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Should Alaska take over wetlands regulation from Feds?

Pat Forgey

Alaska wants to find out if it can spur more development by taking over from the federal government the job of wetlands regulation, promising that the state won't weaken those rules.

Gov. Sean Parnell wants to handle wetlands permitting better by speeding up the application and approval process, said Department of Natural Resources Commissioner Dan Sullivan.

"It's not about cutting corners, it's about making our permitting more timely, efficient and certain," Sullivan said.

To accomplish that, the state would have to assume "primacy," taking responsibility from the federal government for regulating wetlands under the federal Clean Water Act. Senate Bill 27, passed during this year's legislative session and awaiting Parnell's signature, would begin a multi-year study to do that.

Some legislative opposition came from Democrats who questioned expanding state government, and environmental groups that feared it would weaken protection for wetlands.

Roberta Highland of the Homer-based Kachemak Bay Conservation Society said her group "feels this is yet another attempt of the governor to permit irresponsible resource development of Alaskan wetlands."

Studying what it would take to assume primacy is estimated to cost about $1.8 million a year for five to six years, said state officials.

The decision to move forward with the study came despite calls early in the session to reduce the size of government, which Senate Finance Committee co-chair Pete Kelly, R-Fairbanks, described as "exploding" in recent years.

The decision to hire more bureaucrats to study the issue came even as lawmakers rejected calls to increase the Base Student Allocation, the per-pupil amount school districts receive from the state every year. The Alaska Legislature also voted to slash oil taxes, deepening the amount by which it will have to dip into savings to fund state government.

Costs and benefits

If the state eventually chooses to adopt primacy, that means state regulators working for the Department of Environmental Conservation (DEC) would issue wetlands fill permits in Alaska, instead of regulators working for the U.S. Army Corps of Engineers, which handles that task now.

Assuming primacy for wetlands permitting means the state would pick up the costs for the job now handled by the feds. To Parnell, who proposed the expansion of state authority, the cost is worth it.

"Alaskans have the right to have a say over regulation of our own resources including land and water," he said.

While the state would take over permit issuance, the laws protecting wetlands are federal laws that would remain in place and would be used by the DEC to determine permitting decisions.

State Attorney General Michael Geraghty told legislators that not only would the federal laws remain in place, but that for the state to be granted primacy it would have to prove to the feds that it would do just as good a job as Army Corps of Engineers does in enforcing Section 404 of the federal Clean Water Act, which protects wetlands.

The state program cannot be less stringent than the federal program, Geraghty said.

For some fiscally conservative Republicans, that was too much cost for too little benefit.

Rep. Alan Austerman, R-Kodiak, and a co-chair of the House Finance Committee, said it would be an expensive process just to develop the regulations and framework that Alaska would use to implement primacy, which over the several-year process he estimated would cost $11.5 million, though it might be done for less.

"It makes me a little nervous that we we're going to spend that kind of money and not know what we're going to get out of it at the other end," Austerman said.

Rep. Andy Josephson, D-Anchorage, is questioning why the state is spending money now on a study and looking to spend even more later to do something that's already being done by the federal government.

"Arguably it's just a couple of million dollars (per year), but given that the federal government does it for free it doesn't make sense to do it," he said.

The Corps has about 50 employees in Alaska regulating wetlands fill permitting, but the state wouldn't necessarily do all the tasks they do now. Wetlands that are part of navigable waters would remain a federal responsibility, for instance.

Sen. Lyman Hoffman, D-Bethel, questioned the size of the task Alaska was seeking to assume, given that 65 percent of the nation's wetlands are in Alaska.

Department of Environmental Conservation Commissioner Larry Hartig said the study would cost less than $2 million per year for several years, but it would be much more later to actually run the program.

"It would be a big jump," he said. "How big, I don't know."

Hartig said much more information would be known by 2016. The full study might take five or six years, he added.

One of the stated reasons for seeking primacy was to speed up the permitting process, and that might take more staff.

Rep. Eric Feige, R-Chickaloon, said the cost to explore primacy was easily worth it to the state.

"Ten million dollars is nothing when it is a billion-dollar project that gets delayed," he said. "That's a billion-dollar project for our economy, not just the state government."

But Josephson is questioning the value to the state, given the cost.

"We'd have to hire a bunch of new DNR officials, and by the way this is just to study the opportunity to take over the wetlands function," he said.

Swifter decisions, higher fees?

Rep. Cathy Muñoz, R-Juneau, said that had the state already had primacy, it would have sped the development of the Kensington Mine, which took a U.S. Supreme Court decision to allow it to dispose of its tailings in a lake.

"This particular permit was issued by the Corps of Engineers and was litigated all the way to the U.S. Supreme Court," she said. "Had the state had control of 404 permitting of that facility, the litigation would have occurred in state court and I think there would have been a much more expeditious result."

Information provided by the Parnell administration said that under primacy, the state would probably raise fees for most permits, but they'd go down substantially for large projects.

"Primacy is going to cost a lot of money, we have a lot of wetlands," said Rep. Scott Kawasaki, D-Fairbanks. "It's the little guy who is going to be hurt the most by this, (as) this transfers costs to them."

Hartig acknowledged the state would seek to pass on the costs to those seeking permits. There would be other savings, however, such as fewer agencies for permit applicants to deal with, he said.

Following passage of Senate Bill 27 in both houses of the Legislature, with largely Republican support, the bill now needs only Parnell's signature to become law.

Contact Pat Forgey at pat(at)alaskadispatch.com