State Assumption of the Section 404 Program of the Clean Water Act
By U.S. ArmyDecember 10, 2018
Under section 404(g) of the Clean Water Act (CWA), States and Tribes are authorized to take an active role in the permitting of the discharge of dredged and fill material within their jurisdiction of governance by assuming administration of the CWA section 404 program which is generally implemented by the U.S. Army Corps of Engineers (Corps). Following is information to help States or Tribes understand potential benefits, scope of jurisdiction, requirements and process, and roles and responsibilities when assuming the CWA section 404 program from the Federal Government. Assumption of permitting authority by a State or Tribe pursuant to CWA section 404(g) does not affect the Corps' responsibilities to regulate navigable waters under section 10 of the Rivers and Harbors Act (RHA) of 1899.HOW MAY STATES AND TRIBES BENEFIT FROM ADMINISTERING THE SECTION 404 PROGRAM?• Recognizing and respecting the primary responsibilities and rights of States and Tribes to regulate their land and water resources helps carry out the overall objective of the CWA (see section 101(b) of the CWA), and ensures that the agencies are giving full effect and consideration to the entire structure and function of the Act.• Under section 101(b) of the CWA, Congress expressed that it was their policy "that the States…implement the permit programs under sections 402 and 404 of this Act." State assumption helps achieve the goals of Congress.• More than a dozen States are currently administering aquatic resources/wetlands protection programs similar to the Federal CWA Section 404 program. Assumption could therefore help reduce unnecessary duplication between programs as Section 404 permit applicants would only need a State or Tribal permit for discharges of dredged or fill material into certain waters. Other States can modify their regulations to ensure they are at least as stringent as the Federal program if they are interested in pursuing assumption.• State and Tribal regulators are, in many cases, located closer to the proposed activities and are often more familiar with local resources, issues, and needs than are Federal regulators.WHICH WATERS CAN STATES/TRIBES ADMINISTER UNDER THE SECTIN 404 PROGRAM?• States and Tribes can assume administration of the CWA Section 404 program only for certain waters. The Corps is required to retain jurisdiction of:
- Waters that are jurisdictional under section 10 of the RHA of 1899, provided that such retained waters include tidal waters shoreward to their mean high water mark, or mean higher high water mark on the west coast, and retained waters do not include those waters that qualify as "navigable" solely because they were "used in the past" to transport interstate or foreign commerce; and,
- Wetlands adjacent to those retained waters above, landward to an administrative boundary agreed upon by the State or Tribe and the Corps.• For ease of implementation and to provide transparency to States, Tribes and the public, the Corps will use existing RHA Section 10 lists of waters as a starting point. The Corps may amend the RHA Section 10 lists as appropriate and consistent with applicable regulations and case law.HOW DO STATES/TRIBES ASSUME THE SECTION 404 PROGRAM?• EPA Oversight. EPA oversees the CWA Section 404 assumption program. Within 120 days of receipt of a complete application, EPA reviews and makes a decision on a State or Tribe's assumption request. More information is available at EPA's website (see links).• Qualifying State and Tribal Wetlands Permit Program. A State or Tribe's wetlands permit program needs to be consistent with the requirements in the CWA and regulations at 40 CFR 233, including an equivalent scope of jurisdiction, regulation of at least the same activities, compliance with CWA Section 404(b)(1) guidelines, and adequate enforcement authority. Development or modifications to a wetlands permit program may require the passage of new State or Tribal legislation.
- Partial programs are not allowed under assumption. States and Tribes may impose more stringent requirements but cannot impose any less stringent requirements.
- See 40 CFR 233 Subpart G for more information regarding Tribal assumption.• Application Documentation. In accordance with 40 CFR 233.10-14, States or Tribes must submit to EPA: a letter from the Governor requesting program approval; a complete program description; an Attorney General's statement; a Memorandum of Agreement (MOA) with EPA; an MOA with the Department of the Army (Army); and, copies of all applicable State or Tribal statutes, regulations, and applicable administrative procedures.• Coordination with the Army. The MOA with the Army includes:
- A description of waters that remain under Corps jurisdiction, as identified by the Army;
- Transfer procedures for any applicable pending 404 permit applications from the Corps to the State or Tribe;
- Identification of which CWA Section 404 general permits will be administered and enforced by the State or Tribe and procedures for transfer; and,
- Procedures for the prompt transmission of other relevant information, including support files for permit issuance, compliance reports and records of enforcement actions.WHAT HAPPENS AFTER STATES OR TRIBES ASSUME THE SECTION 404 PROGRAM?• When States or Tribes assume administration of the CWA Section 404 program, the Corps no longer processes CWA Section 404 permits in assumed waters. The State or Tribe determines regulated areas and activities, processes permits, and carries out enforcement activities. EPA conducts an annual program review to ensure the State or Tribe program is in compliance with requirements of the CWA. For some activities (generally includes larger discharges with serious impacts), EPA and other Federal agencies may review the permit application and provide comments to the State or Tribe. The State or Tribe cannot issue a permit over EPA's objection.WHERE CAN YOU GO FOR MORE INFORMATION?• For a list of waters retained by the Corps, contact your local Corps District Regulatory Office at the Corps Regulatory Program link listed.• For information on CWA Section 404 assumption process and potential technical/financial assistance, contact your local EPA Regional Office at the EPA Regional Office link listed.• For information on EPA's proposed rule-making to clarify regulations governing the CWA section 404(g) process at 40 CFR Parts 232 and 233, see link to EPA's current efforts regarding CWA Section 404 Program.