NACEPT Assumable Waters Subcommittee Materials Regarding State or Tribal Permitting under CWA Section 404

The Assumable Waters Subcommittee was convened under the National Advisory Council for Environmental Policy and Technology (NACEPT) in 2015 to provide advice and recommendations on how the EPA could best clarify which waters a state or tribe assumes permitting responsibility for under an approved Clean Water Act (CWA) Section 404 Program. NACEPT provided its recommendations to the EPA Administrator on June 2, 2017.  Read the Assumable Waters Subcommittee Report. 

About the Subcommittee

NACEPT

EPA established NACEPT in 1988 to provide independent advice to the EPA Administrator on a broad range of environmental policy, technology and management issues. NACEPT was a federal advisory committee chartered under the Federal Advisory Committee Act (FACA). EPA recognized that a vast array of environmental policy expertise exists outside the Agency in the public, private and non-profit sectors. NACEPT helped EPA access the knowledge, expertise, and experience that would otherwise be unavailable to the Agency. NACEPT provided a cost-effective and flexible forum that ccould quickly respond to continually evolving policy challenges. The Assumable Waters Subcommittee was one of several subcommittees established under NACEPT. Here are the reports and recommendations provided by NACEPT.

Purpose of the Assumable Waters Subcommittee

 CWA Section 404 establishes a program to regulate the discharge of dredge and fill material into waters of the United States. Currently the U.S. Army Corps of administers the program in 48 states. The CWA allows states and tribes to assume the administration of the 404(g) program.  As of the convening of the subcommittee, no tribes and only two states had assumed these permitting responsibilities to date (Florida has since assumed the program).  If a state or tribe is considering assuming such responsiblities, they need to know which waters will the state or tribe will assume permitting responsibility and which waters the U.S. Army Corps of Engineers will retain permitting authority. States have raised concerns to the EPA that section 404 of the CWA and its implementing regulations lack sufficient clarity to enable states and tribes to estimate the extent of waters for which they would assume permitting responsibility and thus estimate the associated implementation costs.

In response to the request for clarity, EPA established the Assumable Waters Subcommittee to provide advice and recommendations to NACEPT on how the EPA can best clarify which waters a state or tribe assumes permitting responsibility for under an approved Clean Water Act (CWA) Section 404 Program.

Subcommittee Background and Proceedings

• Members
• Meetings
• Documents Supporting or Related to Subcommittee Activities
• Public Involvement

Final Report of the Subcommittee

The Assumable Waters Subcommittee presented their recommendations to NACEPT members on May 10, 2017. NACEPT accepted the report and submitted it to Administrator Scott Pruitt on June 2, 2017.  The EPA appreciates the hard work and dedication to this issue by all the Subcommittee members and to the NACEPT members for their insights and support of the Subcommittee.  Read the Assumable Waters Subcommittee Report. 

Current Activity - Rulemaking to Clarify State and Tribal Assumption 

EPA is engaging in rulemaking to provide greater clarity on the requirements for state and tribal assumption of the Clean Water Act Section 404(g) program. This revision of the 1988 regulations will include clarity on which waters are assumable.  Learn more about this rulemaking effort.