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. Printed on Recycled Paper ------- 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 inted on Recycled Paper ------- |