Minnesota Federal Clean Water Act Section 404 Permit Program Feasibility Study

This report fulfills the requirements of Laws of Minnesota 2015, Special Session Chapter 4, Section 137 – Federal Clean Water Act Section 404 Permit Program Feasibility Study (Appendix A). This law required the Minnesota Department of Natural Resources (DNR) and the Minnesota Board of Water and Soil Resources (BWSR) to, ". . . study the feasibility of the state assuming administration of the Section 404 permit program of the federal Clean Water Act." The law was enacted largely due to concerns from segments of the regulated community over lengthy delays in obtaining Section 404 permits.1 The law identified eleven specific topics to be identified and analyzed in the study. These are addressed in Section 3 of this report and summarized below. Section 404 of the federal Clean Water Act (CWA) regulates the discharge of dredged or fill material into waters of the U.S. (33 USC §1344). It is administered by the U.S. Army Corps of Engineers (COE) (in Minnesota, the St. Paul District) with oversight by the U.S. Environmental Protection Agency (EPA)(Region 5, for Minnesota). Section 404(g) of the CWA allows states or tribes to apply to the EPA to administer their own state/tribal regulatory program(s) to meet Section 404 requirements, thereby eliminating the need for separate, federally-issued permits for projects affecting those waters covered by state assumption. This process is known as Section 404 Program assumption. Minnesota has a comprehensive state water/wetland regulatory program, embodied primarily in the Minnesota Wetland Conservation Act (WCA), the Public Waters Permit Program (PWPP) and state water quality standards. The state of Minnesota has investigated Section 404 assumption several times previously, but the most recent comprehensive analysis was in 1993. Current state statutes contain authorization and direction to pursue assumption. However, the state has never applied for assumption for a variety of programmatic and budgetary reasons.