In March 2018, the Legislature enacted 2017 Wisconsin Act 183 – perhaps best known for the exemptions it created for artificial and nonfederal wetlands.
But Act 183 also created a Wetland Study Council to research and develop recommendations on a number of topics, including:
Program elements that would be necessary for the department of natural resources to implement if the department assumes from the federal government the authority to administer the state’s own individual and general permit program for the discharge of dredged or fill material into the navigable waters of the state under section 281.12(2).
The Mechanics
Under Section 404(g) of the Clean Water Act, the federal government may delegate authority to a state to administer a state’s own dredge and fill permitting program, in lieu of the program administered by the Environmental Protection Agency and the Army Corps of Engineers.
Ted Warpinski, Marquette 1987, is a shareholder at Davis & Kuelthau, where he practices primarily in the area of environmental law and litigation out of the firm’s Green Bay and Milwaukee offices.
Chris Meuler, U.W. 2001, is an attorney at Davis & Kuelthau, Milwaukee, where his practice focuses primarily on civil and business litigation.
Potential benefits of a delegation program include increased efficiency and more effective allocation of federal and state agency resources.
Even after assumption, a state must still provide the EPA and Corps with notice and an opportunity to comment on wetland permit applications that are normally under federal jurisdiction, so some oversight of federal standards remains. If a federal agency objects, the state must resolve the objection, or else jurisdiction transfers back to the federal agencies.
With this, states are incentivized by more local control and the ability to integrate more local concerns and regulations into the review process, and permit applicants have the potential benefit of dealing with only one regulator.
Potential Costs
To paraphrase a web-slinging superhero, with a state’s assumption of greater power comes greater responsibility – which includes increased costs.
So far, only two states – Michigan and New Jersey – have assumed wetland permitting pursuant to section 404(g). Wisconsin has previously reviewed the feasibility of assuming the federal wetland program on more than one occasion. In a 1991 report, the DNR noted that there are some potential benefits, but concluded that there is a low feasibility for implementation given inadequate jurisdiction and limited funding and staffing.
In a 2007 report, the DNR posited that the annual budget increase for assuming jurisdiction was more than $1 million and that it would require at least 16 new full time employees. The study also questioned the utility of assumption, noting that wetland permit coordination between Wisconsin and federal agencies is already occurring.
Case Study: The Back Forty Mine Project in Michigan
The Wisconsin Legislature has directed further study. The Wetland Study Council can find an example of the mechanics of an assumption program in the wetland permit determination for the proposed Back Forty Mine project in the Upper Peninsula of Michigan.
In addition, the case is worth watching, because the proposed mining site is located adjacent to the Menominee River, and raises the question of whether federal delegation can extend to boundary waters and their adjacent wetlands.
There is substantial local opposition on both sides of the river, and the federal agencies did raise objections to the permit – objections that were withdrawn after Michigan included substantial conditions in the permit.
The wetland permit is being challenged, including a challenge the authors have initiated on behalf of a Wisconsin-based citizen group. The Menominee Tribe, which has its origin in the area, actively challenged the earlier-issued mining permit, and filed an action in the Eastern District of Wisconsin challenging EPA’s authority to delegate permitting authority to Michigan as it relates to the Menominee River.
How these matters play out may provide important lessons for Wisconsin as the DNR revisits this issue.
Case Study: Anderson v. Department of Natural Resources
Lessons might also be learned from Anderson v. Department of Natural Resources (2011 WI 19), which involved an advocacy group’s challenge to a wastewater discharge permit issued by the DNR for Fort James Operating Company’s Broadway Mill in Green Bay.
The DNR was delegated authority from EPA to issue wastewater permits; one of the permit challenges in Anderson addresses whether the permit complied with federal requirements.
The DNR denied challengers a public hearing on the federal issues, and that decision was affirmed by the Circuit Court. The Court of Appeals reversed, but the Wisconsin Supreme Court disagreed and affirmed the DNR’s decision.
One of the primary reasons the supreme court gave for affirming was that the challengers could always seek federal court review of the federal issues. Then-Chief Justice Abrahamson issued a dissent that raises some legitimate issues over, as she phrased it, whether current and “future challengers have an effective forum in which to express their concerns that terms in a state-issued permit do not comply with federal law.”
Consider the Case Studies
The Clean Water Act allows Wisconsin to expand its assumed authority to include wetland permitting.
As they revisit the potential costs and benefits of assumption, the authors simply encourage the Wetland Study Council and the Legislature to consider the above case studies for lessons about the nature and scope of authority that can be assumed.
