States' Roles and State Programs

Author:Stephen M. Johnson
Pages:312-327
312
Chapter 9
States’ Roles and State Programs
Although the Corps of Engineers and the Environmental Protection Agency jointly
administer the Clean Water Act Section 404 program, States play a vital role in the
protection of wetlands. States can protect wetlands by: (1) creating their own State laws,
regulations and programs to protect wetlands, which can be more stringent and regulate
more wetlands than the Section 404 program; (2) assuming authority from the Corps of
Engineers to administer the federal Section 404 permit program, or streamlining permitting
under that program through the implementation of a State programmatic general permit; (3)
“vetoing” or imposing conditions on Section 404 permits through the Clean Water Act
Section 401 certification process; and (4) preventing the issuance of a Section 404 permit
for activities that violate State plans under the Coastal Zone Management Act.
State programs to protect wetlands are especially important to address wetlands or
activities that are outside the jurisdiction of the Section 404 program. See Chapters 4 and
5, supra.
I. State Programs
A. Federal/State Relationship
The Clean Water Act, like most federal environmental laws, adopts a cooperative
federalism approach, recognizing “the primary responsibilities and rights of States to
prevent, reduce and eliminate pollution...” See 33 U.S.C. § 1251(b). The statute explicitly
provides that the Clean Water Act does not pre-empt State or local water pollution control
programs, and recognizes that States and local governments can establish programs that
State Authorities
State Wetland Protection Programs
404 Assumption or Programmatic General Permits
401 Certification
Coastal Zone Management Act Certification
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are more restrictive and regulate more waters and activities than the federal program.
See 33 U.S.C. § 1370. Section 510 of the statute provides:
Except as expressly provided in this chapter, nothing in this chapter shall
(1) preclude or deny the right of any State or political subdivision thereof or
interstate agency to adopt or enforce
(A) any standard or limitation respecting discharges of pollutants, or
(B) any requirement respecting control or abatement of pollution;
except that if an effluent limitation, or other limitation, effluent standard,
prohibition, pretreatment standard, or standard of performance is in effect
under this chapter, such State or political subdivision or interstate agency
may not adopt or enforce any effluent limitation, or other limitation, effluent
standard, prohibition, pretreatment standard, or standard of performance
which is less stringent than the effluent limitation, or other limitation, effluent
standard, prohibition, pretreatment standard, or standard of performance
under this chapter; or
(2) be construed as impairing or in any manner affecting any right or jurisdiction of
the States with respect to the waters (including boundary waters) of such States.
Id. Under this floor preemption approach, programs of states and local governments can
be more restrictive, but not less restrictive, than the federal program.
In theory, therefore, states can provide vital protection for wetlands by addressing waters
and activities that are not regulated under the Section 404 program, or by imposing
additional limits on activities that are regulated under that program. However, a recent
study prepared by the Environmental Law Institute found that over 2/3 of states have
enacted laws that could limit the authority of states to regulate waters that are not
regulated under the Clean Water Act. See Environmental Law Institute, State Constraints:
State-Imposed Limitations on the Authority of Agencies to Regulate Waters Beyond the
Scope of the Federal Clean Water Act (May 2013). Many of those laws were not targeted
specifically at wetlands regulation, but apply broadly to state environmental regulation or
state regulation of a range of activities. According to the ELI report, thirteen states have
adopted laws that require that state regulations must be “no more stringent than” federal
regulations. Id. at 1. Twenty-three other states have adopted laws that prohibit states from
adopting regulations that are more stringent than federal regulations unless certain
requirements are met. Id. at 13-14. In addition to those limitations, the report notes that
twenty-two states have adopted laws that could limit state protection of wetlands because
the laws require state officials to compensate landowners for reductions in property value
caused by regulation or require state officials to assess their actions for takings implications

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