The U.S. Congress has provided a mechanism for state/tribal and federal cooperation in the Clean Water Act Section 404 program (§404) since 1977. In the process known as §404 program assumption, a state or tribe may request to “administer its own individual and general permit program” in place of the federal dredge and fill permit program. In order to qualify for this provision, the state or tribal program must meet requirements that assure a level of resource protection that is equivalent to that provided by the federal agencies. Congress anticipated that this process would encourage a sharing of responsibility among states, tribes and the federal government.
In spite of the promise and apparent advantages of §404 program assumption, only two states—Michigan and New Jersey—have requested and received approval for a state §404 program. The primary reasons for this are reported to be a strict requirement for consistency with federal law, setting a relatively high bar for permitting and enforcement, combined with a lack of dedicated federal funding to support state programs. However, states and tribes have demonstrated a willingness to manage wetlands within their boundaries, and have developed a variety of alternative approaches to working with federal agencies.
- Clean Water Act Section 404 Program Assumption: A Handbook for States and Tribes
- Section 404 Assumption Fact Sheets
- Expanding the States’ Role in Implementing CWA § 404 Assumption
- Clean Water Act S404 Assumption: What Is It, How Does It Work, and What Are the Benefits?
- U.S. EPA Fact Sheets
- Text of State Program Regulations, 40 CFR 233 (PDF)
- Text of Tribal Assumption Regulations (PDF)
- State Wetland Protection: Status, Trends and Model Approaches (PDF) By the Environmental Law Institute (March 2008)
- 404(b)(1) Guidelines (PDF)
- Wetlands Protection: 40 CFR Parts 22, 230 through 233
- Assumption Regulations (Part 233 404 State Program Regulations) (PDF)
- ASWM's Clean Water Act Section
- Section 404 State Assumption Regulations (PDF)
State Feasibility Studies:
- Virginia - Study of the Costs and Benefits of State Assumption of the Federal Section 404 Clean Water Act permitting Program - 2012
- Section 404 Assumption Feasibility Study – Minnesota - 1989 (PDF)
- “Consolidation of State and Federal Wetland Permitting Programs Implementation of House Bill 759 (Chapter 2005-273, Laws of Florida) Florida Department of Environmental Protection, September 30, 2005” (evaluates assumption in Florida) (PDF)
- Oregon Comparison of State and Federal Programs (PDF)
Background Information on State Assumption:
- "Michigan's 404 Program" (PDF) by Brian J. Considine of the Michigan Bar Journal (Nov 2006)
- "Michigan's Legislators Vote in Support of State-run Wetland Program" by Jeanne Christie of the Association of State Wetland Managers.
- "Assumptions, New Jersey Style" (PDF)
State Investigations on Section 404 Assumption: