The Environmental Protection Agency (EPA) is seeking public feedback on a rule that will affect the permitting process for harmful projects in Alaska’s precious wetlands. For years, the Dunleavy Administration has been pushing for the State of Alaska to take over wetland development permitting from the federal government. If the Alaska legislature approves funding, it would initiate a process whereby the state Department of Environmental Conservation (DEC) would assume “primacy” from the federal Army Corps of Engineers (Corps) over permitting development activities that affect wetlands protected under section 404 of the Clean Water Act. This action would waste precious state money and erode vital Tribal consultation and environmental protections for wetlands.
Right now the federal Environmental Protection Agency (EPA) is accepting comments on a proposed rule governing state assumption of wetlands permitting. Alaskans have a unique opportunity to tell the EPA that state-run wetlands permitting would be catastrophic for Alaska’s wetlands. Click here to tell EPA to protect Tribal consultation and public process in decisions affecting Alaska’s wetlands.
If Alaska were to take over wetlands permitting, there would be myriad harmful consequences for Tribes, the public, and the environment, including:
Less Tribal consultation. 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. Alaska Native peoples have been lovingly tending Alaska’s wetlands since time immemorial. Currently, with federal primacy, the federal government 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. While Alaska is maintaining that it does and will consult with Tribes, the experience of Tribes who have been repeatedly requesting consultation and having those requests rejected belies this contention.
Less analysis and public participation. When the federal government permits a project, it is legally required to elicit public participation and analyze the environmental, cultural, and subsistence impacts of projects under several federal laws, including the National Historic Preservation Act (NHPA), the National Environmental Policy Act (NEPA), and the Alaska National Interest Lands Conservation Act (ANILCA). The NEPA analysis will no longer be required for wetlands if the state takes over permitting, which would remove an essential avenue for Tribal and public participation. It is not clear how NHPA and ANILCA analysis will occur under a state permitting regime.
Reduced ability to litigate bad decisions. In Alaska we have a loser pays rule for litigation. That means that in certain cases if a citizen brings a lawsuit in state court and loses on their claims, regardless how valid those claims are, the citizen will have to pay the attorneys’ fees of the other side. This rule significantly chills legitimate public interest litigation, including any potential litigation challenging unlawful wetlands permits.
Easier to push through unpopular development. The State of Alaska 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 EPA, Alaska will attempt an end-run around both to permit the Pebble Mine.