For more than three decades, states and Native American tribes have had authority to issue permits for construction and dredging in wetlands and navigable waters that are protected under the U.S. Clean Water Act. (see related story on page 8).
But confusion over which areas they can regulate and which remain under control of the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers has limited state acceptors to just Michigan and New Jersey.
The two federal agencies have jointly administered the permitting program under Section 404 of the law since it was enacted in 1972.
More states may now step in, with new clarity provided in a Corps memorandum issued on July 30 that specifies its continued jurisdiction only for waters that are used or could be used for transport of commerce and their adjacent wetlands, as spelled out in Section 10 of the 1899 Rivers and Harbors Act. That law excludes waters whose use for navigation has only been historical.
The guidance memo was discussed in an Aug. 7 Army press release.
In a report issued last year, an EPA task force found that while more states have explored assuming permitting authority, "those efforts have not borne fruit in part due to uncertainty over the scope of assumable waters and wetlands."
Not all EPA and Corps authors of the new guidance initially agreed on its details.
A majority recommended that the Corps should retain permitting authority over rivers and harbors based on the existing list of navigable waters and all wetlands extending to an administrative boundary that would be set based on that agency's negotiations with a state or tribe.
Some Corps participants, however, had recommended that it retain permit authority over all Section 10 waters and all "traditionally navigable" waterways as defined by the clean water law, as well as all adjacent wetlands regardless of furthest reach.
Corps representatives said that a narrower interpretation "would not take into consideration" modifications in the agency's permitting program since the late 1970s based on changes in law, policy, science and other factors.
In the end, the Corps agreed to the majority stance to keep the guidance consistent with final EPA rules for New Jersey and Michigan, Katherine Krause, special assistant to the principal deputy Army assistant secretary for civil works, told ENR.
The guidance memo clarifies for Corps districts which waters can fall under state authority "to reduce the level of analysis needed on a case-by-case basis," she said in an email.
R.D. James, assistant Army secretary for civil works, said in the memorandum that the guidance allows states and tribes "to better balance their environmental protection mission with their economic development goals." Letters have been sent to governors and tribal leaders encouraging them to assume the federal permitting authority, he said.
EPA has not yet made public details or a timetable for a proposed rulemaking to implement the changes, but James said states can assume permitting authority without waiting for that process to complete.
John Barrasso, (R-Wyo.), chairman of the Senate Committee on Environment and Public Works, said in a statement that with the clarity, states and tribes now can "make infrastructure and environmental permitting more efficient."
The memorandum will reduce duplicative administrative burdens and create a more streamlined authorization process for builders and developers whose projects are sited near wetlands, Randy Noel, chairman of the National Association of Home builders, said in a statement.
Links added on 9/4/2018 to Corps memo and Army press release