AssumptionThis webpage has been designed to serve as supplemental to EPA’s rules and guidance. EPA’s regulations and website should always be your primary source of information and should be referred to as the definitive source of guidance for what should be included in a program and application. EPA’s website provides links to this information and should be reviewed prior to the additional information ASWM provides on this webpage.

The purpose of ASWM’s Assumption Web Resource is to:

1) Help states and tribes get information as they are deciding whether or not to pursue assumption, including:

    1. Understanding the program changes and application process required for assumption
    2. How to take stock of a current program and its needs as they relate to considering assumption
    3. Sharing the range of state program options, including relying solely on 401 certification; developing a state dredge and fill program; a transitional approach that moves a state/tribe towards assumption over time (e.g. creating a SPGP) or assumption; of the CWA Section 404 program.

2)  provide information on what other states have done;
3) Share lessons learned from other states who have developed/are developing assumable programs currently; and
4) Provide links to additional useful resources.

What is CWA 404 Assumption?

“Assumption” of the CWA Section 404 program describes the process whereby a state or tribe obtains approval from the EPA to administer the § 404 program within their borders and consequently begins administering all aspects of the program. For those states or tribes with mature, integrated water management programs that include the regulation of dredged or fill activities, § 404 Program assumption allows a state or tribe to carry out a fully integrated and comprehensive water program addressing the full range of state, tribal, and CWA requirements. Assumption is not delegation. Delegated programs mean that a state or tribe is issuing a permit or taking an action on behalf of the federal government.

In accordance with the requirements of Section 404, a state or tribe may only be authorized to assume the Section 404 Program if it has authority over all assumable waters and demonstrates that it will apply legal standards consistent with the Clean Water Act (CWA) requirements in operating a permitting program. Tribes are eligible to apply to assume the Federal permit program after they have met requirements for "treatment as a state." See the February 11, 1993, Federal Register notice. 

For more information about assumption, check out the following ASWM document:

ASWM CWA 404 Assumption Frequently Asked Questions (Go here)

Benefits of Assuming the 404 Program

  • Improved resource protection
  • Increased program efficiency
  • Effective allocation of federal and state agency resources
  • Improved integration with other state resource programs
  • Use of state-specific resource policies and procedures
  • Increased regulatory program stability
  • Increased public support

Barriers to Assumption

  • Meeting program requirements
  • Inability to assume administration of Section 10 waters of the Rivers and Harbors Act and wetlands adjacent to these waters
  • Inability to assume § 404 authority in only one geographic portion of the state. area.
  • Need for alternative coordination with other federal resource programs
  • Federal agencies and interest groups may oppose assumption over concerns about maintaining protection consistent with the other federal laws in the state following assumption
  • Lack of dedicated federal funding specifically for Section 404 Program administration: Perhaps most importantly, states administering the Section 404 permit program receive no federal funds specifically dedicated to support operation of the permit program.
  • Wetland Program Development Grants Cannot Fund Implementation Activities

Which States Have Assumed the 404 Program?

  • Michigan and New Jersey have fully assumed programs.
  • Other states are in the process of applying for assumption, including Florida, Minnesota and Oregon. Other states are starting the process of exploring assumption, including Nebraska and Indiana.
  • To date no tribes have assumed the 404 program. However, tribes are allowed to assume the program. In 2020, several tribes are considering pursuing assumption.

The Assumption Process

A complete assumption “package” must detail what a state/tribe will do, what the permit process is, what criteria are used in the review, appeals processes, who is responsible, and lastly how, when and with whom coordination will occur. The package must include copies of permit forms, approval forms and any review criteria or guidance manuals. Additionally, the structure of state/tribal regulating agency must be described, as well as who does what, as well as funding and staffing levels. EPA does not determine these elements of the program, only the state/tribe does this decision-making.

The assumption process is comprised of multiple steps.  These steps are formally outlined on EPA’s website here. A summary of these steps, as of this document’s publication date are:

Step 1: State or Tribe submits a complete assumption application: The Governor of the State or Equivalent Tribal entity* submits to EPA a full and complete description of the program it proposes to establish and administer under State law or an interstate compact. The State must also submit a statement from the State Attorney General certifying that the State laws provide adequate authority.  

Step 2: EPA Reviews Application: EPA is responsible for reviewing and approving/ denying a State or Tribe's request to assume the Federal permit program within 120 days of receipt of the completed application.

Step 3: EPA Distribution of Application for Public Comment: EPA distributes application for State or Tribal assumption to other Federal agencies.

Step 4: EPA holds Public Hearing: EPA also makes the State/Tribal application available for public review and comment and holds public hearing(s) in the State.

Step 5: EPA Makes Decision: After reviewing the State or Tribal application and considering any Federal agency and public comments, EPA makes a decision of the requirements to assume the Federal permit program. EPA's decision is based on whether the State or Tribe meets the applicable statutory and regulatory requirements for an approvable program.

Step 6: EPA Approves or Denies Assumption Request

EPA Assumption Process Flowchart

EPA has developed a flowchart for the steps and timing of the assumption process. To view the flowchart, click here to go to EPA’s document. A new flowchart will be released by EPA when the new 404(g) Rule comes into effect.

Assumption Package Requirements

Assumption package requirements can be found in the federal assumption regulations; however, EPA does not provide a standardized assumption application form. The requirements for a complete assumption request package are described in EPA Section 404(g) regulations (40 CFR 233.10-233.14). Also see EPA’s page on the assumption application here.

A state or tribal package requesting Section 404(g) assumption must 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. A Memorandum of Agreement (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.

Regulations

State Feasibility Studies

Information on Assumed State Programs

ASWM Template 404 Assumption Investigation Tools

  • ASWM Matrix of Example State Assumption Elements
  • Thinking About Assumption: A Checklist of Initial Considerations
  • ASWM Federal/State Regulatory Crosswalk Templates
    • Florida’s approach
    • Oregon’s Approach
    • Minnesota’s Approach
  • Common steps for conducting assumable waters studies

ASWM Publications

Other Publications