September 20th, 2012

Testimony of David K. Paylor Director, Virginia Department of Environmental Quality Vice-Chair, Environmental Council of the States Water Committee

United States House of Representatives

Committee on Transportation and Infrastructure Subcommittee on Water Resources and Environment

Regarding

State Assumption of Clean Water Act Section 404

GOOD MORNING, MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE. I AM PLEASED TO BE HERE TODAY TO DISCUSS WHAT MANY OF THE STATES SEE AS THE BENEFITS ASSOCIATED WITH STATE ASSUMPTION OF SECTION 404 OF THE CLEAN WATER ACT AND TO RECOMMEND ACTIONS THAT WOULD HELP REMOVE SOME OF THE BARRIERS TO STATE ASSUMPTION. MY NAME IS DAVID PAYLOR AND I HAVE BEEN THE DIRECTOR OF THE VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY SINCE 2006. I AM ALSO HERE REPRESENTING THE ENVIRONMENTAL COUNCIL OF THE STATES, A NON-PROFIT, NON-PARTISAN

ORGANIZATION WHICH CONSISTS OF THE LEAD ENVIRONMENTAL COMMISSIONERS OF THE STATES AND TERRITORIES. IN 2008, ECOS ISSUED RESOLUTION 08-3 SUPPORTING DELEGATION OF SECTION 404 RESPONSIBILITIES TO STATES THAT ARE PREPARED TO DO SO AND MAKING RECOMMENDATIONS TO EPA TO FACILITATE THIS PROCESS. WE SEE A NUMBER OF BENEFITS TO HAVING THE 404 PROGRAM IMPLEMENTED BY THE STATES: MOST STATES DEFINE THEIR WATERS MORE BROADLY THAN THE CLEAN WATER ACT AND INCLUDE ISOLATED WETLANDS, EPHEMERAL STREAMS, AND GROUNDWATER THAT ARE NOT UNDER FEDERAL JURISDICTION. A STATE RUN PROGRAM WOULD ELIMIATE JURSIDICTIONAL UNCERTAINTY AND PROVIDE A CONSISTENT AND PREDICTABLE DEFINITION OF REGULATED WATERS SIMILARLY, A STATE RUN PROGRAM WOULD PROVIDE A STREAMLINED ONE-STOP PERMITTING EXPERIENCE WHICH REMOVES DUPLICATION AND REGULATORY REDUNDANCY. A SINGLE REGULATORY AGENCY IMPLEMENTING THE RULES WOULD ELIMINATE THE POTENTIAL CONFUSION THAT CAN COME FROM TWO REGULATORY BODIES AND WOULD PROVIDE FOR GREATER CONSISTENCY IN THE APPLICATION OF REGULATORY REQUIREMENTS. THE PROGRAM COULD BE ADMINISTERED BY MOST STATES AT SIGNIFICANTLY LESS COST. IN VIRGINIA WE CURRENTLY ESTIMATE IT WOULD COST AN ADDITIONAL $3 MILLION/YEAR IN OPERATING COSTS TO ASSUME THE 404 PROGRAM ON TOP OF CURRENT DUTIES. OUR BEST ESTIMATE IS THAT THIS PROGRAM COSTS THE NORFOLK DISTRICT OF THE CORPS $7.5 MILLION/YEAR TO ADMINISTER.

STATES ARE OFTEN POSITIONED TO PROVIDE TIMELY SERVICE TO PROJECT APPLICANTS WITH A THOROUGH KNOWLEDGE OF THE AREAS OF PROPOSED IMPACT.

ECOS HAS IDENTIFIED FOUR PRIMARY BARRIERS TO STATE ASSUMPTION: FEDERAL FUNDING IS NOT CURRENTLY AVAILABLE FOR SECTION 404 IMPLEMENTATION BY THE STATES. OTHER SECTIONS OF THE ACT, SUCH AS THE WASTEWATER DISCHARGE REGULATIONS, PROVIDE FEDERAL FUNDING FOR STATE IMPLEMENTATION. IN VIRGINIA THIS IS THE SINGLE LARGEST IMPEDIMENT TO OUR ASSUMPTION OF SECTION 404. THERE IS UNCERTAINTY REGARDING THE CRITERIA EPA WOULD USE FOR ASSESSING A STATES LEGAL AUTHORITIES IN THEIR ASSUMPTION DECISION. EPA CORRECTLY REQUIRES THAT STATE AUTHORITIES BE SUFFICIENT TO MEET FEDERAL REQUIREMENTS; BUT BECAUSE OF DIFFERENCES IN STATE JURISDICTION FROM THEIR UNDERLYING CONSTITUTIONS AND STATUTES THOSE CRITERIA MAY VARY FROM STATE TO STATE CREATING SOME UNCERTAINTY REGARDING EPA EXPECTATIONS. SECTION 404 PROVIDES FOR NO PHASED ASSUMPTION OPTION WHICH WOULD ALLOW STATES TO TRANSITION TOWARD FULL ASSUMPTION. SIMILARLY, SECTION 404 DOES NOT INCLUDE AN OPTION FOR PARTIAL ASSUMPTION BY STATES. PARTIAL ASSUMPTION COULD BE BASED ON SPECIFIC GEOGRAPHIC AREAS OR CERTAIN TYPES OF ACTIVITIES.

AS I MENTIONED EARLIER, THE STATES THROUGH ECOS SUPPORT EFFORTS TO ENCOURAGE SECTION 404 DELEGATION TO THOSE STATES PREPARED TO IMPLEMENT THE PROGRAM. AS SUCH WE MAKE THE FOLLOWING RECOMMENDATIONS: U.S. CONGRESS SHOULD TAKE ACTION TO AUTHORIZE AND APPROPRIATE ADEQUATE FUNDING FOR STATES TO ASSUME THE SECTION 404 PERMITTING PROGRAM SHOULD THEY CHOOSE TO SEEK IT. BASED ON VIRGINIAS ESTIMATES, FEDERAL FUNDING FOR A STATE PROGRAM COULD RESULT IN AT LEAST A 50% SAVINGS AND A CONSEQUENT REDUCTION IN THE COST BORNE BY OUR TAXPAYERS. ENCOURAGE EPA TO DEVELOP CLEAR GUIDELINES AND PROCESSES FOR STATE ASSUMPTION WHICH ENCOURAGE STATES TO APPLY FOR AND ASSUME REGULATORY RESPONSIBILITY FOR THE PROGRAM. SUPPORT A SIMPLIFIED AND MORE FLEXIBLE PROCESS FOR STATE ASSUMPTON OF THE SECTION 404 PROGRAM, INCLUDING PARTIAL AND PHASED OPTIONS. THE GOAL OF PROTECTING OUR NATIONS WETLANDS AND STREAMS IS CRITICAL TO OUR FUTURE. IT IS A GOAL THAT CAN BEST BE REALIZED THROUGH A PROCESS THAT IS CONSISTENT, EFFICIENT AND RESPONSIVE TO THE UNIQUE FEATURES AND QUALITIES OF THE INDIVIDUAL STATES. STATE ASSUMPTION CAN PROVIDE A MECHANISM FOR INDIVIDUAL STATES TO REALIZE ENHANCED WATER RESOURCE PROTECTION WHILE PROVIDING A STREAMLINED REGULATORY PROGRAM WITH A SINGLE POINT OF CONTACT. MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE, I APPRECIATE THE OPPORTUNITY TO PRESENT MY TESTIMONY TO YOU TODAY AND WILL BE HAPPY TO ANSWER ANY QUESTIONS YOU MAY HAVE.