State Authorities

• Author: Margaret 'Peggy' Strand/Lowell Rothschild
• Pages: 137-150

Page 137

Chapter 7

State Authorities

The Clean Water Act preserves state authority

and does not preempt state law. As a result,

in addition to regulation under federal law,

wetlands are regulated under state and local law.

Such laws cover the full range of wetlands, includ-

ing coastal, tidal, riparian, and isolated wetlands.

us, wetlands that are not, or arguably not, sub-

ject to federal jurisdiction may be subject to state or

local regu latory restrictions. While this Deskbook

does not attempt to completely c atalogue all state

and local regulations, it does present examples of

state wetland regulations and provide sources for

additional information.1

is chapter also addresses the various CWA

authorities used by the Corps (and EPA) to coordi-

nate federal and state wetland progra ms. rough

these mechanisms, the state obtains the “lead ” for

all or part of the §404 program within its boundar-

ies, subject to federal oversight. In addition, in most

states with their own wetlands permit program, the

Corps and the state will administer their authori-

ties through a joint application process (using a

single application form), to facilitate coordination

for the agencies and the applicants.

I. State Authority for §404

Permitting

States ca n be authorized to administer federa l

CWA authority under 33 U.S.C. §1344(g)-(k).2 To

1. ELI provides comprehensive studies of state wetland laws.

See E   L I , S W 

A  : S , T  M  A  

(2008), available at http://www.elistore.org/reports_d etail.

asp?I D=112 79&to pic= Wetland s; E   L

I, S W P E: P

I-IV, (2005-2008), available at http://eli.org/Program_Areas/

water_pubs.cfm.

2. FWPCA §404(g)-(k). For a thorough review and analysis of §404

delegation, see Oliver A. Houck & Michael Rolland, Federalism

in Wetlands Regulation: A Consideration of Delegation of Clean

date, only two states, Michigan3 and New Jersey,4

have received this authority. In these states, the

state has the authority to issue §404 permits, sub-

ject to federa l oversight. States can also increase

their role in the federa l regulation of wetlands by

obtaining State Programmatic General Permits

from the Corps. e ra nks of states that have

received State Program General Permits continues

to grow and now includes all of the states within

the Corps’ New England District (Connecticut,5

Maine,6 Ma ssachusetts,7 and New Hampshire,8

Rhode Island,9 and Vermont10) as well as Florida,11

Maryland,12 Pennsylvania,13 and Virginia.14

A. State Program Authorization

EPA, not the Corps, makes t he 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. Part

233. e regulations set forth the procedures for

the submission15 and terms for approval16 of state

and tribal programs. Among other things, the state/

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. §233.71. 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. Expires May 31, 2011.

6. Expires October 11, 2010.

7. Expires January 20, 2010.

8. Expires June 28, 2012.

9. Expires February 13, 2012.

10. Expires December 5, 2012.

11. Expires July 24, 2011.

12. Expires June 30, 2011.

13. Expires July 1, 2009.

14. Expires June 1, 2012.

15. 40 C.F.R. §233.10-.14.

16. 40 C.F.R. §233.15.