State of Alaska Assumption of Section 404 program Michelle Bonnet Hale, Director, Division of Water Alaska Department of Environmental Conservation Steven G. Ross, Esq., Assistant Attorney General, Environmental Law Section Alaska Department of Law Copyright © The contents, opinions, or points of view expressed in this presentation are those of the presenters and do not necessarily represent or reflect the official position of the Alaska Department of Environmental Conservation, the Alaska Department of Law, or the State of Alaska.

Overview Background 2013 Legislation – Senate Bill 27 Current Section 404 permit program Process of State Assumption under Clean Water Act Benefits and Barriers to Assumption Alternatives & Next Steps

Background Section 404 of the Clean Water Act Regulates discharges of dredge or fill material into waters of the US Not just a wetlands program Applies to all waters of the US Permit required from US Army Corps before discharge

Background Alaska is unique among the 50 states 65% of nation’s wetlands are in Alaska Wetlands cover 174 million acres, or about 43% of the surface area in Alaska Wetlands in Alaska include tundra, permafrost areas, marshes, and bogs

Senate Bill 27 January 16, Gov. Parnell’s State of State called for state to assume primacy for dredge and fill permitting under 404 program January 17, 2013 – Gov. Parnell transmitted two bills to the legislature – SB 27 and HB 80 – that would establish state authority to develop and implement a state-run 404 program May 21, 2013 – SB 27 enacted into law

Senate Bill 27 “An Act establishing authority for the state to evaluate and seek primacy for administering the regulatory program for dredge and fill activities allowed to individual states under federal law and relating to the authority; and providing an effective date.”

Senate Bill 27 SB 27 does several things Provides DEC and DNR with statutory authority to develop and implement a state-run 404 program Provides DEC and DNR the resources to begin capacity building Provides DEC with authority to apply to EPA for assumption

Current 404 program in Alaska Administered by Corps with EPA oversight Regulated activities requiring a 404 permit Large projects – mines, oil & gas Breakwaters, levees, dams, dikes, and weirs Placement of riprap for roads, airports, bldgs But also: fill for residential, commercial, and recreational development

State’s Role in 404 Permitting - Today Applicant required to obtain a “Certificate of Reasonable Assurance” that the activity meets Alaska’s water quality standards also known as a “401 certification” State currently certifies some projects waives certification on smaller projects

Authority for Assumption Clean Water Act 1977 amendments provide a mechanism for state to assume 404 program Section 404(g)(1) provide states the ability to assume permitting authority of certain waters of the US

Section 404(g)(1) provides in pertinent part: The Governor of any State desiring to administer its own individual and general permit program for the discharge of dredged or fill material into the navigable waters (other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward to their ordinary high water mark, including all waters which are subject to the ebb and flow of the tide shoreward to their mean high water mark, or mean higher high water mark on the west coast, including wetlands adjacent thereto) within its jurisdiction may submit to the [EPA] Administrator a full and complete description of the program it proposes to establish and administer under State law or under an interstate compact….

Authority for Assumption Under 404(g)(1), Corps retains permitting authority over the following waters of the US Waters subject to the ebb and flow of the tide (e.g., coastal waters) Waters currently used for interstate/foreign commerce Waters susceptible to use for interstate/foreign commerce Wetlands adjacent to the above waters

State Assumption 46 States have assumed primacy of NPDES Program under section 402 Only two states have assumed the 404 program

State Assumption Primary requirement is that the state program may not adopt requirements that are less stringent than the requirements of the CWA and accompanying regulations “Any approved State Program shall, at all times, be conducted in accordance with the requirements of the [Clean Water] Act and of this Part. While States may impose more stringent requirements, they may not impose any less stringent requirements for any purpose”. (40 CFR §233.1 (d))

State Assumption State must also demonstrate that State has equivalent scope of jurisdiction over those waters it assumes Regulates at least same activities as CWA State program is consistent with CWA 404(b)(1) guidelines (e.g., environmental criteria used by Corps and EPA) State has adequate enforcement authority

State Assumption Specific material which state must submit for approval Letter from Governor requesting program approval Complete program description Atty Gen statement certifying state has adequate legal authority to carry out program MOA with the Regional Administrator of EPA MOA with the Secretary of the Army

EPA’s Role in Assumption Approves state-run 404 program Provides overall program oversight to ensure compliance with federal standards Receives copies of all 404 permits submitted to state, and retains ability to file objections and veto permits

Why 404 Assumption is Important to State Gives Alaska, not Corps or EPA, the leadership role in evaluating and issuing 404 permits in “assumable waters” of state Two agencies – DEC & DNR – will run program, not four (DEC, DNR, Corps, EPA) States are more accountable to population

Benefits of 404 Assumption Regulatory integration Increased efficiency, consistency, and flexibility Timeliness Improved resource protection No NEPA review

Potential Barriers to 404 Assumption Difficulty in meeting 404 program requirements Need to demonstrate jurisdiction over all assumable waters Potential uncertainty regarding percentage of assumable waters Lack of federal funding No partial 404 assumption - “all or nothing”

State Programmatic General Permits Alternative/addition to assumption of 404 program SPGPs are general permits for dredge and fill activities that are similar in nature and have minimal effects Existing law and SB27 provide authority to explore and pursue this option Does not require EPA approval

Next Steps Build program capacity Continue work on program package Work cooperatively with EPA and Corps to pursue 404 assumption Work cooperatively with Corps on SPGPs or assumption of RGPs Decide by FY 2016 whether to advance the primacy effort toward filing application with EPA

Questions? Contact Information Michelle Bonnet Hale Alaska Department of Environmental Conservation Director, Division of Water 555 Cordova St. Anchorage, AK Tel: Steven G. Ross Assistant Attorney General Alaska Department of Law Environmental Section 1031 W. 4th Avenue, Suite 200 Anchorage, Alaska Tel: