DEC pitches state assumption of Clean Water Act section 404 permitting; requests phased staffing and startup funding

Jean McCabe, director of the Division of Water at the Department of Environmental Conservation, briefed the Senate Finance Subcommittee on March 11, 2025, on the department’s plan to assume primacy for Clean Water Act section 404 permitting.

"We can streamline it while maintaining the same high standards we have today," McCabe told the committee, describing a potential state program that would issue permits for the discharge of dredged or fill material into waters of the United States (commonly wetlands) and that would eliminate a separate state 401 certification step when federal permits are issued.

McCabe said the department already holds state primacy for other federal environmental programs (such as Safe Drinking Water Act and Clean Air Act programs) and is executing the 2013 Alaska Legislature’s direction in Senate Bill 27 to take reasonable steps to assume section 404 authority. She described section 404 permits as those most commonly required for gravel pads, roads, airport work, revetments and other projects that place fill in wetlands.

The presentation addressed legal and practical limits. McCabe cited the U.S. Supreme Court’s 2023 Sackett decision as having narrowed the federal jurisdictional reach of "waters of the United States," meaning some inland wetlands will no longer be jurisdictional. She said the Army Corps of Engineers would retain authority for navigable waters under the Rivers and Harbors Act of 1899 (section 10), and that EPA retains its section 404(c) authority and that this portion cannot be transferred to the state.

McCabe told senators that Alaska contains a large share of U.S. wetlands (the division’s figures show Alaska accounts for nearly two‑thirds of national wetlands acreage) but that the question of which areas are jurisdictional under post‑Sackett law is being assessed project by project. She said the department lacks an Alaska‑wide, validated jurisdictional inventory and is exploring satellite mapping and models to produce high‑level estimates, but that a statewide, boots‑on‑the‑ground determination does not yet exist.

On staffing and budget, McCabe said the FY26 governor’s amended request includes $1,450,000 for five positions and start‑up costs to launch an assumption team. She referenced a 2023 feasibility study that estimated an end‑state program of about 32 positions and roughly $5 million in ongoing annual costs; McCabe said DEC proposes a phased approach over three fiscal years that would begin with five positions in FY26 and add staff as the program ramps up.

On fees, she said the department has statutory authority to set permitting fees and would evaluate a fee schedule, but no fee structure was available at the hearing. McCabe also said the appeals process for assumed 404 permits would remain in Alaska courts.

Senators asked questions about wetlands counts and jurisdictional uncertainty. Senator Hughes asked whether the large acreage classified as wetlands in Alaska could reflect misclassification; McCabe said wetland delineation is science‑based and that the acreage estimates are likely accurate but that jurisdictional status under the Clean Water Act is a separate legal assessment and remains under evaluation.

Senator Klayman pressed staffing projections: the 2023 feasibility study recommended roughly 32 positions in total; McCabe said DEC will phase hires and evaluate end strength as the assumption process continues. Senators asked for more detail on timelines for permitting improvements; McCabe said the department does not currently have comparative federal permitting timelines and could not provide a definitive time‑savings estimate at the hearing.

McCabe’s presentation framed state assumption as a way to provide regulatory certainty tailored to Alaska’s landscape — permafrost, vast wetlands and unique development patterns — while meeting Clean Water Act requirements. The subcommittee did not take formal action and requested follow‑up on staffing and fee analysis as the department advances the assumption process.