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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 "nonnavigable" waters. The U.S. Army Corps of Engineers retains
jurisdiction in -
- tidal waters and their adjacent wetlands
- navigable waters and their adjacent wetlands.
The Corps continues 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.
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.
State or Tribal 404 Assumption Process
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State or Tribe submits a complete assumption application
The Governor of the State or Equivalent Tribal entity* submits
to EPA a full and complete description of the program it proposes
to establish and administer under State law or an interstate compact.
The State must also submit a statement from the State Attorney General
certifying that the State laws provide adequate authority to
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EPA Reviews Application
EPA is responsible for reviewing and approving/ denying a State
or Tribe's request to assume the Federal permit program within 120
days of receipt of the completed application. |
Distribution of Application for Public Comment
EPA distributes application for State or Tribal assumption to other
Federal agencies |
Public Hearing
EPA also makes the State/Tribal application available for public
review and comment and holds public hearing(s) in the State. |
EPA Decision
After reviewing the State or Tribal application and considering
any Federal agency and public comments, EPA makes a decision of the
requirements to assume the Federal permit program. EPA's decision
is based on whether the State or Tribe meets the applicable statutory
and regulatory requirements for an approvable |
*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.)
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