April 30, 2014

Nancy K. Stoner

Acting Assistant Administrator for Water

U.S. Environmental Protection Agency

William Jefferson Clinton Building

1200 Pennsylvania Avenue, NW (4101M)

Washington, DC 20460

Via email to: stoner.nancy@epa.gov

Dear Acting Assistant Administrator Stoner:

Re: Assumable Waters under Clean Water Act Section 404

In the rule proposed by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of 

Engineers (Corps) regarding the scope of the definition of “waters of the United States,” a statement in 

the preamble explains that the rule does not affect the scope of waters subject to state assumption in 

accordance with §404(g). 79 Fed. Reg. 22,188, p. 22,200 (April 21, 2014). The undersigned 

organizations appreciate that such language was included in the proposed rule addressing this critical 

aspect of state §404 program assumption. 

We agree with the preamble statement in the rule that “[c]larification of waters that are subject to 

assumption by states or tribes or retention by the Corps could be made through a separate process 

under section 404(g)” (ibid). We recommend that steps to further clarify the scope of assumable and 

non-assumable waters be initiated in a timely manner. We are concerned that states currently 

considering assumption are having difficulty making progress because of the current uncertainty. 

We would appreciate the opportunity to actively engage in a discussion with EPA to address this issue.

Our organizations recognize that any steps toward clarification must be undertaken thoughtfully in 

accordance with the provisions of §404(g), and without altering the existing state 404 programs in 

Michigan and New Jersey. 

Clear identification of assumable and non-assumable waters has been made more difficult by legal 

decisions that address terms such as “navigable” and “adjacent.” Nonetheless, Congress intended that 

states be able to assume regulatory responsibility for the majority of waters within their boundaries. 

Clarification of assumable waters will help to facilitate state assumption where it is desired – providing 

benefits to the public, the resource, and the state and federal agencies. 

Under §404 of the Clean Water Act – all waters regulated by the Corps or by a state/tribal program – are 

deemed “waters of the United States.” We believe that “other waters,” as well as some portion of both 

“navigable waters,” and “adjacent wetlands” may be administered by a state or tribe in accordance with 

404(g). We look forward to discussions with EPA to explore this very important area of public policy.
Our goal is to work collaboratively to discern the criteria that will be used by a state/tribe, EPA, and the 

Corps to identify assumable/non-assumable waters pursuant to §404(g). We would also like to reach 

agreement on how to formalize these criteria (e.g., Memorandum of Understanding). Several steps may 

be needed to address both the immediate concerns of states pursuing assumption and the needs of 

those that may do so in the future. 

Our organizations are committed to supporting state efforts to assume the Section 404 program by 

identifying issues and working with partners to resolve them. See, for example, ECOS Resolution #08-3 

on State Delegation of the Clean Water Act Section 404 Permit Program – originally approved in 2008 –

was on April 2, 2014 reaffirmed, with the addition of the following language: “[NOW, THEREFORE, BE IT 

RESOLVED THAT THE ENVIRONMENTAL COUNCIL OF THE STATES] Encourages U.S. EPA to work with 

states to bring clarity and certainty to the identification of assumable and non-assumable waters.” 

We look forward to a timely and productive discussion with you. Please contact Jeanne Christie of 

ASWM at 207-892-3399 or jeanne.christie@aswm.org, to discuss this request. Thank you again for your 

attention to this matter.

Sincerely,

Alexandra Dapolito Dunn Sean Rolland Jeanne Christie

ECOS ACWA ASWM

Cc: Ken Kopocis, EPA

Benita Best-Wong, EPA

Jim Pendergast, EPA

Bill Ryan, OR DSL

Ben White, AK 

Eric Metz, OR DSL

Ginger Kopkash, NJ

Bill Creal, MI