Boyle: Wetlands move is a victory for Alaska
The court was divided, howev- er, over a “significant nexus” test, or wetlands that were still connect- ed to streams that flow to navigable waters. The EPA emergency rule re- moved the nexus test, but there are still uncertainties over what lands are wet enough to require Section 404 permits. In some ways, there may not be significant changes in the way com - panies will plan projects, particular - ly on the North Slope. The Section 404 program still ex - ists. Companies will still apply for permits and are likely to be required by the Corps to do wetlands determi - nations. Large projects will still re - quire Environmental Impact State - ments. Alaska’s departments of Law and Environmental Conservation are working out the state’s approach as to how lands will be classified on whether they are wet enough. Another priority for DNR is the implementation of new carbon credit programs by the state. The Legisla - ture authorized carbon offset credits to be sold on forests on state lands in its 2023 session, and Boyle said DNR is drafting regulations for the new credit offset program after complet - ing an initial scoping review. DNR expects to have draft rules later this year and given require - ments for state attorneys’ review, the final regulations should be pub - lished in the first part of 2024, the commissioner said. A manager is also now designated to manage the program within DNR, so there is now a central point of contact. How the program will work is under review, but it will likely in- volve sales of credits in state forests, but may also allow individuals to lease state lands or commit private lands for carbon credit sales under the state program. Oil and gas producers are inter - ested in the forest offset credit pro - gram as a way or showing they can achieve “net zero” in carbon emis -
sions in their Alaska operations. Currently, Alaska Native corpora - tion landowners are the only entities selling forest offset credits in Alaska and oil and gas companies have pur - chased some of these. A state-operated program will expand potential sources where the credits can be purchased. Revenues to the state are likely to be modest but should at least cover expenses of the program and help pay for forest restoration and improvement, Boyle said. On the underground carbon di- oxide injection, which will affect industry more directly, state leg- islators granted authority this year for the Alaska Oil and Gas Conserva- tion Commission to pursue approval of “Class VI” injection wells by the EPA, and this is now underway. So- called Class VI wells are those spe - cially-designated, and designed, for injection of carbon dioxide, and they must be regulated by the EPA, or a state entity designated, which would be the Commission. Under this, since the state owns the unused “pore space” in un - derground oil and gas reservoirs in Cook Inlet and the North Slope it would lease space to companies for permanent sequestering, or storing, carbon dioxide resulting from petro - leum production. Other states are pursuing similar initiatives and some, including Wy - oming and North Dakota, are well along in developing underground carbon dioxide storage. Alaska has a key advantage, Boyle said, as the sole owner of under- ground reservoir space for storage. That’s because companies wishing to sequester carbon dioxide won’t have to deal with a number of pri - vate owners of underground rights, as in other states, but only one en- tity, the state of Alaska. This will simplify and speed transactions and will be a big selling point for Alaska, Boyle said.
Uncertainties remain after Sackett, says DNR Commissioner BY TIM BRADNER Alaska’s Department of Natural Resources (DNR) is closely watching changes in federal policy on wet - lands regulation in the wake of the U.S. Supreme Court’s Sackett deci - sion and recent changes in rules by the U.S. Environmental Protection Agency intended to comply with the decision. State Resources Commissioner John Boyle and Deputy DNR Com - missioner John Crowther said there are still uncertainties about how the U.S. Army Corps of Engineers will administer a post-Sackett Section 404 wetlands protection program. The corps has yet to publish new guidelines. Crowther said that in Alaska, and particularly the North Slope, there will be “jurisdiction’ disputes, meaning what areas will continue to be regulated and require Section 404 permits and what areas will be ex - empted. However, Boyle said a big win for Alaska is that it is now clear the EPA’s practice of gradually expand - ing the definition of “Waters of the United States” to include more lands and activities under the federal Clean Water Act has ended. “EPA was on a course that even a dry ditch would have been regulat- ed,” Boyle said. Also, large areas of Alaska are also only seasonally wet, and un- der Sackett many of these could be excluded from the requirement for Section 404 permits. The Supreme Court ruled that federally-protected wetlands must be adjacent to “rel - atively permanent” waterways, or those “connected to traditional in- terstate navigable waters,” such as a river or ocean.
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The Alaska Miner
Fall 2023
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