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

The Compleat Wetlander: Endangered Species, State Assumption and Section 7 Consultation

On December 27, 2010, the U.S. Environmental Protection Agency (EPA) replied to a request for clarification on the role of Section 7 consultation in a state or tribe’s application to run the Clean Water Act (CWA) dredge and fill permitting program (Section 404) in place of the federal government. EPA responded that the agency “need not engage in Section 7 ESA consultation [with the US Fish and Wildlife]” as part of an assumption review. This clarification addresses an area of public policy that has been a significant hurdle for states interested in taking over the Section 404 program.

To date, only the states of Michigan and New Jersey have assumed the Section 404 program. There are several reasons other states have not followed: including differences between state and federal programs, lack of funding, the inability to undertake partial assumption and the inability to take over waters regulated by the Corps under the Rivers and Harbors Act of 1899. One of the problems listed most often in addition to these was the inability to find ways to handle threatened and endangered species issues.

In the spring of 2008 the Environmental Council of States (ECOS) passed a resolution that encouraged EPA to develop clear guidelines and processes for state assumption of Section 404 of the Clean Water Act. http://www.ecos.org/files/3117_file_Copy_of_Resolution_08_3.pdf. This past year ECOS invited the U.S. Environmental Protection Agency and the Association of State Wetland Managers to work together to identify ways to improve and clarify the Section 404 Assumption process. As a result of these discussions, it was clear that there was a great deal of uncertainty concerning the role of Section 7 consultation as part of the formal application package submitted by a state or tribe. Therefore, ECOS and ASWM sent a letter to EPA formally asking the agency what its policy was on “endangered species consultation” as part of an assumption application.

States are committed to protecting wildlife populations including endangered species. The states have never ceded to the federal government their primary role in managing wildlife. The problem has been that the Endangered Species Act and the Clean Water Act as passed by Congress did not anticipate the unique issues raised by an assumption application. When a state takes over the Section 404 program, the permits issued become state permits and federal laws like the National Environmental Protection Act and the Endangered Species Act no longer apply. Thus, in the past, when consultation was discussed with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, the services sought some way to guarantee that no permit decision would ever be made by a state at any point in the future that would fail to adequately protect an endangered species. This standard was impossible to meet because a) there is not always agreement on best practices to protect an endangered species and b) it’s impossible to anticipate all the different permit applications that will occur over the years as new technology creates new forms of land alteration, building and infrastructure development.

Other substantial provisions to protect endangered species remain because the decision that consultation is not required does not affect protections for endangered species built into Section 404. After state assumption all permit applications received by the state that have a “reasonable potential for adverse impacts on endangered or threatened species” must be forwarded to EPA for review and comment. The 404(b)(1) guidelines, which the states must be “no less stringent than” require “no discharge of dredge or fill material shall be permitted if it…

(3) Jeopardizes the continued existence of species listed as endangered or threatened under the Endangered Species Act of 1973, as amended, or results in likelihood of the destruction or adverse modification of a habitat which is determined by the Secretary of Interior or Commerce, as appropriate, to be a
critical habitat under the Endangered Species Act of 1973.”

In the future, if a state or tribe applies to take over the Section 404 program, what is likely to happen is that the state will develop a Memorandum of Understanding (MOU) with FWS and NMFS (for coastal states) to give the federal agencies the opportunity to comment on state permits. While it’s not required, it makes sense. An MOU likely will be needed to accommodate the concerns of interest groups within the state concerned about endangered species. It will support the states’ commitment to maintaining and protecting its wildlife resources. It will be faster and more efficient than forwarding a permit application to EPA to forward to the FWS and NMFS.

To review EPA’s letter on consultation, go to: http://www.ecos.org/files/4324_file_Silva_Reply_on_ESA_Consultation.pdf

For more information about Assumption of the Section 404 program visit:

ASWM Assumption webpage: http://aswm.org/wetland-programs/s-404-assumption

Included on the ASWM Assumption webpage is:

Pursuing Clean Water Act 404 Assumption: What States Say About the Benefits and Obstacles By Kathy Hurld & Jennifer Linn – EPA – May 2008 http://www.aswm.org/calendar/state2008/hurld.pdf

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