Association of State Wetland Managers
State Assumption of Sec. 404 of the Clean Water Act (CWA):
Key Points from State Feasibility Studies on Assumption
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: http://aswm.org/swp/assumption/index.htm
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 - 1989 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 105.391 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.
Association of State Wetland Managers
Key Points from State Feasibility Studies on Assumption
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)
9. 401 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 105.42 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.
11. 404 processing time could be longer than current 105.42 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
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Association of State Wetland Managers
Key Points from State Feasibility Studies on Assumption
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.
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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.
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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
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Association of State Wetland Managers
Key Points from State Feasibility Studies on Assumption
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. 403.813(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
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Association of State Wetland Managers
Key Points from State Feasibility Studies on Assumption
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)
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Scope of assumed waters
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Definition of navigable waters of the US
Jurisdiction (including geographic)
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Costs – funding and staffing
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Regulation of wetlands is controversial
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Inconsistencies between federal and state definitions and program elements
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Concern from environmental groups, COE, FWS, & NMFS
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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
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note some states have restrictions
2. States are generally more familiar with:
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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
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Association of State Wetland Managers
Key Points from State Feasibility Studies on Assumption
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)
5. 404 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:
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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):
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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
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Association of State Wetland Managers
Key Points from State Feasibility Studies on Assumption
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