In his State of the State address on January 16, 2013, Alaska Governor Sean Parnell called for the state to assume primacy for dredge and fill permitting under Section 404 of the Clean Water Act. Two days later, on January 18, 2013, Governor Parnell introduced two bills – Senate Bill 27 and House Bill 78 – that would establish authority for a state dredge and fill program. Although the Clean Water Act has authorized state administration of the Section 404 program since 1977, only Michigan and New Jersey have assumed Section 404 regulatory authority.
Section 404(g) of the Clean Water Act authorizes a state to assume regulatory authority for dredge and fill permits upon approval by EPA. A state program must regulate all activities that are regulated under federal law and must assure compliance with all requirements of Section 404, including public notice and application of the 404(b)(1) Guidelines. In addition, all permit applications must be sent to EPA for review unless EPA has waived review. However, EPA may not waive review of certain types of permits such as draft general permits, permits for discharges that have the potential to affect ESA-listed species, permits for discharges within national and state parks, fish and wildlife sanctuaries and refuges, and historic properties under the National Historic Preservation Act. If EPA objects, the state may not issue the permit.
The process for obtaining EPA approval is set forth at 40 C.F.R. § 233. The Governor submits a description of the proposed state program with a statement from the state attorney general that state laws provide adequate authority to carry out the proposed program and memorandums of agreement with both EPA and the Corps. EPA has 120 days from the date a complete application is received to approve the state program. The State and EPA may agree to extend this deadline.
The biggest advantage to state assumption of Section 404 permitting – and the apparent motivation behind Governor Parnell’s actions – is streamlining the permitting process. Significant disadvantages are the lack of federal funding for state programs, federal veto authority over permit decisions, and retained Corps jurisdiction over waters that are or could be used in interstate commerce, waters subject to the ebb and flow of the tide, and wetlands adjacent to these waters. This last issue is of particular concern in coastal states like Alaska where the Corps may retain jurisdiction over extensive areas of the state. Alaska should carefully consider this issue in evaluating whether the benefits of state primacy outweigh the burdens.