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

The Compleat Wetlander: New Webpage Launched on Section 404 Assumption

This month the Association of State Wetland Managers launched a new webpage on Section 404 Assumption For the first time a package of materials to assist states and tribes in understanding requirements and developing strategies to take over the Clean Water Act dredge and fill program are presented in one place on the internet.

When Congress passed amendments to the Federal Water Pollution Control Act (Clean Water Act) in 1972 and 1977, it created a framework that anticipated that states would play a central role in implementing the Clean Water Act. Section 401 provided States with the ability to certify, condition and deny federal permits. Section 402 provided qualifying states with the authority to regulate point source discharges. Section 404 enabled qualifying states to implement Section 404 regulating dredge and fill activities in the nation’s waters.

Thirty three years later virtually every state and many tribes implement Section 401 and 45 states implement Section 402, but only two states, Michigan and New Jersey, implement Section 404.

It’s not for lack of interest. Since 1990 nearly every new Assistant Administrator for Water at the U.S. Environmental Protection Agency (EPA) has expressed interest in getting more states to take over Section 404. Many states have undertaken detailed evaluations of what would be needed to gain authority to implement the Clean Water Act dredge and fill program—all without success.

The reasons are well-documented—limited federal funding, limits on regulating some navigable waters, no partial assumption, ambiguities in the delegation process, etc. Each time a state becomes interested—and many have over the years—it must educate itself and develop a framework and strategy based on reviewing the statute and regulations and working with the appropriate EPA Regional office. In addition some of the hurdles such as gaining the ability to use EPA’s Wetland Development Program Grants for program implementation would require action by Congress.

Still, even without action by Congress there is opportunity to make progress. In 2007 U.S. EPA conducted a study to assess the PROs and CONs, including barriers to assumption. One conclusion was that providing detailed guidance on the steps needed for assumption would be helpful.

In the spring of 2008 the Environmental Council of States passed a resolution on “State Delegation of Clean Water Act Section 404 Permit Program” that encouraged the U.S. EPA to develop clear guidelines and processes for state assumption of the Section 404 program.

The good news is that work is underway. In July of 2009 Environmental Council of States and the Association of State Wetland Managers collaborated on an ECOS Green Report on state assumption. This provided a starting point for the new webpage just posted by the Association of State Wetland Managers. The U.S. EPA has accepted invitations to have a dialogue on opportunities to provide better information for states and tribes interested in pursuing authority to implement Section 404.

This lays the groundwork for creating a predictable, consistent approach to assumption of Section 404 for states and tribes. It will allow policy makers and stakeholders to focus on the important decisions and program changes that will be required in state programs. It’s just a start, but any achievement requires a start before there can be a finish.

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