[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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