ASWM & ASFPM Request Comment Period Extension for 401 Proposed Rule

The Association of State Wetland Managers’ (ASWM) and the Association of State Floodplain Managers’ (ASFPM) review of EPA’s proposed CWA § 401 rule finds that the new rule includes more than 100 specific requests for comment, which when broken into individual questions equate to at least 130 individual questions. More than half of these questions require some level of formal legal analysis, with many to benefit from legal expertise of many state agencies. Review of the rule’s accompanying economic analysis is a major review task as well because it is so limited in scope (only analyzes two cases) and would be better served by inclusion of other cases during comment. Accordingly, ASWM and ASFPM submitted a letter requesting a 60-day extension to the existing 60-day comment period – the request can be found here.

ASWM & ASFPM Submit Pre-Proposal Comments on Proposed Changes to CWA § 404(c)

On August 13, 2019, the EPA held an intergovernmental briefing on potential revisions to the CWA Section 404(c) in response to a June 26, 2018 memo from former EPA Administrator Pruitt directing the Office of Water to propose revisions to 40 CFR Part 231: Section 404(c) procedures to “provide greater clarity and certainty to the regulated public.” Since 1972, over 2 million §404 permits have been issued by the Corps, but there have been only 30 cases initiated under 404(c), thirteen of which resulted in Final Determination and 17 of which have been terminated upon resolution of issues. Given the extremely rare and judicial use of this authority in the nearly 50 years since Congress enacted the Clean Water Act, the Association of State Wetland Managers (ASWM) and the Association of State Floodplain Managers (ASFPM) do not believe there is any documented cause to revise the regulations. On Sept. 13, 2019, ASWM and ASFPM submitted pre-proposal comments on the proposed changes which can be found here.

 

Proposed Mitigation Rulemaking

The U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency (the Agencies) have proposed a rulemaking to revise the compensatory mitigation regulations. Potential changes identified by the Agencies include: removal of the IRT Process; alternatives to add efficiencies in mitigation bank and ILF program evaluation; compliance with Miscellaneous Receipts Statute; ILF program accounting; multi-purpose compensation projects; changes to the mitigation regulations to address State/Tribal assumption of the Section 404 program; and clarity for principal unit of credits for stream mitigation projects. A pre-proposal comment period was initiated on Thursday, June 20 and concluded on Friday, August 9, 2019. ASWM submitted comments in response to a request for feedback from the Corps and EPA on questions regarding specific components of the 2008 Mitigation Rule that can be found here.

 

Clean Water Act Section 401 Comment Letters Submitted 

The Association of State Wetland Managers (ASWM) submitted a comment letter regarding pre-proposal recommendations to the U.S. Environmental Protection Agency as they examine the Section 401 Handbook as directed by Executive Order 13868, Promoting Energy Infrastructure and Economic Growth. ASWM recommends no changes to the scope of water quality review for §401 certifications and no restrictions on the types of conditions that states or tribes may judge to be reasonably appropriate to include in a certification. ASWM also rejects overly restrictive review times. The full comment letter can be read here. ASWM also signed on to a group comment letter regarding EPA’s review of the Section 401 Handbook, along with 9 other state associations and non-governmental organizations that can be accessed here.


ASWM Submits Comment Letter on Revised Definition of Waters of the U.S.

The Association of State Wetland Managers (ASWM) submitted its comment letter to the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers on February 15, 2019 in response to the proposed new definition of Waters of the U.S. ASWM views the proposed rule as being of paramount importance in maintaining the gains in water quality protection and management that have been achieved under the Clean Water Act during past decades. ASWM’s comments address multiple areas of concern, including the impact of the proposed rule on the balance of state and federal authorities; the potential ecological impact of the proposed rule and the related impact on public health and well-being; the practicality of implementing the proposed rule at both the national level, and the state level in cooperation with federal agency programs, and the resulting impact on state agencies; and the legal and scientific justification for modification of the scope of the CWA as it has been administered since 1972. The letter can be viewed here.

CWA Section 401 Process Reforms Letter

On Wednesday, February 20, a group of state associations sent the U.S. EPA and the Army Corps of Engineers a list of suggested process reforms aimed at improving the CWA Section 401 water quality certification process while preserving states’ well-established legal authority over water resources. These recommendations are intended to provide federal regulatory bodies positive suggestions for measures that could strengthen the efficiency and efficacy of CWA Section 401 programs by clarifying responsibilities of parties regarding consultation and better defining information required by project proponents in the application process. The letter was co-signed by Western Governors’ Association, National Conference of State Legislators, Association of Clean Water Administrators, Association of State Wetland Managers, Council of State Governments-West, and Western States Water Council. The letter can be viewed here.

ASWM Joins WOTUS Comment Period Extension Request

On February 14th, the Association of State Wetland Managers (ASWM), the Association of Clean Water Administrators (ACWA) and the Environmental Council of States (ECOS) requested a 60-day extension to the comment period for the revised definition of Waters of the United States. The proposed rule was published in the Federal Register on Feb.14th and can be viewed here. The extension request from ASWM, ACWA and ECOS can be viewed here.

ASWM Submits Comments on NRCS Wetland Conservation Compliance Interim Rule

On February 5th, 2019, the Association of State Wetland Managers submitted comments to the Federal Register on the Wetland Conservation Compliance Interim Rule proposed by the USDA Natural Resources Conservation Service (NRCS). Among other recommendations, ASWM urges NRCS to discontinue the certification of pre-1996 wetland determinations and resume the use of up-to-date, technically rigorous methods for wetland determinations. The full comment letter can be read here.


ASWM and ACWA Submit Comments on EPA’s Plan to Revise Section 404(g)

The Association of State Wetland Managers (ASWM) and the Association of Clean Water Administrators (ACWA) submitted comments to the U.S. Environmental Protection Agency (EPA) on the Agency’s plan for the first comprehensive revision to the existing Section 404(g) regulations as posted in the 2018 Spring Regulatory Agenda. The joint comment letter provides several considerations for EPA and encourages EPA to continue an engaged stakeholder process with states and tribes. You can read the full text of the letter here.

ASWM Joins Coalition in Letter to EPA Regarding Sec. 401

ASWM joined a broad coalition of regional and national organizations in writing to the Office of Water about potential changes to state authority under sec. 401 of the Clean Water Act (CWA). The coalition includes WGA, WSWC, NCSL, ACWA, COG, COG West, AFWA, Conference of Western Attorneys General and the Western Interstate Energy Board. The letter calls on EPA to reject any changes to sec. 401 authority that would preempt states’ CWA authority and to engage in a thorough and collaborative engagement process with state officials before moving forward with any proposed reforms. Read the coalition letter here.

ASWM Signs Letter in Support of H.R. 5787, Strengthening Coastal Communities Act

On November 14, ASWM joined the Association of State Floodplain Managers, the National Audubon Society and 13 other organizations in support of H.R. 5787, the Strengthening Coastal Communities Act, introduced by Rep. Neal Dunn (R-FL). This bill would take steps to modernize the Coastal Barriers Resources Act (CBRA) by updating the maps that denote the boundaries of the Coastal Barrier Resources System (CBRS). To read the letter sent to the House, click here and the Senate version here.

ASWM & ACWA Submit Letter to Senators Barrasso and Carper

The Association of Clean Water Administrators (ACWA) and the Association of State Wetland Managers (ASWM) sent a joint letter on Sept. 7, 2018 to Senators Barrasso and Carper expressing concerns regarding the Water Quality Certification Improvement Act of 2018 (S. 3303). If enacted as written, S. 3303 would modify the Clean Water Act and limit the states’ authority under §401 to protect state water quality and provide critical input on the impacts posed by federal permits and licenses. Both organizations expressed an interest in discussing the proposed legislation to ensure that any efforts to enhance efficiency do not come at the expense of water quality and do not minimize state experience, expertise, and statutory authority. Read the joint letter here.

ECOS/ACWA/ASWM Urge Caution in Water Certification Debate

The Environmental Council of the States (ECOS), a nonpartisan group that represents the heads of state environmental agencies, along with the Association of Clean Water Administrators (ACWA) and the Association of State Wetlands Managers (ASWM), sent a joint letter to congressional leaders in advance of an August 16 Senate Environment & Public Works Committee hearing on the Water Quality Certification Improvement Act. Committee Chairman John Barrasso (R-WY) introduced this bill recently to clarify issues states can consider in exercising their authority under Section 401 of the Clean Water Act. Read the joint letter here.

ASWM Comments on the Federal Register Notice “Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act”

On August 17, 2018, ASWM provided comments to CEQ in response to the Federal Register Notice “Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act.” ASWM’s comments focus on: 1) encouraging inclusion of a pre-review for §401 Certification during the NEPA process to increase coordination, transparency, and predictability but in ways that do not, in any way, limit the post-NEPA §401 certification process; 2) encouraging more involvement of state and tribal agencies as “Cooperating Agencies” in the NEPA Process, and 3) encouraging initiation of discussion about data needs earlier in the NEPA process.  Other more general comments in response to questions are also included.  Read the letter here.

National Coalition Urges Congress to Reject Efforts to Diminish States’ Authority to Manage Water Quality Under Section 401 of Clean Water Act

On August 9, 2018, ASWM joined nine other leading policy associations of state officials, urging Congressional leadership to reject legislative and administrative efforts to diminish states’ authority to manage water quality within their boundaries under Section 401 of the federal Clean Water Act (CWA). The August 9 letter was sent to House Speaker Rep. Paul Ryan and Minority Leader Rep. Nancy Pelosi, as well as Senate Majority Leader Sen. Mitch McConnell and Minority Leader Sen. Charles Schumer. Read the letter here.

ASWM Comments on the Supplemental Notice of Proposed Rulemaking: “Definition of Waters of the United States” – Recodification of Pre-existing Rule

On August 8, 2018, ASWM provided comments in response to the Federal Register Supplemental Notice of Proposed Rulemaking regarding definition of “Waters of the United States” – recodification of preexisting rule. ASWM’s comments question the basis for the repeal of the 2015 Clean Water Rule and highlight the potentially significant impacts and consequences of a Scalia-based rule among other concerns. Read the letter here.

ASWM Comments on FERC Natural Gas Pipeline Certification Process

On July 25, 2018 the  Association of State Wetland Mangers provided comments in response to FERC’s Notice of Inquiry (Federal Register Docket No. PL18-1-000) for help exploring whether, and if so how, it should revise its approach  to the certification of new natural gas transportation facilities.  ASWM’s comments identify ways to support protection of aquatic resources that are impacted by new pipelines and in particular how states can assist in those efforts. Read letter here.

120-day Comment period and Three Public Hearings on Proposed Rule on Increasing Consistency and Transparency in Considering Costs and Benefits in the Rulemaking Process Requested

The Association of State Wetland Managers joined eight other associations representing state and local decision-makers, in forwarding a letter requesting that EPA extend to 120 days the public comment period for the proposed rule, “Increasing Consistency and Transparency in Considering Costs and Benefits in the Rulemaking Process,” (83 Fed Reg. 27524, June 13, 2018). The associations also requested that EPA hold at least three public hearings to gather additional public input on the proposal. The current request for comments in the Federal Registers is for 30 days ending July 13. Read letter here.


ASWM Supports Natural Infrastructure

The Association of State Wetland Managers joined the Association of State Floodplain Managers, the American Society of Civil Engineers and others in supporting the inclusion of natural and nature-based infrastructure in the next Water Resources Development Act (WRDA) currently under consideration in Congress. The provisions supported by the co-signers would allow the U.S. Army Corps of Engineers to implement natural infrastructure alternatives to reduce flood and storm risks while providing additional environmental benefits.

The letter can be found here.

ASWM, ASFPM and Others Sign Letter on Disaster Recovery Reform Act (DRRA)

The Association of State Wetland Managers and the Association of State Floodplain Managers joined with other organizations in a letter to Senate Leadership raising concerns about a provision of the Disaster Recovery Reform Act (DRRA) that would enable Hazard Mitigation Grant program funds administered by FEMA to be redirected to fund structural flood control projects carried out by the U.S. Army Corps of Engineers. The Senate is in the process of very quickly developing a companion bill to H.R. 4467.

The letter can be found here.
 

State Associations Co-Sign Letter on the Vessel Incidental Discharge Act (S. 1120)

The Association of State Wetland Managers joined with the Environmental Council of States, the Association of Clean Water Administrators and the Association of Fish and wildlife Agencies in a letter to members of Congress this week detailing the potential consequences for environmental quality if the Vessel Incidental Discharge Act (S. 1129) were enacted with the current provisions regarding removing protections that limit dumping of ballast water in nearshore areas. ASWM signed onto a similar letter on VIDA in June of 2016.

ASWM Comments on Proposal to Amend the Effective Date of the 2015 Clean Water Rule

On December 13 the Association of State Wetland Managers responded to the rule proposed by the U.S. Environmental Protection Agency and the Department of Army to change the effective date of the 2015 Clean Water Rule from August of 2015 to two years after the rule proposed to accomplish this is finalized. The proposed rule can be found here.

ASWM Comments in Response to Outreach Request on CWA Jurisdiction Step 2 Rulemaking

On November 28, the Association of State Wetland Managers responded to the request for recommendations on a revised definition of ‘waters of the United States’ as the U.S. Environmental Protection and Department of Army’s actions to comply with Presidential Executive Order on "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule."  The Executive Order directed the agencies to “consider interpreting the term "navigable waters," as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).” The agencies have previously completed a comment period on a proposal to rescind the 2015 CWA jurisdiction rule (Step 1) and were requesting public input on developing a new rule consistent with the Scalia opinion (Step 2). 

ACWA, ECOS, and ASWM Send House Leadership Letter Highlighting Concerns About H.R. 3043, Hydropower Policy Modernization Act of 2017

The Association of State Wetland Managers signed on to a letter with the Environmental Council of States (ECOS) and the Association of Clean Water Administrators (ACWA) raising concerns about provisions of H.R. 3043, the Hydropower Policy Modernization Act of 2017. If enacted as written, the draft bill would modify Federal Energy Regulatory Commission (FERC) licensing requirements under the Federal Power Act and may conflict with state authority under Section 401 of the Clean Water Act to protect water quality and provide critical input on federal dredge and fill permits to wetlands and other waters under § 404. The joint letter is available here.


ASWM Comments on Proposal to Rescind the 2015 Clean Water Rule

The Association of State Wetland Managers has responded to the request for comments on the rule proposed by the U.S. Environmental Protecting Agency and the Department of Army to rescind the 2015 Clean Water Rule and replace it with the regulations and guidance that were previously in place. 

The proposed rule and other information relating to changes to the Clean Water Act Waters of the U.S. regulation can be found here.

For a recent blog post by ASWM Executive Director, Jeanne Christie on “Distribution of Wetlands and Streams and Extent of State Dredge and Fill Permitting Programs in the United States” click here.

EPA Makes State/Local Federalism and Tribal Consultation Letters Available

Last spring the U.S. Environmental Protection Agency and the Department of Army consulted with tribal, state, and local governments and their representative national organizations about developing a revised definition of Waters of the U.S. USEPA has posted the comments submitted in response to this request on the Waters of the U.S. website. They can be found here (states and local government), including the Association of State Wetland Manager’s response and here (tribal government).