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Which States Have Assumed the 404 Program?

  • Michigan, New Jersey and Florida have fully assumed programs.
  • Other states are in the process of applying for assumption, including 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.

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.