Challenges & Successes of State 404 Assumption

Hear from practitioners in New Jersey and Michigan about the  successes and pitfalls of state 404 assumption in both states.

This topic was covered in the 20th episode of Ecobot’s webinar series, Convergence of Wetland Science and Technology. View recorded episodes here.

Topics

• Overviews of the Michigan and New Jersey assumptions
• 404 assumption resources

Moderator Jeremy Schewe, PWS, Chief Scientific Officer, Ecobot 

Presenters & Panelists Todd Losee, MS, Ecologist, Niswander Environmental
Susan Lockwood, Mitigation Unit Supervisor, NJDEP
Brenda Zollitsch, PhD, Senior Policy Analyst, Association of State Wetland Managers (ASWM)
Anne Garwood, Wetlands Unit Supervisor, MI EGLE
Ryan Anderson, Bureau Chief, NJDEP
Kerri MacNutt, Senior Manager, ECT

Michigan’s 404 Program Anne Garwood is Supervisor of the Wetlands, Lakes, and Streams Unit at Michigan’s Department of Environment, Great Lakes, and Energy (EGLE). EGLE administers the Section 404 program in Michigan, which is home to four Great Lakes covering over 3,000 miles of Great Lakes Shoreline, plus over 11,000 inland lakes, 36,000 river miles, and over 6.5 million acres of wetlands. Michigan’s Wetland Protection Act was specifically written to support a state assumption of the program.

“Within our Wetlands Protection statute, the Michigan legislature clearly recognized the benefits of wetlands. In our statute, they’re identified as functions and values right in the legislative findings incorporated into what we call ‘Part 303 Wetlands Protection,’” says Garwood.

Part 303 reads: 

“A loss of a wetland may deprive the people of the State of some or all of the following benefits to be derived from the wetland:

• Flood and storm control
• Wildlife habitat
• Protection of subsurface water resources and recharging ground water supplies
• Pollution treatment
• Erosion control
• Nursery grounds and sanctuaries for fish”

“We felt it was important to have these functions and values identified in the statute to always bring back what wetlands serve for the people of the State,” adds Garwood.

Michigan Program Timeline and Overview

• 1972 - Michigan’s Inland Lakes and Streams Act passed: This act regulates activities on inland lakes and streams.
• 1977 - Federal Clean Water Act amended to allow State Administration of the Section 404 Program
• 1979 - Michigan’s Wetland Protection Act passed: The law was passed with the intention of assuming the Section 404 Program.
• 1983 - Michigan and U.S. Environmental Protection Agency (EPA) sign Memorandum of Agreement (revised in 2011): Provided approval of assumption of the Section 404 Program.
• 1984 - Michigan and the U.S. Army Corps of Engineers (USACE) sign Memorandum of Agreement: Designated navigable waters over which the Section 404 authority is retained by the federal agencies
• 1984 - Michigan assumes administration of its own regulatory program for most waters

USACE retains jurisdiction over traditionally navigable waters, including the Great Lakes, connection channels, other waters connected to the Great Lakes where navigational conditions are maintained, and wetlands directly adjacent to these waters. Activities in these waters require a joint permit application for approval by Michigan and USACE. 

Michigan maintains consistency with the federal 404 program by implementing state statutes, including Part 303 Wetlands Protection, Part 301 in the Lakes and Streams Protection, and administrative rules for those state statutes, which fall under the Natural Resources and Environmental Protection Act at the state level. The language in those statutes coincides with that of the Clean Water Act and 404 Guidelines, and Compensatory Mitigation Rule, and is consistent with definitions in the state program regulations and 404 program definitions. 

Michigan statutes have clearly defined regulated activities, which include regulation or permitting of the placement of fill material in wetlands dredging, removing, or permitting the removal of soil or minerals from wetlands; construction, operation, or maintenance of uses or development in wetlands and draining surface water from wetlands. Part 301 has similar language for inland lakes and streams. 

A permit from EGLE provides multiple authorizations, except in areas where USACE retains jurisdiction. A single permit, therefore, could include 404 authorization; 401 certification for water quality; and coastal zone certification, if it falls within the coastal zone boundaries. As part of their review, EGLE incorporates screening and coordination with state and federal Endangered Species and the Federal Historic Preservation programs.

The structure and levels of Michigan’s permits are similar to those of USACE: both have three levels of permits, which are general permits, minor projects, and individual permits. Both general permits and minor projects can be issued for up to five years, which are expedited processes for those projects which have individual and cumulative minor impacts under both 301 and 303. These are roughly similar, but not identical, to the nationwide permits, regional general permits and individual permits issued by USACE.

Michigan’s MOA with the EPA includes a definition for those projects which require additional EPA review. In simplified terms, this includes: 

• draft general permits and minor projects, both of which are considered general permits
• projects which have major discharges, which are defined with certain quantities and impact amounts
• discharges which are located in proximity to a public water supply intake
• discharges within critical areas, which are identified under state or federal laws
• projects which have a likelihood to impact federal T&E species
• projects which are likely to impact waters of another state or tribe
• projects which involve known toxic pollutants in toxic amounts

The application process and permitting program is now administered through an online database called MiWaters, a web-based application which is used for all permits offered by the Water Resources Division, not only 404 applications. It’s used internally by EGLE staff, and is also visible to the general public. The system is used for permits, inspections, financial reporting, and compliance issues. The public can view applications and public notice materials, documents, issued permits, and more. 

Michigan averages approximately 5,000 permit applications per year, with the average time for determining an application’s completion is around 18 days, and the average processing time overall at about 41 days, commensurate with the complexity of the project. EGLE has about 82 full-time employees administering the program, which costs about $12.3 million per year, only ~20% of which is covered by the fees from the program. 

Michigan has consolidated permit processing, such that each application requires just one permit and one fee, and is simultaneously reviewed under not only Wetlands, Lakes, and Streams statutes, but also any other applicable State statutes, including flood plains, dam safety, shorelands, Great Lakes, and critical dunes. “This allows us to address State priorities,” explains Garwood. 

When determining 404 permits, Michigan officials weigh the language of how they’ve determined prior decisions, public trust responsibilities, and riparian rights. Policies and procedures are specific to Michigan’s needs, while remaining federally consistent.

Benefits of Michigan’s 404 program

Shorter permitting timelines: Unlike the federal process, Michigan has statute-mandated deadlines for the permit processing timeline. For example, the statutes require that a decision is made within 60-90 days of receipt of a complete application under the Wetlands statute and the Inland Lakes and Streams statute, or within 150 days if a public hearing is held. 30 days are allowed to determine administrative completeness. 

Effective resource protection: Since Michigan’s Wetland Protection laws passed in 1979, the rate of wetland loss has declined dramatically.

“We believe that our program offers effective resource protection, and includes cost and time savings and simplicity for applicants in Michigan,” Garwood says.

New Jersey’s Assumed Wetland Program

“New Jersey is the most densely populated state in the nation. As a result, there’ve been many pressures and environmental issues that have occurred here in advance of what’s gone on in other states, and we have a very vocal and active grassroots environmental movement,” says Susan Lockwood, Mitigation Unit Supervisor at the New Jersey Department of Environmental Protections (NJDEP). It was these activist groups who drove the Coastal Wetlands law (1970), the Coastal Zone Management program which followed a few years later, and the more famous Freshwater Wetlands Protection Act (1987). A stream protection program had existed since the 1950s, leaving freshwater wetlands as the only important resource that didn’t get attention until the ‘80s.

The Freshwater Wetland Protection Act passed on July 1, 1987 with the intent of preserving the purity and integrity of freshwater wetlands. In the year following, New Jersey officials put together their wetland regulations, and regulations for wetland buffers and transition areas. 

When considering assumption, Lockwood explains, it was important to determine what areas the State could have sole jurisdiction over, and which would need to be shared and retained by USACE. They determined that, as interstate waters, the Delaware River, Greenwood Lake, and the Atlantic Ocean–within 1,000 feet of the ordinary high water mark of each body–fell into this category. USACE also retained jurisdiction over anything subject to the ebb and flow of the tide, with the determination of 1,000 feet correlated with what USACE considered “adjacent” when they determined how to regulate wetlands, waters and wetlands adjacent. 

As in Michigan’s case, New Jersey had to have a Memorandum of Agreement with the EPA, and identify the categories of review that the EPA would have oversight of. On top of those listed in Michigan’s MOA, New Jersey added a handful of state-specific ones with impacts that were significant enough to warrant EPA oversight, including:

• the filling of five or more acres of wetlands;
• a significant reduction in the ecological commercial recreational value of five or more acres of wetlands;
• culverts longer than 100 feet;
• and the channelization of more than 500 feet of a river stream

When the State law passed, two areas were listed as exempt from jurisdiction, including the Hackensack Meadowlands in the northeastern part of the state, and the Pinelands in the southern portion. The Hackensack Meadowlands remained exempt from State law and in the jurisdiction of USACE because the waters are title waters and wetlands adjacent to title waters. 

The Pinelands area of New Jersey created a different situation: because the area is inland freshwater wetlands, though some areas have tidal influence. Additionally, the Pinelands area was already a national reserve area, and therefore under protection. It had its own endangered species list, regulatory program, and wetland delineation program. In assuming the Pinelands, New Jersey would need to maintain these programs. They put together a Memorandum of Understanding (MOU) with the Pinelands Commission, such that for smaller impacts, like general permit-type impacts, the Pinelands Commission does the review and reports to the State on the results. For anything larger that would require an individual permit, the NJDEP conducts reviews. The Pinelands Commission still does their own jurisdictional determinations, because their definition of wetlands is more stringent than the state and federal definition. In sum: the Pinelands were not wholly assumable.

Once the NJDEP worked out how things would work in the Pinelands, and what was and wasn’t assumable from USACE, they put together their package and submitted it to the EPA in 1993. The EPA declared the application complete in about two weeks, at which point the U.S. Fish and Wildlife Service (USFWS) expressed concern about not having a direct role in the State’s program, even though the State was coordinating with them. USFWS was not satisfied that the coordination process through EPA was enough, and instead wanted to coordinate directly with the State. Though not required to do so, NJDEP sat down with USFWS and worked out an MOU about the coordination process, after which the USFWS withdrew their objection. The State-led assumption program then became effective in 1994.

Prior to assuming the federal program, New Jersey had a program in operation from 1988-1994. Assumption changed how that program operated in a few ways:

• When applications come in, they are screened internally for major discharges. Anything classified as a major discharge is immediately sent to the EPA, which then distributes it among USACE, USFWS, and National Marine Fisheries. If any of those agencies wishes to provide comment to EPA, New Jersey has to wait to receive and satisfy the comment before moving forward with the permit. There is a time limit for those comments to prevent the State permitting process from being held up indefinitely.
• Resulting from what was worked out with USFWS, NJDEP has an internal Threatened and Endangered Species Unit, which conducts major and immediate screening of applications that could affect federally-listed threatened or endangered species. If a project comes in from a township where there are endangered plant species or a federally-listed Swamp Pink species, it is immediately screened to ensure that there’s no Swamp Pink associated with the property in question. If it’s determined that the application could affect a federal species, the applicant must coordinate directly with USFWS. Again, if the USFWS intends to provide a comment or conditions, the application is on hold until those comments are received. Time limits still apply.
• NJDEP has to report annually to EPA on statistics including number of permits, and how coordination has gone.
• NJDEP coordinates with the Historic Preservation Office.

Differences from the Federal Program

• New Jersey uses the 1989 Federal Manual for delineating wetlands, which is beneficial because they aren’t tied to the federal definition of Waters of the United States (see previous webinar for more background on WOTUS.)
• Additional things NJ regulates:

• Isolated wetlands, which requires more analysis on the federal level.
• Transition areas, which are buffers to wetlands, and the upland area adjacent to a wetland. These fall under a separate regulatory scheme, and the permits are called “transitionary waivers.”
• Vegetation cleaning, such that the trimming of vegetation within a wetland, even without intention to fill, must be permitted.

Assumption Resources Several years ago, the Association of State Wetlands Managers (ASWM) received funding to guide states and tribes as they considered assuming responsibility for the 404 process as it was expected that a new 404 rule would soon be in place. No rule was ever imposed, however, and it’s unclear when or if one will be.

In lieu of a new rule, ASWM brought together 36 experts from across the country–from states, tribes, federal agencies, consultants, academia, and more–to examine what 404 assumption implied for different groups, how to fill gaps that 404 didn’t address, and what alternatives there might be. This resulted ASWM’s, a robust compilation of resources on the subject. The page contains links to EPA’S 404 rule and guidance, frequently asked questions, a list of definitions, a checklist of assumption considerations, a matrix of 135 assumption examples, recorded webinars and trainings, and more. 

Initial Considerations for Assumption

• Defining state/tribal goals for assumption
• Determining if there is public support for comprehensive administration of a Dredge and Fill permit program by states or tribes
• Conducting an inventory of existing state/tribal statutes and regulations
• Undertaking an initial side-by-side comparison of state/tribal and federal program
• Identifying gaps
• Identifying and securing funding mechanisms to support the assumed program guaranteeing adequate public participation processes
• Identifying how the state/tribe will comply with other required federal laws