Compensatory Mitigation in Alaska under CWA Section 404

• Guidance Regarding Mitigation in Alaska
• Restoration as Compensatory Mitigation in Alaska
• Restoration Resources
  • State Agency Resources
  • Federal Agency Resources
  • Other Resources

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Guidance Regarding Mitigation in Alaska

On June 15, 2018, the EPA and Army signed a Memorandum of Agreement (MOA) that provides guidance regarding flexibilities that exist in the mitigation requirements for Clean Water Act Section 404 permits, and how those flexibilities can be applied in the state of Alaska given the abundance of wetlands and unique circumstances involved with Section 404 permitting in the state. The MOA recognized six guiding principles that are specific to the state of Alaska:  

1. Avoiding wetlands may not be practicable where there is a high proportion of land in a watershed or region which is jurisdictional wetlands;
2. Restoring, enhancing, or establishing wetlands for compensatory mitigation may not be practicable due to limited availability of sites and/or technical or logistical limitations;
3. Compensatory mitigation options over a larger watershed scale may be appropriate given that compensation options are frequently limited at a smaller watershed scale;
4. Where a large proportion of land is under public ownership, compensatory mitigation opportunities may be available on public land;
5. Out-of-kind compensatory mitigation may be appropriate when it better serves the aquatic resource needs of the watershed; and
6. Applying a less rigorous permit review for small projects with minor environmental impacts is consistent with the Section 404 program regulations. 

Read the 2018 Memorandum of Agreement - The 2018 MOA updates and replaces the EPA and Army Memoranda entitled "Clarification of the Clean Water Act Section 404 Memorandum of Agreement" on Mitigation, dated January 24, 1992, and "Statements on the Mitigation Sequence and No Net Loss of Wetlands in Alaska," dated May 13, 1994.

Restoration as Compensatory Mitigation in Alaska

Compensatory mitigation is the third step in a sequence of actions that must be followed to minimize impacts to aquatic resources. In 2008, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jointly promulgated regulations revising and clarifying requirements regarding compensatory mitigation.  According to these regulations, compensatory mitigation means the restoration, establishment, enhancement, and/or preservation of wetlands, streams and other aquatic resources for the purposes of offsetting unavoidable adverse impacts that remain after all appropriate and practicable avoidance and minimization has been achieved.

In Alaska, the most common method of compensatory mitigation has been preservation.  Aquatic resource restoration and enhancement are far less commonly employed methods of compensatory mitigation in the state. In June 2018, EPA and the Department of the Army (Army) met with stakeholders, including permittees, mitigation providers, and state and federal agencies to discuss ways to facilitate restoration as mitigation. In addition to ecological and logistical barriers, stakeholders identified a lack of easily accessible data as a barrier to identifying potential restoration projects. 

To address this, EPA and Army are currently working with stakeholders to develop a tool that would collate and spatially display data relevant to potential restoration sites. This tool, which is in the early phases of development, would make restoration information more accessible for permittees and third-party mitigation providers. It would also facilitate transparency, efficiency, and coordination between agencies and mitigation providers. 

While this tool is in development, EPA has identified several Alaska-specific restoration resources that could be useful for identifying potential restoration projects, provided below. EPA encourages early engagement with the Corps and State and Federal natural resource agencies when identifying potential restoration sites to ensure that restoration will be successful and meet the permittee's mitigation requirements and timelines.

Restoration Resources

State Agencies

• Alaska Department of Environmental Conservation (DEC)
  • Webmaps - DEC provides public, interactive webmaps, including contaminated sites, impaired waters, and water quality maps.
• Alaska Department of Fish and Game (ADFG)
  • Restoration and Enhancement - ADFG maintains a restoration and enhancement program to restore riparian habitat, restore fish passage, and enhance wildlife habitat. This webpage provides information on the program, databases and modeling tools, and contact information.
  • Anadromous Waters Catalog - ADFG maintains a catalog and atlas of waters important for the spawning, rearing, or migration of anadromous fishes.
  • Crucial Habitat Assessment Tool - ADFG developed a web tool that displays crucial habitat and corridors to inform land use planning.
• Alaska Department of Natural Resources (DNR)
  • Abandoned Mine Lands - DNR administers an Abandoned Mine Lands Program to facilitate the reclamation of mine sites that were abandoned or left in an inadequate reclamation status, and for which there is no continuing reclamation responsibility under State or federal law. 
• Alaska Department of Transportation (DOT)
  • Regional Offices - DOT's regional offices track projects and could potentially provide information regarding restoration opportunities. Each region's webpage is linked below
    • Northern Region
    • Central Region
    • South Coast Region

Federal Agencies

• Bureau of Land Management (BLM, Department of the Interior)
  • Alaska Spatial Data Management System - This data management website provides access to BLM-Alaska land record documents, reports, and GIS data, including land conveyance cases, master title and survey plats, leases, permits, federal mining claims, and easements.
• Fish and Wildlife Service (Department of the Interior)
  • National Fish Habitat Partnerships - Alaska has several Fish Habitat Partnerships (FHP) that identify projects to benefit Alaska's native fishes and their habitats.  The FHP webpage  provides links to these partnerships' individual websites and contact information. 
• North Slope Science Initiative (Department of the Interior)
  • ​North Slope Science Catalog - This catalog provides access to web portals, research, and datasets that are relevant to decision-making and planning on Alaska's North Slope. This webpage also tracks research and data developments by other agencies and organizations.
• National Oceanic and Atmospheric Administration (NOAA)
  • ​Habitat Conservation - NOAA Fisheries' habitat conservation activities include protecting essential fish habitat, mitigating damage to and enhancing habitat, removing invasive species, and restoring habitat that has been affected by human activities. This webpage provides program information and resources, including the Essential Fish Habitat Web Application and Mapper, the ShoreZone mapping system, and contact information.
• National Park Service (NPS)
  • ​Natural Resource Inventory and Monitoring - This webpage lists science and data initiatives within the parks taken by the Alaska regional office of NPS. The page also includes contact information, which may be useful because information about potential restoration sites within the park system is not currently publicly available.
• U.S. Army Corps of Engineers
  • Alaska District Mitigation - The Army Corps of Engineers administers the Clean Water Act Section 404 permitting program. This webpage provides information about mitigation in the Alaska district, as well as contact information.

Other

• Alaska Center for Conservation Science (University of Alaska Anchorage)
  • ​Northwest Boreal LCC Anthropogenic Footprint - This webpage provides maps and datasets representing development footprints across the Northwest Boreal landscape, which may be useful in identifying potential restoration sites.