Zollitsch quoted in Inside EPA article on lack of talks on Section 401

Officials from a variety of states are continuing to raise concerns over what they say is EPA's failure to consult with them as officials weigh President Donald Trump's recent order requiring EPA to limit states' Clean Water Act (CWA) roles reviewing federal decisions, despite the agency's pledge to “immediately engage with our state and tribal partners.”

“We're very concerned about how that executive order is going to be implemented,” Maryland Secretary of the Environment Ben Grumbles, a Republican who led EPA's water office during the Bush administration, said during a May 2 keynote address at an American Law Institute Continuing Legal Education (ALI CLE) conference in Washington, D.C., on CWA issues.

Grumbles and other states' officials told the May 2-3 conference that they are frustrated both by a lack of information about how their state programs may be affected as the agency implements Trump's executive order and the perception that EPA is treating them the same as any other stakeholder rather than as co-regulators.

At issue is CWA Section 401, which generally gives states authority to review federal projects to ensure they do not undercut attainment of water quality standards. As such, states may place conditions on federal permits before certifying them or they may decline to certify them.

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States' “biggest complaint is that they haven't been consulted,” Brenda Zollitsch, a senior policy analyst with the Association of State Wetland Managers, said May 2.

While EPA has held talks with states on its proposed changes to the definition of the waters of the United States that are subject to regulation, there have not been similar conversations over section 401, Zollitsch said. It is very hard to provide substantive comments on guidance and regulations that states haven't actually seen yet, she said.

States “don't know what's going to happen next” with the 401 policy and how that may fit with the Trump administration's push to narrow the scope of the CWA and encourage more states to assume authority to issue CWA dredge-and-fill permits under section 404, Zollitsch said.

The Trump administration is pushing assumption but stripping states of their authority under section 401, Zollitsch said.

The Association of Clean Water Administrators (ACWA) earlier this year raised concerns that the Trump administration's push to narrow CWA jurisdiction undermines the administration's push to have more states assume section 404 permitting.

And ahead of the group's written comments, an ACWA official said that while several states are interested in stepping in to issue state permits for wetlands no longer covered by the federal law, setting up and implementing those programs will be difficult and resource-intensive. This is especially true if states want to go beyond issuing permits and into enforcement against people who fill in wetlands without filing an application, the source said.

Zollitsch said many states are interested in assuming some, but not all, of dredge-and-fill permitting activities under section 404. For example some states may not want to take on permitting affecting agriculture, others may not want to take over authority for existing permits involving mitigation bank credits, and others may prefer a phased approach, she said.

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