What is CWA 404 Assumption?
“Assumption” of the CWA Section 404 program describes the process whereby a state or tribe obtains approval from the EPA to administer the § 404 program within their borders and consequently begins administering all aspects of the program. For those states or tribes with mature, integrated water management programs that include the regulation of dredged or fill activities, § 404 Program assumption allows a state or tribe to carry out a fully integrated and comprehensive water program addressing the full range of state, tribal, and CWA requirements. Assumption is not delegation. Delegated programs mean that a state or tribe is issuing a permit or taking an action on behalf of the federal government.
In accordance with the requirements of Section 404, a state or tribe may only be authorized to assume the Section 404 Program if it has authority over all assumable waters and demonstrates that it will apply legal standards consistent with the Clean Water Act (CWA) requirements in operating a permitting program. 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.
For more information about assumption, check out the following NAWM document: NAWM CWA 404 Assumption Frequently Asked Questions (Go here)
Which States Have Assumed the 404 Program?
- Michigan, New Jersey and Florida have fully assumed programs.
- Other states are in the process of applying for assumption, including Minnesota and Oregon. Other states are starting the process of exploring assumption, including Nebraska and Indiana.
- To date no tribes have assumed the 404 program. However, tribes are allowed to assume the program. In 2020, several tribes are considering pursuing assumption.
The Assumption Process
A complete assumption “package” must detail what a state/tribe will do, what the permit process is, what criteria are used in the review, appeals processes, who is responsible, and lastly how, when and with whom coordination will occur. The package must include copies of permit forms, approval forms and any review criteria or guidance manuals. Additionally, the structure of state/tribal regulating agency must be described, as well as who does what, as well as funding and staffing levels. EPA does not determine these elements of the program, only the state/tribe does this decision-making.
The assumption process is comprised of multiple steps. These steps are formally outlined on EPA’s website here.
EPA Assumption Process Flowchart
EPA has developed a flowchart for the steps and timing of the assumption process. To view the flowchart, click here, to go to EPA’s document. A new flowchart will be released by EPA when the new 404(g) Rule comes into effect.
Assumption Package Requirements
Assumption package requirements can be found in the federal assumption regulations; however, EPA does not provide a standardized assumption application form. The requirements for a complete assumption request package are described in EPA Section 404(g) regulations (40 CFR 233.10-233.14). Also see EPA’s page on the assumption application here.
A state or tribal package requesting Section 404(g) assumption must include:
- A letter from the Governor or equivalent tribal leader;
- A Complete program description;
- An Attorney General’s statement or tribal equivalent;
- A Memorandum of Agreement (MOA) with the respective EPA Regional Administrator;
- A Memorandum of Agreement (MOA) with Secretary of Army (through the Chief of the U.S. Army Corps of Engineers); and
- Copies of all applicable state or tribal statutes and regulations administering the program.
- 404(b)(1) Guidelines (PDF)
- Wetlands Protection: 40 CFR Parts 22, 230 through 233
- Assumption Regulations (Part 233 404 State Program Regulations) (PDF)
- Section 404 State Assumption Regulations (PDF)
- Letter from Peter S. Silva, Assistant Administrator, U.S. Environmental Protection Agency, December 27, 2010, Clarifying Endangered Species Act Section 7 Consultation (PDF)
- Text of Tribal Assumption Regulations (PDF)
Information on Assumed State Programs
- Frequently Asked Questions About Assumption
- List of Common Terms Associated with the Clean Water Act Section 404 Assumption Process and Implementation
- Checklist of Considerations for States and Tribes Exploring Assumption of the §404 Program
- NAWM Matrix of Links to State 404 Assumption Resources
- Conducting State/Tribal and Federal Regulatory Crosswalks
- Documenting Assumable Waters
- A Comparison of Two Options for States and Tribes to Increase Programmatic Responsibility: Assumption and State Programmatic General Permit