Consistent with the Clean Water Act’s (CWA’s) federal-state approach to managing surface waters, Section 404 defines an approval process for a state “desiring to administer its own individual and general permit program.” To date, only Michigan and New Jersey have assumed authority of 404 programs. However, in 2018, both Arizona and Florida initiated the program assumption process. Other states including Alaska, Indiana, Kentucky, Maryland, Minnesota, North Dakota, Oregon and Virginia have also explored or pursued wetland permitting programs under Section 404.
State-run permitting programs can reduce duplicative requirements, reduce permitting costs, and expedite permit approval. However, in order to realize the benefits of state program assumption, builders and developers should monitor and engage federal and state authorities during the delegation of authority process. These FAQs provide a guide to that process, identifying key items and actions that inform EPA’s approval decision. Answers are based on 33 U.S.C. §§ 1344, 40 CFR 233, ASWME 2011, and EPA 2015.
- What is “program assumption” under Clean Water Act §404?
- What is Section 10 of the Rivers and Harbors Act and how do “assumable waters” affect state programs?
- How does a state request 404 program approval?
- What does the program description include?
- What is the purpose of the attorney general statement?
- What is the content of the MOAs with EPA and the Corps?
- Which federal agencies are involved in reviewing MOAs submitted by a state?
- What are the timelines and opportunities for public involvement?
- Where can I find more information?
Section 404(g) authorizes states to voluntarily assume authority to administer the 404 program. When a state assumes authority, it becomes responsible for issuing dredge-and-fill permits for most, but not all, “waters of the United States” within its jurisdictional boundaries. A state can also extend permitting requirements to additional waters under its own laws and regulations.
Under Section 404(g), the U.S. Army Corps of Engineers (Corps), retains federal permitting authority for a specific subset of waters and their adjacent wetlands. Corps’ authority to retain federal control of these waters is a result of a separate federal law known as the Rivers and Harbors Act of 1899, which is considered a precursor to the CWA. Under the Rivers and Harbors Act, Congress required individuals seeking to dam, dredge, excavate or dispose of materials into navigable waters used for interstate or foreign commerce to first obtain federal permits from the Corps prior to undertaking such activities.
Each Corps district (except Hawaii) maintains a list of waters covered by the Rivers and Harbors Act within each state. Generally, these waters must meet two broad categories:
- Waters subject to the ebb and flow of the tide, and
- Waters or portions of waterways presently used, or used in the past, or susceptible for use in future for interstate or foreign commerce.
The CWA’s regulations (33 CFR 329.4) recognize that, when a state (or tribe) assumes authority from EPA and the Corps to administer the federal wetlands program, navigable waterways or portions of navigable waterways and their adjacent wetlands are retained by the Corps.
On July 30, 2018, Assistant Secretary of the Army R.D. James issued a memorandum to all Corps districts to clarify the meaning of assumable waters, while also responding to complaints from states considering taking delegation of the federal wetlands program on the uncertainty over which waterbodies the Corps would retain federal control. Importantly, the position taken by the Corps’ leadership was to limit the Corps authority under the Rivers and Harbor Act to only waterways subject to ebb and flow of the tide and those waterways presently used for interstate or foreign commerce. Waterways that had been used in the past, or susceptible for use in the future for interstate commerce, would not be turned over to the states (or tribes) to administer the federal wetlands permitting program following delegation.
To request program approval, a state must submit the six items listed in 40 CFR 233.10 to the appropriate EPA Regional Administrator:
- A letter from the governor of the state requesting program approval
- A complete program description
- A statement from the state attorney general
- A memorandum of agreement (MOA) with the EPA Regional Administrator
- A MOA with the Secretary of the Army
- Copies of all applicable state statutes and regulations, including those governing applicable state administrative procedures
The program description includes nine items in 40 CFR 233.11. Combined, the items must demonstrate a state’s understanding of its responsibilities and ability to meet Section 404 requirements.
- Description of the scope and structure of the state’s program including activities regulated, exemptions, permit review criteria and program coordination
- Description of the state’s procedures for permitting, administrative and judicial review, and program operation
- Description of the organizational structure of the state agencies with responsibility for program administration
- Description of required funding and staff resources
- Estimate of the anticipated workload
- Copies of permit application forms, permit forms and reporting forms
- Description of state compliance and enforcement programs, including description of the coordination process with EPA and the Corps
- Description of waters where the Corps will retain jurisdiction
- A description of best management practices that will meet 404 exemptions for construction or maintenance of farm roads, forest roads, or temporary mining roads
The attorney general statement affirms a state’s legal authority to administer a complete 404 program. Primarily, it certifies participating agencies’ authority to serve their role in program administration. It also addresses state takings law over private property and describes authority over Indian lands when they are included in a state program.
The statement covers laws and regulations that are in effect when the request for assumption is submitted. If EPA finds that programmatic changes are necessary to meet 404 program requirements, and those changes would require a new law or rulemaking, the statement may need to be revised and resubmitted. Likewise, after EPA approves the state program, future changes to federal 404 regulations or state law may require a revised attorney general statement.
The MOAs clarify roles for federal agencies in a state’s program. While 40 CFR 233.1 explains that “Partial State programs are not approvable under Section 404,” federal agency activities will impact state permitting processes and decisions after authority is delegated. The MOAs can be combined. Regarding EPA, the MOA may cover permit categories for which EPA will waive federal review, a reporting schedule, and compliance and enforcement conditions. Corps-related content could include waters remaining under Corps jurisdiction after approval of the state program, general permits that will be transferred to the state, and review processes for impacts to federally-designated critical habitat under the Endangered Species Act.
Under the CWA statute (33 U.S.C. 1344(h)) and regulations (40 C.F.R. 233.15(f)), four federal entities―Corps, EPA, National Marine Fisheries Service, and the Fish & Wildlife Service―are involved in reviewing and commenting on the adequacy of a state’s MOU to take delegation of the CWA 404 program.
Under 40 CFR 233.15, EPA has 120 days upon receipt to review a complete program submission. The EPA must notify a state of an incomplete submission within 30 days of receipt, and can only commence the 120-day review after the complete submittal. Further, upon determining that the submission is complete, the EPA Regional Administrator must publish notice of a state’s application in the Federal Register and provide at least a 45-day public comment period. If the EPA Regional Administrator approves the program, it also publishes notice of the decision in the Federal Register. A disapproval decision is communicated to the state, which can then make revisions and resubmit it application. This action begins the review and approval process.
Several organizations and EPA provide useful information on the items and actions that inform an approval decision:
- 404 State Program Regulations Subpart A & Subpart B, 40 CFR §§ 233.1-233.16 (2018).
- Association of State Wetland Managers, Inc. (ASWM) & Environment Council of the States. 2011. Section 404 Program Assumption. Available at https://goo.gl/J6QrKP.
- Clean Water Act of 1972, Permits for dredged or fill material, 33 U.S.C. §§ 1344 (2018).
- Definition of Navigable Waters of the United States, 33 CFR § 329.4 (2018).
- Memorandum for Commanding General, U.S. Army Corps of Engineers, dated July 30, 2018. Available at https://www.army.mil/e2/c/downloads/525981.pdf.
- U.S. Environmental Protection Agency (EPA). 2015. Regulation: Wetlands Regulatory and Permit Program. Available at https://goo.gl/Wxkyts.
- U.S. Environmental Protection Agency (EPA). 2017. Final Report of the Assumable Waters Subcommitee. Available at https://goo.gl/vGvT8g.