  SEQ CHAPTER \h \r 1 	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 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.

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 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 re-use 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.

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.

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,

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.

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 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.

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.

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.

