What the #@*% is 404 State Primacy
Wetland permits are critical to large mining and other industrial operations. The Dunleavy Administration, DEC, and mine promoters want to control wetland permitting to streamline the industrialization of areas like […]
Proposed Johnson Tract Site Location 2020
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Wetland permits are critical to large mining and other industrial operations. The Dunleavy Administration, DEC, and mine promoters want to control wetland permitting to streamline the industrialization of areas like the Bristol Bay watershed.  Unable to prevail in the court of public opinion or with the Federal EPA, the Dunleavy Administration is now attempting to create a workaround.

The “404 State Primacy” provision of the Clean Water Act (CWA) refers to the authority granted to states to administer the Section 404 permit program for regulating the discharge of dredged or fill material into “Waters of the United States (WOTUS).” Currently, the Dunleavy administration wants to take this over from the Federal government, which oversees this process with zero cost to Alaskans. This would allow the state (not the federal government) to issue permits for development in wetlands, peatlands, and WOTUS. 404 Primacy will cost Alaska a lot of money without actually helping Alaskans.

Section 404 of the CWA requires individuals or entities seeking to discharge dredged or fill material into WOTUS to obtain a permit from the U.S. Army Corps of Engineers (USACE). The Section 404 program is designed to protect the nation’s waters by regulating these discharges, which can adversely impact water quality and aquatic habitats.

However, the CWA also allows states to assume authority over the Section 404 program through a process known as “404 State Primacy.” Under this provision, states may develop their own Section 404 permitting programs that meet or exceed the requirements of the CWA and obtain approval from the USACE to administer their own program.

To obtain primacy, a state must demonstrate that its program meets specific criteria, including:

  • The state’s program must be at least as stringent as the federal program in protecting aquatic resources;
  • The state’s program must provide adequate funding, staffing, and enforcement mechanisms to implement the program effectively;
  • The state’s program must include public participation opportunities and comply with federal public notice and comment period requirements.

Once a state obtains primacy, it assumes responsibility for issuing permits for dredged or fill material discharges within its jurisdiction instead of the USACE. This means that the state administers its own program, provides its own enforcement, and retains any fees or penalties associated with its program. In some cases, the state program would not need to conduct the federal NEPA process.

The 404 State Primacy provision of the Clean Water Act was included to promote a cooperative federalism approach to environmental regulation, allowing states to tailor permit programs to their unique needs and circumstances while maintaining federal oversight and protections for the nation’s waters.

A few examples of activities requiring 404 permits are:

  • Site improvement fill for residential, commercial, or recreational development
  • Construction of revetments, breakwaters, levees, dams, dikes, and weirs
  • Placement of riprap and fill material for roads, airports, or buildings
  • Resource development projects

The 404 State Primacy provision of the Clean Water Act (CWA) would not have directly affected the Pebble Mine Environmental Protection Agency (EPA) veto.

In the case of the Pebble Mine, the EPA used its authority under Section 404(c) of the CWA to veto the issuance of a permit for the Pebble project, citing concerns about the potential adverse impacts to the region’s fishery and other aquatic resources.

Section 404(c) of the CWA provides the EPA with authority to prohibit or restrict the specification of any defined area as a disposal site for dredged or fill material, including the authority to veto a Section 404 permit after it has been issued by the US Army Corps of Engineers (USACE). This authority is separate from the 404 State Primacy provision, which allows states to assume responsibility for administering the Section 404 permitting program.

If a state has assumed primacy over the Section 404 program, it would still be subject to the EPA’s authority under Section 404(c) of the CWA, and the EPA could still veto a permit issued by the state if it determines that the project would have unacceptable adverse effects on the environment.

Why should we be concerned about the State of Alaska issuing 404 permits? 

  • It will be expensive: Why would Alaska pay at least 5 million a year for a service we currently get for free? 
  • Less Tribal Consultation: The State of Alaska does not formally recognize that tribes are sovereign governments and historically have not conducted government-to-government consultations on similar permits in the past. 
  • Less Info & Public Participation: Less information on impacts to cultural, historic, subsistence, and environmental resources and the ability to weigh in on the permitting process (like Pebble or the West Susitna Road projects).
  • More lawsuits: The proposed state-run program raises serious concerns that Alaskans would no longer have realistic opportunities to challenge weak pollution permits. That’s because federal rules protect citizens from exorbitant legal fees in permit challenges; State of Alaska rules follow a “loser pays” formula – which means any Alaskan brave enough to stand up and challenge an oil industry permit might get slapped with massive legal bills from industry lawyers.

What can you do?

Call or email your state representatives directly! We can’t afford to take on this permitting program. Ask your state legislature to prioritize the health of our wetlands and keep 404 primacy appropriation out of the state budget.