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)
&EPA WETLANDS FACT SHEET # 23
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
assumption.
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
program;
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
resources.
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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