Peering into the crystal ball on Corps of Engineers mitigation policy

Dillingham Harbor (AK) annual dredging operations. Photo courtesy of the U.S. Army Corps of Engineers.

Dillingham Harbor (AK) annual dredging operations. Photo courtesy of the U.S. Army Corps of Engineers.

Ariel Wittneberg at E&E News had an interesting three-part series recently on U.S. Army Corps of Engineers mitigation requirements in Alaska. An excerpt:

The Army Corps of Engineers is greenlighting development in thousands of acres of Alaskan wetlands without requiring companies to offset resource damage, according to an E&E News analysis of five years of Clean Water Act permits.

As the permitting agency for development in wetlands, the Army Corps is supposed to require “compensatory mitigation” — restoring or preserving wetlands and streams to offset damage done by projects.

That changed in 2015 after Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) convinced officials in the Army Corps’ Alaska District to relent on mitigation, helping mining and oil interests by lowering the cost of energy development.

Ms. Wittenberg is a good reporter and she makes several important points in her series.  From my perspective, having spent more than 30 years working in Civil Works and Regulatory Programs for the Corps, the most critical factor for energy companies planning large infrastructure projects and companies providing advance mitigation through banking/in- lieu fee programs is predictability.  Both groups make large financial investments upfront primarily based on a risk assessment of successfully obtaining legally defensible Corps permits in a timely fashion.  This requires a clear understanding of wetland policies and their implementation at the District level.

The Regulatory Program in Alaska, unlike anywhere else in the country, faces the added challenge of the presence of enormous wetland areas that are difficult to replace, with limited opportunities to appropriately and practicably mitigate.  While not all impacts must be mitigated, the sequence requirement for appropriate and practicable avoidance, minimization, and then compensatory mitigation is required.

In Alaska it is often not possible to avoid all impact.  Further, when trying to minimize impact, it is a challenge to find appropriate and practicable compensatory mitigation.

Moreover, it is important not only to compare the wetland acreages of permitted impacts vs. mitigation, but also the types and quality of impacted wetlands vs. the types and quality of the mitigation.  Specifically, did the ecological mitigation that was required for those permits compensate for the wetland impacts that were permitted?

It is also important to understand that if there has been a change in mitigation practices by the Alaska District, that there is a sound ecological basis for such a change.  When a permit is obtained for a large infrastructure project, it is vital that the permit decision be sustainable and upheld in the courts.  Given the relation of mitigation to the anticipated North Slope oil and gas development, it is extremely important that the Corps examine this issue closely based on a review of all facts and provide a full report of its findings available for public review, comment, and input into the mitigation policy decision for Alaska.

This open collaborative process would ensure that the Alaska District will require appropriate and practicable compensatory mitigation based on sound science, providing the needed predictability for the program that can be upheld, if challenged, in the court system.

An official in Washington with knowledge of this situation recently told me that top officials at the EPA, Army Civil Works, and the Corps of Engineers are looking at this issue closely, in light of the importance of the North Slope with the anticipated increase of oil and gas development. While the ultimate decision is anyone’s guess, my hunch is that the Administration will put some needed daylight on this issue, comprehensively examining the facts and diligently looking for mitigation opportunity solutions that can be made available for upcoming permit wetland impacts, before a mitigation policy is finalized for Alaska.

Linda Morrison
Senior Advisor

A member of the Dawson team since 2013, Linda served as Assistant Secretary of the Army’s liaison to the Corps of Engineers and the Office of Management and Budget for the Civil Works National Program and in the Regulatory Program for the Corps both at the District level and Headquarters. 

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