Wetlands Regulations Dispute
NSB Challenges New Wetlands Permit Regs

A change in procedures that would allow development on 70 percent of North Slope Wetlands and other state Wetlands without specific permits being obtained has been challenged in court by the North Slope Borough.

The State of Alaska also is reviewing the matter and “is exhausting all administrative remedies to” solve the situation, according to Douglas Redburn, Coastal Management and Outer Continental Shelf coordinator in the Department of Environmental Conservation.

“In effect this regulation change means that environmental control on development on the Wetlands or wet tundra is gone unless we win this suit,” said North Slope Borough Attorney Sanford Sagalkin. He estimated this change affects development on 70 percent of Yukon-Kuskokwim Delta and 60 percent of statewide Wetlands

“This has a serious potential effect on caribou, waterfowl, and lesser types of subsistence game and fish,” said Sagalkin.

Development on such Wetlands is governed by the U.S. Corps of Army Engineers which, until the regulation change in July of 1981, required specific permits to be acquired by companies wishing to develop Wetlands

Those permits examined the effects of wetland development on areas surrounding the development and allowed for public comment on that development.

Thus, if an individual or the agency felt that the construction of a gravel oil drilling pad or gravel road in a tundra area would hinder a caribou migration route, it could object to the pad. Presumably, “the environmental problems would be taken care of so there would be no serious impact on the wildlife,” said Sagalkin.

Under the new regulations, the company doing the development wouldn’t even be required to notify the Corps of Engineers it was doing the development, said Sagalkin.

The new regulations create a permitting system where Wetlands are covered by two nationwide permits, said Sagalkin. Under those regulations, if the land is not a tributary or a tidal area, “You don’t need a permit to construct something. You just do it,” said Sagalkin.

All the developer has to do is adhere to the general rules put forth in the one general wetland permit regulations. Those regulations establish the same guidelines for developing Wetlands in Florida Everglades swamp as they do in the North Slope tundra.

And, while public comment is sought under the old regulations, none is sought or required under the new ones.

Sagalkin said that although no hearings were held on the regulation changes, North Slope Borough Mayor Eugene Brewer did testify against the changes in July at hearings on a change in the Clean Water Act.

Sagalkin said that under the new regulations the State of Alaska doesn’t even have a say in the certification of development because state suggestions on the new regulations were made past the deadline for such comments and were not included in the final Corps’ regulations.

The deadline for written comments was July of 1982 and the state made its suggestions in September or October of 1982.

Because of this denial, the state has no power to require any conditions on any types of construction in Wetlands, said Sagalkin.

Redburn said the state has been working with the Alaska District Engineer and has found “we have a sympathetic district office and an unsympathetic Washington D.C. office.”

The district engineer was scheduled to meet with the Division Engineer in Portland, Oregon this week to discuss the matter. Redburn said that under the new regulations, the division engineer can make recommendations on certificating procedures while the district engineer cannot.

Redburn said that many of the proposed regulations caused the state no worry “but for the categories of water which allow the full range of activities on the habitat…we feel they are asking too much.”

An example of the type of certification agreement the state wants would be for the Corps to require a developer to apply requirement of the Alaska Fish and Game Department regulations before disposing of more than 10 cubic yards of fill material.

“Right now people may see federal regulations and think they don’t have to do anything else,” said Redburn.

Redburn said the state has asked for a response from the Corps by February 1, after which DEC will discuss the matter with the state attorney general if the response is unsatisfactory.

If the state decides to challenge the regulation it has three possible grounds to sue:

Does the Corps of Engineers have the authority to issue development permits for water areas under the Clean Water Act; Did the Corps follow the certifying procedure; and Did the Corps honor Coastal Management requirements? That is, the Corps cannot issue permits that conflict with coastal management programs.

Redburn also said the state is disturbed by the way the Corps handled the passage of the regulations. The Corps contends that the state didn’t comment on the proposed regulations within the required time. Redburn says, “We responded to the draft regulations put out in July of 1982. We didn’t respond to the earlier proposals because we don’t usually ever respond to proposals.” He said 11 other states also were shut out from commenting on the regulations because they didn’t submit objections in time. They, too, are considering suing the Corps.  Reprinted from the Tundra Times.