In August, the U.S. Army Corps of Engineers released a memorandum, taking initial steps to empower states and tribes in assuming Section 404 permit authority under the Clean Water Act (CWA). The hope being that states can accelerate infrastructure development and streamline the permit process.
“This action supports this administration’s dedication to infrastructure by providing states and tribes the clarity they need to better balance their environmental protection mission with their economic development goals,” said Assistant Secretary of the Army for Civil Works R.D. James. “In my view, implementing Section 404 in this clear and decisive manner not only adheres to the language of the statute and the intent of Congress when enacting Section 404(g), but it is also in the overall best interest of the Army and the regulated public.”
Section 404 of the Clean Water Act authorizes the U.S. Army Corps of Engineers to issue permits for the discharge of dredged or fill material in navigable waters. Section 404(g) authorizes states to do the same with EPA approval. States have the authority to do this is some, but not all, navigable waters and adjacent wetlands. Confusion about that definition in part has caused few states to take on this permitting authority. Only two states have been approved to assume the Section 404 program.
Because of uncertainties with the program, EPA formed the Assumable Water Subcommittee, under the auspices of the National Advisory Council for Environmental Policy and Technology (NACEPT). They were tasked with providing advice and developing recommendations for NACEPT on how EPA can best clarify which waters a state or tribe may assume CWA Section 404 responsibilities for and which waters the Corps retains permit responsibility. The committee worked from October 2015 to April 2017and published a report in May 2017.
The recommendations to NACEPT followed some already agreed upon rules regarding state authority and the committee process:
• A state must demonstrate that is will apply legal standards consistent with CWA requirements in operating a permitting program;
• Permit assumption by a state does not alter CWA jurisdiction over waters of the U.S.;
• Waters, such as rivers, lakes and streams and adjacent wetlands are clearly linked legally, in policy and in hydrology. For the purposes of the report, the subcommittee chose to use waters and adjacent wetlands;
• EPA participated actively in the discussion and review of alternatives, but did not take a position on the subcommittee recommendations, as did U.S. Fish and Wildlife Service. Corps members on the committee represented recommending members.
The recommendations themselves included:
• When a state or tribe assumes the 404 program, the Corps must retain authority over water included on lists of waters regulated under Section 10 of the Rivers and Harbors Act (RHA). This protects navigation waterways and channels from modifications without Corps approval.
• The Corps would also retain administrative authority over all wetlands adjacent to retained navigable waters landward to an agreed upon boundary. The Corps would retain administrative authority only over adjacent wetlands within this boundary. Because the purpose of the recommendations is to allow the Corps to retain authority over activities that may alter navigation in some way, the committee recommended that the extent of Corps authority over adjacent wetlands is limited to those that are likely to affect navigation.
The August Corps memorandum concurs with the majority view recommendations from the Assumable Waters Subcommittee, regarding the scope of retained waters under Section 404 (g).
“The memorandum will ensure that the scope of waters that must be retained by USACE under Section 404(g) of the CWA is properly limited to waters that are jurisdictional under Section 10 of the Rivers and Harbors Act of 1899, excluding waters that have only had historical navigation use, and including wetlands adjacent to Section 10 waters from the high-water mark of the water landward to an administrative boundary agreed upon by the state or tribe and USACE,” the memorandum said.
The Corps also said that state implementation of the Section 404 permit program, assuming they protect the waters to the same level as the federal government, can often increase efficiencies and remove redundancies in the permitting process. States can implement the permit program into existing state programs, saving money on infrastructure investment.
In September, EPA Acting Administrator Andrew Wheeler sent letters to all 50 state governors encouraging them to assume this traditionally federal permitting authority.
Since the enactment of Section 404(g) in 1977, only two states (Michigan and New Jersey) and no tribes have assumed the permit program.
In 1983, Michigan and EPA signed a memorandum of agreement, and the state did the same with the Corps the following year, regarding the waters over which the Corps retained authority. Prior to assuming the state permit program, Michigan enacted a number of statutes related to water protection, including the 1955 Great Lakes Submerged Lands Act, the 1972 Inland Lakes and Streams Act, and the 1979 Wetland Protection Act, which was passed specifically to facilitate the state permit program. EPA approved Michigan’s program in 1984.
The Corps retained responsibility for any waters that are on Section 10 of the RHA list and the Great Lakes. The state has assumed the remaining waters, which are the vast majority of the internal state waters. The extent that authority of adjacent waters are retained by the Corps is determined on a case-by-case basis. Generally, wetlands in close proximity to Section 10 waters remain with the Corps. In a few cases, the state and the Corps have joint authority over waters and work together on permitting activities. The state often takes the lead on mitigation with its robust mitigation program. The state can also own property, hold conservation easements and hold financial instruments; the Corps cannot.
New Jersey assumed the program in 1994. Prior to that the state passed its Wetlands Act in 1970, the Coastal Zone Management Act in 1972, and the Freshwater Wetlands Protection Act in 1987, which included a mapping program to identify freshwater wetlands and waters and which became key to New Jersey’s Section 404 program.
Some states have explored the option (Maryland, Oregon, Virginia, Montana, Florida, Arizona and Alaska), but no other states have fully realized the program. This is for many reasons, perhaps the complexity and cost of administering the program, or the questions about which waters were regulated under Section 404; and Congress never authorized any federal funding to help states navigate the program. States need to have their own money to fund the program.
Both the Corps and EPA are united in trying to move forward the state program, in part to help ease the Corps permitting burden, where appropriate. No one at the Corps or EPA would go on the record about how this might ultimately affect the permitting process or dredging projects, other than their published statements, but states that want to help push forward infrastructure projects, and have the funding to do so, the authority to authorize projects, and the legal precedent to protect what needs to be protected, the door is opening for them to step in and there may be some hands there to help.
A big part of each new Water Resources Development Act, which funds the majority of federal dredging projects, focuses on ways to better involve non-federal sponsors, in planning, in studying and permitting and in carrying out construction. States need money for these programs, and the Corps is holding out its hand to help on these projects, because the budget is never enough. The Corps memorandum in late summer also represents a shift, aligning them with EPA in agreement on these issues, which may open up more opportunities for state participation.