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SUPPORTING STATEMENT FOR ICR 0220.11

CLEAN WATER ACT 404 STATE-ASSUMED PROGRAMS

1. Identification of the information collection

1(a) Title of the Information Collection

Clean Water Act Section 404 State-Assumed Programs (Renewal) 

1(b) Short Characterization/Abstract

This information collection request has three parts: 

A. Information needed for States or Tribes to request program assumption. 

B. Information needed from permit applicants. 

C. Information included in the State or Tribe’s annual report. 

A. Section 404(g) of the Clean Water Act (CWA) authorizes States [and Tribes] to assume 

the CWA Section 404 permit program. States/Tribes must demonstrate that they meet the 

statutory and regulatory requirements (40 CFR Part 233) for an approvable program. Specified 

information and documents must be submitted by the State/Tribe to the Environmental 

Protection Agency (EPA) to request assumption. Once the required information and documents 

are submitted and EPA has a complete assumption request package, the statutory time clock for 

EPA’s decision to either approve or deny the State/Tribe’s assumption request starts. The 

information contained in the assumption request is made available to the other involved federal 

agencies (Corps of Engineers, Fish and Wildlife Service and National Marine Fisheries Service) 

and to the general public for review and comment. 

B. States/Tribes must be able to issue permits that comply with the CWA Section 404(b)(1) 

Guidelines, the environmental review criteria. States/Tribes and the reviewing federal agencies 

must be able to review proposed projects to evaluate, avoid, minimize and compensate for 

anticipated impacts. EPA’s assumption regulations establish recommended elements that should 

be included in the State/Tribe’s permit application, so that sufficient information is available to 

make a thorough analysis of anticipated impacts. These minimum information requirements are 

based on the information that must be submitted when applying for a CWA Section 404 permit 

from the Corps of Engineers. 

EPA is responsible for oversight of assumed programs to ensure that State/Tribal programs are in 

compliance with applicable requirements and that State/Tribal permit decisions adequately 

consider and minimize anticipated impacts. 

C. States/Tribes must evaluate their programs annually and submit an annual report to EPA 

assessing their program. EPA’s assumption regulations establish minimum requirements for the 

annual report. 

2. Need for and use of the Collection

2(a) Need/Authority for the Collection

Section 404(g) of the CWA authorizes States [Tribes] to assume the federal CWA Section 404 

permit program. Implementing regulations (40 CFR 233) establish specific information that 
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must be submitted by the State to request program assumption. EPA is charged with approving 

or denying a State/Tribe’s assumption request and overseeing/monitoring the overall operation of 

the assumed program subsequent to approval. 

2(b) Practical Utility/Users of the Data

A. States and Tribes can assume the CWA Section 404 permit program (CWA 404(g)). States 

and Tribes must meet certain program requirements to be eligible to assume the federal program. 

These requirements are in the CWA and in implementing regulations (40 CFR 233). To assume 

the CWA Section 404 permit program, States and Tribes must have a wetland regulatory 

program similar to the federal permit program administered by the Corps of Engineers. States 

and Tribes must submit sufficient information for EPA to determine that the State or Tribe’s 

program: has an equivalent scope of geographic jurisdiction as the federal program; regulates at 

least the same activities as the federal program; provides for sufficient public participation; 

ensures compliance with the CWA Section 404(b)(1) Guidelines, which provide environmental 

criteria for permit evaluation and decision; and has adequate enforcement authority. 

States and Tribes must submit required information if they want to assume the federal permit 

program. A complete assumption application (40 CFR 233.10) includes copies of all applicable 

statutes and regulations including those governing applicable administrative procedures, a letter 

from the governor or equivalent tribal leader requesting program assumption, an Attorney 

General’s statement regarding the adequacy of the legal authorities for the State or Tribe’s 

program (40 CFR 233.12), a Memorandum of Agreement with the EPA Regional Administrator 

(40 CFR 233.13), and a memorandum of Agreement with the Secretary of the Army acting 

through the Corps of Engineers (40C CFR 233.14). 

The required program description (40 CFR 233.11) must include the following information: 

scope and structure of the State or Tribe’s program including extent of jurisdiction, activities 

regulated, anticipated coordination, permit review criteria, the scope of permit exemptions (if 

any), procedures for permitting and administrative and judicial review, available funding and 

manpower, anticipated workload, copies of permit application forms, permit forms and reporting 

forms, the State or Tribe’s compliance evaluation and enforcement program, clarification of 

waters to be under State or Tribal jurisdiction and waters to remain under the jurisdiction of the 

Corps (a comparison of State/Tribal and federal methodologies for delineating wetlands must 

also be included), and specific best management practices (BMPs) proposed to satisfy exemption 

provisions for farm, forest and temporary mining roads. 

EPA provides a copy of the assumption request to the Corps of Engineers, Fish and Wildlife 

Service and National Marine Fisheries Service for review and comment. EPA publishes notice 

of the assumption request and solicits public comments on the assumption request. EPA also 

holds public hearing(s) on the assumption request. 

EPA reviews the documentation submitted by the State/Tribe and considers comments received 

from the public and the federal review agencies in making a decision to either approve of deny 

the assumption request. 
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B. States and Tribes must have the ability to issue permits that comply with the CWA Section 

404(b)(1) Guidelines, the environmental review criteria (40 CFR 233.20). States and Tribes and 

the reviewing federal agencies must be able to review proposed projects to evaluate, avoid, 

minimize and compensate for anticipated impacts. EPA’s regulations establish recommended 

elements (40 CFR 233.30) that should be included in the State or Tribe’s permit application so 

that sufficient information is available to make a thorough analysis of anticipated impacts. These 

minimum information requirements are based on the information that must be submitted when 

applying for a Section 404 permit from the Corps of Engineers. 

EPA coordinates federal review of a subset of State/Tribal permits. The intent of this review is 

to assure that State/Tribal permits comply with the CWA Section 404(b)(1) Guidelines, develop 

appropriate permit conditions to minimize adverse impacts and consider alternatives. To reduce 

delays in permit processing and to ensure adequate State/Tribal programs, requirements for 

elements in the permit application were written into the federal regulations. These regulations 

incorporate much of the permit application information requirements contained in the Corps’ 

regulations (33 CFR 325). 

C. EPA is responsible for oversight of assumed State or Tribal programs to ensure that the State 

or Tribal program is in compliance with applicable requirements and that the State/Tribal permit 

decisions adequately consider, avoid, minimize and compensate for anticipated impacts 

(§404(l)). EPA’s State Program Regulations establish minimum requirements for the State or 

Tribal annual report (40 CFR 233.52). 

If a State or Tribal assumed program is not administered in accordance with requirements, EPA 

can revise the provisions for waiver of federal review of State/Tribal permits and, in extreme 

situations, initiate withdrawal of the assumed program. To have a sound basis to initiate such an 

action, oversight and analysis of the State/Tribe’s permitting actions must be done. The 

State/Tribe is the only source of basic permit data such as number of permit applications 

received and final action of these applications. The State/Tribe should also be given the 

opportunity to evaluate and present their interpretation of this information and to identify any 

problems encountered in administering their program and recommendations for addressing these 

problems. 

3. Non-duplication, Consultations, and Other Collection Criteria

3(a) Non duplication

In most cases State/Tribal assumption of the federal permit program eliminates duplication. 

Prior to an approved assumption, a permit applicant would have needed to get two separate 

permits for his proposed project – one from the Corps of Engineers and one from the State/Tribal 

agency (if the State/Tribe has a wetland regulatory program). After assumption is approved by 

EPA, only one permit is needed – from the appropriate state agency. A federal permit is no 

longer needed. 

EPA identified information that the State/Tribe should include in its annual report. This 

information includes permit numbers – number of applications received, processed, approved, 

denied, modified; number of enforcement actions taken and the outcomes. This type of 
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information may be needed by the State/Tribe for its own purposes – program evaluation, budget 

justification, etc. If the State/Tribe prepares this type of information for its own needs, EPA will 

let the State/Tribe select the period of time for the annual report to enable the State/Tribe to reuse this information for both purposes. 

3(b) Public Notice Required Prior to ICR Submission to OMB

First notice for renewing this ICR was published in the Aug 26, 2009, Federal Register (copy 

attached to this supporting statement). No comments were received in response to this Federal 

Register notice. 

3(c) Consultations

Peg Bostwick, Chief, 

Wetlands, Lakes and Streams Unit 

Land and Water Management Division 

Michigan Department of Environmental Quality 

P.O. Box 30458 

Lansing, Michigan 48909-7958 

(517) 335-3470 

Tom Micai, Administrator 

Land Use Regulation Program 

New Jersey Department of Environmental Protection 

P.O. Box 439 

Trenton, New Jersey 08625 

(609) 777-0454 

3(d) Effects of Less Frequent Collections

A. The information needed to request program assumption is submitted only once – at the time 

of the formal request to assume the federal permit program. 

B. Since each permit is for a specific project in a specific location, a permit application must be 

submitted and processed for each project unless authorized by a general permit. The information 

is needed to evaluate the impacts of the specific project in the particular location in which it is 

sited. 

C. Once a year reporting on the operation of its assumed program is an appropriate period of 

time for both EPA and the State/Tribe to evaluate operation of the assumed program, identify 

trends and/or problems, and “solutions” to any identified problems. 

3(e) General Guidelines

None applicable 

3(f) Confidentiality

EPA does not make any assurances of confidentiality for this information. 
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A. The information included in the State/Tribe’s assumption request is made available for public 

review and comment. 

B. The information included in a permit application is made available for public review and 

comment. 

C. The information included in the annual report to EPA is made available to the public. 

3(g) Sensitive Questions

Not applicable 

4. The Respondents and the Information Requested

4(a) Respondents/SIC Codes

A and C. States and Tribes are the identified respondents since the CWA authorizes only States 

and Tribes to assume the federal permit program. 

B. Respondents are not identified by industry or business. Anyone who proposes a project 

which involves the discharge of dredged or fill material into waters within the jurisdiction of a 

State/Tribal assumed program must submit a permit application to either the State or Tribe unless 

authorized by a general permit. 

4(b)Information Requested

(i) Data items, including record keeping requirements

A. The information needed for a complete assumption package is listed at 40 CFR 233.10: 

 1. Letter from the governor or Tribal equivalent formally requesting program 

assumption, 

 2. A complete program description (40 CFR 233.11), 

 3. Attorney General’s statement (40 CFR 233.12), 

 4. Memorandum of Agreement with EPA (40 CFR 233.13), 

 5. Memorandum of Agreement with the Corps (40 CFR 233.14), and 

 6. Copies of all applicable statutes and regulations. 

Record keeping 

 No specific record keeping requirements. 

B. Information that is needed for a complete permit application is listed at 40 CFR 233.30: 

 1. Name, address, and phone number of the applicant and adjoining property owners, 

 2. Complete description of the proposed project, 

3. Description of the type, composition, source and quantity of the material to be 

discharged, 

 4. Certification that all the information submitted is true and accurate, and 

 5. Any additional information requested by the State/Tribe to evaluate the project 

impacts. 
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Record keeping 

 See record keeping requirements for C below. 

C. Information that should be included in the annual report is listed at 40 CFR 233.52. Items 

that should be included in the annual report are an assessment of the cumulative impacts of the 

State/Tribe’s program on the integrity of the regulated waters; identification of areas of concern 

or interest; the number and nature of individual and general permits issued, modified, denied; 

and number of enforcement actions taken, number of suspected unauthorized activities reported 

and nature of the action taken; and an estimate of the extent of activities regulated by general 

permits. 

Record keeping 

States/Tribes with assumed programs are required to submit an annual report to EPA (40 

CFR 233.52) evaluating the State’s program. Items that should be addressed in the annual 

report include an assessment of the cumulative impacts of the State/Tribe’s permit 

program on the integrity of the State/Tribe’s waters; identification of areas of particular 

concerns and/or interest; the number and nature of individual and general permits issued, 

modified or denied; number of violations identified and the number and nature of 

enforcement action taken; number of suspected unauthorized activities reported and 

nature of action taken; an estimate of extent of activities regulated by general permit; and 

the number of permit applications received but not yet processed. 

5. The Information Collected-Agency Activities, Collection Methodology, and Information 

Management

5(a) EPA Agency Activities

A. Agency activities associated with review of a State/Tribal assumption request 

 determine if assumption request is complete; notify State/Tribe within 30 days that 

application is complete, 

 within 10 days, send copy of assumption request to the appropriate Corps, FWS and 

NMFS office, 

 publish public notice about receipt of assumption request, 

 hold public hearing(s), 

 review public comments received, 

 make decision to approve or deny assumption request, 

 notify other federal agencies about the decision, 

 notify the State/Tribe about the decision, and 

 publish notice of decision in the Federal Register. 

B. Agency activities associated with review of a State/Tribal permit application 

 State/Tribe will forward the public notice for any permit application subject to federal 

review (40 CFR 233.51) to EPA, 

 EPA will provide a copy of the public notice to the appropriate Corps, FWS and NMFS 

office for review and comment, 

 if EPA intends to comment to the State/Tribe on the permit application, EPA will notify 

the State/Tribe of this intent within 30 days, 
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 if the State/Tribe has been so notified, the permit shall not be issued until after receipt of 

the comment or 90 days from EPA’s receipt of the public notice, and 

 if the State/Tribe receives comments from EPA either objecting to the permit or 

requesting permit modification, the permit shall not be issued until such objections or 

request for modification are resolved. 

C. Agency activities associated with review of the annual report 

 the State/Tribe shall submit a draft annual report to EPA within 90 days of the end of the 

identified reporting period, 

 the State/Tribe shall make the draft report available to the public, 

 within 60 days, EPA shall complete review of the draft report and submit comments, 

questions or request for additional evaluation to the State/Tribe, 

 within 30 days of receipt of EPA’s comments, the State/Tribe will finalize the annual 

report incorporating or responding to EPA’s comments, and 

 upon acceptance of the annual report, EPA will publish notice of availability in the 

Federal Register. 

5(b) Collection Methodology and Management

The use of automated, electronic, mechanical, or other technological information collection 

techniques is not appropriate for this information. 

A and C. The State/Tribe is the only source of this information in that they know the statutes and 

regulations under which their programs are authorized. The State/Tribe is the best source of 

information about their program – funding and manpower, permit application forms, numbers of 

permits processed, number of enforcement actions taken and disposition of these actions, and 

analysis of the cumulative impact of the program. 

B. The permit applicant is the best source of information about the proposed project. Only the 

applicant knows what the purpose of the project is and what is planned. The applicant must 

complete a permit application form and submit the completed form to the State/Tribal agency 

administering the assumed program. This information is used by the State/Tribe to evaluate the 

impact of the proposed project and by the federal review agencies. The information is made 

available to the public in a public notice if an individual permit is required. 

5(c) Small Entity Flexibility

Small entities need to apply for a permit if a planned project involves the discharge of dredged or 

fill material into waters regulated by the assumed program. This is required of anyone who 

proposes to discharge. The information required from small entities applying for a State/Tribal 

permit in an assumed program is the same information that would have been required from the 

Corps if the State/Tribe had not assumed the program. 

EPA’s State/Tribal Program Regulations (40 CFR 233.30(d)) provide flexibility for small 

projects in that the level of detail of information required in the permit application should be 

commensurate with the type and size of the project/discharge. 
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5(d) Collection Schedule

A. The State/Tribe’s assumption request is a one-time request. The timing of this request is 

determined by the State or Tribe. 

B. A permit application is submitted each time someone plans to do work that involves the 

discharge of dredged or fill material into waters of the United States. The timing for submitting 

a permit application is determined by the permit applicant. 

C. The State/Tribe must submit an annual report to EPA assessing its operation of the program. 

The yearly period reported on in the annual report can be set by the State/Tribe. 

6. Estimating the Burden and the Cost of the Collection

6(a) Estimating Respondent Burden

A. We estimate that a State/Tribe will need 520 hours (approximately 1/4 of a work year) to 

prepare the documentation for EPA to determine that a State/Tribe’s assumption is complete. 

We estimate that two States or Tribes may request program assumption over the next three years. 

This results in a total one-time burden of 1,040 hours. 

B. We estimate that the average time needed to review a permit application is five hours. The 

actual time to review a permit application will vary greatly depending on the size and location of 

a planned project. Small projects will require less time; large, complex projects could require 

significantly more time. We estimate that the “average” assumed program will process 5,000 

permits a year. This results in a burden of 25,000 burden hours per year per assumed program. 

This figure will vary with the assumed program. It is likely that some State/Tribes will have 

significantly fewer permit applications requested each year; others may have more. The number 

of yearly permit applications may vary. 

C. We estimate that a State/Tribe will need 80 hours (two working weeks) to collect and analyze 

the information and prepare the annual report. 

6(b) Estimating Respondent Costs

(i) Estimating Labor Costs

A. We estimate that a State/Tribe will need 520 hours (approximately 1/4 of a work year) to 

prepare the documentation for EPA to determine that a State/Tribe’s assumption is complete. 

We estimate that $56,411 (starting point of a GS-11) is an average State/Tribal employee salary. 

This results in a one-time cost of $14,100. We estimate that two States or Tribes may request 

program assumption over the next three years. This results in a total salary cost of $28,200. 

Adding a 1.6 overhead factor results in a cost of $45,120. 

B. It is impossible to estimate the cost of filing an “average” permit application. The 

application for small projects can be completed by the permit applicant with little cost incurred. 

The permit application for larger, complex projects may require hiring outside parties such as 

environmental and engineering firms, surveyors, and lawyers. 

C. We estimate that a State/Tribe will need 80 hours to collect and analyze the information and 
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prepare the annual report. Using the $56,411 for an average State/Tribal employee salary results 

in an approximate salary cost of $2,160 to prepare the annual report. Adding a 1.6 overhead 

factor results in a cost of $3,456. 

(ii) Estimating Capital and Operations and Maintenance Costs

None 

(iii) Capital/Start-up Operating and Maintenance (O&M) Costs 

None 

(iv) Annualizing Capital Costs

None 

6(c) Estimating Agency Burden and Cost

A. Each State/Tribal request to assume the Section 404 permit program must be reviewed by the 

federal government. EPA is the agency responsible for making a decision to either approve or 

deny an assumption request; the Corps of Engineers, Fish and Wildlife Service and National 

Marine Fisheries Service review and provide comments to EPA on the adequacy of the 

State/Tribe’s program. We estimate that this review requires approximately 200 hours 

(approximately 1/10th of a work year). At the rate of a GS-13 (average salary of $80,402), this 

translates into a federal salary cost of $8,040 per assumption request. This results in a total salary 

cost of $16,080. Adding a 1.6 overhead factor results in a cost of $25,728. 

B. We estimate that federal review will be conducted on only a very small subset of State/Tribal 

permit applications – approximately 25 permits per State/Tribal program. The permits subject to 

federal review tend to be the larger projects with more potential for adverse environmental 

impacts. Because of this, we estimate that federal review will average 80 hours per permit 

application. This results in an annual burden of 2,000 burden hours (approximately 1 work year) 

per assumed program. At the rate of an average GS-11, this results in approximately $56,411 in 

salary cost. Adding a 1.6 overhead factor results in a cost of $90,258. 

C. We estimate that review of each State/Tribal annual report will take approximately 40 hours. 

At the rate of a GS-12 (average salary of $67,613), this translates into a salary cost of 

approximately $1,300 per annual report. This results in a total salary cost of $5,200. Adding a 

1.6 overhead factor results in a cost of $8,320. 
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6(d) Estimating the Respondent Universe and Total Burden and Costs

Respondent Burden & Cost Agency Burden & Cost 

A: Program Assumption Request

Number of States/Tribes to 

apply 

2 2 

Application Hours per Request 520 200 

Total Hours Requested 1040 400 

Current OMB Inventory (Hours) 1040 400 

Cost per Response $14,100 $8,040 

Total Cost with Overhead $45,120 $25,728 

B: Review of Permits 

State/Tribal Review of 

Permits 

Agency Review of 

Permits 

Number of Permit Applications 

Reviewed (per State/Tribe) 

Annually 

5,000 25 

Application Hours per Permit 5 80 

Total Hours Requested per 

State/Tribe 

25,000 2,000 

Total Hours Requested for 4 

State/Tribal Assumed Programs 

100,000 8,000 

Current OMB Inventory (Hours) 100,000 8,000 

Total Cost of Review per 

State/Tribe 

(too variable to calculate) $56,411 

Total Cost with Overhead for 

4 State/Tribal Assumed 

Programs 

(too variable to calculate) $361,030 

C: Annual Report 

State/Tribal Development of 

Annual Report 

Agency Review of 

Annual Report 

Number of States/Tribes that 

have Assumed the Program 4 4 

Hours per Report 80 40 

Total Hours Requested 320 160 

Current OMB Inventory (Hours) 320 160 

Cost per Report $2,160 $1,300 

Total Cost with Overhead $13,824 $8,320 

6(e) Bottom Line Burden Hours and Cost Tables

The total average burden to states for assumed Section 404 permit programs is 101,360 

hours. Costs will vary widely by state and permit, however there are no capital or O&M costs. 

The burden to EPA for related activities is 8,560 hours and $395,078 in labor costs. 
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6(f) Reasons for Change in Burden

None 

6(g) Burden Statement

This collection of information is separated into three pieces. The annual public reporting and 

record keeping burden for this collection of information is estimated to average 520 hours to 

request program assumption, 5 hours to complete a permit application and 80 hours to prepare 

the annual report. 

Burden means the total time, effort, or financial resources expended by persons to generate, 

maintain, retain, or disclose or provide information to or for a Federal agency. This includes the 

time needed to review instructions; develop, acquire, install, and utilize technology and systems 

for the purposes of collecting, validating, and verifying information, processing and maintaining 

information, and disclosing and providing information; adjust the existing ways to comply with 

any previously applicable instructions and requirements; train personnel to be able to respond to 

a collection of information; search data sources; complete and review the collection of 

information; and transmit or otherwise disclose the information. An agency may not conduct or 

sponsor, and a person is not required to respond to, a collection of information unless it displays 

a currently valid OMB control number. The OMB control numbers for EPA’s regulation’s are 

listed in 40 CFR part 9 and 48 CFR chapter 15. 

To comment on the Agency's need for this information, the accuracy of the provided burden 

estimates, and any suggested methods for minimizing respondent burden, including the use of 

automated collection techniques, EPA has established a public docket for this ICR under Docket 

ID Number EPA-HQ-OW-2005-0023, which is available for online viewing at 

http://www.regulations.gov, or in person viewing at the Office of Water Docket in the EPA 

Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Ave., NW, Washington, 

DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 

566-1744, and the telephone number for the Water Docket is (202) 566-2426). An electronic 

version of the public docket is available at http://www.regulations.gov. This site can be used to 

submit or view public comments, access the index listing of the contents of the public docket, 

and to access those documents in the public docket that are available electronically. When in the 

system, select “search,” then key in the docket ID Number EPA-HQ-OW-2005-0023. Also, you 

can send comments to the Office of Information and Regulatory Affairs, Office of Management 

and Budget, 725 17th Street, NW, Washington, DC 20503, Attention: Desk Office for EPA. 

Please include the EPA Docket ID Number (EPA-HQ-OW-2005-0023) and OMB Control 

Number (2040-0168) in any correspondence.