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State and Tribal Assumption of Section 404 of the Clean Water Act

Basic Information about Assumption under CWA Section 404

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What is Assumption?

Section 404 of the Clean Water Act requires a permit before dredged or fill material may be discharged into waters of the United States. Section 404(g) of the Clean Water Act gives states and tribes the option of assuming, or taking over, the permitting responsibility and administration of the Section 404 permit program for certain waters. Section 404 permits for those assumed waters would be issued by the state or tribe instead of the U.S. Army Corps of Engineers (Corps). The Clean Water Act provides that the Corps retains permitting authority in certain tidal waters and other specified waters currently related to the transport of interstate or foreign commerce.

What Laws and Regulations Relate to Assumption?

In amendments to the Clean Water Act in 1977 and 1987, Congress gave states and tribes the ability to assume responsibility for part of the Clean Water Act Section 404 permit program. The amendments require EPA to approve or deny a state or tribal request to assume the permit program, to oversee operation of the assumed program, and to coordinate federal review of state or tribal permit actions. EPA can also withdraw program approval if the assumed program does not comply with applicable statutes and regulations (U.S.C. 33 1344(g-i)).  

In 1988, EPA revised the regulations (40 CFR 233) that contain criteria and procedures for approving, reviewing, and withdrawing approval of a state or tribal Section 404 program. An assumed program operates under state or tribal law; a state or tribe must have its own laws that authorize the regulatory program and meet Clean Water Act requirements, including ensuring permits comply with environmental review criteria known as the Clean Water Act Section 404(b)(1) Guidelines.

What are the General Requirements for an Assumed State or Tribal Program?

An assumed program must be consistent with and no less stringent than the requirements of the Clean Water Act and regulations. The assumed program must include, but is not limited to, the following provisions:

  • Permitting procedures;
  • Administrative and judicial review procedures;
  • Regulating discharges into all assumed waters within the state or tribe’s jurisdiction;
  • Regulation of at least the same scope of activities as the Section 404 program;
  • Public participation;
  • Meeting public notice requirements;
  • Permit issuance consistent with the environmental review criteria known as the Clean Water Act Section 404(b)(1) Guidelines;
  • Compliance and enforcement authorities as specified in the regulations; and
  • Coordination procedures with federal agencies, adjacent states and tribes.

For a complete list of program requirements please see the regulations at 40 CFR 233. States and tribes may develop programs under state or tribal law that reach beyond the jurisdiction of the Clean Water Act and regulate activities more broadly than the Clean Water Act does. When an approved state or tribal program has a greater scope than required by the Clean Water Act, the additional coverage is not part of the approved program and is not subject to EPA oversight or enforcement.

States and tribes assume permitting authority over certain waters, but others are retained under the authority of the Corps. Assumption does not reduce the scope of Clean Water Act jurisdiction, but instead shifts responsibility for administering the Section 404 permitting program for certain waters of the United States from the federal government to authorized states or tribes.

Why Would States or Tribes Consider Assuming the Section 404 Program?

State and tribal regulators are generally more familiar than the with local aquatic resources, issues, and needs. An efficient state- or tribal-run program can help reduce delays and save money for permit applicants. States and tribes can also integrate dredged and fill permitting with traditional water quality programs, such as monitoring and water quality standards, or state/tribal land use planning requirements. Under an assumed program, Section 404 permit applicants may need only a single state or tribal permit for dredged or fill material discharges. Since more than a dozen states and tribes currently administer dredged and fill programs separate from the federal program, assuming the Section 404 program allows states and tribes to streamline the review process and reduce unnecessary paperwork and duplication. It may also reduce the potential for conflict between federal and state or tribal decisions or permitting conditions.

How Does the Assumption Process Work?

States or tribes should work with their respective EPA Regional Office “early and often” during the preparation of the Section 404 assumption package to ensure it is complete. Once the package is complete, the package goes through a 120-day review process, as specified in 40 CFR 233.15. To ensure that the assumption request package can be approved within that timeline, states or tribes are encouraged to coordinate with all parties during the development of the package before official submission.