State Authorities

• Author: Margaret 'Peggy' Strand/Lowell Rothschild
• Pages: 183-198

Page 183

Chapter 7

State Authorities

The C WA preser ves state aut hority and does not preempt state law. As a result, in addition to

regul ation under federa l law, wetlands frequent ly are regulated und er state and loc al law. Suc h

laws cover the fu ll ra nge of wetl ands, including co asta l, tida l, riparia n, and isolated wet lands.

us, wetland s that a re not, or arguably not, subject to federal jurisdiction may be subject to state or

local regulatory restriction s. W hile this Des kbook does not attempt to completely catalogue all st ate

and local regulations , it does present example s of state wetland regulations and provide sources for

additional inf ormation.1

is chapter also addresses the various CWA authorities u sed by the Corps (and EPA) to coordinate

federal and state wetla nd programs. rough these mechanisms, the state may obtain t he “lead” for all or

part of the §404 program within its bounda ries, subject to federal oversight. In addition, in most states

with their own wetlands permit program, the Corps and the state will administer their authorities through

a joint application process (using a single application form), to facilitate coordination for the a gencies and

the applicants.

I. State Authority for §404 Permitting

States can be authorized to adminis ter federa l CWA authority under 33 U.S.C. §1344(g)-(k).2 To date,

only t wo states, Michiga n3 and New Jersey,4 have receive d this authority. In these states, the state has

the authority to issue §404 permits, subject to federal oversight. States c an also i ncrease their role in the

federal regulation of wetla nds by obtaining state programmatic general permits f rom the Corps. e

ranks of states that have received state program general permits continues to grow and now includes

all of the states within the Corps’ New England district5 (Connecticut,6 Maine,7 Massa chusetts ,8 New

1. ELI provides comprehensive studies of state wetland laws. See E L  I, S W A: S ,

T  M A  (2008), avai lable at http://ww w. elistore.org/reports_detail . asp?ID=11279&topic= Wetlands; E-

 L I, S W P E: P I-IV (2005-2008), available at http://eli.org/Progr am_areas/

water_pubs.cfm.

2. FWPCA §§404 (g)–(k). For a thorough review and analysis o f §404 delegati on, see Oliver A. Houck & Michael Rolland, Federalism in

Wetlands Regulation: A Con sideration of Delegation of C lean Water Act Section 404 and Related Programs to the States, 54 M. L. R. 1242

(1995).

3. 40 C.F.R. §233.70. Michigan assumed authority on October 16, 1984. See 49 Fed. Reg. 38947 (Oct 2, 1984).

4. 40 C.F.R. §233.7l. New Jersey assumed authority on March 2, 1994. See 59 Fed. Reg. 9933 (Mar. 2, 1994). See also 58 Fed. Reg. 36958 (July

9, 1993) (proposed approval) and 58 Fed. Reg. 46190 (Sept. 1, 1993) (nal approval).

5. At the time of publication, the New England District was developing a regional “New England” permit that would replace the six State

General Permits in the region. A draft of the permit is available at http://www.nae.usace.army.mil/Portals/74/docs/regulatory/publicnotices/

NAE-2013-00714.pdf.

6. Expires July 15, 2016.

7. Expires October 12, 2015.

8. Expires January 20, 2015.

Page 184 Wetlands Deskbook, 4th Edition

Hampshire,9 Rhode Island,10 and Vermont11), as well as Maryla nd,12 Minnesota ,13 Pennsylvani a,14

Virginia ,15 and Wisconsin.16

A. State Program Authorization

EPA, not the Corps, makes the decision on whether to authorize a state to administer the §404 program.

e state program approval process is addressed in EPA reg ulations at 40 C.F.R. §233. e regulations

set forth the procedures for the submission17 and terms for approval18 of state and tribal programs. Among

other things, the state/tribal program will not be authorized to cover traditionally navigable waters or

waters seawa rd of the hig h watermark.19 Approved programs must be at least as stringent as the federal

regulations,20 state/tribal authorities must have adequate enforcement capabilities,21 a nd the state/tribe’s

attorney general must certify that the state has authority to carry out the program.22 States/tribes may

issue permits for no more than ve years and must have authority to revoke or modify permits equal to

that of the federal government.23 Also, the program must provide for inspection and monitoring analogous

to federal standa rds; opportunities for public notice and public hea rings on permit applications; notice to

other aected states and tribes; assurance that permits that interfere with navigation will not be issued; and

coordination with federal and federa l/state water-related planning processes.24

EPA’s regulations elaborate on the submission required for an approvable state program.25 EPA will

not approve partial state/tribal programs. However, a state/tribe may be authorized even if it declines to

administer existing federal general or nationwide permits.26 In those circumsta nces, activities that would

have been subject to a federal general or nationwide permit will be subject to individual permit review in

the authorized state. In addition, the lack of jurisdiction of a state over tribal lands does not constitute a

partial state progra m.27

EPA must act on a state’s request for approval within 120 days28 or the request is deemed approved.29 Fol-

lowing approval, state/tribal programs are still subject to federal oversight30 (including the possible “veto”

of permits31) and must be revised if necessar y to accord with changes in federal laws and regulations.32 A

state/tribe with an approved program must provide EPA a copy of every permit application it receives and

of every genera l permit it intends to promulgate.33 EPA must provide these permits to the Corps and the

FWS. e federal government ha s 90 days to decide whether to object to the proposed permit and any

such objection prevents the issuance of the permit. If a state/tribe does not revise the permit to meet all of

the federal objections, the authority to issue that permit reverts to the federal government (the Corps).34

9. Expires August 3, 2017.

10. Expires February 22, 2017.

11. Expires December 6, 2017.

12. Expires October 1, 2016.

13. Expires January 31, 2017.

14. Expires July 1, 2016.

15. Expires May 31, 2017.

16. Expires May 31, 2016.

17. 40 C.F.R. §§233.10–.14.

18. 40 C.F.R. §233.15.

19. 33 U.S.C. §1344(g)(l).

20. 40 C.F.R. §233.1(d). Elements of a delegated state program that are more stringent than the federal program are not subject to federal oversight

or enforcement. 40 C.F.R. §233.1(c).

21. 40 C.F.R. §§233.12(a), 233.40, and 233.41.

22. 33 U.S.C. §1344(g)(l).

23. 33 U.S.C. §§1344(h)(l)(A)(ii), (iii).

24. 33 U.S.C. §§1344(h)(l)(B)–(H).

25. 40 C.F.R. §233.

26. See supra Chapter 4.

27. 40 C.F.R. §233.1(b).

28. EPA administers state program authorizations, although consultation with the Corps and the FWS is mandatory. 33 U.S.C. §1344(g)(2).

29. 33 U.S.C. §1344(h)(l).

30. 40 C.F.R. §§233.50–.53.

31. 40 C.F.R. §§233.20(b), 233.50.

32. 40 C.F.R. §233.16.

33. 33 U.S.C. §1344(j).

34. See Michigan Peat v. U.S. Environmental Protection Agency, 175 F.3d 422, 427, 29 ELR 21125 (6th Cir. 1999). See also 40 C.F.R. §§233.50–.53

(federal oversight).