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

The Compleat Wetlander: Is it Time for States to Implement the Clean Water Act Section 404 Program?

This week the House Water Resources and Environment Subcommittee of the Transportation and Infrastructure Committee will hold a hearing at 10:00 a.m. on September 20 titled, “Forty Years after the Clean Water Act: Is it Time for the States to Implement Section 404 Permitting?” There will be two panels: one representing states and the other, the federal government.  The hearing will be broadcast live and the video of the hearing will be posted after it is concluded: http://transportation.house.gov/hearings/hearingdetail.aspx?newsid=1727 .

The simple truth is that all states have been active in implementing the Section 404 program for a long time; but only two, Michigan and New Jersey, have formally pursued and successfully completed formal assumption.

Eighteen other states have the authority to issue state dredge and fill permits.  In most cases these states have pursued various alternatives other than assumption for integrating state and federal permitting.  This has generally been accomplished through agreements by the U.S. Army Corps of Engineers that delegate some of the decision-making authority to the states through various types of general permits for actions with small footprints.  There are also joint permitting agreements.  These have happened because the regulated community has asked for the Corps and the states to work together to make the permitting process less confusing and more streamlined and understandable.

The other 30 states condition federal permits through Section 401 of the Clean Water Act.  Section 401 gives states the authority to condition and even deny federal permits (including Clean Water Act permits, Federal Energy Regulatory Commission permits and others) to ensure compliance with the state’s water quality standards and other relevant provisions of state law.

Over the years many states have evaluated assumption and elected not to pursue it.  The reasons are well documented:  lack of funding, the changes required in state law, the inability under the law to pursue incremental steps toward assumption, the extent of waters that can’t be assumed (under Section 10 of the  Rivers and Harbors Act) and compliance with other federal laws such as the Endangered Species Act.

However, despite these challenges, the problems incurred by not taking over the Section 404 program may become a larger concern for states in the future.

The 18 states with their own dredge and fill permitting programs generally pursued some type of regional permit or permits in place of the Nationwide permits.  However, these must be reissued, and therefore renegotiated, every five years.  Over time many of these state permitting programs have become more robust and more sophisticated, but the Corps has generally not granted more authority, if anything the trend has been in the opposite direction.  The states have no real power under the law to negotiate for more authority.  With assumption they do.

Increasingly, states are pursing watershed approaches that integrate decision-making processes as part of carrying out regulatory and voluntary water resource programs.  The other parts of the Clean Water Act—Section 402, Section 319, water quality standards, etc.— virtually all Clean Water Act programs except for Section 404 are implemented by the states.  Implementation of dredge and fill permitting by a separate federal agency reduces a state’s ability to integrate implementation of the water programs.

The slowdown in getting Jurisdictional Determinations (JDs) right after the Carabell/Rapanos decision was a wake-up call for a number of states.  There was an enormous backlog and it took months to get a decision on whether an activity would impact waters of the U.S. and therefore require a Section 404 permit. Leaders of several of the state environmental agencies began thinking for the first time that a state operated program was a better alternative.  A more active economy will lead to more permit applications and if the Corps cannot make JD and permit decisions in a timely manner, state leaders will once again begin looking seriously at assumption.

This is not a criticism of the Corps.   In many parts of the country the Corps has done an amazing job working with states.  They meet regularly with state staff, develop improved permitting tools cooperatively, share workloads and work hard to respond to issues raised by the public.  But it is an enormous challenge to run a program that is nationally consistent and still tailored to be integrated with the unique requirements and needs of individual states.

Last year the Environmental Council of the States and the Association of State Wetland Managers worked on a project to support state assumption. As a result there are a number of materials on the Association of State Wetland Managers’ website that provide technical information about state assumption requirements and there has been an increase in the number of states making serous inquiries about taking over the Section 404 program.

Finally, this is the first time that there has ever been a hearing before Congress focused solely on state wetland programs.  The hearing provides an opportunity to highlight the important role that states are already playing in protecting the nation’s wetlands.  They are well-positioned to do more.

For more information visit:

Clean Water Act, Section 404 State/Tribal Program Assumption: http://aswm.org/wetland-programs/s-404-assumption/135-s-404-resources

Clean Water Act: http://www.aswm.org/wetlands-law/cwa

401 Certification: http://aswm.org/wetland-programs/401-certification

Water Quality Standards for Wetlands: http://aswm.org/wetland-programs/water-quality-standards-for-wetlands

Improving Wetland Permitting: http://aswm.org/wetland-programs/improving-wetland-permitting/1003-aswms-improving-wetland-permitting-project

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