Category A-Breezy 404 Assumption

404 Assumption

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.