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

Assumption Request Package under CWA Section 404

What Needs to be Submitted to EPA?

The requirements for a complete assumption request package are described in EPA Section 404(g) regulations (40 CFR 233.10-233.14). A state or tribal package requesting Section 404(g) assumption shall include:
  1. A letter from the Governor or equivalent tribal leader;
  2. A Complete program description;
  3. An Attorney General’s statement or tribal equivalent;
  4. A Memorandum of Agreement (MOA) with the respective EPA Regional Administrator; 
  5. An MOA with Secretary of Army (through the Chief of the U.S. Army Corps of Engineers); and
  6. Copies of all applicable state or tribal statutes and regulations administering the program.

The state or tribe should submit a letter from the governor or equivalent tribal leader requesting program assumption approval.

complete program description (40 CFR 233.11) includes but is not limited to:

  • A description of the scope and structure of the program, including jurisdiction, activities regulated, anticipated coordination, permit review criteria, and scope of permit exemptions, if any;
  • Procedures for permitting, administrative review and judicial review;
  • Structure and organization of state or tribal agency responsible for program administration;
  • Funding and staffing levels;
  • Anticipated workload;
  • Copies of permit application forms, permit forms, and reporting forms;
  • Compliance evaluation and enforcement programs;
  • Description of the waters under state jurisdiction and those under the U.S. Army Corps of Engineers (Corps) jurisdiction; and
  • Best Management Practices proposed to satisfy farm, forest, and temporary mining roads exemption provisions.

An Attorney General’s statement (40 CFR 233.12) includes but is not limited to:

  • Citations of specific statutes, administrative regulations and, where appropriate, judicial reviews demonstrating adequate authority;
  • Legal analysis of the effect of state or tribal laws regarding private property takings; 
  • Certification of the authority of each state or tribal agency to administer the program; and
  • Analysis of state authority for a program covering activities on Indian lands, if applicable.

MOA with EPA Regional Administrator (40 CFR 233.13) includes but is not limited to:

  • Classes and categories of permits for which EPA waives federal review (as specified in 40 CFR 233.51);
  • Provisions specifying the frequency and content of reports, documents and other information which the state or tribe may be required to submit to EPA in addition to the annual report, as well as a provision establishing the submission date for the annual report.
  • EPA and state or tribal roles and coordination procedures regarding compliance monitoring and enforcement; and
  • Provisions addressing modification of the MOA.

MOA with Corps (40 CFR 233.14) includes but is not limited to:

  • A description of waters of the U.S. over which Corps retains jurisdiction;
  • Procedures for transfer of pending Section 404 permit applications and other relevant information upon program approval; and
  • Identification of all Corps general permits to be assumed by the state or tribe, including a plan for transferring responsibility and identification of current enforcement cases, as well as procedures for transmitting relevant information to the state or tribe.

Refer to the August 2018 Department of Army Memorandum to the Corps regarding how the Corps is to identify waters to be retained.