There was an overwhelming response from you that the State of New Hampshire should assume the Clean Water Act Section 404 program. There were many detailed and thoughtful responses to my question. Virtually all liked the idea of getting the federal agencies out the State. Concerns were raised about how to address the secondary impact mitigations that are currently administered by the federal agencies. In this article, I would like to get more into the “weeds” of assuming the CWA Section 404 program (CWA 404). For much of the information below, I am referencing a 2010 article from the Association of State Wetland Managers. “Expanding the States’ Role in Implementing CWA 404 Assumption”, by Leah Stetson.
Currently, only two states have adopted CWA 404: Michigan and New Jersey. By contrast, 45 states have implemented CWA 402, point source discharge program. (The majority of states adopted Section 402 provisions because they were mandated by the EPA with strict guidelines and associated penalties. The same is not true for Section 404.) It was Congress’ original intent when it adopted the CWA to have states assume all aspects of the Act. So why haven’t more states assumed the CWA 404?
States that have considered assuming 404 have faced barriers including lack of political will, lack of funding, jurisdictional issues, and finally, uncertainty on how to address other federal requirements like the Endangered Species Act. New Hampshire has not yet formally considered assumption, but I advocate that it should.
What would assumption look like for our State’s Dredge and Fill program? The Department of Environmental Services (the Department) would “assume” the 404 permitting program in lieu of a permit program administered by the US Army Corps of Engineers (the Corps). The state assumption of CWA 404 would be administered by the EPA, which would provide overall program oversight to ensure compliance with the federal standards, but not day-to-day or project-by-project involvement.
The Corps would also be removed from the day-to-day coordination efforts, but would retain authority to issue permits for activities in waters regulated under Section 10 of the Rivers and Harbor Act waters after state assumption. These would be waters which are traditionally utilized to transport interstate or foreign commerce, such as major rivers, tidal or coastal waters, and their adjacent wetlands. If assumption for our State is approved by the EPA, the Corps suspends processing of all wetland permits everywhere except Section 10 waters.
I think the benefits of adopting the CWA 404 for the State and those seeking wetland permits are very clear. Program efficiency would be enhanced by reducing the number of agencies reviewing a Dredge and Fill application. State agency resources would be better allocated. There would be state-specific policies and procedures resulting in increased regulatory program stability. All of these factors would lead to increased public support. Moreover, the overall public support for wetland regulation in general would be increased by having only the State (not the federal agencies) making the decisions and having responsibility for the policies and procedures. This kind of local control has always been viewed favorably in the Granite State.
I don’t believe the barriers in New Hampshire are substantial. From the responses I got from my first article on assumption, it looks like the political will could be generated. The State could meet the requirements for assumption with some modifications to program requirements and jurisdiction. The Department’s current definition of jurisdiction and “activities regulated” are more extensive than those of the CWA 404. It has virtually the same permit review criteria and permit exemptions.
The Department already coordinates with the Natural Heritage Bureau for endangered or threatened species and with the Division of Historic Resources for the National Historic Preservation Act. Perhaps further coordination with US Fish and Wildlife Service might be required, but could certainly be managed.
The Department has a fully funded wetlands program that includes both permitting and compliance. Little to no additional funding would be required for assumption of the CWA 404.
So, what is the fly in the ointment, the elephant in the room, the snag? The issue is secondary impacts. Currently, with a few exceptions, RSA 482-A of the State Law does not give the Department jurisdiction over uplands adjacent to wetlands. Of course, some might argue that the CWA 404 currently in practice also does not allow for federal secondary impact assessment either, but that is an issue that may take a few more rounds at the Supreme Court and many years to determine. I don’t want to wait that long!
The feds currently look to upland areas around vernal pools and along streams for their assessment of secondary impacts. For the State to consider secondary impacts, I believe a change in RSA 482-A is needed. It is important to note that this would not be enactment of a state-wide buffer to vernal pools and/or streams. The secondary impact assessment would only occur if the project had a direct wetland impact: in other words, if it needed a Dredge and Fill Permit.
That is the bad news. The good news is that there would actually be rules for the secondary impacts that could be consistently applied to all situations rather than the current situation in which there are no rules. Sometimes you just have no idea what the federal agencies will determine are secondary impacts. I like to know what I am facing. I do not want to guess what is behind Doors 1, 2 or 3.
Clearly, I am for assumption. Now that you know more of the details, what do you folks think?
“In My View” is an opinion article that will be written once a month. It is my view of wetland and other environmental issues that will or may affect your business or organization. It will sometimes give you updates on new rules or legislation that has recently passed. In other cases, I will discuss legislation that is “in the works” at our state capital. As the name would imply, it is my view of what this rule, legislation or change means to you. I am constantly meeting with clients, friends and local regulatory officials who are asking me what this rule means or what that piece of legislation does. For that reason, I am posting this for associates of GES who might care to have this information. I will not be political, but I do reserve the right to be opinionated. If in the coming months there is a topic, law, rule or regulation that you would like me to discuss, let us know. If I feel that I am competent to say something about it, I will discuss it in the future.
That concludes this Months article. Each past article will be stored on our website at www.gesinc.biz or Google: Gove Environmental Services, Inc. I hope this will be of value to you.
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