United States            Office of Water (WH-556F).        EPA843-F-93-001 w
              Environmental Protection     Office of Wetlands. Oceans,       March 1993
              Agency                and Watersheds (A-104 F)

              State Assumption  of the § 404
              Permit  Program
     The Clean Water Act provides States and Tribes with the option of
     assuming the Federal Section 404 permit program in certain waters
     within the State or Tribal jurisdiction.
Why Assume § 404?                  permit program thatis similar to the Federal
                                     program. Even for States or Tribes with an
    Over a dozen States are currently  existing wetlands regulatory program, this
administering aquatic resources/wetlands  can require the passage of new legislation.
protection programs similar to the Federal  In particular, the State's or Tribe's program
Section 404 program.  State and Tribal  must:
regulators are, in many cases, located closer  • have an equivalent scope of jurisdiction;
to the proposed activities and are often more  • regulate at least the same activities;
familiar with local resources, issues, and  • provideforsuffidentpublicparticipation;
needs than are Federal regulators. Formal  • ensure compliance with the § 404 (b) (1)
assumption of  the regulatory  program    Guidelines, which provideenvironmental
eliminates unnecessary duplication between    criteria for permit decisions; and
State or Tribal and Federal programs. After  * have adequate enforcement authority.
assumption, permit applicants will need only
a State or Tribal permit for dredged or fill  What Happens After Assumption?
material discharges in certain waters.
                                       After assumption, the Corps no longer
What Waters are Assumable?         processes Section 404  permits in  those
                                     assumable waters under State or Tribal
    StatesandTribescanassumetheFederal  jurisdiction.  Instead, the State or Tribe
Section 404 program only in certain "non-  assumes responsibility  for the program,
navigable"  waters.  The Army Corps of  including determining what areas and
Engineers retains jurisdiction in:          activities are  regulated, processing the
• tidal waters and their adjacent wetlands;  individual permits, for  specific proposed
  and                                activities, and  enforcement. EPA reviews
• navigable waters and their adjacent      the program annually, to ensure that the
  wetlands.                           State or Tribe  is operating its program in
    In addition, the  Corps  continues to  compliance  with the requirements of the
regulate navigable waters under Section 10  law and regulations. In addition, for a small
of the Rivers and Harbors Act of 1899.      subset of activities, generally larger
                                     discharges with potentially serious impacts,
Requirements to Assume § 404       EPA and other Federal agencies review the
                                     permit application and comment to the State
    In order to assume the Section 404  or Tribe; the State or Tribe cannot issue a
program, States  or Tribes need a wetlands  permit over  EPA's objection.
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Status of State § 404 Assumption

    To date, Michigan is the only State that
has assumed the Federal permit program.
However, other States and some Tribes are
working toward  or investigating  the
possibility of assuming the permit program.
New Jersey is seeking to assume the program
in 1993.   Florida, North Dakota, and
Louisiana are investigating the feasibility
of program assumption. Other States, such
as Wisconsin, Delaware, and some Tribes
have  expressed interest in  Section 404
    Several States have expressed a number
of reasons why they have not more actively
pursued assumption.  These include:
• lack of available funding to run the
• limit on State/Tribal assumption to "non-
    navigable" waters;
• concerns regarding Federal
  requirements and oversight;
• the availability of alternative
  mechanisms for State/Tribal wetlands
  protection; and
« the  controversial nature of regulation
  of wetlands and other aquatic
                                               State 404 Assumption Process
SteteVTribe's request to
                       the fedenl Permit Program
    EPA Receives Complete State/Tribal
         Assumption Application

  The Governor of the Stale orgqofraknt Tribal entity* submits
  to EPA a full and complete description of the program it
  proposes to establish and administer under State law or under
  an interstate compact la additioWthe State submits a state-
  ment from the Attorney General mat the laws provide ad-
  equate authority to carry out tfii' described program.

        Distribution of Application
           for Public Comment
  EPA distributes assumption apjiBhation toother Federal Agen-
  cies (Corps, FWS, and NMESj^ ;>, -

              Public Hearing

   EPA also makes the Slate's /tH&Cs package available for pub-
   lic review and commentandfotd* a public hearing(s) in the
   State.               . v*

               EPA Decision

   After reviewing tfctSUte's/Tribes appUifcon and consider-
   ing the Agenocramfpublic comments, CPAlaakes a decision
   on tr«requ«rt to assume the I^eralpcnnftprogrwn. EPA's
   decision tabasad on whether or not the State or Ifctt* meets the
   applicable statutory and regulatory requteimuBrts for an
   approvable program.               s v**
For More Information
                                     • Assumption Approved     Assumption Denied  I
     If a State or Tribe  is interested in
investigating assumption of the Section 404
permit program, the  appropriate  EPA
Regional Office should be contacted.  See
Wetlands Fact Sheet # 31, or call the EPA
Wetlands  Hotline* for the appropriate
contact person. EPA can provide technical
assistance, and may also be able to provide
some financial assistance, through the State
Wetlands Grants Program, to help States
and Tribes develop the authority, capability,
and documentation needed to assume the
Federal permit program.
 * NOTE Tribes are eligible to apply to assume the Federal Permit
 Program after they have met the requirements for "treatment as a
 State." See the February 11, 1993, Regulations listed below for
 more information.
Publications of Interest:

• Clean  Water  Act, Section 404 Program
Definition and Permit Exemptions; Section
404 State Program Regulations, June 6,1988,
Federal Register, 40 CFR Parts 232 and 233.

• Clean Water Act,  Section  404 Tribal
Regulations, February 11, 1993, Federal
Register, 40 CFR Parts 232 and 233.
      For more information contact the EPA Wetlands Hotline at 1-800-832-7828 *
 * contractor operated

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