The Alaska House and Senate will hold hearings this week on Gov. Sean Parnell’s legislation to assume administration of the U.S. Corps of Engineers’ dredge and fill program.
The bureaucratic term for this action is “primacy.” I call it the last chance to bring common sense to a regulatory program—based on my experience with the Corps—which is a rat’s nest of rules, ad hoc imposition of requirements that are essentially “fast food law,” and is huge federal overreach triggered by a misguided court ruling in the mid-1970s.
The heart of the program is the definition of what constitutes the “waters of the United States.” Based on the 1970s precedent-setting court decision, and the Corps subsequent definition by rule of the definition of the “waters of the United States,” about the only thing that is exempt from the “U.S. waters” definition (and Corps regulation) is spitting in the desert.
My wife Lynn and I have a long, sad history of dealing with the Corps. It all began years ago when we purchased land along Skater’s Cabin road and wanted to haul in some fill material so we could build a house on our property.
We soon discovered that the lot we purchased was in a “wetlands” area and that the Corps had asserted jurisdiction over the wetlands portion of our property, even though the “wetlands” were created by a culvert which moved water from the north side of Skater’s Cabin road to our lot.
It was at this point that I knew we were in trouble. But being a good citizen, we applied for a Corps nationwide permit which is supposed to be the quickest route to golden prize: a freshly minted dredge and fill permit.
However, in an exchange of letters on the permit application with the Corps it soon became apparent that this was not going to be a simple or rapid process.
In one letter, the Corps noted the plethora of wildlife that supposedly resided or visited the area in which our lot was located and noted that we should take action to avoid disrupting these creatures.
It was at that point I probably made a huge mistake. I wrote a column on my experiences in dealing with the Corps and labeled it “praying for a permit.” The Empire published the column and in it I highlighted portions of the correspondence between the Corps and me, including the sections of a Corps letter which focused on the wildlife issue.
I noted in my response letter to the Corps that I was diligently searching our lot and the immediate area for the wildlife species noted in the Corps’ letters, but the only “wildlife” I had detected were those Juneauites who used the Skater’s Cabin area to host beer parties. However, I also noted, that in a detailed search of our lot—although I had not been successful in finding the wildlife noted in their letter — I was successful in finding a substantial quantity of dog droppings in the area. I didn’t receive a response from the Corps to this tidbit of information.
After much delay and loss of enamel on my teeth, we finally got the Corps permit to place fill material on our lot.
Our latest goat-rope with the Corps began about a year ago. Our family owns 19-acres at Wheeler Creek, which is located in a federal wilderness area on Admiralty Island. We can reach our property via our boat at a 13-foot tide and decided—for environmental and other reasons—that a gravel pad at creekside and a gravel trail to our cabin would be a worthwhile project to undertake.
The land from the Creek to our cabin is not what I would consider “wetlands” but knowing that I would be asking for trouble if I moved forward without applying for a Corps permit, I proceeded to take that route.
I hired a trails expert to lay out the trail and prepare the application for a Corps permit.
This expert is extremely knowledgeable of the Corps permit process and I have used his talent to assist my family in trail work at our Hand Troller Cove property.
This application process, using an expert to help me through the thickets of the Corps regulatory thicket, is not an inexpensive exercise.
Our expert compiled an impressive application package, and channeling Arlo Guthrie, was complete with glossy 8” x 10” color photographs and other supporting documentation.
Our expert submitted the application to the Corps on Jan. 15 of last year. On Feb. 3, the expert received confirmation that the Corps had received our application. Then followed dead silence for six weeks until I received a March 12 letter from the Corps proudly telling me that: “we have determined that your proposed project may involve work in and placement of dredged and/or fill material into the waters of the United States (U.S.) under our regulatory jurisdiction.” Duh!!
The Corps letter also dredged up (pardon the pun) a bunch of totally nonsensical requests for additional information, which in my opinion, was included in my permit application. While contemplating hari kari due to the Corps response, I did the next logical thing: I squealed “help” to the expert and “baloney” to the Corps.
Here’s the clincher.
My expert found a Corps’ reg that requires the agency to issue a nationwide permit if the Corps hasn’t issued a written response to the initial application within a 45-day period.
Hoo-ha, we got the “brass ring.”
But not before going through a huge expense in preparing the application, and then waiting for nearly two months waiting for a Corps response. And when we received the response, the Corps was requesting additional silly information related to the original application after their own regulatory deadline required them to issue me the permit.
I hope the Governor’s legislation finds its way through the House and Senate and ends up on his desk. The current Corps program is simply dysfunctional, does little or nothing to protect the environment, and is paperwork-generating machine.
A Corps program run by Alaskans is not only in the public interest, it simply makes good sense.
• Reinwand was Gov. Jay Hammond’s top aide during his second term and served in the same position for then-Senator Frank Murkowski in the senator’s Washington, D.C. office. Reinwand also served as Deputy Commissioner of the Alaska Department of Environmental Conservation in both the Egan and Hammond administrations.