States' Roles and State Programs

• Author: Stephen M. Johnson
• Pages: 312-327

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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