1

7 **SUPPORTING STATEMENT FOR ICR 0220. 1**  **2**

**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 State s or Trib es to request program assumption. B. Information needed from permit applicants. C. Information included in the State or T rib e’s annual report.
A. Section 404(g) of the Clean Water Act (CWA) authorizes State s [and Trib es] to assume the CWA Section 404 permit program. States/ Trib es must demonstrate that they meet the statutory and regulatory

requirements (40 CFR Part 233) fo r an approvable program. Specified information and documents must be submitted by the State/ Trib e to the Environmental Protection Agency

( EPA ) to request assumption. Once the required information and documents are submitted and EPA has a complete assumpt ion request package, the statutory time clock for EPA’s decision to either approve or den y the State / Trib e’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/ Trib es must be able to issue permits that comply with the CWA Section 404(b)(1) Guidelines, the environmental review criteria. States/ Trib es 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/ Trib e’s permit application, so that sufficient information is available to make a thorough anal ys is of anticipated impacts. These minimum information requirements are based on the information that must be submitted when appl yi ng for a CWA Section 404 permit from the Corps of Engineers. EPA is responsible for oversight of assumed programs to ensure that State/ Trib al programs are in compliance with applicable requirements and that State/ Trib al permit decisions adequatel y consider and minimize antic ipated impacts.
C. States/ Trib es 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 Collecti on**  2(a) Need/Authority for the Collection Section 404(g) of the CWA authorizes State s [ Trib es] to assume the federal CWA Section 404 permit program. Implementing regulations (40 CFR 233) establish specific information that2

must be submitted by

the State t o request program assumption. EPA is charged with approving or den yi ng a State/ Trib e ’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 Trib es can assume the CWA Section 404 permit program (CWA 404(g)). States and Trib es 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, State s and Trib es must have a wetland regulatory program similar to the federal permit program administered by the Corps of Engineers. States and Trib es must submit sufficient information for EPA to determine that the State or Trib e’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 Secti on 404(b)(1) Guidelines, which provide environmental criteria for permit evaluation and decision ; and has a dequate enforcement authority

. States and Trib es must submit required information if they want to assume the federal permit program. A complete ass umption 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 Trib e’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 Ar my 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 Trib e’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 f orms and reporting forms, the State or Trib e’s compliance evaluation and enforcement program, clarification of waters to be under State or Trib al jurisdiction and waters to remain under the jurisdiction of the Corps (a comparison of State/ Trib al and federa l 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 cop y 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 assumpti on request. EPA reviews the documentation submitted by the State/ Trib e and considers comments received from the public and the federal review agencies in making a decision to either approve of deny the assumption request.3

B. States and Trib es 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 Trib es and the reviewing federal agencies must be able to review proposed projects to evaluate, avoid, minimi ze and compensate for anticipated impacts. EPA’s regulations establish recommended elements (40 CFR 233.30) that should be included in the State or Trib e’s permit application so that sufficient information is available to make a thorough anal ys is of antic ipated 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 / Trib al permits. The intent of this review is to assure that State/ Trib al 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/ Trib al 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 Trib al programs to ensure that the State or Trib al program is in compliance with applicable requirements and that the State/ Trib al permit decisions adequately

consider, avoid, minimize and compens ate for anticipated impacts (§404(l)). EPA’s State P rogram Regulations establish minimum requirements for the State or Trib al annual report (40 CFR 233.52). If a State or Trib al assumed program is not administered in accordance with requirements, EPA can revise the provisions for waiver of federal review of State/ Trib al permits and, in extreme situations, initiate withdrawal of the assumed program. To have a sound basis to initiate such an action, oversight and analy sis of the State/ Trib e’s permitting a ctions must be done. The State / Trib e is the only

source of basic permit data such as number of permit applications received and final action of these applications. The State/ Trib e should also be given the opportunity

to evaluate and present their interpr etation 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/ Trib al 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/ Trib al agency (if the State/ Trib e 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/ Trib e 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 ty pe of4

information may

be needed by

the State/ Trib e for its own purposes

– program evaluation, budget justification, etc. If the State/ Trib e prepares this ty pe of information for its own needs, EPA will let the State/ Trib e select the period of time for the annual report to enable the State/ Trib e to re

use this information for both purposes. 3(b) Public Notice Required Prior to ICR Submission to OMB First notice for renewing this I CR was published in the [I NSERT DATE] , Federal Register (copy attached to this supporting statement ). [I NSERT SUMMA RY OF COMMENTS HERE or No comments were received in response to this Federa l Register notice. ] 3(c) Consultations Amy L ounds , Chief, Wetlands, L akes and Streams Unit Land and Water Management Division Michigan Department of Environmental Quality P.O. B o x 30458 L ansing, Michigan 48909

- 7958 (517) 335

- 3470 New Jersey

consultation is in pro c ess Madhu Guru, Assistant Director 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 speci fic 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 l ocation in which it is sited.
C. Once a ye ar reporting on the operation of its assumed program is an appropriate period of time for both EPA and the State/ Trib e to evaluate operation of the assumed program, identify trends and/or problems, and “solutions” to any identified problems. 3(e) Gen eral Guidelines None applicable 3(f) Confidentiality5

EPA does not make an y assurances of confidentiality for this information. A. The information included in the State/ Trib e’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 I nformation Requested**  4(a) Respondents/SIC Codes A and C. States and Trib es are the identified respondents since the CWA authorizes only State s and Trib es 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 / Trib al assumed program must submit a permit application to either the State or Trib e unless authorized by

a general permit. 4(b)Information Requested (i ) Data items, including record keeping requirements ; (ii) Respondent Activities A. The information needed for a complete assumption package is listed at 40 CFR 233.10: 1. L etter from the governor or Trib al equivalent formal ly 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), an d 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 ap plicant and adjoining property owners, 2. Complete description of the proposed project, 3. Description of the t yp e, 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 b y the State/ Trib e to evaluate the project impacts.6

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. It ems that should be included in the annual report are an assessment of the cumulative impacts of the State / Trib e’s program on the integrit y 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 keepin g States/ Trib es 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/ Trib e’s pe rmit program on the integrit y of the State/ Trib e’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 an d nature of enforcement action taken; number of suspected unauthorized activities reported and nature of action taken; an estimate of extent of activities regulated b y 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/ Trib al assumption request

 determine if assumption request is complete; notify State/ Trib e within 30 day s that application is complete,

 within 10 day s, 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 den y assumption request,

 notify

other federal agencies about the decision,

 notify

the State/ Trib e about the decision, and

 publish notice of decision in the Federal Register

. B. Agency

activities associated with review of a State/ Trib al permit application

 State/ Trib e will forward the public notice for an y permit application subject to federal review (40 CFR 233.51) to EPA,

 EPA will provide a cop y of the public notice to the appropriate Corps, FWS and NMFS off ice for review and comment,7

 if EPA intends to comment to the State/ Trib e on the permit application, EPA will notify the State/ Trib e of this intent within 30 day s,
 if the State/ Trib e has been so notified, the permit shall not be issued until after receipt o f the comment or 90 day s from EPA’s receipt of the public notice, and

 if the State/ Trib e 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 modifi cation are resolved. C. Agency

activities associated with review of the annual report

 the State/ Trib e shall submit a draft annual report to EPA within 90 day s of the end of the identified reporting period,

 the State/ Trib e shall make the draft report avai lable to the public,

 within 60 day s, EPA shall complete review of the draft report and submit comments, questions or request for additional evaluation to the State/ Trib e,
 within 30 day s of receipt of EPA’s comments, the State/ Trib e 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 o ther technological information collection techniques is not appropriate for this information. A and C. The State/ Trib e is the only source of this information in that they know the statutes and regulations under which their programs are authorized. The State/ Trib e 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 anal ys is of the cumulative impact of the program. B. The permit applicant is the best source of information about the proposed project. Onl y 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 c ompleted form to the State/ Trib al agency administering the assumed program. This information is used by the State/ Trib e to evaluate the impact of the proposed project and b y 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 b y the assumed program. This is required of an yone who proposes to discharge. The information required from small entities applying for a State/ Trib al permit in an assumed program is the same information that would have been required from the Corps if the State/ Trib e had not assumed the p rogram. EPA’s State /Trib al 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 be8

commensurate with the ty pe and size of the project/discharge. 5(d) Collection Schedule A. The State/ Trib e’s assumption request is a one

- time request. The timing of this request is determined b y the State or Trib e. B. A permit application is submitted each time someone plans to do work that involves the dischar ge 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/ Trib e must submit an annual report to EPA assessing its operation of the program. The ye arly

period reported on in the annual report can be set by the State/ Trib e. **6. Estimating the Burden and the Cost of the Collection** 6(a) Estimating Respondent Burden A. We estimate that a State/ Trib e will need 520 hours (approximately 1/4 of a work year) to prepare the documentation for EPA to determine that a State/ Trib e’s assumption is complete. We estimate that two State s or Trib es 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 greatl y depending on the size and location of a planned project. Small projects will require less time; large, complex projects could require significantl y 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 y ear per assumed program. This figure will vary

with the assum ed program. It is likel y that some State/ Trib es will have significantl y fewer permit applications requested each ye ar; others may have more. The number of yearl y permit applications may vary
. C. We estimate that a State/ Trib e will need 80 hours (two wo rking weeks) to collect and anal yz e the information and prepare the annual report. 6(b) Estimating Respondent Costs (i ) Estimating Labor Costs A. We estimate that a State/ Trib e will need 520 hours (approximately 1/4 of a work year) to prepare the docume ntation for EPA to determine that a State/ Trib e’s assumption is complete. We estimate that $ 5 7 , 408 (starting point of a GS

- 11) is an average State/ Trib al employee salary

. This results in a one

- time cost of $ 14 , 35 0 . We estimate that two State s or Trib es may request program assumption over the next three years. This resul ts in a total salary cost of $ 2 8 , 700

. Adding a 1.6 overhead factor results in a cost of $ 4 5 , 920

. B. It is impossible to estimate the cost of filing an “average” permit application. T he application for small projects can be completed b y 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 lawyer s.9

C. We estimate that a State/ Trib e will need 80 hours to collect and anal yz e the information and prepare the annual report. Using the $ 5 7 , 408 for a starting State/ Trib al employee salary results in an approximate salary

cost of $ 2 , 200 to prepare the annual report. Adding a 1.6 overhead factor results in a cost of $ 3, 520

. (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 / Trib al 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 Corp s of Engineers, Fish and Wildlife Service and National Marine Fisheries Service review and provide comments to EPA on the adequacy of the State / Trib e’s program. We estimate that this review requires approximately 200 hours (approximately

1/10th of a work ye ar). At the rate of a GS

- 13 ( starting salary of $ 8 1 , 823 ), this translates into a federal salary cost of $ 8, 18 0 per assumption request. This results in a total salary cost of $16, 36 0

. Adding a 1.6 overhead fac tor results in a cost of $ 2 6 , 1 70

. B. We es timate that federal review will be conducted on only a very small subset of State/ Trib al permit applications

– approximately 25 permits per State/ Trib al 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 ye ar) per assumed program. At the rate of a starti ng GS

- 11, this results in approximately $ 5 7 , 408 in salary cost. Adding a 1.6 overhead factor results in a cost of $ 9 1 , 85 0

. C. We estimate that review of each State/ Trib al annual report will take approximately 40 hours. At the rate of a GS

- 1 2 ( starting s alary of $68 , 809 ) , this translates into a s alary cost of approximately

$ 1, 32 0 per annual report. This results in a total salary cost of $5,280

. Adding a 1.6 overhead factor results in a cost of $ 8 , 450

.10

6(d) Estimating the Respondent Universe and Total B urden 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 R esponse**  $1 4 , 35 0 $ 8, 18 0 **Total Cost with Overhead** $ 45, 920 $ 26,170
**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 8 0 Total Hours Requested per State/Tribe 25,000 2,000
Tot al 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) $ 5 7 , 408
**T otal Cos**  **t with Overhead for 4**  **State/Tribal Assumed Programs**  (too variable to calculate) $ 36 7 , 4 00

**C : Annual Report**  **State/Trib al**  **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 T otal Hours Requested 320 160 Current OMB Inventory

(Hours) 320 160 **Cost per Report** $ 2, 20 0 $ 1,32 0 **Total Cost with Overhead** $ 1 4 , 080 $ 8,450
6(e) Bottom Line Burden Hours and Cost Tables (i ) Respondent Tally The total average burden to s tates 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.11

(ii) Agency Tally The burden to EPA for related activities is 8,560 hours and $ 402 ,0 20 in labor costs. (iii) Variations in the Annual Bottom Line Annual variation is dependent upon how many states come forward with assumption applications 6(f) Reasons for Change in Burden The increase d cost reflects an increase in wages, not an increase in burden hours.
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 comple te a permit application and 80 hours to prepare the annual report. Burden means the total time, effort, or financial resources expended b y 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 s ys tems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing way s to comply with any previousl y 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 o therw ise 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 display s a currently

valid OMB control number. The OMB control numbers for EPA’s regulation’s are li sted 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 an y suggested methods for minimizing respondent burden, including the use of automated collection techniq ues, EPA has established a public docket for this I CR under Docket ID Number EPA

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- 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 Cent er (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 holiday s. 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 sy stem, select “search,” then key in the docket ID Number EPA

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- 2005

- 0023 . Also, you can send comments to the Office of Information and R egulatory 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

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- 0023 ) and OMB C ontrol Number ( 20 40

- 0168 ) in any correspondence.