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Environmental Blog

  • 06
  • August
  • 2014

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EPA Planning to Clarify "Assumable" Waters to Help State 404 Program Applicants

Under section 404(g) of the Clean Water Act (“CWA”), states may seek to administer their own permitting program for the discharge of dredged or fill material in lieu of the federal permitting program administered by the Army Corps of Engineers (“Corps”) if they can demonstrate that their programs are equivalent. However, states can only assume jurisdiction over certain types of waters. Specifically, section 404(g) prohibits states from assuming jurisdiction over waters that are or could be used in interstate or foreign commerce, tidal waters, and wetlands adjacent to these waters. The Corps retains jurisdiction over these non-assumable waters. The Corps also retains jurisdiction over navigable waters under section 10 of the Rivers and Harbors Act.

At present, the Corps and U.S. Environmental Protection Agency (“EPA”) have delegated authority to administer a section 404 program to only two states, Michigan and New Jersey, but Alaska and Oregon are reportedly in the process of seeking authority to implement section 404 programs.

One significant roadblock for additional states seeking to administer their own section 404 program is that the line between assumable and non-assumable waters is not always clear. Moreover, delineating between assumable and non-assumable waters could be further confused by the EPA’s and Corps’ recently proposed rule defining “waters of the United States.” The proposal has created confusion over which “other waters,” such as prairie potholes and playa lakes, are subject to state oversight. Because the proposed rule relies on the nexus or connectivity between smaller waters and larger navigable waters, it allows EPA and the Corps to argue that many waters currently eligible for state oversight are precluded from state jurisdiction.

Uncertainty over the scope of assumable waters has prompted state groups, such as the Environmental Council of the States (ECOS), to press EPA to provide guidance on the issue. On April 30, 2014, ECOS sent a letter to the EPA requesting clarity on the scope of assumable and non-assumable waters. ECOS suggested that states applying for authority to issue section 404 permits are having difficulty making progress due to the current uncertainty.

In EPA’s response to ECOS’ letter, Nancy Stoner wrote, “EPA is committed to providing clarity and removing state and tribal identified berries to assumption wherever possible.” Her letter further states that she has instructed her staff to “identify a path forward that enables [EPA] to engage [ECOS], as well as other appropriate state, federal and tribal partners and technical experts in a process that seeks to provide clarity on assumable waters under CWA Section 404(g).” EPA could potentially act through a formal rulemaking, guidance, rule revisions or a policy letter; however, EPA’s statements to date do not appear to definitively commit the Agency to any one course of action. According to ECOS, EPA reportedly reiterated this commitment to act in its quarterly Office of Water briefing in July.

We will continue to provide updates on statements made by EPA with respect to delineating assumable waters and state progress on obtaining section 404 authority. 

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