State Authorities

AuthorMargaret 'Peggy' Strand/Lowell Rothschild
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
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 etail.
asp?I D=112 79&to pic= Wetland s; E   L
I, S W P E: P
I-IV, (2005-2008), available at
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.

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