The Swamp Stomp
Volume 15, Issue 40
On Sep. 15, the Environmental Protection Agency announced the creation of a new sub-committee under the National Advisory Council for Environmental Policy and Technology (NACEPT). The new committee, called the Assumable Waters Sub-Committee, will provide recommendations on clarifying details for states or tribes attempting to assume permitting responsibilities under section 404 of the Clean Water Act.
Section 404 of the CWA currently outlines a program for regulating tidal waters, waters used for transport and their adjacent wetlands. As it stands now, the program is largely administered by the Army Corps of Engineers. However, this section of the CWA allows for a state or tribe to assume the responsibilities of the program and administer it themselves. Currently, only New Jersey and Michigan have done this.
The EPA decided to make this sub-committee because states have said that section 404 does not provide enough details for them to estimate the cost of administering the program themselves. The purpose of the Assumable Waters Sub-Committee will be to make recommendations on how to clarify this to NACEPT.
By adopting the program, states will be able to have direct control over their wetlands. Also, those seeking a section 404 permit would only have to go to the state level for that permit.
The EPA’s website states, “The EPA fully supports states and tribes assuming permitting responsibilities for the aquatic resources under their jurisdiction.” It is possible that the creation of the Assumable Waters Sub-Committee is meant to encourage more states to assume the responsibilities of section 404.
To assume permitting responsibilities, a state needs to create a similar program to the federal one and submit it to the EPA. After the program is reviewed and accepted, the Army Corps of Engineers will no longer process permits for waters in that state. However, the program will still be subject to an annual review by the EPA.
The EPA’s website outlines this process in greater detail at http://water.epa.gov/type/wetlands/outreach/fact23.cfm. For more information on the creation of the Assumable Waters Sub-Committee go to http://www2.epa.gov/cwa-404/assumable-waters-sub-committee.
