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Alaska challenges for wetlands mitigation Changes in interpretation of requirements, requiring mitigation in same part of state, have left Alaska without statewide provider TIM BRADNER For Petroleum News
Like a lot of federal environmental rules, wetlands mitigation in Alaska will likely be under review by President Donald Trump’s new administration. Regulations affecting access to national parks and wildlife refuges have already been stripped away, and new agency chiefs in Washington are now setting their sights on provisions of the Clear Air and Clean Water acts.
Avoiding or mitigating the effects of development on wetlands is a core part of the federal Clean Water Act and is likely to remain unless Congress changes the law, which would be a long and drawn-out process.
In the meantime, however, the state director of the Alaska’s sole statewide provider of wetland mitigation services, Brad Meiklejohn at The Conservation Fund, says he welcomes a review of the program and believes steps can be taken now, under current authority of the U.S. Army Corps of Engineers, to make the Alaska program more efficient for developers and, most important, to add certainty.
Requirements long standing Requirements to mitigate, or offset, the loss of ecologically important wetlands have been around a long time, beginning with President George H. Bush’s 1980’s pledge of “no net loss” of the nation’s wetlands due to construction. The Clean Water Act assigns the U.S. Army Corps of Engineers the task of administering the act’s Section 404 dredge-and-fill permits, which carry with them the mitigation responsibility.
Alaska, of course, has vast wetland areas that, unlike in the Lower 48, are minimally damaged by development activity. The Clean Water Act is national in scope, however, so a key goal of the state’s congressional delegation for years has been to foster a program that fits Alaska.
Alaska was virtually exempted, thanks to Sen. Ted Stevens, until 2008, when a stricter interpretation of the program was applied in the state. The Army Corps has administrative flexibility, however, and from 2008 to 2014 many mitigation projects, most involving repair of damaged habitat or protection of relatively small, sensitive areas, were done in many parts of the state.
Developers would arrange with a group like The Conservation Fund to find and purchase wetlands to offset the wetlands taken in a development project. Because the scope of the program was statewide there were many options for projects, and they were quite affordable.
Stricter interpretation In 2014, however, stricter interpretation of rules went into effect requiring the mitigation projects to be in the same part of the state, and preferably the same watershed, as the project causing impacts.
“This has created real problems because there are very few impaired wetlands on the North Slope that can be purchased for restoration,” Meiklejohn said.
His first suggestion for improving the program is to return to a statewide scope, which would allow, as an example, money paid for wetlands restoration for a North Slope oil and gas project to be used to repair streams damaged by historic placer mining in the Fortymile River area of eastern Alaska. It’s a project the U.S. Bureau of Land Management would welcome.
A statewide scope would also aid Donlin Gold with its proposed large gold mine in southwest Alaska, which could affect up to 8,000 acres of wetlands. There are ample wetlands in the Yukon-Kuskokwim region, but few that have been damaged.
The Corps does allow permanent preservation of wetlands to serve as a form of mitigation, although one that is less preferable. In this case, the agency has sometimes required a demonstration that an area faces a threat.
Inholding purchases Meiklejohn suggests that evaluating the level of threat is highly subjective. “It’s a difficult standard at best, however, because who’s to say that in 100 years population pressures may cause, for example, a private inholding in a national park to be developed. The only way to eliminate threat and guarantee permanent protection is for someone like us to purchase the inholding,” Meiklejohn said.
The Conservation Fund has done this in many several places, one being a land parcel purchased and added to Chugach State Park near Anchorage. However, the group got caught when the Corps changed its interpretations and turned down four proposals in Northwest Alaska, in Cape Krusenstern National Monument, Kobuk Valley National Park and the Selawik National Wildlife Refuge, because there was no demonstrated threat, and because they were outside the North Slope, where projects being mitigated were located.
The Conservation Fund had already purchased the properties, and the group is now stuck, having spent about $2 million but now without the ability to offset the credits sold to developers. The restrictions have also increased the cost of the mitigation, mainly because of the scarcity of offset projects within the region of the wetlands impact.
“Our average cost had been about $5,500 per acre for the North Slope,” under the old rules, Meiklejohn said. “It’s much more expensive for us to operate under the new rules.” Costs up to $45,000 per acre have been reported by state officials.
No statewide provider “From 1998 to 2013 we had a well-functioning, efficient program and we got a lot of good things done. We were able to offset over 200 wetlands impacts and pool them to focus on some large restoration projects,” Meiklejohn said.
Because of the uncertainties and its financial exposure, The Conservation Fund is increasingly cautious and no longer willing to offer mitigation for many projects, Meiklejohn said. This leaves Alaska without a functioning statewide mitigation service provider.
Meanwhile, one project The Conservation Fund is proud of is its restoration of the Eklutna River north of Anchorage, a $7 million project that will require removal of an old, unused dam from an abandoned hydro project. The work to remove the dam will be done by October 2017. It is being done with Eklutna Inc., the local landowner, and will result in the rehabilitation of the river as a salmon stream.
Meiklejohn said that more flexibility, certainty and transparency in the Alaska program would improve its effectiveness, and affordability, and make more restoration projects like that at the Eklutna River possible.
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