Statutory and Regulatory Requirements for Assumption under CWA Section 404

• Requirements to Assume a Section 404 Permitting Program
  • Scope of Assumable Waters

To assume the Section 404 program, states or tribes need to develop a dredged and fill permit program consistent with the Clean Water Act requirements and submit for EPA approval a request to assume the program.  Even for states or tribes with an existing dredged and fill regulatory program, this process may necessitate the passage of new laws or modification of existing laws to address all assumable waters or activities covered by Section 404 of the Clean Water Act. 

• 40 CFR Part 233 - 404 State and Tribal Program Regulations
• Clean Water Act Section 404
• Clean Water Act Section 404(b)(1) Guidelines - Environmental Review Criteria

Requirements to Assume a Section 404 Permitting Program

Overview

State or tribal programs must be consistent with and no less stringent than the Clean Water Act and EPA's regulations.

Scope of Assumable Waters

The Clean Water Act provides that all waters of the United States in a state or tribe with an approved program shall be under the jurisdiction of the state or tribe except for those waters which are presently used, or are susceptible for use in their natural condition or by reasonable improvement, as a means to transport interstate or foreign commerce shoreward to their ordinary high water mark, including all waters subject to the ebb and flow of the tide, including wetlands adjacent thereto. Waters of the United States that are not assumed by the state or tribe remain under the U.S. Army Corps of Engineers (Corps) Section 404 permitting program.

State or tribal assumption does not affect the scope of Clean Water Act jurisdiction of waters of the United States. It shifts primary responsibility for administering the Section 404 program for certain waters of the United States from the Corps to the authorized state or tribe.

The application of this statutory framework, i.e. the identification and description of waters over which the Corps retains jurisdiction under the Section 404 program, will be covered in a Memorandum of Agreement (MOA) between the state or tribe and Corps, one of the requisite elements of a complete state or tribal application for assumption.

The following are links to efforts which address the scope of Corps-retained waters as opposed to state- or tribe-assumed waters:

1. The Assumable Waters Subcommittee
2. An August 2018 Department of Army Memorandum to the Corps
3. Ongoing - An EPA rulemaking to modernize the state and tribal assumption regulations