December 04, 2018 Articles

The Boundaries of State Assumption of Wetland Permitting Authority Get Tested

There are demonstrated pros and cons to a delegation program authorized by section 404(g).

By Ted Warpinski and Chris Meuler

Under section 404(g) of the Clean Water Act (CWA), the federal government may delegate authority to a state to administer a state’s own dredge-and-fill permitting program in lieu of the permitting program administered by the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers.

Proponents of such a delegation program typically cite increased efficiency and more effective allocation of federal and state agency resources as benefits. States may also be incentivized by increased local control and the ability to integrate more local concerns and regulations into the review process. Similarly, permit applicants have the potential benefit of dealing with only one regulator.

But even where a state has assumed permitting authority, a federal oversight component remains because the state must still provide the EPA and the Corps with notice and an opportunity to comment on wetland permit applications that would otherwise be under federal jurisdiction. If a federal agency objects, the state must resolve the objection or else jurisdiction transfers back to the federal agencies.

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