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State and Tribal Assumption of Section 404 of the Clean Water Act

NACEPT Assumable Waters Subcommittee Materials Regarding State or Tribal Permitting under CWA Section 404

About the Subcommittee

NACEPT

The Assumable Waters Subcommittee was convened under the National Advisory Council for Environmental Policy and Technology (NACEPT). 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 is a federal advisory committee chartered under the Federal Advisory Committee Act (FACA)

EPA recognizes that a vast array of environmental policy expertise exists outside the Agency in the public, private and non-profit sectors. NACEPT helps EPA access the knowledge, expertise, and experience that would otherwise be unavailable to the Agency. NACEPT provides a cost-effective and flexible forum that can quickly respond to continually evolving policy challenges. The Assumable Waters Subcommittee is one of several subcommittees under NACEPT.

Purpose of the Assumable Waters Subcommittee

The purpose of the Assumable Waters Subcommittee is to provide advice and recommendations to NACEPT on how the EPA can best clarify which waters a state or tribe assumes permitting responsibility for under an approved Clean Water Act (CWA) Section 404 Program.

CWA Section 404 establishes a program to regulate the discharge of dredge and fill material into waters of the United States. Currently the U.S. Army Corps of administers the program in 48 states. The CWA allows states and tribes to assume the administration of the 404(g) program. No tribes and only two states have assumed these permitting responsibilities to date.  If a state or tribe is considering assuming such responsiblities, they need to know which waters will the state or tribe will assume permitting responsibility and which waters the U.S. Army Corps of Engineers will retain permitting authority. States have raised concerns to the EPA that section 404 of the CWA and its implementing regulations lack sufficient clarity to enable states and tribes to estimate the extent of waters for which they would assume permitting responsibility and thus estimate the associated implementation costs.

EPA fully supports states and tribes assuming permitting responsibilities for the aquatic resources under their jurisdiction. In response to the request for clarity, EPA established the Assumable Waters Subcommittee.

Subcommittee Background and Proceedings

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

Current Activity - Rulemaking to Clarify State and Tribal Assumption 

EPA is engaging in rulemaking to provide greater clarity on the requirements for state and tribal assumption of the Clean Water Act Section 404(g) program. This revision of the 1988 regulations will include clarity on which waters are assumable.  Learn more about this rulemaking effort.