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

Current Efforts Regarding Assumption under CWA Section 404

On this page:

Rulemaking - Modernizing the State and Tribal Assumption Regulations

In the 2018 Spring Regulatory Agenda, EPA published the Agency’s plan for the first comprehensive revision to the existing Section 404(g) regulations since 1988. The Administration recognizes the need for greater clarity on the requirements for state and tribal assumption of the Section 404 permitting program and identifies this issue as one of its priorities. EPA intends to modernize these regulations to assist the authorized states and tribes in assuming this authority. In September 2018, Acting Administrator Wheeler sent letters to state governors and tribal leaders announcing opportunities for states and tribes to provide input on areas that could benefit from additional clarity. 

In November and December 2018, EPA hosted pre-rule input sessions with the states and tribes seeking input on areas of the regulations which could benefit from clarity and how that clarity could be provided. Fifty-eight tribes and twenty-two  states participated in these sessions.

EPA will continue to update this page as the rulemaking process develops, including announcing any opportunities for public engagement. There is currently no open public comment period.

Outreach and Engagement

States and Tribes - From October 2018 through January 2019, EPA sought early input from states and tribes regarding the modernization of the dredged and fill permitting program's assumption regulations.  EPA attended conferences, hosted webinars, held in-person meetings and solicited written comments from tribes and states on areas of the regulations that could benefit from increased clarity. 

Department of the Army Memorandum to the U.S. Army Corps of Engineers

In August 2018, the Department of the Army issued a memorandum to the U.S. Army Corps of Engineers (Corps) that clarifies its approach to identifying waters that the Corps would retain should a state or tribe assume Section 404 permitting authority. This guidance is consistent with the majority recommendation provided in a June 2017 Federal Advisory Act Committee report on assumable waters to the EPA Administrator. 

Grant Opportunities

States and tribes can apply for Wetland Program Development Grants to develop programs and pursue assumption. Wetland Program Development Grants provide eligible applicants an opportunity to conduct projects that promote the coordination and acceleration of research, investigations, experiments, training, demonstrations, surveys and studies relating to the causes, effects, extent, prevention, reduction and elimination of water pollution.