Assumption Request Approval Process under CWA Section 404
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Regulatory Requirements
- 40 CFR 233.1 specifies the procedures EPA will follow, and the criteria EPA will apply, in approving, reviewing, and withdrawing approval of state or tribal programs under Section 404 of the Act.
Overview of the Approval Process
EPA regulations establish a detailed process for program package submission and approval. Below are key highlights of that process; this is not a comprehensive list of all steps in the approval process. According to EPA regulations, if EPA determines the state or tribe changes its submission during the review period, the statutory review period starts over upon receipt of the revised submission. EPA and the state or tribe may extend the statutory review period by agreement.
Assumption package submitted to EPA for 120-day review period
- 30-day EPA review for package completeness
- Complete – state or tribe notified
- Incomplete - package returned to state or tribe
- If EPA finds that the request package is incomplete, the review period does not begin again until EPA receives all necessary information
- EPA encourages states and tribes to collaborate with EPA if a package is found incomplete
120-day review period of a complete package
- Coordination with other federal agencies:
- Copy of the assumption request sent to the U.S. Army Corps of Engineers (Corps), U.S. Fish and Wildlife Services (USFWS) and the National Marine Fisheries Service (NMFS) within 10 days of package receipt
- The Corps, USFWS, and NMFW provide comments to EPA within 90 days
- Copy of the assumption request sent to the U.S. Army Corps of Engineers (Corps), U.S. Fish and Wildlife Services (USFWS) and the National Marine Fisheries Service (NMFS) within 10 days of package receipt
- Publishing notice of assumption request in the Federal Register and newspapers
- 45-day comment period minimum - includes comments on the program per the CWA and potential impacts to historic properties per the National Historic Preservation Act
- Public hearing held 30+ days after Federal Register notice published
- Consultation
- Tribal consultation, if appropriate
- Endangered Species Act Section 7 consultation with the USFWS and NMFS, if a decision to approve a state or tribal CWA Section 404 program may affect ESA-listed species or designated critical habitat
- National Historic Preservation Act section 106 public input and consultation with the Advisory Council on Historic Preservation, State Historic Preservation Offices, Tribes, and others as appropriate
Regional review
- Within 120 days of receipt of a complete assumption request package (unless an extension is agreed to by the state or tribe), the respective Regional Administrator approves or disapproves the program based on whether the program fulfills the statutory and regulatory requirements
- The Regional Administrator responds to comments
- The Regional Administrator provides direct response to Corps, USFWS, and NMFS
Regional Administrator approves or disapproves assumption request within 120 days of receipt of a complete assumption request package
- If the Regional Administrator approves the state or tribal Section 404 program:
- EPA notifies the state or tribe and the Corps, and publishes a notice in the Federal Register
- If the Regional Administrator disapproves the state or tribal program:
- The Regional Administrator notifies the state or tribe of the reasons for disapproval and of any revisions or modifications to the program which are necessary to obtain approval
- If the state or tribe resubmits an assumption request package remedying the identified problem areas, the review period and approval process begins again