The ECOS Proposal for Expanded State Assumption of the CWA §404 Program: Unnecessary, Unwise, and Unworkable

• Date: 01 March 2009

3-2009 NEWS & A NALYSIS 39 ELR 10209

A R T I C L E S

The ECOS Proposal

for Expanded State

Assumption of the

CWA §404 Program:

Unnecessary,

Unwise, and

Unworkable

by Lance D. Wood

Lance D. Wood is Assistant Chief Counsel, Environmental

Law and Regulatory Programs, U.S. Army Corps of Engineers

Headquarters, Washington, D.C., where he has been employed

since 1976, and is an Adjunct Professor of Law at George

Washington University Law School. is Article presents only

the personal opinions of the author; it does not necessarily

represent the ocial viewpoint of the U.S. Army or the Corps.

Editors’ Summary

e Environmental Council of the States (ECOS) recently

proposed that Clean Water Act §404 be amended to

“remove the barriers” to state assumption of the §404 pro-

gram. ECOS’ specic proposals are unnecessary, unwise,

and unworkable. e best and most reliable approach

for protecting aquatic resources involves a vigorous fed-

eral §404 program along with eective state use of state

§401 water qua lity certications, Coastal Zone Man-

agement Act consistency certications, and supplemental

state law to ll in any gaps in the federal program.

In an eight-page document dated June 18, 2008, the Envi-

ronmental C ouncil of the States (ECOS) put forward a

proposal for legislative changes to the Clean Water Act

(CWA) with “two interlocked parts.”1 First, ECOS proposes

that the CWA be amended to “return the denition of ‘waters

of the United States’ to the use and meaning before the various

court ca ses,”2 i.e., to restore CWA geographic jurisdiction to

what it was before the U.S. Supreme Court decisions in Solid

Waste Agency of Northern Cook County (SWANCC) v. U.S. Army

Corps of Engineers and Rapanos v. United States.3 is legisla-

tive proposal is in keeping with similar proposals to restore the

CWA’s geographic jurisdiction that various stakeholders have

advocated in recent years.

is Article addresses the second of ECOS’ proposed inter-

locking legislative recommendations. is second part of the

ECOS proposal apparently is intended to be a “quid pro quo”

to encourage certain state interests, and perhaps the regulated

public, such as developers, to consent to congressional restora-

tion of the CWA’s geographic jurisdiction. To this end, ECOS

proposes that the C WA be amended to “remove the barriers”

to state assumption of the §404 program, which regulates dis-

charges of dredged or ll material into wetlands and other

water bodies.4

is two-part ECOS proposal is remarkably simila r to a

decades-old proposal of the National Wetlands Policy Forum

(Forum). During the 1980s, the membership of the Forum,

which included both development and environmental inter-

ests, concocted a very similar “interlocked” quid pro quo

agreement, whereby the development interests would agree

to the environmentalists’ goal of “no net loss of wetlands” in

return for having the CWA §404 program transferred to the

states through complete state assumption.

At that time, nobody else seemed willing to point out the

fallacies, errors of judgment, and problems associated with the

Forum’s proposals for expanded state assumption of §404.

us, I published an article in the National Wetlands Newslet-

ter (N WN ) entitled e Forum’s Proposal to Delegate Section

404 to the States: A Bad Deal for Wetlands.5 My article moti-

vated the chairman of the Forum, then-Governor omas

Kean of New Jersey, to publish a response entitled A Reply

to Mr. Wood.6 Governor Kean’s article, in turn, inspired two

1. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607. Letter from R. Steven

Brown, Executive Director, ECOS, with attachments (June 18, 2008) [hereinaf-

ter Letter from Brown].

2. Letter from Brown, supra note 1.

3. 531 U.S. 159, 31 ELR 20382 (2001); 547 U.S. 715, 36 ELR 20116 (2006).

4. State assumption is the process currently authorized by CWA §404(g) through

(l), whereby a qualifying state can take over permitting responsibility for §404

for non-navigable waters and their adjacent wetlands, plus water bodies that

qualify as navigable-in-law only because of “historic” navigation use. us far,

only Michigan and New Jersey have assumed §404 responsibilities.

5. Lance D. Wood, e Forum’s Proposal to Delegate Section 404 to the States: A Bad

Deal for Wetlands, N’ W N., July/Aug. 1989, at 2.

6. omas H. Kean, A Reply to Mr. Wood, N’ W N., Nov./Dec.

1989, at 2.