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

The Compleat Wetlander: Recommendations for Regulatory Reform at the U.S. Environmental Protection Agency

cwlogoBy Jeanne Christie, Executive Director, ASWM

Executive Order 13777,  issued 2/24/17, directs agencies to establish a Regulatory Reform Task Force to oversee the evaluation of existing regulations to make recommendations about potential repeal, replacement, or modification. In response the U.S. Environmental Protection Agency (EPA) has asked for recommendations from the public on priorities for repealing, replacing or modifying EPA’s existing regulations.  This included a public comment period which ended May 15, 2017.  Hundreds of thousands of individuals and organizations provided comments representing very diverse interests such as the U.S. Chamber of Commerce, Environmental, Conservation, and other nonprofit organizations, and the Association of State Wetland Managers.evaluationAccording to a Washington Post article many of these comments supported continuing rather than repealing environmental protections.

The Association of State Wetland Manager’s comments provided the following recommendations:

  • The EPA should recognize the potential adverse impacts of regulatory modification on interwoven federal, state/tribal, and local regulatory frameworks. ASWM would like to emphasize both the complexity and the benefits of federal, state, tribal and local collaborations in managing and protecting vital water resources. ASWM urges EPA to consider the repeal, replacement, or modification of federal regulations within the context of their application in collaboration with other federal, state/tribal, and local agencies and not in the narrower view of the language of an individual regulation.   The implication of parallel changes in the federal budget and provision of funds for both federal and state programs should also be considered.  It should be recognized that regulatory modifications have the potential to adversely affect collaboration, understanding and certainty among state, tribal, local and federal programs to the extent that review and approval of a proposed action impacting water resources may well be delayed significantly, rather than expedited.  It should also be recognized that in many states with smaller water resource programs, resources to respond to federal modifications may not be available, seriously disrupting water management at the state level.
  • Clarify the extent of assumable waters under Section 404.   Under CWA Section 404, a qualified state or tribe may be authorized to assume administration of the 404 Permit Program for many, but not all, Waters of the United States.  To date, however, only the states of Michigan and New Jersey have assumed the program.  ASWM recommends clarification of the scope of assumable waters through revision of the Section 404 State Program Regulation at 40 CFR Part 233.    In 2015, EPA established a subcommittee to provide advice and recommendations on assumable waters under the National Advisory Council for Environmental Policy and Technology (NACEPT).  This subcommittee presented its final report to NACEPT earlier this month.  We urge that EPA consider acting expeditiously on the majority of recommendations contained in this report.  Revision of the Section 404 State Program Regulations that clarify the scope of potentially assumable waters will allow interested states and tribes to determine the efficacy of proceeding with their pursuit of assumption.
  • Provide technical assistance and funding to states to support program development. Many states and tribes that are not in a position to assume full Section 404 authority nonetheless play a major role in the regulatory process, through a range of program options.  These include collaborating with the Corps to develop Regional General Permits that address the specific needs of a state to expedite similar categories of activities; review of proposed Corps permit actions through CWA Section 401 Water Quality Certification Programs and Coastal Management Programs; and development and implementation of State Programmatic General Permits, under which Corps decisions are streamlined based largely on actions taken by a state under the state’s regulatory framework.  ASWM recommends that EPA continue to provide both technical support and funding to state wetland programs to develop assessment methods, expand the use of Geographic Information Systems (GIS) and related technology that can expedite the identification and evaluation of stream and wetland resources, improve mitigation methods, and otherwise support state and tribal contributions to protection of waters of the U.S.    While states and tribes provide major support for their own resource management goals, they often do not have the financial resources to support major research and development projects that are more feasible at the national level. 

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  • Pursue actions other than extensive revision of CWA jurisdiction as an alternative means of regulatory reform.  We recommend to EPA and the Army that alternative forms of “regulatory reform” beyond rulemaking be considered to address areas of ongoing uncertainty in CWA jurisdiction.  The United States has very diverse wetlands and other aquatic resources as well as a diversity of land use practices that impact these resources.  Therefore, providing predictability and consistency will ultimately require development of regional approaches. We recognize the extreme difficulty of defining jurisdictional boundaries on a national basis given the variety of types of wetlands and other waters present in the landscape, and the impact of vast geographical differences on wetland/aquatic resource ecology and public benefits.  We encourage EPA and the Army to work with the states as well as local and tribal governments to identify areas where development of regional approaches will enable jurisdictional decisions to incorporate regional variation.  This approach has been used very effectively in the application of Corps Nationwide General Permits, which may be modified with regional conditions, or through regional agreements with states and tribes (such as State Programmatic General Permits).  Another example is the regionalization of wetland delineation criteria carried out in recent years.  We are hopeful that similar approaches can be used to address areas of ongoing uncertainty and meet the needs of various states, tribes and local governments while retaining federal jurisdiction over those waters that may have national and interstate significance in many regions of the United States.     

The Environmental Protection Agency has many comments to review. We hope they will consider the comments provided by the Association of State Wetland Managers.

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