The U.S. Army Corps of Engineers is ready to hand over Clean Water Act permitting authority on a subset of protected waters to states and tribes.
For decades, farmers and ranchers have faced confusion not only on what constitutes a water of the United States, but also where to apply for Section 404 dredge and fill permits. Many farmers have undertaken projects that require the movement of soil during construction, only to learn later they violated the Clean Water Act by not having permits.
As a result, farmers and ranchers can face penalties of $37,500 per day, per violation. In addition, state and local governments often have faced federal permitting delays on a variety of construction projects.
Handing the program to the states is seen as a way to streamline the program.
In a memorandum written by Assistant Secretary of the Army for Civil Works R.D. James and released by the Corps on Tuesday, the Corps would retain permitting authority on only those waters used for interstate or foreign commerce, including tidal waters and adjacent wetlands.
So far, only Michigan and New Jersey have assumed 404 permitting, according to the memo, because states were uncertain which waters the Corps would retain for permitting.
Though the EPA currently is rewriting the definition of waters of the United States, the memo said states do not have to wait for that rewrite before assuming permitting of other waters.
“Further, I have personally heard from state officials who — but for this uncertainty — would pursue Section 404(g) assumption on behalf of their state,” the memo said.
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“While EPA intends to address the subcommittee report and clarify the waters for which a state or tribe could assume responsibility as well as the procedures related to state assumption under Section 404(g) in a rulemaking process, assumption of the Section 404.”
EPA sent a proposed rewrite of the water rule to the Office of Management and Budget for review.
In 2015, the EPA established a subcommittee to explore the scope of waters and adjacent wetlands that could be assumed by states and tribes. That committee issued a final report in May 2017.
James said in a statement the change will better promote infrastructure improvements and economic development.
“This action supports this administration’s dedication to infrastructure by providing states and tribes the clarity they need to better balance their environmental protection mission with their economic development goals,” he said.
“In my view, implementing Section 404 in this clear and decisive manner not only adheres to the language of the statute and the intent of Congress when enacting Section 404(g), but it is also in the overall best interest of the Army and the regulated public.”
Read the memorandum here.
Todd Neeley can be reached at firstname.lastname@example.org
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