Clean Water Act Section 404 Tribal and State Assumption Program, 103454-103509 [2024-29484]
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103454 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 123, 124, 232, and 233
FOR FURTHER INFORMATION CONTACT:
[EPA–HQ–OW–2020–0276; FRL–6682–01–
OW]
RIN 2040–AF83
Clean Water Act Section 404 Tribal and
State Assumption Program
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA or the Agency) is
finalizing the Agency’s first
comprehensive revisions to the
regulations governing Clean Water Act
(CWA) section 404 Tribal and State
programs since 1988. The primary
purpose of the revisions is to respond to
longstanding requests from Tribes and
States to clarify the requirements and
processes for the assumption and
administration of a CWA section 404
permitting program for discharges of
dredged and fill material. The revisions
facilitate Tribal and State assumption
and administration of CWA section 404,
consistent with the policy of the CWA
as described in section 101(b), by
making the procedures and substantive
requirements for assumption
transparent and straightforward. It
clarifies the minimum requirements for
Tribal and State programs while
ensuring flexibility to accommodate
individual Tribal and State needs. In
addition, the final rule clarifies the
criminal negligence standard in the
CWA section 404 program, as well as
making a corresponding change in the
section 402 program. Finally, the final
rule makes technical revisions,
including removing outdated references
associated with the section 404 Tribal
and State program regulations.
DATES: This rule is effective on January
17, 2025. The incorporation by reference
of certain material listed in the rule is
approved by the Director of the Federal
Register as of January 17, 2025.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OW–2020–0276. All
documents in the docket are listed on
the https://www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, e.g., confidential business
information (CBI) or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available in hard copy form. Publicly
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SUMMARY:
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Christine Maietta, Oceans, Wetlands
and Communities Division, Office of
Water (4504–T), Environmental
Protection Agency, Pennsylvania
Avenue NW, Washington, DC 20460;
telephone number: 202–564–1854;
email address: cwa404g@epa.gov;
website: https://www.epa.gov/cwa404g.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. General Information
A. What action is the Agency taking?
B. What is the Agency’s authority for
taking this action?
C. What are the incremental costs and
benefits of this action?
III. Background
A. Statutory and Regulatory History
B. Need for Rulemaking Revisions
IV. Final Rule
A. General
B. Program Approval
C. Program Operations
D. Compliance Evaluation and
Enforcement
E. Federal Oversight
F. Eligible Indian Tribes
G. Impacts on Existing Programs
H. Technical Revisions
I. Incorporation by Reference
J. Severability
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review; Executive Order
13563: Improving Regulation and
Regulatory Review; and Executive Order
14094: Modernizing Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act
(UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer and
Advancement Act
J. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations and Executive Order 14096:
Revitalizing Our Nation’s Commitment
to Environmental Justice for All
K. Congressional Review Act
I. Executive Summary
Section 404 of the Clean Water Act
(CWA) establishes a program to regulate
the discharge of dredged or fill material
into navigable waters, defined as
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‘‘waters of the United States.’’ 33 U.S.C.
1344. The section 404 program,
introduced in the 1972 amendments to
the Federal Water Pollution Control Act,
is generally administered by the U.S.
Army Corps of Engineers (‘‘Corps’’).
However, in 1977, Congress amended
section 404 of the CWA to allow States
to administer their own dredged or fill
material permitting programs in certain
waters of the United States within their
jurisdiction, subject to EPA approval. Id.
at 1344(g). A Tribe or State
administering a section 404 program is
responsible for permitting discharges of
dredged and fill material, authorizing
discharges under general permits, taking
enforcement actions with respect to
unauthorized discharges, and ensuring
compliance with the terms and
conditions of permits under the Tribe’s
or State’s authority. EPA maintains
oversight of Tribal and State section 404
programs.
In 1980, EPA promulgated regulations
to establish procedures and criteria for
approving or disapproving State
programs under section 404(g) and for
oversight of State programs after
approval. 45 FR 33290 (May 19, 1980).
EPA revised the regulations in 1988. 53
FR 20764 (June 6, 1988). The 1988
revisions updated procedures and
criteria used in approving, reviewing,
and withdrawing approval of section
404 State programs, as well as
incorporating section 404 program
definitions and section 404(f)(1)
exemptions at 40 CFR part 232.
Although the Agency made targeted
revisions to 40 CFR part 233 in the early
1990s and 2000s in light of other
statutory and regulatory changes (e.g.,
new provisions addressing treatment of
Tribes in a similar manner as States),
the Agency has not comprehensively
revised these regulations since 1988.
Nearly half of States and a few Tribes
have expressed some level of interest to
EPA over time in assuming the section
404 dredged and fill permit program,
but only two States (Michigan and New
Jersey) currently administer the
program.1 Tribes and States have
identified several barriers to program
assumption. One of the barriers they
identified is uncertainty regarding the
scope of assumable waters. To address
this, the Agency convened the
Assumable Waters Subcommittee in
1 Florida obtained EPA’s approval to assume the
CWA section 404 program on December 17, 2020.
On February 15, 2024, the U.S. District Court for the
District of Columbia vacated EPA’s approval of
Florida’s program. Center for Biological Diversity v.
Regan, No. 21–119, 2024 WL 655368 (D.D.C.).
Accordingly, only the impacts of this rule on the
Michigan and New Jersey programs are discussed
in this rule. An appeal of the district court’s
decision is pending. See No. 24–5101 (D.C. Cir.).
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2015 to provide advice and develop
recommendations as to how EPA could
best clarify the scope of waters over
which a Tribe or State may assume
CWA section 404 permitting
responsibilities, and the scope of waters
over which the Corps retains CWA
section 404 permitting responsibilities.
The final report of the Subcommittee
was submitted to the National Advisory
Council for Environmental Policy and
Technology (NACEPT), which adopted
the majority recommendation in the
Subcommittee report. In its 2017 letter
to the Administrator conveying this
recommendation, NACEPT
recommended that EPA develop
regulations to clarify assumed and
retained waters.2
In this rule, the Agency also responds
to longstanding requests from Tribes
and States to streamline and clarify the
requirements and processes for the
assumption and administration of a
CWA section 404 program as well as
EPA oversight.3 The final rule facilitates
Tribal and State assumption of the
section 404 program, consistent with the
policy of the CWA as described in
section 101(b), by making program
assumption procedures and
requirements transparent and
straightforward and addresses Stateidentified barriers to assumption. The
final rule clarifies how Tribes and States
can ensure their program meets the
minimum requirements of the CWA
while allowing for flexibility in the way
these requirements may be met. It
clarifies the criminal enforcement
requirements for Tribal and State
section 404 programs and makes a
corresponding change in section 402
Tribal and State program requirements.
The Agency is also finalizing other
minor updates and technical revisions
in 40 CFR parts 232, 233, and part 124
associated with Tribal and State section
404 programs. This rule is
2 Available at https://www.epa.gov/cwa-404/
submission-assumable-waters-subcommittees-finalreport and in the docket for this final rule, Docket
ID No. EPA–HQ–OW–2020–0276.
3 See, e.g., letter from Thomas W. Easterly, Chair,
Water Committee, The Environmental Council of
States, Lucy C. Edmondson, Vice Chair, The
Environmental Council of States, to Peter Silva,
Assistant Administrator, Office of Water, U.S.
Environmental Protection Agency. February 26,
2010; Letter from R. Steven Brown, Executive
Director, The Environmental Council of States, to
Nancy K. Stoner, Acting Assistant Administrator,
Office of Water, U.S. Environmental Protection
Agency. July 22, 2011. Subject: Progress Report and
Recommended Actions to Further Clarify Section
404 Assumption Application Requirements and
Implementation by Tribes and States; Letter from
Alexandria Dapolito Dunn, ECOS, Sean Rolland,
ACWA, and Jeanne Christie, ASWM to Nancy K.
Stoner, Acting Assistant Administrator, Office of
Water, U.S. Environmental Protection Agency.
April 30, 2014.
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comprehensive in that EPA has updated
all of the provisions in 40 CFR parts
232, 233, and 124 associated with Tribal
and State 404 programs that it
determined needed to be clarified or
updated at this time. This rule does not
reopen any other provisions in parts
232, 233, or 124.
II. General Information
A. What action is the agency taking?
Assumption enables Tribes and States
to administer the CWA section 404
program, placing them in the primary
decision-making position for permitting
discharges of dredged or fill material
into certain waters of the United States.
EPA is revising and modernizing its
regulations to clarify requirements for
Tribal and State program assumption
and administration, reduce barriers to
assumption, and make technical
corrections to facilitate Tribal and State
assumption and administration of the
section 404 program. This rule also
addresses EPA’s procedures and criteria
for approving, exercising oversight, and
withdrawing Tribal and State programs
under CWA section 404(g)–(k) and
EPA’s implementing regulations at 40
CFR part 233, with one corresponding
clarification to CWA section 402
National Pollutant Discharge
Elimination System (NPDES) Tribal and
State section 402 permitting program
requirements for criminal enforcement
at 40 CFR 123.27.
B. What is the Agency’s authority for
taking this action?
The authority for this action is the
Federal Water Pollution Control Act, 33
U.S.C. 1251 et seq., including sections
101, 301, 309, 402, 404, 501, and 518.
C. What are the incremental costs and
benefits of this action?
The costs and benefits are
qualitatively discussed in the Economic
Analysis for the Clean Water Act
Section 404 Tribal and State Program
Regulation. The benefits of the final rule
are primarily attributable to establishing
a process to develop a retained waters
description, providing a program
effective date, and providing
opportunities for Tribal input. The
incremental costs of the final rule are
primarily attributable to a potential
burden increase for Tribes to meet
revised judicial review requirements
and a potential burden increase to
Tribes, States, and permittees from
revisions that expand on existing Tribal
opportunities to provide input. The
Agency expects these benefits to justify
the costs. The economic analysis does
not quantify these potential incremental
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economic impacts, as there is very
limited data associated with these
changes on which to base estimates.
III. Background
A. Statutory and Regulatory History
1. CWA Section 404
In 1972, Congress amended the
Federal Water Pollution Control Act
(FWPCA), or the CWA as it is commonly
called,4 to address longstanding
concerns regarding the quality of the
nation’s waters and the Federal
Government’s ability to address those
concerns under existing law. The
objective of the 1972 statutory scheme is
‘‘to restore and maintain the chemical,
physical, and biological integrity of the
Nation’s waters.’’ 33 U.S.C. 1251(a). To
achieve this objective, Congress
provided, ‘‘[e]xcept as in compliance
with this section and sections 1312,
1316, 1317, 1328, 1342, and 1344 of this
title, the discharge of any pollutant by
any person shall be unlawful.’’ Id. at
1311(a). A ‘‘discharge of a pollutant’’ is
defined broadly to include ‘‘any
addition of any pollutant to navigable
waters 5 from any point source,’’ which
includes the discharge of dredged or fill
materials from a point source into
waters of the United States. Id. at
1362(12).
Section 404 of the CWA establishes a
permitting program to regulate the
discharge of dredged or fill material
from a point source into navigable
waters, unless the discharge is
associated with an activity exempt from
section 404 permitting requirements
under CWA section 404(f). Id. at 1344.
Discharges of dredged materials, such as
the redeposit of dredged material (other
than incidental fallback), and discharges
of fill materials, such as rock, sand, or
dirt, may be associated with activities
such as site development, erosion
protection, bridges and piers, linear
projects (such as pipelines), natural
resource extraction, shoreline
stabilization, and restoration projects.
Section 404(a) of the CWA authorizes
the Secretary of the Army to issue
permits after notice and opportunity for
public hearings to discharge dredged or
fill material into navigable waters at
specified disposal sites. Id. at 1344(a).
The Act specifies that the Secretary of
the Army acts through the Chief of
4 The FWPCA is commonly referred to as the
CWA following the 1977 amendments to the
FWPCA. Public Law 95–217, 91 Stat. 1566 (1977).
For ease of reference, EPA will generally refer to the
FWPCA in this document as the CWA or the Act.
5 The CWA uses the term ‘‘navigable waters,’’
which the statute defines as ‘‘the waters of the
United States, including the territorial seas.’’ 33
U.S.C. 1362(7).
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Engineers, and thus the Corps generally
administers the day-to-day permitting
program under section 404, unless EPA
approves a Tribe’s or State’s request to
do so. See id. at 1344(d), (g).
The 1977 Amendments made the
regulation of the discharge of dredged or
fill material a shared responsibility of
the States and the Federal Government.6
This partnership is consistent with the
policy of CWA section 101(b) that
‘‘preserve[s] and protect[s] the primary
responsibilities and rights of States to
prevent, reduce, and eliminate
pollution.’’ and provides for States to
‘‘implement the permit programs under
sections 1342 and 1344 of this title.’’ 7
To facilitate State assumption of the
section 404 program, Congress
structured requirements and procedures
to leverage States’ existing authority to
administer the CWA section 402
program.8 See section III.A.4 of this
preamble for further discussion on the
specific statutory provisions that apply
to assumed programs.
Under the section 404 program,
discharges of dredged or fill material
into waters of the United States are
authorized by individual or general
permits. Individual permits are
processed by the permitting agency (i.e.,
the Corps, or a Tribe or State with an
approved program), which evaluates
them for consistency with the
environmental criteria outlined in the
6 See, e.g., H.R. Report No. 95–830 at 52 (1977)
(‘‘Federal agencies are to cooperate with State and
local agencies to develop solutions to prevent,
reduce and eliminate pollution in concert with
programs for managing water resources’’). See also
S. Report No. 95–370 at 78 (1977) (‘‘Several States
have already established separate State agencies to
control discharges of dredge or fill materials’’ and
‘‘The amendment encourages the use of a variety of
existing or developing State and local management
agencies.’’). See also id. at 11 (‘‘The provision
solves most real problems with section 404: (a) by
providing general delegation authority to the States
. . .’’). The 1977 amendments also introduced
exemptions and general permits. See 33 U.S.C.
1344(e)–(f).
7 See S. Report No. 95–370 at 77 (1977) (‘‘The
committee amendment is in accord with the stated
policy of Public Law 92–500 of ‘preserving and
protecting the primary responsibilities and rights of
States or [stet] prevent, reduce, and eliminate
pollution.’ ’’).
8 See id. at 77 (‘‘[The amendment] provides for
assumption of the permit authority by States with
approved programs for control of discharges for
dredged and fill material in accord with the criteria
and with guidelines comparable to those contained
in 402(b) and 404(b)(1).’’). See also id. at 77–78 (‘‘By
using the established mechanism in section 402 of
Public Law 92–500, the committee anticipates the
authorization of State management of the permit
program will be substantially expedited. At least 28
State entities which have already obtained approval
of the national pollutant discharge elimination
system under the section should be able to assume
the program quickly.’’). A Tribe or State need not
have an approved CWA section 402 program prior
to seeking to assume administration of CWA section
404.
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CWA section 404(b)(1) Guidelines 9 or
corresponding Tribal or State laws or
regulations, respectively. General
permits developed by the permitting
agency may authorize discharges that
will have only minimal adverse effects,
individually and cumulatively, to the
aquatic environment. General permits
must be consistent with the
environmental review criteria set forth
in the CWA section 404(b)(1) Guidelines
and may be issued on a nationwide,
regional, or programmatic basis for
discharges from specific categories of
activities. General permits allow
activities that meet specified conditions
to proceed with little or no delay. For
example, a general permit can authorize
discharges associated with minor road
activities or utility line backfill, if the
regulated activities under the general
permit will cause only minimal adverse
environmental effects when performed
separately, will have only minimal
cumulative adverse effects on the
environment, and the discharge
complies with the general permit
conditions and the CWA section
404(b)(1) guidelines.
While the Corps is the Federal
permitting agency and administers the
Federal section 404 program on a dayto-day basis, EPA also plays an
important role in the Federal section
404 program. Both agencies develop and
interpret policy and guidance and have
promulgated section 404 regulations.10
Both EPA and the Corps have
enforcement authorities pursuant to
section 404, as specified in sections
301(a), 309, 404(n), and 404(s) of the
CWA. In the context of section 404, the
Corps does the day-to-day work of
conducting jurisdictional
determinations,11 making permit
decisions, ensuring compliance, and
taking enforcement actions, as necessary
for the implementation of the Federal
section 404 program.
Under section 404, EPA establishes
environmental criteria used in
9 The CWA section 404(b)(1) Guidelines are
regulations established by EPA pursuant to CWA
section 404(b)(1) in conjunction with the Corps and
codified at 40 CFR part 230. They set forth the
substantive environmental review criteria used to
evaluate permits for discharges of dredged and/or
fill material under CWA section 404.
10 The substantive and procedural requirements
applicable to section 404 are detailed in EPA’s
regulations at 40 CFR parts 230 through 233 and the
Corps’ regulations at 33 CFR parts 320, 323, 325–
328, 330 through 333, and 335 through 338.
11 EPA decisions on jurisdiction do not constitute
approved jurisdictional determinations as defined
by the Corps regulations at 33 CFR 331.2. EPA has
final administrative authority over the scope of
CWA jurisdiction. Administrative Authority to
Construe § 404 of the Federal Water Pollution
Control Act (‘‘Civiletti Memorandum’’), 43 Op.
Att’y Gen. 197 (1979).
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evaluating permit applications (i.e., the
CWA section 404(b)(1) Guidelines) in
conjunction with the Corps; determines
the applicability of section 404(f)
exemptions; approves and oversees
Tribal and State assumption of the
section 404 program (sections 404(g)–
(l)); may review and comment on
general permits, authorization under
general permits, and individual permit
applications issued by Tribes, States, or
the Corps; may prohibit, deny, or
restrict the use of any defined area as a
disposal site (section 404(c)); and may
elevate Corps issued permits for
resolution (section 404(q)).
2. Scope of Tribal and State CWA
Section 404(g) Programs
When Congress enacted the CWA in
1972, the Corps had long been
regulating ‘‘navigable waters of the
United States’’ as defined under the
Rivers and Harbors Act of 1899 (RHA).
The CWA defined ‘‘navigable waters’’ to
mean ‘‘the waters of the United States,
including the territorial seas.’’ 33 U.S.C.
1362(7). The Corps’ initial post-CWA
regulations treated the two
jurisdictional terms under the two
different statutes interchangeably. 39 FR
12115, 12119 (April 3, 1974). In 1975,
the U.S. District Court for the District of
Columbia found that ‘‘waters of the
United States’’ under the CWA exceeds
the scope of jurisdiction under the RHA
and ordered the Corps to adopt new
regulations ‘‘clearly recognizing the full
regulatory mandate of the Water Act.’’
Nat. Res. Def. Council, Inc. v. Callaway,
392 F. Supp. 685, 686 (D.D.C. 1975).
In July 1975, the Corps issued new
regulations expanding the section 404
program in phases to cover all waters of
the United States, in compliance with
the court’s order. 40 FR 31320 (July 25,
1975). Phase I, which was effective
immediately, regulated discharges of
dredged or fill material into coastal
waters or inland navigable waters of the
United States and wetlands contiguous
or adjacent to those waters. Phase II,
effective on July 1, 1976, addressed
discharges of dredged or fill material
into primary tributaries and contiguous
or adjacent wetlands, as well as lakes.
Phase III, effective after July 1, 1977,
addressed discharges of dredged
material or fill material into ‘‘any
navigable water [including intrastate
lakes, rivers and streams . . .]’’ Id. at
31326. The intent of the phased
approach was to provide time for the
Corps to increase staffing and resources
to implement the expanded jurisdiction
and workload. Id. at 31321 (‘‘[i]n view
of man-power and budgetary constraints
it is necessary that this program be
phased in over a two year period.’’).
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Thus, the phases did not mean all of the
waters in the final regulation were not
waters of the United States, but rather
reflected when the Corps would have
capacity to begin regulating activities
within each type of jurisdictional water.
Some in Congress were concerned
about breadth of the new interpretation
of ‘‘waters of the United States’’ under
the Corps’ CWA dredged and fill
regulatory program. In 1976, the House
of Representatives passed H.R. 9560,
which would have redefined the CWA
term ‘‘navigable waters’’ specifically for
the section 404 program (but not the rest
of the CWA) as follows:
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The term ‘‘navigable waters’’ as used in
this section shall mean all waters which are
presently used, or are susceptible to use in
their natural condition or by reasonable
improvement as a means to transport
interstate or foreign commerce shoreward to
their ordinary high water mark, including all
waters which are subject to the ebb and flow
of the tide shoreward to their mean high
water mark (mean higher high water mark on
the west coast).
H.R. Rep. No. 94–1107, at 63 (1976).
The House Committee explained that
the new definition would mirror the
longstanding RHA section 10 definition
of ‘‘navigable waters of the United
States,’’ except that it would omit the
‘‘historical test’’ of navigability. Id. at
19. The House thought that discharges
of dredged or fill material occurring in
‘‘waters other than navigable waters of
the United States . . . are more
appropriately and more effectively
subject to regulation by the States.’’ Id.
at 22.
The Senate disagreed. It declined to
redefine ‘‘navigable waters’’ for
purposes of the section 404 program and
the House bill was not enacted into law.
Instead, the Senate addressed the desire
for State control by passing a bill
allowing States to assume section 404
permitting authority, subject to EPA
approval, in Phase II and III waters (as
defined in the Corps’ 1975 regulations
quoted above). S. Rep. No. 95–370, at 75
(1977).12 After assumption, the Corps
would retain section 404 permitting
authority in Phase I waters. This general
approach was codified in the final bill,
H.R. 3199, referred to as the 1977 CWA
Amendments: it did not change the
definition of ‘‘navigable waters’’ for the
section 404 program, but it allowed
States to assume permitting authority in
‘‘phase 2 and 3 waters after the approval
of a program by [EPA].’’ H.R. Rep. No.
12 The Senate Report is reprinted in Comm. On
Env’t & Publ. Works, 95th Cong., 4 A Legislative
History of the Clean Water Act of 1977 (Legis.
History) at 635, 708 (October 1978).
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95–830, at 101 (1977).13 The final
amendments included a parenthetical
phrase in section 404(g)(1) that defined
Corps-retained waters using the same
language that the House Committee had
used in its effort to limit the Corps’
jurisdiction, other than waters that were
historically used as a means to transport
interstate or foreign commerce but no
longer do so, and with the addition of
‘‘wetlands adjacent thereto.’’ H.R. Rep.
No. 95–830, at 39. The preamble to the
Corps’ 1977 regulations described
Corps-retained waters under section
404(g)(1) as ‘‘waters already being
regulated by the USACE,’’ i.e., those
waters the Corps regulated under
section 10 of the RHA, ‘‘plus all
adjacent wetlands to these waters.’’ 42
FR 37122, 37124 (July 19, 1977). The
legislative history suggests that the
Senate expected widespread assumption
of the section 404 program, leaving the
Corps to regulate only RHA section 10
waters that are currently used as a
means to transport interstate or foreign
commerce, and adjacent wetlands. S.
Rep. No. 95–370, at 77–78, reprinted in
4 Legis. History 1977, at 710–11; see 33
U.S.C. 1344(g)(1).
3. Overview of CWA Section 404(g)
Statutory Requirements for Program
Administration and Implementation
Congress laid out general procedures
for Tribal 14 and State submissions and
EPA’s approval, upon which EPA has
further elaborated in regulation, as
discussed in section III.A.4 of this
preamble below. Pursuant to section
404(g), a Tribe or State seeking to
assume the section 404 program must
submit to the EPA Administrator a full
and complete description of the
proposed program and a statement from
the attorney general (or attorney for
Tribal or State agencies that have
independent legal counsel) that it has
adequate authority to establish and
carry out the proposed program under
Tribal or State law. 33 U.S.C. 1344(g)(1).
The Administrator has up to ten days
after the receipt of the program
description and attorney general
statement to provide copies to the
Secretary of the Army and Secretary of
the Interior (acting through the Director
of the United States Fish and Wildlife
Service), who in turn have up to 90 days
from the Administrator’s receipt of a
complete program description and
13 The House Report is reprinted in 3 Legis.
History 1977, at 185, 285.
14 The 1987 amendments to the CWA added
section 518, which authorizes EPA to treat eligible
Indian Tribes in a manner similar to States for a
variety of purposes, including administering each of
the principal CWA regulatory programs such as
CWA section 404. 33 U.S.C. 1377(e).
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attorney general statement to provide
comments to the Administrator.15 Id. at
1344(g)(2)–(3).
Section 404(h) of the Act identifies
eight authorities EPA must ensure a
Tribe or State has prior to approving a
request to assume and administer a
section 404 program. Id. at
1344(h)(1)(A)–(H). First, a Tribe or State
must have the authority to issue permits
that apply and assure compliance with
the requirements of section 404
(including but not limited to the CWA
section 404(b)(1) Guidelines); issue
permits for a set duration which cannot
exceed five years; and terminate or
modify an issued permit. Id. at
1344(h)(1)(A). Second, the Tribe or State
must have the authority to inspect,
monitor, enter and require reports in
association with issued permits to the
same extent as required under section
1318 of the Act. Id. at 1344(h)(1)(B).
Third, the Tribe or State must have the
authority to provide public notice,
provide an opportunity to comment on
proposed permits, and provide an
opportunity for a public hearing. Id. at
1344(h)(1)(C). Fourth, the Tribe or State
must have authority to assure EPA
receives notice and a copy of each
application (unless review is waived).
Id. at 1344(h)(1)(D). Fifth, the Tribe or
State must have authority to provide
notice to Tribes and States whose waters
may be affected by the permit and for
the affected Tribe or State to provide
written recommendations. Id. at
1344(h)(1)(E). Sixth, a Tribe or State
must also have the authority to assure
no permit will be issued if it would
substantially impede anchorage and
navigation of the navigable waters. Id. at
1344(h)(1)(F). Seventh, the Tribe or
State must have authority to abate
violations of permits and the program—
including both civil and criminal
penalties as well as other ways and
means of enforcement. Id. at
1344(h)(1)(G). And lastly, the Tribe or
State must have authority to assure
continued coordination with Federal
and Federal-State water-related
planning and review processes. Id. at
1344(h)(1)(H).
If the EPA Administrator determines
that a Tribe or State that has submitted
a program request under section
404(g)(1) has the authority set forth in
section 404(h)(1) of the CWA, then the
Administrator ‘‘shall approve’’ the
Tribe’s or State’s request to assume the
section 404 program. Id. at 1344(h)(2). If
the Administrator fails to make a
determination with respect to any
15 Per the regulations, a copy is also provided to
the National Marine Fisheries Service. See 40 CFR
233.15(d).
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program request submitted by a Tribe or
State within 120 days after the date of
receipt of the request, the program shall
be deemed approved. Id. at 1344(h)(3).
The Act also provides for EPA to
withdraw assumed programs that are
not administered in accordance with the
requirements of the Act. Id. at 1344(i).
A Tribe or State assuming the section
404 program must have authority under
Tribal or State law to assume,
administer, and enforce the program;
EPA’s approval does not delegate
authority to issue a permit on behalf of
the Federal Government. By assuming
administration of the section 404
program under section 404(g), an
eligible Tribe or State takes on the
primary responsibility of permitting
discharges of dredged and/or fill
material into certain waters of the
United States within its jurisdiction.16
For section 404 permitting purposes, the
Tribe or State must exercise jurisdiction
over all assumed waters subject to the
CWA except those waters to be retained
by the Corps. 33 U.S.C. 1344(g). The
Corps retains CWA section 404
permitting authority for all nonassumed waters as well as RHA section
10 permitting authority in all waters
subject to RHA section 10. For example,
States generally do not assume CWA
section 404 authority over Tribal waters
or waters in lands of exclusive Federal
jurisdiction. Tribal or State programs
can also regulate waters that are
retained by the Corps, or waters that are
not waters of the United States, under
Tribal or State law, but the Corps will
remain the CWA 404 permitting
authority for retained waters.
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4. CWA Section 404 Tribal and State
Program Regulations
In 1980, in response to the 1977 CWA
Amendments, EPA promulgated
regulations to establish procedures and
criteria to approve or disapprove State
programs under section 404(g) and
monitor State programs after approval.
45 FR 33290 (May 19, 1980).17 On June
16 Legislative history makes clear that Congress
did not intend Tribal or State assumption under
section 404(g) to be a delegation of the permitting
program. H.R. Rep. No. 95–830 at 104 (1977). (‘‘The
Conference substitute provides for the
administration by a State of its own permit program
for the regulation of the discharge of dredged or fill
material. . . . The conferees wish to emphasize
that such a State program is one which is
established under State law and which functions in
lieu of the Federal program. It is not a delegation
of Federal authority.’’) The conference report is
available at https://www.epa.gov/sites/production/
files/2015-11/documents/1977_conf_rept.pdf.
17 In 1983, EPA reorganized the presentation of
the permit programs in the CFR, including moving
the regulations for 404 State programs to their
current location at 40 CFR part 233, but made no
substantive changes to any of the affected sections.
48 FR 14146, 14208 (April 1, 1983).
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6, 1988, EPA revised these procedures
and criteria used in approving,
reviewing, and withdrawing approval of
section 404 State programs and codified
them at 40 CFR part 233. 53 FR 20764
(June 6, 1988). The 1988 regulations
provided States with flexibility in
program design and administration
while still meeting the requirements and
objectives of the CWA. They also
incorporated section 404 program
definitions and section 404(f)(1)
exemptions at 40 CFR part 232.18
The regulations at 40 CFR part 233
described the assuming Tribe’s or
State’s program requirements, EPA
responsibilities, approval and oversight
of assumed programs, and requirements
for review, modification, and
withdrawal of Tribal and State programs
(as necessary). Subpart B of the 404
State Program Regulations sets forth the
elements of program approval,
including the program description, the
Attorney General’s statement, the
Memorandum of Agreement between
the Tribe or State and EPA, and the
Memorandum of Agreement between
the Tribe or State and the Secretary. It
also establishes procedures for
approving and revising Tribal or State
programs. 40 CFR 233.10 through
233.16. Subpart C addresses Permit
Requirements, subpart D lays out
Program Operation Requirements,
subpart E establishes requirements for
Compliance Evaluation and
Enforcement, and subpart F discusses
Federal Oversight authority. Id. at
233.20–53. In subpart G, EPA lays out
requirements and procedures for Tribal
assumption, id. at 233.60–62, and
subpart H codifies EPA’s approval of
Michigan and New Jersey’s programs
and incorporates certain State laws by
reference. Id. at 233.70–71. These
regulations implement key principles of
Tribal and State assumption, including
that an assumed program must be
consistent with and no less stringent
than the Act and implementing
regulations, allow for public
participation, ensure consistency with
the CWA 404(b)(1) Guidelines, and have
adequate enforcement authority.
Since 1988, the Agency has made
several targeted revisions and additions
to the CWA section 404 Tribal and State
program regulations at 40 CFR part 233.
On February 13, 1992, EPA finalized a
rule amending the regulations to reflect
the newly created Environmental
18 The 1988 regulations essentially recodified at
40 CFR part 232 the section 404 program definitions
and section 404(f)(1) permit exemptions in a new,
separate part to eliminate any confusion about their
applicability. The section 404 program definitions
at 40 CFR part 232 apply to both the Federal and
State administered programs.
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Appeals Board in Agency adjudications,
including revising section 233.53
related to withdrawal. 57 FR 5320
(February 13, 1992). In 1993, the Agency
added subpart G to 40 CFR part 233
pursuant to CWA section 518, which
required EPA to promulgate regulations
specifying how Indian Tribes may
qualify for treatment in a similar
manner as a State (TAS) for purposes of
assuming the section 404 program. 58
FR 8172 (February 11, 1993).19 The
1993 rule also revised 40 CFR part 232
by adding new definitions for ‘‘Federal
Indian reservation,’’ ‘‘Indian Tribe,’’ and
‘‘States.’’ Id. The Agency further revised
the subpart G regulations regarding
Tribal eligibility at sections 233.60,
233.61, and 233.62 in 1994 to improve
and simplify the process for Tribes to
obtain EPA approval to assume the
section 404 program. 59 FR 64339,
64345 (December 14, 1994). Under that
rule, known as the Simplification Rule,
a Tribe does not need to prequalify for
TAS before requesting to assume the
section 404 program. Instead, it can
establish its TAS eligibility at the
program approval stage, subject to EPA
notice and comment procedures for
State program approval. Id. at 64339–40.
A 2005 rule on cross-media electronic
reporting added section 233.39 on
electronic reporting. 70 FR 59848
(October 13, 2005). EPA also codified
the approval of the Michigan program
on October 2, 1984 (49 FR 38947) and
the New Jersey program on March 2,
1994 (59 FR 9933) in subpart H of 40
CFR part 233.
B. Need for Rulemaking Revisions
Although nearly half of the States and
a few Tribes have expressed some level
of interest to EPA over time in assuming
the Federal section 404 dredged and fill
permit program, only two States
currently administer the program.20 In
2010 and 2011 letters to EPA, the
Environmental Council of States
19 When the term ‘‘State Program’’ is used in the
regulations, it refers to an approved program run by
any of the entities described in the definition of
‘‘State,’’ including Tribes. 58 FR 8183 (‘‘State means
any of the 50 States, the District of Columbia,
Guam, the Commonwealth of Puerto Rico, the
Virgin Islands, American Samoa, the
Commonwealth of the Northern Mariana Islands,
the Trust Territory of the Pacific Islands, or an
Indian Tribe, as defined in this part, which meet the
requirements of § 233.60. For purposes of this part,
the word State also includes any interstate agency
requesting program approval or administering an
approved program.’’).
20 Florida obtained EPA’s approval to assume the
CWA section 404 program on December 17, 2020.
On February 15, 2024, the U.S. District Court for the
District of Columbia vacated EPA’s approval of
Florida’s program. Center for Biological Diversity v.
Regan, No. 21–119, 2024 WL 655368 (D.D.C.). An
appeal of the district court’s decision is pending.
See No. 24–5101 (D.C. Cir.).
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recommended further steps to
encourage Tribal and State assumption
of the program, remove barriers to
assumption, and improve the efficiency
of the program.21 While some Tribes
and States have considered assumption,
they have expressed to EPA the need for
further clarification regarding the
regulations, including which waters a
Tribe or State may assume and which
waters the Corps retains. For example,
in a 2014 letter to then-Acting Assistant
Administrator Nancy Stoner,22 State
associations asked EPA to clarify the
scope of assumable waters, citing
uncertainty on this issue as a barrier to
assuming the program.
In 2015, EPA formed the Assumable
Waters Subcommittee under the
auspices of the National Advisory
Council for Environmental Policy and
Technology (NACEPT) to provide
advice and develop recommendations as
to how EPA could best clarify the scope
of waters over which a Tribe or State
may assume CWA section 404
permitting responsibilities, and the
scope of waters over which the Corps
retains CWA section 404 permitting
responsibilities. The Subcommittee
included 22 members representing
States, Tribes, Federal agencies,
industry, environmental groups, Tribal
and State associations, and academia.
The Subcommittee presented its
recommendations to NACEPT on May
10, 2017. NACEPT endorsed the
Subcommittee report in its entirety and
submitted it to former Administrator
Scott Pruitt on June 2, 2017, with
additional notations and
recommendations, such as a preference
for clarity through regulation. The
‘‘Final Report of the Assumable Waters
Subcommittee, May 2017,’’
recommended that EPA develop
policies, guidance, and regulations to
clarify assumed and retained waters.23
21 Letter from Thomas W. Easterly, Chair, Water
Committee, The Environmental Council of States,
Lucy C. Edmonson, Vice Chair, The Environmental
Council of States, to Peter Silva, Assistant
Administrator, Office of Water, U.S. Environmental
Protection Agency. February 26, 2010; Letter from
R. Steven Brown, Executive Director, The
Environmental Council of States, to Nancy K.
Stoner, Acting Assistant Administrator, Office of
Water, U.S. Environmental Protection Agency. July
22, 2011. Subject: Progress Report and
Recommended Actions to Further Clarify Section
404 Assumption Application Requirements and
Implementation by Tribes and States.
22 Letter from Alexandria Dapolito Dunn, ECOS,
Sean Rolland, ACWA, and Jeanne Christie, ASWM,
to Nancy Stoner, Acting Assistant Administrator,
Office of Water, U.S. Environmental Protection
Agency. April 30, 2014.
23 Available at https://www.epa.gov/cwa-404/
submission-assumable-waters-subcommittees-finalreport and in the docket for the final rule, Docket
ID No. EPA–HQ–OW–2020–0276.
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In addition to the needs identified by
Tribes and States, the Agency also
recognized the need for other revisions,
including several technical revisions to
the regulations. For example, while the
1988 regulations recognized that the
part 124 regulations do not apply to
Tribal or State section 404 programs, the
Agency did not make conforming
revisions. The regulation also required
other revisions throughout 40 CFR part
233 to update cross-references, ensure
consistent use of terminology, and
facilitate efficient program operation.
On June 11, 2018, the Agency
published its 2018 Spring Unified
Agenda of Regulatory and Deregulatory
Actions 24 announcing the Agency was
considering a rulemaking to provide the
first comprehensive revisions to the
section 404 Tribal and State program
regulations since 1988.
In September 2018, the Agency sent
letters to Tribal leaders and State
governors announcing opportunities for
Tribes and States to provide input on
areas of the regulation that could benefit
from additional clarity and revision.
Tribes and States provided input on
various topics at Tribal and State
engagement sessions, including requests
for flexibility in assuming and
administering the section 404 program
and clarification on retained and
assumed waters. See section V.E and F
of this preamble for further discussion
on Tribal and State engagement in this
rule effort. In 2023, EPA held
informational webinars for States on
January 24 and for Tribes on January 2–
5 and January 31. At these webinars,
EPA provided Tribes and States with an
update on the rulemaking effort and an
overview of previously received Tribal
and State input to EPA. EPA did not
seek additional input from Tribes or
States at the January 2023 webinars.
The Agency announced a proposed
rule to revise the CWA section 404
Tribal and State program regulations on
July 19, 2023; the Agency also posted a
draft of the proposed rule on its website.
On August 14, 2023, the Agency
published the proposed rulemaking in
the Federal Register, 88 FR 55276,
which initiated a 60-day public
comment period that lasted through
October 13, 2023. EPA held a virtual
public hearing on September 6, 2023,
and hosted input sessions for interested
State and Tribal parties throughout
August 2023, including one State input
session on August 24, 2023, and two
Tribal input sessions on August 15 and
30, 2023. In finalizing the proposed
24 Available at https://www.reginfo.gov/public/
do/eAgendaViewRule?pubId=201804&RIN=2040AF83.
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rule, the Agency reviewed 44 comments
received on the proposed rulemaking, in
addition to input received during preproposal, at the public hearing, and at
the Tribal and State input sessions.
Commenters provided a range of
feedback on the proposal. The Agency
discusses comments received and
responses in the applicable sections of
this preamble to the rule. A complete
response to comments document is
available in the docket for the rule
(Docket ID No. EPA–HQ–OW–2020–
0276).
The rule addresses many of the issues
raised by Tribes and States as challenges
to assuming section 404, as well as
drawing from EPA’s experience working
with Tribes and States pursuing
assumption and in program oversight.
IV. Final Rule
EPA is finalizing revisions to the
CWA section 404 Tribal and State
program regulations at 40 CFR part 233
to provide additional clarity on conflict
of interest prohibitions, program
approval procedures and requirements,
permit requirements, program
operations, compliance evaluation and
enforcement, Federal oversight, and
Tribal provisions. EPA is also finalizing
revisions to the criminal enforcement
requirements in 40 CFR 123.27 and 40
CFR 233.41, which apply to Tribes and
States that administer the CWA section
402 National Pollutant Discharge
Elimination System (NPDES) permitting
program as well as the section 404
program.
This section of this preamble
addresses changes to seven sub-sections
in the existing subpart structure of the
40 CFR part 233 regulations: Subpart
A—General, Subpart B—Program
Approval, Subpart C—Permit
Requirements, Subpart D—Program
Operations, Subpart E—Compliance
Evaluation and Enforcement, Subpart
F—Federal Oversight, and Subpart G—
Eligible Indian Tribes. Each sub-section
contains topics covered under that
subpart of the regulation. Within each
topic, this preamble includes (1) an
overview of the topic and its relevant
final rule provision(s) and (2) a
summary of the Agency’s final rule
rationale and public comments. Where
applicable, some topics also address
implementation considerations for the
final rule provisions. This preamble is
structured in a manner intended to
clearly convey the relevant changes to
the regulatory text. Following this
preamble discussion on the final rule
provisions, this section of this preamble
also includes four sub-sections that
discuss the impact of the final rule on
existing programs, technical revisions,
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incorporation by reference, and
severability.
A. General
1. Conflict of Interest
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a. Overview and What the Agency Is
Finalizing
The Agency’s 1988 regulations for the
section 404 Tribal and State program
provided a general prohibition that
public officers or employees with direct
personal or pecuniary interests in a
decision must make the interest known
and not participate in such decision. In
the proposal to this rule, the Agency
proposed to clarify to whom the
provision applies. The proposal
specified that individuals who exercise
responsibilities over section 404
permitting and programs may not be
involved in any matters in which they
have a direct personal or pecuniary
interest. The proposal also clarified that
this provision applies to decisions by
the Tribal or State permitting agency as
well as any entity that reviews decisions
of the agency.
After reviewing public comments, the
Agency is finalizing the revisions to the
conflict of interest provision as
proposed. EPA is also affirming the
importance of ensuring public
confidence when a Tribe or State issues
a permit to one of its agencies or
departments, though has determined
that codifying specific processes or
requirements to address self-issuance of
permits by assuming Tribes and States
is unnecessary. This provision does not
address or affect Federal or State court
review of permitting actions.
b. Summary of Final Rule Rationale and
Public Comment
CWA section 404 does not require
EPA to establish guidelines on conflicts
of interest for Tribal or State programs.
In contrast, the CWA requires EPA to
establish guidelines for section 402
State programs that prohibit any entity
which approves permit applications
from having members who receive, or
have during the previous two years
received, a significant portion of their
income from permit holders or
applicants for a permit. 33 U.S.C.
1314(i)(D). EPA’s section 402
regulations, accordingly, provide that
‘‘State NPDES programs shall ensure
that any board or body which approves
all or portions of permits shall not
include as a member any person who
receives, or has during the previous 2
years received, a significant portion of
income directly or indirectly from
permit holders or applicants for a
permit.’’ 40 CFR 123.25(c). The
provision then defines the terms ‘‘board
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or body,’’ ‘‘significant portion of
income,’’ ‘‘permit holders or applicants
for a permit,’’ and ‘‘income.’’ See id. at
123.25(c)(1).
In 1984, EPA proposed to codify the
section 402 provision in its revisions to
the section 404 Tribal and State program
regulations. 49 FR 39012 (October 2,
1984). However, EPA ultimately
decided not to hold Tribe and State
section 404 programs to the same
conflict of interest standards as State
NPDES programs because of practical
differences between the two programs.
53 FR 20764, 20766 (June 6, 1988). At
that time, EPA noted that NPDES
discharges are usually long-term
discharges, often from certain specific
types of industrial or municipal
facilities. Id. In contrast, discharges
authorized by section 404 typically tend
to be one-time discharges and generated
by a broader range of dischargers than
NPDES, ‘‘ranging from private citizens
to large corporations, from small fills for
boat docks or erosion prevention to
major development projects.’’ Id. EPA
concluded that an absolute ban on
anyone with a financial interest in a
permit from serving on a board that
approves permits is likely to be more
difficult to comply with under the
section 404 program because so many
people would be considered to be
financially interested in section 404
permits and therefore eliminated from
the pool of potential board members. Id.
Instead, EPA provided a general
prohibition that public officers or
employees with such interests in a
decision shall make the interest known
and not participate in such decision. Id.
Similar distinctions between the
sections 402 and 404 programs apply
today. For example, if an individual
needed a section 404 permit for the
discharge of fill material into one lake
to install a boat ramp at one point in
time, EPA does not think it necessary to
permanently preclude that individual
from participating in any section 404related decision-making. The Agency
proposed to revise the section 404
conflict of interest provision, however,
to further clarify to whom the provision
applies. The purpose of this clarification
was to ensure that individuals who
exercise responsibilities over section
404 permitting and programs are not
involved in any matters in which they
have a direct personal or pecuniary
interest. The proposal also clarified that
this provision applies to any section
404-related decisions by the agency as
well as any entity that reviews these
decisions. For example, if a Tribe or
State has established boards or other
bodies to advise, oversee, or review
appeals of agency decisions, members of
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such boards would be subject to this
conflict of interest provision even if
they are not officers or employees of the
Tribe or State agency.
Some commenters expressed concerns
that the change in the conflict of interest
provision weakens or injects uncertainty
into the section 404 assumption process.
A commenter argued that the language
is too ‘‘vague and [its] broad articulation
makes it unclear to whom, exactly, this
provision applies.’’ EPA disagrees; as
explained above, the final rule more
clearly articulates who must provide
notification of potential conflicts of
interest and recuse themselves from any
section 404 program decision for which
they have a conflict of interest, not just
decisions that exceed a monetary
threshold. In EPA’s view, this new
language is clear and does not create
uncertainty; EPA presumes that any
person participating in a matter subject
to a section 404 decision by the agency
will be aware that they are doing so, and
they should also be aware if they have
personal or pecuniary interests in that
matter. If a person is uncertain as to
whether the conflict of interest
provision applies, they can always seek
guidance from the Tribal or State agency
or from EPA.
With respect to Tribal and State
permits being issued for Tribal or State
projects, the Agency has determined
that distinct procedures to address these
types of permits are unnecessary, as all
permits must comply with the section
404(b)(1) Guidelines and other
requirements of CWA section 404. The
CWA does not distinguish between a
Tribe or State with an approved
program as a permittee and other
permittees. Most State permitting
entities have experience issuing permits
to other agencies within that respective
State. For example, States that
implement the section 402 program
routinely issue NPDES permits to
various departments and agencies
within that State.25 To the extent the
courts have considered this matter, they
have found no legal impediment to
issuance of an NPDES permit by an
authorized State to itself. See, e.g., West
Virginia Highlands Conservancy, Inc. v.
Huffman, 625 F.3d 159 (4th Cir. 2010).
EPA is unaware of any significant
concerns arising from the issuance of
NPDES permits by States to other
agencies or departments within that
respective State.
25 One territory, the Virgin Islands, and all states
except Massachusetts, New Hampshire, New
Mexico, are authorized to implement at least some
portion of the NPDES program. See https://
www.epa.gov/npdes/npdes-state-programinformation.
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Likewise, to EPA’s knowledge, the
agencies in Michigan and New Jersey
have been issuing section 404 permits to
authorize the agencies’ own activities
and activities of other agencies within
those States for many years without
encountering any significant issues. The
Florida Department of Environmental
Protection did the same between
December 2020 and February 2024
without significant conflict of interest
issues, to EPA’s knowledge. A common
example of self-issuance by one State
agency to another is when the State
water quality agency issues a permit to
the State department of transportation
for aquatic resource impacts associated
with the construction of a State road.
Similarly, the Corps issues CWA section
404 permits to other Federal agencies,
and EPA does not have—nor did
commenters provide—any information
that raises concerns on the part of EPA
about the integrity and neutrality of
these intra-governmental permitting
processes.
The Agency did not propose any
regulatory text on the self-issuance of
permits. The Agency received one
comment on this issue, expressing
concern that conflicts of interest are
presented when private developers or
State agencies provide funding to the
permitting agencies, which in turn
allow the permitting agency to employ
permit processers that will handle the
permit applications submitted by the
same private developers or State
agencies. In effect, the commenter
stated, the private developer or nonpermitting State agency becomes the
employer of their permit processor. This
rule does require that all permits must
comply with the section 404(b)(1)
Guidelines and other requirements of
CWA section 404. Tribes and States that
assume the CWA section 404 program
must also follow public notice and
comment procedures for permit
applications, thereby ensuring
transparency and providing the public
with an opportunity to submit input to
address any concerns. Additionally, the
CWA provides EPA with oversight
authority of Tribes’ and States’ assumed
section 404 permits, allowing Federal
review of assumed programs in general
and applications for particular proposed
permits, including self-issued permits.
To the extent EPA has concerns that
permits are not compliant, whether
based on its own analysis or based on
comments from other agencies or
interested parties, EPA may object to the
issuance of permits.
Tribes, States, and EPA have the
discretion to implement additional
measures if, in a particular
circumstance, they desire to further
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ensure public confidence that certain
permits are consistent with the CWA
and not the subject of special
considerations. For example, an
assuming Tribe or State could separate
its permit-issuing function from
departments or offices that apply for
and receive permits or expand public
participation requirements for selfissued permits. EPA and an assuming
Tribe or State could also agree in the
Memorandum of Agreement that EPA
would exercise heightened oversight
(i.e., would not waive review) over
permits issued by and to Tribal or State
agencies or departments. EPA
encourages Tribes and States to
implement measures to ensure
transparency in the permitting process
based on the specific structures and
procedures of their agencies. For all of
these reasons, EPA does not find that it
is necessary to include in this regulation
any additional processes or
requirements to address self-issuance of
permits by assuming Tribes and States.
2. Compliance With the CWA 404(b)(1)
Guidelines
a. Overview and What the Agency Is
Finalizing
The CWA section 404(b)(1)
Guidelines are the substantive
environmental criteria used to evaluate
discharges of dredged and/or fill
material under CWA section 404. EPA
may approve a Tribal or State request
for assumption only if EPA determines,
among other things, that the Tribe or
State has authority to issue permits that
comply with the CWA 404(b)(1)
Guidelines. 33 U.S.C. 1344(h)(1)(A)(i).
The regulations already require that
CWA section 404 permits issued by an
assuming Tribe or State must comply
with the CWA 404(b)(1) Guidelines.
However, stakeholders have requested
clarity regarding the way in which a
Tribe or State wishing to assume the
CWA section 404 program can
demonstrate that it has authority to
issue permits that ‘‘apply, and assure
compliance with’’ the CWA 404(b)(1)
Guidelines. See id. EPA did not propose
any new regulatory text on compliance
with the CWA 404(b)(1) Guidelines,
because the Agency did not want to
unintentionally constrain how Tribes
and States can demonstrate their
authority. But in response to
stakeholder requests, EPA discussed
various approaches that Tribes and
States can undertake to demonstrate that
they have sufficient authority to issue
permits that apply and assure
compliance with the CWA 404(b)(1)
Guidelines in this preamble to the
proposed rule. After reviewing public
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comments, the Agency is finalizing its
proposed approach.
b. Summary of Final Rule Rationale and
Public Comment
Pursuant to CWA section
404(h)(1)(A)(i), EPA may approve a
Tribal or State request for assumption
only if EPA determines, among other
things, that the Tribe or State has
authority ‘‘[t]o issue permits which—(i)
apply, and assure compliance with, any
applicable requirements of this section,
including, but not limited to, the
guidelines established under subsection
[404](b)(1). . . .’’ The CWA 404(b)(1)
Guidelines also direct that ‘‘no
discharge of dredged or fill material
shall be permitted’’ if there is a less
environmentally damaging practicable
alternative, so long as the alternative
does not have other significant adverse
environmental consequences (40 CFR
230.10(a)); if it would cause or
contribute to violations of applicable
water quality standards taking into
account disposal site dilution and
dispersion (40 CFR 230.10(b)(1)); if it
would violate any applicable toxic
effluent standard or prohibition (40 CFR
230.10(b)(2)); if it would cause or
contribute to significant degradation of
waters of the United States (40 CFR
230.10(c)); or if it would jeopardize the
continued existence of listed
endangered or threatened species under
the Endangered Species Act of 1973 or
result in the likelihood of the
destruction or adverse modification of
designated critical habitat (40 CFR
230.10(b)(3)); or unless appropriate and
practicable steps have been taken to
minimize potential impacts of the
discharge on the aquatic ecosystem. See
40 CFR 230 Subpart H; see also section
IV.B.4 of this preamble for further
discussion on mitigation.
Consistent with CWA section
404(h)(1)(A)(i), the section 404 Tribal
and State program regulations require
that assuming Tribes and States may not
impose conditions less stringent than
those required under Federal law (40
CFR 233.1(d)); that Tribes and States
may not issue permits that do not
comply with the requirements of the Act
or this part of the regulations, including
the CWA 404(b)(1) Guidelines (40 CFR
233.20(a)); that ‘‘[f]or each permit the
Director shall establish conditions
which assure compliance with all
applicable statutory and regulatory
requirements, including the 404(b)(1)
Guidelines . . .’’ (40 CFR 233.23(a));
and that ‘‘The Director will review all
applications for compliance with the
404(b)(1) Guidelines and/or equivalent
State environmental criteria as well as
any other applicable State laws or
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regulations’’ (40 CFR 233.34(a)).
Because the regulations already require
that CWA section 404 permits issued by
an assuming Tribe or State must comply
with the CWA 404(b)(1) Guidelines,
EPA did not propose adding to the
regulatory text.
Several commenters asserted that the
only way to ensure that Tribes and
States have sufficient authority to issue
permits that apply and assure
compliance with the CWA 404(b)(1)
Guidelines is to require Tribes and
States to adopt the CWA 404(b)(1)
Guidelines verbatim or incorporate
them by reference into the Tribal or
State program. To the extent these
commenters assert that adoption or
incorporation is the most
straightforward way for a Tribe or State
to demonstrate sufficient authority, EPA
agrees. However, while a Tribe or State
may choose to adopt verbatim or
incorporate into their programs by
reference the CWA 404(b)(1) Guidelines
or other Federal requirements, nothing
in the CWA requires that they do so. See
49 FR 39012, 39015 (October 2, 1984);
cf. 40 CFR 123.25(a) Note.
Requiring Tribes and States to adopt
or incorporate the CWA 404(b)(1)
Guidelines would complicate efforts by
Tribes and States to impose more
stringent requirements as part of their
CWA section 404 programs. By not
requiring that Tribes and States adopt
verbatim or incorporate by reference the
CWA 404(b)(1) Guidelines, Congress
allowed leeway for Tribes and States to
craft a Tribal or State program
consistent with circumstances specific
to that Tribe or State, so long as their
permits will assure compliance with the
CWA 404(b)(1) Guidelines at least as
stringently as permits issued by the
Corps.
This flexibility is consistent with the
nature of the CWA 404(b)(1) Guidelines
themselves. Recognizing that a CWA
section 404 permit may be required for
a variety of discharges into a wide range
of aquatic ecosystems, EPA explained in
promulgating the CWA 404(b)(1)
Guidelines that they are intended to
provide ‘‘a certain amount of
flexibility,’’ consisting of tools for
evaluating proposed discharges, rather
than numeric standards. 45 FR 85336,
85336 (December 24, 1980). EPA further
explained in this preamble to the
Guidelines: ‘‘[c]haracteristics of waters
of the United States vary greatly, both
from region to region and within a
region. . . As a result, the Guidelines
concentrate on specifying the tools to be
used in evaluating and testing the
impact of dredged or fill material
discharges on waters of the United
States rather than on simply listing
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numerical pass-fail points.’’ See id.; see
also 40 CFR 230.6.
EPA is not adding further regulatory
text addressing how Tribes and States
may ensure compliance with the CWA
404(b)(1) Guidelines. The section 404
Tribal and State program regulations as
well as CWA section 404(h)(1)(A)(i)
already require that Tribal and State
permits and environmental review
criteria apply and assure compliance
with the CWA 404(b)(1) Guidelines
while allowing for flexibility as to how
Tribes and States wishing to assume
implementation of the CWA section 404
program can demonstrate that they have
sufficient authority to apply and assure
compliance with the CWA 404(b)(1)
Guidelines.
Tribes and States can choose to adopt
verbatim or incorporate by reference the
CWA 404(b)(1) Guidelines. To the
extent a Tribe or State wishing to
assume the CWA section 404 program
desires to incorporate more stringent
requirements or otherwise desires to
craft a program more tailored to that
Tribe’s or State’s circumstances, the
Tribe or State should demonstrate
clearly in its program description that it
has sufficient authority to apply and
assure compliance with the CWA
404(b)(1) Guidelines. For example, a
Tribe or State could provide a crosswalk
between the Tribal or State program and
the CWA 404(b)(1) Guidelines or a
similar written analysis of the Tribal or
State program authority, which it could
include in its request to assume the
program. A Tribe or State also could
develop and include with its program
submission a permit checklist or other
documentation to be used in connection
with each permit decision to document
on a case-by-case basis how each permit
decision applies the CWA 404(b)(1)
Guidelines. Where a Tribe’s or State’s
request for assumption relies upon an
already established and ongoing
dredged and fill permit program under
Tribal or State law, that Tribe or State
could supplement its program
description by demonstrating that the
terms and conditions of permits for
discharges into waters of the United
States that were issued pursuant to the
preexisting Tribal or State program
complied with the CWA 404(b)(1)
Guidelines comparably with or more
stringently than Federal permits issued
by the Corps for the same discharge.
Several commenters discussed the
portion of the preamble to the proposed
rule in which EPA suggested various
ways that Tribes and States could
demonstrate authority to issue permits
that apply and assure compliance with
the CWA 404(b)(1) Guidelines’
prohibition on authorization of a
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discharge if the discharge would
jeopardize the continued existence of
listed endangered or threatened species
under the Endangered Species Act of
1973 (listed species) or result in the
likelihood of the destruction or adverse
modification of designated critical
habitat (40 CFR 230.10(b)(3)). Many of
these commenters asserted that the final
rule must ensure that listed species and
critical habitat receive the same
protections under a Tribal or State
program as they would if the Corps had
processed the permit and engaged in
consultation with the U.S. Fish and
Wildlife Service or National Marine
Fisheries Service (the Services)
pursuant to section 7 of the Endangered
Species Act (ESA). These commenters
proposed various ways of ensuring
protection of listed species and critical
habitat, including requiring the Tribes
and States to undertake ESA section 7
consultation themselves or requiring
EPA to consult with the Services on
each Tribal or State permit as part of
EPA’s oversight. Several commenters
asserted that EPA must consult with the
Services prior to approving a Tribal or
State program. A few commenters noted
that Tribal and State permittees must
comply with the take provisions of
section 10 of the ESA, and one
commenter recommended that EPA
continue to pursue an approach similar
to that associated with EPA’s approval
of Florida’s section 404 program
whereby EPA and the U.S. Fish and
Wildlife Service engaged in a
programmatic consultation under ESA
section 7 resulting in an incidental take
permit covering all permittees in
Florida. Other commenters expressed
concerns about the protection afforded
listed species and critical habitat by
Florida’s or other State section 404
programs.
EPA’s approval of Florida’s section
404 program is the subject of ongoing
litigation (see Center for Biological
Diversity v. Regan, No. 24–5101 (D.C.
Cir.), and will not be addressed here.
EPA’s obligation to undertake ESA
section 7 consultation in connection
with its approval and/or oversight of a
Tribal or State CWA section 404
program is beyond the scope of this
rulemaking.
To the extent commenters assert that
assuming Tribal and State programs
must incorporate the procedural
requirements of the ESA, issuance of a
permit by a Tribe or State pursuant to
an assumed program under CWA
section 404(g) is not a Federal action
subject to the procedural requirements
of the ESA. See H.R. Rep. No. 95–830
at 104 (1977) (‘‘The conferees wish to
emphasize that such a State program is
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one which is established under State
law and which functions in lieu of the
Federal program’’); see also Chesapeake
Bay Foundation v. Virginia State Water
Control Bd., 453 F. Supp. 122 (E.D. Va.
1978).
Although decisions by Tribal and
State section 404 programs do not
trigger the Federal consultation process
laid out in ESA section 7, Tribes and
States must demonstrate that they have
sufficient authority to issue permits that
comply and assure compliance with 40
CFR 230.10(b)(3), which states that
‘‘[no] discharge of dredged or fill
material may be permitted if it . . .
[j]eopardizes the continued existence of
[threatened or endangered species listed
under the ESA]’’ or would adversely
modify critical habitat. 40 CFR
230.10(b)(3). A few commenters asserted
that the discussion in the preamble to
the proposed rule regarding how Tribes
and States could demonstrate
compliance with this aspect of the CWA
404(b)(1) Guidelines was too
generalized and/or insufficiently
prescriptive or protective. On the other
hand, one commenter asserted that EPA
should defer to Tribal and State
expertise. The discussion in the
preamble to the proposed rule was not
intended to be exhaustive or to provide
a checklist. Tribes and States retain
flexibility to tailor their programs
consistent with the types of listed
species and critical habitat within their
jurisdictions.
EPA recommends that Tribes and
States include in the program
submission provisions and procedures
to protect listed species and habitat.
EPA recommends that Tribes and States
develop a method for identifying the
listed species and areas of designated
critical habitat within their geographic
boundaries and for determining whether
federally listed species or critical habitat
are present or would be affected by a
particular discharge. Tribes and States
also could develop processes for
ensuring that their identification of
federally listed species and designated
critical habitat remains up to date as
well as processes to avoid impacts to
these resources.
EPA continues to encourage Tribes
and States to proactively coordinate
with the relevant Services’ regional or
field offices when developing their
programs. To the extent that Tribes and
States coordinate with the Services as
they develop their programs, such work
would help inform the Services’ review
opportunity to comment to EPA on a
Tribal or State program submission. See
33 U.S.C. 1344(g)(2) and 1344(h)(1); see
also 40 CFR 233.15(d) and (g). Such
work would also facilitate EPA’s
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coordination with the Services on
permits for which EPA has not waived
review. See 33 U.S.C. 1344(j).
Several Tribes expressed concern that
the preamble to the proposed rule did
not provide sufficient guidance
regarding how a Tribe or State could
demonstrate that it has sufficient
authority to apply and assure
compliance with subpart F of the CWA
404(b)(1) Guidelines. Pursuant to
subpart F (40 CFR 230.50 through
230.54), the permit issuing authority
should consider potential effects on
human use characteristics, including
‘‘areas designated under Federal and
State laws or local ordinances to be
managed for their aesthetic, educational,
historical, recreational, or scientific
value,’’ when making the factual
determinations and the findings of
compliance or non-compliance under
the Guidelines. 40 CFR 230.54(a). These
human use considerations encompass,
among other things, uses and values of
aquatic resources that are important to
Tribes and local communities. For
example, section 230.51 in subpart F
describes considerations regarding
potential impacts of dredged or fill
material on recreational and commercial
fisheries, consisting of ‘‘harvestable fish,
crustaceans, shellfish, and other aquatic
organisms.’’ Id. at 230.51(a). Section
230.52 includes considerations
regarding the impact of dredged or fill
material on water-related recreation,
including harvesting of resources and
non-consumptive activities such as
canoeing on the water. Section 230.53
addresses potential impacts on aesthetic
values of aquatic ecosystems and notes
that: ‘‘The discharge of dredged or fill
material can mar the beauty of natural
aquatic ecosystems by degrading water
quality, creating distracting disposal
sites, including inappropriate
development, encouraging unplanned
and incompatible human access, and by
destroying vital elements that contribute
to the compositional harmony or unity,
visual distinctiveness, or diversity of an
area.’’ Id. at 230.53(b). Section 230.54
discusses considerations regarding
‘‘national and historical monuments,
national seashores . . . and similar
preserves’’ and where the discharge may
‘‘modify the aesthetic, educational,
historical, recreational and/or scientific
qualities thereby reducing or
eliminating the uses for which such
sites are set aside and managed.’’ Id. at
230.54(b). Collectively or individually,
significantly adverse effects of the
discharge of pollutants on these human
uses may contribute to the significant
degradation of the waters of the United
States. Id. at 230.10(c).
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As with other aspects of the CWA
404(b)(1) Guidelines, Tribes and States
have the option of adopting 40 CFR
230.50 through 230.54, but they are not
required to do so. To demonstrate
sufficient authority to apply and assure
compliance with subpart F of the CWA
404(b)(1) Guidelines, a Tribe or State
should include in its program
description its process and permit
review criteria for evaluating and
addressing potential permit impacts on
historic properties and properties with
cultural significance. Such a process
could include any agreements with and/
or procedures for formal or informal
coordination and communication with
the State Historic Preservation Officer or
Tribal Historic Preservation Office. The
Tribe or State also could develop an
agreement with the relevant State
Historic Preservation Officer or Tribal
Historic Preservation Office to establish
a process to identify historic properties
that may be impacted by the Tribe’s or
State’s issuance of section 404 permits
and a process for resolving adverse
effects. Such an agreement could
include the identification of relevant
parties with an interest in potential
impacts on historic properties (these
could correspond to entities that would
have a consultative role under the
National Historic Preservation Act
regulations), duties and responsibilities
of the identified parties, and a
description of the process to consider
any impacts, including the
determination and resolution of adverse
effects on historic properties. Such an
agreement could facilitate EPA’s review
of a Tribal or State permit’s impacts on
historic properties, consistent with
EPA’s oversight of the permits, for
which review has not been waived, and
authorized program. See 40 CFR 233.31.
The program description would contain
any such agreement(s).
The foregoing, of course, are only
examples, and there are likely other
means by which a Tribe or State could
demonstrate that it has sufficient
authority to issue permits that comply
and assure compliance with the CWA
404(b)(1) Guidelines. EPA will avoid
unnecessarily limiting Tribes and States
by imposing a single vehicle or
approach for implementing the CWA
404(b)(1) Guidelines. EPA recommends
that an assuming Tribe or State consider
incorporating into its program
description ways to identify and
consider impacts to other human use
characteristics, such as impacts to
waters that support subsistence fishing
by the local population or that may have
significance for religious or treaty
purposes. These could include, for
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example, formalizing a process for
coordinating with local communities to
identify and understand how waters
that may be affected by discharges of
dredged or fill material are used for
subsistence fishing, religious purposes,
or other uses important to the local
community. Such procedures would
demonstrate the Tribe or State’s ability
to fulfill the intent of the human use
characteristics provisions of the section
404(b)(1) Guidelines.
Some Tribes assert that compliance
with the CWA 404(b)(1) Guidelines is
not an adequate substitute for the input
that Tribes can provide through
consultation procedures of the National
Historic Preservation Act. While the
Federal consultation procedures under
section 106 of the National Historic
Preservation Act do not apply to permits
issued by a Tribe or State,26 the final
rule expands upon existing
opportunities for Tribal input. Section
IV.F of this preamble provides detailed
discussion on opportunities whereby
Tribes may request that EPA review
permits that may affect their Tribal
rights or interests within or beyond
reservation boundaries and Tribes that
have status of treatment in a similar
manner as a State (TAS) shall receive
notice and an opportunity to provide
recommendations as an ‘‘affected State’’
for purposes of 40 CFR 233.31. See
section IV.F of this preamble. In
addition, EPA review of Tribal or State
permit applications may not be waived
for ‘‘[d]ischarges within critical areas
established under State or Federal law,
including but not limited to . . . sites
identified or proposed under the
National Historic Preservation
Act. . . .’’ 40 CFR 233.51(b)(6).
Moreover, as discussed above, Tribal
and State permits must assure
compliance with all applicable statutory
and regulatory requirements, including
the section 404(b)(1) Guidelines as
described above. Finally, assuming
Tribes and States must provide for
judicial review of Tribe- or State-issued
permits, which provides another
opportunity for interested parties to
raise concerns about a permit’s failure to
comply with the 404(b)(1) Guidelines.
See section IV.C.2 of this preamble.
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3. No Less Stringent Than
a. Overview and What the Agency Is
Finalizing
The Agency’s regulations provide that
Tribes and States may not impose
requirements less stringent than Federal
requirements. 40 CFR 233.1(d). While
26 See Menominee Indian Tribe of Wisconsin v.
Envt’l Protection Agency, 947 F.3d 1065, 1073–74
(7th Cir. 2020).
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Tribes and States have flexibility to
determine how to best integrate
sufficient authority into their programs,
there are limits to this flexibility not
explicitly spelled out in the prior
regulations. Accordingly, the Agency
proposed to codify its longstanding
principle that a Tribe or State cannot
comply with its obligation pursuant to
section 510 of the CWA to impose
requirements no less stringent than
Federal requirements by making one
requirement more stringent than
federally required as a tradeoff for
making another requirement less
stringent. The Agency also proposed to
clarify its interpretation that an
assuming Tribe or State must
demonstrate that it will at all times have
authority to issue permits for all nonexempt discharges of dredged and fill
material to all waters of the United
States within its jurisdiction except for
discharges to the subset of waters of the
United States (‘‘retained waters’’) over
which the Corps retains administrative
authority pursuant to CWA section
404(g)(1). To clarify the role of Federal
interpretive guidance in Tribal or State
programs, such as the Corps’ General
Regulatory Policies in 33 CFR part 320
or Regulatory Guidance Letters, EPA
further proposed to clarify that Tribes
and States are not required to
incorporate the Corps’ or EPA’s
interpretive guidance into their CWA
section 404 programs. Finally, EPA
proposed to codify its long-held
position that the Tribe or State is
responsible for administering all
portions of a CWA section 404(g)
program. Specifically, where the CWA
404(b)(1) Guidelines or other regulations
require that the District Engineer or the
Corps of Engineers make certain
decisions or take certain actions, the
proposed rule provides that the Tribal
or State agency will carry out those
responsibilities for purposes of the
assumed program. After reviewing
public comments, the Agency is
finalizing this approach as proposed.
b. Summary of Final Rule Rationale and
Public Comment
Section 510 of the CWA provides:
‘‘[i]f an effluent limitation, or other
limitation, effluent standard,
prohibition, pretreatment standard, or
standard of performance is in effect
under this chapter, such State . . . may
not adopt or enforce any effluent
limitation, or other limitation, effluent
standard, prohibition, pretreatment
standard, or standard of performance
which is less stringent. . . .’’ 33 U.S.C.
1370. Consistent with CWA section 510,
EPA’s regulations at 40 CFR 233.1(d)
require: ‘‘Any approved State Program
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shall, at all times, be conducted in
accordance with the requirements of the
Act and of this part. While States may
impose more stringent requirements,
they may not impose any less stringent
requirements for any purpose.’’ See also
33 U.S.C. 1344(h)(1)(A)(i); 40 CFR
233.20(a), 233.23(a), 233.34(a).
Broadly stated, the goal of those
portions of the CWA and its
implementing regulations that govern
Tribal and State assumption of the CWA
section 404 program is to ensure that an
assuming Tribe or State will issue
permits that assure compliance with the
CWA at least as stringently as would a
permit for the same discharge if issued
by the Corps. Section 404(h)(1)(A)(i) of
the CWA and 40 CFR 233.1(d),
233.20(a), 233.23(a), and 233.34(a)
expressly require that permits issued by
an assuming Tribe or State must apply
and assure compliance with the CWA
404(b)(1) Guidelines, as discussed in
section IV.A.2 of this preamble. In
addition, Tribes and States must
demonstrate that their section 404
programs will cover at least the same
discharges as the CWA and will issue
permits that are not less stringent than
other aspects of the CWA beyond the
CWA 404(b)(1) Guidelines.
Commenters generally agreed that
permits issued by Tribes or States may
not be less stringent than a permit for
the same discharge if issued by the
Corps of Engineers. One commenter
characterized this concept as
establishing a strong Federal ‘‘floor’’ for
Tribal and State permits. As with the
CWA 404(b)(1) Guidelines, Tribes and
States seeking to assume the section 404
program may choose but are not
required to adopt verbatim or
incorporate by reference relevant
portions of the CWA or its
implementing regulations. Where a
Tribe or State chooses not to adopt or
incorporate by reference portions of the
CWA or its implementing regulations,
the Tribal or State program description
should describe how the Tribal or State
program is no less stringent than those
provisions.
1. A Tribe or State Cannot Comply With
Its Obligation Pursuant to Section 510 of
the CWA To Impose Requirements No
Less Stringent Than Federal
Requirements by Trading Off More
Stringent Requirements for Less
Stringent Requirements
Most commenters supported EPA’s
proposal to codify the principle
prohibiting tradeoffs between more
lenient and more stringent
requirements. However, one commenter
did not support EPA’s proposed
approach and expressed concern that
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the proposed approach would deprive
Tribes and States of flexibility. The
Agency agrees that Tribes and States
should have flexibility to determine
how best to ensure that their permits
will apply and assure compliance with
the CWA 404(b)(1) Guidelines and be no
less stringent than Federal
requirements. That said, EPA has long
stated that flexibility does not extend to
tradeoffs among requirements, as
discussed, in the 1988 preamble to the
CWA section 404 Tribal and State
program regulations. See 53 FR 20764,
20766 (June 6, 1988).
EPA is finalizing its proposal to
codify this longstanding principle
prohibiting tradeoffs between more
lenient and more stringent requirements
in its section 404 Tribal and State
program regulations. As noted above,
this clarification does not represent a
change in EPA’s longstanding position.
Additionally, this principle is also
articulated in EPA’s regulations
governing the section 402 program. See
40 CFR 123.25(a), Note. EPA sees no
reason not to provide similar clarity for
section 404 programs.
2. An Assuming Tribe or State Must
Regulate at Least All Non-Exempt
Discharges to Navigable Waters Within
Its Jurisdiction, Except for Discharges to
Waters Retained by the Corps
In addition to codifying its
longstanding principle against tradeoffs,
EPA is clarifying that Tribes and States
wishing to assume the section 404
program must demonstrate consistency
with aspects of the CWA beyond the
CWA 404(b)(1) Guidelines. While a
Tribe or State may regulate discharges
that are not covered by the CWA, a
Tribal or State program must regulate at
least all non-exempt discharges of
dredged and fill material to all navigable
waters as defined by CWA section
502(7) (‘‘waters of the United States’’)
within the Tribe’s or State’s jurisdiction
except for discharges to the subset of
retained waters. This means that a
Tribal or State program may not exempt
discharges other than those exempted
pursuant to CWA section 404(f).
Similarly, when a Tribe or State
assumes administration of the CWA
section 404 program, it assumes
administrative authority to permit
discharges to all waters of the United
States within its jurisdiction except for
the subset of retained waters.27 See 33
27 As noted in the 1988 preamble, ‘‘States may
have a program that is more . . . extensive than
what is required for an approvable program.’’ 53 FR
at 20764, 20766 (June 6, 1988) (emphasis added).
As described elsewhere in this preamble, Tribes
and States may not assume less than what is
required under the CWA.
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U.S.C. 1344(g)(1). As noted earlier, EPA
has final administrative authority over
the scope of ‘‘waters of the United
States.’’ See Civiletti Memorandum.
The subset of waters of the United
States over which the Corps retains
administrative authority pursuant to
CWA section 404(g)(1) is identified in
the Memorandum of Agreement
between the assuming Tribe or State and
the Corps which, among other things,
includes a ‘‘description of waters of the
United States within the State over
which the Secretary retains
jurisdiction.’’ 40 CFR 233.14(b)(1). See
section IV.B.2 of this preamble for
further discussion on retained waters.
To the extent the coverage of the CWA
as defined by the term ‘‘waters of the
United States’’ 28 changes following
court decisions or rulemaking,
assumption of the section 404 program
by a Tribe or State cannot result in a
situation in which neither the assuming
Tribe or State nor the Corps has
authority to issue a permit for
discharges to a water of the United
States. The requirement that Tribes or
States at all times have authority to
issue permits for all non-exempt
discharges to all waters of the United
States within their jurisdiction is
therefore generally not governed by 40
CFR 233.16(b), which addresses the
modification of Federal statutes or other
regulations.
As with the CWA 404(b)(1)
Guidelines (see section IV.A.2 of this
preamble), Tribes and States seeking to
assume the section 404 program need
not adopt verbatim or incorporate by
reference relevant portions of the CWA
or its implementing regulations, though
they may do so. EPA recommends that
Tribes and States identify in the
program description (40 CFR 233.10(b)
and 233.11) and Attorney General
Statement (40 CFR 233.10(c) and
233.12) those provisions of Tribal or
State law that will ensure that the Tribe
or State will at all times have sufficient
authority to issue permits for nonexempt discharges to all waters of the
United States within its jurisdiction
except for discharges to the subset of
waters of the United States over which
the Corps retains administrative
authority following assumption. A
Tribal or State section 404 program may
regulate discharges into Tribal or State
waters in addition to the jurisdictional
CWA waters as well as issue permits for
discharges into waters retained by the
Corps; however, the Corps remains the
CWA section 404 permitting authority
for retained waters.
28 See
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3. Tribes and States May Adopt Federal
Interpretive Guidance and the Corps’
General Regulatory Policies, But Are
Not Required To Do So
EPA also is clarifying here the role of
Federal interpretive guidance in Tribal
or State programs, such as the Corps’
Regulatory Guidance Letters or other
interpretive statements issued by the
Corps and/or EPA. Nothing in the CWA
or 40 CFR part 233 requires that Tribes
or States wishing to assume the section
404 program formally adopt or
incorporate into their programs
Regulatory Guidance Letters or other
formal interpretive statements issued by
the Corps and/or EPA. Federal agency
interpretive guidance may often be
helpful in providing transparency,
clarity, and consistency in
implementation of the Federal program.
However, it does not have the effect of
legally binding regulation and may not
necessarily be applicable, for example,
where Tribal or State requirements are
more stringent than Federal
requirements or the guidance references
a procedure not part of the Tribal or
State program. Moreover, Federal
agency interpretive guidance may
evolve over time with changes in case
law and other circumstances.
Accordingly, while assuming Tribes
and States may consider relevant
Federal agency interpretive guidance
and may choose to adopt it to aid in
program implementation, they are not
required to formally adopt Federal
agency interpretive guidance. EPA
recommends that Tribes and States
provide transparency by describing as
part of the Tribal or State program
description (40 CFR 233.10(b) and
233.11) if and how they will consider
Federal agency interpretative guidance.
Several commenters asserted that, in
order to issue permits that are not less
stringent than permits that would be
issued by the Corps for the same
discharge, Tribes and States assuming
the section 404 program must
incorporate the procedural and
substantive provisions of the
Endangered Species Act, the National
Historic Preservation Act, the National
Environmental Protection Act and other
statutes that apply generally to Federal
actions, including to permits issued by
the Corps under CWA section 404.
Issuance of a permit by a Tribe or State
pursuant to an assumed program under
CWA section 404(g), however, is not
subject to the requirements for Federal
actions under those statutes. See H.R.
No. 95–830 at 104 (1977) (‘‘The
conferees wish to emphasize that such
a State program is one which is
established under State law and which
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functions in lieu of the Federal
program’’); See Chesapeake Bay
Foundation v. Virginia State Water
Control Bd., 453 F. Supp. 122 (E.D. Va.
1978). That said, while the Federal
statutory procedural requirements may
not apply directly to Tribal or State
actions, CWA section 404(h)(1)(A)(i)
requires that Tribal and State programs
have authority to issue permits that
apply and assure compliance with the
CWA 404(b)(1) Guidelines, including
those provisions that limit permit
issuance to the least environmentally
damaging practicable alternative,
prohibit permitting of a discharge that
would jeopardize the continued
existence of listed endangered or
threatened species under the
Endangered Species Act, and require
consideration of potential effects on
human use characteristics, including
‘‘areas designated under Federal and
State laws or local ordinances to be
managed for their aesthetic, educational,
historical, recreational, or scientific
value.’’ See section IV.A.2 of this
preamble for further discussion on
compliance with the CWA 404(b)(1)
Guidelines.
Tribal or State adoption of the Corps’
General Regulatory Policies (33 CFR
part 320) (including the Corps’ ‘‘public
interest review’’ at 33 CFR 320.4(a)) is
also not required. The CWA makes no
reference to the Corps’ General
Regulatory Policies, which, by their own
terms, apply to a range of the Corps’
regulatory authority, including, but not
limited to, CWA section 404 (see 33 CFR
320.2). As described elsewhere, the
substantive environmental criteria used
to evaluate discharges of dredged and
fill material under CWA section 404 are
set forth in the CWA 404(b)(1)
Guidelines. See 40 CFR 230.2. Tribes or
States are free, however, to incorporate
elements of the Corps’ General
Regulatory Policies into their permitting
procedures if they choose to do so.
4. Tribes and States That Assume the
CWA Section 404 Program Are
Responsible for Administering All
Portions of the Section 404 Program
Finally, EPA is codifying its long-held
position that the Tribe or State is
responsible for administering all
portions of a section 404(g) program.
Certain regulations implementing CWA
section 404 were drafted to refer to the
authority of the Corps of Engineers
without accounting for Tribal or State
assumption of the section 404 program.
EPA is clarifying that, when a Tribe or
State assumes administration of the
section 404 program, the Tribe or State
becomes responsible for all of the
actions under section 404 for which the
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Corps would be responsible if it were to
issue the permit. The rule clarifies that
it is the assuming Tribe or State that is
responsible for administering all
sections of the approved section 404
program. See section IV.B.4 of this
preamble for further discussion on
mitigation.
EPA also clarifies here that only
Tribal, State, or interstate agencies may
assume administration of the section
404 program. While a Tribe or State may
establish general permits for discharges
of dredged or fill material for categories
of similar activities that will cause only
minimal adverse environmental effects
individually or cumulatively, they may
not delegate permitting responsibility to
non-Tribal or non-State entities, such as
counties or municipalities. 33 U.S.C.
1344(g)(1); 40 CFR 233.2 (definition of
‘‘State’’).
B. Program Approval
1. Partial Program Assumption
a. Overview and What the Agency Is
Finalizing
Under 40 CFR 233.1(b), assuming
Tribes or States must have authority to
regulate all non-exempt discharges to all
waters of the United States within their
borders except for the subset of waters
of the United States over which the
Corps retains administrative authority
pursuant to CWA section 404(g)(1).
Although some States have expressed an
interest in being able to assume the
authority to issue section 404 permits
for just a portion of the section 404
regulated activities, or a portion of the
assumable waters within the Tribe’s or
State’s jurisdiction, the Agency
proposed to maintain its longstanding
position that the statute does not
authorize partial assumption. After
considering public comments, EPA is
finalizing its proposed approach to
maintain the text at section 233.1(b)
which clarifies that partial programs are
not approvable under section 404.
b. Summary of Final Rule Rationale and
Public Comment
In 1987, Congress added section
402(n) to the CWA, specifically
authorizing EPA to approve partial
Tribal and State NPDES permit
programs that ‘‘cover, at a minimum,
administration of a major category of the
discharges into the navigable waters of
the State or a major component of the
permit program. . . .’’ That provision
specifies the scope of partial State
section 402 programs that may be
approved. Congress did not amend
CWA section 404 to add a parallel
provision authorizing a Tribe or State to
assume the authority to issue section
PO 00000
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404 permits for just a portion of
discharges into assumable waters. Given
the absence of a provision in the section
404 program authorizing partial
assumption parallel to the provision in
the section 402 program, EPA maintains
its longstanding interpretation that the
best reading of the CWA ‘‘requir[es]
State programs to have full geographic
and activities jurisdiction (subject to the
limitation in section 404(g)).’’ 53 FR
20764 (June 6, 1988). Because of the
special status of Indian country, a lack
of State authority to regulate activities
on Indian lands will not cause the
State’s program to be considered a
partial program. See id.
In addition to concluding that the
statute does not authorize partial
assumption, EPA also determined that
partial assumption would be extremely
difficult to implement. Numerous States
have expressed an interest in being able
to assume the authority to issue section
404 permits for just a portion of the
section 404 regulated activities, or a
portion of the assumable waters within
the Tribe’s or State’s jurisdiction. While
some commenters supported the status
quo, others supported some form of
partial assumption, or encouraged the
Agency to explore options to provide
additional flexibility. One commenter
noted that partial assumption in States
with more stringent or protective
section 404 programs could advance
environmental protection, and another
noted that partial assumption of
program activities could allow for more
Tribal oversight and input in the
permitting process.
EPA carefully considered the
comments received, evaluating potential
approaches to partial assumption, but
ultimately concluded that it would be
difficult to implement. Partial
assumption based on a size threshold
for a project would be unworkable
because the ‘‘footprint’’ of a project may
change during the execution of the
project, which could result in the
shifting of jurisdiction between the
Federal and the assumed program. This
outcome could conceivably encourage
permittees to increase the footprint or
impacts of their proposed project in
order to remain with the Corps for the
permit review process. Partial
assumption based on a geographic area
would also be challenging to
implement, because Tribes and States
could potentially divide watersheds or
create a checkerboard of authority that
could create problems in determining
jurisdiction, as well as mitigation and
enforcement. Partial assumption based
on type of waterbody would pose
difficulties because it might require a
waterbody-by-waterbody determination
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to identify permitting authority, and a
project might impact more than one
waterbody, creating confusion as to
whether the permitting authority is the
Corps or the Tribe or State. Partial
assumption that would allow for the
assumption of certain aspects of the
program, such as a Tribe or State taking
on permitting but not enforcement, or
vice versa, would cause unavoidable
duplication of effort between the Tribe
or State and EPA and the Corps. And
partial assumption based on activity
would pose challenges because the
Agency was unable to devise a
comprehensive and clear way to define
potential activities. Dividing functions
between the Federal and Tribal or State
governments would also be confusing
for the regulated public.
EPA also considered phased
assumption of program responsibilities,
whereby the Tribe or State would
ultimately assume the full program, but
in stages or phases. EPA considered this
approach but concluded that
implementing a phased approach would
present all of the challenges listed above
regarding identification of the
permitting authority. Additionally, there
are no tools available to the Agency to
ensure that a Tribe or State continues to
phase in all portions of the program, or
to determine how much time should be
allowed for the process; the only
mechanism available to the Agency to
address a failure to complete phasing-in
the full program would be withdrawal
of the entire program.
Tribes and States not interested in full
assumption can already take on a major
role in managing their aquatic resources
and in the permitting process even
without assuming the section 404
program. A Tribe or State may develop
their own dredged or fill material
permitting program. Alternatively, the
Federal section 404 program provides
mechanisms that allow for Tribal and
State input in developing permits for
specific activities or specific geographic
areas within Tribal or State jurisdiction.
In 1977, Congress amended section 404
to allow the Corps to issue certain types
of general permits, including State
Programmatic General Permits (SPGPs).
SPGPs are general permits issued by the
Corps that provide section 404
authorization for certain discharge
activities if the permittee has secured a
State permit for that same activity. Some
States have worked with the Corps to
develop SPGPs, which create permitting
efficiencies for certain projects within
the State. While the Corps is still the
section 404 permitting authority for
SPGPs, these permits give the Tribe or
State the ability to be actively involved,
as well as the opportunity to create
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more stringent requirements than the
Federal section 404 permitting program,
without the burden of assuming and
administering the section 404 program.
In sum, EPA has concluded that
continuing to interpret the CWA to
prohibit partial assumption reflects the
best reading of the text of the CWA and
will enable the most transparent and
consistent implementation of the
section 404 program across the nation.
This approach provides the most clarity
to the public and the regulated
community as to which waters are being
assumed and whether applicants need a
Tribal or State permit or a Federal
permit. Conversely, partial assumption
would be more likely to cause confusion
among interested parties and be more
difficult to implement consistently
across the country for the reasons
discussed earlier in this section.
2. Retained Waters
a. Overview and What the Agency Is
Finalizing
As discussed in section III.B.2 of this
preamble, the Corps retains authority
over certain waters and wetlands
adjacent to those waters when a Tribe or
State assumes permitting authority.
States and Tribes have expressed to EPA
the need for further clarification
regarding which waters a Tribe or State
may assume and which waters the
Corps retains. The Agency is finalizing
as proposed a procedure for determining
the extent of waters over which the
Corps would retain administrative
authority following Tribal or State
assumption of the section 404 program,
with certain minor modifications based
on comments received. Under the
procedure, before the Tribe or State
submits its assumption request to EPA,
the Tribe or State must submit a request
to EPA that the Corps identify the subset
of waters of the United States that
would remain subject to the Corps’
section 404 administrative authority
following assumption. The Tribe or
State must submit one of the following
documents with the request to show
that it has taken concrete and
substantial steps toward program
assumption: a citation or copy of
legislation authorizing funding to
prepare for assumption, a citation or
copy of legislation authorizing
assumption, a Governor or Tribal leader
directive, a letter from a head of a Tribal
or State agency, or a copy of a letter
awarding a grant or other funding
allocated to investigate and pursue
assumption. Within seven days of
receiving the request for the retained
waters description, EPA will review and
respond to the request. If the request
PO 00000
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includes the required information, then
EPA will transmit the request to the
Corps. EPA will also notify members of
the public of that transmission and
invite input to the Corps and to the
Tribe or State within a 60-day period
that the Corps may consider in
developing its description.
If the Corps notifies the Tribe or State
and EPA within 30 days of receiving the
request transmitted by EPA that it will
provide the Tribe or State with a
retained waters description, the Corps
has 180 days from the receipt of the
request to provide a retained waters
description to the Tribe or State. The
purpose of the 180-day period is to
allow the Corps time and opportunity to
follow the process at 40 CFR 233.11(i)
to identify those waters over which the
Corps will retain section 404 permitting
authority while providing a timeframe
within which the Tribe or State can
expect to receive a retained waters
description. If the Corps does not notify
the Tribe or State and EPA within 30
days of receipt of the request that it
intends to provide a retained waters
description, the Tribe or State may
prepare a retained waters description.
Similarly, if the Corps had originally
indicated that it would provide a
retained waters description but does not
provide one within 180 days of EPA’s
transmission to the Corps, the Tribe or
State may develop the retained waters
description using the same approach
described above. Alternatively, the
Tribe or State and the Corps may
mutually agree to extend the period of
time for the Corps to develop the list.
The most recently published list of
RHA section 10 waters (see 33 CFR
329.16) would be the starting point for
the retained waters description. The
Corps, Tribe, or State would place
waters of the United States, or reaches
of these waters, from the RHA section
10 list into the retained waters
description if they are known to be
presently used or susceptible to use in
their natural condition or by reasonable
improvement as a means to transport
interstate or foreign commerce. See 33
U.S.C. 1344(g)(1). To the extent feasible
and to the extent that information is
available, the Corps, Tribe, or State
would add other waters or reaches of
waters to the retained waters
description that are presently used or
are susceptible to use in their natural
condition or by reasonable improvement
as a means to transport interstate or
foreign commerce. See id. The Corps,
Tribe, or State would not place RHA
section 10 list waters in the retained
waters description if, for example, they
were historically used as a means to
transport interstate or foreign commerce
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and are no longer susceptible to use as
such with reasonable improvement.
The description would also describe
retained wetlands. The default
understanding is that the Corps would
retain administrative authority over all
jurisdictional wetlands ‘‘adjacent’’ to
retained waters, as that term is defined
in 40 CFR 120.2(c). A Tribe or State may
choose to negotiate an agreement with
the Corps to establish an administrative
boundary through jurisdictional
adjacent wetlands, landward of which
the Tribe or State would assume
administrative authority. If the Tribe or
State and the Corps reach agreement on
such a boundary, EPA may consider it
when it is submitted with the program
submission. As a default, however, the
Corps would retain all wetlands
adjacent to retained waters. The
retained waters description does not
need to include a specific list of
adjacent wetlands or provide mapping
or a description of the lateral extent of
those wetlands.
As recognized in EPA’s regulations, in
many cases, States lack authority to
regulate activities in Indian country. See
40 CFR 233.1(b). Thus, the Corps will
continue to administer the program in
Indian country unless EPA determines
that another jurisdiction has authority to
regulate discharges into waters in Indian
country. See id.
EPA is changing the regulatory
provision stating that modifications to
the extent of the retained waters
description always constitute
substantial revisions to a Tribal or State
program. 40 CFR 233.16(d)(3) (2023).
The new provision is more limited in
scope: it states that removals of waters
from the retained waters description,
other than de minimis removals, are
substantial revisions. In addition,
revisions to an approved Tribal CWA
section 404 program are substantial
where they would add reservation areas
to the scope of its approved program.
EPA is also providing that the
Memorandum of Agreement between
the Corps and the Tribe or State must
outline procedures whereby the Corps
will notify the Tribe or the State of
changes to the RHA section 10 list as
well as the extent to which these
changes implicate the statutory scope of
retained waters as described in CWA
section 404(g)(1) and therefore
necessitate revisions to the retained
waters description. The Tribe or State
would incorporate the revisions that the
Corps has identified, pursuant to the
modification provisions agreed upon in
the Memorandum of Agreement.
EPA is modifying the program
description requirements to provide that
the Tribal or State program will
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encompass all waters of the United
States not retained by the Corps at all
times. 40 CFR 233.11(i)(6). EPA is also
removing the term ‘‘traditionally’’ from
the term ‘traditionally navigable waters’
in the following provision: ‘‘[w]here a
State permit program includes coverage
of those traditionally navigable waters
in which only the Secretary may issue
404 permits, the State is encouraged to
establish in this Memorandum of
Agreement procedures for joint
processing of Federal and State permits,
including joint public notice and public
hearings.’’ Id. at 233.14(b)(2).
b. Summary of Final Rule Rationale and
Public Comments
Section 404(g) of the CWA authorizes
Tribes and States to assume authority to
administer the section 404 program in
some, but not all, navigable waters
within their jurisdiction. ‘‘Navigable
waters’’ is defined at CWA section
502(7) as ‘‘waters of the United States,
including the territorial seas.’’ The
Corps retains administrative authority
over a subset of these waters even after
program assumption by a Tribe or
State.29 Specifically, section 404(g)(1)
states that the Corps retains
administrative authority over the subset
of waters of the United States consisting
of ‘‘. . . waters which are presently
used, or are susceptible to use in their
natural condition or by reasonable
improvement as a means to transport
interstate or foreign commerce
shoreward to their ordinary high water
mark . . . including wetlands adjacent
thereto.’’ 33 U.S.C. 1344(g)(1). A Tribe
or State assumes section 404
administrative authority over all waters
of the United States within its
jurisdiction that are not retained by the
Corps.
EPA’s prior regulations require that
the program description that is part of
a Tribal or State assumption request
include ‘‘[a] description of the waters of
the United States within a State over
which the State assumes jurisdiction
29 When a Tribe or State assumes administrative
authority for the CWA section 404 program, it
assumes authority to permit discharges of dredged
and fill material to all ‘‘waters of the United States’’
within the meaning of CWA section 502(7) except
for the subset of waters of the United States over
which the Corps is required to retain administrative
authority under Section 404(g). The scope of CWA
jurisdiction is defined by CWA section 502(7) as
‘‘waters of the United States,’’ and is distinct from
and broader than the scope of waters over which
the Corps retains administrative authority following
Tribal or State assumption of the section 404
program. This rule develops a process for
identifying the subset of waters of the United States
over which the Corps retains administrative
authority following approval of a Tribal or State
section 404 program. It does not define the broader
set of ‘‘waters of the United States’’ within the
scope of CWA section 502(7).
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under the approved program; a
description of the waters of the United
States within a State over which the
Secretary retains jurisdiction
subsequent to program approval; and a
comparison of the State and Federal
definitions of wetlands.’’ 40 CFR
233.11(h) (2023). In addition, the prior
regulations state that the Memorandum
of Agreement between a Tribe or State
and the Corps required as part of the
assumption request shall include a
description of the waters of the United
States within the Tribe or State for
which the Corps will retain
administrative authority. 40 CFR
233.14(b)(1) (2023).
Prior to this rule, EPA had not
provided guidance on a process for
identifying the subset of waters of the
United States over which the Corps
would retain administrative authority
following Tribal or State assumption.
Without a clear and practical process,
individual States and the Corps districts
have had to interpret the extent of
retained waters and the meaning of
‘‘wetlands adjacent thereto’’ in the
context of case-by-case development of
Tribal and State program descriptions
for prospective programs and the
Memoranda of Agreement that are
negotiated between the Corps and the
State as part of a program submission.
Tribes and States have indicated that
confusion about how best to identify the
extent of retained waters and adjacent
wetlands has been a barrier to
assumption and have asked EPA to
provide clarity.
As discussed in section III.B of this
preamble, EPA convened the Assumable
Waters Subcommittee under the
auspices of the NACEPT to provide
advice and recommendations as to how
EPA could best clarify the subset of
waters of the United States over which
the Corps retains administrative CWA
section 404 authority when a Tribe or
State assumes the section 404 program.
NACEPT adopted the majority
recommendation in the Subcommittee
report and incorporated it into its
recommendations provided to EPA in
June 2017. Although at the time of the
Subcommittee report, the Corps
presented a separate view from the
majority of the extent of retained waters
and adjacent wetlands for which it
would retain administrative authority,
the Department of the Army
subsequently sent a letter to the Corps
supporting the majority
recommendation as to the extent of
retained waters and adjacent wetlands
(though the letter did not define a
specific administrative boundary for
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adjacent wetlands).30 NACEPT’s
recommendations, based on the
Subcommittee majority
recommendation that was subsequently
endorsed by the Corps, are discussed
below.
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i. Subcommittee’s Recommendation
The Subcommittee majority
recommended that for purposes of
identifying the subset of waters of the
United States over which the Corps
would retain administrative authority
following Tribal or State assumption of
the CWA section 404 program, existing
RHA section 10 lists 31 be used ‘‘with
two minor modifications: any waters
that are on the section 10 lists based
solely on historic use (e.g., historic fur
trading routes) are not to be retained
(based on the Congressional record and
statute), and waters that are assumable
by a tribe (as defined in the report) may
also be retained by the USACE when a
state assumes the program.’’ Final
Report of the Assumable Waters
Subcommittee at v.32 The Subcommittee
also recognized that ‘‘waters may be
added to Section 10 lists after a state or
tribe assumes the program, and
recommends in that case, such waters
may also be added to lists of USACEretained waters at that time.’’ Id. The
majority recommendation was based on
its analysis of the text and legislative
history of section 404(g), which is
discussed in the Background
description in section III of this
preamble, in which the majority
concluded that Congress intended that
the Corps retain permitting authority
over some RHA section 10 waters. See
id. at 55–61 (Appendix F.) The majority
thought this approach had the benefit of
being clear and easy to implement. See
id. at 17–20.
The Subcommittee majority also
addressed the scope of retained adjacent
wetlands. It recommended that the
Corps retain administrative authority
over all wetlands adjacent to retained
waters landward to an administrative
boundary agreed upon by the Tribe or
State and the Corps. This boundary, the
recommendation added, ‘‘could be
negotiated at the state or tribal level . . .
if no change were negotiated, a 300-foot
national administrative default line
30 R.D. James, Memorandum for Commanding
General, U.S. Army Corps of Engineers: Clean Water
Act Section 404(g)—Non-Assumable Waters (July
30, 2018).
31 The RHA section 10 lists are compiled and
maintained by the Corps district offices for every
State except Hawaii. 33 CFR 329.14 describes the
process the Corps follows to make navigability
determinations pursuant to the RHA.
32 Available at https://www.epa.gov/sites/default/
files/2017-06/documents/awsubcommittee
finalreprort_05-2017_tag508_05312017_508.pdf.
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would be used.’’ Final Report of the
Assumable Waters Subcommittee at vi.
The Subcommittee majority opinion
noted that large wetland complexes can
extend far from the retained water. Id.
at 31. Without such an administrative
line, the Subcommittee majority noted,
assumption could lead to a confusing
pattern of USACE and State or Tribal
permitting authority across the
landscape.
With regard to Tribal considerations
during assumption of the section 404
program, the Subcommittee found that
‘‘Section 518 of the CWA, enacted as
part of the 1987 amendments to the
statute, authorizes the EPA to treat
eligible Indian tribes in a manner
similar to states (‘treatment as a State’ or
TAS) for a variety of purposes,
including administering each of the
principal CWA regulatory programs
[including CWA section 404] and
receiving grants under several CWA
authorities (81 FR 30183, May 16,
2016).’’ Id. at 3. The Subcommittee
majority recommended that ‘‘Tribal
governments pursuing assumption of
the 404 program will follow the same
process as states, though it is expected
that there will be some nuanced
differences; for example, in addressing
Tribal Indian Reservation boundaries’’
and that ‘‘[i]n a state-assumed program,
states will generally not assume
authority for administering the 404
program within Indian country; instead,
such authority will generally be retained
by the USACE unless the tribe itself is
approved by EPA to assume the 404
program.’’ Id.
The Subcommittee majority noted
that its recommended approach is
consistent with ‘‘the plain language of
Section 404(g) and the legislative
history. Congress clearly intended that
states and tribes should play a
significant role in the administration of
Section 404—as they do in other CWA
programs—anticipating that many states
would assume the Section 404
program.’’ See id. at 19.
ii. Final Rule Approach to Retained
Waters
1. Contents of the Retained Waters
Description
Taking into consideration the majority
recommendation of the Subcommittee
as well as stakeholder input on the
proposed rule, the subset of waters of
the United States over which the Corps
would retain administrative authority
would include the following:
—Waters of the United States, or
reaches of those waters, from the RHA
section 10 list(s) that are known to be
presently used or susceptible to use in
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their natural condition or by
reasonable improvement as a means
to transport interstate or foreign
commerce;
—Other waters known by the Corps or
identified by the Tribe or State as
presently used or susceptible to use in
their natural condition or by
reasonable improvement as a means
to transport interstate or foreign
commerce, including all waters which
are subject to the ebb and flow of the
tide; and
—Retained wetlands that are adjacent to
the foregoing waters.
As recognized in EPA’s regulations, in
many cases, States lack authority under
the CWA to regulate activities covered
by the section 404 program in Indian
country. See 40 CFR 233.1(b). Thus, the
Corps will continue to administer the
program in Indian country unless EPA
determines that a State has authority to
regulate discharges into waters in Indian
country and approves the State to
assume the section 404 program over
such discharges. See id. The
Memorandum of Agreement between
the Corps and State must address any
waters in Indian Country which are to
be retained by the Corps upon program
assumption by a State. EPA also notes
that the Corps would retain jurisdiction
over waters located in lands of exclusive
Federal jurisdiction in relevant respects
(e.g., certain national parks identified in
16 U.S.C. Chapter 1 as having lands of
exclusive Federal jurisdiction, such as
Denali National Park).
Some commenters supported this
approach, outlined in the proposed rule.
Others critiqued the Agency’s reliance
on the RHA section 10 lists as a starting
point for identifying retained waters,
stating that these lists can be out of date
and often lack current information or
supporting documentation. Some
commenters suggested that RHA section
10 lists should only be relied upon if
they have been comprehensively
updated within the previous five years.
Some commenters would require that
the Corps review all judicial
determinations involving the subject
State to identify additional retained
waters.
EPA recognizes that the available
RHA section 10 lists may not cover all
RHA section 10 waters in the Tribe’s or
State’s jurisdiction and that they may
not be updated to reflect current use and
characteristics of listed waters.
However, EPA agrees with the
recommendation of the Assumable
Waters Subcommittee that these lists
provide a useful starting point for
determining the scope of retained
waters, given the clear indication in the
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legislative history that Congress
intended the Corps to generally retain
RHA section 10 waters, with some
modifications, and that an approach that
starts with existing lists will be clear
and easy to implement. No commenters
proposed implementable alternatives to
the RHA section 10 lists as a starting
point. Comprehensively reviewing and
revising RHA section 10 lists is a multiyear, resource-intensive and relatively
rare undertaking, so excluding from use
those lists not comprehensively updated
within the past five years would cause
significant delays in assumption.
However, to ensure the retained waters
descriptions remain as current and
accurate as is feasible, EPA has
modified the final rule to provide that
whenever RHA section 10 lists are
updated, an orderly process exists for
incorporating those changes, as
appropriate, into a Tribe’s or State’s
retained waters description.
Specifically, EPA now requires that the
Memorandum of Agreement between
the Corps and the Tribe or State outline
procedures whereby the Corps will
notify the Tribe or the State of changes
to the RHA section 10 list that implicate
the statutory scope of retained waters
and the Tribe or State will incorporate
those changes into its retained waters
description.
With respect to the suggestion to
require review of all judicial decisions
related to navigability during the
development of the retained waters
description, EPA agrees that these
should be viewed as resources during
the development of the description, as
well as information submitted by
interested parties, navigability analyses
the Corps has conducted since last
updating its RHA section 10 list, and
other sources of information. However,
EPA is declining to define the sources
of information for the development of
the retained waters description in the
regulations because it would be
unnecessarily prescriptive and limit the
flexibility of the Corps or the relevant
Tribe or State.
Some commenters argued that the
retained waters description must
include waters that have been
historically navigable, as historical
navigability often indicates whether the
waterway can be navigable in its natural
condition or with reasonable
improvement, which is the statutory
criteria for retained waters in section
404(g). EPA agrees that historical
navigability can sometimes indicate that
a water is navigable in its natural
condition or with reasonable
improvement. Yet this is not always the
case. Sometimes historically navigable
waters have been modified—as a result
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of dams, water diversions for irrigation,
climate change, or other
circumstances—and cannot be restored
to navigability with reasonable
improvements. EPA therefore retains the
proposed rule approach, based on the
statutory language and consistent with
the recommendation of the Assumable
Water Subcommittee, which would
remove waters or reaches of waters that
were historically navigable but that are
not currently used as a means to
transport interstate or foreign commerce
in their natural condition or with
reasonable improvement.
EPA also received comments stating
that the starting point for the scope of
the Corps-retained waters must be
documented traditional navigable
waters (TNWs) as opposed to RHA
section 10 lists. The Corps’ minority
recommendation in the Assumable
Waters Subcommittee Final Report
advocated for this approach. See Final
Report at 21–22. The majority rejected
reliance on documented TNWs as a
starting point on the basis that using the
RHA section 10 lists is clearer and
easier to implement as well as more
consistent with the legislative history of
section 404(g). See id. at 17. The
majority explained that RHA section 10
lists are ‘‘well established, and can be
relatively easily labeled on regional
maps or GIS systems . . .’’ thereby
allowing members of the public ‘‘to
readily determine which agency is
responsible for Section 404 regulation at
a specific location.’’ See id. at 18. In
contrast, the majority expressed
concerns that the extent of documented
TNWs is confusing and less transparent,
as they are documented in ‘‘multiple
regulations, guidance, and procedures,’’
rather than in one central, public
location. See id. The majority also noted
that because most TNWs have not yet
been identified as such and thus lists of
documented TNWs could easily and
regularly increase, using RHA section 10
lists provides greater certainty and
predictability regarding the scope of the
Tribal or State program. See id at 19. In
addition, the majority viewed Congress
as intending to retain Corps authority
over RHA section 10 waters, with
certain minor exceptions. See id. at 55–
61; see also section III of this preamble.
For all of the reasons that the
Subcommittee cited, EPA has decided to
establish RHA section 10 lists as a
starting point for retained waters, rather
than documented TNWs. EPA notes that
ultimately the Department of the Army
transmitted to the Corps its support for
the majority recommendation’s reliance
on RHA section 10 lists. See section
IV.B.2.b of this preamble.
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The retained waters description
would acknowledge that wetlands are to
be retained if they are adjacent to Corpsretained waters. As noted above, the
default understanding is that the Corps
would retain administrative authority
over all jurisdictional wetlands
‘‘adjacent’’ to retained waters. Some
Tribes and States may choose to
negotiate with the Corps to establish an
administrative boundary through
jurisdictional adjacent wetlands,
landward of which the Tribe or State
would assume administrative authority.
If they do so, EPA may consider that
part of the program description when it
is submitted with the program
submission. The default approach,
however, is that the Corps would retain
all adjacent wetlands. A specific list of
all retained adjacent wetlands is not
required to be included in the retained
waters description, because developing
such a list would generally be
impracticable at the time of program
assumption.
EPA had proposed that Tribes or
States and the Corps establish an
administrative boundary through
adjacent wetlands to delineate between
retained and assumed wetlands, and
that the default boundary be 300 feet
from retained waters. Some commenters
expressed support for this approach,
stating that it would allow needed
flexibility for Tribes, States, and the
Corps to develop Tribal or State
programs and that the proposal is
authorized by the CWA. The significant
majority of comments received during
the public comment period, however,
expressed concerns about an
administrative boundary default
approach, both with respect to
implementation and legal authority.
Concerns expressed about
implementation included the lack of a
scientific basis for the 300-foot default
boundary and the lack of a methodology
for applying the default boundary. Some
commenters pointed out that an
administrative boundary would
fragment the permitting in large
wetlands complexes, leading to
stakeholder confusion, and bifurcate the
environmental review process, thereby
making it difficult to ensure a holistic
evaluation of impacts. These
commenters stated that because an
administrative boundary would
sometimes require two permitting
agencies to issue different permits for
two parts of the same project, it would
unnecessarily duplicate effort on the
part of permittees, State agencies, and
members of the public. Commenters
further noted that it would also burden
those seeking to challenge permits, who
might need to litigate two separate
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permits in two separate fora, potentially
on different timelines depending on the
State or Tribe’s judicial review
procedures. Commenters also argued
that, because the scope of ‘‘adjacent
wetlands’’ significantly narrowed
following the Supreme Court’s May
2023 decision in Sackett v. EPA and the
Agency’s subsequent August 29, 2023,
rulemaking conforming the definition of
‘‘waters of the United States’’ to that
case, 88 FR 3004, an administrative
boundary is no longer necessary. EPA
finds the practical concerns raised by
commenters valid. Given the challenges
involved in implementing the
administrative boundary concept and
the reduced need for it, as identified by
commenters, EPA decided not to
finalize the proposed approach.
Commenters also raised legal
objections to the administrative
boundary approach. These commenters
stated that CWA section 404(g)(1)
provides that adjacent wetlands may not
be assumed by a State or Tribe and that
EPA lacks the authority to approve an
administrative boundary that would
allow a State to assume authority over
any part of wetlands that are adjacent to
a retained water. Because EPA has
decided not to finalize the
administrative boundary proposal due
to implementation concerns, addressing
the scope of the Agency’s legal authority
to approve such a boundary is
unnecessary. If a State or Tribe chooses
to negotiate an administrative boundary
with the Corps when developing an
assumption request, and the parties
reach agreement, EPA may consider
issues related to the scope of their
proposed program at that time.
A number of commenters asked that
EPA provide more clarity as to the
‘‘universe of waters that would be
retained,’’ including the information
and data that the Corps and State or
Tribe would use to assess the scope of
retained waters. As noted previously,
however, these commenters did not
generally provide specific suggestions as
to how EPA could provide additional
clarity. The approach EPA is outlining
adopts the recommendation of the
Assumable Waters Subcommittee,
which spent several years assessing how
EPA could best clarify the scope of
retained waters.
Moreover, for the purposes of CWA
section 404(g)(1), determining which
waters are presently used or susceptible
to use in their natural condition or by
reasonable improvement as a means to
transport interstate or foreign
commerce, as well as the scope of
adjacent wetlands is, to some extent,
inherently a case-specific process.
While determining whether a water is
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retained does not require compliance
with the requirements for determining
whether a water is subject to RHA
section 10, and does not necessarily
require a navigability study, the factors
used to determine RHA section 10
jurisdiction may still be relevant to
determining whether a water should be
retained. As noted earlier, however,
there are key distinctions between RHA
section 10 waters and the scope of
retained waters. Specifically, unlike
RHA section 10 waters, Corps-retained
waters do not include waters that are
only used historically for the transport
of interstate or foreign commerce but do
include adjacent wetlands and, when a
State is assuming the program, waters
subject to Tribal authority.
EPA’s approach to determining the
retained waters description reflects its
attempt to balance the competing
priorities of providing an efficient
process for program assumption versus
guaranteeing a fully comprehensive and
precise description. When a Tribe or
State is preparing to request
assumption, the Corps or assuming
Tribe or State may not know all waters
that are presently used or susceptible to
use in their natural condition or by
reasonable improvement as a means to
transport interstate or foreign commerce
at the time of assumption. However,
requiring a comprehensive assessment
of every water within the Tribe’s or
State’s jurisdiction at the time of
assumption to determine if they should
be retained pursuant to the
parenthetical in CWA section 404(g)(1)
could pose significant practical and
budgetary challenges. Depending on the
number of waters within the Tribe’s or
State’s jurisdiction, developing a
comprehensive retained waters
description could take many years and
reduce the Corps’ ability to carry out its
regulatory obligations. EPA attempts to
strike a balance by using the RHA
section 10 list as a starting point and by
stating that the retained waters
description must encompass waters
‘‘known’’ by the Corps, Tribe, or State
to meet the statutory criteria.
Further, as discussed in section
IV.B.2.b.ii.2 of this preamble below,
EPA has added an opportunity for
public input. EPA is confident that
geographic information systems
technology and navigation charts,
review of judicial decisions, public
input, past jurisdictional
determinations, and other sources of
information should enable the Corps,
Tribe, or State to take significant steps
in identifying waters in the Tribe’s or
State’s jurisdiction that should be
included in the retained waters
description. As discussed further below,
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moreover, EPA’s regulation allows for
the retained waters description and the
Memorandum of Agreement between
the Corps and Tribe or State to be
modified if additional waters are
identified after assumption, or if waters
included in the description no longer
meet the statutory criteria.
2. Procedures for Developing the
Retained Waters Description
EPA is facilitating clarity and
efficiency in the program assumption
process by establishing defined
timeframes for the development of the
retained waters description. Before a
Tribe or State provides an assumption
request submission to EPA, the Tribal
leader, State Governor, or Tribal or State
Director must submit a request to EPA
that the Corps identify the subset of
waters of the United States over which
the Corps would retain administrative
authority. The Tribe or State must
submit the request with specific
additional information that should
accompany the request to show that the
Tribe or State has taken concrete and
substantial steps toward program
assumption. One of the following must
be included with the Tribe’s or State’s
request that the Corps identify which
waters would be retained: a citation or
copy of legislation authorizing funding
to prepare for assumption, a citation or
copy of legislation authorizing
assumption, a Governor or Tribal leader
directive, a letter from a head of a Tribal
or State agency, or a copy of a letter
awarding a grant or other funding
allocated to investigate and pursue
assumption. Within seven days of
receiving the request for the retained
waters description, EPA will review and
respond to the request. If the request
includes the required information, then
EPA will transmit the request to the
Corps. This requirement is intended to
provide assurance to the Corps that
developing a retained waters
description for purposes of program
assumption is a worthwhile expenditure
of its time and resources.
One commenter opposed the
requirement that a Tribe or State
provide supporting documentation for
its request, stating that knowing the
scope of assumed waters is a
foundational, and preliminary, piece of
information that States need before
taking concrete and substantial steps
toward assumption. EPA recognizes the
importance of understanding the scope
of assumed waters to Tribes and States
before they consider assumption. EPA
seeks to balance the desire of Tribes and
States to assess the scope of a potential
program prior to embarking on such a
program, however, with the desire to
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avoid unnecessarily imposing workload
burdens on the Corps. If EPA did not
impose such a prerequisite, the Corps
could be asked to embark upon lengthy
assessments of the scope of retained
waters at the request of State
environmental agency staff, for example,
only to find out after having expended
significant resources that the State
legislature or governor has no intention
of pursuing program assumption. EPA is
therefore finalizing its requirement that
a Tribe or State document it has taken
concrete and substantial steps toward
program assumption before submitting
its request for a retained waters
description.
In addition to seeking to facilitate the
clarity and efficiency of the program
assumption process, EPA also seeks to
increase public participation and
transparency. To that end, EPA is
providing that, upon transmitting a
request for a retained waters description
to the Corps, the Agency will also post
a public notice of that transmission on
its website and notify members of the
public known to be interested in these
matters of that transmission, inviting
public input to the Corps as well as the
State or Tribe on the scope of the
retained waters description within a 60day period. The Corps (or the Tribe or
State if the Corps declines to define the
description) may consider submitted
information in developing its
description. If the Corps were to
develop the description, the Tribe or
State may provide information to the
Corps during that 60-day period.
Similarly, if the Tribe or State were to
develop the list, the Corps may provide
information to the Tribe or State before
the end of that 60-day period.
Regardless of which entity develops the
retained waters description, the Corps
and Tribe or State will likely maintain
regular communication regarding its
development. Yet providing data at the
beginning of the description
development process will ensure that it
can be adequately considered.
This public notice and input
provision responds to some
commenters’ requests for additional
opportunities for public participation in
the development of the retained waters
description, while also retaining the
efficiency in the description
development process that other
commenters requested. EPA is not
establishing a public notice and
comment period on the final retained
waters description distinct from the
other procedural steps, as that would
lengthen the time period for seeking
assumption and impose a substantial
burden on the Corps, the assuming State
or Tribe, and EPA. A 60-day public
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input period, however, would increase
public participation in the process of
determining which waters the Corps
would retain and the Tribe or State
would assume, without delaying the
assumption process. The Corps (or the
Tribe or State) would not be obligated
to respond directly to this input but
could consider it in compiling its
description of retained waters.
Members of the public have another
opportunity to provide comment on the
retained waters description when
reviewing the Tribe’s or State’s program
submission. Some commenters
requested a separate public notice and
comment process specifically if a State
takes on the development of the
retained waters description. EPA
expects that the public input
opportunity offered when EPA transmits
a request for a retained waters
description to the Corps will be
sufficient to provide the Tribe or State
with information to assist in developing
the description. Moreover, a Tribe or
State may provide opportunities for
public engagement as it develops its
program submission, which would
again allow members of the public to
provide input on the retained waters
description.
If the Corps notifies the Tribe or State
and EPA within 30 days of receipt of the
request transmitted by EPA that it
intends to provide a retained waters
description, the Corps would have 180
days from the receipt of the request
transmitted by EPA to develop the
description. During the 180-day period
the Corps would be able to review the
current RHA section 10 list(s); place
waters of the United States or reaches of
those waters from the RHA section 10
list into the retained waters description
if they are known to be presently used
or susceptible to use in their natural
condition or by reasonable improvement
as a means to transport interstate or
foreign commerce; and to the extent
feasible and to the extent that
information is available, add other
waters or reaches of waters to the
retained waters description that are
presently used or are susceptible to use
in their natural condition or by
reasonable improvement as a means to
transport interstate or foreign
commerce.
If the Corps does not notify the Tribe
or State and EPA within 30 days of
receipt of the request transmitted by
EPA that it intends to provide a retained
waters description, the Tribe or State
may prepare a retained waters
description using the same approach
outlined above for the Corps. Similarly,
if the Corps had originally indicated
that it would provide a retained waters
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description but does not provide one
within 180 days of EPA’s transmission
to the Corps, the Tribe or State may
develop the retained waters description
using the same approach described
above. Alternatively, the Tribe or State
and the Corps may also mutually agree
to provide the Corps additional time to
provide a retained waters description.
EPA received a number of comments
on the time frame and coordination
process outlined in the proposed rule,
which it is finalizing in this rule. Some
commenters stated that the Corps
should be allowed one year to develop
a retained waters description to allow
sufficient time to conduct the
assessments needed to compile a
complete description, particularly given
that some RHA section 10 lists may be
outdated. Some commenters also stated
that under no circumstances should a
Tribe or State have the opportunity to
develop a retained waters description,
contending that States lack the authority
and expertise to make these
determinations. Other commenters
stated that 180 days was too long a
period to require a State or Tribe to wait
prior to finalizing their program
submission, and that Congress did not
intend States and Tribes to have to wait
for this length of time.
EPA decided to finalize its proposed
approach of allowing the Corps 180
days to develop a list, which it views as
striking a balance between the desire of
States and Tribes to understand the
scope of a potential program as quickly
as possible, and the time the Corps
needs to complete the resourceintensive process of assessing those
waters that meet the statutory criteria to
be retained. Moreover, in response to
those commenters who urged EPA to
allow the Corps additional time, EPA
added a provision that would extend the
180-day time frame if the requesting
Tribe or State agrees with the Corps on
an extension. In response to the
commenters that stated that Tribes or
States may never develop a retained
waters description, EPA views this rule
as providing ample opportunity and
encouragement to the Corps to develop
the description. However, allowing a
Tribe or State opportunity to develop a
list if the Corps chooses not to do so is
a backstop that is consistent with and
helps to implement the statute’s intent
of facilitating Tribal and State
assumption. Nothing in the CWA
prohibits the Tribe or State from
developing a retained waters
description. The Act requires that the
Tribe or State submit a description of
assumed waters, and it is reasonable for
the Agency to allow a Tribe or State to
submit such a description for EPA
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approval with their program request, if
the Corps declines to develop a retained
waters description.
EPA disagrees with those commenters
who expressed concerns that allowing
the Corps 180 days to develop a retained
waters description would unduly
hamper Tribal or State efforts to develop
a program submission. In EPA’s
experience, States that have considered
seeking assumption typically spend at
least several years preparing their
submissions. Allowing the Corps to
spend 180 days developing the
description (or more, if an extension is
jointly agreed upon) would therefore be
unlikely to impede Tribal or State
efforts. Moreover, the Corps may need
180 days to allocate staff to this project
and conduct the reviews and analyses
needed to determine which waters meet
the statutory criteria to be retained by
the Corps.
The Subcommittee majority
recommended that identification of the
subset of waters of the United States
over which the Corps would retain
administrative authority be a
collaborative process. EPA anticipates
that, when a Tribe or State seeks
assumption, the Tribe or State, the
Corps, and EPA will engage
collaboratively throughout the
development of this description of
retained waters to be submitted with the
program request package for review.
Even if the Corps does not provide a
retained waters description to the Tribe
or State, the Corps may provide relevant
information to the Tribe or State at any
time during the Tribe’s or State’s
development of the retained waters
description. In addition, the Corps
would have two formal opportunities to
review the list of retained waters that is
produced by the Tribe or State. First, the
Memorandum of Agreement between
the Corps and the Tribe or State
includes a description of retained
waters, and thus the Corps would have
the opportunity to review the
description of retained waters during
the drafting process for that
memorandum and before signing that
memorandum. Second, the Corps would
have the opportunity to review and
provide comments on the Tribe’s or
State’s program submission materials,
which includes the description of
retained waters, after the Tribe or State
submits a program request to EPA.
Similarly, if the Corps provides a
retained waters description to the Tribe
or State, the Tribe or State would
presumably review it to ensure that the
retained waters description reflects
waters presently used or susceptible to
use in their natural condition or by
reasonable improvement as a means to
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transport interstate or foreign
commerce, including all waters which
are subject to the ebb and flow of the
tide, as well as wetlands that are
adjacent to the foregoing waters, to the
extent feasible and to the extent that
scope of waters is known.
The Subcommittee majority
recommended that EPA and the Corps
establish a clear dispute resolution
procedure to be followed if the Tribe or
State and the Corps were not able to
complete the retained waters
description. Because EPA believes that
the proposed approach lays out a clear
process for establishing the description,
EPA is not specifying such a dispute
resolution procedure by regulation. See
section IV.E.1 of this preamble for
further discussion on dispute
resolution. EPA encourages Tribes and
States seeking to assume the section 404
program to work collaboratively with
the Corps to resolve any issues, and EPA
may participate in these discussions to
advise and facilitate development of the
description.
EPA’s process, similar to the one
described by the Subcommittee
majority, is clear and practical, is based
on available and relatively stable and
predictable information, and is able to
be implemented efficiently at the time a
Tribe or State seeks assumption. It is
also consistent with the text and history
of section 404(g), which reflects
Congress’ intent that the Corps generally
retain permitting authority over certain
RHA section 10 waters. See section III.A
of this preamble. Because the Agency’s
approach, consistent with the
Subcommittee majority’s
recommendation, effectuates the
language and history of section 404(g)
and achieves Congress’ goal of
providing an implementable approach
for assumption, generally speaking, a
retained waters description that uses
this approach will satisfy the statutory
criteria for retained waters. However,
the Regional Administrator retains the
ultimate authority to determine whether
to approve a Tribal or State program. As
this approach does not conflict with the
approved extent of the Michigan and
New Jersey programs, no changes to
their existing program scope would be
required.
3. Modifying the Extent of Retained
Waters
EPA is revising the provision in the
prior regulations that currently states
that modifications that affect the area of
jurisdiction (such as modifications to
the retained waters description) always
constitute substantial revisions to a
Tribal or State program. The prior
regulations provide that EPA may
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approve non-substantial revisions by
letter, but require additional procedures,
including public notice, inter-agency
consultation, and Federal Register
publication, for substantial revisions. 40
CFR 233.16(d)(2)–(4) (2023). EPA is
modifying this provision to provide that
all removals, except de minimis
removals, from the retained waters
description are ‘‘substantive,’’ and
therefore trigger the notice requirements
for ‘‘substantive’’ program changes.’’ In
addition, changes in geographic scope of
an approved Tribal CWA section 404
program that would add reservation
areas to the scope of its approved
program are substantial program
revisions.
EPA had proposed removing the
provision stating that modifications
affecting the area of jurisdiction always
constitute substantial revisions, though
also providing that changes in
geographic scope of an approved Tribal
CWA section 404 program that would
add reservation areas to the scope of its
approved program are substantial
program revisions. The proposed change
was based on EPA’s experience that
retained waters descriptions sometimes
require minor tweaks (such as minor
modifications to the head of navigation
of a particular waterbody) and that
requiring a full Federal Register notice
for such changes is unnecessarily
burdensome. Commenters expressed
concern, however, that pursuant to the
proposed revision waters could be
reassigned to State jurisdiction without
any public notice or opportunity to
comment. These commenters therefore
asked that all removals from the
retained waters description be viewed
as substantial revisions. EPA is
accepting this recommendation and
finalizing this approach, with the
qualification that de minimis removals
are not substantial. Examples of de
minimis removals may include a
reduction in the length of a retained
portion of a waterbody by a hundred
feet prompted by a new navigability
study or changes resulting from a water
infrastructure project, or the removal
from the retained waters description of
an oxbow lake that sedimentation has
severed from a Corps-retained river.
EPA thinks this approach will achieve
EPA’s goal of removing unnecessarily
burdensome procedures while
providing transparency for interested
parties.
While development of the retained
waters description involves
collaboration between the Corps and the
Tribe or State, the Corps remains the
agency with sole responsibility for
maintaining and modifying any RHA
section 10 list. The Subcommittee
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majority recognized that the Corps may
add waters to RHA section 10 lists after
a Tribe or State assumes the program.
The Subcommittee majority
recommended that in such cases, Tribes
or States may revise their retained
waters descriptions to add these waters,
if consistent with CWA section
404(g)(1). As discussed above, an RHA
section 10 list will not necessarily be coextensive with the retained waters
description and changes to RHA section
10 lists do not always warrant changes
to the retained waters description. For
example, if the Corps adds to its RHA
section 10 list a water which was
historically used in interstate or foreign
commerce but is no longer used or
susceptible to use for that purpose, that
water would not be added to the
retained waters description.
If, however, the Corps were to add
waters to its RHA section 10 list that are
used or susceptible to use in interstate
or foreign commerce, the relevant Tribe
or State would add these waters to the
retained waters description. To provide
a predictable and transparent procedure
for such modifications, and to address
commenters’ concerns that many RHA
section 10 lists are not currently up to
date, the final rule provides that the
Memorandum of Agreement between
the Corps and the Tribe or State must
outline procedures whereby the Corps
will notify the Tribe or the State of
changes to the RHA section 10 list as
well as the extent to which these
changes implicate the statutory scope of
retained waters. Pursuant to the
Memorandum of Agreement, the Tribe
or State would incorporate the changes
the Corps has identified as implicating
the scope of retained waters into its
retained waters description.
Under the final rule, EPA would have
discretion to determine whether
additions to the area of jurisdiction,
which includes the extent of retained
waters, are substantial or nonsubstantial. EPA may then decide
whether to approve the modification to
the retained waters description
consistent with the procedures in 40
CFR 233.16.
This rule clarifies that changes in
geographic scope of an approved Tribal
CWA section 404 program that would
add reservation areas to the scope of its
approved program are substantial
program revisions. Where a Tribe seeks
to include additional reservation areas
within the scope of its approved
program, the Regional Administrator
must determine that the Tribe meets the
TAS eligibility criteria for the additional
areas and waters. The substantial
modification process involves
circulating notice to ‘‘those persons
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known to be interested in such matters,
provide opportunity for a public
hearing, and consult with the Corps,
FWS, and NMFS.’’ 40 CFR 233.16(d)(3).
In the case of a change in geographic
scope of a Tribal program, known
interested persons would typically
include representatives of Tribes, States,
and other Federal entities located
contiguous to the reservation of the
Tribe which is applying for TAS. See,
e.g., Amendments to the Water Quality
Standards Regulation That Pertain to
Standards on Indian Reservations, 56 FR
64876, 64884 (December 12, 1991). This
clarification is necessary because as
discussed above, additions that affect
the area of jurisdiction are not always
substantial. However, revising a Tribal
program to add new reservation land
and waters of the United States on that
land is substantial because it requires a
determination that the Tribe meets the
TAS eligibility criteria for such areas,
pursuant to 40 CFR part 233, subpart G.
EPA is further amending the
procedures associated with approval of
program revisions to require EPA to
notify the Corps of all approvals of
program modifications, whether they
are substantial or non-substantial. EPA
is also requiring that other Federal
agencies be notified of these program
modification approvals as appropriate.
4. Additional Clarification
EPA is removing the term
‘‘traditionally’’ from the term
‘‘traditionally navigable waters’’ in the
following provision: ‘‘Where a State
permit program includes coverage of
those traditionally navigable waters in
which only the Secretary may issue 404
permits, the State is encouraged to
establish in this Memorandum of
Agreement procedures for joint
processing of Federal and State permits,
including joint public notices and
public hearings.’’ 40 CFR part
233.14(b)(2). EPA is removing the term
‘‘traditionally’’ to align the reference to
retained waters with the rest of this
preamble and regulations, which refer to
retained waters using the statutory
language in the section 404(g)
parenthetical, and do not refer to
retained waters as ‘‘traditionally’’ or
‘‘traditional navigable waters.’’
‘‘Traditional navigable waters’’ are
defined in the definition of ‘‘waters of
the United States’’ and are not
addressed by this rule. See 40 CFR part
120.2(a)(1)(i).
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3. Program Assumption Requirements
a. Overview and What the Agency Is
Finalizing
The Agency proposed changes to
better harmonize its program approval
requirements with program
requirements in other sections of the
CFR. To assume the section 404
program, a Tribe or State must be able
to demonstrate that it can meet the
requirements for permitting, program
operation, compliance evaluation and
enforcement, and administer a program
that is consistent with section 404. EPA
is revising the requirements for the
program descriptions that Tribes and
States submit to EPA when they request
approval to assume the section 404
program. First, the revisions clarify that
the description of the funding and staff
devoted to program administration and
compliance evaluation and enforcement
must demonstrate that the Tribe or State
is able to carry out the existing
regulatory requirements for permit
review, program operation, and
compliance evaluation and enforcement
programs, provided in 40 CFR part 233
subparts C through E. In order to do so,
the Tribe or State must provide in the
program description staff position
descriptions and qualifications, program
budget and funding mechanisms, and
any other information a Tribe, State, or
EPA considers relevant. The revisions
ensure that when a Tribe or State
submits a request to assume the section
404 program, its program submission
would demonstrate the Tribe or State
has the resources necessary to ensure
that the permit decisions comply with
permit requirements in 40 CFR part 233
subpart C, as applicable; that its
permitting operations would comply
with the program operation
requirements of 40 CFR part 233 subpart
D, as applicable; and that its compliance
evaluation and enforcement operations
would comply with the compliance
evaluation and enforcement
requirements of 40 CFR part 233 subpart
E, as applicable.
EPA is also revising the requirement
that currently provides that if more than
one State agency is responsible for the
administration of the program, the
program description shall address the
responsibilities of each agency and how
the agencies intend to coordinate
administration, compliance,
enforcement, and evaluation of the
program. This rule adds that the
program description must address
additional program budget and funding
mechanisms for each of these agencies,
and how the agencies intend to
coordinate program funding.
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Similarly, the Agency is revising the
requirement that the Tribe or State
program description include ‘‘[a]
description of the scope and structure of
the State’s program. . .[which] should
include [the] extent of [the] State’s
jurisdiction, scope of activities
regulated, anticipated coordination,
scope of permit exemptions if any, and
permit review criteria.’’ 40 CFR part
233.11(a) (2023). EPA is clarifying that
this description ‘‘must’’ address all of
the listed elements in 233.11(a). The
rule is also clarifying that the
description must provide sufficient
information to demonstrate that the
criteria are sufficient to meet the permit
requirements in 40 CFR 233 subpart C.
These revisions do not substantively
change the requirements for permit
review, program operation, and
compliance evaluation and enforcement
programs. Rather, they ensure that
Tribes or States provide EPA with
sufficient information to ensure that
Tribal or State programs would be able
to meet these requirements.
Finally, EPA is revising the program
description requirement that if more
than one Tribal or State agency would
be administering the program, the
program description shall address interagency coordination. The revision
clarifies that the description of interagency coordination must include
coordination on enforcement and
compliance.
b. Summary of Final Rule Rationale and
Public Comment
CWA section 404(h) provides that,
before approving a Tribe’s or State’s
section 404 program, EPA shall
determine whether the Tribe or State
has the authority to administer the
program, including to issue permits that
comply with the CWA 404(b)(1)
Guidelines, to provide for public notice
and opportunity for comment on permit
applications, and to abate violations of
the permit or permit program. See 33
U.S.C. 1344(h)(1)(A), (C), (G). Section
404(h) refers to a Tribe’s or State’s
‘‘authority,’’ but legal authority would
be meaningless without the capacity to
implement it. Clarifying that EPA must
ensure that Tribes and States have the
resources and programs in place to
implement their authority best carries
out section 404(h).
EPA’s existing regulations effectuate
section 404(h) by imposing program
requirements for permitting, program
operation, and compliance evaluation
and enforcement set forth in 40 CFR
part 233 subparts C through E to
administer a program that is consistent
with section 404. A program that lacks
the resources to meet these
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requirements would not be able to carry
out its statutory and regulatory
obligations. This rule would not change
these existing requirements; rather, it
would ensure that the program
submission provides information
necessary to determine that Tribes and
States can meet them.
In the 1988 preamble to the section
404 State program regulations, EPA
stated that the program description
Tribes and States must submit to EPA
‘‘should provide the information needed
to determine if the State has sufficient
manpower to adequately administer a
good program.’’ 53 FR 20764, 20766
(June 6, 1988). However, 40 CFR part
233 subpart B, which contains the
requirements for program approval,
does not explicitly state that Tribes and
States must demonstrate that they have
sufficient resources to meet the
requirements for permit issuance,
program operation, and compliance and
enforcement outlined in subparts C
through E. The regulations require that
the program description contain ‘‘a
description’’ of available funding and
manpower (i.e., staffing),33 40 CFR
233.11(d) (2023), but did not clearly
state that the available funding and
staffing must be sufficient to meet the
requirements of subparts C through E. In
addition, the regulations provide that
the program description must include
‘‘a description’’ of the Tribe’s or State’s
compliance evaluation and enforcement
programs, including a description of
how the Tribe or State will coordinate
its enforcement strategy with the Corps
and EPA, 40 CFR 233.11(g) (2023), but
did not clearly state that the Tribe’s or
State’s compliance evaluation and
enforcement programs must be
sufficient to meet the requirements for
section 404 program compliance
evaluation and enforcement in subpart
E. In the absence of these clarifications,
the regulations did not provide
sufficient guidance as to what kind of
demonstration is needed by Tribes and
States as they develop their programs.
This revision would clarify the subpart
B descriptions Tribes or States must
submit, consistent with the goal of this
rulemaking, to provide more clarity on
the program assumption process for
Tribes and States. See section III.B of
this preamble. The purpose of subpart B
is to require Tribes and States to
demonstrate that they in fact have the
capacity to carry out subparts C through
E, pursuant to the original intent of the
33 In this revision, EPA is replacing the term
‘‘manpower’’ with ‘‘staffing’’ and will use the term
‘‘staffing’’ throughout this preamble.
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current regulations, and these changes
would better reflect that intent.
This rule requires the program
description to identify position
descriptions and qualifications as well
as budget and funding mechanisms for
all responsible Tribal or State agencies
because this information is critical to
understanding whether a Tribe or State
will be able to administer subparts C
through E. EPA must be able to
determine that the Tribe or State will
have sufficient qualified staff and a
reliable and sufficient funding
mechanism that will be commensurate
with the responsibilities it seeks to
assume. Given the importance of these
elements, Tribes and States should have
staffing and budget information readily
available, and providing it in the
program description should not impose
a significant new burden.
Some commenters opposed these
revisions, as presented in the proposed
rule, arguing that such requirements
could result in unnecessary delays or
confuse Tribes or States preparing
assumption submissions. These
commenters also stated that such
revisions are unnecessary. For example,
one commenter argued that to the extent
EPA were to find, for example, staffing
levels described in the program
description insufficient, the 120-day
review period for program submissions
would not provide time for a Tribe or
State to increase those levels. EPA
disagrees with these commenters and
has decided to finalize these revisions
for the reasons discussed above. In
response to the commenter that said that
information about staffing levels would
not aid EPA, EPA thinks that requiring
transparency about staffing levels will
encourage Tribes and States to ensure
that their staffing levels will be
sufficient to carry out their program.
Without adequate staff to draft
protective permits and inspect and
review dredged and fill activity, it is not
possible for a program to comply with
CWA requirements. For example, EPA
cannot assess a Tribe’s or State’s ability
to administer CWA section 404 if it does
not know whether the Tribe or State
will have two permit writers or twenty.
Moreover, EPA typically provides
extensive technical support to Tribes
and States that are preparing program
submissions, and Tribes and States may
discuss staffing levels with EPA at any
time prior to their program submission.
Many commenters supported the
revisions in this section. Some asked
EPA to require additional information
from Tribes or States. One suggested
addition was to require budget and
funding information for all Tribal or
State agencies with program
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administration responsibilities, not just
the lead agency. This suggested
requirement is consistent with the
budget and funding information EPA
proposed to require, and simply
addresses a potential ambiguity by
clarifying that the budget and funding
information EPA requests applies to all
Tribal or State agencies with a role in
the section 404 program, not just the
lead agency. EPA is therefore adopting
this suggested requirement in the final
rule.
Other program description
requirements that commenters asked
EPA to finalize include, but are not
limited to: Tribes or States seeking to
reallocate existing resources must
describe the duties that existing staff
will no longer perform and the skills
and expertise staff have that apply to
reallocated tasks; Tribal or State budget
descriptions must account for all
aspects of the section 404 program,
including administrative work, human
resources, information technology,
training, guidance, leadership,
enforcement, compliance, scientific
personnel, on-site activities and legal
personnel; and Tribes or States must
demonstrate that any existing CWAauthorized programs are adequately
funded and staffed. EPA considered
requiring some or all of the suggested
information of Tribes and States, but
ultimately concluded that requiring this
level of detail is unnecessary. EPA will
not always need each of these pieces of
information to determine whether a
program submission meets the
requirements of the CWA. Codifying
information requirements with this
degree of specificity could limit
flexibility on the part of Tribes or States
and EPA to design and approve program
descriptions reflecting their particular
circumstances. However, EPA views
this suggested information as helpful
guidance to Tribes or States as they
assess how best to demonstrate that they
have the capacity to administer the
section 404 program. Tribes and States
are welcome to submit this type of
information, and if they do so, it will
likely aid EPA’s review of the program
submission.
EPA recommends that Tribes and
States provide other information to the
extent it is necessary to demonstrate
that they will be able to carry out
subparts C through E. Some commenters
suggested that if a Tribal or State
program submission commits to
conduct the same activities as the Corps
but with a lower budget or fewer staff
people, the submission must provide
detailed documentation demonstrating
how they will be able to successfully
administer the section 404 program. In
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fact, one commenter noted that Tribes or
States should allocate more money to
assumption than the Corps in the first
few years of assumption, given the
additional costs of starting a program.
To the extent Tribes or States can
compare resource levels with the Corps’,
EPA agrees with the commenter that
this information would be useful, and
strongly encourages Tribes and States to
provide such comparisons. EPA is not
codifying this requirement, however, as
differences in administrative structures
may render a direct comparison
between Tribe or State funding or staff
and Corps funding or staff infeasible.
For example, a Corps district may not be
able to identify the number of staff
focused solely on section 404 permitting
or on a single State, if its staff
administers the section 404 regulatory
program as well as RHA section 10 or
other types of permitting programs, and/
or if the staff manages permitting for a
number of States. The difficulties with
direct comparisons could be
compounded in States that include
multiple Corps districts. An alternative
approach could compare the average
number of different types of section 404
permits (i.e., individual versus general
permits) Corps staff handle in a district
to the average number of permits the
Tribe or State has or anticipates its staff
will handle in an assumed program.
The rule does not prescribe a
particular metric that Tribes or States
must use to ensure sufficient funding,
staffing, or compliance evaluation and
enforcement programs. It also does not
prescribe the specific position
descriptions and qualifications a Tribe
or State must have, a minimum budget,
or a particular type of funding
mechanism. The rule therefore retains a
certain amount of flexibility for Tribes
and States, recognizing that the section
404 program needs of different Tribes
and States can differ. Tribal or State
agencies likely have varying procedures
for determining sufficient staff and
funding levels and may choose to
organize their programs in different
ways. Furthermore, the necessary
section 404 program budget may differ
depending on the anticipated workload
in the particular Tribe or State, such as
the number of permits typically sought,
the extent and types of aquatic resources
assumed, and the types of compensatory
mitigation mechanisms used. In adding
clarification to better carry out the
requirements of 40 CFR 233.11, this
revision does not reopen those
requirements.
EPA’s clarification, that as part of the
program description, the Tribe or State
must demonstrate that its permit review
criteria are sufficient to carry out the
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permitting requirements of 40 CFR part
233 subpart C, has the same goal as the
program revisions described above: it
would harmonize the requirements for
the program description with the
requirements for program operation, and
facilitate EPA’s ability to ensure that
Tribal and State permits will comply
with the CWA 404(b)(1) Guidelines.
Finally, requiring that the description
of Tribal and State agency coordination
on program administration must address
enforcement and compliance will
enable EPA to ensure the Tribe or State
can comply with the requirements of 40
CFR part 233 subpart E, which
prescribes the enforcement and
compliance requirements for assumed
programs.
4. Mitigation
a. Overview and what is the Agency
finalizing?
The CWA and EPA’s implementing
regulations provide that every permit
issued by a Tribe or State must apply
and ensure compliance with the
guidelines established under CWA
section 404(b)(1).34 33 U.S.C.
1344(h)(1)(A)(i); 40 CFR 233.20(a),
233.23(c)(9) (2023). Under CWA
404(b)(1) Guidelines, impacts to waters
of the United States should be avoided
and minimized to the maximum extent
practicable before considering
compensatory mitigation.35 40 CFR
230.10(a), (d). In 2008, the Corps and
EPA issued joint regulations 36 requiring
performance standards and establishing
criteria for all types of compensatory
mitigation including: (1) on- and off-site
permittee-responsible compensatory
mitigation, (2) mitigation banks, and (3)
in-lieu fee programs, to ‘‘offset
unavoidable impacts to waters of the
United States authorized through the
issuance of permits by the U.S. Army
Corps of Engineers (Corps) pursuant to
34 See section IV.A.2 of this preamble for a
discussion on how a Tribe or State can demonstrate
that it has the authority to issue permits that apply
and assure compliance with aspects of the CWA
404(b)(1) Guidelines other than compensatory
mitigation.
35 The term compensatory mitigation means ‘‘the
restoration (re-establishment or rehabilitation),
establishment (creation), enhancement, and/or in
certain circumstances preservation of aquatic
resources for the purposes of offsetting unavoidable
adverse impacts which remain after all appropriate
and practicable avoidance and minimization has
been achieved.’’ 40 CFR 230.92.
36 ‘‘Compensatory Mitigation for Losses of
Aquatic Resources’’ 73 FR 19594 (April 10, 2008).
(Commonly referred to or known as the ‘‘2008
Mitigation Rule’’). The 2008 Mitigation Rule was
adopted into both EPA and the Corps regulations.
See 33 CFR 325.1 and 332.1 through 332.8 and 40
CFR 230.91 through 230.98. The Agency refers to
EPA’s regulations located at 40 CFR 230.91–98 as
subpart J of the 404(b)(1) Guidelines throughout this
final rule.
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section 404 of the Clean Water Act.’’ 40
CFR 230.91(a)(1).
The prior regulations reaffirmed that
all permits issued by Tribal and State
programs must accord with the
requirements of the Act or regulations
thereunder. 40 CFR 233.1(d), 233.20(a)
(2023). As previously described in
section IV.A.2 of this preamble,
Congress allowed leeway for Tribes and
States to craft a Tribal or State program
consistent with circumstances specific
to that Tribe or State, so long as their
permits will assure compliance with the
CWA 404(b)(1) Guidelines at least as
stringently as permits issued by the
Corps. EPA further explained in
promulgating the CWA 404(b)(1)
Guidelines that they are intended to
provide ‘‘a certain amount of
flexibility,’’ consisting of tools for
evaluating proposed discharges, rather
than numeric standards. 45 FR 85336,
85336 (December 24, 1980).
While 40 CFR 233.1(d) of the prior
regulations reemphasized that approved
Tribe and State programs ‘‘may impose
more stringent requirements’’ but ‘‘may
not impose any less stringent
requirements for any purpose,’’ the
regulations did not provide any detail as
to how a Tribe or State can demonstrate
and ensure compliance with the
substantive criteria and requirements of
subpart J of the 404(b)(1) Guidelines, as
subpart J was developed more than a
decade after the Tribal and State section
404 program regulations were revised in
1988. Additionally, the language used in
subpart J of the 404(b)(1) Guidelines
focuses on Federal concerns regarding
permits issued by the Corps; for
example, it references the ‘‘DA
[Department of the Army] permits’’ and
the ‘‘district engineer’’ and does not
refer to or account for Tribe- or Stateissued permits. See 73 FR 19650. These
Corps-related references have created
confusion. As a result, States have
requested clarity on how a Tribe or State
can demonstrate that it has authority to
issue permits that apply and assure
compliance with the substantive criteria
for compensatory mitigation set forth in
subpart J of the CWA 404(b)(1)
Guidelines. States have also requested
clarification about the respective roles
and responsibilities of the Tribe or State
and Federal agencies in connection with
compensatory mitigation for impacts to
assumed waters.
With respect to subpart J of the
404(b)(1) Guidelines, EPA recognized
some terminology and discussion refers
to the Corps as the permitting authority.
EPA proposed modifying section
233.1(e) to clarify that references to the
Corps as the permitting authority (such
as references to the ‘‘District Engineer’’
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or ‘‘DA Permits’’) are to be considered
as applying to the Tribal or State
permitting agency or decision maker as
appropriate. The final rule codifies this
proposed approach. 40 CFR 233.1(e).
Secondly, EPA proposed a new
provision codifying its interpretation
that the Tribe’s or State’s approach may
deviate from the specific requirements
to the extent necessary to reflect Tribal
or State administration of the program
as opposed to the Corps’ administration,
but that these programs may not be less
stringent than the substantive criteria of
subpart J. Furthermore, the new
provision requires Tribes or States to
submit in their program description the
Tribe’s or State’s proposed approach to
ensuring that all permits they issue will
apply and ensure compliance with the
substantive criteria for compensatory
mitigation consistent with the
requirements of subpart J of the CWA
404(b)(1) Guidelines at 40 CFR part 230.
EPA is finalizing what was proposed
without modification in section
233.11(k).
Finally, EPA proposed to add a new
provision to section 233.50 to address
EPA’s oversight responsibilities where
Tribe or State programs are establishing
third-party compensation mechanisms
(i.e., mitigation banks or in-lieu fee
programs) as part of their section 404
program.37 The proposed process also
intended to incorporate input from
other relevant agencies, which is
analogous to the way the Interagency
Review Team (IRT) that oversees
mitigation for Corps-issued permits
incorporates input from other relevant
agencies. See, e.g., 33 U.S.C. 1344(g),
(h); 40 CFR 233.20(b) (‘‘No permit shall
be issued . . . [w]hen the Regional
Administrator has objected to issuance
of the permit . . .’’); 40 CFR part 233
generally; 40 CFR 230.98(b) (describing
Interagency Review Team procedures).
The Agency also proposed to revise the
section title for section 233.50 to read
‘‘Review of and objection to State
permits and review of compensatory
mitigation instruments.’’ This revision
was intended to reflect the Agency’s
role in reviewing Tribal or State
compensatory mitigation instruments.
The new provision (i.e., section
233.50(k)) outlines a process which
requires Tribes or States to transmit a
copy of each draft instrument to EPA,
the Corps, the U.S. Fish and Wildlife
37 This requirement does not include permitteeresponsible mitigation plans as those would be
reviewed as part of the permit conditions. If the
Tribe or State uses permittee-responsible
mitigation, the mitigation plan would be reviewed
as part of the permit process. After approval, all
specifications generally would be presented as
permit conditions.
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Service, and the National Marine
Fisheries Service for review prior to
approving the final instrument, as well
as to any Tribal or State resource
agencies to which the Tribe or State
committed to send draft instruments in
the program description. In the event
that EPA has commented that the
instrument is not consistent with the
404(b)(1) Guidelines (see section
233.11(k)), the Tribe or State shall not
approve the final compensatory
mitigation instrument until EPA notifies
the Director that the final instrument is
consistent with the Guidelines. EPA is
finalizing the proposed process along
with specific time frames for receiving
comments from the reviewing agencies
in section 233.50(k).
b. Summary of Final Rule Rationale and
Public Comment
i. Clarifying Authority
The final rule, consistent with the
proposal, clarifies in the new provision
233.1(e) that when a Tribe or State
assumes the section 404 program,
references to the Corps as the permitting
authority (such as references to the
‘‘District Engineer’’ or ‘‘DA Permits’’) in
subpart J are to be considered as
applying to and being implemented by
the Tribal or State permitting agency or
decision maker. EPA received no
comments on this issue.
ii. Ensuring Consistency and
Compliance With Subpart J
The new provision 40 CFR 233.11(k)
accomplishes three objectives. First, the
new provision requires that Tribes or
States submit in their program
description their approach to ensure
that all permits issued will satisfy and
be consistent with the substantive
standards and criteria of the
compensatory mitigation set out in
subpart J. This description allows EPA
to evaluate whether the Tribe’s or
State’s approach can implement a
compensatory mitigation program
consistent with the requirements of the
CWA. Second, the new provision at
section 233.11(k) clarifies that the
Tribe’s or State’s approach may deviate
from the specific requirements of
subpart J to the extent necessary to
reflect Tribal or State administration of
the program. For example, a Tribal or
State program may choose to provide for
mitigation in the form of banks and
permittee responsible compensatory
mitigation but may choose not to
establish an in-lieu fee program. Lastly,
the new provision at section 233.11(k)
codifies EPA’s interpretation that Tribal
and State section 404 programs must
issue permits that are no less stringent
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than and consistent with the substantive
criteria for compensatory mitigation
described in 40 CFR part 230, subpart J.
The new provision is consistent with
CWA section 404(h)(1)(a), 40 CFR
233.1(e), and 40 CFR 233.20(a).
Commenters were divided on the
Agency’s proposed approach to this new
provision. Commenters opposing the
Agency’s proposed approach asked the
Agency to require Tribes and States to
adopt verbatim or by reference the
requirements of subpart J of the section
404(b)(1) Guidelines. These commenters
asserted that verbatim adoption or
incorporation by reference of the
mitigation requirements set forth in
subpart J would ensure consistency with
the 404(b)(1) Guidelines and ‘‘promote
consistency and ease for the EPA,
permittees and citizens.’’ Commenters
supporting the proposed approach (i.e.,
allowing Tribal and State programs to
deviate from the substantive criteria of
subpart J) asserted that Tribes and States
are in a better position to make
decisions and design appropriate
mitigation approaches for their Tribe or
State than the Corps. Some commenters
requested that EPA provide clearer
direction on its expectations for
resource mitigation, including banking
and in-lieu fee proposals, greater
specificity as to the standards EPA will
use to review an applicant’s proposed
mitigation program, and require
additional requirements in mitigation
proposals.
The Agency considered these
comments and decided to finalize the
proposed approach for several reasons.
First, while nothing in this rule
prohibits Tribes or States from adopting
or incorporating the CWA 404(b)(1)
Guidelines, requiring Tribes and States
to adopt or incorporate the CWA
404(b)(1) Guidelines, including subpart
J, would conflict with the leeway
Congress provided to Tribes and States
to craft a Tribal or State program
consistent with circumstances specific
to that Tribe or State, so long as their
permits will assure compliance with the
CWA 404(b)(1) Guidelines at least as
stringently as permits issued by the
Corps. Recognizing that a CWA section
404 permit may be required for a variety
of discharges into a wide range of
aquatic ecosystems, EPA explained in
promulgating the CWA 404(b)(1)
Guidelines that they are intended to
provide ‘‘a certain amount of
flexibility,’’ consisting of tools for
evaluating proposed discharges, rather
than numeric standards. 45 FR 85336,
85336 (December 24, 1980). Similarly,
as described in section IV.A.2 of this
preamble, requiring Tribes or States to
adopt or incorporate subpart J would
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complicate efforts by Tribes and States
to impose more stringent requirements
as part of their CWA section 404
programs. See section IV.A.2 of this
preamble for further discussion on
404(b)(1) Guidelines.
Commenters noted that mitigation
requirements are tiered (or hierarchical)
and insisted EPA should not allow State
programs to ‘‘pick and choose’’ between
the allowable forms of mitigation (e.g.,
permittee responsible, mitigation banks,
and in-lieu fees). A commenter stated
that State programs which ‘‘do not
provide for all and follow the
established hierarchy for their use
would have less stringent compensatory
mitigation requirements as compared to
the federal program.’’ EPA disagrees
with this commenter. Tribes and States
may not impose requirements less
stringent than Federal requirements.
Accordingly, Tribes and States must
follow the hierarchical approach laid
out in subpart J of the 404(b)(1)
Guidelines. See 40 CFR 230.93(b). But
following this approach does not require
the establishment of all three
mechanisms listed in the hierarchy.
Rather, Tribes and States, like the Corps,
must apply the hierarchy to available
mechanisms to determine the
appropriate type of compensatory
mitigation.
iii. Third Party Compensatory
Mitigation Instrument Oversight and
Approval
EPA is finalizing the proposed
process, which will implement the
Agency’s oversight responsibilities of
third-party compensatory mitigation
instrument approvals (i.e., mitigation
banks and in-lieu fee programs), as well
as provide opportunities for other
agencies to review and comment on
third-party compensatory instruments
prior to approval. 40 CFR 233.50(k).
Under the final process, a Tribe or State
must provide EPA, the Corps, the U.S.
Fish and Wildlife Service and the
National Marine Fisheries Service an
opportunity to review and comment on
any draft compensatory mitigation
instruments before the Tribe or State
may establish the proposed instrument.
The Tribe or State may also commit in
their program description to include
Tribal or State resource agencies in the
circulation of draft instruments for
approval. If EPA comments that the
instrument fails to apply or ensure
compliance with the section 404(b)(1)
Guidelines, the Tribe or State may not
approve the final compensatory
mitigation instrument until they address
EPA’s comments and EPA notifies it
that the final instrument ensures
compliance with this approach.
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The Agency expects this instrument
review process would be familiar to
Tribes and States because it is modeled
on, and similar to, the procedures for
EPA review of permits, but does not
replicate them. This process also
facilitates input from other relevant
agencies, similar to how an Interagency
Review Team provides input to the
Corps from other relevant Federal and
State agencies on compensatory
mitigation instruments. See, e.g., 33
U.S.C. 1344(g), (h); 40 CFR 233.20(b)
(‘‘No permit shall be issued . . . [w]hen
the Regional Administrator has objected
to issuance of the permit . . .’’); 40 CFR
part 233 generally; 40 CFR 230.98(b)
(describing Interagency Review Team
procedures). Overall, the Agency
believes this review process provides
sufficient oversight for Tribal or State
compensatory mitigation instruments
and provides opportunity for multiple
agencies to provide input on the draft
compensatory instrument before it is
approved. The Agency believes the final
requirements outlined in the new
provision 233.50(k) strike a balance
between Federal oversight responsibility
of draft compensatory mitigation
instruments while allowing Tribes and
States flexibility to solicit input from
additional resource agencies.
No commenters opposed the proposed
approach. However, one commenter
cautioned EPA not to implement a rigid
process that would limit Tribes’ or
States’ flexibility in designing their own
compensatory mitigation approach. EPA
believes that this provision provides
such flexibility.
One commenter requested that the
Agency expand the list of mitigation
instrument reviewers to include
relevant Tribal and State agencies (e.g.,
Tribal- or State-level fish and wildlife
services) to the list. The Agency agrees
with the commenter and believes that
additional reviews from relevant
resource agencies would be
advantageous by providing local
expertise and helping assess the
applicability of the mitigation
instrument (e.g., including but not
limited to the structure of the
instrument, design of the proposed
projects, proposed loss and benefits, and
evaluation of successful instrument),
thereby promoting positive outcomes for
environmental protections.
The Agency is not requiring
circulation to ‘‘relevant Tribal or State
agencies’’ because the criteria for
‘‘relevancy’’ is vague. What constitutes
a ‘‘relevant’’ agency is susceptible to
differing interpretations, especially as
Tribes and States organize their
authorities under differing or even
multiple agencies (e.g., some regulate
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wetlands under the State Department of
Lands, others regulate them under the
State water quality agency). Therefore,
imposing mandatory circulation to this
category of agencies would create
confusion and implementation
challenges for the Tribal or State
authority. Furthermore, the Agency
believes the new provision at section
233.50(k) provides Tribes and States the
opportunity to identify and commit to
additional instrument reviews from
other Tribal or State agencies in their
program description. The new provision
also allows a Tribe or State to invite
other resource agencies not identified in
their program description to participate
in draft instrument review on a case-bycase basis.
The Agency received one comment
requesting that EPA provide clearer
direction on its expectations for
resource mitigation, including banking
and in-lieu fee proposals, and greater
specificity as to the standards EPA will
use to review an applicant’s proposed
mitigation program. The commenter
also asked that EPA require additional
requirements in mitigation proposals.
EPA is not reopening the section
404(b)(1) Guidelines in this rule and
does not have the authority to impose
substantive mitigation requirements on
Tribes and States that are more stringent
than the mitigation requirements in the
section 404(b)(1) Guidelines.
5. Effective Date for Approved Programs
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a. What is the Agency finalizing?
Section 404(h) of the CWA addresses
the transfer of permitting authority and
pending permit applications from the
Corps to the Tribe or State following
EPA notice of program approval but
does not specify an effective date. The
prior regulations provided that the
transfer of permitting authority could
only take effect after notice of EPA’s
program approval appeared in the
Federal Register. 40 CFR 233.15(h)
(2023). Several States that have
contemplated assumption of the section
404 program indicated that a transition
period between EPA’s approval decision
and the date of transfer of responsibility
from the Corps to the State would
enable them to more effectively prepare
for the transition, including securing
and allocating the necessary resources
to successfully implement the assumed
section 404 permitting program if their
program is approved.
EPA proposed to establish a
presumptive effective date for program
assumption of 30 days from the date of
publication of the notice of EPA’s
program approval in the Federal
Register. The proposal also provided
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that if requested and supported by a
Tribe or State in its request to assume
the program, EPA may specify a later
effective date, not to exceed 120 days
from the date of notice in the Federal
Register. A Tribe or State which seeks
a later transfer date must provide a
sufficient explanation of its need for the
additional time as part of its program
submission. In all cases, that effective
date must be set forth in the
Memorandum of Agreement between a
Tribe or State and EPA required by 40
CFR 233.14(b)(2) and published in the
Federal Register. EPA also proposed to
require that decisions to approve Tribal
and State programs and revisions be
posted on EPA’s website in addition to
publication in the Federal Register.
After reviewing public comments, the
Agency is finalizing its approach as
proposed with one modification to
allow Tribes or States and EPA to
establish a later effective date not to
exceed 180 days from the date of notice
in the Federal Register.
b. Summary of Final Rule Rationale and
Public Comments
Section 404(h)(4) of the CWA
provides that ‘‘[a]fter the Secretary
receives notification from the
Administrator under paragraph (2) or (3)
of this subsection that a State permit
program has been approved, the
Secretary shall transfer any applications
for permits pending before the Secretary
for activities with respect to which a
permit may be issued pursuant to such
State program to such State for
appropriate action.’’ 33 U.S.C.
1344(h)(4). Once the State has received
those permit applications, and signals to
the Corps that it is ready to assume
permitting activity, permitting
responsibility should transfer. Id. at
1344(h)(2). Thus, the administrative
process envisioned by Congress is that
EPA receives a program request, reviews
and approves or denies the program
request, then notifies the parties of an
approval decision, after which the Corps
begins to transfer existing permitting
materials. The contrast between the
specific time frames the statute provides
for EPA’s approval of a program and the
absence of a time frame for the transfer
of permit applications from the Corps
suggests that Congress intended some
flexibility in the transition to Tribal or
State program implementation.
However, the fact that the statute
describes the transfer of permits as the
immediate next step following program
approval indicates that Congress
intended the transfer to happen
relatively quickly.
EPA proposed to modify the
regulatory text to clarify when and how
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the section 404 program transfers to the
Tribe or State following EPA’s approval,
and that the presumptive date of
transfer would be 30 days from the date
of notice of program approval in the
Federal Register, but that Tribes and
States that satisfactorily demonstrate a
need for more than 30 days to assume
and be prepared to fully administer the
program could request an effective date
of up to 120 days from the date of
notice. EPA also proposed that if a Tribe
or State requests to assume
administration of the program more
than 30 days after EPA’s approval, the
program description must include a
description and schedule of the actions
that will be taken following EPA
approval for the Tribe or State to begin
administering the program.
A number of commenters supported
EPA’s proposal to allow for more than
30 days for program transfer. Most of
these commenters, however, requested
that the maximum time be longer than
EPA’s proposed maximum of 120 days,
or not specifically limited. These
commenters agreed that some Tribes
and States, especially smaller ones, may
need more time to effectively prepare
for program implementation, such as
training staff, to successfully implement
the assumed section 404 permitting
program if their program is approved.
One commenter stated that no more
than 120 days should be needed if a
Tribe or State were sufficiently prepared
to assume the program.
EPA finds that a short, clearly defined
period of time between program
approval and the Tribe or State’s
assumption of program administration
benefits the public and regulated
community by providing advance notice
of the date of program transfer and
supports the smooth transition of
program functions. However, EPA
agrees that extending the maximum
period of time to 180 days could reduce
the burden for some Tribes and States,
without significantly increasing the
uncertainty that might arise from
lengthier transition periods.
The final rule allows the effective date
to be more than 30 days following
approval (though no more than 180
days), when a Tribe or State identifies
specific circumstances which support
the need for additional time. If the Tribe
or State takes advantage of this option
to delay the effective date, the Tribe or
State’s program description should set
forth the steps it will take upon program
approval, such as specifying the
timeline for any assignment and training
of staff and ensuring program funding is
accessible by the effective date.
Generally speaking, a Tribe or State
should not wait until EPA approves its
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program before initiating hiring and
training processes for staff that are
committed in its program description
and the Tribe or State should be
prepared to implement the final steps
soon after program approval.
The Agency is finalizing the
requirement that the Memorandum of
Agreement between a Tribe or State and
EPA include the effective date for
transfer of the program from the Corps
to the Tribe or State, identified as the
number of days following the date of
publication of program approval in the
Federal Register. This will provide for
the efficient development and
administration of the Tribal or State
program, while also making the process
more predictable for the regulated
community and the public. As with the
prior regulations, the Corps will
continue to process permit applications
up until the effective date, but they will
also use the time between approval and
the effective date to begin transferring
permits under review. The Tribe or
State would not be authorized to
process these permits until the effective
date of program transfer. The Tribe or
State and the Corps will include
procedures for transferring pending
section 404 permit applications and
other relevant information to the Tribe
or State in their Memorandum of
Agreement. 40 CFR 233.14(b)(2).
C. Program Operations
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1. Five-Year Permits and Long-Term
Projects
a. Overview and What the Agency Is
Finalizing
Congress limited CWA section 404
permits issued by Tribes or States that
assume the section 404 program to five
years in duration. 33 U.S.C.
1344(h)(1)(A)(ii).38 The Agency codified
this limitation in the permit conditions
section of the prior section 404 Tribal
and State program regulations. 40 CFR
233.23(b) (2023). However, certain
projects by their nature cannot be
completed within five years and
therefore need more than one five-year
permit. Examples of these long-term
projects include some residential or
commercial developments, linear
projects such as transportation
corridors, and energy or mining
projects. The Agency is concerned that
if applicants with long-term projects
only submit information about activities
38 Corps-issued individual permits are not limited
to five years. See 33 CFR 325.6(b), (c) (authorizing
certain types of permits for an ‘‘indefinite duration’’
or else a ‘‘limited duration’’ but with no five-year
limitation period). General permits issued by the
Corps are limited to five years. See 33 U.S.C.
1344(e)(2).
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that will occur during one five-year
period of their project in their permit
application, the permitting agency and
members of the public will not have
sufficient information to assess the
scope of the entire project, or
cumulative impacts of the entire project.
To minimize unnecessary effort and
paperwork, and provide the Tribe or
State and the public with information
that can assist with the successful
permitting of long-term projects, the
Agency proposed that applicants for
projects for which the planned schedule
extends beyond five years at the time of
the initial five-year permit application
must submit a 404(b)(1) analysis for the
full scope and term of the project with
the application for the first five-year
permit and modify the 404(b)(1)
analysis, as necessary, for subsequent
five-year permits. The proposed rule
preamble discussed the criteria that the
Tribe or State must consider when
determining whether the 404(b)(1)
analysis needs to be modified. 88 FR
55303. If there has been a change in
circumstance related to an authorized
activity following approval of the
previous five-year permit, the applicant
must modify the 404(b)(1) analysis for
subsequent five-year permits. If there
have been no changes in circumstances
related to an authorized activity
following approval of the previous fiveyear permit, the applicant’s new permit
application may rely upon the most
recent 404(b)(1) analysis. Consistent
with CWA requirements, the proposal
also required that a new permit
application must be submitted for
projects that exceed a five-year schedule
(e.g., based on construction plans), and
all aspects of the permit application,
public notice, and Tribal or State review
requirements set forth in 40 CFR 233.30,
233.32, and 233.34, respectively, apply.
To avoid a stoppage in work, the
proposal required that an applicant
seeking a new five-year permit should
apply for the new permit at least 180
days prior to the expiration of the
current permit.
In response to public comments, the
Agency is revising its proposed
approach to require that the permit
application and public notice for a
subsequent five-year permit application
must indicate whether the 404(b)(1)
analysis has been updated and that the
Tribe or State must provide a written
explanation if it does not require an
updated 404(b)(1) analysis for a
subsequent five-year permit(s).
Additionally, EPA is authorizing the
Tribe or State to grant permission to
submit an application less than 180
days prior to the expiration of the
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current permit but no later than the
permit expiration date.
b. Summary of Final Rule Rationale and
Public Comments
i. Permitting Long-Term Projects
The Agency is finalizing a process for
permitting long-term projects in waters
assumed by a Tribal or State section 404
program that is consistent with the
statutory limitation that permits not
exceed five years in duration,39 yet
increases predictability for permittees
and provides sufficient information for
the Tribe or State to consider the full
scope of a project’s impacts to the
aquatic environment. When applying for
a permit to discharge dredged or fill
material associated with projects 40 with
a planned construction schedule which
may extend beyond the five-year permit
period, applicants must submit an
analysis that demonstrates compliance
with the 404(b)(1) Guidelines showing
how the complete long-term project
complies with the environmental review
criteria set forth in the CWA 404(b)(1)
Guidelines when they submit the
application for the first five-year permit.
The 404(b)(1) analysis must provide
information demonstrating that the
project meets each element of the CWA
404(b)(1) Guidelines for the full term of
the project.41 For example, under this
approach, an applicant seeking permit
coverage for a 15-year, multi-phase
housing development project would
provide information about all phases of
the project, covering its full 15-year
term, in its permit application. If this
project were anticipated to involve the
construction of two hundred homes in
years 0–5, two hundred homes in years
5–10, and two hundred homes in years
39 33
U.S.C. 1344(h)(1)(A)(ii).
40 CFR 233.30(b)(5), all activities which the
applicant plans to undertake which are reasonably
related to the same project should be included in
the same permit application.
41 This information includes, but is not limited to:
(i) information describing the purpose, scope, and
timeline for the entire project; (ii) an alternatives
analysis for the entire project; (iii) information
sufficient to demonstrate appropriate and
practicable steps that will be taken to avoid and
minimize impacts from the entire project; (iv)
information sufficient to demonstrate that the
project will not cause or contribute to significant
degradation of waters of the Unites States,
including factual determinations, evaluations, and
tests for the entire project; (v) an assessment of
cumulative and secondary effects of the entire
project; (vi) information sufficient to demonstrate
that the project will not violate applicable state
water quality standards or toxic effluent standards,
jeopardize the continued existence of federally
listed species or adversely modify or destroy critical
habitat, or violate protections for marine sanctuaries
designated under the Marine Protection, Research,
and Sanctuaries Act of 1972; and (vii) a description
of compensatory mitigation proposed to offset all
unavoidable impacts associated with the entire
project. See generally 40 CFR part 230.
40 Per
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10–15, the permit application would
provide information about the
construction of all six hundred homes.
Some commenters supported the
proposed rule approach without
modification. Several commenters
supported the proposed rule approach
requiring an applicant to submit a
404(b)(1) analysis for the entirety of the
project as part of the first five-year
permit review period but recommended
modifying the proposed rule approach
to require an automatic update to the
404(b)(1) analysis at least every five-year
permit cycle. According to these
commenters, projects may change as
they move forward and even small
changes may have an impact on water
quality, as well as on Tribal rights and
resources. Some of these commenters
supported a requirement that a written
explanation be provided in the event the
permitting authority does not require an
updated section 404(b)(1) analysis.
EPA has evaluated these comments
and concluded that an automatic update
to the 404(b)(1) analysis every five-year
permitting cycle is unnecessary. Instead,
for subsequent five-year permits, EPA is
requiring that Tribes or States provide a
written explanation if they do not
determine that a ‘‘change in
circumstance’’ has occurred requiring
an updated 404(b)(1) analysis. Adding
this requirement provides transparency
and ensures the Tribe or State engages
in a meaningful analysis of why there
has not been a ‘‘change in
circumstance.’’ EPA believes this
approach strikes the right balance of
providing more regulatory certainty for
subsequent five-year permits, while also
ensuring that the scope of impacts
associated with a complete project is
factored into the permitting decision for
each five-year permit.
One commenter asked EPA to require
that sufficient information related to
planned impacts for future permitting
phases be included in an initial permit
application. The rule modifies previous
language in 40 CFR 233.30(b)(5), which
stated that ‘‘[a]ll activities which the
applicant plans to undertake which are
reasonably related to the same project
must be included in the same permit
application.’’ (emphasis added). The
final rule expands upon this provision
and requires, ‘‘[f]or projects for which
the planned schedule extends beyond
five years at the time of the initial fiveyear permit application, the application
for both the first and subsequent fiveyear permits must include an analysis
demonstrating that each element of the
404(b)(1) Guidelines is met, consistent
with 40 CFR part 230, for the full term
of the project.’’ The final rule also
requires that, ‘‘[a]pplicants for
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subsequent five-year permits must
update the 404(b)(1) Guidelines analysis
if there has been a change in
circumstance related to the project
following approval of the previous fiveyear permit.’’
Some commenters opposed any
regulatory changes related to long-term
projects. One commenter argued that
requiring a comprehensive 404(b)(1)
analysis would present a barrier to State
assumption and questioned the legality
of that approach. EPA disagrees with
this commenter. Each State that has
assumed the section 404 program has at
times expressed interest in allowing for
a full project analysis at the time of the
first permit application and allowing
expediencies in subsequent rounds of
permitting for the same project, as a
means of both ensuring comprehensive
water quality protections and protecting
permit applicants against wasted
financial resources. As a legal matter,
requiring an analysis of the full project
scope is consistent with section
404(b)(1)(A), which provides that Tribes
and States must have the authority to
issue permits which apply and assure
compliance with the 404(b)(1)
Guidelines. The Guidelines, in turn,
require an evaluation of the potential for
adverse impacts on the aquatic
ecosystems posed by dredged or fill
material discharge activities. 40 CFR
230.10.
This approach is consistent with the
Agency’s long-standing position that
activities related to the same project
should not be split into multiple
permits, which can undermine efforts to
ensure a complete alternatives analysis,
an accurate accounting of all cumulative
impacts, an appropriate mitigation plan,
and that the public is sufficiently on
notice of forthcoming dredged and fill
activities. See 40 CFR 233.30(b)(5)
(2023). This approach is also similar to
the Corps’ requirement that all activities
that are reasonably related to the same
project be included in the same permit
application. 33 CFR 325.1(d)(2).
Providing information about all phases
of the project does not authorize
dredged and fill activity beyond the
five-year permit term. Moreover, unless
there has been a change in circumstance
related to an authorized activity, the
same information should be provided in
subsequent applications for later stages
of the long-term project, such as
applications seeking authorization for
activity in years 6–10 of the project,
years 11–15 of the project, and so forth.
Additionally, this approach will
improve environmental protections by
ensuring that the scope of impacts
associated with a complete project is
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factored into the permitting decision for
each five-year permit.
This approach will also help ensure
consistency in permitting decisions
associated with the project, thereby
providing the applicant with more
regulatory certainty than without such a
plan. Evaluating the impacts of only the
first stage of a long-term project does not
make business sense. For example, if a
permitting authority evaluating a
second- or third-round permit for a
mine’s construction or operation were to
deny the permit based on those
previously unevaluated impacts, the
investments made during the first round
or two of permit coverage would have
been wasted. Foregoing an initial longterm plan would therefore be extremely
inefficient.
The issuance of Tribal or State section
404 permits for projects that exceed a
five-year schedule only authorizes
discharges occurring in the five-year
period identified in the permit.
Permittees for long-term projects must
submit a new permit application for
each subsequent five-year permit term.
The issuance of a subsequent five-year
permit for the same project does not
constitute a continuance or modification
of the previous permit. Nothing in the
final rule affects the process for
continuing or modifying permits set
forth in an approved Tribal or State
section 404 program.
The Agency recognizes that some
permittees may expect that a project
will be completed within the five-year
permit term but ultimately the project
takes longer. The Tribe or State
administering the section 404 program
should make reasonable efforts to verify
that all activities that are reasonably
related to the same project are included
in the same permit and to evaluate
whether a project’s schedule extends
beyond five years at the time of the
initial five-year permit application.
In the event a project anticipated to be
completed within five years is not
completed during that time, the
applicant must apply for a new five-year
permit. To avoid a stoppage in work, the
Agency is requiring that an applicant
seeking a new five-year permit must
apply for the new permit at least 180
days prior to the expiration of the
current permit to allow sufficient time
for the application to be processed.
However, consistent with other CWA
programs which have a similar 180-day
advance application requirement (e.g.,
40 CFR 122.21(d)), upon special request
the Tribe or State may grant permission
to reapply less than 180 days prior to
the expiration of the current permit but
no later than the permit expiration date.
This approach provides time for a
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public comment period and any
required EPA review of the new permit
application.
This final rule approach to five-year
permits presents both environmental
and financial advantages. It promotes
environmental protections by ensuring
that the scope of impacts associated
with a complete project are factored into
the permitting decision for each fiveyear permit. Tribal or State review of a
404(b)(1) analysis for a five-year permit
does not constitute pre-approval of
subsequent five-year permits for the
project and there is no guarantee that an
applicant for a long-term project will
receive all of the five-year permits
needed to complete the project. That
said, including a 404(b)(1) analysis for
the full scope of the project with the
application for the first five-year permit
and modification of the 404(b)(1)
analysis, as necessary, for subsequent
five-year permits will help ensure
consistency in permitting decisions
associated with the project, thereby
providing the applicant with more
regulatory certainty than without such a
plan.
ii. Criteria for Modification of 404(b)(1)
Analyses
The Agency recognizes that changes
in circumstances related to an
authorized activity may occur over time.
For example, plans for subsequent
phases of a long-term project may lack
detail at the time an applicant submits
a 404(b)(1) analysis for the first five-year
permit and adjustments to the
description of the project may therefore
be required. If there has been a change
in circumstance related to an authorized
activity following approval of the
previous five-year permit, the Agency is
finalizing as proposed that the applicant
must modify the 404(b)(1) analysis for
subsequent five-year permits. A change
in circumstance related to the
authorized activity includes, but is not
limited to, the following:
—Change in project purpose;
—Change in project boundary;
—Change in scope of waters impacted;
—Change in secondary or cumulative
impacts;
—Change affecting compensatory
mitigation;
—Change in site conditions, including
new alternatives or opportunities for
minimization of impacts;
—Change in environmental conditions,
including the presence or new listing
of threatened or endangered species
or critical habitat; or
—Change to applicable statutes,
regulations, or guidance.
If there have been no changes in
circumstances related to an authorized
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activity following approval of the
previous five-year permit, the
applicant’s new permit application may
rely upon the most recent 404(b)(1)
analysis. As discussed above, the permit
application and public notice for a
subsequent five-year permit application
must indicate whether the 404(b)(1)
analysis has been updated. A Tribe or
State may require that a 404(b)(1)
analysis be updated based on a change
in circumstances, either on their own
motion, at the request of Federal agency
reviewers providing comments via EPA
or at the request of the public. Federal
agency reviewers or members of the
public who submit such a request must
provide information supporting a
change in circumstances for the Tribe or
State to consider the request. A change
in circumstances may be significant
enough that the project no longer meets
conditions for approval. Other factors
may also weigh in favor of permit
denial, such as an applicant’s noncompliance with the previous permit. If
the Tribe or State does not require an
update to the 404(b)(1) analysis, it must
provide a detailed written explanation
in the record of decision for the permit
based on the ‘‘change in circumstance’’
factors listed above and any additional
factors identified in the Tribe or State’s
program description. The Tribe or State
must provide this detailed written
explanation for not requiring an update
to the 404(b)(1) analysis regardless of
whether it received a request from
Federal agency reviewers or the public.
iii. Clarification Regarding Long-Term
Projects
The Agency is finalizing as proposed
a clarification that all aspects of the
permit application, public notice, and
Tribal or State review requirements set
forth in 40 CFR 233.30, 233.32, and
233.34, respectively, apply to each
permit application, including for
projects that exceed a five-year
schedule. Such clarification will help
ensure that applicants, Tribes, and
States comply with the five-year permit
limitation set forth in CWA section
404(h)(1)(A)(ii). EPA expects that the
permit application process for permits
after the initial five-year permit
application will be easier and simpler
because the applicant and Tribe or State
will have already analyzed the full
project.
All public notices for long-term
permits must satisfy the public notice
requirements in 40 CFR 233.32(d). In
addition, the scope of information the
Tribe or State may consider when
reviewing a permit application may not
be limited for any application, including
applications for each five-year permit of
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a project that takes more than five years
to complete. Nor may a Tribe or State
limit the scope of comments the public
may submit in response to the public
notice, or public hearing if a hearing is
held, to impacts arising from one fiveyear permit of a long-term project as
opposed to impacts from the entirety of
the long-term project.
2. Judicial Review and Rights of Appeal
a. Overview and What the Agency Is
Finalizing
The prior regulations require the
program description to describe the
Tribe’s or State’s judicial review
procedure but did not contain an
explicit corresponding substantive
requirement for Tribal or State
programs. The Agency proposed to
codify a substantive requirement to
match the prior descriptive requirement.
After considering comments urging EPA
to ensure that States facilitate public
participation in the permitting process,
EPA is finalizing a provision that would
require States seeking to assume the
section 404 program to provide an
opportunity for judicial review in State
court of the final approval or denial of
permits by the State that is sufficient to
provide for, encourage, and assist public
participation in the permitting process.
EPA did not propose any judicial review
requirement relevant to Tribes in the
regulatory text. In a change from
proposal, EPA is codifying a
requirement that Tribes must provide a
commensurate form of citizen recourse
for applicants and others affected by
Tribe-issued permits.
b. Summary of Final Rule Rationale and
Public Comment
This provision gives meaning to the
existing regulatory requirement that
State program descriptions describe
their judicial review procedures. See 40
CFR 233.11(b). EPA interprets the
existing requirement that States provide
‘‘a description of the State’s . . .
judicial review . . . procedures’’ to
suggest that States must authorize
judicial review. The new substantive
requirement that States allow for
judicial review sufficient to provide for,
encourage, and assist public
participation in the permitting process
makes explicit that States must have
authorities in place to form the basis for
the existing description requirement.
The provision also carries out the
requirement that States have the
authority to ‘‘abate violations of the . . .
permit program’’ through ‘‘ways and
means of enforcement.’’ 33 U.S.C.
1344(g). Potential violations of the
permit program may include State
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permitting actions, such as the issuance
of a permit that does not assure
compliance with the section 404(b)(1)
Guidelines or that has not provided
public notice and an opportunity for a
hearing. See 33 U.S.C. 1344(h)(1)(A)(i),
(h)(1)(C). One of the most effective ways
to abate such violations is to allow
members of the public to challenge
them. Given that EPA has limited
resources to expend on oversight of
State permitting actions, citizen
challenges are a critical complementary
tool for abating violations of the permit
program.
The judicial review provision also
gives meaning to the requirement that
States must have adequate authority to
ensure that the public ‘‘receive[s] notice
of each application for a permit and to
provide an opportunity for public
hearing before a ruling on each such
application.’’ 33 U.S.C. 1344(h)(1)(C).
As EPA explained in promulgating a
requirement for judicial review in the
section 402 program, the United States
Court of Appeals for the Fourth Circuit
has agreed that ‘‘[t]he comment of an
ordinary citizen carries more weight if
officials know that the citizen has the
power to seek judicial review of any
administrative decision harming him.’’
Amendment to Requirements for
Authorized State Permit Programs
Under Section 402 of the Clean Water
Act, 61 FR 20972 (May 8, 1996),
codified at 40 CFR 123.30, citing Com.
of Virginia v. Browner, 80 F.3d 869, 879
(4th Cir. 1996).
Without the possibility of judicial
review by citizens, public participation
before a State administrative agency
could become less meaningful. See also
33 U.S.C. 1251(e) (‘‘Public participation
in the . . . enforcement of any
regulation, standard, effluent limitation,
plan, or program established by the
Administrator or any State under this
chapter shall be provided for,
encouraged, and assisted by the
Administrator and the States.’’); A
Legislative History of the Water
Pollution Control Act Amendments of
1972, Comm. Print No. 1, 93d Cong., 1st
Sess. at 1490 (‘‘The scrutiny of the
public . . . is extremely important in
insuring . . . a high level of
performance by all levels of government
and discharge sources.’’).
Finally, the proposed approach is
consistent with the CWA’s requirement
that States issue permits that ‘‘apply,
and assure compliance with, any
applicable requirements’’ of section 404,
33 U.S.C. 1344(h)(1)(A)(i); and the
regulatory provision providing that
‘‘[a]ny approved State Program shall, at
all times, be conducted in accordance
with the requirements of the Act and of
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this part.’’ 40 CFR 233.1(e). As citizens
are authorized to challenge the issuance
of section 404 permits when the Federal
Government administers the program,
challenges must also be authorized
when a State has assumed the program
in order to assure compliance with the
applicable requirements of section 404
and to ensure that the State program is
not less stringent than the Federal
program. Permitting authorities are
likely to be particularly careful to
address citizens’ input and ensure that
issued permits comply with CWA
requirements if such permits may be
challenged by such citizens. Therefore,
ensuring that States provide an
opportunity for judicial review helps to
ensure compliance with section 404 and
all requirements of the CWA. Any of the
provisions in 404(g) cited above as
authority for the judicial review
provision would be independently
sufficient to justify finalizing this
provision.
EPA proposed the language that it is
codifying in this rule, except for the
regulatory requirement that Tribes
provide a commensurate form of citizen
recourse for those affected by permitting
decisions. The proposal had also stated
that a State would meet the required
judicial review standard if it allowed an
opportunity for judicial review that is
the same as that available to obtain
judicial review in Federal court of a
federally issued NPDES permit. Further,
the proposal stated that a State would
not meet this standard if it either
narrowly restricted the class of persons
who could challenge the approval or
denial of permits (such as by limiting
standing to people who would suffer
pecuniary injury from the permitting
decision or to people who own property
close to the discharge or receiving
waters) or if the State required the
losing party to pay attorneys’ fees
notwithstanding the merit of its
position. See 88 FR 55326.
A number of commenters expressed
support for the proposed provision.
Some commenters asked that EPA
establish broader or more detailed
limitations on restrictions or
disincentives to judicial review. These
commenters emphasized the importance
of ensuring that the public has access to
courts and discussed the significant
chilling effects of State limitations on
citizen suit challenges, such as feeshifting provisions that make the ‘‘loser
pay’’ (whether in full, in part, or at the
judge’s discretion) and requirements to
exhaust administrative remedies that
can deplete prospective plaintiffs’
resources before they even initiate a
State court challenge. These
commenters asked EPA to prohibit
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certain requirements more clearly,
including any form of fee-shifting and
excessive administrative exhaustion
requirements.
Other commenters expressed
concerns about the proposed rule
provision, stating that it would be a
significant impediment, if not a
complete barrier, to States seeking
assumption. These commenters also
argued that, as a legal matter, nothing in
the CWA authorizes EPA to require
judicial review opportunities for section
404 permits. They stated that while
Congress does provide for judicial
review by any interested person of
EPA’s issuance or denial of section 402
permits pursuant to CWA section
509(b)(1), it is silent with respect to
judicial review of section 404 permits.
This omission, in the commenters’ view,
indicates that Congress intentionally did
not require a heightened level of review
for section 404 permits.
EPA has finalized the requirement
that States must provide for judicial
review of State-issued permits or permit
denials that is sufficient to provide for,
encourage, and assist public
participation in the permitting process.
40 CFR 233.24. The final requirement is
shorter than the proposed requirement
and does not specifically detail various
examples of unacceptable barriers to
judicial review. As noted above, it
simply codifies the substantive corollary
to the existing program description
requirement that States describe their
judicial review procedures. EPA
disagrees with the commenters that
stated EPA lacks authority to impose
this requirement. As discussed above,
the final requirement is consistent with
the CWA’s requirements for public
participation in the permitting process
and that State programs comply with all
requirements of section 404, as well as
the regulatory requirement that State
programs be no less stringent than the
Federal section 404 program. EPA
expects that States will have the
authority and experience to implement
this requirement because it is similar to
the section 402 requirement that States
authorize judicial review.
EPA removed from the final rule the
examples of the ways in which States
can demonstrate that they provide for
judicial review of State-issued permits
or permit denials that is sufficient to
provide for, encourage, and assist public
participation in the permitting process.
Commenters made clear that States can
either facilitate or impede judicial
review of State-issued permits in a wide
variety of ways. Specifically listing just
a few of those examples in the
regulations would be under-inclusive,
but a longer and more prescriptive list
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risks intruding into the operations of
State courts and State civil procedure,
areas traditionally subject to State
control. EPA will therefore evaluate
State judicial review provisions as part
of program submissions on a case-bycase basis to determine whether they
provide for judicial review of Stateissued permits or permit denials that is
sufficient to provide for, encourage, and
assist public participation in the
permitting process. Finally, in omitting
the explicit requirement that States
provide judicial review opportunities
commensurate with those available for
section 402 permits under CWA section
509(b), the provision no longer
implicates the commenters’ argument
that it conflicts with Congress’
intentional omission of section 404
permits from the scope of section 509(b)
review.
EPA would also look to the State
Attorney General’s statement to certify
that the laws of the State meet the
requirements of the regulation. See 40
CFR 233.12. States with expansive
judicial review opportunities, such as
those that allow standing to challenge
permits on the part of interested citizens
and citizen groups, and that do not
require parties who lose lawsuits
brought in good faith to pay other
parties’ legal fees, should meet the
regulatory judicial review requirement.
As with the section 402 regulations, the
provision applies to final actions with
respect to modification, revocation and
reissuance, and termination of permits,
as well as the initial approval or denial
of permits.
The final rule approach for the section
404 State program regulations
effectuates EPA’s policy interest in
deferring to State administration of
authorized section 404 programs in the
same way that EPA defers to State
administration of section 402 programs.
See 61 FR 20974 (May 8, 1996). EPA
supports State assumption of the section
404 program and is just as committed to
ensuring robust opportunity for citizen
participation in that program. In
authorizing State programs to act in lieu
of the Federal Government, EPA must
ensure that the implementation of the
State program will be procedurally fair
and consistent with the intent of the
CWA. This rule provides additional
assurance of State program adequacy
and fairness by ensuring opportunities
for judicial review.
In the proposed rule, EPA stated that
the judicial review requirement did not
apply to Tribes and did not include any
requirement relevant to Tribes in the
regulatory text. The preamble to the
proposed rule explained that Tribes
would need to provide appropriate
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recourse for citizens seeking to
challenge Tribal permitting actions. One
commenter requested clarity on the type
of recourse Tribes would need to
provide. A few commenters raised
concerns that EPA was arbitrarily
treating Tribes differently from States.
These commenters stated that EPA’s
concern that requiring Tribes to waive
sovereign immunity to judicial review
of permitting decisions would
disincentivize Tribal assumption
applies equally to States. One
commenter argued that disappointed
permittees or other affected persons
would have no recourse from unlawful
permitting actions on the part of
assuming Tribes if EPA did not require
some form of recourse.
In response to these commenters, EPA
is codifying the requirement that Tribes
must provide a commensurate level of
citizen recourse to the judicial review
opportunities States must provide for
those seeking to challenge permitting
actions. Consistent with the requirement
applicable to States, it should be
sufficient to provide for, encourage, and
assist public participation in the
permitting process. EPA is not
specifying precisely what form this
recourse must take, given the diverse
forms that Tribal decision-making
entities may take. If a Tribe has a
judicial system analogous to a State
judiciary, the Tribe must provide for
judicial review of section 404 permits.
If, instead, a Tribe uses another type of
decision-making entity to address
disputes, that entity must be able to hear
permit challenges. Requiring Tribes to
provide for citizen recourse
commensurate with the judicial review
opportunities required of States
provides more clarity than the proposal
offered and ensures that persons
affected by Tribal permitting actions
will have recourse.
EPA’s decision not to specifically
require all Tribal section 404 programs
to provide for judicial review of Tribal
permitting actions is consistent with
EPA’s approach in the section 402
judicial review provision that ‘‘[t]his
requirement does not apply to Indian
Tribes’’ as well as EPA’s decision not to
require Tribes to provide for judicial
review in the same manner as States for
purposes of the Clean Air Act Title V
Operating Permits Program. See 40 CFR
123.30; Indian Tribes: Air Quality
Planning and Management, 63 FR 7254,
7261–62 (February 12, 1998); 40 CFR
49.4(p). While EPA does not, as a
general matter, think that Tribal
procedures should be less rigorous with
respect to public participation than
State procedures, a specific requirement
that Tribes provide judicial review as
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the sole option for citizen recourse
would raise issues regarding Federal
Indian policy and law.
In promulgating the Clean Air Act
Tribal rule, EPA recognized that while
many Tribes have distinct judicial
systems analogous to State judicial
systems, some well-qualified Tribes may
not have a distinct judiciary and may
use non-judicial mechanisms for citizen
recourse. See 63 FR 7261–62 (February
12, 1998). EPA considered that requiring
Tribes to waive sovereign immunity to
judicial review of permitting decisions
would be a significant disincentive to
Tribes to assume the Clean Air Act Title
V program. See id. EPA recognizes the
importance of encouraging Tribal
implementation of environmental
programs and avoiding creating
unnecessary barriers to assumption. In
this rule, EPA seeks to strike a balance
by ensuring that citizen recourse is
available in any approved Tribal section
404 program commensurate with the
judicial review opportunities required
of State programs, while not restricting
qualified Tribes to a single judicial
option that may not fit existing Tribal
governmental structures. EPA would
consider whether commensurate citizen
recourse has been provided in the
context of reviewing Tribal program
applications.
Finally, EPA encourages Tribes and
States to establish an administrative
process for the review and appeal of
permit decisions pursuant to their
approved section 404 programs and to
describe any such process in the
program description. These procedures
can conserve resources on the part of
permittees, stakeholders, and permitting
agencies, by resolving permitting
disagreements without the need for
litigation in court. EPA is not requiring
or prohibiting any specific
administrative review procedures,
however, because the Agency recognizes
that existing Tribal and State
administrative procedures may differ
across the country.
D. Compliance Evaluation and
Enforcement
1. Overview and What the Agency Is
Finalizing
The CWA provides for criminal
liability based on simple negligence.
EPA has determined that the prior
regulations describing the mens rea
applicable to Tribal and State programs
at 40 CFR 123.27(a)(3)(ii) and 40 CFR
233.41(a)(3)(ii) do not clearly articulate
the best interpretation of the statute.
After reviewing public comments, EPA
is revising its criminal enforcement
requirements in 40 CFR 123.27 and 40
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CFR 233.41 to provide that Tribes and
States that administer the CWA section
402 NPDES permitting program or the
CWA section 404 dredged and fill
permitting program, or that seek
approval to do so, are required to
authorize prosecution based on a mens
rea, or criminal intent, of any form of
negligence, which may include gross
negligence.
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2. Summary of Final Rule Rationale and
Public Comment
The prior regulations describing the
mens rea applicable to Tribal and State
programs at 40 CFR 123.27(a)(3)(ii) and
40 CFR 233.41(a)(3)(ii) do not clearly
articulate the best interpretation of the
statute. EPA interprets the CWA to
authorize the approval of Tribal or State
section 402 or 404 programs that allow
for prosecution based on a mens rea of
any form of negligence, including gross
negligence. These regulatory revisions
more clearly articulate this
interpretation.
These amendments provide clarity for
Tribes and States that have been
approved to administer or seek to obtain
EPA’s approval to administer their own
section 402 or 404 programs under the
CWA. EPA anticipates that States that
already administer these CWA programs
will not need to change their legal
authority. Instead, these regulatory
clarifications will generally assure
approved States that existing negligence
mens rea authorities comport with the
mens rea applicable to Tribal and State
CWA sections 402 and 404 programs.
Additionally, these revisions provide
those Tribes and States seeking to
administer CWA sections 402 and 404
programs with clarity regarding the legal
authorities required for approval by
EPA.
a. Background
The CWA provides that Tribes and
States seeking approval for a permitting
program under CWA section 402 or
CWA section 404 must demonstrate
adequate authority ‘‘[t]o abate violations
of the permit or the permit program,
including civil and criminal penalties
and other ways and means of
enforcement.’’ 33 U.S.C. 1342(b)(7) and
1344(h)(1)(G). EPA’s regulations
currently provide that a Tribal or State
agency administering a program under
CWA section 402 must provide for
criminal fines to be levied ‘‘against any
person who willfully or negligently
violates any applicable standards or
limitations; any NPDES permit
condition; or any NPDES filing
requirement.’’ 40 CFR 123.27(a)(3)(ii).
Similarly, pursuant to EPA’s current
regulations any Tribal or State agency
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administering a section 404 program
must have authority to seek criminal
fines against any person who ‘‘willfully
or with criminal negligence discharges
dredged or fill material without a
required permit or violates any permit
condition issued in section 404 . . . .’’
40 CFR 233.41(a)(3)(ii).42
The regulations implementing both
statutory programs also provide that the
‘‘burden of proof and degree of
knowledge or intent required under
State law for establishing violations
under paragraph (a)(3) of this section,
shall be no greater than the burden of
proof or degree of knowledge or intent
EPA must bear when it brings an action
under the Act.’’ 40 CFR 123.27(b)(2); 40
CFR 233.41(b)(2). The implementing
regulations for CWA section 402 include
a note, not present in the CWA section
404 implementing regulations, which
states, ‘‘[f]or example, this requirement
is not met if State law includes mental
state as an element of proof for civil
violations.’’ 40 CFR 123.27(b)(2).
In contrast to the statutory language of
CWA sections 402 and 404, section
309(c), the general criminal enforcement
section of the CWA specifically
authorizes misdemeanor criminal
liability for violations of federally
issued or State-issued section 402 and
404 permits in subsection (c)(1) and a
range of penalties for ‘‘[n]egligent
violations’’ of specified provisions. It
also authorizes felony liability and a
higher range of penalties for ‘‘knowing
violations’’ of the CWA in subsection
(c)(2). Beginning in 1999, four Federal
courts of appeal determined that
criminal negligence under CWA section
309(c)(1) is ‘‘ordinary negligence’’ rather
than gross negligence or any other form
of negligence. U.S. v. Hanousek, 176
F.3d 1116, 1121 (9th Cir. 1999); U.S. v.
Ortiz, 427 F.3d 1278, 1282 (10th Cir.
2005); U.S. v. Pruett, 681 F.3d 232, 242
(5th Cir. 2012); U.S. v. Maury, 695 F.3d
227, 259 (3d Cir. 2012).43 These courts
42 Under the section 402 program, EPA’s
regulations provide that ‘‘[t]o the extent that an
Indian Tribe is precluded from asserting criminal
enforcement authority as required under § 123.27,
the Federal Government will exercise primary
criminal enforcement responsibility. The Tribe,
with the EPA Region, shall develop a procedure by
which the Tribal agency will refer potential
criminal violations to the Regional Administrator,
as agreed to by the parties, in an appropriate and
timely manner. This procedure shall encompass all
circumstances in which the Tribe is incapable of
exercising the enforcement requirements of
§ 123.27. This agreement shall be incorporated into
a joint or separate Memorandum of Agreement with
the EPA Region, as appropriate.’’ 40 CFR 123.34.
The section 404 regulations contain a nearly
identical provision at 40 CFR 233.41(f).
43 Simple negligence is a failure to use care as a
reasonably prudent and careful person would use
under similar circumstances. As relevant here, it is
used interchangeably with ‘‘ordinary negligence.’’
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did not address whether this provision
implicates Tribal or State programs
administering CWA section 402 or 404
programs.
On September 10, 2020, the Ninth
Circuit Court of Appeals issued an
unpublished decision that granted in
part and denied in part a petition by the
Idaho Conservation League for review of
EPA’s approval of Idaho’s NPDES
permitting program. Idaho Conservation
League v. U.S. EPA, 820 Fed. Appx. 627
(9th Cir. 2020). The League challenged
EPA’s approval of Idaho’s program in
part on the grounds that Idaho lacks
authority to bring enforcement actions
based on a simple negligence mens rea,
which the League alleged EPA’s
regulations require. Relying on the
Ninth Circuit case law noted above,
which holds that EPA’s criminal
enforcement actions are subject to a
simple negligence standard, the court
determined that EPA violated its
regulations in approving a program
authorizing a mens rea of gross
negligence because it is ‘‘ ‘greater than
the burden of proof or degree of
knowledge or intent EPA must provide
when it brings an action . . .’ 40 CFR
123.27(b)(2).’’ While the court
recognized that ‘‘a State program need
not mirror the burden of proof and
degree of knowledge or intent EPA must
meet to bring an enforcement action,’’
citing EPA’s Consolidated Permit
Regulations, 45 FR 33290, 33382 (May
19, 1980), the court nevertheless held
that EPA’s current regulations at 40 CFR
123.27(b)(2) require a ‘‘state plan to
employ a mens rea standard ‘no greater
than’ simple negligence, such as strict
liability or simple negligence.’’ Idaho
Conservation League, 820 Fed. Appx. at
628.
b. Statutory and Regulatory Framework
The general enforcement provisions of
the CWA section 309(c)(1), 33 U.S.C.
1319(c)(1), as interpreted by the courts,
authorize criminal prosecutions of
violations of section 402 and 404
permits committed with a simple
negligence mens rea. However, the
CWA does not state that Tribal or State
section 402 or 404 programs must
demonstrate such authority as a
criterion for program approval to Tribal
or State. The CWA provides a list of the
authorities Tribes and States must have
in order to qualify for section 402 or 404
See, e.g., U.S. v. Maury, 695 F.3d 227, 260 (‘‘we are
now confronted with a slowly expanding body of
law from our sister circuits which indicates that
simple or ordinary negligence may be the
appropriate standard of mens rea under
§ 1319(c)(1).’’) Gross negligence is sometimes
defined as the extreme indifference to or reckless
disregard for the safety of others.
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program approval, respectively, and
authority to prosecute criminal
violations committed with a simple
negligence mens rea is not on either list.
Rather, with respect to enforcement
authorities, the CWA requires that EPA
‘‘shall approve’’ a Tribe or State’s
submission to administer a section 402
or 404 program if it demonstrates that it
has authority to ‘‘abate violations of the
permit or the permit program, including
civil and criminal penalties and other
ways and means of enforcement.’’ 33
U.S.C. 1342(b)(7); 1344(h)(1)(G). For the
reasons described herein, EPA has
concluded that the best reading of these
statutory provisions is that they do not
establish specific mens rea requirements
for Tribal and State section 404
programs.
In addressing the criminal
enforcement requirements for State
programs, Congress did not require
Tribes and States to have identical
enforcement authority to EPA’s.
Congress did not use the words ‘‘all
applicable,’’ ‘‘same,’’ or any phrase
specific to any mens rea standard, let
alone the Federal standard, as it did in
other parts of CWA sections 404(h) or
402(b). See 33 U.S.C. 1344(h), 1342(b).
When ‘‘Congress includes particular
language in one section of a statute but
omits it in another section of the same
Act, it is generally presumed that
Congress acts intentionally and
purposely in the disparate inclusion or
exclusion.’’ Sebelius v. Cloer, 569 U.S.
369, 378 (2013) (internal quotations
omitted). In contrast to the broad
authority that CWA sections
404(h)(1)(G) and 402(b)(7) provide to
determine whether Tribes and States
have demonstrated adequate authority
to abate violations, other aspects of
Tribal and State programs are explicitly
required to have authority that is
equivalent to or more stringent than
EPA’s authority.
For example, States must have the
authority ‘‘[t]o inspect, monitor, enter,
and require reports to at least the same
extent as required in section 1318 of this
title.’’ 33 U.S.C. 1344(h)(1)(B);
1342(b)(2)(B). Similarly, CWA section
404(h)(1)(B) requires Tribe- or Stateissued permits to ‘‘apply, and assure
compliance with, any applicable
requirements of this section, including,
but not limited to, the guidelines
established under subsection (b)(1) of
this section, and sections 1317 and 1343
of this title.’’ 33 U.S.C. 1344(h)(1)(A)(i);
and CWA section 402(b)(1)(A) requires
Tribes and States to issue permits in
compliance with ‘‘sections 1311, 1312,
1316, 1317, and 1343 of this title.’’ 33
U.S.C. 1342(b)(1)(A). By contrast, the
more general language used to require
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Tribes and States to demonstrate
adequate authority to abate violations
indicates that Congress intended to
allow for some flexibility in EPA’s
ability to approve Tribal and State
approaches to certain aspects of
criminal enforcement. See 33 U.S.C.
1342 (b)(7). EPA proposed to clarify that
CWA sections 402 and 404 allow for
approved Tribal and State programs to
have a somewhat different approach to
criminal enforcement than the Federal
Government’s approach, namely, that
Tribal and State programs do not need
authority to prosecute based on a simple
negligence mens rea. However, the
proposed approach required that Tribes
and States be able to implement the text
of section 309(c), requiring authority to
prosecute crimes committed with some
form of negligence.
Some commenters on the proposed
rule agreed with EPA’s interpretation of
the statute. Other commenters
disagreed, arguing that the simple
negligence criminal prosecution
authority in CWA section 309(c) applies
to Tribal and State programs. These
commenters stated that CWA section
309(c) establishes misdemeanor
criminal liability for anyone who
violates a CWA section 402 or 404
permit issued by EPA or a State with a
mens rea of simple negligence.
According to the commenters, nothing
in CWA section 309 limits this authority
to EPA as opposed to State programs.
EPA disagrees with commenters’
arguments that the CWA does not
authorize EPA to approve Tribal or State
programs that lack authority to
prosecute criminal violations committed
with a simple negligence mens rea.
While EPA acknowledges that CWA
section 309(c)(1) does mention negligent
violations of State permits, that
provision provides authority for Federal
prosecutions, including enforcement of
State permit requirements; it does not
require or address State or Tribal
enforcement programs or the standard
for approval or assumption for Tribal
and State programs. Moreover, when
section 309(c)(1) is read alongside
sections 402(b) and 404(h)(1), which set
forth the requirements for Tribal and
State programs, the more specific Tribal
and State requirements in sections
402(b) and 404(h)(1) prevail over the
CWA’s general enforcement provision in
section 309(c). See RadLAX Gateway
Hotel, LLC v. Amalgamated Bank, 566
U.S. 639, 645 (2012) (‘‘[I]t is a
commonplace of statutory construction
that the specific governs the general.’’)
(internal citations omitted.) As
described above, the general language
used to describe the criminal
enforcement authorities Tribe and States
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must have indicates Congressional
intent to allow greater flexibility for
Tribes and States in the criminal
enforcement context than they have, for
example, in permitting and inspections.
This provides appropriate ‘‘respect’’ for
‘‘state autonomy in the criminal sector.’’
NRDC v. U.S. EPA, 859 F.2d 156, 180–
181 (D.C. Cir. 1988).
Some commenters argued that
executive branch agencies may not
modify criminal intent standards absent
express Congressional authorization.
Modifying Congressionally authorized
criminal liability standards, in the
commenters’ view, is not a power left to
the executive branch. EPA disagrees
with the premise of this comment; as
discussed above, Congress did not
mandate that Tribes and States have
authority to prosecute criminal
violations committed with a simple
negligence mens rea, so this rule does
not modify Congressionally established
standards, which continue to apply to
Federal enforcement.
EPA’s interpretation that it has the
flexibility to approve Tribal or State
programs with the authority to
prosecute violations committed with a
mens rea of any form of negligence is
consistent with case law. In NRDC v.
U.S. EPA, the petitioner challenged the
validity of 40 CFR 123.27(a)(3) on the
theory that it did not require States to
have the same maximum criminal
penalties as the Federal program. 859
F.2d 156 (D.C. Cir. 1988). The court
reasoned that the petitioner’s argument
involved a ‘‘logical infirmity’’ because it
‘‘presume[d] an unexpressed
congressional intent that state
requirements must mirror the Federal
ones,’’ which is ‘‘inconsistent with the
elements of the statutory scheme
limiting operation of the provisions to
enforcement efforts at the national level
and explicitly empowering the
Administrator to set the prerequisites
for state plans.’’ Id. at 180 (discussing 33
U.S.C. 1314(i)(2)(C)). The D.C. Circuit
recognized EPA’s ‘‘broad [ ] discretion to
respect state autonomy in the criminal
sector’’ and that the regulations ‘‘reflect
the balancing of uniformity and state
autonomy contemplated by the Act.’’ Id.
at 180–81. The court declined to
‘‘disturb this ‘reasonable
accommodation of manifestly
competing interests,’ ’’ and upheld the
agency’s penalty regulations. Id. at 181
(internal citations omitted).
EPA’s interpretation is also consistent
with the Ninth Circuit’s decision in
Akiak Native Community v. EPA, where
that court declined to require that States
have authority to impose administrative
penalties identical to Federal authority.
See Akiak Native Community, 625 F.3d
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1162, 1171–72 (9th Cir. 2010). In that
case, the petitioner argued that the State
of Alaska did not have adequate
authority to abate violations because the
State had to initiate a legal proceeding
to assess civil penalties, whereas EPA
could do so administratively. Id. at
1171. The Court held that because
‘‘[t]here is no requirement in the CWA
. . . that state officials have the
authority to impose an administrative
penalty’’ and ‘‘[t]he language of the
statute says nothing about
administrative penalties,’’ ‘‘there is no
reason to conclude that Alaska lacks
adequate enforcement authorities.’’ Id.
1171–72.
Some commenters argued that the
NRDC and Akiak Native Comm’ty cases
are inapposite. Because the NRDC case
involved penalties and Akiak Native
Comm’ty was about enforcement
mechanisms, they argue neither of these
cases bears on criminal intent standards.
Commenters also stated that NRDC is
distinguishable because the court relied
on an express Congressional
amendment authorizing EPA to allow
for certain Tribal and State program
departures from CWA statutory civil
enforcement monetary penalties, and
the CWA contains no such amendment
regarding mens rea. In their view, the
absence of a similar Congressional
authorization for the Administrator to
depart from criminal liability standards
applicable to Tribal and State programs
shows that Congress did not grant the
Administrator such authority.
Commenters also noted that NRDC
decision ignored CWA section 402(a)(3),
which provides that EPA’s permit
program ‘‘shall be subject to the same
terms, conditions, and requirements as
apply to a State permit program and
permits issued thereunder under
subsection (b) of this section.’’ 33 U.S.C.
1342(a)(3). These commenters view this
language as prohibiting Tribes or States
from implementing a program that is
any less stringent than a federally run
program, including a program lacking
authority to prosecute criminal
violations committed with a simple
negligence mens rea. Commenters state
that the fact that neither the plaintiffs in
that case nor D.C. Circuit considered
section 402(a)(3) renders the NRDC
precedent less persuasive.
Finally, commenters stated that the
court in NRDC emphasized the
importance of State programs being
‘‘administered in such a manner that
. . . [approval will] provide a much
more effective program’’ than the
Federal Government would otherwise
administer. 859 F.2d at 175.
Commenters emphasized that this
language reflects the court’s view that
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Congress wanted to create more
protective State programs.
EPA disagrees with the commenters
stating that NRDC and Akiak Native
Comm’ty do not support the Agency’s
view of its authority. These cases hold
that EPA may approve State programs if
these programs lack certain enforcement
authorities that the CWA provides to
EPA; this precedent is highly germane
to these revisions, even if the precise
authorities at issue in those cases were
not criminal intent standards. EPA also
disagrees that NRDC is distinguishable
because it did not address CWA section
402(a)(3). The fact that neither the
plaintiffs nor the court addressed
section 402(a)(3) may merely indicate
that they did not find that provision
relevant. Nor does EPA. Section
402(a)(3) applies to the terms,
conditions, requirements, and permits
of a State permit program; the criminal
negligence mens rea that States are
authorized to prosecute is none of these.
Section 402(a)(3) is most clearly read to
address the permitting process, not the
state of mind of criminal violators.
Moreover, clearly this provision would
not implicate section 404 permits.
As to the 1987 amendments to the
CWA, which noted that Tribal and State
programs do not need to have the same
maximum allowable penalty amount as
EPA (see Water Quality Act of 1987,
Title III, § 313(b)(2), Public Law 100–4,
101 Stat. 45), the D.C. Circuit in NRDC
characterized the amendment as simply
‘‘confirmation of the broad authority the
Administrator already enjoyed in
crafting state program requirements.’’
NRDC, 859 F. 2d at 180 (emphasis
added). In other words, this amendment
is additional evidence in support of the
Court’s interpretation of the statutory
structure that, regardless of the
amendment, allows EPA certain
flexibility in determining which of its
criminal enforcement authorities Tribes
and States must adopt if they wish to
administer CWA permitting programs.
Finally, EPA agrees with commenters
and the D.C. Circuit in NRDC about the
importance of effective and protective
State programs. In this rule EPA is
maintaining and strengthening many
provisions to help achieve this goal.
Specifically with respect to criminal
enforcement, EPA views the other
requirements for Tribal and State
enforcement authority in 40 CFR 123.26,
123.27 and 233.41 as sufficient to
ensure that Tribes and States operate
compliance and enforcement programs
that satisfy the language and purpose of
CWA 402(b)(7) and 404(h)(1)(G) to
‘‘abate violations of the permit or the
permit program, including civil and
criminal penalties and other ways and
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means of enforcement.’’ These other
provisions require, among other things,
that a Tribe or State must maintain a
program designed to identify persons
subject to regulation who have failed to
obtain a permit or to comply with
permit conditions, engage in inspections
and information gathering, and have the
authority to sue to enjoin or seek
penalties for violations of sections 402
and 404. As discussed in section IV.B.3
of this preamble, EPA’s modifications to
program assumption requirements
would further buttress the requirements
of 40 CFR 233.41.
EPA has previously argued that Tribes
and States do not need authority to
prosecute criminal violations based on a
simple negligence mens rea, including
in Idaho Conservation League. Yet to
the extent EPA’s interpretation is
viewed as different from any earlier
interpretations of CWA sections 402 and
404 and implementing regulations, EPA
has ample authority to change its
interpretation to adopt the best reading
of the statute. See Encino Motorcars,
LLC v. Navarro, 136 S. Ct. 2117, 2125
(2016) (‘‘[A]gencies are free to change
their existing policies as long as they
provide a reasoned explanation for the
change.’’) (citations omitted).
Though under this rule EPA is not
requiring Tribes or States to have the
same criminal intent standard that
courts have interpreted EPA to have, the
Tribal or State standard would still be
based on the term ‘‘negligence’’ in the
text of CWA section 309(c). Allowing
Tribes or States flexibility in the degree
of negligence for which they are
authorized to bring criminal cases
balances the CWA’s priorities of
allowing for Tribal or State autonomy
with adherence to the purposes of the
Act. As noted above, neither CWA
section 402(b)(7) nor CWA section
404(h)(1)(G) requires States to abate
violations in the same manner as
required under CWA section 309(c). The
absence of any citation to CWA section
309(c) in CWA sections 402(b) and
404(h) indicates that some degree of
variability may be permitted between
Federal and Tribal or State approaches
to criminal enforcement.
This variability does not detract from
the obligation for Tribes and States to
operate meaningful programs to abate
permit program violations, including
through penalties and other ways and
means of criminal enforcement, and
consistent with the regulatory
requirements for Tribal and State
criminal enforcement authority. See 33
U.S.C. 1342(b)(7), 1344(h)(1)(G); 40 CFR
233.41. Furthermore, Tribes and States
may certainly continue to authorize
criminal prosecutions based on a simple
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negligence mens rea. Tribes or States
with that authority may describe it in
their program submissions to
demonstrate the adequacy of their
criminal enforcement programs.
This regulatory clarification reflects
EPA’s experience in approving and
overseeing CWA State programs for over
thirty years. Many States administering
or seeking to administer the programs
do not currently have authority to
prosecute based on a simple negligence
mens rea, and indeed, they may have
statutory or other legal barriers to such
standards. EPA is unaware of any
concrete evidence indicating that the
absence of a simple negligence mens rea
for criminal violations has served as a
bar to effective State criminal
enforcement programs, and the
requirement to have such a standard
could dissuade Tribes and States from
seeking to administer these programs in
the future or potentially motivate States
to return their approved programs to
EPA. Clarifying that Tribes and States
do not need authority to prosecute
based on a simple negligence mens rea
in their criminal enforcement programs
therefore advances the purposes of CWA
sections 402(b) and 404(g) to balance the
need for uniformity with Tribal and
State autonomy, see NRDC, 859 F.2d at
181 (D.C. Cir. 1988), and to encourage
Tribes and States to seek to administer
the CWA section 402 or 404 programs
consistent with section 101(b) of the
statute.
This rule does not change the
standard applicable to EPA’s criminal
enforcement of the CWA. Under CWA
section 309, EPA retains its civil and
criminal enforcement authority,
including where Tribes and States
administer permit programs.
Notwithstanding Tribe or State mens rea
authorities, Federal prosecutions are
governed by the mens rea standards that
Congress wrote into the statute in 1987,
including that misdemeanor penalties
apply to violations resulting from
simple negligence and that felony
penalties apply to violations resulting
from knowing conduct.
Consistent with the CWA’s
requirement that Tribes and States
administering CWA sections 402 or 404
permitting programs have the authority
to abate civil and criminal violations,
EPA is adding language to 40 CFR
123.27(a) and 233.41(a)(3) indicating
that Tribes and States must have the
authority to ‘‘establish violations,’’ as
well as ‘‘to assess or sue to recover civil
penalties and to seek criminal
penalties,’’ which these provisions
already state. This new language simply
confirms EPA’s interpretation of the
effect of its current regulations. EPA is
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also removing the term ‘‘appropriate’’
from the current references to the degree
of knowledge or intent necessary to
provide when bringing an action under
the ‘‘appropriate Act’’ from the CWA
sections 402 and 404 regulations, as
these regulations only refer to actions
under the CWA and no other statute.
Therefore, the term ‘‘appropriate’’ is
unnecessary. Finally, in 40 CFR
123.27(a)(3) and 233.41(a)(3), which
currently require Tribes and States to
have the authority to assess or sue to
recover ‘‘civil penalties and to seek
criminal remedies,’’ EPA is replacing
the word ‘‘remedies’’ with ‘‘penalties,’’
as ‘‘penalties’’ is a more precise
description of the type of relief sought
in criminal enforcement actions. None
of the changes described in this
paragraph are intended to change the
substantive effect of the regulations.
E. Federal Oversight
1. Dispute Resolution
a. Overview and What the Agency Is
Finalizing
The Agency recognizes that Tribes or
States seeking to assume administration
of the section 404 permitting program
may encounter disputes or
disagreements when developing a
program or administering an approved
section 404 program. For example,
Tribes and States could encounter
disputes with permittees or other
affected parties regarding permitting
decisions, as well as disagreements with
Federal agencies that could arise in the
assumption process or program
implementation concerning issues such
as the appropriate permitting authority
or conditions to avoid or minimize
impacts to historic properties,
threatened or endangered species, or
critical habitat. Specifically, such
disputes may occur during the
development of the retained waters
description, development of a transfer
plan for permits currently under review
by the Corps, through efforts to address
endangered species and historic
properties during permit review, and in
determining whether a discharge affects
another State, as well as in other
situations. However, while the prior
regulations provided several
mechanisms for resolving certain types
of disagreements (e.g., addressing EPA’s
comments, conditions, or objections to
potential Tribal or State permits), the
prior regulations did not provide a
general dispute resolution mechanism
or clarify EPA’s role in such disputes.
Several Tribes and States have
requested that EPA help resolve
disputes encountered between
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themselves and other States, Tribes, or
the Federal Government.
The Agency proposed to add a general
provision to the purpose and scope
section at section 233.1 that would
clarify EPA’s role in facilitating the
resolution of potential disputes between
the Federal agencies and the Tribe or
State seeking to assume and/or
administer a section 404 program. 88 FR
55323. The proposed rule would also
provide for resolution or elevation
procedures to be specifically articulated
in the Tribal or State Memoranda of
Agreement or on a case-by-case basis.
The provision reaffirms, however, that
any dispute resolution or elevation
process described in the regulations or
in the Tribal or State Memoranda of
Agreement must be followed. After
reviewing public comments, the Agency
is finalizing the dispute resolution
provision as proposed at section
233.1(f).
b. Summary of Final Rule Rationale and
Public Comment.
The Agency sees facilitating
resolution of disputes as critical to
establishing and sustaining viable Tribal
and State section 404 permitting
programs. EPA’s engagement as a third
party in such discussions can help to
resolve impasses and ensure the
program is administered consistent with
CWA requirements. In this rule, EPA
seeks to elucidate its role in resolving
such disputes. Rather than attempt to
articulate in the regulations all potential
areas where a dispute may arise, EPA is
adding a general provision to section
233.1 to affirm that EPA may facilitate
resolution to potential disputes between
the Tribe or State and Federal agencies
and provide for resolution or elevation
procedures to be specifically articulated
in the Tribal or State Memoranda of
Agreement or resolved on a case-by-case
basis through discussions convened by
EPA. EPA views this clarification as
consistent with its program approval
and oversight authority in CWA sections
404(h)–(j).
Commenters generally supported this
clarification of EPA’s role in assisting in
the resolution of disputes. Some
commenters raised concerns that EPA
does not articulate any specific
‘‘mechanism or final authority,’’ and
asked that EPA articulate specific
procedures to be included in the
Memorandum of Agreement. Another
commenter generally encouraged
flexibility. One commenter objected to
the proposal, arguing that it is not
needed. After reviewing public
comments, EPA is finalizing the general
dispute resolution as proposed, as it
provides requested clarity on EPA’s role
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while maintaining flexibility in the form
such assistance may take. EPA is
declining to define a specific
mechanism or procedures for dispute
resolution to accommodate differing
Tribal and State program structures and
account for the individual
circumstances and complexities of a
potential disagreement.
Flexibility is also important in light of
the various scenarios in which EPA may
help facilitate resolution of disputes that
may arise between a Tribe or State and
other Tribes or States or Federal
agencies as they seek to assume and
administer a section 404 permit
program. For example, EPA may assist
in resolving issues raised about the
scope of retained waters or situations
where the Tribe or State may disagree
with the Corps about whether a
proposed project would result in
discharges to assumed or retained
waters. As EPA is responsible for
approving the jurisdictional scope of a
Tribal or State section 404 program,
EPA can help resolve such disputes.
Potential disagreements could also arise
in other aspects of section 404
programs, including proper approaches
to joint project permitting,
administration of a compensatory
mitigation program (such as mitigation
banking or in-lieu fee programs), the
determination as to whether a particular
permit application implicates a
discharge into waters of the United
States, and program conditions to avoid
or minimize impacts to threatened or
endangered federally listed species or
historic properties.
Nothing in this new dispute
resolution provision alters existing
provisions addressing the Agency’s
review of and objection to State permits
located at section 233.50. Congress
authorized EPA to serve an oversight
role for Tribal and State section 404
programs. EPA’s authority encompasses
the coordination of Federal comments
on draft Tribal or State-issued permits
and the ability to review, comment on,
or object to these draft permits. 40 CFR
233.50. In this role, EPA, as a practical
matter, works to resolve differences
between Tribes or States and Federal
agencies, particularly when reviewing
draft permits. The regulations also
establish processes whereby a Tribe or
State may address EPA’s comments,
conditions, or objections to potential
Tribal or State permits. Id.
2. Withdrawal Provisions
a. Overview and What the Agency Is
Finalizing
Section 404(i) provides for EPA to
withdraw assumed programs that are
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not administered in accordance with the
requirements of the Act. 33 U.S.C.
1344(i). The prior regulations,
promulgated in 1992, set out a formal
adjudicatory process for the withdrawal
proceedings. The Agency proposed to
simplify the process used by the Agency
when withdrawing an assumed section
404 program from a previously
authorized Tribe or State. 88 FR 55310.
The proposed process at section 233.53
provided that if the Regional
Administrator finds that a Tribe or State
is not administering the assumed
program consistent with the
requirements of the CWA and 40 CFR
part 233, then the Regional
Administrator shall inform the Tribe or
State as to the alleged noncompliance
and give the Tribe or State 30 days to
demonstrate compliance. If compliance
is demonstrated within those 30 days,
then the Regional Administrator will so
notify the Tribe or State and take no
further action. If the Tribe or State fails
to adequately demonstrate compliance
within 30 days, the EPA Administrator
will schedule a public hearing to
discuss withdrawal of the Tribal or State
program. Notice of the hearing will be
widely disseminated and will identify
the Administrator’s concerns. The
hearing will be held no less than 30
days and no more than 60 days after
publication of the notice of the hearing
and all interested parties will have the
opportunity to make written or oral
presentations. If, after the hearing, the
Administrator finds that the Tribe or
State is not in compliance, the
Administrator will notify the Tribe or
State of the specific deficiencies in the
Tribal or State program and the
necessary remedial actions. The Tribe or
State will have 90 days to carry out the
required remedial actions to return to
compliance or the Administrator will
withdraw program approval. If the Tribe
or State completes the remedial action
within the allotted time, or EPA
concludes after the hearing that the
Tribe or State is in compliance, the
Tribe or State will be notified and the
withdrawal proceeding concluded.
Where the Administrator determines
that the assumed program should be
withdrawn, that decision will be
published in the Federal Register, the
Corps will resume permit decisionmaking under section 404 in all waters
of the United States in the affected Tribe
or State, and any provision in the CFR
addressing that Tribe’s or State’s
assumption will be rescinded.
After reviewing public comments, the
Agency is finalizing the approach as
proposed, with one revision to require
EPA to decide whether to proceed with
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withdrawal within 90 days after the
conclusion of the hearing process. This
final rule approach replaces the
adjudicatory hearing process with a
public notice and hearing process
modeled on the procedures for
withdrawal of the Underground
Injection Control program as discussed
below.
b. Summary of Final Rule Rationale and
Public Comments
The previous section 404 Tribal and
State program regulations, promulgated
in 1992, set out a formal adjudicatory
process for the withdrawal proceedings.
This formal adjudication process is not
required by the statute and its length
and complexity impose an unnecessary
resource burden and other challenges
for the Agency, Tribes and States, and
stakeholders. The Agency proposed a
streamlined process that is both easier
to understand and to administer and
encourages participation by interested
parties. The process is modeled on the
withdrawal procedures for Tribal and
State Underground Injection Control
programs at 40 CFR 145.34 and revised
to accommodate the requirements of
section 404. EPA views the
Underground Injection Control
program’s approach as more transparent
and efficient than the prior section 404
program withdrawal procedures.
EPA requested comments on all
aspects of the revision. Multiple
commenters supported the proposed
approach as providing a more
meaningful backstop to ensure that
Tribal or State programs address water
pollution consistent with the
requirements of section 404. Some
commenters opposed the proposed
approach, stating that the text of the
statute indicates that Congress supports
State assumption and intended
withdrawal to be an extended
adjudicatory process providing
maximum due process to the State.
These commenters expressed concern
that an ‘‘easy out’’ would undermine the
stability of program approval and could
lead to economic waste of the
substantial investments States make in
their programs. These commenters also
noted that a streamlined withdrawal
process could disincentivize Tribal and
State assumption generally.
EPA has decided to finalize the
proposed approach. As commenters in
support of the proposed revision noted,
the final rule allows EPA to respond
quickly where there are concerns
regarding Tribal or State compliance
with the assumed program. By
eliminating the adjudicatory
requirements, it allows both EPA and
the Tribe or State to focus on the
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substantive requirements of the
program. In response to commenters’
concerns, the substantive requirements
of the final rule are comparable to the
prior one but will enhance efficiency of
the withdrawal process and better align
with EPA’s section 404 program
approval procedures. Nothing in the
CWA requires the Agency to maintain
inefficient and burdensome procedures
for their own sake. Enhancing
administrability does not mean that EPA
intends to take program withdrawal
lightly, and EPA’s experience with both
CWA and Underground Injection
Control programs reflects that this
process has been carefully and rarely
used. Consistent with EPA’s
longstanding practice, the Agency will
first seek to resolve program concerns
and help enable Tribes and States to
administer the section 404 program
consistent with the requirements of the
CWA and its implementing regulations.
EPA is committed to working with
Tribes and States through mechanisms
such as annual program report reviews,
informal program reviews, and formal
program reviews to identify program
challenges and recommended steps for
resolution.
Several commenters asked that EPA
add a deadline by which time EPA must
decide whether to proceed with
withdrawal after the conclusion of the
hearing process. These commenters
suggested a deadline of no more than 60
days. EPA considered this suggestion
and concluded that a deadline for
decision would add predictability to the
withdrawal process and avoid leaving
the relevant Tribe or State and
stakeholders in a lengthy state of
uncertainty as to whether the Tribe or
State will continue to administer the
program. However, EPA decided to
provide the Agency 90 days to make this
decision, rather than 60 days, to allow
sufficient time for consideration of
concerns raised and the Tribe or State’s
capacity to address these concerns. The
final rule therefore provides for a 90-day
mandatory time frame for EPA to make
its decision after the conclusion of the
hearing process.
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3. Program Reporting
a. Overview and What the Agency Is
Finalizing
EPA’s prior section 404 Tribal and
State program regulations require the
Tribe or State to provide a selfassessment in an annual report, which
must include, among other information,
‘‘an assessment of the cumulative
impacts of the State’s permit program on
the integrity of the State regulated
waters’’ and numbers of permits issued
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and enforcement actions taken. 40 CFR
233.52(b) (2023). The annual report is
meant to provide a robust overview of
the Tribe’s or State’s program and
implementation and support continuous
improvement such that EPA can ensure
the program remains consistent with the
Act and these regulations. However,
some of the self-assessment
requirements for the annual report in
the prior regulation lacked the necessary
details for a Tribe or State to know
EPA’s expectations for the annual
report.
EPA proposed several revisions at
section 233.52(b) to clarify information
not previously explicitly required,
including specific metrics about
compensatory mitigation, program
resources and staffing, and a discussion
as to how issues identified in the
previous annual report or other
problems the program has encountered
have been resolved. 88 FR 55311.
Additionally, the Agency proposed to
add the word ‘‘final’’ between ‘‘Regional
Administrator’s’’ and ‘‘comments’’ in 40
CFR 233.52(e) to acknowledge that some
discussion may occur between the Tribe
or State and EPA as the annual report
is being finalized. Finally, the Agency
also proposed to require that the
Director make the final annual report
publicly available. After reviewing
public comments, the Agency is
finalizing these revisions as proposed,
with one non-substantive revision to
replace ‘‘as well as’’ with ‘‘and’’ in the
series of items the State must evaluate
in the draft annual report located at
section 233.52(b).
b. Summary of Final Rule Rationale and
Public Comment
EPA requested comment on all
aspects of the proposed revision to the
annual report requirements. EPA
received few comments on this
provision. The majority of comments
were general in nature, expressing
support for the added clarity in the
proposal. One commenter opposed the
additional requirements, stating that
they would increase the burden on
States to assume and implement the
program. EPA considered these
comments and has decided to finalize
the regulatory text as proposed, because
it adds clarity to what Tribes and States
are expected to provide, giving them
clear expectations for the annual report
and reducing the need for follow-up
questions from the Agency as it
conducts its program oversight. EPA
therefore thinks the revisions will assist
Tribes and States, rather than burdening
them.
A few commenters requested that EPA
require additional reporting about the
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costs of administering the program and
litigation involving the Tribal or State
program. The Agency finds that the
proposed requirement to document
‘‘resources and staffing’’ will be
sufficient to provide information EPA
needs about program budgets. In
addition, EPA decided that it does not
need a litigation update in order to
fulfill its oversight obligations;
information already required about
unauthorized activities and enforcement
actions taken should, as a general
matter, provide the litigation-related
information most relevant to EPA’s
oversight. To the extent EPA decides
that it needs litigation information on a
case-by-case basis, that information
would be easy to research or request of
the Tribe or State. Thus, the Agency
finds it unnecessary to modify the
proposed text in light of these
comments.
The final rule clarifies and updates
the requirements for a Tribe’s or State’s
annual reporting by clarifying that it
must identify implementation
challenges along with solutions to
address the challenges, that evaluations
of the program components must
include any quantitative reporting, and
that it must provide specific metrics
related to compensatory mitigation,
resources, and staffing. EPA expects
these revisions will support a more
streamlined process for the State’s
annual report submittal, EPA’s
comments and approval, and the State’s
final report publication. The
clarifications will also ensure
transparency as to the state of Tribal and
State programs and facilitate annual
discussions between the Tribe or State
and EPA about program implementation
and challenges. For EPA, the revisions
will improve the Agency’s ability to
ensure that program operation is
consistent with the Act.
Existing programs may make minor
revisions to address this change. For
example, the 2011 Memorandum of
Agreement between Michigan and EPA
lists requirements of the annual reports,
but the list does not specifically include
compensatory mitigation or resources
and staffing, which are included in the
final regulatory text. The 2011 Michigan
EPA Memorandum of Agreement list
does not preclude the State reporting
other information; however, the
Memorandum of Agreement list could
be updated to reference section
233.52(b) or match the updated
regulatory text. The New Jersey and EPA
Memorandum of Agreement includes
annual reporting requirements, but
references section 233.52(b) rather than
listing the requirements, so it may not
require distinct updates.
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F. Eligible Indian Tribes
a. Overview and What the Agency Is
Finalizing
Prior to issuing a permit, a Tribe or
State with an approved section 404
program must provide notice to another
Tribe or State if a proposed discharge
may affect the biological, chemical, or
physical integrity of the other Tribal or
State waters and provide an opportunity
for the Tribe or State to submit written
comments and suggest permit
conditions. 40 CFR 233.31; see 33 U.S.C.
1344(h)(1)(C), (E). If recommendations
from the State whose waters may be
affected are not accepted by the Tribe or
State issuing the permit, the Tribe or
State issuing the section 404 permit
must notify the affected State and EPA
of its decision not to accept the
recommendations and reasons for doing
so. 40 CFR 233.31(a); see 33 U.S.C.
1341(1)(E). EPA’s regulation at 40 CFR
233.2 defines the term ‘‘State’’ to
include an Indian Tribe which meets
the eligibility requirements for a Tribe
to assume the section 404 program.
Accordingly, these provisions could be
read to limit the coordination
requirement in section 233.31 to only
those affected Tribes that meet the
requirements for section 404 program
assumption. To date, no Tribe has
applied for eligibility to assume the
section 404 program, and many Tribes
lack the resources to assume the
program. However, nearly half of
federally recognized Tribes have been
approved for TAS for other CWA
provisions (i.e., TAS for CWA section
106, section 319, and sections 303(c)
and 401) and may have relevant water
quality information that could inform
the permitting decisions of Tribes or
States administering a section 404
program.
In the proposal, the Agency
considered three ways to further
facilitate Tribal engagement in
permitting decisions that may affect
Tribal resources. First, the Agency
proposed to expand the aforementioned
coordination requirement to include
affected Tribes that have been approved
by EPA for TAS for any CWA provision,
as opposed to only Tribes with TAS to
assume the section 404 program.
Second, the Agency proposed a new
TAS opportunity solely for the purpose
of receiving a heightened comment
opportunity on section 404 permits
proposed by other Tribes or States that
may affect the biological, chemical, or
physical integrity of their reservation
waters. Finally, the Agency proposed to
provide an opportunity for Tribes to
request EPA review of permits that may
affect Tribal rights or interests, even if
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Federal review has been waived. After
reviewing public comments, the Agency
is finalizing all three changes as
proposed. These revisions are consistent
with EPA’s authority under CWA
sections 404 and 518, as well as the
Federal trust relationship and
responsibilities to federally recognized
Tribes, the policies underlying CWA
section 518, and EPA’s policies to
facilitate Tribal opportunities to actively
engage in managing their waters and
resources.
In addition to the approaches
summarized above to facilitate Tribal
engagement in permitting decisions,
EPA is also clarifying that when Tribes
seek to administer the program in areas
where they have not already assumed
the section 404 program, Tribes must
demonstrate that they meet the TAS
criteria for those additional areas. This
is a non-substantive clarification
because subpart G already provides a
process whereby Tribes seeking to
assume the section 404 program address
the TAS criteria, and this provision
would simply clarify that the same TAS
application applies if Tribes seek to add
a new area to their program.
b. Summary of Final Rule Rationale and
Public Comment
i. Enabling Tribes With TAS for Any
CWA Provision To Comment as an
Affected State
As discussed above, 40 CFR 233.31(a)
currently affords specific consideration
of comments and suggested permit
conditions on draft permits by an
affected State and provides an avenue of
review if a Tribe or State with an
assumed program chooses not to accept
the suggested permit conditions. Under
the current regulatory definition of
‘‘State’’—which includes Tribes that
have obtained TAS for purposes of
assuming the section 404 program—no
Tribes are presently eligible to be
considered an affected State, as no
Tribes have yet obtained TAS status for
purposes of assuming the section 404
program.
Section 518 of the CWA authorizes
EPA to treat eligible federally
recognized Tribes in a similar manner as
a State for purposes of implementing
and managing various environmental
functions under the statute. The
requirements for TAS are established in
CWA section 518 and are reflected in
EPA regulations for various CWA
provisions. Generally, the Tribes must
be federally recognized, have a
governing body that carries out
substantial governmental duties and
powers, seek to carry out functions
pertaining to the management and
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protection of reservation water
resources, and be capable of carrying
out the functions of the particular
provision at issue. 33 U.S.C. 1377(e). Of
the 574 federally recognized Tribes,
over 285 have been granted TAS status
for one or more CWA provisions.44
The Agency proposed to revise the
coordination requirements at section
233.31 to expressly provide that Tribes
that have already been approved for
TAS by EPA to administer any other
CWA programs, such as a water quality
standards (WQS) program under CWA
section 303(c), or have been approved
for TAS for any other CWA purpose,
such as receiving section 106 grants to
establish and administer programs for
the prevention, reduction, and
elimination of water pollution, should
also have the opportunity to comment
on draft permits in the same manner as
affected States.
Most commenters supported effective
coordination with Tribes on permits
that may affect Tribal aquatic resources.
EPA agrees with these commenters and
finds this provision at 233.31 will
enable more Tribes whose waters may
be affected by a dredge or fill project to
comment on permits to be issued by a
Tribe or State in the same manner as
other affected States. A Tribe or State
with an approved section 404 program
will also have to provide an opportunity
for Tribes with TAS for any CWA
provision to submit written comments
within the public comment period and
suggest permit conditions as provided
in section 233.31(a) of the regulations.
As finalized, Tribes and States with an
approved section 404 program must
consider comments from Tribes with
TAS for any CWA provision whose
reservation waters may be affected by a
proposed discharge. If the
recommendations are not accepted by
the approved Tribe or State program, the
approved Tribe or State program would
have to notify the affected Tribe and
EPA of its decision not to accept the
recommendations and its reasons for not
doing so. EPA would then have time to
comment upon, object to, or make
recommendations regarding the Tribal
concerns set forth in the original
comment. This is the same opportunity
and process provided to affected States.
44 EPA maintains a website that lists all Tribes
approved for TAS, which is updated bi-annually.
Tribes with TAS for regulatory programs and
administrative functions can be found at https://
www.epa.gov/tribal/tribes-approved-treatmentstate-tas; Tribes with TAS for section 106 grants can
be found at https://www.epa.gov/water-pollutioncontrol-section-106-grants/tribal-grants-undersection-106-clean-water-act; Tribes with TAS for
section 319 grants can be found at https://
www.epa.gov/nps/current-tribal-ss319-grantinformation.
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Some commenters asked EPA to
codify specific timelines and
notification requirements to ensure such
coordination occurs. EPA is declining to
mandate a specific process. Rather, EPA
has determined that individual Tribes
and States should have the flexibility to
establish the procedures and
coordination approaches that work best
for them. EPA encourages States to work
together with Tribes whose reservation
waters may be affected by a proposed
discharge prior to proposal of the
relevant permit. Such efforts will
improve permitting, protect interests,
and build relationships. For example,
existing State section 404 programs are
already coordinating with affected
Tribes per their Memorandum of
Agreement with EPA.
Some commenters expressed concern
that this provision creates a new
authority allowing for Tribes to engage
in State permitting in a way that could
result in confusion, while another
commenter suggested that such
opportunity be limited to Tribes with
TAS for water quality standards and
section 401 certification. EPA disagrees
with these commenters. First, EPA
disagrees that this provision will result
in confusion. Under CWA sections 404
and 518 and EPA’s existing regulations,
Tribes were already afforded the
enhanced opportunity to provide
comment as an affected State through
the TAS process for section 404.
Second, EPA views any Tribe that has
TAS status for any CWA purpose as
both capable of participating in matters
that may affect the chemical, physical,
or biological integrity of reservation
waters through the enhanced
opportunity for comment, and as an
appropriate entity to be afforded that
opportunity. By receiving TAS for
another provision of the CWA, a Tribe
has already demonstrated they have met
the TAS requirements as articulated in
section 518 of the Act and that they are
engaged in water quality protection
activities under the Act. Accordingly,
EPA concludes that Tribes that have
already been approved for TAS by EPA
to administer other CWA program(s) are
capable of commenting on draft permits
in the same manner as affected States
and are relevant entities to provide
input regarding the potential effects on
their reservation waters of Tribal and
State 404 permitting.
ii. Providing TAS Opportunity
Specifically for the Ability To Comment
as an Affected State
EPA is finalizing as proposed a
process whereby Tribes may apply for
TAS for the sole purpose of commenting
on Tribe- or State-issued CWA section
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404 permits in the same manner as an
affected State. Tribes that obtain TAS
for this purpose would benefit from the
same notification requirements that
apply to any other commenting affected
‘‘State.’’ This rule enables Tribes that
have neither assumed the section 404
program nor have obtained TAS for
other CWA programs to obtain TAS
solely to provide input on section 404
permits that may affect their reservation
waters.
This approach is similar to
approaches taken in other EPA
programs. For example, the Agency’s
regulations under the Clean Air Act
provide opportunities for interested
Tribes to seek TAS authorization for
distinct severable elements of programs
under that statute. See 40 CFR 49.7(c).
Under that authority, EPA has
authorized TAS for the procedural
comment opportunity provided in
connection with issuance of certain
permits by upwind permitting
authorities, without requiring those
Tribes to seek authorization for the
entire relevant program. See 42 U.S.C.
7661d(a)(2). Nothing in the language of
section 404 precludes creating this new
TAS opportunity. This provision would
relate solely to the coordination
requirements set forth in section
233.31(a). The opportunity to provide
comments and suggest permit
conditions established in CWA sections
404(h)(1)(C) and (E) and 40 CFR 233.31
do not require any exercise of regulatory
authority by the affected Tribe. Due to
the limited nature of TAS solely for
purposes of commenting as an affected
State, EPA anticipates that the
application burden on interested Tribes
would, in most circumstances, be
minimal and that the process for review
of Tribal applications would be
straightforward. As with other TAS
applications, interested Tribes would
submit relevant information
demonstrating that they meet the TAS
eligibility criteria to the appropriate
Regional Administrator, who would
process the application in a timely
manner. Because, as described above,
commenting in the same manner as an
affected State does not involve any
exercise of regulatory authority by the
applicant Tribe, no issues regarding
Tribal regulatory authority should be
raised or decided in this limited TAS
context. In this sense, TAS applications
for this purpose would be similar to
TAS applications for the purpose of
receiving grants, a process that many
Tribes have undergone and with which
EPA has substantial experience.
Similarly, Tribes interested in this TAS
opportunity would need to demonstrate
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their capability solely for the limited
purpose of submitting comments as an
affected Tribe. These Tribes would not
need to demonstrate capability to
administer an assumed section 404
program.
Many commenters supported this
provision to fill gaps and facilitate
Tribal engagement in permitting that
may affect their waters within Indian
Country. EPA agrees with these
commenters and is finalizing the
process as proposed to eliminate
unnecessary barriers to Tribal
engagement in the 404 process as
contemplated by CWA section 518.
Some commenters raised a concern that
EPA lacks authority to create new Tribal
authorities. However, EPA is not
creating a new Tribal authority. The
CWA and section 404 program
regulations already provide Tribes the
ability to obtain TAS for the section 404
program and to comment as an affected
State. 33 U.S.C. 1377(e). As discussed
above, Tribes do not need to have the
authorities and resources to fully
administer a section 404 program,
including issuing permits and enforcing
violations, in order to comment as an
affected State. Such a requirement
would be unnecessarily burdensome
with no benefit to Tribes or the
environment. Thus, EPA is finalizing
this provision to obtain TAS for the sole
purpose of commenting on Tribe or
State issued section 404 permits.
One commenter suggested that
specifically enabling Tribes to request to
review all permits within a specified
geographic area, including areas outside
of reservation land, as the most efficient
way of ensuring Tribal engagement in
the permit issuance process for areas
with cultural and ecological
significance. Tribes are free to submit
such requests to the permitting
authority, and EPA encourages Tribes
and States to provide for notifications of
permitting in such areas through
mechanisms established in regulation, a
Memorandum of Understanding, or
through the State Historic Preservation
Officer and Tribal Historic Preservation
Office. EPA is not adding any regulatory
revisions on this point as such requests
are most efficiently addressed on a caseby-case basis.
Some commenters raised concerns
that this provision would allow any
Tribe to comment on any permit issued
by any State. As stated above, any
member of the public, including Tribes,
may already comment on any draft
permit. This provision simply provides
an additional mechanism for eligible
Tribes to engage in the same heightened
comment process on draft permits that
is already available to States and to
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Tribes that obtain TAS for the purpose
of assuming the section 404 program.
Tribes obtaining TAS for this limited
purpose would be able to comment in
the same manner as affected States on
only those permits that may affect the
biological, chemical, or physical
integrity of the Tribe’s waters. Providing
a mechanism to obtain TAS for this
limited commenting opportunity is
consistent with CWA sections 404 and
518, as well as the Federal trust
responsibility to federally recognized
Tribes and EPA’s various Tribal policies
seeking to facilitate Tribal opportunities
to actively engage in managing their
waters and resources and to eliminate
unnecessary barriers to such Tribal
involvement.
Lastly, some commenters argued that
this provision provides Tribes with an
opportunity to comment on permits that
does not exist in the Federal section 404
program. As discussed above, 40 CFR
233.31(a) already afforded specific
consideration of comments and
suggested permit conditions on draft
permits by an affected State, which
includes Tribes that have obtained TAS
for purposes of assuming the section
404 program. This final rule merely
provides that Tribes may apply for TAS
for the sole purpose of commenting on
Tribe- or State-issued CWA section 404
permits in the same manner as an
affected State. Moreover, under the
Corps’ administration as well as Tribal
or State program administration, any
entity may comment on any draft
permit.
Some commenters asked EPA to
conduct outreach to inform Tribes about
the opportunity to apply for TAS for the
sole purpose of commenting on 404
permits. EPA agrees that such outreach
would be useful and intends to work
with Tribes and States to develop
implementation tools and conduct
outreach informing Tribes, States, and
others about this rule, including the
opportunity to apply for TAS to
comment on 404 permits.
iii. Opportunity for Tribes To Request
EPA Review of Permits That May Affect
Tribal Rights or Interests
EPA is also revising section 233.51 to
codify an opportunity for Tribes to
request EPA review of permits
potentially affecting Tribal rights or
interests. These may include rights or
interests both inside and outside of a
Tribe’s reservation and would facilitate
EPA’s review of permits that have the
potential to impact waters of
significance to Tribes. The revisions to
section 233.51 enable Tribes to request
EPA’s review of permits that may affect
both rights reserved through treaties,
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statutes, or executive orders, as well as
Tribal interests in resources that may
not be reflected in Federal law, such as
those with historical or cultural
significance to Tribes. Section 233.51
applies whenever a Tribe asserts that
issuance of a particular permit
potentially affects its rights or resources;
however, EPA’s review of a permit
pursuant to section 233.51 would not
constitute a recognition by EPA that any
particular Tribe holds reserved rights.45
EPA anticipates that this provision
will help address Tribal concerns about
the loss of Federal consultation
opportunities when permitting authority
transfers from the Corps to a Tribe or
State. Additionally, this provision will
allow coordination on potential impacts
to Tribal rights and resources not
covered by any other commenting
option discussed above in sections
IV.F.b.i and IV.F.b.ii of this preamble.
Given the TAS provisions discussed
above, EPA anticipates that Tribes will
use this opportunity in limited
circumstances.
Under this provision, a Tribe may
notify EPA within 20 days of public
notice of a permit application that the
application potentially affects Tribal
rights or interests, including those
beyond reservation boundaries, even if
Federal review has been waived. If a
Tribe does so, EPA will request the
public notice and will proceed in
accordance with section 233.50,
including providing a copy of the public
notice and other information needed for
review of the application to the Corps,
the U.S. Fish and Wildlife Service, and
the National Marine Fisheries Service.
Pursuant to section 233.50, if EPA
objects to a draft permit, the issuing
Tribe or State may not issue the permit
unless it has taken steps required by
EPA to eliminate the objection. Once
EPA removes its objection, EPA may
send a copy of the letter removing EPA’s
objections to a permit at a Tribe’s
request or pursuant to a prior agreement
with the Tribe (or other stakeholders).
Several commenters supported the
proposed provision, noting it helps to
fill a gap and provide Tribes a
mechanism to help ensure an
45 On May 2, 2024, EPA published a final rule
entitled ‘‘Water Quality Standards Regulatory
Revisions to Protect Tribal Reserved Rights.’’ 89 FR
35717 (May 2, 2024). That rule amends EPA’s water
quality standards regulation, 40 CFR part 131 et
seq., to, in pertinent part, define ‘‘Tribal reserved
rights’’ for WQS purposes as ‘‘any rights to CWAprotected aquatic and/or aquatic-dependent
resources reserved by right holders, either expressly
or implicitly, through Federal treaties, statutes, or
Executive orders.’’ 89 FR 35717. The Tribal
Reserved Rights rulemaking does not affect section
233.51 of this section 404 rulemaking, nor does
anything in this section 404 rulemaking depend on
the Tribal Reserved Rights rulemaking.
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opportunity to raise concerns regarding
potential impacts to Tribal aquatic and
cultural resources outside of their
reservations. Some commenters
expressed concern that there is no
reliable instrument for coordinating
with States assuming the section 404
program regarding potential impacts on
historical and cultural sites or Tribal
natural resource rights located outside
of reservation lands. These commenters
referenced the Federal trust
responsibility to Federally recognized
Tribes, which forms an important
element of the Tribal-federal
relationship but which does not apply
to States that assume the section 404
program, as well as other aspects of
federal law. Additionally, some
commenters raised concerns over
resource limitations and that following
assumption a Tribe would need to take
on the burden of reviewing all permit
applications statewide for those that
may affect Tribal resources. EPA
encourages Tribes to work with Tribes
and States with approved section 404
programs to develop mechanisms (e.g.,
Memoranda of Understanding) for
notifying Tribes at appropriate times,
and EPA may participate in such
discussions to aid in coordination
efforts, if appropriate.
This rule does not affect other
mechanisms that require Tribal and
State permitting authorities to protect
Tribal interests. For example, CWA
section 404 permits for discharges must
comply with all applicable State water
quality standards (including standards
in a downstream jurisdiction) in effect
under the CWA. See 33 U.S.C.
1311(b)(1)(C); 40 CFR 230.10(b)(1) and
233.20(a). To the extent designated uses
require consideration of cultural or
traditional uses of water that may be
important to Tribes, Tribal or State
section 404 programs must consider
those during the permitting process.
A few commenters raised a concern
that this provision creates an
opportunity to comment on permits
beyond Indian Country that does not
currently exist when the Corps is the
permitting authority. As noted above,
any member of the public is currently
able to comment on any draft permit,
and EPA has the authority to review and
comment on any draft permit. See 33
U.S.C. 1344(h)(1)(C), (j). In addition, the
scope of the Corps’ Federal section 404
program is outside the scope of this
rulemaking. Regardless of the scope of
the Corps’ engagement with Tribal
stakeholders, facilitating Tribal
engagement in permitting decisions that
affect Tribal resources is a priority to
EPA. In its oversight role, EPA is able
to review and object to permits; this
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provision provides an additional way to
inform the Agency as it determines
whether to review and object to a
potential permit.
G. Impacts to Existing Programs
This preamble section identifies parts
of this rule that may affect existing
State-assumed section 404 programs by
requiring them to modify their
procedures or potentially expand the
scope of their authority. Whether these
changes would require revisions to
existing State-assumed programs
depends on the existing authority of the
States that have assumed the program
and their implementation procedures, as
well as the interpretation of these
authorities and processes by State
Attorneys General or State courts. These
States may already have some or all of
the authority or procedures in place that
these provisions require. States that do
not have the authority required to
administer the provisions of the final
rule would need to submit a program
revision for EPA approval after issuance
of the rule in accordance with 40 CFR
part 233.16.
Final rule provisions that could affect
existing programs include a provision
ensuring opportunity for judicial review
of agency decisions (section IV.C.2 of
this preamble), updates to the
compensatory mitigation requirements
for Tribal and State section 404
programs (section IV.B.4 of this
preamble), and a revised approach to
addressing the five-year limit on permits
(section IV.C.1 of this preamble). In
addition, clarification as to how Tribes
and States can demonstrate that their
programs are no less stringent than the
Federal section 404 program (section
IV.A.3 of this preamble), modification of
the conflict of interest prohibition
(section IV.A.1 of this preamble), and
updated annual reporting requirements
(section IV.E.3 of this preamble) may
affect existing State programs.
EPA recognizes that ‘‘[w]hen an
agency changes course . . . it must be
cognizant that longstanding policies
may have engendered serious reliance
interests that must be taken into
account.’’ Department of Homeland
Security v. Regents of the University of
California, 140 S. Ct. 1891, 1913 (2020)
(citations and internal quotation marks
omitted.) EPA does not view the
regulatory changes as undermining
serious reliance interests that outweigh
the benefits of these changes. EPA’s
regulations contain detailed procedures
for revising an approved section 404
program. 40 CFR part 233.16. States
seeking approval would therefore be
well aware that program revisions may
be necessary following assumption.
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Moreover, the program revision
regulations specifically address
revisions needed as a result of a change
to the section 404 regulations, or to any
other applicable statutory or regulatory
provision. Id. at 233.16(b). The
regulations allow Tribes and States one
year to make such revisions, or two
years if statutory changes are required.
Id. The 1–2-year revision period
supplements the lengthy preliminary
period for proposing and finalizing this
rule and soliciting and responding to
public comments. Tribes and States
therefore should anticipate the potential
need to revise their programs based on
Federal regulatory revisions following
assumption. Finally, nothing in CWA
section 404 suggests that EPA’s approval
of a Tribal or State program terminates
the Agency’s ability to update relevant
regulations when necessary to
effectively administer the Act. The
Agency does not think Congress would
have intended approvals to carry such a
drastic consequence without saying so.
H. Technical Revisions
In addition to revising 40 CFR part
233, EPA is also finalizing technical
edits to clarify that the 40 CFR part 124
regulations do not apply to Tribal or
State section 404 programs. Specifically,
EPA is making targeted revisions and
deletions to specific provisions of the
regulations at 40 CFR parts 124.1
through 124.3, 124.5, 124.6, 124.8,
124.10 through 124.12, and 124.17 to
remove any references to 40 CFR part
233. Prior to 1988, the State section 404
program regulations included references
to 40 CFR part 124, which contains
consolidated permitting regulations for
a variety of programs that EPA
administers. See 49 FR 39012 (October
2, 1984). The preamble to the 1988
section 404 Tribal and State program
regulation clearly stated that the 40 CFR
part 124 regulations no longer apply to
Tribal or State section 404 programs and
announced the Agency’s intention to
publish technical edits in the future. 53
FR 20764 (June 6, 1988) (‘‘It is the
agency’s intent that 40 CFR part 124 no
longer applies to 404 State programs.
We will be publishing technical,
conforming regulations in the future.’’).
Although the Agency modified 40 CFR
part 233 to remove all references to part
124 in 1988, the Agency did not provide
conforming edits to 40 CFR part 124 to
remove references to 40 CFR part 233.
This rule removes the outdated
references to 40 CFR part 233 in part
124. The removal of these references has
no substantive impact on the section
404 assumption process or on Tribal or
State section 404 programs. They also
do not implicate or affect aspects of the
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part 124 regulations addressing other
EPA permit programs, including the
Resource Conservation and Recovery
Act (RCRA), Underground Injection
Control, and NPDES programs.
EPA is also revising the definitions
located at 40 CFR part 233.2 for
consistency and clarity. EPA is defining
‘‘Indian lands’’ consistent with the
Agency’s long-standing interpretation of
‘‘Indian lands’’ as synonymous with
‘‘Indian country’’ as defined at 18 U.S.C.
1151. See e.g., 40 CFR part 144.3
(defining ‘‘Indian lands’’ as ‘‘Indian
country’’ as defined at 18 U.S.C. 1151);
40 CFR part 258.2 (adopting the
definition of 18 U.S.C. 1151 for ‘‘Indian
lands’’); U.S. EPA, Underground
Injection Control Program: FederallyAdministered Programs, 49 FR 45292,
45294 (November 15, 1984) (defining
‘‘Indian lands’’ as used in EPA’s Safe
Drinking Water Act Underground
Injection Control Program regulations as
‘‘Indian country,’’ explaining that ‘‘EPA
believes this definition is most
consistent with the concept of Indian
lands as the Agency has used it in
regulations and [Underground Injection
Control] program approvals to date.’’);
Wash. Dep’t of Ecology v. EPA, 752 F.2d
1465, 1467 n.1 (9th Cir. 1985) (noting
EPA’s position that ‘‘Indian lands’’ is
‘‘synonymous with ‘Indian country’,
which is defined at 18 U.S.C. 1151’’).
EPA is also revising the definition of
‘‘State 404 program’’ or ‘‘State program’’
to clarify that Tribes and interstate
agencies may also have an approved
program. The Agency is removing the
‘‘(p)’’ associated with the cross-reference
to 40 CFR part 233.2 in the definition
of ‘‘State 404 program’’ or ‘‘State
program’’ as the definitions in 40 CFR
part 233.2 are no longer listed by letter.
Finally, EPA is clarifying the definition
for ‘‘State regulated waters’’ in 40 CFR
part 232 by replacing the in-text
description of retained waters with a
reference to the relevant regulatory text
at 40 CFR part 233.11(i).
EPA is also finalizing several
technical edits throughout 40 CFR part
233 to update cross-references, ensure
consistent use of terminology, and
facilitate efficient program operation.
First, EPA is updating section 233.10(a)
and section 233.16(d)(2) to include the
term ‘‘Tribal leader’’ where the term
‘‘Governor’’ is referenced. Second, EPA
is also removing the use of the
masculine pronouns ‘‘he’’ and ‘‘his’’
throughout 40 CFR part 233 and
replacing them with ‘‘they,’’ ‘‘their,’’
‘‘the Administrator,’’ ‘‘the Regional
Administrator,’’ or ‘‘Director’’ as
appropriate. The purpose of changing
masculine pronouns or terms to neutral
pronouns and other neutral terms is to
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acknowledge the diversity of people
who may hold the positions of ‘‘the
Administrator,’’ ‘‘the Regional
Administrator,’’ ‘‘Director,’’ and
program staff. Third, EPA is changing
references to assumption ‘‘application’’
to terms including ‘‘request to assume,’’
‘‘program submission,’’ or ‘‘assumption
request materials’’ to more clearly
distinguish between permit applications
and requests to assume the program
throughout the regulations. Fourth, EPA
is revising section 233.1(b) to remove
the term ‘‘individual’’ from the
reference to ‘‘State permits,’’ as States
may also regulate discharges using
general permits. Fifth, the Agency is
changing the ‘‘Note’’ in section 233.1(c)
to become section 233.1(d) and adding
a cross-reference to the process to
identify retained waters and the
retained waters description at 233.11(i).
Section 233.1(d) will be renumbered as
233.1(e). Sixth, EPA is clarifying in
section 233.14(b)(3) that when a State
intends to administer general permits
issued by the Secretary, any Tribal or
State conditions and/or certifications of
those general permits transfer when the
Tribe or State assumes the program.
Seventh, EPA is also adding an effective
date for the approved non-substantial
program revisions in the letter from the
Regional Administrator to the Governor
requirement in section 233.16(d)(2).
Finally, EPA is also clarifying in section
233.53(a)(1) that when the Tribe or State
notifies the Administrator and the
Secretary of its intent to voluntarily
transfer program responsibilities back to
the Secretary, the Tribe or State must
also submit the transition plan. The
Agency is adding the words ‘‘no less
than’’ before the advance notice
requirement to clarify that Tribes and
States may provide more than 180 days’
notice of intent to transfer the program.
An extended transition time would
allow the Tribe or State, the Corps, and
EPA to discuss any gaps in the plan and
ensure a smooth transition from the
Tribe or State to the Corps’
administration of the program. The rule
requires that files associated with
ongoing investigations, compliance
orders, and enforcement actions be
provided to the Secretary to ensure
compliance with these orders and
minimize disruptions in administration
of section 404 programs. The Agency
requested comment on whether to revise
the regulations to clarify that electronic
mail is an acceptable method of
transmitting public notices or
documents, in addition to mail. Instead
of changing, for example, the word
‘‘mail’’ to ‘‘send’’ throughout the
regulations, the Agency wishes to clarify
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that that both electronic mail and mail
are acceptable methods of transmitting
public notices or documents.
I. Incorporation by Reference
Currently, 40 CFR part 233.70
incorporates by reference Michigan’s
regulatory and statutory authorities
applicable to the State’s approved CWA
section 404 program, and 40 CFR part
233.71 incorporates by reference New
Jersey’s regulatory and statutory
authorities applicable to the State’s
approved CWA section 404 program.
EPA codified in regulation the approval
of the Michigan program on October 2,
1984 (49 FR 38947) and the New Jersey
program on March 2, 1994 (59 FR 9933).
EPA is updating the incorporation by
reference of the Michigan laws in the
State’s approved CWA section 404
program as follows:
• The Michigan Administrative
Procedures Act of 1969, MCL § 24–201,
et seq., in effect as of February 13, 2024
(addresses the effect, processing,
promulgation, publication and
inspection of State agency
determinations, guidelines and rules);
• The Natural Resources and
Environmental Protection Act 451 of
1994:
Æ Part 31 Water Resources Protection,
MCL § 324.31 et seq., in effect as of
September 29, 2023 (provides regulatory
authority and describes Michigan’s
water quality provisions);
Æ Part 301 Inland Lakes and Streams,
MCL § 324.301 et seq., in effect as of
October 20, 2021 (provides authority for
Michigan’s inland lakes and streams
rules and regulations for the streams
and inland lakes portion of the water
resources permitting and enforcement
program);
Æ Part 303 Wetland Protection, MCL
§ 324.303 et seq., in effect as of April 27,
2019 (provides authority for Michigan’s
wetlands rules and regulations for the
wetlands portion of the water resources
permitting and enforcement program);
Æ Part 307 Inland Lake Levels, MCL
§ 324.307 et seq., in effect as of October
16, 2020 (provides authority for
Michigan regulating water levels in
inland lakes);
Æ Part 315 Dam Safety, MCL
§ 324.315 et seq., in effect as of
September 10, 2004 (provides authority
for Michigan regulating dam safety);
Æ Part 323 Great Lakes Shorelands
Protection and Management, MCL
§ 324.323 et seq., in effect as of October
20, 2021 (allows the State to issue
permit and violation fees); and
Æ Part 325 Great Lakes Submerged
Lands, MCL § 324.325 et seq., in effect
as of October 20, 2021 (provides for and
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describes regulating activities in Great
Lakes Submerged Lands).
Additionally, EPA is incorporating
the most recent versions of Michigan
Administrative Code, Department of
Environmental Quality, as follows:
• Land and Water Management:
Æ Great Lakes Shorelands, R 281.21
through R 281.26 inclusive, in effect as
of 2000;
Æ Wetlands Protection, R 281.921
through R 281.925 inclusive, in effect as
of 2006;
Æ Wetland Mitigation Banking, R
281.951 through R 281.961 inclusive, in
effect as of 1997;
Æ Dam Safety, R 281.1301 through R
281.1313 inclusive, in effect as of 1993;
and
• Water Resources Division, Inland
Lakes and Streams, R 281.811 through R
281.846 inclusive, in effect as of 2015.
This material contains Michigan’s
rules for shoreline protection, inland
lakes and streams, wetlands protection,
wetland mitigation banking, and dam
safety. EPA is updating the name of the
implementing State agency to reflect
that the current agency implementing
the approved Michigan assumed
program is the Michigan Department of
Environment, Great Lakes, and Energy
rather than the Department of Natural
Resources in section 233.70. EPA is also
updating the description of EPA and
Michigan Memorandum of Agreement
in section 233.70(c)(1) to reflect the
current Memorandum, signed in 2011.
EPA is updating the incorporation by
reference of the New Jersey state laws in
the State’s approved CWA section 404
program as follows: Freshwater
Wetlands Protection Act, New Jersey
Statutes Annotated, Title 13:
Conservation and Development—Parks
and Reservations; Chapter 9B:
Freshwater Wetlands, N.J.S.A.13:9B–1
et seq., effective as of December 23,
1993 (provides the New Jersey
Department of Environmental Protection
with the authority to regulate and
permit activities in freshwater
wetlands). Additionally, EPA is
incorporating the most recent version of
the Freshwater Wetlands Protection Act
Rules as follows: Freshwater Wetlands
Protection Act Rules, New Jersey
Administrative Code, N.J.A.C. 7:7A,
amended November 7, 2022 (contains
regulations to implement the Freshwater
Wetlands Protection Act).
Materials that have been incorporated
by reference are reasonably made
available to interested parties. Copies of
materials incorporated by reference may
be obtained or inspected at EPA Docket
Center Reading Room, WJC West
Building, Room 3334, 1301 Constitution
Avenue NW, Washington, DC 20004
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(telephone number: 202–566–1744); or
send mail to Mail Code 5305G, 1200
Pennsylvania Ave. NW, Washington, DC
20460. Copies of the materials
incorporated by reference for Michigan’s
program can also be accessed at
www.legislature.mi.gov/ and
www.michigan.gov/lara/bureau-list/
moahr/admin-rules; at the Water
Division, Environmental Protection
Agency, Region 5, 77 West Jackson
Boulevard, Chicago, IL 60604 (telephone
number: 800–621–8431); or at the
Michigan Department of Environment,
Great Lakes, and Energy office at 525 W
Allegan St., Lansing, MI 48933
(telephone number: 800–662–9278).
Copies of the materials incorporated by
reference for New Jersey’s program can
also be accessed at www.epa.gov/
cwa404g/us-interactive-map-state-andtribal-assumption-under-cwa-section404#nj; at the Library of the Region 2
Regional Office, Ted Weiss Federal
Building, 290 Broadway, New York, NY
10007; or at the New Jersey Department
of Environmental Protection at 401 East
State St., Trenton, NJ 08625 (telephone
number: 609–777–3373). EPA is
updating the docket location and EPA
Region 2 Regional Office location cited
at 40 CFR part 233.71(b) to reflect their
current addresses.
J. Severability
The purpose of this section is to
clarify EPA’s intent with respect to the
severability of provisions of the final
rule. Each provision and interpretation
in this rule is capable of operating
independently. Once effective, if any
provision or interpretation in this rule
were to be determined by judicial
review or operation of law to be invalid,
that partial invalidation would not
render the remainder of this rule
invalid. Likewise, if the application of
any aspect of this rule to a particular
circumstance were determined to be
invalid, the Agency intends that the rule
would remain applicable to all other
circumstances. None of the provisions
in this rule depend upon any other for
effectiveness. Taking as examples the
provisions listed at the beginning of this
preamble, if the new ‘‘conflict of
interest’’ revisions were deemed invalid,
the absence of those revisions would in
no way affect or undermine the
rationale for or the operation of the
provisions addressing compliance with
the 404(b)(1) Guidelines or being ‘‘no
less stringent than’’ Federal
requirements. Similarly, taking an
example from the end of this preamble,
if the Agency’s provisions addressing
Tribal engagement were deemed
invalid, the new program reporting
requirements would retain their utility.
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V. Statutory and Executive Order
Reviews
Additional information about these
statutes and Executive Orders can be
found at https://www.epa.gov/lawsregulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 14094: Modernizing Regulatory
Review
This action is a ‘‘significant regulatory
action’’ as defined in Executive Order
12866, as amended by Executive Order
14094. Accordingly, EPA submitted this
action to the Office of Management and
Budget (OMB) for Executive Order
12866 review. Documentation of any
changes made in response to Executive
Order 12866 review is available in the
docket for this action. EPA prepared an
analysis of the potential costs and
benefits associated with this action.
This analysis, the Economic Analysis
for the Final Rule, is available in the
docket for this action (Docket ID No.
EPA–HQ–OW–2020–0276) and is briefly
summarized below.
The Economic Analysis for the Final
Rule is qualitative in nature due to
numerous data limitations and
uncertainties regarding the potential
impacts resulting from the final rule.
See Section VI of the Economic Analysis
for the Final Rule for further discussion
on data limitations and uncertainties.
Section IV of the Economic Analysis for
the Final Rule summarizes the
incremental and cumulative costs and
benefits of the final rule for different
interested parties, including Tribes,
States, permittees, and EPA. Benefits of
the final rule are mainly positive
impacts resulting from clarification of
assumption procedures and substantive
requirements. These benefits accrue to
Tribes, States, permittee, Federal
agencies, and the public. Tribes, States,
permittees, and Federal agencies may
experience both incremental costs and
cost savings as a result of the final rule.
B. Paperwork Reduction Act (PRA)
The information collection activities
in this rulemaking have been submitted
for approval to the Office of
Management and Budget (OMB) under
the PRA. The Information Collection
Request (ICR) document that EPA
prepared has been assigned EPA ICR
number 0220.17. You can find a copy of
the ICR in the docket for this rule, and
it is briefly summarized below. The
information collection requirements are
not enforceable until OMB approves
them.
The type and frequency of
information requested varies by
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respondent group and activity. For this
information collection, EPA classified
respondents into one of four categories:
(1) States or Tribes seeking program
assumption; (2) States or Tribes with an
approved program and administering
the program; (3) Permittees; and (4)
Tribes seeking TAS for the sole purpose
of commenting as an affected State. The
ICR does not require the collection of
any information of a confidential nature
or status.
Respondents/affected entities: States
or Tribes seeking program assumption;
States or Tribes with an approved
program and administering the program;
Permittees; and Tribes seeking TAS for
the sole purpose of commenting as an
affected State.
Respondents’ obligation to respond:
Voluntary (States or Tribes seeking
program assumption); Required for
program operation and maintenance
(States or Tribes with an approved
program and administering the
program); Required to submit an
application to obtain a section 404
permit (Permittee); Voluntary (Tribes
seeking TAS for the sole purpose of
commenting as an affected State).
Estimated number of respondents: 1
State over 3 years (seeking program
assumption); 3 States/year (with an
approved program and administering
the program, except for program
modification); 2 States over 3 years
(modifications to an approved program);
1,693 Permittees/year for 3 approved
programs; 1 Tribe/year over 3 years
(seeking TAS for the sole purpose of
commenting as an affected State).
Frequency of response: Once (States
or Tribes seeking program assumption);
Variable (for States or Tribes with an
approved program and administering
the program); for each permit
application (for Permittees); once (for
Tribes seeking TAS for the sole purpose
of commenting as an affected State).
Total estimated burden to
respondents: 130,725 hours (per year).
Burden is defined at 5 CFR 1320.3(b).
Total estimated cost to respondents:
$6,972,139 (per year), includes $930,831
annualized capital and start-up costs
and $6,041,308 program operation and
maintenance costs.
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 regulations in 40
CFR are listed in 40 CFR part 9. When
OMB approves this ICR, the Agency will
announce that approval in the Federal
Register and publish a technical
amendment to 40 CFR part 9 to display
the OMB control number for the
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approved information collection
activities contained in this final rule.
C. Regulatory Flexibility Act (RFA)
I certify that this final rule will not
have a significant economic impact on
a substantial number of small entities
under the RFA. This action will not
impose any requirements on small
entities. Section 404(g) of the CWA
allows for Tribes and States to assume
the section 404 permitting program, and
the final rule clarifies assumption
requirements for Tribes and States to
ensure compliance with CWA 404(b)(1)
Guidelines. Without the final rule,
entities (both large and small) would
still have to comply with the CWA
404(b)(1) Guidelines, regardless of
whether the Tribe or State assumes the
section 404 program or not and
regardless of the changes in the final
rule.
D. Unfunded Mandates Reform Act
(UMRA)
This action does not contain any
unfunded mandate of $100 million
(annually adjusted for inflation) or more
(in 1995 dollars) as described in UMRA,
2 U.S.C. 1531–38, and does not
significantly or uniquely affect small
governments. This action imposes no
enforceable duty on any State, local, or
Tribal governments or the private sector.
See the Economic Analysis for the Final
Rule in the docket for this action for
further discussion on UMRA.
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E. Executive Order 13132: Federalism
Under the technical requirements of
Executive Order 13132 (64 FR 43255,
August 10, 1999), EPA has determined
that this rulemaking does not have
federalism implications. EPA believes,
however, this rulemaking may be of
significant interest to State and local
governments. Consistent with EPA’s
policy to promote communications
between EPA and State governments,
EPA engaged with State officials early in
the process of developing the proposed
rule to permit them to have meaningful
and timely input into its development.
EPA is finalizing updates to clarify
and facilitate the process of State
assumption of the section 404 program.
This rule does not impose any new costs
or other requirements on States,
preempt State law, or limit States’
policy discretion. This action does not
have federalism implications and will
not have substantial direct effects on the
States, on the relationship between the
national government and the States, or
on the distribution of power and
responsibilities among the various
levels of government.
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The Agency invited written input
from State agencies from November 12,
2018, through February 11, 2019,46 and
hosted an in-person meeting with State
officials on December 6, 2018. At the inperson meeting, the Agency provided an
overview of the rulemaking effort and
the section 404(g) program and led
themed discussions for input for the
proposed rule, including clarifying
assumed and retained waters and
adjacent wetlands, enforcement and
compliance, partial assumption, and
calculating economic costs and benefits
of the rule. A summary of stakeholder
engagement and written input from
States on this action is available in the
docket for this final rule. After
publishing the proposed rule in the
Federal Register, stakeholders were
encouraged to submit comment letters
during a 60-day public comment period
and EPA held a public hearing on
September 6, 2023, for all stakeholders
to provide public comment on the
proposed rule. Additionally, EPA
hosted one input session specifically for
State government representatives on
August 24, 2023. Summaries of the
public hearing session and of the input
received during the State input session
can be found in the docket for this
rulemaking. Furthermore, EPA reviewed
and responded to the public comment
letters from State and local governments
in a Response to Comments document
that can also be found in the docket for
this rulemaking. All comment letters
and recommendations received by EPA
during the public comment period from
State and local governments are
included in the docket for this action
(Docket ID No. EPA–HQ–OW–2020–
0276).
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action may have implications for
Tribal governments. However, it will
neither impose substantial direct
compliance costs on federally
recognized Tribal governments, nor
preempt Tribal law. This action would
expand Tribes’ ability to utilize TAS for
purposes of commenting as ‘‘affected
States,’’ and would develop an avenue
for EPA review of permits that may
impact Tribal rights and resources.
EPA consulted with Tribal officials
under the EPA Policy on Consultation
and Coordination with Indian Tribes
early in the process of developing this
regulation to permit Tribes to have
46 The Agency invited written input from State
agencies from November 12, 2018, through January
11, 2019. Due to the lapse in Federal Government
funding, EPA accepted input from states until
February 2019.
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meaningful and timely input into its
development. EPA has developed a
document which further describes
EPA’s efforts to engage with Tribal
representatives and is available in the
docket for this rulemaking.
As required by section 7(a), EPA’s
Tribal Consultation Official has certified
that the requirements of the executive
order have been met in a meaningful
and timely manner. A copy of this
certification is included in the docket
for this action.
The Agency initiated a Tribal
consultation and coordination process
before proposing a rule by sending a
‘‘Notification of Consultation and
Coordination’’ letter, dated October 19,
2018, to all Tribes federally recognized
at that time. The letter invited Tribal
leaders and designated representatives
to participate in the Tribal consultation
and coordination process for this
rulemaking. The Agency engaged with
Tribes over a 60-day consultation period
that concluded on December 21, 2018,
including two Tribes-only informational
webinars on November 20 and 29, 2018.
During this consultation period, EPA
participated in in-person meetings with
Tribal associations, including a
presentation for the National Tribal
Water Council on October 24, 2018, and
an informational session at the National
Congress of American Indians 75th
Annual Convention on October 24,
2018. The Agency also attended the EPA
Region 9 Regional Tribal Operations
Committee (RTOC) meeting on October
31, 2018, the EPA Region 6 RTOC
meeting on November 28, 2018, and the
EPA Region 7 Enhancing State and
Tribal Programs Wetland Symposium
on November 5, 2018. At the meetings
and webinars, EPA sought input on
aspects of the section 404 Tribal and
State program regulations and
assumption process. The Agency
initiated a second Tribal consultation
and coordination period on July 18,
2023. The Agency engaged with Tribes
over a 60-day period that concluded on
September 17, 2023, including two
Tribal input sessions on August 15 and
30, 2023. During this consultation
period, EPA participated in various
meetings with Tribal associations,
continued outreach and engagement
with Tribes, and sought other
opportunities to provide information
and hear feedback from Tribes at
national and regional Tribal meetings
during and after the end of the
consultation period. The Agency notes
that two Tribes requested governmentto-government consultation. However,
no responses were received to schedule
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the consultations.47 All Tribal and
Tribal organization letters and a
summary of the Tribal consultation and
coordination effort may be found in the
docket for this action.
After publishing the proposed rule in
the Federal Register, stakeholders were
encouraged to submit comment letters
during a 60-day public comment period
and EPA held a public hearing on
September 6, 2023, for all stakeholders
to provide public comment on the
proposed rule. Summaries of the public
hearing and of the input received during
the Tribal input sessions can be found
in the docket for this rulemaking.
Furthermore, EPA reviewed and
responded to the public comment letters
from Tribal representatives in a
Response to Comment document that
can also be found in the docket for this
rulemaking.
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
EPA interprets Executive Order 13045
as applying only to those regulatory
actions that concern environmental
health or safety risks that EPA has
reason to believe may
disproportionately affect children, per
the definition of ‘‘covered regulatory
action’’ in section 2–202 of the
Executive Order. Therefore, this action
is not subject to Executive Order 13045
because it does not concern an
environmental health risk or safety risk.
Since this action does not concern
human health, EPA’s Policy on
Children’s Health also does not apply.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not a ‘‘significant
energy action’’ because it is not likely to
have a significant adverse effect on the
supply, distribution, or use of energy.
I. National Technology Transfer and
Advancement Act
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This rulemaking does not involve
technical standards.
47 During the consultation period prior to the
development of the final rule, two requests for
government-to-government consultation were
received. On July 25, 2023, EPA sent both the Mille
Lacs Band of Ojibwe and the Grand Portage Band
of Lake Superior Chippewa an invitation to
schedule consultation. No responses were received
to the invitation to schedule consultation.
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J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations and Executive
Order 14096: Revitalizing Our Nation’s
Commitment to Environmental Justice
for All
EPA believes that the human health
and environmental conditions that exist
prior to this action do not result in
disproportionate and adverse effects on
communities with environmental justice
concerns. The final rule creates more
transparency and clarity for Tribes and
States with existing section 404
programs and for those seeking to
assume. Environmental justice
considerations are potentially addressed
through the following topics in the final
rule: (1) public notice and hearings, (2)
no less stringent than, (3) long-term
permitting, (4) judicial review, (5)
affected States, and (6) opportunities for
Tribes.
First, within the final rule and
assumption process, there are multiple
opportunities for public engagement
through public notice and hearings,
including for communities with
environmental justice concerns. Second,
the section 404 Tribal and State
regulations require that Tribes or States
with an approved section 404 program
may not impose conditions less
stringent than those required under
Federal law, so the environmental
impacts of permitted projects would not
increase due to this transfer of authority.
Third, the final rule provides an
improved ability for communities with
environmental justice concerns to
participate in the section 404 permitting
process for long-term projects. Fourth,
the requirements for State-assumed
section 404 programs allow for judicial
review in State courts, which is an
opportunity for affected stakeholders to
address concerns through judicial
review.
Lastly, EPA additionally identified
and addressed potential environmental
justice concerns by expanding Tribes’
ability to utilize TAS for purposes of
commenting as ‘‘affected States’’ and
developing an avenue for EPA review of
permits that may impact Tribal rights
and resources. The final rule will enable
Tribes to have a more significant role in
the permit decision-making process
than under prior practice. See Section V
of the Economic Analysis for the Final
Rule for additional information on the
final regulations.
The information supporting this
Executive Order review is contained in
Section V of the Economic Analysis for
the Final Rule, which is available in the
docket for this action.
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K. Congressional Review Act (CRA)
This action is subject to the CRA, and
EPA will submit a rule report to each
House of Congress and to the
Comptroller General of the United
States. This action does not meet the
criteria as defined by 5 U.S.C. 804(2).
List of Subjects
40 CFR Part 123
Environmental protection, Flood
control, Water pollution control.
40 CFR Part 124
Environmental protection,
Administrative practice and procedure,
Air pollution control, Hazardous waste,
Indians—lands, Reporting and
recordkeeping requirements, Water
pollution control, Water supply.
40 CFR Part 232
Environmental protection,
Intergovernmental relations, Water
pollution control.
40 CFR Part 233
Environmental protection,
Administrative practice and procedure,
Incorporation by reference, Indians—
lands, Intergovernmental relations,
Penalties, Reporting and recordkeeping
requirements, Water pollution control.
Michael S. Regan,
Administrator.
For the reasons set forth in this
preamble, EPA amends 40 CFR parts
123, 124, 232, and 233 as follows:
PART 123—STATE PROGRAM
REQUIREMENTS
1. The authority citation for part 123
continues to read as follows:
■
Authority: Clean Water Act, 33 U.S.C.
1251 et seq.
2. Section 123.27 is amended by:
a. Revising paragraphs (a)
introductory text and (a)(3) introductory
text;
■ b. Removing the note immediately
following paragraph (a)(3)(ii); and
■ c. Revising paragraph (b)(2).
The revisions read as follows:
■
■
§ 123.27 Requirements for enforcement
authority.
(a) Any State agency administering a
program shall have the authority to
establish the following violations and
have available the following remedies
and penalties for such violations of
State program requirements:
*
*
*
*
*
(3) To assess or sue to recover in court
civil penalties and to seek criminal
penalties as follows:
*
*
*
*
*
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(b) * * *
(2) The burden of proof and degree of
knowledge or intent required under
State law for establishing violations
under paragraph (a)(3) of this section,
shall be no greater than the burden of
proof or degree of knowledge or intent
EPA must provide when it brings an
action under the Act, except that a State
may establish criminal violations based
on any form or type of negligence.
Note 3 to paragraph (b)(2): For example,
this requirement is not met if State law
includes mental state as an element of proof
for civil violations.
*
*
*
*
*
PART 124—PROCEDURES FOR
DECISIONMAKING
3. The authority citation for part 124
continues to read as follows:
■
Authority: Resource Conservation and
Recovery Act, 42 U.S.C. 6901 et seq.; Safe
Drinking Water Act, 42 U.S.C. 300f et seq.;
Clean Water Act, 33 U.S.C. 1251 et seq.;
Clean Air Act, 42 U.S.C. 7401 et seq.
4. Amend § 124.1 by revising
paragraphs (e) and (f) to read as follows:
■
§ 124.1
Purpose and scope.
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*
*
*
*
*
(e) Certain procedural requirements
set forth in this part must be adopted by
States in order to gain EPA approval to
operate RCRA, UIC, and NPDES permit
programs. These requirements are listed
in 40 CFR 123.25 (NPDES), 145.11
(UIC), and 271.14 (RCRA) and signaled
by the following words at the end of the
appropriate part 124 section or
paragraph heading: (applicable to State
programs see 40 CFR 123.25 (NPDES),
145.11 (UIC), and 271.14 (RCRA)). This
part does not apply to PSD permits or
404 permits issued by an approved
State.
(f) To coordinate decision-making
when different permits will be issued by
EPA and approved State programs, this
part allows applications to be jointly
processed, joint comment periods and
hearings to be held, and final permits to
be issued on a cooperative basis
whenever EPA and a State agree to take
such steps in general or in individual
cases. These joint processing agreements
may be provided in the Memorandum of
Agreement developed under 40 CFR
123.24 (NPDES), 145.24 (UIC), and
271.8 (RCRA).
■ 5. Amend § 124.2 by:
■ a. In paragraph (a):
■ i. Revising the introductory text;
■ ii. Revising the definitions for
‘‘Facility or activity’’, ‘‘General permit’’,
‘‘Major facility’’, ‘‘Owner or operator’’,
‘‘Permit’’, and ‘‘SDWA’’; and
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iii. Removing the definition for
‘‘Section 404 program or State 404
program or 404’’; and
■ iv. Revising the definition for ‘‘Site’’;
and
■ b. Revising paragraph (b).
The revisions read as follows:
■
§ 124.2
Definitions.
(a) In addition to the definitions given
in 40 CFR 122.2 and 123.2 (NPDES),
501.2 (sludge management), 144.3 and
145.2 (UIC), and 270.2 and 271.2
(RCRA), the definitions below apply to
this part, except for PSD permits which
are governed by the definitions in
§ 124.41. Terms not defined in this
section have the meaning given by the
appropriate Act.
*
*
*
*
*
Facility or activity means any ‘‘HWM
facility,’’ UIC ‘‘injection well,’’ NPDES
‘‘point source’’ or ‘‘treatment works
treating domestic sewage’’, or any other
facility or activity (including land or
appurtenances thereto) that is subject to
regulation under the RCRA, UIC, or
NPDES programs.
*
*
*
*
*
General permit (NPDES) means an
NPDES ‘‘permit’’ authorizing a category
of discharges or activities under the
CWA within a geographical area. For
NPDES, a general permit means a permit
issued under 40 CFR 122.28.
*
*
*
*
*
Major facility means any RCRA, UIC,
or NPDES ‘‘facility or activity’’
classified as such by the Regional
Administrator, or, in the case of
‘‘approved State programs,’’ the
Regional Administrator in conjunction
with the State Director.
Owner or operator means owner or
operator of any ‘‘facility or activity’’
subject to regulation under the RCRA,
UIC, or NPDES programs.
Permit means an authorization,
license or equivalent control document
issued by EPA or an ‘‘approved State’’
to implement the requirements of this
part and parts 122, 123, 144, 145, 270,
and 271 of this chapter. ‘‘Permit’’
includes RCRA ‘‘permit by rule’’ (40
CFR 270.60), RCRA emergency permit
(40 CFR 270.61), RCRA standardized
permit (40 CFR 270.67), UIC area permit
(40 CFR 144.33), UIC emergency permit
(§ 144.34), and NPDES ‘‘general permit’’
(40 CFR 122.28). Permit does not
include RCRA interim status (40 CFR
270.70), UIC authorization by rule (40
CFR 144.21), or any permit which has
not yet been the subject of final agency
action, such as a ‘‘draft permit’’ or a
‘‘proposed permit.’’
*
*
*
*
*
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SDWA means the Safe Drinking Water
Act (Pub. L. 95–523, as amended by
Pub. L. 95–1900; 42 U.S.C. 300f et seq.).
Site means the land or water area
where any ‘‘facility or activity’’ is
physically located or conducted,
including adjacent land used in
connection with the facility or activity.
*
*
*
*
*
(b) For the purposes of 40 CFR part
124, the term Director means the State
Director or Regional Administrator and
is used when the accompanying
provision is required of EPAadministered programs and of State
programs under 40 CFR 123.25
(NPDES), 145.11 (UIC), and 271.14
(RCRA). The term Regional
Administrator is used when the
accompanying provision applies
exclusively to EPA-issued permits and
is not applicable to State programs
under these sections. While States are
not required to implement these latter
provisions, they are not precluded from
doing so, notwithstanding use of the
term ‘‘Regional Administrator.’’
■ 6. Amend § 124.3 by revising
paragraph (a) heading, and paragraphs
(a)(1) and (3) to read as follows:
§ 124.3
Application for a permit.
(a) Applicable to State programs, see
40 CFR 123.25 (NPDES), 145.11 (UIC),
and 271.14 (RCRA). (1) Any person who
requires a permit under the RCRA, UIC,
NPDES, or PSD programs shall
complete, sign, and submit to the
Director an application for each permit
required under 40 CFR 270.1 (RCRA),
144.1 (UIC), 40 CFR 52.21 (PSD), and
122.1 (NPDES). Applications are not
required for RCRA permits by rule (40
CFR 270.60), underground injections
authorized by rules (40 CFR 144.21
through 144.26), and NPDES general
permits (40 CFR 122.28).
*
*
*
*
*
(3) Permit applications (except for
PSD permits) must comply with the
signature and certification requirements
of 40 CFR 122.22 (NPDES), 144.32
(UIC), and 270.11 (RCRA).
*
*
*
*
*
■ 7. Amend § 124.5 by:
■ a. Revising paragraph (a), paragraph
(c) heading, and paragraphs (c)(1) and
(3);
■ b. Removing paragraph (f); and
■ c. Redesignating paragraph (g) as
paragraph (f).
The revision reads as follows:
§ 124.5 Modification, revocation and
reissuance, or termination of permits.
(a) (Applicable to State programs, see
40 CFR 123.25 (NPDES), 145.11 (UIC),
and 271.14 (RCRA).) Permits (other than
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PSD permits) may be modified, revoked
and reissued, or terminated either at the
request of any interested person
(including the permittee) or upon the
Director’s initiative. However, permits
may only be modified, revoked, and
reissued or terminated for the reasons
specified in 40 CFR 122.62 or 122.64
(NPDES), 144.39 or 144.40 (UIC), and
270.41 or 270.43 (RCRA). All requests
shall be in writing and shall contain
facts or reasons supporting the request.
*
*
*
*
*
(c) (Applicable to State programs, see
40 CFR 123.25 (NPDES), 145.11 (UIC),
and 271.14 (RCRA)). (1) If the Director
tentatively decides to modify or revoke
and reissue a permit under 40 CFR
122.62 (NPDES), 144.39 (UIC), or 270.41
(other than 40 CFR 270.41(b)(3) or 40
CFR 270.42(c) (RCRA)), he or she shall
prepare a draft permit under 40 CFR
124.6 incorporating the proposed
changes. The Director may request
additional information and, in the case
of a modified permit, may require the
submission of an updated application.
In the case of revoked and reissued
permits, other than under 40 CFR
270.41(b)(3), the Director shall require
the submission of a new application. In
the case of revoked and reissued permits
under 40 CFR 270.41(b)(3), the Director
and the permittee shall comply with the
appropriate requirements in subpart G
of this part for RCRA standardized
permits.
*
*
*
*
*
(3) ‘‘Minor modifications’’ as defined
in 40 CFR 122.63 (NPDES), and 144.41
(UIC), and ‘‘Classes 1 and 2
modifications’’ as defined in 40 CFR
270.42 (a) and (b) (RCRA) are not subject
to the requirements of this section.
*
*
*
*
*
■ 8. Amend § 124.6 by:
■ a. Revising paragraphs (a) and (c),
paragraph (d) heading and introductory
text, paragraphs (d)(1) through (3);
■ b. Removing paragraph (d)(4)(iv);
■ c. Redesignating paragraph (d)(4)(v) as
paragraph (d)(4)(iv); and
■ d. Revising the paragraph (e) heading.
The revisions read as follows:
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§ 124.6
Draft permits.
(a) (Applicable to State programs, see
40 CFR 123.25 (NPDES), 145.11 (UIC),
and 271.14 (RCRA).) Once an
application is complete, the Director
shall tentatively decide whether to
prepare a draft permit or to deny the
application.
*
*
*
*
*
(c) (Applicable to State programs, see
40 CFR 123.25 (NPDES).) If the Director
tentatively decides to issue an NPDES
general permit, he or she shall prepare
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a draft general permit under paragraph
(d) of this section.
(d) (Applicable to State programs, see
40 CFR 123.25 (NPDES), 145.11 (UIC),
and 271.14 (RCRA).) If the Director
decides to prepare a draft permit, he or
she shall prepare a draft permit that
contains the following information:
(1) All conditions under 40 CFR
122.41 and 122.43 (NPDES), 144.51 and
144.42 (UIC), or 270.30 and 270.32
(RCRA) (except for PSD permits));
(2) All compliance schedules under
40 CFR 122.47 (NPDES), 144.53 (UIC),
or 270.33 (RCRA) (except for PSD
permits);
(3) All monitoring requirements under
40 CFR 122.48 (NPDES), 144.54 (UIC),
or 270.31 (RCRA) (except for PSD
permits); and
*
*
*
*
*
(e) (Applicable to State programs, see
40 CFR 123.25 (NPDES), 145.11 (UIC),
and 271.14 (RCRA).) * * *
*
*
*
*
*
9. Amend § 124.8 by revising the
introductory text and paragraph (a) to
read as follows:
■
§ 124.8
Fact sheet.
(Applicable to State programs, see 40
CFR 123.25 (NPDES), 145.11 (UIC), and
271.14 (RCRA).)
(a) A fact sheet shall be prepared for
every draft permit for a major HWM,
UIC, or NPDES facility or activity, for
every Class I sludge management
facility, for every NPDES general permit
(40 CFR 122.28 of this subchapter), for
every NPDES draft permit that
incorporates a variance or requires an
explanation under 40 CFR 124.56(b), for
every draft permit that includes a
sewage sludge land application plan
under 40 CFR 501.15(a)(2)(ix), and for
every draft permit which the Director
finds is the subject of wide-spread
public interest or raises major issues.
The fact sheet shall briefly set forth the
principal facts and the significant
factual, legal, methodological, and
policy questions considered in
preparing the draft permit. The Director
shall send this fact sheet to the
applicant and, on request, to any other
person.
*
*
*
*
*
10. Amend § 124.10 by:
a. Revising paragraph (a)(1);
b. Revising the paragraph (b) heading;
c. Revising the introductory text of
paragraph (c), and paragraphs (c)(1)(i),
(ii), and (iv);
■ d. Removing paragraph (c)(1)(vi);
■ e. Redesignating paragraphs (c)(1)(vii)
through (xi) as paragraphs (c)(1)(vi)
through (x);
■
■
■
■
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f. Revising paragraph (c)(2)(i);
g. Revising the paragraph (d) heading,
and paragraphs (d)(1)(ii) and (iii);
■ h. Removing paragraph (d)(1)(viii);
■ i. Redesignating paragraphs (d)(1)(ix)
and (x) as paragraphs (d)(1)(viii) and
(ix);
■ j. Adding at the end of paragraph
(d)(2)(ii) the word ‘‘and’’ after the semicolon;
■ k. Removing the text ‘‘; and’’ at the
end of paragraph (d)(2)(iii) and adding
a period in its place;
■ l. Removing paragraph (d)(2)(iv); and
■ m. Revising paragraph (e).
The revisions read as follows:
■
■
§ 124.10 Public notice of permit actions
and public comment period.
(a) * * *
(1) The Director shall give public
notice that the following actions have
occurred:
(i) A permit application has been
tentatively denied under § 124.6(b);
(ii) (Applicable to State programs, see
40 CFR 123.25 (NPDES), 145.11 (UIC),
and 271.14 (RCRA).) A draft permit has
been prepared under § 124.6(d);
(iii) (Applicable to State programs,
see 40 CFR 123.25 (NPDES), 145.11
(UIC), and 271.14 (RCRA)).) A hearing
has been scheduled under § 124.12; or
(iv) An NPDES new source
determination has been made under
§ 122.29 of this subchapter.
*
*
*
*
*
(b) Timing (applicable to State
programs, see 40 CFR 123.25 (NPDES),
145.11 (UIC), and 271.14 (RCRA)).
*
*
*
*
*
(c) Methods (applicable to State
programs, see 40 CFR 123.25 (NPDES),
145.11 (UIC), and 271.14 (RCRA)).
Public notice of activities described in
paragraph (a)(1) of this section shall be
given by the following methods:
(1) * * *
(i) The applicant (except for NPDES
general permits when there is no
applicant);
(ii) Any other agency which the
Director knows has issued or is required
to issue a RCRA, UIC, PSD (or other
permit under the Clean Air Act),
NPDES, sludge management permit, or
ocean dumping permit under the
Marine Research Protection and
Sanctuaries Act for the same facility or
activity (including EPA when the draft
permit is prepared by the State);
*
*
*
*
*
(iv) For NPDES permits only, any
State agency responsible for plan
development under CWA section
208(b)(2), 208(b)(4) or 303(e) and the
U.S. Army Corps of Engineers, the U.S.
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Fish and Wildlife Service and the
National Marine Fisheries Service;
*
*
*
*
*
(2)(i) For major permits, NPDES
general permits, and permits that
include sewage sludge land application
plans under 40 CFR 501.15(a)(2)(ix),
publication of a notice in a daily or
weekly newspaper within the area
affected by the facility or activity; and
for EPA-issued NPDES general permits,
in the Federal Register;
Note 1 to paragraph (c)(2)(i): The Director
is encouraged to provide as much notice as
possible of the NPDES draft general permit to
the facilities or activities to be covered by the
general permit.
*
*
*
*
*
(d) Contents (applicable to State
programs, see 40 CFR 123.25 (NPDES),
145.11 (UIC), and 271.14 (RCRA))—
(1) * * *
(ii) Name and address of the permittee
or permit applicant and, if different, of
the facility or activity regulated by the
permit, except in the case of NPDES
draft general permits under 40 CFR
122.28;
(iii) A brief description of the
business conducted at the facility or
activity described in the permit
application or the draft permit, for
NPDES general permits when there is no
application;
*
*
*
*
*
(e) (Applicable to State programs, see
40 CFR 123.25 (NPDES), 145.11 (UIC),
and 271.14 (RCRA).) In addition to the
general public notice described in
paragraph (d)(1) of this section, all
persons identified in paragraphs (c)(1)
(i) through (iv) of this section shall be
mailed a copy of the fact sheet or
statement of basis (for EPA-issued
permits), the permit application (if any)
and the draft permit (if any).
■ 11. Revise § 124.11 to read as follows:
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§ 124.11 Public comments and requests
for public hearings.
(Applicable to State programs, see 40
CFR 123.25 (NPDES), 145.11 (UIC), and
271.14 (RCRA).) During the public
comment period provided under
§ 124.10, any interested person may
submit written comments on the draft
permit and may request a public
hearing, if no hearing has already been
scheduled. A request for a public
hearing shall be in writing and shall
state the nature of the issues proposed
to be raised in the hearing. All
comments shall be considered in
making the final decision and shall be
answered as provided in § 124.17.
■ 12. Amend § 124.12 by revising the
paragraph (a) heading to read as follows:
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§ 124.12
Public hearings.
(a) (Applicable to State programs, see
40 CFR 123.25 (NPDES), 145.11 (UIC),
and 271.14 (RCRA).)
*
*
*
*
*
■ 13. Amend § 124.17 by revising the
paragraph (a) heading, and paragraphs
(a)(2) and (c) to read as follows:
§ 124.17
Response to comments.
(a) (Applicable to State programs, see
40 CFR 123.25 (NPDES), 145.11 (UIC),
and 271.14 (RCRA).)
*
*
*
*
*
(2) Briefly describe and respond to all
significant comments on the draft
permit raised during the public
comment period, or during any hearing.
*
*
*
*
*
(c) (Applicable to State programs, see
40 CFR 123.25 (NPDES), 145.11 (UIC),
and 271.14 (RCRA).) The response to
comments shall be available to the
public.
PART 232—404 PROGRAM
DEFINITIONS—EXEMPT ACTIVITIES
NOT REQUIRING 404 PERMITS
14. The authority citation for part 232
continues to read as follows:
■
Authority: 33 U.S.C. 1251 et seq.
15. Amend § 232.2 by revising the
definition of ‘‘State regulated waters’’ to
read as follows:
■
§ 232.2
Definitions.
*
*
*
*
*
State regulated waters means those
waters of the United States in which the
Corps suspends the issuance of section
404 permits upon program assumption
by a State, which exclude those
identified as retained waters pursuant to
40 CFR 233.11(i). All waters of the
United States other than those identified
as retained waters in a State with an
approved program shall be under
jurisdiction of the State program, and
shall be identified in the program
description as required by 40 CFR part
233.
*
*
*
*
*
PART 233—404 STATE PROGRAM
REGULATIONS
16. The authority citation for part 233
continues to read as follows:
■
Authority: 33 U.S.C. 1251 et seq.
17. Amend § 233.1 by:
a. Revising the fourth sentence in
paragraph (b);
■ b. Removing the note that appears
after paragraph (c);
■ c. Revising paragraph (d); and
■ d. Adding paragraphs (e) and (f).
■
■
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The revisions and additions read as
follows:
§ 233.1
Purpose and scope.
*
*
*
*
*
(b) * * * The discharges previously
authorized by a Corps’ general permit
will be regulated by State permits.
* * *
*
*
*
*
*
(d) State assumption of the section
404 program is limited to certain waters,
as provided in section 404(g)(1) and as
identified through the process laid out
in § 233.11(i). The Federal program
operated by the Corps of Engineers
continues to apply to the remaining
waters in the State even after program
approval. However, this does not restrict
States from regulating discharges of
dredged or fill material into those
waters over which the Secretary retains
section 404 jurisdiction.
(e) Any approved State Program shall,
at all times, be conducted in accordance
with the requirements of the Act and of
this part. While States may impose more
stringent requirements, they may not
impose any less stringent requirements
for any purpose. States may not make
one requirement more lenient than
required under these regulations as a
tradeoff for making another requirement
more stringent than required. Where the
404(b)(1) Guidelines (40 CFR part 230)
or other regulations affecting State 404
programs suggest that the District
Engineer or Corps of Engineers is
responsible for certain decisions or
actions (e.g., approving mitigation bank
instruments), in an approved State
Program the State Director carries out
such action or responsibility for
purposes of that program, as
appropriate.
(f) EPA may facilitate resolution of
disputes between Federal agencies,
Tribes, and States seeking to assume
and/or administer a CWA section 404
program. Where a dispute resolution or
elevation process is enumerated in this
part or in an agreement approved by
EPA at the time of assumption or
program revision, such process and
procedures shall be followed.
18. Amend § 233.2 by:
a. Adding in alphabetical order the
definitions for ‘‘Indian lands’’,
‘‘Retained waters description’’, and
‘‘RHA section 10 list’’; and
■ b. Revising the definition ‘‘State 404
program or State program’’.
The additions and revision read as
follows:
■
■
§ 233.2
*
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*
*
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Indian lands means ‘‘Indian country’’
as defined under 18 U.S.C. 1151. That
section defines Indian country as:
(1) All land within the limits of any
Indian reservation under the
jurisdiction of the United States
Government, notwithstanding the
issuance of any patent, and, including
rights-of-way running through the
reservation,
(2) All dependent Indian communities
within the borders of the United States
whether within the original or
subsequently acquired territory thereof,
and whether within or without the
limits of a State, and
(3) All Indian allotments, the Indian
titles to which have not been
extinguished, including rights-of-way
running through the same.
*
*
*
*
*
Retained waters description: The
subset of waters of the United States
over which the Corps retains
administrative authority upon program
assumption by a State as identified
through the process at § 233.11(i). The
description shall address, in the case of
State assumption, the extent to which
waters on Indian lands are retained.
RHA section 10 list: The list of waters
determined to be navigable waters of the
United States pursuant to section 10 of
the Rivers and Harbors Act and 33 CFR
part 329 and that are maintained in
Corps district offices pursuant to 33 CFR
329.16.
*
*
*
*
*
State 404 program or State program
means a program which has been
approved by EPA under section 404 of
the Act to regulate the discharge of
dredged or fill material into all waters
of the United States except those
identified in the retained waters
description as defined in § 233.2.
■
19. Revise § 233.4 to read as follows:
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§ 233.4
Conflict of interest.
Any public officer, employee, or
individual with responsibilities related
to the section 404 permitting program
who has a direct personal or pecuniary
interest in any matter that is subject to
decision by the agency shall make
known such interest in the official
records of the agency and shall refrain
from participating in any manner in
such decision by the agency or any
entity that reviews agency decisions.
20. Amend § 233.10 by revising
paragraph (a) to read as follows:
■
§ 233.10 Elements of a program
submission.
*
*
*
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*
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(a) A letter from the Governor of the
State or Tribal leader requesting
program approval.
*
*
*
*
*
■ 21. Revise § 233.11 to read as follows:
§ 233.11
Program description.
The program description as required
under § 233.10 shall include:
(a) A description of the scope and
structure of the State’s program. The
description must include the extent of
the State’s jurisdiction, scope of
activities regulated, anticipated
coordination, scope of permit
exemptions if any, permit review
criteria, and a description as to how the
permit review criteria will be sufficient
to carry out the requirements of 40 CFR
part 233 subpart C.
(b) A description of the State’s
permitting, administrative, judicial
review, and other applicable
procedures.
(c) A description of the basic
organization and structure of the State
agency (agencies) which will have
responsibility for administering the
program. If more than one State agency
is responsible for the administration of
the program, the description shall
address the responsibilities and
additional budget and funding
mechanisms of each agency and how
the agencies intend to coordinate
administration, funding, compliance,
enforcement, and evaluation of the
program.
(d) A description of the funding and
staffing which will be available for
program administration, including staff
position descriptions and qualifications
as well as program budget and funding
mechanisms, sufficient to meet the
requirements of 40 CFR part 233,
subparts C through E.
(e) A description and schedule of the
actions that will be taken following EPA
approval for the State to begin
administering the program if the State
makes a request to assume
administration of the program more
than 30 days after EPA’s approval.
(f) An estimate of the anticipated
workload, including but not limited to
number of discharges, permit reviews,
authorizations and field visits, and
decisions regarding jurisdiction.
(g) Copies of permit application
forms, permit forms, and reporting
forms.
(h) A description of the State’s
compliance evaluation and enforcement
programs, including staff position
descriptions and qualifications as well
as program budget and funding
mechanisms, sufficient to meet the
requirements of 40 CFR part 233,
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subpart E, and an explanation of how
the State will coordinate its enforcement
strategy with that of the Corps and EPA.
(i) A description of the waters of the
United States within a State over which
the State assumes jurisdiction under the
assumed program; a description of the
waters of the United States within a
State over which the Secretary retains
administrative authority subsequent to
program approval; and a comparison of
the State and Federal definitions of
wetlands.
(1) Before a State provides a program
submission to the Regional
Administrator, the Governor, Tribal
leader, or Director shall submit a request
to the Regional Administrator that the
Corps identify the subset of waters of
the United States that would remain
subject to Corps administrative
authority to include in its program
submission. The request shall also
include one of the following elements of
required information: a citation or copy
of legislation authorizing funding to
prepare for assumption, a citation or
copy of legislation authorizing
assumption, a Governor or Tribal leader
directive, a letter from the head of a
State agency, or a copy of a letter
awarding a grant or other funding
allocated to investigate and pursue
assumption. If the Regional
Administrator determines that the
request includes the required
information, within seven days of
receiving the State’s request, the
Regional Administrator shall transmit
the request for the retained waters
description to the Corps. Transmitting
the request to the Corps is intended to
allow the Corps time to review its RHA
section 10 list(s) and prepare a
description of retained waters based on
that list(s), in accordance with
paragraph (i)(4) of this section, if the
Corps chooses to do so.
(2) When the Regional Administrator
transmits a request for the retained
waters description to the Corps, the
Regional Administrator shall notify the
public of this transmission by posting a
notice on its website and circulating
notice to those persons known to be
interested in such matters of its
transmission, inviting public input to
the Corps and the State for the
subsequent 60 days on the development
of the description.
(3) If the Corps does not notify the
State and EPA that it intends to provide
a retained waters description within 30
days of receiving the State’s request
transmitted by EPA, or if it does not
provide a retained waters description
within 180 days of receiving the State’s
request transmitted by EPA, the State
may develop a retained waters
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description pursuant to the process
described in paragraph (i)(4) of this
section. Alternatively, the State and the
Corps may mutually agree to extend the
time period in which the Corps may
develop the retained waters description.
(4) The program description in the
State’s program request to the Regional
Administrator shall include a
description of those waters of the
United States over which the Corps
retains administrative authority. The
description may be a retained waters
description that the Corps provides the
State pursuant to paragraph (i)(1) of this
section, or, if the Corps did not provide
a list to the State, a description that the
State prepares pursuant to paragraph
(i)(3) of this section. The retained waters
description prepared by either the Corps
or the State shall be compiled as
follows:
(i) Using the relevant RHA section 10
list(s) as a starting point;
(ii) Placing waters of the United
States, or reaches of these waters, from
the RHA section 10 list into the retained
waters description if they are known to
be presently used or susceptible to use
in their natural condition or by
reasonable improvement as a means to
transport interstate or foreign
commerce;
(iii) To the extent feasible and to the
extent that information is available,
adding other waters or reaches of waters
to the retained waters description that
are presently used or are susceptible to
use in their natural condition or by
reasonable improvement as a means to
transport interstate or foreign
commerce; and
(iv) Adding a description of retained
wetlands that are adjacent to the
foregoing waters. A specific listing of
each wetland that is retained is not
required.
(5) As a general matter, descriptions
of retained waters compiled in
accordance with the process in
paragraph (i)(4) of this section will
satisfy the statutory criteria for retained
waters. The Regional Administrator
ultimately determines whether to
approve a State program submission,
however.
(6) The State assumes permitting
authority over all waters of the United
States not retained by the Corps as
described in paragraph (i)(4) of this
section. The State does not assume
permitting authority over waters of the
United States in Indian Country and
Lands of Exclusive Federal Jurisdiction,
as these are outside of the State’s
jurisdiction. All discharges of dredged
or fill material into waters of the United
States must be regulated either by the
State or the Corps; at no time shall there
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be a gap in permitting authority for any
water of the United States.
(j) A description of the specific best
management practices proposed to be
used to satisfy the exemption provisions
of section 404(f)(1)(E) of the Act for
construction or maintenance of farm
roads, forest roads, or temporary roads
for moving mining equipment.
(k) A description of the State’s
approach to ensure that all permits
issued satisfy the substantive standards
and criteria for the use of compensatory
mitigation consistent with the
requirements of 40 CFR part 230,
subpart J. The State’s approach may
deviate from the specific requirements
of subpart J to the extent necessary to
reflect State administration of the
program using State processes as
opposed to Corps administration. For
example, a State program may choose to
provide for mitigation in the form of
banks and permittee-responsible
compensatory mitigation but not
establish an in-lieu fee program. A State
program may not be less stringent than
the requirements of subpart J.
■ 22. Amend § 233.13 by adding
paragraph (b)(5) to read as follows:
§ 233.13 Memorandum of Agreement with
Regional Administrator.
*
*
*
*
*
(b) * * *
(5) Provisions specifying the date
upon which the State shall begin
administering its program. This effective
date shall be 30 days from the date that
notice of the Regional Administrator’s
decision is published in the Federal
Register, except where the Regional
Administrator has agreed to a State’s
request for a later effective date, not to
exceed 180 days from the date of
publication of the decision in the
Federal Register.
■ 23. Amend § 233.14 by revising
paragraph (b) to read as follows:
§ 233.14 Memorandum of Agreement with
the Secretary.
*
*
*
*
*
(b) The Memorandum of Agreement
shall include:
(1) A description of all navigable
waters within the State over which the
Corps retains administrative authority.
Retained waters shall be identified in
accordance with procedures set forth in
§ 233.11(i).
(2) Procedures whereby the Secretary
will, prior to or on the effective date set
forth in the Memorandum of Agreement
with the Regional Administrator,
transfer to the State pending section 404
permit applications for discharges into
State regulated waters and other
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relevant information not already in the
possession of the Director.
Note 1 to paragraph (b)(2): Where a State
permit program includes coverage of those
navigable waters in which only the Secretary
may issue section 404 permits, the State is
encouraged to establish in this Memorandum
of Agreement procedures for joint processing
of Federal and State permits, including joint
public notice and public hearings.
(3) An identification of all general
permits issued by the Secretary, the
terms and conditions of which the State
intends to administer and enforce upon
receiving approval of its program, and a
plan for transferring responsibility for
these general permits to the State,
including procedures for the prompt
transmission from the Secretary to the
Director relevant information not
already in the possession of the
Director. The information to be
transferred includes but is not limited to
support files for permit issuance,
conditions and certifications placed on
the Corps general permits, compliance
reports, and records of enforcement
actions.
(4) Procedures whereby the Secretary
would notify the State of changes to its
RHA section 10 list that implicate
waters that are presently used, or are
susceptible to use in their natural
condition or by reasonable improvement
as a means to transport interstate or
foreign commerce, and the State would
then incorporates these changes into its
retained waters description, pursuant to
the procedures in § 233.16(d).
■ 24. Amend § 233.15 by:
■ a. Revising the first sentence of the
introductory text of paragraph (e);
■ b. Revising the second sentence of
paragraph (g); and
■ c. Revising paragraph (h).
The revisions read as follows:
§ 233.15 Procedures for approving State
programs.
*
*
*
*
*
(e) After determining that a State
program submission is complete, the
Regional Administrator shall publish
notice of the State’s program submission
in the Federal Register and in enough
of the largest newspapers in the State to
attract statewide attention. * * *
*
*
*
*
*
(g) * * * The Regional Administrator
shall prepare a responsiveness summary
of significant comments received and
the Regional Administrator’s response
to these comments. * * *
(h) If the Regional Administrator
approves the State’s section 404
program, the Regional Administrator
shall notify the State and the Secretary
of the decision, publish notice in the
Federal Register, and post notice on
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EPA’s website. The program for Stateassumed waters shall transfer to the
State on the date established in the
Memorandum of Agreement between
the State and Regional Administrator.
The Secretary shall suspend the
issuance by the Corps of section 404
permits in State regulated waters on
such effective date.
*
*
*
*
*
■ 25. Amend § 233.16 by revising
paragraphs (d)(2) and (3), and (e) to read
as follows:
§ 233.16 Procedures for revision of State
programs.
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*
*
*
*
*
(d) * * *
(2) Notice of approval of program
changes which the Regional
Administrator determines are not
substantial revisions may be given by
letter from the Regional Administrator
to the Governor or the Tribal leader and
are effective upon the date in the
approval letter. The Regional
Administrator will notify the Secretary
of the approval of any approved
program modifications. The Regional
Administrator will also notify other
Federal agencies of approved program
modifications as appropriate. The
Regional Administrator shall post any
such approval letters on the relevant
pages of EPA’s website.
(3) Whenever the Regional
Administrator determines that the
proposed revision is substantial, the
Regional Administrator shall publish
and circulate notice to those persons
known to be interested in such matters,
provide opportunity for a public
hearing, and consult with the Corps,
FWS, and NMFS. The Regional
Administrator shall approve or
disapprove program revisions based on
whether the program fulfills the
requirements of the Act and this part,
and shall publish notice of the decision
in the Federal Register. For purposes of
this paragraph, substantial revisions
include, but are not limited to, revisions
that remove waters from the retained
waters description (other than de
minimis removals), as well as revisions
that affect the scope of activities
regulated, criteria for review of permits,
public participation, or enforcement
capability. Revisions to an Indian
Tribe’s assumed program that would
add a new geographic area to the
approved program require that the
Regional Administrator determine that
the Tribe meets the eligibility criteria in
§ 233.60 with regard to the new
geographic area and constitute
substantial revisions.
*
*
*
*
*
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(e) Whenever the Regional
Administrator has reason to believe that
circumstances have changed with
respect to a State’s program, the
Regional Administrator may request and
the State shall provide a supplemental
Attorney General’s statement, program
description, or such other documents or
information as are necessary to evaluate
the program’s compliance with the
requirements of the Act and this part.
■ 26. Amend § 233.21 by revising
paragraphs (b) and (e)(2) to read as
follows:
§ 233.30
Application for a permit.
*
*
*
*
(c) * * *
(8) Inspection and entry. The
permittee shall allow the Director, or the
Director’s authorized representative,
upon presentation of proper
identification, at reasonable times to:
*
*
*
*
*
■ 28. Add § 233.24 to subpart C read as
follows:
(a) Except when an activity is
authorized by a general permit issued
pursuant to § 233.21 or is exempt from
the requirements to obtain a permit
under § 232.3, any person who proposes
to discharge dredged or fill material into
State regulated waters shall complete,
sign, and submit a permit application to
the Director. Applicants for projects that
take more than five years to complete
must submit a complete application for
each five-year permit, and an applicant
seeking a new five-year permit must
apply for the new permit at least 180
days prior to the expiration of the
current permit. The Tribe or State may
grant permission to submit an
application less than 180 days prior to
the expiration of the current permit but
no later than the permit expiration date.
Persons proposing to discharge dredged
or fill material under the authorization
of a general permit must comply with
any reporting requirements of the
general permit.
(b) * * *
(5) All activities which the applicant
plans to undertake which are reasonably
related to the same project must be
included in the same permit
application. For projects for which the
planned schedule extends beyond five
years at the time of the initial five-year
permit application, the application for
both the first and subsequent five-year
permits must include an analysis
demonstrating that each element of the
404(b)(1) Guidelines is met, consistent
with 40 CFR part 230, for the full term
of the project. Applicants for subsequent
five-year permits must update the
404(b)(1) Guidelines analysis if there
has been a change in circumstance
related to the project following approval
of the previous five-year permit, and
clearly indicate whether the 404(b)(1)
Guidelines analysis has been updated.
*
*
*
*
*
■ 30. Revise and republish § 233.31 to
read as follows:
§ 233.24
§ 233.31
§ 233.21
General permits.
*
*
*
*
*
(b) The Director may issue a general
permit for categories of similar activities
if the Director determines that the
regulated activities will cause only
minimal adverse environmental effects
when performed separately and will
have only minimal cumulative adverse
effects on the environment. Any general
permit issued shall be in compliance
with the section 404(b)(1) Guidelines.
*
*
*
*
*
(e) * * *
(2) Once the Director notifies the
discharger of the Director’s decision to
exercise discretionary authority to
require an individual permit, the
discharger’s activity is no longer
authorized by the general permit.
■ 27. Amend § 233.23 by revising the
introductory text of paragraph (c)(8) to
read as follows:
§ 233.23
Permit conditions.
*
Judicial review.
All States that administer or seek to
administer a program under this part
shall provide an opportunity for judicial
review in State Court of the final
approval or denial of permits by the
State that is sufficient to provide for,
encourage, and assist public
participation in the permitting process.
Indian Tribes must provide a
commensurate form of citizen recourse
for permit applicants and others affected
by Tribe-issued permits.
■ 29. Amend § 233.30 by revising
paragraphs (a) and (b)(5) to read as
follows:
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Coordination requirements.
(a) If a proposed discharge may affect
the biological, chemical, or physical
integrity of the waters of any State(s)
other than the State in which the
discharge occurs, the Director shall
provide an opportunity for such State(s)
to submit written comments within the
public comment period and to suggest
permit conditions. If these
recommendations are not accepted by
the Director, the Director shall notify the
affected State and the Regional
Administrator in writing prior to permit
issuance of the Director’s failure to
accept these recommendations, together
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with the Director’s reasons for so doing.
The Regional Administrator shall then
have the time provided for in
§ 233.50(d) to comment upon, object to,
or make recommendations.
(b) State section 404 permits shall be
coordinated with the Federal and
Federal-State water related planning
and review processes.
(c) For the purposes of § 233.31(a), the
definition of ‘‘State’’ in § 233.2 includes
Indian Tribes that have been approved
by EPA under CWA section 518 and
applicable regulations for eligibility to
administer any CWA provision as well
as Indian Tribes that have been
approved by EPA under paragraph (d) of
this section for eligibility for the
purpose of commenting under
§ 233.31(a).
(d) An Indian Tribe may apply to the
Regional Administrator for a
determination that it meets the statutory
criteria of section 518 of the CWA, 33
U.S.C. 1377, to be treated in a manner
similar to that in which EPA treats a
State, for purposes of the coordination
requirements of sections 404(h)(1)(C)
and (E), 33 U.S.C. 1344(h)(1)(C) and (E),
of the CWA and paragraphs (a) and (c)
of this section.
(1) The Tribe’s application shall
concisely describe how:
(i) The Indian Tribe is recognized by
the Secretary of the Interior;
(ii) The Indian Tribe has a governing
body carrying out substantial
governmental duties and powers;
(iii) The functions to be exercised by
the Indian Tribe pertain to the
management and protection of water
resources which are held by an Indian
Tribe, held by the United States in trust
for Indians, held by a member of an
Indian Tribe if such property interest is
subject to a trust restriction on
alienation, or otherwise within the
borders of the Indian reservation; and
(iv) The Indian Tribe is reasonably
expected to be capable, in the Regional
Administrator’s judgment, of carrying
out the functions to be exercised in a
manner consistent with the terms and
purposes of the CWA and applicable
regulations.
(2) The Regional Administrator shall
promptly notify the Indian Tribe of
receipt of an application submitted
under this section and shall process
such application in a timely manner.
■ 31. Amend § 233.32 by revising the
introductory text of paragraph (c)(1) and
paragraph (d)(6) to read as follows:
§ 233.32
Public notice.
*
*
*
*
*
(c) * * *
(1) By mailing a copy of the notice to
the following persons (any person
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otherwise entitled to receive notice
under this paragraph (c)(1) may waive
their rights to receive notice for any
classes or categories of permits):
*
*
*
*
*
(d) * * *
(6) A paragraph describing the various
evaluation factors, including the
404(b)(1) Guidelines or State-equivalent
criteria, on which decisions are based.
For projects with a planned schedule
that extends beyond five years at the
time of the initial five-year permit
application, the public notice for
subsequent five-year permits must
indicate whether the 404(b)(1)
Guidelines analysis has been updated.
*
*
*
*
*
■ 32. Amend § 233.33 by revising
paragraph (b) to read as follows:
§ 233.33
Public hearing.
*
*
*
*
*
(b) The Director shall hold a public
hearing whenever the Director
determines there is a significant degree
of public interest in a permit application
or a draft general permit. The Director
may also hold a hearing, at the
Director’s discretion, whenever the
Director determines a hearing may be
useful to a decision on the permit
application.
*
*
*
*
*
■ 33. Amend § 233.34 by revising
paragraph (c) to read as follows:
§ 233.34 Making a decision on the permit
application.
*
*
*
*
*
(c) After the Director has completed
review of the application and
consideration of comments, the Director
will determine, in accordance with the
record and all applicable regulations,
whether or not the permit should be
issued. No permit shall be issued by the
Director under the circumstances
described in § 233.20. The Director shall
prepare a written determination on each
application outlining the Director’s
decision and rationale for the decision.
For projects with a planned schedule
that extends beyond five years at the
time of the initial five-year permit
application, if the Director decides not
to require an update to the 404(b)(1)
Guidelines for a subsequent five-year
permit, the Director must provide a
detailed written explanation of the
decision not to require an update in its
determination for the subsequent fiveyear permit. The determination shall be
dated, signed, and included in the
official record prior to final action on
the application. The official record shall
be open to the public.
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34. Amend § 233.36 by revising the
introductory text of paragraph (a) and
revising paragraph (c)(1) to read as
follows:
■
§ 233.36 Modification, suspension or
revocation of permits.
(a) General. The Director may
reevaluate the circumstances and
conditions of a permit either on the
Director’s own motion or at the request
of the permittee or of a third party and
initiate action to modify, suspend, or
revoke a permit if the Director
determines that sufficient cause exists.
Among the factors to be considered are:
*
*
*
*
*
(c) * * *
(1) The Director shall develop
procedures to modify, suspend, or
revoke permits if the Director
determines cause exists for such action
(§ 233.36(a)). Such procedures shall
provide opportunity for public comment
(§ 233.32), coordination with the
Federal review agencies (§ 233.50), and
opportunity for public hearing
(§ 233.33) following notification of the
permittee. When permit modification is
proposed, only the conditions subject to
modification need be reopened.
*
*
*
*
*
■ 35. Revise § 233.37 to read as follows:
§ 233.37 Signatures on permit applications
and reports.
The application and any required
reports must be signed by the person
who desires to undertake the proposed
activity or by that person’s duly
authorized agent if accompanied by a
statement by that person designating the
agent. In either case, the signature of the
applicant or the agent will be
understood to be an affirmation that the
applicant or the agent possesses or
represents the person who possesses the
requisite property interest to undertake
the activity proposed in the application.
■ 36. Amend § 233.41 by revising
paragraph (b)(2) to read as follows:
§ 233.41 Requirements for enforcement
authority.
(b) * * *
(2) The burden of proof and degree of
knowledge or intent required under
State law for establishing violations
under paragraph (a)(3) of this section,
shall be no greater than the burden of
proof or degree of knowledge or intent
EPA must provide when it brings an
action under the Act, except that a State
may establish criminal violations based
on any form or type of negligence.
*
*
*
*
*
■ 37. Amend § 233.50 by:
■ a. Revising the section heading;
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b. Revising paragraphs (d), (e), (f), and
(h)(1); and
■ c. Adding paragraph (k).
The revisions read as follows:
■
§ 233.50 Review of and objection to State
permits and review of compensatory
mitigation instruments.
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*
*
*
*
*
(d) If the Regional Administrator
intends to comment upon, object to, or
make recommendations with respect to
a permit application, draft general
permit, or the Director’s failure to accept
the recommendations of an affected
State submitted pursuant to § 233.31(a),
the Regional Administrator shall notify
the Director of the Regional
Administrator’s intent within 30 days of
receipt. If the Director has been so
notified, the permit shall not be issued
until after the receipt of such comments
or 90 days of the Regional
Administrator’s receipt of the public
notice, draft general permit, or
Director’s response (§ 233.31(a)),
whichever comes first. The Regional
Administrator may notify the Director
within 30 days of receipt that there is no
comment but that the Regional
Administrator reserves the right to
object within 90 days of receipt, based
on any new information brought out by
the public during the comment period
or at a hearing.
(e) If the Regional Administrator has
given notice to the Director under
paragraph (d) of this section, the
Regional Administrator shall submit to
the Director, within 90 days of receipt
of the public notice, draft general
permit, or Director’s response
(§ 233.31(a)), a written statement of the
Regional Administrator’s comments,
objections, or recommendations; the
reasons for the comments, objections, or
recommendations; and the actions that
must be taken by the Director in order
to eliminate any objections. Any such
objection shall be based on the Regional
Administrator’s determination that the
proposed permit is:
(1) The subject of an interstate dispute
under § 233.31(a); and/or
(2) Outside requirements of the Act,
these regulations, or the 404(b)(1)
Guidelines. The Regional Administrator
shall make available upon request a
copy of any comment, objection, or
recommendation on a permit
application or draft general permit to
the permit applicant or to the public.
(f) When the Director has received an
EPA objection or requirement for a
permit condition to a permit application
or draft general permit under this
section, the Director shall not issue the
permit unless the Director has taken the
steps required by the Regional
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Administrator to eliminate the
objection.
*
*
*
*
*
(h) * * *
(1) If the Regional Administrator
withdraws the objection or requirement
for a permit condition, the Director may
issue the permit.
*
*
*
*
*
(k) If the State establishes third-party
compensation mechanisms as part of its
section 404 program (e.g., banks or inlieu fee programs), the Director must
transmit a copy of instruments
associated with these compensatory
mitigation approaches to the Regional
Administrator, the Corps, FWS, and
NMFS for review prior to issuance, as
well as to any other State agencies to the
extent the State committed to do so in
the program description pursuant to
§ 233.11(k). To the extent the State
deems appropriate, the Director may
also send these draft instruments to
other relevant State agencies for review.
This transmission and review
requirement does not apply to
permittee-responsible compensatory
mitigation. If the Regional
Administrator, the Corps, FWS, or
NMFS intend to comment upon such
instruments they must notify the
Director of their intent within 30 days
of receipt. If the Director has been so
notified, the instrument must not be
issued until after the receipt of such
comments or after 90 days of receipt of
the proposed instrument by the
Regional Administrator, the Corps, the
FWS, or NMFS. The Director must
respond to any comments received
within 90 days from the Regional
Administrator, the Corps, FWS, NMFS,
or State agencies that received the draft
instruments pursuant to the State
program description and inform the
commenting agency of any comments or
recommendations not accepted prior to
approving the final compensatory
mitigation instrument. In the event that
the Regional Administrator has
commented that the instrument fails to
apply or ensure compliance with the
requirements of § 233.11(k), the Director
must not approve the final
compensatory mitigation instrument
until the Regional Administrator
notifies the Director that the final
instrument ensures compliance with
§ 233.11(k).
■ 38. Amend § 233.51 by adding
paragraph (d) to read as follows:
§ 233.51
Waiver of review.
*
*
*
*
*
(d) If within 20 days of public notice
of a permit application, pursuant to
§ 233.32, a Tribe notifies EPA that the
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Fmt 4701
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application potentially affects Tribal
rights or interests, including those
beyond reservation boundaries, EPA
will request a copy of the public notice
for the permit application, even if
Federal review of the relevant category
of discharge has been waived, and the
Regional Administrator and the Director
shall then proceed in accordance with
§ 233.50.
■ 39. Amend § 233.52 by revising
paragraphs (b) and (e) to read as follows:
§ 233.52
Program reporting.
*
*
*
*
*
(b) The Director shall submit to the
Regional Administrator within 90 days
after completion of the annual period, a
draft annual report evaluating the
State’s administration of its program
identifying problems the State has
encountered in the administration of its
program, steps taken to resolve these
problems, and recommendations for
resolving any outstanding problems
along with a timeline for resolution.
Items that shall be addressed in the
annual report include an assessment of
the cumulative impacts of the State’s
permitting program on the integrity of
the State regulated waters; identification
of areas of particular concern or interest
within the State; the number and nature
of individual and general permits
issued, modified, and denied; the
number of violations identified and
number and nature of enforcement
actions taken; the number of suspected
unauthorized activities reported and
nature of action taken; an estimate of the
extent of activities regulated by general
permits; the number of permit
applications received but not yet
processed; and an assessment of
avoidance, minimization, and
compensation required for permits
issued, including the type and quantity
of resources impacted, type and
quantity of compensation required
(including quantification and rationale
for out-of-kind or compensation
provided outside the watershed), and a
description of why compensation was
not required, if applicable. The Annual
Report shall briefly summarize
resolution of issues identified in the
previous Annual Report. Additionally,
to the extent appropriate, the Annual
Report should analyze program
resources and staffing, including staffing
changes, training, and vacancy rate
since approval or the previous Annual
Report.
*
*
*
*
*
(e) Within 30 days of receipt of the
Regional Administrator’s final
comments, the Director will finalize the
annual report, incorporating and/or
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responding to the Regional
Administrator’s comments, and transmit
the final report to the Regional
Administrator. The Director shall make
a copy of the final annual report,
accepted by the Regional Administrator,
publicly available.
*
*
*
*
*
■ 40. Amend § 233.53 by revising
paragraphs (a)(1) and (c) to read as
follows:
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§ 233.53
Withdrawal of program approval.
(a) * * *
(1) The State shall give the
Administrator and the Secretary no less
than 180 days’ notice of the proposed
transfer. With the notice, the State shall
submit a plan for the orderly transfer of
all relevant program information not in
the possession of the Secretary (such as
permits, permit files, reports, permit
applications, as well as files regarding
ongoing investigations, compliance
orders, and enforcement actions) which
are necessary for the Secretary to
administer the program. The notice
shall include the proposed transfer date.
*
*
*
*
*
(c) The following procedures apply
when the Administrator orders the
commencement of proceedings to
determine whether to withdraw
approval of a State program:
(1) Notice to State. If the Regional
Administrator has cause to believe that
a State is not administering or enforcing
its assumed program in compliance
with the requirements of the CWA and
this part, the Regional Administrator
shall inform the Director in writing of
the specific areas of alleged
noncompliance. If the State
demonstrates to the Regional
Administrator within 30 days of such
notification that the State program is in
compliance, the Regional Administrator
shall take no further action toward
withdrawal, and shall so notify the State
in writing.
(2) Public hearing. If the State has not
demonstrated its compliance to the
satisfaction of the Regional
Administrator within 30 days of
notification, the Regional Administrator
shall inform the Director of that finding.
The Administrator shall then schedule a
public hearing to solicit comments on
the administration of the State program
and its compliance with the Act and
this part. Notice of such public hearing
shall be published in the Federal
Register, on EPA’s website, and in
enough of the largest newspapers and/
or news websites in the State to attract
statewide attention and mailed or
emailed to persons on appropriate
Tribal, State, and EPA mailing lists.
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This hearing shall be convened not less
than 30 days or more than 60 days
following the date of publication of the
notice of the hearing in the Federal
Register. Notice of the hearing shall
identify the Administrator’s concerns.
All interested parties shall be given
opportunity to make written or oral
presentations on the State’s program at
the public hearing.
(3) Notice to State of findings. If the
Administrator finds, after the public
hearing, that the State is not in
compliance, within 90 days of the
public hearing the Administrator shall
notify the State via letter of the specific
deficiencies in the State program,
including administration and
enforcement, and of necessary remedial
actions. Within 90 days of receipt of the
above letter, the State shall either carry
out the required remedial action(s) or
the Administrator shall withdraw
program approval. If the State performs
all required remedial action(s) in the
allotted time or, if the Administrator
determines as a result of the hearing that
the State is in compliance, the
Administrator shall so notify the State
in writing and conclude the withdrawal
proceedings. If the Administrator makes
the determination that the assumed
program should be withdrawn, then
such determination will be published in
the Federal Register, and the
Administrator shall remove from the
CFR, as appropriate, any provision
addressing that State’s assumed
program. The effective date of the
withdrawal, and the date upon which
the Corps shall be the permitting
authority, shall be 30 days after
publication of the Administrator’s
decision in the Federal Register.
(4) Determination to withdraw. The
Administrator’s determination to
withdraw program approval shall
constitute final Agency action within
the meaning of 5 U.S.C. 704.
*
*
*
*
*
§ 233.60
[Amended]
41. Amend § 233.60 paragraph (c) by
removing the word ‘‘Untied’’ and
adding in its place the word ‘‘United.’’
■ 42. Amend § 233.61 by revising
paragraph (e) to read as follows:
■
§ 233.61
Determination of Tribal eligibility.
*
*
*
*
*
(e) The Administrator may, at the
Administrator’s discretion, request
further documentation necessary to
support a Tribal application.
*
*
*
*
*
■ 43. Revise and republish § 233.62 to
read as follows:
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§ 233.62 Procedures for processing an
Indian Tribe’s application.
(a) The Regional Administrator shall
process an application of an Indian
Tribe submitted pursuant to § 233.61 in
a timely manner. The Regional
Administrator shall promptly notify the
Indian Tribe of receipt of the
application.
(b) The Regional Administrator shall
follow the procedures described in
§ 233.15 in processing a Tribe’s request
to assume the 404 dredge and fill permit
program.
(c) The Regional Administrator shall
follow the procedures for substantial
program revisions described in § 233.16
in processing a Tribe’s request to add
additional geographic area(s) to its
assumed 404 dredged or fill material
permit program that would add
reservation areas to the scope of its
approved program. A Tribe making such
a request shall provide an application
meeting the requirements of § 233.61
that describes how the Tribe meets the
eligibility criteria in § 233.60 for the
new area.
■ 44. Revise § 233.70 to read as follows:
§ 233.70
Michigan.
The applicable regulatory program for
discharges of dredged or fill material
into waters of the United States in
Michigan that are not presently used, or
susceptible for use in their natural
condition or by reasonable improvement
as a means to transport interstate or
foreign commerce shoreward to the
ordinary high water mark, including
wetlands adjacent thereto, except those
on Indian lands, is the program
administered by the Michigan
Department of Environment, Great
Lakes, and Energy (previously named
Department of Natural Resources,
Department of Environmental Quality,
and Department of Natural Resources
and Environment), approved by EPA,
pursuant to section 404 of the CWA.
Notice of this approval was published in
the Federal Register on October 2, 1984;
the effective date of this program is
October 16, 1984. This program consists
of the following elements, as submitted
to EPA in the State’s program
submission and subsequently revised.
(a) Incorporation by reference. The
Michigan statutes and regulations cited
in paragraphs (a)(1) and (2) of this
section are incorporated by reference as
part of the applicable section 404
Program under the CWA for the State of
Michigan. This incorporation by
reference was approved by the Director
of the Federal Register in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51.
To enforce any edition other than that
specified in this section, EPA must
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publish a document in the Federal
Register and the material must be
available to the public. This
incorporation by reference (IBR)
material is available for inspection at
EPA and at the National Archives and
Records Administration (NARA). Copies
of this IBR material also may be
obtained from EPA. Contact EPA at:
EPA Docket Center Reading Room, WJC
West Building, Room 3334, 1301
Constitution Avenue NW, Washington,
DC 20004 (phone: 202–566–1744), or
send mail to Mail Code 5305G, 1200
Pennsylvania Ave. NW, Washington, DC
20460, and at the Water Division,
Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, IL 60604. For information on
the availability of this IBR material at
NARA, visit www.archives.gov/federalregister/cfr/ibr-locations or email
fr.inspection@nara.gov. The material
may be obtained from the Michigan
Department of Environment, Great
Lakes, and Energy office at 525 W
Allegan St., Lansing, MI 48933, phone:
800–662–9278.
(1) Michigan Statutes Applicable to
the State’s Approved Clean Water Act
Section 404 program (available at
www.legislature.mi.gov), as follows:
(i) The Michigan Administrative
Procedures Act of 1969, MCL § 24–201
et seq., in effect as of February 13, 2024.
(ii) Natural Resources and
Environmental Protection Act 451 of
1994:
(A) Part 31 Water Resources
Protection, MCL § 324.31 et seq., in
effect as of September 29, 2023.
(B) Part 301 Inland Lakes and
Streams, MCL § 324.301 et seq., in effect
as of October 20, 2021.
(C) Part 303 Wetland Protection, MCL
§ 324.303 et seq., in effect as of April 27,
2019.
(D) Part 307 Inland Lake Levels, MCL
§ 324.307 et seq., in effect as of October
16, 2020.
(E) Part 315 Dam Safety, MCL
§ 324.315 et seq., in effect as of
September 10, 2004.
(F) Part 323 Great Lakes Shorelands
Protection and Management, MCL
§ 324.323 et seq, in effect as of October
20, 2021.
(G) Part 325 Great Lakes Submerged
Lands, MCL § 324.325 et seq., in effect
as of October 20, 2021.
(2)(i) Michigan Regulations
Applicable to the State’s Approved
Clean Water Act Section 404 program
(www.michigan.gov/lara/bureau-list/
moahr/admin-rules), Michigan
Administrative Code, Department of
Environmental Quality, as follows:
(A) Land and Water Management:
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Jkt 265001
(1) Great Lakes Shorelands, R 281.21
through R 281.26 inclusive, in effect as
of 2000.
(2) Wetlands Protection, R 281.921
through R 281.925 inclusive, in effect as
of 2006.
(3) Wetland Mitigation Banking, R
281.951 through R 281.961 inclusive, in
effect as of 1997.
(4) Dam Safety, R 281.1301 through R
281.1313 inclusive in effect as of 1993.
(B) Water Resources Division, Inland
Lakes and Streams, R 281.811 through R
281.846 inclusive, in effect as of 2015.
(ii) This material contains Michigan’s
rules for shoreline protection, inland
lakes and streams, wetlands protection,
wetland mitigation banking, and dam
safety.
(b) Other Laws. The following statutes
and regulations, although not
incorporated by reference, also are part
of the approved State-administered
program:
(1) Administrative Procedures Act,
MCL 24.201 et seq.
(2) Freedom of Information Act, MCL
15.231 et seq.
(3) Open Meetings Act, MCL 15.261 et
seq.
(4) Natural Resources and
Environmental Protection Act 451 of
1994, Part 17 Michigan Environmental
Protection Act, MCL 324.17 et seq.
(c) Memoranda of Agreement. The
following memoranda, although not
incorporated by reference also are part
of the approved State-administered
program:
(1) The Memorandum of Agreement
between EPA Region V and the
Michigan Department of Natural
Resources, signed by EPA Region V
Administrator on December 9, 1983.
The 1983 Memorandum of Agreement
has subsequently been replaced by a
Memorandum of Agreement between
EPA Region 5 and the Michigan
Department of Environmental Quality
(now referred to as the Michigan
Department of Environment, Great
Lakes, and Energy) signed on November
9, 2011.
(2) The Memorandum of Agreement
between the U.S. Army Corps of
Engineers and the Michigan Department
of Natural Resources, signed by the
Commander, North Central Division, on
March 27, 1984.
(d) Statement of Legal Authority. The
following documents, although not
incorporated by reference, also are part
of the approved State administered
program:
(1) ‘‘Attorney General Certification
section 404/State of Michigan’’, signed
by Attorney General of Michigan, as
submitted with the request for approval
PO 00000
Frm 00056
Fmt 4701
Sfmt 4700
of ‘‘The State of Michigan 404
Program’’, October 26, 1983.
(e) The Program description and any
other materials submitted as part of the
original submission or supplements
thereto.
■ 45. Amend § 233.71 by:
■ a. Revising the introductory text and
paragraph (a);
■ b. Removing paragraph (b); and
■ c. Redesignating paragraphs (c)
through (e) as paragraphs (b) through
(d).
The revisions read as follows:
§ 233.71
New Jersey.
The applicable regulatory program for
discharges of dredged or fill material
into waters of the United States in New
Jersey that are not presently used, or
susceptible for use in their natural
condition or by reasonable improvement
as a means to transport interstate or
foreign commerce shoreward to the
ordinary high water mark, including
wetlands adjacent thereto, except those
on Indian lands, is the program
administered by the New Jersey
Department of Environmental Protection
and Energy, approved by EPA, pursuant
to section 404 of the CWA. Notice of
this approval was published in the
Federal Register on March 2, 1994; the
effective date of this program is March
2, 1994. This program consists of the
following elements, as submitted to EPA
in the State’s program submission and
subsequently revised.
(a) Incorporation by reference. The
New Jersey statues and regulations cited
in paragraphs (a)(1) and (2) of this
section are incorporated by reference as
part of the applicable 404 Program
under the CWA for the State of New
Jersey. This incorporation by reference
was approved by the Director of the
Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. To
enforce any edition other than that
specified in this section, EPA must
publish a document in the Federal
Register and the material must be
available to the public. This
incorporation by reference (IBR)
material is available for inspection at
EPA and at the National Archives and
Records Administration (NARA). Copies
of this IBR material also may be
obtained from EPA. Contact EPA at:
EPA Docket Center Reading Room, WJC
West Building, Room 3334, 1301
Constitution Avenue NW, Washington,
DC 20004 (phone: 202–566–1744), or
send mail to Mail Code 5305G, 1200
Pennsylvania Ave. NW, Washington, DC
20460, and at the Library of the Region
2 Regional Office, Ted Weiss Federal
Building, 290 Broadway, New York, NY
10007. For information on the
E:\FR\FM\18DER7.SGM
18DER7
Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103509
khammond on DSK9W7S144PROD with RULES7
availability of this IBR material at
NARA, visit www.archives.gov/federalregister/cfr/ibr-locations or email
fr.inspection@nara.gov. The materials
may be obtained from the New Jersey
Department of Environmental Protection
at 401 East State St., Trenton, NJ 08625;
website: www.epa.gov/cwa404g/usinteractive-map-state-and-tribalassumption-under-cwa-section-404#nj.
(1)(i) New Jersey Statutes Applicable
to the State’s Approved Clean Water Act
Section 404 program as follows:
VerDate Sep<11>2014
19:25 Dec 17, 2024
Jkt 265001
(A) Freshwater Wetlands Protection
Act, New Jersey Statutes Annotated,
Title 13: Conservation and
Development—Parks and Reservations;
Chapter 9B: Freshwater Wetlands,
N.J.S.A.13:9B–1 et seq., effective as of
December 23, 1993.
(B) [Reserved]
(ii) The Freshwater Wetlands
Protection Act provides the New Jersey
Department of Environmental Protection
with the authority to regulate and
permit activities in freshwater wetlands.
PO 00000
Frm 00057
Fmt 4701
Sfmt 9990
(2)(i) New Jersey Regulations
Applicable to the State’s Approved
Clean Water Act Section 404 program as
follows:
(A) Freshwater Wetlands Protection
Act Rules, N.J.A.C. 7:7A, amended
November 7, 2022.
(B) [Reserved]
(ii) This chapter contains regulations
to implement the Freshwater Wetlands
Protection Act.
*
*
*
*
*
[FR Doc. 2024–29484 Filed 12–17–24; 8:45 am]
BILLING CODE 6560–50–P
E:\FR\FM\18DER7.SGM
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Agencies
[Federal Register Volume 89, Number 243 (Wednesday, December 18, 2024)]
[Rules and Regulations]
[Pages 103454-103509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29484]
[[Page 103453]]
Vol. 89
Wednesday,
No. 243
December 18, 2024
Part VII
Environmental Protection Agency
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40 CFR Parts 123, et al.
Clean Water Act Section 404 Tribal and State Assumption Program; Final
Rule
Federal Register / Vol. 89 , No. 243 / Wednesday, December 18, 2024 /
Rules and Regulations
[[Page 103454]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 123, 124, 232, and 233
[EPA-HQ-OW-2020-0276; FRL-6682-01-OW]
RIN 2040-AF83
Clean Water Act Section 404 Tribal and State Assumption Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
finalizing the Agency's first comprehensive revisions to the
regulations governing Clean Water Act (CWA) section 404 Tribal and
State programs since 1988. The primary purpose of the revisions is to
respond to longstanding requests from Tribes and States to clarify the
requirements and processes for the assumption and administration of a
CWA section 404 permitting program for discharges of dredged and fill
material. The revisions facilitate Tribal and State assumption and
administration of CWA section 404, consistent with the policy of the
CWA as described in section 101(b), by making the procedures and
substantive requirements for assumption transparent and
straightforward. It clarifies the minimum requirements for Tribal and
State programs while ensuring flexibility to accommodate individual
Tribal and State needs. In addition, the final rule clarifies the
criminal negligence standard in the CWA section 404 program, as well as
making a corresponding change in the section 402 program. Finally, the
final rule makes technical revisions, including removing outdated
references associated with the section 404 Tribal and State program
regulations.
DATES: This rule is effective on January 17, 2025. The incorporation by
reference of certain material listed in the rule is approved by the
Director of the Federal Register as of January 17, 2025.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OW-2020-0276. All documents in the docket are listed on the
https://www.regulations.gov website. Although listed in the index, some
information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available in hard copy
form. Publicly available docket materials are available electronically
through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Christine Maietta, Oceans, Wetlands
and Communities Division, Office of Water (4504-T), Environmental
Protection Agency, Pennsylvania Avenue NW, Washington, DC 20460;
telephone number: 202-564-1854; email address: [email protected];
website: https://www.epa.gov/cwa404g.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. General Information
A. What action is the Agency taking?
B. What is the Agency's authority for taking this action?
C. What are the incremental costs and benefits of this action?
III. Background
A. Statutory and Regulatory History
B. Need for Rulemaking Revisions
IV. Final Rule
A. General
B. Program Approval
C. Program Operations
D. Compliance Evaluation and Enforcement
E. Federal Oversight
F. Eligible Indian Tribes
G. Impacts on Existing Programs
H. Technical Revisions
I. Incorporation by Reference
J. Severability
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review;
Executive Order 13563: Improving Regulation and Regulatory Review;
and Executive Order 14094: Modernizing Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations and Executive Order 14096: Revitalizing Our Nation's
Commitment to Environmental Justice for All
K. Congressional Review Act
I. Executive Summary
Section 404 of the Clean Water Act (CWA) establishes a program to
regulate the discharge of dredged or fill material into navigable
waters, defined as ``waters of the United States.'' 33 U.S.C. 1344. The
section 404 program, introduced in the 1972 amendments to the Federal
Water Pollution Control Act, is generally administered by the U.S. Army
Corps of Engineers (``Corps''). However, in 1977, Congress amended
section 404 of the CWA to allow States to administer their own dredged
or fill material permitting programs in certain waters of the United
States within their jurisdiction, subject to EPA approval. Id. at
1344(g). A Tribe or State administering a section 404 program is
responsible for permitting discharges of dredged and fill material,
authorizing discharges under general permits, taking enforcement
actions with respect to unauthorized discharges, and ensuring
compliance with the terms and conditions of permits under the Tribe's
or State's authority. EPA maintains oversight of Tribal and State
section 404 programs.
In 1980, EPA promulgated regulations to establish procedures and
criteria for approving or disapproving State programs under section
404(g) and for oversight of State programs after approval. 45 FR 33290
(May 19, 1980). EPA revised the regulations in 1988. 53 FR 20764 (June
6, 1988). The 1988 revisions updated procedures and criteria used in
approving, reviewing, and withdrawing approval of section 404 State
programs, as well as incorporating section 404 program definitions and
section 404(f)(1) exemptions at 40 CFR part 232. Although the Agency
made targeted revisions to 40 CFR part 233 in the early 1990s and 2000s
in light of other statutory and regulatory changes (e.g., new
provisions addressing treatment of Tribes in a similar manner as
States), the Agency has not comprehensively revised these regulations
since 1988.
Nearly half of States and a few Tribes have expressed some level of
interest to EPA over time in assuming the section 404 dredged and fill
permit program, but only two States (Michigan and New Jersey) currently
administer the program.\1\ Tribes and States have identified several
barriers to program assumption. One of the barriers they identified is
uncertainty regarding the scope of assumable waters. To address this,
the Agency convened the Assumable Waters Subcommittee in
[[Page 103455]]
2015 to provide advice and develop recommendations as to how EPA could
best clarify the scope of waters over which a Tribe or State may assume
CWA section 404 permitting responsibilities, and the scope of waters
over which the Corps retains CWA section 404 permitting
responsibilities. The final report of the Subcommittee was submitted to
the National Advisory Council for Environmental Policy and Technology
(NACEPT), which adopted the majority recommendation in the Subcommittee
report. In its 2017 letter to the Administrator conveying this
recommendation, NACEPT recommended that EPA develop regulations to
clarify assumed and retained waters.\2\
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\1\ Florida obtained EPA's approval to assume the CWA section
404 program on December 17, 2020. On February 15, 2024, the U.S.
District Court for the District of Columbia vacated EPA's approval
of Florida's program. Center for Biological Diversity v. Regan, No.
21-119, 2024 WL 655368 (D.D.C.). Accordingly, only the impacts of
this rule on the Michigan and New Jersey programs are discussed in
this rule. An appeal of the district court's decision is pending.
See No. 24-5101 (D.C. Cir.).
\2\ Available at https://www.epa.gov/cwa-404/submission-assumable-waters-subcommittees-final-report and in the docket for
this final rule, Docket ID No. EPA-HQ-OW-2020-0276.
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In this rule, the Agency also responds to longstanding requests
from Tribes and States to streamline and clarify the requirements and
processes for the assumption and administration of a CWA section 404
program as well as EPA oversight.\3\ The final rule facilitates Tribal
and State assumption of the section 404 program, consistent with the
policy of the CWA as described in section 101(b), by making program
assumption procedures and requirements transparent and straightforward
and addresses State-identified barriers to assumption. The final rule
clarifies how Tribes and States can ensure their program meets the
minimum requirements of the CWA while allowing for flexibility in the
way these requirements may be met. It clarifies the criminal
enforcement requirements for Tribal and State section 404 programs and
makes a corresponding change in section 402 Tribal and State program
requirements. The Agency is also finalizing other minor updates and
technical revisions in 40 CFR parts 232, 233, and part 124 associated
with Tribal and State section 404 programs. This rule is comprehensive
in that EPA has updated all of the provisions in 40 CFR parts 232, 233,
and 124 associated with Tribal and State 404 programs that it
determined needed to be clarified or updated at this time. This rule
does not reopen any other provisions in parts 232, 233, or 124.
---------------------------------------------------------------------------
\3\ See, e.g., letter from Thomas W. Easterly, Chair, Water
Committee, The Environmental Council of States, Lucy C. Edmondson,
Vice Chair, The Environmental Council of States, to Peter Silva,
Assistant Administrator, Office of Water, U.S. Environmental
Protection Agency. February 26, 2010; Letter from R. Steven Brown,
Executive Director, The Environmental Council of States, to Nancy K.
Stoner, Acting Assistant Administrator, Office of Water, U.S.
Environmental Protection Agency. July 22, 2011. Subject: Progress
Report and Recommended Actions to Further Clarify Section 404
Assumption Application Requirements and Implementation by Tribes and
States; Letter from Alexandria Dapolito Dunn, ECOS, Sean Rolland,
ACWA, and Jeanne Christie, ASWM to Nancy K. Stoner, Acting Assistant
Administrator, Office of Water, U.S. Environmental Protection
Agency. April 30, 2014.
---------------------------------------------------------------------------
II. General Information
A. What action is the agency taking?
Assumption enables Tribes and States to administer the CWA section
404 program, placing them in the primary decision-making position for
permitting discharges of dredged or fill material into certain waters
of the United States. EPA is revising and modernizing its regulations
to clarify requirements for Tribal and State program assumption and
administration, reduce barriers to assumption, and make technical
corrections to facilitate Tribal and State assumption and
administration of the section 404 program. This rule also addresses
EPA's procedures and criteria for approving, exercising oversight, and
withdrawing Tribal and State programs under CWA section 404(g)-(k) and
EPA's implementing regulations at 40 CFR part 233, with one
corresponding clarification to CWA section 402 National Pollutant
Discharge Elimination System (NPDES) Tribal and State section 402
permitting program requirements for criminal enforcement at 40 CFR
123.27.
B. What is the Agency's authority for taking this action?
The authority for this action is the Federal Water Pollution
Control Act, 33 U.S.C. 1251 et seq., including sections 101, 301, 309,
402, 404, 501, and 518.
C. What are the incremental costs and benefits of this action?
The costs and benefits are qualitatively discussed in the Economic
Analysis for the Clean Water Act Section 404 Tribal and State Program
Regulation. The benefits of the final rule are primarily attributable
to establishing a process to develop a retained waters description,
providing a program effective date, and providing opportunities for
Tribal input. The incremental costs of the final rule are primarily
attributable to a potential burden increase for Tribes to meet revised
judicial review requirements and a potential burden increase to Tribes,
States, and permittees from revisions that expand on existing Tribal
opportunities to provide input. The Agency expects these benefits to
justify the costs. The economic analysis does not quantify these
potential incremental economic impacts, as there is very limited data
associated with these changes on which to base estimates.
III. Background
A. Statutory and Regulatory History
1. CWA Section 404
In 1972, Congress amended the Federal Water Pollution Control Act
(FWPCA), or the CWA as it is commonly called,\4\ to address
longstanding concerns regarding the quality of the nation's waters and
the Federal Government's ability to address those concerns under
existing law. The objective of the 1972 statutory scheme is ``to
restore and maintain the chemical, physical, and biological integrity
of the Nation's waters.'' 33 U.S.C. 1251(a). To achieve this objective,
Congress provided, ``[e]xcept as in compliance with this section and
sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the
discharge of any pollutant by any person shall be unlawful.'' Id. at
1311(a). A ``discharge of a pollutant'' is defined broadly to include
``any addition of any pollutant to navigable waters \5\ from any point
source,'' which includes the discharge of dredged or fill materials
from a point source into waters of the United States. Id. at 1362(12).
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\4\ The FWPCA is commonly referred to as the CWA following the
1977 amendments to the FWPCA. Public Law 95-217, 91 Stat. 1566
(1977). For ease of reference, EPA will generally refer to the FWPCA
in this document as the CWA or the Act.
\5\ The CWA uses the term ``navigable waters,'' which the
statute defines as ``the waters of the United States, including the
territorial seas.'' 33 U.S.C. 1362(7).
---------------------------------------------------------------------------
Section 404 of the CWA establishes a permitting program to regulate
the discharge of dredged or fill material from a point source into
navigable waters, unless the discharge is associated with an activity
exempt from section 404 permitting requirements under CWA section
404(f). Id. at 1344. Discharges of dredged materials, such as the
redeposit of dredged material (other than incidental fallback), and
discharges of fill materials, such as rock, sand, or dirt, may be
associated with activities such as site development, erosion
protection, bridges and piers, linear projects (such as pipelines),
natural resource extraction, shoreline stabilization, and restoration
projects.
Section 404(a) of the CWA authorizes the Secretary of the Army to
issue permits after notice and opportunity for public hearings to
discharge dredged or fill material into navigable waters at specified
disposal sites. Id. at 1344(a). The Act specifies that the Secretary of
the Army acts through the Chief of
[[Page 103456]]
Engineers, and thus the Corps generally administers the day-to-day
permitting program under section 404, unless EPA approves a Tribe's or
State's request to do so. See id. at 1344(d), (g).
The 1977 Amendments made the regulation of the discharge of dredged
or fill material a shared responsibility of the States and the Federal
Government.\6\ This partnership is consistent with the policy of CWA
section 101(b) that ``preserve[s] and protect[s] the primary
responsibilities and rights of States to prevent, reduce, and eliminate
pollution.'' and provides for States to ``implement the permit programs
under sections 1342 and 1344 of this title.'' \7\ To facilitate State
assumption of the section 404 program, Congress structured requirements
and procedures to leverage States' existing authority to administer the
CWA section 402 program.\8\ See section III.A.4 of this preamble for
further discussion on the specific statutory provisions that apply to
assumed programs.
---------------------------------------------------------------------------
\6\ See, e.g., H.R. Report No. 95-830 at 52 (1977) (``Federal
agencies are to cooperate with State and local agencies to develop
solutions to prevent, reduce and eliminate pollution in concert with
programs for managing water resources''). See also S. Report No. 95-
370 at 78 (1977) (``Several States have already established separate
State agencies to control discharges of dredge or fill materials''
and ``The amendment encourages the use of a variety of existing or
developing State and local management agencies.''). See also id. at
11 (``The provision solves most real problems with section 404: (a)
by providing general delegation authority to the States . . .'').
The 1977 amendments also introduced exemptions and general permits.
See 33 U.S.C. 1344(e)-(f).
\7\ See S. Report No. 95-370 at 77 (1977) (``The committee
amendment is in accord with the stated policy of Public Law 92-500
of `preserving and protecting the primary responsibilities and
rights of States or [stet] prevent, reduce, and eliminate
pollution.' '').
\8\ See id. at 77 (``[The amendment] provides for assumption of
the permit authority by States with approved programs for control of
discharges for dredged and fill material in accord with the criteria
and with guidelines comparable to those contained in 402(b) and
404(b)(1).''). See also id. at 77-78 (``By using the established
mechanism in section 402 of Public Law 92-500, the committee
anticipates the authorization of State management of the permit
program will be substantially expedited. At least 28 State entities
which have already obtained approval of the national pollutant
discharge elimination system under the section should be able to
assume the program quickly.''). A Tribe or State need not have an
approved CWA section 402 program prior to seeking to assume
administration of CWA section 404.
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Under the section 404 program, discharges of dredged or fill
material into waters of the United States are authorized by individual
or general permits. Individual permits are processed by the permitting
agency (i.e., the Corps, or a Tribe or State with an approved program),
which evaluates them for consistency with the environmental criteria
outlined in the CWA section 404(b)(1) Guidelines \9\ or corresponding
Tribal or State laws or regulations, respectively. General permits
developed by the permitting agency may authorize discharges that will
have only minimal adverse effects, individually and cumulatively, to
the aquatic environment. General permits must be consistent with the
environmental review criteria set forth in the CWA section 404(b)(1)
Guidelines and may be issued on a nationwide, regional, or programmatic
basis for discharges from specific categories of activities. General
permits allow activities that meet specified conditions to proceed with
little or no delay. For example, a general permit can authorize
discharges associated with minor road activities or utility line
backfill, if the regulated activities under the general permit will
cause only minimal adverse environmental effects when performed
separately, will have only minimal cumulative adverse effects on the
environment, and the discharge complies with the general permit
conditions and the CWA section 404(b)(1) guidelines.
---------------------------------------------------------------------------
\9\ The CWA section 404(b)(1) Guidelines are regulations
established by EPA pursuant to CWA section 404(b)(1) in conjunction
with the Corps and codified at 40 CFR part 230. They set forth the
substantive environmental review criteria used to evaluate permits
for discharges of dredged and/or fill material under CWA section
404.
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While the Corps is the Federal permitting agency and administers
the Federal section 404 program on a day-to-day basis, EPA also plays
an important role in the Federal section 404 program. Both agencies
develop and interpret policy and guidance and have promulgated section
404 regulations.\10\ Both EPA and the Corps have enforcement
authorities pursuant to section 404, as specified in sections 301(a),
309, 404(n), and 404(s) of the CWA. In the context of section 404, the
Corps does the day-to-day work of conducting jurisdictional
determinations,\11\ making permit decisions, ensuring compliance, and
taking enforcement actions, as necessary for the implementation of the
Federal section 404 program.
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\10\ The substantive and procedural requirements applicable to
section 404 are detailed in EPA's regulations at 40 CFR parts 230
through 233 and the Corps' regulations at 33 CFR parts 320, 323,
325-328, 330 through 333, and 335 through 338.
\11\ EPA decisions on jurisdiction do not constitute approved
jurisdictional determinations as defined by the Corps regulations at
33 CFR 331.2. EPA has final administrative authority over the scope
of CWA jurisdiction. Administrative Authority to Construe Sec. 404
of the Federal Water Pollution Control Act (``Civiletti
Memorandum''), 43 Op. Att'y Gen. 197 (1979).
---------------------------------------------------------------------------
Under section 404, EPA establishes environmental criteria used in
evaluating permit applications (i.e., the CWA section 404(b)(1)
Guidelines) in conjunction with the Corps; determines the applicability
of section 404(f) exemptions; approves and oversees Tribal and State
assumption of the section 404 program (sections 404(g)-(l)); may review
and comment on general permits, authorization under general permits,
and individual permit applications issued by Tribes, States, or the
Corps; may prohibit, deny, or restrict the use of any defined area as a
disposal site (section 404(c)); and may elevate Corps issued permits
for resolution (section 404(q)).
2. Scope of Tribal and State CWA Section 404(g) Programs
When Congress enacted the CWA in 1972, the Corps had long been
regulating ``navigable waters of the United States'' as defined under
the Rivers and Harbors Act of 1899 (RHA). The CWA defined ``navigable
waters'' to mean ``the waters of the United States, including the
territorial seas.'' 33 U.S.C. 1362(7). The Corps' initial post-CWA
regulations treated the two jurisdictional terms under the two
different statutes interchangeably. 39 FR 12115, 12119 (April 3, 1974).
In 1975, the U.S. District Court for the District of Columbia found
that ``waters of the United States'' under the CWA exceeds the scope of
jurisdiction under the RHA and ordered the Corps to adopt new
regulations ``clearly recognizing the full regulatory mandate of the
Water Act.'' Nat. Res. Def. Council, Inc. v. Callaway, 392 F. Supp.
685, 686 (D.D.C. 1975).
In July 1975, the Corps issued new regulations expanding the
section 404 program in phases to cover all waters of the United States,
in compliance with the court's order. 40 FR 31320 (July 25, 1975).
Phase I, which was effective immediately, regulated discharges of
dredged or fill material into coastal waters or inland navigable waters
of the United States and wetlands contiguous or adjacent to those
waters. Phase II, effective on July 1, 1976, addressed discharges of
dredged or fill material into primary tributaries and contiguous or
adjacent wetlands, as well as lakes. Phase III, effective after July 1,
1977, addressed discharges of dredged material or fill material into
``any navigable water [including intrastate lakes, rivers and streams .
. .]'' Id. at 31326. The intent of the phased approach was to provide
time for the Corps to increase staffing and resources to implement the
expanded jurisdiction and workload. Id. at 31321 (``[i]n view of man-
power and budgetary constraints it is necessary that this program be
phased in over a two year period.'').
[[Page 103457]]
Thus, the phases did not mean all of the waters in the final regulation
were not waters of the United States, but rather reflected when the
Corps would have capacity to begin regulating activities within each
type of jurisdictional water.
Some in Congress were concerned about breadth of the new
interpretation of ``waters of the United States'' under the Corps' CWA
dredged and fill regulatory program. In 1976, the House of
Representatives passed H.R. 9560, which would have redefined the CWA
term ``navigable waters'' specifically for the section 404 program (but
not the rest of the CWA) as follows:
The term ``navigable waters'' as used in this section shall mean
all waters which are presently used, or are susceptible to use in
their natural condition or by reasonable improvement as a means to
transport interstate or foreign commerce shoreward to their ordinary
high water mark, including all waters which are subject to the ebb
and flow of the tide shoreward to their mean high water mark (mean
higher high water mark on the west coast).
H.R. Rep. No. 94-1107, at 63 (1976). The House Committee explained
that the new definition would mirror the longstanding RHA section 10
definition of ``navigable waters of the United States,'' except that it
would omit the ``historical test'' of navigability. Id. at 19. The
House thought that discharges of dredged or fill material occurring in
``waters other than navigable waters of the United States . . . are
more appropriately and more effectively subject to regulation by the
States.'' Id. at 22.
The Senate disagreed. It declined to redefine ``navigable waters''
for purposes of the section 404 program and the House bill was not
enacted into law. Instead, the Senate addressed the desire for State
control by passing a bill allowing States to assume section 404
permitting authority, subject to EPA approval, in Phase II and III
waters (as defined in the Corps' 1975 regulations quoted above). S.
Rep. No. 95-370, at 75 (1977).\12\ After assumption, the Corps would
retain section 404 permitting authority in Phase I waters. This general
approach was codified in the final bill, H.R. 3199, referred to as the
1977 CWA Amendments: it did not change the definition of ``navigable
waters'' for the section 404 program, but it allowed States to assume
permitting authority in ``phase 2 and 3 waters after the approval of a
program by [EPA].'' H.R. Rep. No. 95-830, at 101 (1977).\13\ The final
amendments included a parenthetical phrase in section 404(g)(1) that
defined Corps-retained waters using the same language that the House
Committee had used in its effort to limit the Corps' jurisdiction,
other than waters that were historically used as a means to transport
interstate or foreign commerce but no longer do so, and with the
addition of ``wetlands adjacent thereto.'' H.R. Rep. No. 95-830, at 39.
The preamble to the Corps' 1977 regulations described Corps-retained
waters under section 404(g)(1) as ``waters already being regulated by
the USACE,'' i.e., those waters the Corps regulated under section 10 of
the RHA, ``plus all adjacent wetlands to these waters.'' 42 FR 37122,
37124 (July 19, 1977). The legislative history suggests that the Senate
expected widespread assumption of the section 404 program, leaving the
Corps to regulate only RHA section 10 waters that are currently used as
a means to transport interstate or foreign commerce, and adjacent
wetlands. S. Rep. No. 95-370, at 77-78, reprinted in 4 Legis. History
1977, at 710-11; see 33 U.S.C. 1344(g)(1).
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\12\ The Senate Report is reprinted in Comm. On Env't & Publ.
Works, 95th Cong., 4 A Legislative History of the Clean Water Act of
1977 (Legis. History) at 635, 708 (October 1978).
\13\ The House Report is reprinted in 3 Legis. History 1977, at
185, 285.
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3. Overview of CWA Section 404(g) Statutory Requirements for Program
Administration and Implementation
Congress laid out general procedures for Tribal \14\ and State
submissions and EPA's approval, upon which EPA has further elaborated
in regulation, as discussed in section III.A.4 of this preamble below.
Pursuant to section 404(g), a Tribe or State seeking to assume the
section 404 program must submit to the EPA Administrator a full and
complete description of the proposed program and a statement from the
attorney general (or attorney for Tribal or State agencies that have
independent legal counsel) that it has adequate authority to establish
and carry out the proposed program under Tribal or State law. 33 U.S.C.
1344(g)(1). The Administrator has up to ten days after the receipt of
the program description and attorney general statement to provide
copies to the Secretary of the Army and Secretary of the Interior
(acting through the Director of the United States Fish and Wildlife
Service), who in turn have up to 90 days from the Administrator's
receipt of a complete program description and attorney general
statement to provide comments to the Administrator.\15\ Id. at
1344(g)(2)-(3).
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\14\ The 1987 amendments to the CWA added section 518, which
authorizes EPA to treat eligible Indian Tribes in a manner similar
to States for a variety of purposes, including administering each of
the principal CWA regulatory programs such as CWA section 404. 33
U.S.C. 1377(e).
\15\ Per the regulations, a copy is also provided to the
National Marine Fisheries Service. See 40 CFR 233.15(d).
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Section 404(h) of the Act identifies eight authorities EPA must
ensure a Tribe or State has prior to approving a request to assume and
administer a section 404 program. Id. at 1344(h)(1)(A)-(H). First, a
Tribe or State must have the authority to issue permits that apply and
assure compliance with the requirements of section 404 (including but
not limited to the CWA section 404(b)(1) Guidelines); issue permits for
a set duration which cannot exceed five years; and terminate or modify
an issued permit. Id. at 1344(h)(1)(A). Second, the Tribe or State must
have the authority to inspect, monitor, enter and require reports in
association with issued permits to the same extent as required under
section 1318 of the Act. Id. at 1344(h)(1)(B). Third, the Tribe or
State must have the authority to provide public notice, provide an
opportunity to comment on proposed permits, and provide an opportunity
for a public hearing. Id. at 1344(h)(1)(C). Fourth, the Tribe or State
must have authority to assure EPA receives notice and a copy of each
application (unless review is waived). Id. at 1344(h)(1)(D). Fifth, the
Tribe or State must have authority to provide notice to Tribes and
States whose waters may be affected by the permit and for the affected
Tribe or State to provide written recommendations. Id. at
1344(h)(1)(E). Sixth, a Tribe or State must also have the authority to
assure no permit will be issued if it would substantially impede
anchorage and navigation of the navigable waters. Id. at 1344(h)(1)(F).
Seventh, the Tribe or State must have authority to abate violations of
permits and the program--including both civil and criminal penalties as
well as other ways and means of enforcement. Id. at 1344(h)(1)(G). And
lastly, the Tribe or State must have authority to assure continued
coordination with Federal and Federal-State water-related planning and
review processes. Id. at 1344(h)(1)(H).
If the EPA Administrator determines that a Tribe or State that has
submitted a program request under section 404(g)(1) has the authority
set forth in section 404(h)(1) of the CWA, then the Administrator
``shall approve'' the Tribe's or State's request to assume the section
404 program. Id. at 1344(h)(2). If the Administrator fails to make a
determination with respect to any
[[Page 103458]]
program request submitted by a Tribe or State within 120 days after the
date of receipt of the request, the program shall be deemed approved.
Id. at 1344(h)(3). The Act also provides for EPA to withdraw assumed
programs that are not administered in accordance with the requirements
of the Act. Id. at 1344(i).
A Tribe or State assuming the section 404 program must have
authority under Tribal or State law to assume, administer, and enforce
the program; EPA's approval does not delegate authority to issue a
permit on behalf of the Federal Government. By assuming administration
of the section 404 program under section 404(g), an eligible Tribe or
State takes on the primary responsibility of permitting discharges of
dredged and/or fill material into certain waters of the United States
within its jurisdiction.\16\ For section 404 permitting purposes, the
Tribe or State must exercise jurisdiction over all assumed waters
subject to the CWA except those waters to be retained by the Corps. 33
U.S.C. 1344(g). The Corps retains CWA section 404 permitting authority
for all non-assumed waters as well as RHA section 10 permitting
authority in all waters subject to RHA section 10. For example, States
generally do not assume CWA section 404 authority over Tribal waters or
waters in lands of exclusive Federal jurisdiction. Tribal or State
programs can also regulate waters that are retained by the Corps, or
waters that are not waters of the United States, under Tribal or State
law, but the Corps will remain the CWA 404 permitting authority for
retained waters.
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\16\ Legislative history makes clear that Congress did not
intend Tribal or State assumption under section 404(g) to be a
delegation of the permitting program. H.R. Rep. No. 95-830 at 104
(1977). (``The Conference substitute provides for the administration
by a State of its own permit program for the regulation of the
discharge of dredged or fill material. . . . The conferees wish to
emphasize that such a State program is one which is established
under State law and which functions in lieu of the Federal program.
It is not a delegation of Federal authority.'') The conference
report is available at https://www.epa.gov/sites/production/files/2015-11/documents/1977_conf_rept.pdf.
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4. CWA Section 404 Tribal and State Program Regulations
In 1980, in response to the 1977 CWA Amendments, EPA promulgated
regulations to establish procedures and criteria to approve or
disapprove State programs under section 404(g) and monitor State
programs after approval. 45 FR 33290 (May 19, 1980).\17\ On June 6,
1988, EPA revised these procedures and criteria used in approving,
reviewing, and withdrawing approval of section 404 State programs and
codified them at 40 CFR part 233. 53 FR 20764 (June 6, 1988). The 1988
regulations provided States with flexibility in program design and
administration while still meeting the requirements and objectives of
the CWA. They also incorporated section 404 program definitions and
section 404(f)(1) exemptions at 40 CFR part 232.\18\
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\17\ In 1983, EPA reorganized the presentation of the permit
programs in the CFR, including moving the regulations for 404 State
programs to their current location at 40 CFR part 233, but made no
substantive changes to any of the affected sections. 48 FR 14146,
14208 (April 1, 1983).
\18\ The 1988 regulations essentially recodified at 40 CFR part
232 the section 404 program definitions and section 404(f)(1) permit
exemptions in a new, separate part to eliminate any confusion about
their applicability. The section 404 program definitions at 40 CFR
part 232 apply to both the Federal and State administered programs.
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The regulations at 40 CFR part 233 described the assuming Tribe's
or State's program requirements, EPA responsibilities, approval and
oversight of assumed programs, and requirements for review,
modification, and withdrawal of Tribal and State programs (as
necessary). Subpart B of the 404 State Program Regulations sets forth
the elements of program approval, including the program description,
the Attorney General's statement, the Memorandum of Agreement between
the Tribe or State and EPA, and the Memorandum of Agreement between the
Tribe or State and the Secretary. It also establishes procedures for
approving and revising Tribal or State programs. 40 CFR 233.10 through
233.16. Subpart C addresses Permit Requirements, subpart D lays out
Program Operation Requirements, subpart E establishes requirements for
Compliance Evaluation and Enforcement, and subpart F discusses Federal
Oversight authority. Id. at 233.20-53. In subpart G, EPA lays out
requirements and procedures for Tribal assumption, id. at 233.60-62,
and subpart H codifies EPA's approval of Michigan and New Jersey's
programs and incorporates certain State laws by reference. Id. at
233.70-71. These regulations implement key principles of Tribal and
State assumption, including that an assumed program must be consistent
with and no less stringent than the Act and implementing regulations,
allow for public participation, ensure consistency with the CWA
404(b)(1) Guidelines, and have adequate enforcement authority.
Since 1988, the Agency has made several targeted revisions and
additions to the CWA section 404 Tribal and State program regulations
at 40 CFR part 233. On February 13, 1992, EPA finalized a rule amending
the regulations to reflect the newly created Environmental Appeals
Board in Agency adjudications, including revising section 233.53
related to withdrawal. 57 FR 5320 (February 13, 1992). In 1993, the
Agency added subpart G to 40 CFR part 233 pursuant to CWA section 518,
which required EPA to promulgate regulations specifying how Indian
Tribes may qualify for treatment in a similar manner as a State (TAS)
for purposes of assuming the section 404 program. 58 FR 8172 (February
11, 1993).\19\ The 1993 rule also revised 40 CFR part 232 by adding new
definitions for ``Federal Indian reservation,'' ``Indian Tribe,'' and
``States.'' Id. The Agency further revised the subpart G regulations
regarding Tribal eligibility at sections 233.60, 233.61, and 233.62 in
1994 to improve and simplify the process for Tribes to obtain EPA
approval to assume the section 404 program. 59 FR 64339, 64345
(December 14, 1994). Under that rule, known as the Simplification Rule,
a Tribe does not need to prequalify for TAS before requesting to assume
the section 404 program. Instead, it can establish its TAS eligibility
at the program approval stage, subject to EPA notice and comment
procedures for State program approval. Id. at 64339-40. A 2005 rule on
cross-media electronic reporting added section 233.39 on electronic
reporting. 70 FR 59848 (October 13, 2005). EPA also codified the
approval of the Michigan program on October 2, 1984 (49 FR 38947) and
the New Jersey program on March 2, 1994 (59 FR 9933) in subpart H of 40
CFR part 233.
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\19\ When the term ``State Program'' is used in the regulations,
it refers to an approved program run by any of the entities
described in the definition of ``State,'' including Tribes. 58 FR
8183 (``State means any of the 50 States, the District of Columbia,
Guam, the Commonwealth of Puerto Rico, the Virgin Islands, American
Samoa, the Commonwealth of the Northern Mariana Islands, the Trust
Territory of the Pacific Islands, or an Indian Tribe, as defined in
this part, which meet the requirements of Sec. 233.60. For purposes
of this part, the word State also includes any interstate agency
requesting program approval or administering an approved
program.'').
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B. Need for Rulemaking Revisions
Although nearly half of the States and a few Tribes have expressed
some level of interest to EPA over time in assuming the Federal section
404 dredged and fill permit program, only two States currently
administer the program.\20\ In 2010 and 2011 letters to EPA, the
Environmental Council of States
[[Page 103459]]
recommended further steps to encourage Tribal and State assumption of
the program, remove barriers to assumption, and improve the efficiency
of the program.\21\ While some Tribes and States have considered
assumption, they have expressed to EPA the need for further
clarification regarding the regulations, including which waters a Tribe
or State may assume and which waters the Corps retains. For example, in
a 2014 letter to then-Acting Assistant Administrator Nancy Stoner,\22\
State associations asked EPA to clarify the scope of assumable waters,
citing uncertainty on this issue as a barrier to assuming the program.
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\20\ Florida obtained EPA's approval to assume the CWA section
404 program on December 17, 2020. On February 15, 2024, the U.S.
District Court for the District of Columbia vacated EPA's approval
of Florida's program. Center for Biological Diversity v. Regan, No.
21-119, 2024 WL 655368 (D.D.C.). An appeal of the district court's
decision is pending. See No. 24-5101 (D.C. Cir.).
\21\ Letter from Thomas W. Easterly, Chair, Water Committee, The
Environmental Council of States, Lucy C. Edmonson, Vice Chair, The
Environmental Council of States, to Peter Silva, Assistant
Administrator, Office of Water, U.S. Environmental Protection
Agency. February 26, 2010; Letter from R. Steven Brown, Executive
Director, The Environmental Council of States, to Nancy K. Stoner,
Acting Assistant Administrator, Office of Water, U.S. Environmental
Protection Agency. July 22, 2011. Subject: Progress Report and
Recommended Actions to Further Clarify Section 404 Assumption
Application Requirements and Implementation by Tribes and States.
\22\ Letter from Alexandria Dapolito Dunn, ECOS, Sean Rolland,
ACWA, and Jeanne Christie, ASWM, to Nancy Stoner, Acting Assistant
Administrator, Office of Water, U.S. Environmental Protection
Agency. April 30, 2014.
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In 2015, EPA formed the Assumable Waters Subcommittee under the
auspices of the National Advisory Council for Environmental Policy and
Technology (NACEPT) to provide advice and develop recommendations as to
how EPA could best clarify the scope of waters over which a Tribe or
State may assume CWA section 404 permitting responsibilities, and the
scope of waters over which the Corps retains CWA section 404 permitting
responsibilities. The Subcommittee included 22 members representing
States, Tribes, Federal agencies, industry, environmental groups,
Tribal and State associations, and academia. The Subcommittee presented
its recommendations to NACEPT on May 10, 2017. NACEPT endorsed the
Subcommittee report in its entirety and submitted it to former
Administrator Scott Pruitt on June 2, 2017, with additional notations
and recommendations, such as a preference for clarity through
regulation. The ``Final Report of the Assumable Waters Subcommittee,
May 2017,'' recommended that EPA develop policies, guidance, and
regulations to clarify assumed and retained waters.\23\
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\23\ Available at https://www.epa.gov/cwa-404/submission-assumable-waters-subcommittees-final-report and in the docket for
the final rule, Docket ID No. EPA-HQ-OW-2020-0276.
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In addition to the needs identified by Tribes and States, the
Agency also recognized the need for other revisions, including several
technical revisions to the regulations. For example, while the 1988
regulations recognized that the part 124 regulations do not apply to
Tribal or State section 404 programs, the Agency did not make
conforming revisions. The regulation also required other revisions
throughout 40 CFR part 233 to update cross-references, ensure
consistent use of terminology, and facilitate efficient program
operation.
On June 11, 2018, the Agency published its 2018 Spring Unified
Agenda of Regulatory and Deregulatory Actions \24\ announcing the
Agency was considering a rulemaking to provide the first comprehensive
revisions to the section 404 Tribal and State program regulations since
1988.
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\24\ Available at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201804&RIN=2040-AF83.
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In September 2018, the Agency sent letters to Tribal leaders and
State governors announcing opportunities for Tribes and States to
provide input on areas of the regulation that could benefit from
additional clarity and revision. Tribes and States provided input on
various topics at Tribal and State engagement sessions, including
requests for flexibility in assuming and administering the section 404
program and clarification on retained and assumed waters. See section
V.E and F of this preamble for further discussion on Tribal and State
engagement in this rule effort. In 2023, EPA held informational
webinars for States on January 24 and for Tribes on January 2-5 and
January 31. At these webinars, EPA provided Tribes and States with an
update on the rulemaking effort and an overview of previously received
Tribal and State input to EPA. EPA did not seek additional input from
Tribes or States at the January 2023 webinars.
The Agency announced a proposed rule to revise the CWA section 404
Tribal and State program regulations on July 19, 2023; the Agency also
posted a draft of the proposed rule on its website. On August 14, 2023,
the Agency published the proposed rulemaking in the Federal Register,
88 FR 55276, which initiated a 60-day public comment period that lasted
through October 13, 2023. EPA held a virtual public hearing on
September 6, 2023, and hosted input sessions for interested State and
Tribal parties throughout August 2023, including one State input
session on August 24, 2023, and two Tribal input sessions on August 15
and 30, 2023. In finalizing the proposed rule, the Agency reviewed 44
comments received on the proposed rulemaking, in addition to input
received during pre-proposal, at the public hearing, and at the Tribal
and State input sessions. Commenters provided a range of feedback on
the proposal. The Agency discusses comments received and responses in
the applicable sections of this preamble to the rule. A complete
response to comments document is available in the docket for the rule
(Docket ID No. EPA-HQ-OW-2020-0276).
The rule addresses many of the issues raised by Tribes and States
as challenges to assuming section 404, as well as drawing from EPA's
experience working with Tribes and States pursuing assumption and in
program oversight.
IV. Final Rule
EPA is finalizing revisions to the CWA section 404 Tribal and State
program regulations at 40 CFR part 233 to provide additional clarity on
conflict of interest prohibitions, program approval procedures and
requirements, permit requirements, program operations, compliance
evaluation and enforcement, Federal oversight, and Tribal provisions.
EPA is also finalizing revisions to the criminal enforcement
requirements in 40 CFR 123.27 and 40 CFR 233.41, which apply to Tribes
and States that administer the CWA section 402 National Pollutant
Discharge Elimination System (NPDES) permitting program as well as the
section 404 program.
This section of this preamble addresses changes to seven sub-
sections in the existing subpart structure of the 40 CFR part 233
regulations: Subpart A--General, Subpart B--Program Approval, Subpart
C--Permit Requirements, Subpart D--Program Operations, Subpart E--
Compliance Evaluation and Enforcement, Subpart F--Federal Oversight,
and Subpart G--Eligible Indian Tribes. Each sub-section contains topics
covered under that subpart of the regulation. Within each topic, this
preamble includes (1) an overview of the topic and its relevant final
rule provision(s) and (2) a summary of the Agency's final rule
rationale and public comments. Where applicable, some topics also
address implementation considerations for the final rule provisions.
This preamble is structured in a manner intended to clearly convey the
relevant changes to the regulatory text. Following this preamble
discussion on the final rule provisions, this section of this preamble
also includes four sub-sections that discuss the impact of the final
rule on existing programs, technical revisions,
[[Page 103460]]
incorporation by reference, and severability.
A. General
1. Conflict of Interest
a. Overview and What the Agency Is Finalizing
The Agency's 1988 regulations for the section 404 Tribal and State
program provided a general prohibition that public officers or
employees with direct personal or pecuniary interests in a decision
must make the interest known and not participate in such decision. In
the proposal to this rule, the Agency proposed to clarify to whom the
provision applies. The proposal specified that individuals who exercise
responsibilities over section 404 permitting and programs may not be
involved in any matters in which they have a direct personal or
pecuniary interest. The proposal also clarified that this provision
applies to decisions by the Tribal or State permitting agency as well
as any entity that reviews decisions of the agency.
After reviewing public comments, the Agency is finalizing the
revisions to the conflict of interest provision as proposed. EPA is
also affirming the importance of ensuring public confidence when a
Tribe or State issues a permit to one of its agencies or departments,
though has determined that codifying specific processes or requirements
to address self-issuance of permits by assuming Tribes and States is
unnecessary. This provision does not address or affect Federal or State
court review of permitting actions.
b. Summary of Final Rule Rationale and Public Comment
CWA section 404 does not require EPA to establish guidelines on
conflicts of interest for Tribal or State programs. In contrast, the
CWA requires EPA to establish guidelines for section 402 State programs
that prohibit any entity which approves permit applications from having
members who receive, or have during the previous two years received, a
significant portion of their income from permit holders or applicants
for a permit. 33 U.S.C. 1314(i)(D). EPA's section 402 regulations,
accordingly, provide that ``State NPDES programs shall ensure that any
board or body which approves all or portions of permits shall not
include as a member any person who receives, or has during the previous
2 years received, a significant portion of income directly or
indirectly from permit holders or applicants for a permit.'' 40 CFR
123.25(c). The provision then defines the terms ``board or body,''
``significant portion of income,'' ``permit holders or applicants for a
permit,'' and ``income.'' See id. at 123.25(c)(1).
In 1984, EPA proposed to codify the section 402 provision in its
revisions to the section 404 Tribal and State program regulations. 49
FR 39012 (October 2, 1984). However, EPA ultimately decided not to hold
Tribe and State section 404 programs to the same conflict of interest
standards as State NPDES programs because of practical differences
between the two programs. 53 FR 20764, 20766 (June 6, 1988). At that
time, EPA noted that NPDES discharges are usually long-term discharges,
often from certain specific types of industrial or municipal
facilities. Id. In contrast, discharges authorized by section 404
typically tend to be one-time discharges and generated by a broader
range of dischargers than NPDES, ``ranging from private citizens to
large corporations, from small fills for boat docks or erosion
prevention to major development projects.'' Id. EPA concluded that an
absolute ban on anyone with a financial interest in a permit from
serving on a board that approves permits is likely to be more difficult
to comply with under the section 404 program because so many people
would be considered to be financially interested in section 404 permits
and therefore eliminated from the pool of potential board members. Id.
Instead, EPA provided a general prohibition that public officers or
employees with such interests in a decision shall make the interest
known and not participate in such decision. Id.
Similar distinctions between the sections 402 and 404 programs
apply today. For example, if an individual needed a section 404 permit
for the discharge of fill material into one lake to install a boat ramp
at one point in time, EPA does not think it necessary to permanently
preclude that individual from participating in any section 404-related
decision-making. The Agency proposed to revise the section 404 conflict
of interest provision, however, to further clarify to whom the
provision applies. The purpose of this clarification was to ensure that
individuals who exercise responsibilities over section 404 permitting
and programs are not involved in any matters in which they have a
direct personal or pecuniary interest. The proposal also clarified that
this provision applies to any section 404-related decisions by the
agency as well as any entity that reviews these decisions. For example,
if a Tribe or State has established boards or other bodies to advise,
oversee, or review appeals of agency decisions, members of such boards
would be subject to this conflict of interest provision even if they
are not officers or employees of the Tribe or State agency.
Some commenters expressed concerns that the change in the conflict
of interest provision weakens or injects uncertainty into the section
404 assumption process. A commenter argued that the language is too
``vague and [its] broad articulation makes it unclear to whom, exactly,
this provision applies.'' EPA disagrees; as explained above, the final
rule more clearly articulates who must provide notification of
potential conflicts of interest and recuse themselves from any section
404 program decision for which they have a conflict of interest, not
just decisions that exceed a monetary threshold. In EPA's view, this
new language is clear and does not create uncertainty; EPA presumes
that any person participating in a matter subject to a section 404
decision by the agency will be aware that they are doing so, and they
should also be aware if they have personal or pecuniary interests in
that matter. If a person is uncertain as to whether the conflict of
interest provision applies, they can always seek guidance from the
Tribal or State agency or from EPA.
With respect to Tribal and State permits being issued for Tribal or
State projects, the Agency has determined that distinct procedures to
address these types of permits are unnecessary, as all permits must
comply with the section 404(b)(1) Guidelines and other requirements of
CWA section 404. The CWA does not distinguish between a Tribe or State
with an approved program as a permittee and other permittees. Most
State permitting entities have experience issuing permits to other
agencies within that respective State. For example, States that
implement the section 402 program routinely issue NPDES permits to
various departments and agencies within that State.\25\ To the extent
the courts have considered this matter, they have found no legal
impediment to issuance of an NPDES permit by an authorized State to
itself. See, e.g., West Virginia Highlands Conservancy, Inc. v.
Huffman, 625 F.3d 159 (4th Cir. 2010). EPA is unaware of any
significant concerns arising from the issuance of NPDES permits by
States to other agencies or departments within that respective State.
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\25\ One territory, the Virgin Islands, and all states except
Massachusetts, New Hampshire, New Mexico, are authorized to
implement at least some portion of the NPDES program. See https://www.epa.gov/npdes/npdes-state-program-information.
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[[Page 103461]]
Likewise, to EPA's knowledge, the agencies in Michigan and New
Jersey have been issuing section 404 permits to authorize the agencies'
own activities and activities of other agencies within those States for
many years without encountering any significant issues. The Florida
Department of Environmental Protection did the same between December
2020 and February 2024 without significant conflict of interest issues,
to EPA's knowledge. A common example of self-issuance by one State
agency to another is when the State water quality agency issues a
permit to the State department of transportation for aquatic resource
impacts associated with the construction of a State road. Similarly,
the Corps issues CWA section 404 permits to other Federal agencies, and
EPA does not have--nor did commenters provide--any information that
raises concerns on the part of EPA about the integrity and neutrality
of these intra-governmental permitting processes.
The Agency did not propose any regulatory text on the self-issuance
of permits. The Agency received one comment on this issue, expressing
concern that conflicts of interest are presented when private
developers or State agencies provide funding to the permitting
agencies, which in turn allow the permitting agency to employ permit
processers that will handle the permit applications submitted by the
same private developers or State agencies. In effect, the commenter
stated, the private developer or non-permitting State agency becomes
the employer of their permit processor. This rule does require that all
permits must comply with the section 404(b)(1) Guidelines and other
requirements of CWA section 404. Tribes and States that assume the CWA
section 404 program must also follow public notice and comment
procedures for permit applications, thereby ensuring transparency and
providing the public with an opportunity to submit input to address any
concerns. Additionally, the CWA provides EPA with oversight authority
of Tribes' and States' assumed section 404 permits, allowing Federal
review of assumed programs in general and applications for particular
proposed permits, including self-issued permits. To the extent EPA has
concerns that permits are not compliant, whether based on its own
analysis or based on comments from other agencies or interested
parties, EPA may object to the issuance of permits.
Tribes, States, and EPA have the discretion to implement additional
measures if, in a particular circumstance, they desire to further
ensure public confidence that certain permits are consistent with the
CWA and not the subject of special considerations. For example, an
assuming Tribe or State could separate its permit-issuing function from
departments or offices that apply for and receive permits or expand
public participation requirements for self-issued permits. EPA and an
assuming Tribe or State could also agree in the Memorandum of Agreement
that EPA would exercise heightened oversight (i.e., would not waive
review) over permits issued by and to Tribal or State agencies or
departments. EPA encourages Tribes and States to implement measures to
ensure transparency in the permitting process based on the specific
structures and procedures of their agencies. For all of these reasons,
EPA does not find that it is necessary to include in this regulation
any additional processes or requirements to address self-issuance of
permits by assuming Tribes and States.
2. Compliance With the CWA 404(b)(1) Guidelines
a. Overview and What the Agency Is Finalizing
The CWA section 404(b)(1) Guidelines are the substantive
environmental criteria used to evaluate discharges of dredged and/or
fill material under CWA section 404. EPA may approve a Tribal or State
request for assumption only if EPA determines, among other things, that
the Tribe or State has authority to issue permits that comply with the
CWA 404(b)(1) Guidelines. 33 U.S.C. 1344(h)(1)(A)(i). The regulations
already require that CWA section 404 permits issued by an assuming
Tribe or State must comply with the CWA 404(b)(1) Guidelines. However,
stakeholders have requested clarity regarding the way in which a Tribe
or State wishing to assume the CWA section 404 program can demonstrate
that it has authority to issue permits that ``apply, and assure
compliance with'' the CWA 404(b)(1) Guidelines. See id. EPA did not
propose any new regulatory text on compliance with the CWA 404(b)(1)
Guidelines, because the Agency did not want to unintentionally
constrain how Tribes and States can demonstrate their authority. But in
response to stakeholder requests, EPA discussed various approaches that
Tribes and States can undertake to demonstrate that they have
sufficient authority to issue permits that apply and assure compliance
with the CWA 404(b)(1) Guidelines in this preamble to the proposed
rule. After reviewing public comments, the Agency is finalizing its
proposed approach.
b. Summary of Final Rule Rationale and Public Comment
Pursuant to CWA section 404(h)(1)(A)(i), EPA may approve a Tribal
or State request for assumption only if EPA determines, among other
things, that the Tribe or State has authority ``[t]o issue permits
which--(i) apply, and assure compliance with, any applicable
requirements of this section, including, but not limited to, the
guidelines established under subsection [404](b)(1). . . .'' The CWA
404(b)(1) Guidelines also direct that ``no discharge of dredged or fill
material shall be permitted'' if there is a less environmentally
damaging practicable alternative, so long as the alternative does not
have other significant adverse environmental consequences (40 CFR
230.10(a)); if it would cause or contribute to violations of applicable
water quality standards taking into account disposal site dilution and
dispersion (40 CFR 230.10(b)(1)); if it would violate any applicable
toxic effluent standard or prohibition (40 CFR 230.10(b)(2)); if it
would cause or contribute to significant degradation of waters of the
United States (40 CFR 230.10(c)); or if it would jeopardize the
continued existence of listed endangered or threatened species under
the Endangered Species Act of 1973 or result in the likelihood of the
destruction or adverse modification of designated critical habitat (40
CFR 230.10(b)(3)); or unless appropriate and practicable steps have
been taken to minimize potential impacts of the discharge on the
aquatic ecosystem. See 40 CFR 230 Subpart H; see also section IV.B.4 of
this preamble for further discussion on mitigation.
Consistent with CWA section 404(h)(1)(A)(i), the section 404 Tribal
and State program regulations require that assuming Tribes and States
may not impose conditions less stringent than those required under
Federal law (40 CFR 233.1(d)); that Tribes and States may not issue
permits that do not comply with the requirements of the Act or this
part of the regulations, including the CWA 404(b)(1) Guidelines (40 CFR
233.20(a)); that ``[f]or each permit the Director shall establish
conditions which assure compliance with all applicable statutory and
regulatory requirements, including the 404(b)(1) Guidelines . . .'' (40
CFR 233.23(a)); and that ``The Director will review all applications
for compliance with the 404(b)(1) Guidelines and/or equivalent State
environmental criteria as well as any other applicable State laws or
[[Page 103462]]
regulations'' (40 CFR 233.34(a)). Because the regulations already
require that CWA section 404 permits issued by an assuming Tribe or
State must comply with the CWA 404(b)(1) Guidelines, EPA did not
propose adding to the regulatory text.
Several commenters asserted that the only way to ensure that Tribes
and States have sufficient authority to issue permits that apply and
assure compliance with the CWA 404(b)(1) Guidelines is to require
Tribes and States to adopt the CWA 404(b)(1) Guidelines verbatim or
incorporate them by reference into the Tribal or State program. To the
extent these commenters assert that adoption or incorporation is the
most straightforward way for a Tribe or State to demonstrate sufficient
authority, EPA agrees. However, while a Tribe or State may choose to
adopt verbatim or incorporate into their programs by reference the CWA
404(b)(1) Guidelines or other Federal requirements, nothing in the CWA
requires that they do so. See 49 FR 39012, 39015 (October 2, 1984); cf.
40 CFR 123.25(a) Note.
Requiring Tribes and States to adopt or incorporate the CWA
404(b)(1) Guidelines would complicate efforts by Tribes and States to
impose more stringent requirements as part of their CWA section 404
programs. By not requiring that Tribes and States adopt verbatim or
incorporate by reference the CWA 404(b)(1) Guidelines, Congress allowed
leeway for Tribes and States to craft a Tribal or State program
consistent with circumstances specific to that Tribe or State, so long
as their permits will assure compliance with the CWA 404(b)(1)
Guidelines at least as stringently as permits issued by the Corps.
This flexibility is consistent with the nature of the CWA 404(b)(1)
Guidelines themselves. Recognizing that a CWA section 404 permit may be
required for a variety of discharges into a wide range of aquatic
ecosystems, EPA explained in promulgating the CWA 404(b)(1) Guidelines
that they are intended to provide ``a certain amount of flexibility,''
consisting of tools for evaluating proposed discharges, rather than
numeric standards. 45 FR 85336, 85336 (December 24, 1980). EPA further
explained in this preamble to the Guidelines: ``[c]haracteristics of
waters of the United States vary greatly, both from region to region
and within a region. . . As a result, the Guidelines concentrate on
specifying the tools to be used in evaluating and testing the impact of
dredged or fill material discharges on waters of the United States
rather than on simply listing numerical pass-fail points.'' See id.;
see also 40 CFR 230.6.
EPA is not adding further regulatory text addressing how Tribes and
States may ensure compliance with the CWA 404(b)(1) Guidelines. The
section 404 Tribal and State program regulations as well as CWA section
404(h)(1)(A)(i) already require that Tribal and State permits and
environmental review criteria apply and assure compliance with the CWA
404(b)(1) Guidelines while allowing for flexibility as to how Tribes
and States wishing to assume implementation of the CWA section 404
program can demonstrate that they have sufficient authority to apply
and assure compliance with the CWA 404(b)(1) Guidelines.
Tribes and States can choose to adopt verbatim or incorporate by
reference the CWA 404(b)(1) Guidelines. To the extent a Tribe or State
wishing to assume the CWA section 404 program desires to incorporate
more stringent requirements or otherwise desires to craft a program
more tailored to that Tribe's or State's circumstances, the Tribe or
State should demonstrate clearly in its program description that it has
sufficient authority to apply and assure compliance with the CWA
404(b)(1) Guidelines. For example, a Tribe or State could provide a
crosswalk between the Tribal or State program and the CWA 404(b)(1)
Guidelines or a similar written analysis of the Tribal or State program
authority, which it could include in its request to assume the program.
A Tribe or State also could develop and include with its program
submission a permit checklist or other documentation to be used in
connection with each permit decision to document on a case-by-case
basis how each permit decision applies the CWA 404(b)(1) Guidelines.
Where a Tribe's or State's request for assumption relies upon an
already established and ongoing dredged and fill permit program under
Tribal or State law, that Tribe or State could supplement its program
description by demonstrating that the terms and conditions of permits
for discharges into waters of the United States that were issued
pursuant to the preexisting Tribal or State program complied with the
CWA 404(b)(1) Guidelines comparably with or more stringently than
Federal permits issued by the Corps for the same discharge.
Several commenters discussed the portion of the preamble to the
proposed rule in which EPA suggested various ways that Tribes and
States could demonstrate authority to issue permits that apply and
assure compliance with the CWA 404(b)(1) Guidelines' prohibition on
authorization of a discharge if the discharge would jeopardize the
continued existence of listed endangered or threatened species under
the Endangered Species Act of 1973 (listed species) or result in the
likelihood of the destruction or adverse modification of designated
critical habitat (40 CFR 230.10(b)(3)). Many of these commenters
asserted that the final rule must ensure that listed species and
critical habitat receive the same protections under a Tribal or State
program as they would if the Corps had processed the permit and engaged
in consultation with the U.S. Fish and Wildlife Service or National
Marine Fisheries Service (the Services) pursuant to section 7 of the
Endangered Species Act (ESA). These commenters proposed various ways of
ensuring protection of listed species and critical habitat, including
requiring the Tribes and States to undertake ESA section 7 consultation
themselves or requiring EPA to consult with the Services on each Tribal
or State permit as part of EPA's oversight. Several commenters asserted
that EPA must consult with the Services prior to approving a Tribal or
State program. A few commenters noted that Tribal and State permittees
must comply with the take provisions of section 10 of the ESA, and one
commenter recommended that EPA continue to pursue an approach similar
to that associated with EPA's approval of Florida's section 404 program
whereby EPA and the U.S. Fish and Wildlife Service engaged in a
programmatic consultation under ESA section 7 resulting in an
incidental take permit covering all permittees in Florida. Other
commenters expressed concerns about the protection afforded listed
species and critical habitat by Florida's or other State section 404
programs.
EPA's approval of Florida's section 404 program is the subject of
ongoing litigation (see Center for Biological Diversity v. Regan, No.
24-5101 (D.C. Cir.), and will not be addressed here. EPA's obligation
to undertake ESA section 7 consultation in connection with its approval
and/or oversight of a Tribal or State CWA section 404 program is beyond
the scope of this rulemaking.
To the extent commenters assert that assuming Tribal and State
programs must incorporate the procedural requirements of the ESA,
issuance of a permit by a Tribe or State pursuant to an assumed program
under CWA section 404(g) is not a Federal action subject to the
procedural requirements of the ESA. See H.R. Rep. No. 95-830 at 104
(1977) (``The conferees wish to emphasize that such a State program is
[[Page 103463]]
one which is established under State law and which functions in lieu of
the Federal program''); see also Chesapeake Bay Foundation v. Virginia
State Water Control Bd., 453 F. Supp. 122 (E.D. Va. 1978).
Although decisions by Tribal and State section 404 programs do not
trigger the Federal consultation process laid out in ESA section 7,
Tribes and States must demonstrate that they have sufficient authority
to issue permits that comply and assure compliance with 40 CFR
230.10(b)(3), which states that ``[no] discharge of dredged or fill
material may be permitted if it . . . [j]eopardizes the continued
existence of [threatened or endangered species listed under the ESA]''
or would adversely modify critical habitat. 40 CFR 230.10(b)(3). A few
commenters asserted that the discussion in the preamble to the proposed
rule regarding how Tribes and States could demonstrate compliance with
this aspect of the CWA 404(b)(1) Guidelines was too generalized and/or
insufficiently prescriptive or protective. On the other hand, one
commenter asserted that EPA should defer to Tribal and State expertise.
The discussion in the preamble to the proposed rule was not intended to
be exhaustive or to provide a checklist. Tribes and States retain
flexibility to tailor their programs consistent with the types of
listed species and critical habitat within their jurisdictions.
EPA recommends that Tribes and States include in the program
submission provisions and procedures to protect listed species and
habitat. EPA recommends that Tribes and States develop a method for
identifying the listed species and areas of designated critical habitat
within their geographic boundaries and for determining whether
federally listed species or critical habitat are present or would be
affected by a particular discharge. Tribes and States also could
develop processes for ensuring that their identification of federally
listed species and designated critical habitat remains up to date as
well as processes to avoid impacts to these resources.
EPA continues to encourage Tribes and States to proactively
coordinate with the relevant Services' regional or field offices when
developing their programs. To the extent that Tribes and States
coordinate with the Services as they develop their programs, such work
would help inform the Services' review opportunity to comment to EPA on
a Tribal or State program submission. See 33 U.S.C. 1344(g)(2) and
1344(h)(1); see also 40 CFR 233.15(d) and (g). Such work would also
facilitate EPA's coordination with the Services on permits for which
EPA has not waived review. See 33 U.S.C. 1344(j).
Several Tribes expressed concern that the preamble to the proposed
rule did not provide sufficient guidance regarding how a Tribe or State
could demonstrate that it has sufficient authority to apply and assure
compliance with subpart F of the CWA 404(b)(1) Guidelines. Pursuant to
subpart F (40 CFR 230.50 through 230.54), the permit issuing authority
should consider potential effects on human use characteristics,
including ``areas designated under Federal and State laws or local
ordinances to be managed for their aesthetic, educational, historical,
recreational, or scientific value,'' when making the factual
determinations and the findings of compliance or non-compliance under
the Guidelines. 40 CFR 230.54(a). These human use considerations
encompass, among other things, uses and values of aquatic resources
that are important to Tribes and local communities. For example,
section 230.51 in subpart F describes considerations regarding
potential impacts of dredged or fill material on recreational and
commercial fisheries, consisting of ``harvestable fish, crustaceans,
shellfish, and other aquatic organisms.'' Id. at 230.51(a). Section
230.52 includes considerations regarding the impact of dredged or fill
material on water-related recreation, including harvesting of resources
and non-consumptive activities such as canoeing on the water. Section
230.53 addresses potential impacts on aesthetic values of aquatic
ecosystems and notes that: ``The discharge of dredged or fill material
can mar the beauty of natural aquatic ecosystems by degrading water
quality, creating distracting disposal sites, including inappropriate
development, encouraging unplanned and incompatible human access, and
by destroying vital elements that contribute to the compositional
harmony or unity, visual distinctiveness, or diversity of an area.''
Id. at 230.53(b). Section 230.54 discusses considerations regarding
``national and historical monuments, national seashores . . . and
similar preserves'' and where the discharge may ``modify the aesthetic,
educational, historical, recreational and/or scientific qualities
thereby reducing or eliminating the uses for which such sites are set
aside and managed.'' Id. at 230.54(b). Collectively or individually,
significantly adverse effects of the discharge of pollutants on these
human uses may contribute to the significant degradation of the waters
of the United States. Id. at 230.10(c).
As with other aspects of the CWA 404(b)(1) Guidelines, Tribes and
States have the option of adopting 40 CFR 230.50 through 230.54, but
they are not required to do so. To demonstrate sufficient authority to
apply and assure compliance with subpart F of the CWA 404(b)(1)
Guidelines, a Tribe or State should include in its program description
its process and permit review criteria for evaluating and addressing
potential permit impacts on historic properties and properties with
cultural significance. Such a process could include any agreements with
and/or procedures for formal or informal coordination and communication
with the State Historic Preservation Officer or Tribal Historic
Preservation Office. The Tribe or State also could develop an agreement
with the relevant State Historic Preservation Officer or Tribal
Historic Preservation Office to establish a process to identify
historic properties that may be impacted by the Tribe's or State's
issuance of section 404 permits and a process for resolving adverse
effects. Such an agreement could include the identification of relevant
parties with an interest in potential impacts on historic properties
(these could correspond to entities that would have a consultative role
under the National Historic Preservation Act regulations), duties and
responsibilities of the identified parties, and a description of the
process to consider any impacts, including the determination and
resolution of adverse effects on historic properties. Such an agreement
could facilitate EPA's review of a Tribal or State permit's impacts on
historic properties, consistent with EPA's oversight of the permits,
for which review has not been waived, and authorized program. See 40
CFR 233.31. The program description would contain any such
agreement(s).
The foregoing, of course, are only examples, and there are likely
other means by which a Tribe or State could demonstrate that it has
sufficient authority to issue permits that comply and assure compliance
with the CWA 404(b)(1) Guidelines. EPA will avoid unnecessarily
limiting Tribes and States by imposing a single vehicle or approach for
implementing the CWA 404(b)(1) Guidelines. EPA recommends that an
assuming Tribe or State consider incorporating into its program
description ways to identify and consider impacts to other human use
characteristics, such as impacts to waters that support subsistence
fishing by the local population or that may have significance for
religious or treaty purposes. These could include, for
[[Page 103464]]
example, formalizing a process for coordinating with local communities
to identify and understand how waters that may be affected by
discharges of dredged or fill material are used for subsistence
fishing, religious purposes, or other uses important to the local
community. Such procedures would demonstrate the Tribe or State's
ability to fulfill the intent of the human use characteristics
provisions of the section 404(b)(1) Guidelines.
Some Tribes assert that compliance with the CWA 404(b)(1)
Guidelines is not an adequate substitute for the input that Tribes can
provide through consultation procedures of the National Historic
Preservation Act. While the Federal consultation procedures under
section 106 of the National Historic Preservation Act do not apply to
permits issued by a Tribe or State,\26\ the final rule expands upon
existing opportunities for Tribal input. Section IV.F of this preamble
provides detailed discussion on opportunities whereby Tribes may
request that EPA review permits that may affect their Tribal rights or
interests within or beyond reservation boundaries and Tribes that have
status of treatment in a similar manner as a State (TAS) shall receive
notice and an opportunity to provide recommendations as an ``affected
State'' for purposes of 40 CFR 233.31. See section IV.F of this
preamble. In addition, EPA review of Tribal or State permit
applications may not be waived for ``[d]ischarges within critical areas
established under State or Federal law, including but not limited to .
. . sites identified or proposed under the National Historic
Preservation Act. . . .'' 40 CFR 233.51(b)(6). Moreover, as discussed
above, Tribal and State permits must assure compliance with all
applicable statutory and regulatory requirements, including the section
404(b)(1) Guidelines as described above. Finally, assuming Tribes and
States must provide for judicial review of Tribe- or State-issued
permits, which provides another opportunity for interested parties to
raise concerns about a permit's failure to comply with the 404(b)(1)
Guidelines. See section IV.C.2 of this preamble.
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\26\ See Menominee Indian Tribe of Wisconsin v. Envt'l
Protection Agency, 947 F.3d 1065, 1073-74 (7th Cir. 2020).
---------------------------------------------------------------------------
3. No Less Stringent Than
a. Overview and What the Agency Is Finalizing
The Agency's regulations provide that Tribes and States may not
impose requirements less stringent than Federal requirements. 40 CFR
233.1(d). While Tribes and States have flexibility to determine how to
best integrate sufficient authority into their programs, there are
limits to this flexibility not explicitly spelled out in the prior
regulations. Accordingly, the Agency proposed to codify its
longstanding principle that a Tribe or State cannot comply with its
obligation pursuant to section 510 of the CWA to impose requirements no
less stringent than Federal requirements by making one requirement more
stringent than federally required as a tradeoff for making another
requirement less stringent. The Agency also proposed to clarify its
interpretation that an assuming Tribe or State must demonstrate that it
will at all times have authority to issue permits for all non-exempt
discharges of dredged and fill material to all waters of the United
States within its jurisdiction except for discharges to the subset of
waters of the United States (``retained waters'') over which the Corps
retains administrative authority pursuant to CWA section 404(g)(1). To
clarify the role of Federal interpretive guidance in Tribal or State
programs, such as the Corps' General Regulatory Policies in 33 CFR part
320 or Regulatory Guidance Letters, EPA further proposed to clarify
that Tribes and States are not required to incorporate the Corps' or
EPA's interpretive guidance into their CWA section 404 programs.
Finally, EPA proposed to codify its long-held position that the Tribe
or State is responsible for administering all portions of a CWA section
404(g) program. Specifically, where the CWA 404(b)(1) Guidelines or
other regulations require that the District Engineer or the Corps of
Engineers make certain decisions or take certain actions, the proposed
rule provides that the Tribal or State agency will carry out those
responsibilities for purposes of the assumed program. After reviewing
public comments, the Agency is finalizing this approach as proposed.
b. Summary of Final Rule Rationale and Public Comment
Section 510 of the CWA provides: ``[i]f an effluent limitation, or
other limitation, effluent standard, prohibition, pretreatment
standard, or standard of performance is in effect under this chapter,
such State . . . may not adopt or enforce any effluent limitation, or
other limitation, effluent standard, prohibition, pretreatment
standard, or standard of performance which is less stringent. . . .''
33 U.S.C. 1370. Consistent with CWA section 510, EPA's regulations at
40 CFR 233.1(d) require: ``Any approved State Program shall, at all
times, be conducted in accordance with the requirements of the Act and
of this part. While States may impose more stringent requirements, they
may not impose any less stringent requirements for any purpose.'' See
also 33 U.S.C. 1344(h)(1)(A)(i); 40 CFR 233.20(a), 233.23(a),
233.34(a).
Broadly stated, the goal of those portions of the CWA and its
implementing regulations that govern Tribal and State assumption of the
CWA section 404 program is to ensure that an assuming Tribe or State
will issue permits that assure compliance with the CWA at least as
stringently as would a permit for the same discharge if issued by the
Corps. Section 404(h)(1)(A)(i) of the CWA and 40 CFR 233.1(d),
233.20(a), 233.23(a), and 233.34(a) expressly require that permits
issued by an assuming Tribe or State must apply and assure compliance
with the CWA 404(b)(1) Guidelines, as discussed in section IV.A.2 of
this preamble. In addition, Tribes and States must demonstrate that
their section 404 programs will cover at least the same discharges as
the CWA and will issue permits that are not less stringent than other
aspects of the CWA beyond the CWA 404(b)(1) Guidelines.
Commenters generally agreed that permits issued by Tribes or States
may not be less stringent than a permit for the same discharge if
issued by the Corps of Engineers. One commenter characterized this
concept as establishing a strong Federal ``floor'' for Tribal and State
permits. As with the CWA 404(b)(1) Guidelines, Tribes and States
seeking to assume the section 404 program may choose but are not
required to adopt verbatim or incorporate by reference relevant
portions of the CWA or its implementing regulations. Where a Tribe or
State chooses not to adopt or incorporate by reference portions of the
CWA or its implementing regulations, the Tribal or State program
description should describe how the Tribal or State program is no less
stringent than those provisions.
1. A Tribe or State Cannot Comply With Its Obligation Pursuant to
Section 510 of the CWA To Impose Requirements No Less Stringent Than
Federal Requirements by Trading Off More Stringent Requirements for
Less Stringent Requirements
Most commenters supported EPA's proposal to codify the principle
prohibiting tradeoffs between more lenient and more stringent
requirements. However, one commenter did not support EPA's proposed
approach and expressed concern that
[[Page 103465]]
the proposed approach would deprive Tribes and States of flexibility.
The Agency agrees that Tribes and States should have flexibility to
determine how best to ensure that their permits will apply and assure
compliance with the CWA 404(b)(1) Guidelines and be no less stringent
than Federal requirements. That said, EPA has long stated that
flexibility does not extend to tradeoffs among requirements, as
discussed, in the 1988 preamble to the CWA section 404 Tribal and State
program regulations. See 53 FR 20764, 20766 (June 6, 1988).
EPA is finalizing its proposal to codify this longstanding
principle prohibiting tradeoffs between more lenient and more stringent
requirements in its section 404 Tribal and State program regulations.
As noted above, this clarification does not represent a change in EPA's
longstanding position. Additionally, this principle is also articulated
in EPA's regulations governing the section 402 program. See 40 CFR
123.25(a), Note. EPA sees no reason not to provide similar clarity for
section 404 programs.
2. An Assuming Tribe or State Must Regulate at Least All Non-Exempt
Discharges to Navigable Waters Within Its Jurisdiction, Except for
Discharges to Waters Retained by the Corps
In addition to codifying its longstanding principle against
tradeoffs, EPA is clarifying that Tribes and States wishing to assume
the section 404 program must demonstrate consistency with aspects of
the CWA beyond the CWA 404(b)(1) Guidelines. While a Tribe or State may
regulate discharges that are not covered by the CWA, a Tribal or State
program must regulate at least all non-exempt discharges of dredged and
fill material to all navigable waters as defined by CWA section 502(7)
(``waters of the United States'') within the Tribe's or State's
jurisdiction except for discharges to the subset of retained waters.
This means that a Tribal or State program may not exempt discharges
other than those exempted pursuant to CWA section 404(f). Similarly,
when a Tribe or State assumes administration of the CWA section 404
program, it assumes administrative authority to permit discharges to
all waters of the United States within its jurisdiction except for the
subset of retained waters.\27\ See 33 U.S.C. 1344(g)(1). As noted
earlier, EPA has final administrative authority over the scope of
``waters of the United States.'' See Civiletti Memorandum.
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\27\ As noted in the 1988 preamble, ``States may have a program
that is more . . . extensive than what is required for an approvable
program.'' 53 FR at 20764, 20766 (June 6, 1988) (emphasis added). As
described elsewhere in this preamble, Tribes and States may not
assume less than what is required under the CWA.
---------------------------------------------------------------------------
The subset of waters of the United States over which the Corps
retains administrative authority pursuant to CWA section 404(g)(1) is
identified in the Memorandum of Agreement between the assuming Tribe or
State and the Corps which, among other things, includes a ``description
of waters of the United States within the State over which the
Secretary retains jurisdiction.'' 40 CFR 233.14(b)(1). See section
IV.B.2 of this preamble for further discussion on retained waters. To
the extent the coverage of the CWA as defined by the term ``waters of
the United States'' \28\ changes following court decisions or
rulemaking, assumption of the section 404 program by a Tribe or State
cannot result in a situation in which neither the assuming Tribe or
State nor the Corps has authority to issue a permit for discharges to a
water of the United States. The requirement that Tribes or States at
all times have authority to issue permits for all non-exempt discharges
to all waters of the United States within their jurisdiction is
therefore generally not governed by 40 CFR 233.16(b), which addresses
the modification of Federal statutes or other regulations.
---------------------------------------------------------------------------
\28\ See 33 U.S.C. 1311(a), 1362(7).
---------------------------------------------------------------------------
As with the CWA 404(b)(1) Guidelines (see section IV.A.2 of this
preamble), Tribes and States seeking to assume the section 404 program
need not adopt verbatim or incorporate by reference relevant portions
of the CWA or its implementing regulations, though they may do so. EPA
recommends that Tribes and States identify in the program description
(40 CFR 233.10(b) and 233.11) and Attorney General Statement (40 CFR
233.10(c) and 233.12) those provisions of Tribal or State law that will
ensure that the Tribe or State will at all times have sufficient
authority to issue permits for non-exempt discharges to all waters of
the United States within its jurisdiction except for discharges to the
subset of waters of the United States over which the Corps retains
administrative authority following assumption. A Tribal or State
section 404 program may regulate discharges into Tribal or State waters
in addition to the jurisdictional CWA waters as well as issue permits
for discharges into waters retained by the Corps; however, the Corps
remains the CWA section 404 permitting authority for retained waters.
3. Tribes and States May Adopt Federal Interpretive Guidance and the
Corps' General Regulatory Policies, But Are Not Required To Do So
EPA also is clarifying here the role of Federal interpretive
guidance in Tribal or State programs, such as the Corps' Regulatory
Guidance Letters or other interpretive statements issued by the Corps
and/or EPA. Nothing in the CWA or 40 CFR part 233 requires that Tribes
or States wishing to assume the section 404 program formally adopt or
incorporate into their programs Regulatory Guidance Letters or other
formal interpretive statements issued by the Corps and/or EPA. Federal
agency interpretive guidance may often be helpful in providing
transparency, clarity, and consistency in implementation of the Federal
program. However, it does not have the effect of legally binding
regulation and may not necessarily be applicable, for example, where
Tribal or State requirements are more stringent than Federal
requirements or the guidance references a procedure not part of the
Tribal or State program. Moreover, Federal agency interpretive guidance
may evolve over time with changes in case law and other circumstances.
Accordingly, while assuming Tribes and States may consider relevant
Federal agency interpretive guidance and may choose to adopt it to aid
in program implementation, they are not required to formally adopt
Federal agency interpretive guidance. EPA recommends that Tribes and
States provide transparency by describing as part of the Tribal or
State program description (40 CFR 233.10(b) and 233.11) if and how they
will consider Federal agency interpretative guidance.
Several commenters asserted that, in order to issue permits that
are not less stringent than permits that would be issued by the Corps
for the same discharge, Tribes and States assuming the section 404
program must incorporate the procedural and substantive provisions of
the Endangered Species Act, the National Historic Preservation Act, the
National Environmental Protection Act and other statutes that apply
generally to Federal actions, including to permits issued by the Corps
under CWA section 404. Issuance of a permit by a Tribe or State
pursuant to an assumed program under CWA section 404(g), however, is
not subject to the requirements for Federal actions under those
statutes. See H.R. No. 95-830 at 104 (1977) (``The conferees wish to
emphasize that such a State program is one which is established under
State law and which
[[Page 103466]]
functions in lieu of the Federal program''); See Chesapeake Bay
Foundation v. Virginia State Water Control Bd., 453 F. Supp. 122 (E.D.
Va. 1978). That said, while the Federal statutory procedural
requirements may not apply directly to Tribal or State actions, CWA
section 404(h)(1)(A)(i) requires that Tribal and State programs have
authority to issue permits that apply and assure compliance with the
CWA 404(b)(1) Guidelines, including those provisions that limit permit
issuance to the least environmentally damaging practicable alternative,
prohibit permitting of a discharge that would jeopardize the continued
existence of listed endangered or threatened species under the
Endangered Species Act, and require consideration of potential effects
on human use characteristics, including ``areas designated under
Federal and State laws or local ordinances to be managed for their
aesthetic, educational, historical, recreational, or scientific
value.'' See section IV.A.2 of this preamble for further discussion on
compliance with the CWA 404(b)(1) Guidelines.
Tribal or State adoption of the Corps' General Regulatory Policies
(33 CFR part 320) (including the Corps' ``public interest review'' at
33 CFR 320.4(a)) is also not required. The CWA makes no reference to
the Corps' General Regulatory Policies, which, by their own terms,
apply to a range of the Corps' regulatory authority, including, but not
limited to, CWA section 404 (see 33 CFR 320.2). As described elsewhere,
the substantive environmental criteria used to evaluate discharges of
dredged and fill material under CWA section 404 are set forth in the
CWA 404(b)(1) Guidelines. See 40 CFR 230.2. Tribes or States are free,
however, to incorporate elements of the Corps' General Regulatory
Policies into their permitting procedures if they choose to do so.
4. Tribes and States That Assume the CWA Section 404 Program Are
Responsible for Administering All Portions of the Section 404 Program
Finally, EPA is codifying its long-held position that the Tribe or
State is responsible for administering all portions of a section 404(g)
program. Certain regulations implementing CWA section 404 were drafted
to refer to the authority of the Corps of Engineers without accounting
for Tribal or State assumption of the section 404 program. EPA is
clarifying that, when a Tribe or State assumes administration of the
section 404 program, the Tribe or State becomes responsible for all of
the actions under section 404 for which the Corps would be responsible
if it were to issue the permit. The rule clarifies that it is the
assuming Tribe or State that is responsible for administering all
sections of the approved section 404 program. See section IV.B.4 of
this preamble for further discussion on mitigation.
EPA also clarifies here that only Tribal, State, or interstate
agencies may assume administration of the section 404 program. While a
Tribe or State may establish general permits for discharges of dredged
or fill material for categories of similar activities that will cause
only minimal adverse environmental effects individually or
cumulatively, they may not delegate permitting responsibility to non-
Tribal or non-State entities, such as counties or municipalities. 33
U.S.C. 1344(g)(1); 40 CFR 233.2 (definition of ``State'').
B. Program Approval
1. Partial Program Assumption
a. Overview and What the Agency Is Finalizing
Under 40 CFR 233.1(b), assuming Tribes or States must have
authority to regulate all non-exempt discharges to all waters of the
United States within their borders except for the subset of waters of
the United States over which the Corps retains administrative authority
pursuant to CWA section 404(g)(1). Although some States have expressed
an interest in being able to assume the authority to issue section 404
permits for just a portion of the section 404 regulated activities, or
a portion of the assumable waters within the Tribe's or State's
jurisdiction, the Agency proposed to maintain its longstanding position
that the statute does not authorize partial assumption. After
considering public comments, EPA is finalizing its proposed approach to
maintain the text at section 233.1(b) which clarifies that partial
programs are not approvable under section 404.
b. Summary of Final Rule Rationale and Public Comment
In 1987, Congress added section 402(n) to the CWA, specifically
authorizing EPA to approve partial Tribal and State NPDES permit
programs that ``cover, at a minimum, administration of a major category
of the discharges into the navigable waters of the State or a major
component of the permit program. . . .'' That provision specifies the
scope of partial State section 402 programs that may be approved.
Congress did not amend CWA section 404 to add a parallel provision
authorizing a Tribe or State to assume the authority to issue section
404 permits for just a portion of discharges into assumable waters.
Given the absence of a provision in the section 404 program authorizing
partial assumption parallel to the provision in the section 402
program, EPA maintains its longstanding interpretation that the best
reading of the CWA ``requir[es] State programs to have full geographic
and activities jurisdiction (subject to the limitation in section
404(g)).'' 53 FR 20764 (June 6, 1988). Because of the special status of
Indian country, a lack of State authority to regulate activities on
Indian lands will not cause the State's program to be considered a
partial program. See id.
In addition to concluding that the statute does not authorize
partial assumption, EPA also determined that partial assumption would
be extremely difficult to implement. Numerous States have expressed an
interest in being able to assume the authority to issue section 404
permits for just a portion of the section 404 regulated activities, or
a portion of the assumable waters within the Tribe's or State's
jurisdiction. While some commenters supported the status quo, others
supported some form of partial assumption, or encouraged the Agency to
explore options to provide additional flexibility. One commenter noted
that partial assumption in States with more stringent or protective
section 404 programs could advance environmental protection, and
another noted that partial assumption of program activities could allow
for more Tribal oversight and input in the permitting process.
EPA carefully considered the comments received, evaluating
potential approaches to partial assumption, but ultimately concluded
that it would be difficult to implement. Partial assumption based on a
size threshold for a project would be unworkable because the
``footprint'' of a project may change during the execution of the
project, which could result in the shifting of jurisdiction between the
Federal and the assumed program. This outcome could conceivably
encourage permittees to increase the footprint or impacts of their
proposed project in order to remain with the Corps for the permit
review process. Partial assumption based on a geographic area would
also be challenging to implement, because Tribes and States could
potentially divide watersheds or create a checkerboard of authority
that could create problems in determining jurisdiction, as well as
mitigation and enforcement. Partial assumption based on type of
waterbody would pose difficulties because it might require a waterbody-
by-waterbody determination
[[Page 103467]]
to identify permitting authority, and a project might impact more than
one waterbody, creating confusion as to whether the permitting
authority is the Corps or the Tribe or State. Partial assumption that
would allow for the assumption of certain aspects of the program, such
as a Tribe or State taking on permitting but not enforcement, or vice
versa, would cause unavoidable duplication of effort between the Tribe
or State and EPA and the Corps. And partial assumption based on
activity would pose challenges because the Agency was unable to devise
a comprehensive and clear way to define potential activities. Dividing
functions between the Federal and Tribal or State governments would
also be confusing for the regulated public.
EPA also considered phased assumption of program responsibilities,
whereby the Tribe or State would ultimately assume the full program,
but in stages or phases. EPA considered this approach but concluded
that implementing a phased approach would present all of the challenges
listed above regarding identification of the permitting authority.
Additionally, there are no tools available to the Agency to ensure that
a Tribe or State continues to phase in all portions of the program, or
to determine how much time should be allowed for the process; the only
mechanism available to the Agency to address a failure to complete
phasing-in the full program would be withdrawal of the entire program.
Tribes and States not interested in full assumption can already
take on a major role in managing their aquatic resources and in the
permitting process even without assuming the section 404 program. A
Tribe or State may develop their own dredged or fill material
permitting program. Alternatively, the Federal section 404 program
provides mechanisms that allow for Tribal and State input in developing
permits for specific activities or specific geographic areas within
Tribal or State jurisdiction. In 1977, Congress amended section 404 to
allow the Corps to issue certain types of general permits, including
State Programmatic General Permits (SPGPs). SPGPs are general permits
issued by the Corps that provide section 404 authorization for certain
discharge activities if the permittee has secured a State permit for
that same activity. Some States have worked with the Corps to develop
SPGPs, which create permitting efficiencies for certain projects within
the State. While the Corps is still the section 404 permitting
authority for SPGPs, these permits give the Tribe or State the ability
to be actively involved, as well as the opportunity to create more
stringent requirements than the Federal section 404 permitting program,
without the burden of assuming and administering the section 404
program.
In sum, EPA has concluded that continuing to interpret the CWA to
prohibit partial assumption reflects the best reading of the text of
the CWA and will enable the most transparent and consistent
implementation of the section 404 program across the nation. This
approach provides the most clarity to the public and the regulated
community as to which waters are being assumed and whether applicants
need a Tribal or State permit or a Federal permit. Conversely, partial
assumption would be more likely to cause confusion among interested
parties and be more difficult to implement consistently across the
country for the reasons discussed earlier in this section.
2. Retained Waters
a. Overview and What the Agency Is Finalizing
As discussed in section III.B.2 of this preamble, the Corps retains
authority over certain waters and wetlands adjacent to those waters
when a Tribe or State assumes permitting authority. States and Tribes
have expressed to EPA the need for further clarification regarding
which waters a Tribe or State may assume and which waters the Corps
retains. The Agency is finalizing as proposed a procedure for
determining the extent of waters over which the Corps would retain
administrative authority following Tribal or State assumption of the
section 404 program, with certain minor modifications based on comments
received. Under the procedure, before the Tribe or State submits its
assumption request to EPA, the Tribe or State must submit a request to
EPA that the Corps identify the subset of waters of the United States
that would remain subject to the Corps' section 404 administrative
authority following assumption. The Tribe or State must submit one of
the following documents with the request to show that it has taken
concrete and substantial steps toward program assumption: a citation or
copy of legislation authorizing funding to prepare for assumption, a
citation or copy of legislation authorizing assumption, a Governor or
Tribal leader directive, a letter from a head of a Tribal or State
agency, or a copy of a letter awarding a grant or other funding
allocated to investigate and pursue assumption. Within seven days of
receiving the request for the retained waters description, EPA will
review and respond to the request. If the request includes the required
information, then EPA will transmit the request to the Corps. EPA will
also notify members of the public of that transmission and invite input
to the Corps and to the Tribe or State within a 60-day period that the
Corps may consider in developing its description.
If the Corps notifies the Tribe or State and EPA within 30 days of
receiving the request transmitted by EPA that it will provide the Tribe
or State with a retained waters description, the Corps has 180 days
from the receipt of the request to provide a retained waters
description to the Tribe or State. The purpose of the 180-day period is
to allow the Corps time and opportunity to follow the process at 40 CFR
233.11(i) to identify those waters over which the Corps will retain
section 404 permitting authority while providing a timeframe within
which the Tribe or State can expect to receive a retained waters
description. If the Corps does not notify the Tribe or State and EPA
within 30 days of receipt of the request that it intends to provide a
retained waters description, the Tribe or State may prepare a retained
waters description. Similarly, if the Corps had originally indicated
that it would provide a retained waters description but does not
provide one within 180 days of EPA's transmission to the Corps, the
Tribe or State may develop the retained waters description using the
same approach described above. Alternatively, the Tribe or State and
the Corps may mutually agree to extend the period of time for the Corps
to develop the list.
The most recently published list of RHA section 10 waters (see 33
CFR 329.16) would be the starting point for the retained waters
description. The Corps, Tribe, or State would place waters of the
United States, or reaches of these waters, from the RHA section 10 list
into the retained waters description if they are known to be presently
used or susceptible to use in their natural condition or by reasonable
improvement as a means to transport interstate or foreign commerce. See
33 U.S.C. 1344(g)(1). To the extent feasible and to the extent that
information is available, the Corps, Tribe, or State would add other
waters or reaches of waters to the retained waters description that are
presently used or are susceptible to use in their natural condition or
by reasonable improvement as a means to transport interstate or foreign
commerce. See id. The Corps, Tribe, or State would not place RHA
section 10 list waters in the retained waters description if, for
example, they were historically used as a means to transport interstate
or foreign commerce
[[Page 103468]]
and are no longer susceptible to use as such with reasonable
improvement.
The description would also describe retained wetlands. The default
understanding is that the Corps would retain administrative authority
over all jurisdictional wetlands ``adjacent'' to retained waters, as
that term is defined in 40 CFR 120.2(c). A Tribe or State may choose to
negotiate an agreement with the Corps to establish an administrative
boundary through jurisdictional adjacent wetlands, landward of which
the Tribe or State would assume administrative authority. If the Tribe
or State and the Corps reach agreement on such a boundary, EPA may
consider it when it is submitted with the program submission. As a
default, however, the Corps would retain all wetlands adjacent to
retained waters. The retained waters description does not need to
include a specific list of adjacent wetlands or provide mapping or a
description of the lateral extent of those wetlands.
As recognized in EPA's regulations, in many cases, States lack
authority to regulate activities in Indian country. See 40 CFR
233.1(b). Thus, the Corps will continue to administer the program in
Indian country unless EPA determines that another jurisdiction has
authority to regulate discharges into waters in Indian country. See id.
EPA is changing the regulatory provision stating that modifications
to the extent of the retained waters description always constitute
substantial revisions to a Tribal or State program. 40 CFR 233.16(d)(3)
(2023). The new provision is more limited in scope: it states that
removals of waters from the retained waters description, other than de
minimis removals, are substantial revisions. In addition, revisions to
an approved Tribal CWA section 404 program are substantial where they
would add reservation areas to the scope of its approved program. EPA
is also providing that the Memorandum of Agreement between the Corps
and the Tribe or State must outline procedures whereby the Corps will
notify the Tribe or the State of changes to the RHA section 10 list as
well as the extent to which these changes implicate the statutory scope
of retained waters as described in CWA section 404(g)(1) and therefore
necessitate revisions to the retained waters description. The Tribe or
State would incorporate the revisions that the Corps has identified,
pursuant to the modification provisions agreed upon in the Memorandum
of Agreement.
EPA is modifying the program description requirements to provide
that the Tribal or State program will encompass all waters of the
United States not retained by the Corps at all times. 40 CFR
233.11(i)(6). EPA is also removing the term ``traditionally'' from the
term `traditionally navigable waters' in the following provision:
``[w]here a State permit program includes coverage of those
traditionally navigable waters in which only the Secretary may issue
404 permits, the State is encouraged to establish in this Memorandum of
Agreement procedures for joint processing of Federal and State permits,
including joint public notice and public hearings.'' Id. at
233.14(b)(2).
b. Summary of Final Rule Rationale and Public Comments
Section 404(g) of the CWA authorizes Tribes and States to assume
authority to administer the section 404 program in some, but not all,
navigable waters within their jurisdiction. ``Navigable waters'' is
defined at CWA section 502(7) as ``waters of the United States,
including the territorial seas.'' The Corps retains administrative
authority over a subset of these waters even after program assumption
by a Tribe or State.\29\ Specifically, section 404(g)(1) states that
the Corps retains administrative authority over the subset of waters of
the United States consisting of ``. . . waters which are presently
used, or are susceptible to use in their natural condition or by
reasonable improvement as a means to transport interstate or foreign
commerce shoreward to their ordinary high water mark . . . including
wetlands adjacent thereto.'' 33 U.S.C. 1344(g)(1). A Tribe or State
assumes section 404 administrative authority over all waters of the
United States within its jurisdiction that are not retained by the
Corps.
---------------------------------------------------------------------------
\29\ When a Tribe or State assumes administrative authority for
the CWA section 404 program, it assumes authority to permit
discharges of dredged and fill material to all ``waters of the
United States'' within the meaning of CWA section 502(7) except for
the subset of waters of the United States over which the Corps is
required to retain administrative authority under Section 404(g).
The scope of CWA jurisdiction is defined by CWA section 502(7) as
``waters of the United States,'' and is distinct from and broader
than the scope of waters over which the Corps retains administrative
authority following Tribal or State assumption of the section 404
program. This rule develops a process for identifying the subset of
waters of the United States over which the Corps retains
administrative authority following approval of a Tribal or State
section 404 program. It does not define the broader set of ``waters
of the United States'' within the scope of CWA section 502(7).
---------------------------------------------------------------------------
EPA's prior regulations require that the program description that
is part of a Tribal or State assumption request include ``[a]
description of the waters of the United States within a State over
which the State assumes jurisdiction under the approved program; a
description of the waters of the United States within a State over
which the Secretary retains jurisdiction subsequent to program
approval; and a comparison of the State and Federal definitions of
wetlands.'' 40 CFR 233.11(h) (2023). In addition, the prior regulations
state that the Memorandum of Agreement between a Tribe or State and the
Corps required as part of the assumption request shall include a
description of the waters of the United States within the Tribe or
State for which the Corps will retain administrative authority. 40 CFR
233.14(b)(1) (2023).
Prior to this rule, EPA had not provided guidance on a process for
identifying the subset of waters of the United States over which the
Corps would retain administrative authority following Tribal or State
assumption. Without a clear and practical process, individual States
and the Corps districts have had to interpret the extent of retained
waters and the meaning of ``wetlands adjacent thereto'' in the context
of case-by-case development of Tribal and State program descriptions
for prospective programs and the Memoranda of Agreement that are
negotiated between the Corps and the State as part of a program
submission. Tribes and States have indicated that confusion about how
best to identify the extent of retained waters and adjacent wetlands
has been a barrier to assumption and have asked EPA to provide clarity.
As discussed in section III.B of this preamble, EPA convened the
Assumable Waters Subcommittee under the auspices of the NACEPT to
provide advice and recommendations as to how EPA could best clarify the
subset of waters of the United States over which the Corps retains
administrative CWA section 404 authority when a Tribe or State assumes
the section 404 program. NACEPT adopted the majority recommendation in
the Subcommittee report and incorporated it into its recommendations
provided to EPA in June 2017. Although at the time of the Subcommittee
report, the Corps presented a separate view from the majority of the
extent of retained waters and adjacent wetlands for which it would
retain administrative authority, the Department of the Army
subsequently sent a letter to the Corps supporting the majority
recommendation as to the extent of retained waters and adjacent
wetlands (though the letter did not define a specific administrative
boundary for
[[Page 103469]]
adjacent wetlands).\30\ NACEPT's recommendations, based on the
Subcommittee majority recommendation that was subsequently endorsed by
the Corps, are discussed below.
---------------------------------------------------------------------------
\30\ R.D. James, Memorandum for Commanding General, U.S. Army
Corps of Engineers: Clean Water Act Section 404(g)--Non-Assumable
Waters (July 30, 2018).
---------------------------------------------------------------------------
i. Subcommittee's Recommendation
The Subcommittee majority recommended that for purposes of
identifying the subset of waters of the United States over which the
Corps would retain administrative authority following Tribal or State
assumption of the CWA section 404 program, existing RHA section 10
lists \31\ be used ``with two minor modifications: any waters that are
on the section 10 lists based solely on historic use (e.g., historic
fur trading routes) are not to be retained (based on the Congressional
record and statute), and waters that are assumable by a tribe (as
defined in the report) may also be retained by the USACE when a state
assumes the program.'' Final Report of the Assumable Waters
Subcommittee at v.\32\ The Subcommittee also recognized that ``waters
may be added to Section 10 lists after a state or tribe assumes the
program, and recommends in that case, such waters may also be added to
lists of USACE-retained waters at that time.'' Id. The majority
recommendation was based on its analysis of the text and legislative
history of section 404(g), which is discussed in the Background
description in section III of this preamble, in which the majority
concluded that Congress intended that the Corps retain permitting
authority over some RHA section 10 waters. See id. at 55-61 (Appendix
F.) The majority thought this approach had the benefit of being clear
and easy to implement. See id. at 17-20.
---------------------------------------------------------------------------
\31\ The RHA section 10 lists are compiled and maintained by the
Corps district offices for every State except Hawaii. 33 CFR 329.14
describes the process the Corps follows to make navigability
determinations pursuant to the RHA.
\32\ Available at https://www.epa.gov/sites/default/files/2017-06/documents/awsubcommitteefinalreprort_05-2017_tag508_05312017_508.pdf.
---------------------------------------------------------------------------
The Subcommittee majority also addressed the scope of retained
adjacent wetlands. It recommended that the Corps retain administrative
authority over all wetlands adjacent to retained waters landward to an
administrative boundary agreed upon by the Tribe or State and the
Corps. This boundary, the recommendation added, ``could be negotiated
at the state or tribal level . . . if no change were negotiated, a 300-
foot national administrative default line would be used.'' Final Report
of the Assumable Waters Subcommittee at vi. The Subcommittee majority
opinion noted that large wetland complexes can extend far from the
retained water. Id. at 31. Without such an administrative line, the
Subcommittee majority noted, assumption could lead to a confusing
pattern of USACE and State or Tribal permitting authority across the
landscape.
With regard to Tribal considerations during assumption of the
section 404 program, the Subcommittee found that ``Section 518 of the
CWA, enacted as part of the 1987 amendments to the statute, authorizes
the EPA to treat eligible Indian tribes in a manner similar to states
(`treatment as a State' or TAS) for a variety of purposes, including
administering each of the principal CWA regulatory programs [including
CWA section 404] and receiving grants under several CWA authorities (81
FR 30183, May 16, 2016).'' Id. at 3. The Subcommittee majority
recommended that ``Tribal governments pursuing assumption of the 404
program will follow the same process as states, though it is expected
that there will be some nuanced differences; for example, in addressing
Tribal Indian Reservation boundaries'' and that ``[i]n a state-assumed
program, states will generally not assume authority for administering
the 404 program within Indian country; instead, such authority will
generally be retained by the USACE unless the tribe itself is approved
by EPA to assume the 404 program.'' Id.
The Subcommittee majority noted that its recommended approach is
consistent with ``the plain language of Section 404(g) and the
legislative history. Congress clearly intended that states and tribes
should play a significant role in the administration of Section 404--as
they do in other CWA programs--anticipating that many states would
assume the Section 404 program.'' See id. at 19.
ii. Final Rule Approach to Retained Waters
1. Contents of the Retained Waters Description
Taking into consideration the majority recommendation of the
Subcommittee as well as stakeholder input on the proposed rule, the
subset of waters of the United States over which the Corps would retain
administrative authority would include the following:
--Waters of the United States, or reaches of those waters, from the RHA
section 10 list(s) that are known to be presently used or susceptible
to use in their natural condition or by reasonable improvement as a
means to transport interstate or foreign commerce;
--Other waters known by the Corps or identified by the Tribe or State
as presently used or susceptible to use in their natural condition or
by reasonable improvement as a means to transport interstate or foreign
commerce, including all waters which are subject to the ebb and flow of
the tide; and
--Retained wetlands that are adjacent to the foregoing waters.
As recognized in EPA's regulations, in many cases, States lack
authority under the CWA to regulate activities covered by the section
404 program in Indian country. See 40 CFR 233.1(b). Thus, the Corps
will continue to administer the program in Indian country unless EPA
determines that a State has authority to regulate discharges into
waters in Indian country and approves the State to assume the section
404 program over such discharges. See id. The Memorandum of Agreement
between the Corps and State must address any waters in Indian Country
which are to be retained by the Corps upon program assumption by a
State. EPA also notes that the Corps would retain jurisdiction over
waters located in lands of exclusive Federal jurisdiction in relevant
respects (e.g., certain national parks identified in 16 U.S.C. Chapter
1 as having lands of exclusive Federal jurisdiction, such as Denali
National Park).
Some commenters supported this approach, outlined in the proposed
rule. Others critiqued the Agency's reliance on the RHA section 10
lists as a starting point for identifying retained waters, stating that
these lists can be out of date and often lack current information or
supporting documentation. Some commenters suggested that RHA section 10
lists should only be relied upon if they have been comprehensively
updated within the previous five years. Some commenters would require
that the Corps review all judicial determinations involving the subject
State to identify additional retained waters.
EPA recognizes that the available RHA section 10 lists may not
cover all RHA section 10 waters in the Tribe's or State's jurisdiction
and that they may not be updated to reflect current use and
characteristics of listed waters. However, EPA agrees with the
recommendation of the Assumable Waters Subcommittee that these lists
provide a useful starting point for determining the scope of retained
waters, given the clear indication in the
[[Page 103470]]
legislative history that Congress intended the Corps to generally
retain RHA section 10 waters, with some modifications, and that an
approach that starts with existing lists will be clear and easy to
implement. No commenters proposed implementable alternatives to the RHA
section 10 lists as a starting point. Comprehensively reviewing and
revising RHA section 10 lists is a multi-year, resource-intensive and
relatively rare undertaking, so excluding from use those lists not
comprehensively updated within the past five years would cause
significant delays in assumption. However, to ensure the retained
waters descriptions remain as current and accurate as is feasible, EPA
has modified the final rule to provide that whenever RHA section 10
lists are updated, an orderly process exists for incorporating those
changes, as appropriate, into a Tribe's or State's retained waters
description. Specifically, EPA now requires that the Memorandum of
Agreement between the Corps and the Tribe or State outline procedures
whereby the Corps will notify the Tribe or the State of changes to the
RHA section 10 list that implicate the statutory scope of retained
waters and the Tribe or State will incorporate those changes into its
retained waters description.
With respect to the suggestion to require review of all judicial
decisions related to navigability during the development of the
retained waters description, EPA agrees that these should be viewed as
resources during the development of the description, as well as
information submitted by interested parties, navigability analyses the
Corps has conducted since last updating its RHA section 10 list, and
other sources of information. However, EPA is declining to define the
sources of information for the development of the retained waters
description in the regulations because it would be unnecessarily
prescriptive and limit the flexibility of the Corps or the relevant
Tribe or State.
Some commenters argued that the retained waters description must
include waters that have been historically navigable, as historical
navigability often indicates whether the waterway can be navigable in
its natural condition or with reasonable improvement, which is the
statutory criteria for retained waters in section 404(g). EPA agrees
that historical navigability can sometimes indicate that a water is
navigable in its natural condition or with reasonable improvement. Yet
this is not always the case. Sometimes historically navigable waters
have been modified--as a result of dams, water diversions for
irrigation, climate change, or other circumstances--and cannot be
restored to navigability with reasonable improvements. EPA therefore
retains the proposed rule approach, based on the statutory language and
consistent with the recommendation of the Assumable Water Subcommittee,
which would remove waters or reaches of waters that were historically
navigable but that are not currently used as a means to transport
interstate or foreign commerce in their natural condition or with
reasonable improvement.
EPA also received comments stating that the starting point for the
scope of the Corps-retained waters must be documented traditional
navigable waters (TNWs) as opposed to RHA section 10 lists. The Corps'
minority recommendation in the Assumable Waters Subcommittee Final
Report advocated for this approach. See Final Report at 21-22. The
majority rejected reliance on documented TNWs as a starting point on
the basis that using the RHA section 10 lists is clearer and easier to
implement as well as more consistent with the legislative history of
section 404(g). See id. at 17. The majority explained that RHA section
10 lists are ``well established, and can be relatively easily labeled
on regional maps or GIS systems . . .'' thereby allowing members of the
public ``to readily determine which agency is responsible for Section
404 regulation at a specific location.'' See id. at 18. In contrast,
the majority expressed concerns that the extent of documented TNWs is
confusing and less transparent, as they are documented in ``multiple
regulations, guidance, and procedures,'' rather than in one central,
public location. See id. The majority also noted that because most TNWs
have not yet been identified as such and thus lists of documented TNWs
could easily and regularly increase, using RHA section 10 lists
provides greater certainty and predictability regarding the scope of
the Tribal or State program. See id at 19. In addition, the majority
viewed Congress as intending to retain Corps authority over RHA section
10 waters, with certain minor exceptions. See id. at 55-61; see also
section III of this preamble. For all of the reasons that the
Subcommittee cited, EPA has decided to establish RHA section 10 lists
as a starting point for retained waters, rather than documented TNWs.
EPA notes that ultimately the Department of the Army transmitted to the
Corps its support for the majority recommendation's reliance on RHA
section 10 lists. See section IV.B.2.b of this preamble.
The retained waters description would acknowledge that wetlands are
to be retained if they are adjacent to Corps-retained waters. As noted
above, the default understanding is that the Corps would retain
administrative authority over all jurisdictional wetlands ``adjacent''
to retained waters. Some Tribes and States may choose to negotiate with
the Corps to establish an administrative boundary through
jurisdictional adjacent wetlands, landward of which the Tribe or State
would assume administrative authority. If they do so, EPA may consider
that part of the program description when it is submitted with the
program submission. The default approach, however, is that the Corps
would retain all adjacent wetlands. A specific list of all retained
adjacent wetlands is not required to be included in the retained waters
description, because developing such a list would generally be
impracticable at the time of program assumption.
EPA had proposed that Tribes or States and the Corps establish an
administrative boundary through adjacent wetlands to delineate between
retained and assumed wetlands, and that the default boundary be 300
feet from retained waters. Some commenters expressed support for this
approach, stating that it would allow needed flexibility for Tribes,
States, and the Corps to develop Tribal or State programs and that the
proposal is authorized by the CWA. The significant majority of comments
received during the public comment period, however, expressed concerns
about an administrative boundary default approach, both with respect to
implementation and legal authority.
Concerns expressed about implementation included the lack of a
scientific basis for the 300-foot default boundary and the lack of a
methodology for applying the default boundary. Some commenters pointed
out that an administrative boundary would fragment the permitting in
large wetlands complexes, leading to stakeholder confusion, and
bifurcate the environmental review process, thereby making it difficult
to ensure a holistic evaluation of impacts. These commenters stated
that because an administrative boundary would sometimes require two
permitting agencies to issue different permits for two parts of the
same project, it would unnecessarily duplicate effort on the part of
permittees, State agencies, and members of the public. Commenters
further noted that it would also burden those seeking to challenge
permits, who might need to litigate two separate
[[Page 103471]]
permits in two separate fora, potentially on different timelines
depending on the State or Tribe's judicial review procedures.
Commenters also argued that, because the scope of ``adjacent wetlands''
significantly narrowed following the Supreme Court's May 2023 decision
in Sackett v. EPA and the Agency's subsequent August 29, 2023,
rulemaking conforming the definition of ``waters of the United States''
to that case, 88 FR 3004, an administrative boundary is no longer
necessary. EPA finds the practical concerns raised by commenters valid.
Given the challenges involved in implementing the administrative
boundary concept and the reduced need for it, as identified by
commenters, EPA decided not to finalize the proposed approach.
Commenters also raised legal objections to the administrative
boundary approach. These commenters stated that CWA section 404(g)(1)
provides that adjacent wetlands may not be assumed by a State or Tribe
and that EPA lacks the authority to approve an administrative boundary
that would allow a State to assume authority over any part of wetlands
that are adjacent to a retained water. Because EPA has decided not to
finalize the administrative boundary proposal due to implementation
concerns, addressing the scope of the Agency's legal authority to
approve such a boundary is unnecessary. If a State or Tribe chooses to
negotiate an administrative boundary with the Corps when developing an
assumption request, and the parties reach agreement, EPA may consider
issues related to the scope of their proposed program at that time.
A number of commenters asked that EPA provide more clarity as to
the ``universe of waters that would be retained,'' including the
information and data that the Corps and State or Tribe would use to
assess the scope of retained waters. As noted previously, however,
these commenters did not generally provide specific suggestions as to
how EPA could provide additional clarity. The approach EPA is outlining
adopts the recommendation of the Assumable Waters Subcommittee, which
spent several years assessing how EPA could best clarify the scope of
retained waters.
Moreover, for the purposes of CWA section 404(g)(1), determining
which waters are presently used or susceptible to use in their natural
condition or by reasonable improvement as a means to transport
interstate or foreign commerce, as well as the scope of adjacent
wetlands is, to some extent, inherently a case-specific process. While
determining whether a water is retained does not require compliance
with the requirements for determining whether a water is subject to RHA
section 10, and does not necessarily require a navigability study, the
factors used to determine RHA section 10 jurisdiction may still be
relevant to determining whether a water should be retained. As noted
earlier, however, there are key distinctions between RHA section 10
waters and the scope of retained waters. Specifically, unlike RHA
section 10 waters, Corps-retained waters do not include waters that are
only used historically for the transport of interstate or foreign
commerce but do include adjacent wetlands and, when a State is assuming
the program, waters subject to Tribal authority.
EPA's approach to determining the retained waters description
reflects its attempt to balance the competing priorities of providing
an efficient process for program assumption versus guaranteeing a fully
comprehensive and precise description. When a Tribe or State is
preparing to request assumption, the Corps or assuming Tribe or State
may not know all waters that are presently used or susceptible to use
in their natural condition or by reasonable improvement as a means to
transport interstate or foreign commerce at the time of assumption.
However, requiring a comprehensive assessment of every water within the
Tribe's or State's jurisdiction at the time of assumption to determine
if they should be retained pursuant to the parenthetical in CWA section
404(g)(1) could pose significant practical and budgetary challenges.
Depending on the number of waters within the Tribe's or State's
jurisdiction, developing a comprehensive retained waters description
could take many years and reduce the Corps' ability to carry out its
regulatory obligations. EPA attempts to strike a balance by using the
RHA section 10 list as a starting point and by stating that the
retained waters description must encompass waters ``known'' by the
Corps, Tribe, or State to meet the statutory criteria.
Further, as discussed in section IV.B.2.b.ii.2 of this preamble
below, EPA has added an opportunity for public input. EPA is confident
that geographic information systems technology and navigation charts,
review of judicial decisions, public input, past jurisdictional
determinations, and other sources of information should enable the
Corps, Tribe, or State to take significant steps in identifying waters
in the Tribe's or State's jurisdiction that should be included in the
retained waters description. As discussed further below, moreover,
EPA's regulation allows for the retained waters description and the
Memorandum of Agreement between the Corps and Tribe or State to be
modified if additional waters are identified after assumption, or if
waters included in the description no longer meet the statutory
criteria.
2. Procedures for Developing the Retained Waters Description
EPA is facilitating clarity and efficiency in the program
assumption process by establishing defined timeframes for the
development of the retained waters description. Before a Tribe or State
provides an assumption request submission to EPA, the Tribal leader,
State Governor, or Tribal or State Director must submit a request to
EPA that the Corps identify the subset of waters of the United States
over which the Corps would retain administrative authority. The Tribe
or State must submit the request with specific additional information
that should accompany the request to show that the Tribe or State has
taken concrete and substantial steps toward program assumption. One of
the following must be included with the Tribe's or State's request that
the Corps identify which waters would be retained: a citation or copy
of legislation authorizing funding to prepare for assumption, a
citation or copy of legislation authorizing assumption, a Governor or
Tribal leader directive, a letter from a head of a Tribal or State
agency, or a copy of a letter awarding a grant or other funding
allocated to investigate and pursue assumption. Within seven days of
receiving the request for the retained waters description, EPA will
review and respond to the request. If the request includes the required
information, then EPA will transmit the request to the Corps. This
requirement is intended to provide assurance to the Corps that
developing a retained waters description for purposes of program
assumption is a worthwhile expenditure of its time and resources.
One commenter opposed the requirement that a Tribe or State provide
supporting documentation for its request, stating that knowing the
scope of assumed waters is a foundational, and preliminary, piece of
information that States need before taking concrete and substantial
steps toward assumption. EPA recognizes the importance of understanding
the scope of assumed waters to Tribes and States before they consider
assumption. EPA seeks to balance the desire of Tribes and States to
assess the scope of a potential program prior to embarking on such a
program, however, with the desire to
[[Page 103472]]
avoid unnecessarily imposing workload burdens on the Corps. If EPA did
not impose such a prerequisite, the Corps could be asked to embark upon
lengthy assessments of the scope of retained waters at the request of
State environmental agency staff, for example, only to find out after
having expended significant resources that the State legislature or
governor has no intention of pursuing program assumption. EPA is
therefore finalizing its requirement that a Tribe or State document it
has taken concrete and substantial steps toward program assumption
before submitting its request for a retained waters description.
In addition to seeking to facilitate the clarity and efficiency of
the program assumption process, EPA also seeks to increase public
participation and transparency. To that end, EPA is providing that,
upon transmitting a request for a retained waters description to the
Corps, the Agency will also post a public notice of that transmission
on its website and notify members of the public known to be interested
in these matters of that transmission, inviting public input to the
Corps as well as the State or Tribe on the scope of the retained waters
description within a 60-day period. The Corps (or the Tribe or State if
the Corps declines to define the description) may consider submitted
information in developing its description. If the Corps were to develop
the description, the Tribe or State may provide information to the
Corps during that 60-day period. Similarly, if the Tribe or State were
to develop the list, the Corps may provide information to the Tribe or
State before the end of that 60-day period. Regardless of which entity
develops the retained waters description, the Corps and Tribe or State
will likely maintain regular communication regarding its development.
Yet providing data at the beginning of the description development
process will ensure that it can be adequately considered.
This public notice and input provision responds to some commenters'
requests for additional opportunities for public participation in the
development of the retained waters description, while also retaining
the efficiency in the description development process that other
commenters requested. EPA is not establishing a public notice and
comment period on the final retained waters description distinct from
the other procedural steps, as that would lengthen the time period for
seeking assumption and impose a substantial burden on the Corps, the
assuming State or Tribe, and EPA. A 60-day public input period,
however, would increase public participation in the process of
determining which waters the Corps would retain and the Tribe or State
would assume, without delaying the assumption process. The Corps (or
the Tribe or State) would not be obligated to respond directly to this
input but could consider it in compiling its description of retained
waters.
Members of the public have another opportunity to provide comment
on the retained waters description when reviewing the Tribe's or
State's program submission. Some commenters requested a separate public
notice and comment process specifically if a State takes on the
development of the retained waters description. EPA expects that the
public input opportunity offered when EPA transmits a request for a
retained waters description to the Corps will be sufficient to provide
the Tribe or State with information to assist in developing the
description. Moreover, a Tribe or State may provide opportunities for
public engagement as it develops its program submission, which would
again allow members of the public to provide input on the retained
waters description.
If the Corps notifies the Tribe or State and EPA within 30 days of
receipt of the request transmitted by EPA that it intends to provide a
retained waters description, the Corps would have 180 days from the
receipt of the request transmitted by EPA to develop the description.
During the 180-day period the Corps would be able to review the current
RHA section 10 list(s); place waters of the United States or reaches of
those waters from the RHA section 10 list into the retained waters
description if they are known to be presently used or susceptible to
use in their natural condition or by reasonable improvement as a means
to transport interstate or foreign commerce; and to the extent feasible
and to the extent that information is available, add other waters or
reaches of waters to the retained waters description that are presently
used or are susceptible to use in their natural condition or by
reasonable improvement as a means to transport interstate or foreign
commerce.
If the Corps does not notify the Tribe or State and EPA within 30
days of receipt of the request transmitted by EPA that it intends to
provide a retained waters description, the Tribe or State may prepare a
retained waters description using the same approach outlined above for
the Corps. Similarly, if the Corps had originally indicated that it
would provide a retained waters description but does not provide one
within 180 days of EPA's transmission to the Corps, the Tribe or State
may develop the retained waters description using the same approach
described above. Alternatively, the Tribe or State and the Corps may
also mutually agree to provide the Corps additional time to provide a
retained waters description.
EPA received a number of comments on the time frame and
coordination process outlined in the proposed rule, which it is
finalizing in this rule. Some commenters stated that the Corps should
be allowed one year to develop a retained waters description to allow
sufficient time to conduct the assessments needed to compile a complete
description, particularly given that some RHA section 10 lists may be
outdated. Some commenters also stated that under no circumstances
should a Tribe or State have the opportunity to develop a retained
waters description, contending that States lack the authority and
expertise to make these determinations. Other commenters stated that
180 days was too long a period to require a State or Tribe to wait
prior to finalizing their program submission, and that Congress did not
intend States and Tribes to have to wait for this length of time.
EPA decided to finalize its proposed approach of allowing the Corps
180 days to develop a list, which it views as striking a balance
between the desire of States and Tribes to understand the scope of a
potential program as quickly as possible, and the time the Corps needs
to complete the resource-intensive process of assessing those waters
that meet the statutory criteria to be retained. Moreover, in response
to those commenters who urged EPA to allow the Corps additional time,
EPA added a provision that would extend the 180-day time frame if the
requesting Tribe or State agrees with the Corps on an extension. In
response to the commenters that stated that Tribes or States may never
develop a retained waters description, EPA views this rule as providing
ample opportunity and encouragement to the Corps to develop the
description. However, allowing a Tribe or State opportunity to develop
a list if the Corps chooses not to do so is a backstop that is
consistent with and helps to implement the statute's intent of
facilitating Tribal and State assumption. Nothing in the CWA prohibits
the Tribe or State from developing a retained waters description. The
Act requires that the Tribe or State submit a description of assumed
waters, and it is reasonable for the Agency to allow a Tribe or State
to submit such a description for EPA
[[Page 103473]]
approval with their program request, if the Corps declines to develop a
retained waters description.
EPA disagrees with those commenters who expressed concerns that
allowing the Corps 180 days to develop a retained waters description
would unduly hamper Tribal or State efforts to develop a program
submission. In EPA's experience, States that have considered seeking
assumption typically spend at least several years preparing their
submissions. Allowing the Corps to spend 180 days developing the
description (or more, if an extension is jointly agreed upon) would
therefore be unlikely to impede Tribal or State efforts. Moreover, the
Corps may need 180 days to allocate staff to this project and conduct
the reviews and analyses needed to determine which waters meet the
statutory criteria to be retained by the Corps.
The Subcommittee majority recommended that identification of the
subset of waters of the United States over which the Corps would retain
administrative authority be a collaborative process. EPA anticipates
that, when a Tribe or State seeks assumption, the Tribe or State, the
Corps, and EPA will engage collaboratively throughout the development
of this description of retained waters to be submitted with the program
request package for review.
Even if the Corps does not provide a retained waters description to
the Tribe or State, the Corps may provide relevant information to the
Tribe or State at any time during the Tribe's or State's development of
the retained waters description. In addition, the Corps would have two
formal opportunities to review the list of retained waters that is
produced by the Tribe or State. First, the Memorandum of Agreement
between the Corps and the Tribe or State includes a description of
retained waters, and thus the Corps would have the opportunity to
review the description of retained waters during the drafting process
for that memorandum and before signing that memorandum. Second, the
Corps would have the opportunity to review and provide comments on the
Tribe's or State's program submission materials, which includes the
description of retained waters, after the Tribe or State submits a
program request to EPA. Similarly, if the Corps provides a retained
waters description to the Tribe or State, the Tribe or State would
presumably review it to ensure that the retained waters description
reflects waters presently used or susceptible to use in their natural
condition or by reasonable improvement as a means to transport
interstate or foreign commerce, including all waters which are subject
to the ebb and flow of the tide, as well as wetlands that are adjacent
to the foregoing waters, to the extent feasible and to the extent that
scope of waters is known.
The Subcommittee majority recommended that EPA and the Corps
establish a clear dispute resolution procedure to be followed if the
Tribe or State and the Corps were not able to complete the retained
waters description. Because EPA believes that the proposed approach
lays out a clear process for establishing the description, EPA is not
specifying such a dispute resolution procedure by regulation. See
section IV.E.1 of this preamble for further discussion on dispute
resolution. EPA encourages Tribes and States seeking to assume the
section 404 program to work collaboratively with the Corps to resolve
any issues, and EPA may participate in these discussions to advise and
facilitate development of the description.
EPA's process, similar to the one described by the Subcommittee
majority, is clear and practical, is based on available and relatively
stable and predictable information, and is able to be implemented
efficiently at the time a Tribe or State seeks assumption. It is also
consistent with the text and history of section 404(g), which reflects
Congress' intent that the Corps generally retain permitting authority
over certain RHA section 10 waters. See section III.A of this preamble.
Because the Agency's approach, consistent with the Subcommittee
majority's recommendation, effectuates the language and history of
section 404(g) and achieves Congress' goal of providing an
implementable approach for assumption, generally speaking, a retained
waters description that uses this approach will satisfy the statutory
criteria for retained waters. However, the Regional Administrator
retains the ultimate authority to determine whether to approve a Tribal
or State program. As this approach does not conflict with the approved
extent of the Michigan and New Jersey programs, no changes to their
existing program scope would be required.
3. Modifying the Extent of Retained Waters
EPA is revising the provision in the prior regulations that
currently states that modifications that affect the area of
jurisdiction (such as modifications to the retained waters description)
always constitute substantial revisions to a Tribal or State program.
The prior regulations provide that EPA may approve non-substantial
revisions by letter, but require additional procedures, including
public notice, inter-agency consultation, and Federal Register
publication, for substantial revisions. 40 CFR 233.16(d)(2)-(4) (2023).
EPA is modifying this provision to provide that all removals, except de
minimis removals, from the retained waters description are
``substantive,'' and therefore trigger the notice requirements for
``substantive'' program changes.'' In addition, changes in geographic
scope of an approved Tribal CWA section 404 program that would add
reservation areas to the scope of its approved program are substantial
program revisions.
EPA had proposed removing the provision stating that modifications
affecting the area of jurisdiction always constitute substantial
revisions, though also providing that changes in geographic scope of an
approved Tribal CWA section 404 program that would add reservation
areas to the scope of its approved program are substantial program
revisions. The proposed change was based on EPA's experience that
retained waters descriptions sometimes require minor tweaks (such as
minor modifications to the head of navigation of a particular
waterbody) and that requiring a full Federal Register notice for such
changes is unnecessarily burdensome. Commenters expressed concern,
however, that pursuant to the proposed revision waters could be
reassigned to State jurisdiction without any public notice or
opportunity to comment. These commenters therefore asked that all
removals from the retained waters description be viewed as substantial
revisions. EPA is accepting this recommendation and finalizing this
approach, with the qualification that de minimis removals are not
substantial. Examples of de minimis removals may include a reduction in
the length of a retained portion of a waterbody by a hundred feet
prompted by a new navigability study or changes resulting from a water
infrastructure project, or the removal from the retained waters
description of an oxbow lake that sedimentation has severed from a
Corps-retained river. EPA thinks this approach will achieve EPA's goal
of removing unnecessarily burdensome procedures while providing
transparency for interested parties.
While development of the retained waters description involves
collaboration between the Corps and the Tribe or State, the Corps
remains the agency with sole responsibility for maintaining and
modifying any RHA section 10 list. The Subcommittee
[[Page 103474]]
majority recognized that the Corps may add waters to RHA section 10
lists after a Tribe or State assumes the program. The Subcommittee
majority recommended that in such cases, Tribes or States may revise
their retained waters descriptions to add these waters, if consistent
with CWA section 404(g)(1). As discussed above, an RHA section 10 list
will not necessarily be co-extensive with the retained waters
description and changes to RHA section 10 lists do not always warrant
changes to the retained waters description. For example, if the Corps
adds to its RHA section 10 list a water which was historically used in
interstate or foreign commerce but is no longer used or susceptible to
use for that purpose, that water would not be added to the retained
waters description.
If, however, the Corps were to add waters to its RHA section 10
list that are used or susceptible to use in interstate or foreign
commerce, the relevant Tribe or State would add these waters to the
retained waters description. To provide a predictable and transparent
procedure for such modifications, and to address commenters' concerns
that many RHA section 10 lists are not currently up to date, the final
rule provides that the Memorandum of Agreement between the Corps and
the Tribe or State must outline procedures whereby the Corps will
notify the Tribe or the State of changes to the RHA section 10 list as
well as the extent to which these changes implicate the statutory scope
of retained waters. Pursuant to the Memorandum of Agreement, the Tribe
or State would incorporate the changes the Corps has identified as
implicating the scope of retained waters into its retained waters
description.
Under the final rule, EPA would have discretion to determine
whether additions to the area of jurisdiction, which includes the
extent of retained waters, are substantial or non-substantial. EPA may
then decide whether to approve the modification to the retained waters
description consistent with the procedures in 40 CFR 233.16.
This rule clarifies that changes in geographic scope of an approved
Tribal CWA section 404 program that would add reservation areas to the
scope of its approved program are substantial program revisions. Where
a Tribe seeks to include additional reservation areas within the scope
of its approved program, the Regional Administrator must determine that
the Tribe meets the TAS eligibility criteria for the additional areas
and waters. The substantial modification process involves circulating
notice to ``those persons known to be interested in such matters,
provide opportunity for a public hearing, and consult with the Corps,
FWS, and NMFS.'' 40 CFR 233.16(d)(3). In the case of a change in
geographic scope of a Tribal program, known interested persons would
typically include representatives of Tribes, States, and other Federal
entities located contiguous to the reservation of the Tribe which is
applying for TAS. See, e.g., Amendments to the Water Quality Standards
Regulation That Pertain to Standards on Indian Reservations, 56 FR
64876, 64884 (December 12, 1991). This clarification is necessary
because as discussed above, additions that affect the area of
jurisdiction are not always substantial. However, revising a Tribal
program to add new reservation land and waters of the United States on
that land is substantial because it requires a determination that the
Tribe meets the TAS eligibility criteria for such areas, pursuant to 40
CFR part 233, subpart G.
EPA is further amending the procedures associated with approval of
program revisions to require EPA to notify the Corps of all approvals
of program modifications, whether they are substantial or non-
substantial. EPA is also requiring that other Federal agencies be
notified of these program modification approvals as appropriate.
4. Additional Clarification
EPA is removing the term ``traditionally'' from the term
``traditionally navigable waters'' in the following provision: ``Where
a State permit program includes coverage of those traditionally
navigable waters in which only the Secretary may issue 404 permits, the
State is encouraged to establish in this Memorandum of Agreement
procedures for joint processing of Federal and State permits, including
joint public notices and public hearings.'' 40 CFR part 233.14(b)(2).
EPA is removing the term ``traditionally'' to align the reference to
retained waters with the rest of this preamble and regulations, which
refer to retained waters using the statutory language in the section
404(g) parenthetical, and do not refer to retained waters as
``traditionally'' or ``traditional navigable waters.'' ``Traditional
navigable waters'' are defined in the definition of ``waters of the
United States'' and are not addressed by this rule. See 40 CFR part
120.2(a)(1)(i).
3. Program Assumption Requirements
a. Overview and What the Agency Is Finalizing
The Agency proposed changes to better harmonize its program
approval requirements with program requirements in other sections of
the CFR. To assume the section 404 program, a Tribe or State must be
able to demonstrate that it can meet the requirements for permitting,
program operation, compliance evaluation and enforcement, and
administer a program that is consistent with section 404. EPA is
revising the requirements for the program descriptions that Tribes and
States submit to EPA when they request approval to assume the section
404 program. First, the revisions clarify that the description of the
funding and staff devoted to program administration and compliance
evaluation and enforcement must demonstrate that the Tribe or State is
able to carry out the existing regulatory requirements for permit
review, program operation, and compliance evaluation and enforcement
programs, provided in 40 CFR part 233 subparts C through E. In order to
do so, the Tribe or State must provide in the program description staff
position descriptions and qualifications, program budget and funding
mechanisms, and any other information a Tribe, State, or EPA considers
relevant. The revisions ensure that when a Tribe or State submits a
request to assume the section 404 program, its program submission would
demonstrate the Tribe or State has the resources necessary to ensure
that the permit decisions comply with permit requirements in 40 CFR
part 233 subpart C, as applicable; that its permitting operations would
comply with the program operation requirements of 40 CFR part 233
subpart D, as applicable; and that its compliance evaluation and
enforcement operations would comply with the compliance evaluation and
enforcement requirements of 40 CFR part 233 subpart E, as applicable.
EPA is also revising the requirement that currently provides that
if more than one State agency is responsible for the administration of
the program, the program description shall address the responsibilities
of each agency and how the agencies intend to coordinate
administration, compliance, enforcement, and evaluation of the program.
This rule adds that the program description must address additional
program budget and funding mechanisms for each of these agencies, and
how the agencies intend to coordinate program funding.
[[Page 103475]]
Similarly, the Agency is revising the requirement that the Tribe or
State program description include ``[a] description of the scope and
structure of the State's program. . .[which] should include [the]
extent of [the] State's jurisdiction, scope of activities regulated,
anticipated coordination, scope of permit exemptions if any, and permit
review criteria.'' 40 CFR part 233.11(a) (2023). EPA is clarifying that
this description ``must'' address all of the listed elements in
233.11(a). The rule is also clarifying that the description must
provide sufficient information to demonstrate that the criteria are
sufficient to meet the permit requirements in 40 CFR 233 subpart C.
These revisions do not substantively change the requirements for permit
review, program operation, and compliance evaluation and enforcement
programs. Rather, they ensure that Tribes or States provide EPA with
sufficient information to ensure that Tribal or State programs would be
able to meet these requirements.
Finally, EPA is revising the program description requirement that
if more than one Tribal or State agency would be administering the
program, the program description shall address inter-agency
coordination. The revision clarifies that the description of inter-
agency coordination must include coordination on enforcement and
compliance.
b. Summary of Final Rule Rationale and Public Comment
CWA section 404(h) provides that, before approving a Tribe's or
State's section 404 program, EPA shall determine whether the Tribe or
State has the authority to administer the program, including to issue
permits that comply with the CWA 404(b)(1) Guidelines, to provide for
public notice and opportunity for comment on permit applications, and
to abate violations of the permit or permit program. See 33 U.S.C.
1344(h)(1)(A), (C), (G). Section 404(h) refers to a Tribe's or State's
``authority,'' but legal authority would be meaningless without the
capacity to implement it. Clarifying that EPA must ensure that Tribes
and States have the resources and programs in place to implement their
authority best carries out section 404(h).
EPA's existing regulations effectuate section 404(h) by imposing
program requirements for permitting, program operation, and compliance
evaluation and enforcement set forth in 40 CFR part 233 subparts C
through E to administer a program that is consistent with section 404.
A program that lacks the resources to meet these requirements would not
be able to carry out its statutory and regulatory obligations. This
rule would not change these existing requirements; rather, it would
ensure that the program submission provides information necessary to
determine that Tribes and States can meet them.
In the 1988 preamble to the section 404 State program regulations,
EPA stated that the program description Tribes and States must submit
to EPA ``should provide the information needed to determine if the
State has sufficient manpower to adequately administer a good
program.'' 53 FR 20764, 20766 (June 6, 1988). However, 40 CFR part 233
subpart B, which contains the requirements for program approval, does
not explicitly state that Tribes and States must demonstrate that they
have sufficient resources to meet the requirements for permit issuance,
program operation, and compliance and enforcement outlined in subparts
C through E. The regulations require that the program description
contain ``a description'' of available funding and manpower (i.e.,
staffing),\33\ 40 CFR 233.11(d) (2023), but did not clearly state that
the available funding and staffing must be sufficient to meet the
requirements of subparts C through E. In addition, the regulations
provide that the program description must include ``a description'' of
the Tribe's or State's compliance evaluation and enforcement programs,
including a description of how the Tribe or State will coordinate its
enforcement strategy with the Corps and EPA, 40 CFR 233.11(g) (2023),
but did not clearly state that the Tribe's or State's compliance
evaluation and enforcement programs must be sufficient to meet the
requirements for section 404 program compliance evaluation and
enforcement in subpart E. In the absence of these clarifications, the
regulations did not provide sufficient guidance as to what kind of
demonstration is needed by Tribes and States as they develop their
programs. This revision would clarify the subpart B descriptions Tribes
or States must submit, consistent with the goal of this rulemaking, to
provide more clarity on the program assumption process for Tribes and
States. See section III.B of this preamble. The purpose of subpart B is
to require Tribes and States to demonstrate that they in fact have the
capacity to carry out subparts C through E, pursuant to the original
intent of the current regulations, and these changes would better
reflect that intent.
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\33\ In this revision, EPA is replacing the term ``manpower''
with ``staffing'' and will use the term ``staffing'' throughout this
preamble.
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This rule requires the program description to identify position
descriptions and qualifications as well as budget and funding
mechanisms for all responsible Tribal or State agencies because this
information is critical to understanding whether a Tribe or State will
be able to administer subparts C through E. EPA must be able to
determine that the Tribe or State will have sufficient qualified staff
and a reliable and sufficient funding mechanism that will be
commensurate with the responsibilities it seeks to assume. Given the
importance of these elements, Tribes and States should have staffing
and budget information readily available, and providing it in the
program description should not impose a significant new burden.
Some commenters opposed these revisions, as presented in the
proposed rule, arguing that such requirements could result in
unnecessary delays or confuse Tribes or States preparing assumption
submissions. These commenters also stated that such revisions are
unnecessary. For example, one commenter argued that to the extent EPA
were to find, for example, staffing levels described in the program
description insufficient, the 120-day review period for program
submissions would not provide time for a Tribe or State to increase
those levels. EPA disagrees with these commenters and has decided to
finalize these revisions for the reasons discussed above. In response
to the commenter that said that information about staffing levels would
not aid EPA, EPA thinks that requiring transparency about staffing
levels will encourage Tribes and States to ensure that their staffing
levels will be sufficient to carry out their program. Without adequate
staff to draft protective permits and inspect and review dredged and
fill activity, it is not possible for a program to comply with CWA
requirements. For example, EPA cannot assess a Tribe's or State's
ability to administer CWA section 404 if it does not know whether the
Tribe or State will have two permit writers or twenty. Moreover, EPA
typically provides extensive technical support to Tribes and States
that are preparing program submissions, and Tribes and States may
discuss staffing levels with EPA at any time prior to their program
submission.
Many commenters supported the revisions in this section. Some asked
EPA to require additional information from Tribes or States. One
suggested addition was to require budget and funding information for
all Tribal or State agencies with program
[[Page 103476]]
administration responsibilities, not just the lead agency. This
suggested requirement is consistent with the budget and funding
information EPA proposed to require, and simply addresses a potential
ambiguity by clarifying that the budget and funding information EPA
requests applies to all Tribal or State agencies with a role in the
section 404 program, not just the lead agency. EPA is therefore
adopting this suggested requirement in the final rule.
Other program description requirements that commenters asked EPA to
finalize include, but are not limited to: Tribes or States seeking to
reallocate existing resources must describe the duties that existing
staff will no longer perform and the skills and expertise staff have
that apply to reallocated tasks; Tribal or State budget descriptions
must account for all aspects of the section 404 program, including
administrative work, human resources, information technology, training,
guidance, leadership, enforcement, compliance, scientific personnel,
on-site activities and legal personnel; and Tribes or States must
demonstrate that any existing CWA-authorized programs are adequately
funded and staffed. EPA considered requiring some or all of the
suggested information of Tribes and States, but ultimately concluded
that requiring this level of detail is unnecessary. EPA will not always
need each of these pieces of information to determine whether a program
submission meets the requirements of the CWA. Codifying information
requirements with this degree of specificity could limit flexibility on
the part of Tribes or States and EPA to design and approve program
descriptions reflecting their particular circumstances. However, EPA
views this suggested information as helpful guidance to Tribes or
States as they assess how best to demonstrate that they have the
capacity to administer the section 404 program. Tribes and States are
welcome to submit this type of information, and if they do so, it will
likely aid EPA's review of the program submission.
EPA recommends that Tribes and States provide other information to
the extent it is necessary to demonstrate that they will be able to
carry out subparts C through E. Some commenters suggested that if a
Tribal or State program submission commits to conduct the same
activities as the Corps but with a lower budget or fewer staff people,
the submission must provide detailed documentation demonstrating how
they will be able to successfully administer the section 404 program.
In fact, one commenter noted that Tribes or States should allocate more
money to assumption than the Corps in the first few years of
assumption, given the additional costs of starting a program. To the
extent Tribes or States can compare resource levels with the Corps',
EPA agrees with the commenter that this information would be useful,
and strongly encourages Tribes and States to provide such comparisons.
EPA is not codifying this requirement, however, as differences in
administrative structures may render a direct comparison between Tribe
or State funding or staff and Corps funding or staff infeasible. For
example, a Corps district may not be able to identify the number of
staff focused solely on section 404 permitting or on a single State, if
its staff administers the section 404 regulatory program as well as RHA
section 10 or other types of permitting programs, and/or if the staff
manages permitting for a number of States. The difficulties with direct
comparisons could be compounded in States that include multiple Corps
districts. An alternative approach could compare the average number of
different types of section 404 permits (i.e., individual versus general
permits) Corps staff handle in a district to the average number of
permits the Tribe or State has or anticipates its staff will handle in
an assumed program.
The rule does not prescribe a particular metric that Tribes or
States must use to ensure sufficient funding, staffing, or compliance
evaluation and enforcement programs. It also does not prescribe the
specific position descriptions and qualifications a Tribe or State must
have, a minimum budget, or a particular type of funding mechanism. The
rule therefore retains a certain amount of flexibility for Tribes and
States, recognizing that the section 404 program needs of different
Tribes and States can differ. Tribal or State agencies likely have
varying procedures for determining sufficient staff and funding levels
and may choose to organize their programs in different ways.
Furthermore, the necessary section 404 program budget may differ
depending on the anticipated workload in the particular Tribe or State,
such as the number of permits typically sought, the extent and types of
aquatic resources assumed, and the types of compensatory mitigation
mechanisms used. In adding clarification to better carry out the
requirements of 40 CFR 233.11, this revision does not reopen those
requirements.
EPA's clarification, that as part of the program description, the
Tribe or State must demonstrate that its permit review criteria are
sufficient to carry out the permitting requirements of 40 CFR part 233
subpart C, has the same goal as the program revisions described above:
it would harmonize the requirements for the program description with
the requirements for program operation, and facilitate EPA's ability to
ensure that Tribal and State permits will comply with the CWA 404(b)(1)
Guidelines.
Finally, requiring that the description of Tribal and State agency
coordination on program administration must address enforcement and
compliance will enable EPA to ensure the Tribe or State can comply with
the requirements of 40 CFR part 233 subpart E, which prescribes the
enforcement and compliance requirements for assumed programs.
4. Mitigation
a. Overview and what is the Agency finalizing?
The CWA and EPA's implementing regulations provide that every
permit issued by a Tribe or State must apply and ensure compliance with
the guidelines established under CWA section 404(b)(1).\34\ 33 U.S.C.
1344(h)(1)(A)(i); 40 CFR 233.20(a), 233.23(c)(9) (2023). Under CWA
404(b)(1) Guidelines, impacts to waters of the United States should be
avoided and minimized to the maximum extent practicable before
considering compensatory mitigation.\35\ 40 CFR 230.10(a), (d). In
2008, the Corps and EPA issued joint regulations \36\ requiring
performance standards and establishing criteria for all types of
compensatory mitigation including: (1) on- and off-site permittee-
responsible compensatory mitigation, (2) mitigation banks, and (3) in-
lieu fee programs, to ``offset unavoidable impacts to waters of the
United States authorized through the issuance of permits by the U.S.
Army Corps of Engineers (Corps) pursuant to
[[Page 103477]]
section 404 of the Clean Water Act.'' 40 CFR 230.91(a)(1).
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\34\ See section IV.A.2 of this preamble for a discussion on how
a Tribe or State can demonstrate that it has the authority to issue
permits that apply and assure compliance with aspects of the CWA
404(b)(1) Guidelines other than compensatory mitigation.
\35\ The term compensatory mitigation means ``the restoration
(re-establishment or rehabilitation), establishment (creation),
enhancement, and/or in certain circumstances preservation of aquatic
resources for the purposes of offsetting unavoidable adverse impacts
which remain after all appropriate and practicable avoidance and
minimization has been achieved.'' 40 CFR 230.92.
\36\ ``Compensatory Mitigation for Losses of Aquatic Resources''
73 FR 19594 (April 10, 2008). (Commonly referred to or known as the
``2008 Mitigation Rule''). The 2008 Mitigation Rule was adopted into
both EPA and the Corps regulations. See 33 CFR 325.1 and 332.1
through 332.8 and 40 CFR 230.91 through 230.98. The Agency refers to
EPA's regulations located at 40 CFR 230.91-98 as subpart J of the
404(b)(1) Guidelines throughout this final rule.
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The prior regulations reaffirmed that all permits issued by Tribal
and State programs must accord with the requirements of the Act or
regulations thereunder. 40 CFR 233.1(d), 233.20(a) (2023). As
previously described in section IV.A.2 of this preamble, Congress
allowed leeway for Tribes and States to craft a Tribal or State program
consistent with circumstances specific to that Tribe or State, so long
as their permits will assure compliance with the CWA 404(b)(1)
Guidelines at least as stringently as permits issued by the Corps. EPA
further explained in promulgating the CWA 404(b)(1) Guidelines that
they are intended to provide ``a certain amount of flexibility,''
consisting of tools for evaluating proposed discharges, rather than
numeric standards. 45 FR 85336, 85336 (December 24, 1980).
While 40 CFR 233.1(d) of the prior regulations reemphasized that
approved Tribe and State programs ``may impose more stringent
requirements'' but ``may not impose any less stringent requirements for
any purpose,'' the regulations did not provide any detail as to how a
Tribe or State can demonstrate and ensure compliance with the
substantive criteria and requirements of subpart J of the 404(b)(1)
Guidelines, as subpart J was developed more than a decade after the
Tribal and State section 404 program regulations were revised in 1988.
Additionally, the language used in subpart J of the 404(b)(1)
Guidelines focuses on Federal concerns regarding permits issued by the
Corps; for example, it references the ``DA [Department of the Army]
permits'' and the ``district engineer'' and does not refer to or
account for Tribe- or State-issued permits. See 73 FR 19650. These
Corps-related references have created confusion. As a result, States
have requested clarity on how a Tribe or State can demonstrate that it
has authority to issue permits that apply and assure compliance with
the substantive criteria for compensatory mitigation set forth in
subpart J of the CWA 404(b)(1) Guidelines. States have also requested
clarification about the respective roles and responsibilities of the
Tribe or State and Federal agencies in connection with compensatory
mitigation for impacts to assumed waters.
With respect to subpart J of the 404(b)(1) Guidelines, EPA
recognized some terminology and discussion refers to the Corps as the
permitting authority. EPA proposed modifying section 233.1(e) to
clarify that references to the Corps as the permitting authority (such
as references to the ``District Engineer'' or ``DA Permits'') are to be
considered as applying to the Tribal or State permitting agency or
decision maker as appropriate. The final rule codifies this proposed
approach. 40 CFR 233.1(e).
Secondly, EPA proposed a new provision codifying its interpretation
that the Tribe's or State's approach may deviate from the specific
requirements to the extent necessary to reflect Tribal or State
administration of the program as opposed to the Corps' administration,
but that these programs may not be less stringent than the substantive
criteria of subpart J. Furthermore, the new provision requires Tribes
or States to submit in their program description the Tribe's or State's
proposed approach to ensuring that all permits they issue will apply
and ensure compliance with the substantive criteria for compensatory
mitigation consistent with the requirements of subpart J of the CWA
404(b)(1) Guidelines at 40 CFR part 230. EPA is finalizing what was
proposed without modification in section 233.11(k).
Finally, EPA proposed to add a new provision to section 233.50 to
address EPA's oversight responsibilities where Tribe or State programs
are establishing third-party compensation mechanisms (i.e., mitigation
banks or in-lieu fee programs) as part of their section 404
program.\37\ The proposed process also intended to incorporate input
from other relevant agencies, which is analogous to the way the
Interagency Review Team (IRT) that oversees mitigation for Corps-issued
permits incorporates input from other relevant agencies. See, e.g., 33
U.S.C. 1344(g), (h); 40 CFR 233.20(b) (``No permit shall be issued . .
. [w]hen the Regional Administrator has objected to issuance of the
permit . . .''); 40 CFR part 233 generally; 40 CFR 230.98(b)
(describing Interagency Review Team procedures). The Agency also
proposed to revise the section title for section 233.50 to read
``Review of and objection to State permits and review of compensatory
mitigation instruments.'' This revision was intended to reflect the
Agency's role in reviewing Tribal or State compensatory mitigation
instruments.
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\37\ This requirement does not include permittee-responsible
mitigation plans as those would be reviewed as part of the permit
conditions. If the Tribe or State uses permittee-responsible
mitigation, the mitigation plan would be reviewed as part of the
permit process. After approval, all specifications generally would
be presented as permit conditions.
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The new provision (i.e., section 233.50(k)) outlines a process
which requires Tribes or States to transmit a copy of each draft
instrument to EPA, the Corps, the U.S. Fish and Wildlife Service, and
the National Marine Fisheries Service for review prior to approving the
final instrument, as well as to any Tribal or State resource agencies
to which the Tribe or State committed to send draft instruments in the
program description. In the event that EPA has commented that the
instrument is not consistent with the 404(b)(1) Guidelines (see section
233.11(k)), the Tribe or State shall not approve the final compensatory
mitigation instrument until EPA notifies the Director that the final
instrument is consistent with the Guidelines. EPA is finalizing the
proposed process along with specific time frames for receiving comments
from the reviewing agencies in section 233.50(k).
b. Summary of Final Rule Rationale and Public Comment
i. Clarifying Authority
The final rule, consistent with the proposal, clarifies in the new
provision 233.1(e) that when a Tribe or State assumes the section 404
program, references to the Corps as the permitting authority (such as
references to the ``District Engineer'' or ``DA Permits'') in subpart J
are to be considered as applying to and being implemented by the Tribal
or State permitting agency or decision maker. EPA received no comments
on this issue.
ii. Ensuring Consistency and Compliance With Subpart J
The new provision 40 CFR 233.11(k) accomplishes three objectives.
First, the new provision requires that Tribes or States submit in their
program description their approach to ensure that all permits issued
will satisfy and be consistent with the substantive standards and
criteria of the compensatory mitigation set out in subpart J. This
description allows EPA to evaluate whether the Tribe's or State's
approach can implement a compensatory mitigation program consistent
with the requirements of the CWA. Second, the new provision at section
233.11(k) clarifies that the Tribe's or State's approach may deviate
from the specific requirements of subpart J to the extent necessary to
reflect Tribal or State administration of the program. For example, a
Tribal or State program may choose to provide for mitigation in the
form of banks and permittee responsible compensatory mitigation but may
choose not to establish an in-lieu fee program. Lastly, the new
provision at section 233.11(k) codifies EPA's interpretation that
Tribal and State section 404 programs must issue permits that are no
less stringent
[[Page 103478]]
than and consistent with the substantive criteria for compensatory
mitigation described in 40 CFR part 230, subpart J. The new provision
is consistent with CWA section 404(h)(1)(a), 40 CFR 233.1(e), and 40
CFR 233.20(a).
Commenters were divided on the Agency's proposed approach to this
new provision. Commenters opposing the Agency's proposed approach asked
the Agency to require Tribes and States to adopt verbatim or by
reference the requirements of subpart J of the section 404(b)(1)
Guidelines. These commenters asserted that verbatim adoption or
incorporation by reference of the mitigation requirements set forth in
subpart J would ensure consistency with the 404(b)(1) Guidelines and
``promote consistency and ease for the EPA, permittees and citizens.''
Commenters supporting the proposed approach (i.e., allowing Tribal and
State programs to deviate from the substantive criteria of subpart J)
asserted that Tribes and States are in a better position to make
decisions and design appropriate mitigation approaches for their Tribe
or State than the Corps. Some commenters requested that EPA provide
clearer direction on its expectations for resource mitigation,
including banking and in-lieu fee proposals, greater specificity as to
the standards EPA will use to review an applicant's proposed mitigation
program, and require additional requirements in mitigation proposals.
The Agency considered these comments and decided to finalize the
proposed approach for several reasons. First, while nothing in this
rule prohibits Tribes or States from adopting or incorporating the CWA
404(b)(1) Guidelines, requiring Tribes and States to adopt or
incorporate the CWA 404(b)(1) Guidelines, including subpart J, would
conflict with the leeway Congress provided to Tribes and States to
craft a Tribal or State program consistent with circumstances specific
to that Tribe or State, so long as their permits will assure compliance
with the CWA 404(b)(1) Guidelines at least as stringently as permits
issued by the Corps. Recognizing that a CWA section 404 permit may be
required for a variety of discharges into a wide range of aquatic
ecosystems, EPA explained in promulgating the CWA 404(b)(1) Guidelines
that they are intended to provide ``a certain amount of flexibility,''
consisting of tools for evaluating proposed discharges, rather than
numeric standards. 45 FR 85336, 85336 (December 24, 1980). Similarly,
as described in section IV.A.2 of this preamble, requiring Tribes or
States to adopt or incorporate subpart J would complicate efforts by
Tribes and States to impose more stringent requirements as part of
their CWA section 404 programs. See section IV.A.2 of this preamble for
further discussion on 404(b)(1) Guidelines.
Commenters noted that mitigation requirements are tiered (or
hierarchical) and insisted EPA should not allow State programs to
``pick and choose'' between the allowable forms of mitigation (e.g.,
permittee responsible, mitigation banks, and in-lieu fees). A commenter
stated that State programs which ``do not provide for all and follow
the established hierarchy for their use would have less stringent
compensatory mitigation requirements as compared to the federal
program.'' EPA disagrees with this commenter. Tribes and States may not
impose requirements less stringent than Federal requirements.
Accordingly, Tribes and States must follow the hierarchical approach
laid out in subpart J of the 404(b)(1) Guidelines. See 40 CFR
230.93(b). But following this approach does not require the
establishment of all three mechanisms listed in the hierarchy. Rather,
Tribes and States, like the Corps, must apply the hierarchy to
available mechanisms to determine the appropriate type of compensatory
mitigation.
iii. Third Party Compensatory Mitigation Instrument Oversight and
Approval
EPA is finalizing the proposed process, which will implement the
Agency's oversight responsibilities of third-party compensatory
mitigation instrument approvals (i.e., mitigation banks and in-lieu fee
programs), as well as provide opportunities for other agencies to
review and comment on third-party compensatory instruments prior to
approval. 40 CFR 233.50(k). Under the final process, a Tribe or State
must provide EPA, the Corps, the U.S. Fish and Wildlife Service and the
National Marine Fisheries Service an opportunity to review and comment
on any draft compensatory mitigation instruments before the Tribe or
State may establish the proposed instrument. The Tribe or State may
also commit in their program description to include Tribal or State
resource agencies in the circulation of draft instruments for approval.
If EPA comments that the instrument fails to apply or ensure compliance
with the section 404(b)(1) Guidelines, the Tribe or State may not
approve the final compensatory mitigation instrument until they address
EPA's comments and EPA notifies it that the final instrument ensures
compliance with this approach.
The Agency expects this instrument review process would be familiar
to Tribes and States because it is modeled on, and similar to, the
procedures for EPA review of permits, but does not replicate them. This
process also facilitates input from other relevant agencies, similar to
how an Interagency Review Team provides input to the Corps from other
relevant Federal and State agencies on compensatory mitigation
instruments. See, e.g., 33 U.S.C. 1344(g), (h); 40 CFR 233.20(b) (``No
permit shall be issued . . . [w]hen the Regional Administrator has
objected to issuance of the permit . . .''); 40 CFR part 233 generally;
40 CFR 230.98(b) (describing Interagency Review Team procedures).
Overall, the Agency believes this review process provides sufficient
oversight for Tribal or State compensatory mitigation instruments and
provides opportunity for multiple agencies to provide input on the
draft compensatory instrument before it is approved. The Agency
believes the final requirements outlined in the new provision 233.50(k)
strike a balance between Federal oversight responsibility of draft
compensatory mitigation instruments while allowing Tribes and States
flexibility to solicit input from additional resource agencies.
No commenters opposed the proposed approach. However, one commenter
cautioned EPA not to implement a rigid process that would limit Tribes'
or States' flexibility in designing their own compensatory mitigation
approach. EPA believes that this provision provides such flexibility.
One commenter requested that the Agency expand the list of
mitigation instrument reviewers to include relevant Tribal and State
agencies (e.g., Tribal- or State-level fish and wildlife services) to
the list. The Agency agrees with the commenter and believes that
additional reviews from relevant resource agencies would be
advantageous by providing local expertise and helping assess the
applicability of the mitigation instrument (e.g., including but not
limited to the structure of the instrument, design of the proposed
projects, proposed loss and benefits, and evaluation of successful
instrument), thereby promoting positive outcomes for environmental
protections.
The Agency is not requiring circulation to ``relevant Tribal or
State agencies'' because the criteria for ``relevancy'' is vague. What
constitutes a ``relevant'' agency is susceptible to differing
interpretations, especially as Tribes and States organize their
authorities under differing or even multiple agencies (e.g., some
regulate
[[Page 103479]]
wetlands under the State Department of Lands, others regulate them
under the State water quality agency). Therefore, imposing mandatory
circulation to this category of agencies would create confusion and
implementation challenges for the Tribal or State authority.
Furthermore, the Agency believes the new provision at section 233.50(k)
provides Tribes and States the opportunity to identify and commit to
additional instrument reviews from other Tribal or State agencies in
their program description. The new provision also allows a Tribe or
State to invite other resource agencies not identified in their program
description to participate in draft instrument review on a case-by-case
basis.
The Agency received one comment requesting that EPA provide clearer
direction on its expectations for resource mitigation, including
banking and in-lieu fee proposals, and greater specificity as to the
standards EPA will use to review an applicant's proposed mitigation
program. The commenter also asked that EPA require additional
requirements in mitigation proposals. EPA is not reopening the section
404(b)(1) Guidelines in this rule and does not have the authority to
impose substantive mitigation requirements on Tribes and States that
are more stringent than the mitigation requirements in the section
404(b)(1) Guidelines.
5. Effective Date for Approved Programs
a. What is the Agency finalizing?
Section 404(h) of the CWA addresses the transfer of permitting
authority and pending permit applications from the Corps to the Tribe
or State following EPA notice of program approval but does not specify
an effective date. The prior regulations provided that the transfer of
permitting authority could only take effect after notice of EPA's
program approval appeared in the Federal Register. 40 CFR 233.15(h)
(2023). Several States that have contemplated assumption of the section
404 program indicated that a transition period between EPA's approval
decision and the date of transfer of responsibility from the Corps to
the State would enable them to more effectively prepare for the
transition, including securing and allocating the necessary resources
to successfully implement the assumed section 404 permitting program if
their program is approved.
EPA proposed to establish a presumptive effective date for program
assumption of 30 days from the date of publication of the notice of
EPA's program approval in the Federal Register. The proposal also
provided that if requested and supported by a Tribe or State in its
request to assume the program, EPA may specify a later effective date,
not to exceed 120 days from the date of notice in the Federal Register.
A Tribe or State which seeks a later transfer date must provide a
sufficient explanation of its need for the additional time as part of
its program submission. In all cases, that effective date must be set
forth in the Memorandum of Agreement between a Tribe or State and EPA
required by 40 CFR 233.14(b)(2) and published in the Federal Register.
EPA also proposed to require that decisions to approve Tribal and State
programs and revisions be posted on EPA's website in addition to
publication in the Federal Register. After reviewing public comments,
the Agency is finalizing its approach as proposed with one modification
to allow Tribes or States and EPA to establish a later effective date
not to exceed 180 days from the date of notice in the Federal Register.
b. Summary of Final Rule Rationale and Public Comments
Section 404(h)(4) of the CWA provides that ``[a]fter the Secretary
receives notification from the Administrator under paragraph (2) or (3)
of this subsection that a State permit program has been approved, the
Secretary shall transfer any applications for permits pending before
the Secretary for activities with respect to which a permit may be
issued pursuant to such State program to such State for appropriate
action.'' 33 U.S.C. 1344(h)(4). Once the State has received those
permit applications, and signals to the Corps that it is ready to
assume permitting activity, permitting responsibility should transfer.
Id. at 1344(h)(2). Thus, the administrative process envisioned by
Congress is that EPA receives a program request, reviews and approves
or denies the program request, then notifies the parties of an approval
decision, after which the Corps begins to transfer existing permitting
materials. The contrast between the specific time frames the statute
provides for EPA's approval of a program and the absence of a time
frame for the transfer of permit applications from the Corps suggests
that Congress intended some flexibility in the transition to Tribal or
State program implementation. However, the fact that the statute
describes the transfer of permits as the immediate next step following
program approval indicates that Congress intended the transfer to
happen relatively quickly.
EPA proposed to modify the regulatory text to clarify when and how
the section 404 program transfers to the Tribe or State following EPA's
approval, and that the presumptive date of transfer would be 30 days
from the date of notice of program approval in the Federal Register,
but that Tribes and States that satisfactorily demonstrate a need for
more than 30 days to assume and be prepared to fully administer the
program could request an effective date of up to 120 days from the date
of notice. EPA also proposed that if a Tribe or State requests to
assume administration of the program more than 30 days after EPA's
approval, the program description must include a description and
schedule of the actions that will be taken following EPA approval for
the Tribe or State to begin administering the program.
A number of commenters supported EPA's proposal to allow for more
than 30 days for program transfer. Most of these commenters, however,
requested that the maximum time be longer than EPA's proposed maximum
of 120 days, or not specifically limited. These commenters agreed that
some Tribes and States, especially smaller ones, may need more time to
effectively prepare for program implementation, such as training staff,
to successfully implement the assumed section 404 permitting program if
their program is approved. One commenter stated that no more than 120
days should be needed if a Tribe or State were sufficiently prepared to
assume the program.
EPA finds that a short, clearly defined period of time between
program approval and the Tribe or State's assumption of program
administration benefits the public and regulated community by providing
advance notice of the date of program transfer and supports the smooth
transition of program functions. However, EPA agrees that extending the
maximum period of time to 180 days could reduce the burden for some
Tribes and States, without significantly increasing the uncertainty
that might arise from lengthier transition periods.
The final rule allows the effective date to be more than 30 days
following approval (though no more than 180 days), when a Tribe or
State identifies specific circumstances which support the need for
additional time. If the Tribe or State takes advantage of this option
to delay the effective date, the Tribe or State's program description
should set forth the steps it will take upon program approval, such as
specifying the timeline for any assignment and training of staff and
ensuring program funding is accessible by the effective date. Generally
speaking, a Tribe or State should not wait until EPA approves its
[[Page 103480]]
program before initiating hiring and training processes for staff that
are committed in its program description and the Tribe or State should
be prepared to implement the final steps soon after program approval.
The Agency is finalizing the requirement that the Memorandum of
Agreement between a Tribe or State and EPA include the effective date
for transfer of the program from the Corps to the Tribe or State,
identified as the number of days following the date of publication of
program approval in the Federal Register. This will provide for the
efficient development and administration of the Tribal or State
program, while also making the process more predictable for the
regulated community and the public. As with the prior regulations, the
Corps will continue to process permit applications up until the
effective date, but they will also use the time between approval and
the effective date to begin transferring permits under review. The
Tribe or State would not be authorized to process these permits until
the effective date of program transfer. The Tribe or State and the
Corps will include procedures for transferring pending section 404
permit applications and other relevant information to the Tribe or
State in their Memorandum of Agreement. 40 CFR 233.14(b)(2).
C. Program Operations
1. Five-Year Permits and Long-Term Projects
a. Overview and What the Agency Is Finalizing
Congress limited CWA section 404 permits issued by Tribes or States
that assume the section 404 program to five years in duration. 33
U.S.C. 1344(h)(1)(A)(ii).\38\ The Agency codified this limitation in
the permit conditions section of the prior section 404 Tribal and State
program regulations. 40 CFR 233.23(b) (2023). However, certain projects
by their nature cannot be completed within five years and therefore
need more than one five-year permit. Examples of these long-term
projects include some residential or commercial developments, linear
projects such as transportation corridors, and energy or mining
projects. The Agency is concerned that if applicants with long-term
projects only submit information about activities that will occur
during one five-year period of their project in their permit
application, the permitting agency and members of the public will not
have sufficient information to assess the scope of the entire project,
or cumulative impacts of the entire project.
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\38\ Corps-issued individual permits are not limited to five
years. See 33 CFR 325.6(b), (c) (authorizing certain types of
permits for an ``indefinite duration'' or else a ``limited
duration'' but with no five-year limitation period). General permits
issued by the Corps are limited to five years. See 33 U.S.C.
1344(e)(2).
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To minimize unnecessary effort and paperwork, and provide the Tribe
or State and the public with information that can assist with the
successful permitting of long-term projects, the Agency proposed that
applicants for projects for which the planned schedule extends beyond
five years at the time of the initial five-year permit application must
submit a 404(b)(1) analysis for the full scope and term of the project
with the application for the first five-year permit and modify the
404(b)(1) analysis, as necessary, for subsequent five-year permits. The
proposed rule preamble discussed the criteria that the Tribe or State
must consider when determining whether the 404(b)(1) analysis needs to
be modified. 88 FR 55303. If there has been a change in circumstance
related to an authorized activity following approval of the previous
five-year permit, the applicant must modify the 404(b)(1) analysis for
subsequent five-year permits. If there have been no changes in
circumstances related to an authorized activity following approval of
the previous five-year permit, the applicant's new permit application
may rely upon the most recent 404(b)(1) analysis. Consistent with CWA
requirements, the proposal also required that a new permit application
must be submitted for projects that exceed a five-year schedule (e.g.,
based on construction plans), and all aspects of the permit
application, public notice, and Tribal or State review requirements set
forth in 40 CFR 233.30, 233.32, and 233.34, respectively, apply. To
avoid a stoppage in work, the proposal required that an applicant
seeking a new five-year permit should apply for the new permit at least
180 days prior to the expiration of the current permit.
In response to public comments, the Agency is revising its proposed
approach to require that the permit application and public notice for a
subsequent five-year permit application must indicate whether the
404(b)(1) analysis has been updated and that the Tribe or State must
provide a written explanation if it does not require an updated
404(b)(1) analysis for a subsequent five-year permit(s). Additionally,
EPA is authorizing the Tribe or State to grant permission to submit an
application less than 180 days prior to the expiration of the current
permit but no later than the permit expiration date.
b. Summary of Final Rule Rationale and Public Comments
i. Permitting Long-Term Projects
The Agency is finalizing a process for permitting long-term
projects in waters assumed by a Tribal or State section 404 program
that is consistent with the statutory limitation that permits not
exceed five years in duration,\39\ yet increases predictability for
permittees and provides sufficient information for the Tribe or State
to consider the full scope of a project's impacts to the aquatic
environment. When applying for a permit to discharge dredged or fill
material associated with projects \40\ with a planned construction
schedule which may extend beyond the five-year permit period,
applicants must submit an analysis that demonstrates compliance with
the 404(b)(1) Guidelines showing how the complete long-term project
complies with the environmental review criteria set forth in the CWA
404(b)(1) Guidelines when they submit the application for the first
five-year permit. The 404(b)(1) analysis must provide information
demonstrating that the project meets each element of the CWA 404(b)(1)
Guidelines for the full term of the project.\41\ For example, under
this approach, an applicant seeking permit coverage for a 15-year,
multi-phase housing development project would provide information about
all phases of the project, covering its full 15-year term, in its
permit application. If this project were anticipated to involve the
construction of two hundred homes in years 0-5, two hundred homes in
years 5-10, and two hundred homes in years
[[Page 103481]]
10-15, the permit application would provide information about the
construction of all six hundred homes.
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\39\ 33 U.S.C. 1344(h)(1)(A)(ii).
\40\ Per 40 CFR 233.30(b)(5), all activities which the applicant
plans to undertake which are reasonably related to the same project
should be included in the same permit application.
\41\ This information includes, but is not limited to: (i)
information describing the purpose, scope, and timeline for the
entire project; (ii) an alternatives analysis for the entire
project; (iii) information sufficient to demonstrate appropriate and
practicable steps that will be taken to avoid and minimize impacts
from the entire project; (iv) information sufficient to demonstrate
that the project will not cause or contribute to significant
degradation of waters of the Unites States, including factual
determinations, evaluations, and tests for the entire project; (v)
an assessment of cumulative and secondary effects of the entire
project; (vi) information sufficient to demonstrate that the project
will not violate applicable state water quality standards or toxic
effluent standards, jeopardize the continued existence of federally
listed species or adversely modify or destroy critical habitat, or
violate protections for marine sanctuaries designated under the
Marine Protection, Research, and Sanctuaries Act of 1972; and (vii)
a description of compensatory mitigation proposed to offset all
unavoidable impacts associated with the entire project. See
generally 40 CFR part 230.
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Some commenters supported the proposed rule approach without
modification. Several commenters supported the proposed rule approach
requiring an applicant to submit a 404(b)(1) analysis for the entirety
of the project as part of the first five-year permit review period but
recommended modifying the proposed rule approach to require an
automatic update to the 404(b)(1) analysis at least every five-year
permit cycle. According to these commenters, projects may change as
they move forward and even small changes may have an impact on water
quality, as well as on Tribal rights and resources. Some of these
commenters supported a requirement that a written explanation be
provided in the event the permitting authority does not require an
updated section 404(b)(1) analysis.
EPA has evaluated these comments and concluded that an automatic
update to the 404(b)(1) analysis every five-year permitting cycle is
unnecessary. Instead, for subsequent five-year permits, EPA is
requiring that Tribes or States provide a written explanation if they
do not determine that a ``change in circumstance'' has occurred
requiring an updated 404(b)(1) analysis. Adding this requirement
provides transparency and ensures the Tribe or State engages in a
meaningful analysis of why there has not been a ``change in
circumstance.'' EPA believes this approach strikes the right balance of
providing more regulatory certainty for subsequent five-year permits,
while also ensuring that the scope of impacts associated with a
complete project is factored into the permitting decision for each
five-year permit.
One commenter asked EPA to require that sufficient information
related to planned impacts for future permitting phases be included in
an initial permit application. The rule modifies previous language in
40 CFR 233.30(b)(5), which stated that ``[a]ll activities which the
applicant plans to undertake which are reasonably related to the same
project must be included in the same permit application.'' (emphasis
added). The final rule expands upon this provision and requires,
``[f]or projects for which the planned schedule extends beyond five
years at the time of the initial five-year permit application, the
application for both the first and subsequent five-year permits must
include an analysis demonstrating that each element of the 404(b)(1)
Guidelines is met, consistent with 40 CFR part 230, for the full term
of the project.'' The final rule also requires that, ``[a]pplicants for
subsequent five-year permits must update the 404(b)(1) Guidelines
analysis if there has been a change in circumstance related to the
project following approval of the previous five-year permit.''
Some commenters opposed any regulatory changes related to long-term
projects. One commenter argued that requiring a comprehensive 404(b)(1)
analysis would present a barrier to State assumption and questioned the
legality of that approach. EPA disagrees with this commenter. Each
State that has assumed the section 404 program has at times expressed
interest in allowing for a full project analysis at the time of the
first permit application and allowing expediencies in subsequent rounds
of permitting for the same project, as a means of both ensuring
comprehensive water quality protections and protecting permit
applicants against wasted financial resources. As a legal matter,
requiring an analysis of the full project scope is consistent with
section 404(b)(1)(A), which provides that Tribes and States must have
the authority to issue permits which apply and assure compliance with
the 404(b)(1) Guidelines. The Guidelines, in turn, require an
evaluation of the potential for adverse impacts on the aquatic
ecosystems posed by dredged or fill material discharge activities. 40
CFR 230.10.
This approach is consistent with the Agency's long-standing
position that activities related to the same project should not be
split into multiple permits, which can undermine efforts to ensure a
complete alternatives analysis, an accurate accounting of all
cumulative impacts, an appropriate mitigation plan, and that the public
is sufficiently on notice of forthcoming dredged and fill activities.
See 40 CFR 233.30(b)(5) (2023). This approach is also similar to the
Corps' requirement that all activities that are reasonably related to
the same project be included in the same permit application. 33 CFR
325.1(d)(2). Providing information about all phases of the project does
not authorize dredged and fill activity beyond the five-year permit
term. Moreover, unless there has been a change in circumstance related
to an authorized activity, the same information should be provided in
subsequent applications for later stages of the long-term project, such
as applications seeking authorization for activity in years 6-10 of the
project, years 11-15 of the project, and so forth. Additionally, this
approach will improve environmental protections by ensuring that the
scope of impacts associated with a complete project is factored into
the permitting decision for each five-year permit.
This approach will also help ensure consistency in permitting
decisions associated with the project, thereby providing the applicant
with more regulatory certainty than without such a plan. Evaluating the
impacts of only the first stage of a long-term project does not make
business sense. For example, if a permitting authority evaluating a
second- or third-round permit for a mine's construction or operation
were to deny the permit based on those previously unevaluated impacts,
the investments made during the first round or two of permit coverage
would have been wasted. Foregoing an initial long-term plan would
therefore be extremely inefficient.
The issuance of Tribal or State section 404 permits for projects
that exceed a five-year schedule only authorizes discharges occurring
in the five-year period identified in the permit. Permittees for long-
term projects must submit a new permit application for each subsequent
five-year permit term. The issuance of a subsequent five-year permit
for the same project does not constitute a continuance or modification
of the previous permit. Nothing in the final rule affects the process
for continuing or modifying permits set forth in an approved Tribal or
State section 404 program.
The Agency recognizes that some permittees may expect that a
project will be completed within the five-year permit term but
ultimately the project takes longer. The Tribe or State administering
the section 404 program should make reasonable efforts to verify that
all activities that are reasonably related to the same project are
included in the same permit and to evaluate whether a project's
schedule extends beyond five years at the time of the initial five-year
permit application.
In the event a project anticipated to be completed within five
years is not completed during that time, the applicant must apply for a
new five-year permit. To avoid a stoppage in work, the Agency is
requiring that an applicant seeking a new five-year permit must apply
for the new permit at least 180 days prior to the expiration of the
current permit to allow sufficient time for the application to be
processed. However, consistent with other CWA programs which have a
similar 180-day advance application requirement (e.g., 40 CFR
122.21(d)), upon special request the Tribe or State may grant
permission to reapply less than 180 days prior to the expiration of the
current permit but no later than the permit expiration date. This
approach provides time for a
[[Page 103482]]
public comment period and any required EPA review of the new permit
application.
This final rule approach to five-year permits presents both
environmental and financial advantages. It promotes environmental
protections by ensuring that the scope of impacts associated with a
complete project are factored into the permitting decision for each
five-year permit. Tribal or State review of a 404(b)(1) analysis for a
five-year permit does not constitute pre-approval of subsequent five-
year permits for the project and there is no guarantee that an
applicant for a long-term project will receive all of the five-year
permits needed to complete the project. That said, including a
404(b)(1) analysis for the full scope of the project with the
application for the first five-year permit and modification of the
404(b)(1) analysis, as necessary, for subsequent five-year permits will
help ensure consistency in permitting decisions associated with the
project, thereby providing the applicant with more regulatory certainty
than without such a plan.
ii. Criteria for Modification of 404(b)(1) Analyses
The Agency recognizes that changes in circumstances related to an
authorized activity may occur over time. For example, plans for
subsequent phases of a long-term project may lack detail at the time an
applicant submits a 404(b)(1) analysis for the first five-year permit
and adjustments to the description of the project may therefore be
required. If there has been a change in circumstance related to an
authorized activity following approval of the previous five-year
permit, the Agency is finalizing as proposed that the applicant must
modify the 404(b)(1) analysis for subsequent five-year permits. A
change in circumstance related to the authorized activity includes, but
is not limited to, the following:
--Change in project purpose;
--Change in project boundary;
--Change in scope of waters impacted;
--Change in secondary or cumulative impacts;
--Change affecting compensatory mitigation;
--Change in site conditions, including new alternatives or
opportunities for minimization of impacts;
--Change in environmental conditions, including the presence or new
listing of threatened or endangered species or critical habitat; or
--Change to applicable statutes, regulations, or guidance.
If there have been no changes in circumstances related to an
authorized activity following approval of the previous five-year
permit, the applicant's new permit application may rely upon the most
recent 404(b)(1) analysis. As discussed above, the permit application
and public notice for a subsequent five-year permit application must
indicate whether the 404(b)(1) analysis has been updated. A Tribe or
State may require that a 404(b)(1) analysis be updated based on a
change in circumstances, either on their own motion, at the request of
Federal agency reviewers providing comments via EPA or at the request
of the public. Federal agency reviewers or members of the public who
submit such a request must provide information supporting a change in
circumstances for the Tribe or State to consider the request. A change
in circumstances may be significant enough that the project no longer
meets conditions for approval. Other factors may also weigh in favor of
permit denial, such as an applicant's non-compliance with the previous
permit. If the Tribe or State does not require an update to the
404(b)(1) analysis, it must provide a detailed written explanation in
the record of decision for the permit based on the ``change in
circumstance'' factors listed above and any additional factors
identified in the Tribe or State's program description. The Tribe or
State must provide this detailed written explanation for not requiring
an update to the 404(b)(1) analysis regardless of whether it received a
request from Federal agency reviewers or the public.
iii. Clarification Regarding Long-Term Projects
The Agency is finalizing as proposed a clarification that all
aspects of the permit application, public notice, and Tribal or State
review requirements set forth in 40 CFR 233.30, 233.32, and 233.34,
respectively, apply to each permit application, including for projects
that exceed a five-year schedule. Such clarification will help ensure
that applicants, Tribes, and States comply with the five-year permit
limitation set forth in CWA section 404(h)(1)(A)(ii). EPA expects that
the permit application process for permits after the initial five-year
permit application will be easier and simpler because the applicant and
Tribe or State will have already analyzed the full project.
All public notices for long-term permits must satisfy the public
notice requirements in 40 CFR 233.32(d). In addition, the scope of
information the Tribe or State may consider when reviewing a permit
application may not be limited for any application, including
applications for each five-year permit of a project that takes more
than five years to complete. Nor may a Tribe or State limit the scope
of comments the public may submit in response to the public notice, or
public hearing if a hearing is held, to impacts arising from one five-
year permit of a long-term project as opposed to impacts from the
entirety of the long-term project.
2. Judicial Review and Rights of Appeal
a. Overview and What the Agency Is Finalizing
The prior regulations require the program description to describe
the Tribe's or State's judicial review procedure but did not contain an
explicit corresponding substantive requirement for Tribal or State
programs. The Agency proposed to codify a substantive requirement to
match the prior descriptive requirement. After considering comments
urging EPA to ensure that States facilitate public participation in the
permitting process, EPA is finalizing a provision that would require
States seeking to assume the section 404 program to provide an
opportunity for judicial review in State court of the final approval or
denial of permits by the State that is sufficient to provide for,
encourage, and assist public participation in the permitting process.
EPA did not propose any judicial review requirement relevant to Tribes
in the regulatory text. In a change from proposal, EPA is codifying a
requirement that Tribes must provide a commensurate form of citizen
recourse for applicants and others affected by Tribe-issued permits.
b. Summary of Final Rule Rationale and Public Comment
This provision gives meaning to the existing regulatory requirement
that State program descriptions describe their judicial review
procedures. See 40 CFR 233.11(b). EPA interprets the existing
requirement that States provide ``a description of the State's . . .
judicial review . . . procedures'' to suggest that States must
authorize judicial review. The new substantive requirement that States
allow for judicial review sufficient to provide for, encourage, and
assist public participation in the permitting process makes explicit
that States must have authorities in place to form the basis for the
existing description requirement.
The provision also carries out the requirement that States have the
authority to ``abate violations of the . . . permit program'' through
``ways and means of enforcement.'' 33 U.S.C. 1344(g). Potential
violations of the permit program may include State
[[Page 103483]]
permitting actions, such as the issuance of a permit that does not
assure compliance with the section 404(b)(1) Guidelines or that has not
provided public notice and an opportunity for a hearing. See 33 U.S.C.
1344(h)(1)(A)(i), (h)(1)(C). One of the most effective ways to abate
such violations is to allow members of the public to challenge them.
Given that EPA has limited resources to expend on oversight of State
permitting actions, citizen challenges are a critical complementary
tool for abating violations of the permit program.
The judicial review provision also gives meaning to the requirement
that States must have adequate authority to ensure that the public
``receive[s] notice of each application for a permit and to provide an
opportunity for public hearing before a ruling on each such
application.'' 33 U.S.C. 1344(h)(1)(C). As EPA explained in
promulgating a requirement for judicial review in the section 402
program, the United States Court of Appeals for the Fourth Circuit has
agreed that ``[t]he comment of an ordinary citizen carries more weight
if officials know that the citizen has the power to seek judicial
review of any administrative decision harming him.'' Amendment to
Requirements for Authorized State Permit Programs Under Section 402 of
the Clean Water Act, 61 FR 20972 (May 8, 1996), codified at 40 CFR
123.30, citing Com. of Virginia v. Browner, 80 F.3d 869, 879 (4th Cir.
1996).
Without the possibility of judicial review by citizens, public
participation before a State administrative agency could become less
meaningful. See also 33 U.S.C. 1251(e) (``Public participation in the .
. . enforcement of any regulation, standard, effluent limitation, plan,
or program established by the Administrator or any State under this
chapter shall be provided for, encouraged, and assisted by the
Administrator and the States.''); A Legislative History of the Water
Pollution Control Act Amendments of 1972, Comm. Print No. 1, 93d Cong.,
1st Sess. at 1490 (``The scrutiny of the public . . . is extremely
important in insuring . . . a high level of performance by all levels
of government and discharge sources.'').
Finally, the proposed approach is consistent with the CWA's
requirement that States issue permits that ``apply, and assure
compliance with, any applicable requirements'' of section 404, 33
U.S.C. 1344(h)(1)(A)(i); and the regulatory provision providing that
``[a]ny approved State Program shall, at all times, be conducted in
accordance with the requirements of the Act and of this part.'' 40 CFR
233.1(e). As citizens are authorized to challenge the issuance of
section 404 permits when the Federal Government administers the
program, challenges must also be authorized when a State has assumed
the program in order to assure compliance with the applicable
requirements of section 404 and to ensure that the State program is not
less stringent than the Federal program. Permitting authorities are
likely to be particularly careful to address citizens' input and ensure
that issued permits comply with CWA requirements if such permits may be
challenged by such citizens. Therefore, ensuring that States provide an
opportunity for judicial review helps to ensure compliance with section
404 and all requirements of the CWA. Any of the provisions in 404(g)
cited above as authority for the judicial review provision would be
independently sufficient to justify finalizing this provision.
EPA proposed the language that it is codifying in this rule, except
for the regulatory requirement that Tribes provide a commensurate form
of citizen recourse for those affected by permitting decisions. The
proposal had also stated that a State would meet the required judicial
review standard if it allowed an opportunity for judicial review that
is the same as that available to obtain judicial review in Federal
court of a federally issued NPDES permit. Further, the proposal stated
that a State would not meet this standard if it either narrowly
restricted the class of persons who could challenge the approval or
denial of permits (such as by limiting standing to people who would
suffer pecuniary injury from the permitting decision or to people who
own property close to the discharge or receiving waters) or if the
State required the losing party to pay attorneys' fees notwithstanding
the merit of its position. See 88 FR 55326.
A number of commenters expressed support for the proposed
provision. Some commenters asked that EPA establish broader or more
detailed limitations on restrictions or disincentives to judicial
review. These commenters emphasized the importance of ensuring that the
public has access to courts and discussed the significant chilling
effects of State limitations on citizen suit challenges, such as fee-
shifting provisions that make the ``loser pay'' (whether in full, in
part, or at the judge's discretion) and requirements to exhaust
administrative remedies that can deplete prospective plaintiffs'
resources before they even initiate a State court challenge. These
commenters asked EPA to prohibit certain requirements more clearly,
including any form of fee-shifting and excessive administrative
exhaustion requirements.
Other commenters expressed concerns about the proposed rule
provision, stating that it would be a significant impediment, if not a
complete barrier, to States seeking assumption. These commenters also
argued that, as a legal matter, nothing in the CWA authorizes EPA to
require judicial review opportunities for section 404 permits. They
stated that while Congress does provide for judicial review by any
interested person of EPA's issuance or denial of section 402 permits
pursuant to CWA section 509(b)(1), it is silent with respect to
judicial review of section 404 permits. This omission, in the
commenters' view, indicates that Congress intentionally did not require
a heightened level of review for section 404 permits.
EPA has finalized the requirement that States must provide for
judicial review of State-issued permits or permit denials that is
sufficient to provide for, encourage, and assist public participation
in the permitting process. 40 CFR 233.24. The final requirement is
shorter than the proposed requirement and does not specifically detail
various examples of unacceptable barriers to judicial review. As noted
above, it simply codifies the substantive corollary to the existing
program description requirement that States describe their judicial
review procedures. EPA disagrees with the commenters that stated EPA
lacks authority to impose this requirement. As discussed above, the
final requirement is consistent with the CWA's requirements for public
participation in the permitting process and that State programs comply
with all requirements of section 404, as well as the regulatory
requirement that State programs be no less stringent than the Federal
section 404 program. EPA expects that States will have the authority
and experience to implement this requirement because it is similar to
the section 402 requirement that States authorize judicial review.
EPA removed from the final rule the examples of the ways in which
States can demonstrate that they provide for judicial review of State-
issued permits or permit denials that is sufficient to provide for,
encourage, and assist public participation in the permitting process.
Commenters made clear that States can either facilitate or impede
judicial review of State-issued permits in a wide variety of ways.
Specifically listing just a few of those examples in the regulations
would be under-inclusive, but a longer and more prescriptive list
[[Page 103484]]
risks intruding into the operations of State courts and State civil
procedure, areas traditionally subject to State control. EPA will
therefore evaluate State judicial review provisions as part of program
submissions on a case-by-case basis to determine whether they provide
for judicial review of State-issued permits or permit denials that is
sufficient to provide for, encourage, and assist public participation
in the permitting process. Finally, in omitting the explicit
requirement that States provide judicial review opportunities
commensurate with those available for section 402 permits under CWA
section 509(b), the provision no longer implicates the commenters'
argument that it conflicts with Congress' intentional omission of
section 404 permits from the scope of section 509(b) review.
EPA would also look to the State Attorney General's statement to
certify that the laws of the State meet the requirements of the
regulation. See 40 CFR 233.12. States with expansive judicial review
opportunities, such as those that allow standing to challenge permits
on the part of interested citizens and citizen groups, and that do not
require parties who lose lawsuits brought in good faith to pay other
parties' legal fees, should meet the regulatory judicial review
requirement. As with the section 402 regulations, the provision applies
to final actions with respect to modification, revocation and
reissuance, and termination of permits, as well as the initial approval
or denial of permits.
The final rule approach for the section 404 State program
regulations effectuates EPA's policy interest in deferring to State
administration of authorized section 404 programs in the same way that
EPA defers to State administration of section 402 programs. See 61 FR
20974 (May 8, 1996). EPA supports State assumption of the section 404
program and is just as committed to ensuring robust opportunity for
citizen participation in that program. In authorizing State programs to
act in lieu of the Federal Government, EPA must ensure that the
implementation of the State program will be procedurally fair and
consistent with the intent of the CWA. This rule provides additional
assurance of State program adequacy and fairness by ensuring
opportunities for judicial review.
In the proposed rule, EPA stated that the judicial review
requirement did not apply to Tribes and did not include any requirement
relevant to Tribes in the regulatory text. The preamble to the proposed
rule explained that Tribes would need to provide appropriate recourse
for citizens seeking to challenge Tribal permitting actions. One
commenter requested clarity on the type of recourse Tribes would need
to provide. A few commenters raised concerns that EPA was arbitrarily
treating Tribes differently from States. These commenters stated that
EPA's concern that requiring Tribes to waive sovereign immunity to
judicial review of permitting decisions would disincentivize Tribal
assumption applies equally to States. One commenter argued that
disappointed permittees or other affected persons would have no
recourse from unlawful permitting actions on the part of assuming
Tribes if EPA did not require some form of recourse.
In response to these commenters, EPA is codifying the requirement
that Tribes must provide a commensurate level of citizen recourse to
the judicial review opportunities States must provide for those seeking
to challenge permitting actions. Consistent with the requirement
applicable to States, it should be sufficient to provide for,
encourage, and assist public participation in the permitting process.
EPA is not specifying precisely what form this recourse must take,
given the diverse forms that Tribal decision-making entities may take.
If a Tribe has a judicial system analogous to a State judiciary, the
Tribe must provide for judicial review of section 404 permits. If,
instead, a Tribe uses another type of decision-making entity to address
disputes, that entity must be able to hear permit challenges. Requiring
Tribes to provide for citizen recourse commensurate with the judicial
review opportunities required of States provides more clarity than the
proposal offered and ensures that persons affected by Tribal permitting
actions will have recourse.
EPA's decision not to specifically require all Tribal section 404
programs to provide for judicial review of Tribal permitting actions is
consistent with EPA's approach in the section 402 judicial review
provision that ``[t]his requirement does not apply to Indian Tribes''
as well as EPA's decision not to require Tribes to provide for judicial
review in the same manner as States for purposes of the Clean Air Act
Title V Operating Permits Program. See 40 CFR 123.30; Indian Tribes:
Air Quality Planning and Management, 63 FR 7254, 7261-62 (February 12,
1998); 40 CFR 49.4(p). While EPA does not, as a general matter, think
that Tribal procedures should be less rigorous with respect to public
participation than State procedures, a specific requirement that Tribes
provide judicial review as the sole option for citizen recourse would
raise issues regarding Federal Indian policy and law.
In promulgating the Clean Air Act Tribal rule, EPA recognized that
while many Tribes have distinct judicial systems analogous to State
judicial systems, some well-qualified Tribes may not have a distinct
judiciary and may use non-judicial mechanisms for citizen recourse. See
63 FR 7261-62 (February 12, 1998). EPA considered that requiring Tribes
to waive sovereign immunity to judicial review of permitting decisions
would be a significant disincentive to Tribes to assume the Clean Air
Act Title V program. See id. EPA recognizes the importance of
encouraging Tribal implementation of environmental programs and
avoiding creating unnecessary barriers to assumption. In this rule, EPA
seeks to strike a balance by ensuring that citizen recourse is
available in any approved Tribal section 404 program commensurate with
the judicial review opportunities required of State programs, while not
restricting qualified Tribes to a single judicial option that may not
fit existing Tribal governmental structures. EPA would consider whether
commensurate citizen recourse has been provided in the context of
reviewing Tribal program applications.
Finally, EPA encourages Tribes and States to establish an
administrative process for the review and appeal of permit decisions
pursuant to their approved section 404 programs and to describe any
such process in the program description. These procedures can conserve
resources on the part of permittees, stakeholders, and permitting
agencies, by resolving permitting disagreements without the need for
litigation in court. EPA is not requiring or prohibiting any specific
administrative review procedures, however, because the Agency
recognizes that existing Tribal and State administrative procedures may
differ across the country.
D. Compliance Evaluation and Enforcement
1. Overview and What the Agency Is Finalizing
The CWA provides for criminal liability based on simple negligence.
EPA has determined that the prior regulations describing the mens rea
applicable to Tribal and State programs at 40 CFR 123.27(a)(3)(ii) and
40 CFR 233.41(a)(3)(ii) do not clearly articulate the best
interpretation of the statute. After reviewing public comments, EPA is
revising its criminal enforcement requirements in 40 CFR 123.27 and 40
[[Page 103485]]
CFR 233.41 to provide that Tribes and States that administer the CWA
section 402 NPDES permitting program or the CWA section 404 dredged and
fill permitting program, or that seek approval to do so, are required
to authorize prosecution based on a mens rea, or criminal intent, of
any form of negligence, which may include gross negligence.
2. Summary of Final Rule Rationale and Public Comment
The prior regulations describing the mens rea applicable to Tribal
and State programs at 40 CFR 123.27(a)(3)(ii) and 40 CFR
233.41(a)(3)(ii) do not clearly articulate the best interpretation of
the statute. EPA interprets the CWA to authorize the approval of Tribal
or State section 402 or 404 programs that allow for prosecution based
on a mens rea of any form of negligence, including gross negligence.
These regulatory revisions more clearly articulate this interpretation.
These amendments provide clarity for Tribes and States that have
been approved to administer or seek to obtain EPA's approval to
administer their own section 402 or 404 programs under the CWA. EPA
anticipates that States that already administer these CWA programs will
not need to change their legal authority. Instead, these regulatory
clarifications will generally assure approved States that existing
negligence mens rea authorities comport with the mens rea applicable to
Tribal and State CWA sections 402 and 404 programs. Additionally, these
revisions provide those Tribes and States seeking to administer CWA
sections 402 and 404 programs with clarity regarding the legal
authorities required for approval by EPA.
a. Background
The CWA provides that Tribes and States seeking approval for a
permitting program under CWA section 402 or CWA section 404 must
demonstrate adequate authority ``[t]o abate violations of the permit or
the permit program, including civil and criminal penalties and other
ways and means of enforcement.'' 33 U.S.C. 1342(b)(7) and
1344(h)(1)(G). EPA's regulations currently provide that a Tribal or
State agency administering a program under CWA section 402 must provide
for criminal fines to be levied ``against any person who willfully or
negligently violates any applicable standards or limitations; any NPDES
permit condition; or any NPDES filing requirement.'' 40 CFR
123.27(a)(3)(ii). Similarly, pursuant to EPA's current regulations any
Tribal or State agency administering a section 404 program must have
authority to seek criminal fines against any person who ``willfully or
with criminal negligence discharges dredged or fill material without a
required permit or violates any permit condition issued in section 404
. . . .'' 40 CFR 233.41(a)(3)(ii).\42\
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\42\ Under the section 402 program, EPA's regulations provide
that ``[t]o the extent that an Indian Tribe is precluded from
asserting criminal enforcement authority as required under Sec.
123.27, the Federal Government will exercise primary criminal
enforcement responsibility. The Tribe, with the EPA Region, shall
develop a procedure by which the Tribal agency will refer potential
criminal violations to the Regional Administrator, as agreed to by
the parties, in an appropriate and timely manner. This procedure
shall encompass all circumstances in which the Tribe is incapable of
exercising the enforcement requirements of Sec. 123.27. This
agreement shall be incorporated into a joint or separate Memorandum
of Agreement with the EPA Region, as appropriate.'' 40 CFR 123.34.
The section 404 regulations contain a nearly identical provision at
40 CFR 233.41(f).
---------------------------------------------------------------------------
The regulations implementing both statutory programs also provide
that the ``burden of proof and degree of knowledge or intent required
under State law for establishing violations under paragraph (a)(3) of
this section, shall be no greater than the burden of proof or degree of
knowledge or intent EPA must bear when it brings an action under the
Act.'' 40 CFR 123.27(b)(2); 40 CFR 233.41(b)(2). The implementing
regulations for CWA section 402 include a note, not present in the CWA
section 404 implementing regulations, which states, ``[f]or example,
this requirement is not met if State law includes mental state as an
element of proof for civil violations.'' 40 CFR 123.27(b)(2).
In contrast to the statutory language of CWA sections 402 and 404,
section 309(c), the general criminal enforcement section of the CWA
specifically authorizes misdemeanor criminal liability for violations
of federally issued or State-issued section 402 and 404 permits in
subsection (c)(1) and a range of penalties for ``[n]egligent
violations'' of specified provisions. It also authorizes felony
liability and a higher range of penalties for ``knowing violations'' of
the CWA in subsection (c)(2). Beginning in 1999, four Federal courts of
appeal determined that criminal negligence under CWA section 309(c)(1)
is ``ordinary negligence'' rather than gross negligence or any other
form of negligence. U.S. v. Hanousek, 176 F.3d 1116, 1121 (9th Cir.
1999); U.S. v. Ortiz, 427 F.3d 1278, 1282 (10th Cir. 2005); U.S. v.
Pruett, 681 F.3d 232, 242 (5th Cir. 2012); U.S. v. Maury, 695 F.3d 227,
259 (3d Cir. 2012).\43\ These courts did not address whether this
provision implicates Tribal or State programs administering CWA section
402 or 404 programs.
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\43\ Simple negligence is a failure to use care as a reasonably
prudent and careful person would use under similar circumstances. As
relevant here, it is used interchangeably with ``ordinary
negligence.'' See, e.g., U.S. v. Maury, 695 F.3d 227, 260 (``we are
now confronted with a slowly expanding body of law from our sister
circuits which indicates that simple or ordinary negligence may be
the appropriate standard of mens rea under Sec. 1319(c)(1).'')
Gross negligence is sometimes defined as the extreme indifference to
or reckless disregard for the safety of others.
---------------------------------------------------------------------------
On September 10, 2020, the Ninth Circuit Court of Appeals issued an
unpublished decision that granted in part and denied in part a petition
by the Idaho Conservation League for review of EPA's approval of
Idaho's NPDES permitting program. Idaho Conservation League v. U.S.
EPA, 820 Fed. Appx. 627 (9th Cir. 2020). The League challenged EPA's
approval of Idaho's program in part on the grounds that Idaho lacks
authority to bring enforcement actions based on a simple negligence
mens rea, which the League alleged EPA's regulations require. Relying
on the Ninth Circuit case law noted above, which holds that EPA's
criminal enforcement actions are subject to a simple negligence
standard, the court determined that EPA violated its regulations in
approving a program authorizing a mens rea of gross negligence because
it is `` `greater than the burden of proof or degree of knowledge or
intent EPA must provide when it brings an action . . .' 40 CFR
123.27(b)(2).'' While the court recognized that ``a State program need
not mirror the burden of proof and degree of knowledge or intent EPA
must meet to bring an enforcement action,'' citing EPA's Consolidated
Permit Regulations, 45 FR 33290, 33382 (May 19, 1980), the court
nevertheless held that EPA's current regulations at 40 CFR 123.27(b)(2)
require a ``state plan to employ a mens rea standard `no greater than'
simple negligence, such as strict liability or simple negligence.''
Idaho Conservation League, 820 Fed. Appx. at 628.
b. Statutory and Regulatory Framework
The general enforcement provisions of the CWA section 309(c)(1), 33
U.S.C. 1319(c)(1), as interpreted by the courts, authorize criminal
prosecutions of violations of section 402 and 404 permits committed
with a simple negligence mens rea. However, the CWA does not state that
Tribal or State section 402 or 404 programs must demonstrate such
authority as a criterion for program approval to Tribal or State. The
CWA provides a list of the authorities Tribes and States must have in
order to qualify for section 402 or 404
[[Page 103486]]
program approval, respectively, and authority to prosecute criminal
violations committed with a simple negligence mens rea is not on either
list. Rather, with respect to enforcement authorities, the CWA requires
that EPA ``shall approve'' a Tribe or State's submission to administer
a section 402 or 404 program if it demonstrates that it has authority
to ``abate violations of the permit or the permit program, including
civil and criminal penalties and other ways and means of enforcement.''
33 U.S.C. 1342(b)(7); 1344(h)(1)(G). For the reasons described herein,
EPA has concluded that the best reading of these statutory provisions
is that they do not establish specific mens rea requirements for Tribal
and State section 404 programs.
In addressing the criminal enforcement requirements for State
programs, Congress did not require Tribes and States to have identical
enforcement authority to EPA's. Congress did not use the words ``all
applicable,'' ``same,'' or any phrase specific to any mens rea
standard, let alone the Federal standard, as it did in other parts of
CWA sections 404(h) or 402(b). See 33 U.S.C. 1344(h), 1342(b). When
``Congress includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally presumed
that Congress acts intentionally and purposely in the disparate
inclusion or exclusion.'' Sebelius v. Cloer, 569 U.S. 369, 378 (2013)
(internal quotations omitted). In contrast to the broad authority that
CWA sections 404(h)(1)(G) and 402(b)(7) provide to determine whether
Tribes and States have demonstrated adequate authority to abate
violations, other aspects of Tribal and State programs are explicitly
required to have authority that is equivalent to or more stringent than
EPA's authority.
For example, States must have the authority ``[t]o inspect,
monitor, enter, and require reports to at least the same extent as
required in section 1318 of this title.'' 33 U.S.C. 1344(h)(1)(B);
1342(b)(2)(B). Similarly, CWA section 404(h)(1)(B) requires Tribe- or
State-issued permits to ``apply, and assure compliance with, any
applicable requirements of this section, including, but not limited to,
the guidelines established under subsection (b)(1) of this section, and
sections 1317 and 1343 of this title.'' 33 U.S.C. 1344(h)(1)(A)(i); and
CWA section 402(b)(1)(A) requires Tribes and States to issue permits in
compliance with ``sections 1311, 1312, 1316, 1317, and 1343 of this
title.'' 33 U.S.C. 1342(b)(1)(A). By contrast, the more general
language used to require Tribes and States to demonstrate adequate
authority to abate violations indicates that Congress intended to allow
for some flexibility in EPA's ability to approve Tribal and State
approaches to certain aspects of criminal enforcement. See 33 U.S.C.
1342 (b)(7). EPA proposed to clarify that CWA sections 402 and 404
allow for approved Tribal and State programs to have a somewhat
different approach to criminal enforcement than the Federal
Government's approach, namely, that Tribal and State programs do not
need authority to prosecute based on a simple negligence mens rea.
However, the proposed approach required that Tribes and States be able
to implement the text of section 309(c), requiring authority to
prosecute crimes committed with some form of negligence.
Some commenters on the proposed rule agreed with EPA's
interpretation of the statute. Other commenters disagreed, arguing that
the simple negligence criminal prosecution authority in CWA section
309(c) applies to Tribal and State programs. These commenters stated
that CWA section 309(c) establishes misdemeanor criminal liability for
anyone who violates a CWA section 402 or 404 permit issued by EPA or a
State with a mens rea of simple negligence. According to the
commenters, nothing in CWA section 309 limits this authority to EPA as
opposed to State programs.
EPA disagrees with commenters' arguments that the CWA does not
authorize EPA to approve Tribal or State programs that lack authority
to prosecute criminal violations committed with a simple negligence
mens rea. While EPA acknowledges that CWA section 309(c)(1) does
mention negligent violations of State permits, that provision provides
authority for Federal prosecutions, including enforcement of State
permit requirements; it does not require or address State or Tribal
enforcement programs or the standard for approval or assumption for
Tribal and State programs. Moreover, when section 309(c)(1) is read
alongside sections 402(b) and 404(h)(1), which set forth the
requirements for Tribal and State programs, the more specific Tribal
and State requirements in sections 402(b) and 404(h)(1) prevail over
the CWA's general enforcement provision in section 309(c). See RadLAX
Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012)
(``[I]t is a commonplace of statutory construction that the specific
governs the general.'') (internal citations omitted.) As described
above, the general language used to describe the criminal enforcement
authorities Tribe and States must have indicates Congressional intent
to allow greater flexibility for Tribes and States in the criminal
enforcement context than they have, for example, in permitting and
inspections. This provides appropriate ``respect'' for ``state autonomy
in the criminal sector.'' NRDC v. U.S. EPA, 859 F.2d 156, 180-181 (D.C.
Cir. 1988).
Some commenters argued that executive branch agencies may not
modify criminal intent standards absent express Congressional
authorization. Modifying Congressionally authorized criminal liability
standards, in the commenters' view, is not a power left to the
executive branch. EPA disagrees with the premise of this comment; as
discussed above, Congress did not mandate that Tribes and States have
authority to prosecute criminal violations committed with a simple
negligence mens rea, so this rule does not modify Congressionally
established standards, which continue to apply to Federal enforcement.
EPA's interpretation that it has the flexibility to approve Tribal
or State programs with the authority to prosecute violations committed
with a mens rea of any form of negligence is consistent with case law.
In NRDC v. U.S. EPA, the petitioner challenged the validity of 40 CFR
123.27(a)(3) on the theory that it did not require States to have the
same maximum criminal penalties as the Federal program. 859 F.2d 156
(D.C. Cir. 1988). The court reasoned that the petitioner's argument
involved a ``logical infirmity'' because it ``presume[d] an unexpressed
congressional intent that state requirements must mirror the Federal
ones,'' which is ``inconsistent with the elements of the statutory
scheme limiting operation of the provisions to enforcement efforts at
the national level and explicitly empowering the Administrator to set
the prerequisites for state plans.'' Id. at 180 (discussing 33 U.S.C.
1314(i)(2)(C)). The D.C. Circuit recognized EPA's ``broad [ ]
discretion to respect state autonomy in the criminal sector'' and that
the regulations ``reflect the balancing of uniformity and state
autonomy contemplated by the Act.'' Id. at 180-81. The court declined
to ``disturb this `reasonable accommodation of manifestly competing
interests,' '' and upheld the agency's penalty regulations. Id. at 181
(internal citations omitted).
EPA's interpretation is also consistent with the Ninth Circuit's
decision in Akiak Native Community v. EPA, where that court declined to
require that States have authority to impose administrative penalties
identical to Federal authority. See Akiak Native Community, 625 F.3d
[[Page 103487]]
1162, 1171-72 (9th Cir. 2010). In that case, the petitioner argued that
the State of Alaska did not have adequate authority to abate violations
because the State had to initiate a legal proceeding to assess civil
penalties, whereas EPA could do so administratively. Id. at 1171. The
Court held that because ``[t]here is no requirement in the CWA . . .
that state officials have the authority to impose an administrative
penalty'' and ``[t]he language of the statute says nothing about
administrative penalties,'' ``there is no reason to conclude that
Alaska lacks adequate enforcement authorities.'' Id. 1171-72.
Some commenters argued that the NRDC and Akiak Native Comm'ty cases
are inapposite. Because the NRDC case involved penalties and Akiak
Native Comm'ty was about enforcement mechanisms, they argue neither of
these cases bears on criminal intent standards. Commenters also stated
that NRDC is distinguishable because the court relied on an express
Congressional amendment authorizing EPA to allow for certain Tribal and
State program departures from CWA statutory civil enforcement monetary
penalties, and the CWA contains no such amendment regarding mens rea.
In their view, the absence of a similar Congressional authorization for
the Administrator to depart from criminal liability standards
applicable to Tribal and State programs shows that Congress did not
grant the Administrator such authority.
Commenters also noted that NRDC decision ignored CWA section
402(a)(3), which provides that EPA's permit program ``shall be subject
to the same terms, conditions, and requirements as apply to a State
permit program and permits issued thereunder under subsection (b) of
this section.'' 33 U.S.C. 1342(a)(3). These commenters view this
language as prohibiting Tribes or States from implementing a program
that is any less stringent than a federally run program, including a
program lacking authority to prosecute criminal violations committed
with a simple negligence mens rea. Commenters state that the fact that
neither the plaintiffs in that case nor D.C. Circuit considered section
402(a)(3) renders the NRDC precedent less persuasive.
Finally, commenters stated that the court in NRDC emphasized the
importance of State programs being ``administered in such a manner that
. . . [approval will] provide a much more effective program'' than the
Federal Government would otherwise administer. 859 F.2d at 175.
Commenters emphasized that this language reflects the court's view that
Congress wanted to create more protective State programs.
EPA disagrees with the commenters stating that NRDC and Akiak
Native Comm'ty do not support the Agency's view of its authority. These
cases hold that EPA may approve State programs if these programs lack
certain enforcement authorities that the CWA provides to EPA; this
precedent is highly germane to these revisions, even if the precise
authorities at issue in those cases were not criminal intent standards.
EPA also disagrees that NRDC is distinguishable because it did not
address CWA section 402(a)(3). The fact that neither the plaintiffs nor
the court addressed section 402(a)(3) may merely indicate that they did
not find that provision relevant. Nor does EPA. Section 402(a)(3)
applies to the terms, conditions, requirements, and permits of a State
permit program; the criminal negligence mens rea that States are
authorized to prosecute is none of these. Section 402(a)(3) is most
clearly read to address the permitting process, not the state of mind
of criminal violators. Moreover, clearly this provision would not
implicate section 404 permits.
As to the 1987 amendments to the CWA, which noted that Tribal and
State programs do not need to have the same maximum allowable penalty
amount as EPA (see Water Quality Act of 1987, Title III, Sec.
313(b)(2), Public Law 100-4, 101 Stat. 45), the D.C. Circuit in NRDC
characterized the amendment as simply ``confirmation of the broad
authority the Administrator already enjoyed in crafting state program
requirements.'' NRDC, 859 F. 2d at 180 (emphasis added). In other
words, this amendment is additional evidence in support of the Court's
interpretation of the statutory structure that, regardless of the
amendment, allows EPA certain flexibility in determining which of its
criminal enforcement authorities Tribes and States must adopt if they
wish to administer CWA permitting programs.
Finally, EPA agrees with commenters and the D.C. Circuit in NRDC
about the importance of effective and protective State programs. In
this rule EPA is maintaining and strengthening many provisions to help
achieve this goal. Specifically with respect to criminal enforcement,
EPA views the other requirements for Tribal and State enforcement
authority in 40 CFR 123.26, 123.27 and 233.41 as sufficient to ensure
that Tribes and States operate compliance and enforcement programs that
satisfy the language and purpose of CWA 402(b)(7) and 404(h)(1)(G) to
``abate violations of the permit or the permit program, including civil
and criminal penalties and other ways and means of enforcement.'' These
other provisions require, among other things, that a Tribe or State
must maintain a program designed to identify persons subject to
regulation who have failed to obtain a permit or to comply with permit
conditions, engage in inspections and information gathering, and have
the authority to sue to enjoin or seek penalties for violations of
sections 402 and 404. As discussed in section IV.B.3 of this preamble,
EPA's modifications to program assumption requirements would further
buttress the requirements of 40 CFR 233.41.
EPA has previously argued that Tribes and States do not need
authority to prosecute criminal violations based on a simple negligence
mens rea, including in Idaho Conservation League. Yet to the extent
EPA's interpretation is viewed as different from any earlier
interpretations of CWA sections 402 and 404 and implementing
regulations, EPA has ample authority to change its interpretation to
adopt the best reading of the statute. See Encino Motorcars, LLC v.
Navarro, 136 S. Ct. 2117, 2125 (2016) (``[A]gencies are free to change
their existing policies as long as they provide a reasoned explanation
for the change.'') (citations omitted).
Though under this rule EPA is not requiring Tribes or States to
have the same criminal intent standard that courts have interpreted EPA
to have, the Tribal or State standard would still be based on the term
``negligence'' in the text of CWA section 309(c). Allowing Tribes or
States flexibility in the degree of negligence for which they are
authorized to bring criminal cases balances the CWA's priorities of
allowing for Tribal or State autonomy with adherence to the purposes of
the Act. As noted above, neither CWA section 402(b)(7) nor CWA section
404(h)(1)(G) requires States to abate violations in the same manner as
required under CWA section 309(c). The absence of any citation to CWA
section 309(c) in CWA sections 402(b) and 404(h) indicates that some
degree of variability may be permitted between Federal and Tribal or
State approaches to criminal enforcement.
This variability does not detract from the obligation for Tribes
and States to operate meaningful programs to abate permit program
violations, including through penalties and other ways and means of
criminal enforcement, and consistent with the regulatory requirements
for Tribal and State criminal enforcement authority. See 33 U.S.C.
1342(b)(7), 1344(h)(1)(G); 40 CFR 233.41. Furthermore, Tribes and
States may certainly continue to authorize criminal prosecutions based
on a simple
[[Page 103488]]
negligence mens rea. Tribes or States with that authority may describe
it in their program submissions to demonstrate the adequacy of their
criminal enforcement programs.
This regulatory clarification reflects EPA's experience in
approving and overseeing CWA State programs for over thirty years. Many
States administering or seeking to administer the programs do not
currently have authority to prosecute based on a simple negligence mens
rea, and indeed, they may have statutory or other legal barriers to
such standards. EPA is unaware of any concrete evidence indicating that
the absence of a simple negligence mens rea for criminal violations has
served as a bar to effective State criminal enforcement programs, and
the requirement to have such a standard could dissuade Tribes and
States from seeking to administer these programs in the future or
potentially motivate States to return their approved programs to EPA.
Clarifying that Tribes and States do not need authority to prosecute
based on a simple negligence mens rea in their criminal enforcement
programs therefore advances the purposes of CWA sections 402(b) and
404(g) to balance the need for uniformity with Tribal and State
autonomy, see NRDC, 859 F.2d at 181 (D.C. Cir. 1988), and to encourage
Tribes and States to seek to administer the CWA section 402 or 404
programs consistent with section 101(b) of the statute.
This rule does not change the standard applicable to EPA's criminal
enforcement of the CWA. Under CWA section 309, EPA retains its civil
and criminal enforcement authority, including where Tribes and States
administer permit programs. Notwithstanding Tribe or State mens rea
authorities, Federal prosecutions are governed by the mens rea
standards that Congress wrote into the statute in 1987, including that
misdemeanor penalties apply to violations resulting from simple
negligence and that felony penalties apply to violations resulting from
knowing conduct.
Consistent with the CWA's requirement that Tribes and States
administering CWA sections 402 or 404 permitting programs have the
authority to abate civil and criminal violations, EPA is adding
language to 40 CFR 123.27(a) and 233.41(a)(3) indicating that Tribes
and States must have the authority to ``establish violations,'' as well
as ``to assess or sue to recover civil penalties and to seek criminal
penalties,'' which these provisions already state. This new language
simply confirms EPA's interpretation of the effect of its current
regulations. EPA is also removing the term ``appropriate'' from the
current references to the degree of knowledge or intent necessary to
provide when bringing an action under the ``appropriate Act'' from the
CWA sections 402 and 404 regulations, as these regulations only refer
to actions under the CWA and no other statute. Therefore, the term
``appropriate'' is unnecessary. Finally, in 40 CFR 123.27(a)(3) and
233.41(a)(3), which currently require Tribes and States to have the
authority to assess or sue to recover ``civil penalties and to seek
criminal remedies,'' EPA is replacing the word ``remedies'' with
``penalties,'' as ``penalties'' is a more precise description of the
type of relief sought in criminal enforcement actions. None of the
changes described in this paragraph are intended to change the
substantive effect of the regulations.
E. Federal Oversight
1. Dispute Resolution
a. Overview and What the Agency Is Finalizing
The Agency recognizes that Tribes or States seeking to assume
administration of the section 404 permitting program may encounter
disputes or disagreements when developing a program or administering an
approved section 404 program. For example, Tribes and States could
encounter disputes with permittees or other affected parties regarding
permitting decisions, as well as disagreements with Federal agencies
that could arise in the assumption process or program implementation
concerning issues such as the appropriate permitting authority or
conditions to avoid or minimize impacts to historic properties,
threatened or endangered species, or critical habitat. Specifically,
such disputes may occur during the development of the retained waters
description, development of a transfer plan for permits currently under
review by the Corps, through efforts to address endangered species and
historic properties during permit review, and in determining whether a
discharge affects another State, as well as in other situations.
However, while the prior regulations provided several mechanisms for
resolving certain types of disagreements (e.g., addressing EPA's
comments, conditions, or objections to potential Tribal or State
permits), the prior regulations did not provide a general dispute
resolution mechanism or clarify EPA's role in such disputes. Several
Tribes and States have requested that EPA help resolve disputes
encountered between themselves and other States, Tribes, or the Federal
Government.
The Agency proposed to add a general provision to the purpose and
scope section at section 233.1 that would clarify EPA's role in
facilitating the resolution of potential disputes between the Federal
agencies and the Tribe or State seeking to assume and/or administer a
section 404 program. 88 FR 55323. The proposed rule would also provide
for resolution or elevation procedures to be specifically articulated
in the Tribal or State Memoranda of Agreement or on a case-by-case
basis. The provision reaffirms, however, that any dispute resolution or
elevation process described in the regulations or in the Tribal or
State Memoranda of Agreement must be followed. After reviewing public
comments, the Agency is finalizing the dispute resolution provision as
proposed at section 233.1(f).
b. Summary of Final Rule Rationale and Public Comment.
The Agency sees facilitating resolution of disputes as critical to
establishing and sustaining viable Tribal and State section 404
permitting programs. EPA's engagement as a third party in such
discussions can help to resolve impasses and ensure the program is
administered consistent with CWA requirements. In this rule, EPA seeks
to elucidate its role in resolving such disputes. Rather than attempt
to articulate in the regulations all potential areas where a dispute
may arise, EPA is adding a general provision to section 233.1 to affirm
that EPA may facilitate resolution to potential disputes between the
Tribe or State and Federal agencies and provide for resolution or
elevation procedures to be specifically articulated in the Tribal or
State Memoranda of Agreement or resolved on a case-by-case basis
through discussions convened by EPA. EPA views this clarification as
consistent with its program approval and oversight authority in CWA
sections 404(h)-(j).
Commenters generally supported this clarification of EPA's role in
assisting in the resolution of disputes. Some commenters raised
concerns that EPA does not articulate any specific ``mechanism or final
authority,'' and asked that EPA articulate specific procedures to be
included in the Memorandum of Agreement. Another commenter generally
encouraged flexibility. One commenter objected to the proposal, arguing
that it is not needed. After reviewing public comments, EPA is
finalizing the general dispute resolution as proposed, as it provides
requested clarity on EPA's role
[[Page 103489]]
while maintaining flexibility in the form such assistance may take. EPA
is declining to define a specific mechanism or procedures for dispute
resolution to accommodate differing Tribal and State program structures
and account for the individual circumstances and complexities of a
potential disagreement.
Flexibility is also important in light of the various scenarios in
which EPA may help facilitate resolution of disputes that may arise
between a Tribe or State and other Tribes or States or Federal agencies
as they seek to assume and administer a section 404 permit program. For
example, EPA may assist in resolving issues raised about the scope of
retained waters or situations where the Tribe or State may disagree
with the Corps about whether a proposed project would result in
discharges to assumed or retained waters. As EPA is responsible for
approving the jurisdictional scope of a Tribal or State section 404
program, EPA can help resolve such disputes. Potential disagreements
could also arise in other aspects of section 404 programs, including
proper approaches to joint project permitting, administration of a
compensatory mitigation program (such as mitigation banking or in-lieu
fee programs), the determination as to whether a particular permit
application implicates a discharge into waters of the United States,
and program conditions to avoid or minimize impacts to threatened or
endangered federally listed species or historic properties.
Nothing in this new dispute resolution provision alters existing
provisions addressing the Agency's review of and objection to State
permits located at section 233.50. Congress authorized EPA to serve an
oversight role for Tribal and State section 404 programs. EPA's
authority encompasses the coordination of Federal comments on draft
Tribal or State-issued permits and the ability to review, comment on,
or object to these draft permits. 40 CFR 233.50. In this role, EPA, as
a practical matter, works to resolve differences between Tribes or
States and Federal agencies, particularly when reviewing draft permits.
The regulations also establish processes whereby a Tribe or State may
address EPA's comments, conditions, or objections to potential Tribal
or State permits. Id.
2. Withdrawal Provisions
a. Overview and What the Agency Is Finalizing
Section 404(i) provides for EPA to withdraw assumed programs that
are not administered in accordance with the requirements of the Act. 33
U.S.C. 1344(i). The prior regulations, promulgated in 1992, set out a
formal adjudicatory process for the withdrawal proceedings. The Agency
proposed to simplify the process used by the Agency when withdrawing an
assumed section 404 program from a previously authorized Tribe or
State. 88 FR 55310. The proposed process at section 233.53 provided
that if the Regional Administrator finds that a Tribe or State is not
administering the assumed program consistent with the requirements of
the CWA and 40 CFR part 233, then the Regional Administrator shall
inform the Tribe or State as to the alleged noncompliance and give the
Tribe or State 30 days to demonstrate compliance. If compliance is
demonstrated within those 30 days, then the Regional Administrator will
so notify the Tribe or State and take no further action. If the Tribe
or State fails to adequately demonstrate compliance within 30 days, the
EPA Administrator will schedule a public hearing to discuss withdrawal
of the Tribal or State program. Notice of the hearing will be widely
disseminated and will identify the Administrator's concerns. The
hearing will be held no less than 30 days and no more than 60 days
after publication of the notice of the hearing and all interested
parties will have the opportunity to make written or oral
presentations. If, after the hearing, the Administrator finds that the
Tribe or State is not in compliance, the Administrator will notify the
Tribe or State of the specific deficiencies in the Tribal or State
program and the necessary remedial actions. The Tribe or State will
have 90 days to carry out the required remedial actions to return to
compliance or the Administrator will withdraw program approval. If the
Tribe or State completes the remedial action within the allotted time,
or EPA concludes after the hearing that the Tribe or State is in
compliance, the Tribe or State will be notified and the withdrawal
proceeding concluded. Where the Administrator determines that the
assumed program should be withdrawn, that decision will be published in
the Federal Register, the Corps will resume permit decision-making
under section 404 in all waters of the United States in the affected
Tribe or State, and any provision in the CFR addressing that Tribe's or
State's assumption will be rescinded.
After reviewing public comments, the Agency is finalizing the
approach as proposed, with one revision to require EPA to decide
whether to proceed with withdrawal within 90 days after the conclusion
of the hearing process. This final rule approach replaces the
adjudicatory hearing process with a public notice and hearing process
modeled on the procedures for withdrawal of the Underground Injection
Control program as discussed below.
b. Summary of Final Rule Rationale and Public Comments
The previous section 404 Tribal and State program regulations,
promulgated in 1992, set out a formal adjudicatory process for the
withdrawal proceedings. This formal adjudication process is not
required by the statute and its length and complexity impose an
unnecessary resource burden and other challenges for the Agency, Tribes
and States, and stakeholders. The Agency proposed a streamlined process
that is both easier to understand and to administer and encourages
participation by interested parties. The process is modeled on the
withdrawal procedures for Tribal and State Underground Injection
Control programs at 40 CFR 145.34 and revised to accommodate the
requirements of section 404. EPA views the Underground Injection
Control program's approach as more transparent and efficient than the
prior section 404 program withdrawal procedures.
EPA requested comments on all aspects of the revision. Multiple
commenters supported the proposed approach as providing a more
meaningful backstop to ensure that Tribal or State programs address
water pollution consistent with the requirements of section 404. Some
commenters opposed the proposed approach, stating that the text of the
statute indicates that Congress supports State assumption and intended
withdrawal to be an extended adjudicatory process providing maximum due
process to the State. These commenters expressed concern that an ``easy
out'' would undermine the stability of program approval and could lead
to economic waste of the substantial investments States make in their
programs. These commenters also noted that a streamlined withdrawal
process could disincentivize Tribal and State assumption generally.
EPA has decided to finalize the proposed approach. As commenters in
support of the proposed revision noted, the final rule allows EPA to
respond quickly where there are concerns regarding Tribal or State
compliance with the assumed program. By eliminating the adjudicatory
requirements, it allows both EPA and the Tribe or State to focus on the
[[Page 103490]]
substantive requirements of the program. In response to commenters'
concerns, the substantive requirements of the final rule are comparable
to the prior one but will enhance efficiency of the withdrawal process
and better align with EPA's section 404 program approval procedures.
Nothing in the CWA requires the Agency to maintain inefficient and
burdensome procedures for their own sake. Enhancing administrability
does not mean that EPA intends to take program withdrawal lightly, and
EPA's experience with both CWA and Underground Injection Control
programs reflects that this process has been carefully and rarely used.
Consistent with EPA's longstanding practice, the Agency will first seek
to resolve program concerns and help enable Tribes and States to
administer the section 404 program consistent with the requirements of
the CWA and its implementing regulations. EPA is committed to working
with Tribes and States through mechanisms such as annual program report
reviews, informal program reviews, and formal program reviews to
identify program challenges and recommended steps for resolution.
Several commenters asked that EPA add a deadline by which time EPA
must decide whether to proceed with withdrawal after the conclusion of
the hearing process. These commenters suggested a deadline of no more
than 60 days. EPA considered this suggestion and concluded that a
deadline for decision would add predictability to the withdrawal
process and avoid leaving the relevant Tribe or State and stakeholders
in a lengthy state of uncertainty as to whether the Tribe or State will
continue to administer the program. However, EPA decided to provide the
Agency 90 days to make this decision, rather than 60 days, to allow
sufficient time for consideration of concerns raised and the Tribe or
State's capacity to address these concerns. The final rule therefore
provides for a 90-day mandatory time frame for EPA to make its decision
after the conclusion of the hearing process.
3. Program Reporting
a. Overview and What the Agency Is Finalizing
EPA's prior section 404 Tribal and State program regulations
require the Tribe or State to provide a self-assessment in an annual
report, which must include, among other information, ``an assessment of
the cumulative impacts of the State's permit program on the integrity
of the State regulated waters'' and numbers of permits issued and
enforcement actions taken. 40 CFR 233.52(b) (2023). The annual report
is meant to provide a robust overview of the Tribe's or State's program
and implementation and support continuous improvement such that EPA can
ensure the program remains consistent with the Act and these
regulations. However, some of the self-assessment requirements for the
annual report in the prior regulation lacked the necessary details for
a Tribe or State to know EPA's expectations for the annual report.
EPA proposed several revisions at section 233.52(b) to clarify
information not previously explicitly required, including specific
metrics about compensatory mitigation, program resources and staffing,
and a discussion as to how issues identified in the previous annual
report or other problems the program has encountered have been
resolved. 88 FR 55311. Additionally, the Agency proposed to add the
word ``final'' between ``Regional Administrator's'' and ``comments'' in
40 CFR 233.52(e) to acknowledge that some discussion may occur between
the Tribe or State and EPA as the annual report is being finalized.
Finally, the Agency also proposed to require that the Director make the
final annual report publicly available. After reviewing public
comments, the Agency is finalizing these revisions as proposed, with
one non-substantive revision to replace ``as well as'' with ``and'' in
the series of items the State must evaluate in the draft annual report
located at section 233.52(b).
b. Summary of Final Rule Rationale and Public Comment
EPA requested comment on all aspects of the proposed revision to
the annual report requirements. EPA received few comments on this
provision. The majority of comments were general in nature, expressing
support for the added clarity in the proposal. One commenter opposed
the additional requirements, stating that they would increase the
burden on States to assume and implement the program. EPA considered
these comments and has decided to finalize the regulatory text as
proposed, because it adds clarity to what Tribes and States are
expected to provide, giving them clear expectations for the annual
report and reducing the need for follow-up questions from the Agency as
it conducts its program oversight. EPA therefore thinks the revisions
will assist Tribes and States, rather than burdening them.
A few commenters requested that EPA require additional reporting
about the costs of administering the program and litigation involving
the Tribal or State program. The Agency finds that the proposed
requirement to document ``resources and staffing'' will be sufficient
to provide information EPA needs about program budgets. In addition,
EPA decided that it does not need a litigation update in order to
fulfill its oversight obligations; information already required about
unauthorized activities and enforcement actions taken should, as a
general matter, provide the litigation-related information most
relevant to EPA's oversight. To the extent EPA decides that it needs
litigation information on a case-by-case basis, that information would
be easy to research or request of the Tribe or State. Thus, the Agency
finds it unnecessary to modify the proposed text in light of these
comments.
The final rule clarifies and updates the requirements for a Tribe's
or State's annual reporting by clarifying that it must identify
implementation challenges along with solutions to address the
challenges, that evaluations of the program components must include any
quantitative reporting, and that it must provide specific metrics
related to compensatory mitigation, resources, and staffing. EPA
expects these revisions will support a more streamlined process for the
State's annual report submittal, EPA's comments and approval, and the
State's final report publication. The clarifications will also ensure
transparency as to the state of Tribal and State programs and
facilitate annual discussions between the Tribe or State and EPA about
program implementation and challenges. For EPA, the revisions will
improve the Agency's ability to ensure that program operation is
consistent with the Act.
Existing programs may make minor revisions to address this change.
For example, the 2011 Memorandum of Agreement between Michigan and EPA
lists requirements of the annual reports, but the list does not
specifically include compensatory mitigation or resources and staffing,
which are included in the final regulatory text. The 2011 Michigan EPA
Memorandum of Agreement list does not preclude the State reporting
other information; however, the Memorandum of Agreement list could be
updated to reference section 233.52(b) or match the updated regulatory
text. The New Jersey and EPA Memorandum of Agreement includes annual
reporting requirements, but references section 233.52(b) rather than
listing the requirements, so it may not require distinct updates.
[[Page 103491]]
F. Eligible Indian Tribes
a. Overview and What the Agency Is Finalizing
Prior to issuing a permit, a Tribe or State with an approved
section 404 program must provide notice to another Tribe or State if a
proposed discharge may affect the biological, chemical, or physical
integrity of the other Tribal or State waters and provide an
opportunity for the Tribe or State to submit written comments and
suggest permit conditions. 40 CFR 233.31; see 33 U.S.C. 1344(h)(1)(C),
(E). If recommendations from the State whose waters may be affected are
not accepted by the Tribe or State issuing the permit, the Tribe or
State issuing the section 404 permit must notify the affected State and
EPA of its decision not to accept the recommendations and reasons for
doing so. 40 CFR 233.31(a); see 33 U.S.C. 1341(1)(E). EPA's regulation
at 40 CFR 233.2 defines the term ``State'' to include an Indian Tribe
which meets the eligibility requirements for a Tribe to assume the
section 404 program. Accordingly, these provisions could be read to
limit the coordination requirement in section 233.31 to only those
affected Tribes that meet the requirements for section 404 program
assumption. To date, no Tribe has applied for eligibility to assume the
section 404 program, and many Tribes lack the resources to assume the
program. However, nearly half of federally recognized Tribes have been
approved for TAS for other CWA provisions (i.e., TAS for CWA section
106, section 319, and sections 303(c) and 401) and may have relevant
water quality information that could inform the permitting decisions of
Tribes or States administering a section 404 program.
In the proposal, the Agency considered three ways to further
facilitate Tribal engagement in permitting decisions that may affect
Tribal resources. First, the Agency proposed to expand the
aforementioned coordination requirement to include affected Tribes that
have been approved by EPA for TAS for any CWA provision, as opposed to
only Tribes with TAS to assume the section 404 program. Second, the
Agency proposed a new TAS opportunity solely for the purpose of
receiving a heightened comment opportunity on section 404 permits
proposed by other Tribes or States that may affect the biological,
chemical, or physical integrity of their reservation waters. Finally,
the Agency proposed to provide an opportunity for Tribes to request EPA
review of permits that may affect Tribal rights or interests, even if
Federal review has been waived. After reviewing public comments, the
Agency is finalizing all three changes as proposed. These revisions are
consistent with EPA's authority under CWA sections 404 and 518, as well
as the Federal trust relationship and responsibilities to federally
recognized Tribes, the policies underlying CWA section 518, and EPA's
policies to facilitate Tribal opportunities to actively engage in
managing their waters and resources.
In addition to the approaches summarized above to facilitate Tribal
engagement in permitting decisions, EPA is also clarifying that when
Tribes seek to administer the program in areas where they have not
already assumed the section 404 program, Tribes must demonstrate that
they meet the TAS criteria for those additional areas. This is a non-
substantive clarification because subpart G already provides a process
whereby Tribes seeking to assume the section 404 program address the
TAS criteria, and this provision would simply clarify that the same TAS
application applies if Tribes seek to add a new area to their program.
b. Summary of Final Rule Rationale and Public Comment
i. Enabling Tribes With TAS for Any CWA Provision To Comment as an
Affected State
As discussed above, 40 CFR 233.31(a) currently affords specific
consideration of comments and suggested permit conditions on draft
permits by an affected State and provides an avenue of review if a
Tribe or State with an assumed program chooses not to accept the
suggested permit conditions. Under the current regulatory definition of
``State''--which includes Tribes that have obtained TAS for purposes of
assuming the section 404 program--no Tribes are presently eligible to
be considered an affected State, as no Tribes have yet obtained TAS
status for purposes of assuming the section 404 program.
Section 518 of the CWA authorizes EPA to treat eligible federally
recognized Tribes in a similar manner as a State for purposes of
implementing and managing various environmental functions under the
statute. The requirements for TAS are established in CWA section 518
and are reflected in EPA regulations for various CWA provisions.
Generally, the Tribes must be federally recognized, have a governing
body that carries out substantial governmental duties and powers, seek
to carry out functions pertaining to the management and protection of
reservation water resources, and be capable of carrying out the
functions of the particular provision at issue. 33 U.S.C. 1377(e). Of
the 574 federally recognized Tribes, over 285 have been granted TAS
status for one or more CWA provisions.\44\
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\44\ EPA maintains a website that lists all Tribes approved for
TAS, which is updated bi-annually. Tribes with TAS for regulatory
programs and administrative functions can be found at https://www.epa.gov/tribal/tribes-approved-treatment-state-tas; Tribes with
TAS for section 106 grants can be found at https://www.epa.gov/water-pollution-control-section-106-grants/tribal-grants-under-section-106-clean-water-act; Tribes with TAS for section 319 grants
can be found at https://www.epa.gov/nps/current-tribal-ss319-grant-information.
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The Agency proposed to revise the coordination requirements at
section 233.31 to expressly provide that Tribes that have already been
approved for TAS by EPA to administer any other CWA programs, such as a
water quality standards (WQS) program under CWA section 303(c), or have
been approved for TAS for any other CWA purpose, such as receiving
section 106 grants to establish and administer programs for the
prevention, reduction, and elimination of water pollution, should also
have the opportunity to comment on draft permits in the same manner as
affected States.
Most commenters supported effective coordination with Tribes on
permits that may affect Tribal aquatic resources. EPA agrees with these
commenters and finds this provision at 233.31 will enable more Tribes
whose waters may be affected by a dredge or fill project to comment on
permits to be issued by a Tribe or State in the same manner as other
affected States. A Tribe or State with an approved section 404 program
will also have to provide an opportunity for Tribes with TAS for any
CWA provision to submit written comments within the public comment
period and suggest permit conditions as provided in section 233.31(a)
of the regulations. As finalized, Tribes and States with an approved
section 404 program must consider comments from Tribes with TAS for any
CWA provision whose reservation waters may be affected by a proposed
discharge. If the recommendations are not accepted by the approved
Tribe or State program, the approved Tribe or State program would have
to notify the affected Tribe and EPA of its decision not to accept the
recommendations and its reasons for not doing so. EPA would then have
time to comment upon, object to, or make recommendations regarding the
Tribal concerns set forth in the original comment. This is the same
opportunity and process provided to affected States.
[[Page 103492]]
Some commenters asked EPA to codify specific timelines and
notification requirements to ensure such coordination occurs. EPA is
declining to mandate a specific process. Rather, EPA has determined
that individual Tribes and States should have the flexibility to
establish the procedures and coordination approaches that work best for
them. EPA encourages States to work together with Tribes whose
reservation waters may be affected by a proposed discharge prior to
proposal of the relevant permit. Such efforts will improve permitting,
protect interests, and build relationships. For example, existing State
section 404 programs are already coordinating with affected Tribes per
their Memorandum of Agreement with EPA.
Some commenters expressed concern that this provision creates a new
authority allowing for Tribes to engage in State permitting in a way
that could result in confusion, while another commenter suggested that
such opportunity be limited to Tribes with TAS for water quality
standards and section 401 certification. EPA disagrees with these
commenters. First, EPA disagrees that this provision will result in
confusion. Under CWA sections 404 and 518 and EPA's existing
regulations, Tribes were already afforded the enhanced opportunity to
provide comment as an affected State through the TAS process for
section 404. Second, EPA views any Tribe that has TAS status for any
CWA purpose as both capable of participating in matters that may affect
the chemical, physical, or biological integrity of reservation waters
through the enhanced opportunity for comment, and as an appropriate
entity to be afforded that opportunity. By receiving TAS for another
provision of the CWA, a Tribe has already demonstrated they have met
the TAS requirements as articulated in section 518 of the Act and that
they are engaged in water quality protection activities under the Act.
Accordingly, EPA concludes that Tribes that have already been approved
for TAS by EPA to administer other CWA program(s) are capable of
commenting on draft permits in the same manner as affected States and
are relevant entities to provide input regarding the potential effects
on their reservation waters of Tribal and State 404 permitting.
ii. Providing TAS Opportunity Specifically for the Ability To Comment
as an Affected State
EPA is finalizing as proposed a process whereby Tribes may apply
for TAS for the sole purpose of commenting on Tribe- or State-issued
CWA section 404 permits in the same manner as an affected State. Tribes
that obtain TAS for this purpose would benefit from the same
notification requirements that apply to any other commenting affected
``State.'' This rule enables Tribes that have neither assumed the
section 404 program nor have obtained TAS for other CWA programs to
obtain TAS solely to provide input on section 404 permits that may
affect their reservation waters.
This approach is similar to approaches taken in other EPA programs.
For example, the Agency's regulations under the Clean Air Act provide
opportunities for interested Tribes to seek TAS authorization for
distinct severable elements of programs under that statute. See 40 CFR
49.7(c). Under that authority, EPA has authorized TAS for the
procedural comment opportunity provided in connection with issuance of
certain permits by upwind permitting authorities, without requiring
those Tribes to seek authorization for the entire relevant program. See
42 U.S.C. 7661d(a)(2). Nothing in the language of section 404 precludes
creating this new TAS opportunity. This provision would relate solely
to the coordination requirements set forth in section 233.31(a). The
opportunity to provide comments and suggest permit conditions
established in CWA sections 404(h)(1)(C) and (E) and 40 CFR 233.31 do
not require any exercise of regulatory authority by the affected Tribe.
Due to the limited nature of TAS solely for purposes of commenting as
an affected State, EPA anticipates that the application burden on
interested Tribes would, in most circumstances, be minimal and that the
process for review of Tribal applications would be straightforward. As
with other TAS applications, interested Tribes would submit relevant
information demonstrating that they meet the TAS eligibility criteria
to the appropriate Regional Administrator, who would process the
application in a timely manner. Because, as described above, commenting
in the same manner as an affected State does not involve any exercise
of regulatory authority by the applicant Tribe, no issues regarding
Tribal regulatory authority should be raised or decided in this limited
TAS context. In this sense, TAS applications for this purpose would be
similar to TAS applications for the purpose of receiving grants, a
process that many Tribes have undergone and with which EPA has
substantial experience. Similarly, Tribes interested in this TAS
opportunity would need to demonstrate their capability solely for the
limited purpose of submitting comments as an affected Tribe. These
Tribes would not need to demonstrate capability to administer an
assumed section 404 program.
Many commenters supported this provision to fill gaps and
facilitate Tribal engagement in permitting that may affect their waters
within Indian Country. EPA agrees with these commenters and is
finalizing the process as proposed to eliminate unnecessary barriers to
Tribal engagement in the 404 process as contemplated by CWA section
518. Some commenters raised a concern that EPA lacks authority to
create new Tribal authorities. However, EPA is not creating a new
Tribal authority. The CWA and section 404 program regulations already
provide Tribes the ability to obtain TAS for the section 404 program
and to comment as an affected State. 33 U.S.C. 1377(e). As discussed
above, Tribes do not need to have the authorities and resources to
fully administer a section 404 program, including issuing permits and
enforcing violations, in order to comment as an affected State. Such a
requirement would be unnecessarily burdensome with no benefit to Tribes
or the environment. Thus, EPA is finalizing this provision to obtain
TAS for the sole purpose of commenting on Tribe or State issued section
404 permits.
One commenter suggested that specifically enabling Tribes to
request to review all permits within a specified geographic area,
including areas outside of reservation land, as the most efficient way
of ensuring Tribal engagement in the permit issuance process for areas
with cultural and ecological significance. Tribes are free to submit
such requests to the permitting authority, and EPA encourages Tribes
and States to provide for notifications of permitting in such areas
through mechanisms established in regulation, a Memorandum of
Understanding, or through the State Historic Preservation Officer and
Tribal Historic Preservation Office. EPA is not adding any regulatory
revisions on this point as such requests are most efficiently addressed
on a case-by-case basis.
Some commenters raised concerns that this provision would allow any
Tribe to comment on any permit issued by any State. As stated above,
any member of the public, including Tribes, may already comment on any
draft permit. This provision simply provides an additional mechanism
for eligible Tribes to engage in the same heightened comment process on
draft permits that is already available to States and to
[[Page 103493]]
Tribes that obtain TAS for the purpose of assuming the section 404
program. Tribes obtaining TAS for this limited purpose would be able to
comment in the same manner as affected States on only those permits
that may affect the biological, chemical, or physical integrity of the
Tribe's waters. Providing a mechanism to obtain TAS for this limited
commenting opportunity is consistent with CWA sections 404 and 518, as
well as the Federal trust responsibility to federally recognized Tribes
and EPA's various Tribal policies seeking to facilitate Tribal
opportunities to actively engage in managing their waters and resources
and to eliminate unnecessary barriers to such Tribal involvement.
Lastly, some commenters argued that this provision provides Tribes
with an opportunity to comment on permits that does not exist in the
Federal section 404 program. As discussed above, 40 CFR 233.31(a)
already afforded specific consideration of comments and suggested
permit conditions on draft permits by an affected State, which includes
Tribes that have obtained TAS for purposes of assuming the section 404
program. This final rule merely provides that Tribes may apply for TAS
for the sole purpose of commenting on Tribe- or State-issued CWA
section 404 permits in the same manner as an affected State. Moreover,
under the Corps' administration as well as Tribal or State program
administration, any entity may comment on any draft permit.
Some commenters asked EPA to conduct outreach to inform Tribes
about the opportunity to apply for TAS for the sole purpose of
commenting on 404 permits. EPA agrees that such outreach would be
useful and intends to work with Tribes and States to develop
implementation tools and conduct outreach informing Tribes, States, and
others about this rule, including the opportunity to apply for TAS to
comment on 404 permits.
iii. Opportunity for Tribes To Request EPA Review of Permits That May
Affect Tribal Rights or Interests
EPA is also revising section 233.51 to codify an opportunity for
Tribes to request EPA review of permits potentially affecting Tribal
rights or interests. These may include rights or interests both inside
and outside of a Tribe's reservation and would facilitate EPA's review
of permits that have the potential to impact waters of significance to
Tribes. The revisions to section 233.51 enable Tribes to request EPA's
review of permits that may affect both rights reserved through
treaties, statutes, or executive orders, as well as Tribal interests in
resources that may not be reflected in Federal law, such as those with
historical or cultural significance to Tribes. Section 233.51 applies
whenever a Tribe asserts that issuance of a particular permit
potentially affects its rights or resources; however, EPA's review of a
permit pursuant to section 233.51 would not constitute a recognition by
EPA that any particular Tribe holds reserved rights.\45\
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\45\ On May 2, 2024, EPA published a final rule entitled ``Water
Quality Standards Regulatory Revisions to Protect Tribal Reserved
Rights.'' 89 FR 35717 (May 2, 2024). That rule amends EPA's water
quality standards regulation, 40 CFR part 131 et seq., to, in
pertinent part, define ``Tribal reserved rights'' for WQS purposes
as ``any rights to CWA-protected aquatic and/or aquatic-dependent
resources reserved by right holders, either expressly or implicitly,
through Federal treaties, statutes, or Executive orders.'' 89 FR
35717. The Tribal Reserved Rights rulemaking does not affect section
233.51 of this section 404 rulemaking, nor does anything in this
section 404 rulemaking depend on the Tribal Reserved Rights
rulemaking.
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EPA anticipates that this provision will help address Tribal
concerns about the loss of Federal consultation opportunities when
permitting authority transfers from the Corps to a Tribe or State.
Additionally, this provision will allow coordination on potential
impacts to Tribal rights and resources not covered by any other
commenting option discussed above in sections IV.F.b.i and IV.F.b.ii of
this preamble. Given the TAS provisions discussed above, EPA
anticipates that Tribes will use this opportunity in limited
circumstances.
Under this provision, a Tribe may notify EPA within 20 days of
public notice of a permit application that the application potentially
affects Tribal rights or interests, including those beyond reservation
boundaries, even if Federal review has been waived. If a Tribe does so,
EPA will request the public notice and will proceed in accordance with
section 233.50, including providing a copy of the public notice and
other information needed for review of the application to the Corps,
the U.S. Fish and Wildlife Service, and the National Marine Fisheries
Service. Pursuant to section 233.50, if EPA objects to a draft permit,
the issuing Tribe or State may not issue the permit unless it has taken
steps required by EPA to eliminate the objection. Once EPA removes its
objection, EPA may send a copy of the letter removing EPA's objections
to a permit at a Tribe's request or pursuant to a prior agreement with
the Tribe (or other stakeholders).
Several commenters supported the proposed provision, noting it
helps to fill a gap and provide Tribes a mechanism to help ensure an
opportunity to raise concerns regarding potential impacts to Tribal
aquatic and cultural resources outside of their reservations. Some
commenters expressed concern that there is no reliable instrument for
coordinating with States assuming the section 404 program regarding
potential impacts on historical and cultural sites or Tribal natural
resource rights located outside of reservation lands. These commenters
referenced the Federal trust responsibility to Federally recognized
Tribes, which forms an important element of the Tribal-federal
relationship but which does not apply to States that assume the section
404 program, as well as other aspects of federal law. Additionally,
some commenters raised concerns over resource limitations and that
following assumption a Tribe would need to take on the burden of
reviewing all permit applications statewide for those that may affect
Tribal resources. EPA encourages Tribes to work with Tribes and States
with approved section 404 programs to develop mechanisms (e.g.,
Memoranda of Understanding) for notifying Tribes at appropriate times,
and EPA may participate in such discussions to aid in coordination
efforts, if appropriate.
This rule does not affect other mechanisms that require Tribal and
State permitting authorities to protect Tribal interests. For example,
CWA section 404 permits for discharges must comply with all applicable
State water quality standards (including standards in a downstream
jurisdiction) in effect under the CWA. See 33 U.S.C. 1311(b)(1)(C); 40
CFR 230.10(b)(1) and 233.20(a). To the extent designated uses require
consideration of cultural or traditional uses of water that may be
important to Tribes, Tribal or State section 404 programs must consider
those during the permitting process.
A few commenters raised a concern that this provision creates an
opportunity to comment on permits beyond Indian Country that does not
currently exist when the Corps is the permitting authority. As noted
above, any member of the public is currently able to comment on any
draft permit, and EPA has the authority to review and comment on any
draft permit. See 33 U.S.C. 1344(h)(1)(C), (j). In addition, the scope
of the Corps' Federal section 404 program is outside the scope of this
rulemaking. Regardless of the scope of the Corps' engagement with
Tribal stakeholders, facilitating Tribal engagement in permitting
decisions that affect Tribal resources is a priority to EPA. In its
oversight role, EPA is able to review and object to permits; this
[[Page 103494]]
provision provides an additional way to inform the Agency as it
determines whether to review and object to a potential permit.
G. Impacts to Existing Programs
This preamble section identifies parts of this rule that may affect
existing State-assumed section 404 programs by requiring them to modify
their procedures or potentially expand the scope of their authority.
Whether these changes would require revisions to existing State-assumed
programs depends on the existing authority of the States that have
assumed the program and their implementation procedures, as well as the
interpretation of these authorities and processes by State Attorneys
General or State courts. These States may already have some or all of
the authority or procedures in place that these provisions require.
States that do not have the authority required to administer the
provisions of the final rule would need to submit a program revision
for EPA approval after issuance of the rule in accordance with 40 CFR
part 233.16.
Final rule provisions that could affect existing programs include a
provision ensuring opportunity for judicial review of agency decisions
(section IV.C.2 of this preamble), updates to the compensatory
mitigation requirements for Tribal and State section 404 programs
(section IV.B.4 of this preamble), and a revised approach to addressing
the five-year limit on permits (section IV.C.1 of this preamble). In
addition, clarification as to how Tribes and States can demonstrate
that their programs are no less stringent than the Federal section 404
program (section IV.A.3 of this preamble), modification of the conflict
of interest prohibition (section IV.A.1 of this preamble), and updated
annual reporting requirements (section IV.E.3 of this preamble) may
affect existing State programs.
EPA recognizes that ``[w]hen an agency changes course . . . it must
be cognizant that longstanding policies may have engendered serious
reliance interests that must be taken into account.'' Department of
Homeland Security v. Regents of the University of California, 140 S.
Ct. 1891, 1913 (2020) (citations and internal quotation marks omitted.)
EPA does not view the regulatory changes as undermining serious
reliance interests that outweigh the benefits of these changes. EPA's
regulations contain detailed procedures for revising an approved
section 404 program. 40 CFR part 233.16. States seeking approval would
therefore be well aware that program revisions may be necessary
following assumption. Moreover, the program revision regulations
specifically address revisions needed as a result of a change to the
section 404 regulations, or to any other applicable statutory or
regulatory provision. Id. at 233.16(b). The regulations allow Tribes
and States one year to make such revisions, or two years if statutory
changes are required. Id. The 1-2-year revision period supplements the
lengthy preliminary period for proposing and finalizing this rule and
soliciting and responding to public comments. Tribes and States
therefore should anticipate the potential need to revise their programs
based on Federal regulatory revisions following assumption. Finally,
nothing in CWA section 404 suggests that EPA's approval of a Tribal or
State program terminates the Agency's ability to update relevant
regulations when necessary to effectively administer the Act. The
Agency does not think Congress would have intended approvals to carry
such a drastic consequence without saying so.
H. Technical Revisions
In addition to revising 40 CFR part 233, EPA is also finalizing
technical edits to clarify that the 40 CFR part 124 regulations do not
apply to Tribal or State section 404 programs. Specifically, EPA is
making targeted revisions and deletions to specific provisions of the
regulations at 40 CFR parts 124.1 through 124.3, 124.5, 124.6, 124.8,
124.10 through 124.12, and 124.17 to remove any references to 40 CFR
part 233. Prior to 1988, the State section 404 program regulations
included references to 40 CFR part 124, which contains consolidated
permitting regulations for a variety of programs that EPA administers.
See 49 FR 39012 (October 2, 1984). The preamble to the 1988 section 404
Tribal and State program regulation clearly stated that the 40 CFR part
124 regulations no longer apply to Tribal or State section 404 programs
and announced the Agency's intention to publish technical edits in the
future. 53 FR 20764 (June 6, 1988) (``It is the agency's intent that 40
CFR part 124 no longer applies to 404 State programs. We will be
publishing technical, conforming regulations in the future.'').
Although the Agency modified 40 CFR part 233 to remove all references
to part 124 in 1988, the Agency did not provide conforming edits to 40
CFR part 124 to remove references to 40 CFR part 233. This rule removes
the outdated references to 40 CFR part 233 in part 124. The removal of
these references has no substantive impact on the section 404
assumption process or on Tribal or State section 404 programs. They
also do not implicate or affect aspects of the part 124 regulations
addressing other EPA permit programs, including the Resource
Conservation and Recovery Act (RCRA), Underground Injection Control,
and NPDES programs.
EPA is also revising the definitions located at 40 CFR part 233.2
for consistency and clarity. EPA is defining ``Indian lands''
consistent with the Agency's long-standing interpretation of ``Indian
lands'' as synonymous with ``Indian country'' as defined at 18 U.S.C.
1151. See e.g., 40 CFR part 144.3 (defining ``Indian lands'' as
``Indian country'' as defined at 18 U.S.C. 1151); 40 CFR part 258.2
(adopting the definition of 18 U.S.C. 1151 for ``Indian lands''); U.S.
EPA, Underground Injection Control Program: Federally-Administered
Programs, 49 FR 45292, 45294 (November 15, 1984) (defining ``Indian
lands'' as used in EPA's Safe Drinking Water Act Underground Injection
Control Program regulations as ``Indian country,'' explaining that
``EPA believes this definition is most consistent with the concept of
Indian lands as the Agency has used it in regulations and [Underground
Injection Control] program approvals to date.''); Wash. Dep't of
Ecology v. EPA, 752 F.2d 1465, 1467 n.1 (9th Cir. 1985) (noting EPA's
position that ``Indian lands'' is ``synonymous with `Indian country',
which is defined at 18 U.S.C. 1151''). EPA is also revising the
definition of ``State 404 program'' or ``State program'' to clarify
that Tribes and interstate agencies may also have an approved program.
The Agency is removing the ``(p)'' associated with the cross-reference
to 40 CFR part 233.2 in the definition of ``State 404 program'' or
``State program'' as the definitions in 40 CFR part 233.2 are no longer
listed by letter. Finally, EPA is clarifying the definition for ``State
regulated waters'' in 40 CFR part 232 by replacing the in-text
description of retained waters with a reference to the relevant
regulatory text at 40 CFR part 233.11(i).
EPA is also finalizing several technical edits throughout 40 CFR
part 233 to update cross-references, ensure consistent use of
terminology, and facilitate efficient program operation. First, EPA is
updating section 233.10(a) and section 233.16(d)(2) to include the term
``Tribal leader'' where the term ``Governor'' is referenced. Second,
EPA is also removing the use of the masculine pronouns ``he'' and
``his'' throughout 40 CFR part 233 and replacing them with ``they,''
``their,'' ``the Administrator,'' ``the Regional Administrator,'' or
``Director'' as appropriate. The purpose of changing masculine pronouns
or terms to neutral pronouns and other neutral terms is to
[[Page 103495]]
acknowledge the diversity of people who may hold the positions of ``the
Administrator,'' ``the Regional Administrator,'' ``Director,'' and
program staff. Third, EPA is changing references to assumption
``application'' to terms including ``request to assume,'' ``program
submission,'' or ``assumption request materials'' to more clearly
distinguish between permit applications and requests to assume the
program throughout the regulations. Fourth, EPA is revising section
233.1(b) to remove the term ``individual'' from the reference to
``State permits,'' as States may also regulate discharges using general
permits. Fifth, the Agency is changing the ``Note'' in section 233.1(c)
to become section 233.1(d) and adding a cross-reference to the process
to identify retained waters and the retained waters description at
233.11(i). Section 233.1(d) will be renumbered as 233.1(e). Sixth, EPA
is clarifying in section 233.14(b)(3) that when a State intends to
administer general permits issued by the Secretary, any Tribal or State
conditions and/or certifications of those general permits transfer when
the Tribe or State assumes the program. Seventh, EPA is also adding an
effective date for the approved non-substantial program revisions in
the letter from the Regional Administrator to the Governor requirement
in section 233.16(d)(2). Finally, EPA is also clarifying in section
233.53(a)(1) that when the Tribe or State notifies the Administrator
and the Secretary of its intent to voluntarily transfer program
responsibilities back to the Secretary, the Tribe or State must also
submit the transition plan. The Agency is adding the words ``no less
than'' before the advance notice requirement to clarify that Tribes and
States may provide more than 180 days' notice of intent to transfer the
program. An extended transition time would allow the Tribe or State,
the Corps, and EPA to discuss any gaps in the plan and ensure a smooth
transition from the Tribe or State to the Corps' administration of the
program. The rule requires that files associated with ongoing
investigations, compliance orders, and enforcement actions be provided
to the Secretary to ensure compliance with these orders and minimize
disruptions in administration of section 404 programs. The Agency
requested comment on whether to revise the regulations to clarify that
electronic mail is an acceptable method of transmitting public notices
or documents, in addition to mail. Instead of changing, for example,
the word ``mail'' to ``send'' throughout the regulations, the Agency
wishes to clarify that that both electronic mail and mail are
acceptable methods of transmitting public notices or documents.
I. Incorporation by Reference
Currently, 40 CFR part 233.70 incorporates by reference Michigan's
regulatory and statutory authorities applicable to the State's approved
CWA section 404 program, and 40 CFR part 233.71 incorporates by
reference New Jersey's regulatory and statutory authorities applicable
to the State's approved CWA section 404 program. EPA codified in
regulation the approval of the Michigan program on October 2, 1984 (49
FR 38947) and the New Jersey program on March 2, 1994 (59 FR 9933).
EPA is updating the incorporation by reference of the Michigan laws
in the State's approved CWA section 404 program as follows:
The Michigan Administrative Procedures Act of 1969, MCL
Sec. 24-201, et seq., in effect as of February 13, 2024 (addresses the
effect, processing, promulgation, publication and inspection of State
agency determinations, guidelines and rules);
The Natural Resources and Environmental Protection Act 451
of 1994:
[cir] Part 31 Water Resources Protection, MCL Sec. 324.31 et seq.,
in effect as of September 29, 2023 (provides regulatory authority and
describes Michigan's water quality provisions);
[cir] Part 301 Inland Lakes and Streams, MCL Sec. 324.301 et seq.,
in effect as of October 20, 2021 (provides authority for Michigan's
inland lakes and streams rules and regulations for the streams and
inland lakes portion of the water resources permitting and enforcement
program);
[cir] Part 303 Wetland Protection, MCL Sec. 324.303 et seq., in
effect as of April 27, 2019 (provides authority for Michigan's wetlands
rules and regulations for the wetlands portion of the water resources
permitting and enforcement program);
[cir] Part 307 Inland Lake Levels, MCL Sec. 324.307 et seq., in
effect as of October 16, 2020 (provides authority for Michigan
regulating water levels in inland lakes);
[cir] Part 315 Dam Safety, MCL Sec. 324.315 et seq., in effect as
of September 10, 2004 (provides authority for Michigan regulating dam
safety);
[cir] Part 323 Great Lakes Shorelands Protection and Management,
MCL Sec. 324.323 et seq., in effect as of October 20, 2021 (allows the
State to issue permit and violation fees); and
[cir] Part 325 Great Lakes Submerged Lands, MCL Sec. 324.325 et
seq., in effect as of October 20, 2021 (provides for and describes
regulating activities in Great Lakes Submerged Lands).
Additionally, EPA is incorporating the most recent versions of
Michigan Administrative Code, Department of Environmental Quality, as
follows:
Land and Water Management:
[cir] Great Lakes Shorelands, R 281.21 through R 281.26 inclusive,
in effect as of 2000;
[cir] Wetlands Protection, R 281.921 through R 281.925 inclusive,
in effect as of 2006;
[cir] Wetland Mitigation Banking, R 281.951 through R 281.961
inclusive, in effect as of 1997;
[cir] Dam Safety, R 281.1301 through R 281.1313 inclusive, in
effect as of 1993; and
Water Resources Division, Inland Lakes and Streams, R
281.811 through R 281.846 inclusive, in effect as of 2015.
This material contains Michigan's rules for shoreline protection,
inland lakes and streams, wetlands protection, wetland mitigation
banking, and dam safety. EPA is updating the name of the implementing
State agency to reflect that the current agency implementing the
approved Michigan assumed program is the Michigan Department of
Environment, Great Lakes, and Energy rather than the Department of
Natural Resources in section 233.70. EPA is also updating the
description of EPA and Michigan Memorandum of Agreement in section
233.70(c)(1) to reflect the current Memorandum, signed in 2011.
EPA is updating the incorporation by reference of the New Jersey
state laws in the State's approved CWA section 404 program as follows:
Freshwater Wetlands Protection Act, New Jersey Statutes Annotated,
Title 13: Conservation and Development--Parks and Reservations; Chapter
9B: Freshwater Wetlands, N.J.S.A.13:9B-1 et seq., effective as of
December 23, 1993 (provides the New Jersey Department of Environmental
Protection with the authority to regulate and permit activities in
freshwater wetlands). Additionally, EPA is incorporating the most
recent version of the Freshwater Wetlands Protection Act Rules as
follows: Freshwater Wetlands Protection Act Rules, New Jersey
Administrative Code, N.J.A.C. 7:7A, amended November 7, 2022 (contains
regulations to implement the Freshwater Wetlands Protection Act).
Materials that have been incorporated by reference are reasonably
made available to interested parties. Copies of materials incorporated
by reference may be obtained or inspected at EPA Docket Center Reading
Room, WJC West Building, Room 3334, 1301 Constitution Avenue NW,
Washington, DC 20004
[[Page 103496]]
(telephone number: 202-566-1744); or send mail to Mail Code 5305G, 1200
Pennsylvania Ave. NW, Washington, DC 20460. Copies of the materials
incorporated by reference for Michigan's program can also be accessed
at www.legislature.mi.gov/ and www.michigan.gov/lara/bureau-list/moahr/admin-rules; at the Water Division, Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard, Chicago, IL 60604 (telephone
number: 800-621-8431); or at the Michigan Department of Environment,
Great Lakes, and Energy office at 525 W Allegan St., Lansing, MI 48933
(telephone number: 800-662-9278). Copies of the materials incorporated
by reference for New Jersey's program can also be accessed at
www.epa.gov/cwa404g/us-interactive-map-state-and-tribal-assumption-under-cwa-section-404#nj; at the Library of the Region 2 Regional
Office, Ted Weiss Federal Building, 290 Broadway, New York, NY 10007;
or at the New Jersey Department of Environmental Protection at 401 East
State St., Trenton, NJ 08625 (telephone number: 609-777-3373). EPA is
updating the docket location and EPA Region 2 Regional Office location
cited at 40 CFR part 233.71(b) to reflect their current addresses.
J. Severability
The purpose of this section is to clarify EPA's intent with respect
to the severability of provisions of the final rule. Each provision and
interpretation in this rule is capable of operating independently. Once
effective, if any provision or interpretation in this rule were to be
determined by judicial review or operation of law to be invalid, that
partial invalidation would not render the remainder of this rule
invalid. Likewise, if the application of any aspect of this rule to a
particular circumstance were determined to be invalid, the Agency
intends that the rule would remain applicable to all other
circumstances. None of the provisions in this rule depend upon any
other for effectiveness. Taking as examples the provisions listed at
the beginning of this preamble, if the new ``conflict of interest''
revisions were deemed invalid, the absence of those revisions would in
no way affect or undermine the rationale for or the operation of the
provisions addressing compliance with the 404(b)(1) Guidelines or being
``no less stringent than'' Federal requirements. Similarly, taking an
example from the end of this preamble, if the Agency's provisions
addressing Tribal engagement were deemed invalid, the new program
reporting requirements would retain their utility.
V. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14094: Modernizing Regulatory Review
This action is a ``significant regulatory action'' as defined in
Executive Order 12866, as amended by Executive Order 14094.
Accordingly, EPA submitted this action to the Office of Management and
Budget (OMB) for Executive Order 12866 review. Documentation of any
changes made in response to Executive Order 12866 review is available
in the docket for this action. EPA prepared an analysis of the
potential costs and benefits associated with this action. This
analysis, the Economic Analysis for the Final Rule, is available in the
docket for this action (Docket ID No. EPA-HQ-OW-2020-0276) and is
briefly summarized below.
The Economic Analysis for the Final Rule is qualitative in nature
due to numerous data limitations and uncertainties regarding the
potential impacts resulting from the final rule. See Section VI of the
Economic Analysis for the Final Rule for further discussion on data
limitations and uncertainties. Section IV of the Economic Analysis for
the Final Rule summarizes the incremental and cumulative costs and
benefits of the final rule for different interested parties, including
Tribes, States, permittees, and EPA. Benefits of the final rule are
mainly positive impacts resulting from clarification of assumption
procedures and substantive requirements. These benefits accrue to
Tribes, States, permittee, Federal agencies, and the public. Tribes,
States, permittees, and Federal agencies may experience both
incremental costs and cost savings as a result of the final rule.
B. Paperwork Reduction Act (PRA)
The information collection activities in this rulemaking have been
submitted for approval to the Office of Management and Budget (OMB)
under the PRA. The Information Collection Request (ICR) document that
EPA prepared has been assigned EPA ICR number 0220.17. You can find a
copy of the ICR in the docket for this rule, and it is briefly
summarized below. The information collection requirements are not
enforceable until OMB approves them.
The type and frequency of information requested varies by
respondent group and activity. For this information collection, EPA
classified respondents into one of four categories: (1) States or
Tribes seeking program assumption; (2) States or Tribes with an
approved program and administering the program; (3) Permittees; and (4)
Tribes seeking TAS for the sole purpose of commenting as an affected
State. The ICR does not require the collection of any information of a
confidential nature or status.
Respondents/affected entities: States or Tribes seeking program
assumption; States or Tribes with an approved program and administering
the program; Permittees; and Tribes seeking TAS for the sole purpose of
commenting as an affected State.
Respondents' obligation to respond: Voluntary (States or Tribes
seeking program assumption); Required for program operation and
maintenance (States or Tribes with an approved program and
administering the program); Required to submit an application to obtain
a section 404 permit (Permittee); Voluntary (Tribes seeking TAS for the
sole purpose of commenting as an affected State).
Estimated number of respondents: 1 State over 3 years (seeking
program assumption); 3 States/year (with an approved program and
administering the program, except for program modification); 2 States
over 3 years (modifications to an approved program); 1,693 Permittees/
year for 3 approved programs; 1 Tribe/year over 3 years (seeking TAS
for the sole purpose of commenting as an affected State).
Frequency of response: Once (States or Tribes seeking program
assumption); Variable (for States or Tribes with an approved program
and administering the program); for each permit application (for
Permittees); once (for Tribes seeking TAS for the sole purpose of
commenting as an affected State).
Total estimated burden to respondents: 130,725 hours (per year).
Burden is defined at 5 CFR 1320.3(b).
Total estimated cost to respondents: $6,972,139 (per year),
includes $930,831 annualized capital and start-up costs and $6,041,308
program operation and maintenance costs.
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
regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves
this ICR, the Agency will announce that approval in the Federal
Register and publish a technical amendment to 40 CFR part 9 to display
the OMB control number for the
[[Page 103497]]
approved information collection activities contained in this final
rule.
C. Regulatory Flexibility Act (RFA)
I certify that this final rule will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. Section
404(g) of the CWA allows for Tribes and States to assume the section
404 permitting program, and the final rule clarifies assumption
requirements for Tribes and States to ensure compliance with CWA
404(b)(1) Guidelines. Without the final rule, entities (both large and
small) would still have to comply with the CWA 404(b)(1) Guidelines,
regardless of whether the Tribe or State assumes the section 404
program or not and regardless of the changes in the final rule.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate of $100 million
(annually adjusted for inflation) or more (in 1995 dollars) as
described in UMRA, 2 U.S.C. 1531-38, and does not significantly or
uniquely affect small governments. This action imposes no enforceable
duty on any State, local, or Tribal governments or the private sector.
See the Economic Analysis for the Final Rule in the docket for this
action for further discussion on UMRA.
E. Executive Order 13132: Federalism
Under the technical requirements of Executive Order 13132 (64 FR
43255, August 10, 1999), EPA has determined that this rulemaking does
not have federalism implications. EPA believes, however, this
rulemaking may be of significant interest to State and local
governments. Consistent with EPA's policy to promote communications
between EPA and State governments, EPA engaged with State officials
early in the process of developing the proposed rule to permit them to
have meaningful and timely input into its development.
EPA is finalizing updates to clarify and facilitate the process of
State assumption of the section 404 program. This rule does not impose
any new costs or other requirements on States, preempt State law, or
limit States' policy discretion. This action does not have federalism
implications and will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.
The Agency invited written input from State agencies from November
12, 2018, through February 11, 2019,\46\ and hosted an in-person
meeting with State officials on December 6, 2018. At the in-person
meeting, the Agency provided an overview of the rulemaking effort and
the section 404(g) program and led themed discussions for input for the
proposed rule, including clarifying assumed and retained waters and
adjacent wetlands, enforcement and compliance, partial assumption, and
calculating economic costs and benefits of the rule. A summary of
stakeholder engagement and written input from States on this action is
available in the docket for this final rule. After publishing the
proposed rule in the Federal Register, stakeholders were encouraged to
submit comment letters during a 60-day public comment period and EPA
held a public hearing on September 6, 2023, for all stakeholders to
provide public comment on the proposed rule. Additionally, EPA hosted
one input session specifically for State government representatives on
August 24, 2023. Summaries of the public hearing session and of the
input received during the State input session can be found in the
docket for this rulemaking. Furthermore, EPA reviewed and responded to
the public comment letters from State and local governments in a
Response to Comments document that can also be found in the docket for
this rulemaking. All comment letters and recommendations received by
EPA during the public comment period from State and local governments
are included in the docket for this action (Docket ID No. EPA-HQ-OW-
2020-0276).
---------------------------------------------------------------------------
\46\ The Agency invited written input from State agencies from
November 12, 2018, through January 11, 2019. Due to the lapse in
Federal Government funding, EPA accepted input from states until
February 2019.
---------------------------------------------------------------------------
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action may have implications for Tribal governments. However,
it will neither impose substantial direct compliance costs on federally
recognized Tribal governments, nor preempt Tribal law. This action
would expand Tribes' ability to utilize TAS for purposes of commenting
as ``affected States,'' and would develop an avenue for EPA review of
permits that may impact Tribal rights and resources.
EPA consulted with Tribal officials under the EPA Policy on
Consultation and Coordination with Indian Tribes early in the process
of developing this regulation to permit Tribes to have meaningful and
timely input into its development. EPA has developed a document which
further describes EPA's efforts to engage with Tribal representatives
and is available in the docket for this rulemaking.
As required by section 7(a), EPA's Tribal Consultation Official has
certified that the requirements of the executive order have been met in
a meaningful and timely manner. A copy of this certification is
included in the docket for this action.
The Agency initiated a Tribal consultation and coordination process
before proposing a rule by sending a ``Notification of Consultation and
Coordination'' letter, dated October 19, 2018, to all Tribes federally
recognized at that time. The letter invited Tribal leaders and
designated representatives to participate in the Tribal consultation
and coordination process for this rulemaking. The Agency engaged with
Tribes over a 60-day consultation period that concluded on December 21,
2018, including two Tribes-only informational webinars on November 20
and 29, 2018. During this consultation period, EPA participated in in-
person meetings with Tribal associations, including a presentation for
the National Tribal Water Council on October 24, 2018, and an
informational session at the National Congress of American Indians 75th
Annual Convention on October 24, 2018. The Agency also attended the EPA
Region 9 Regional Tribal Operations Committee (RTOC) meeting on October
31, 2018, the EPA Region 6 RTOC meeting on November 28, 2018, and the
EPA Region 7 Enhancing State and Tribal Programs Wetland Symposium on
November 5, 2018. At the meetings and webinars, EPA sought input on
aspects of the section 404 Tribal and State program regulations and
assumption process. The Agency initiated a second Tribal consultation
and coordination period on July 18, 2023. The Agency engaged with
Tribes over a 60-day period that concluded on September 17, 2023,
including two Tribal input sessions on August 15 and 30, 2023. During
this consultation period, EPA participated in various meetings with
Tribal associations, continued outreach and engagement with Tribes, and
sought other opportunities to provide information and hear feedback
from Tribes at national and regional Tribal meetings during and after
the end of the consultation period. The Agency notes that two Tribes
requested government-to-government consultation. However, no responses
were received to schedule
[[Page 103498]]
the consultations.\47\ All Tribal and Tribal organization letters and a
summary of the Tribal consultation and coordination effort may be found
in the docket for this action.
---------------------------------------------------------------------------
\47\ During the consultation period prior to the development of
the final rule, two requests for government-to-government
consultation were received. On July 25, 2023, EPA sent both the
Mille Lacs Band of Ojibwe and the Grand Portage Band of Lake
Superior Chippewa an invitation to schedule consultation. No
responses were received to the invitation to schedule consultation.
---------------------------------------------------------------------------
After publishing the proposed rule in the Federal Register,
stakeholders were encouraged to submit comment letters during a 60-day
public comment period and EPA held a public hearing on September 6,
2023, for all stakeholders to provide public comment on the proposed
rule. Summaries of the public hearing and of the input received during
the Tribal input sessions can be found in the docket for this
rulemaking. Furthermore, EPA reviewed and responded to the public
comment letters from Tribal representatives in a Response to Comment
document that can also be found in the docket for this rulemaking.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order. Therefore, this action is not subject to Executive
Order 13045 because it does not concern an environmental health risk or
safety risk. Since this action does not concern human health, EPA's
Policy on Children's Health also does not apply.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All
EPA believes that the human health and environmental conditions
that exist prior to this action do not result in disproportionate and
adverse effects on communities with environmental justice concerns. The
final rule creates more transparency and clarity for Tribes and States
with existing section 404 programs and for those seeking to assume.
Environmental justice considerations are potentially addressed through
the following topics in the final rule: (1) public notice and hearings,
(2) no less stringent than, (3) long-term permitting, (4) judicial
review, (5) affected States, and (6) opportunities for Tribes.
First, within the final rule and assumption process, there are
multiple opportunities for public engagement through public notice and
hearings, including for communities with environmental justice
concerns. Second, the section 404 Tribal and State regulations require
that Tribes or States with an approved section 404 program may not
impose conditions less stringent than those required under Federal law,
so the environmental impacts of permitted projects would not increase
due to this transfer of authority. Third, the final rule provides an
improved ability for communities with environmental justice concerns to
participate in the section 404 permitting process for long-term
projects. Fourth, the requirements for State-assumed section 404
programs allow for judicial review in State courts, which is an
opportunity for affected stakeholders to address concerns through
judicial review.
Lastly, EPA additionally identified and addressed potential
environmental justice concerns by expanding Tribes' ability to utilize
TAS for purposes of commenting as ``affected States'' and developing an
avenue for EPA review of permits that may impact Tribal rights and
resources. The final rule will enable Tribes to have a more significant
role in the permit decision-making process than under prior practice.
See Section V of the Economic Analysis for the Final Rule for
additional information on the final regulations.
The information supporting this Executive Order review is contained
in Section V of the Economic Analysis for the Final Rule, which is
available in the docket for this action.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and EPA will submit a rule
report to each House of Congress and to the Comptroller General of the
United States. This action does not meet the criteria as defined by 5
U.S.C. 804(2).
List of Subjects
40 CFR Part 123
Environmental protection, Flood control, Water pollution control.
40 CFR Part 124
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous waste, Indians--lands, Reporting and
recordkeeping requirements, Water pollution control, Water supply.
40 CFR Part 232
Environmental protection, Intergovernmental relations, Water
pollution control.
40 CFR Part 233
Environmental protection, Administrative practice and procedure,
Incorporation by reference, Indians--lands, Intergovernmental
relations, Penalties, Reporting and recordkeeping requirements, Water
pollution control.
Michael S. Regan,
Administrator.
For the reasons set forth in this preamble, EPA amends 40 CFR parts
123, 124, 232, and 233 as follows:
PART 123--STATE PROGRAM REQUIREMENTS
0
1. The authority citation for part 123 continues to read as follows:
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
0
2. Section 123.27 is amended by:
0
a. Revising paragraphs (a) introductory text and (a)(3) introductory
text;
0
b. Removing the note immediately following paragraph (a)(3)(ii); and
0
c. Revising paragraph (b)(2).
The revisions read as follows:
Sec. 123.27 Requirements for enforcement authority.
(a) Any State agency administering a program shall have the
authority to establish the following violations and have available the
following remedies and penalties for such violations of State program
requirements:
* * * * *
(3) To assess or sue to recover in court civil penalties and to
seek criminal penalties as follows:
* * * * *
[[Page 103499]]
(b) * * *
(2) The burden of proof and degree of knowledge or intent required
under State law for establishing violations under paragraph (a)(3) of
this section, shall be no greater than the burden of proof or degree of
knowledge or intent EPA must provide when it brings an action under the
Act, except that a State may establish criminal violations based on any
form or type of negligence.
Note 3 to paragraph (b)(2): For example, this requirement is
not met if State law includes mental state as an element of proof
for civil violations.
* * * * *
PART 124--PROCEDURES FOR DECISIONMAKING
0
3. The authority citation for part 124 continues to read as follows:
Authority: Resource Conservation and Recovery Act, 42 U.S.C.
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300f et seq.; Clean
Water Act, 33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 7401 et
seq.
0
4. Amend Sec. 124.1 by revising paragraphs (e) and (f) to read as
follows:
Sec. 124.1 Purpose and scope.
* * * * *
(e) Certain procedural requirements set forth in this part must be
adopted by States in order to gain EPA approval to operate RCRA, UIC,
and NPDES permit programs. These requirements are listed in 40 CFR
123.25 (NPDES), 145.11 (UIC), and 271.14 (RCRA) and signaled by the
following words at the end of the appropriate part 124 section or
paragraph heading: (applicable to State programs see 40 CFR 123.25
(NPDES), 145.11 (UIC), and 271.14 (RCRA)). This part does not apply to
PSD permits or 404 permits issued by an approved State.
(f) To coordinate decision-making when different permits will be
issued by EPA and approved State programs, this part allows
applications to be jointly processed, joint comment periods and
hearings to be held, and final permits to be issued on a cooperative
basis whenever EPA and a State agree to take such steps in general or
in individual cases. These joint processing agreements may be provided
in the Memorandum of Agreement developed under 40 CFR 123.24 (NPDES),
145.24 (UIC), and 271.8 (RCRA).
0
5. Amend Sec. 124.2 by:
0
a. In paragraph (a):
0
i. Revising the introductory text;
0
ii. Revising the definitions for ``Facility or activity'', ``General
permit'', ``Major facility'', ``Owner or operator'', ``Permit'', and
``SDWA''; and
0
iii. Removing the definition for ``Section 404 program or State 404
program or 404''; and
0
iv. Revising the definition for ``Site''; and
0
b. Revising paragraph (b).
The revisions read as follows:
Sec. 124.2 Definitions.
(a) In addition to the definitions given in 40 CFR 122.2 and 123.2
(NPDES), 501.2 (sludge management), 144.3 and 145.2 (UIC), and 270.2
and 271.2 (RCRA), the definitions below apply to this part, except for
PSD permits which are governed by the definitions in Sec. 124.41.
Terms not defined in this section have the meaning given by the
appropriate Act.
* * * * *
Facility or activity means any ``HWM facility,'' UIC ``injection
well,'' NPDES ``point source'' or ``treatment works treating domestic
sewage'', or any other facility or activity (including land or
appurtenances thereto) that is subject to regulation under the RCRA,
UIC, or NPDES programs.
* * * * *
General permit (NPDES) means an NPDES ``permit'' authorizing a
category of discharges or activities under the CWA within a
geographical area. For NPDES, a general permit means a permit issued
under 40 CFR 122.28.
* * * * *
Major facility means any RCRA, UIC, or NPDES ``facility or
activity'' classified as such by the Regional Administrator, or, in the
case of ``approved State programs,'' the Regional Administrator in
conjunction with the State Director.
Owner or operator means owner or operator of any ``facility or
activity'' subject to regulation under the RCRA, UIC, or NPDES
programs.
Permit means an authorization, license or equivalent control
document issued by EPA or an ``approved State'' to implement the
requirements of this part and parts 122, 123, 144, 145, 270, and 271 of
this chapter. ``Permit'' includes RCRA ``permit by rule'' (40 CFR
270.60), RCRA emergency permit (40 CFR 270.61), RCRA standardized
permit (40 CFR 270.67), UIC area permit (40 CFR 144.33), UIC emergency
permit (Sec. 144.34), and NPDES ``general permit'' (40 CFR 122.28).
Permit does not include RCRA interim status (40 CFR 270.70), UIC
authorization by rule (40 CFR 144.21), or any permit which has not yet
been the subject of final agency action, such as a ``draft permit'' or
a ``proposed permit.''
* * * * *
SDWA means the Safe Drinking Water Act (Pub. L. 95-523, as amended
by Pub. L. 95-1900; 42 U.S.C. 300f et seq.).
Site means the land or water area where any ``facility or
activity'' is physically located or conducted, including adjacent land
used in connection with the facility or activity.
* * * * *
(b) For the purposes of 40 CFR part 124, the term Director means
the State Director or Regional Administrator and is used when the
accompanying provision is required of EPA-administered programs and of
State programs under 40 CFR 123.25 (NPDES), 145.11 (UIC), and 271.14
(RCRA). The term Regional Administrator is used when the accompanying
provision applies exclusively to EPA-issued permits and is not
applicable to State programs under these sections. While States are not
required to implement these latter provisions, they are not precluded
from doing so, notwithstanding use of the term ``Regional
Administrator.''
0
6. Amend Sec. 124.3 by revising paragraph (a) heading, and paragraphs
(a)(1) and (3) to read as follows:
Sec. 124.3 Application for a permit.
(a) Applicable to State programs, see 40 CFR 123.25 (NPDES), 145.11
(UIC), and 271.14 (RCRA). (1) Any person who requires a permit under
the RCRA, UIC, NPDES, or PSD programs shall complete, sign, and submit
to the Director an application for each permit required under 40 CFR
270.1 (RCRA), 144.1 (UIC), 40 CFR 52.21 (PSD), and 122.1 (NPDES).
Applications are not required for RCRA permits by rule (40 CFR 270.60),
underground injections authorized by rules (40 CFR 144.21 through
144.26), and NPDES general permits (40 CFR 122.28).
* * * * *
(3) Permit applications (except for PSD permits) must comply with
the signature and certification requirements of 40 CFR 122.22 (NPDES),
144.32 (UIC), and 270.11 (RCRA).
* * * * *
0
7. Amend Sec. 124.5 by:
0
a. Revising paragraph (a), paragraph (c) heading, and paragraphs (c)(1)
and (3);
0
b. Removing paragraph (f); and
0
c. Redesignating paragraph (g) as paragraph (f).
The revision reads as follows:
Sec. 124.5 Modification, revocation and reissuance, or termination of
permits.
(a) (Applicable to State programs, see 40 CFR 123.25 (NPDES),
145.11 (UIC), and 271.14 (RCRA).) Permits (other than
[[Page 103500]]
PSD permits) may be modified, revoked and reissued, or terminated
either at the request of any interested person (including the
permittee) or upon the Director's initiative. However, permits may only
be modified, revoked, and reissued or terminated for the reasons
specified in 40 CFR 122.62 or 122.64 (NPDES), 144.39 or 144.40 (UIC),
and 270.41 or 270.43 (RCRA). All requests shall be in writing and shall
contain facts or reasons supporting the request.
* * * * *
(c) (Applicable to State programs, see 40 CFR 123.25 (NPDES),
145.11 (UIC), and 271.14 (RCRA)). (1) If the Director tentatively
decides to modify or revoke and reissue a permit under 40 CFR 122.62
(NPDES), 144.39 (UIC), or 270.41 (other than 40 CFR 270.41(b)(3) or 40
CFR 270.42(c) (RCRA)), he or she shall prepare a draft permit under 40
CFR 124.6 incorporating the proposed changes. The Director may request
additional information and, in the case of a modified permit, may
require the submission of an updated application. In the case of
revoked and reissued permits, other than under 40 CFR 270.41(b)(3), the
Director shall require the submission of a new application. In the case
of revoked and reissued permits under 40 CFR 270.41(b)(3), the Director
and the permittee shall comply with the appropriate requirements in
subpart G of this part for RCRA standardized permits.
* * * * *
(3) ``Minor modifications'' as defined in 40 CFR 122.63 (NPDES),
and 144.41 (UIC), and ``Classes 1 and 2 modifications'' as defined in
40 CFR 270.42 (a) and (b) (RCRA) are not subject to the requirements of
this section.
* * * * *
0
8. Amend Sec. 124.6 by:
0
a. Revising paragraphs (a) and (c), paragraph (d) heading and
introductory text, paragraphs (d)(1) through (3);
0
b. Removing paragraph (d)(4)(iv);
0
c. Redesignating paragraph (d)(4)(v) as paragraph (d)(4)(iv); and
0
d. Revising the paragraph (e) heading.
The revisions read as follows:
Sec. 124.6 Draft permits.
(a) (Applicable to State programs, see 40 CFR 123.25 (NPDES),
145.11 (UIC), and 271.14 (RCRA).) Once an application is complete, the
Director shall tentatively decide whether to prepare a draft permit or
to deny the application.
* * * * *
(c) (Applicable to State programs, see 40 CFR 123.25 (NPDES).) If
the Director tentatively decides to issue an NPDES general permit, he
or she shall prepare a draft general permit under paragraph (d) of this
section.
(d) (Applicable to State programs, see 40 CFR 123.25 (NPDES),
145.11 (UIC), and 271.14 (RCRA).) If the Director decides to prepare a
draft permit, he or she shall prepare a draft permit that contains the
following information:
(1) All conditions under 40 CFR 122.41 and 122.43 (NPDES), 144.51
and 144.42 (UIC), or 270.30 and 270.32 (RCRA) (except for PSD
permits));
(2) All compliance schedules under 40 CFR 122.47 (NPDES), 144.53
(UIC), or 270.33 (RCRA) (except for PSD permits);
(3) All monitoring requirements under 40 CFR 122.48 (NPDES), 144.54
(UIC), or 270.31 (RCRA) (except for PSD permits); and
* * * * *
(e) (Applicable to State programs, see 40 CFR 123.25 (NPDES),
145.11 (UIC), and 271.14 (RCRA).) * * *
* * * * *
0
9. Amend Sec. 124.8 by revising the introductory text and paragraph
(a) to read as follows:
Sec. 124.8 Fact sheet.
(Applicable to State programs, see 40 CFR 123.25 (NPDES), 145.11
(UIC), and 271.14 (RCRA).)
(a) A fact sheet shall be prepared for every draft permit for a
major HWM, UIC, or NPDES facility or activity, for every Class I sludge
management facility, for every NPDES general permit (40 CFR 122.28 of
this subchapter), for every NPDES draft permit that incorporates a
variance or requires an explanation under 40 CFR 124.56(b), for every
draft permit that includes a sewage sludge land application plan under
40 CFR 501.15(a)(2)(ix), and for every draft permit which the Director
finds is the subject of wide-spread public interest or raises major
issues. The fact sheet shall briefly set forth the principal facts and
the significant factual, legal, methodological, and policy questions
considered in preparing the draft permit. The Director shall send this
fact sheet to the applicant and, on request, to any other person.
* * * * *
0
10. Amend Sec. 124.10 by:
0
a. Revising paragraph (a)(1);
0
b. Revising the paragraph (b) heading;
0
c. Revising the introductory text of paragraph (c), and paragraphs
(c)(1)(i), (ii), and (iv);
0
d. Removing paragraph (c)(1)(vi);
0
e. Redesignating paragraphs (c)(1)(vii) through (xi) as paragraphs
(c)(1)(vi) through (x);
0
f. Revising paragraph (c)(2)(i);
0
g. Revising the paragraph (d) heading, and paragraphs (d)(1)(ii) and
(iii);
0
h. Removing paragraph (d)(1)(viii);
0
i. Redesignating paragraphs (d)(1)(ix) and (x) as paragraphs
(d)(1)(viii) and (ix);
0
j. Adding at the end of paragraph (d)(2)(ii) the word ``and'' after the
semi-colon;
0
k. Removing the text ``; and'' at the end of paragraph (d)(2)(iii) and
adding a period in its place;
0
l. Removing paragraph (d)(2)(iv); and
0
m. Revising paragraph (e).
The revisions read as follows:
Sec. 124.10 Public notice of permit actions and public comment
period.
(a) * * *
(1) The Director shall give public notice that the following
actions have occurred:
(i) A permit application has been tentatively denied under Sec.
124.6(b);
(ii) (Applicable to State programs, see 40 CFR 123.25 (NPDES),
145.11 (UIC), and 271.14 (RCRA).) A draft permit has been prepared
under Sec. 124.6(d);
(iii) (Applicable to State programs, see 40 CFR 123.25 (NPDES),
145.11 (UIC), and 271.14 (RCRA)).) A hearing has been scheduled under
Sec. 124.12; or
(iv) An NPDES new source determination has been made under Sec.
122.29 of this subchapter.
* * * * *
(b) Timing (applicable to State programs, see 40 CFR 123.25
(NPDES), 145.11 (UIC), and 271.14 (RCRA)).
* * * * *
(c) Methods (applicable to State programs, see 40 CFR 123.25
(NPDES), 145.11 (UIC), and 271.14 (RCRA)). Public notice of activities
described in paragraph (a)(1) of this section shall be given by the
following methods:
(1) * * *
(i) The applicant (except for NPDES general permits when there is
no applicant);
(ii) Any other agency which the Director knows has issued or is
required to issue a RCRA, UIC, PSD (or other permit under the Clean Air
Act), NPDES, sludge management permit, or ocean dumping permit under
the Marine Research Protection and Sanctuaries Act for the same
facility or activity (including EPA when the draft permit is prepared
by the State);
* * * * *
(iv) For NPDES permits only, any State agency responsible for plan
development under CWA section 208(b)(2), 208(b)(4) or 303(e) and the
U.S. Army Corps of Engineers, the U.S.
[[Page 103501]]
Fish and Wildlife Service and the National Marine Fisheries Service;
* * * * *
(2)(i) For major permits, NPDES general permits, and permits that
include sewage sludge land application plans under 40 CFR
501.15(a)(2)(ix), publication of a notice in a daily or weekly
newspaper within the area affected by the facility or activity; and for
EPA-issued NPDES general permits, in the Federal Register;
Note 1 to paragraph (c)(2)(i): The Director is encouraged to
provide as much notice as possible of the NPDES draft general permit
to the facilities or activities to be covered by the general permit.
* * * * *
(d) Contents (applicable to State programs, see 40 CFR 123.25
(NPDES), 145.11 (UIC), and 271.14 (RCRA))--
(1) * * *
(ii) Name and address of the permittee or permit applicant and, if
different, of the facility or activity regulated by the permit, except
in the case of NPDES draft general permits under 40 CFR 122.28;
(iii) A brief description of the business conducted at the facility
or activity described in the permit application or the draft permit,
for NPDES general permits when there is no application;
* * * * *
(e) (Applicable to State programs, see 40 CFR 123.25 (NPDES),
145.11 (UIC), and 271.14 (RCRA).) In addition to the general public
notice described in paragraph (d)(1) of this section, all persons
identified in paragraphs (c)(1) (i) through (iv) of this section shall
be mailed a copy of the fact sheet or statement of basis (for EPA-
issued permits), the permit application (if any) and the draft permit
(if any).
0
11. Revise Sec. 124.11 to read as follows:
Sec. 124.11 Public comments and requests for public hearings.
(Applicable to State programs, see 40 CFR 123.25 (NPDES), 145.11
(UIC), and 271.14 (RCRA).) During the public comment period provided
under Sec. 124.10, any interested person may submit written comments
on the draft permit and may request a public hearing, if no hearing has
already been scheduled. A request for a public hearing shall be in
writing and shall state the nature of the issues proposed to be raised
in the hearing. All comments shall be considered in making the final
decision and shall be answered as provided in Sec. 124.17.
0
12. Amend Sec. 124.12 by revising the paragraph (a) heading to read as
follows:
Sec. 124.12 Public hearings.
(a) (Applicable to State programs, see 40 CFR 123.25 (NPDES),
145.11 (UIC), and 271.14 (RCRA).)
* * * * *
0
13. Amend Sec. 124.17 by revising the paragraph (a) heading, and
paragraphs (a)(2) and (c) to read as follows:
Sec. 124.17 Response to comments.
(a) (Applicable to State programs, see 40 CFR 123.25 (NPDES),
145.11 (UIC), and 271.14 (RCRA).)
* * * * *
(2) Briefly describe and respond to all significant comments on the
draft permit raised during the public comment period, or during any
hearing.
* * * * *
(c) (Applicable to State programs, see 40 CFR 123.25 (NPDES),
145.11 (UIC), and 271.14 (RCRA).) The response to comments shall be
available to the public.
PART 232--404 PROGRAM DEFINITIONS--EXEMPT ACTIVITIES NOT REQUIRING
404 PERMITS
0
14. The authority citation for part 232 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
0
15. Amend Sec. 232.2 by revising the definition of ``State regulated
waters'' to read as follows:
Sec. 232.2 Definitions.
* * * * *
State regulated waters means those waters of the United States in
which the Corps suspends the issuance of section 404 permits upon
program assumption by a State, which exclude those identified as
retained waters pursuant to 40 CFR 233.11(i). All waters of the United
States other than those identified as retained waters in a State with
an approved program shall be under jurisdiction of the State program,
and shall be identified in the program description as required by 40
CFR part 233.
* * * * *
PART 233--404 STATE PROGRAM REGULATIONS
0
16. The authority citation for part 233 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
0
17. Amend Sec. 233.1 by:
0
a. Revising the fourth sentence in paragraph (b);
0
b. Removing the note that appears after paragraph (c);
0
c. Revising paragraph (d); and
0
d. Adding paragraphs (e) and (f).
The revisions and additions read as follows:
Sec. 233.1 Purpose and scope.
* * * * *
(b) * * * The discharges previously authorized by a Corps' general
permit will be regulated by State permits. * * *
* * * * *
(d) State assumption of the section 404 program is limited to
certain waters, as provided in section 404(g)(1) and as identified
through the process laid out in Sec. 233.11(i). The Federal program
operated by the Corps of Engineers continues to apply to the remaining
waters in the State even after program approval. However, this does not
restrict States from regulating discharges of dredged or fill material
into those waters over which the Secretary retains section 404
jurisdiction.
(e) Any approved State Program shall, at all times, be conducted in
accordance with the requirements of the Act and of this part. While
States may impose more stringent requirements, they may not impose any
less stringent requirements for any purpose. States may not make one
requirement more lenient than required under these regulations as a
tradeoff for making another requirement more stringent than required.
Where the 404(b)(1) Guidelines (40 CFR part 230) or other regulations
affecting State 404 programs suggest that the District Engineer or
Corps of Engineers is responsible for certain decisions or actions
(e.g., approving mitigation bank instruments), in an approved State
Program the State Director carries out such action or responsibility
for purposes of that program, as appropriate.
(f) EPA may facilitate resolution of disputes between Federal
agencies, Tribes, and States seeking to assume and/or administer a CWA
section 404 program. Where a dispute resolution or elevation process is
enumerated in this part or in an agreement approved by EPA at the time
of assumption or program revision, such process and procedures shall be
followed.
0
18. Amend Sec. 233.2 by:
0
a. Adding in alphabetical order the definitions for ``Indian lands'',
``Retained waters description'', and ``RHA section 10 list''; and
0
b. Revising the definition ``State 404 program or State program''.
The additions and revision read as follows:
Sec. 233.2 Definitions.
* * * * *
[[Page 103502]]
Indian lands means ``Indian country'' as defined under 18 U.S.C.
1151. That section defines Indian country as:
(1) All land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and, including rights-of-way running through
the reservation,
(2) All dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a State,
and
(3) All Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.
* * * * *
Retained waters description: The subset of waters of the United
States over which the Corps retains administrative authority upon
program assumption by a State as identified through the process at
Sec. 233.11(i). The description shall address, in the case of State
assumption, the extent to which waters on Indian lands are retained.
RHA section 10 list: The list of waters determined to be navigable
waters of the United States pursuant to section 10 of the Rivers and
Harbors Act and 33 CFR part 329 and that are maintained in Corps
district offices pursuant to 33 CFR 329.16.
* * * * *
State 404 program or State program means a program which has been
approved by EPA under section 404 of the Act to regulate the discharge
of dredged or fill material into all waters of the United States except
those identified in the retained waters description as defined in Sec.
233.2.
0
19. Revise Sec. 233.4 to read as follows:
Sec. 233.4 Conflict of interest.
Any public officer, employee, or individual with responsibilities
related to the section 404 permitting program who has a direct personal
or pecuniary interest in any matter that is subject to decision by the
agency shall make known such interest in the official records of the
agency and shall refrain from participating in any manner in such
decision by the agency or any entity that reviews agency decisions.
0
20. Amend Sec. 233.10 by revising paragraph (a) to read as follows:
Sec. 233.10 Elements of a program submission.
* * * * *
(a) A letter from the Governor of the State or Tribal leader
requesting program approval.
* * * * *
0
21. Revise Sec. 233.11 to read as follows:
Sec. 233.11 Program description.
The program description as required under Sec. 233.10 shall
include:
(a) A description of the scope and structure of the State's
program. The description must include the extent of the State's
jurisdiction, scope of activities regulated, anticipated coordination,
scope of permit exemptions if any, permit review criteria, and a
description as to how the permit review criteria will be sufficient to
carry out the requirements of 40 CFR part 233 subpart C.
(b) A description of the State's permitting, administrative,
judicial review, and other applicable procedures.
(c) A description of the basic organization and structure of the
State agency (agencies) which will have responsibility for
administering the program. If more than one State agency is responsible
for the administration of the program, the description shall address
the responsibilities and additional budget and funding mechanisms of
each agency and how the agencies intend to coordinate administration,
funding, compliance, enforcement, and evaluation of the program.
(d) A description of the funding and staffing which will be
available for program administration, including staff position
descriptions and qualifications as well as program budget and funding
mechanisms, sufficient to meet the requirements of 40 CFR part 233,
subparts C through E.
(e) A description and schedule of the actions that will be taken
following EPA approval for the State to begin administering the program
if the State makes a request to assume administration of the program
more than 30 days after EPA's approval.
(f) An estimate of the anticipated workload, including but not
limited to number of discharges, permit reviews, authorizations and
field visits, and decisions regarding jurisdiction.
(g) Copies of permit application forms, permit forms, and reporting
forms.
(h) A description of the State's compliance evaluation and
enforcement programs, including staff position descriptions and
qualifications as well as program budget and funding mechanisms,
sufficient to meet the requirements of 40 CFR part 233, subpart E, and
an explanation of how the State will coordinate its enforcement
strategy with that of the Corps and EPA.
(i) A description of the waters of the United States within a State
over which the State assumes jurisdiction under the assumed program; a
description of the waters of the United States within a State over
which the Secretary retains administrative authority subsequent to
program approval; and a comparison of the State and Federal definitions
of wetlands.
(1) Before a State provides a program submission to the Regional
Administrator, the Governor, Tribal leader, or Director shall submit a
request to the Regional Administrator that the Corps identify the
subset of waters of the United States that would remain subject to
Corps administrative authority to include in its program submission.
The request shall also include one of the following elements of
required information: a citation or copy of legislation authorizing
funding to prepare for assumption, a citation or copy of legislation
authorizing assumption, a Governor or Tribal leader directive, a letter
from the head of a State agency, or a copy of a letter awarding a grant
or other funding allocated to investigate and pursue assumption. If the
Regional Administrator determines that the request includes the
required information, within seven days of receiving the State's
request, the Regional Administrator shall transmit the request for the
retained waters description to the Corps. Transmitting the request to
the Corps is intended to allow the Corps time to review its RHA section
10 list(s) and prepare a description of retained waters based on that
list(s), in accordance with paragraph (i)(4) of this section, if the
Corps chooses to do so.
(2) When the Regional Administrator transmits a request for the
retained waters description to the Corps, the Regional Administrator
shall notify the public of this transmission by posting a notice on its
website and circulating notice to those persons known to be interested
in such matters of its transmission, inviting public input to the Corps
and the State for the subsequent 60 days on the development of the
description.
(3) If the Corps does not notify the State and EPA that it intends
to provide a retained waters description within 30 days of receiving
the State's request transmitted by EPA, or if it does not provide a
retained waters description within 180 days of receiving the State's
request transmitted by EPA, the State may develop a retained waters
[[Page 103503]]
description pursuant to the process described in paragraph (i)(4) of
this section. Alternatively, the State and the Corps may mutually agree
to extend the time period in which the Corps may develop the retained
waters description.
(4) The program description in the State's program request to the
Regional Administrator shall include a description of those waters of
the United States over which the Corps retains administrative
authority. The description may be a retained waters description that
the Corps provides the State pursuant to paragraph (i)(1) of this
section, or, if the Corps did not provide a list to the State, a
description that the State prepares pursuant to paragraph (i)(3) of
this section. The retained waters description prepared by either the
Corps or the State shall be compiled as follows:
(i) Using the relevant RHA section 10 list(s) as a starting point;
(ii) Placing waters of the United States, or reaches of these
waters, from the RHA section 10 list into the retained waters
description if they are known to be presently used or susceptible to
use in their natural condition or by reasonable improvement as a means
to transport interstate or foreign commerce;
(iii) To the extent feasible and to the extent that information is
available, adding other waters or reaches of waters to the retained
waters description that are presently used or are susceptible to use in
their natural condition or by reasonable improvement as a means to
transport interstate or foreign commerce; and
(iv) Adding a description of retained wetlands that are adjacent to
the foregoing waters. A specific listing of each wetland that is
retained is not required.
(5) As a general matter, descriptions of retained waters compiled
in accordance with the process in paragraph (i)(4) of this section will
satisfy the statutory criteria for retained waters. The Regional
Administrator ultimately determines whether to approve a State program
submission, however.
(6) The State assumes permitting authority over all waters of the
United States not retained by the Corps as described in paragraph
(i)(4) of this section. The State does not assume permitting authority
over waters of the United States in Indian Country and Lands of
Exclusive Federal Jurisdiction, as these are outside of the State's
jurisdiction. All discharges of dredged or fill material into waters of
the United States must be regulated either by the State or the Corps;
at no time shall there be a gap in permitting authority for any water
of the United States.
(j) A description of the specific best management practices
proposed to be used to satisfy the exemption provisions of section
404(f)(1)(E) of the Act for construction or maintenance of farm roads,
forest roads, or temporary roads for moving mining equipment.
(k) A description of the State's approach to ensure that all
permits issued satisfy the substantive standards and criteria for the
use of compensatory mitigation consistent with the requirements of 40
CFR part 230, subpart J. The State's approach may deviate from the
specific requirements of subpart J to the extent necessary to reflect
State administration of the program using State processes as opposed to
Corps administration. For example, a State program may choose to
provide for mitigation in the form of banks and permittee-responsible
compensatory mitigation but not establish an in-lieu fee program. A
State program may not be less stringent than the requirements of
subpart J.
0
22. Amend Sec. 233.13 by adding paragraph (b)(5) to read as follows:
Sec. 233.13 Memorandum of Agreement with Regional Administrator.
* * * * *
(b) * * *
(5) Provisions specifying the date upon which the State shall begin
administering its program. This effective date shall be 30 days from
the date that notice of the Regional Administrator's decision is
published in the Federal Register, except where the Regional
Administrator has agreed to a State's request for a later effective
date, not to exceed 180 days from the date of publication of the
decision in the Federal Register.
0
23. Amend Sec. 233.14 by revising paragraph (b) to read as follows:
Sec. 233.14 Memorandum of Agreement with the Secretary.
* * * * *
(b) The Memorandum of Agreement shall include:
(1) A description of all navigable waters within the State over
which the Corps retains administrative authority. Retained waters shall
be identified in accordance with procedures set forth in Sec.
233.11(i).
(2) Procedures whereby the Secretary will, prior to or on the
effective date set forth in the Memorandum of Agreement with the
Regional Administrator, transfer to the State pending section 404
permit applications for discharges into State regulated waters and
other relevant information not already in the possession of the
Director.
Note 1 to paragraph (b)(2): Where a State permit program
includes coverage of those navigable waters in which only the
Secretary may issue section 404 permits, the State is encouraged to
establish in this Memorandum of Agreement procedures for joint
processing of Federal and State permits, including joint public
notice and public hearings.
(3) An identification of all general permits issued by the
Secretary, the terms and conditions of which the State intends to
administer and enforce upon receiving approval of its program, and a
plan for transferring responsibility for these general permits to the
State, including procedures for the prompt transmission from the
Secretary to the Director relevant information not already in the
possession of the Director. The information to be transferred includes
but is not limited to support files for permit issuance, conditions and
certifications placed on the Corps general permits, compliance reports,
and records of enforcement actions.
(4) Procedures whereby the Secretary would notify the State of
changes to its RHA section 10 list that implicate waters that are
presently used, or are susceptible to use in their natural condition or
by reasonable improvement as a means to transport interstate or foreign
commerce, and the State would then incorporates these changes into its
retained waters description, pursuant to the procedures in Sec.
233.16(d).
0
24. Amend Sec. 233.15 by:
0
a. Revising the first sentence of the introductory text of paragraph
(e);
0
b. Revising the second sentence of paragraph (g); and
0
c. Revising paragraph (h).
The revisions read as follows:
Sec. 233.15 Procedures for approving State programs.
* * * * *
(e) After determining that a State program submission is complete,
the Regional Administrator shall publish notice of the State's program
submission in the Federal Register and in enough of the largest
newspapers in the State to attract statewide attention. * * *
* * * * *
(g) * * * The Regional Administrator shall prepare a responsiveness
summary of significant comments received and the Regional
Administrator's response to these comments. * * *
(h) If the Regional Administrator approves the State's section 404
program, the Regional Administrator shall notify the State and the
Secretary of the decision, publish notice in the Federal Register, and
post notice on
[[Page 103504]]
EPA's website. The program for State-assumed waters shall transfer to
the State on the date established in the Memorandum of Agreement
between the State and Regional Administrator. The Secretary shall
suspend the issuance by the Corps of section 404 permits in State
regulated waters on such effective date.
* * * * *
0
25. Amend Sec. 233.16 by revising paragraphs (d)(2) and (3), and (e)
to read as follows:
Sec. 233.16 Procedures for revision of State programs.
* * * * *
(d) * * *
(2) Notice of approval of program changes which the Regional
Administrator determines are not substantial revisions may be given by
letter from the Regional Administrator to the Governor or the Tribal
leader and are effective upon the date in the approval letter. The
Regional Administrator will notify the Secretary of the approval of any
approved program modifications. The Regional Administrator will also
notify other Federal agencies of approved program modifications as
appropriate. The Regional Administrator shall post any such approval
letters on the relevant pages of EPA's website.
(3) Whenever the Regional Administrator determines that the
proposed revision is substantial, the Regional Administrator shall
publish and circulate notice to those persons known to be interested in
such matters, provide opportunity for a public hearing, and consult
with the Corps, FWS, and NMFS. The Regional Administrator shall approve
or disapprove program revisions based on whether the program fulfills
the requirements of the Act and this part, and shall publish notice of
the decision in the Federal Register. For purposes of this paragraph,
substantial revisions include, but are not limited to, revisions that
remove waters from the retained waters description (other than de
minimis removals), as well as revisions that affect the scope of
activities regulated, criteria for review of permits, public
participation, or enforcement capability. Revisions to an Indian
Tribe's assumed program that would add a new geographic area to the
approved program require that the Regional Administrator determine that
the Tribe meets the eligibility criteria in Sec. 233.60 with regard to
the new geographic area and constitute substantial revisions.
* * * * *
(e) Whenever the Regional Administrator has reason to believe that
circumstances have changed with respect to a State's program, the
Regional Administrator may request and the State shall provide a
supplemental Attorney General's statement, program description, or such
other documents or information as are necessary to evaluate the
program's compliance with the requirements of the Act and this part.
0
26. Amend Sec. 233.21 by revising paragraphs (b) and (e)(2) to read as
follows:
Sec. 233.21 General permits.
* * * * *
(b) The Director may issue a general permit for categories of
similar activities if the Director determines that the regulated
activities will cause only minimal adverse environmental effects when
performed separately and will have only minimal cumulative adverse
effects on the environment. Any general permit issued shall be in
compliance with the section 404(b)(1) Guidelines.
* * * * *
(e) * * *
(2) Once the Director notifies the discharger of the Director's
decision to exercise discretionary authority to require an individual
permit, the discharger's activity is no longer authorized by the
general permit.
0
27. Amend Sec. 233.23 by revising the introductory text of paragraph
(c)(8) to read as follows:
Sec. 233.23 Permit conditions.
* * * * *
(c) * * *
(8) Inspection and entry. The permittee shall allow the Director,
or the Director's authorized representative, upon presentation of
proper identification, at reasonable times to:
* * * * *
0
28. Add Sec. 233.24 to subpart C read as follows:
Sec. 233.24 Judicial review.
All States that administer or seek to administer a program under
this part shall provide an opportunity for judicial review in State
Court of the final approval or denial of permits by the State that is
sufficient to provide for, encourage, and assist public participation
in the permitting process. Indian Tribes must provide a commensurate
form of citizen recourse for permit applicants and others affected by
Tribe-issued permits.
0
29. Amend Sec. 233.30 by revising paragraphs (a) and (b)(5) to read as
follows:
Sec. 233.30 Application for a permit.
(a) Except when an activity is authorized by a general permit
issued pursuant to Sec. 233.21 or is exempt from the requirements to
obtain a permit under Sec. 232.3, any person who proposes to discharge
dredged or fill material into State regulated waters shall complete,
sign, and submit a permit application to the Director. Applicants for
projects that take more than five years to complete must submit a
complete application for each five-year permit, and an applicant
seeking a new five-year permit must apply for the new permit at least
180 days prior to the expiration of the current permit. The Tribe or
State may grant permission to submit an application less than 180 days
prior to the expiration of the current permit but no later than the
permit expiration date. Persons proposing to discharge dredged or fill
material under the authorization of a general permit must comply with
any reporting requirements of the general permit.
(b) * * *
(5) All activities which the applicant plans to undertake which are
reasonably related to the same project must be included in the same
permit application. For projects for which the planned schedule extends
beyond five years at the time of the initial five-year permit
application, the application for both the first and subsequent five-
year permits must include an analysis demonstrating that each element
of the 404(b)(1) Guidelines is met, consistent with 40 CFR part 230,
for the full term of the project. Applicants for subsequent five-year
permits must update the 404(b)(1) Guidelines analysis if there has been
a change in circumstance related to the project following approval of
the previous five-year permit, and clearly indicate whether the
404(b)(1) Guidelines analysis has been updated.
* * * * *
0
30. Revise and republish Sec. 233.31 to read as follows:
Sec. 233.31 Coordination requirements.
(a) If a proposed discharge may affect the biological, chemical, or
physical integrity of the waters of any State(s) other than the State
in which the discharge occurs, the Director shall provide an
opportunity for such State(s) to submit written comments within the
public comment period and to suggest permit conditions. If these
recommendations are not accepted by the Director, the Director shall
notify the affected State and the Regional Administrator in writing
prior to permit issuance of the Director's failure to accept these
recommendations, together
[[Page 103505]]
with the Director's reasons for so doing. The Regional Administrator
shall then have the time provided for in Sec. 233.50(d) to comment
upon, object to, or make recommendations.
(b) State section 404 permits shall be coordinated with the Federal
and Federal-State water related planning and review processes.
(c) For the purposes of Sec. 233.31(a), the definition of
``State'' in Sec. 233.2 includes Indian Tribes that have been approved
by EPA under CWA section 518 and applicable regulations for eligibility
to administer any CWA provision as well as Indian Tribes that have been
approved by EPA under paragraph (d) of this section for eligibility for
the purpose of commenting under Sec. 233.31(a).
(d) An Indian Tribe may apply to the Regional Administrator for a
determination that it meets the statutory criteria of section 518 of
the CWA, 33 U.S.C. 1377, to be treated in a manner similar to that in
which EPA treats a State, for purposes of the coordination requirements
of sections 404(h)(1)(C) and (E), 33 U.S.C. 1344(h)(1)(C) and (E), of
the CWA and paragraphs (a) and (c) of this section.
(1) The Tribe's application shall concisely describe how:
(i) The Indian Tribe is recognized by the Secretary of the
Interior;
(ii) The Indian Tribe has a governing body carrying out substantial
governmental duties and powers;
(iii) The functions to be exercised by the Indian Tribe pertain to
the management and protection of water resources which are held by an
Indian Tribe, held by the United States in trust for Indians, held by a
member of an Indian Tribe if such property interest is subject to a
trust restriction on alienation, or otherwise within the borders of the
Indian reservation; and
(iv) The Indian Tribe is reasonably expected to be capable, in the
Regional Administrator's judgment, of carrying out the functions to be
exercised in a manner consistent with the terms and purposes of the CWA
and applicable regulations.
(2) The Regional Administrator shall promptly notify the Indian
Tribe of receipt of an application submitted under this section and
shall process such application in a timely manner.
0
31. Amend Sec. 233.32 by revising the introductory text of paragraph
(c)(1) and paragraph (d)(6) to read as follows:
Sec. 233.32 Public notice.
* * * * *
(c) * * *
(1) By mailing a copy of the notice to the following persons (any
person otherwise entitled to receive notice under this paragraph (c)(1)
may waive their rights to receive notice for any classes or categories
of permits):
* * * * *
(d) * * *
(6) A paragraph describing the various evaluation factors,
including the 404(b)(1) Guidelines or State-equivalent criteria, on
which decisions are based. For projects with a planned schedule that
extends beyond five years at the time of the initial five-year permit
application, the public notice for subsequent five-year permits must
indicate whether the 404(b)(1) Guidelines analysis has been updated.
* * * * *
0
32. Amend Sec. 233.33 by revising paragraph (b) to read as follows:
Sec. 233.33 Public hearing.
* * * * *
(b) The Director shall hold a public hearing whenever the Director
determines there is a significant degree of public interest in a permit
application or a draft general permit. The Director may also hold a
hearing, at the Director's discretion, whenever the Director determines
a hearing may be useful to a decision on the permit application.
* * * * *
0
33. Amend Sec. 233.34 by revising paragraph (c) to read as follows:
Sec. 233.34 Making a decision on the permit application.
* * * * *
(c) After the Director has completed review of the application and
consideration of comments, the Director will determine, in accordance
with the record and all applicable regulations, whether or not the
permit should be issued. No permit shall be issued by the Director
under the circumstances described in Sec. 233.20. The Director shall
prepare a written determination on each application outlining the
Director's decision and rationale for the decision. For projects with a
planned schedule that extends beyond five years at the time of the
initial five-year permit application, if the Director decides not to
require an update to the 404(b)(1) Guidelines for a subsequent five-
year permit, the Director must provide a detailed written explanation
of the decision not to require an update in its determination for the
subsequent five-year permit. The determination shall be dated, signed,
and included in the official record prior to final action on the
application. The official record shall be open to the public.
0
34. Amend Sec. 233.36 by revising the introductory text of paragraph
(a) and revising paragraph (c)(1) to read as follows:
Sec. 233.36 Modification, suspension or revocation of permits.
(a) General. The Director may reevaluate the circumstances and
conditions of a permit either on the Director's own motion or at the
request of the permittee or of a third party and initiate action to
modify, suspend, or revoke a permit if the Director determines that
sufficient cause exists. Among the factors to be considered are:
* * * * *
(c) * * *
(1) The Director shall develop procedures to modify, suspend, or
revoke permits if the Director determines cause exists for such action
(Sec. 233.36(a)). Such procedures shall provide opportunity for public
comment (Sec. 233.32), coordination with the Federal review agencies
(Sec. 233.50), and opportunity for public hearing (Sec. 233.33)
following notification of the permittee. When permit modification is
proposed, only the conditions subject to modification need be reopened.
* * * * *
0
35. Revise Sec. 233.37 to read as follows:
Sec. 233.37 Signatures on permit applications and reports.
The application and any required reports must be signed by the
person who desires to undertake the proposed activity or by that
person's duly authorized agent if accompanied by a statement by that
person designating the agent. In either case, the signature of the
applicant or the agent will be understood to be an affirmation that the
applicant or the agent possesses or represents the person who possesses
the requisite property interest to undertake the activity proposed in
the application.
0
36. Amend Sec. 233.41 by revising paragraph (b)(2) to read as follows:
Sec. 233.41 Requirements for enforcement authority.
(b) * * *
(2) The burden of proof and degree of knowledge or intent required
under State law for establishing violations under paragraph (a)(3) of
this section, shall be no greater than the burden of proof or degree of
knowledge or intent EPA must provide when it brings an action under the
Act, except that a State may establish criminal violations based on any
form or type of negligence.
* * * * *
0
37. Amend Sec. 233.50 by:
0
a. Revising the section heading;
[[Page 103506]]
0
b. Revising paragraphs (d), (e), (f), and (h)(1); and
0
c. Adding paragraph (k).
The revisions read as follows:
Sec. 233.50 Review of and objection to State permits and review of
compensatory mitigation instruments.
* * * * *
(d) If the Regional Administrator intends to comment upon, object
to, or make recommendations with respect to a permit application, draft
general permit, or the Director's failure to accept the recommendations
of an affected State submitted pursuant to Sec. 233.31(a), the
Regional Administrator shall notify the Director of the Regional
Administrator's intent within 30 days of receipt. If the Director has
been so notified, the permit shall not be issued until after the
receipt of such comments or 90 days of the Regional Administrator's
receipt of the public notice, draft general permit, or Director's
response (Sec. 233.31(a)), whichever comes first. The Regional
Administrator may notify the Director within 30 days of receipt that
there is no comment but that the Regional Administrator reserves the
right to object within 90 days of receipt, based on any new information
brought out by the public during the comment period or at a hearing.
(e) If the Regional Administrator has given notice to the Director
under paragraph (d) of this section, the Regional Administrator shall
submit to the Director, within 90 days of receipt of the public notice,
draft general permit, or Director's response (Sec. 233.31(a)), a
written statement of the Regional Administrator's comments, objections,
or recommendations; the reasons for the comments, objections, or
recommendations; and the actions that must be taken by the Director in
order to eliminate any objections. Any such objection shall be based on
the Regional Administrator's determination that the proposed permit is:
(1) The subject of an interstate dispute under Sec. 233.31(a);
and/or
(2) Outside requirements of the Act, these regulations, or the
404(b)(1) Guidelines. The Regional Administrator shall make available
upon request a copy of any comment, objection, or recommendation on a
permit application or draft general permit to the permit applicant or
to the public.
(f) When the Director has received an EPA objection or requirement
for a permit condition to a permit application or draft general permit
under this section, the Director shall not issue the permit unless the
Director has taken the steps required by the Regional Administrator to
eliminate the objection.
* * * * *
(h) * * *
(1) If the Regional Administrator withdraws the objection or
requirement for a permit condition, the Director may issue the permit.
* * * * *
(k) If the State establishes third-party compensation mechanisms as
part of its section 404 program (e.g., banks or in-lieu fee programs),
the Director must transmit a copy of instruments associated with these
compensatory mitigation approaches to the Regional Administrator, the
Corps, FWS, and NMFS for review prior to issuance, as well as to any
other State agencies to the extent the State committed to do so in the
program description pursuant to Sec. 233.11(k). To the extent the
State deems appropriate, the Director may also send these draft
instruments to other relevant State agencies for review. This
transmission and review requirement does not apply to permittee-
responsible compensatory mitigation. If the Regional Administrator, the
Corps, FWS, or NMFS intend to comment upon such instruments they must
notify the Director of their intent within 30 days of receipt. If the
Director has been so notified, the instrument must not be issued until
after the receipt of such comments or after 90 days of receipt of the
proposed instrument by the Regional Administrator, the Corps, the FWS,
or NMFS. The Director must respond to any comments received within 90
days from the Regional Administrator, the Corps, FWS, NMFS, or State
agencies that received the draft instruments pursuant to the State
program description and inform the commenting agency of any comments or
recommendations not accepted prior to approving the final compensatory
mitigation instrument. In the event that the Regional Administrator has
commented that the instrument fails to apply or ensure compliance with
the requirements of Sec. 233.11(k), the Director must not approve the
final compensatory mitigation instrument until the Regional
Administrator notifies the Director that the final instrument ensures
compliance with Sec. 233.11(k).
0
38. Amend Sec. 233.51 by adding paragraph (d) to read as follows:
Sec. 233.51 Waiver of review.
* * * * *
(d) If within 20 days of public notice of a permit application,
pursuant to Sec. 233.32, a Tribe notifies EPA that the application
potentially affects Tribal rights or interests, including those beyond
reservation boundaries, EPA will request a copy of the public notice
for the permit application, even if Federal review of the relevant
category of discharge has been waived, and the Regional Administrator
and the Director shall then proceed in accordance with Sec. 233.50.
0
39. Amend Sec. 233.52 by revising paragraphs (b) and (e) to read as
follows:
Sec. 233.52 Program reporting.
* * * * *
(b) The Director shall submit to the Regional Administrator within
90 days after completion of the annual period, a draft annual report
evaluating the State's administration of its program identifying
problems the State has encountered in the administration of its
program, steps taken to resolve these problems, and recommendations for
resolving any outstanding problems along with a timeline for
resolution. Items that shall be addressed in the annual report include
an assessment of the cumulative impacts of the State's permitting
program on the integrity of the State regulated waters; identification
of areas of particular concern or interest within the State; the number
and nature of individual and general permits issued, modified, and
denied; the number of violations identified and number and nature of
enforcement actions taken; the number of suspected unauthorized
activities reported and nature of action taken; an estimate of the
extent of activities regulated by general permits; the number of permit
applications received but not yet processed; and an assessment of
avoidance, minimization, and compensation required for permits issued,
including the type and quantity of resources impacted, type and
quantity of compensation required (including quantification and
rationale for out-of-kind or compensation provided outside the
watershed), and a description of why compensation was not required, if
applicable. The Annual Report shall briefly summarize resolution of
issues identified in the previous Annual Report. Additionally, to the
extent appropriate, the Annual Report should analyze program resources
and staffing, including staffing changes, training, and vacancy rate
since approval or the previous Annual Report.
* * * * *
(e) Within 30 days of receipt of the Regional Administrator's final
comments, the Director will finalize the annual report, incorporating
and/or
[[Page 103507]]
responding to the Regional Administrator's comments, and transmit the
final report to the Regional Administrator. The Director shall make a
copy of the final annual report, accepted by the Regional
Administrator, publicly available.
* * * * *
0
40. Amend Sec. 233.53 by revising paragraphs (a)(1) and (c) to read as
follows:
Sec. 233.53 Withdrawal of program approval.
(a) * * *
(1) The State shall give the Administrator and the Secretary no
less than 180 days' notice of the proposed transfer. With the notice,
the State shall submit a plan for the orderly transfer of all relevant
program information not in the possession of the Secretary (such as
permits, permit files, reports, permit applications, as well as files
regarding ongoing investigations, compliance orders, and enforcement
actions) which are necessary for the Secretary to administer the
program. The notice shall include the proposed transfer date.
* * * * *
(c) The following procedures apply when the Administrator orders
the commencement of proceedings to determine whether to withdraw
approval of a State program:
(1) Notice to State. If the Regional Administrator has cause to
believe that a State is not administering or enforcing its assumed
program in compliance with the requirements of the CWA and this part,
the Regional Administrator shall inform the Director in writing of the
specific areas of alleged noncompliance. If the State demonstrates to
the Regional Administrator within 30 days of such notification that the
State program is in compliance, the Regional Administrator shall take
no further action toward withdrawal, and shall so notify the State in
writing.
(2) Public hearing. If the State has not demonstrated its
compliance to the satisfaction of the Regional Administrator within 30
days of notification, the Regional Administrator shall inform the
Director of that finding. The Administrator shall then schedule a
public hearing to solicit comments on the administration of the State
program and its compliance with the Act and this part. Notice of such
public hearing shall be published in the Federal Register, on EPA's
website, and in enough of the largest newspapers and/or news websites
in the State to attract statewide attention and mailed or emailed to
persons on appropriate Tribal, State, and EPA mailing lists. This
hearing shall be convened not less than 30 days or more than 60 days
following the date of publication of the notice of the hearing in the
Federal Register. Notice of the hearing shall identify the
Administrator's concerns. All interested parties shall be given
opportunity to make written or oral presentations on the State's
program at the public hearing.
(3) Notice to State of findings. If the Administrator finds, after
the public hearing, that the State is not in compliance, within 90 days
of the public hearing the Administrator shall notify the State via
letter of the specific deficiencies in the State program, including
administration and enforcement, and of necessary remedial actions.
Within 90 days of receipt of the above letter, the State shall either
carry out the required remedial action(s) or the Administrator shall
withdraw program approval. If the State performs all required remedial
action(s) in the allotted time or, if the Administrator determines as a
result of the hearing that the State is in compliance, the
Administrator shall so notify the State in writing and conclude the
withdrawal proceedings. If the Administrator makes the determination
that the assumed program should be withdrawn, then such determination
will be published in the Federal Register, and the Administrator shall
remove from the CFR, as appropriate, any provision addressing that
State's assumed program. The effective date of the withdrawal, and the
date upon which the Corps shall be the permitting authority, shall be
30 days after publication of the Administrator's decision in the
Federal Register.
(4) Determination to withdraw. The Administrator's determination to
withdraw program approval shall constitute final Agency action within
the meaning of 5 U.S.C. 704.
* * * * *
Sec. 233.60 [Amended]
0
41. Amend Sec. 233.60 paragraph (c) by removing the word ``Untied''
and adding in its place the word ``United.''
0
42. Amend Sec. 233.61 by revising paragraph (e) to read as follows:
Sec. 233.61 Determination of Tribal eligibility.
* * * * *
(e) The Administrator may, at the Administrator's discretion,
request further documentation necessary to support a Tribal
application.
* * * * *
0
43. Revise and republish Sec. 233.62 to read as follows:
Sec. 233.62 Procedures for processing an Indian Tribe's application.
(a) The Regional Administrator shall process an application of an
Indian Tribe submitted pursuant to Sec. 233.61 in a timely manner. The
Regional Administrator shall promptly notify the Indian Tribe of
receipt of the application.
(b) The Regional Administrator shall follow the procedures
described in Sec. 233.15 in processing a Tribe's request to assume the
404 dredge and fill permit program.
(c) The Regional Administrator shall follow the procedures for
substantial program revisions described in Sec. 233.16 in processing a
Tribe's request to add additional geographic area(s) to its assumed 404
dredged or fill material permit program that would add reservation
areas to the scope of its approved program. A Tribe making such a
request shall provide an application meeting the requirements of Sec.
233.61 that describes how the Tribe meets the eligibility criteria in
Sec. 233.60 for the new area.
0
44. Revise Sec. 233.70 to read as follows:
Sec. 233.70 Michigan.
The applicable regulatory program for discharges of dredged or fill
material into waters of the United States in Michigan that are not
presently used, or susceptible for use in their natural condition or by
reasonable improvement as a means to transport interstate or foreign
commerce shoreward to the ordinary high water mark, including wetlands
adjacent thereto, except those on Indian lands, is the program
administered by the Michigan Department of Environment, Great Lakes,
and Energy (previously named Department of Natural Resources,
Department of Environmental Quality, and Department of Natural
Resources and Environment), approved by EPA, pursuant to section 404 of
the CWA. Notice of this approval was published in the Federal Register
on October 2, 1984; the effective date of this program is October 16,
1984. This program consists of the following elements, as submitted to
EPA in the State's program submission and subsequently revised.
(a) Incorporation by reference. The Michigan statutes and
regulations cited in paragraphs (a)(1) and (2) of this section are
incorporated by reference as part of the applicable section 404 Program
under the CWA for the State of Michigan. This incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any
edition other than that specified in this section, EPA must
[[Page 103508]]
publish a document in the Federal Register and the material must be
available to the public. This incorporation by reference (IBR) material
is available for inspection at EPA and at the National Archives and
Records Administration (NARA). Copies of this IBR material also may be
obtained from EPA. Contact EPA at: EPA Docket Center Reading Room, WJC
West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC
20004 (phone: 202-566-1744), or send mail to Mail Code 5305G, 1200
Pennsylvania Ave. NW, Washington, DC 20460, and at the Water Division,
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, IL 60604. For information on the availability of this IBR
material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations or email [email protected]. The material may be obtained
from the Michigan Department of Environment, Great Lakes, and Energy
office at 525 W Allegan St., Lansing, MI 48933, phone: 800-662-9278.
(1) Michigan Statutes Applicable to the State's Approved Clean
Water Act Section 404 program (available at www.legislature.mi.gov), as
follows:
(i) The Michigan Administrative Procedures Act of 1969, MCL Sec.
24-201 et seq., in effect as of February 13, 2024.
(ii) Natural Resources and Environmental Protection Act 451 of
1994:
(A) Part 31 Water Resources Protection, MCL Sec. 324.31 et seq.,
in effect as of September 29, 2023.
(B) Part 301 Inland Lakes and Streams, MCL Sec. 324.301 et seq.,
in effect as of October 20, 2021.
(C) Part 303 Wetland Protection, MCL Sec. 324.303 et seq., in
effect as of April 27, 2019.
(D) Part 307 Inland Lake Levels, MCL Sec. 324.307 et seq., in
effect as of October 16, 2020.
(E) Part 315 Dam Safety, MCL Sec. 324.315 et seq., in effect as of
September 10, 2004.
(F) Part 323 Great Lakes Shorelands Protection and Management, MCL
Sec. 324.323 et seq, in effect as of October 20, 2021.
(G) Part 325 Great Lakes Submerged Lands, MCL Sec. 324.325 et
seq., in effect as of October 20, 2021.
(2)(i) Michigan Regulations Applicable to the State's Approved
Clean Water Act Section 404 program (www.michigan.gov/lara/bureau-list/moahr/admin-rules), Michigan Administrative Code, Department of
Environmental Quality, as follows:
(A) Land and Water Management:
(1) Great Lakes Shorelands, R 281.21 through R 281.26 inclusive, in
effect as of 2000.
(2) Wetlands Protection, R 281.921 through R 281.925 inclusive, in
effect as of 2006.
(3) Wetland Mitigation Banking, R 281.951 through R 281.961
inclusive, in effect as of 1997.
(4) Dam Safety, R 281.1301 through R 281.1313 inclusive in effect
as of 1993.
(B) Water Resources Division, Inland Lakes and Streams, R 281.811
through R 281.846 inclusive, in effect as of 2015.
(ii) This material contains Michigan's rules for shoreline
protection, inland lakes and streams, wetlands protection, wetland
mitigation banking, and dam safety.
(b) Other Laws. The following statutes and regulations, although
not incorporated by reference, also are part of the approved State-
administered program:
(1) Administrative Procedures Act, MCL 24.201 et seq.
(2) Freedom of Information Act, MCL 15.231 et seq.
(3) Open Meetings Act, MCL 15.261 et seq.
(4) Natural Resources and Environmental Protection Act 451 of 1994,
Part 17 Michigan Environmental Protection Act, MCL 324.17 et seq.
(c) Memoranda of Agreement. The following memoranda, although not
incorporated by reference also are part of the approved State-
administered program:
(1) The Memorandum of Agreement between EPA Region V and the
Michigan Department of Natural Resources, signed by EPA Region V
Administrator on December 9, 1983. The 1983 Memorandum of Agreement has
subsequently been replaced by a Memorandum of Agreement between EPA
Region 5 and the Michigan Department of Environmental Quality (now
referred to as the Michigan Department of Environment, Great Lakes, and
Energy) signed on November 9, 2011.
(2) The Memorandum of Agreement between the U.S. Army Corps of
Engineers and the Michigan Department of Natural Resources, signed by
the Commander, North Central Division, on March 27, 1984.
(d) Statement of Legal Authority. The following documents, although
not incorporated by reference, also are part of the approved State
administered program:
(1) ``Attorney General Certification section 404/State of
Michigan'', signed by Attorney General of Michigan, as submitted with
the request for approval of ``The State of Michigan 404 Program'',
October 26, 1983.
(e) The Program description and any other materials submitted as
part of the original submission or supplements thereto.
0
45. Amend Sec. 233.71 by:
0
a. Revising the introductory text and paragraph (a);
0
b. Removing paragraph (b); and
0
c. Redesignating paragraphs (c) through (e) as paragraphs (b) through
(d).
The revisions read as follows:
Sec. 233.71 New Jersey.
The applicable regulatory program for discharges of dredged or fill
material into waters of the United States in New Jersey that are not
presently used, or susceptible for use in their natural condition or by
reasonable improvement as a means to transport interstate or foreign
commerce shoreward to the ordinary high water mark, including wetlands
adjacent thereto, except those on Indian lands, is the program
administered by the New Jersey Department of Environmental Protection
and Energy, approved by EPA, pursuant to section 404 of the CWA. Notice
of this approval was published in the Federal Register on March 2,
1994; the effective date of this program is March 2, 1994. This program
consists of the following elements, as submitted to EPA in the State's
program submission and subsequently revised.
(a) Incorporation by reference. The New Jersey statues and
regulations cited in paragraphs (a)(1) and (2) of this section are
incorporated by reference as part of the applicable 404 Program under
the CWA for the State of New Jersey. This incorporation by reference
was approved by the Director of the Federal Register in accordance with
5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than
that specified in this section, EPA must publish a document in the
Federal Register and the material must be available to the public. This
incorporation by reference (IBR) material is available for inspection
at EPA and at the National Archives and Records Administration (NARA).
Copies of this IBR material also may be obtained from EPA. Contact EPA
at: EPA Docket Center Reading Room, WJC West Building, Room 3334, 1301
Constitution Avenue NW, Washington, DC 20004 (phone: 202-566-1744), or
send mail to Mail Code 5305G, 1200 Pennsylvania Ave. NW, Washington, DC
20460, and at the Library of the Region 2 Regional Office, Ted Weiss
Federal Building, 290 Broadway, New York, NY 10007. For information on
the
[[Page 103509]]
availability of this IBR material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations or email [email protected]. The
materials may be obtained from the New Jersey Department of
Environmental Protection at 401 East State St., Trenton, NJ 08625;
website: www.epa.gov/cwa404g/us-interactive-map-state-and-tribal-assumption-under-cwa-section-404#nj.
(1)(i) New Jersey Statutes Applicable to the State's Approved Clean
Water Act Section 404 program as follows:
(A) Freshwater Wetlands Protection Act, New Jersey Statutes
Annotated, Title 13: Conservation and Development--Parks and
Reservations; Chapter 9B: Freshwater Wetlands, N.J.S.A.13:9B-1 et seq.,
effective as of December 23, 1993.
(B) [Reserved]
(ii) The Freshwater Wetlands Protection Act provides the New Jersey
Department of Environmental Protection with the authority to regulate
and permit activities in freshwater wetlands.
(2)(i) New Jersey Regulations Applicable to the State's Approved
Clean Water Act Section 404 program as follows:
(A) Freshwater Wetlands Protection Act Rules, N.J.A.C. 7:7A,
amended November 7, 2022.
(B) [Reserved]
(ii) This chapter contains regulations to implement the Freshwater
Wetlands Protection Act.
* * * * *
[FR Doc. 2024-29484 Filed 12-17-24; 8:45 am]
BILLING CODE 6560-50-P