October 24, 2018

U.S. Army Corps of Engineers Offers Guidance to States to Assume Administration of Clean Water Act Permitting

Michelle R. McKown

On February 24, 2017, shortly after taking office, President Donald J. Trump issued Executive Order 13777 (EO), “Enforcing the Regulatory Reform Agenda,” which stated that “[i]t is the policy of the United States to alleviate unnecessary regulatory burdens placed on the American people.” Environmental regulations have been seen by the Trump administration as fertile grounds for lessening regulatory burdens and returning authority back to the states when legally appropriate. 

The Clean Water Act (CWA) is one environmental statute that has been in the Trump administration’s focus. The Clean Water Act’s stated policy is “to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use of land and water resources. . . .” Section 101(b), 33 U.S.C. § 1251(b). Consistent with the goals of the EO, the administration has restored the “Waters of the United States” (WOTUS) jurisdictional determination standard to that in place before the Obama-era “Clean Water Rule.” Subsequently, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (USACE) resumed using the definition promulgated in 1986/1988, implemented consistent with subsequent Supreme Court decisions and guidance documents. However, in August of 2018, the District Court for the District of South Carolina reinstated the 2015 definition of WOTUS set forth in the Clean Water Rule. [1] The court directed that USACE use the rule in making jurisdictional determinations in 22 states, the District of Columbia, and US territories. Jurisdictional determinations in the remaining states are not affected by this ruling and USACE will continue to apply the 1986/1988 standard.[2] The Trump administration is currently evaluating the district court’s decision and it is likely more litigation will occur in the future.

In addition to its resumption of the 1986/1988 standard, the administration has recently focused on a rarely utilized provision of the CWA—section 404(g), 33 U.S.C. § 1344(g)—to help achieve the goals of the EO and shift regulatory authority to the states. Section 404(g)(1) allows “[t]he Governor of any State desiring to administer its own individual and general permit program for the discharge of dredged or fill material into the navigable waters . . . within its jurisdiction [to] submit to the Administrator a full and complete description of the program it proposes to establish and administer under State law or under an interstate compact.” The CWA thus allows a division of responsibilities for section 404 dredge and fill permits between the federal government and states.

Curiously, however, section 404(g) has only been utilized by two states, Michigan and New Jersey, to assume authority for dredge and fill permitting.[3] This is in contrast to other CWA provisions that states have used to develop their own programs and assume permitting authority with EPA approval. For example, 46 states are authorized in part or in full to administer the National Pollutant Discharge Elimination System (NPDES) through CWA section 402(b) (33 U.S.C. § 1342(b)). This is an overwhelmingly popular approach to CWA compliance. Why then is a program such as section 404 not as popular as the NPDES?

To answer that question, in 2015, EPA established the Assumable Waters Subcommittee (the subcommittee) within the National Advisory Council for Environmental Policy and Technology. The subcommittee’s purpose was to provide information and analyze why the states have not assumed permitting authority as allowed by section 404(g) and recommendations regarding how states’ interest could be increased. The subcommittee issued a final report in May of 2017.[4]

The subcommittee reported that the main reason that states have not shown interest in assuming the section 404 program is uncertainty in the scope of the states’ permitting authority under the CWA. Section 404(g)(1) requires the USACE to retain permitting authority over “those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward to their ordinary high water mark, including all waters which are subject to the ebb and flow of the tide shoreward to their mean high water mark, or mean higher high water mark on the west coast, including wetlands adjacent thereto.” Such waters are non-assumable and the section 404 program for discharges into such waters must be retained by the USACE for dredge and fill permitting purposes. Permit programs for discharges into all other waters may assumed by the states.

On July 30, 2018, the assistant secretary of the army (civil works) issued a memorandum to the commanding general of the USACE regarding which waters should be non-assumable under section 404(g).[5] Based on the subcommittee’s 2017 final report, the memorandum stated that it is appropriate for the USACE to retain several categories of waters for permitting. First, the memorandum recommended retaining waters that are jurisdictional under section 10 of the Rivers and Harbors Appropriation Act of 1899 (RHA),[6] which includes all navigable waters involved in interstate commerce. Second, the memorandum recommended retaining wetlands adjacent to waters covered by section 10 of the RHA. Although the memorandum indicated that EPA will provide clarification and procedures in the future through a rulemaking process on section 404(g) state assumption programs, the memorandum further advised that states need not wait for such a rulemaking process before implementing section 404(g) assumption.

For waters that are not retained by the USACE, states that assume section 404 permitting authority must determine whether the water body requires a permit by determining if the water body is a WOTUS. Currently, that determination must be made by applying the definition of WOTUS promulgated in 1986/1988, implemented consistent with subsequent Supreme Court decisions and guidance documents. The USACE’s recent memorandum should make it easier for states to understand the circumstances in which they may assume section 404 permitting authority. However, with diminishing resources of state governments, it will be interesting to see if states actually pursue this program. While the NPDES program is popular, administration of the section 404 permitting program would be resource intensive for states. States will have to assemble staffs with new expertise, who will have to deploy to the field to make jurisdictional determinations. This could be enough incentive for states to stay the course and allow the USACE to continue to administer the program.

Endnotes

[1] https://www.epa.gov/wotus-rule/definition-waters-united-states-rule-status-and-litigation-update.

[2] https://www.epa.gov/wotus-rule/about-waters-united-states.

[3] https://www.aswm.org/wetland-programs/s-404-assumption.

[4] https://www.epa.gov/cwa-404/assumable-waters-sub-committee.

[5] https://www.army.mil/e2/c/downloads/525981.pdf.

[6] Section 10 of the RHA prohibits the construction of any bridge, dam, dike, or causeway over or in navigable waterways of the United States without congressional approval.

Michelle R. McKown

Published: October 24, 2018

Michelle R. McKown currently practices as an environmental attorney for the US Department of Energy, Office of Science, in Lemont, Illinois. She may be reached at mmcko1218@gmail.com. The views expressed in this article are solely those of the author and do not reflect the position of the US Department of Energy.