i _
f November 4t 1992
Part VIII
EnyironmentaL
Protection Agency
40 CFR Part 230
Exception From Wetlands Mitigation
Sequence for Alaska; Proposed Rule
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52716 Federal Register / Vol. 57. No. 214 / Wednesday. November 4. J992 ^ .ftoppsed _Ruteg_
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 230
IFRL-4530-6J
Exception From Wetlands Mitigation
Sequence for Alaska
AGENCY: Environmental Protection
Agency. . '
ACTION: Proposed rule. .,_,,__
SUMMARY: The Environmental Protection
Agency (EPA) is proposing to revise the
Clean Water Act Section 404(b)(l)
Guidelines (Guidelines) to provide an
exception from the wetlands mitigation
sequence (i.el, avoidance, minimization,
and compensation) for proposed
discharges of dredged or fill material
into wetlands in States with less than
one percent loss of historic wetlands
acreage. Under this proposed revision,
proposed discharges of dredged or fill
material into wetlands in the State of
Alaska, which is the only State with less
than one percent loss of his historic
wetlands acreage, 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 (i.e.,
avoid adverse impacts to the aquatic
ecosystem). In addition, this proposed
revision would no longer require, for
discharges of dredged or fill material '
into wetlands in the State of Alaska,
that all appropriate and practicable
measures to compensate for potential •
unavoidable adverse impacts on the
aquatic ecosystem be undertaken. For
the State of Alaska, minimization of
impacts would constitute the requisite
mitigation necessary to meet the
mitigation requirements of the
Guidelines. The Administrator of EPA,
in consultation with the Secretary of the
Interior and the State of Alaska, will
monitor wetlands losses in the State to
determine if the assumptions underlying
this rule remain valid and whether the
exception would continue to apply. This
rule is being proposed in accordance
with the President's August 9,1991,
Wetlands Plans.
DATES: Written comments must be
submitted on or before December 21,
1992. '
ADDRESSES: Written comments should
be submitted to: Mr. Gregory E. Peck,
Chief, Wetlands and Aquatic Resources
Goodin at (202) 260-9910 or Mr. Clifford
Rader at (202) 260-6587.
SUPPLEMENTARY INFORMATION:
Background
The Federal Water Pollution Control
Act of 1972 (renamed in 1977 as the
Clean Water Act) established, at section
404, a regulatory program for the
evaluation of permit applications for
propose"d 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)(l)
Guidelines (Guidelines). The Guidelines,
which were published as final
regulations on December 24,1980 (45 FR
85338), are the substantive
environmental criteria used in " •
evaluating discharges of dredged or fill "
material under section 404 of the Clean
Water Act
The Guidelines provide four general
restrictions in 1230.10 that must bejnet
before a permit can be issued .'" • ^i-\
authorizing the discharge of dredged or "'
fill material into waters of the U.S.
Today's rulemaking involves two of ;
these restrictions: The prohibition in
§ 230.10(a) against any discharge where
•there is a less damaging practicable
altema'tive and the requirement in
§ 2$0.10(d) that appropriate and
practicable steps be taken to minimize
: potential harm to the aquatic ecosystem. .
," As~required by the Guidelines and - •
. clarified in an EPA/Department of the
Army Memorandum of Agreement
(MOA) concerning the determination of
mitigation (55 FR 9210. March 12,1990).
these two regulatory provisions are the
>- basis for the Guidelines' three step
sequence for mitigating potential
adverse impacts to the aquatic
environment associated with a proposed
discharge (i.e., first avoidance, then
minimization, and lastly compensation
for unavoidable impacts to aquatic
resources). - . „• ,
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
Regulatory Branch, Wetlands Alaska
Docket (A-104F), U.S. EPA. 401M StreeT practicabfe. As the next step in the
SW.. Washington. DC 20460. sequence, remaining impacts are
FOB FURTHER INFORMATION CONTACT:
Details are available from Mr. John
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 when reasonable and
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. As recognized in the MOA,
no net loss of wetlands is a goal of the
section 404 regulatory program.
On August 9,1991. the President
issued a plan for protecting wetlands
(President's plan or plan) that contains
proposed provisions to "improve and
streamline the current regulatory
' system." One element of the plan
provides that "States with less than a 1
percent historic rate of wetlands .
development wiU be able to satisfy
permit requirements through
minimization." Based on historic loss
r data (Dahl. T.E., 1990. "Wetlands Losses
in the United States 1780's to 1980's" s
U.S. Department of the Interior. Fish and
Wildlife Service. Washington, DC, 21
pp.), this provision is applicable only in
the State of Alaska. According to this
data, using the estimated 170,200,000
acres of wetlands present in Alaska in
• the late 1700's, only 200,000 acres have
. been converted, or 0.1 percent of the
State's original wetland acreage. Such a
low loss rate in Alaska indicates a
minimal impact to the State's wetlands.
An estimated 45 percent of Alaska's
surface area remains wetlands.
No other State in the U.S. has
experienced so low a percentage loss of
original wetlands acreage as has
Alaska. The average wetlands loss for
States outside of Alaska is
approximately 53 percent of.their.
original wetlands acreage.
In addition, the U.S. Fish and Wildlife
Service has determined that 40 percent
of Alaska's wetlands—€8 million acres,
more than the total remaining wetlands
in Florida, Louisiana, Minnesota, Texas,
North Carolina, Michigan, Wisconsin, •
Georgia, Maine, and South Carolina
combined—are already in federal or
state conservation units. In many cases
in Alaska, there are no practicable
alternatives for development except in
wetlands due to factors such as
topography and climate. For example, in
Alaska, because of the high proportion
- of land that is wetland, it is difficult to
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Federal Register / Vol. 57, No. 214 / Wednesday, November 4, 1992 / Proposed Rule* . 52717
avoid .impacts to wetlands •when.
development end growth occur.
Similarly, due to the high proportion of
wetlands in Alaska, it is difficult to
compensate for wetland loss. In most
other states, compensation takes the
form of restoration of historic wetlands.
In the case of Alaska, because of its
. extremely low loss rate, it is
exceptionally difficult to restore historic
wetlands. In addition, opportunities for
compensatory mitigation are reduced
when loss rates are low and there are
many unimpacted wetlands.
EPA and the Department of the Army
issued a joint memorandum to their field
staff on January 24,1992, that
emphasized existing mitigation
provisions in the Guidelines and the
• EPA/Department of Army MO A that
currently apply to most.permit decisions
in Alaska. Consistent with the
Guidelines and MOA,'the guidance
-noted that the agencies should strive for
avoidance of impacts to existing aquatic
resources, and that there is a general
goal of a -minimum of one for one
functional replacement of wetlands.
However, the guidance emphasized that
the MOA also stales that "this minimum
requirement may not be appropriate and
practicable, and thus may not be
'. Jslevant in all cases." This statement is
, farther explained in footnote seven of
the MOA, which states in part
For example, there are certain areas where,
due to hydrological conditions, the •
technology for restoration or creation of .
wetlands may not be available at present, or
may otherwise be impracticable. In addition,
avoidance, minimization, and compensatory
mitigation may not be practicable where
there U a high proportion of land which is
wetlands.
/
The guidance memorandum notes that
this footnote makes it clear that there
are areas where it may not be
practicable to restore or create
wetlands; in such cases compensatory
mitigation is not required under the
Guidelines.
Section 404{b)(l) grants authority to
the Administrator to develop guidelines
for use by the Secretary of the Army
(i.e.. the Corps of Engineers) in
designating disposal sites for dredged or
fill material into waters of the United
States. Section 404(b)(l) commits to the
AdmirJstrator's discretion the exact
terms of those guidelines, which "shall
be based upon criteria comparable to
. the criteria applicable to the territorial
seas, the contiguous zone, and the ocean
under [Clean Water Act] section 403(c}."
EPA believes that, if there is a
reasonable basis for treating Alaska
wetlands differently from wetlands in
the rest of the United States (based on .
the gee-graphic, climatic, historical, and
other factors summarized above),.*, _•
section 404(b)(l) provides sufficient -",;'..
discretion to the Administrator to ;
modify the section 404(b}{lj Guidelines
to treat Alaska differently for wetlands -
sequencing purposes. - ......
Summary of Proposed Ride
Today's proposed rule would revise
the 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. This rule is being proposed in
accordance with the President's August
9,1991, Plan and in recognition of: (1)
The relatively low historic loss 0f
wetlands in the State of Alaska; the
State retains over 99 percent of its
original wetlands acreage, which totals
approximately 170,000,000 acres, or 45
percent of the State's total surface area;
(2) the significant percentage of Alaska's
wetlands being managed as Federal and
State conservation units; (3) the limited
availability of upland alternatives for
development projects given the high
percentage of wetlands in Alaska, as
well as large expanses of permafrost,
mountainous terrain, glaciers and lakes;
and (4) the technical and logistical
difficulties in restoring or creating
wetlands in large portions of Alaska;
some of these difficulties include ' .
•permafrost hydrology, unavailability of
restoration sites, and limited creation •'••'
opportunities due to the high proportion
of wetlands, . • • ' : ./•
Under this proposed revision,-" . -
proposed discharges of dredged or fill
material into wetlands in the State of
Alaska would not be subject to .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, this proposed
revision would no longer require, for
discharges of dredged or fill material
into wetlands in the State of Alaska. •
that all appropriate and practicable
measures to compensate for potential
unavoidable adverse impacts on the
aquatic ecosystem be undertaken. For
discharges of dredged or fill material
into wetlands in the State of Alaska.
minimization of impacts would
constitute the requisite mitigation
necessary to meet the requirements of
the Guidelines. The proposed rule would
revise | 230.10 (a) and (d), and add a
new subsection at 230.10{a){6} to codify
these changes. Conforming changes are
also proposed at §§ 230.5(c), 230.5(j),
and 230.12(a)(3).
EPA notes that subpart H of part 230.
which remains unchanged, details
possible actions to minimize adverse
impacts of a proposed discharge. These
actions may be undertaken to minimize
adverse Impacts of proposed discharges
in the State of Alaska, although the
wetlands development and restoration
techniques discussed .in 5 230.75(d) are
no longer applicable to Alaska as part of
the wetland mitigation sequence which
applies in other States. Appropriate and
practicable steps to minimize potential
adverse impacts of proposed discharges
in Alaska, as elsewhere, would continue
to include the use of such techniques as
altering project size or configuration.
EPA also notes that nothing In this
rule affects the current provision of
S 230.10{c) of the Guidelines, which
requires that no permit can be. issued
where the proposed discharge would
result in significant degradation of the
aquatic environment. In addition,
S 230.10(b) remains unchanged, which
requires, among other things, that no
discharge be permitted if it violates
State water quality standards or
jeopardizes threatened or endangered
species.
It is important to note that the
exception in Alaska from the
requirements found at § 230.10(a}
applies only to requirements under
section 404 of the Clean Water Act
Today's proposed rule does not
eliminate the need to conduct othw •
applicable alternative'analyses •''"
potentially required by such statutes as •
the National Environmental Policy Act,
Endangered Species Act, or other
regulations or Federal planning '
processes. " ".^ :'.'' '..
It is also important to note that this
rule does not affect the ability of the
State of Alaska to protect what It
considers to be high value wetlands .
using its authority under section 401 of
the Clean Water Act, applicable .. .
authorities under the Coastal Zone . ,
Management Act, or other authority
under State or Federal law. Neither does
this rule affect the ability of local
governments to protect wetlands
through their power to regulate land use.
to the extent allowable under Alaska
law. With regard to the most relevant
Federal statutes, section 401(a)(l) of the
Clean Water Act provides that "No
license or permit shall be granted if
certification has been denied by the .
State * * *". Similarly, the Coastal Zone
Management Act (16 U.S.C.
1455{c}(3)(A3) provides that "No-license
or permit shall be granted by the Federal
agency until the State or its designated
agency has concurred with the
applicant's certification * * *", although
under certain circumstances the
Secretary of Commerce retains the right
to over-rule the State.
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52718 Federal Register / Vol. 57. No. 214 / Wednesday, November 4. 1992 / Proposed Rules
In addition, the Administrator of EPA,
in consultation with the Secretary of the
Interior and the Slate of Alaska, will
monitor wetlands losses in the State to
determine if the assumptions underlying
this rule remain valid and. whether the
exception wouFd continue fo apply.
Efforts underway by Jhe State of
Alaska to develop a wetlands
categorization approach as part of a
State regulatory package for freshwater
•wetlands may prove useful for the
identification and protection of high
value wetlands. Examples of the types
of wetlands which may be identified as
being of high value include, but are no!
necessarily limited to, fenportant
anadroroous fish spawning habitat and
significant spawning and nursery
habitat for commercially valuable
marine fisheries. This rule is not
intended to, and should not conflict with
the State's effort*. Indeed. EPA
specifically invites comment on bow
. Alaska's wetlands regulatory initiative
might be integrated into EPA's final role.
and how Federal agencies might most
appropriately apply Alaska'* system for
identifying high value wetlands. More
generally, EPA invites jwfclic comment ,
on whether or not it would be
appropriate for this rale to- more directly '
address the protection of, high value
wetland* as identified through Alaska's^
wetlands categorization process,
including the option of maintaining the
full sequencing of avoidance. •
minimization, and compensation for
high value wetlands* and if appropriate,
how this might be accomplished.
This proposal will become effective 30
days after publication of a final rule in
the Federal Register. :
Paperwork Reduction Act
Today's rule places no additional
information collection or record-keeping
burden on respondents. Therefore, an
information collection request has not
been prepared and submitted to the
Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C.
3501 et seq.].
Executive Order 12291 tod the
Regnlsrtory Ftedbtlitjr Act
The Environmental Protection Agency
has determined that the revisions to this
regulation do not constitute a major
. proposal requiring the preparation of a
regulatory analysis under E.0.12291.
This rule was submitted to the Office of
Management and Budget for Review
under E.0. 12291. Pursuant to section
605(b) of the Regulatory Flexibility Act,
the Environmental 'Protection Agency
certifies that this regulation will not
have a significant impact on a
substantial number of small entities.
List of Subjects in 40 CFR Part 230
Alaska, Water pollution control,
Wetlands.
William ICReillSr,
Administrator, Environmental Protection
Ag&ocf.
Accordingly, 40 CFR part 230 is
proposed to be amended as follows:
40 CFR CHAPTER f— {AMEXDEDJ
PART 230-SECTION 404
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