Association of State Wetland Managers. State Assumption of Sec. 404 of the Clean Water Act (CWA):

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1 State Assumption of Sec. 404 of the Clean Water Act (CWA): A large number of states have evaluated taking over the Section 404 program over the years. The Association of State Wetland Managers (ASWM) has been working on collecting and evaluating this information to help states. As part of this effort ASWM is currently working on a draft web page on Assumption. Materials are being edited and revised, but they may be useful to the ECOS Assumption Small Workgroup. It can be found at: On the following pages are: Time some states have spent pursuing assumption Information from Minnesota 1989 Feasibility Study Advantages and Disadvantages Information from Florida 2005 Consolidating Permitting Study Information from Kentucky (2005) Task Force on State Assumption Summary of State Responses to EPA s Study on 404 Assumption Assumption Request Flow Chart from Kentucky Examples of timeframes of some states that pursued 404 assumption: MI- 4 years: 3 years working with EPA region 5 prior to pkg submittal, 1 year for rev. proc. NJ 7 years - Assumed in 1994 MD - 5 years Nontidal wetlands Act passed; tried for state legislative changes 94, 95 OR Started in 1996; Dredge and fill program since early 1980s; started serious pursuit 2001 Minnesota (1989) Assumption Feasibility Study Assuming that the Federal 404 Program would be assimilated into the Minnesota Statutes Chapter 105 Program, the following potential advantages and disadvantages were identified: Advantages. 1. Major benefit removal of fed/state overlap of permitting authority. Could save time and money for applicants 2. Wetlands not inventoried under Subd. 1 but which are defined as waters of the U.S. under Sec. 404 of the CWA would be protected with recommended legislative expansion of the Waterbank Program. 3. The state would be obligated to provide the public with property tax exempt consideration for all remaining wetlands under Wetland Tax Exemption. 4. State obligated to have statutory authority for imposition of penalties, including civil, criminal and possibly admin. Fines can be substantial; fines collected by state would go into state s general fund.

2 5. Six DNR regional and 9 area offices are more available and accessible than the 3 COE offices to applicants for questions, reports of violations, etc. Could raise level of reported violations, enforcement, etc. 6. State would regulate more wetlands. Following assumption, wetland types 1, 2, 6, 7 and 8 as well as the small types 3, 4 and 5 would also be regulated. 7. Public benefit right to a public hearing before Admin. Law Judge save time, cost 8. Public hearing decisions by state judge carry more weight than non-binding COE hearings (gen. better accepted by public) Cert is not required under state assumption of the 404 program. This would eliminate another agency and accelerate the rev. process pot. Saving applicants time, money. Disadvantages. (MN) 1. Costs would be at least $1,000,000 per year and would have to be raised through state taxes, possibly alt. funding. Currently no fed funds avail. 2. EPA would have final say in state decisions involving waters of the U.S. State decisions can be overruled by EPA. 3. Water quality issues could be minimized if the MPCA did not review all 404 permits for 401 Cert. 4. Public opinion of agency may deteriorate due to perceptions of increased regulatory authority and confusion between state & fed reg. procedures 5. State would not have an option to pursue (or not pursue) legal action. EPA regs mandate prosecution for all violations. 6. Maps identifying 404 regulated wetlands do not exist. Lead to controversy over marginal types of wetlands, adjacent wetlands, navigable waters, etc. 7. Following changes to 404 regs, state would be required to enact/change its regs. State leg action would be mandated by fed action. 8. State required to submit annual report to EPA & public. Substantial project, time, $. 9. Constant correspondence to EPA 404 permit/violation matters. Additional staff time and funding for coordination and reporting. 10. State program is more comprehensive and regulates all activities; under 404, there would be two classes of wetlands regulated by state suggesting unequitable regulation of wetlands processing time could be longer than current permit processing 12. Fed regs and guidelines are difficult to interpret and are confusing. Florida (2005) Study on Consolidation of State & Federal Wetland Permitting Programs This report evaluated two options: Sec. 404 Assumption and SPGP. They decided to expand the SPGP and not pursue assumption further. A main concern was ESA and Section 10 waters. Consolidation of fed & state wetland permitting would require amendments to the federal CWA, Rivers & Harbors Act, as well as state law. Federal statutory changes 2

3 1. Remove the prohibition the prevents states from assuming the entire Section 404 program so that DEP could assume the program for wetlands and surface waters throughout FL. 2. Change the Rivers and Harbors Act to allow state assumption of the Section 10 navigation-related permits. 3. Remove the five-year limitation on state-issued Section 404 permits. There is no similar limitation on the COE s issuance of Section 404 permits and no compelling reason to limit states in this manner. Florida law allows issuance of up to 25-year permits, with an important five-year review cycle, which is critical to planning and permitting many largescale multi-year developments. 4. Delete the federal "clean break" provision, which requires transfer of all pending applications to the state at the time of assumption and instead require the COE to finish processing such permits. The wholesale transfer of pending applications could overwhelm the state, resulting in delays for applicants while state personnel became familiar with the applications (all the while accepting new applications). This change would make the state responsible only for applications received after assumption is approved. This change to the clean break provision would be necessary unless substantial staff resources were provided to or secured by DEP and the water management districts in advance of assumption to manage the transferred federal permitting workload, which would amount to more than 9,700 permitting actions based on the number of actions in process at the COE at the present time, which is representative of the workload at any one time. (It is roughly estimated that 3,000 permit actions would transfer to DEP with the remaining 6,700 transferring to the water management districts.) These resources would be over and above the basic resources necessary to implement the assumed program, with its additional federal responsibilities, into the future. 5. Require the COE to continue monitoring, enforcing and issuing modifications to previously issued COE permits, including CWA general permits. Retaining COE responsibility for these activities would afford applicants better continuity and prevent an excessive workload burden on the state. This change would be necessary unless substantial staff resources were provided to the DEP and water management districts in advance of assumption to address the transferred federal compliance and enforcement workload relative to the permits issued by the COE over the last 30 years. These resources would be over and above the basic resources necessary to implement the assumed program, with its additional federal responsibilities, into the future. 6. Allow the EPA Administrator, when considering authorizing state assumption, to discount minor differences between the federal and state programs as long as waters of the United States would be equally well protected. (For example, Florida s wetland methodology is ecologically equivalent, in the field, to use of the COE s 1987 wetland manual and should 3

4 be accepted as such.) State statutory changes To assume the federal program the following changes are needed to state law, generally to part IV of chapter 373, F.S. 7. Provide DEP, in its role as Florida s lead state agency for wetland permitting, the authority to modify, revoke or rescind permits issued by the water management districts or any delegated local program. Such a provision previously existed in Florida law but was repealed by the Legislature in 1994; it would need to be recreated in statute. 8. Amend Florida law to contain a clear "recapture" provision, equivalent to that contained in the CWA, addressing agriculture activities that convert wetlands to upland; and amend FL law to be consistent with the CWA to exempt from permitting only agriculture closed systems those that do not discharge to surface waters constructed from uplands. 9. Amend FL law to explicitly address the same federal project criteria contained in 404(b)(1) CWA guidelines. (As a practical matter, Florida s review criteria are quite similar.) For example, state law would have to be revised to include consideration of project alternatives, including a no project alternative, and account for economic considerations in the review of alternatives. 10. Amend FL law to eliminate the automatic default issuance of permits that are not processed within the state s generic 90-day permitting clock. The CWA prohibits default permits. This same change has been made for other federally delegated or authorized programs; and, in reality, very few permits are issued by default. 11. Revise the dock exemptions in s (2), F.S., to account for water depth, endangered species protection, protection of on-site submerged resources, and other requirements of the COE and federal resource agencies or replace them with General Permits that contain the appropriate requirements. Additional considerations (for Florida) 1. Federal funding to state or additional state funding would be needed to support it. 2. To ensure a truly streamlined process, amendments may be needed to the federal Endangered Species Act. Under Section 7 of the federal Endangered Species Act, impacts to listed species are addressed through a consultation process that results in "take" issues being addressed in the COE permit at the federal District level. If a state assumes the Section 404 program, this consultation process would no longer be available and applicants whose projects involve an actual or potential "take" would be required to apply to the applicable federal resource agency Regional office for authorization under Section 10 of the federal Endangered Species Act. The Section 10 process is substantially more time consuming than the process under Section 7. Kentucky (2005) Task Force on CWA Assumption As part of the investigation on state 404 assumption, Kentucky compared the costs of different state wetland programs: NJ - nearly $3 million; 42 FTEs 4

5 MI - $7 million; 86 FTEs MD SPGP - $2.4 million; 40 FTEs Additional 23 FTEs and $2 million estimated to operate an assumed program WI state wetlands program - $3.5 million; 27 FTEs TN nearly $1 million; 16 FTEs Challenges to Assumption (KY) Scope of assumed waters Definition of navigable waters of the US Jurisdiction (including geographic) Costs funding and staffing Regulation of wetlands is controversial Inconsistencies between federal and state definitions and program elements Concern from environmental groups, COE, FWS, & NMFS ESA consultation State funding and capacity to implement program KY identified assumption experience from other states: What works: Building support, Working collaboratively with EPA (Region), Develop partnerships (state, federal, public, private), Having some programmatic experience, Having the legislation in place. Challenges not overcome: Conforming state statutes to federal regulations; Not having built support; Not having all legislative authorities Benefits to assumption: (KY) 1. Potentially broader jurisdiction and authorities note some states have restrictions 2. States are generally more familiar with: the resource; local concerns, issues, and needs 3. States can utilize other authorities (e.g., land use planning) 4. Share responsibility with federal government adding staff and resources 5. Streamlining permitting process 5

6 6. Better information on the resources - monitoring, data collection State Responses to EPA s Study on 404 Assumption (Kathy Hurld & Jennifer Linn) (9 states interviewed in 2008 FL, KY, MD, MI, NJ, ND, OR, VA, WI) Barriers to Assumption identified: 1. Lack of state program equivalency (4 of the 9 states) 2. Lack of state implementation funds (3 states) 3. Working out acceptable way to handle threatened & endangered species issues with FWS (3 states) 4. State interest in partial, or incremental steps toward, assumption (2 states) implementation by Corps is going fine/ state doesn t want to pay for something the feds are already doing (2 states) 6. State politics (2 states) 7. Loss of key state staff driving assumption effort (2 states) 2 of 7 states said they would reconsider assumption Others said: - only if fed funding is provided; only if there s political will to address other barriers they identified; only if state program staffing is restored to previous levels; and It s possible, though unlikely if the SPGP works well. Additional findings in the EPA study: States spent $225K on average to investigate assumption (EPA provided grants to 6 of the 9 states) States without comprehensive programs in place did not make it as far in the assumption process Lack of implementation funds is a threshold barrier to assumption it is one of the first barriers a state encounters, short-circuiting further investigation and identification of additional barriers It takes a lot of work for states to assume (even for states with a comprehensive program in place) States that have assumed 404 feel that the combo of federal and state involvement makes for a more stable, consistent program Recommendations to EPA (from states involved in the study): Provide fed funding for implementation Expand EPA regional staff/resources to support assumed programs Provide detailed guidance on steps needed for assumption (particularly re: ESA) Develop clearer/easier ways to step up to assumption 6

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