Association of State Wetland Managers - Protecting the Nation's Wetlands.

Compleat Wetlander – State-run Section 404 Programs – New “How to” Handbook Available for Review

Over the years, many if not most states have investigated taking over the Clean Water Act dredge and fill permitting program (Section 404 of the Clean Water Act) and elected not to do so.  The primary reasons states have not taken over Section 404 are the strict requirements for consistency with federal law, which set a relatively high bar for permitting and enforcement, combined with a lack of dedicated federal funding to support state programs.

However, following the Carabell/Rapanos Supreme court decision in 2006, a number of states have expressed renewed interest in assuming the Section 404 program.  The initial permitting delays created by trying to get a decision on which waters were jurisdictional resulted in complaints directed to the states as well as the federal government.  The leaders of state environmental agencies, who are the principal members of the Environmental Council of States (ECOS)  discussed taking over Section 404 to address these delays and better integrate permitting and mitigating the impacts of dredge and fill activities with other parts of the Clean Water Act. As a result ECOS passed a resolution in 2009 http://www.ecos.org/section/committees/water/clean_water_act_jurisdiction/ and reaffirmed it this spring to:

Encourage U.S. EPA to develop clear guidelines and processes for state assumption of Section 404 of the Clean Water Act that will encourage states to apply for and assume regulatory responsibility over this important natural resource program;

Support U.S. Congressional action to authorize and appropriate adequate funding for states that assume the Section 404 permitting program and to broaden the eligibility of the existing U.S. EPA wetland grant program for both development and implementation activities; and

Support a simplified and more flexible process for state assumption of the Section 404 Permit Program, including partial assumption of program responsibilities, in order to improve effectiveness and provide more efficient and effective permitting for applicants while maintaining protection of wetlands in the United States.

While 45 states run Section 402 of the Clean Water Act (permitting point source discharges) only two states, Michigan and New Jersey, also run the Section 404 program.  In fact, the Section 404 program is the only major part of the Clean Water Act where the states have not maximized opportunities to take control.  As most people know, the Section 404 program is run by the U.S. Corps of Engineers (COE) with oversight responsibilities assigned to the U.S. Environmental Protection Agency (EPA).

Last year ASWM and ECOS formed a work group and invited EPA to join them in an effort to provide more certainty to states with respect to the requirements for assumption of Section 404.  The EPA regulations provide a framework, http://www.epa.gov/owow/wetlands/pdf/40cfrPart233.pdf but given that only two states administer Section 404, there was little information available about the details of the formal application process.  The workgroup collaborated to address areas of uncertainty.  For example, one problem was the requirements for Section 7 consultation under the Endangered Species Act.  It was not clear what was required.  This was resolved in a December 27, 2010 letter from EPA in response to a request for clarification from ECOS and ASWM.   http://www.ecos.org/files/4324_file_Silva_Reply_on_ESA_Consultation.pdf .

Questions about running the Section 404 program were not new.  ASWM has received a number of queries from states over the years about the advantages, disadvantages and requirements for states to run the program.  The workgroup assisted ASWM in developing a new publication “Section 404 Program Assumption: A Handbook for States and Tribes” that is out for public review.   It describes how to apply to assume the Section 404 program to issue permits for dredge and fill activities in wetlands and other waters of the U.S. and is available on the Association of State Wetland Managers’ website at http://www.aswm.org/wetland-programs/s-404-assumption/1221-draft-s-404-program-assumption-handbook-for-review-and-comment.

The handbook 1) provides an overview of State Assumption of the Section 404 program, 2) discusses PROs and CONs, 3) describes the process that both states and tribes must pursue to evaluate their own dredge and fill programs, 4) explains that it may be necessary to make changes in state/tribal laws and regulations, and 5) summarizes the formal application process.

Is there likely to be a sudden surge in the number of states and tribes applying to run the Clean Water Act dredge and fill program?  Only time will tell.  However several states requested a copy of the handbook while it was being drafted.

The Association of State Wetland Managers (ASWM) and the Environmental Council of States (ECOS) are seeking public comment on the document. http://www.aswm.org/wetland-programs/s-404-assumption We invite you to review the handbook and offer comments by June 30, 2011.  Please send your questions or comments to .

This entry was posted in Clean Water Act, dredge and fill, Section 404 Assumption, wetland mitigation, wetland permitting and tagged , , , . Bookmark the permalink.

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