NACEPT Assumable Waters Subcommittee Materials Regarding Tribal or State Permitting under Clean Water Act Section 404

The Assumable Waters Subcommittee was convened under the National Advisory Council for Environmental Policy and Technology (NACEPT) in 2015 to provide advice and recommendations on how the EPA could best clarify which waters a Tribe or state assumes permitting responsibility for under an approved Clean Water Act Section 404 Program. NACEPT provided its recommendations to the EPA Administrator on June 2, 2017.

About the Subcommittee

NACEPT

The EPA established NACEPT in 1988 to provide independent advice to the EPA Administrator on a broad range of environmental policy, technology and management issues. NACEPT was a federal advisory committee chartered under the Federal Advisory Committee Act. The EPA recognized that a vast array of environmental policy expertise exists outside the agency in the public, private and non-profit sectors. NACEPT helped the EPA access the knowledge, expertise and experience that would otherwise be unavailable to the agency. NACEPT provided a cost-effective and flexible forum that could quickly respond to continually evolving policy challenges. The Assumable Waters Subcommittee was one of several subcommittees established under NACEPT. Here are the reports and recommendations provided by NACEPT.

Purpose of the Assumable Waters Subcommittee

CWA Section 404 establishes a program to regulate the discharge of dredged and fill material into waters of the United States. Currently the U.S. Army Corps of administers the program in 48 states. CWA Section 404(g) provides the authority for Tribes, states and territories to assume the administration of the Section 404 dredged and fill permitting program. As of the convening of the subcommittee, no Tribes and only two states had assumed these permitting responsibilities. If a Tribe or state is considering assuming such responsibilities, they need to know which waters of the United States can be assumed under the program and which waters the U.S. Army Corps of Engineers will retain permitting authority over. States raised concerns to the EPA that Section 404 of the CWA and its implementing regulations lack sufficient clarity to enable Tribes and states to estimate the extent of waters for which they would assume permitting responsibility and thus estimate the associated implementation costs.

In response to the request for clarity, the EPA established the Assumable Waters Subcommittee to provide advice and recommendations to NACEPT on how the EPA can best clarify which waters a Tribe or state assumes permitting responsibility for under an approved CWA Section 404 Program.

Subcommittee Background and Proceedings

• Members
• Meetings
• Documents Supporting or Related to Subcommittee Activities
• Public Involvement - Each meeting was announced to the public and had a public input section. The public was encouraged to participate individually or raise ideas through organizations that have members on the subcommittee.

Final Report of the Subcommittee

The Assumable Waters Subcommittee presented their recommendations to NACEPT members on May 10, 2017. NACEPT accepted the report and submitted it to Administrator Scott Pruitt on June 2, 2017. The EPA appreciates the hard work and dedication to this issue by all the Subcommittee members and to the NACEPT members for their insights and support of the Subcommittee. Read the Assumable Waters Subcommittee Report. 

The U.S. Army Corps of Engineers published a memo generally endorsing the majority recommendation of the Subcommittee.

Rulemaking to Clarify Tribal and State Assumption 

The EPA engaged in a rulemaking to provide greater clarity on the requirements for Tribal and state assumption of the CWA Section 404(g) program. The revisions of the 1988 regulations provide clarity on which waters are assumable. Learn more about the proposed and final rule here.