Water: Outreach & Communication
State or Tribal Assumption of the Section 404 Permit Program
The Clean Water Act provides States and Tribes the option of assuming administration of the Federal Section 404 permit program in certain waters within State or Tribal jurisdiction. This fact sheet describes reasons why States and Tribes might assume administration of the Section 404 program from the Federal government, which waters could be administered by States or Tribes under this program, and the process for assuming administration of these waters.
Why Assume Administration of the Section 404 Program?
More than a dozen States already are currently administering aquatic resources/wetlands protection programs similar to the Federal Section 404 program. This makes sense because 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. By formally assuming administration of the Federal regulatory program, States or Tribes can eliminate unnecessary duplication between programs. If States or Tribes assume program administration, Section 404 permit applicants would need only a State or Tribal permit for dredged or fill material discharges in certain waters.
Which Waters Can States/Tribes Administer under the Section 404 Program?
States and Tribes can assume the Federal Section 404 program only in certain waters. The U.S. Army Corps of Engineers retains jurisdiction in -
- tidal waters and their adjacent wetlands
- waters used as a means to transport interstate or foreign commerce and their adjacent wetlands.
State assumption under Clean Water Act Section 404 does not affect the Corps' responsibilities to regulate navigable waters under Section 10 of the Rivers and Harbors Act of 1899.
How to Assume the Section 404 Program
To assume the Section 404 program, States or Tribes need to develop a wetlands permit program similar to the Federal program and submit to the EPA an application to assume the program. (See the box on page 2 for details on this process.) Even for States or Tribes with an existing wetlands regulatory program, this process can require the passage of new legislation. To be eligible to assume the Federal program, State or Tribal programs must
- have an equivalent scope of jurisdiction as the Federal program
- regulate at least the same activities as the Federal program
- provide for sufficient public participation
- ensure compliance with the Section 404(b)(l) guidelines, which provide environmental criteria for permit decisions
- have adequate enforcement authority.
What Happens After States or Tribes Assume the Program?
When States or Tribes assume administration of the Section 404 program, the Corps no longer processes Section 404 permits in waters under State or Tribal jurisdiction. The State or Tribe assumes responsibility for the program, determines what areas and activities are regulated, processes individual permits for specific proposed activities, and carries out enforcement activities. EPA reviews the program annually to ensure the State or Tribe is operating its program in compliance with requirements of the law and regulations. In addition, for some activities, which generally include larger discharges with serious impacts, EPA and other Federal agencies review the permit application and provide comments to the State or Tribe; the State or Tribe cannot issue a permit over EPA's objection.
Status of State/Tribal Section 404 Program Assumption
To date, two States, Michigan and New Jersey, have assumed administration of the Federal permit program. Other States and some Tribes are working toward or investigating the possibility of assuming the permit program. Reasons States have expressed for not more actively pursuing assumption of the program include lack of funding, limit of program administration to "non-navigable waters," concerns regarding Federal requirements and oversight, availability of alternative mechanisms for State/Tribal wetlands protection, and the controversial nature of regulation of wetlands and other aquatic resources.
For More Information
If your State or Tribe is interested in assuming administration of the Federal Section 404 permit program, contact the EPA Regional Office in your area. Call the EPA Wetlands Information Hotline (contractor operated) to determine the appropriate EPA contact. EPA also can provide technical assistance (and may also be able to provide some financial assistance through the State Wetlands Grants Program) to help State Wetlands and Tribes develop the authority, capability, and documentation needed to assume the Federal permit program.
Additional information on 404 assumption is available from the Association of State Wetland Managers website.
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.
*NOTE: Tribes are eligible to apply to assume the Federal permit program after they have met requirements for "treatment as a state." See the February 11, 1993, Federal Register notice. (See Publications of Interest for details.)