Clean Water Act § 404 Assumption Rulemaking

Tractor dredging a shallow river

Clean Water Act § 404 Assumption Rulemaking

As ADEQ has proven its ability to improve permit processing times, and due to its desire to align Clean Water Act (CWA) programs across the state, the agency is considering state assumption of the dredge and fill program established in CWA § 404. ADEQ has demonstrated its process and customer service improvement capabilities over recent years and intends to incorporate these capabilities into the CWA § 404 permitting process.

Stakeholder Materials

ADEQ is holding several stakeholder meetings and will also host workgroups during this assumption process. To see post-stakeholder meeting information and workgroup recordings or updates, please see the stakeholder engagement page. Draft products (e.g. draft rules) for informal comment will also be placed on the stakeholder engagement page | View Stakeholder Page >

CWA § 404 - Dredge and Fill

  • Establishes a program to regulate the discharge of dredged or fill material into waters of the United States, including wetlands.
  • Requires a permit before dredged or fill material may be discharged into waters of the United States
  • Regulates the following example activities:
    • fill for development;
    • water resource projects (such as dams and levees);
    • infrastructure development (such as highways and airports); and
    • mining projects.
  • Exempts certain activities from 404 permitting (e.g. certain farming activities or emergency maintenance)
  • Prohibits issuance of a permit if a proposed dredge or fill project would:
    • cause or contribute to significant degradation of a Water of the United States;
    • cause or contribute to a water quality standard violation;
    • jeopardize the continued existence of an endangered species; or
    • could be substituted by an existing practicable alternative.

ADEQ’s Goals and Expected Assumption Process

ADEQ has considered the possibility of assuming CWA 404 in the past based on stakeholder input. More recent interest in assumption of the program has been largely driven by ADEQ’s proven ability to improve permit processing times and a desire to align CWA programs across the state. ADEQ has demonstrated its process and customer service improvement capabilities over recent years and intends to incorporate these capabilities into the CWA 404 permitting process | View the Draft Process Timeline >  

What Does “State Assumption” Mean?

State assumption is a term for when a state takes over a program's primary responsibilities from the federal government, to administer within that state. It is a function of the CWA and was the intent of Congress when passed, according to CWA § 101:

It is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution … It is the policy of Congress that the States implement the permit programs under sections 1342 and 1344 [CWA § 404] of this title.

Only two states have assumed the program: Michigan in the mid-1980s and New Jersey in the mid-1990s. Other states have since attempted or considered it.