by Leah Stetson, with an introduction by Jeanne Christie, ASWM

Under the Clean Water Act (CWA), states may seek to implement Section 404 that governs dredge and fill activities in wetlands and other waters. Before a state assumes CWA § 404, the U.S. Army Corps of Engineers (Corps) regulates those waters and reviews the related permits at the federal level. State assumption of the 404 program allows a state to regulate those waters—including streams and wetlands—and assume the jurisdictional responsibility to condition, approve or deny dredge and fill permits rather than the Corps. However the 404 state assumption program has fared poorly in comparison to state adoption of other parts of the Clean Water Act. Two issues in particular have made assumption difficult. First states are held to a higher standard for implementing Section 404 than other parts of the Act. Second, unlike other Clean Water Act programs, the U.S. Environmental Protection Agency’s (EPA) wetland grant program cannot be used to run state wetland programs; it can only be used to develop them. Additionally, the application process for assuming the 404 program is complex.

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