Assumption Process under CWA Section 404

What is the Assumption Process?

The assumption process is authorized by the Clean Water Act and further described in EPA regulations. The links below summarize the legal authorities for assumption, provide details of what should be included in the assumption request package, and describe the assumption approval process.

• Statutory and Regulatory Requirements
• Assumption Request Package
• Assumption Request Approval Process

Overview of the Assumption Process

Step 1 - Initiate - Contact applicable EPA Regional Administrator and U.S. Army Corps District/Division to identify interest in assumption.

Step 2 – Hold Dialogue prior to Assumption Request - Confer with EPA regional and headquarters staff on pre-request steps, process, and substantive requirements; review existing state or tribal programs, laws, and resources and identify program modifications and/or legislation needs; conduct outreach with the public and regulated community; obtain feedback from U.S. Army Corps of Engineers (Corps) on waters the Corps will retain; reach out to affected Tribes and States regarding notification and coordination; and reach out to the National Marine Fisheries Service and the U.S. Fish and Wildlife Service regarding federally listed species.

Step 3 – Develop and Submit Assumption Request Package – Submit a letter from the Governor or equivalent tribal leader requesting program approval; a complete program description; a statement from the Attorney General or tribal equivalent; a Memorandum of Agreement with the respective Regional Administrator; a Memorandum of Agreement with the Secretary of the Army; and copies of all applicable state or tribal statutes and regulations, including those governing applicable state or tribal administrative procedures.

Step 4 – EPA Review and Approval – EPA reviews request package; publishes a notice of the request for public comment; conducts federal agency review; holds a public hearing; and documents its review and decision.