General Information about CWA Section 404(g)

What is Assumption?

Clean Water Act Section 404 establishes a permitting program to regulate the discharge of dredged or fill material from a point source into waters of the United States. Section 404(g) of the CWA authorizes eligible Tribes, states and territories¹ to take over, or assume, administrative authority over Section 404 permitting in some waters of the United States within their jurisdiction. Section 404 permits for those assumed waters would be issued by the Tribe or state instead of the U.S. Army Corps of Engineers. Section 404(g) regulations at 40 CFR Part 233 establish the procedures and requirements for assuming and administering a Section 404 program. Even after a Tribe or state is approved to administer a Section 404 program, the Corps retains permitting authority over certain waters of the United States and adjacent wetlands, and the EPA retains oversight of the program.

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 Tribes, states and territories.

What Laws and Regulations Relate to Assumption?

CWA Section 404(g) provides eligible Tribes and states the ability to assume responsibility of the CWA Section 404 permit program in certain waters of the United States. The amendments require the EPA approve or deny a Tribal or state request to assume the permit program, oversee operation of the assumed program and coordinate federal review of Tribal or state permit actions. The 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)). An assumed program operates under Tribal or state law; a Tribe or state must have its own laws that authorize the regulatory program and meet CWA requirements, including ensuring permits comply with environmental review criteria known as the CWA Section 404(b)(1) Guidelines.

Section 404(g) regulations at 40 CFR Part 233 describe the criteria and procedures for requesting, approving, reviewing and withdrawing a Tribal or state Section 404 program.

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

An assumed program must be consistent with and no less stringent than the requirements of the CWA and implementing regulations. For a complete list of program requirements please see the regulations at 4 0 CFR Part 233. An assumed Section 404 program must regulate discharges of dredged or fill material into all assumed waters within the Tribe's or state's jurisdiction. Any permit issued by the Tribe or state into waters of the United States must be consistent with the environmental review criteria known as the CWA Section 404(b)(1) Guidelines. Permit issuance must also comply with CWA public participation requirements, including providing for public notice and comment, convening public meetings as appropriate and providing for judicial review of permitting actions. A Tribe or state must also provide for coordination of permit issuance with federal agencies, adjacent Tribes and states.

Tribes and states may develop dredged and fill permitting programs under Tribal or state law that reach beyond the jurisdiction of the CWA and regulate activities more broadly than the CWA; however, when a Tribal or state has a broader scope than required by the CWA, the additional coverage is not part of the approved CWA Section 404 program and permitting action in those waters are not subject to the EPA's oversight or enforcement.

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

A Tribe or state may be interested in assuming the CWA Section 404 program for many reasons. A few examples are noted below.

Administering the CWA Section 404 program at the Tribe or state level provides opportunities for permitting efficiencies while reducing duplicative efforts between the Corps and the assuming Tribe or state. For example, since more than a dozen Tribes and states currently administer dredged and fill permitting programs separate from the federal program, assuming the Section 404 program allows Tribes and states to streamline the review process and reduce unnecessary paperwork and duplication. As a result, Section 404 permit applicants may need only a single Tribal or state permit for dredged or fill material discharges. Obtaining a single permit may also reduce the potential for conflict between federal and Tribal or state decisions or permitting conditions.

Additionally, Tribal and state regulators may be more familiar with their local aquatic resources, issues and needs. This familiarity and knowledge may help the Tribe or state develop a Section 404 dredged and fill permitting program that accommodates a Tribe's or state's individual needs.

Finally, under an assumed program, Tribes and states may choose to integrate Section 404 dredged and fill permitting with other traditional water quality programs, such as monitoring and water quality standards, or Tribal/state land use planning requirements. The assuming Tribe or state may also implement more environmentally protective practices than required under the Clean Water Act.

How Does the Assumption Process Work?

To assume the CWA Section 404 program, Tribes and states need to develop a Section 404 dredged and fill permit program consistent with CWA requirements and submit a request to assume the program for EPA approval. The EPA encourages Tribes and states to work with their respective EPA Regional Offices “early and often” during the preparation of their program assumption package to ensure it is complete. Even for Tribes and states with an existing dredged and fill regulatory program, preparing to request assumption may necessitate the passage of new laws or modification of existing laws to address all assumable waters or activities covered by CWA Section 404. Once the program assumption package is complete, the package goes through a 120-day review process, as specified in 40 CFR Part 233. Upon the EPA's approval, the Tribe or state assumes Section 404 permitting responsibility from the Corps 30 days from the date of publication of the notice in the Federal Register, or if previously agreed upon, at a later date not to exceed 180 days from the publication date.

1. The word "state" means any of the 50 states, the District of Columbia, Guam, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, the Commonwealth of the Northern Mariana Islands, the Trust Territory of the Pacific Islands, or an Indian Tribe, which meets the requirements of 40 CFR 233.60. See 40 CFR 233.2. For purposes of this part, the word "state" also includes any interagency requesting program approval or administering an approved program.