What is State Primacy Over Wetland Permitting and Why Is It a Problem?
The Dunleavy Administration is making a push in its budget proposal this year to take over wetland development permitting from the federal government. The proposed allocation of 4.9 million dollars in the Governor’s budget before the legislature would initiate a process where the state Department of Environmental Conservation (DEC) would assume “primacy” from the federal Army Corps of Engineers (Corps) over permitting development activities that impact wetlands protected under section 404 of the Clean Water Act. This week, the House Finance committee included money for state primacy in its budget negotiation package. State primacy would be very problematic for many reasons.
Less Tribal consultation. Well-functioning and intact wetlands are critical to the protection of salmon, especially in their early stages of life. Wetlands and peatlands also serve a climate-protecting function, a major force in earthly carbon sequestration. Alaska Native peoples have been lovingly tending Alaska’s wetlands since time immemorial. Currently, with federal primacy, the federal government must conduct government-to-government consultation with Alaska Native Tribes regarding wetland permit decisions to seek input and mitigate impacts to the land and water on which Tribal members rely. While DEC is maintaining that it does and will consult with Tribes, the experience of Tribes who have been repeatedly requesting consultation and having those requests rejected belies this contention.
Less analysis and public participation. When the federal government permits a project, it is legally required to elicit public participation and analyze the environmental, cultural, and subsistence impacts of projects under several federal laws, including the National Historic Preservation Act (NHPA), the National Environmental Policy Act (NEPA), and the Alaska National Interest Lands Conservation Act (ANILCA). The NEPA analysis will no longer be required for wetlands if the state takes over permitting, which would remove an essential avenue for Tribal and public participation. It is not clear how NHPA and ANILCA analysis will occur under a state permitting regime.
Reduced ability to litigate bad decisions. Under state primacy, if the state acts unlawfully, citizens will be forced to litigate in state court, which has a loser pays rule. That means that in certain cases if a citizen brings a lawsuit in state court and loses on their claims, regardless how valid those claims are, the citizen will have to pay the attorneys’ fees of the other side. This rule significantly chills legitimate public interest litigation.
High cost to the state. Wetland permitting is expensive, and it’s not clear that the state has done its homework to determine how much wetland permitting would cost. Implementing this program will cost millions of dollars for a service the federal government is currently performing without cost to Alaska.
Easier to push through unpopular development. The Dunleavy Administration, DEC, and mine promoters want state primacy over wetland permitting to streamline the industrialization of areas like the Bristol Bay watershed. Unable to prevail in the court of public opinion or with the Federal EPA, the Dunleavy Administration is now attempting an end-run around both to permit the Pebble Mine.
If you’re concerned about state primacy over Alaska’s wetlands, you can contact the House Finance Committee, Senate Finance Committee, and your own senators and representatives. Let them know that state primacy is too costly from a financial perspective and that cutting out Tribal governments and chilling public participation in these critical decisions is unacceptable.