Kentucky Seeks State Control of Wetlands Program

Published August 1, 2006

A June 5 meeting of a Kentucky Environmental and Public Protection Cabinet task force indicated the state is well on its way to assuming control of the Federal Clean Water Act Section 404 program for wetlands in the state.

The Section 404 program requires a permit from the U.S. Army Corps of Engineers for any discharge of dredged or fill materials into designated sites of navigable waters covered by the Clean Water Act.

One part of Section 404 allows states to assume responsibility for the permitting process. If things go according to plan, Kentucky will be only the third state to do so. Michigan and New Jersey are the other two. Kentucky officials want to take on the process in order to improve efficiency and state control of decision-making regarding wetlands.

Since the beginning of the year a broad array of federal and state agency officials, environmental groups, and industry representatives have met 11 times to research state control over wetlands permitting. Six months of meetings culminated in a two-day consensus process.

Governor Initiated Process

Before any state can begin the process, certain steps must take place. The first step for Kentucky began with Gov. Ernie Fletcher (R) issuing a directive for the Environmental and Public Protection Cabinet to undertake the review process.

From there Secretary LaJuana Wilcher created a 28-member task force to study the issue. Fletcher submitted legislation to enable and make legal the review process. The task force produced a 60-page report reviewing the current 404 system. The report concludes with a 20-page appendix containing recommendations from delineation to enforcement actions.

At a June 5, 2006 task force meeting, Wilcher updated members on the progress and was pleased the task force could agree on fundamentals of a state Section 404 program. Wilcher indicated the next step is to begin the request for proposal (RFP) to draft the regulations.

Concerned about Funding

Critical to a state’s assumption of a permitting program is the financial cost and whether it can pay for such a program. The Kentucky General Assembly made $833,926 available in the first year of a two-year budget cycle, with $600,000 allocated in fiscal year 2007-08 for section 404 administration costs.

If Kentucky falls short in the funding process, the task force hopes to close the gap with permit fees or reorganization of Division of Water offices to improve efficiency and save money.

The task force minutes show some members expressed concerns over whether funding would be sustainable and whether state control would weaken environmental protection efforts. Nevertheless, participants in the review process agreed to pursue the next steps leading toward state assumption.

The move is not without its critics. Russ Harding, former director of Michigan’s Department of Environmental Quality, said, “If Michigan had it to do over again an assumption program should not be followed.” Harding added, “Michigan’s program is not any easier for applicants than people originally thought it would be.”

Sustainability a Concern

The Section 404 Task Force made 20 pages of recommendations regarding the proposed state program. Chief among the findings was that “a state run process should not only be transparent and predictable, but also sustainable.”

Task force coordinator Amanda Waters said, “The real goal of state assumption is better science and wetlands monitoring with expedited application review.” It remains to be seen whether those goals can be met.

Among the topics addressed by the task force recommendations are electronic submission of permit applications; public notice and education; wetlands mitigation tracking and monitoring; coal mining; timeliness of application review by state agencies; sufficient consultation in advance of the application process; technical review concerning other federal and state laws; adequate resources and training for agency staff; public interest review; and an ability to consider applications by impact rather than activity.

Task force members hope a new program, if approved, will provide greater public participation, transparent enforcement, and coordinated permit application and review processes.

EPA has 120 days to review Kentucky’s efforts.

Jeff Edgens, Ph.D. ([email protected]) is director of research for the Bluegrass Institute for Public Policy Solutions in Bowling Green, Kentucky.