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State Permits for Alteration of Wetlands Under Section 404 of the Clean Water Act Guidelines
Delegation to a state agency of authority under Section 404 of the federal Clean Water Act
to permit filling of wetlands can happen under two distinct provisions of the Act:
assumption by a state of permitting authority with approval of EPA is
expressly authorized by the Act under specified conditions intended to assure that the
state will administer the program properly and in accordance with federal guidelines. This
method results in state administration of the entire federal regulatory program under
section 404 except for fills in waters subject to the ebb and flow of the tide and
wetlands adjacent thereto. issuance by the Corps of Engineers of a special kind of general permit called
a "programmatic general permit" or a "state programmatic general
permit" (SPGP). These kinds of general permits have been used in several states to
authorize state agencies to issue section 404 permits for certain activities. Section 404
does provide for the issuance of general permits for activities similar in nature, but
does not expressly provide for the use of general permits to delegate permitting authority
to state agencies. The legality of SPGP's has therefore been questioned.
The following conditions and safeguards should be assured before delegation of Section
404 permitting authority by state assumption or by SPGP.
Assurance of adequate long-term funding by the state specifically earmarked for
administration and enforcement of the program at the state level. State permitting
authority should automatically terminate and federal permitting resume if in the opinion
of EPA state funding drops below a specified level or a state fails to effectively
administer or enforce the program. States should be required to make annual reports to the
Corps of Engineers and to EPA setting forth approvals and denials of permit applications,
mitigation required, the extent to which mitigation plans have been monitored and have
achieved performance goals and the status of state funding earmarked for administration
monitoring and enforcement. Copies of such reports should be made available to any other
agency or person upon request. At least one year prior to the delegation, the state shall have in force legislation
that is at least as protective of wetlands as Section 404 and include provisions of the
404(b)(1) sequencing guidelines pertaining to water dependency, practicable alternatives,
avoidance or minimization of impacts and mitigation. Reliance on Section 401 water quality
certification authority to protect wetlands is not sufficient to satisfy this requirement.
The state law must provide jurisdiction over and protection of all aquatic sites that are
included in the delegated authority (i.e wetlands including isolated wetlands, mudflats,
vernal pools, vegetated shallows,and other waters). If state law provides exemptions for
agricultural activities, such exemptions should not exceed those provided by federal law
and should be conditional on the use of best management practices similar to those imposed
by federal regulatory agencies. A state should not be authorized to issue general permits. State law must provide an opportunity for public participation in the permitting
process including a requirement for timely notice with adequate information about all
proposed actions and access to all related public records. The state shall have a track record that proves the state's commitment and ability
to administer and enforce a strong wetlands protection program. The state should have in
place a monitoring data base system to track individual and cumulative impacts of permit
decisions in each watershed. Because wetlands have important public values that transcend local interests,
delegation of permitting authority shall be only to a state (not a local or regional
agency even if established by state law ). Delegation to a Native American tribe should be
subject to the same conditions as delegation to a state. Delegation of authority shall be made only if it is determined after consultation
with federal and state natural resource agencies and opportunity for public comment that
protection of natural resources will improve as a result. Permitting actions of the state must be subject to compliance with NEPA or to a state
law substantially equivalent to NEPA requiring analysis of the individual and cumulative
impacts of the proposed action. Permitting actions of the state must be in compliance with all requirements of the
Clean Water Act and all other federal environmental laws such as the Endangered Species
Act and the Coastal Zone Management Act. Permits shall be subject to cancellation by the
Corps or EPA if this condition is not fulfilled. EPA and the Corps of Engineers shall, in consultation with U.S. Fish and Wildlife
Service and National Marine Fisheries Service, maintain continuing and effective program
oversight and monitoring with veto power over inappropriate permits and active involvement
in regulation of interstate waters. Each SPGP shall be reevaluated at least biennially and
terminated if the state program is resulting in any significant loss of wetlands or other
aquatic sites. The public shall be provided an opportunity to participate in such
reevaluation. SPGP's should include a "kickout" provision under which the Corps will
review each permit application and will resume regulation of any proposed action that may,
in the opinion of a state or federal agency, result in more than minimal individual or
cumulative adverse impact on the environment. States should be required to set clear goals to increase wetland functions, values
and acreage and to improve water quality as part of the overall plan to assume federal
permitting authority. Permitting authority should not be given just to maintain "no
net loss" of wetlands. State law must include effective enforcement provisions including suits to enjoin
continuing violations, criminal penalties, and an agency with power to issue cease and
desist orders and collect civil penalties. State law should also require an appropriate
agency to investigate citizen complaints and provide means for citizen enforcement if the
state fails to enforce violations of state law or permit conditions. State law should
provide standing to sue for anyone who would have standing for similar actions under
federal law. Unless and until federal law is revised to authorize the delegation of permitting
authority by SPGP, comments on specific proposals for the issuance of any SPGP should
include a reservation of right to challenge the legality of the action by lawsuit.
NOTE: Some of the foregoing will require enactment of state law, as indicated.
Most can be accomplished without revision of federal law by imposing conditions on state
assumption or delegation or by other federal administrative action. Revision of federal
law is being sought by Sierra Club and others to assure the right of citizen enforcement
and to prevent enactment of legislation that would be inconsistent with these guidelines.
[The above guidelines are not official Sierra Club policy. They were developed to help
interpret and implement the Club’s policy on wetlands.]
Adopted March, 1994 by the National Wetlands Committee.
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