About the Assumable Waters Subcommittee

The Assumable Waters Subcommittee has been convened under the National Advisory Council for Environmental Policy and Technology (NACEPT) to provide advice and recommendations 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.

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. No tribes and only two states have assumed these permitting responsibilities to date.  If a state or tribe is considering assuming such responsiblities, among the first questions that needs to be answered is for which waters will the state or tribe assume permitting responsibility and those 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.

The EPA fully supports states and tribes assuming permitting responsibilities for the aquatic resources under their jurisdiction. Per the states' request for clarity, the EPA has established the Assumable Waters Subcommittee.

NACEPT

The U.S. Environmental Protection Agency established the NACEPT in 1988 to provide independent advice to the EPA Administrator on a broad range of environmental policy, technology and management issues. The NACEPT is a federal advisory committee chartered under the Federal Advisory Committee Act (FACA).

EPA recognizes that a vast array of environmental policy expertise exists outside the Agency in the public, private and non-profit sectors. NACEPT helps EPA access the knowledge, expertise, and experience that would otherwise be unavailable to the Agency. NACEPT provides a cost-effective and flexible forum that can quickly respond to continually evolving policy challenges. The Assumable Waters Subcommittee is one of several subcommittees under NACEPT.

Members

Subcommittee members, like the parent NACEPT committee, serve as representatives from academia, industry, non-governmental organizations, and state, local, and tribal governments. Members will lend insight to how the EPA can best clairfy the waters that a state or tribe may assume permitting responsibility for under an approved CWA 404 dredge and fill permit program.

On September 8, 2015, Administrator Gina McCarthy appointed the following people to serve on this subcommittee. David S. Evans and Barry Rabe, Ph.D have been appointed to serve as co-chairs. Each member is representing the organization for which they work unless otherwise notated.

Meetings

Tentative meeting schedule. Unless otherwise noted, meetings will be held from 9 am to 5 pm each day. (Meeting dates are subject to change):

• October 6-7, 2015 – Meeting 1

• December 1-2, 2015 – Meeting 2
  Location: One Potomac Yard, Ground Floor
  2777 Crystal Drive, Arlington, VA 22202

Meeting Summary December 2015 - Final

• March 15-17, 2016 – Meeting 3
  Location: One Potomac Yard
  2777 Crystal Drive, Arlington, VA 22202

March Assumable Waters Subcommittee Presentations and Workgroup Documents

• June 7-9, 2016 – Meeting 4
  Location: Hyatt Arlington Washington's Key Bridge Note: change in meeting location
  1325 Wilson Boulevard, Arlington, VA 22209

• September 28 and 29, 2016 - Meeting 5
  Location: Virtual Meeting from 1 pm - 4 pm each day. 

Meeting Summary September 28-29, 2016 - Final and USACE presentation

• December 9, 2016 - Meeting 6
  Location: Virtual Meeting from 12:30 pm - 3:30 pm EDT.

Draft Agenda - December 9, 2016, Meeting

Federal Register announcement with Meeting information can be found here. Exit

• January 25-27, 2017 - Meeting 7
  Location: Courtyared Arlington Crystal City/Reagan National Airport Hotel, 2899 Jefferson Davis Highway, Arlington, VA, 22202

Draft Agenda - January 25-27, 2017, Meeting

Federal Register announcement with Meeting information can be found here . Exit

Can I participate?  Yes, all meetings of this subcommittee are open to the public. 

Members of the public wishing to attend in person or by phone should contact Jacob B. Strickler via email at: assumablewaters@epa.gov or by phone at: (202) 564-4692 by January 16, 2017, so we can ensure adequate seats and phone lines are available.

Can I make a public comment? Yes, requests to make oral comments or to provide written comments to the Assumable Waters Subcommittee should be sent to Jacob B. Strickler via email at: assumablewaters@epa.gov by January 16, 2017. Public comments will be heard on Januray 25^th and 26^th, 2017, beginning at 3:30 p.m. until 4:00 p.m. or until all comments have been heard. 

Assumable Waters Sub-Sommittee Charge and Operating Procedures

Draft Charge(4 pp, 35 K) (.docx) 

Assumable Waters Subcommittee Working Documents

These documents were prepared by workgroups and individual members of the Subcommittee for deliberation purposes only as background information.

Federal Register Notices

FRN Solicitation for Members (3-16-15)  Exit

FRN October and December Meeting Notice (9-15-15)  Exit

Statutes and Regulations

State and Tribal Program Regulations - Clean Water Act section 404(g)  

Section 10 of the Rivers and Harbors Act of 1899 Exit

• "This regulation defines the term "navigable waters of the United States" as it is used to define authorities of the Corps of Engineers. It also prescribes the policy, practice and procedure to be used in determining the extent of the jurisdiction of the Corps of Engineers and in answering inquiries concerning "navigable waters of the United States." This definition does not apply to authorities under the Clean Water Act which definitions are described under 33 CFR Parts 323 and 328."

Post Rapanos

Legislative History documents related to Clean Water Act section 404(g)(1), including preambles and Congressional Conference Reports

Background Documents

Background documents have been provided by the sub-committee members, by the public and by the federal agencies at the request of the members.

ECOS Letter

ECOS, ACWA, and ASWM letter to USACE

Clean Water Act Section 404(g)(1)(1 pg, 23 K, 10-1-15)

This is a 1980 EPA document describing state assumption of the Clean Water Act 404 permitting Program

Graphic: Clean Water Act section 404 permitting authority for waters within a State or Tribe's jurisdiction

Draft Historical Timeline Leading up to CWA 404(g)(1)(3 pp, 50 K)

Rivers and Harbor Act Section 10 link for Assumable Waters Subcommittee

Want to get involved?

Each meeting will be publically noticed and will have a public input section. The public is encouraged to participate individually or raise ideas through organizations that have members on the subcommittee.

For more information, please contact the ADFO, Mr. Jake Strickler, via e-mail at assumablewaters@epa.gov.