New EPA rule may be dealbreaker for states considering assuming the Section 404 program

[Eric]

An interesting aspect of Section 404 of the Clean Water Act is that, under Section 404(g), states can actually assume (take over) administration of Section 404 permitting responsibilities from the federal government. Since enactment of Section 404 in 1972, only three states have assumed 404 permitting: Michigan, New Jersey, and Florida. However, a few additional states - Alaska, Nebraska, and Maryland - have recently been considering assuming the program as well.

EPA recently proposed a new rule that would impose stricter judicial review and standing requirements on states that want to administer the 404 program, which may be a dealbreaker for Alaska, Nebraska, and Maryland. In particular, it looks like Alaska and Nebraska would be effectively deterred from assuming the program because they'd be forced to change how their state courts operate. Under the new rule, states assuming the program would need to provide judicial review of state agency decisions to approve or deny 404 dredge/fill permits. The new rule would also require that states assuming the program have broad standing rules that allow permit decisions to be easily challenged by the general public. According to EPA, these provisions would maximize public participation in the permitting program and ensure states fully comply with the Clean Water Act.

The affected states appear to have submitted comments protesting the stricter judicial review/standing requirements during the proposed rule's public comment period, which ended October 13. We'll have to see the extent to which EPA considers Alaska and Nebraska's situation, and whether they act to scale back these requirements, once the final rule gets issued in 2024.

 

[Jake]

So section 404 is more of a ruling that doesn't allow the dumping of waste without first obtaining a permit? Seems fair considering our waters should be mostly protected. But, I know some companies still use our water to dump their waste, and this could be a problem for some.

I'm one who doesn't like that anyone puts waste in water. Don't they have waste plants with pools of water to dilute waste?

 

[Eric]

So section 404 is more of a ruling that doesn't allow the dumping of waste without first obtaining a permit? Seems fair considering our waters should be mostly protected. But, I know some companies still use our water to dump their waste, and this could be a problem for some.

I'm one who doesn't like that anyone puts waste in water. Don't they have waste plants with pools of water to dilute waste?

Almost correct . Section 404 of the Clean Water Act regulates the discharge of dredged or fill material into waters of the United States. Any activity that involves placing fill in jurisdictional waters (e.g., converting a wetland to dry land to create a building pad) requires a permit from the Corps or state authority that's assumed permitting responsibility (for MI, NJ, and FL).

Section 402 of the Clean Water Act requires that any discharge of pollutants (e.g., liquid waste) into waters of the U.S. be regulated by a National Pollutant Discharge Elimination System (NPDES). I think this is more along the lines of what you're thinking of. The vast majority of 402 (NPDES) permits are issued by state authorities that are approved by EPA to administer the program...basically the opposite of Section 404, which generally relies on the federal government to issue permits. NPDES permits are licenses that authorize facilities to discharge a specified amount of a pollutant into a receiving water. They can also authorize facilities that process sewage sludge.