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76–147 PDF 2013

FORTY YEARS AFTER THE CLEAN WATER ACT: 

IS IT TIME FOR THE STATES TO 

IMPLEMENT SECTION 404 PERMITTING? 

(112–106) 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

WATER RESOURCES AND ENVIRONMENT 

OF THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

SEPTEMBER 20, 2012 

Printed for the use of the 

Committee on Transportation and Infrastructure 

( 

Available online at: http://www.gpo.gov/fdsys/browse/ 

committee.action?chamber=house&committee=transportation 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

JOHN L. MICA, Florida, Chairman 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee 

FRANK A. LOBIONDO, New Jersey 

GARY G. MILLER, California 

TIMOTHY V. JOHNSON, Illinois 

SAM GRAVES, Missouri 

BILL SHUSTER, Pennsylvania 

SHELLEY MOORE CAPITO, West Virginia 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

DUNCAN HUNTER, California 

ANDY HARRIS, Maryland 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

JAIME HERRERA BEUTLER, Washington 

RANDY HULTGREN, Illinois 

LOU BARLETTA, Pennsylvania 

CHIP CRAVAACK, Minnesota 

BLAKE FARENTHOLD, Texas 

LARRY BUCSHON, Indiana 

BILLY LONG, Missouri 

BOB GIBBS, Ohio 

PATRICK MEEHAN, Pennsylvania 

RICHARD L. HANNA, New York 

JEFFREY M. LANDRY, Louisiana 

STEVE SOUTHERLAND II, Florida 

JEFF DENHAM, California 

JAMES LANKFORD, Oklahoma 

REID J. RIBBLE, Wisconsin 

CHARLES J. ‘‘CHUCK’’ FLEISCHMANN, 

Tennessee 

VACANCY 

NICK J. RAHALL II, West Virginia 

PETER A. DEFAZIO, Oregon 

JERRY F. COSTELLO, Illinois 

ELEANOR HOLMES NORTON, District of 

Columbia 

JERROLD NADLER, New York 

CORRINE BROWN, Florida 

BOB FILNER, California 

EDDIE BERNICE JOHNSON, Texas 

ELIJAH E. CUMMINGS, Maryland 

LEONARD L. BOSWELL, Iowa 

TIM HOLDEN, Pennsylvania 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

RUSS CARNAHAN, Missouri 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

MAZIE K. HIRONO, Hawaii 

JASON ALTMIRE, Pennsylvania 

TIMOTHY J. WALZ, Minnesota 

HEATH SHULER, North Carolina 

STEVE COHEN, Tennessee 

LAURA RICHARDSON, California 

ALBIO SIRES, New Jersey 

DONNA F. EDWARDS, Maryland 

(II) 

SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT

BOB GIBBS, Ohio, Chairman 

DON YOUNG, Alaska 

JOHN J. DUNCAN, JR., Tennessee 

GARY G. MILLER, California 

TIMOTHY V. JOHNSON, Illinois 

BILL SHUSTER, Pennsylvania 

SHELLEY MOORE CAPITO, West Virginia 

CANDICE S. MILLER, Michigan 

DUNCAN HUNTER, California 

ANDY HARRIS, Maryland 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

JAIME HERRERA BEUTLER, Washington, 

Vice Chair 

CHIP CRAVAACK, Minnesota 

LARRY BUCSHON, Indiana 

JEFFREY M. LANDRY, Louisiana 

JEFF DENHAM, California 

JAMES LANKFORD, Oklahoma 

REID J. RIBBLE, Wisconsin 

JOHN L. MICA, Florida (Ex Officio) 

TIMOTHY H. BISHOP, New York 

JERRY F. COSTELLO, Illinois 

ELEANOR HOLMES NORTON, District of 

Columbia 

RUSS CARNAHAN, Missouri 

DONNA F. EDWARDS, Maryland 

CORRINE BROWN, Florida 

BOB FILNER, California 

EDDIE BERNICE JOHNSON, Texas 

MICHAEL E. CAPUANO, Massachusetts 

GRACE F. NAPOLITANO, California 

JASON ALTMIRE, Pennsylvania 

STEVE COHEN, Tennessee 

LAURA RICHARDSON, California 

MAZIE K. HIRONO, Hawaii 

NICK J. RAHALL II, West Virginia 

(Ex Officio) 

(III) 

(V) 

CONTENTS Page 

Summary of Subject Matter .................................................................................... vii 

TESTIMONY 

PANEL 1 

David K. Paylor, Director, Virginia Department of Environmental Quality, 

and Vice-Chair, Water Committee, Environmental Council of the States ...... 10 

Jeff Littlejohn, P.E., Deputy Secretary for Regulatory Programs, Florida Department of Environmental Regulation ............................................................. 10 

George Elmaraghy, P.E., Chief, Division of Surface Water, Ohio Environmental Protection Agency, and Member, Association of State Wetland Managers ...................................................................................................................... 10 

William Creal, Chief, Water Resources Division, Michigan Department of 

Environmental Quality, and Board Member, Association of Clean Water 

Administrators ..................................................................................................... 10 

Todd L. Ambs, President, River Network .............................................................. 10 

PANEL 2 

Jo-Ellen Darcy, Assistant Secretary of the Army for Civil Works ...................... 32 

Denise Keehner, Director, Office of Wetlands, Oceans, and Watersheds, U.S. 

Environmental Protection Agency ...................................................................... 32 

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

David K. Paylor ........................................................................................................ 49 

Jeff Littlejohn, P.E. ................................................................................................. 57 

George Elmaraghy, P.E. .......................................................................................... 60 

William Creal ........................................................................................................... 69 

Todd L. Ambs ........................................................................................................... 76 

Jo-Ellen Darcy .......................................................................................................... 85 

Denise Keehner ........................................................................................................ 98 

SUBMISSIONS FOR THE RECORD 

Hon. Bob Gibbs, a Representative in Congress from the State of Ohio, request 

to submit the following into the record: 

Mike Carey, Ohio Coal Association, letter to Scott Nally, Director, Ohio 

Environmental Protection Agency, regarding Ohio Coal Association opposition to Ohio EPA’s request for authority to pursue delegation under 

Section 404 of the Clean Water Act, March 7, 2012 .................................. 107 

Patrick Jacomet, Executive Director, Ohio Aggregates & Industrial Minerals Association, letter to Scott Nally, Director, Ohio Environmental 

Protection Agency, regarding amendment to SB 294, March 13, 2012 .... 109 

Jeanne Christie, Executive Director, Association of State Wetland Managers (ASWM), testimony for the record ..................................................... 110 

Includes the following materials: 

ASWM Fact Sheets on Clean Water Act Section 404 State Assumption .......................................................................................................... 112 

‘‘Clean Water Act Section 404 Program Assumption: A Handbook 

for States and Tribes,’’ prepared by ASWM and Environmental 

Council of the States, August 2011 ...................................................... 123 

Peter S. Silva, Assistant Administrator, U.S. Environmental Protection Agency, letter to R. Steven Brown, Executive Director, Environmental Council of the States, and Jeanne Christie, Executive 

Director, ASWM, December 27, 2010 ................................................... 160 

Page

VI 

Hon. Timothy H. Bishop, a Representative in Congress from the State of 

New York, request to submit letter to Hon. Bob Gibbs from William J. 

Snape III, Senior Counsel, Center for Biological Diversity, and Professor 

and Practitioner in Residence, American University, Washington College 

of Law, September 19, 2012 ................................................................................ 5 

Jo-Ellen Darcy, Assistant Secretary of the Army for Civil Works, responses 

to questions for the record from: 

Hon. Chip Cravaack, a Representative in Congress from the State of 

Minnesota ...................................................................................................... 93 

Hon. Bill Shuster, a Representative in Congress from the State of Pennsylvania .......................................................................................................... 93 

ADDITIONS TO THE RECORD 

John Jaschke, Executive Director, Minnesota Board of Water and Soil Resources, letter to Hon. Bob Gibbs, September 27, 2012 .................................... 162 

Collin O’Mara, Secretary, Delaware Department of Natural Resources and 

Environmental Control, letter to Hon. Bob Gibbs, September 27, 2012 ......... 164 

vii 


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September 14,2012 

MEMORANDUM 

TO: Members of the Subcommittee on Water Resources and Environment 

FROM: Bob Gibbs 

Subcommittee Chainnan 

RE: Hearing on "Fony Years after the Clean Water Act: 

Is It Time for the States to Implement Section 404 Pe1111ittingT 

PURPOSE OF HEARING 

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The Water Resources and EnvirOlm1ent Subcommittee is scheduled to meet on Thursday, 

September 20, 2012, at 10:00 AM, in Room 2253 of the Raybul11 House Office Building, to 

receive testimony Irom representatives of the U.S. EnvirOlm1ental Protection Agency, U.S. Anny 

Corps of Engineers. and State water quality agencies on the potential opportunities for enhancing 

Cooperative Federalism with the States through State assumption of the Clean Water Act section 

404 pennit program. 

BACKGROUND 

In 1972, Congress passed the Federal Water Pollution Control Act Amendments of 1972 

(commonly known as the "Clean Water Act" or the "CWA"; 33 USC § 1251 et seq.). The 

objective of the CWA is to restore and maintain the chemical, physical, and biological integrity 

of the nation's waters. The primary mechanislll for achieving this objective is the CWA's 

prohibition on the discharge into a jurisdictional waterbody of a pollutant without a National 

Pollutant Discharge Elimination System (NPDES) pennit (See CWA §§ 301. 402.) The CW A 

also regulates, through a separate pel111it program under section 404. the discharge of dredged or 

fill material into jurisdictional waterbodies, including wetlands. (See CW A § 404.) 

The U.S. Envirolllnental Protection Agency (EPA) has the basic responsibility for 

administering and enforcing most of the CW A, including the NPDES permit program under 

CWA section 402, and the U.S. Anny Corps of Engineers (Corps) has lead responsibility for 

administering the dredge or fill (wetlands) pel111it program under section 404 of the CW A. 
viii 


Insert offset folio 2 here 76147.002

2 

Under the wetlands permitting program, it is unlawful for a facility to discharge dredged or fill 

materials into a jurisdictional waterbody unless the discharge is authorized by and in compliance 

with a dredge or fill (section 404) permit issued by the Corps. 

The CWA does not contemplate a single, Federally-led water quality program. Rather, 

Congress intended the States and EPA to implement the CW A as a Federal-State partnership 

where the States and EPA act as co-regulators. The CW A established a system where States can 

receive EPA approval to implement water quality programs under State law, in lieu of Federal 

implementation. These States are called "authorized States." Under the CW A, 46 States have 

been authorized to implement and enforce NPDES permits. 

Even when a State has the lead authority to implement thc CWA's programs, EPA retains 

residual authority under the CW A to review certain actions by the State in implementing the 

CW A. EPA also retains authority to oversee and object to the Corps' issuance of section 404 

permits for the discharge of dredged or fill material. 

STATE ASSUMPTION OF THE SECTION 404 PERMITTING PROGRAM 

In 1977, the U.S. Congress formally recognized the potential for and desirability ofa 

major State role in the management of dredge and fill activities, including administration ofthe 

section 404 permitting program. Congress recognized that many States had already established 

parallel permitting programs, resulting in duplicative State and Federal permit requirements, and 

that the traditional role of the States in land use management provides States with a particularly 

effective basis for wetland management. However, Congress also emphasized the need to retain 

Corps control over navigation in interstate waters. 

Congress amended section 404 of the CW A, in the 1977 amendments to the CW A, to 

allow a State to assume the 404 program by applying to EPA to administer its own permit 

program for the regulation of dredge and fill activities in lieu of the permit program administered 

by the Corps. EPA provides overall program oversight over State programs that have assumed 

404 permitting responsibilities, to ensure compliance with Federal standards. 

Provisions authorizing States to apply for and assume the administration ofthe 404 

program can be found in CW A section 404(g)-(l). Requirements for assumption of section 404 

are detailed in EPA's section 404 State program regulations at 40 C.F.R. Part 233. 

An approved State program is one which is established under State law and which 

functions in lieu of the Federal program. It is not a delegation of Federal authority. In practice, a 

State section 404 program is a close partnership between the State and Federal agencies, with 

much of the day-to-day StatelFederai coordination occurring with the Corps. 

Combining the work of State and Federal agencies into a section 404 partnership 

eliminates a significant amount of State and Federal duplication, minimizing regulatory burdens, 

while taking advantage of the strengths of each level of government. State-specific needs and 

policies are more directly addressed, without sacrificing national standards, interstate concerns, 
ix 


Insert offset folio 3 here 76147.003

3 

or Federal technical expertise. At the same time, the section 404 program regulations maintain a 

"level playing field" among the States, and ensure protection of interstate water resources. 

Congress prohibited assumption ofthe 404 program in certain waters, as defined in 

section 404(g)(l) of the CW A, including waters which are or could be used to transport interstate 

and foreign commerce, waters subject to the ebb and flow ofthe tide, and wetlands adjacent to 

these waters (e.g., tidal waters, the Great Lakes, and major river systems). Generally these are 

the waters regulated by the Corps under section 10 of the Rivers and Harbors Act. The Corps 

retains section 404 jurisdiction over these waters. In waters where a State 404 program is 

approved by EPA, the Corps of Engineers suspends processing of 404 permits everywhere 

except in so-called section 10 waters. 

Section 404 provides for coordination with a number of other Federal resources 

- management programs. Because permits issued under a State-assumed program are issued under 

State law, other Federal laws, such as Endangered Species Act (ESA), do not directly apply. 

Instead, they are addressed through EPA oversight as required by the statute and regulations. 

State assumption of the section 404 program has been limited as compared to States 

assuming other parts of the Clean Water Act. While 46 States are authorized to implement the 

NPDES permit program under section 402, only two States, Michigan and New Jersey, have 

assumed the 404 program. 

ASSUMPTION REQUIREMENTS 

In order to be eligible to assume administration of section 404, a State program must 

comply with specified criteria. (See 40 C.F.R. Part 233.) The overriding requirement for 

assumption is that the State must have the authority to provide at least the same level of aquatic 

resource protection as the Federal agencies. Only then can Federal permitting be suspended in 

favor of the State program. 

States need to develop a wetlands permit program similar to the Federal program and 

submit to EPA an in-depth application to assume the program. Even for States with an existing 

wetlands regulatory program, this process can require the passage of new legislation by the State 

legislature. 

An approved State program must have in place, in State laws and regulations, provisions 

that address a number of requirements, including: 

Jurisdiction over all waters covered under Federal CWAjurisdiction, including wetlands, 

other than waters where the Corps retains jurisdiction. 

• Authoritv to regulate all activities that are regulated under Federal law. A State cannot 

exempt activities that are not exempt under the CW A. 

• Permitting standards and procedures that will be at least as stringent as the Federal permit 

program, and that will ensure consistency with the Federal permitting criteria. 
x 


Insert offset folio 4 here 76147.004

4 

Adequate compliance and enforcement authority, including the ability to enforce pennit 

conditions, and to address violations with penalty levels that are at least comparable to 

Federal fines and penalties. Under a State-assumed program, primary responsibility for 

enforcement rests with the State. 

• Program funding and staffing sufficient to implement and enforce the program. 

State regulations can be broader than Federal regulations, but carulOt exempt activities 

which require a Federal penni!. State regulations can provide greater resource protection, but 

cannot be less stringent that Federal regulations. 

There is no provision for partial assumption of the program. A State cannot assume 

authority for only certain categories of activities or waters. However, it is not required that a 

State operate a pennitting program in waters where the Corps retains jurisdiction. Nor is a State 

required to have authority over lands held in trust for tribes. 

THE ASSUMPTION PROCESS 

A State that seeks to assume the 404 program must compile and submit to EPA an 

application, which will include the following supporting documents: 

A letter to EPA, from the Governor of the State, requesting program approval. 

A complete program description. This detailed description will include a full description of 

the State's pennitting and enforcement programs, including regulatory authorities, staffing, 

organization, and basic procedures. 

• A statement from the State Attorney General, certifying that the laws and regulations ofthe 

State provide adequate legal authority to carry out the program and to meet the applicable 

requirements of Federal law. 

Memoranda of Agreement with the Regional Administrator of EPA and with the Secretary of 

the Anny, which among other things, define State and Federal responsibilities for section 404 

program administration and enforcement, including all State agencies with program 

responsibility; define categories of penn it applications for which EPA will waive Federal 

review; establish a schedule for reporting and submittal of other infonnation to EPA; 

describe waters that remain under the jurisdiction of the Corps following approval of the 

State program; defme any general pennits issued by the Corps that will be transferred to the 

State; and address State and Federal responsibilities for compliance monitoring and 

enforcement. 

• Copies of all applicable State statutes and regulations, including those governing applicable 

State administrative procedures. 
xi 


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5 

Following submittal, EPA distributes the application for State assumption to other 

Federal agencies for review, and must publish notice of the State's application in the Federal 

Register. EPA also must provide for a public hearing in the State. 

After reviewing the State or Tribal application and considering any Federal agency and 

public comments, EPA makes a decision ofthe requirements to assume the Federal permit 

program. EPA's decision is based on whether the State meets the applicable statutory and 

regulatory requirements for an approvable program. EPA is responsible for reviewing and 

approving/denying a State's request to assume the Federal permit program within 120 days of 

receipt ofthe completed application. 

When a State assumes administration of the section 404 program, the primary 

responsibility for permitting and enforcement in assumable waters is transferred to the State. 

The Corps no longer processes section 404 permits in waters under State jurisdiction. The State 

assumes responsibility for the program, determines what areas and activities are regulated, 

processes individual permits for specific proposed activities, and carries out enforcement 

activities. 

The role of EPA also changes. Prior to assumption, EPA reviews public notices and 

permits issued by the Corps, and provides comments to the Corps. In a State 404 program, EPA 

reviews public notices and permit applications received by the State, and provides comments to 

the State. A State cannot issue a permit over EPA's objection. 

EPA also is responsible for programmatic oversight, including reviewing annual reports 

submitted by the State, and evaluating any changes in State or Federal laws and regulations to 

ensure that program consistency is maintained. 

While EPA has the authority to review any application processed by the State, Federal 

regulations allow EPA to waive review of some categories of permits. However, EPA cannot 

waive review of certain types of permits such as those that may affect threatened or endangered 

species, draft general permits, and discharges near public water intakes. As the State program 

matures, the level of Federal oversight may decrease. 

IDENTIFIED BENEFITS OF STATE ASSUMPTION 

State assumption of section 404 gives a State the lead role in evaluating and issuing 

permits (with EPA in an oversight role). Representatives of States have identified several 

significant benefits of State assumption in terms of overall program efficiency and water 

resource protection. These include the following: 

Regulatory streamlining/increased program efficiency/consistency in permit decisions. State 

program assumption may greatly reduce duplicative State and Federal permitting 

requirements, and eliminate potentially conflicting permit decisions and conditions. State 

permit programs are often more timely than Federal programs, resulting in reduced time for 

review ofregulated activities. 
xii 


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6 

More effective allocation of State and Federal agency resources. State programs typically 

make use of more staff in more localized offices than programs operated from Corps 

districts. The public often considers State staff to be more accessible than Federal staff. 

Local resource knowledge and improved integration with other State resource programs. 

State resource managers frequently have extensive knowledge oflocal resource values, 

conditions, and issues, and also typically work closely with local units of government, 

including agencies responsible for overall land use and development, and with other related 

land and water management programs. 

State-specific resource policies and procedures are tailored to address specific conditions and 

needs of the State. Under a State-assumed 404 program, the State has a degree of flexibility 

in the selection of policies and procedures that are best suited to the needs and characteristics 

of the State. 

Increased regulatory program stabilitv. The processes and procedures of State government 

tend to be more stable, and less affected by individual legal decisions or procedural 

modifications, leading overall to a more stable and predictable permitting program. 

Increased public support. State permit staff are often more readily accessible to the public, 

and more consistent decision-making is achieved by policies and procedures tailored to the 

needs of the State. 

Improved resource protection. The coordinated efforts of both State and Federal agency 

staff, the use of State-specific methods and State expertise backed by Federal scientific 

expertise, and a more efficient regulatory program can provide greater protection of wetland 

resources. 

IDENTIFIED BARRIERS TO STATE ASSUMPTION 

The fact that only two States have assumed 404 program administration indicates there 

are some significant limitations associated with this process. Representatives of States have 

identified several barriers that stand in the way of States assuming the 404 program, including 

the following: 

• Meeting program requirements. Current Federal regulations for the section 404 program are 

complex, particularly in terms of the definition of Federal jurisdiction, activities regulated, 

permit review criteria, and permit exemptions. In order to be approved to administer the 

program at the State level, a State must demonstrate that it has equivalent authority in all 

areas. This can be difficult, particularly if the basis for State authority is quite different than 

the basis for Federal authority. 

• Potentially high percentage of waters that must remain under Corps jurisdiction. For some 

States, particularly coastal States, the extent of jurisdiction that would be retained by the 

Corps limits the appeal of the overall program, and may lead to a decision to forego program 
xiii 


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7 

assumption. In States where jurisdiction over a high percentage of waters would be retained 

by the Corps, assumption may be seen as less beneficial. 

Inability to partially assume 404 authority. Some States would prefer to administer a State 

404 program only in certain geographic areas of, or waters in, the State, such as the coastal 

zone, or in tidal wetlands, including a portion of section 10 waters. There is currently no 

option for partial assumption of a State 404 program based on a limited geographic area or 

type of waters. 

High financial cost associated with the initial evaluation and development of a State program. 

The initial cost of program assumption, which includes development of a full application, 

modifications to the State program to achieve consistency, development of procedures for 

coordination with Federal agencies, and educating the public regarding the change in State 

and Federal roles, can be significant. (EPA has estimated that States spend an average of 

$225,000 when investigating the option to assume the 404 program. Program development 

(but not administrative) costs may be partially offset through EPA Wetland Program 

Development Grants.) 

High financial cost of, and lack of dedicated Federal funding specifically for, State 404 

program operation/administration. There is no dedicated source of Federal funding for States 

to assume the administration of 404 programs. In theory, States may make use of CW A 

section 106 water program funds (which are for assisting States in administering their 

programs for the prevention, reduction, and elimination of water pollution) for this purpose, 

but this would be difficult in practice since these funds are already dedicated to other existing 

State water programs, which may be located in another State agency. This is perhaps the 

most serious impediment to many State agencies. (EPA has provided State wetland program 

development grants to support development of State wetland regulatory programs. However, 

the funds can only be used for program development, not implementation. The cost of 

administering not only the permit process, but the associated mitigation requirements and 

enforcement program, places a significant burden on a State administering a section 404 

program.) 

Political will and public desires. Multiple interest groups from both sides ofthe political 

spectrum may have serious concerns about the impact of State program assumption. Activist 

groups may initially view a State program as less protective than the Federal program. The 

regulated public may see assumption as an expansion of overall permit requirements. For 

State legislators, the cost of the regulatory program may be the primary concern. 

As noted earlier, State assumption of the section 404 program has been limited in 

comparison to States assuming other parts of the Clean Water Act. While 46 States are 

authorized to implement the NPDES permit program under CWA section 402, only two States, 

Michigan and New Jersey, have assumed the 404 program to date. Nevertheless, numerous 

States recently have expressed increased interest in assuming the administration of the 404 

program. 
xiv 


Insert offset folio 8 here 76147.008

8 

At the hearing, the Subcommittee will hear from three of these States, namely, Ohio, 

Florida, and Virginia, which have expressed interest in assuming the 404 program, and from a 

State (Michigan), which assumed the program in 1984. They are expected to discuss the 

perceived benefits of and barriers to program assumption. The Subcommittee also will hear 

from a former State regulator ([TOm Wisconsin and Ohio), now turned activist, about his views, 

and from representatives of EPA and the Corps about the State assumption process. 

WITNESSES 

Panel One 

Mr. David Paylor 

Director, Virginia Department of Environmental Quality 

(on behalf ofECOS-- Environmental Council ofthe States) 

Mr. Jeff Littlejohn, P.E. 

Deputy Secretary for Regulatory Programs, Florida Dept. of Environmental Protection 

Mr. George Elmaraghy 

Chief, Division of Surface Water, Ohio Environmental Protection Agency 

(on behalf of ASWM-- Association of State Wetland Managers) 

Mr. William Creal 

Chief, Water Resources Division, Michigan Department of Environmental Quality 

(on behalf of ACWA-- Association of Clean Water Administrators) 

Mr. Todd Ambs 

President, River Network 

Panel Two 

The Honorable Jo-Ellen Darcy 

Assistant Secretary of the Army for Civil Works 

Ms. Denise Keehner 

Director, Office of Wetlands, Oceans, and Watersheds 

U.S. Environmental Protection Agency 
(1) 

FORTY YEARS AFTER THE CLEAN WATER 

ACT: IS IT TIME FOR THE STATES TO 

IMPLEMENT SECTION 404 PERMITTING? 

THURSDAY, SEPTEMBER 20, 2012 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON WATER RESOURCES

AND ENVIRONMENT, 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, 

Washington, DC. 

The subcommittee met, pursuant to notice, at 10:02 a.m. in Room 

2253, Rayburn House Office Building, Hon. Bob Gibbs (Chairman 

of the subcommittee) presiding. 

Mr. GIBBS. Good morning. We will convene the Subcommittee on 

Water Resources and Environment, a subcommittee of T&I. And 

welcome, everybody, here today. I will start with my opening statement. Let’s get organized here a little bit. This is a lot more cozy, 

up here in this room. We shouldn’t have any trouble hearing everybody. 

Again, welcome. This is a Water Resources and Environment 

Subcommittee hearing on ‘‘Forty Years After the Clean Water Act: 

Is it Time for the States to Implement Section 404 Permitting?’’ 

A note that next month will be the 40th anniversary of the Clean 

Water Act. When Congress wrote the Clean Water Act, it did not 

contemplate having a single, federally dominated water quality 

program. Rather, Congress intended the States and the EPA to implement the Clean Water Act as a Federal-State partnership, 

where States and the EPA act as co-regulators. This, in essence, is 

a cooperative federalism. 

While the States have played an integral role in implementing 

many parts of the Clean Water Act over the past 40 years, including water quality standards and NPS permitting, there is an important program under the Clean Water Act that remains predominantly administered by the Federal Government. This is the 

dredge, or fill, wetlands permit program under Section 404 of the 

Clean Water Act. 

While some of the 46 States have primary responsibility for implementing NPDES permit program, only 2 States have assumed 

administration of the 404 permit program. This is despite the fact 

that, as I understand it, there are numerous States that are interested in assuming the program. 

State assumption of Section 404 gives a State the lead role in 

evaluating and issuing permits. This can eliminate a significant 

amount of State and Federal duplication, and result in increased 

2 

program efficiency and consistency in permit decisions. It also can 

help us ensure that State-specific needs and conditions are more directly addressed. 

States know best what their issues are and how to address them. 

I want to know why more States have not assumed the 404 program. And specifically, I want to hear about what are the barriers 

that are holding States back from assuming the program, and what 

statutory or other impediments, if any, are standing in the way of 

making this program an effective Federal-State partnership. 

The aim of this hearing today is fact-finding, so we can learn 

more about the States’ assumption issue—assuming—this issue. 

And also, I think, as part of our role as an oversight capacity. 

We assembled two panels of witnesses, including two Federal 

agencies responsible for Section 404 permitting, and several State 

representatives who will share their perspective on State assumption of this program. I welcome all of our witnesses. But this time 

I want to yield to my ranking member, Mr. Bishop, for any comments you may have. 

Mr. BISHOP. Thank you very much, Mr. Chairman. And thank 

you for holding today’s hearing. While the topic of today’s hearing 

is an interesting one, I have to question how today’s hearing will 

help address the issues that this subcommittee should be focusing 

on, which is creating jobs for American families. In light of this 

Congress’ mantra of doing more with less, I am curious how our 

Republican majority plans to address many of the concerns raised 

by the States without further diminishing Clean Water Act protections over our waters. 

Today we will discuss how some States wish to assume regulatory authority over dredged and fill activities currently covered 

by Section 404 of the Clean Water Act. Several States have articulated why they would like to assume regulatory authority over 404 

activities, but have failed to use existing Clean Water Act provisions to do so, provisions that were adopted by this committee over 

30 years ago. 

The chairman mentioned perceived barriers to State assumptions 

that—to State assumption that States recommend action on. However, we need to be honest with our witnesses and explain how, 

even if we agree with the States’ concerns, many of their recommendations are unlikely to find support with the current House 

leadership. 

First, States are requesting that Congress enact a new, dedicated 

grant program for States to set up and manage their individual 

wetlands programs. Yet all year the Republican majority has 

blocked this subcommittee from moving any legislation that would 

either reauthorize existing programs, such as the Clean Water 

State Revolving Fund at increased levels, or would create any new 

authorities. 

In addition, this Congress must soon address the consequences 

of sequestration, where Federal agencies such as the Corps and the 

EPA will need to absorb an additional 7- to 9-percent cut in funding, including an estimated cut of $120 million from the Clean 

Water SRF and an estimated $20 million cut from Section 106 

funding. So, I would ask my colleagues and the State witnesses 

3 

where they would have Congress cut further to come up with these 

additional funds for State 404 implementation. 

Second, some States are recommending that Congress grant 

them authority to regulate activities in the traditionally navigable 

waters, water that—waters that are covered by Section 10 of the 

Rivers and Harbors Act. Here again, I imagine that my Republican 

colleagues would be reluctant to grant States with potential veto 

authority over essential Federal functions such as national defense, 

protection of commercial navigation, and flood control projects. 

Some also suggest that State assumption of the 404 authority 

will result in faster and cheaper permits for the regulated community, as well as greater consistency and efficiency in permitting 

process. Yet there is evidence to the contrary, and I want the 

record to reflect the following. 

Number one, when you compare apples to apples, the average 

permit processing time for the States of Michigan and New Jersey 

is currently about the same as the overwhelming majority of Federal 404 permits approved by the Corps. So existing data does not 

show that permits will be processed faster by States. 

Second, in the absence of additional Federal appropriations, 

States may be forced to raise an additional funds to administer the 

404 program through State general revenues, or permit fees. So it 

is not necessarily a given that 404 permits will be cheaper under 

State authority. 

And, third, permit applicants may also face greater confusion trying to figure out which Federal or State agency is responsible in 

those States that choose to administer only portions of the 404 program, or if States are unable to assume authority over navigable, 

in fact, waters. 

So, exactly why are we holding today’s hearing, especially as this 

Congress plans on making its getaway tomorrow for the upcoming 

elections? If the reason for today’s hearing is to lay down a marker 

for further changes to Clean Water Act protections over waters, 

similar to other bills moved by this subcommittee through the Congress, then in my view this is the wrong approach for protecting 

the health and well-being of American families, and one that I cannot support. 

Rather than holding this hearing, I would have preferred to see 

this subcommittee meeting be an opportunity to advance legislation 

such as the Clean Water SRF reauthorization, to address the current 11.3 percent unemployment rate for the construction industry 

nationally—and I will point in my—pardon me, on Long Island, 

over 30 percent unemployment in the heavy construction industry. 

Just like the recently enacted surface transportation program, 

the need for investing in wastewater infrastructure is enormous, 

and will not go away, simply by ignoring it. Similarly, reauthorization and reforming programs to rebuild our crumbling infrastructure will create thousands of jobs. For every $1 billion invested in 

wastewater infrastructure, this Nation can create between 28,000 

and 33,000 jobs in communities across America, while improving 

public health and the environment. 

For the past year-and-a-half I have been working in good faith 

with outside groups and colleagues across the aisle to reach consensus on the best way to renew the Federal commitment to fundVerDate Aug 31 2005 10:47 Feb 07, 2013 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 P:\HEARINGS\112\WR\9-20-1~1\76147.TXT JEAN
4 

ing wastewater infrastructure. Unfortunately, these efforts have 

been rebuffed by the Majority at every step, including a party-line 

vote against reauthorization of the Clean Water SRF before the August recess. 

It looks as if we will recess this committee and this Congress for 

the elections without moving a Clean Water SRF reauthorization. 

This will mark the first time since Chairman Bud Shuster led this 

committee that we have not acted on a Clean Water SRF reauthorization. This is a missed opportunity, not only in terms of what this 

committee should be doing to promote good-paying jobs here at 

home, but also in meeting its longstanding obligation to work with 

the States in protecting public health and the environment. 

I yield back the balance of my time. 

Mr. GIBBS. OK. Before I introduce our witnesses, I want to ask 

unanimous consent that the following letters and supporting documents from the aggregates—the Ohio Coal Association and the Association of State Wetland Managers—be included in the record. 

[No response.] 

Mr. GIBBS. Without objection? 

Mr. BISHOP. No objection. 

Mr. GIBBS. OK—— 

Mr. BISHOP. And I have one, also, one—— 

Mr. GIBBS. Oh, OK, OK. Well, OK. So that is so ordered. 

[Please see pp. 107–161 for the materials referenced by Hon. Bob 

Gibbs.] 

Mr. BISHOP. OK. 

Mr. GIBBS. And go ahead. 

Mr. BISHOP. I ask—thank you, Mr. Chairman. I ask unanimous 

consent that a letter from Mr. William Snape of the Center for Biological Diversity be included in today’s hearing record. 

Mr. GIBBS. So ordered. 

[The information follows:] 

5 


Insert offset folio 64 here 76147.064

September 19,2012 

The Honorable Robert Gibbs 

Chairman, House Subcommittee on Water Resources and Environment 

The Honorable Timothy Bishop 

Ranking Member, House Subcommittee on Water Resources and Environment 

U.s. House of Representatives Committee on Transportation and Infrastructure 

House Rayburn Office Building 

Washington, D.C. 20515 

Re: Hearing on Clean Water Act 404 Permitting and Potential State Assumption 

Dear Congressmen Gibbs and Bishop, and Members of the Subcommittee: 

We write to you today expressing deep concern about encouraging the delegation of 

authority of Section 404 permitting to the states under the Clean Water Act. Below is a brief 

background and overview of key issues related to the Army Corps of Engineers' ("Corps") 

compliance with the Endangered Species Act (ESA) in connection with its administration of the 

nationwide pennit program under the Clean Water Act. As we demonstrate, unlike the Clean 

Water Act NPDES and Clean Air Act permitting, which recognize and embrace the importance 

of state delegation and cooperative federalism, the Section 404 program as a whole possesses no 

clear federal policy or permitting structure, and state assumption of "dredged or fill material" 

permitting would thus lead to more regulatory chaos, more destruction of wetlands/water 

systems and more extirpation of imperiled wildlife. In the Endangered Species Act (ESA) 

context, delegation to the states of "take" permitting authority is an even more controversial idea, 

in part because states themselves are as bound by the prohibition against take as private parties, 

and in part because of the historic reality that the federal ESA was passed to address the 

significant weaknesses of state protection for threatened and endangered species. 

1. Background 

According to the Congressional Research Service, as much as 90 percent of the Corps' 

regulatory workload consists of processing general permits.l The National Oceanic and 

Atmospheric Administration's Fisheries Services ("Fisheries Service") notes that the number of 

activities authorized through "nationwide permits" (a form of general permit) is so great that 

thousands of acres of the nation's wetlands are being lost every year. The NWPs which took 

effect on March 19,2012, will authorize at least 43,000 activities every year, more than 217,000 

activities over five years, resulting in a cumulative loss of 140,000 acres of jurisdictional 

wetlands to activities authorized under NWPs since 1982.2 

I Congressional Research Service, The Army Corps of Engineers' Nationwide Permits Program: 

Issues and Regulatory Developments (Jan. 30,2012). 

2 U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National 

Marine Fisheries Service, Endangered Species Consultation, Biological Opinion on u.s. Army 

ACOE of Engineers' Nationwide Permit Program (Feb. 2012) ("Fisheries BiOp") at 178. 
6 


Insert offset folio 65 here 76147.065

The sheer number of activities authorized under NWPs has sobering consequences for the 

nation's resources. The nation's waters and wetlands provide critical ecosystem services to 

aquatic systems and important habitats for wildlife, including endangered and threatened birds, 

fish, and plants as well as organisms on the lowerrungs of the food chain. The Clean Water Act 

and Endangered Species Act can work together to protect the nation's wetlands, clean water, 

species, and habitat. However, the Corps has a long history of failing to comply with the ESA in 

administering the NWP program - in fact, having had so many years to correct its course in 

connection with ESA compliance, reflecting an institutional resistance, or an inability, to do so.3 

II. Key Issues 

There are two primary issues related to the Corps' failure to comply with the ESA in 

connection with its administration of the NWP program: (1) failure to consider the effects of the 

program as a whole at the programmatic level; and (2) flaws with the agency's analysis of effects 

to listed species at the site-specific level. 

1. Failure to Complv with the ESA when Authorizing NWPs 

First, the Corps consistently fails to consider the effects of authorization ofNWPs for 

five-year terms. This "programmatic" -level consultation is the only point in the regulatory 

process when the cumulative effects ofNWPs on environmental resources, including endangered 

and threatened species, may be considered as a whole, with the knowledge gained from such 

analysis factored into the scope, terms and conditions by which specific NWPs are authorized. 

Without such information, however, there is no way for the Corps, Fisheries Service, U.S. Fish 

and Wildlife Service, or the public to understand and be informed of the degree to which listed 

species and habitat is being adversely affected, and as a result, agency decisionmakers' ability 

ultimately to adopt, modify, or cancel specific NWPs is undermined. 

The Endangered Species Act requires agencies to ensure that their actions are not likely 

to jeopardize the continued existence of listed species, and are not likely to destroy or adversely 

modify listed species' critical habitat. 16 U.S.C. § 1536(a)(2). The ESA's implementing 

regulations set forth a specific set of procedures, compliance with which is the only way to 

ensure compliance with these affirmative duties. 50 C.F.R. Part 402. The Corps has never 

complied with these procedures at the programmatic level, throughout the history of the NWP 

program. In 2005, a federal court found this to be a violation of the ESA. Nat'l Wildlife Fed'n v. 

Brownlee, 402 F. Supp. 2d 1 (D.D.C. 2005). Nevertheless, the Corps has not come into 

3 Although this memorandum focuses on issues that arise under the ESA, we also note that 

through the NWP program, the Corps is also allowing activities that are having far more than a 

"minimal cumulative adverse effect on the environment", in contravention of the Clean Water 

Act's authority for the program, 33 U.S.C. § 1344(e)(1), and that the Corps has failed to analyze 

fully the environmental consequences ofNWPs in accordance with the National Environmental 

Policy Act through preparation of environmental impact statements. 
7 


Insert offset folio 66 here 76147.066

compliance since that federal ruling, maintaining that it complies with the ESA at the sitespecific level (see discussion below).4 

The Corps' position that it may fully comply with the ESA solely at the site-specific level 

- i. e., when activities are authorized under NWPs at a particular site - is simply not justified. It 

is well-settled in ESA jurisprudence that agencies may be required to comply with the ESA at 

multiple levels in connection with a regulatory regime, including at the programmatic as well as 

site-specific levels, and there is no reason -legal, policy, or otherwise - why the Corps may 

avoid ESA compliance at the programmatic level in connection with the NWP program. Indeed, 

this is the only level when a cumulative analysis of the program may be conducted. See, e.g., 

NWFv. Brownlee, 402 F.Supp.2d at 10 ("overall consultation for the NWPs is necessary to avoid 

piece-meal destruction of ... habitat through failure to make a cumulative analysis of the 

program as a whole"). Nevertheless, the Corps routinely fails to conduct this analysis, including 

in connection with the niost recent authorization of the NWPs for a new five-year term.s 

Closely related to this issue is the Corps' failure to maintain basic information that would 

inform an analysis to satisfy the ESA. In a biological opinion dated February 15,2012, the 

Fisheries Services concluded that the agency does not maintain even basic information about 

how many waters and wetlands are being impacted, or monitor these impacts consistently, such 

that it can ensure that NWPs are not likely to jeopardize listed species.6 This conclusion 

underpins the Corps' failure to meet its obligations under the ESA in connection with the most 

reauthorization of the NWPs for a new five-year term. The Fisheries Service set forth a 

"reasonable and prudent alternative" which the Corps is mandated to follow in order to comply 

with the ESA, but since the issuance of the Fisheries' Service's biological opinion, the Corps has 

finalized its authorization of the NWPs for five more years, has rejected the Fisheries Services' 

findings and the conclusions in its biological opinion, and has simply proceeded with its program 

according to business as usuaL Moreover, the Corps never requested consultation with the Fish 

4 After the federal court in Brownlee remanded the NWPs to the Corps, on March 13, 2007 the 

Corps reinitiated programmatic ESA Section 7(a)(2) consultation with the Fisheries Service, 

which has jurisdiction under the ESA over most aquatic and marine species, and the Fish and 

Wildlife Service, which has jurisdiction over most terrestrial species. 77 Fed. Reg. at 10, 187. 

Yet, final biological opinions, which are the procedural mechanism by which agencies meet their 

duties under the ESA, were never produced by either Service, and programmatic consultation 

between the Corps and the Fisheries Service was delayed mUltiple times before the Corps began 

to reauthorize its NWPs for a new five-year term. 76 Fed. Reg. 9174, 9176-77 (Feb. 16,2011) 

(describing uncompleted 2007 progranunatic consultation). 

5 Violations of the ESA in connection with the Corps' NWP reauthorization for 2012-2017 are 

outlined in the Center's August 16, 2012 notice of intent to sue the Corps, which is attached to 

this memorandum. 

6 The Fisheries Service found that the Corps has not structured its NWP program "to know or 

reliably estimate the general and particular effects of the activities that would be authorized", the 

effect of those activities on water quality or listed species, or to take action necessary to prevent 

direct or cumulative degradation of water quality and habitat. See Fisheries BiOp at 223. 
8 


Insert offset folio 67 here 76147.067

and Wildlife Service to consider the effects of NWPs to terrestrial species at all. The Corps' 

recalcitrance in light of these serious issues will necessitate more litigation, and quite possibly 

Congressional intervention, in order to force the Corps to rehabilitate its regulatory approach and 

to ensure protection of the nation's listed species. 

2. Flaws with Site-Specific Analyses 

As noted above, the Corps maintains that it may adequately meet its obligations under the 

ESA solely by considering the effects of activities authorized through NWPs at the site-specific 

leveL However, there are serious flaws with the way in which the Corps conducts these analyses 

as well. 

By way of a brief overview, the NWPs authorize a wide range of impacts to the nation's 

waters and wetlands, including, among other activities: exploration, production, and 

transportation of oil, gas, and minerals on the outer continental shelf (NWP 8); utility lines 

(including power lines, substations, and pipelines) (NWP 12); bank stabilization (NWP 13); 

transportation projects (NWP 14); bridges (NWP 15); hydropower projects (NWP 17); coal 

mining activities (including activities associated with mountaintop removal) (NWP 21, NWP 49, 

NWP 50); other mining (NWP 44); and shellfish aquaCUlture (NWP 48). Some NWP activities 

require "pre-construction notification" ("PCN") to the Corps, but the Corps does not provide 

public notice ofPCNs. Eighteen NWPs permit activities to proceed without any notification to 

the Corps, if they conform to the terms and conditions that apply to NWPs. 

General Condition 18 provides that no activity may proceed under a NWP if it is likely to 

jeopardize the continued existence ofa threatened or endangered species (or a proposed species), 

or destroy or adversely modify listed species' critical habitat. Section 1 consultation is required 

for an activity authorized under a NWP that "may affect" a listed species or critical habitat. 

General Condition 18 makes non-federal permittees responsible for notifying the District 

Engineer if any listed species or critical habitat may be affected or are "in the vicinity of the 

project." 77 Fed. Reg. at 10,192; 33 C.F.R. § 330.4(f)(2) ("Non-federal permittees shall notify 

the DE if any Federally listed (or proposed for listing) endangered or threatened species or 

critical habitat might be affected or is in the vicinity of the project."). 

Thus, General Condition 18 delegates authority for ESA Section 7 consultation to the permittee 

i.e., the party with the greatest degree of interest in proceeding with the activity pursuant to an 

NWP, after a relatively short, streamlined permitting process, and the party with the least 

expertise in assessing the presence of species that may be affected. See Fisheries Bi Op at 191 

("the conditions ... make prospective permittees solely responsible for compliance with the 

requirements ofthe ESA" and "assume that prospective permittees would have sufficient 

knowledge of the presence or absence of [listed] species and ... critical habitat on a project site 

and the requirements of the ESA" as well as the "technical knowledge necessary to determine if 

their activity might have direct or indirect effects" on listed species"); see also id. at 197 ("By 

design, the USACE intended activities authorized by [l'<rwps] to receive a lower level ofreview 

than activities authorized by standard permits."). Indeed, for these reasons the Fisheries Service 

doubted that General Condition 18 will result in ESA compliance, because while "[ s lome 

prospective applicants certainly will have sufficient knowledge to make these judgments", 
9 


Insert offset folio 68 here 76147.068

"recent surveys of the depth of public knowledge of science, environmental information, and 

causal relationships suggest that it would be an error to make the same assumption about the 

general population." Id. at 192 (citations omitted). 

For activities pursuant to the 28 NWPs that do require the permittee to provide pre-construction 

notification to the Corps, the Fisheries Service noted that even then, PCN is unlikely to cure 

these flaws, as "the evidence suggests that the [Corps 1 does not use the information contained in 

PCNs to filter ou[t] projects that are likely to have significant individual or cumulative impacts 

on waters of the United States, endangered or threatened species, or designated critical habitat." 

Id. at 197. As the Fisheries Service concluded: 

The limited review schedules for NWPs almost certainly preclude project managers from 

critically reviewing PCNs and verifying whether the basic information on project 

location, timing, and impacts contained in the notifications is correct or whether the 

conclusions about [listed] species and ... critical habitat contained in the notifications 

were well-reasoned and had been based on the best scientific and commercial data 

available, as required by section 7(a)(2) of the ESA. 

Id. at 198. 

Lastly, there is another flaw in the scope of the ESA analysis that is conducted at the site-specific 

level that warrants mention here. Pursuant to General Condition 18, the proposed permittee is 

directed only to consider the potential effects "in the vicinity" of the proposed activity. The term 

"vicinity" is not necessarily consistent with the "action area", which the geographic scope for 

which ESA analysis is required. See 50 C.F.R. § 402.02 (defining "action area" under the ESA 

as "all areas to be affected directly or indirectly by the Federal action and not merely the 

immediate area involved in the action"); id. § 402.14(c) (formal consultation initiated when the 

action agency notifies FWS whether there are any listed species or critical habitat that may be 

affected by the action). Thus, species may be in a project's "action area" but not its "vicinity", 

as the "action area" constitutes areas that are "not merely in the immediate area involved". As a 

consequence, to the extent it considers the effects of activities authorized under NWPs at all, the 

Corps limits its analysis to the direct footprint of the activity, omitting any consideration of 

indirect, upland, or downstream effects. 

Thank you for the opportunity to offer our views. 

Sincerely, 

lsi 

William J. Snape, III 

Senior Counsel 

Center for Biological Diversity 

Professor and Practitioner in Residence 

American University, Washington College of Law 

202-274-4443 
10 

Mr. BISHOP. Thank you very much. 

Mr. GIBBS. OK. Our first panel of witnesses—I will just go 

through quickly and introduce you—is Mr. David Paylor, he is the 

director of the Virginia Department of Environmental Quality and 

vice-chair of the Water Committee of the Environmental Council of 

the States; Mr. Jeff Littlejohn, he is the deputy secretary for regulatory programs, Florida Department of Environmental Regulation; 

Mr. George Elmaraghy, chief, Division of Surface Water, Ohio Environmental Protection Agency, and member, Association of State 

Wetland Managers; Mr. William Creal, he is the chief of the Water 

Resources Division of the Michigan Department of Environmental 

Quality, and board member, Association of Clean Water Administrators; and Mr. Todd Ambs, president of River Network. 

And we will start this way. Welcome, Mr. Paylor, and the floor 

is yours. 

TESTIMONY OF DAVID K. PAYLOR, DIRECTOR, VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY, AND VICECHAIR, WATER COMMITTEE, ENVIRONMENTAL COUNCIL OF 

THE STATES; JEFF LITTLEJOHN, P.E., DEPUTY SECRETARY 

FOR REGULATORY PROGRAMS, FLORIDA DEPARTMENT OF 

ENVIRONMENTAL REGULATION; GEORGE ELMARAGHY, P.E., 

CHIEF, DIVISION OF SURFACE WATER, OHIO ENVIRONMENTAL PROTECTION AGENCY, AND MEMBER, ASSOCIATION OF STATE WETLAND MANAGERS; WILLIAM CREAL, 

CHIEF, WATER RESOURCES DIVISION, MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY, AND BOARD MEMBER, 

ASSOCIATION OF CLEAN WATER ADMINISTRATORS; AND 

TODD L. AMBS, PRESIDENT, RIVER NETWORK 

Mr. PAYLOR. Thank you. Good morning, Mr. Chairman, members 

of the subcommittee. I am pleased to be here today to discuss what 

many of the States see as the benefits associated with State assumption of Section 404 of the Clean Water Act, and to recommend 

actions that would help remove some of the barriers to State assumption. My name is David Paylor, and I have been the director 

of the Virginia Department of Environmental Quality since 2006. 

I am also here representing the Environmental Council of the 

States, a nonpartisan, nonprofit organization which consists of the 

key environmental commissioners of the States and territories. 

In 2008, ECOS issued Resolution 08–3 supporting delegation of 

Section 404 responsibilities to States that are prepared to do so, 

and making recommendations to EPA to facilitate this process. We 

see a number of benefits to having the 404 program implemented 

by the States. 

Most States define their waters more broadly than the Clean 

Water Act, and include isolated wetlands, ephemeral streams, and 

ground water that are not under Federal jurisdiction. A State-run 

program would eliminate jurisdictional uncertainty, and provide a 

consistent and predictable definition of regulated waters. 

Similarly, a State-run program would provide a streamlined, onestop permitting experience, which removes duplication and regulatory redundancy. A single regulatory agency implementing the 

rules would eliminate the potential confusion that can come from 

11 

two regulatory bodies, and would provide for greater consistency in 

the application of regulatory requirements. 

The program could be administered by most States at significantly less cost. In Virginia, we currently estimate it would cost an 

additional $3 million per year in operating cost to assume the 404 

program on top of our current duties. Our best estimate is that this 

program cost the Norfolk District of the Army Corps of Engineers 

$7.5 million per year to administer. 

States are often positioned to provide timely service to project applicants through a knowledge of the areas of proposed impact. 

ECOS has identified four primary barriers to State assumption. 

federally funding is not currently available for Section 404 implementation by the States. Other sections of the act, such as the 

wastewater discharge regulations, provide Federal funding for 

State implementation. 

In Virginia, this is our single largest impediment to our assumption of Section 404. There is uncertainty regarding the criteria EPA 

would use for assessing States’ legal authorities and their assumption decision. EPA correctly requires that State authorities be sufficient to meet Federal requirements. But because of differences in 

State jurisdiction from their underlying constitutions and statutes, 

those criteria may vary from State to State, creating some uncertainty regarding EPA’s expectations. 

Section 404 provides for no phased assumption option, which 

would allow States to transition toward full assumption. Similarly, 

Section 404 does not include an option for partial assumption by 

States. Partial assumption could be based on specific geographic 

areas, or certain types of activities. 

As I mentioned earlier, the States, through ECOS, support efforts to encourage Section 404 delegation to those States prepared 

to implement the program. As such, we make the following recommendations. 

U.S. Congress should take action to authorize and appropriate 

adequate fundings for States to assume the Section 404 permitting 

program, should they choose to seek it. Based on Virginia’s estimates, Federal funding for a State program could result in at least 

a 50-percent savings, and a consequent reduction in the cost borne 

by taxpayers. 

Encourage EPA to develop clear guidelines and processes for 

State assumption, which encourage States to apply for and assume 

regulatory responsibility for the program. 

And support of simplified and more flexible process for State assumption of the Section 404 program, including partial and phased 

options. 

The goal of protecting our Nation’s wetlands and streams is critical to our future. It is a goal that can best be realized through a 

process that is consistent, efficient, and responsive to the unique 

features and qualities of the individual States. State assumption 

can provide a mechanism for individual States to realize enhanced 

water resource protection while providing a streamlined regulatory 

program with a single point of contact. 

Mr. Chairman and members of the subcommittee, I appreciate 

the opportunity to present my testimony to you today, and will be 

happy to answer any questions you may have. 

12 

Mr. GIBBS. Now, before we move on, an oversight—I sincerely 

apologize—I didn’t introduce our last witness. My problem is I 

broke my glasses last week, and I got these readers, and I am 

struggling here because when I look up with my glasses on, you are 

all blurry. 

But we have Mr. Todd Ambs. He is president of the River Network. And welcome. 

Go back to Mr. Littlejohn. The floor is yours. 

Mr. LITTLEJOHN. Thank you, sir. Good morning, Chairman Gibbs, 

Ranking Member Bishop, other members of the subcommittee. I am 

Jeff Littlejohn, deputy secretary for the Florida Department of Environmental Protection. Our responsibilities include administering 

Florida’s federally delegated programs under provisions of the 

Clean Water Act, Clean Air Act, Safe Drinking Water Act, and 

other Federal laws. 

In Florida we value our waters and wetlands and have protected 

them under State law since 1974 through integrated management 

of storm water, landscape alteration, and our State-owned submerged lands. We do this because Floridians know our natural resources better than anyone else. But our commitment to safeguarding Florida’s environment results in duplication with the U.S. 

Army Corps of Engineers and its Section 404 wetlands program. 

This duplication of effort comes in spite of using joint permit applications with the Corps, implementing a State programmatic general permit from the Corps, and integrating Section 401 water 

quality certification and coastal zone management consistency into 

our State wetland permitting process. 

When Congress amended the Clean Water Act in 1977 to enable 

States to assume the 404 program, it had the clear intention of 

making that assumption possible. Unfortunately, obstacles remain 

35 years later for Florida and 47 other States to accepting the full 

404 program. Without changes, perhaps to Federal law, and certainly to the Federal review process, Florida and the Corps will 

continue issuing two permits for applicants who are only asking to 

do one thing. That surely was not Congress’ intention. 

Requiring two permits for one project might make sense if the 

State and Corps were addressing different types of activities or 

achieving different outcomes. However, my staff just completed an 

analysis of Corps wetland permits recently issued in northeast 

Florida. Of 31 projects where the Corps and Florida issued a permit for the same activity, the wetland jurisdiction line was identical in all 31 instances. The permitted wetland impacts were similar, and Florida required about 50 percent more wetland mitigation, overall. This analysis at least suggests that Federal permits 

are not more extensive or more protective than Florida’s. And if 

they are not, it is difficult to make the case that two permits are 

necessary. 

The primary barrier to Florida’s full assumption of Section 404 

is that many tidal and other navigable waters subject to the Clean 

Water Act are also subject to Section 10 of the Rivers and Harbors 

Act, which cannot legally be assumed. These waters constitute a 

large and important part of Florida’s aquatic systems, including 

coastal waters and public trust lands transferred to Florida at time 

13 

of statehood. This prohibition negates many potential benefits of 

Section 404 assumption. 

We absolutely respect the Corps of Engineers’ vital and distinct 

role in maintaining navigation. However, by virtue of its sovereignty, Florida has significant proprietary powers, including the 

authority to maintain navigation. In fact, we have demonstrated, 

year after year, the ability to protect navigation as we are protecting aquatic resources, through comprehensive wetlands and 

coastal regulatory programs, and our federally approved coastal 

zone management program. 

Surely responsibilities can better be divided to take full advantage of Florida’s proven abilities and the Corps’ important oversight role. We are ready and eager to assume expanded authority 

over Section 10 waters under the Corps’ watchful eye and guidance. 

A second barrier to assumption has been the uncertainty in the 

State and Federal roles in administering the Endangered Species 

Act. In 2010, EPA clarified that consultation under the ESA is not 

required before approval of a State 404 program. This was helpful, 

but not sufficient. Florida has robust State constitutional authority 

to protect listed species through the Florida Fish and Wildlife Conservation Commission, through which we coordinate all of our wetlands and coastal permitting. The Commission recently amended 

its rules to mirror the protections afforded to federally listed species. We believe we can demonstrate the necessary equivalency of 

Florida’s program in this regard. 

During past consideration of Section 404 program assumption by 

Florida, questions have been raised regarding the equivalency of a 

number of aspects of our program to Federal law. The Clean Water 

Act requires that approved State programs have adequate authority to carry out the 404 program in a manner that is no less stringent than Federal requirements. This is a reasonable standard. 

Certainly Florida’s laws, like those in other States, are not identical to Federal law. But that is not the test. In its review of our 

program, we need EPA to recognize Florida’s combination of State 

constitutional, statutory, and proprietary authorities, along with its 

suite of rules, that combine to provide comprehensive management 

of the State’s aquatic resources at least equivalent to Section 404, 

which itself rests primarily on the Federal obligation to protect 

interstate commerce. 

We are confident that States like Florida can demonstrate 

equivalency to Section 404, provided the reasonable standard of 

adequate authority to carry out the program is appropriately applied. We have proved this in our implementation of the Section 

402 NPDES program for more than a decade. Whether in the context of our wetland delineation method, regulatory jurisdiction, protections for listed species, water quality standards, mitigation requirements, public participation, procedural rigor, or compliance 

and enforcement authority, Florida implements substantially 

equivalent—if not greater—protections, with more extensive coverage for our aquatic resources. 

In summary, we believe Congress provided for State assumption 

of Section 404 because it recognized the additional strength that 

comprehensive State water and land use programs would bring to 

the program, and the virtues of a State-Federal partnership. FlorVerDate Aug 31 2005 10:47 Feb 07, 2013 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 P:\HEARINGS\112\WR\9-20-1~1\76147.TXT JEAN
14 

ida is fully committed to preserving its aquatic resources and will 

continue to carry out science-based, wide-ranging, publicly supported programs for wetland and water resource management. We 

hope, with Congress’ support, that Florida and the Federal Government can realize the full potential of Section 404 program assumption to protect these resources and, at the same time, unburden the 

public of unnecessary bureaucracy and pointless costs. Thank you 

for the opportunity. I am happy to answer any questions you may 

have. 

Mr. GIBBS. Thank you. 

Mr. Elmaraghy, the floor is yours. 

Mr. ELMARAGHY. Good morning, Chairman Gibbs, Ranking Member Bishop, and members of the subcommittee. I am George 

Elmaraghy, chief of the Division of Surface Water of the Ohio Environmental Protection Agency. I am grateful for the opportunity to 

speak on behalf of the State of Ohio and the Association of the 

State Wetland Managers regarding the State experiences in pursuing the assumption of Clean Water Act Section 404 permitting. 

In Ohio, the Corps of Engineers authorizes impacts to the water 

of the U.S. through Section 404 permits. Ohio EPA issues 401 certificates for these permits, and then U.S. EPA provides oversight. 

Ohio, along with other States, is interested in assuming Section 

404 permitting for the following reasons and benefits. One, the permitting process would be streamlined into one permit from one regulatory agency, thus reducing the regulatory uncertainty and burden for business in Ohio. 

Two, State regulatory staff are more aware of local development 

and local water resources issues. 

Three, State regulatory staff can better coordinate the issuance 

of 404 permits with other State-issued permits, such as air permits, 

NPDES permits, and storm water construction permits. 

And four, a simplified environmental permitting process would 

encourage investment in the State, leading to job creation. 

The States have had the opportunity to pursue assumption of 

Section 404 program since 1977. As of today, only two States have 

assumed permitting authority. Numerous other States have investigated assumption of the 404 program. However, these States have 

been unsuccessful. In contrast, 46 States have received NPDES 

permitting delegation. We need to learn from this success. 

From our perspective, there are four main obstacles: number one, 

lack of congressional mandate to delegate 404 authority to States; 

two, a cumbersome assumption process; three, lack of guidance 

from U.S. EPA in preparing an assumption package; and four, lack 

of program implementation program funding. 

We need to eliminate these obstacles to State Section 404 program assumption by, one, simplifying the assumption process, an 

unworkable process that can be drawn out for several years. The 

Oregon experience is a good example that illustrates the difficulty 

of this process. Oregon started the assumption process more than 

15 years ago, and has yet to receive authorization. 

Two, development of a joint U.S. EPA and Corps of Engineers 

guidance on how to prepare a 404 assumption package. 

15 

Three, establish a pilot assumption project between the Corps of 

Engineers, U.S. EPA and a State to serve as an example for other 

interested States. Ohio volunteers to be this pilot State. 

Four, providing funding for preparing the assumption package by 

allowing States to use current wetland grants to fund assumption 

activities. 

And, number five, provide funding to implement the program 

upon assumption. This could be accomplished by establishing a 

mechanism to reallocate the funding currently used by the Corps 

of Engineers to authorize the States. 

Mr. Chairman and members of the subcommittee, thank you for 

this opportunity to share Ohio’s perspective on the Section 404 program assumption process. I have additional materials to be added 

to the record from the Association of State Wetland Managers. I 

am happy to answer any questions you may have. Thank you. 

Mr. GIBBS. Yes, we already accepted those additional materials. 

Mr. ELMARAGHY. Thank you. 

Mr. GIBBS. Thank you. Mr. Creal, the floor is yours. Welcome. 

Mr. CREAL. Thank you. Good morning, Chairman Gibbs and fellow committee members. I am Bill Creal. I am the chief of the 

Water Resources Division of Michigan, which is 300 engineers and 

scientists that work on water resource issues in Michigan. I am 

testifying on behalf of both Michigan and the Association of Clean 

Water Administrators. With me today is my assistant division 

chief, Kim Fish. And between the two of us, we have over 60 years 

of administering Clean Water Act programs in the State of Michigan. Thank you for the opportunity to participate in this important 

discussion regarding Section 404 of the Clean Water Act. 

Michigan is one of the two States to assume the Section 404 program. We assumed this program 28 years ago. You are probably 

asking why would Michigan assume this program. Well, Michigan 

is defined by an abundance of water. We have borders with four 

of the five Great Lakes, which results in over 3,000 miles of coastal 

freshwater shoreline, the most freshwater shoreline of any State in 

the Nation. We also have over 11,000 inland lakes, more than any 

other State in the Nation. And we have 5.5 million acres of wetlands in our State. It is important to wisely use these water resources. 

Since assuming the Section 404 program, we have issued over 

100,000 permits. And we issue about 4,000 to 5,000 permits every 

year. We know and understand what it takes for a State to run 

this program, and what the benefits are to a State. 

You have heard some of these benefits from the other members 

of this panel. We think these benefits include a clear definition of 

what is regulated waters and what are regulated activities. We 

don’t have the confusion in Michigan that is on the national level 

on what are regulated waters. We make faster permit decisions. 

We have statutory State deadlines that drive us towards this. We 

have reduced the regulatory burden. We have consolidated permitting actions throughout the State. We have better access to decisionmakers. We have 10 district offices in Michigan, and we issue 

our permits in those district offices. We have more public oversight 

of our decisions, and we have a fair and impartial appeal process 

16 

for those that aren’t satisfied with our decisions. We have provided 

examples and further explanation in our written testimony of this. 

We know this can be a difficult program to run. We have seen 

the controversies over 28 years. But Michigan thinks it is worth it 

for States to assume. This support was demonstrated as recently 

as 2009. Our department has seen general fund reductions from 

$120 million of State funding down to $20 million by 2009. This 

makes tough budget times in Michigan. In 2009 our Governor proposed turning this program back to the Federal Government. But 

the regulated parties, including Realtors, home builders, manufacturers, the farming community, and the environmental groups and 

other stakeholders, prevented this from happening. 

However, we continue to face the funding issue for our program. 

We are saving the Federal Government over $5 million per year by 

running this program. Specific Federal funding is not provided to 

run this program. So, Michigan has saved the Federal Government 

quite a bit by running this program for 28 years. We strongly recommend that you consider sharing some of these savings with the 

States that assume the Section 404 program. This would assure 

that States are able to assume and keep this program. 

In our specific case, we propose that States like Michigan be eligible for up to $2 million per year in grants when they assume the 

program. We believe such a process can be put in place so there 

are real Federal budget savings, and States also receive some Federal funding to run this important program. 

Mr. Chairman, thank you for the opportunity to provide this testimony today. We look forward with—working with you as you continue to explore this issue. And I would be happy to answer any 

questions. 

Mr. GIBBS. Thank you. 

Mr. Ambs, welcome. 

Mr. AMBS. Thank you. Good morning, Chairman Gibbs and 

Ranking Member Bishop, members of the subcommittee. My name 

is Todd Ambs. As president of River Network, a national conservation organization, I work for an organization that for 24 years has 

focused on helping the hundreds of river and watershed groups 

around this Nation to do their work better. In short, we work to 

feed the heart of the watershed movement, the hundreds of groups 

across our Nation that, though sometimes short on funds, are long 

on passion for protecting their home waters. 

But I offer my thoughts today with a primary focus on how the 

State of Wisconsin approaches these issues. My insight regarding 

this matter comes from working in the environmental field for 

more than 30 years, and from having the honor of serving as the 

water division administrator, the Wisconsin Department of Natural 

Resources, for 8 years, 2003 to 2010. 

I will stress three concepts in my brief oral remarks. One, as my 

former colleague from Michigan has already stated so eloquently, 

States can assume the responsibility for handling Section 401 of 

the Clean Water Act, and do it well. But they can only achieve that 

goal if they have adequate funding, solid staffing resources, and 

firm expertise in the water resources of their State. Michigan has 

been at it for 28 years. They built that program over time. Other 

17 

States considering this path need to do so deliberately, and with 

a firm understanding of the responsibilities. 

That, to me, is what I hope is one of the take-aways from today’s 

hearing. There are, no doubt, many reasons why only two States 

have assumed 404 jurisdiction, as others have noted, in the last 40 

years, while 46 States are—the delegated entity for Section 402. 

But I believe that one of the main reasons is because this is a 

much harder program to manage. Issuing NPDES permits is pretty 

straightforward, once you get it set up. You are measuring effluent 

from the end of a pipe and making sure that the pollutants are 

below a certain number. 

When someone proposes to fill a wetland, it is a very case-specific 

issue. In Wisconsin, we have at least a dozen different types of wetland communities, each with their own set of functional values, 

plant species, and place in the hydrologic cycle. If you make the 

wrong choice on a permit to fill one of these treasures, you have 

wiped 10,000 years of Mother Nature’s work off the landscape. If 

a discharger in the 402 program continues to operate under an old 

permit due to budget cuts, staffing vacancies or other circumstances, it is not ideal. But waterways can and are protected 

using the old permits. 

If budget cuts and staffing vacancies occur at the same time as 

there is pressure to approve a large number of dredge and fill permits, there is nothing to fall back on, especially if the State has assumed full responsibility for the program. 

My second point, though, is that there are other tools available, 

other than full assumption, if you want to save Government dollars, making the permitting system more efficient, and protect 

these special resources. That was the path that Wisconsin each 

time we looked at this question. Working more closely with the 

Army Corps, adopting general permits, digitizing wetland maps 

were all steps that we took, instead of seeking 404 assumption. 

And, as we noted in our response to the Wisconsin legislative 

auto bureau’s audit of the program in 2007, ‘‘We have investigated 

the feasibility of the State assuming the Federal 404 program in 

the past decade and again in response to the audit request. We 

continue to find the feasibility of assuming the program low, due 

to significant barriers that involve State law changes and lack of 

Federal funding available to the States for implementation.’’ 

The letter then went on into some detail regarding the steps 

being taken to streamline the permit application process, and I 

have actually got some of that detailed in the written testimony. 

As a result of those actions, and others since that time, the Wisconsin wetlands program was working well when I departed in 

2010. As of 2010, 94 percent of all wetland permit applications 

were approved by the department. The time for processing a permit 

had fallen by more than two-thirds in the last decade. And no significant economic development projects had certainly been stopped 

because of onerous wetland determinations. 

The point here is not to in any way denigrate the efforts of 

Michigan or New Jersey, where State 404 assumption has occurred, or to suggest that efforts underway in States like Ohio and 

Oregon and others to move towards State assumption are without 

merit. What I am suggesting is that 404 assumption is far from the 

18 

only tool available to States that wish to have a streamlined yet 

effective program to protect some of our most precious natural resources, our waters. 

Finally, a quick reminder about the importance of these resources and the impact that this program can have on these resources. Wetlands provide more than just habitat. They serve as 

nature’s sponge, acting as flood control during high-water events. 

They filter out harmful pollutants that can help address serious 

water quality challenges. They release waters to parched ecosystems in times of drought. For these reasons and more, any effort 

to promote State-Federal coordination or, when appropriate, State 

assumption of responsibilities contained in Section 404 of the law, 

the most useful exercise—but adequate funding, consistent State 

laws, transparent processes, and broad public and political support 

for taking charge of a program like this are key ingredients and 

important foundations if the exercise is to produce healthier water 

bodies in the Nation. 

I thank you for the opportunity to testify, and certainly look forward to working with you, and happy to answer any questions. 

Mr. GIBBS. Great, thank you. I will start off. I would like to 

maybe have questions—more of a discussion, I think. Because what 

I am hearing, we have issue of cost. I heard in testimony that— 

from Ohio and Florida—we can save some money if the States do 

it. 

What it comes down to me, though, is the service to the entities 

we serve, as public officials. And I know in Ohio—correct me if I 

am wrong—the legislature actually stopped a move by Ohio EPA 

to move—is that correct, Mr.—— 

Mr. ELMARAGHY. Yes, Mr. Chairman. We were planning to introduce legislation to authorize the director to seek assumption of Section 404. And because of concern from some industries, we decided 

to reintroduce that bill later. And we are currently working with 

industry and the environmental groups to alleviate their concerns. 

Mr. GIBBS. OK. And then to follow up on that a little bit, I think 

Florida is an interesting example. Because my understanding in 

Florida, with Section 10, because you have so much navigable 

water that is related to the wetlands issue, you—I think, Mr. 

Littlejohn, you said in your testimony that if you took it over you 

could streamline it. 

Now, are you talking about areas that aren’t interrelated with 

the Section 10, or would you be—Florida be interested in having 

to do—be—jurisdiction over the whole Section 10 everything? 

Mr. LITTLEJOHN. Thank you, Mr. Chairman. Florida would be interested in assuming Section 10. But, obviously, that would require 

an act of Congress. 

Mr. GIBBS. Yes. 

Mr. LITTLEJOHN. However, I think that there is a reasonable 

compromise if we were to pursue Section 404 assumption and an 

expanded State programmatic general permit to cover more activities over traditionally navigable waters and adjacent wetlands. I 

think that could be a reasonable approach. 

Mr. GIBBS. OK. The other concern I have heard and read 

through—of course States, you know, currently do the 401 permitting. And I think there is some concern that—some of our entities, 

19 

the people that we serve, States doing the 404 permitting. I heard 

some testimony about, you know, we could streamline it into one 

permit, essentially, if States were doing it. So almost 404 would replace the 401 if States take it over. What is the experience in 

Michigan with the customers you serve? 

Mr. CREAL. Well, yes. We took that over. We don’t issue the 401 

certs, because we issue the 404 permits. And the customers are 

very satisfied. We have a consolidated permitting process where we 

include a variety of State-required actions for the permittee under 

one permit and one permit fee. So we don’t make them get numerous permits or pay numerous permit fees. But that has worked out 

excellent in Michigan. 

Mr. GIBBS. OK. I guess I will go back to Florida for a second, because I am just thinking of the Section 10. I realize we got—we will 

separate the 404 that is not related to the Section 10. 

But currently, anybody that is in that area—you say Florida is 

not really involved at all, then, or—how is the 401’s coming in? Explain to me how that works, then. 

Mr. LITTLEJOHN. Yes, sir, Mr. Chairman. The State has a 401 

program. And so, if the Corps of Engineers issues a permit over 

traditional navigable waters or adjacent wetlands, the State is also 

issuing, through our own wetland permitting program, the Section 

401 water quality certification, as well as our coastal zone management, consistency determination. 

But even within Section 10 waters and adjacent wetlands, the 

State does authorize some activities on behalf of the Corps through 

our State programmatic general permit. Our concern is—and one 

of the reasons why I am advocating for an expanded role in Section 

10 waters—is that we are seeing the activities that we are allowed 

to authorize on behalf of the Corps shrink, or become eroded over 

time. 

And just for example, we have been implementing an SPGP for 

the Corps since 1995. And we saw that authority expand significantly between 1995 and 1997, to the point where the State of Florida could essentially authorize the vast majority of Corps nationwide permits over Section 10, traditional navigable waters and adjacent wetlands, all throughout Florida. But that authority has 

been shrinking since then. And in 2006, when our most recent 

SPGP was reauthorized, there are only four types of activities that 

we can issue on behalf of the Corps. 

Mr. GIBBS. OK. I am going to go over to Mr. Paylor from Virginia. I think in your testimony you stated that in the Norfolk 

Army Corps division you could save $7.5 million with the change? 

Mr. PAYLOR. It would be—excuse me, Mr. Chairman. Yes, it 

would be—they currently spend, by our estimate, $7.5 million. It 

would cost us three. So the saving—— 

Mr. GIBBS. OK. I had one more question for Mr. Creal. The ranking member, in his opening statement, talked about how the permitting was so slow in Michigan and the two States that have 

adopted it, Michigan and, I believe, New Jersey. And I think I saw 

in your statement—I think I got it here—Michigan’s processing is 

subject to deadlines mandated by State statute, and has frequently 

made permitting decisions on individual permits weeks or months 

sooner than the Army Corps of Engineers. However, decisions on 

20 

general permits, which are smaller, routine projects, are about the 

same. 

Could you just expand a little bit on what is happening, in your 

experience, you know, serving our customers out there, getting 

their permits? 

Mr. CREAL. Sure. And we think that is the way it is. In the routine, general permits, which are a fair number of the permits, it 

is about the same. But when we get into the individual permits 

that are more complicated, we have statutory deadlines that are 

put in place by our State legislature, and we operate under those, 

90 days or 120 days. And so we are moving to delineate the wetlands very rapidly, and make our permit decisions. We think that 

we do it much more rapidly than the Army Corps of Engineers. 

And we have some comparisons when we deal with the—— 

Mr. GIBBS. Well, that was the next point. I might just stop you 

right there and ask from the other States what time periods—apples to apples here for individual permits—that is happening from 

the Army Corps to get those permits done. You say you are by 

State statute in Michigan no more than 90 to 120 days? 

Mr. CREAL. Yes. 

Mr. GIBBS. Anybody else want to respond? What is happening in 

Virginia? 

Mr. PAYLOR. Mr. Chairman, our statutory requirement is 120 

days. The Army Corps, many cases, they are as fast as that. But 

they have no deadlines, and we have seen permits take over a year, 

year-and-a-half, to be processed. 

Mr. LITTLEJOHN. Mr. Chairman, in Florida, since 1995, our statutory deadline has been 90 days to review wetland permits. And 

just this last legislative session our review time was reduced from 

90 to 60 days. And that was partly in response to our increased efficiencies in reducing our average processing time. And we are 

down to about 47 days for our average time to process a wetland 

permit in Florida. 

Mr. GIBBS. I am confused here. The Army Corps is the one that 

is doing it. 

Mr. LITTLEJOHN. Sir, I mean the State wetland permit. We have 

our own wetland permit program that mirrors that of the Corps of 

Engineers program. And our program satisfies the 401 water quality certification requirement—— 

Mr. GIBBS. OK. 

Mr. LITTLEJOHN [continuing]. And the coastal zone management 

requirement. It is—in comparing our permit decisions to the Corps 

permit decisions, we are finding the exact same wetland delineation and—— 

Mr. GIBBS. OK. How long is it taking the Corps to do it? 

Mr. LITTLEJOHN. I see. I misunderstood your question. 

Mr. GIBBS. Yes. 

Mr. LITTLEJOHN. I don’t have specific data for within Florida on 

the average Corps individual permit. But I am very confident that 

it greatly exceeds 47 days. 

Mr. ELMARAGHY. In Ohio, for the 401, we have a regulatory deadline of 180 days. However, we have imposed our own internal deadline of 120 days and we are meeting this 120 days regularly. 

21 

For the Corps of Engineers, of course they have to take more 

than 180 days or 120 days, because they have to wait for us to 

issue the 401 before they act. So just the fact that having two agencies dealing with the same project definitely will make it longer 

to—for the applicant to get the final permit and start construction. 

Mr. GIBBS. OK. 

Mr. ELMARAGHY. Generally, the Corps maybe takes an average 

of around 1 year. I don’t have—— 

Mr. GIBBS. OK. That is what I wanted to know. 

Mr. ELMARAGHY. Yes, I don’t have really—— 

Mr. GIBBS. I will stop. I think I have used up plenty of my time, 

and I want to—— 

Mr. ELMARAGHY. OK. 

Mr. GIBBS [continuing]. Let Mr. Bishop have his turn. 

Mr. BISHOP. Thank you, Mr. Chairman. Just on this subject, 

just—I am not going to prolong the discussion. Just the Corps data 

shows that 91 percent of general permit decisions are made within 

60 days, 91 percent. And individual permit decisions, 71 percent 

are made within 120 days. 

I—as I mentioned in my opening statement, I am very concerned 

about the looming possibility of something that none of us ever 

thought would be this real a possibility, and that is the sequestration that exists in current law that will go into effect on January 

2nd if we do not find ways to reduce the deficit by $1.2 trillion. 

Current law suggests that the deficit—pardon me, the sequestration—would be split 50/50 between defense and nondefense spending. That would yield cuts ranging anywhere from 7 percent to 9 

percent for all accounts, all accounts in what we call the domestic 

discretionary budget. Such a cut would reduce funding in the Clean 

Water State Revolving Fund by approximately $120 million. It 

would cut $75 million from the Drinking Water State Revolving 

Fund, and it would cut an estimated $20 million from the Section 

106 program. 

I will also tell you that the House of Representatives has voted 

twice to turn off the sequester for defense spending, and essentially 

load all of the sequester onto what we call nondefense discretionary, which would essentially double those amounts. 

So, my question is how—what impact would these kinds of cuts 

have on the ability of your States to protect water quality and 

drinking quality, if the State were to, in effect—pardon me—if the 

Federal Government were, in effect, to walk off the field to the extent of the numbers I am talking about? What impact would it 

have on the States? How would the States accommodate that? 

Would the States simply be able—be forced to do less? Would you 

divert expenses from other areas of your budget to cover this, given 

the priorities? 

So, Mr. Paylor, I will start with you, from Virginia. 

Mr. PAYLOR. Thank you, Mr. Chairman—Mr. Bishop. We would 

set priorities, and we would likely have to divert monies from one 

section to another. For example, we would likely do less water 

quality monitoring, and we may, in fact, have to have a smaller 

compliance presence. But it would be certainly our top priority to 

make sure that all those facilities operating in the Commonwealth 

22 

who were regulated had their permits with clear requirements of 

what it took to protect our water quality. 

Mr. BISHOP. OK. Mr. Littlejohn? 

Mr. LITTLEJOHN. Ranking Member Bishop, in Florida it has been 

my priority over the last year-and-a-half since I have had this job, 

to plan for ultimately not having to rely on Federal funding in 

order to run our regulatory programs. 

So, we have a lot of programs that are completely State-funded. 

And I think the impact of significantly reduced or even no funding 

from the EPA could be absorbed by Florida. 

Mr. BISHOP. At the risk of being a wise ass, we should—we have 

to cut funding everywhere in this legislature. So we will take note 

of Florida’s position. 

[Laughter.] 

Mr. BISHOP. I am teasing. I am teasing. Thank you. 

Mr. LITTLEJOHN. In exchange for the 404 program? 

[Laughter.] 

Mr. ELMARAGHY. Twenty-five percent of our budget is coming 

from Federal money. And if we have cuts in this portion of our 

funding, definitely we need to establish priority and see how we 

can run effective programs with less funding. 

But I see that the effect of cuts in the Federal money will require 

us to take a look at our resources on the Federal level and the 

State level and to find better ways to do our programs. As mentioned here by my colleagues in Ohio, if we took over the 404 program, the Federal Government will be saving $3 million. So this 

kind of savings will be needed to deal with the issues in the budget 

on the Federal level. And it will be a good idea to divert part of 

this savings to the States which volunteer to assume the 404 program. 

Mr. BISHOP. OK, thank you. Mr. Creal? 

Mr. CREAL. Yes. We are still trying to understand exactly where 

the cuts in sequestration would occur, and what impacts would 

happen in Michigan. I would like to note, though, that Michigan 

understood back in 2002 that State Revolving Fund cuts were coming in that program, and Michigan passed Proposition 2 in that 

year which set aside State bonding authority for—to help cover it 

if we lost that infrastructure funding. And we are at the point of 

putting reforms in place through our legislators right now to spend 

that money that we haven’t spent yet for State-funded State Revolving Fund. 

So, we had anticipated that State Revolving Fund would achieve 

cuts in the wastewater side back in 2002. And Michigan voters responded with a way to deal with that. 

Mr. BISHOP. OK. 

Mr. CREAL. But we are still not clear where the sequestration— 

and I know that it is all being worked out, but we are very concerned about the impacts from it. 

Mr. BISHOP. Thank you. Mr. Ambs? 

Mr. AMBS. Perhaps this is the benefit of no longer being employed by the State. I think the cuts in Wisconsin will be devastating. We have significant difficulties managing programs today. 

We had significant difficulties managing the delegated programs. 

When I was there we had a D-delegation agreement with EPA— 

23 

region five, specifically—on managing the Safe Drinking Water Act, 

pieces of the Safe Drinking Water Act program. 

A number of States—and certainly Wisconsin—are up against it, 

in terms of very, very dire circumstances. And having to, every 

day—used to make no bones about it—every day we had to make 

choices about which State or Federal laws we were going to enforce 

more than others, because there just aren’t enough resources. And 

the further we cut those resources—the challenges don’t go away. 

The problems that are out there don’t go away if the funding does. 

Mr. BISHOP. Thank you. I am sure I have exhausted my time. 

Thank you all very much. 

Mr. GIBBS. Mr. Duncan. 

Mr. DUNCAN. Well, thank you, Mr. Chairman. Mr. Creal, you 

mentioned that the State of Michigan has 10 offices located across 

the State. How many offices does the Army Corps have, or did it 

have before the State assumed this program, do you know? 

Mr. CREAL. I am being told they had four offices. 

Mr. DUNCAN. And you say that you can issue your permits a lot 

quicker than the Army Corps. And I heard some mention that the 

Army Corps has to wait on the States on the—for part of their 

process. Is their delay just because they have to wait on the State? 

Or what could they learn from your ability to issue your permits 

much quicker? And also, you mentioned this cut in your funding from $120 mil- lion to $20 million. How have you made that up? Have you gotten 

any money from other sources to alleviate that cut, or—— 

Mr. CREAL. Yes, sir. That is several questions. 

Mr. DUNCAN. Yes, let me—— 

Mr. CREAL. Well, I think the 401 that you are hearing from 

States like Ohio, that is a little different than Michigan. Where we 

can tell you we have the experience in comparison with the Corps 

is in waters where we and the Corps both issue permits. And we 

had a—— 

Mr. DUNCAN. Oh, OK. 

Mr. CREAL. And some of that is the—— 

Mr. DUNCAN. You are talking about the 404. 

Mr. CREAL. The 404. And we are issuing a State permit, and the 

Corps is issuing a Federal permit. We had a power company that 

wants to put a nuclear power plant on Lake Erie. And part of this 

comes back to how you delineate wetlands, and the confusion on 

the Federal level and complications on how you do that. 

We have a much simpler way to do it in Michigan, on how to delineate them. We went—for that Federal power plant, we delineated the wetlands in 45 days, and it took the Army Corps of Engineers over 700 days to do the wetland delineation. Direct comparison. So we have examples like that that we can point to, where we 

compare ourselves to where the Army Corps is. Plus we have the 

statutory deadlines for issuing our permits that aren’t there on the 

Federal level. So, we can draw direct comparisons that way. 

Regarding how we have made up the funding, what the State has 

resorted to was we had put in permit fees in various programs, like 

under the NPDES permit program. We never had permit fees in 

place before 2004. And a result of continued erosion to the general 

funds, we had to make up some of that from putting permit fees 

24 

in place for municipalities and industries and storm water entities 

to cover some of the general fund shortfall. 

But there has also been a corresponding reduction in staff as we 

have gone along, too. And as you heard Mr. Ambs talk about, we 

have reduced things like our permitting—ability to process our permits and do inspections and take compliance activities. 

We have also had to gain efficiencies through technology, which 

we continue to do. So we tried to make up this through a variety 

of mechanisms. It has been a struggle. 

Mr. DUNCAN. OK, thank you. Mr. Elmaraghy, is it accurate that 

Oregon has been working since 1995 to try to assume the 404 program there? And why is this taking so long? And why have only 

two States taken it over thus far, if that is correct? 

Mr. ELMARAGHY. Yes. That is the story I hear about Oregon. 

They started to try to take over this program some time in the 

1990s. And of course, the difficulty of getting this assumption, as 

I mentioned in my testimony, lack of funding, the process to get assumption is very long, and we don’t have good guidelines on how 

to assume the program. And I assume Oregon is facing the same 

problems we have in Ohio right now. 

Mr. DUNCAN. Well, I read someplace that 46 States handle the 

NPDES program. Why is it so much more complicated or difficult 

or time consuming to assume the 404 program as each of you have 

said would save millions of dollars? 

Mr. ELMARAGHY. My feeling is the reason 46 States assumed the 

402 program is because it comes with funding. And also, as I recall, 

early, after the Clean Water Act was enacted, there was a mandate 

for U.S. EPA to delegate this program to the States. And we need 

to learn about what happened to delegate the 402 program in order 

to find out how it happened and how we can apply the same experience for 404. 

But the funding and this mandate which U.S. EPA was under to 

delegate this program to the States is the major reason. 

Mr. DUNCAN. All right. My time is up. Thank you very much. 

Mr. GIBBS. Representative Napolitano, do you have a question? 

Mrs. NAPOLITANO. Yes, Mr. Chair, I do. And just following up on 

that, 402 is a mandate? 

Mr. ELMARAGHY. It is—— 

Mrs. NAPOLITANO. A general mandate? 

Mr. ELMARAGHY. At one time after the enactment of the Clean 

Water Act, Congress apparently pushed U.S. EPA to delegate this 

program to the States. 

Mrs. NAPOLITANO. So it is funded, but—it is at least partially 

funded, fully funded by the Feds? 

Mr. ELMARAGHY. We have the 106 program which is funded 

the—like the NPDES program, but less monitoring and so on. I 

will say, like, part of our NPDES permit program funded federally 

and the rest come from the State. 

Mrs. NAPOLITANO. So, in essence, if the 404 were to be taken on 

and followed more or less the same type of area of funding, then 

the States would be able to take it on? 

Mr. ELMARAGHY. If we have some source of funding from the 

Federal Government, it will encourage the State to do it. However, 

25 

Ohio feels like the advantage of taking 404 assumption is so great 

that we are willing to do it even without further funding. 

I give you an example. In the Department of Transportation 

Ohio, they have a lot of projects which require 404 permits. And 

in order to expedite their projects, they are supporting us to take 

assumption—and, as a matter of fact, they are willing to partially 

fund the 404 program. 

Mrs. NAPOLITANO. OK. But—and I understand that. However, 

the Corps is a national program. So it is a little harder—and I 

know they have regional offices that take care of their own local 

requests. But any State can do their own; they don’t have to worry 

about other than their own. So there might be a difference there 

in the delivery, besides you have to get permitting from them, they 

have to get some permitting from you, I understand. 

Mr. ELMARAGHY. Yes, like—— 

Mrs. NAPOLITANO. Right. 

Mr. ELMARAGHY [continuing]. They have to get a 404 permit, regardless. So you are eliminating—from two permits to one permit. 

Mrs. NAPOLITANO. Right. Well—— 

Mr. ELMARAGHY. Also—yes, that is what simplifies the process. 

Mrs. NAPOLITANO. Question, then. Why are the coastal States reluctant to administer the 404 program? And what can be done? Or 

should we incentivize the coastal States to administer that 404 program? Anybody? 

Mr. PAYLOR. As we have said in Virginia, we believe that we 

could do it for—in the range of half the cost. If those dollars that 

are going towards that program right now through the Army Corps 

of Engineers, if a portion of those could be converted to EPA dollars 

for grant funding, it would end up in Virginia still being only partially federally funded, and there would be at least half of that that 

would be fee or otherwise funded. 

Mrs. NAPOLITANO. Which brings up the point that you—there are 

some States that do follow and do support their own funding. But 

each State is different. Would there be a requirement, then, for the 

Feds to be able to have a followup and ensure that the program 

is being carried out properly? Anybody? 

Mr. PAYLOR. Absolutely. All of the programs that we have that 

are delegated by EPA to us have an auditing function. And there 

is a fairly robust dialogue that goes along with those programs 

with EPA, to assure that we are meeting Federal guidelines. 

Mrs. NAPOLITANO. Mr. Ambs? 

Mr. AMBS. Yes, just agree with that. And, in fact, EPA, I know, 

is very active in reviewing permits that are issued in both Michigan and New Jersey. 

However, one of the things you always have to be concerned 

about is what happens in terms of the States having strong enough 

laws on the books to be consistent, at least as stringent as Federal 

law. And, you know, Wisconsin is a good example of where you are 

always going to have these challenges if you have more States that 

go to assumption. 

A few years ago, if we had chosen to move toward 404 assumption, I thought we were well positioned to be able to say we had 

a program that was as stringent as the Federal Government. Legislation was just passed this year in Wisconsin that I believe no 

26 

longer makes that the case in Wisconsin. Way too much flexibility 

in the—so you just got to be very careful that those States maintain strong State—— 

Mrs. NAPOLITANO. Thank you, Mr. Ambs. That is a point, because each State is different. They have different priorities and, of 

course, they have different budget impacts. And you are right, the 

laws may not be the same to protect as there are now. 

So, Mr. Chair, with that I yield back. I may have some questions 

for the record. 

Mr. GIBBS. Representative—Chip, go ahead. 

Mr. CRAVAACK. Thank you, Mr. Chair. Mr. Creal, I had a question in regards to listening to your testimony and Mr. Ambs’s testimony. Mr. Ambs is basically saying he can’t do it right in Virginia 

without Federal funding. Do you do it right in Michigan? 

Mr. CREAL. We believe we do it right in Michigan. And I would 

stress that EPA does provide us very good oversight on our program. And they have the ability to object to our issuing of the permit. And if we can’t resolve their objections, then the permitting 

process does revert back to the Army Corps of Engineers. We have 

a set timeframe to resolve those. 

But we think we have the statutes in place. We check very closely with EPA to make sure we are consistent with Federal laws, and 

that our State programs are adequately administered, and we have 

done that for 28 years now. 

Mr. CRAVAACK. So you think your State legislators and your Governors take care of your water pretty well? 

Mr. CREAL. Yes, sir. 

Mr. CRAVAACK. And your wetlands pretty well? 

Mr. CREAL. Yes, sir. 

Mr. CRAVAACK. Would I get a concurrence with all the Members 

at the table, except for Wisconsin? Why can’t you do it well in Wisconsin? 

Mr. AMBS. Well, as I say, as it relates to the wetland regulations, 

I just think in terms of being as stringent as Federal law, this legislation that was passed this year—which I actually testified in opposition to—I thought provided too much flexibility and too much 

ability for applicants to be able to fill in the wetlands of the State. 

So—— 

Mr. CRAVAACK. So, philosophically, what you are saying then is 

you think that these gentlemen aren’t going to be able to take care 

of their States’ waters as they should? 

Mr. AMBS. No. What I am saying is that in each individual State 

you are going to have to continually—the more States that assume 

the 404 program, you are going to have to continue to be very vigilant to make sure that they are as stringent as—to meet the requirements under the Clean Water Act. 

Mr. CRAVAACK. Well, my—— 

Mr. AMBS. And I would agree. I grew up in Michigan. I would 

agree that the State of Michigan is doing a fine job with it. But 

I am just saying those pressures are always going to be there at 

the State level. And they are—they tend to be, when you are dealing with dredge and fill permits, they tend to be—my experience, 

8 years as the lead regulator for the water division in Wisconsin— 

27 

they tend to be much more intense, pronounced, focused, than they 

are in the NPDES permit. 

Mr. CRAVAACK. But at the same time, as I am understanding, is 

that you still have to comply with the Army Corps of Engineer and 

the EPA. Is that correct? 

Mr. CREAL. It is EPA. 

Mr. CRAVAACK. EPA. 

Mr. CREAL. When we have the permit program in Michigan, it 

is EPA that reviews our programs and can object or—— 

Mr. CRAVAACK. So you are maintaining Federal standards, it is 

just that you are implementing the program and streamlining the 

process. Am I correct? 

Mr. ELMARAGHY. Yes. As a matter of fact, Ohio will not be able 

to get delegation for a 404 program unless we show U.S. EPA that 

our requirements are as stringent as the Federal requirement. And 

in the NPDES permit program, our requirements, most of the time 

are more stringent than the Federal requirements to account for 

special features in Ohio, and special conditions in Ohio. 

Mr. CRAVAACK. I appreciate you bringing—I am from the land of 

10,000 lakes, or 100,000 mosquitos, whatever you want to say. 

[Laughter.] 

Mr. CRAVAACK. But we—from Minnesota, we actually have higher State laws, requirements, than we do Federal laws. So our State 

laws actually are more stringent at times than the Federal laws 

themselves, but we still must maintain the Federal compliance. 

So, even though you have the 404 permitting process authority, 

you should—you would also be maintaining the Federal standard. 

In essence, what we are doing is streamlining the system so that 

we are able to cut out some of the bureaucracy associated with it, 

so that you can get the permits to the people that need them as 

quickly as possible. 

Mr. Paylor, you said that you would have to make—you know, 

if you do lose some funding, you have to make some type of priority 

settings. Now, help me understand this. A lot of the companies that 

I know—we are big in mining, for example—they regulate their 

own water. I mean they will make sure that they stay within compliance, because they know that, you know, somebody is going to 

be coming around checking on them, obviously. 

But more importantly, we live in these communities. These are 

our homes that directly affect our water that our kids drink. So 

they are doing it because they want to be a good citizen and taking 

care of our own natural resources. But can you comment on that? 

Mr. PAYLOR. I have no disagreement with that comment, whatsoever. We have a pretty high compliance rate with all of our facilities in Virginia. We do, in fact, periodically show up to make sure 

that things are proceeding according to the permit. But I absolutely 

agree with your statement. 

Mr. CRAVAACK. A lot of these companies want to be good citizens 

because, quite frankly, we live there. This is our home. These are 

our counties and our State. 

So, I am out of time, Mr. Chairman. I will yield back. Thank you 

for your answers. 

Mr. GIBBS. Thank you. I want to follow up a little bit. We had 

a lot of discussion—I know, Mr. Elmaraghy, from Ohio, and I am 

28 

from Ohio, so I am going to ask you a couple more questions because you made some points—made sense about streamlining the 

process, staff local, and you know, and I am all for more local control. 

You said—in your last question you said that on the 401 permitting, under State statute, you have so many days to have to get 

done—just what—— 

Mr. ELMARAGHY. 180 days. 

Mr. GIBBS. 180 days. Are you meeting—I know it is the law, but 

are they—are you meeting that? 

Mr. ELMARAGHY. We imposed an internal deadline for us, which 

is 120 days. We feel that these permits are needed to create jobs. 

And it is our priority to protect the environment and to create jobs 

in the same time. So we feel like it is important for us to expedite 

these permits for all of us. 

Mr. GIBBS. And it is actually happening. 

Mr. ELMARAGHY. Actually happening in 120 days. As of yesterday, there is no permit pending in Ohio more than 120 days. 

Mr. GIBBS. OK. Was that a substantial improvement in the last 

couple years because you have been working at that, or where was 

it before that? 

Mr. ELMARAGHY. Yes. Two or three years ago we had a backlog, 

and some of the permits were pending more than 180 days. But we 

felt that is a very high priority for us, and that is why we started 

to pay attention to try to streamline the process—— 

Mr. GIBBS. Now, I guess—— 

Mr. ELMARAGHY [continuing]. Reduce the number of days needed 

to get the permit. 

Mr. GIBBS. OK. Now, my understanding, the—when an entity 

comes in here and, you know, applies for permits 404 and 401, is 

it that 401 has to happen first? Did I hear that? Before the 404 

process starts? Is that correct? 

Mr. ELMARAGHY. I think the applicant needs to apply for a 404 

first, and then come with the 401 application. 

Mr. GIBBS. But the 401—what happened before the 404 would be 

approved by the Army Corps? 

Mr. ELMARAGHY. Yes, that is true. 

Mr. GIBBS. They can’t be concurrently—or—so the 401 happens 

and then the Army Corps would start their process on the 404? 

Mr. ELMARAGHY. I think they will start maybe with a review concurrently, but they cannot issue their 404 permit before they have 

the 401 permit. 

Mr. GIBBS. OK. Go ahead. 

Mr. LITTLEJOHN. Mr. Chairman, in Florida, the arrangement we 

have with the Corps of Engineers is we implemented what we call 

the joint permit application process, where the Corps and the State 

have agreed to use the same application form. And an applicant 

can submit an application to either the DEP or the Corps of Engineers and, by interagency agreement, we distribute copies of that 

application to the other agency. 

So, we do process them concurrently. But the Corps of Engineers, 

before they can issue their permit, they require our State water 

quality certification, that 401 certification, from Florida. So we do 

have to issue before them. We try to do it as concurrently as—— 

29 

Mr. GIBBS. Well, you see where I am going with this. I want to 

make sure that we are, as public officials, doing due diligence so 

that the entities who are applying—because you are right, it is all 

about job creation. And the longer it takes to get permits done because of bureaucratic red tape—and so that is what this hearing 

is really all about, to figure out, you know, how we can do it better, 

you know, we can streamline it. 

And so, that is why I was wanting to know, you know, what the 

process really is. And then also, so we can get, I think, apples to 

apples comparison, because there has been a little—you know, from 

different States, on what Army Corps—how many days it has been, 

and the 401, to get that all factored in. So that is what I am trying 

to get a handle on. 

So I know, Mr. Creal, when you talked about the—I think it was 

you—do it a lot faster, I just want to make sure that we are counting the days right when the Army Corps takes over. 

So if—OK, if I came in and applied for a 404 and a 401 permit, 

OK, and start the clock counting, OK. And in Ohio, got to get it 

done in 120 days. And the Corps can’t do it, issue the 404, until 

after the 401 is done, OK, how fast then would we expect the Corps 

to be able to do it if I came in and applied for both those permits 

the same day? Would I, as an entity, expect the Corps to be able 

to have it done within 30 days after the 401 was issued? Or is 

there more lag? 

I don’t know who wants to—what is happening? What is, you 

know, happening out there in the field? 

Mr. ELMARAGHY. Yes. There is a way we do it in Ohio. We require the applicant to submit evidence that they already submitted 

as a 404 permit application. But before the applicant does the application, the Corps needs to do jurisdictional determination and 

the wetland delineation. So a lot of legwork needs to be done before 

you submit the application. 

Mr. GIBBS. Mr. Creal? 

Mr. CREAL. Yes. In Michigan we run a consolidated permit application where they submit one application and then the State processes it. And if—we let the Corps know if they—you know, that we 

have the permits, and if they need to process a permit also. But— 

and we have the statutory deadlines, 90 days with a wetland permit and 120 days with—that deals with streams and lakes. 

One of the—some of the confusion that results, though, is we understand that the Corps counts time only after wetland delineation 

and public noticing are done, whereas Michigan counts the time 

from the day we receive an application. So that is when our 90-day 

clock and 120-day clock starts. So we are confident we are making 

decisions and issuing permits faster, especially on the complicated, 

large projects that we are dealing with, and the Army Corps of Engineers is. 

Mr. GIBBS. OK. OK, I guess that is—Mr. Shuster? 

Mr. SHUSTER. Yes, sir. I am sorry, I was down in a hearing with 

Chairman Mica. And you may have talked about this somewhat, 

but I would just like to get a reaction from the various States on 

the general permitting process. 

The Corps has decided to expand—when you take the stream 

crossings from a category 1 to a category 3—and in Pennsylvania 

30 

it has caused tremendous delays in the permitting process. And in 

fact, we can’t figure out the reason why they did it, except to give 

the Corps more work, justify why they are there, because the Pennsylvania Department of Environmental Protection for years—for 50 

years or so or more—has done this with little to no incident. And 

now we have got an expanded Corps review process again slowing 

things down. 

So, in general permitting, on pipelines especially, can you just 

comment on what your experience has been over the past couple 

of years with the Corps? 

Mr. PAYLOR. Mr. Chairman, I would agree with Mr. Creal’s comments, that one of the delays can be how long it takes after an applicant is ready to get a delineation in place. I would say that for 

the simpler applications there is not a great deal of delay between 

us and the Corps. The complicated applications, there can be, you 

know, a significant multimonth delay beyond—— 

Mr. SHUSTER. Right. 

Mr. PAYLOR [continuing]. Beyond the time that the State is able 

to act. 

Mr. SHUSTER. Mr. Littlejohn. 

Mr. LITTLEJOHN. Mr. Shuster, in Florida I believe that the Corps 

is still making a lot of effort to try to create new general permits, 

to try to streamline activities. 

However, there has been an erosion of the general permit that 

the Corps issued to the State to act on its behalf, and it is called 

the State programmatic general permit. 

Mr. SHUSTER. Right. 

Mr. LITTLEJOHN. And since—in 2006, before the most recent 

SPGP renewal, we had authority to act on behalf of the Corps for 

nearly all of their regional general permits in the State of Florida 

and the nationwide permits that were issued in the State of Florida. And so we issued a significant number of authorizations on behalf of the Corps, including in Section 10, traditional navigable waters and adjacent wetlands. 

But at the last renewal, the scope of authority under that general permit granted to the State of Florida was significantly reduced. And I am afraid that—and I hesitate to speak on behalf of 

the Corps—I think that they are probably reacting to growing concerns from other Federal commenting agencies that these general 

permit authorities were too broad. And so they were essentially requested to constrict them back to a much smaller—— 

Mr. SHUSTER. But what was the history? I mean did you have 

incidents? Did you—— 

Mr. LITTLEJOHN. Not that I am aware of, sir. 

Mr. SHUSTER. That is—so the evidence is you were doing a fine 

job, and with no incidents or very few. So—OK. 

Mr. LITTLEJOHN. No, sir. I don’t—I have asked them during discussions about once again expanding our State programmatic general permit. If we can establish some way to audit the decisions 

that we make so they would get more comfortable—because I think 

there is just uncertainty that whatever the State is doing, they 

don’t have enough oversight over. 

Mr. SHUSTER. Even though you have been doing a great job, in 

your opinion—and probably mine, too. OK. 

31 

Yes, sir? 

Mr. ELMARAGHY. In Ohio, we don’t have a State programmatic 

general permit. However, we have a nationwide permit, which is 

really making things great for a project which does not have a big 

impact. But that is something we need to explore if we can use the 

State programmatic general permit to streamline our program. 

Something we need to do. 

Mr. SHUSTER. And the Utica, as it starts to come into play more 

and more in Ohio, it is going to be something you want to—— 

Mr. ELMARAGHY. Sure. 

Mr. SHUSTER [continuing]. Get that oil and gas out of the ground 

as quick as possible—— 

Mr. ELMARAGHY. Sure. 

Mr. SHUSTER [continuing]. To create jobs, and—— 

Mr. ELMARAGHY. But a State programmatic general permit does 

not resolve all the issues. You still have two Government agencies 

involved in the same project. 

Mr. SHUSTER. Right. 

Mr. ELMARAGHY. And there—Federal involvement in the 402 programs, NPDES permit program. And especially the enforcement. 

Any time you have joint enforcement between Ohio EPA and the 

U.S. EPA, some of the cases took 10 years, like Akron. 

Mr. SHUSTER. Right. 

Mr. ELMARAGHY. Akron, we have 10 years of litigation without 

settling the case. It is just any time you involve more players the 

process becomes more complicated and takes longer. 

Mr. SHUSTER. Right. 

Mr. ELMARAGHY. That is just as simple as that. 

Mr. SHUSTER. Mr. Creal? 

Mr. CREAL. I would just like to note that Michigan issues the 

pipeline permits, not the Corps of Engineers in Michigan, and we 

have done a very good job of doing that. 

We have a complication, though. We had the Enbridge Pipeline 

break in 2010, about a million gallons of crude oil spilled into the 

Kalamazoo River. We are still working with EPA and Enbridge to 

clean that up, which has made our public very sensitive to pipeline 

permits and very aware of the easements that the pipeline companies have. Enbridge is in the process now of replacing that pipeline, 

which cuts across southern Michigan. And a lot of residents are 

very sensitive and much more knowledgeable than they were 2 

years ago about where pipelines are in Michigan. 

Mr. SHUSTER. OK, thank you. Mr. Ambs, if you have a—if the 

chairman will indulge for another—— 

Mr. AMBS. Thank you. Yes, just quickly, as Mr. Creal said, we 

also had some issues with pipelines and actually significant wetland violations for pipeline installation in Wisconsin. 

But, you know, generally speaking, again, the experience in Wisconsin, we are able to process permits quickly. We have got joint 

permits. As I mentioned in my testimony, these are—94 percent of 

them get approved, they get approved quickly. The challenge here, 

I would submit, is that you have to be very careful about those difficult questions, those difficult requests to dredge and fill that require difficult delineations. You have got to have adequate staff 

and you have to have time to do it right. 

32 

And I get very nervous about very tight statutory deadlines for 

those sorts of projects because, from my standpoint in Wisconsin, 

when I look at those questions I am not just looking at job creation 

relative to the permit that is going to be issued. I look at continued 

job retention in the State of Wisconsin, where our third largest industry is tourism. We get $13 billion a year from the tourism industry, and we get it because we have good, plentiful water and 

wetland resources. And if it takes some time to make sure that 

those are protected on complicated permits, I think it is well worth 

it. 

Mr. SHUSTER. Thank you. Yield back. 

Mr. GIBBS. Mr. Bishop? 

Mr. BISHOP. Yes. Very quickly, Mr. Chairman, thank you. 

Mr. Littlejohn, the decision that you are referring to that limited 

the scope of the general permit, you are referring to the 2007 decision that was made? 

Mr. LITTLEJOHN. Yes, sir. At that time, we were operating under 

what we call the SPGP3, the third iteration of our first SPGP from 

the Corps. And it was replaced by the SPGP4 in 2006. 

Mr. BISHOP. OK. 

Mr. LITTLEJOHN. And so that replacement document—— 

Mr. BISHOP. It is the one that imposed the limitation? 

Mr. LITTLEJOHN. Our very first SPGP authorized four types of 

activities: docks, shoreline stabilization, like sea walls, boat ramps, 

and maintenance dredging. So four major categories of activities. 

And we had those, only those, activities in our SPGP until 1997, 

when it was expanded to include all of the general permits and nationwide permits—essentially all of them, not all of them. But in 

2006 it was reduced back to those four original activities. 

Mr. BISHOP. OK. All right. Thank you for the clarification. 

Mr. LITTLEJOHN. Yes, sir. 

Mr. GIBBS. I believe we have had our questions answered. And 

I want to thank you for coming. And at this time we will stand at 

ease while we excuse our panel and bring up our next panel. Thank 

you for being here. 

[Recess.] 

Mr. GIBBS. OK, we will come back in order. At this time I want 

to welcome our panel two. We have the Honorable Jo-Ellen Darcy, 

who is the Assistant Secretary of Army for Civil Works, and Ms. 

Denise Keehner, who is the director of the Office of Wetlands, 

Oceans, and Watersheds of the U.S. EPA. 

I guess I didn’t—wetlands, oceans, and watersheds. That is an 

interesting—I didn’t ever hear that one before. 

[Laughter.] 

Mr. GIBBS. We will start with Secretary Darcy. Welcome, and the 

floor is yours. 

TESTIMONY OF JO-ELLEN DARCY, ASSISTANT SECRETARY OF 

THE ARMY FOR CIVIL WORKS; AND DENISE KEEHNER, DIRECTOR, OFFICE OF WETLANDS, OCEANS, AND WATERSHEDS, U.S. ENVIRONMENTAL PROTECTION AGENCY 

Ms. DARCY. Thank you. Thank you, Chairman Gibbs, Ranking 

Member Bishop, and members of the subcommittee. I am Jo-Ellen 

Darcy, the Assistant Secretary of the Army for Civil Works. Thank 

33 

you for the opportunity to discuss the Army Corps of Engineers 

regulatory authority under Section 404 of the Clean Water Act and 

the Corps’ role and involvement when a State wishes to assume the 

Section 404 program. 

Since 1972, the Corps has regulated discharges of dredged or fill 

material into waters, including wetlands, of the United States 

under Section 404 of the Clean Water Act related to activities such 

as highway construction, residential, commercial, and industrial 

development, and energy projects. 

Section 10 of the Rivers and Harbors Act of 1899 gives the Corps 

the authority to ensure there are no obstructions to the navigable 

waters of the United States by work and structures such as peers, 

jetties, and weirs. Thus, the Corps had been regulating activities 

in the Nation’s navigable waters for over 70 years when the Clean 

Water Act was passed. 

Regulatory programs are implemented day-to-day by the Corps 

at the district level by staff that knows their regions and their resources and the public that they serve. Nationwide, the Corps 

makes tens of thousands of final permit decisions annually. Activities that are similar in nature and are expected to cause no more 

than minimal effects individually and cumulatively may be authorized by a general permit, while activities that do not meet the criteria for a general permit are typically evaluated under a standard 

individual permit procedure. 

All permits meet the requirements of the National Environmental Policy Act, and the Corps can only authorize those activities 

that are not contrary to the public interest. 

In carrying out all aspects of the regulatory program implementation, the Corps acts as neither an opponent nor a proponent for 

any specific projects. Rather, the Corps’ responsibility is to make 

fair, objective, and timely permit decisions. 

Under Section 404(g) of the Clean Water Act, Congress gave 

tribes and States the authority to administer their own individual 

and general permit program for the discharge of dredged or fill material into waters within their jurisdiction. The process for approval 

of the Clean Water Act State assumption program rests with EPA. 

There are two States, as you know, that currently have assumed 

404: Michigan adopted the program in 1984 and New Jersey adopted it in 1993. 

There are activities in certain waters where the Corps retains 

regulatory authority, even in States that have assumed the 404 

program. The Corps retains permitting authority in traditionally 

navigable waters and adjacent wetlands. This retained authority 

includes jurisdiction over Section 404 activities, as well as all Section 10 activities. All Section 10 authority is retained by the Corps 

in order to review and determine whether any proposal may potentially impede or interfere with navigation, to ensure that essential 

Federal functions such as national defense, protection of commercial navigation, and flood control are considered from a broad perspective. 

EPA is responsible for oversight of a State-assumed Clean Water 

Act Section 404 program. In that role, EPA directly reviews a small 

percentage of permit applications processed by a State that has assumed the Section 404 program. When EPA does review a permit 

34 

application, they transmit that application to the appropriate Corps 

district office for review and for comment. 

Several other States, including Alabama, Florida, Kentucky, Minnesota, Ohio, Oregon, and Virginia have in the past or are currently considering assuming the Clean Water Act Section 404 program. When requested, the Corps has provided input and expertise 

on the Section 404 program to the EPA and States during the program assumption review process. 

In every instance in which a State has an effective program to 

protect aquatic resources, the Corps has demonstrated its willingness to minimize duplication of regulatory effort between the State 

program and the Federal Clean Water Act Section 404 program to 

reduce the burden on the public. In many cases, this has been effectively done by working cooperatively with States to establish 

joint permit processing, as well as State programmatic general permits and regional general permits. 

In States such as Florida, as you have heard, there is a large 

amount of traditionally navigable waters and adjacent wetlands, 

which are not able to be assumed by a State under the Clean 

Water Act or under Section 10 of the Rivers and Harbors Act. 

Often times a State programmatic general permit or regional general permit provides solutions. 

Developed in coordination with the Corps, these permits are general permits that authorize activities conducted in accordance with 

the State or tribal permit programs. It allows States or tribes to 

evaluate applications and issue permits consistent with the Clean 

Water Act and tribal or State regulations. This reduces duplication 

of effort, thus increasing efficiency. 

These general permits apply to specific activities, geographic 

areas, resource types, or sizes of impacts. There are currently eight 

States that have these State programmatic general permits: Maryland, Pennsylvania, Florida, New Hampshire, Vermont, New Jersey, Virginia, and North Carolina. 

Some of the main challenges that are faced in State assumption 

processes are the lack of funding, the need to revise or expand existing State laws and regulations, and jurisdictional issues that 

may arise. 

It is important to note that States have authority under the 

Clean Water Act Section 401 and the Coastal Zone Management 

Act to add conditions to protect aquatic resources that the State 

sees are necessary, and which complement the Clean Water Act 

Section 404 program. 

The Corps provides data to inform States and EPA regarding 

aquatic resources, and can provide information pertaining to the 

administration of the Clean Water Act Section 404 program in a 

given geographic area. But, EPA is the decisionmaking authority 

for State assumption. 

Thank you for the opportunity to testify this morning, and I am 

happy to answer any questions you might have. 

Mr. GIBBS. Thank you. 

Ms. Keehner, the floor is yours. Welcome. 

Ms. KEEHNER. Good morning, Chairman Gibbs, Ranking Member 

Bishop, and members of the subcommittee. I want to thank the 

subcommittee for its invitation to be here at this hearing today, 

35 

whose purpose is to better understand the impediments to and the 

benefits of assumption of the Clean Water Act Section 404 program 

by States. My name is Denise Keehner, and I am the career executive at EPA headquarters that has responsibility for implementing 

the national wetlands program. I am the director of the Office of 

Wetlands, Oceans, and Watersheds in EPA’s Office of Water. 

Protecting and restoring our Nation’s waters, as is the mandate 

of the Clean Water Act, requires very strong partnerships between 

tribes, States, and Federal agencies and departments. EPA is committed to working with those States and tribes who want to increase their role in the protection and restoration of waters nationwide. EPA supports tribal and State assumption of the Clean 

Water Act Section 404 program, and is ready and willing to assist 

any State or tribe who is interested in assuming the program. 

In my testimony today I will address the requirements, benefits, 

and challenges associated with assumption of the 404 program, 

EPA’s role in the assumption process, and our efforts to support 

States and tribes who want to increase their role in wetlands protection and restoration. 

Section 404 of the Clean Water Act establishes a program to regulate, or permit, the discharge of dredged or fill material into waters, including wetlands. Section 404 of the Clean Water Act designates the Army Corps of Engineers as the Federal agency responsible for issuing these permits. However, Congress decided in 1977 

to amend the Clean Water Act to enable States to assume permitting authority for certain waters under Section 404. In 1987 Congress extended the same authority or opportunity to tribes. 

A State or tribe seeking to administer the 404 program for assumable waters must submit a request for assumption to the appropriate regional administrator of EPA and demonstrate in the 

submission that their program has the legal authority in State law 

and regulation to issue permits consistent with and no less stringent than the Clean Water Act and its implementing regulations, 

including the 404(b)(1) guidelines, that it has an equivalent scope 

of coverage for those waters they—States or tribes—may assume, 

that it regulates at least the same activities as the Federal program, that it provides for public participation, and that it has adequate enforcement authority. 

A State or tribal program under 404 can be more expansive and/ 

or more protective of aquatic resources than the Federal 404 program. But the Clean Water Act requires that State and tribal 404 

programs must, at a minimum, regulate all the waters they are eligible to assume. State programs have to regulate the same fill activities that the Federal Government regulates. And also, State 

programs have to be consistent with the 404(b)(1) guidelines. 

EPA has, in the past, undertaken efforts to better understand 

why States pursue 404 assumption, and to better understand what 

States consider to be some of the impediments or most significant 

barriers to 404 assumption. When we ask States why they pursue 

404 assumption, you heard some, I think, of the reasons from the 

States that testified this morning. This desire to have a single permitting authority. Some States also believe that they can do it 

more efficiently. Some States feel that they know their waters betVerDate Aug 31 2005 10:47 Feb 07, 2013 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6633 P:\HEARINGS\112\WR\9-20-1~1\76147.TXT JEAN
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ter, and are in the best position to exercise permitting authority 

under a 404 program. 

Some of the most frequently mentioned barriers to assumption 

are that State laws and regulations are not consistent with the 

Clean Water Act and its implementing regulations, and that there 

is a fairly heavy lift associated with changing State laws and regulations to be consistent, that there is a lack of sufficient funds for 

implementation, that there is a lack of EPA authority to approve 

partial assumption or phased assumption. 

Depending on the State, the number of waters that must remain 

by law under Army Corps of Engineers jurisdiction can also be a 

factor and an impediment to a State wanting to move forward in 

an aggressive way to assume the 404 program. 

EPA supports States and tribes that want to assume the 404 program by: providing funding for program development through the 

Wetland Program Development Grants, and that can include some 

work after the State has received authority to implement the 404 

program to actually improve certain aspects—develop tracking systems, for example, and engage early in the State and tribal process. 

We have worked very cooperatively with States and tribes to ensure that the process and requirements are understood. We remain 

engaged during the development of materials to be submitted to 

EPA in the application process. And we review and approve program assumption applications consistent with the Clean Water Act 

and its implementing regulations. 

Once the program is assumed by a State, we have an oversight 

responsibility to ensure that the State and tribal 404 program remains consistent with the Act and the implementing regulations, 

and that the permits that are issued comply with the environmental review criteria found in the Section 404(b)(1) guidelines. 

EPA has maintained very sound, productive relations with both 

Michigan and New Jersey, the two States that have already assumed the 404 program. We have a strong professional and supportive working relationship with these State programs. We know, 

from working with these States, that these programs are strong 

and effective in protecting aquatic resources in those States. 

EPA has also worked with the Environmental Council of States 

and the Association of State Wetland Managers to clarify requirements and the process for assumption. For example, EPA has clarified that Section 7 consultation under the Endangered Species Act 

is not required for EPA’s action to approve a State program, or for 

individual permits that States issue after they have assumed the 

program. EPA also supported the Association of State Wetland 

Managers and ECOS in the development of a handbook to help 

States that are seeking assumption to better understand both the 

process and the requirements. 

In addition, we have also sponsored training workshops in partnership with the University of North Carolina, where information 

was shared amongst States and tribes across the Nation about successful approaches to sustainably financing wetland programs, including 404 programs. 

EPA appreciates the opportunity to be here today to have heard 

directly this morning from the States about their views on the impediments to and the benefits of assumption of the 404 program, 

37 

and we look forward to continuing to help those States and tribes 

who are interested in assuming the program move through the 

process in an effective and efficient manner. 

It is clear that our collective ability to protect and restore our 

Nation’s waters is significantly enhanced by effective State and 

tribal programs. Thank you. 

Mr. GIBBS. Thank you. I am going to yield to my ranking member, Mr. Bishop, because I think he has a schedule conflict. 

Mr. BISHOP. I do, and I thank you very much for indulging my 

schedule, Mr. Chairman. And I thank our witnesses. I just have 

one question. It is for Secretary Darcy, and it does not relate to the 

assumption of Section 404 permits. 

I have recently become aware of a legislative proposal that I believe is circulating within the Corps that would propose to 

outsource existing operation and maintenance responsibilities that 

the Corps traditionally had undertaken to private contractors, and 

that this is an effort on the part of the Corps to respond to declining budget levels. 

And it is my further understanding that there is an assumption 

within the Corps that engaging in this practice would reduce O&M 

expenses by somewhere between 10 and 20 percent. 

So I have two requests. And I am not authorized to speak for the 

committee, so I will simply make the request for me. One is could 

you provide me with any studies, assessments, analysis that have 

been done that buttresses this 10 to 20 percent savings reduction, 

one. And two, could you provide me, in writing, the status of this 

proposal? How far along it is, in terms of the Corps process? 

Ms. DARCY. Well, yes. We will definitely do that, Congressman. 

I think one of the areas of concern is the fact that we are looking 

at ways to finance our aging infrastructure. As you know, that is 

a concern from every aspect, whether it is looking for private funds 

for the operation and maintenance, or looking for other sources of 

revenue in order to meet those demands. But as far as privatizing 

a workforce, I will provide you whatever we have been considering, 

from that perspective. 

Mr. BISHOP. If you could, I appreciate that. 

Mr. Chairman, I yield back. And thank you again for indulging 

my schedule. 

Mr. GIBBS. OK, thank you. I will start off here. You heard from 

the panel one, the States, that said they think they can do it more 

cost effectively, streamlining it, closer to the people, all that. 

I guess, Secretary Darcy, can you kind of respond if you think 

that is possible? Or where does the Corps stand on that? Or why— 

or, if it is true, why is the cost higher with the Corps doing it? 

Ms. DARCY. As you know, only two States have the program. 

Mr. GIBBS. Yes. 

Ms. DARCY. We have to administer the program in all the other 

48 States. We have offices in every State. In some States we have 

several regional offices to just do implementation of our regulatory 

program. 

I don’t think we have done an analysis of the cost savings, but 

as you know, it has been demonstrated here by Michigan, in particular, and the proponents of the Virginia assumption, that they 

would be able to do it for $3 million, as opposed to our current $7 

38 

million. But it is not exactly comparing apples to apples, because 

that $7 million figure is for our entire regulatory program, not just 

for the 404 program. 

Mr. GIBBS. OK. Ms. Keehner, I guess—I have heard some feedback. If a State wants to move in this direction and apply for assumption, they go through the regional offices, the regional administrator. And how would that mechanism work? Because I guess I 

get a little concerned. I have heard, you know, over the years in 

my State legislative capacity there is some times, you know, different things coming out from different regional offices that maybe 

aren’t apples to apples, and we might hear how a different regional 

office—so how would that interact, and what was your role in—to 

facilitate that? 

Ms. KEEHNER. Well, the EPA headquarters office of the Office of 

Wetlands, Oceans, and Watersheds, we have a division that is responsible within that office, the Wetlands Division, for working in 

cooperation and collaboration with both State partners, as well as 

our regional offices. There are many opportunities for coordination 

and collaboration across the Nation. There are, you know, conference calls that are held—— 

Mr. GIBBS. When a State like Ohio—would they be working—— 

Ms. KEEHNER. With region five, yes. 

Mr. GIBBS. Chicago office? 

Ms. KEEHNER. Yes. 

Mr. GIBBS. And so they would go through there first, before it 

gets to you here, in DC? 

Ms. KEEHNER. The regional administrator is the—is actually the 

approving authority for the assumption. So we would be—I mean 

we were very—in EPA’s regional offices, there is a lot of communication and coordination that occurs with headquarters, particularly on issues as important and significant as a 404 assumption. 

There would be dialogue that would occur between the regional office staff and our—my headquarters staff—and Office of General 

Counsel, as well. 

Mr. GIBBS. OK. 

Ms. KEEHNER. And there is always concurrence on those packages with headquarters, Office of General Counsel, Office of Water 

and OECA before it is final. 

Mr. GIBBS. I am just looking for some uniformity. 

Ms. KEEHNER. Right. 

Mr. GIBBS. You know, make sure we have that. Because I know 

there has been instances before, you will hear—we will hear things 

about the region five office and, you know, interpreting things 

maybe different than another region. And that is—you know, the 

uniformity aspect of that. 

I guess I will just start—let’s see. We don’t have any Democrats 

here any more, do we? Who wants to go next? Mr. Shuster? 

Mr. SHUSTER. Sure. Thank you, Mr. Chairman. Secretary Darcy, 

pipelines, permitting, the delegation, the Pennsylvania Delegation. 

We sent you a letter. We appreciate your response to us. But in 

your response to us you acknowledge and restated the goal of eliminating duplicative—the review process. However, the new approach 

that the Corps is doing is just the exact opposite, in my view, and 

the view of my colleagues—most of my colleagues—and the view of 

39 

our DEP. As well as taking the exact opposite approach, it is also 

not—we don’t believe there is any additional environmental benefit 

to the approach. 

And furthermore, we don’t believe Pennsylvania is being treated 

like other States are being treated. The average—Pennsylvania’s 

mid-stream permits are averaging about 150 days now, give or 

take, under GP4. Other States with nationwide permitting have a 

maximum of 45 days, and in some cases don’t require the Corps to 

even approve. 

And so, first question is why is Pennsylvania being treated differently? And then we will get on to a couple other questions. 

Ms. DARCY. Congressman, are you referring to our nationwide 

permits, or the general permits? 

Mr. SHUSTER. Well, general permits in Pennsylvania. But my understanding, when I talk to the nationwide permits, there are other 

States, not—Pennsylvania is not one of them—that don’t even have 

to have Corps followup. 

Ms. DARCY. Well, on our nationwide permits, if you are referring 

in particular to pipeline permitting—— 

Mr. SHUSTER. Correct. 

Ms. DARCY [continuing]. Under our nationwide permits for pipelines, if you are intending to cross a wetland, or for your pipeline, 

you have to submit what is called a pre-construction notice to the 

Corps of Engineers. Within 45 days of that time, if we do not require any changes or differences, you are allowed to go ahead with 

that. That is a nationwide permit, that applies everywhere in the 

country. 

Mr. SHUSTER. Right. 

Ms. DARCY. Regarding the general permit for Pennsylvania that 

you are referring to for pipelines, my understanding is that we are 

currently in discussions with the pipeline companies in Pennsylvania to help to develop that general permit. 

Mr. SHUSTER. Right. And that is—but again, what you have done 

is you have changed from a category 1 to a category 3. And for a 

long time, a long period of time, Pennsylvania DEP approved those 

under a category 1 status. Now, under category 3, they have to go 

through and, again, there are significant delays. 

And we have—I think you have been in talks with the pipeline 

companies for some time now. This is about—first of all, we want 

to do it environmentally in a sound way, to protect the environment, which our Secretary Krancer is doing a great job and, trust 

me, he is feared by the pipeline or the energy companies, because 

they know if they do something willfully, he is going to come down 

on them hard. 

But we have taken away the ability for Pennsylvania to quickly 

approve these pipelines, the gathering lines, stream crossings. 

Again, and that is an expansion of what the Corps has done. So 

can you tell me why have you done it? I mean Pennsylvania wasn’t 

a bad actor, they did a great job. So I would understand that if we 

were out there, doing the wrong things. 

Ms. DARCY. I don’t know the answer. But what I can tell you is 

that I expect that the reason for why it is taking longer may be 

because when we issue general permits there has to be a public noVerDate Aug 31 2005 10:47 Feb 07, 2013 Jkt 000000 PO 00000 Frm 00053 Fmt 6633 Sfmt 6633 P:\HEARINGS\112\WR\9-20-1~1\76147.TXT JEAN
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tice and comment period, and we have to respond to the comments. 

I can’t tell you for certain. 

But what I can tell you is that I will personally look into—— 

Mr. SHUSTER. What I would prefer to see is us go back to letting 

them be category 1, where they fall under the State review. And 

now, today, 90 percent of them under category 3 have to be reviewed. And that is a significant challenge to the State of Pennsylvania and to these energy companies. And it just seems to me, 

under category 3—or, excuse me, under category 1, the impacts 

were temporary and minimal. And those stream crossings are all 

temporary and minimal in most cases. So again, I would like the 

Corps to go back and reverse itself and put us back into category 

1. Because, again, I just don’t see any reason for it to penalize 

Pennsylvania by doing this. Can you talk about that? 

Ms. DARCY. What I can tell you is that I will look at it and see 

why they are considered category 3. Because right now I can’t, off 

the top of my head, tell you why. 

Mr. SHUSTER. And I don’t know if you have ever interacted with 

Secretary Krancer, but I would highly recommend you—I mean 

this guy is outstanding. We have had him in front of Congress a 

number of times. He is a former judge, former environmental 

judge, who wants to do things right for Pennsylvania. He cares 

about Pennsylvania as much—I should say more—than the Corps 

of Engineers or more than the EPA, because he is a Pennsylvanian. 

And again, he has a great respect from the energy companies because they know if they do something willfully, if they do something knowingly, he is not going to tolerate it. 

So, I would hope that we could again move past this and get 

these energy companies back to drilling and getting the energy out, 

paying the royalties to the folks that have leased their land to 

these people, because it adds to the economy tremendously in 

Pennsylvania. So thank you. 

Mr. GIBBS. I would just like to also ditto on what the representative just said. He testified before this committee and they had a 

problem in Pennsylvania and they shut it down in 27 hours when 

they realized they had a problem. And I don’t think anybody could 

have moved that fast, so I was impressed. 

Mr. Cravaack, do you have any questions? 

Mr. CRAVAACK. Oh, yes. Thank you for being here today. Madam 

Darcy, could you please tell me what constitutes a waters of the 

United States? How does—how do you go across that determination? 

Ms. DARCY. We have a definition that is in the statute, as well 

as in our regulation and EPA’s regulation on what determines a 

water of the U.S. I used to know this off the top of my head, but 

it is defined in statute. 

Mr. CRAVAACK. You can get some help from your wingmen if you 

need it, you know. 

Ms. DARCY. William? Where are you, William? Well, Ryan probably can do it, too. 

The significant nexus to an existing body of water. Is that right? 

Mr. CRAVAACK. Definition of nexus? 

Ms. DARCY. Connection is—— 

41 

Mr. CRAVAACK. Well, if you could give our office a reasoning why 

the Mille Lacs Lake in the middle of Minnesota, which is by the 

Army Corps of Engineers, considered a nonnavigable lake—— 

Ms. DARCY. What is the name of the lake, Congressman? 

Mr. CRAVAACK. Mille Lacs Lake. 

Ms. DARCY. Mille Lacs. 

Mr. CRAVAACK. Why the United States Government took that 

from the State? I would love to hear that. Because we actually have 

a bill to prevent it. And I would like to know what the Army Corps 

of Engineers genesis was when they actually—in the report itself 

it said it is not navigable. But anyway, I would love to hear that 

from you in the future, though we do have legislation that has 

passed the House into the Senate, and hopefully we are going to 

hotline that with Senator Klobuchar over there. 

How long do you think it would take for the State to assume a 

permitting process? And does the Federal Government really support that, in your opinion? 

Ms. DARCY. Assuming the 404 process? 

Mr. CRAVAACK. Right. 

Ms. DARCY. I am going to defer to EPA, because they are the 

ones who—— 

Mr. CRAVAACK. OK. 

Ms. KEEHNER. The experience that we have had with the State 

of Michigan and New Jersey, for the State of Michigan, from the 

time the State began the process of developing its program until 

authorization, I believe, was 5 years. And the State of New Jersey, 

I believe, was 8 years. 

Mr. CRAVAACK. OK, 4 and 8 years. How do you view the States? 

Do you—Mr. Creal had an excellent—I mean I was really impressed when he says he views, you know, companies and—do you 

view them as customers? 

Ms. KEEHNER. Do I view the States as customers? 

Mr. CRAVAACK. Customers and companies within the States as 

customers. 

Ms. KEEHNER. Of the Federal Government and of regulation? 

Yes, they are—States are both partners in the implementation of 

the Clean Water Act. In this case, they are also customers of EPA, 

in the sense that EPA has obligations and responsibilities to provide interpretations, guidance, direction. We run grant programs. 

So, yes. 

Mr. CRAVAACK. OK. Well, we have had a lot of troubles with EPA 

in Minnesota in regards to—for example, some of our mining, for 

example, where the States—actually, and some of our restrictions 

are even more strict than what the EPA puts out. And yet the EPA 

swoops in and says, ‘‘We are not going to follow your State guidelines, and we are going to go ahead and do what we want to do,’’ 

mainly—it is out of your jurisdiction, probably, regarding air quality—it is a haze issue, actually, which, really, the Federal Government shouldn’t have any direct input in implementing, anyway. 

So, I really question if the EPA wants to partner with businesses 

and States, or they wish to mandate to businesses and States. Because I would like to see Federal Government partnering with companies and States to create jobs, while at the same time protecting 

our environment. 

42 

In the 2 years I have been here—and I admittedly am a freshman—but all I have seen is the Federal Government coming in and 

playing Gotcha, instead of partnering with companies, with States, 

and say, ‘‘How can we do this better together, while increasing jobs 

and at the same time make sure we all take care of our environment?’’ And that is just an observation. So I hope that you will possibly take that back. 

Ms. KEEHNER. Thank you. 

Mr. CRAVAACK. What is the process, in your—Ms. Darcy, what is 

the process for actual determining—we kind of asked that earlier, 

but, you know, how do you go about determining what is a water 

body of the United States? How would that be? You see a water— 

and I have a specific issue in mind. But how do you go about saying that this is now a Federal body of water? 

Ms. DARCY. To determine it is—we have what is called a—— 

Mr. CRAVAACK. Not even navigable, but it just becomes a body 

of water for the United States. 

Ms. DARCY. We have, through our regulations, what is called the 

delineation manual that all of our folks on the ground and our districts utilize to make a determination as to what is navigable. It 

depends on the amount of water, the time of year, what the vegetation is, what the aquatic life is there, for example. All of those 

things go into determining whether it is a water of the U.S. for jurisdictional reasons. 

Mr. CRAVAACK. Can you explain to me how a body of water could 

be in existence for 25 years, and then all of a sudden the Federal 

Government comes in and says it is now a Federal body of water? 

Ms. DARCY. That it was at one point and is no longer? Is that—— 

Mr. CRAVAACK. No. It was not a Federal body of water, and all 

the sudden the Government swoops in and says now it is a Federal 

body of water. 

Ms. DARCY. I can only speculate that perhaps the nature of the— 

whether it is a lake or river—has changed over time, has increased, 

and now perhaps supports aquatic wildlife that it didn’t before. 

Mr. CRAVAACK. OK. All right. I see my time has expired. Thanks 

for the indulgence to the chair, and I will yield back. 

Mr. GIBBS. Ms. Herrera Beutler? 

Ms. HERRERA BEUTLER. Thank you, Mr. Chairman. A couple of 

questions. You know, and a general statement on the NPDES and 

the nationwide permitting. I don’t know who is responsible, because when I work with my local Corps, both—I am in southwest 

Washington, so I deal with both the Portland Corps and the Seattle 

Corps, depending on where we are. 

And I have seen very—you know, we have new colonels right 

now doing a great job working on reducing permitting times. But 

the numbers that he shared with you, Mr. Shuster, are far and 

away worse in our neck of the woods. And what I hear—what I am 

hearing is, as the colonels are trying to make a—I mean we are 

hundreds of days longer on both of those than—you can pull out 

several different Corps offices, district offices. We are hundreds of 

days beyond that. And we are not talking about for permitting a 

pipeline or a mine. We are talking about building a building. 

I mean it is—I almost wish our problems were with permitting, 

you know, the more onerous types of projects. It is building a shopVerDate Aug 31 2005 10:47 Feb 07, 2013 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6633 P:\HEARINGS\112\WR\9-20-1~1\76147.TXT JEAN
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ping center in basic areas. I mean we had people who had to—cities who had to either give back—have been in danger of losing 

their stimulus grants because they just didn’t know if they could 

get a permit in under 200 days. I mean it is drastic, and something 

absolutely has to change. 

The efforts that I have had from the colonels on both—the new 

colonels commanding both districts have been tremendous. I appreciate them. But as they tell me when they do—they have shown me 

numbers. When they are doing the permitting alone, the permit 

times are less. But when they have anything to do with the EPA 

is when it gets bad. And they didn’t say it like that, I am not trying 

to throw anybody under the bus. But it significantly lengthens the 

amount of time it takes to get one of these two permits. 

I want to know from either of you who on this level my office can 

turn to with specific examples to change that? I mean at this point 

I don’t know who the problems are, but we have double-digit unemployment in my neck of the woods, and tremendous projects ready 

to go that the Federal Government has, on the one hand, said, 

‘‘Hey, here is stimulus money.’’ On the other hand, we can’t even— 

we can’t get a permit to build a building. 

So I guess I am asking from both of you who I can turn to here 

who is going to make something happen. And I am not saying permit things that are—shouldn’t be permitted. I am talking about the 

basics. 

Ms. DARCY. I think you are looking at how we can speed up the 

coordination process that is required when we have to process a 

permit. We do have to coordinate with EPA or the Fish and Wildlife Service or locals. We also have to coordinate with the State historic preservation office—there are all kinds of—— 

Ms. HERRERA BEUTLER. Well, this is one of the things I was told 

was, ‘‘Well, maybe there is more sensitive environmental or tribal 

issues in this area, as compared to a different district.’’ 

And I said, ‘‘Well, why are we hundreds of days different than 

the Portland Corps, because they have the same environmental 

and tribal issues that we do in Washington’’—I mean I live right 

on the border. They are very, very similar. So, yes. It is the streamlining process, perhaps. 

Ms. DARCY. One thing I think we can look at doing is coordinating with our sister agencies earlier in the process. We often get 

a permit application and it is not complete, so that takes time. You 

have to go back to the applicant and request information, for example. 

But, if coming in the door we know that there is an endangered 

species, or we know that there is a possibility for impacts to a 

wastewater treatment system or something, we could, earlier in the 

process, coordinate with our—— 

Ms. HERRERA BEUTLER. Do you do a type of concurrent permitting? Because one of the things I found was people will turn everything in and not be told for 4 weeks that there—it is an incomplete—or there was something else. Or it wasn’t even incomplete. 

I have stories where people have completely done everything they 

were supposed to do, and then they just wanted more information. 

But they didn’t find out that they wanted more information until 

it had already been sitting on someone’s desk for a month. 

44 

I mean is there a process that we can—where do I go—because 

I have been trying at those levels to fix this, and it is not working. 

So I have you both here. 

Ms. DARCY. Well, as you know, it is Corps districts who do our 

permitting, and it is the ultimate decision of the District Commander in all instances whether a permit is granted or not. But 

I think, in looking at streamlining, I think it was the Portland district, or maybe the Seattle district, years ago we got a provision in 

law referred to as Section 214 that gave additional funding to permit processing. And it has been very successful. And that has 

helped. But it is clear that it is not helping enough in getting this 

more expeditious—— 

Ms. HERRERA BEUTLER. So who in your office is—who could raise 

their hand that we could—— 

Ms. KEEHNER. I would be happy to follow up with that region 

and the office in Seattle with the specifics of the cases. 

Ms. HERRERA BEUTLER. Great. 

Ms. KEEHNER. And—so that we can better understand, really—— 

Ms. HERRERA BEUTLER. Great. 

Ms. KEEHNER [continuing]. What was the nature of any problem. 

Ms. HERRERA BEUTLER. And the challenge I have is that they— 

my folks can demonstrate a difference between the Portland office 

and the Seattle office. 

Ms. KEEHNER. We will take a look—— 

Ms. HERRERA BEUTLER. I mean they can demonstrate it. One 

more quick thing. As we are talking about this 404 and letting the 

States assume this authority, what would the difference be—I see 

that under Section 10 of Rivers and Harbors the Corps would retain authority to—even if this is transferred to the States, would 

they still be able to say, ‘‘Hey, wait a minute, you are going to impede a navigable water’’? 

Ms. DARCY. Yes, Congresswoman. We don’t have the authority to 

delegate the Section 10—— 

Ms. HERRERA BEUTLER. Great. 

Ms. DARCY [continuing]. Responsibility. 

Mr. GIBBS. Yes—— 

Ms. HERRERA BEUTLER. So that doesn’t go away. 

Mr. GIBBS. Congress would have to change the law for that to 

happen. 

Ms. DARCY. Yes. 

Ms. HERRERA BEUTLER. Great. Thank you. Thank you, Mr. 

Chairman. 

Mr. GIBBS. Mrs. Capito? 

Mrs. CAPITO. Thank you. Thank you both for your testimony. 

Secretary Darcy, first of all, I want to thank you. I am Shelley 

Moore Capito from West Virginia. Thank you for the letter that 

Congressman Rogers and I had written about the permitting. As 

you know, West Virginia has had some deep difficulties with our 

permitting issues and with the coordination, and I appreciate the 

chart that you sent me updating the latest. 

And you also know that the Corps has struck down the enhanced 

coordination procedures that were put into effect by the EPA. I believe that was in 2009, early 2009. 

45 

I would like to know from you, Secretary Darcy, how has the 

interaction between the Corps and the EPA changed since the 2012 

court decision? Because, basically, my understanding at the basic 

is the court said this enhanced coordination procedure is unlawful 

and an overreach by the EPA. 

So, I am assuming it has been dropped. But is that in reality 

what is happening? And—— 

Ms. DARCY. Yes. 

Mrs. CAPITO [continuing]. What has changed? 

Ms. DARCY. What has changed is we have gone back to the way 

we were operating before the enhanced procedures process in 2009, 

as a result of the court decision this year. 

Mrs. CAPITO. And the District Commander is making the decision without the EPA having the ability to come back and review 

after they have already approved the water standards, et cetera? 

Ms. DARCY. The District Commander still retains the right to 

make the decision. He also still has the ability to ask for additional 

information or coordination. But it is not the same process that we 

put in place in 2009. 

Mrs. CAPITO. Right. Then what is the EPA’s role right now, then? 

Ms. KEEHNER. EPA has an ability to review those permits and 

to make comments on them at the proposed permit stage, if there 

is any—— 

Mrs. CAPITO. Once it has been finalized. Once the—— 

Ms. KEEHNER. Well, EPA has the ability under 404 to potentially 

veto a permit. But that is very rarely used. 

Mrs. CAPITO. Right. The other question—I mean we have had 

just such difficulty. We have got people who are withdrawing a lot 

of their applications, capital investments not going forward in our 

coal mining region because of the difficulty with the permitting 

issues. You are both well aware of this, I am not telling you something you don’t know. 

But, you know, since the hearing here is about whether the 

States would take over the 404 permitting, I noticed my State was 

noticeably absent in the listing of the States. Would you like to say 

why West—I don’t know why West Virginia is not one of those. I 

would have to say the complexities involved may be why the State 

doesn’t want to take this on. I don’t know. Would you—— 

Ms. DARCY. Well, I don’t know either, Congresswoman. The 

States who were represented here this morning did point out some 

of the reasons why the State assumption is difficult. One of them 

was funding, one of them was having to redo your own regulations 

to be consistent. I mean they raised those concerns. 

Mrs. CAPITO. I would like to ask Ms. Keehner—did I say that 

right? 

Ms. KEEHNER. Yes, Keehner. Yes. 

Mrs. CAPITO. Keehner. Yes, thank you. As you know, EPA’s objections have drastically impacted the ability of our State to run 

our own NPDES permitting under Section 402. Is there any hope 

that EPA would show greater deference to a prospective 404 permitting program if the State takes it over, than it has for the 

NPDES State program? 

Ms. KEEHNER. What I can comment on is that the relationship 

we have with the State of Michigan and New Jersey, as they have 

46 

implemented the 404 program, has demonstrated that EPA reviews 

and comments on less than 2 percent of the permits that those 

States move forward under the 404 program. And over the history 

of both of those programs, there have been only three cases where 

objections, EPA objections, were maintained and those permits 

moved over to the Corps of Engineers. So I think that is a good indication of EPA’s—how EPA, in practice, oversees State programs 

that—under 404 that have been assumed. 

Mrs. CAPITO. With the court striking down the enhanced coordination procedures that were put into effect by the EPA, has there 

been any activity in the EPA to reconstitute these under a different 

form? 

Ms. KEEHNER. No. 

Mrs. CAPITO. Good answer. 

Ms. KEEHNER. We respect the rule of law and the judge’s decisions. 

Mrs. CAPITO. Good. And then for the Corps, on the back log, I 

know staffing has been an issue sometimes at the Huntington 

Corps, they are working like crazy. I realize that. There is a lot of 

activity, and the colonels have done a great job. I would concur 

with my colleagues who—you can’t meet a finer group of people, 

really, and I have great respect from them. But what are you doing 

to address the backlog at the Corps level in those particular districts that I am concerned about? 

Ms. DARCY. We are trying to be more efficient within the resources we have. We are also looking at ways that we can, as we 

talked about, streamline the process, maybe be in touch with those 

people with whom we need to coordinate earlier in the process. And 

also, we have a dedicated group of folks in those district offices trying to process those permits, and there are a lot of permits. 

Mrs. CAPITO. Thank you. Thank you, Mr. Chairman. 

Mr. GIBBS. A couple more questions here. The Corps reissued its 

nationwide permits under Section 404 of the Clean Water Act in 

February of 2012. And shortly before the Corps reissuance, the National Marine Fishery Service issued a jeopardy biological opinion 

under the Endangered Species Act on the Corps’ nationwide permit 

program. 

In August of 2012, the Center for Biological Diversity notified the 

Corps of its intent to file a lawsuit in 60 days to challenge the 

Corps’ nationwide permit program, alleging that the nationwide 

permits reissuance violated the Endangered Species Act. How 

might this Endangered Species Act litigation impact the nationwide permits and overall 404 program? 

Ms. DARCY. Well, as you say, they have issued an intent to sue. 

Mr. GIBBS. Yes. 

Ms. DARCY. I don’t believe they have actually filed a lawsuit yet. 

I would have to check. We will continue to operate under our nationwide permits as they have been approved. In light of the litigation stopping us from using them, we are going to proceed under 

the nationwides as they have been adopted. 

Mr. GIBBS. OK. I think we are good. Just to follow up, I know 

last year, before you came before this committee, we were talking 

about the permits and the revocation of the one permit in said 

State, and you said that the EPA said they had the authority to 

47 

do that. Apparently, the—at least in the first round court decision, 

they didn’t have the authority. I just wanted to reinforce that. And 

I know the administration is moving forward, which is unbelievable 

to me, but I just had to get that in. 

I want to thank you for coming today. Oh, OK. The—you know, 

this hearing and our first panel, you know, we are really trying to 

figure out how we can do things better and—because when I am 

out in Ohio and elsewhere, one thing you hear from businesses 

and, you know, our customers, that, you know, we can’t get our 

permits, permit delays, or—I think Representative Herrera Beutler 

said it too, sometimes they don’t get back. Lots of times I hear instances where they say, ‘‘Well, we haven’t heard back. We inquire, 

it’s been months, and we can’t get, you know, any feedback, we 

don’t even know what the status is.’’ 

And, you know, they might need more information but, you 

know, I think you really need to get filtered down through the 

agency that there are customers and they are the ones that create 

the jobs and grow the economy. And we certainly don’t want to be 

putting more barriers, making it more difficult, and streamline the 

process when we can. So hopefully we can, you know, out of this 

hearing today we can figure out how we can do things better. 

And I guess one quick question just comes to mind. If a State 

wants to come in and do this, what is the position of the Army 

Corps to—you know, don’t have a position, or are you just—are you 

going to facilitate the needs, what they want? 

Ms. DARCY. If the State requires information for us to review in 

order to submit the application to EPA, we would be happy to—and 

we support that. 

Mr. GIBBS. Yes, I figured you did, I just wanted to make sure. 

I guess just another quick thought. We have had hearings in this 

committee on our entire maritime transportation system, especially 

in the waterway and the ports, you know, it is really critical, and 

we have had a lot of discussion about the aging assets, you know, 

our locks, levies, and dams, and then, of course, flood mitigation. 

When we are looking at Corps personnel, can you kind of break 

down, you know, where the emphasis is? I mean I will just tell you. 

My strong belief is I think the Corps’ top priorities ought to be the 

maritime transportation system and flood mitigation. And would it 

be better if the Corps was relieved of this responsibility to do some 

of these 404 permits that really don’t pertain, as such, maybe to 

those—that—those two issues? 

Ms. DARCY. As far as focusing our program on what those priorities are that you mentioned, I think if you look at our budget over 

the last several years, we are spending more on operation and 

maintenance than we are on most other business line functions, 

and that is because of the aging infrastructure, and because of the 

importance of the maritime system to this country. 

You know, as far as the 404 program, our regulatory program is 

about $185 million of our entire $4.7 billion budget. So it is not a 

huge part, but it is a really important part. And I think we have 

been doing it pretty well. I mean it was given to us in 1972 by 

the—— 

Mr. GIBBS. When the Clean Water Act was—— 

48 

Ms. DARCY. Passing the Clean Water Act for the dredge and fill 

materials. So I think it is operating well, but you know, with the 

increased needs of not only permits, but also the increased needs 

of the navigation system, we need to weigh where we are going to 

put our money. 

Mr. GIBBS. Yes. No, I agree, and we got serious challenges, because I have always made the argument if we don’t have the correct transportation system and maritime—essential cog of that, our 

total transportation system, that, you know, our economy will suffer and then we won’t have the resources to do some of these other 

things, you know, eco-restoration and all the other programs you 

do. 

So, anyway, thank you again for being here today, and we look 

forward to seeing you in the future. 

Ms. DARCY. Thank you. 

Mr. GIBBS. This concludes this hearing. 

[Whereupon, at 12:13 p.m., the subcommittee was adjourned.] 

49 


Insert offset folio 69 here 76147.069

September 20th, 2012 

Testimony of David K. Paylor 

Director, Virginia Department of Environmental Quality 

Vice-Chair, Environmental Council of the States Water Committee 

United States House of Representatives 

Committee on Transportation and Infrastructure 

Subcommittee on Water Resources and Environment 

Regarding 

State Assumption of Clean Water Act Section 404 

Good Morning Mr. Chairman and Members of the Subcommittee. I am pleased to 

present testimony today regarding the benefits associated with state assumption of 

Section 404 of the Clean Water Act (CWA), and to discuss the administrative and 

financial barriers that make the process prohibitive. 

My name is David Paylor and I'm the Director of Virginia's Department of Environmental 

Quality (VDEQ). During my six years as VDEQ's Director I've had the opportunity to 

work with the administrations of two Virginia governors to protect our natural resources 

while providing efficient regulatory programs that are responsive to the regulated 

community. I'm also a former president of the Environmental Council of the States 

(ECOS) and I currently serve as Vice-Chair of the ECOS Water Committee. ECOS is 

the national non-profit, non-partisan association of state and territorial environmental 

agency leaders. Today I am testifying on behalf of both ECOS and the Virginia 

Department of Environmental Quality. 

Congress passed the Clean Water Act (CWA) in 1972 and it is the primary federal law 

governing water quality in the United States. The U.S. Army Corps of Engineers 

administers the Section 404 program for EPA through the issuance of permits for 

activities in jurisdictional waters of the United States. When Congress passed the CWA, 

it included a provision whereby states may seek to implement certain parts of the Act, 
50 


Insert offset folio 70 here 76147.070

including Section 402, the point source discharge program, and Section 404, which 

regulates the discharge of dredged or fill material into waters of the United States, 

including wetlands. Currently, only Michigan and New Jersey have assumed Section 

404. This is in contrast to the forty-five states that have assumed Section 402. This 

disparity is evidence of financial and administrative barriers that are specifically 

associated with Section 404 assumption. 

There are significant potential benefits to a state administered Section 404 program. 

States are well-positioned to provide a consistent, streamlined regulatory program that 

is protective of a state's unique wetland and stream resources. Most states define their 

waters more broadly than the Clean Water Act and include isolated wetlands, 

ephemeral streams and groundwater. During times of jurisdictional uncertainty at the 

federal level, such as in the wake of the Solid Waste Agency of Norlhem Cook County 

v. U.S. Army Corps of Engineers ("SWANCC") decision1

, states are able to maintain a 

consistent and predictable definition of the waters they regulate. This consistency 

provides stability to the regulated community and encourages trust between the 

government and private land owners. In addition to consistency, a state administered 

Section 404 program provides the public with an efficient and streamlined one-stop 

shopping experience, effectively removing the duplication of effort and regulatory 

uncertainty that often occurs with parallel state and federal programs. 

While states are able to provide consistency, efficiency and enhanced resource 

protections through stewardship of the Section 404 program, ECOS has identified 

substantial financial and administrative barriers facing states that seek to assume the 

program. Among the most significant of these barriers: 

1 The Court held that the Corps' asseliion of jurisdiction over isolated waters on the basis of the 

"migratory bird rule" exceeds the authority granted under Section 404(a) of the CWA. The 

Court based its decision on the CW A alone, thereby avoiding the constitutional question of 

whether the regulation was within Congress' power under the Commerce Clause. Solid Waste 

Agency a/Northern Cook County v. US. Army Corps a/Engineers, 531 U.s. 159 (2001) 
51 


Insert offset folio 71 here 76147.071

• Funding IS not currently available from the federal government for implementation 

of the Section 404 program. The Section 404 program is transferred 10 a state 

through primacy, more commonly called "Section 404 assumption". The Section 

404 assumption process differs from the transference of Section 402 of the CWA, 

which is delegated to states by the EPA. This distinction between assumption 

and delegation renders states seeking to implement 404 ineligible for federal 

funding. While there are federal funds potentially available for a state's 

development of the 404 program, it is the implementation phase that is financially 

challenging as the state hires new staff, funds new training programs, and 

expands administrative resources in advance of assumption. ECOS supports 

U.S. Congressional action to authorize funding for states that assume the 

Section 404 permitting program and to make the eXisting U.S. EPA wetland grant 

program available for both development and implementation activities. 

• There is uncertainty regarding the criteria for assessing a state's legal authority 

to assume administration of the Section 404 program. The basic foundations of 

parallel state and federal regulations are different, even though the goals of those 

regulations are shared. The CWA relies heavily on the authority of the federal 

government to regulate interstate navigation and interstate commerce while 

states regulate their water resources based on the constitution and laws of the 

state. The rules require that the state administered Section 404 program is no 

less stringenllhan Ihe federal program. ECOS supports this requirement, but 

suggest~ that EPA provide guidance to states about available flexibility in 

meeting the requirement white taking into account differing wording and 

underlying constitutional authority for state programs. This would help to reduce 

the uncertainty and difficulty of assessing parity by directly comparing the 

language of two different regulations. 

The Section 404 assumption process provides no phased assumption option to 

states. The requirement of states to assume the entire program all at once 

creates a complex and lengthy process that can last up to two years with no 

3 
52 


Insert offset folio 72 here 76147.072

certainty that EPA will approve the request. ECOS suggests a process that 

allows a state to assume the program in phases. A phased assumption would 

allow the Corps to maintain any projects that are in process while new 

applications would go to the state. A phased approach would also lighten the 

financial and administrative burden on states to provide the resources for an 

"overnight transfer" up front. 

• The Section 404 program does not include an option for partial assumption by 

states. For instance, states cannot seek to assume the 404 program for only 

specific geographic areas or certain types of activities; they must assume the 

entire program. A partial assumption allowance would enable states to choose 

those portions of the program that they are best positioned to administer. Under 

a partial assumption scenario workload division could be structured around 

categories like impact thresholds, or specific responsibilities like jurisdictional 

determinations versus permit processing. The specifics of the workload division 

could be based on a state's unique aquatic resources or workload and 

administrative factors. Though not part of the assumption process, there is one 

currently available option for states to share Section 404 responsibilities with the 

Corps. States can pursue development of a State Programmatic General Permit 

(SPGP) with the Corps. A robust state programmatic permit program, like the 

successful SPGP program that Virginia has administered over the past twelve 

years, provides a working example of how dividing Section 404 regulatory 

workload between a state and the Corps can provide a more streamlined and 

consistent permitting process to the regulated public while maintaining wetland 

and stream protection. 

In Virginia, Section 404 assumption has been a recurring discussion since 2000, and 

has been driven, in part, by the Tulloch ditching decision2

, the Wilson case3, and the 

2 The Court held that the Tulloch rule exceeded the Corps' and EPA's authority under the CW A 

because the "incidental fallback" of material associated with excavation activities was not a 

"discharge of dredged or fill material" within the meaning of the statute. American Mining 

Congress v. Us. Army Corps of Engineers, 951 F. Supp. 267 (D.D.C. 1997) 

4 
53 


Insert offset folio 73 here 76147.073

limitations of the Corps' jurisdiction over isolated wetlands and excavation in wetlands 

and other waters resulting from these court cases. The Virginia Water Protection Permit 

(VWP) Program was first enacted in May 1992 to serve as the Commonwealth's 

nontidal wetlands program and Section 401 Certification process. In 2001, the program 

was expanded into a nontidal wetlands regulatory program independent of Section 401 

Certification, including an SPGP and general permits for development, mining and linear 

transportation projects. However, Virginia's program still operates in parallel with the 

Corps' Section 404 program, creating some unnecessary duplication of effort. 

Virginia's SPGP was first released in 2001 and expanded in 2007 and 2012. Virginia's 

SPGP has reduced regulatory duplication for projects that qualify for the SPGP, but 

there is still a "two-stop shopping" experience for the regulated community for projects 

that are beyond the SPGP thresholds of 1.0 acre of wetland impacts and 2000 linear 

feet of stream impacts. Two regulatory frameworks can create confusion for the 

regulated community because of differing timeframes and the absence of a single point 

of contact for permits. Through the development and ongoing evolution of Virginia's 

SPGP, the Corps and VDEQ identified and implemented impact thresholds that capture 

the majority of the permit load for residential development in Virginia and allow VDEQ to 

serve as the sole point of contact to the regulated community for those projects. 

Virginia's experience with the SPGP has shown that by working closely with the Corps it 

is possible to develop a state programmatic permit that is structured to divide 

responsibilities and workloads to best utilize the strengths of both the state and federal 

programs. Virginia has found that administering a well developed SPGP provides many 

of the benefits that are not currently available through the 404 assumption process due 

to the lack of a partial 404 assumption option. 

VDEQ has evaluated the costs and benefits of pursuing Section 404 assumption in the 

past and is currently preparing an updated 2012 study at the request of Virginia's 

3 The Court held that CWA jurisdiction over isolated water bodies based on their potential, as 

opposed to actual, cOlmections with interstate or foreign commerce was invalid because it 

exceeded Congressional intent (emphasis added). United Slales v. Wilson, 133 F. 3d 251 (4th 

Cir. 1997) . 

5 
54 


Insert offset folio 74 here 76147.074

General Assembly. These studies require VDEQ to perform a thorough accounting of 

the Agency's and the Corps' respective workloads, existing staff and information 

technology resources. VDEQ used those data to project the funding required to 

successfully assume the Section 404 program from the Corps. Both studies include 

extensive stakeholder input from the regulated community, state resource agencies, 

federal agencies and environmental conservation groups. Both the 2006 and the 2012 

assumption stUdies identified several of the same anticipated benefits and concerns. 

The potential benefits identified by Virginia's assumption stUdies are in line with other 

states' findings as set out in the ECOS resolution broadly adopted by the states. 

Namely, that assumption of the Section 404 program could provide a consistent, 

streamlined permitting process with a single point of contact and broader resource 

protection than the CWA. Virginia regulated stakeholder's voiced appreciation of 

VDEQ's statutory timeframes that make us more responsive and lead to consistently 

quicker permit processing times than the Corps. VDEQ, if adequately funded, would 

provide that same level of customer service while administering the assumed federal 

program and providing equivalent environmental safeguards. 

Virginia's analysis of the costs revealed that the single largest impediment to Virginia's 

assumption of the federal program is the expense of acquiring the staff, administrative 

resources and information technology infrastructure needed to handle the expanded 

workload. Projections are that implementing the program would require VDEQ to 

roughly double its eXisting work force at a projected additional cost of approximately 3 

million dollars per year. Some of this cost could be defrayed through the phasing in of 

key personnel with the full workforce coming on line towards the end of the assumption 

process. More prohibitive is the anticipated need for approximately 2 million dollars in 

the first year of assumption and approximately 1.5 million dollars in year 2 and year 3 

for the development of a database and other computer resources to process the 

tracking and reporting requirements of the assumed program. For a point of 

comparison, VDEQ estimates that based on average salaries, the number of full time 

6 
55 


Insert offset folio 75 here 76147.075

employees and administrative costs, the Corps Norfolk District that currently administers 

Virginia's Section 404 Program has an annual budget of 7.3 million dollars. 

The stakeholders also identified the anticipated cost of implementing the program as 

their main concem. They warn that without adequate money, and absent federal 

assistance, the assumed program might not be funded to the level required to maintain 

the level of service and efficiency that VDEQ brings to its own permitting program. In 

Virginia, conservation groups expressed concern that state assumption would result in 

the loss of a permitting process with dual agency oversight, providing greater assurance 

of environmental protections. 

The Environmental Council of States (ECOS) issued Resolution Number 08-3 in 2008, 

and reaffirmed it in 2011, supporting delegation of Section 404 responsibilities to states 

that demonstrate a robust commitment and capacity to protect wetlands. The ECOS 

resolution: 

Encourages U.S. EPA to develop clear guidelines and processes for state 

assumption of Section 404 of the Clean Water Act that will encourage states to 

apply for and assume regulatory responsibility over this important natural 

resource program; 

Supports U.S. Congressional action to authorize and appropriate adequate 

funding for states that assume the Section 404 permitting program and to 

broaden the eligibility of the existing U.S. EPA wetland grant program for both 

development and implementation activities; and 

Supports a simplified and more flexible process for state assumption of the 

Section 404 Permit Program, including partial assumption of program 

responsibilities, in order to improve effectiveness and provide more efficient and 

effective permitting for applicants while maintaining protection of wetlands in the 

United States. 

7 
56 


Insert offset folio 76 here 76147.076

ECOS is committed to the idea that there is an untapped potential for strong state 

programs to further increase wetland program efficiency, and to integrate the best of 

state and federal programs to more effectively manage wetlands and other waters for 

the future. 

The goal of protecting the nation's wetlands and streams can be best realized through a 

process that is consistent, efficient and responsive to the unique features and qualities 

of the individual states. The Clean Water Act's Section 404 state assumption authority 

provides the mechanism for individual states to realize enhanced water resource 

. protection while providing a streamlined regulatory program with a single point of 

contact. States can and do define their jurisdictional waters more broadly than the 

federal government and implement regulations protective of water resources such as 

groundwater, ephemeral streams and isolated wetlands that the federal program does 

not address. Currently, these benefits are realized by only two states, due mainly to the 

prohibitive costs and complexities involved with the assumption process. Congress 

could encourage state assumption by making federal funds available for states to 

implement the program, as is the case for Section 402 delegation. Congress could 

further encourage state assumption by simplifying the application process and allowing 

for both phased and partial assumption of the program in accordance with a state's 

available financial resources and water protection goals. The integration of the best 

elements of the state programs with the base level protections provided by the Clean 

Water Act and EPA is the best way forward to increased national resource protection 

and wetland program efficiency. Mr. Chairman and Members of the Subcommittee, I 

appreciate the opportunity to present my testimony to you today and will be happy to 

answer any questions that you have. 

8 
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Insert offset folio 77 here 76147.077

September 20, 2012 

Testimony of Jeff Littlejohn, P.E. 

Deputy Secretary for Regulatory Programs 

Florida Department of Environmental Regulation 

United States House of Representatives 

Committee on Transportation and Infrastructure 

Subcommittee on Water Resources and Environment 

Regarding 

State Clean Water Act Section 404 Assumption 

Good morning Chairman Gibbs, Ranking Member Bishop, and Members of the Subcommittee. 

I am Jeff Littlejohn, Deputy Secretary of the Florida Department of Environmental Protection. 

My responsibilities include administering Florida's federally delegated programs under 

provisions ofthe Clean Water Act, Clean Air Act, Safe Drinking Water Act, and other federal 

laws. 

Florida's 1,200 miles of coastline, II million acres of wetlands, and 7.7 million acres of 

sovereign submerged land are essential to our quality of life and economic vitality. We value 

our beaches and wetlands and have protected them under state law since before 1975, through 

integrated management of stormwater, landscape alteration, and our state-owned submerged 

lands. We do this because Floridians know our natural resources better than anyone else. But 

our commitment to safeguarding Florida's environment results in duplication with the U.S. Army 

Corps of Engineers and its §404 federal wetlands program. This duplication of effort comes in 

spite of using joint permit applications with the Corps, implementing a State Programmatic 

General Permit from the Corps, and integrating §401 water quality certification and Coastal Zone 

Management consistency into our wetland permitting process. 

Congress amended the Clean Water Act in 1977 to enable states to assume the §404 program, 

with the clear intention of making that assumption possible. Unfortunately, obstacles remain 35 

years later, for Florida and 47 other states, to accepting the full §404 program. Without 

changes-perhaps to federal law and certainly to the federal review process-Florida and the 

Corps will continue issuing two permits for applicants who are asking to do only one thing. That 

surely was not Congress's intention. 

Two permits for one project might make sense if we were addressing different types of activities 

or achieving different outcomes. However, my staff just completed an analysis of Corps wetland 
58 


Insert offset folio 78 here 76147.078

pennits recently issued in Northeast Florida. Of 31 projects where the Corps and Florida issued 

a pennit for the same activities, the wetland jurisdiction line was identical in all 31 instances, 

wetland impacts were similar, and Florida required 50% more wetland mitigation overall. This 

analysis at least suggests that federal pennits are not more extensive or more protective than 

Florida's and, if they are not, it is difficult to make the case that two pennits are necessary. 

A primary barrier to Florida's full assumption of §404 is that many tidal and other navigable 

waters subject to the Clean Water Act are also subject to Section 10 ofthe Rivers and Harbors 

Act of 1899, and cannot legally be assumed. These waters constitute a large and important part 

of Florida's aquatic systems, including coastal waters and public trust lands transferred to Florida 

in 1845 at the time of statehood. This prohibition negates many potential benefits of §404 

assumption. 

We absolutely respect the Corps of Engineers' vital and distinct role in maintaining navigation. 

However, by virtue of its sovereignty, Florida has significant proprietary powers, including the 

authority to maintain navigation. In fact, we have demonstrated, year after year, the ability to 

protect navigation as we are protecting aquatic resources through comprehensive wetlands and 

coastal regulatory programs, and federally-approved Coastal Zone Management program. 

Surely, responsibilities can be better divided to take full advantage of Florida's proven abilities 

and the Corps' important oversight role. At a minimum, Congress's support for expanded State 

Programmatic General Pennits in traditionally navigable Section 10 waters is warranted. We are 

ready and eager to assume expanded authority over Section 10 waters under the Corps' watchful 

eye and guidance. 

A second barrier to assumption has been uncertainty in the state and federal roles in 

administering the Endangered Species Act. In 2010, EPA clarified that consultation under the 

Endangered Species Act is not required before approval of a state §404 program. This is helpful 

but not sufficient. Florida has robust state constitutional authority to protect listed species 

through the Florida Fish and Wildlife Conservation Commission, through which we coordinate 

all of our wetlands and coastal pennitting. The Commission recently amended its rules to mirror 

the protections afforded to federally-listed species. We believe we can demonstrate the 

necessary equivalency of Florida's program in this regard. 

During past consideration of §404 program assumption by Florida, questions have been raised 

regarding the "equivalency" of a number of aspects of our program to federal law. The Clean 

Water Act requires that approved state programs have "adequate authority" to carry out the §404 

program in a manner that is no less stringent than federal requirements. This is a reasonable 

2 
59 


Insert offset folio 79 here 76147.079

standard. Certainly, Florida's laws, like those in other states, are not identical to federal lawbut that is not the test. In its review of our program, we need EPA to recognize Florida's 

combination of state constitutional and statutory authorities, along with its suite of rules, that 

combine to provide comprehensive management of the state's aquatic resources at least 

equivalent to §404, which itself rests largely on the federal obligation to protect interstate 

commerce. 

We are confident that states like Florida can demonstrate equivalency with §404, provided the 

reasonable standard of "adequate authority" to carry out the program is appropriately applied. 

We have proved this in our implementation of the federal National Pollutant Discharge 

Elimination System (§402 Clean Water Act) program for more than a decade. Whether in the 

context of our wetland delineation method, regulatory jurisdiction, protections for listed species, 

water quality standards, mitigation requirements, public participation, procedural rigor, and 

compliance and enforcement authority, Florida implements substantially equivalent ifnot greater 

protections, with more extensive coverage, for our aquatic resources. 

In summary, we believe Congress provided for state assumption of §404 because it recognized 

the additional strength that comprehensive state water and land use management programs would 

bring to the program and the virtues of a federal-state partnership. Florida is fully committed to 

preserving its aquatic resources and will continue to carry out science-based, wide-ranging, 

publicly-supported programs for wetland and water resource management. We hope, with 

Congress's support, that Florida and the federal government can realize the full potential of §404 

program assumption to protect these resources and, at the same time, unburden the public of 

unnecessary bureaucracy and pointless costs. 

Thank you for this opportunity. I am happy to answer questions you may have. 

3 
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Insert offset folio 80 here 76147.080

September 20, 2012 

Testimony of George Elmaraghy, P.E. 

Chief, Division of Surface Water 

Ohio Environmental Protection Agency 

United States House of Representatives 

Committee on Transportation and Infrastructure 

Subcommittee on Water Resources and Environment 

Regarding 

State Clean Water Act Section 404 Assumption 

Good morning, Chairman Gibbs, Ranking Member Bishop, and Members of the 

Subcommittee. 

My name is George Elmaraghy and I am Chief of the Ohio Environmental Protection 

Agency's Division of Surface Water. I have more than 30 years of experience in 

implementing Clean Water Act programs. I am also a long standing member in the 

Association of Clean Water Administrators (ACWA). 

Ohio wetland program staff work with the Association of State Wetland Managers 

(ASWM), a national organization that broadly supports state and tribal wetland 

programs by effectively merging science, law and policy. ASWM coordinates with the 

U.S. Environmental Protection Agency (EPA), U.S. Army Corps of Engineers (Corps), 

and other federal agencies and nongovernmental organizations that manage the 

nation's wetland resources. State agencies make a major contribution to wetland 

protection and management in both regulatory and conservation programs, merging 

watershed and wetland programs with land use and habitat management. The value of 

state wetland programs has long been acknowledged by Congress. 
61 


Insert offset folio 81 here 76147.081

I am pleased to present testimony on behalf of the Ohio Environmental Protection 

Agency (Ohio EPA) and ASWM today regarding state experiences on investigation into 

the assumption of CWA Section 404 permitting from the Corps. 

Background 

Sections 404 and 401 of the CWA regulate the "discharge of dredged or fill material" 

into waters of the U.S., which includes streams, lakes and wetlands. Any project 

seeking to place fill into waters of the U.S. will need authorization under 404 and 401. 

Under the CWA, the 404 permit is issued to prevent unacceptable adverse impacts to 

water supplies, aquatic life, wildlife and recreation. The permitting requirements added 

by the state through 401 certification ensures that the federal permit is in compliance 

with any applicable state standards to protect water quality as well as any applicable 

effluent limitation guidelines, new source performance standards, toxic pollutant 

restrictions and other appropriate requirements under state law (see CWA §401 (d) and 

33 USC 1341 (d». In other words, the 401 certification is also designed to prevent 

adverse impacts to water supplies, aquatic life, wildlife, and recreation. 

In Ohio, the Corps authorizes impacts to waters of the state through Section 404 

individual permits and Section 404 Nationwide permits. The Nationwide permits 

authorize activities that are similar in type, e.g. utility lines, and generally cover activities 

with lesser impacts to water resources. The Corps conducts site visits to evaluate the 

quantity and quality of wetland and stream resources at the project site as part of the 

permit review for individual and many Nationwide permit applications. 

Under the Clean Water Act and state law, Ohio EPA also issues individual Section 401 

Certifications for each Corps individual permits as well as a certification to the 

Nationwide permits. EPA provides oversight to the Corps implementation of the 

program. 
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As you can see, receiving a permit for dredge and fill activity is a very complex process 

with both the State and Corps reviewing applications to prevent adverse impacts to 

water quality. This complexity results in a lengthy, expensive and confusing permit 

process, both for applicants and the regulatory agencies. The regulatory complexity 

adds to the regulatory uncertainty of business in making economic decisions. 

Why Pursue Section 404 Assumption 

Ohio is blessed with many streams and wetlands due to its soils, topography and 

usually plentiful rainfall. The many wetland areas and streams mean that most 

economic development type projects will impact those surface waters and require a 

dredge and fill permit. Currently, applicants must navigate separate state and federal 

processes that contain numerous overlapping requirements. Both agencies require an 

alternatives analysis and compensatory mitigation to offset any unavoidable impacts. 

The current complexity of the Section 401/404 permit process thus has a direct impact 

on jobs and economic activity in the state. 

Ohio believes strongly that assuming the Section 404 program will significantly simplify 

the permitting process and result in substantial cost savings for business and regulatory 

agencies, leading to job creation. Those cost savings would come from the following 

efficiencies: 

• Consolidating two separate permits into one - saving permittees costs from 

application development to permit review. 

• Consolidating regulatory agencies involved in the permitting process. Permitees 

deal with one agency thereby simplifying regulatory requirements and eliminating 

conflicting requirements of several agencies. This will significantly reduce the 

regulatory uncertainty businesses encounter when making economic decisions. 

• Eliminating duplicative regulatory review resulting in significant cost savings for 

the federal government. 

• Locating regulatory staff in Ohio to implement the program. Significant travel time 

savings will be realized since most Corps staff are not located in Ohio. This lack 

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of a local presence has resulted in delays for applicants due to Corps scheduling 

issues and a lack of experience with community specific development issues. 

• Having the-on-ground knowledge and review at state level is helpful in 

understanding community issues and coordination with other state issued 

permits. 

• Streamlining program oversight for EPA, consistent with other CWA programs, 

should also reduce federal government costs. 

Ohio strongly believes that assuming the 404 program will continue to protect water 

quality. Assuming delegation "does not change the essential water quality requirements 

under Section 404 - the state program must ensure compliance with state water quality 

standards in conformance with federal requirements" (ASWM 2011). EPA oversight 

ensures that federal requirements are met. 

Ohio, like other states, has been hit hard by the economic downturn. Ohio has made 

jobs its first priority. Streamlined environmental permitting would ensure Ohio's waters 

are protected while encouraging industries to build in Ohio, giving Ohio a competitive 

advantage at home and abroad. State decision making allows local factors to be 

considered affording better environmental protection. 

What is Required for a State to Assume Administration of Section 404 

In order to obtain approval to assume its Section 404 program, Ohio EPA will have to 

revise state law to grant the Director of Ohio EPA the authorization to seek assumption. 

This statutory revision is currently being sought. The next step will be for Ohio EPA to 

adopt administrative rules that are at least as stringent as the current federal 

requirements. Then Ohio EPA will have to compile an assumption package for 

submittal to EPA. That package will need to include a program organization and 

staffing proposal with proof that there is adequate funding to implement the program. 

The assumption package will also need to include proof that Ohio EPA has the legal 

authority to implement the program. This process will likely take several years. Oregon 

began the 404 assumption process in 1995 and has yet to assume the program. 

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Based on information gathered from the Corps and Michigan, Ohio EPA estimates that 

it can run the Section 404/401 program with approximately 50 employees. Ohio EPA 

devotes about 17 staff currently to the Section 401 program, so we would need to add 

an additional 33 staff. This is an additional cost of about $3 million. 

It is our understanding that the Corps devotes approximately 50 full time staff to 

implementing the Section 404 program in Ohio. Assuming these 50 staff are no longer 

needed in this program area, the Corps would realize a savings of over $5 million. 

Ohio's Experience Pursuing Assumption 

Ohio began investigating Section 404 program assumption in 2011. At this point we 

have initiated discussions with EPA, interviewed staff from Michigan on their experience 

as a state approved to administer the 404 program, requested information from the 

Corps, and started compiling staffing needs. We also initiated discussions with state 

legislators on pursuing revisions to our state law to authorize assumption. 

ASWM Actions to Encourage 404 Assumption 

During 2010-2011, ASWM coordinated with the Environmental Council of the States 

(ECOS) and EPA to convene a national Section 404 assumption workgroup. On July 

22, 2011, ECOS sent a letter to Nancy Stoner, U.S. EPA summarizing the results of the 

workgroup, including the following specific recommendations. The workgroup 

recommended that "training materials or outreach supported jointly by EPA and the 

USACE would facilitate state/federal partnerships and 404 program assumption by: 

• Improving state/federal staff understanding of the assumption process and its 

multiple benefits; 

• Encouraging cooperative working relationships between state and federal agency 

staff; 

• Clarifying the roles and responsibilities of each agency; 

• Assisting state and tribal agencies as they navigate through the assumption 

process; and, 

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• Increasing field staff understanding of the changes that occur in the state/federal 

programs following assumption. 

• Such materials could include web-based reference materials such as FAQs, 

handbooks, and so on, in addition to webinar or online training sessions (Brown 

2011)." 

In accordance with workgroup recommendations, the ASWM and ECOS have since 

completed a Section 404 Assumption Handbook for use by state and federal agencies. 

In addition to discussing the factors listed above, the handbook acknowledges that 

current provisions of the CWA tend to discourage 404 assumption in states having a 

high percentage of Section 10 waters, where the Corps of Engineers retains jurisdiction, 

including coastal states where tidal waters or major rivers systems are a major 

consideration under both state and federal law. Increased flexibility in negotiating state 

and federal roles in such waters could strongly encourage state program assumption. 

Ohio strongly supports this recommendation, as well as the other recommendations of 

the ECOS/ASWM workgroup. 

We also recommend that Congress specifically state in legislation that the Corps and 

EPA encourage and support states interested in receiving Section 404 assumption. 

Such support can go a long way to reduce the time and effort needed to prepare 

application materials needed for assumption. It also encourages federal agency 

cooperation in pursuing state assumption. At one time there was a congressional 

mandate to increase the number of states with CWA program delegation - 46 states are 

now delegated to implement the Section 402 National Pollutant Discharge Elimination 

System (NPDES) permit program. State assumption of Section 404 permitting is 

comparable to state delegation of Section 402 NPDES permitting. 

One way for the Corps and EPA to demonstrate support for states' Section 404 

assumption would be to develop a pilot project in cooperation with a state interested in 

pursuing assumption. The experiences encountered through the pilot project could 

6 
66 


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serve as examples to other interested states, and hopefully paving a smoother, faster 

road towards program assumption. 

Federal funds should also be allocated to states to support state implementation of the 

Section 404 program. Lack of funds continues to be a top deterrent for states 

considering assumption of the Section 404 program. Not only do states assume 

significant costs to develop the application materials, the state agency must also fund 

the work load assumed from the Corps. This work load includes project review, impact 

assessment, program enforcement and administration, and the assumption of new 

responsibilities for compliance with certain federal statutes (Fletcher 2001). 

Although Ohio is willing to take on the Section 404 permitting program without federal 

funding because of the strong desire to streamline environmental permitting, it only 

makes sense and is fair for a percentage of the Corps funding to be diverted to Ohio 

EPA. The additional cost to run the Section 404 program is estimated to be $3 million. 

Ohio, like other states, is facing financial problems and it is not fair for Ohio tax payers 

to pay this money when the federal government would be saving $5 million because the 

Corps would not have to spend this money. 

Ohio is willing to assume the Section 404 permitting program without federal funding 

because streamlining environmental permitting is a hig~ priority. However, the Corps is 

spending approximately $5 million per year on the Section 404 program in Ohio. If Ohio 

assumes the program, the estimated additional cost is $3 million per year. The federal 

government should allocate a portion of the $5 million in savings to Ohio EPA. 

In 2008, U.S. EPA conducted a survey of nine states in the process of pursuing 

assumption or had assumed the Section 404 program. The following bullets summarize 

a few of the survey findings: 

• "States spent an average of $225,000 to investigate assumption (EPA provided 

grants to 6 of the 9 states). 

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• 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 comprehensive 

programs already in place). 

• States that have assumed 404 feel that the combination of federal and state 

involvement makes for a more stable, consistent program (Hurld and Linn 2008)." 

Conclusion 

Ohio believes strongly that assuming the Section 404 program will significantly simplify 

the permitting process and result in substantial cost savings for business and regulatory 

agencies. 

Governor Kasich's desire is to improve the climate for business and job creation in Ohio 

while improving Ohio's environment. Simplifying the permit process for dredge and fill 

permits will reduce the regulatory uncertainty for business, reduce compliance and 

regulatory costs, and significantly reduce federal government costs by eliminating the 

need for federal agency reviews. Finally, a simplified process will allow faster permit 

reviews. 

We are requesting support for this effort and support for other states which are 

interested in or already in the process of assuming Section 404 assumption. We look 

forward to working with U.S. EPA and Corps on streamlining the effort and overcoming 

obstacles. 

We appreciate the grant support that the federal government has provided for 

development of state and tribal wetland programs; however we believe that a 

cooperative state and federal partnership should be financially supported in part with 

federal funds as are other delegated programs. This can occur through making U.S. 

EPA's state wetland program development grants (CWA Section 104(b)(3)) available to 

8 
68 


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be used for implementation in addition to development and establishing a pass through 

of funds from the Corps to the assumed states. 

Mr. Chairman, Members of the Subcommittee, I thank you for this opportunity to share 

the thoughts of Ohio EPA and the Association of State Wetland Managers on state 

Section 404 program assumption. I will be happy to answer any questions that you may 

have. 

References 

Association of State Wetland Managers and the Environmental Council of the States. 

Section 404 Program Assumption: A Handbook for States and Tribes. August 

2011. http://aswm.org/wetland-programs/s-404-assumption/1221-cwa-section404=program-assumption-a-handbook-for-states-and-tribes. 

Association of State Wetland Managers Clean Water Act Section 404 State Assumption 

Fact Sheets. 2010. 

http://aswm.org/pdf lib/cwa section 404 state assumption factsheets.pdf. 

Brown, R. Steven. 2011. The Environmental Council of the States letter to Nancy K. 

Stoner, U.S. EPA "Progress Report and Recommended Actions to Further 

Clarify Section 404 Assumption Application Requirements and Implementation by 

States and Tribes." July 22. 

http://aswm.org/pdf lib/ecos letter to epa on 404 assumption.pdf. 

Fletcher, Kristen M. 2001. "States Assuming Responsibility Over Wetlands: State 

Assumption as a Regulatory Option for Protection of Wetlands." Reprinted from 

Proceedings of the Sustainabi/ity of Water & Wetlands Resources Conferences 

2001. http://www.masgc.org/pdf/masgp/01-032.pdf. 

Hurld, Kathy and Jennifer Linn, U.S. EPA 2008. "Pursuing Clean Water Act 404 

Assumption: What States Say About the Benefits and Obstacles." Presentation 

given at ASWM Annual State/Federal Coordination Meeting, May 30, 2008. 

http://aswm.org/pdf lib/hurld.pdf. 

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ASSOCIATION OF CLEAN 

WATER ADMINISTRATORS 

1221 CONNECTICUT AVENUE, N.W., 2ND FLOOR 

WASHINGTON, DC 20036 

TEL: 202-756-0600 

FAX: 202-756-0605 

WWW.ACWA-US.ORG 

September 20, 2012 

MICHIGAN DEPARTMENT OF 

ENVIRONMENTAL QUALITY 

525 WEST ALLEGAN STREET 

LANSING, MICHIGAN 48933 

TEL: 517-373-1170 

FAX: 517-373-2040 

WWW.MICHIGAN.GOVIDEQ 

Written Testimony of William Creal 

Board Member, Association of Clean Water Administrators 

Chief, Water Resources Division, Micbigan Department of Environmental Quality 

United States House of Representatives 

Committee on Transportation and Infrastructure 

Subcommittee on Water Resources and Environment 

Regarding 

States Assumption of tbe Clean Water Act Section 404 Program: 

Enhancing Cooperative Federalism with the States 
70 


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ACWA&MDEQ 

Written Testimony of William Creal 

September 20, 2012 

Page 1 of6 

Good morning, Chairman Gibbs, Ranking Member Bishop, and Members of the Committee. My 

name is Bill Creal, Chief ofthe Michigan Department of Environmental Quality's (MDEQ) 

Water Resources Division (WRD). I have 34 years of experience implementing the federal 

Clean Water Act (CWA) programs and associated state laws. I also serve on the Board of 

Directors ofthe Association of Clean Water Administrators (ACWA). With me today is Kim 

Fish, Assistant Division Chief of the MDEQ's WRD. Kim brings 26 years of experience with 

federal CW A programs. 

I am honored today to testify on behalf of both the MDEQ and ACW A. Now over 50 years old, 

ACW A is the national, nonpartisan, professional organization representing the state, interstate, 

and territorial water quality control official responsible for the implementation of surface water 

protection programs throughout the United States. ACWA's members are on the front lines of 

CW A monitoring, permitting, inspection, compliance, and enforcement across the nation. We 

are dedicated to Congress' goal of restoring and maintaining the chemical, biological, and 

physical integrity of America's waters. 

As we know, the CW A is a sweeping statute enacted to "restore and maintain the chemical, 

physical and biological integrity of the Nation's waters."] To achieve this goal, Congress 

adopted a cooperative federalism approach, by which each level of government-federal, state, 

and local-has defined roles and responsibilities, and yet all must work together, collaboratively, 

in the pursuit of clean water.2 Several CW A programs were specifically designed by Congress to 

be delegated to, and administered by, the states. Most significantly, 46 states have delegated 

authority to administer the CW A Section 402 National Pollutant Discharge Elimination System 

program for point source discharges. 

By contrast, while the statute allows, under Section 404(g) and (h), for states to assume authority 

to administer the program which regulates the discharge of dredged or fill material into navigable 

133 U.S.c. § 1251(a) (2006). 

2 Federal Water Pollution Control Act Amendments, Pub. L. No. 92-500, 86 Stat. 816 (1972), reprinted in 

LEGISLATIVE HISTORY OF THE FEDERAL WATER POLLUTION ACT AMENDMENTS OF 1972, at 16879 (1972). 
71 


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ACWA& MDEQ 

Written Testimony of William Creal 

September 20, 2012 

Page 2 of6 

waters, including wetlands, only two states - Michigan and New Jersey - have this authority. 

Today I will share Michigan'S experience during its nearly three decades of experience 

administering Section 404 ofthe CW A. We have demonstrated significant success in achieving 

regulatory clarity, as well as cost savings as the administrator of this program. I believe our 

perspective will be helpful to the Subcommittee as it studies this area of the CW A and its 

implementation. 

Michigan is blessed by its water resources. The Great Lakes define the shape and character of 

our state with 3,288 miles of fresh water shoreline, more than any other state. In addition, 

Michigan has 11,000 inland lakes, 36,000 miles of rivers, and 5.5 million acres of wetland. Even 

before Michigan was a state, its residents recognized the importance of our water resources for 

transportation, hunting and trapping, agriculture, drinking water, commerce, and industry: 

The same year that Congress passed the CW A, Michigan passed a state lakes and streams statute, 

and then in 1979, passed a wetland statute with the expressed intention of assuming the CW A 

Section 404 Program. In 1984, Michigan became the first state to receive Environmental 

Protection Agency (EPA) approval to administer the CWA Section 404 Program. Over the past 

28 years, we have issued over 100,000 permits. We currently authorize about 4,000 projects 

annually under the 404 program, with no federal funding for program operation. Although 

limited funds are available for program development under CWA §104(b)(3) through the EPA 

State Wetland Program Development Grants, no federal funding is provided for the 

implementation of the Section 404 Program. 

The Section 404 Program in Michigan is administered through a combination of state laws. To 

maintain 404 authorization under 40 C.F.R. § 233.1 (d), state law must remain consistent with 

federal regulations, such as exemptions, permitting criteria, general permits, public notice 

procedures. However, the state has the flexibility to design the regulations to meet the needs of 

the state and its constituents. State assumption of the program provides benefits to both the 

regulated community and the citizens of Michigan. Prime examples ofthe benefits of 

Michigan's program are: 
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ACWA&MDEQ 

Written Testimony of William Creal 

September 20, 2012 

Page 3 of6 

• Michigan law provides a clear and consistent definition of regulated waters 

and regulated activities. Because of the ambiguity in federal law, the scope of 

regulated waters has been defined by the federal courts and has changed several 

times in the last decade. Similarly, federal law does not specifically define what 

activities are regulated. The federal agencies must rely on guidance documents 

and various court decisions to determine if some activities are regulated. The 

ambiguities in the federal regulations can often delay permit processing. Because 

Michigan law contains clear measurable criteria, the regulated community, the 

public, and state staff can easily determine if a waterbody or wetland is regulated 

and what activities within those waterbodies are regulated. 

• Faster permit decisions. Unlike the federal permit program, Michigan's permit 

processing is subj ect to deadlines mandated by state statute. As a result, we 

frequently make permitting decisions on individual permits weeks or months 

sooner than the United States Army Corps of Engineers (Corps); however, our 

decisions on general permits, which are the smaller routine projects, are about the 

same. As an example, a wetland delineation and jurisdictional decision for 

expansion of a nuclear power plant on the shore of Lake Erie, clearly a very large 

and complex project, took the MDEQ 45 days to complete, and took the Corps 

over 700 days. This determination was just the first step in the permitting process 

for this project. 

• Reduces the regulatory burden for permit applicants. Michigan operates a 

consolidated joint permit application process. Applicants submit one application 

and receive review and authorizations under multiple state regulations. The state 

coordinates with the Corps when required, reducing duplication and applicant 

confusion. This process results in a more efficient, cost effective, and streamlined 

permitting process for applicants. 
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ACWA&MDEQ 

Written Testimony of William Creal 

September 20, 2012 

Page 4 of6 

• Provides the regulated property owners with better access to decision 

makers. Michigan has staff located in ten offices throughout the state that are 

available to meet with landowners to review applications, explain decisions, and 

provide pre-application consultations. 

• Provides more public oversight of regulatory decisions. Michigan law requires 

public noticing and an opportunity for interested persons to request public 

hearings on all individual permit applications. We normally hold public hearings 

on about four percent of the individual permit applications; the Corps rarely holds 

public hearings. 

• Fair and impartial appeal process. Permitting decisions can be appealed under 

Michigan's Administrative Procedures Act. Appeals are adjudicated by an 

independent, third-party, administrative law judge. The Corps' appeal process 

consists of appealing the permit decision to a higher ranking individual within the 

Corps. 

Although Michigan has been able to run a successful 404 program for nearly three decades, the 

sustainability ofthis program turns on the issue of funding. For the last 28 years, Michigan has 

administered the 404 program with primarily state funds from application fees and the state 

general fund. However, over the past decade, the MDEQ has seen a decline in state general 

funds from $120 million to $20 million, forcing many difficult discussions and decisions 

regarding what programs the state should continue to operate. 

As part of Michigan's budget cuts in 2009, Michigan's governor and several legislators proposed 

to eliminate Michigan's wetland program thereby giving up the state's assumption ofthe 404 

program as a means of saving state general fund money. Strong support from a diverse group, 

including regulated entities such as realtors, home builders, farmers, and manufacturers, along 
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ACWA& MDEQ 

Written Testimony of William Creal 

September 20, 2012 

Page 5 of6 

with environmental groups prevented this from happening. As a result of the strong support for 

the program, the Michigan legislature found temporary funding for the program through 2012. 

The Michigan legislature also established an advisory council in 2009 to evaluate the program, 

ensure the program remains consistent with CW A requirements, and to make recommendations 

regarding appropriate funding. The council consists of 22 members representing business, 

industry, consultants, state and local governments, environmental groups, and academia. Several 

federal agencies, including the Corps and EPA, have participated in the council serving as a 

resource regarding the CW A and federal procedures. The council recently completed its work 

and made several recommendations to our governor and legislature. The council evaluated 

Michigan's current funding structure along with several potential alternative options, including 

increasing application fees. The council determined that increasing application fees was not a 

viable option; it would make fees umeasonably high and unaffordable for many applicants and 

would require legislative action which would be politically difficult. Therefore, the council has 

recommended continuing to fund Michigan's wetland program with a combination ofreasonable 

fees, state general fund or other state obligated funds, and to pursue federal funding to support 

continuation of 404 assumption. 

We estimate that Michigan is saving the federal government between $3 and $5 million each 

year by operating the 404 program. Without Michigan's program, the Corps has estimated that it 

would need that amount of additional money annually to hire additional staff and open more 

offices throughout the state. Not only do we save the federal government's finite dollars, we are 

able to administer the program at a lower cost and with a greater level efficiency, allowing 

projects that provide vital economic growth to our communities to move forward more quickly. 

As we mentioned above, there are many advantages to the public and the regulated community 

when states assume the Section 404 Program. Additionally, many states have contacted 

Michigan seeking advice on how to asswne the program. As the other witnesses demonstrate, 

states are interested in assuming the 404 program. 
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ACWA&MDEQ 

Written Testimony of William Creal 

September 20, 2012 

Page 6 of6 

However, we need strong diversified funding to keep this program in Michigan as a state run, 

successful program, and to make 404 assumption possible for interested states. One possible 

avenue to explore is for Congress to enact, and appropriate funds, for a grant program to make 

up to $2 million per year for ten years available to states that assume the 404 program. If ten 

states assumed the program with this incentive, the annual cost to the federal government would 

be $20 million a year. The annual savings to the federal government would be upwards of $30 

million. 

States would have a choice regarding whether to seek assumption of this program, as capacity 

even with federal funding would vary due to state priorities, expertise, staffing, facilities, and 

other resource considerations. However, ifthe Michigan experience is representative, state 

administration of the 404 program could benefit states, the regulated community, and the federal 

government through streamlining and great cost efficiencies. 

Mr. Chairman, Ranking Member Bishop, and Members of the Subcommittee, I thank you for the 

opportunity to provide this testimony. We look forward to working with you as you continue to 

explore this issue. Please do not hesitate to contact the State of Michigan or ACWA for further 

insights on this issue. I would, of course, be happy to answer any questions that you may have. 

* * * * * * 
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Written Testimony of Todd L. Ambs 

President, River Network 

September 20, 2012 

United States House of Representatives 

Committee on Transportation and Infrastructure 

Subcommittee on Water Resources and Environment 

Regarding 

States Assumption of the Clean Water Act Section 404 Program: 

Enhancing Cooperative Federalism with the States 

River Network 

209 SW Oak Street, Suite 300 

Portland, OR 97204 

503241-3506 

rivcrnetw"ork.org 
77 


Insert offset folio 97 here 76147.097

Good morning, Chainnan Gibbs, Ranking Member Bishop, and Members of the Committee. My 

name is Todd Ambs. I currently serve as President of River Network, a national conservation 

organization. For 24 years, River Network has focused on helping the hundreds of river and 

watershed groups around this nation to do their work better. In that capacity, I travel all over this 

nation working with our several hundred partner groups and certainly have a working knowledge of 

the issues across the country relative to requests to dredge and fill the lakes, rivers and wetlands of 

this nation and the regulatory tools available to monitor, assess and approve or deny such actions. 

But I offer my thoughts today with a primary focus on how the State of Wisconsin approaches these 

issues. My insight regarding this matter comes from working in the environmental field for more 

than 30 years and, from having the honor of serving as the Water Division Administrator at the 

Wisconsin Department of Narural Resources for eight years (2003-2010). 

As we know, the Federal Water Pollution Control Act Amendments of 1972 (better known as the 

Clean Water Act (CWA), is a sweeping statute enacted to "restore and maintain the chemical, 

physical and biological integrity of the Nation's waters.'" To achieve this goal, Congress adopted a 

cooperative federalism approach, by which each level of government-federal, state, and local-has 

defined roles and responsibilities, and yet all must work together, collaboratively, in the pursuit of 

clean water - from the headwaters of our rivers and streams to their outlets downstream in the 

nation's prized estuaries, bays, and sounds.' Several CWA programs were specifically designed by 

Congress to be delegated to, and administered by, the states. Most significantly, 46 states have 

delegated authority to administer the CWA Section 402 National Pollutant Discharge Elimination 

System program for point source discharges. 

'33 U.S.C. § 1251(a) (2006). 

2 Federal Water Pollution Control Act Amendments, Pub. L. No. 92-500, 86 Stat. 816 (1972), reprinted in 

LEGISLATIVE HISTORY OF THE FEDERAL WATER POLLUTlON ACT AMENDMENTS OF 1972, at 16879 

(1972). Regarding the geographical extent of jurisdiction, see e.g., Senate Committee on Public Works, S. 

Rep. No. 92-414, 92nd Cong., 76, 77 (1971); S. Rep. No. 95-370, at 75 (1977); Sen. Chafee, 123 Congo Rec. 26716-

17 (daily ed. Aug. 4, 1977); Sen. Baker, 123 Congo Rec. 26718-19 (daily ed. Aug. 4, 1977). 

2 
78 


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By contrast, while the statute allows, under Section 404(g) and (h), for states to assume authority to 

administer the program which regulates the discharge of dredged or fill material into navigable 

waters, including wetlands, only two states - Michigan and New Jersey - have this authority. 

Today, I will share some of Wisconsin's experience over the last four decades working with the 

various aspects related to Section 404 of the CW A. I will share some background on Wisconsin's 

assessment of the pros and cons of asking for full assumption of authority to administer the 

program, some ideas regarding alternative approaches to full assumption and some cautions for the 

Committee to consider as you investigate this important regulatory topic. 

Wisconsin is blessed with abundant natural resources. We have 15,000 lakes, 84,000 miles of rivers 

and streams, 1,100 miles of Great Lakes shoreline and enough groundwater that if it was sPFead 

evenly across the state it would be 100 feet deep. In addition, despite the fact that we have lost 

approximately 50% of our wetlands in the last 200 years, we still have more than 5.3 million acres of 

these critical freshwater resources. 

We also have a proud conservation tradition in Wisconsin, with broad bi-partisan support for strong 

protections of our natural resources. This tradition is fostered in part due to the critical role that 

healthy natural resources play, not only in the quality of life for Wisconsinites, but also for a healthy 

economy in the state. Tourism, for example, is the third largest industry in the state, generating $13 

billion a year. Much of that industry exists because of the plentiful, healthy, natural resources that 

draw people to recreate in Wisconsin. 

Wetland Permitting Process in Wisconsin 

Under the federal Clean Water Act, most activities that involve grading, filling, removing, or 

disturbing the soil in a wetland-such as residential construction, road building, and pond 

creation-require approval from both DNR and the Army Corps of Engineers. DNR is also 

authorized under 2001 Wisconsin Act 6 to regulate activities in small, isolated wetlands that are not 

5ubject to federal permitting requirements. 

DNR regulates Wisconsin wetlands as part of a larger waterway permitting program. In FY 2005-06 

when the Wisconsin Legislative Audit Bureau conducted an audit of the Wisconsin Wetlands 

3 
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Program, an estimated 19.3 full-time equivalent (FTE) staff performed wetland permitting, 

enforcement, mapping, policy coordination, and other regulatory activities. 

Expenditures for these activities were estimated at $1.75 million at that time.' 

Question of 404 Assumption a Recurring Theme 

Over the years, the State of Wisconsin has looked at the question of assumption of this program and 

for a variety of reasons; the state has always chosen to not pursue this approach. As far back as 

1991 and again in 1993, the issue was reviewed by the WDNR. Specifically, a 1993 DNR report 

noted that doing so would simplify the wetland permitting process. However, the report also 

identified several barriers, including the need for statutory changes to recognize the State's 

jurisdiction over non-navigable waters and a lack of federal funding to implement the program. 

Review of Wisconsin Program in 2006-2007 Most Comprehensive 

As mentioned earlier, in May 2007 the Wisconsin Legislative Audit Bureau issued a full audit of the 

Wisconsin Wetlands Program. As Water Division Administrator, I was heavily involved in the 

process. Although the audit was generally positive, the agency was specifically asked to address the 

question of state assumption of the 404 program. 

The request in the Audit report read; "Evaluate the fiasibility and advantages of assuming the fideral wetland 

permit program, as allowed under Section 404 of the Clean Water Ad with an estimate of the required staffing levels, 

anticipated program msts, and effocts on wetland resotlms. "I 

On December 18, 2007, the Secretary of the Wisconsin DNR responded to this request and several 

others. Much of the response is provided below verbatim for the record. 

"]:Ve have investigated the fiasibility of the state assuming the fideral 404 permit program in the past and again in 

respoflSe 10 the audit request. We ,vntinue tofind the fiasibility of asStiming the fidera! program low due significant 

bamers that involpe state law changes and the lack offideral fimding available to states for implementation. Our fiscal 

estimate and staffing needs for fidem! program imp!ementation include an annual budget inmase of $1,047,300 and 

'Report 07-6, May 2007, An Evaluation of Wetland Regulatory Programs, Wisconsin Legislative Audit Bureau, 

Pages 3-4. 

4 Ibid., Pg. 86 

4 
80 


Insert offset folio 100 here 76147.100

an additional 16.6 filii time employees. We have also Jound state assumption would not result in additional protection 

oj Wisconsin :r wetland resount, since all wetlands in Wisconsin are a!reac!J protected under either currentfoderal or 

state laws. " 

" .... While we Jound potential benefits oj assumption, we I'Ontinue to find the fiasibiliry oj assuming the fideral404 

program low due to inadequate state jurisdiction and limited fimding and staffing. Furthermore, state aHumption 

would not result in additional protettion ojWisl'Onsin 's wetland resource, sim'e all wetlands in Wisconsin an alreac!J 

protected under either current fidem! or state laws. " 

" .. . It is important to note that the fidera! government through the U.S. Army Corps ojEngineers ntains permit 

authoriry over waters traditionalfy tmd Jor commercial navigation, defined as 5 eetion 10 waters. A fiw examples 

include the Gnat Lakes, Mississippi River, St. Croix River and the Wisconsin River. The state assumption approval 

process is coordinated ~y the Em~'ronmental Protection Agenry and states appfying mtlst have state law that is as 

protetlive as the fideral law. 

When a state assumes the fideral404 permit program, permit stnamlining should occur. Applicants Jor most 

watenvtry and wetland permits are no longer nq1lind to obtain a separate fideral permit; onfy the state permit and 

standards appfy. Stale "assumption" combines the fidera! and state permit promses mating one set oj permit 

standards. This combination should eliminate applicant I'Onfosion between fideml and state reqmnments that mtry 

appear to be different. While ass1lmption should stnamline the permit procm, applicant tonfosion mtry nmain becatlse 

Section 10 applicants an still nquind to obtain fideral permits Jor projects associated with 5 edion 10 waters. 

In order to asstlme the fidera! 404 permit program, state law must be at least as protective as the existingfidera! law 

and if the state chooses, can be more protective. Although WisconJin currentfy has protectiz'e wetland and waterwtry 

laws, severa/law ,hanges would be nquit~d to ensun I'OnsistCitry with the existingJecleral404 permit program. "j 

5 Wetlands Audit Report Follow-up Letter, from WDNR Secretary Matt Frank to Legislative Audit Committee CoChairs, December 18, 2007, Pages 10-11. 

5 
81 


Insert offset folio 101 here 76147.101

Adequate Funding Remains an Impediment to Assumption 

Today, many of those law changes have occurred in Wisconsin so that is less of an impediment to 

assumption in the state. However, Frank's letter goes on to address one of the most critical 

challenges for any state considering 404 assumption - money. 

"To asStime the fideral permit program, DNR must assume the additional duties associated with the jederal permit 

program implementation. To determine what additional work the Department would take on, we obtained 2006 data 

from the Corps St. Patll District, the office currently mponsible for implementing the 404 permit program in 

Wisconsin. We compared Corps data and state data, and estimated hOUTS to perform additional tasks, to determine 

an approximate alSt associated with assumption. To implement the fideral program in Wisconsin we have estimated 

an annual inmase of approximately $1,04 7,300 with an additional 16.6 full-time employees ... " 

Frank's letter then went on to note, "tVe have taken many steps to eliminate agency duplication of effort and 

{onft/sion for the applicants. The major benefit resultingfrom state assumption is the potential Jor permit streamlining 

for permit applkants. Recogni::jng this benefit we have worked with the Corp!" to make the permit process as seamless 

as possible for the applimnt. ,Ii 

The letter then went into some detail regarding the steps being taken to streamline the permit 

application process in Wisconsin. As a result of those actions and others since that time, the 

Wisconsin wetlands program appears to be working well. In fact, as I noted in testimony before the 

Wisconsin State Senate earlier this year: 

• As of 2010, 94% of all wetland permit applications were approved by the department. 

• Two acts passed in 2010, Act 373 and Act 391, addressed key needs in terms of more 

wetland notification and identification services and directed the Department to move 

forward with a general permit. 

• No significant economic development projects have been stopped because of onerous 

wetland determinations. 

'ldid., Pages 11-12 

6 
82 


Insert offset folio 102 here 76147.102

• The department received a very detailed and quite favorable audit from tbe Legislative Audit 

Bureau just five years ago. 

The DNR Wetlands Team has one of tbe most tborough and specific wetland strategy and 

action plans that I know of at the state regulatory level. In fact Reversing the Loss, as tbe plan 

is called, should be held up as a model for how to balance tbe need to protect wetlands and 

respond to regulatory needs. 

Assumption Not the Only Way to Have Sn:ong Program 

The point here is not to in any way denigrate tbe efforts in Michigan or New Jersey, where state 404 

assumption has already occurred, or to suggest that efforts underway in states like Ohio and Oregon 

to move toward state assumption are witbout merit. 

What I am suggesting is tbat 404 assumption is far from tbe only tool available to states tbat wish to 

have a· streamlined, yet effective program to protect some of our most precious natural resources 

our waters. 

It is also wortb noting tbat in addition to tbe funding challenges associated witb 404 assumption, 

tbere continues to be otber issues tbat may this choice problematic. The Association of State 

Wetland Managers has articulated some of tbem before. Those challenges include but are not 

limited to: 

Need to demonstrate strict consistency with federal requirements. Some states find 

it difficult to demonstrate tbat tbeir program is arleast. as stringent as all federal program 

requirements, especially where the framework for state and federal laws differs 

significantly. 

• Need for broader political/public support. Some states/tribes are reluctant to assume 

responsibility for a program tbat has been developed under federal law. Uncertainties in 

tbe public's mind about how tbe program would operate if run by tbe state rather tban tbe 

federal government have led to opposition to assumption in some states. In addition 

7 
83 


Insert offset folio 103 here 76147.103

states or tribes may have greater needs for use of public funds in other program areas. 

• Need for Clarification of Current Assumption Requirements. In part because only 

two states taken over the Section 404 program there is a need for additional clarification 

from EPA with respect to certain program requirements. Current Section 404 program 

regulations are quite complex, particularly in terms of the definition of jutisdiction, 

activities regulated, permit review criteria, and permit exemptions. Some issues are 

addressed on a case by case basis when a state or tribe begins putting together an 

assumption application. Finally, the current uncertainty over the extent of Waters of the 

U.S. under the Clean Water Act may create uncertainty over what waters in the state must 

be regulated. 

As the Association notes above, the need to make sure that a state considering assumption has laws 

that are as stringent as the federal government is a most important requirement. Any move to 

enhance the ability of states to undertake this program must continue to emphasize this component. 

In our effort to find efficiencies in the permitting process, we should never lose sight of the 

fundamental need to adequately protect these critical resources. 

Transparency and Public Involvement Critical 

States that undertake these programs should also be held to a high standard when it comes to 

transparency, public involvement and the ability for substantive review of permitting decisions. 

Michigan appears to have a very good system in this regard as my former colleague will note in his 

testimony. Some states however, make it difficult to request a public hearing, receive notices about 

permit applications and/or severely limit aggrieved parties in the permit appeals process. In 

addition, it would be preferable if a state that assumes the program has a citizen suit provision at the 

state level, since legal interpretations vary regarding whether this critical Clean Water Act provision 

continues to apply when a state assumes the program. 

Clear Guidelines Are Essential, But Currently Lacking 

Finally, I want to emphasize the need for clear guidelines regarding what waterbodies come under 

Clean Water Act jutisdiction. This clarity is essential for state agencies to consistently and efficiently 

implement Clean Water Act programs. It is also essential for them to understand where they must 

8 
84 


Insert offset folio 104 here 76147.104

expand state programs in order to protect valuable water resources no longer being protected under 

the Clean Water Act. Wisconsin acted quickly to fill the gap created by the United States Supreme 

Court SW ANCC decision in 2001. Within months that legislature passed a law to provide 

protections for these so-called isolated wetlands. The existence of a strong program in Wisconsin 

also ameliorated the impacts of the Rapanos decision. Nonetheless, my experience while Water 

Division Administrator was that the single most significant reason for delays in wetland permitting 

during my tenure was the difficulty with detennining jurisdictional wetlands in the wake of these two 

Supreme Court cases. I can only imagine the difficulty - and resulting risk to vulnerable wetlands, 

lakes, and streams - in states with less developed programs. 

In my view a single, clear set of guidances from the federal government is the only way to make sure 

that this federal law, the Clean Water Act, is applied fairly and uniformly across the country. 

Wetlands provide numerous public benefits and ecosystem services including fish and wildlife 

habitat and water management. Protection from natural hazards including flooding, storm surges, 

and drought, as well as protection of drinking water supplies, are just a few of the benefits that these 

complex water systems, sometimes called nature's kidneys, can provide. Over the last forty years, 

Congress has consistently recognized the close link between land use decisions made by the states 

and effective protection of wetlands, lakes, and streams. 

For these reasons and more, any effort to promote better state-federal coordination, or when 

appropriate state assumption, of the responsibilities contained in Section 404 of this law, is a most 

useful exercise. But adequate funding, consistent state laws, transparent processes and clear 

direction from the federal government regarding how the law is applied will continue to be 

important foundations if the exercise is to produce healthier water bodies in this nation. 

Mr. Chairman, Ranking Member Bishop, and Members of the Subcommittee, I thank you for the 

opportunity to provide this testimony. We at River Network look forward to working with you as 

you continue to explore this issue. Please do not hesitate to contactme or my staff for further 

insights on this issue. I would, of course, be happy to answer any questions that you may have. 

9 
85 


Insert offset folio 105 here 76147.105

DEPARTMENT OF THE ARMY 

COMPLETE STATEMENT 

OF 

THE HONORABLE JO-ELLEN DARCY 

ASSISTANT SECRETARY OF THE ARMY 

(CIVIL WORKS) 

BEFORE 

THE COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT 

UNITED STATES HOUSE OF REPRESENTATIVES 

ON 

State Assumption of the Clean Water Act Section 404 Program: 

Enhancing Cooperative Federalism with the States 

September 20, 2012 
86 


Insert offset folio 106 here 76147.106

Chairman Gibbs, Ranking Member Bishop, and Members of the Subcommittee, I am 

Jo-Ellen Darcy, Assistant Secretary of the Army (Civil Works). Thank you for the 

opportunity to discuss the Army Corps of Engineers (Corps) regulatory authority under 

Section 404 of the Clean Water Act (CWA). I will specifically discuss the Corps' role 

and involvement when a State wishes to assume the Section 404 program and makes 

final Section 404 permit decisions. I will also discuss the Corps' experiences in the two 

states, Michigan and New Jersey, which have assumed the 404 program, followed by 

my observations on a path forward for additional States wanting to assume the 

program. 

Background on Clean Water Action Section 404 and Section 10 of the Rivers and 

Harbors Act 

Section 404 of the CWA established a program to regulate the discharge of dredged or 

fill material into waters of the United States. Since 1972, the Corps has regulated 

discharges of dredged or fill material into waters and wetlands related to activities such 

as highway construction; residential, commercial, and industrial developments; energy 

projects; and a variety of other projects. Section 10 of the Rivers and Harbors Act of 

1899 gives the authority to the Corps to ensure that there are no obstructions to the 

navigable waters of the United States. Under this authority, the Corps has regulated 

work and/or structures within navigable waters related to activities such as: construction 

of piers, jetties, and weirs; dredging projects; and other such projects. The Corps had 

been regulating activities in the Nation's navigable waters for over 70 years at the time 

of the passage of the CWA. 

Discharges of dredged or fill material into waters, including wetlands, of the United 

States as well as work or structures within navigable waters require authorization from 

the Corps. Activities that are similar in nature and that are expected to cause no more 

than minimal effects, individually and cumulatively, as described in Section 404(e) of the 

CWA, may be authorized by a "general permit." General permits protect the aquatic 

environment, but also provide applicants with a quicker authorization process because 

impacts are anticipated to be minor. 

Activities that do not meet the criteria for a general permit are typically evaluated under 

the "standard individual permit" procedures. These procedures include issuance of a 

public notice; preparation of an environmental document in accordance with 

requirements of the National Environmental Policy Act; and, for applications that involve 

the discharge of dredged or fill material, application of the "Section 404(b)(1) 

Guidelines" developed by the EPA in conjunction with the Corps. Regulatory program 

personnel in Corps districts work with applicants to avoid and minimize impacts to 

waters of the United States and to develop satisfactory compensatory mitigation plans 

for unavoidable impacts to aquatic resources. For these individual permit applications, 

the Corps conducts a full public interest review balancing the anticipated benefits 

against the anticipated impacts. The Corps can only authorize those activities that are 

not contrary to the public interest, and may only authorize the least environmentally 

damaging practicable alternative, so long as that alternative complies with other aspects 
87 


Insert offset folio 107 here 76147.107

of the Guidelines and does not have other significant adverse environmental 

consequences. 

The Secretary of the Army, through the Chief of Engineers, has delegated responsibility 

for making final decisions on permit applications to the commanders in the 38 Corps 

districts. The regulatory program is implemented day-by-day at the district level by staff 

that knows their regions and resources, and the public they serve. Nationwide, the 

Corps makes tens of thousands of final permit decisions (both general and individual 

permits) annually. In all but the very rarest of circumstances, these decisions are 

appropriately made at the district level with no review of those decisions by Corps 

division (regional) or headquarters staff. When implementing the Corps regulatory 

program, the Corps is neither an opponent nor a proponent for any specific project the 

Corps responsibility is to make fair, objective, and timely permit decisions. 

State Assumption Authority Process under Section 404(g) of the Clean Water Act 

Under Section 404(g) of the Clean Water Act, Congress gave the StatesfTribes the 

authority to administer individual and general permit program for the discharge of 

dredged or fill material into waters within their jurisdiction under State law or under an 

interstate compact. Section 404(g)(1) provides that States may administer such 

programs "for the discharge of dredged or fill material into the navigable waters (other 

than those waters which are presently used, or are susceptible to use in their natural 

condition or by reasonable improvement as a means to transport interstate or foreign 

commerce shoreward to their ordinary high water mark ... ) ... " The State Program 

Regulations are found at 40 CFR Part 233. The State must provide evidence that the 

laws of the State provide adequate authority to carry out the prescribed program. The 

process for approval is carried out by the EPA who has the final authority on CWA 

Section 404 jurisdiction, and who coordinates with the Corps, the U.S. Fish and Wildlife 

Service and the National Marine Fisheries Service during the approval process. The 

Corps and the Services can provide comments to the EPA to inform their review of the 

State program to determine its adequacy in fulfillin,s the requirements of the CWA 

Section 404 program. The program that a StatefTribe implements must ensure that the 

laws of the StatefTribe provide adequate authority to carry out the CWA Section 404 

program. The materials that are required to be provided to the EPA for the approval of 

an assumption program are: a letter from the Governor; a complete project description; 

a statement from the state Attorney General; a Memorandum of Agreement with the 

Regional Administrator of the EPA; and a Memorandum of Agreement with the 

Secretary of the Army. The State must show that their program would cover all waters 

they are eligible to assume, that it would regulate at least the same activities, that it 

would provide for sufficient public participation, that it would ensure compliance with the 

Section 404(b)(1) guidelines, and that it would have adequate enforcement authority. 

There are only two States that currently have assumed the CWA Section 404 authority, 

Michigan and New Jersey. 

If States approach the Corps regarding the assumption process, the Corps notifies the 

State that the EPA is the lead Federal agency and the Corps will coordinate with the 

2 
88 


Insert offset folio 108 here 76147.108

EPA on the process. The Corps will provide information but the EPA has the final 

decision authority. 

What are the Limits of State Assumption With Respect to the Corps Authority? 

Section 404(b)(1) States that no CWA Section 404 permit will be issued if, in the 

judgment of the Corps, anchorage and navigation of any of the navigable waters would 

be substantially impaired by the activity, even in States that have assumed the CWA 

section 404 program. 

Thus, there are activities in certain waters where the Corps retains regulatory authority 

even in States that have assumed the CWA Section 404 program. The Corps retains 

authority in waters which are presently used, or are susceptible to use in their natural 

condition or by reasonable improvement as a means to transport interstate or foreign 

commerce shoreward to their ordinary high water mark, including all waters which are 

subject to the ebb and flow of the tide shoreward to their ordinary high water mark, 

including wetlands adjacent thereto. The Corps retains permitting authority in these 

waters (and their adjacent wetlands), for Section 404 activities. These can be major 

activities, such as large dredging activities, beach nourishment activities, and ferry 

docking structures. All Section 10 authority is retained by the Corps in order to review 

and determine whether any proposal may potentially impede or interfere with 

navigation. It is essential that the Corps maintain regulatory authority over these waters 

to ensure that essential Federal functions such as national defense, protection of 

commercial navigation, and flood control are considered from a broad perspective. 

Across the country there is great variability in the types of waters in individual States 

with some States having significant numbers of waters for which the State cannot 

assume 404 permitting authority while other States may have significantly fewer. This 

variability can playa role in the feasibility and effectiveness of State assumption. 

The EPA is responsible for oversight of a state-assumed CWA Section 404 Program. In 

this role, the EPA directly reviews a small percentage of the applications processed by a 

State that has assumed the program. The permit applications directly reviewed by the 

EPA generally include those for projects with the largest impacts or those with potential 

impacts to especially sensitive natural resources. 

State Assumption Regulatory Framework and Interagency Coordination 

Michigan: In 1984, Michigan became the first state to assume the CWA Section 404 

program. The program is administered by the Michigan Department of Environmental 

Quality. EPA waives review of most activities except for certain classes or categories 

of discharges, such as draft general permits and discharges potentially affecting 

endangered or threatened species. For activities that are not waived, Michigan 

transmits a copy of the permit application to the EPA, which is the primary contact for 

the State on State Section 404 permits. The Corps may comment on public notices 

issued by the Michigan Department of Environmental Quality, but does not normally 

play any other direct role in Michigan's 404 Program. When the EPA does review a 

3 
89 


Insert offset folio 109 here 76147.109

permit application, they transmit a copy to the appropriate Corps district office and US 

Fish and Wildlife Service office for review and comment. 

Michigan revisited and modified their MOA with EPA in 2011 to ensure further clarity 

and address inconsistencies between the State and Federal regulations. The Corps 

participated in the review process to ensure consistent program implementation in 

assumed and non-assumed waters. The Corps Detroit District has noted that the 

District workload has been reduced by Michigan state assumption. In general, we enjoy 

good coordination and a positive relationship with the State. 

New Jersey: New Jersey's program began in 1994 and is administered by the New 

Jersey Department of Environmental Protection. Consistent with the EPA's regulations, 

EPA waives review of most activities, except for a few categories of activities, such as 

major discharges that impact greater than five acres of wetlands or those that may 

affect threatened or endangered species. Unless review has been waived, the EPA 

provides a copy of the public notice for any complete permit application to the 

appropriate Corps district office, US Fish and Wildlife Service office and National Marine 

Fisheries office and follows a review and comment process like that described in 

Michigan. The most prominent and challenging factor in the New Jersey assumption 

process was the Endangered Species Act (ESA). Under a memorandum of 

Understanding in New Jersey, the state coordinates with the U.S. Fish and Wildlife 

Service (FWS) on permits that may affect threatened or endangered species to avoid 

any adverse effects. 

Other States: There are other states including Minnesota, Oregon, Florida, Ohio, and 

Virginia that are considering assuming the Clean Water Act Section 404 program. 

When requested, the Corps has provided input and expertise on the CWA Section 404 

Program to the EPA and States during the program assumption review process. In the 

past, other states including Alabama and Kentucky, began the initial review process but 

did not carry through to assumption. 

Florida is a state that reviewed the assumption of the CWA Section 404 program and 

expressed interest in assuming both CWA Section 404 and Section 10 of the Rivers and 

Harbors Act authority. There is no legal authority for states to assume Rivers and 

Harbors Act authorities from the Corps. In addition, , we understand that the State 

encountered challenges related to the Endangered Species Act and the State's need to 

make changes to its regulations under their Environmental Resource Permitting process 

to assume the CWA Section 404 program. In light of these challenges, the State 

instead determined that a State Program General Permit (SPGP) would be a better 

solution as they have a large amount of traditionally navigable waters and their adjacent 

wetlands that require Corps permit evaluation. From January 2000 through September 

2011, the Florida Department of Environmental Protection has authorized 23,641 

actions under the SPGP. 

4 
90 


Insert offset folio 110 here 76147.110

Types and Totals for Issued Corps Permits in Assumed Waters States of MI and 

NJ 

The Corps plays an active role in permitting in the traditionally navigable waters and 

their adjacent wetlands of Michigan and New Jersey as a result of its authority under 

Section 10 of the Rivers and Harbors Act and its retained CWA section 404 authority in 

those waters. Most of the permits/verifications that the Corps issues in these States are 

activities that require authorization under both Section 10 and Section 404. The Corps 

coordinates its permit application review responsibilities closely with the State to ensure 

that the State's views are considered in the Corps' permitting action. In Michigan and 

New Jersey, the Corps district and state program staffs benefit by sharing workload in 

those states. 

Over the last 10 years, the Corps Detroit District has authorized approximately 11,000 

General Permits and 1,000 Standard Permits with approximately 55% (-6,000) involving 

Section 404 activities (-5,000 General Permits and -1,000 Standard Permits) and the 

remainder involving Section 10 activities. The two Corps Districts with responsibility for 

New Jersey (New York District and Philadelphia District) authorized approximately 

4,000 General Permits and 600 Standard Permits with slightly over 30% (-1,300) 

involving Section 404 activities (-1,200 General Permits and -100 Standard Permits). 

Challenges 

Some of the challenges to State assumption of the 404 program include: 

• Funding: Some States may lack funding to implement the program; 

• Revisions to Existing Laws and Requirements: Some States may need to 

revise or expand existing laws or requirements to match Federal requirements in 

order to assume the program; 

• 

• States with Significant Coastal Waters: Some States with significant coastal 

waters might be willing to consider assuming the 404 program if they could also 

assume the Section 10 program. However, under current law States cannot 

assume traditionally navigable waters (and their adjacent wetlands) under CWA 

Section 404, nor can they assume the Section 10 program; 

• Jurisdiction: In some states, there may be differences in the waters covered 

and how these waters are defined by Federal law and applicable State laws; and 

• Public Misconceptions: Misunderstanding about agency roles and procedures 

may lead to misunderstandings concerning how assumption would change these 

procedures. 

5 
91 


Insert offset folio 111 here 76147.111

Alternatives to Assumption 

As noted above, we have heard from some States that have a large portion of coastal 

waters that they see limited benefit from CWA Section 404 assumption because the 

Corps would still retain jurisdiction pursuant to Section 10 of the Rivers and Harbors Act 

and of traditionally navigable waters under CWA section 404 after State program 

assumption, 

In these circumstances, states have another option to improve efficiency and 

effectiveness in traditionally navigable waters and their adjacent wetlands without 

pursuing CWA Section 404 assumption, States could work with the Corps to develop 

State Program General Permits (SPGP), which can include many of the activities that 

are covered in a CWA Section 404 permit An SPGP is a form of Corps programmatic 

general permit; it is authorized by Section 404(e) and defined in 33 CFR Section 

325,5(c)(3), The SPGP can be crafted to include pre-authorization without the need to 

contact the Corps or may only require a pre-construction notification, which can 

significantly improve the decision-making timeframes, These can provide significant 

benefits and provide an option for State or tribal wetland permit programs, This can 

also be used as the first step in moving towards assumption, SPGPs can expedite 

CWA Section 404 authorization but still allow federal oversight and safeguards to 

ensure the aquatic environment is being adequately protected, 

States have constitutional authority to adopt and implement State regulatory programs 

to protect their aquatic resources, The Corps strives to minimize or eliminate 

duplication between Federal and State programs by using cooperative Federal/State 

joint permit processing and State program general permits, Short of state assumption, 

States also have authority under the Clean Water Act Section 401 and the Coastal Zone 

Management Act to allow them to add conditions to protect aquatic resources and 

complement and influence the CWA Section 404 program, 

Thank you again for the opportunity to be here today, I will be happy to answer any 

questions you may have, 

6 
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Insert offset folio 112 here 76147.112

Honorable Bob Gibbs 

DEPARTMENT OF THE ARMY OFFICE OF THE ASSISTANT SECRETARY 

CIVil WORKS 

"OS Ai1MY PENTAGON 

WASHINGTON DC 20310--ot0.8 

JAN 24 2013 

Chairman, Subcommittee on Water Resources 

and Environment 

United States House of Representatives 

329 Cannon House Office Building 

Washington, DC 20515-3518 

Dear Chairman Gibbs: 

I am responding to your October 11, 2012, letter submitting Questions lor the 

Record that resulted from the September 20,2012, hearing entitled "Forty Years after 

the Clean Water Act: Is it Time for the States to Implement Section 404 PermittingT 

appreciated the opportunity to appear as a witness at this hearing. 

Enclosed are the responses to the Subcommittee's questions concerning a 

jurisdictional issue in Minnesota and permitting issues related to Marcellus Shale 

development in Pennsylvania. 

If I can be of further assistance, please do not hesitate to contact me or 

have a member of your staff contact Mr. Chip Smith oi my stalf at 

[11 I .... ¥..... or at :. • jf you have any questions 

Enclosure 

Very truly yours. 

'JJ40~ 

la-Ellen Darcy 

A isto/1t Secretary of the Army 

(Civil Works) 
93 


Insert offset folio 113 here 76147.113

QUESTION for The Honorable Jo-Ellen Darcy 

From the Office of Congressman Chip Cravaack (MN-8) 

Question 1: We recently learned of a mining operation with a water treatment system, 

located in Minnesota's 8th Congressional District, that has never, in nearly 50 years of 

existence, been designated a "Water of the United States," but has recently been 

subject to new inquiries related to Clean Water Act jurisdiction. This is a mine that was 

designed, constructed, and permitted prior to (as well as many times since) the 

enactment of the Clean Water Act. 

II operations at the mine have not deviated from past practices and the permitted mining 

plan, what has changed in law, regulation or guidance that would lead Federal 

regulators to now change their minds about the jurisdictional status of the mine and its 

treatment system under the Clean Water Act and allow a potential dramatic disruption 01 

operations that directly threatens the jobs of thousands of people in my district and tens 

of thousands of other jobs reliant on the ore supplied from these mines? 

Response: 

The mimng operation referenced is operated by U,S. Steel and is known as the Minntac 

Mine. U.s. Steel is planning to expand its iron ore tailings disposal operation into an 

adjacent area containing a 258-acre wetland that has not yet been used for tailings 

disposal. The entire area is enclosed by a porous berm. Discharges of wastewater 

from various mine operations pass through this area and into a tributary to the Pike 

River, a navigable water. These discharges are regulated under Section 402 of the 

Clean Water Act. Until April 2012, when U.S. Steel requested an approved jurisdictional 

determination (JD), the Corps had not received any request to determine whether the 

wetlands on the site were subject to regulation under Section 404 of the Clean Water 

Act. U.S. Steel requested that the Corps determine whether the entire area should be 

considered a waste treatment system and therefore not a water of the United States. 

After coordination with the Minnesota Poilu lion Control Agency and Region V of the 

U.S. Environmental Protection Agency, the Corps SI. Paul District determined in 

November 2012, that the area is not a water of US. and not subject to permitting under 

Section 404 of the Clean Water Act 

QUESTIONS for The Honorable Jo-Ellen Darcy 

From the Office of Congressman Bill Shuster (P A-9) 

Question 2: In your August 9, 2012, response letter (to the Pennsylvania Delegation), 

you acknowledged and restated the goal of eliminating duplicative reviews. However 

the Corps' new approach is doing the exact opposite while providing no addilional 

environmental benefit. Further, Pennsylvania is not being treated the same as other 

states that operate under a Nationwide Permit. While PA midstream permits are 

averaging 150 days under PASPGP-4. other states do not reqUire notice to the Corps at 

all if the nationwide permit is followed. 

-1 
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Insert offset folio 114 here 76147.114

Why is Pennsylvania being treated differently than other states? How is 

PASPGP-4 consistent with the general permit goal of reducing duplicative 

reviews? 

Response: The Corps strives to treat all States the same under applicable laws and 

regulations. The overall requirements for complying with Section 404 of the Clean 

Water Act do not vary state by state, although the processes, procedures, and 

approaches for achieving CWA objectives may vary. These differences depend on 

many factors including but not limited to the nature and scope of the activity, the types 

of aquatic resources affected, state and local laws and regulations, and other interests, 

Regional general permits (RGPs), state programmatic general permits (SPGPs) and 

Corps nationwide permits (NWPs) are permitting tools that are all designed to improve 

the process. 

Elimination of duplicative reviews is a major benefit of State Programmatic General 

Permits, These general permits allow a state 10 incorporate its legal requirements and 

take a more active role in making decisions that affect economic development activities 

and environmental protection in the state, In Pennsylvania, the PASPGP-4 is a 

permitting too! that is used to authorize a variety of activities within the state and does 

not apply solely to activities in waters of the United States related to Marcellus shale 

development The state of Pennsylvania requested that the Corps develop an SPGP 

with them almost 20 years ago, and this permitting mechanism has been in place since 

then. Since the inception of PASPGP·4 In July 2011, thousands of applications for 

many different types of activities in Pennsylvania have been processed by the 

Pennsylvania DEP as Category 1111 activities with no Corps review. Approximately 26 

percent of activities in waters of the United States in association with all Marcellus shale 

gas activities require Corps review as Category III activities, 

Question 3: in your August 9, 2012. response letter, you assert that PASPGP·4 is 

substantively the same as the previous version. The Corps fails to recognize the 

fundamental change to the categorizing review process by the expansion of the 

definition of "single and complete project" to include an "overall project" component 

Before PASPGP-4 virtually all midstream projects were in Category 1. Now over 90% 

of these same projects are in Category 3, requiring Corps review, This has caused 

significant delay (an average of 150 days) in the authorization of virtually all midstream 

pipeline projects, How can you say that this is not a fundamental change? 

Response: The way in which single and complete projects and overall projects were 

captured under PASPGP·3 is not different than the procedures used for PASPGP·4. 11 

was standard practice under the PASPGP·310 require information on all activities In 

waters of the United States in order to assess cumulalive effects, and this concept was 

simply clarified in the PASPGP·4, by including specific definitions for and examples of 

these terms. What has changed substantially is the number of activities related to 

Marcellus Shale exploration, production, and transmission, Because of this increase it 

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is easy to see how one could conclude that there is now an increased emphasis on 

Category III activities, when in fact the Corps review of these particular activities has 

only increased to keep pace with the increased number of activities that are occurring in 

association with Marcellus shale production. 

Question 4: Further, there has been no substantial change associated with midstream 

pipeline development to warrant such a regulatory change. The pipeline crossings that 

the Corps previously approved as Category 1 activities are not different or more 

complex, and the requirements for construction following Category 3 review are the 

same. Impacts are stili temporary and minimal. 

What circumstances warrant the substantial change in the permitting program, 

creating extended delays and providing no environmental benefit? Why should 

temporary impacts be included as part of the pre-authorization review of each 

single and complete project, rather than as part of a compliance program for 

cumulative impacts? 

Response: With respect to temporary impacts, consideration of these effects is not 

inconsistent with the NWPs. While temporary impacts do not count toward the total loss 

of waters that may be verified under a NWP, this does not mean that activities of a 

temporary nature cannot trigger notification to the Corps. For example, a utility line 

exceeding 500-feet in waters of the U.S. triggers Corps notification under the general 

conditions of NWP 12, even if this impact does not result in a loss of waters of the U.S. 

As a further example, under NWP 12, the conversion of a forested wetland to a scrub 

shrub wetland does not constitute a permanent loss of waters of the U.S. and thus does 

not count towards the acreage limit of loss, even though that activity will require 

notification, may result in the permanent loss of certain functions, and may require 

compensatory mitigation. 

The Corps districts in PA have determined that when temporary and/or permanent 

impacts associated with an overall linear project exceed either 250' of stream or one 

acre of wetland impacts, notification to the Corps is necessary. It is incumbent upon the 

Corps to assess the effects of the overall projects as a whole prior to making decisions 

on single and complete crossings. Consideration of temporary impacts applies to the 

entire PASPGP-4 and all activities that may be covered by the SPGP and is not limited 

to those activities related to Marcellus shale development. 

Question 5: A recent report from Barclays said bottlenecks in pipeline development 

are holding back significant amounts of natural gas in areas including the Marcellus. 

The Corps practices and policies appear to be a significant cause of these bottlenecks. 

which are impacting pipeline development in the Commonwealth of Pennsylvania. 

Every time a concern is raised, the Corps reiterates that 90% of the permits are 

completed by the Corps in 60 days or less. However, when giving this number, the 

Corps completely ignores the impact of the duplicative and extended review process 

required for Category 3 projects. Category 3 is a much more involved process, and 

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numerous agencies are required to get involved with Category 3 projects as compared 

to Category 1. This adds significant time. The Corps continues to say that they do not 

start the clock until an application is "administratively complete" - after other Federal 

and state agencies, etc., have added significant wait time. The Corps is completely 

ignoring the impact that the Corps categorization of these projects has on the permitting 

timelines. even though the Corps is responsible for it in the first place. 

Does the Corps recognize this as a problem? Are there any steps being taken to 

rectify the permitting bottlenecks and delays caused by the duplicative and 

extended review process resulting from the re-categorization of these projects? 

Response: While only about 12 percent of all activities covered by the PASPGP-4 are 

Category 3 activities that require Corps review we are always committed to find ways to 

improve the process. The activities thaI fall into Category 3 must be evaluated by the 

Corps to ensure the proposed work is In compliance with applicable statutes including 

Section 404 of the Clean Water Act. the National Historic PreseNation Act. and Section 

7 of the Endangered Species Act. Development of the PASPGP has evolved through 

coordination among Corps district offices and the Pennsylvania Department of 

Environmental Protection (PADEP) through a number of years, focusing on minimizing 

duplicative reviews, improving process efficiency, and increasing responsiveness to 

permit applicants. The Commanders in the Baltimore, Pittsburgh, and Philadelphia 

districts are fully aware of the concerns expressed by many project advocates with 

respect to PASPGP4. Corps representatives have mel with industry representatives to 

listen to and discuss concerns With the implementation of PASPGP4 as it pertains to 

certain companies' applications for Department of the Army permits for impacts 

associated with midstream pipeline projects. 

In response to these discussions, we have taken a fresh look at PASPGP-4 and Corps 

Headquarters has asked that the three districts pursue additional discussions with 

PADEP on these matters, including potential options such as the termination of the 

PASPGP and reinstatement of NWPs in Pennsylvania. or the Corps reinstatement of 

only NWP 12 with appropriate regional conditions. Before any change along these lines 

is made the Corps will work with the State to assess the feasibility of any proposed 

change, its fairness, and the overall consequences of any proposed change on lhe 

aquatic environment and regulated public. In the interim, we will continue to work to 

improve the pre-application process so that applicants have a more clear understanding 

of permit app/lcation requirements. 

Question 6: The Corps, itself, has defended the use of the nationwide permits and the 

definition of "single and complete project" in the recent Sierra Club challenge of the 

Keystone Pipeline. 

Why does "single and complete project" make sense for a pipeline the magnitude 

of Keystone and not for gathering lines in Pennsylvania? 

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Response: The definition of "single and complete project" (Le. single and complete 

crossing) for linear projects, from 33 C.F.R § 330.2(1), was applied to the separate 

waterbody crossings associated with the Gulf Coast Pipeline (the southem portion of 

the proposed Keystone XL pipeline). A parallel definition for "single and complete 

project" for linear projects is a part of the SPGP, and this definition is applied to 

separate waterbody crossings associated with gathering lines in Pennsylvania, as well 

as any crossings of the same waterbody that are separate and distant. While the Corps 

districts in PA will evaluate all impacts associated with an overall linear project when 

that overall project impacts more than 250' of stream, each single and complete 

crossing may still be verified under the SPGP, provided the Corps determines that each 

separate crossing would have no more than minimal effect. 

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TESTIMONY OF 

DENISE KEEHNER 

DIRECTOR, OFFICE OF WETLANDS, OCEANS, AND WATERSHEDS 

OFFICE OF WATER 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

BEFORE THE 

SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

UNITED STATES HOUSE OF REPRESENTATIVES 

SEPTEMBER 20, 2012 

Good morning, Chairman Gibbs, Ranking Member Bishop, and members of the Subcommittee. My name 

is Denise Keehner, and I am the Director of the Office of Wetlands, Oceans, and Watersheds in the U.S. 

Environmental Protection Agency's (EPA) Office of Water. I want to thank you for the opportunity to be 

here today together with Assistant Secretary lo-Ellen Darcy of the Department of the Army to speak 

about state and tribal assumption of the Clean Water Act (CWA) Section 404 program as well as the 

EPA's efforts to support state and tribal wetlands programs. 

Through my testimony I hope to clarify the requirements, benefits, and challenges associated with Section 

404 assumption, and the EPA's leadership role in the assumption process. I will also discuss how the 

EPA is working with states and tribes to support and enhance their wetland program capacity and 

capability in a manner that is tailored to each individual state and tribe. The goal of the Clean Water Act 

is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. The 

EPA believes that our ultimate ability to achieve this goal is significantly enhanced by strong and 

effective state and tribal programs. 

Introduction 

Forty years ago next month, in the midst of national concern about the integrity of our nation's rivers, 

streams, lakes, wetlands, and coastal waters, Congress passed the Clean Water Act (CWA). The CWA 

embodies a federal-state partnership in which guidelines, objectives and limits were to be set by the 

federal government, while states, territories and authorized tribes would have the authority to administer 

and enforce some CW A programs. The CW A set a new national goal "to restore and maintain the 

chemical, physical, and biological integrity of the Nation's waters." 

Since the passage of the CWA, the quality of our Nation's waters has significantly improved. We have 

kept billions of pounds of sewage, chemicals and trash out of our waterways. The federal government has 

provided more than $140 billion for projects to improve the nation's water infrastructure and reduce water 

pollution. The rate of wetland loss resulting from dredged and fill activities has declined significantly. 

And our urban waterways, once heavily polluted places to avoid, have become centers for redevelopment 
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and activity. Overall, this progress means that more of America's waters are swimmable and fishable, 

and that our drinking water sources are better protected. 

Protecting and restoring the nation's rivers, streams, lakes, wetlands and coastal waters requires a strong 

partnership among state, tribal, local and federal entities. In 1977, embodying the federal-state 

partnership framework of the CW A, Congress amended the CW A to enable states to assume some 

permitting responsibility under CW A Section 404. In 198,(, Congress amended the CW A to extend the 

same opportunity to eligible tribes. To date, 24 states and tribes have considered assuming the Section 

404 program, but only two states have requested the EPA's approval of a state program: Michigan and 

New Jersey. No federally recognized tribe has requested the EPA's approval ofa tribal program. 

Background on Section 404 Assumption 

Section 404 of the CWA establishes a program to regulate the discharge of dredged or fill material into 

waters of the United States, including wetlands. Activities in waters of the United States regulated under 

this program can include discharges offill into waters of the U.S., including wetlands, associated with 

development, infrastructure (e.g., highways, bridges, and airports). CWA Section 404 requires 

authorization of a discharge of dredged or fill material into waters of the United States, unless the 

proposed activity is exempt from Section 404 regulation, such as certain farming and forestry activities. 

Under the CW A, a state or tribe seeking to administer a Section 404 program must submit a request for 

assumption to the EPA and demonstrate that their program meets the requirements of CW A Section 

404(h) and its implementing regulations. This includes a requirement that the state or tribe's program: 

(I) has the authority to issue permits consistent with and no less stringent than the Act and implementing 

regulations, including the Section 404(b)( I) Guidelines; (2) has an equivalent scope of jurisdiction for 

those waters they may assume;l (3) regulates at least the same activities as the federal program; (4) 

provides for public participation; and, (5) has adequate enforcement authority? 

A state or tribarprogram can be more expansive andlor more protective of aquatic resources than the 

federal government's program,' but the CWA requires that state and tribal Section 404 programs be 

consistent with and no less stringent than the Act and its implementing regulations. Because an "assumed 

program" operates under state or tribal law, the state or tribe must have its own laws that authorize the 

program and meet the applicable requirements for program approvaL Approved state or tribal Section 

1 By statute (CW A 404(g)), jurisdiction over dredge and fill activities in the following waters are retained by the Corps: 

"[w]aters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a 

means to transport interstate or foreign commerce shoreward to their ordinary high water mark, including all waters which are 

subject to the ebb and flow of the tide shoreward to their mean high water mark, or mean higher high water mark on the west 

C03$t. including wetlands adjacent thereto," 

233 U.S.c. Section 1344, ELR STAT. FWPCA Section 404. The Section 404 Assumption regulations can be found at 40 C.F.R. 

Section 233 et. seq." available at http://www.epa.gov/owow/wetlandslpdfl40cfrPart233.pdf 

l CW A Section 404(t) and EPA regulations at 40 CFR 233.l( c) preserve the rights of states and tribes to operate a program 

with a WE;ater scope than the federal program and to regulate discharges of dredged or fill material into those waters over which 

the COrjlsretains Section 404 jurisdiction. Where the state or tribal program is greater in scope than is required by federal law 

the additioQal coverage is not part of the federal1y approved program and is not subject to federal oversight or enforcement. 

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404 programs must, at a minimum, regulate all the waters they are eligible to assume and the same or fill 

discharges the federal government would regulate. The CW A does not allow the EPA to approve partial 

state or tribal Section 404 programs -that is, programs that cover only a portion of the waters that are 

assumable or programs that only address a subset of discharges to the nation's waters (e.g., only 

discharges from a particular industry sector). 

Once the EPA approves a Section 404 program, the state or tribe assumes all responsibility for the Section 

404 permitting program under its jurisdiction, determines what areas and activities are regulated, 

processes individual permits or general permits for specific proposed activities, and carries out 

compliance and enforcement activities. By statute and regulation, the EPA has a general oversight 

responsibility of the state or tribal program including, for example, reviewing draft permits for which 

review has not been waived.4 The EPA reviews approximately one to two percent of the Section 404 

permits issued by Michigan and New Jersey. 

Why States and Tribes Assume the Section 404 Program 

Over the years, the EPA has periodically asked states and tribes who have taken steps toward Section 404 

assumption why they were interested in assuming the CW A Section 404 program. This has included 

participation in an Environmental Council of the States (ECOS) workgroup in 20 I 0 and EPA efforts in 

19925 and 2007.6 In our 2007 assessment, for example, we reviewed the Section 404 assumption files 

from nine states that seriously considered assumption and spoke with state officials familiar with the 

effort.7 

The EPA believes that there could be several benefits to states or tribes taking a more active role in 

regulating impacts from the discharge of dredged or fill material to aquatic resources through Section 404 

assumption. Through assumption, a state or tribe can leverage and incorporate other statutes and 

regulations into their programs, such as land use requirements; effectively manage the tribal or state 

resources on a watershed scale; and, define the waters for which they provide protections in a manner that 

is broader in scope than the federal program.8 As the administrator of other aquatic management 

programs, state and tribal programs can work to increase integration and cooperation with local, state and 

federal resource programs to effectively address a wide range of water-related issues such as flood control 

and groundwater protection during the permit review process. While state and tribally assumed programs 

4 The Memorandum of Agreement (MOA) betw-een the EPA and the state or tribe describes the categories of penn its that are 

subject to Federal oversight and those categories for which review is "waived." The EPA's 404 assumption regulations list the 

categories of perm its for which EPA may not waive review. For example, the EPA may not waive review of permits that 

might impact threatened or endangered species or have discharges into waters in a State or National park. Additional 

categories for which the EPA does not waive review may be added to the MOA. 

5 1992 USEPA, Office of RegulatDlY Management and Evaluation, Study of state assumption of the Section 404 program. 

6 Hurld, Kathy & Jennifer Linn, Pursuing Clean Water Act 404 Assumption: What States Say about the Benefits and Obstacles, 

Presentation at the ASWM Annual StatelFederal Coordination Meeting (May 30, 2008), available at 

http://www.aswm.orgJpdf lih/hurld.pdf. 

7 A state or tribe was deemed to have undertaken a serious inquiry ifit spent money, invested significant staff time 

investigating Section 404 Assumption, or was directed by the governor or legislature to investigate Section 404 Assumption. 

S Both the Michigan and New Jersey programs are broader in scope than the federal program. 

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can have requirements which are more stringent or have a greater scope than required by federal law, they 

must, at a minimum, cover at least the waters they are eligible to assume and regulate the same discharges 

as the federal program. 

According to the states that ultimately did not apply to assume the program, they chose not to do 

so primarily because they: 

did not have requisite state authorities as required by the CW A and implementing regulations and 

did not believe they could change authorities to comply with such requirements (four states); 

lacked sufficient state implementation funds (three states); 

faced difficulties in working out an acceptable way to handle threatened and endangered species 

issues with the U.S. Fish and Wildlife Service and National Marine Fisheries Service (three 

states); 

were interested only in partial, or incremental steps toward, assumption (two states); or 

did not want to pay for something federal government is already doing and felt that Corps 

implementation was working well (two states). 

In addition to the reasons cited above for not assuming the program, states and tribes participating in the 

1992 and 2007 EPA inquiries and the 20 I 0 ECOS workgroup identified several additional issues they 

consider to be barriers to assumption. These included: 

no dedicated federal source of funding for program implementation; 

lack of flexibility in program approval, given that there is no phase-in or partial program approval; 

lack of specific guidance on the process and program expectations; 

lack of clarity on the waters over which they would assume jurisdiction; and 

limits on the ability to assume jurisdiction over all waters within their state. 

EPA Support for Section 404 Assumption 

The EPA supports states and tribes that want to assume the Section 404 program by engaging a state or 

tribe when it expresses an interest in assumption, remaining engaged during development of the 

assumption package, and reviewing program applications consistent with the CW A and implementing 

regulations. Moreover, the EPA continues to playa critical oversight role if and when a state/tribal 

program has been approved. 

The EPA also provides critical financial and technical assistance to state or tribal wetlands programs. 

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Funding 

In order to explore the feasibility of assuming the Section 404 program, tribes and states may request and 

use EPA funds provided through the competitive Wetland Program Development Grant (WPDG) program 

under CWA Section 104(b)(3). States and tribes have used these funds to develop state regulatory 

programs, investigate assumption and fund task forces or workgroups to aid in their consideration of 

assumption. The EPA's budget currently provides approximately $15 million in annual WPDGs 

assistance to fund development of state and tribal wetlands programs. While WPDGs cannot be used for 

implementing state or tribal Section 404 programs, Michigan and New Jersey have continued to 

successfully compete for these grant monies, using these funds to continue to develop and improve their 

programs, such as to develop databases to track permitting. 

In 2005, in response to states' and tribes' desire to use grants for wetland program implementation, the 

EPA used the CWA Section 104(b)(3) authority to award grants for demonstration projects to offer onetime, three-year Wetland Demonstration Pilots. The purpose of the pilot program was to demonstrate 

whether the use of WPDG funding for program implementation would result in positive environmental 

outcomes. Interest in this pilot was high, and 28 states and six tribes submitted 45 proposals. The EPA 

provided a total of$18.6 million over three years for 26 projects in 22 states and one tribe. The three-year 

pilot project illustrated that states and tribes can achieve substantial environmental outcomes when 

WPDG funds are used for program implementation. For example, states were able to develop stronger 

state regulatory and enforcement programs. A targeted investment in ten states resulted in more than 

3,600 site inspections and 1,100 enforcement actions to bring wetland sites into compliance. One state 

increased compliance of mitigation sites meeting performance measures from 10% to 100%. As an 

additional example, Michigan created a Compliance and Enforcement Unit to monitor compensatory 

mitigation sites. Within a one-year period, Michigan's staff inspected an additional 325 acres of 

mitigation sites that and took steps to bring 185 acres of substandard mitigation into compliance. 

CW A Section 106 funds can be used for implementing state and tribal Section 404 regulatory and 

wetlands programs, although Michigan is the only state we are aware of that has, in the past, used 106 

funds to support part of its Section 404 program. Some tribes have used these funds to review federal 

Section 404 public notices. States prioritize the use of these funds to support other CW A programs, such 

as Water Quality Standards development and the National Pollutant Discharge Elimination System and 

Total Maximum Daily Load programs. Congress appropriated approximately $238 million for Section 

106 support in FY 2012. 

Technical Assistance 

In partnership with the University of North Carolina, Chapel Hill Environmental Finance Center, the EPA 

has provided technical assistance to state and tribal wetland programs to help them sustainably finance 

their wetland programs, including but not limited to 404-assumed programs. This assistance has been 

provided largely in the form of training workshops, which shared successful approaches to financing 

programs and taught participants how to market their programs to potential funders and program partners; 

how to utilize partners to accomplish program goals; how to develop effective financial plans; and how to 

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write successful grant applications. These workshops have been held in nine of the EPA's ten Regions, 

with three workshops exclusively for tribes. A total of 24 states and 75 tribes attended the workshops. 

Once a state or tribal program has been approved, the EPA continues to provide technical assistance to 

ensure the program remains consistent with the CWA and its implementing regulations. For example, 

EPA Region 5 personnel provided technical assistance to Michigan by attending meetings of the 

Michigan workgroup charged with identifying efficiencies in its program. EPA Region 2 is working to 

help New Jersey revise its in-lieu-fee program structure consistent with the 2008 mitigation rule. 

More generally, whenever a state or tribe is interested in developing an assumed program, the EPA 

answers questions, assists with informal reviews, provides technical input on potential legislation or 

regulations, and participates in public hearings about the state program. When Kentucky investigated 

assumption in 2005, the EPA participated in every public and task force meeting the state held and was 

available as a technical resource. The EPA also provided Kentucky with additional assistance, such as by 

developing a map that depicted the Kentucky waters over which the state would need to assume 

jurisdiction and those waters over which the Corps would retain jurisdiction. Ultimately, however, the 

state of KY chose not to apply for assumption. 

Other Regulatory Approaches Available to States and Tribes 

Assumption is not the only approach states and tribes can use to manage CWA-regulated dredge and fill 

activities. Three other approaches include: 

Issuance (or denial) of state or tribal CWA Section 401 certifications for federal permits and 

licenses to conduct any activity which may result in any discharge into waters of the U.S.; 

An independent state or tribal permitting program under state or tribal laws and regulations; and 

• A State Programmatic General Permit (SPGP) or a Regional General Permit (RGP), which are 

developed by the Corps in collaboration with states or tribes. 

Now, I would like to speak in greater detail about CW A Section 40 I certification and about state or tribal 

permitting programs. 

Section 401 Certification 

The CW A Section 401 9 certification process enables states and eligible tribes to prevent the issuance of, 

or place mandatory conditions or requirements on, federal licenses or permits to conduct activities that 

may result in any discharge to waters of the U.S. A federal agency cannot issue a permit or license to an 

activity that may result in a discharge to waters of the U.S. until the state Or tribe where the discharge 

would originate has granted, granted with conditions, or waived CWA Section 401 certification. Any 

conditions a state or tribe chooses to include in its CW A Section 401 certification must be added to the 

federal license or permit. States and tribes that exercise their CWA Section 401 certification authorities 

9 http://www.epa.gov/OWOW/wetlands!regs!sec401.html 

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are able to prevent impacts from activities subject to federal licenses or permits that would cause 

violations or exceedences of narrative or numeric water quality standards, effluent limitations guidelines, 

new source performance standards, toxic pollutant restrictions, water quality-based effluent limitations or 

any other appropriate requirement of state or tribal law. Certification is not limited to individual permits. 

States and tribes can certify, place conditions on or deny certification of general permits, including the 

Corps' Nationwide Permits. Section 401 conditions must be included as special conditions in a Corpsissued Section 404 permit to ensure that permittees understand that they are responsible for complying 

with those conditions as well. 

In 2010, the EPA released a handbook entitled "Clean Water Act Section 40i Water Quality Certification: 

A Water Quality Protection Toolior States and Tribes.,,10 This handbook describes state and tribal CWA 

Section 401 certification authorities and how different state and tribal programs use Section 401 

authorities to achieve effective environmental outcomes. 

independent State and Tribal Programs 

States and tribes can develop their own permitting programs to avoid, minimize or compensate for 

impacts to wetlands and other aquatic resources. These programs can cover aquatic resources under 

federaljurisdiction as well as additional state or tribal waters. A state or tribe may establish their own 

program in order to have direct authority over aquatic resources and to provide clear permitting 

requirements and jurisdictional limits regardless of the status offederal regulatory programs. For 

example, Florida regulates all alterations to the landscape. Alternatively, states or tribes may choose to 

address just those waters or activities not covered by the federal program. For example, Wisconsin has 

passed legislation to regulate isolated waters regardless of federal jurisdiction. 

EPA's Support for State and Tribal Wetland Programs 

The EPA believes that a strong partnership between states, tribes and the federal government can best 

protect America's aquatic resources, including wetlands. These partnerships can take many forms, can 

address diverse elements of state wetlands programs, and can complement protections provided by the 

Section 404 regulatory program. The EPA is committed to working with states and tribes to enhance their 

program capacity and capability in a manner that is tailored to each individual state and tribe. With this in 

mind, the EPA has created a framework to focus states and tribes in developing their wetland programs: 

the Enhancing State and Tribal Programs Initiative (ESTP) and Core Elements Framework. The goal of 

the ESTP is to enhance the EPA's delivery of technical and financial support for state and tribal wetland 

programs, with the goal of accelerating program development. 

Key objectives of the ESTP include: 

increasing dialogue between the EPA and states and tribes on wetland program development; 

10 This handbook is available at http://water.epa.!2:ov/lawsre!2:sJl!uidance/cwafupload/CWA 401 Handbook 2010 Interim.pdf. 

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clearly articulating program-building goals and activities - the Core Elements Framework!!; 

aligning Wetland Program Development Grants with program development activities in the 

Core Elements Framework; and 

providing targeted technical assistance for states and tribes. 

The ESTP and Core Elements Framework were designed especially for state and tribal wetland programs 

that are in the early stages of program development, but are also useful to states/tribes that are refining 

more mature wetland programs. 

The Core Elements Framework provides states and tribes with a road map to develop or enhance the four 

basic elements that form the foundation of wetlands management and protection. The core elements of 

effective state and tribal wetland programs are: 

I. Monitoring and Assessment; 

2. Regulatory activities including 401 certification; 

3. Restoration and Protection; and 

4. Water Quality Standards for Wetlands. 

Drafted in 2008 with state and tribal input, this framework describes objectives for each core program 

element and provides an extensive menu of program building activities. It is intended to be fairly 

comprehensive yet flexible so that states and tribes can choose from an array of actions that are best suited 

to their goals and reSOUrces. 

To help assist states and tribes with continued development of these core elements, the EPA has aligned 

our grants to support development of state and tribal programs consistent with the Core Elements 

Framework, and have helped states and tribes to develop Wetland Program Plans, which articulate 

programmatic goals over a 3-5 year period. 

The EPA also' provides technical assistance to states and tribes through workshops and grants. In the past 

three years, the EPA has provided grants and contract support to universities and organizations such as the 

Association of State Wetland Managers and the Environmental Law Institute to develop and provide 

technical resources for states and tribes and to hold trainings on various aspects of wetland programs. 

These efforts have included a CWA Section 401 certification capacity building project,!2 a webinar series 

on water quality standards for wetlands that identifies best practices, workshops on how to develop an inlieu-fee program under the Corps' and EPA's 2008 mitigation regulations, and a Section 404 assumption 

handbook13 for states and tribes just beginning to consider assuming the program. 

J I The CEF outlines the core elements of a state or tribal wetland program, describes each core element, and provides a 

comprehensive menu of program-building activities for each core element. It can be found at: 

http://water.epa.gov/grants funding/wetiands/up\oad/2009 03 10 wetlands initiative cef full.pdf 

!2 ASWM Certification Capacity Building Project http://wv.,'W .aswm.orgJwetland-programsJwater-qualitv~standards-forwetlands 

"CWA'Section 404 Program Assumption: A Handbook for States and Tribes http://aswm.orglwetland-programs/s-404-

assumption/l22 l-cwa-section-404-program-assuffiotion-a-handbook-for-states-and-tribes 

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Through the ESTP, Core Elements Framework, and other efforts, the EPA has improved assistance to 

state and tribal programs by working together to set forth a comprehensive set of potential wetland 

program objectives. 

Conclusion 

I appreciate the opportunity to share with you the EPA's work with states and tribes to support and 

enhance their wetland programs. The EPA believes that our ultimate ability to protect our nation's waters 

is significantly enhanced by strong and effective state and tribal programs. By forging strong state and 

tribal partnerships, the EPA can help states and tribes take a leadership role in the management of dredge 

and fill activities affecting aquatic resources. 

Thank you for the chance to be here with you today. I look forward to answering any questions you may 

have. 

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Sv!tr ~ II) 

Scott "ally 

Director 

Ohio Environmental Protection Agency 

Lazarus Govemment Cenler 

50 West Tovlin Street. Suite 700 

Columbus.OH 43216-1049 

March 7. 2012 

R1:: Ohio Coal Ass{)ciation Opposition to Ohio EPAts 

Request for Authority to Pursue Delegation -Under 

Section 404 of the Clcan \Vater Act 

Director Nalty: 

TEl 014 

fAX 6:4 

On behalf of the Ohio Coal Associarion and its membership. \ve are \'Titing to express 

the proposal to obtain [rom the Ohio General Assembly authority to pursue 

from the Federal Govcl11ment to issue permits unJer Section 404 of the Clean Water 

permits. which arc currently issued by the Army Corps of Engineers. are part of the 

comprehensive permitting PTOCCSS for surtace and underground coal mining operations. amI as 

such. careful consideration must be given to any proposeJ changes to the current permitting 

program. Based upon the Ohio Coal Association's members experience '.vith the Anny Corps of 

Engineers and Ohio EPA's 401 Certification Unit, we believe tImt there is a signitieant "alue to 

Ohi01

s coal mine operators in having fhe Corps of Engineers as the lead for 

decisions under the Clean Water subject, of course, to Ohio 

Le'Clw,e"'tufl authority. This belief stems from a number of hlctors. including th~ current 

regulatory efforts directed against coal mining by U,S, EPA. the potential costs associated with 

Ohio and the potential political complications of Ohio EPA having to 

deal At tbis poinl in time. we believe that thL:: Anny 

a \l.tillable counter ovcrreach ofU5. EPA and having 

agency. with all its resources, in concerning coal mining 

pemlits remains critical. We do not believe that the transfer 404 Permitting authority tl) Ohio 

EPA will make the for coal mines ~asicr and may. in fact, create additional 

and of the 1ack of another federal agency in the process to 

counter weight to U.S. EPA overreach. 
108 


Insert offset folio 10 here 76147.010

OHIO COAL ASSOCIATION 

We arc also concerned by practical consideration ofthc ability of Ohio EPA to manage 

the additional rcquirements related to 404 permitting, particularly in instances where federal law 

and state law requirements differ or in instances where U.S. EPA injects its views and dcmands 

into the 404 permitting process, particularly where a 404 application deals with coal mining. We 

believe that the participation of the Army Corps of Enginecrs in permitting decisions related to 

surface and underground coal mining operations is valuable. and that the Army Corps of 

Engineers serves as a useful butfer between C.S. EPA and coal opcrators, particularly given the 

significant policy discussions occurring at the Federal level. Ohio EPA should seek to 

streamline its CUlTcnt 40 i certification process and provide a counterbalance to USEP A's 

aggressive intervention into the 404 permitting process tor coal mining operations. All too often 

in recent months, USEPA and Ohio EPA have aggressively sought to impose additional 

rcgulatory costs and requirements upon the coal industry which have little. if anything. to do 

with environmental protection, but which are designed principally to delay or obstrud coal 

mining operations in Ohio. The recent efforts to impose a new designated use - the so-called 

"primary headwater habitat" --- upon small ephemeral and intermittent streams in Ohio. without 

first cngaging in required ruiemaking, and without affording the public and the coal industry an 

opportunity to participate meaningfully in any discussion or debatc about the policy and 

seientitlc basis tor establishing such a use. is a good example of why our members oppose the 

transfer of the 404 program to Ohio EPA. We do not believe that the pennitting process will 

benefit from removal of thc one federal regulatory agency involved that is the most practical and 

pragmatic. not to mention most responsive to the regulated community. from the process. 

Consequently. because of the current political environment and the regulatory uncertainty 

associated with Clean Water Act permitting. it is the opinion of the Ohio Coal Association that 

Ohio EPA should not at this time seek to obtain delegation under Section 404 of the Clean Water 

Act. Ohio EPA should rather focus its efforts on making sure that the 401 Certification process 

is transparent ami consistent. We therefore recommend that you withdraw your proposcd 

changes to Senate Bill 294. and that Ohio EPA not pursue 404 permitting authority at this time. 
109 


Insert offset folio 11 here 76147.011

OHIO AGGREGATES & INDUSTRIAL MINERALS 

ASSOCIATION 

;>. 

g~ 

162 N. HAMILTON ROAD' GAHANNA, OHIO 43230 

614/428-7954' 800 OH ROCKS (647-6257)' FAX 614/428-7919 

VJEBSITE: \N\.vW.Ofd~;l1A.ORG 

~v • \:-lO\'> 

March 13,2012 

Director, Scott Nally 

Ohio Environmental Protection Agency 

P. O. Box 1049 

50 W. Town st., Suite 700 

Columbus, OH 43216 

Ref: Amendment to sB 294 

Dear Director Nally: 

On behalf of the Ohio Aggregates and Industrial Minerals Association, we wish to thank you for 

meeting with us to discuss the amendment to SB294, This amendment (129SB294-3009) seeks 

legislative approval for the Director of the OEPA to pursue assumption of the 404 permitting 

program currently administered by the Army Corp of Engineers, 

While we appreciate your perspective and understand your position, we remain opposed to this 

amendment as it adds an unnecessary measure of uncertainty at a time where our industry can ill 

afford such. 

Additionally, should this legislative authority be granted, we welcome your offer to participate in 

Rulemaking that would follow. 

Again, thank you for the opportunity to discuss this issue with you 

Sincerely, 

Executive 

pa~~'~ Director 

Ohio Aggregates & Industrial Minerals Association 

Cc: Sen. Tim Schaeffer 

OAIMA Board of Directors. 

President Dennis K. Phillips, Phillips Companies, Beavercreek, OH . First Vice President Tony L. Price. National Lime & Stone Co., 

Pindlay,0I1 • Second Vice President Hugh A. Gunn, East Fairfield Coal Co., Limestone Div., North Lima, OHImmediate Past president Ken W, Holland. Olen Corporation. Columbus, OH 
110 


Insert offset folio 12 here 76147.012

The Association of State Wetland Managers, Inc. 

"Dedicated to the Protection and Restoration of the Nation's Wetlands" 

Executive Director 

Jeanne Christie 

32 Tandberg Trail. Suite 2A 

Windham ME 04062 

(207) 892-3399 

AssodHte Director 

Jon 1\. Kusler. Esq. 

J 434 Helderberg Trail 

Berne. NY 12023-9746 

(518) 871-1804 

Senior Policy Analyst 

Peg Bostwick 

7521 South Forest Hill Road 

St. Johns. MI 48879 

(517) 388-2214 

Chairman 

David Davis 

V A Dept. of Environmental Quality 

629 East Main Street 9th Floor 

Richmond. VA 23219 

(804) 698-4105 

Vice Chairman 

Alan Quackenbush 

VT Dept. of Environmental 

Conservation 

103 South Main Street. Bldg. ION 

Waterbury. VT 05671 

(802)241-3761 

Secretary/Treasurer 

Cherie Il;gen 

WI Dept. of Natural Resources 

810 West Maple Street 

Spooner. WI 55801 

(715) 635-4034 

Members at Large 

ColHsAdams 

NH Dept. of Environmental 

SCf\-'ices 

Richard Gitar 

Fond du Lac Reservation 

Amy Lounds 

M! Department of Naturdl Resources 

and Environment - L WMD 

:vtaryann McOra\\ 

NM Environment Dept. 

Erik Stockdale 

W A State Department of Ecology 

September 20, 2012 

Honorable Bob Gibbs, Chainnan 

House Subcommittee on Water Resources and Environment 

Committee on Transportation and Environment 

2165 Raybum House Office Building 

Washington, D.C. 20515 

Re: September 20, 2012 Hearing On "forty Years after the Clean Water Act: Is it 

Time for the States to Implement Section 404 Pennitting?" 

Dear Mr. Chairman Gibbs: 

The Association of State Wetlands Managers (ASWM) is a national non-profit 

association established in 1983 to support state wetland program managers and 

others in promoting sound wetland science, law, and policy, We actively work 

with state, federal, and local environmental and conservation agencies to support 

sound wetland management, and to coordinate with related resource programs to 

improve the protection ofwet!and resources. 

On behalf of the Association, I would like to thank you for holding a hearing on 

State Assumption orthe Section 404 program. Ovcr past decades, the states have 

played a major role in wetland management and regulation, and bear significant 

responsibility for decisions regarding dredge and fill activities in wetlands and 

other waters. ASWM has worked with the Environmental Protection Agency, 

the U.S. Army Corps of Engineers, and other state associations to facilitate the 

integration of state and federal regulatory programs, and to reduce state/federal 

regulatory duplication. We believe that states can assume even greater 

responsibility, while maintaining strong standards for protection of water 

resources. This hearing is a vital step in this process. 

We arc very pleased to be providing joint testimony with the state of Ohio today. 

In addition, we are submitting the following materials for the use of subcommittee 

members and staff: 

ASWM Fact Sheets on State Assumption. These materials provide a brief 

description of the assumption process, and a digest of primary 

requiremcnts. 

CWA Section 404 Assumption: A Handbook/or States and Trihes. This 

bandbook was developed by AS\VM in response to a recommendation by 

a national workgroup on state 404 assumption. 

Decemher 27. lOIO Letter/rom Mr. Peter Silva, EPA Assistant 

Administrator, to Mr. R. Steven Brown, ECOS, and !vl'). Jeanne Christie, 

ASWM. This letter is a response to a request from ECOS and ASWM to 

clarity the requirements for approval of a state 404 Program in regard to 

consultation under the Endangered Species Act. The letter clarifies that 

EPA is not required to engage in a §7 consultation with the U.S. Fisb and 

Wildlife Service prior to approving a state 404 Program. 
111 


Insert offset folio 13 here 76147.013

We request that these documents be included in the official hearing record. We trust that these materials will 

support our joint testimony by providing additional information that is useful to the Subcommittee in determining 

how to encourage and support a strong state role in the administration of the Section 404 Program. These and 

additional materials are also available on the ASWM web pages at h!lp:llaswm.org/wetland-programsls-404-

assumption. 

Should you or other members of the Subcommittee or their staff have questions regarding state roles in the 404 

Program, please contact me at (207) 892-3399 or ~e.ehristie@aswm.org. ASWM is always pleased to provide 

technical assistance and information. Thank you. 

Cc: Mr. Jon Pawlow 

Mr. George Elmaraghy 

9~ Jeanne Christie 

Executive Director 

Attachments ASWM Facl Sheets on Slate Assumption 

CWA Section 404 Assumption: A Handbookfor States and Trihes 

December 27. 2010 Letter on Endangered Species Act 
112 


Insert offset folio 14 here 76147.014

Clean Water Act Section 404 State Assumption 

Overview 

States and tribes I a major role in the implementation of many Clean Waler 

Act (CWA) programs. It clear that envisioned that the states would play 

an active role in permitting dredge and lin and thus provided a mechanism lor 

states to assume the CW A Section 404 from the federal government. 

States and Federal Agencies Share Critical Roles in Regulating Wetlands 

States arc particularly well-situated to address regional wuter management issues 

and to effectively interact with private landowners. Federal resource agencies playa 

critical rnle in maintaining a "level Held" among the states and in 

to define common national goals Water Act While a number of 

states strong wetland programs, only two states have assumed administration of 

Section 404. Instead other states have developed. developing, other types of 

cooperative permit stich as joint permitting. State Programmatic Genem! 

Permits (SPGPs) or General Permits (RGPs). ! !owever, since the U.S. 

Court decision on Agency of Northern Cook County 

interest in state assumption has increased. 

What "Assumption" Means for a Dredge and Fill Permitting Programs 

states may seek to implement Section 404 

that governs dredge and fill wetlands and other waters. Before a state 

assumes CWA § 404, the U.S. Army Corps (Corps) regulates those waters 

and reviews the related permits at the federal State assumption of the 4()4 program 

allows a state to regulate those waters-including streams and wetlands-and assume the 

jurisdictional responsibility to condition, approve or deny and till permits rather 

than the Corps. Where a state 404 is approved by the Corps of Engineers 

suspends processing of404 pennits. the state permit provides the necessary 

authorization under Section 404. While Section 404 is olten described as a wetlands 

program. it applies to all waters, not just wetlands. In fact the 1TIlUority of dredge and fill 

permil'i in most areas of the country arc for streams and rivers and other waters that arc not 

wetlands. 

"Assumption" mealls a state has applied to the EPA and been approvc'd to 

administer a Slate dredge and fill permitting program in lieu of the ledera! section 404 

program administered by the Corps and EPA. An approved state is responsible for aU 

dredge and fill activities within the state that impact waters orlhe US. 

J Tribes that have applied to he tn:ated as a slate t~)r the- purposes ofimpkmcnting C!c::m Water Act 

such as storm water & 

Association of 

State Wetland 

Managers} Inc. 

CWA§404 

State 

ASSUmption 

www.aswm,org 

Nov. 2010 
113 


Insert offset folio 15 here 76147.015

This page has been left blank in order for printing factsheet back-to-back. 

AssoCiatlon of 

State Wetland 

Managers, inc. 

CWA§404 

State 

Assumption 

www.aswm.org 

l\Iov.2010 
114 


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Requirements of State Assumption 

In order (0 be eligible to assume administration of Section 404, "stale program must meet 

specified criteria. These arc the primary requirements: 

The state mllst have jurisdiction over all waters, 

under federaljurisdiction3 Dredge and fill activities in streams, and other 

waters defined in federal regulations must be regulated by the statc in addition to 

wetlands. 

The state Jaws must least the same activities as those regulated under 

federal law. Slate regulatiorls can be broader than federal regulations, but cannot 

exempt activities require a federal permit 

C0111pllarlce with federal regulations, including the 

provide greater resource protection, 

less stringent that federal regulations. 

The state program must have adequate entorcement authority. Under a stateassumed program, primary responsibility for enforcement rests with the state. 

A slate must have the authority n~'Cd~'{j to assume ,c'pU''''''''''J fix the entire Sectinn 404 

permit program. At the present time, it is only a portion ofthe 

program. 

State Program Operation and Federal Oversight 

The EPA has responsibility for oversight of state assumed S~'Ction 4()4 Programs. 

An approved state Section 404 is operated under the provisions of EPA's 

Section 4()4 State Program fOllnd at 40 CFR Part 233. These regulations 

define the for ofa stale and operation ofa state 

program. noted in the relationship between the EPA 

and the state in an and in the experience 

COOl'(i;n:ati<mofthe state and 

between EPA and the state or tribe, signed 

at the time of program approval. the roles and responsibilities of both parties, and 

the scope offedera! oversight. While all permit applications received by the state are 

subject to review EPA, EPA waives review of all buta small percentage 

(2-5% on an include (a) !bose public notices for which 

~ A state does not need to assume administration of the program on trib3J lands; 

the C01l'S could retain pt;:rmitting in these jurisdit.'tions. This does not constitute partial program assumption. 

3 

Association of 

State Wetland 

Managers, Inc. 

CWA§404 

State 

Assumption 

www.aswm.org 

Nov. 2010 
115 


Insert offset folio 17 here 76147.017

review is mandated under the federal regula! ions - to 

impact critical resoutce areas such as wetlands that support 

listed under the National Historical Preservation Act, components 

and Scenic River System, and similar areas - and statenegotiated in the state program MOA. review a prQject and 

objects to issuance of a the stale may not issue a Section 404 permit unless the 

objection is resolved. factor is important in compliance with other federal 

program areas ,l~ discussed below. Slates abo provide with an annual report that 

summarizes permitting and enfbrcement actions tuken during the year. 

Mechanisms for Coordination with Federal laws, e.g. Endangered Species 

Act 

Section 404 provides tor coordination with a number of other federal resources 

management programs. Because issued under a state assumed program 

afe issued tmder stale law, requirements do not apply. Instead they 

are addressed through EPA oversight as required by the statute and regulations. 

through EPA As 

§233.51 require EPA of any 

a rcasonable potential to impact federally listed 

or endangered species, within sites identified under the National 

Historic Preservation or in components ofthe National Wild and Scenic 

River critical EPA in turn is required to coordinate 

with i.e., the Corps, U.S. Fish and Wildlife Service, and 

National Marine Service. 

The comments provided to the state by the EPA represent the comments of the 

federal government, and the state cannot issue a 404 Permit if EPA objects. 

Therefore, for example, should the Fish and Wildlife Service object to 

issuance of a permit due to concerns regarding a listed species, EPA may block 

issuance ofthe permit by the state. 

A slate must comply with the Section 404(b)( I) Guidelines, and those guidelines 

prohibit issuunce of a permit that may jeopardize the continued existence of a 

listed species, the state is under tin additional obligation to protect listed species. 

The authority of the state to assure compliance with the 404(b)(I) Guidelines must 

be demonstrated prior to EPA approval of state assumption {and wnuld be based 

on an evaluation of statc laws and For example, Michigan has a 

sland alone law which protects species in addition to state listed 

species. 

Through the above mechanisms and processes, states and EPA assure compliance 

with federal environmental regulations. 

4 

Association of 

StGle Wetland 

Managers, Inc. 

CWA§404 

State 

Assumption 

www.aswm.org 

Nov. 2010 

-
116 


Insert offset folio 18 here 76147.018

Benefits of State Assumption of Section 404 

Based on the experience of Michigan and New 

program by qualified states and tribes otTers several 

program efficiency and wetland rcsouri.'C protection. These include the following: 

Ultimately, the coordinated efforts of both state 

agency \lse of slate specific methods and stale expertise 

backed by lederal scientific expertise. and a more efficient regulatory program will 

provide greater protection of wetland resources. 

==""''''-''''-'''''''-'''''-'~===. State program assumption 

pemliliing requirements, potentially 

c()J1ll"dina permit decisions, conditions. and mitigation requirements. 

State permit programs arc often more timely than federal programs. In Michigan. 

for example, actions must be typically be taken on completed permit applicati<lI1s 

within 90 days, and the average permit processing time is approximately 60 days 

(less lor general or minor permits). In New Jersey, generally permit decision arc 

made in 60 days on while wetland boundary veriilcations generally are 

completed in 90 days permit decisions take less than 180 days. 

State programs sllch as 

with the capability 

applications (including those 

the Corps under the pelmit process), and work directly 

with applicants to reduce adverse impacts to the resource. When reviewing 

particularly complex slate and federal resource agency statfs retain 

the opportunity to cooperatively, 

Administration of the 

program at states to integrate 

till regulations and other relnted land and water management 

programs. Issues such as floodplain management~ storm water management~ local 

or regional zoning or land usc plans. and similar concerns are more likely to be 

fully integrated into the pemrit review process. Coordination with agencies and 

organizations responsible for watershed management is also improved. 

5 

Association of 

State Wetland 

Managers, 

CWA§404 

State 

Assumption 

www.aswm.QLg 

Nov. 2010 
117 


Insert offset folio 19 here 76147.019

Benefits of Assumption, continued 

• Under a state assumed 404 

of policies and 

to the needs of the state, provided that the basic 

requirements are met. Thus, a st~te Cllll a wetland delineation 

manual that is suited to its climate and tOj)o£;rajph:v, 

for the entire nation; it use 

to the ecological of wetland 

eosure that the 

and tbe public in that slate. 

and it cao 

indicates that its 

changes to state law in Michigan have been 

determined that the proposed amendmcnt(s) 

program incollsistent with lcderallaw resulting in the 

wi:thdra,val of program approval. Thus, the combination of elements of 

state and federal has served to temper changes in state regulation and 

policy, and has !cd, to a more stable, predictable dredge and fill permitting 

program than has existed in most states over the past decade. 

State penniI' statr are ollen more readily accessible to 

support for wetland regulation is increased more 

decision making state and federal agencies, and by and 

procedures tailored to the needs state. 

6 

ASSOciation of 

Slate Wetland 

Managers, inc. 

CWA§404 

State 

Assumption 

www.aswm.org 

Nov, 2010 
118 


Insert offset folio 20 here 76147.020

Barriers to State Assumption of Section 404 

The fact that only two stales have assumed 404 program administration also highlights 

that there are some significant limitations associated with this process. Here arc some 

examples below: 

l)1ceting program f.£.q;ills:mcnts. Current Section 404 program regulations aTC quite 

complex, particularly in terms oflhe definition of jurisdiction, activities regulated. 

permit review criteria, and permit In order to be approved to 

administer the program at the stale a state must demonstrate that it has 

equivalent authority in all areas. This can appear difficult, 

particularly since the basis tor state authnrity may be than the basis 

for federal authority hut states can demonstrate their program and authorities are 

consL,tent with the federal program. 

For example, while tederaljurisdiction over wetlands is essentially based on the 

commerce clause oflhe Constitution, state jurisdiction is typically based at least in 

part on authority to regulate land usc and to to the state's natural resources, 

The from authorities may, initially, appear 

ultimately afRlrded the resource is 

In New Jersey, this was overcome by developing a separate 

authority to regulate wetlands that was intentionally designed to enable 

assumption of the Section 404 Program. 

to to /()rego state assumption. For some 

coastal states, the to assume administration ofllle 404 permit program in 

tidal wetlands or coustal areas, which may eliminate slate regulation of some of a 

state's most signilicant wetland reSources. However, MI and NJ entered into an 

SPG!' with the Corps to manage some of these waters. 

program 

g"'.'"I'aO!llC areas, such as the coastal zone. or in tidal wetlands. a portion 

!{) waters. There is currently no option for partial assumption ora sta!e 

404 program based on a limited geographic area. 

~~~~l~l;[~ .. £2QTIlillillE~~~~~ll~!illJ£gn[ill~~nrr1lli. Because 

a state program are state rather 

law, alternative mechanisms mllst be developed to assure compliance 

with the requirements of the federal Endangered Act, National Historic 

Preservation Act, and similar federal programs. issues are addressed to an 

extent through oversight of state assumed programs by the EPl\. 

Association of 

State Wetland 

Managers, tnc. 

CWA§404 

State 

Assumption 

www,aswm.org 

Nov. 2010 
119 


Insert offset folio 21 here 76147.021

Continued Barriers to Assumption 

But federal agencies and interest oppose assumption over concerns 

about maintaining protection the other ledcrallaws in the statc 

following assumption. (See section on coordination with federal laws for more 

discussion.) 

states 404 

funds speel fica!!y to support 

In tileory, states may make use of Section 106 

but this would be difficult in practice 

since these funds are already to other existing water programs, 

which are located in the water quality agency onhe state while a 404 

program is often in another state agency. It is not reasonable to expect 

that funds will be withdrawn from those programs, to fund another, expedally 

one in another agency or department. 

associated 

significant 

State Wetland Program Development to support 

wetland regulatory programs. However, funds can 

devel'opmt'l1t, not implementation. While the states 

it is clear that the primary program cost for 

ofdc·velonme:nt. but ongoing program 

only the perm it but the 

enfr.reernen! a 

Case: In Michigan, although assumption of the 404 Program has been broadly 

supported for many years due to increased program efficiency and 

cffectiveness, challcnging economic conditions have raised concerns about the 

total cost of program and led (he Governor (0 propose returning the 

program back to the agencies. 

8 

Associationo! 

State Wetland 

Managers, Inc. 

CWA§404 

State 

Assumption 

Nov. 2010 
120 


Insert offset folio 22 here 76147.022

ASWM's Recommended Changes to the CWA-Actions to Support States 

program 

state assumption ofthe 

Certification Programs; 

permit applications. 

any 

watcrs programs include full 

PGPs and RPs, and § 401 Water Quality 

the State with the authority to condition § 404 

States recognize the 

u«"",,,,,,,U in primary 

~ ~~;~;!~=~~~~~~~~~~~=~~that such as the coastal zone or 

adrninistr:atir.n of the CW A § 404 

,,,,,,,j,,:("",1\ would rcdu<:c state/federal dUloli(:atioll 

and generally the other henefits of program in at least a portion of 

the state, It would als,) allow a state gradual assumption over a period of 

severa! years. Pm1iu! adoption is under § 402. 

9 

Assqciation of 

State Wetland 

Managers, Inc 

Assumption 

www.aswm-Qig 

Nov. 2010 
121 


Insert offset folio 23 here 76147.023

Getting Organized for State Assumption 

Questions for States Considering Section 404 Program Assumption 

L Why is the state interested in assumption, and how would the state/public benefit? 

Review tile potential benefits and limitations of assumption. 

2. Docs the state have the legal authority to meet all federal requirements? Are all 

watcrs and wetland regulated? Are all activities regulated? 

3. Does the slate have adequate enforcement capability? 

4. Does the state have sume!enl human and fiscal resources to maintain the program? 

S. Does the state have the political support to maintain the program? 

Materials required to request approval of a state program 

The 404 State Program Regulations define the materials that mllst be submitted to EPA 

to approval of a state program. This list is summarized at 40 CFR §233.1 0 as 

(a) A letter f,'om the Governor of the State requesting program approval. 

(b) A complete program description. This detailed description will include a lull 

description of the state's and enforcement programs, including 

regulatory authorities, organization, and basic procedures. 

(c) An Attomey General's statement as set forth in §233.12 essentially certifying 

that the state has legal authority to meet all federal requirements. 

(d) A Memorandum of Agreement with the Regional Administrator or EPA. 

(e) A Memorandum of Agreement with the Secretary ortlle Army. 

Summaries of all materials used in the slate dredge and fill permit program will be useful 

in compiling this program description. 

10 

Association of 

State Wetland 

Managers, Inc. 

CWA§404 

State 

Assumption 

WWW.:aSWID,org 

Nov. 2010 
122 


Insert offset folio 24 here 76147.024

Key Resources to Have on Hand When States Consider 404 Assumption 

I. Section 404 ofthe federal Clean Water Act 

2. EPA's Section 404 State Program Regulations, at 40 CFR Part 233 

0, EPA's Section 404 (b)(l) Guidelines, at 40 CFR Pali230 

4. EPA's Clean Water Section 404 Program Definition and Permit Exemptions at 40 

CFR Part 232 

5. Any state statutes (drafts or adopted/passed into 

dredge and fill permits in lakes, streams and 

addressing the issuance of 

6. Corps 1987 delineation manual and regional supplements, if available 

7. June 5, 2007 EPA/Corp Memorandum regarding Clean Water Act Jurisdiction 

U.S. Supreme Comt's Decision in United Stales and 

United Slates [or other current regarding the scnpe of 

lederal jurisdiction] 

8. EPA and/or American Rivers' wetland fact sheets on importance of headwater 

streams 

9. CWA 404 abbreviations and acronyms (tound in assumption handbook) 

10. Endangered Species Handbook, FWS (1998) 

I L Section 7 Handbook, FWS (for initial assumption discussion) 

12. Endangered Species Act summary infonoalion specilic to state with focus on 

section 7 consultation (get this trom FWS) 

13. ASWM's Handbook on Assumption: 

r.,W A SefUQn 40'LEIQgram ;l5§.l!illlllion: A Handbo£lk fOlJ?!Jltcs and Tribes 

Many of these resources can be found on ASWM's Assumption webpagc at: 

Association of 

State Wetland 

Managers, Inc. 

CWA§404 

State 

Assumption 

Www.,3swm.org 

Nov. 2010 
123 


Insert offset folio 25 here 76147.025

Clean Water Act 

Section 404 Program 

Assumption 

A Handbook for States and Tribes 

August 2011 

Prepared by 

The Association of State Wetland Managers~ Inc. and 

The Environmental Council of the States 

MDEQphoto 
124 


Insert offset folio 26 here 76147.026

Prepared by the Association of State Wetland Managers 

and 

the Environmental Council of the States 

August2011 

EXECUTIVE SUMMARY 

State, tribal and federal rcsource agencies are facing increased pressure to reduce the cost of 

government, and to minimize regulatory costs imposed on businesses and the general public, 

while protecting important wetlands and other aquatic resources that remain under significant 

development pressure. At this time in our history the need for wetland ecosystem services"-

including flood storage, storm attenuation, and provision of migratory corridors for wildlife-"-.js 

greater than ever in light of changing climatic conditions. Government agencies must also 

balance the cost and challenge of protecting other freshwater resources -for drinking water and 

protection of hlmlan health, natural habitat, water management, and a range of public uses. 

In order to protect water resources while containing costs, it is essential that different levels of 

government share the work of managing wetlands and other waters. State, tribal and federal 

agcncies are continuing to seek approaches to avoid duplication of effort and to improve the 

efficiency of permit programs, making the best use of the strengths of each agency to realize 

shared resource management goals. ASWM and ECOS have developed this handbook in the 

interest of encouraging a collaborative approach to wetland management by state or tribal and 

federal agencies. 

The U.S. Congress has provided a mechanism for state/tribal and federal cooperation in the 

Clean Water Act Section 404 program (§404) sincc 1977. In the process known as §404 

program assumption, a state or tribe may request to "administer its own individual and general 

permit program" in place of the federal dredge and till pcnnit program. In order to qualify for 

this provision, the state or tribal program must meet requirements that assure a level of resource 

protection that is equivalent to that provided by the federal agencies. Congress anticipated that 

this process would encourage a sharing of responsibility among states, tribes and the federal 

government 

This publication was develaped under Cooperative Agreement No. WD83418001-1 owarded by the u.s. Environmental 

Protection Agency, EPA made comments and suggestions on the document intended to improve the scientific analysis 

and technical accuracy of the document However, the views expressed in this document are solely those of ASWM and 

EC05, and EPA does not endorse any products or commercia/services mentioned in this publication. 
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In spite of the promise and apparent advantages of §404 program assumption, only two statesMichigan and New Jersey-have requested and received approval for a state §404 program. The 

primary reasons for this are reported to be a strict requirement for consistency with federal law , 

setting a relatively high bar for permitting and enforcement, combined with a lack of dedicated 

federal funding to support state programs. However, states and tribes have demonstrated a 

willingness to manage wetlands within their boundaries, and have developed a variety of 

alternative approaches to working with federal agencies. The purpose of this handbook is to 

provide information to support those states and tribes willing to consider the step of full §404 

program assumption in order to provide the maximum level of interagency cooperation and 

efficiency in their dredge and fill permit programs. 

Benefits of program assumption There are multiple incentives for a state/tribe to assume 

administration of the §404 program. Among these, 

• Elimination of a high percentage of duplication in state/tribal and federal permitting 

programs 

Reduced costs for permit applicants, resulting from reduced duplication, as well as often 

faster state/tribal permit processes 

More effective resource management at the landscape/watershed level, drawing on 

localized expertise and integration of wetland management with other state or tribal land 

use management and natural resource programs 

• Incorporation of state or tribal goals and policies into the overall permit process, and 

• Improved consistency and stability in the regulation of dredge and fill activities across 

multiple levels of government. 

Challenges and potential obstacles A tribe or state that is considering §404 program assumption 

will need to weigh the clear benefits ofthis cooperative approach with a number of obstacles and 

challenges, including 

• The need to meet §404 requirements with a parallel state or tribal program that regulates 

a wide range of waters - lakes, streams and wetlands with stringent regulatory criteria 

• Provision of a compliance and enforcement program consistent with the federal program 

• Financial cost to the state or tribe 

• Necessity of broad public and political support for this shared approach. 

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A state or tribe that is interested in pursuing §404 assumption will need to develop a full 

description of its planned program, undertake a legal comparison of state/tribal and federal 

regulations, take steps to amend state/tribal laws or regulations, identify program funding, and 

enter into cooperative agreements with both the EPA and the U.S. Army Corps of Engineers 

(Corps), and finally to submit an application for assumption in an application to the EPA 

Regional Administrator. This handbook provides additional discussion of each of these steps. 

Moving forward After weighing the benefits and obstacles to §404 program assumption, a 

state or tribe may decide to proceed with development of an application to the EPA, or find it 

more advantageous to pursue other steps, such as development of a 401 certification program, or 

a (State) Programmatic General Permit - (PGP or SPGP) - in cooperation with the Corps. 

Regardless of the capabilities and interests of a given state or tribe, increased coordination and 

sharing of responsibility will increase the effectiveness and efficiency of dredge and fill 

regulations. 

OVERVIEW OF SECTION 404 PROGRAM ASSUMPTION 

The federal Section 404 Program. §404 of the Federal Clean Water Act (CWA) defines a 

permitting program to regulate placement of dredged or fill material in the waters of the United 

States. This is the primary federal authority regulating the physical alteration of wetlands, as 

well as other waters of the United States, and complements the National Pollutant Discharge 

Elimination System (NPDES program), which regulates the discharge of pollutants into waters 

of the United States. The §404 program is jointly administered by the EPA and the Corps. 

State/tribal assumption. In 1977, the U.S. Congress formally recognized the potential for and 

desirability of a major state/tribal role in management of dredge and fill activities, including 

administration of the §404 program. Congress recognized that many states had already 

established parallel permitting programs (resulting in duplicative state and federal permit 

requirements), and that the traditional role of the states/tribes in land use management provides 

states/tribes with a particularly effective basis for wetland management. However, Congress also 

emphasized the need to retain Corps control over navigation in interstate waters. 

The resulting provisions of §404 allow a state or tribe to administer its own regulatory program 

in lieu of the Corps permit program for most waters, if approved by the EPA, and with oversight 

by the EPA. Congress prohibited assumption of the program in certain waters as defined in 

§404(g)(l) of the CWA-including waters which are or could be used to transport interstate and 

foreign commerce, waters subject to the ebb and flow of the tide, and wetlands adjacent to these 

waters (e.g. tidal waters, the Great Lakes and major river systems). The Corps retains §404 

jurisdiction over these waters. 

In the simplest terms, the assumption process authorizes states or tribes to assume greater 

responsibility for dredge and fill activities in waters of the United States. In practice, a 

state/tribal §404 program is a close partnership between state or tribal and federal agencies. 

Under a state/tribal §404 program, 

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August 2011 

• The state or tribe agrees to conduct its own permit program in accordance with the 

requirements of the CW A and associated regulations. This means that the state or tribe 

may impose more stringent requirements, but not less stringent requirements (40 CFR 

233.l(d». Permits issued by an approved state/tribal program provide the necessary 

authorization under §404. The Corps suspends processing of federal permits (including 

Nationwide or Regional General Permits) in state/tribal §404 assumed waters. The state 

or tribe may adopt Nationwide Permits, or may develop its own General Permit 

categories for its program. 

The state/tribe also assumes primary responsibility for enforcement of the CW A. An 

annual report of program activities is provided to the EPA. 

• The EPA directly reviews permit applications defined in advance in a Memorandum of 

Agreement (MOA) with EPA, and may object to issuance of a permit where federal 

guidelines are not met, or if the permit is subject to an interstate dispute. The EPA 

review also provides for coordination with other federal programs, including the Corps, 

U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service 

(NMFS). Input from the EPA helps to ensure that baseline §404 requirements are 

consistently enforced on a national basis. A state/tribe cannot issue a permit under §404 

if EPA objects to issuance of the permit and the state has not taken steps required by the 

EPA Regional Administrator to eliminate the objection. 

In addition, the EPA reviews the state's annual program performance, and provides 

federal technical assistance. EPA also retains the right to take enforcement action on any 

§404 violation, although the primary responsibility for enforcement rests with the 

state/tribal §404 program. 

• The Corps retains jurisdiction over waters which are, or could be, used as a means to 

transport interstate and foreign commerce, all waters subject to the ebb and flow of the 

tide, and wetlands adj acent to these waters (e.g. tidal waters, the Great Lakes and major 

river systems). This does not preclude operation of a state/tribal program in such waters, 

but such state permits do not provide §404 authorization. For a full description of the 

waters over which the Corp retains jurisdiction, please see "MOA with the Secretary of 

the Army" in the Special Topics section. 

These roles and responsibilities are discussed in greater detail below. 

Combining the work of state/tribal and federal agencies into a §404 partnership eliminates a 

significant amount of state/tribal and federal duplication -minimizing the regulatory burdenwhile taking advantages of the strengths of each level of government. State/tribal specific needs 

and policies are more directly addressed, without sacrificing national standards, interstate 

concerns, or federal technical expertise. At the same time, the §404 program regulations 

maintain a "level playing field" among the states and tribes, and to ensure protection of interstate 

water resources. 

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Basic requirements for state/tribal assumption of the §404 Program 

The overriding requirement for assumption is that the state or tribe have the authority to provide 

at least the same level of aquatic resource protection as the federal agencies. Only then can 

federal permitting be suspended in favor of the state/tribal program. 

"TI,e cOllferees wish to emphasize that such a State program is one which is 

established under State law and which/il11ctiotl.\ in/ieu of tire federul program. It is 

not a delegation of F edeml allthori(l' . .. 

- Legi.\·lath'e History (If the CHA of 1977- COI(ference Report - page 104 

Requirements for assumption of §404 are detailed in the EPA's Section 404 State Program 

Regulations at 40 CFR Part 233 1

• An approved state or tribal program must have in place in 

state/tribal laws and regulations provisions that address a number of requirements, including 

• Jurisdictioll OWl' all waters of the United States, including wetlands, other thall 

waters where the Corps retain~.iuri.~dictioll (e.g. the New Jersey program ,/lIes not 

include tidal wetlands. al/d J~lichig{1/l 's progrum does not inclue/e Great Lakes 

coastal waters): 

• Authority to regulate till activities that are regultlted lInderfedemllaw. A 

state/tribe callnot exempt activities that tire not exempt ullder the CWA: 

• Permitting sttllldards tlnd procedures that will be at least as stringent as the/edeml 

permit program, and that will ensure cotl.\istency with the /edeml permitting 

criteria (ine/lUling the f:$ 404(b)(1) Guidelincs and otiter requirements): 

• Compliance and enforcemellt autllOrirv including the abili(v to en/ilrce permit 

conditions, and to address violations with penal(r levels that {Ire at least comparuble 

to federalfines and penalties; 

• Program funding and statting sufficient to implement and enforce the program. 

There is no provision for partial assumption of the program; that is, a state/tribe cannot assume 

authority for only certain categories of activities or certain categories of waters. However, it is 

not required that a state/tribe operate a permitting program in waters where the Corps retains 

jurisdiction. Nor is a state required to have authority over lands held in trust for tribes (Indian 

Country). 

1 A list of legal references and sources is provided at the end of this document. 

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How it Works: Federal Oversight & the Role of the EPA 

Following approval of a state or tribal program by EPA, primary responsibility for permitting 

and enforcement in assumable waters is transferred to the state/tribe. The role of the EPA also 

changes; prior to assumption, the EPA reviews public notices and permits issued by the Corps, 

and provides comments to the Corps. In a state/tribal §404 program, EPA reviews public notices 

and permit applications received by the state/tribe, and provides comments to the state or tribe. 

The EPA is also responsible for programmatic oversight-for reviewing annual reports 

submitted by the state/tribe, and evaluating any changes in state/tribal or federal laws and 

regulations to ensure that program consistency is maintained. 

While EPA has the authority to review any application processed by the state/tribe, federal 

regulations allow EPA to waive review of some categories of permits (40 CFR §133.51). 

Howevcr, EPA cannot waive review of permits such as those that may affect threatened or 

endangered species, draft general permits, discharges near public water intakes, etc. EPA and 

the state/tribe define the categories of projects subject to direct review by EPA at the time of 

program assumption in the MOA. As the program matures, as has been the case in Michigan and 

New Jersey, the level of federal oversight may decrease. In Michigan, EPA typically provides 

dircct comments on about 2% of all applications received in normal year. 

The detailed process for EPA review of state/tribal §404 program permit applications is spelled 

out in federal law and regulations (Section 404(;); 40 CFR §133.50}. Generally, 

• The state or tribe is required to send EPA a copy of the public notice for any complete 

permit application received by the state except where EPA has waived review in the 

MOA. 

• EPA in turn provides these permit applications to the Corps, the USFWS, and (in coastal 

waters) the NMFS for review2

. These agencies are given 50 days to provide comments to 

EPA. 

• EPA must provide comments to the state/tribe within 90 days of its receipt of the permit 

application. These comments incorporate comments from the other federal agencies. 

In the event that EPA objects to the proposed project -typically by finding that some 

aspect of the project is not consistent with the 404(b)(I) Guidelines-then the state/tribe 

cannot issue a permit carrying §404 authority unless or until federal comments are 

resolved. This is similar to EPA's authority to raise concerns with or veto Corps 

permits. In most instances, federal concerns are resolved as a result of modification of 

the project by the applicant; provision of clarifying information by the applicant (e.g. 

additional information regarding alternatives or project impacts); or by agreement on 

conditions to be added to the permit (e.g. mitigation requirements). 

2 In practice, the state/tribe may provide applications directly to other federal resource agencies to facilitate the 

review process. 

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August 2011 

• There is a time limit for resolution of federal issues. Once EPA has sent a letter of 

objection, all issues must be resolved within a 90 day period. After this, the EPA cannot 

withdraw the objection to the permit (although the applicant may reapply). 

• Ifthe state/tribe does not satisfy EPA's objections or requirement for a permit condition 

or does not deny the permit, then processing ofthe §404 permit reverts to the Corps. The 

applicant may seek federal authority by filing a new application with the Corps. Should 

the Corps deny the permit, the applicant may appeal through the federal process. The 

state may, in some circumstances, issue a permit under state law in spite of an EPA 

objection (e.g. as the result of a legal appeal in state court) - but in this instance the state 

permit would not provide any authority under §404. 

Some state legislators, tribal councils, or other policy makers may express concern regarding this 

level of federal oversight, in particular the authority of the EPA to block a state/tribal decision 

regarding issuance of a §404 permit. It has been suggested by some that EPA oversight be 

limited to review of the state program as a whole. However, the current framework provides 

several important functions: 

Direct coordination between state/tribal and federal staff on specific projects helps to 

maintain corrununication and consistency with federal requirements based on a case-bycase review. Understanding of the federal perspective carries over to other projects that 

are not directly scrutinized by the federal agencies. 

• Federal review of certain types of permit applications provides for necessary 

coordination with other federal regulations (e.g. potential impacts to listed species, or to 

hazardous waste sites). If there was no provision for federal review and corrunent, an 

alternative mechanism would be needed to address the requirements of federal resource 

programs. Coordination with other federal programs is discussed under the Special 

Topics section. 

• Federal input ensures that the concerns of adjacent (upstream, downstream) states or 

tribes are addressed. 

• Federal comments and technical assistance often support state/tribal decisions on 

projects with large impacts. 

Given that state/tribal regulations must be in accordance with federal requirements, and that EPA 

relies heavily on information gathered by the states, disagreements between state and federal 

reviewers are uncorrunon. In Michigan, where tens of thousands of permits have been issued 

since program assumption in 1984, there have only been 8 situations in which the state issued a 

permit over the objection of EPA resulting in reversion of §404 processing to the Corp. In the 

vast majority ofthese cases, issuance of a permit was the result of a legal appeal ofthe state's 

action. In these instances, where a state permit is issued by order of a court or an administrative 

review process, reversion of §404 processing to the Corps provides the applicant with an avenue 

to pursue a parallel review and appeal through the federal system. In New Jersey, which 

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August 2011 

assumed the program in 1994, there has been one permit that reverted to the Corps illr 

processing. 

Alternate options for state/tribal federal coordination. Many states and tribes playa significant 

role in the regulation of dredge and fill activities in wetlands and other waters, but do not assume 

administration of §404. State/tribal roles may range from review of federal actions under the 

§401 Water Quality Certification Process andlor state Coastal Zone Management programs, to 

administration of a separate state/tribal permit program, to a high level of coordination and 

responsibility for permit review under an (S)PGP issued by Corps district offices. These types 

of programs may serve as steps to full assumption, or may represent a decision by the state/tribe 

regarding the desired level of participation. While this 

handbook is f(lcused on §404 assumption, the value of 

other approaches is also recognized, and consideration of 

assumption may lead a state or tribe to a different option. 

THE PROs AND CONs OF STATE OR TRIBAL §404 

ASSUMPTION 

State/tribal administration of the §404 program provides 

distinct benefits in terms of regulatory streamlining, 

resource protection, and integration with other state/tribal 

resource management programs. Along with these 

benefits, the state accepts added responsibility, finance 

administration of the program, and must be willing to work 

in partnership with tlle federal resource agencies. This 

section will discuss some of the maj or pros and cons that 

should be taken into account by a state or tribe that is 

considering this action. 

Benefits of state §404 program assumption 

Regulatory streamlining. The most apparent benefit of 

state/tribal §404 program administration is the reduced 

duplication between state/tribal and federal pennit programs, and overall streamlining of the 

regulatory process. Many states have established comprehensive regulatory programs to protect 

the integrity of state waters and wetlands --often in coordination with other land and water 

management approaches (e.g. floodplain management, zoning and other land use regulations). 

If state/tribal regulations are consistent with federal requirements, then parallel state and federal 

permits are duplicative and wasteful of government time and resources. 

The total cost for wetland pelmits issued to transpOltation agencies, local government agencies, 

as well private industries can be significantly reduced by reducing duplication of state/tribal and 

federal permit requirements. Elimination of duplicative pelmit requirements reduces the 

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August 2011 

regulatory burden on the public, and as a result support for wetland and aquatic resource 

protection may increase. The CW A and EPA's assumption regulations are structured to ensure 

opportunity for federal input on projects and coordination with related federal programs. 

However, it is expected that most routine permitting decisions will be made independently by the 

state or tribe. 

In addition to the elimination of duplicate permits, state/tribal assumption streamlines regulations 

in the following ways: 

• Reduced time for review of regulated activities. Many state/tribal permit programs can 

make regulatory decisions in a more timely manner than the federal program - a 

significant factor for the business community. 

State/tribal administration of §404 replaces the §401 water quality certification process. 

Where a §404 permit is issued by the state or tribe under state/tribal law , then §40 I 

certification is not required (i.e. there is no federal action). This does not change the 

essential water quality requirements under §404 the state/tribal program must still 

ensure compliance with state/tribal water quality standards in conformance with the 

404(b)(1) guidelines. However, a separate review process is unnecessary. 

• State/tribal assumption supports and encourages full integration with other state/tribal 

regulatory review. Permitting decisions may be integrated with a wide range of other 

state/tribal requirements, ranging from Coastal Zone consistency to floodplain 

regulations, decisions regarding hydropower projects, or state/tribal protection of 

endangered species or habitat. 

Improved coordination with other state/federal programs. For example, coordination 

with state/tribal transportation programs or construction programs may be facilitated. 

• Improved coordination and consistency in states/tribes with multiple Corps districts. 

Based on the experience of Michigan and New Jersey, assumption ofthe §404 program 

may result in consolidation ofremaining Corps permit activities into a single district, or 

at least reduce the number of districts active in the state. Administration of the §404 

program by the state/tribe will improve consistency across the state/Indian Country. 

Improved resource protection. Although various agencies and organizations may be 

concerned that state/tribal assumption could result in a loss of federal protection under the 

Clean Water Act, a review of EPA's state §404 program assumption regulations makes it 

clear that federal standards must be maintained under a state/tribal administered program. 

Administration of a program at the state or tribal level of government actually has the 

potential to improve protection or management of resources particularly those subject to 

cumulative smaller impacts-for a variety ofreasollS. 

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August 2011 

Increased stafflevels. State/tribal programs typically make use of more staff in more 

localized offices than programs operated from Corps districts. The public often considers 

state stafho be more accessible than federal staft: 

• Local resource knowledge. State/tribal resource managers frequently have extensive 

know' ledge of local resource values, condition and issues. They may be aware of the 

presence oflocally rare resources, or conditions that threaten those resources. 

State/tribal stafT also typically work closely with local units of government, including 

agencies responsible for overall land use and development, and with related state/tribal 

programs that manage fish, wildlife and water resources. 

• Regulations are tailored to address specific policies and needs of state and tribes. Water 

management policies va!y across the nation for example, protection of riparian areas in 

an arid western landscape differs significantly from management of vast tidal wetland 

resources in southern states, or forested northern wetlands. State/tribal §404 programs 

maintain basic national goals, while tailoring regulations to make sense and work 

effectively and efficiently within the local or regional context. 

Potentially broader regulation under state or tribal jurisdiction. In some states and tribes, 

regulated waters are defined more broadly than federal jurisdiction. A combined 

state/federal program may therefore provide more comprehensive protection for isolated 

wetlands and other unregulated waters that are important for protection and management 

of state/tribal water resources and habitat. State or tribal! federal programs can also 

integrate regulation of other activities, such as drainage. 

• Integration with other state/tribal management of resource management and land use. 

As staleftribal and federal wetland programs have matured, it has become apparent that 

wetland protection and management is frequently most effective in the context of broader 

resource protection--especially consideration of watershed level functions and values. 

The loss of public benefits provided by wetlands becomes more apparent when 

considering cumulative losses offunctions 

and values on a watershed scale. 

State, tribal and local govelmnent agencies 

operate numerous programs to address water 

quantity and water quality issues, to 

encourage protection of wildlife habitat 

cOlTidors and greenspace, and to address 

other local values. The § 404(b)( I ) 

Guidelines require consideration of these 

same issues. Stateltribal administration of 

the §404 regulatory program can support 

stateltribal watershed programs, while 

avoiding state and federal duplication in the 

review of wetland pennit applications. 

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Other benefits. States and tribes will likely identify a number of other positive benefits for the 

agency and the public. Examples include 

• Public acceptance. Many complaints about wetland regulation are based on permit 

procedures, rather than on the need for wetland protection. To the extent that wetland 

regulation is made more emcient, less duplicative, and more specific to the state/tribe, 

resistance to regulation is reduced. 

• Access to state/tribal appeal processes and courts. The program requirements for public 

input are discussed under special topics. However, in many states/tribes the public 

including both permit applicants and citizens who may be impacted by a proposed project 

- may have more ready access to appeals (including administrative appeals or state/tribal 

courts) than is perceived to be available in federal pemlit progranls. 

• Program stabilitv. Although stateltribal and federal programs are both subject to 

changes in law and policy, the desire to maintain state or tribal and federal consistency 

can buffer these changes. As long as the state/tribe is committed to program 

administration, amendments that would result in withdrawal of staleltribal auiliorization 

are less likely. At the same time, changes in federal law and policy will impact the state 

or tribe only to the extent that state/triballaws are amended accordingly. As a result, 

state/tribal administered programs have tended to be more stable, and less affected by 

individual legal decisions or procedural modifications. 

Consistency in pelmit decisions. Eliminating issuance of duplicative permits from the 

state or tribe and the Corps (often from multiple Corps district offices) will reduce 

inconsistencies in permit decisions or conditions from the perspective of the applicant. 

Potential obstacles and disadvantages 

The fact that only two states (Michigan and New Jersey) 

have assumed the §404 program since 1977 is a ret1ection 

ofthe challenges associated with this process. States/tribes 

should be aware of the following concerns or potential 

baniers when they seek §404 program approvaL] 

Need to demonstrate jurisdiction over all waters of ilie 

United States. In order to administer the §404 program, a 

state or tribe must at a minimum -- have regulations in 

place that provide jurisdiction over all waters of the United 

S tates (other than those waters retained by the Corps under 

3 The EPA presented a more detailed review of potential barriers to assumption to ASWM and Society of 

Wetland Scientists members. This powerpoint presentation is available through the ASWM Section 404 

assumption webpage, under Wetland Programs. 

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August 2011 

§404(g), and, for states, lands held in trust for the tribes). The scope of federal jurisdiction is 

very broad, including most wetlands, lakes, streams and tributaries, and tidal waters as 

established by regulation and implemented consistent with U.S. Supreme Court decisions in 

SW ANCC and Rapanos. 

If the jurisdiction of a state/tribal program is limited, e.g. if the state/tribe does not regulate small 

wetlands, tributary streams, or some other category of regulated waters, state or tribal law would 

need to be amended prior to program assumption. 

Need to demonstrate consistency between state/tribal and federal regulations. State/tribal 

regulatory authority must include all activities regulated under §404. The state/tribal program 

must be consistent with the §404(b)(1) Guidelines and all other parts of the federal program. 

Some states have found that their existing permit exemptions exceed what is allowed under the 

Clean Water Act. Closing these gaps may prove to be a significant political challenge, even 

though the assumption program provides overall regulatory streamlining. 

When a state or tribe requests approval to administer the §404 program, the EPA will thoroughly 

compare state and federal regulatory standards. States/tribes are allowed a degree of flexibility 

in the structure of the state or tribal program, language, and policies, but ultimately the "no less 

stringent than federal requirements" standard must be applied. This issue is discussed in more 

detail in the section on Special Topics. At a minimum, the state/tribe should anticipate that a 

detailed legal evaluation will be required, with the assistance of legal counsel. 

It should also be noted that the state/tribe must maintain federal consistency. Changes in 

state/tribal law or regulation - whether arising from the state legislature, tribal council, or the 

courts-must be reported to EPA and evaluated for consistency. The state or tribe will also be 

expected to be responsive to future changes in federal law or regulations, with parallel changes 

in state/tribal provisions as needed. For example, promulgation of federal regulations defining 

§404 program mitigation requirements in 2008 in tum required a fresh evaluation of parallel state 

standards in Michigan and New Jersey. Some state lawmakers object to this influence on state 

regulations, although in Michigan and New Jersey it has generally been accepted given the 

overall benefit to the state. 

Potentially high percentage of waters that must remain under Coms jurisdiction. For some 

states/tribes - particularly coastal states the extent of jurisdiction that would be retained by the 

Corps is itself an impediment to program assumption. In states/tribes where jurisdiction over a 

high percentage of waters would be retained by the Corps, assumption may be seen as less 

beneficial. In Michigan and New Jersey, program benefits were viewed as outweighing this 

limitation. 

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l1ugust 2011 

Financial cost. 

Initial evaluation and development of a statetribal program. The initial cost of program 

assumption, which includes development of a 

full application, modifications to the state/tribal 

program to achieve consistency, development of 

procedures for coordination with federal 

agencies, and educating the public regarding the 

change in state/tribal and federal roles, can also 

be significant. EPA has estimated that states 

spend an average of $225,000 when investigating 

the option to assume the §404 program. Program 

development (but not administrative) costs may 

be partially offset through EPA Wetland 

Program Development Grants. 

• Operation of state/tribal §404 program. There is 

no dedicated source of funding for administration 

of state/tribal §404 programs, A state may 

allocate a portion of CW A Section 106 water 

program funds to the state/tribal wetland 

program, but in reality this source is already severely constrained by the needs of other 

programs. The cost of compliance and enforcement should not be underestimated, as it 

may add significantly to an existing program, 

It should be noted that many states and tribes already expend funds operating a state pem1it 

program or §40 I celtification program, For these states, the added cost of state assumption may 

not be sib'Ilificant, depending upon the scope of the current program, 

Political will & public desires. Multiple interests groups from both sides ofthe political 

spectrum may have serious concems about the impact of state/tribal program assumption, 

Environmental or conservation groups may initially view a state/tribal program as less protective 

than the federal program, The regulated public may see assumption as an expansion of overall 

permit requirements. For state legislators and tribal councils, cost of the regulatory program 

may be the primary concern. 

The state/tribe will need to gauge public support, and initial public lInderstanding of the program, 

As policy makers, pennit applicants, and interested citizens gain knowledge of how §404 

program assumption alters the division of responsibility for wetland management among 

state/tribal and federal agencies, support may increase, When all parties understand the 

dynamics of the proposed change, then the overall cost to the state, including the cost of staffing 

the state/tribal program and the relative cost in time and fees for pernlit applicants, must be 

weighed against public desires regarding resource protection programs. Each state/tribe is 

advised to openly weigh state/tribal and federal roles, and to determine which approach to 

wetland management best matches programmatic as well as public goals and support, 

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How does the Section 404 program differ from Section 402? 

Many state and tribes are familiar with the regulation of discharges through the National Pollution 

Discharge Elimination System (NPDES Program) under §402 of the Clean Water Act. Although there are 

similarities between the §402 and §404 programs, there are also distinct differences. 

§402 (NPDES) §404 

Regulates the ongoing discharge of pollutants to Regulates placement of dredge or fill material in 

waters ofthe U.S., setting pollution limits for each wetlands, lakes and streams. The permit is 

5 year period. typically in effect only until changes are completed, 

but shall not exceed a 5 year period. 

Permit limits may be modified in future based on Changes are typically permanent. 

monitoring data. 

Permit applicants are typically businesses or High percentage of permit applicants are individual 

municipal facilities that are familiar with pennit landowners who have limited understanding of 

requirements. environmental regulations. 

Regulated discharges are typically to public waters. Regulated activities in wetlands are often located 

on private land. 

Public notice is typically in the form of a draft Public notice is typically issued upon receipt of a 

permit, including limits set by agency. complete application, seeking input on the 

proposed project from all interested panies. 

Compliance relies heavily on monitoring and Violations may be reported by observations of 

reporting by the permit holder. numerous individuals; resolution may require 

restoration of the damaged site. 

Administration of the program by a state or tribe Partial administration of the program by a state or 

may be phased in over time. A state or tribe may tribe is not allowed; the state must simultaneously 

request approval to administer only some of the assume administration of all components of the 

discharge categories. §404 program. 

No dedicated source of funding; however, typically No dedicated source of federal funding. While 

funded in part by federal § I 06 funds. § 106 funds could be used, these funds are typically 

committed to other essential programs. 

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August 2011 

GETIING ORGANIZED 

A full consideration of §404 program assumption will require technical input from program 

managers, as well as legal assistance, in order to evaluate implications for state/tribal resource 

protection, related state/tribal policies, and the regulated public. This may require months or 

years to complete. Therefore, it is recommended that a state or tribe begin with consideration of 

the broad requirements of the §404 program, how well these requirements mesh with state/tribal 

goals, and the extent to which equivalent state/tribal programs are already in place. Then if the 

state/tribe wishes to proceed with assumption, a more detailed legal assessment will be required. 

Keep in mind that materials developed to help a state/tribe make a decision regarding 

assumption, such as a legal comparison of state/tribal and federal authorities, will also be a 

component of the state or tribe's formal application for assumption ifit decides to proceed. 

Therefore, the basic requirements for an application for assumption should be reviewed at the 

outset to avoid repeating a step. Wetland Program Development grants can be applied for to 

help fund the work needed to fully consider and prepare for state or tribal assumption of §404. 

While the circumstances of each state or tribe will be unique, the state/tribe may wish to begin 

with the following considerations. 

Define state/tribal goals: what is the benefit to the state or tribe? Why is assumption being 

considered at this time? 

A state or tribe may be motivated to consider program assumption for a variety of reasons-to 

reduce duplication with federal programs, increase efficiency, and improve business climate; to 

improve resource management through increased integration with state/tribal programs; or to 

increase the emphasis on wetlands of particular importance to the state/tribe, including wetlands 

with regional significance. Provided that the state/tribe's purpose in considering assumption 

includes maintenance of a level of aquatic resource protection and management at least equal to 

that established by the federal program, state/tribal administration of the §404 program may be 

useful in achieving these goals. 

On occasion, §404 program assumption is proposed as a means of limiting federal regulation, or 

reducing federal involvement in state/tribal resource management, without balancing goals for 

resource protection and management. For example, some states/tribes have inquired about §404 

program assumption primarily to facilitate permitting for specific highway or development 

projects. If the overriding goal is limited to a single purpose, or is primarily to reduce 

regulation, it is less likely that the state or tribe will be able to implement a successful §404 

program, or to coordinate with federal agencies to the degree necessary. A state/tribe in this 

position may wish to consider other options to expand the state/tribal role, reduce duplication of 

effort, and improve coordination with federal agencies, short of full §404 program assumption. 

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August 2011 

Is there public support for comprehensive administration of a dredge and fill permit program 

by the state or tribe? 

In addition to resource protection goals, a state or tribe must either have - or be willing to 

develop a comprehensive permitting and enforcement program that ensures compliance with 

federal standards. The political will for development - and continuation-of this program 

should be assessed, taking into account support from the public and private sector. A wide 

range of interests may support state/tribal level regulations for different reasons. Conservation 

and environmental agencies and organizations may understand the benefits of a more localized 

program that is integrated with other state/tribal programs while maintaining federal standards, 

or may fear loss of resource protection. Business and development interests may understand the 

benefit of more expedited, and less duplicative regulation, or may oppose an expansion of the 

state or tribe's role. The interests of multiple stakeholders should be considered in terms of 

long-term program support. 

Inventory existing state/tribal statutes and regulations: are basic program requirements met, 

or is there support for amendment of the current program? 

Does the state or tribe have an adequate permit program in place under state law, providing the 

appropriate state/tribal agency with the authority to issue or deny permits, and authority to 

enforce regulations? Undertake an initial side-by-side comparison of state/tribal and federal: 

• Jurisdiction over waters of the United States. including wetlands. Does the 

state!trihe have jurisdi<:tion over all assumable waters') 

• Authority to regulate all actions regulated under ~404. 

• Exemptions. State/tribal exemptions cannot be broader than federal exemptions. 

• Permitting stant/ards. A stateltribe cannot issue a *404 permit that does not provide 

the same level of protection as the 404(b)( I ) Guidelines and other federal regulations. 

• Compliance and Cf~for('emellt. A statc/tribal program must have authority to enforce 

compliance with permits. and to address violations of permitting requirements. This 

includes the ability to assess appropriate lines and penalties. and to provide li)r pLlblic 

participation in the compliance program. 

The state or tribe's authority to administer a permit program may rest on both primary statutes 

such as a statewide (nontidal) wetland law, and related authorities - e.g. floodplain regulations, 

coastal zone regulations, shoreline zoning requirements, dam safety laws, and so on. For 

example, 

• The scope of:;uri.~dictioll over waters and wetlands may be defined in state/tribal 

water quality standards. in specific dredge and till statutL:s or regulations. in brnader 

water authorities. or in stateltriballand usc regulations (e.g. authority to regulate 

shorelines) 

• Compliance and enforcemellt requirements may be found in multiple statcitribal 

regulatory authorities, in administrative procedure requirements. or in other state or 

tribal laws. 

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August 2011 

Each state/tribal agency that will implement the program must be authorized to make use of 

all necessary authorities. It should be assumed that assistance from in-house counsel, or the 

state Attorney General or Tribal Attorney, will be needed to identify all authorities in a final 

page-by-page assessment. This assessment, and certification of authority by the Attorney 

GenerallTribal Attorney, will be one of the key components of an application for §404 

program assumption. 

Identify gaps: what additional regulations, staffing, funding, or enforcement authority would 

the state/tribe need to assume the §404 program? 

If the state or tribe does not currently have permitting authority needed to provide the same level 

of resource protection as federal law, then it will have to develop or revise its regulations to be 

consistent with and at least as stringent as federal law . At this stage, if not before, it is advisable 

to evaluate public support for the change, and to work closely with the EPA to determine as 

specifically as possible what changes would bridge the gap. 

Staffing and financial resources. The extent of funding and staff resources needed to sustain a 

state or tribal §404 program should be estimated, and sources of potential funding identified. An 

application for program assumption will require both an annual budget, and a workload analysis 

defining staffing needs 4

. Additional information regarding program costs is included in the 

Special Topics section. 

If a state or tribe already administers a comprehensive permitting and enforcement program, then 

the added cost of coordinating with EPA under a state/tribal §404 program may be minimal. In 

Michigan, one full-time position is dedicated to coordination with EPA and program reporting, 

and the time needed for federal coordination is estimated to require the equivalent ofthree 

additional permitting staff statewide. By comparison, New Jersey requires less than one fulltime position to coordinate with EPA. For programs that must expand permitting requirements 

or enforcement actions, a significant new amount of funding may be necessary. 

Develop a strategy: what is the best approach to meeting state or tribal goals given the 

requirements of the federal program and limits on the state/tribal program? Is it advisable to 

seek program assumption, or are other program options a better first step? 

Following a review ofthe program requirements and an assessment of its current status, the state 

or tribe will make a preliminary decision about program direction, and the most logical means of 

improving state/tribal wetland protection and management. 

If the state or tribe determines - based on discussions with EPA - that it has an 

established regulatory program that is essentially consistent with federal §404 program 

requirements, it may decide to proceed with the assumption process. The state may 

4 The Association of State and Interstate Water Pollution Control Administrators (ASIWPCA) developed 

a State Water Quality Management Resource Model in 2001 that may assist a state or tribe in analyzing 

workload requirements (add citation). 

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August 2011 

then outline a strategy to proceed with development an application for assumption that is 

likely to include the following actions. 

o A stakeholder process that identifies the concerns of all interest groups, and 

provides an ongoing source of information to the public 

o Amendment of state/tribal regulations as needed. The timeframe for legal 

amendments or rulemaking will in turn dictate the timeline for assumption 

o Further definition of funding and confirmation of the availability of funds in 

coordination with the state/tribal budget process 

o Discussions with all other impacted state, tribal, federal and local agencies 

o Development of supporting materials such as staff guidelines and permit 

application forms, and a means of documenting permit decisions 

o Training staff in new procedures and requirements 

o Notification of the public of the shift in permitting responsibility 

o Full documentation of the state/tribal program as needed for the application for 

assumption. 

If the state or tribe does not currently have the basic legal capacity to assume 

administration of the §404 program, but has support for increasing responsibility for 

wetland protection, it may take steps to build the needed capacity. Numerous 

possibilities are available, depending upon the status of the state/tribal program. The 

state may wish to consider the following. 

o Building support for the state/tribal program through establishment of a 

stakeholder group to assist in definition of an appropriate course of action, and to 

further educate stakeholders regarding state/tribal administration of §404 

o Coordination with EPA to further define changes that are needed for program 

assumption, and to inform the federal agencies of the state or tribe's long-term 

plans 

o Increase state or tribal responsibility relative to §404 permitting. If the state/tribe 

does not currently have a process for coordinating regulatory review with the 

Corps, possible development of an (S)PGP, or review of §404 permit applications 

through an expanded §401 Water Quality Certification Process. These programs 

may provide the state/tribe with useful experience and a greater understanding of 

the federal program, and/or provide an opportunity to demonstrate and document 

state/tribal capabilities. 

o Pursuing modifications of state/tribal regulations as needed to meet federal 

requirements. 

• If public support for an increased state regulatory role is lacking, the state/tribe may 

wish to build its wetland program using other approaches. 

o Focus on a wetland outreach program to build public understanding of wetland 

functions and values, and the role of regulation. Assist policy makers in 

understanding approaches for streamlining state/tribal and federal regulations. 

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August 2011 

o Development of a more limited (S)PGP to gradually build capacity and 

experience, consistent with existing state authorities 

o Development of the state/tribal wetland program through non-regulatory 

approaches, such as assessment of wetland condition, mapping, and public 

education to build state/tribal expertise while supporting effective wetland 

protection and management. 

APPLICATION REQUIREMENTS 

The final step in the process for approval of a state or tribal §404 program is initiated by formal 

submittal of a detailed description of the state or tribe's program to the Regional Administrator 

of the EPA, with a request for approval of the program from the Governor of the State or Tribal 

Chair. This request must include the following. 

Prim/Irr IHll/ircmcllls: 

• ;1 lctrcrf/-olll tlte (j()l'('/'IWr ofthL' Siale or li'ibal Cltair, requesting pmgmm 

ilppro\'(fl atld(ormall), transmittillg the In/l/Cltto EPA. 

• Ii complere p/'Ogram dcscriprioll, 

• A starC/nell! hy the Attol'l1e,r Gcneral (lr li'ihal Auol'llc)' tital rhe Im!'s al/(I 

{'('glliations of the statc.'trihe I'rol'ide adequate legal authoritl' to C(lIT]' Ollt the 

program ami to meet tlte applicahle requirelllents o/fed(!}'ulllll!', That is, the 

appropriate s/atcitrihal ogcne)' has awhori!), [() ret'in!' pcrmit applicatiol/.I, and 

to isslle permits 10 regulale dredge' al/(ljill ac/il'ilies ill aSSIIl1/(/h/e miler, as \I'dl 

as 10 <.'I//()IH' regulatiolls/or dredgc (/I/d /ill actil'itics il/ waters 0/ tlte United 

Stillc' IInder thc stale or trihe 'I jllrisdierillll, 

A MemonmdulII o(,"grcclI/clIl \litlt tile Regional Administrator, 

A Memorandum o{ .. 1gl'<'<'lIIcl/I \\'itlt IIie Secretarl' (o{rhe /!rmy!. 

Copies oroll appiicah/c stateitriha/ stotlltes alld reglliolions, including those 

gOl'eming Cll'l'licahlc s/({[c/lrihal oc/lllil1isrl'ari1'c I'I'O('cillfJ'cs, 

Rc(eJ't!l1cC 40 CFR ,~'2.13, Slfhpart B. 

Letter from Governor or Tribal Chair requesting approval. Once EPA receives a complete 

package and request for assumption from the state governor or tribal chair, it must determine 

whether to approve the state/tribal program within 120 days5, This schedule in practical terms 

5 This 120 day time frame may be extended if the Administrator and Governor/Tribal Chair agree, 

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August 2011 

means that all elements of the state or tribal program should be in place prior to program 

submittal, and agreement must have been reached with the EPA Regional Administrator and the 

Corps District Engineer as to how the program would be operated if approved. 

The program description must include a detailed discussion of the scope and structure of the state 

or tribal regulatory program. These include 

• A description of the scope and structure of the state!tribal program. This includes the 

extent of state!tribal jurisdiction; activities regulated, permit exemptions, permit review 

criteria and program coordination; 

• State or tribal procedures for permitting, administrative and judicial review, and program 

operatioJ?; 

• A description of the organizational structure of the state!tribal agency or agencies that 

will administer the program; 

• A workload analysis including a description of staff and financial resources; 

• Copies of permit application forms, permit forms and reporting forms; 

• A description of state!tribal compliance and enforcement programs, and means of 

coordination with the EPA and the Corps; 

• A description of waters where the Corps will retain jurisdiction; and 

A description of best management practices that will be used to satisfy requirements in 

the §404 program exemptions for the construction of farm, forest and temporary mining 

roads. 

Note that when completed, the program description may essentially serve as an operating manual for 

the state or tribal program, and as such will be useful not only in approval of the program, but as a 

reference during program administration. 

A state or tribe may find it useful to compare its permit process and requirements with the 

permits issued by the Corps (including Nationwide General Permits), to help determine whether 

its program will meet federal requirements. Although specific processes may vary, the overall 

scope of permit application review and the basic type of permit issued must ensure that wetlands 

and other aquatic resources are protected in accordance with federal standards. For example, the 

state might determine whether any activities authorized under a state or tribal general permit 

process are given more intense scrutiny and individual public notice under the Corps program. 

The statement of the Attorney General or Tribal Attorney will include a detailed comparison of 

state!tribal and federal authorities, which will also be a useful ongoing reference for the state or 

tribe. This legal documentation must also address specific issues such as state takings law and 

jurisdiction over Indian lands. Note that the Attorney General!Tribal Attorney's statement is 

based on laws and regulations in effect at the time of signing; that is, state!triballaw must be 

modified as necessary to qualify for §404 program assumption before the final request for 

assumption is submitted. In Michigan's experience, EPA has twice requested that the basic 

statement by the Attorney General be updated following major changes in the state program, e.g. 

reorganization of state agencies. 

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August 2011 

Memoranda of Agreement (MOAs) with the Corps and with EPA must be signed prior to a 

formal request for program approval. These agreements will become effective upon approval of 

the state or tribal program. The content of these agreements is discussed below under Special 

Topics. MOAs should be negotiated well in advance of the expected date of the program 

submittal to allow adequate time for administrative review and signature at both the state/tribal 

and federal level. Following program approval, these documents may be amended from time to 

time by the parties. 

The state or tribe may also find it helpful to enter into MOAs with other state/tribal agencies 

where more than one agency holds responsibility for components of program operation, or with 

other federal agencies in particular the USFWS. While such agreements are not a mandatory 

component of the program submittal, the state or tribe must document in some manner how it 

will coordinate among agencies. 

Public review and comment Following submittal, the EPA must publish notice of the state or 

tribe's application in the Federal Register. The EPA will provide for a public hearing in the 

state. The state/ tribe should be prepared for this review - both through ongoing discussions 

with interest groups, and through preparation of explanatory or supporting materials. 

SPECIAL TOPICS 

Interpreting "No less Stringent Than" 

Prilllarv require'lIIeni": 

• Stales 11111.1'/ hut'e thi' authority iO issue permits 'I'hich '"apply, alld asvure 

cOlllplialice with. all)' II/'plicah/e requirements of this sectioll. ineluding, hill 

Ilot limited to, the guidelines estahlished IInder seclion (h!( I) of this sec/iol1, 

and s('('liolis 301 lind 403 o/Illis Act.. (CWA Section 404(h)( I )(A)(i)) 

''Any appro '" 'd Srate Program shall, at 1111 tiIIiC'. he ('ol/(illcled in accordanCc' 

11'ilh Ihe requirements o(thl' [Clellil Jli,let) Act and of this Pari. While States 

may impose more ,\'trillgcnt requirclllellts.. ri1LY may not impose OilY /('\.\' 

slringel){ requirements/or (//Il' l'llI/)()se '. (40 eFR ~233,1 (d)) 

• '"No pamit shall he issued h)' tile DireciOl' (Oft/II! Siale Agencl) ill Ihe 

/o/lOlt'ing circlIlI/stances: (a) Whcll I'('I'II/il docs not 1,;01111'/]' \\'il17 Iii" 

rl!L/uirell1<'11ls (JUlie Act or IIII' regulaliolls .. , inelilding the S('clioll 404(h){ I) 

(illi<ielillcs .. , ", (40 C'FR ~233,20) 

The essential requirement that state/tribal programs be no less stringent than federal programs 

appears fairly straightforward. However, based on the states' experience to date, differences of 

opinion may arise regarding the specific requirements of a state or tribal program as compared to 

federal law. 

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August 2011 

In large part, this results from the difficulty of directly comparing the language of two different 

regulations. Even where state or tribal law is drafted with the intent of meeting federal 

requirements, it is unlikely that the format and wording will be identical. For any party who is 

concerned with how a regulation may be interpreted in the future by regulatory agencies or the 

courts, differences in language can raise questions. 

The state or tribe may need to supply additional explanatory material to demonstrate how its 

laws and regulations are interpreted and applied in a manner that is consistent with and "no less 

stringent than" federal standards. Legal expertise will be needed to compare state/tribal and 

federal requirements, and to engage in discussions with EPA staff to ensure mutual 

understanding of both state/tribal and federal programs. 

Comparison of state/tribal and federal standards is made more difficult by the fact that many 

decision points in wetland permit programs require a degree of professional judgment. For 

example, the 404(b)(1) Guidelines prohibit issuance of a permit if the proposed discharge, "will 

cause or contribute to significant degradation of waters of the United States." The federal 

guidelines detail factors that should be considered, and require not only professional expertise, 

but consideration of comments received from others during the public comment period. During 

an application for §404 program assumption, the federal agencies may ask to review state/tribal 

guidance documents or legal decisions that demonstrate how state/tribal laws are interpreted as 

compared to federal requirements. Thus, program experience is very helpful in documenting 

state or tribal approaches. 

Finally, it is essential to understand that the basic foundations of parallel state and federal 

regulations will differ - even though regulatory goals may be fully shared. The CW A relies 

heavily on the authority ofthe federal government to regulate interstate navigation and interstate 

commerce, along with other federal authorities. By contrast, states/tribes regulate resources 

within their borders based on the constitution and laws of the state, including land use 

authorities, water rights (riparian or appropriation), the duty to protect public trust resources, and 

other public health and welfare authorities, as well as police powers. 

One option for limiting these consistency issues is to adopt the 404(b)(I) Guidelines by reference 

into state/tribal regulations. However, this is not a requirement for program assumption. 

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August 2011 

6 These examples are drawn from a review of Michigan's program more than a decade after program assumption. 

This informal review was intended to determine whether state regulations were still consistent with federal 

requirements after multiple amendments of both programs. Please note that the federal review considered 

significantly more detailed state and federal regulatory language than is summarized here. 

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Federal jurisdiction and assumable waters 

Federal jurisdiction under §404 extends to all "waters of the United States" as defined in the 

Clean Water Act (40 CFR §232.2). Very generally, waters of the United States include marine 

and tidal waters, lakes, streams and their tributaries, and wetlands adjacent to all of these waters. 

For purposes of §404 program assumption, it is important to know what subset of the waters of 

the United States are not open to state/tribal assumption. By law, the Corps retains jurisdiction 

over waters that are, or could be used to transport interstate or foreign commerce, all waters 

subject to the ebb and flow of the tide, and wetlands adjacent to these waters. Examples include 

tidal waters, large river systems, and the Great Lakes. Thus, these waters are regulated by the 

Corps under both §404 and Section 10 ofthe Rivers and Harbors Act of 1899. The Corps also 

retains jurisdiction over wetlands adjacent to such waters. All other waters of the United States 

must be under the jurisdiction of the state or tribe that assumes administration of §404. "Partial" 

assumption is not allowed.7 

The state or tribe may have broader jurisdiction - including for example some isolated wetlands 

that are not regulated under federal law. Here, permits issued by the state or tribe are not subject 

to federal regulations. If the state or tribe also has jurisdiction over waters over which the Corps 

retains jurisdiction, coordination with the Corps is recommended. In Michigan, the Corps and 

the Michigan Department of Environmental Quality (MDEQ) use a joint permit application 

form. All permit applications are sent to the MDEQ, which forwards applications that also 

require Corps authorization to the Detroit District. 

The state/tribe may define the method used to delineate wetlands, provided that it results in 

regulation of all assumable waters. New Jersey adopted the 1989 federal manual. Michigan 

used its own delineation manual for many years, but recently adopted the Corps 1987 manual 

together with appropriate Regional Supplements. 

Compliance with other Federal laws (NEPA, ESA, etc.) 

Permits issued under a state or tribal §404 program are state permits issued under state law. For 

this reason, the provisions of other federal laws that apply to federal permit actions - such as 

NEPA and Section 7 of the Endangered Species Act - are not applicable. However, the §404 

assumption regulations define alternative mechanisms that address many of the environmental 

goals of related federal programs. 

Review under the National Environmental Policy Act (NEP A) may still be required for 

projects that make use of federal funding - e.g. transportation, HUD in order to satisfy 

the requirements of the funding agency. In addition, many states/tribes have laws that 

are similar in scope to NEP A. Finally, state/tribal programs must comply with the 

§404(b)(1) Guidelines, which address some issues covered by parallel NEP A (e.g. 

consideration of alternatives). 

7 A state is not required to have jurisdiction over Indian Country. 

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August 2011 

Threatened and Endangered Species. Under a state/tribal program, direct consultation 

with the USFWS under the federal Endangered Species Act is not triggered. However, 

protection of federally listed species is ensured by alternative mechanisms. First, the 

EPA must review all applications that have a reasonable potential for affecting federally 

listed species, and in this review coordinates with the USFWS, as well as the NMFS and 

C01VS as applicable. A state cannot issue a permit that carries §404 authority if the EPA 

objects to issuance of a permit. 

Finally, a state pennit must ensure compliance with the 404(b)( I) Guidelines, which 

prohibit issuance of a pelmit if it would jeopardize the continued existence of a listed 

threatened or endangered species or result in the likelihood of the destruction or adverse 

modification of critical habitat, unless an exemption has been granted by the Endangered 

Species Committee. 

In Michigan, the state screens pernlits for 

potential impacts to federally listed species in 

cooperation with the state nongame wildlife 

program, which administers the state 

threatened and endangered species act. If a 

proposal is found to have a reasonable 

potential for impacts to a listed species, a 

public notice is subject to review by EPA and 

the USFWS. For minor projects that do not 

normally require a public notice, the 

screening process is still followed early in the 

review of the application, and provisions are 

made for review by the federal agencies. 

New Jersey developed a separate MOA with 

the EPA and USFWS outlining a coordinated 

review process for applications that may 

affect federally listed species, and also 

coordinates with the USFWS early in the permit application process. 

In some states, the need for coordination under the ESA has proven to be a significant 

impediment to state program assumption. In Oregon, for example, the extent of 

anadromous fish habitat protected under the ESA is extensive limiting the potential 

efficiency of a state program. Florida also recognized the need for quite extensive 

coordination to protect federal listed species early in its consideration of assumption. 

This was not the sole balTier to assumption in either state, but it is advisable to investigate 

the extent of coordination required early in the process of evaluating state program 

options. 

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August 2011 

• Coordination under the National Historic 

Preservation Act is typically carried out in 

coordination with the State Historic 

Preservation Office. In both Michigan and 

New Jersey, proposals are screened through a 

computer system for proximity to known 

historic or archaeological sites. EPA cannot 

waive review of permits involving discharges 

within sites identified or proposed wlder the 

National Historic Preservation Act. ( 

Direct review of permit applications and 

coordination with federal agencies also ensures 

protection of federally designated wild and scenic 

rivers, national parks and reserves, and similar sites. 

The NNFS may review public notices in coastal 

states and comment through EPA; however the 

NMFS has waived review of all applications in 

Michigan. Coordination with state coastal zone 

management programs is achieved directly through state CZM programs. In short, protection of 

sp{;.'cially designated federal resources is ensured under a state program, but often through 

different mechanisms. Attention should be paid to state/tribal and federal coordination. 

Gaining and Sustaining Public Support 

State and tribal agencies are aware of the need for public support to improve programs to meet 

federal standards, and to accept the ongoing cost of program administration. Opportunities for 

public comment are included in the process of applying for federal approval of a state/tribal 

progranl- including both hearings and public notices. Normally, the state or tribe will have 

engaged a variety of interest groups in weighing options for state-federal coordination well 

before the fonnal application for assumption. 

Various interest groups may express a wide variety oflegitimate concerns, and misconceptions, 

regarding stateltribal assumption. During public review, the following questions and concerns 

are common. 

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August 2011 

Funding Considerations 

The ongoing cos! of a state/tribal §404 program is one of the primary considerations in making a 

decision on program assumption. In addition, states and tribes should be aware of the initial 

cost of developing a request for program assumption and initial implementation. States have 

repo11edly spent on the average of $225,000 to investigate assumption (EPA 2008). Federal 

financial assistance for assumption planning is available through Wetland Program Development 

Grants the EPA has provided this assistance to six of the nine states that have fully considered 

assumption to date. 

Annual costs for ongoing administration of a §404 program will obviously vary from state to 

state (or tribe to tribe) depending upon the size of the state/tribe and extent of regulated waters 

(lakes, streams, and wetlands) within the state or tribe, among other factors. Kentucky 

compared program costs among states as a component of its investigation of assumption. 

The following estimates include both state §404 progran1s and other mature state programs: 

State Annual t~ost HEs 

New Jersey $3 million 42 (State Assumed §404) 

Michigan $7 million 86 (State Assumed §404) 

Wisconsin $3.5 million 27 (State programjRGP) 

Tennessee $1 million 16 (State program) 

Maryland $2.4 million 40 (SPGP) 

est. to assume 404 + $2 million + 23 HEs 

In weighing program costs and benefits, the following may be considered: 

• 

program, or already coordinates with the Corps 

additional cost of §404 administration may be 

To the extent that operation of a combined 

state/tribal - federal program is more timely and 

efficient than separate programs, the overall cost 

to the regulated public may be significantly 

reduced. It may be difficult to adequately 

calculate these savings, but business groups in 

both Michigan and New Jersey have demonstrated 

a willingness to support program costs in part 

through increased pem1it fees to gain an increase 

in efficiency. 

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August 2011 

There is cun'cntly no dedicated source of federal fimcling for state or tribal §404 program 

administration, States and tribes are technically allowed to make use of CWA § 1 06 

water program funds for operation of a §404 program, but in reality may not be able to 

shift these limited funds from other programs, State/tribal general program funding, 

pemlit fees, and other special sources of state/tribal funding (e.g, special license plates, 

bottle deposits, etc.) are typically used to finance program operation, 

Ongoing administration of a comprehensive state/tribal dredge and fill programcovering all state/tribal waters is a costly enterprise. In Michigan's experience, the cost 

of program compliance and enforcement was initially underestimated, While there are a 

range of acceptable means of resolving an enforcement issue e.g, voluntary site 

restoration, after-the-fact pennitting for projects that meet penni! standards, and out of 

court settlements an ongoing enforcement action can be much more time consuming 

ilian review of a typical pennit application, Legal action associated with some cases may 

not be resolved for a number of years. Moreover, while pennit fees may cover a 

significant portion of the cost of reviewing pennit applications, these funds may not be 

available for enforcement actions, Therefore, the state/tribe should fully evaluate the 

financial and staff resources needed to address all pennitling and enforcement needs on 

an ongoing basis. 

Memorandum of Agreement between the state/tribal agencies and EPA Regional 

Administrator 

A Memorandum of Agreement, signed by the Director ofilie state or tribal program and the EPA 

Regional Administrator, is one 0 f the primary requirements of the state/tribe's request for 

program assumption, and the application is incomplete wiiliout a signed agreement This 

agreement must include, at a minimum, the elements outlined above, and will take efIect upon 

program approvaL 

Essentially, the state/tribe agrees to administer the §404 program in a mal111er that is in 

accordance with the requirements of federal laws and regulations, These include a prohibition 

of §404 pennit issuance by ilie state when the pennit is not in compliance with the §404(b)(1) 

Guidelines or other regulations, ancl when the EPA has objected to issuance of a pennit and the 

objection has not been resolved. 

29 
153 


Insert offset folio 55 here 76147.055

l1ugust 2011 

One particularly important component ofthe MOA is 

the section that defines waiver of permit application 

review by EPA. The Clean Water Act begins with 

the premise that EPA may be allowed to review and 

comment on all §404 permit applications, but that 

also allows EPA to waive review of all be a select set 

of categories (e.g. projects that jeopardize federally 

listed threatened or endangered species, draft general 

pennits, and a number of others). 8 In Michigan, 

EPA waives review of all but about I 2% of all 

applications. For categories where direct EPA 

review is waived, the state reviews applications and 

makes a decision without federal review (although 

permit information must be summarized and 

submitted annually to EPA). The categories of 

applications subject to federal approval should be 

defined as clearly and specifically as possible to 

avoid procedural challenges. 

It is also advisable to clearly describe state/tribal and 

federal roles in compliance and enforcement. 

Although the state/tribe assumes primary 

responsibility for compliance and enforcement, the 

EPA may also assert its enforcement authority - this 

may be particularly helpful in the instance of a 

violation that impacts the waters of more than one 

state or tribe, or a major violation. The state/tribal and federal agencies should determine how 

and under what circumstances infotmation regarding violations should be provided to the EPA 

(other than in an annual report). 

Memorandum of Agreement with the Secretary of the Army Corps of Engineers 

8 See 40 CFR 233.51 for a list of categories that must be reviewed by EPA. 

30 
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Insert offset folio 56 here 76147.056

August 2011 

A signed MOA between the state/tribe and the Corps (typically through the District Engineer) is 

a required component of the state/tribe's request for §404 program assumption. This agreement 

will include the following critical components. First, it will identify waters and adjacent 

wetlands - where the Corps will retain jurisdiction for purposes of §404. §404 prohibits transfer 

of the program to a state or tribe in "waters that are presently used, or are susceptible to use in 

their natural condition ... as a means to transport interstate or foreign commerce ... including 

wetlands adjacent thereto." (CW A Section 404 (g)(I». It is suggested that waters which remain 

under Corps jurisdiction be listed and identified as specifically as possible to avoid case-by-case 

determinations after state assumption. This is important in order to avoid delays in processing 

of applications once they are received. It may be easier to define the upstream extent of 

jurisdiction over major river systems than over adjacent wetlands. 

Secondly, the MOA between the state or tribe and the Corps must define procedures for transfer 

of the program including pending applications - to the state upon program approval. At this 

point, the Corps will suspend processing of permit applications in waters identified under the 

state/tribal program. In theory, the §404 program authority is fully transferred to the state/tribe 

at a single point in time; at an agreed upon date following program approval, the state/tribal 

program is initiated and the Corps program is suspended. As a practical matter, the state and the 

Corps should agree on a schedule for program transfer that recognizes the practicality of action 

on nearly complete permit reviews by Corps staff, and completion of ongoing federal 

enforcement actions. In Michigan, the state administered a pilot program for several months 

prior to full assumption, under federal supervision, and permit files were transferred to the state 

during this period. States or tribes that have been actively administering a permit program under 

an (S)PGP may also find it somewhat simpler to transition to state permit processing. An 

outreach program - explaining the change in permit processing authorities - should be a 

significant component of the transition period, but is not required under the federal regulations. 

Joint jurisdiction Given that a state or tribe may also continue to regulate tidal, coastal, or other 

waters where §404 jurisdiction is retained by the Corps, the state/tribal-Corps MOA may also 

include procedures for interagency coordination in such waters. This portion of the agreement 

may include provisions for a joint permit application process (retaining separate permitting), 

coordination of review to avoid conflicting permit requirements, coordination of mitigation 

banks and similar issues. 

Public Participation 

One area of uncertainty, or in need of clarification, is what opportunities for public participation 

does a state/tribe need to provide for in an assumed §404 Program. 

States/tribes must provide public notice of and comment on permit applications, draft general 

permits, potential major modifications of issued permits, public hearings, and issuance of an 

emergency permit. In addition, states/tribes must allow for and consider requests for public 

hearings. [40 CFR §233.32, §233.33] 

31 
155 


Insert offset folio 57 here 76147.057

August 2011 

With respect to enforcement matters, a state/tribe must provide for public participation in the 

State enforcement process by providing either: 

1) Authority which allows for a citizen with an interest in or may be adversely affected by 

an action with a right of intervention in any civil or administrative action or, 

2) Assuring that the state/tribal agency or enforcement authority will: 

a. Investigate and provide written responses to all citizen complaints submitted 

regarding states/tribal procedures 

b. Not oppose intervention by any citizen when allowed by statute, rule or regulation 

and 

c. Publish notice of and provide at least 30 days for public comment on any 

proposed settlement of an enforcement action. [40 CFR §233.4I(e)] 

In general, ASWM believes that third parties typically have greater ability to challenge a 

decision under a state/tribal §404 program because they maintain access to the federal courts for 

some purposes, while potentially gaining access to state/tribal civil or administrative processes, 

as well as informal interaction with the state or tribal agencies. However, this issue may need to 

be addressed on a case-by-case basis when a state/tribe is considering assumption. 

Tribal Issues 

In addition to the statutory and regulatory requirements listed above (and at CWA §404 (g)-(1) 

and 40 CFR 233), tribes must meet a few additional conditions as a result of their unique status 

and relationship with the federal govemment. 

• Eligibility Tribes seeking assumption must meet the eligibility requirements under §518 

of the CWA (40 CFR 233.60-62). These include 

o The tribe is recognized by the Secretary of the Interior 

o The tribe has a governing body carrying out substantial governmental duties and 

powers 

o The functions to be exercised by the tribe pertain to the management and 

protection of water resources under their jurisdiction 

o The Administrator believes the tribe is capable of administering the §404 program 

in accordance with the act. 

• Enforcement Authority In general, tribes must meet the same criteria for enforcement as 

states, however, when tribal enforcement authority does not exist or is precluded from 

asserting criminal enforcement authority (e.g., for actions against non--tribal members or 

fines over $5000), tribes need to refer the criminal enforcement matters to EPA and/or 

the Corps as outlined in the appropriate MOAs (40 CFR 233.41 (f)). 

It is recommended that the tribe work closely with EPA and the Corps early in their pursuit of 

§404 to identify waters under the tribe's jurisdiction as well as the tribal waters over which the 

Corps will retain §404 jurisdiction. 

32 
156 


Insert offset folio 58 here 76147.058

August 2011 

Detailed timeline for review and approval of state/tribal application for §404 program assumption 

Procedures for the approval of a state or tribal program by EPA are detailed at 40 CFR §233.15. 

This regulation details the 120 day review period that is defined in §404(h) of the Clean Water 

Act. Specifically: 

Day 1 Date of receipt of a complete state/tribal program application. Note: upon 

receipt ofthe application, EPA has JO days to determine whether the application is 

complete. 

After determining that the state/tribal application is complete, the RA will publish 

notice ofthe application in the Federal Register. 

Day 10 Deadline for submittal of application to other federal agencies. The EPA 

Regional Administrator (RA) will provide copies of the state or tribe's submission to 

the Corps, USFWS, and NMFS (both headquarters and regional offices). 

Day J()± Approximate time frame for public hearing. The RA shall provide for a public 

hearing, within the state/tribe, not less than 30 days after the notice is published in 

the Federal Register. 

Day 75± Approximate time frame for public comment. The Federal Register notice must 

provide a comment period of at least 45 days. 

Day 90 Deadline for comments to EPA from other federal agencies. 

Day 120 Deadline for EPA decision on the application. Within 120 days of receipt ofa 

complete application, the RA must either approve or disapprove the application, 

based on whether or not the state/tribal program fulfills the requirements of the CW A. 

The RA will also respond to comments received. The EPA Assistant Administrator 

for Water, the Office of General Counsel, and the Assistant Administrator for the 

Office of Enforcement and Compliance Assurance will provide concurrence on the 

decision. 

If the RA approves the state/tribal program, slhe shall notify the state/tribe and the 

Corps ofthe decision, and publish notice in the Federal Register. The state/tribal 

program will not become effective until publication of this notice or until the date 

specified in the Federal Register. 

If the RA disapproves the state/tribal program application, the RA shall notify the 

state or tribe ofthe reasons for disapproval, and revisions needed to gain approvaL If 

the state or tribe suhmits a revised plan, the 12() day revie" process begins 

again. 

Day 120+ The state/tribe and EPA may extend the review period by agreement. 

33 
157 


Insert offset folio 59 here 76147.059

August 2011 

LEGAL AND TECHNICAL REFERENCES 

Fcrlcrallaw and regulations may he t()unct (In line in standard legal references. 

Federal regulations: http://www.gpoaccess.gov/fr/index.html 

• Library of Congress legislative information: http://thomas.loc.gov/ 

• EPA laws and regulations: http://www.epa.gov/lawsregs/regulations/index.html 

IMPORTANT LAWS AND REGULATIONS RELATED TO §404 PROGRAM ASSUMPTION 

Clean Water Act, Legal authority for state/tribal assumption of the §404 program, and basic 

Section 404(g) - (I) requirements 

40 CFR Pa rt 230 Guidelines for the Specification of Disposal Sites for Dredged and Fill Material. 

These are the 404 program Section (b)(l) Guidelines-the detailed definition of 

criteria for permit application review. A state/tribal program must provide a level 

of resource protection that is at least as stringent as these standards. 

SubpartJ details mitigation requirements. 

40 CFR Part 232 §404 Program Definitions; Exempt Activities not Requiring §404 Permit. 

Program definitions apply both the federal and state/tribal administered 

programs. State/tribal program exemptions cannot be broader than federal 

exemptions. 

40 CFR Pa rt 233 §404 State Program Regulations 

These regulations detail the requirements for approval of a state/tribal §404 

program, program operation, federal oversight, and related issues. 

Jurisdictional EPA/Corps Memorandum Re: Clean Water Act Jurisdiction Following the U.S. 

guidance memo Supreme Court Decision in Rapanos v. United States" 

This June 5, 2007 provides guidance on determining the scope of federal 

Federal Register, jurisdiction over waters ofthe u.s. June 8, 2007, page 

31824 

Proposed new EPA and Army Corps of Engineers Draft Guidance on Identifying Waters 

jurisdictional Protected by the Clean Water Act 

guidance [Released April 27, 2011 for public review and comment.] 

Federal Register, 

May 22,2011 

34 
158 


Insert offset folio 60 here 76147.060

August 2011 

links to helpful information 

Association of State Wetland Managers 

404 Assumption Web Pages: http://aswm.org/wetland-programs/s-404-assumption 

Descriptions of state programs: http://www.aswm.org/state-summaries 

Program funding: http://aswm.org/wetland-programs/funding 

Environmental Council of tile States 

General information: www.ecos.org 

Environmental Protection Agency - information on state assumption 

State assumption: http://water.epa.gov/type/wetlands/outreach/fact23.cfm 

Funding for core state/tribal wetland programs: 

http://water.epa.gov/grants funding/wetlands/cefintro.cfm#whatEPA 401 wiki 

Proposed Clean Water Act Guidance: 

http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm 

U.S. Army Corps of Engineers 

Corps of Engineers regulatory information: 

http://www.usace.army.mil/CECW /Pages! cecwo reg.aspx 

University of Nortll Carolina - sustainable funding for wetland programs 

http://www.efc.unc.edu/projects/wetlands/ 

35 
159 


Insert offset folio 61 here 76147.061

August 2011 

list of Acronyms and abbreviations 

ASWM 

CFR 

Corps 

CWA 

CZMA 

ECOS 

EPA 

ESA 

NEPA 

NMFS 

NPDES 

RA 

(S)PGP 

SWS 

USFWS 

§401 

§404 

Section 10 

Association of State Wetland Managers 

Code of Federal Regulations 

U.S. Army Corps of Engineers 

Federal Clean Water Act 

Coastal Zone Management Act 

Environmental Council of the States 

U.S. Environmental Protection Agency 

Federal Endangered Species Act 

National Environmental Protection Act 

National Marine Fisheries Service 

National Pollutant Discharge Elimination System 

Regional Administrator (of EPA) 

(State) Programmatic General Permit 

Society of Wetland Scientists 

U.S. Fish and Wildlife Service 

Section 401 of the Federal Clean Water Act 

Section 404 of the Federal Clean Water Act 

Section 10 of the Rivers and Harbors Act 

36 
160 


Insert offset folio 62 here 76147.062

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

Mr. R. Steven Brown 

Executive Director 

Environmental Council of the States 

444 North Capitol Street, NW 

Suite 445 

Washington, DC 20001 

!',is. Jeanne Christie 

Executive Director 

DEC 272010 

Association of State Wetland Managers, Inc. 

32 Tandberg Trail 

Suite 2A 

Windham, ME 04062 

Dear Mr. Brown and Ms. Christie: 

OFFICE OF 

WATER 

Thank you for your letter of December 6,2010, regarding the applicability ofthe 

Endangered Species Act (ESA) §7 consultation requirements to EPA's approval of a state or 

tribe's (hereafter "state") application to assume Clean Water Act (CWA) §404 permitting 

authority 

You have asked whether or not EPA needs to engage in a §7 consultation with the US 

Fish and Wildlife Service (FWS) and/or the National Marine Fisheries Service (NMFS) 

(hereafter "the Services") when it authorizes a transfer of §404 permitting authority pursuant to 

§404(g) and (h) to a qualified state. A 2007 US Supreme Court decision, National Association 

of Home Builders 1'. Defenders a/Wildlife, sheds considerable light on this matter. 551 US 644 

(2007). In this decision, the Court held that. "[sJince the transfer ofNPDES pennitting authority 

is not discretionary, but rather is mandated onee a State has met the criteria set forth in §402(b) 

of the CW A, it follows that a transfer ofNPDES permitting authority does not trigger §7(a)(2)'s 

consultation and no-jeopardy requirements." ld. at 673. 

Although there are some differences between §402(b) and §404(h), EPA believes that the 

Court's rationale in the Defenders case applies to EPA's transfer of the §404 permitting program. 

In making the finding, the Court upheld the FWS and NMFS regulations that limit §7 

applicability to "discretionary federal actions." ld at 665-71. The Court held that EPA is not 

acting with discretion when it transfers a §402 program to a state that meets the statutory criteria 

under §402(b) (2) and. therefore, §7 consultation is not required. The Court noted that "[wJhile 

EP A may exercise some judgment in determining whether a state has demonstrated that it has the 

authority to carry out §402(b)'s enumerated statutory criteria, the statute clearly does not grant it 

Inleme! Address (URl) a hUp:lIwww.epa.gov 

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161 


Insert offset folio 63 here 76147.063

the discretion to add another entirely separate prcrequisite to that list." fd. at 671. Thc Court 

also noted that "[ n ]othing in the text of § 402(b) authorizes the EPA to consider the protection of 

threatened or endangered species as an end in itself when evaluating a tTansfer application." Id. 

Like §402(b), §404(h) (2) (A) requires EPA to "approve" the state's application to 

transfer the permitting program if the state has the requisite authority. Under §404(h), EPA is 

only permitted to evaluate the specified criteria and does not have discretion to add to the list. If 

criteria are met, then EPA's approval must be given. The legislative history clmifies Congress's 

intent to make program transfer under §402 and §404 essentially the same. 

While there are some differences between §402(b) and §404(h), these differences do not 

transform EPA's action approving a state 404 program into a "discretionary federal action." 

Therefore, EPA believes that its action to transfer §404 permitting authority is not a discretionary 

federal action and thus the Agency need not engage in a §7(a) (2) ESA consultation. 

Although §7 consultation is not required, a number of important safcguards exist in the 

CWA and EPA's regulations which work to ensure that endangered species issues are addressed 

in authorized state permitting programs. State programs must issue §404 permits that comply 

with the 404(b) (I) Guidelines. 40 CFR 233.20(a). This includes the Guidelines' requirement 

not to issue a pemlit that "O]eopardizes the continued existence of species listed as endangered 

or threatened under the Endangered Species Act of 1973, as amended, or results in the likelihood 

of the destruction or adverse modification of.. . critical habitat.. ,," 40 CFR 230.1 O(b )(3). In 

addition, EPA's regulations require that EPA review permits for "[d]ischarges with reasonable 

potential for affecting endmlgered or threatened species as determined by FWS." 40 CFR 

233 .51 (b) (2). For these permits, EPA must transmit a copy of "each public notice, each draft 

general permit, and other information needed for review of the application to" the Corps of 

Engineers, FWS, and the NMFS for comment. 40 CFR 233.50 (b). 

EPA remains committed to working with states and the Services on development of 

effective processes to facilitate the review of state permits for discharges with reasonable 

potential to affect endangered species. One such approach is the development of an agreement 

among the state, EPA, and the Services regarding the process for review of these permits; the 

MemoraJ1dum of Agreement between the State of New Jersey, FWS, and EPA provides aJ1 

example. 

If you have further questions on this issue, please contact David Evmls, Wetlands 

Division Director, at (202) 566-0535. 

/l / II ' Sincerely, fdl. P~~~r 

Peter S. Silva 

AssistaJ1t Administrator 
162 


Insert offset folio 127 here 76147.127

Minn~sQ1a 

BOtll'{lof 'I Waler&So; 

Resomces 

N"-~ 

September 27,2012 

Representative Bob Gibbs; Chairman 

Transportation and Infrastructure Committee 

Subcommittee on Water Resources & Environment 

B-370A Rayburn HOB 

Washington, DC 20515 

Re: State Assumption of Clean Water Act 404 

Dear Chairman Gibbs: 

Thank you for holding the September 201 2012 Subcommittee hearing on the potential for states to assume a 

lead role in wetland protection. This letter is written in support of your efforts to address this issue. 

The State of Minnesota implements a comprehensive, stand-alone wetland protection program established in 

State law and rule entirely separate from Section 404 of the Federal Clean Water Act (404), The Minnesota 

Wetland Conservation Act (WeA), signed into law in 1991, operates similar to the 404 program in many respects, 

<lnd becJuse of that, and we have accomplished several coordination initiatives with the U.S. Army Corps of 

Engineers-St. Paul District. The WCA generaHy provides a greater level of protection and jurisdiction than 404 as 

it applies to all wetlands, induding isolated wetlands and those affected solely by drainaec. 

The WCA relies on a network of trained State and loca! government staff to provide valuable expertise in 

program implementation, including site reviews and wetland impact authorizations or denials. The program 

includes (] comprehensive wetland banking program that includes more restored wetlands than in any other 

state, including State funded wetland mitigation for public road projects. The State hEls also restored thousands 

of acres of wetlands through the Reinvest in Minnesota (RIM) program - mostly in the critical prairie pothole 

areas of western Minnesota. 

!n Minnesota, the WCA is implemented concurrent with the Federal 404 program. This can (esult In an extra 

layer of required regulatory approvals for landowners. For example, whi!e the WCA includes specific time limits 

for decisions. and administrative appeals, 404 decisions are often indeterminate. Minnesota is In a strong 

position to accomplish key 404 objectives through either fI federally recognized state program or a coordinated 

approach that allows parts of the 404 program to be delegated to the State, With this in mind/ we offer the 

following recommendations: 

n-2midji 

1. Remove barriers to 404 assumption. The assumption process should recognize overall protection and 

service delivery outcomes rather than being focused only on process, and thus be easier for states to 

accept implementation responsibility. 

2. Allow for formal recognition of state programs. Provide a mechanism for federal recognition or 

delegation to state programs that achieve goals of the 404 progr.am, without assuming all the federal 

processes. 

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163 


Insert offset folio 128 here 76147.128

Representative Bob Gibbs, Chairman 

September 27,2012 

Page Two 

3. Allow for partial assumption. Assumption or "certification" of certain elements of a state program 

should also be allowed. Minnesota's wetland banking program is one example. 

4. Provide federal funding for implementation. A shared approach to funding wetland protection 

programs would be more efficient and cost-effective for both state and federal governments. 

In summary, the State of Minnesota supports efforts for formal recognition of state wetland protection 

programs, like tile WCA, that achieve the resource objectives of 404. We appreciate the Subcommittee's 

attention to this issue and the opportunity to provide comments. 

Sincerely, 

, John Jaschke, Executive Director 

Minnesota Board of Water and Soil Resources (BWSR) 

Cc: Les Lemm. BWSR WCA Program Coordinator 

Tamara Cameron, Regulatory Branch Chief, Corps of Engineers-St. Paul District 

BWSR Wetland Committee Members 

Minnesota Congressional Delegation 
164 


Insert offset folio 129 here 76147.129

Office orthc 

Sccr·etary 

Rep. Bob Gibbs, Chair 

STATE OF Ih:Lc\WA,RE 

DEPARTMENT Of' NA TlIRAL RESOlJRCES 

A7'lD ENVIRONMENTAL CONTROL 

89 Kplics HIGIIWA\' 

DOVER, Dt:LAWARE 19901 

September 27, 2012 

Rep. Timothy H. Bishop, Ranking Member 

Subcommittee on Water Resources and Environment 

U.S. HOllse Committee on Transportation and Infrastructure 

2165 Rayburn House Office Building 

Washington, D.C. 20512 

RE: Hearing on Assumption ofCWA Section 404 by States 

Dear Rep. Gibbs and Rep. Bishop: 

Phone: (302) 139-9000 

Fa" (302) 739-6242 

Delaware recently finished a new statewide wetland mapping effort which produced the report Delmvare 

Wetland,: Status and Changes/rom 1992 to 2007. In this report, wetland loss is increasing compared to 

a status report from the previous 10 years. Additionally, the acreage of loss of non-tidal wetlands is 

significantly higher than what has been pennitted through Section 404 by the Corps of Engineers. The 

unpermitted conversions of wetlands have serious consequences for our State from the loss of flood 

mitigation and storm protection to the water quality benefits and the habitat value for waterfowl and other 

species. 

CU1Tently, Delaware is working with the Corps_ EPA, and USFWS to detennine the reasons for such 

significant losses. This investigation into the causes for wetland loss has revealed mUltiple reasons 

including insufficient resources at the Federal level to administer Section 404 effectively and efficiently, 

knowledge by the regulated community that Corps enforcement presence is lacking leading to impacts 

without contacting the Corps, a lack of coordination between the Corps and NRCS on agricultural 

projects and exemptions. confusion over what is regulated due to recent Supreme Court decisions. 

en'oneous isolated wetland determinations without contacting the Corps, and minimal coordination and 

training for perfonning delineations accurately. The combination of these factors has left Delaware's 

wetlands susceptible to conversion and loss greater than is acceptable for the health and welfare of our 

citizens. 

Assumption of Section 404 by States is a significant undertaking. In the 19905, Delaware debated 

creating a State non-tidal wetland program; however, the State did not proceed due to uncertainty about 

whether full delegation was possible and concerns about permitting duplication and long-term costs .. In 

more recent discussion with regional EPA and Corps personnel about a Statewide Programmatic General 

Permit or full Assumption of the 404 program, they have been very receptive to assisting Delaware, but 

legislation must be in place before beginning that process which is estimated at more than a year to 

accomplish. The economic concerns of administering a new wetland program in Delaware are forefront 
165 

Æ 


Insert offset folio 130 here 76147.130

Rep. Bob Gibbs. Chair 

Rep. Timothy H. Bishop, Ranking Member 

Subcommittee on Water Resources and Environment 

September 27,2012 

Page Two 

in the current fiscal climate due to uncertainty about projected fee revenues whieh depend upon 

development, uncertainty on the future of Federal appropriations and EPA grant programs, and flat 

general fund revenues. And while the State is confident that permits could be reviewed more efficiently 

than the current Federal system, concerns exist about the potential redundancy of permitting programs if 

full delegation is not received .. 

Most of these concerns could be allayed and more states would assume the 404 program responsibilities, 

ifthere was a smoother process of delegating the program to the States and some funding certainty as an 

incentive to take delegation. We believe that such an approach would be significantly more efficient, 

cost-effective, and protective of these important resources. States can more efficiently allocate resources 

and can protect valuable wetlands with localized knowledge more effectively as proven by the two States 

that have assumed the 404 program. Giving the regulated community an option for one-stop and faster 

issuance of permits builds support for a State run program while helping the local economy. 

In the interim, Delaware will continue to assess and act on all options to conserve and protect wetland 

resources and the ecological services that wetlands provide. Funding and administrative support from the 

Federal government is necessary to achieve tangible success for Delaware's protection efforts. 

Thank you for the opportunity to add comments to the hearing record. 

:?~ Collin O'Mara, Secretary 

Delaware Department of Natural Resources 

and Environmental Control