waters"
• Defined by parenthetical in 404(g)
• Federal guidance to clarify
• Takeaway?
• State gets majority of wetlands when it assumes
the program
MS. PACK referenced the point Senator Claman made several weeks
ago, and explained that part of the reason that 47 states have
not assumed the program relates to the complexity and confusion
between assumed waters and retained waters.
4:02:42 PM
MS. PACK continued to slide 9.
• 404(g) State administration
• (1) The Governor of any State desiring to administer
its own individual and general permit program for
the discharge of dredged or fill material into the
navigable waters (other than those waters which are
presently used, or are susceptible to use in their
natural condition or by reasonable improvement as a
means to transport interstate or foreign commerce
shoreward to their ordinary high water mark,
including all waters which are subject to the ebb
and flow of the tide shoreward to their mean high
water mark, or mean higher high water mark on the
west coast, including wetlands adjacent thereto)
within its jurisdiction may submit to the
Administrator a full and complete description of the
program it proposes to establish and administer
under State law or under an interstate compact. In
addition, such State shall submit a statement from
the attorney general (or the attorney for those
State agencies which have independent legal
counsel), or from the chief legal officer in the
case of an interstate agency, that the laws of such
State, or the interstate compact, as the case may
be, provide adequate authority to carry out the
described program.
MS. PACK said many states have identified the bolded language in
paragraph (1) as lacking in clarity and a stumbling block for
many states. In 2015 the Obama Administration EPA created a
workgroup to look at the matter. In 2017 the group issued a
report and recommendation. The US Army Corps of Engineers
adopted the recommendation in 2018. In January 2023, EPA
affirmed that it would use the memo as a starting point for
determining which waters are retained by the Corps and which
waters are assumable by the state. The recommendation was to
start with the Section 10 Rivers and Harbors list of waters. In
Alaska that is 47 rivers and adjacent wetlands. In this context
it proposes to define adjacency as 300 feet from the ordinary
high water mark of the Section 10 waters. Alaska anticipates
using that as a starting point, just as Florida did and was
successful.
4:04:12 PM
MS. PACK directed attention to the state map on slide 10 that
illustrates in blue the waters the Corps would retain under a
state-assumed program. Areas that would not be under state
authority include all the coastline, Denali National Park,
Metlakatla, and the Port of Alaska.
SENATOR CLAMAN asked whether the blue on slide 10 includes the
47 rivers she mentioned earlier.
MS. PACK answered in the affirmative.
SENATOR CLAMAN asked if the Corps' jurisdiction on any one of
those waters would be 300 feet upland from the ordinary high
water mark on both sides of the river.
MS. PACK said that's the concept, although the geography of an
area would call for more or less and that would be determined in
the MOU between DEC as the state and the US Army Corps of
Engineers.
SENATOR CLAMAN asked for confirmation that if the state were to
assume primacy, it would only be assuming the areas that are not
under the Corps' jurisdiction.
MS. PACK said that's correct.
CO-CHAIR BISHOP asked for an explanation of the 300 foot high
water mark.
MS. PACK said the 2017 memo asked how much area on either side
of a navigable in fact water is needed to ensure the Corps can
meet its mission to promote and protect navigability. Based on
legislative history and technical sources, 300 feet was
identified as a starting point.
CO-CHAIR BISHOP asked if the 300 feet keeps moving as erosion
eats away at the Tanana River bank each summer.
MS. PACK said it's a case-by-case determination.
MS. PACK directed attention to the state map on slide 11 and
explained that the green shows the approximate location of
wetlands over which the state would have jurisdiction if it were
to assume primacy under the current definition of WOTUS.
4:08:40 PM
MS. MILLER added to the discussion about Alaska's landscape and
why it was important to assume the 404 program. She made the
following points:
similar About 174 million acres or 43 percent of the state is
wetlands.
similar Alaska has two-thirds of the nation's wetlands.
similar The state needs to work with federal partners to make an
Alaska-specific program.
similar DEC has been given the directive to take the necessary steps
to assume the program.
similar Last year DEC asked the legislature to fund the primacy
program.
similar Instead, DEC was granted $1 million to draft a feasibility
report.
similar DEC issued a request for proposal (RFP) to draft a road map
for getting to program assumption. It read:
• Request for Proposal Language:
"The consultant will research, develop, and publish
a persuasive and factual feasibility report for
assumption of CWA §404 permitting in Alaska. The
intended audience of the report is the Alaska
Legislature and should clearly and effectively
communicate the advantages and benefits of an
Alaska-run dredge and fill permitting program."
4:10:26 PM
SENATOR WIELECHOWSKI asked where in the budget language or
budget intent language it said to draft a persuasive feasibility
report.
MS. MILLER answered that DEC looked at the feasibility report as
the opportunity to look at how to get to program assumption.
SENATOR WIELECHOWSKI noted that the report to the legislature
directed the consultant to communicate just the advantages and
benefits of assuming primacy. He said he sees that lack of
balance as a fundamental flaw in the entire feasibility study.
It doesn't address that the program probably would be
prohibitively expensive, and that it could be why 47 states have
decided not to assume the program.
MS. MILLER responded that the feasibility study includes
technical, economic, legal, operational, and scheduling
information for program assumption. It identifies why and how
conclusions were reached and it cites both Alaska specific and
national resources. It includes information from other states
that have assumed the program, and it looks at the challenges
Alaska needs to address with those five components. DEC spoke
with the Corps and EPA and those agencies agreed with the
challenges that DEC identified and appreciated the approach
outlined in the report.
4:14:07 PM
SENATOR DUNBAR asked whether the consultant conferred with
states that had looked into assuming the program and decided
against it, and if that information was reflected somewhere in
the feasibility study.
MS. MILLER answered that DEC reached out and spoke to many
states, including Oregon, Nebraska, and Arizona, and they shared
their information. DEC also looked through the online resources
available from the National Association of Wetland Managers. It
has reports and some of the actions other states have taken.
SENATOR DUNBAR asked if those reports were included in the Jade
North report.
MS. MILLER answered yes; the issues identified in the report are
issues that were identified as hurdles for other states.
SENATOR DUNBAR asked if her use of the term "we," referred to
DEC or the consultant, Jade North.
MS. MILLER answered that DEC reviewed several drafts of
information from Jade North to ensure the consultant was on
point and that it filled any information gaps DEC identified.
4:16:26 PM
SENATOR CLAMAN said he didn't believe she answered Senator
Wielechowski's question about the legislature's direction to DEC
regarding the feasibility report. He noted that the commissioner
said DEC only does what the legislature directs it to do. The
direction from the legislature that's quoted on a slide says
nothing about getting a persuasive report, but DEC's request for
proposal was for a persuasive report. He asked, "Why did you not
follow the legislature's instruction to get an objective report;
why did you ask for a persuasive report?"
MS. MILLER responded that DEC believes it met the mark for
objectivity, and the feasibility report includes a statement of
the legislative intent language.
4:17:16 PM
SENATOR CLAMAN pressed the point that instead of following the
legislature's instruction to get an objective report, DEC issued
a request for proposal for a persuasive report. It cites just
three states that have looked at 404 assumption; Nebraska is
still looking and both Oregon and Arizona have abandoned the
idea. However, the Association of Water Resource Managers, which
is referenced in the report, identified 23 states that have
rejected assumption. The report mentions none of those, which is
clear evidence that the report is not objective.
He again asked how the decision to request a persuasive report
was made.
4:18:48 PM
MS. MILLER answered that the focus of the report was to assume
the program. The legislative intent language was vague and
because DEC received the directive in law to assume the program,
the agency thought it was important to have a feasibility study
that provided a roadmap for how to do that.
CO-CHAIR BISHOP pointed out that the request for proposal
language also directed the consultant to develop a factual
feasibility report. He asked Commissioner Brune or Mr. Bates to
weigh in.
4:19:33 PM
JASON BRUNE, Commissioner, Department of Environmental
Conservation (DEC), Juneau, Alaska, restated that DEC can do no
more or no less than what the legislature directs, so he looks
specifically at the language in the legislature's requests. He
cited the new paragraph (14) in the 2014 statute, Sec.
46.03.020(14) that read:
(14) notwithstanding any other provision of law,
take all actions necessary to receive federal
authorization of a state program for the department
and the Department of Natural Resources to administer
and enforce a dredge and fill permitting program
allowed under 33 U.S.C. 1344 (sec. 404, Clean Water
Act) and to implement the program, if authorized.
COMMISSIONER BRUNE opined that the directive to take all actions
necessary was very persuasive.
4:20:19 PM
SENATOR KAUFMAN mentioned risk management, and asked whether the
feasibility report had a section that identifies the risks
associated with assumption of the 404 program.
MS. MILLER answered yes; each particular type of activity
includes a brief analysis of the challenges and what must be
addressed to meet those challenges.
4:21:03 PM
MS. MILLER turned to slide 16 that shows the cover page of the
"Clean Water Act Section 404 Dredge and Fill Program Assumption
Feasibility Report" that consultant Jade North, LLC prepared for
DEC. She conveyed that Jade North was comprised of individuals
who had retired from state service and the US Army Corps of
Engineers. She highlighted that DEC also hired Baker Botts as
outside counsel; it was the law firm that assisted Florida in
its program assumption. She said the consultants were asked to
help DEC develop a roadmap to get to program assumption.
4:21:47 PM
MS. MILLER continued to slide 17 to discuss the benefits of
permit streamlining.
Benefit:
Permit Streamlining
• Opportunities for permit streamlining
• Eliminating the 401 certification
MS. MILLER explained that Section 401 of the Clean Water Act
authorizes a state to certify that water quality standards are
being met under a Section 404 Corps-issued permit. If the state
were to assume the program, it could do away with the 401
certification because the information would be captured in the
404 permit. The 401 certifications would still be required in
the Corps-retained waters.
4:23:30 PM
CO-CHAIR BISHOP asked if the number of pages in the 401
certification would be reduced if the state were to assume
primacy.
MS. MILLER said she didn't know but the Corps and the state need
to have the same information, so the application process is the
same for both.
MS.MILLER continued to discuss permit streamlining.
• Greater use of General Permits
• Coordination with other project permits
• More use of Alaska-specific policies and procedures
• Ability to tailor policies and procedures to
Alaska's unique conditions
4:26:03 PM
MS. MILLER advanced to slide 18, Benefit: Mitigation Flexibility
& Alaska's Water Quality Priorities, and discussed the
following:
• Under 404 assumption, Alaska may be able to
address our clean water priorities
• Examples might include:
• Cleanup of orphaned contaminated sites
• Replace perched culverts
• Cleanup of tundra pond trash disposal sites
SENATOR WIELECHOWSKI asked if she agreed that the state could
already do the things she cited under EPA monitoring of the 404
program.
MS. MILLER answered yes, and EPA was very supportive when DEC
said it wanted more flexibility to address site cleanup
possibilities under a state-assumed program.
SENATOR WIELECHOWSKI asked if she agreed that EPA had allowed
more flexibility on the Ambler Road and Donlin Gold projects.
MS. MILLER said alternatives have been allowed, but not to the
extent that DEC would like. She deferred to Ms. Pack to address
the Donlin Gold project.
MS. PACK said she did not have the specifics of the Donlin
mitigation requirements, but she would follow up in writing with
the information.
CO-CHAIR BISHOP asked her to send the information to his office
and he would distribute it to the members.
SENATOR WIELECHOWSKI asked if she agreed that if the state were
to assume primacy, it could not create new compensatory
mitigation options without either complying with the Clean Water
Act or securing EPA approval.
MS. PACK said that's correct. DEC cannot do anything that is
contrary to the Clean Water Act or the 404(b) guidelines.
Anything DEC promulgates would have to be equivalent.
4:30:49 PM
SENATOR CLAMAN said he'd also like an update on the Ambler Road
to see the mitigation that was approved for that project.
CO-CHAIR BISHOP commented that slide 18 highlights that the
state wants to clean up contaminated sites on federal land
within the state faster than the federal government has been
doing.
MS. PACK confirmed that this was a tool the state could use to
clean up contaminated sites throughout the state, including
federal land.
4:32:15 PM
MS. MILLER advanced to slide 19 to discuss the benefits to
Alaskans under a state-assumed program:
Benefit:
Accountable to Alaskans
• State government agencies are more accessible to
Alaskans than federal agencies
• A State-run program is accountable to Alaskans and
the legislature
• Increased control over our environmental and
economic future
SENATOR WIELECHOWSKI cited the feasibility study and asked if
she agreed that there was no legal obligation for tribal
consultation.
MS. MILLER answered that DEC tries to meet with tribes early in
the process to discuss projects the department is working on. To
that end, Commissioner Brune meets quarterly with regional
corporations. DEC envisions the 404 authorizations would have a
tribal engagement plan that's similar to the 402 authorizations
to ensure that all stakeholder voices are heard.
SENATOR WIELECHOWSKI asked whether DEC had ever denied a request
for consultation with tribes.
MS. MILLER answered that she didn't have an answer.
SENATOR WIELECHOWSKI asked if she would follow up with an
answer.
MS. MILLER agreed to do so.
SENATOR WIELECHOWSKI asked if she was saying that the DEC
consultation guidance document was equivalent to the federal
consultation process for tribes.
MS. MILLER responded that the department has an established
process to work with tribal partners to understand their
concerns about projects DEC proposes.
SENATOR WIELECHOWSKI requested a yes or no answer.
CO-CHAIR BISHOP recognized Commissioner Brune.
COMMISSIONER BRUNE answered no; during his tenure DEC had never
denied a meeting with a tribe, regional corporation, or village
corporation. He also clarified that DEC was prohibited from
having the same relationship with tribes that the federal
government has. However, what was required in the 402 permit and
will be required in the 404 permit is to establish a policy that
addresses the needs of indigenous people. Tribal liaisons reside
within the Division of Water and the Commissioner's Office, and
there is a new process for regular meetings with tribes and
regional and village corporations to ensure those voices are
heard early and become part of the decision-making process.
4:37:20 PM
SENATOR WIELECHOWSKI asked whether DEC would support returning
to a coastal zone management program that would establish a
formal consultation process.
COMMISSIONER BRUNE said he couldn't speak to the Dunleavy
administration's intention, but if the ACMP were re-implemented,
DEC would incorporate it into the current program.
SENATOR CLAMAN asked why DEC was prohibited from having the same
relationship with tribes that the federal government has.
COMMISSIONER BRUNE answered that lawyers have told him that
state law does not allow a similar government-to-government
relationship between tribes and the state as the federal
government enjoys. He offered to confer with the Department of
Law and follow up with a more specific answer.
SENATOR CLAMAN commented that tribes would never be on the same
footing with state government as they are with the federal
government.
COMMISSIONER BRUNE responded that those entities would still
have the authority to request consultation with the federal
government.
4:40:12 PM
CO-CHAIR BISHOP asked whether a village corporation would apply
to the state or federal government for a permit to fill five
acres of wetland on their property for a woodlot.
MS. PACK explained that EPA's definition of Indian Country
includes reservations but not corporations, so the hypothetical
village corporation would apply for a permit from the state. If
the state were to assume the program, EPA would still be
required to consult with tribes upon program approval and
reflect any articulated concerns and objections.
4:42:18 PM
MS. MILLER continued to slide 20 and discussed the following:
Benefit and a Challenge: National Environmental Policy
Act (NEPA) & Environmental Review
• In some cases, the State Program will not need to
conduct the federal NEPA process but
• Must be as stringent as 404(b)(1) guidelines
• Requires evaluation of impacts on the physical,
chemical, biological, and human use
characteristics of the aquatic environment and
special aquatic sites
MS. MILLER highlighted that before a permit is issued, the
evaluation must be conducted even if the NEPA process is no
longer required.
4:43:17 PM
SENATOR WIELECHOWSKI asked whether the state had a public
process to review potential damage to fish habitat or impacts to
fisheries that was equivalent to the NEPA process.
MS. MILLER answered that a 404 permit undergoes a public review
process and the fish habitat permit under Title 16 also requires
a public process.
SENATOR WIELECHOWSKI asked if it was equivalent to the NEPA
process.
MS. MILLER said she couldn't speak to whether it was equivalent.
MS. PACK added that the NEPA process is only triggered under
three circumstances: 1) issuance of a federal permit; 2) the
project has federal funding; or 3) the project is on federal
land. The state does not need an equivalent process for the
projects that do not trigger NEPA.
4:45:12 PM
SENATOR CLAMAN asked under what circumstances NEPA would not
apply.
MS. PACK answered that the subset of projects under discussion
are those where the only federal nexus is the permit issued by
the Corps. When that trigger is removed and neither of the other
two triggers are met, the NEPA process is not required.
MS. MILLER mentioned other authorizations that may be required
for a project on state land including a best interest finding to
analyze aquatic and biotic impacts and an air permit that
analyzes impacts a project may have on air. She also pointed out
that NEPA is a process, not a permit.
4:47:53 PM
MS. MILLER advanced to slide 21, Challenge: Clarifying
Federal/State Responsibilities, and agreed with Ms. Pack that
since the Corps will retain jurisdiction over some waters, DEC
and the Corps will need to work together to ensure that the
boundaries are clear among agencies, stakeholders, and future
permittees.
CO-CHAIR BISHOP asked whether those administrative boundaries
should be codified in statute.
MS. MILLER suggested addressing jurisdictional boundaries in
regulation so it's easier to update when a water body changes.
She continued that the state and Corps will agree on the
boundaries through a memo that is part of the program
application to EPA. Any changes will be updated and shared with
EPA as the overseeing authority.
4:49:23 PM
SENATOR DUNBAR referenced slide 24 and asked how DEC determined
that 25 percent of the permitting responsibilities would remain
with the Corps.
MS. MILLER answered that it depends on the type of action that
takes place but it's generally based on the 47 retained water
bodies that have a 300 foot adjacency boundary on either side.
4:50:41 PM
SENATOR CLAMAN asked if she agreed that he would need to get a
permit from the Corps for a placer mining operation on the
Nenana River because it would be on waters of the United States.
MS. MILLER confirmed that was accurate.
MS. MILLER continued to say that the state will need to work
with federal agencies to identify the federal and state
responsibilities and ensure it's clear to stakeholders and
future permittees.
CO-CHAIR BISHOP asked if the state and Corps would review the
memorandums of agreement (MOA) every few years to look at what
was and was not working.
MS. MILLER answered that once an MOA is drafted, it's good until
it needs to be updated.
SENATOR WIELECHOWSKI asked if there would still be protections
for cultural and historic resources under the National Historic
Preservation Act.
MS. MILLER replied that is essential.
SENATOR CLAMAN asked why anyone should think that jurisdiction
and WOTUS will be settled in the two years allocated for the
application process when the question of which waters are WOTUS
has been ongoing since statehood.
4:53:30 PM
MS. PACK said the debate has only been ongoing since the Clean
Water Act was enacted in 1972, but the point is taken. She
continued that many people are hopeful that the US Supreme Court
decision, which is expected by June, will add clarity. Second,
states like Michigan and New Jersey have extended their programs
beyond WOTUS so the instability associated with the changing
definition of WOTUS isn't reflected in their permitting
programs. Finally, when the state is issuing jurisdictional
decisions it can ensure that the discretion is applied
consistently, regardless of changing administrations.
4:55:09 PM
MS. MILLER turned to slide 24, and spoke to the following:
Workload & Staffing Analysis
• Alaska could assume approximately 75% of the Corps'
permitting responsibilities
• Approximately 581 actions per year
• 32 FTE = 18 actions/FTE/year
• Corps completed 775 actions/year
• Over a 5-year period (2017-2022)
• 48 FTE = 16 actions/FTE/year
SENATOR DUNBAR said he continues to think that this might be an
underestimation of cost and the number of full time equivalent
(FTE) positions that will be required. Not all actions are the
same and the state will be taking on the more marginal cases
that need a determination, which will be more time consuming and
expensive.
4:57:19 PM
MS. MILLER responded that the feasibility report has a chart
that compares what the state would assume versus what the Corps
would retain. She offered to provide that information separately
or point out its location in the feasibility report.
SENATOR DUNBAR asked to what degree of certainty the consultants
concluded that the state would be taking on either the
equivalent or easier case actions.
MS. MILLER answered that DEC worked with and obtained the
information directly from the Corps and then did a desktop study
of where the actions would be located. This too was in the
feasibility report.
SENATOR DUNBAR asked if there was an analysis of the time the
state actions would take relative to the actions the Corps would
retain.
MS. MILLER said that analysis was completed.
She continued to slide 25 and spoke to the following:
Cost Analysis
• Program development (two years) FY 2024-2025
• FY2024:
• $4,964.0 ($4.9 million)
• 28 FT Positions in FY 24
• Training, equipment, and travel
• Legal consultation, regulations development
• Coordination with agencies
• Assumption application development
• FY2025
• Anticipates four additional positions
• Approx. $4,700.0 9$4.7 million) in FY 25 &
beyond
5:00:35 PM
SENATOR CLAMAN asked why the legislature should have any
confidence in a report that suggests Alaska could assume the
relatively large 404 program with a fairly small number of staff
when all three states that assumed primacy grossly
underestimated their staff needs.
MS. MILLER pointed out that slide 24 identifies the Corps as
having 48 full time employees to run the full program. She said
DEC believes that 32 full time employees is appropriate.
CO-CHAIR BISHOP commented that she was saying that state
employees are more efficient that federal employees.
MS. MILLER responded that DEC was looking at capitalizing on the
general permits.
CO-CHAIR BISHOP noted that was something the federal government
couldn't do.
5:02:43 PM
MS. MILLER advanced to slide 27 and reviewed the following:
Next Steps to Assumption
• Obtain funding & hire staff
• Prepare application to EPA
• Submit final Q1 2025
• Program approval mid-late 2025
SENATOR WIELECHOWSKI cited a March 27 2019 communication from
Commissioner Brune and two other commissioners regarding a
January 30, 2019 letter from a Native council requesting
consultation regarding the Donlin Gold project. The
commissioners' letter mentioned that Senator Lyman Hoffman
advised the commissioners of the council's concerns regarding
the state permitting process for this project and requested they
illustrate the steps the agency had taken to protect the
resources in the region. The commissioners' letter then said:
We respectfully decline your request to establish an
ongoing relationship of government-to-government
consultation between our agencies and the tribes of
the Yukon Kuskokwim Delta region regarding the project
beyond the already significant and ongoing public
notice and comment processes. Government-to-government
consultation is a federal process. State law requires
that agencies undertake an open public process that
treats all interested parties equally. Adequate
opportunities exist for meaningful engagement to occur
through multiple public notice and comment periods for
state authorization where appropriate.
CO-CHAIR BISHOP asked Senator Wielechowski to share the
communication with his office so he could distribute it to the
rest of the committee. He then offered Commissioner Brune the
opportunity to respond.
5:05:34 PM
COMMISSIONER BRUNE stated that he and his team subsequently had
multiple meetings with the council, but those meetings were not
government-to-government.
5:06:48 PM
There being no further business to come before the committee,
Co-Chair Bishop adjourned the Senate Resources Standing
Committee meeting at 5:06 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Presentation - DEC 404 Overview (cont'd from 2.13.23).pdf |
SRES 2/27/2023 3:30:00 PM |
|
| Support Document DEC 404 Feasibility Report January 2023.pdf |
SRES 2/27/2023 3:30:00 PM |
|
| 03.06.2023 - DEC Response to 404 Questions.pdf |
SRES 2/27/2023 3:30:00 PM |
|
| TimeframeCorpsActions.FS.Appx.2.pdf |
SRES 2/27/2023 3:30:00 PM |