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Murkowski questions ARNI use by EPA Designation as aquatic resources of national importance has blocked NPR-A production, railroad from Fairbanks to Delta Junction Kristen Nelson Petroleum News
The Environmental Protection Agency blocked permits for ConocoPhillips Alaska’s CD-5 development in the National Petroleum Reserve-Alaska early this year by declaring the Colville River Delta an aquatic resource of national importance.
Alaska’s senior senator, Lisa Murkowski, said Dec. 21 that’s not the only Alaska development EPA has blocked with an ARNI designation: A rail line connecting Delta Junction to Fairbanks has recently fallen victim to the same designation, leading Murkowski to ask EPA Administrator Lisa Jackson in a Dec. 20 letter how such designations are made, apparently with “no public input, consultation, or even notice.”
Murkowski told Jackson that recent events in Alaska “have raised significant questions” regarding EPA’s “application of its authority under the Clean Water Act,” specifically CWA authorization for EPA to prohibit areas as disposal sites, thus preventing the U.S. Army Corps of Engineers from issuing permits.
EPA’s authority under section 404(c) of the CWA has not always been without controversy, the senator said, noting that under threat of congressional intervention, in 1992 EPA and the Corps signed a memorandum of agreement, “designed to aid in the resolution of conflicts over a proposed permit.”
That MOA uses the term “aquatic resource of national importance,” limiting elevation of specific permit cases to those involving an ARNI, and requiring EPA to notify the Corps in writing that a project “may result in substantial and unacceptable impacts to aquatic resources of national importance.”
Only 16 cases listed Murkowski told Jackson that while the EPA’s website lists only 16 cases in which EPA has requested Corps review of a permit in the 18 years since the MOA was finalized, in addition to those 16, there have been at least two instances over the last six months where EPA has intervened with the Corps over Alaska projects.
EPA opposed bridge access to CD-5, even though the “actual users” of the Colville River Delta, primarily residents of Nuiqsut, “had been closely involved in the development of the very plan which the designation undermined. Their historical experience and day-to-day reliance on the CRD for various subsistence and cultural uses cannot be questioned — yet EPA second-guessed the bridge option as their preferred alternative,” Murkowski said.
Less than a month ago EPA designed the Tanana River as an ARNI.
EPA had been aware of the proposed project prior to February of 2009, when it provided comments, “but no ARNI designation,” on the draft environmental impact statement. Then, in mid-November, after asking in early October for more time to consider the project, “EPA stated that it considers the Tanana River an ARNI and cited the presence of subsistence fish and recreational users as the reason.”
“With less than two months of consideration possible, less than one page of administrative reasoning, and with only one signature from a state-level EPA operations director, a critical rail extension project across the Tanana River has been blocked by EPA’s unilateral declaration of the area as an ARNI.”
While CWA guidelines require a showing that an alternative is the least environmentally damaging, “EPA has instead insisted that a ‘no-build alternative must be presumed to be a practicable alternative to meeting the transportation needs of the area,’” the senator said.
Substantial questions Murkowski told Jackson that EPA’s actions raise “substantial questions” about the process the agency used and requested detailed answers to a number of questions, including “the genesis and statutory authority” for the term ARNI, which the senator said appears to have been created by the Corps-EPA memorandum of agreement.
On the Alaska designations, Murkowski asked for any information relied on by EPA providing the basis for the ARNI designations for the Colville and Tanana, including any communications with outside parties, including other governmental entities, on the status of the Colville and Tanana.
Murkowski said it appears that exercise of EPA’s authority under the Clean Water Act, “as interpreted by the agency,” requires “no public input, consultation, or even notice.”
She also questioned whether steps to permit projects give “the applicant and the public a clear path forward and transparent public record, and a fair opportunity to make their case.”
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