May 13, 2011

CWA § 404 – To Assume or Not To Assume …

Posted on May 13, 2011 by David Van Slyke

Yet another state is embarking on the long and arduous road towards assuming regulatory control of the Clean Water Act § 404 wetlands protection program from the US Army Corps of Engineers. As part of newly-elected Republican Governor Paul Page’s overall regulatory reform initiative, the Maine Department of Environmental Protection is planning to seek authority (pursuant to 33 U.S.C. §§ 1344(g) and (h)) to implement the dredge and fill program in lieu of the Army Corps. In the 34 years since the mechanism for states to assume the so-called “404 program” of federal wetlands permitting was created in 1977, many other states have considered it, but only two, Michigan and New Jersey, have completed the process.

State assumption allows a state to regulate wetlands and waterbodies and to issue, condition or deny permits for work in those natural resources. At first blush, state takeover would seem like low-hanging fruit in states’ efforts to eliminate multiple regulatory review layers. However, a 2008 EPA study found that although numerous states have evaluated assumption — and several have moved significantly down the path — most abandoned the effort for a number of reasons:

  • Resources: Lack of state funding to implement the program and unavailability of Federal implementation grants (unlike the 402 program);
  • Statutory Changes: State laws had to be enacted or amended, and the political will necessary to make such changes often fades in light of environmental NGO opposition;
  • Corps Involvement: Rivers & Harbors Act §10 permitting authority remains with the Corps, thus not eliminating redundancy in ecosystems involving both wetlands and navigable/tidal waterways;
  • EPA Involvement: EPA regulations still require EPA review of permits issued by a state even under an assumed program when those permits involve, among other things, potential impacts to ESA threatened or endangered species, NHPA protected properties, waters of another state, and discharges to “critical areas” (e.g., state/federal parks, wilderness areas, refuges, etc.).
  • Federal Agency Authorization Disputes: At least until recently, there was uncertainty as to whether an ESA §7 consultation requirement (with USFWS and NMFS) had to be met before EPA could grant approval of a state’s application to assume the 404 program. A December 27, 2010 letter from EPA’s Assistant Administrator for Water indicates that EPA has won that tug of war — no ESA §7 consultation is required.

Also impacting states’ decisions regarding assumption of the 404 program is the continuing uncertainty surrounding the scope of the Corps’ jurisdiction following the Supreme Court’s decisions in SWANCC and Rapanos. EPA and the Corps have attempted to address this issue in various guidance documents. See e.g., “Joint Memorandum” (January 15, 2003)(68 Fed. Reg. 1991) and “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States” (12/2/08).

An April 2011 joint Corps/EPA proposed superseding guidance, notes that “Corps Districts will utilize this guidance to implement Clean Water Act section 404, 33 U.S.C. 1344.” While there is no mention in the guidance of its applicability to state-assumed programs, it is likely that EPA (and the Corps) will require that such guidance, once finalized, be adhered to in any EPA-approved state assumption of the CWA 404 program. Given recent reports  that the April 2011 proposed guidance will dramatically expand the scope of federal jurisdiction over wetlands and waterbodies, states will undoubtedly continue to struggle to identify the benefits in assuming the CWA 404 program.

David B. Van Slyke 
Preti Flaherty
One City Center
Portland, Maine 04112-9546

Tags: CWAClean Water ActWater


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