By Peg Bostwick, ASWM
Most state wetland programs managers are familiar with the provision of Clean Water Act §404 which allows a state that has its own dredge and fill permit program to assume responsibility for permitting under §404 as well. Here’s the specific language (with some highlights added).
The Clean Water Act allows for assumption of the §404 Program by,
“..any State desiring to administer its own …permit program for the discharge of dredged and fill material into the navigable waters (other than those waters that are presently used, or are susceptible to use…as a means to transport interstate or foreign commerce shoreward to their ordinary high water mark, including all waters which are subject to the ebb and flow of the tide…including wetlands adjacent thereto…).” - CWA §404(g)
Note the limit on waters that may be assumed by a state; the U.S. Army Corps of Engineers must retain authority for tidal waters, as well as other waters used to “transport interstate or foreign commerce” and adjacent wetlands. Back in 1977 when this language was drafted, this division of responsibility seemed reasonable, since the “traditional navigable waters” regulated by the Corps under Section 10 of the Rivers and Harbors Act were fairly well-defined. Congress was making provisions allowing a state to assume responsibility for any “other navigable waters”.
However, as we now know, any Clean Water Act regulatory language that relies on the term “navigable” is less than crystal clear, especially when wetlands are involved. As discussed in this blog in October, 2013 (see “Salameander: Navigable, Adjacent, Assumable Waters”) both decisions of the Supreme Court and subsequent rulemaking on the scope of federal jurisdiction have confused the extent of state assumable waters, as both Oregon and Alaska have learned while in pursuit of §404 program assumption in recent years. The extent of “adjacent” wetlands – in the context of state assumption – is also unclear.
What is clear is that Congress intended that states have the opportunity to play a significant role protecting waters and wetlands under the (then new) Clean Water Act, while allowing the Corps of Engineers to maintain its authority over waters regulated under the 1899 Rivers and Harbors Act. ASWM and other entities have urged EPA to clarify the scope of assumable waters, and not to limit the extent of potential state authority.
Fortunately, the EPA heard our concern, and has taken steps to clarify the extent of state assumable waters with public input from an “assumable waters” subcommittee formed under the Federal Advisory Committee Act (FACA). A Federal Register notice posted on March 16, 2015 requests nominations for this subcommittee.
The charge of the “assumable waters subcommittee” is:
“… to provide advice on how the EPA can best clarify the waters that a state or tribe may assume permitting responsibility for under an approved Clean Water Act dredge and fill permit program. … … Other aspects of state or tribal assumption will not be in scope for the deliberations of this advisory committee. For example, the subcommittee will not be deliberating on the merits of assumption.”
In other words – and this is important – the subcommittee will not address the definition or scope of federal jurisdiction – only the possible allocation of state and federal responsibility over waters of the U.S. for purposes of §404. It will be concerned with those problematic terms “navigable” and “adjacent” only in the context of §404(g).
Formally, the “assumable waters subcommittee” will be established under the National Advisory Council for Environmental Policy and Technology (NACEPT) – a standing committee chartered under FACA. Appointments will be for a two year period, although the initial expectation is that the work of the subcommittee may take from 12 – 16 months. EPA’s notice indicates that the group may be expected to meet 4 – 6 times, either face-to-face or via teleconference.
Nominations to the subcommittee are due by May 15, 2015 and selections will be made by June 15, 2015. See the Federal Register notice for qualifications and other details. ASWM is gratified that this issue will finally be clarified for states and tribes interested in §404 program assumption. We will be following this issue closely, and will keep you advised.
For the Federal Register Notice regarding formation of the assumable waters subcommittee, click here.
To read the Salameander post of October 2013 – “Navigable, Adjacent, Assumable Waters”, click here.
To read all of Clean Water Act §404(g), click here.