EPA And USACE Clarify Guidelines For Wetland Mitigation In Alaska

On June 18, 2018, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (USACE) clarified their guidelines for when offsets are required for wetlands impaired by development on the Last Frontier. The new policy recognizes the uniqueness of Alaska for wetlands permitting, by allowing alternatives and flexibility related to compensatory mitigation as Alaska is home to 174 million acres of wetlands covering 43 percent of the land area.

The two agencies signed a new memorandum of agreement (MOA), which takes aim at the USACE's Alaska District for permitting development projects without "compensatory mitigation." The USACE is the designated the lead agency on wetlands-related projects under CWA Section 404 (33 U.S.C. § 1344) and charged with evaluating permit applications for the discharge of dredged or fill materials into the waters of the United States, including jurisdictional wetlands. In 2008, the USACE and EPA issued a Final Rule providing for comprehensive standards for approaching wetlands filling, which first asks applicants and agencies to evaluate avoiding and minimizing wetlands impacts, and, if wetlands cannot be avoided, to develop "compensatory mitigation." The concept behind compensatory mitigation is that developers are permitted to fill a designated acreage of natural wetland if they also offset this taking by setting aside or restoring a nearby property with high environmental value. For example, compensatory mitigation may be required to ensure that discharges do not cause or contribute to the violation of water quality standards or threaten endangered species or their habitat (see 40 CFR Part 230.10(b)).

When an applicant proposes a development project, a local district office of the USACE spearheads the wetlands permitting. According to reporting by E&E News, the Alaska District had only required mitigation in 26 percent of permits since 2015. The root of these low numbers was that the Alaska District had been taking a narrow view of the scale the State's of watersheds, which in turn limited the review of environmental impacts. In addition, the Alaska District was following USACE Guidelines that designated that mitigation properties should be of "like-kind"where similar, nearby environmental property offset wetlands impacts. The combined result of these factors was that the Alaska District applied a "less rigorous" standard when projects were deemed to have minor environmental impacts, despite...