[Federal Register Volume 59, Number 96 (Thursday, May 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12245]
[[Page Unknown]]
[Federal Register: May 19, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 230
[FRL-4886-3]
Exception From Wetlands Mitigation Sequence for Alaska
AGENCY: Environmental Protection Agency.
ACTION: Withdrawal of proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is today withdrawing
a proposed rule (57 FR 52716, November 4, 1992) that would have revised
the Clean Water Act Section 404(b)(1) Guidelines to provide an
exception from the wetlands mitigation sequence for proposed discharges
of dredged or fill material into wetlands in the State of Alaska. Under
the proposed rule, discharges of dredged or fill material into wetlands
in Alaska would have been excepted from current requirements that all
proposed discharges represent the least environmentally damaging
practicable alternative and that all practicable measures to compensate
for unavoidable adverse impacts on the aquatic ecosystem be undertaken.
After consideration of public comments, EPA has determined that it is
appropriate to withdraw this proposed rule based on concerns that the
rule would result in avoidable and unmitigated adverse impacts to
Alaska's wetlands.
FOR FURTHER INFORMATION CONTACT: EPA's Wetlands Hotline at (800) 832-
7828 or Mr. Gregory Peck at (202) 260-8794 or Mr. John Goodin at (202)
260-9910, or write to: US EPA, Wetlands and Aquatic Resources
Regulatory Branch, Wetlands Alaska Docket (4502F), 401 M Street SW.,
Washington, DC 20460.
SUPPLEMENTARY INFORMATION:
Background
The Federal Water Pollution Control Act of 1972 (renamed in 1977 as
the Clean Water Act) established, in section 404, a regulatory program
for the evaluation of permit applications for proposed discharges of
dredged or fill material into waters of the United States, including
wetlands. Section 404(a) authorizes the Secretary of the Army, acting
through the Chief of Engineers, to issue permits specifying disposal
sites in waters of the U.S. in accordance with regulatory requirements
of the section 404(b)(1) Guidelines (Guidelines). The Guidelines, which
were published as final regulations on December 24, 1980 (45 FR 85336),
are the substantive environmental criteria used in evaluating
discharges of dredged or fill material under Section 404 of the Clean
Water Act (CWA).
The Guidelines provide four general restrictions in Sec. 230.10
that must be met before a permit can be issued authorizing the
discharge of dredged or fill material into waters of the U.S. The
proposed rulemaking focused on two of these restrictions: the
prohibition in Sec. 230.10(a) of any discharge where there is a less
damaging practicable alternative and the requirement in Sec. 230.10(d)
that all appropriate and practicable steps be taken to minimize
potential harm to the aquatic ecosystem.
The mitigation process is designed to establish a consistent
approach to be used in ensuring that all practicable measures have been
taken to reduce potential adverse impacts associated with proposed
projects in wetlands and other aquatic systems. The first step in the
sequence requires the evaluation of potential alternative sites to
locate the proposed project so that aquatic impacts are avoided to the
maximum extent practicable. As the next step in the sequence, remaining
impacts are minimized, by making changes in project design or
construction methods that reduce overall project impacts. Lastly, after
all practicable steps have been taken to avoid and minimize potential
adverse effects, compensation for remaining unavoidable impacts is
sought by such measures as wetlands creation or restoration in order to
replace lost aquatic functions and values. The result is prevention of
wetlands impacts where practicable; but where the actions necessary to
prevent such impacts are not available and capable of being done,
associated losses of wetland and aquatic functions and values are
offset to the extent appropriate and practicable with compensatory
mitigation.
On August 9, 1991, the Bush Administration issued a plan for
protecting wetlands that contained provisions to ``improve and
streamline the current regulatory system.'' One element of the plan
provided that ``States with less than a 1 percent historic rate of
wetlands development will be able to satisfy permit requirements
through minimization.''
Based on historic loss data (Dahl, T.E., 1990. ``Wetlands Losses in
the United States 1780's to 1980's'' U.S. Department of the Interior,
Fish and Wildlife Service, Washington, DC, 21 pp.), this provision was
applicable only in the State of Alaska. According to this data,
approximately 0.1 percent of the State's original wetland acreage has
been lost.
On November 4, 1992, the EPA published a proposed rule (57 FR
52716) to implement that element of the August 9, 1991, plan. The
proposed rule provided that proposed discharges of dredged or fill
material into wetlands in the State of Alaska would be excepted from
current provisions of the Guidelines that require that all proposed
discharges of dredged or fill material represent the least
environmentally damaging practicable alternative. In addition, the
proposed rule provided that, for proposed discharges of dredged or fill
material into wetlands in the State of Alaska, the requirement that all
appropriate and practicable measures to compensate for potential
unavoidable adverse impacts on the aquatic ecosystem would no longer be
applicable. For the State of Alaska, minimization of impacts would have
constituted the requisite mitigation necessary to meet the mitigation
requirements of the Guidelines.
The preamble to the proposed rule solicited comment on whether or
not it would be appropriate for the rule to more directly address the
protection of high-value wetlands, including the option of maintaining
the full sequence of avoidance, minimization, and compensation for
high-value wetlands, and if appropriate, how this might be
accomplished. The preamble made specific reference to ongoing efforts
by the State of Alaska to develop a wetlands categorization approach as
part of a State regulatory approach for freshwater wetlands that may
prove useful for the identification and protection of high-value
wetlands. Comment was specifically invited on how Alaska's wetlands
regulatory approach might be integrated into a final rule, and how
Federal agencies might most appropriately apply Alaska's system for
identifying high-value wetlands. The close of the 45-day public comment
period was December 21, 1992.
Public Comments
EPA received over 6,600 public comments in response to the November
4, 1992, notice of proposed rulemaking. Of those comments, 10% were
received from persons in Alaska, while the remaining 90% were received
from persons in States other than Alaska. Specific issues areas
addressed in the public comments received included the feasibility of
practicable alternatives and compensatory mitigation, the existing
degree of section 404 regulatory flexibility, protection of high-value
wetlands, and Alaska's wetland regulatory approach under development. A
summary of the significant relevant comments, and EPA's assessment of
them, is provided below.
Practicable Alternatives and Compensatory Mitigation
The proposed rule would have eliminated for Alaska the requirements
to avoid wetlands losses and to compensate for unavoidable wetlands
impacts where practicable. Comments regarding practicable alternatives
and compensatory mitigation primarily consisted of statements and
examples regarding their feasibility. The great majority of comments
asserted that, in general, in Alaska there are no practicable
alternatives to developing in wetlands and that, in general,
compensatory mitigation is not practicable.
A number of comments, although agreeing with those who commented
that alternatives and compensatory mitigation are not practicable in
Alaska, did not believe that these conditions warranted eliminating
avoidance and compensatory mitigation from existing requirements,
particularly because these requirements are only pursued when
``practicable.'' Most of these comments pointed out that these
determinations are made on a site-specific basis, which allows great
flexibility in the degree to which avoidance and compensatory
mitigation are pursued. A few comments recommended other ways of
addressing these mitigation sequence requirements, particularly ways in
which compensatory mitigation could be achieved without creation of
wetlands from uplands.
Many comments indicated that the agency's proposed justification
for eliminating the consideration of alternatives was improperly based
on an assumption concerning the limited availability of upland
alternatives. These comments stated that the consideration of
practicable alternatives is site-specific, and therefore a categorical
exemption, especially for an area the size of Alaska, cannot be made.
Several comments cited examples of where practicable alternatives to
discharging dredged or fill material into wetlands exist in Alaska or
publications that stated that such alternatives exist.
A number of comments indicated that there are opportunities for
compensatory mitigation in Alaska. One comment stated that the low
wetlands loss rate does not make it exceptionally difficult to restore
historic wetlands and that the hydrology of the State does not make
restoration any more difficult in Alaska than in other States.
Other comments stated that because compensatory mitigation may
include enhancement activities, it should not be ruled out merely
because there may be limited sites available for creation and
restoration. One comment cited a project conducted by Ducks Unlimited
and the Alaska Department of Fish and Game in which ponds were
apparently created in muskeg wetlands to increase the value to
waterfowl nesting. Another comment stated that existing literature
shows many ``arctic specific'' methods available to enhance certain
tundra habitat and that there are a number of ``success stories'' for
enhancement on the North Slope.
After reviewing these comments, EPA has concluded that the proposed
rule, by allowing discharges of dredged or fill material into wetlands
without any analysis of whether less damaging, practicable alternatives
were available or without requiring any compensatory mitigation,
regardless of its practicability, would have resulted in adverse
impacts to wetlands in Alaska. EPA has concluded that existing
mitigation requirements to avoid wetlands losses and to compensate for
unavoidable impacts where practicable are sufficiently flexible to
consider the fact that avoidance and compensatory mitigation may not be
feasible in certain cases. EPA believes that the definition of
``practicable'' affords discretion and flexibility to the Corps to
craft case-specific decisions that effectively consider highly diverse
environmental, economic, and geographical conditions, including those
found in Alaska. Therefore EPA believes that the proposed rule's
categorical elimination of the avoidance and compensatory mitigation
requirements for discharges in Alaska is not warranted.
The EPA/Army Mitigation MOA, which clarifies the Guidelines
mitigation requirements, recognizes that avoidance and compensatory
mitigation might not occur on every proposed permit action. The MOA
contains qualifying language that states that avoidance and
compensatory mitigation may not be practicable in areas where wetlands
are abundant. Moreover, in January 1992, EPA and Army issued a
clarification to the Guidelines and the MOA with respect to Alaska
which emphasizes that ``[w]here there is a high proportion of land in a
watershed or region which is wetlands, it is likely that avoiding
impacts to wetlands will not be practicable depending on project size
and other logistical considerations,'' and ``that there are areas,
including many locations in Alaska, where it may not be practicable to
restore or create wetlands; in such cases compensatory mitigation is
not required under the Guidelines.''
EPA believes that the record of the Section 404 program in Alaska
relative to requiring mitigation demonstrates the flexibility of the
regulations to reflect the circumstances of the State. This flexibility
has resulted in the requirement of compensatory mitigation in only
approximately 4% of all individual permit approvals in Alaska. In
Fiscal Year 1993, the Alaska District Corps authorized the filling of
1,092 acres of wetlands while only 226 acres of compensatory mitigation
were required.
Existing Regulatory Flexibility
A large number of comments addressed the issue of whether existing
regulations, beyond the specific issues of practicable alternatives and
compensatory mitigation, are sufficiently flexible to allow appropriate
development in Alaska, while ensuring necessary resource protection.
Roughly half of those comments asserted that existing regulations are
flexible enough, while the other half asserted that they are not.
Some comments stated that wetlands regulations are cumbersome and
do not recognize the extent of low and moderate value wetlands in
Alaska. Some also stated that wetlands regulations hinder development.
Other comments cited Corps Alaska District permit statistics to support
assertions that the regulatory program is already flexible enough--or
``too flexible'' according to some comments--to accommodate permit
applicants. Many comments argued that wetlands regulations are no more
burdensome in Alaska than in any other State. Another comment noted
that Alaska, as one of the fifty States, should be bound by the same
laws and regulations as everyone else. Other comments added that in
addition to the low denial rates for individual permits, the existence
of general permits for a variety of activities demonstrates additional
regulatory flexibility.
EPA has concluded that a reasonable amount of flexibility exists in
the Section 404 regulatory program to protect wetlands in Alaska from
adverse impacts, while allowing wetlands development in appropriate
circumstances. The flexibility of the Section 404 regulatory program is
evident in the review process for individual permits, the application
of general permits and other authorizing mechanisms, and the
statistical record of the permit program in Alaska. Consequently, EPA
has concluded that the additional ``flexibility'' offered by the
proposed rule, i.e., eliminating the avoidance and compensatory
mitigation requirements, is overly broad and unwarranted.
The existing flexibility in the section 404 permitting program is
reflected in permitting statistics. First, it is important to note that
the section 404 regulatory program does not prohibit development in
wetlands or other waters of the U.S. In the U.S., as many as 60,000
discharges per year are authorized under the section 404 program. Well
over 80% of all actions subject to section 404 are authorized by the
Corps via general permits, which authorize categories of activities to
proceed without an individual permit application. General permits
efficiently allow actions with minimal impacts to proceed with little
if any administrative burden, while allowing regulators and others to
concentrate attention on activities with the potential for significant
impacts. At present, there are 36 nationwide general permits that
authorize such activities as placement of outfall structures, road
crossings, utility line backfill, boat ramps, farm buildings, and minor
discharges.
In Alaska, roughly 900 discharges are authorized annually under
Section 404. On average, general permits account for over 70% of these
authorized actions. In addition to the nationwide general permits, the
Alaska District currently has 21 regional general permits in effect in
the State, four of which apply Statewide. Response times for general
permits that require action by the Corps average 11 days in Alaska.
For those activities that require individual permits, the Alaska
District's denial rate for individual permits is only four percent.
Although about 35% of these applications may be withdrawn by the
applicant, in most cases, withdrawals of individual permits are not
tantamount to denial. For example, a number of withdrawn actions are
due to reduction of project impacts to the point that a general permit
is applicable.
Permit decisions are generally made within 60-90 days from the date
an application is complete. However, larger or controversial projects
may take 120 days or more to evaluate. More lengthy permit reviews
generally occur in instances when the project site is located in an
environmentally sensitive area such as high value wetlands, where there
is strong opposition from the public or local governments, or it is
determined that an Environmental Impact Statement is necessary. During
fiscal year 1993, the Alaska District completed its evaluations of
individual permit applications in an average time of 106 days. However,
the average evaluation time for all permit actions, including general
permits, was 37 days.
The Corps Alaska District has worked with the State of Alaska to
coordinate the timing of the State and Federal review of proposed
permit actions. The State's coastal zone questionnaire is included with
all Corps application packages; the Corps and the State share the lead
for setting up pre-application coordination meetings with interested
State and Federal resource agencies; the State has agreed to accept the
Corps application as application for State 401 Water Quality
Certification whenever the Corps determines the activity could result
in a discharge to waters of the U.S.; the District includes State
public notices with its public notice and handles State legal notices
(but not payment) for the activity; the District mails an advance copy
of complete applications to the State 401 and Coastal Zone Management
(CZM) agencies prior to going to public notice; the District notifies
the CZM offices of all actions advertised the previous week; and the
State has agreed to accept the District's determination for minor
permit modifications subject to expedited review (the State may reverse
this determination and require a full State review whenever they
determine this to be appropriate).
Regarding other authorizing mechanisms, the Corps District
Engineers uses general permits and alternative permit processing
procedures such as letters of permission, regional general permits, and
joint procedures. It is intended that these alternative procedures be
used in instances where there are minimal impacts and/or adequate
environmental safeguards in order to: (1) Reduce delay and/or (2) avoid
duplication of efforts where other agencies have ongoing permit
programs for activities also regulated by the Corps.
It is important to note that the Corps is presently developing two
rulemakings to further address the concerns of timeliness and accuracy
of permit decisions. The first proposal would generally require the
Corps to reach a permit decision in a maximum of 90 days. The second
proposal would establish an administrative appeals process for
jurisdictional determinations, permit denials, and administrative
penalties.
High-value Wetlands
The proposed rule contained an exception from avoiding or
compensating for the loss of wetlands that would have applied to all
wetlands in Alaska. No distinction was made between wetlands that
exhibit greater or fewer functions and values.
More comments were received regarding the uniqueness and value of
Alaska's wetlands, and the need for protection of high-value ones, than
on any other issue. A few comments recommended ways of incorporating
consideration of high-value wetlands into the rule. Many comments
addressed functions and values of Alaska's wetlands, including
particular examples of high-value wetland functions or particular
wetlands in Alaska that exemplified certain high-values.
A majority of comments on the issue indicated that, if issued, a
final rule should specifically address the need for protecting high-
value wetlands. To this end, a number of comments cited the potential
loss of all 345,000 acres of estuarine intertidal vegetated wetlands,
which play a significant role in maintaining, among other things, much
of Alaska's fishing industry. Several comments noted that conflicts
between development and wetlands are highest in coastal areas, where
building demands and valuable habitat coincide. Several comments also
questioned to what extent EPA considered the potential adverse
cumulative impacts of the proposed rule on wetlands-dependent
hydrologic functions and wildlife.
However, other comments stated that the proposed rule should not
expressly provide a separate level of protection for high-value
wetlands. Some comments asserted that the lack of clear criteria for
distinguishing high-value wetlands from low-value wetlands was a good
reason not to restrict application of the rule to certain wetlands in
Alaska and argued that attempts to apply certain requirements only to
``high-value'' wetlands would likely be a difficult, expensive, and
time-consuming process. Other comments stated that almost all the
State's high-value wetlands are already protected in conservation
units. Others stated that high-value wetlands would still be protected
through State and local permitting and land use management programs.
The State of Alaska reiterated its commitment to identify and protect
all of its high-value wetlands through coastal zone management, State
freshwater wetlands pollution control, and other regulations.
Under the proposed rule, the requirement to avoid or compensate for
impacts to wetlands in Alaska would be removed, thereby requiring only
minimization of impacts to wetlands, including high-value ones. Of
those comments specifically addressing the mitigation sequence, most
favored the option of maintaining the full sequence of avoidance,
minimization, and compensation for high-value wetlands. One comment
stated a preference for protecting high-value wetlands, but allowing
the development of low-value wetlands where unavoidable and with no
compensatory mitigation required.
To address the issue of how to consider high-value wetlands,
comments suggested a variety of classification schemes. One approach
recommended applying the rule on an ``ecoregion'' scale (e.g., the
North Slope), as opposed to the entire State. One comment elaborated
that it would be fair to ``relax'' mitigation sequence requirements for
areas like the North Slope, but not for areas with less abundant
wetland types. Others suggested evaluating the one percent wetlands
loss on a watershed basis, including one comment that asserted that the
exception for the entire state of Alaska was inappropriate since the
importance of the biological values and hydrologic functions of
individual wetlands is realized on a much smaller scale, and that
boundaries should be based on hydrologic and/or biological criteria.
Another approach recommended general permits for discharges into
specific types of wetlands--black spruce bog, heath tundra, and alpine
tundra--with size and slope restrictions. One comment further suggested
retaining the avoidance requirement, but not acre-for-acre
compensation, for wet sedge tundra, riverine, lacustrine, and
palustrine emergent wetlands; however, coastal and other wetlands would
be accorded the full mitigation sequence.
Other comments listed characteristics or criteria of what
respondents indicated help define high-value wetlands. These comments
focused primarily on the habitat values that certain wetlands provide
for wildlife and fisheries, as well as a number of non-habitat
functional characteristics. In addition to wildlife habitat
characteristics, comments listed as valuable, wetlands that supported
sport, commercial, and subsistence fisheries for native and rural non-
native Alaskans, as well as tourism, hunting, and bird watching. Also
included were wetlands performing hydrologic functions such as
retention of sediments, nutrients, and toxicants or moderation of
surface runoff.
After reviewing these comments, EPA has concluded that the proposed
rule would have resulted in adverse impacts to wetlands, including
those of high value. We were particularly concerned about the impact
the proposed rule would have had on coastal wetlands in the State.
According to the National Marine Fisheries Service (NMFS), substantial
marine wetlands, which are of particularly great value, have already
been lost in Alaska. NMFS noted that coastal wetlands ``are critical to
* * * Alaska's salmon and other valuable species * * *'' and that
``disproportionately high development pressures historically have been
focused on this small but critical percentage.'' EPA also agreed with
the U.S. Fish and Wildlife Service's (USFWS) concern that the proposed
rule would hinder management efforts for several federally listed or
proposed threatened and endangered species that utilize Alaska's
wetlands, as well as hasten the listing of additional candidate
species.
Moreover, EPA has concluded that modifying the rule so that it did
not apply to high-value wetlands was not practicable. At this time
there is no scientifically defensible method to categorize wetlands by
value on an a priori basis for an area as large as the State of Alaska.
However, we realize that categorization on a case-by-case basis may be
practicable, and that the Section 404 regulatory program has
appropriate regulatory mechanisms to address such cases where
determination of alternatives and compensatory mitigation are either
not required or their evaluation is limited. For example, general
permits allow actions with minimal impacts to proceed with little or no
administrative requirements, most with no requirement for analyzing
alternatives or performing compensatory mitigation. Fully two-thirds of
all Section 404 activities in Alaska are conducted under general
permits.
In addition, the Section 404 regulatory program already allows
flexibility in how requirements for analysis of alternatives and
compensatory mitigation are achieved. EPA and the Corps issued Section
404(b)(1) Guidelines Flexibility Guidance to field staff to clarify and
standardize the flexibility afforded in the Guidelines regarding the
analysis of project alternatives, based on the severity of
environmental impacts of the proposed discharge. That guidance
recognizes that all wetlands are not of equal value and clarifies that
small projects with minor impacts are subject to less rigorous permit
review than for larger ones with potentially greater impact.
In addition, planning mechanisms such as watershed plans, advance
identification, special area management plans, and State coastal zone
management plans, provide the opportunity to incorporate consideration
of the mitigation sequence. The mitigation sequence is considered
satisfied when proposed mitigation is in accordance with specific
provisions of a Corps-EPA approved comprehensive plan that ensures
compliance with the Section 404(b)(1) Guidelines. Such plans can result
in a priori decisions on the suitability of development in specific
areas and the issuance of general permits in others.
Finally, as discussed above, not only do existing regulations allow
a Section 404 permit applicant to have the avoidance and/or the
compensatory mitigation components of the mitigation sequence
considered satisfied where these requirements are not practicable, but
this flexibility is being implemented in the State of Alaska.
Alaska's Wetland Regulatory Approach
In 1992, the Alaska Department of Environmental Conservation
received a grant from EPA to develop a Statewide wetlands management
and conservation strategy. The principal objective of this study is to
develop a hydrogeomorphic wetlands classification methodology
specifically applicable to Alaska's wetlands. This functional
assessment, combined with local experience and expert knowledge, is
intended eventually to evaluate and rank Alaska's wetlands according to
their value and to develop corresponding regulatory responses.
A number of comments on the proposed rule addressed Alaska's
wetland regulatory approach and its relation to identifying and
protecting high-value wetlands. A majority of comments indicated that
the regulatory approach should not be integrated into a final rule,
most citing that they did not want issuance of the final rule delayed
until the State effort could be completed.
Other comments provided a different perspective. One comment
indicated that the State's approach is unworkable and that the
hydrogeomorphic data required in the approach is lacking for most areas
and will be expensive to obtain. Another comment stated that a final
rule should directly address the protection of high-value wetlands as
identified in the State effort and through designation by the USFWS,
although no recommendation was made as to how this might be
accomplished.
EPA supports the State of Alaska in their effort to develop a
Statewide wetlands management and conservation strategy, including
development of methodologies to evaluate and document wetlands
functions and values. However, EPA has concluded that the infeasibility
of conducting a priori wetlands categorization for the entire State,
coupled with the status of the State approach, means that the State's
efforts could not be used to formulate an environmentally acceptable
final rule. However, EPA anticipates that, when completed, the
management and conservation strategy will serve as a key resource in
measuring wetlands values for permit decisions in the State.
Clinton Administration Wetlands Plan and Withdrawal of Proposed Rule
On August 24, 1993, the Clinton Administration issued a plan for
protecting America's wetlands that consists of a comprehensive package
of regulatory improvements and non-regulatory policies. The package
supports: the interim goal of no overall net loss of the Nation's
remaining wetlands; an efficient, fair, flexible, and predictable
regulatory program; non-regulatory programs such as advance planning,
wetlands restoration, and public-private cooperative efforts;
partnerships with State, Tribal, and local governments; and policies
based upon the best scientific information available.
Of more than forty actions and recommendations applicable
nationally, many of which are of value in improving or clarifying
wetlands efforts in Alaska, the Administration plan contains two
provisions pertaining exclusively to the State. The Administration
announced that the proposed rule would be withdrawn. However,
recognizing the need to address Alaska-specific concerns in a fair,
flexible, and efficient manner, the Administration plan committed EPA
and the Corps to meet with Federal resource agencies, State and local
governments, representatives of Native villages, industry groups
including oil and fishing interests, and environmental groups to
consider other environmentally appropriate means to assure regulatory
flexibility and the feasibility of alternative permitting procedures in
Alaska.
On October 12, 1993, the Federal agencies in Alaska announced the
Alaska Wetlands Initiative and invited a diverse and comprehensive
group of stakeholders to participate in a series of independently
facilitated meetings in Juneau, Bethel, Fairbanks, and Anchorage in
late October and early November. The two-day meetings offered the
opportunity for stakeholders to make uninterrupted presentations, as
well as to discuss concerns in a roundtable format. In addition, the
public was invited to attend these meetings, make an oral statement at
the close of each, to submit written comments, and to participate in a
Statewide teleconference linking 20 locations throughout Alaska.
Furthermore, approximately 1,500 letters were mailed to Alaskans who
over the last several years had applied for Section 404 permits, to
survey their opinion of their experience with the regulatory program.
The number and variety of opportunities for public comment were
provided to ensure that the process would consider the individual
opinions of Alaskans who wished to express themselves independent of a
particular stakeholder.
As a result of the meetings and public comments received, a series
of 11 draft issue papers for public review was developed by EPA and the
Corps, in conjunction with USFWS and NMFS. Each draft issue paper
included a general background discussion of that issue, a summary of
the stakeholder and public comments received, an analysis, and a set of
proposed recommendations for discussion. This series of draft issue
papers, which was distributed on December 17, 1993, served as the focus
of discussion at a final set of stakeholder meetings that was convened
in January 1994. At that time the Corps and EPA sought further, more
focussed input from the stakeholders on how well the draft issue papers
characterized their concerns and how well the proposed recommendations
for discussion responded to those concerns. The public was again
invited to these meetings, provided with an open microphone opportunity
at the conclusion of each meeting, and encouraged to comment in writing
on the draft issue papers.
Following the January meetings and public comment period, the four
Federal agencies developed a draft Summary Report which was distributed
on March 28, 1994, for the stakeholders to review. The final Summary
Report was developed in light of these comments and in coordination
with the Administration's Interagency Working Group on Wetlands Policy
and issued concurrent with this Federal Register notice.
The results of the Alaska Wetlands Initiative address 11 major
areas of concern with the wetlands regulatory program identified by
Alaskans. These areas include the mitigation sequence; compensatory
mitigation; no overall net loss of wetlands goal; alternative permit
processing procedures; the individual permit process; State, local, and
Native roles; advance planning and watershed management; wetlands
inventory, classification, and categorization; outreach and education;
special Alaska circumstances--physical environment; and special Alaska
circumstances--legal issues.
The major recommendations of the Alaska Wetlands Initiative address
a number of regulatory and non-regulatory actions, including:
(1) Issue written clarification that recognizes existing
flexibility to reflect circumstances in Alaska afforded in the Section
404(b)(1) Guidelines in implementing alternatives analysis and
compensatory mitigation requirements;
(2) Acknowledge pre-application mitigation efforts;
(3) Encourage greater use of advance planning that incorporates
consideration of the mitigation sequence;
(4) Initiate a mitigation banking pilot project in coordination
with the State;
(5) Assess the effectiveness of mitigation techniques in Alaska;
(6) Develop a comprehensive mitigation strategy for past, current,
and future oil and gas development activities on the North Slope;
(7) Explore application of bonding procedures for permit
requirements;
(8) Issue written statement clarifying that although the
Administration's goal of no overall net loss of wetlands is National
policy, it will not always be achieved on a permit by permit basis in
the Section 404 regulatory program;
(9) Implement Abbreviated Permit Processing Procedures for water,
wastewater, and sanitation facilities in Alaskan villages;
(10) Publicize availability, for public review, of cumulative
impacts evaluations for General Permits;
(11) Render individual permit decisions within 90 days consistent
with final regulations currently being developed for the Nation;
(12) Conduct exit polls or interviews with permit applicants;
(13) Seek sufficient regulatory resources to ensure timely decision
making;
(14) Provide applicants with better information on how to respond
to comment letters received as part of the Corps' public notice
process;
(15) Establish written partnerships between the Federal agencies
and all interested stakeholders and organizations regarding the Section
404 regulatory program;
(16) Institute a Native liaison position within the Corps;
(17) Pursue multi-lingual communications with Native interests;
(18) Provide Alaska priority status in terms of funding for
development of a Wetland Conservation Plan;
(19) Place greater emphasis on providing assistance for wetlands
planning mechanisms as they relate to the Section 404 regulatory
program;
(20) Develop a watershed-based demonstration project;
(21) Centralize wetlands information;
(22) Accelerate National Wetlands Inventory mapping in priority
areas;
(23) Issue public information materials;
(24) Coordinate strategies for outreach and education efforts; and
(25) Initiate mobile regulatory information office.
Conclusion
EPA concludes, consistent with the Administration Wetlands Plan and
as detailed in the response to comments above, that the proposed rule
would result in avoidable and unmitigated adverse impacts to wetlands
in Alaska. Existing flexibility in applying the requirements of the
Section 404 regulatory program in combination with actions being
implemented as a result of the Administration's Wetlands Plan are
effective in addressing Alaskan concerns with the Section 404 program
and the State's climatological and physiographic circumstances.
Furthermore, the Alaskan stakeholders and public who participated in
the Alaska Wetlands Initiative have helped to define these specific
concerns and to recommend ways of addressing them in an environmentally
appropriate manner.
List of Subjects in 40 CFR Part 230
Environmental protection, Alaska, Water pollution control,
Wetlands.
Dated: May 12, 1994.
Carol M. Browner,
Administrator, Environmental Protection Agency.
Accordingly, the proposed rule to amend 40 CFR part 230,
``Exception from Wetlands Mitigation Sequence for Alaska,'' published
at 57 FR 52716 (November 4, 1992), is withdrawn.
[FR Doc. 94-12245 Filed 5-18-94; 8:45 am]
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