
[Federal Register Volume 88, Number 155 (Monday, August 14, 2023)]
[Proposed Rules]
[Pages 55276-55330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15284]



[[Page 55275]]

Vol. 88

Monday,

No. 155

August 14, 2023

Part IV





Environmental Protection Agency





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 40 CFR Parts 123, 124, et al.





Clean Water Act Section 404 Tribal and State Program Regulation; 
Proposed Rule

  Federal Register / Vol. 88 , No. 155 / Monday, August 14, 2023 / 
Proposed Rules  

[[Page 55276]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 123, 124, 232, and 233

[EPA-HQ-OW-2020-0276; FRL-6682-02-OW]
RIN 2040-AF83


Clean Water Act Section 404 Tribal and State Program Regulation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing the 
Agency's first comprehensive revision to the regulations governing 
Clean Water Act (CWA) section 404 Tribal and State programs since 1988. 
The primary purpose of the proposed revision is to respond to 
longstanding requests from Tribes and States to clarify the 
requirements and processes for assumption and administration of a CWA 
section 404 permitting program for discharges of dredged and fill 
material. The proposed revisions would facilitate Tribal and State 
assumption of the section 404 program, 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 allowing for flexibility in how these requirements 
are met. In addition, the proposed rule clarifies the criminal 
negligence standard for both the CWA section 402 and section 404 
programs. Finally, the proposed rule makes technical revisions to 
remove outdated references associated with the section 404 Tribal and 
State program regulations.

DATES: Comments must be received on or before October 13, 2023October 
13, 2023. Comments on the information collection provisions submitted 
to the Office of Management and Budget (OMB) under the Paperwork 
Reduction Act (PRA) are best assured of consideration by OMB if OMB 
receives a copy of your comments on or before October 13, 2023. The EPA 
will hold a virtual public hearing on September 6, 2023. Please refer 
to the SUPPLEMENTARY INFORMATION section for additional information on 
the public hearing.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2020-0276, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
     Email: [email protected]. Include Docket ID No. EPA-HQ-OW-
2020-0276 in the subject line of the message.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, Water Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, 
Washington, DC 20460.
     Hand Delivery or Courier: EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., 
Monday-Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov/, including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this document.
    The virtual public hearing will convene at 3:30 p.m. Eastern 
Daylight Time (EDT) and will conclude at 7:30 p.m. EDT on September 6, 
2023. Refer to the SUPPLEMENTARY INFORMATION section below for 
additional information.

FOR FURTHER INFORMATION CONTACT: Kathy Hurld, Oceans, Wetlands, and 
Communities Division, Office of Water (4504-T), Environmental 
Protection Agency, Pennsylvania Avenue NW, Washington, DC 20460; 
telephone number: 202-564-5700; email address: [email protected]; 
website: https://www.epa.gov/cwa404g.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
II. Public Participation
    A. Written Comments
    B. Participation in Virtual Public Hearing
III. General Information
    A. Does this action apply to me?
    B. What action is the Agency taking?
    C. What is the Agency's authority for taking this action?
    D. What are the incremental costs and benefits of this action?
IV. Background
    A. Statutory and Regulatory History
    B. Need for Rulemaking
    C. Summary of Pre-Proposal Tribal and State Outreach
V. Proposed Rule
    A. Program Approval
    B. Permit Requirements
    C. Program Operation
    D. Compliance Evaluation and Enforcement
    E. Federal Oversight
    F. General
    G. Potential Impacts of the Proposed Regulatory Changes on 
Existing State Section 404 Programs
    H. Other
    I. Severability
VI. 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

I. Executive Summary

    The proposed rule would modernize EPA's 1988 Clean Water Act (CWA) 
section 404 Tribal and State program regulations. 53 FR 20764 (June 6, 
1988). Section 404 of the CWA establishes a program to regulate the 
discharge of dredged or fill material into navigable waters, which are 
defined as ``waters of the United States.'' The section 404 program is 
generally administered by the U.S. Army Corps of Engineers (``Corps''); 
however, CWA section 404(g) authorizes Tribes and States to assume 
administration of the program over certain waters within their 
jurisdiction, except those waters retained by the Corps. If a program 
request is approved by EPA, the Tribe or State is responsible for 
permitting discharges of dredged and fill material into certain waters 
of the United States within the Tribe's or State's jurisdiction, 
authorizing discharges under general permits, enforcement of 
unauthorized discharges, as well as enforcing the terms and conditions 
of permits under the Tribe's or State's authority.
    In this proposal, the Agency responds to longstanding requests from 
Tribes and States to clarify the requirements and processes for 
assumption and administration of a CWA section 404 program as well as 
EPA oversight. The proposed revisions would facilitate Tribal and State 
assumption of the section 404 program, consistent with the

[[Page 55277]]

policy of the CWA as described in section 101(b), by making the program 
assumption process and requirements transparent and straightforward. 
The proposed rule would also clarify how Tribes and States can ensure 
their program meets the minimum requirements of the CWA while allowing 
for flexibility in meeting these requirements.
    Specifically, the proposal would facilitate the process of 
obtaining program approval by harmonizing program description 
requirements with program operation, compliance evaluation, and 
enforcement requirements; establishing a clear procedure for 
determining the extent of waters the Corps would retain following 
Tribal or State assumption; and delaying the effective date of EPA's 
program approval for a reasonable period of time to allow the assuming 
Tribe or State and the Corps time to complete preparations for 
implementation. It would clarify requirements for program 
implementation by addressing Tribal and State compensatory mitigation 
program requirements, explaining how Tribes and States could ensure 
compliance with the CWA section 404(b)(1) Guidelines at 40 CFR part 
230, and stating that Tribal and State programs must allow for judicial 
review of issued permits. The proposal would streamline the procedure 
for permitting long-term projects, as well as make permitting more 
equitable by providing additional opportunities for Tribes to 
participate in the permitting process when another Tribe or State 
administers the section 404 program. It would clarify that States with 
approved section 402 and section 404 programs must authorize criminal 
prosecutions of violations based on a negligence standard and provide 
additional detail about the applicability of conflict of interest 
restrictions to the section 404 program. The proposal would provide 
Tribes and States with options for demonstrating that their programs 
are no less stringent than the Federal section 404 program. The 
proposal would also harmonize procedures for program withdrawal with 
the program approval process. Finally, the proposal would make certain 
additional minor updates to the section 404 Tribal and State program 
regulations, a minor update to 40 CFR part 232, and technical 
corrections to 40 CFR part 124 to reflect the 1988 section 404 Tribal 
and State program regulations.

II. Public Participation

A. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OW-2020-
0276, at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section. Once submitted, 
comments cannot be edited or removed from the docket. EPA may publish 
any comment received to its public docket. Do not submit to EPA's 
docket at https://www.regulations.gov any information you consider to 
be Confidential Business Information (CBI), Proprietary Business 
Information (PBI), or other information whose disclosure is restricted 
by statute. Multimedia submissions (audio, video, etc.) must be 
accompanied by a written comment. The written comment is considered the 
official comment and should include discussion of all points you wish 
to make. EPA will generally not consider comments or comment contents 
located outside of the primary submission (i.e., on the web, cloud, or 
other file sharing system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the full EPA 
public comment policy; information about CBI, PBI, or multimedia 
submissions; and general guidance on making effective comments.

B. Participation in Virtual Public Hearing

    EPA will begin pre-registering speakers for the virtual public 
hearing upon publication of this document in the Federal Register. To 
register to speak at the virtual hearing, please use the online 
registration form available at https://www.epa.gov/cwa404g/current-efforts-regarding-assumption-under-cwa-section-404. The last day to 
pre-register to speak at the hearing will be September 5, 2023. On 
September 6, 2023, EPA will post a general agenda for the hearing that 
will list pre-registered speakers in approximate order at: https://www.epa.gov/cwa404g/current-efforts-regarding-assumption-under-cwa-section-404.
    EPA will make every effort to follow the schedule as closely as 
possible on the day of the hearing; however, please plan for the 
hearing to run either ahead of schedule or behind schedule.
    Each commenter will have three minutes to provide oral testimony. 
EPA encourages commenters to provide EPA with a copy of their oral 
testimony electronically by emailing it to [email protected]. EPA 
also recommends submitting the text of your oral comments as written 
comments to the rulemaking docket.
    EPA may ask clarifying questions during the oral presentations but 
will not respond to the presentations at that time. Written statements 
and supporting information submitted during the public comment period 
will be considered with the same weight as oral comments and supporting 
information presented at the public hearing.
    Please note that any updates made to any aspect of the hearing are 
posted online at https://www.epa.gov/cwa404g/current-efforts-regarding-assumption-under-cwa-section-404. While EPA expects the hearing to go 
forward as set forth above, please monitor our website or contact Sarah 
Randall at [email protected] to determine if there are any 
updates. EPA does not intend to publish a document in the Federal 
Register announcing updates.
    If you require the services of an interpreter or special 
accommodations such as audio description, please pre-register for the 
hearing with Sarah Randall at [email protected] and describe your 
needs by August 23, 2023. EPA may not be able to arrange accommodations 
without advance notice.

III. General Information

A. Does this action apply to me?

    This proposed rule will potentially affect Tribes and States that 
have assumed or will in the future request to assume administration of 
the CWA section 404 program. In the section 404 Tribal and State 
program regulations, the term ``State'' includes 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, and the Trust Territory of the Pacific Islands. For 
purposes of the section 404 Tribal and State Program regulations, the 
term ``State'' also includes eligible Federally recognized Indian 
Tribes and any interstate agency requesting program approval or 
administering an approved program. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the FOR FURTHER INFORMATION CONTACT section.

B. What action is the Agency taking?

    EPA is proposing to revise and modernize its regulations for Tribal 
and State assumption and administration of the CWA section 404 program 
to provide greater clarity about the requirements, reduce barriers to 
assumption, and make technical

[[Page 55278]]

corrections to facilitate Tribal and State assumption of the section 
404 program. Assumption provides Tribes and States the opportunity to 
administer the program, placing them in the decision-making position 
for permits of discharges of dredged or fill material into certain 
waters of the United States. This proposed rule would clarify the 
Tribal and State requirements for assumption and program administration 
as well as address the procedures EPA would follow, and the criteria 
EPA would apply, in 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. The proposed rule, if 
finalized, would also serve to help achieve the policy of CWA section 
101(b) that States implement CWA permit programs. 33 U.S.C. 1251(b).

C. 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 309, 402, 404, 
501, and 518.

D. What are the incremental costs and benefits of this action?

    The costs and benefits are qualitatively discussed in the Economic 
Analysis for the Proposed Rule. Most of the changes associated with the 
action lead to either no economic impact or de minimis economic 
impacts. There are potential incremental economic impacts associated 
with the manner in which the proposed rule addresses the waters of the 
United States over which the Corps retains administrative authority, 
the effective date for approved Tribal and State programs, impacts to 
downstream States, and program withdrawal procedures. The economic 
analysis does not quantify these potential incremental economic 
impacts, as there is no data associated with these changes on which to 
base estimates.

IV. Background

A. Statutory and Regulatory History

1. CWA
    Congress amended the Federal Water Pollution Control Act (FWPCA), 
or the CWA as it is commonly called,\1\ in 1972 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 new statutory scheme was ``to restore and maintain the 
chemical, physical, and biological integrity of the Nation's waters.'' 
33 U.S.C. 1251(a). In order to meet that objective, Congress declared 
two national goals: (1) ``that the discharge of pollutants into the 
navigable waters be eliminated by 1985''; and (2) ``that wherever 
attainable, an interim goal of water quality which provides for the 
protection and propagation of fish, shellfish, and wildlife and 
provides for recreation in and on the water be achieved by July 1, 1983 
. . . .'' Id. at 1251(a)(1)-(2).
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    \1\ 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.
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    Congress passed the CWA to address the discharge of pollutants into 
``navigable waters,'' defined as ``the waters of the United States.'' 
33 U.S.C. 1362(7). Section 301 contains the key regulatory mechanism: 
``Except 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 to include ``any addition of 
any pollutant to navigable waters from any point source,'' and a 
``point source,'' in turn, is ``any discernible, confined and discrete 
conveyance,'' such as a pipe or ditch. Id. at 1362(12), (14). The term 
``pollutant'' means ``dredged spoil, solid waste, incinerator residue, 
sewage, garbage, sewage sludge, munitions, chemical wastes, biological 
materials, radioactive materials, heat, wrecked or discarded equipment, 
rock, sand, cellar dirt and industrial, municipal, and agricultural 
waste discharged into water.'' Id. at 1362(6). Thus, it is unlawful to 
discharge pollutants into waters of the United States from a point 
source unless the discharge complies with certain enumerated sections 
of the CWA, including obtaining a permit. See id. at 1342, 1344.
2. CWA Section 404
    Section 404 of the CWA establishes a program to regulate the 
discharge of dredged or fill material into navigable waters, defined as 
``waters of the United States.'' Regulated discharges of dredged or 
fill material are defined in 40 CFR 232.2 and include any addition of 
dredged material, including the redeposit other than incidental 
fallback of dredged material, into waters of the United States and 
generally the addition of any fill material (e.g., rock, sand, dirt) 
placed in waters of the United States which has the effect of replacing 
any portion of waters of the United States with dry land or changing 
the bottom elevation of any portion of waters of the United States. See 
40 CFR 232.2. Such discharges 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 of the CWA requires a permit for discharges of dredged 
and/or fill material from a point source into waters of the United 
States unless the discharge is associated with an activity exempt from 
section 404 permitting requirements under CWA section 404(f). Section 
404(a) of the CWA authorizes the Secretary of the Army to issue permits 
after notice and opportunity for public hearings, for the discharge of 
dredged or fill material into navigable waters at specified disposal 
sites. The Act specifies that the Secretary of the Army acts through 
the Chief of Engineers, and thus the Corps generally administers the 
day-to-day permitting program under section 404, except where Tribes or 
States have assumed this authority and administer a program approved by 
EPA as consistent with CWA section 404. Currently, Michigan, New 
Jersey, and Florida have assumed this program, and the Corps manages 
the day-to-day administration of the section 404 program in 47 States, 
all Tribal lands, U.S. Territories, and the District of Columbia, and 
in certain waters in Michigan, New Jersey, and Florida.
    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 404(b)(1) Guidelines \2\ or the Tribal or State 
environmental review criteria 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 404(b)(1) Guidelines and may be 
issued on a nationwide, regional, or programmatic basis for discharges 
from specific categories of activities. The

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general permit process allows these activities to proceed with little 
or no delay, provided that the conditions for the general permit are 
met. 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 is in compliance with 
the CWA 404(b)(1) guidelines.
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    \2\ The CWA 404(b)(1) Guidelines are regulations that were 
established by EPA in conjunction wih the Corps and codified at 40 
CFR part 230. The CWA 404(b)(1) Guidelines are 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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    The Act also expressly recognizes States' role in administering 
permitting programs, including under section 404 of the CWA:

    It is the policy of Congress that the States manage the 
construction grant program under this chapter and implement the 
permit programs under sections 1342 [402] and 1344 [404] of this 
title. It is further the policy of the Congress to support and aid 
research relating to the prevention, reduction, and elimination of 
pollution, and to provide Federal technical services and financial 
aid to State and interstate agencies and municipalities in 
connection with the prevention, reduction, and elimination of 
pollution.

33 U.S.C. 1251(b). Section 101(b) sets forth a policy focused on 
preserving the responsibilities and rights of States. Those 
responsibilities and rights are to prevent, reduce, and eliminate 
pollution, including, but not limited to implementing the Act's 
regulatory permitting programs, in partnership and with support from 
the Federal Government. Indeed, the Supreme Court has described, on 
numerous occasions, section 101(b) as creating a partnership between 
the Federal and State Governments in which the States administer 
provisions of the Act and are allowed to set standards more stringent 
than the Federal standards. See, e.g., Int'l Paper Co. v. Ouellette, 
479 U.S. 481, 489-90 (1987) (describing section 101(b) as allowing the 
Federal Government to authorize administration of point source 
pollution permits by Tribes and States and allowing States to establish 
more stringent discharge limitations than Federal requirements); Train 
v. Colo. Pub. Interest Grp., 426 U.S. 1, 16 & n.13 (1976) (describing 
section 101(b) as providing States authority to develop permit programs 
and establish standards more stringent than those under the CWA).
3. CWA Sections 404(g) and 404 (h-i)
    In the 1977 Amendments to the CWA, Congress gave States the option 
of assuming the section 404 program in certain waters of the United 
States within the State's jurisdiction, subject to EPA approval. When 
Congress enacted the CWA in 1972, the Corps had long been regulating 
``navigable waters of the United States'' under the Rivers and Harbors 
Act of 1899 (RHA). However, in the CWA, Congress defined ``navigable 
waters'' to mean ``the waters of the United States,'' which went beyond 
RHA authority. The Corps' initial post-CWA regulations treated the two 
jurisdictional terms interchangeably. 39 FR 12115, 12119 (April 3, 
1974). In 1975, the U.S. District Court for the District of Columbia 
ordered the Corps to adopt new regulations in accordance with the 
broader water quality purposes of the CWA. Nat. Res. Def. Council, Inc. 
v. Callaway, 392 F. Supp. 685 (D.D.C. 1975).
    In July 1975, the Corps issued new regulations outlining how they 
would expand 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 material or of 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 material or of 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 of fill material into ``any navigable water.'' Id. 
at 31326. The Corps' intent with the regulatory phased-in approach was 
to provide time for them 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.'') Thus, the phases did 
not mean all of the waters in the final regulation were not waters of 
the United States, but rather established when the Corps would begin 
regulating activities within each type of jurisdictional water.
    Some in Congress were concerned about this phased implementation of 
the definition of ``waters of the United States'' for the Corps' CWA 
dredged and fill regulatory program, and in 1976, the House of 
Representatives passed H.R. 9560, which 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 passed a bill that allowed the 
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).\3\ After 
assumption, the Corps would retain section 404 permitting authority in 
Phase I waters. The final bill, H.R. 3199, referred to as the 1977 CWA 
Amendments, was a compromise: 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).\4\ 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, with the exception of waters that were 
historically used 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 them as ``waters already being regulated by the 
USACE,'' i.e., those waters the Corps regulated under section 10 of the 
RHA, plus adjacent wetlands. 42 FR 37122, 37124 (July 19, 1977). The 
legislative history of section 404(g) in both the House and the

[[Page 55280]]

Senate suggests that Congress expected widespread assumption of the 
section 404 program, leaving only RHA section 10 waters, other than 
those only historically used 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.
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    \3\ 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).
    \4\ The House Report is reprinted in 3 Legis. History 1977, at 
185, 285.
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    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). To 
assume the section 404 program, Tribes and States are required to 
develop a dredged and fill material discharge permit program under 
Tribal or State authority consistent with the requirements of the CWA 
and implementing regulations at 40 CFR part 233 and submit a request to 
EPA to assume the program. Section 404(h)(2) of the CWA states that 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 States' request to assume the section 
404 program. Under CWA section 404(h)(3), if the Administrator fails to 
make a determination with respect to any 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.
    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 borders.\5\ For section 404 permitting purposes, the Tribe 
or State must exercise jurisdiction over all assumed waters subject to 
the CWA except those waters retained by the Corps. 33 U.S.C. 1344(g). 
The Corps retains 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 
authority over Tribal waters under CWA section 404. The term ``waters 
of the United States'' refers to the geographic extent of waters 
covered by the CWA's regulatory programs.\6\ The scope of waters that 
may be assumed by Tribes or States under section 404(g) is a subset of 
waters of the United States. Tribes or States with assumed 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. This 
rulemaking addresses the division of authority under section 404 
between the Federal Government and a Tribe or State with an approved 
program and does not alter the scope of CWA jurisdiction over waters of 
the United States.
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    \5\ 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.'') (emphasis added). The conference 
report is available at https://www.epa.gov/sites/production/files/2015-11/documents/1977_conf_rept.pdf.
    \6\ The agencies currently interpret ``waters of the United 
States'' consistent with the Supreme Court's decision in Sackett v. 
EPA, No. 21-454 (U.S. May 25, 2023).
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    Approved Tribal or State section 404 programs can be broader in 
scope or more stringent than the CWA requirements, or both. Where they 
have a broader scope of program coverage than what is required by the 
CWA section 404 program, the additional coverage is not considered part 
of the EPA-approved program.\7\ A Tribe or State may not issue a permit 
if EPA has objected to or placed conditions on a permit until EPA's 
concerns are addressed. Tribes and States can charge permit fees to 
fund the permitting program. Tribes and States may authorize discharges 
of dredged or fill material by issuing individual permits or general 
permits, which are limited to five years.
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    \7\ See 40 CFR 233.1(c) and 40 CFR 233.1(d).
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    To date, three States--Michigan, New Jersey, and Florida--
administer an EPA approved section 404 program. Michigan's program was 
approved in 1984 (49 FR 38947, October 2, 1984); New Jersey's was 
approved in 1994 (59 FR 9933, March 2, 1994); and Florida's was 
approved in 2020 (85 FR 83553, December 22, 2020). At present, no 
Tribes administer the section 404 program. Several States are exploring 
the possibility of assuming the section 404 program, and about one-
third of States have expressed some level of interest to EPA over time 
regarding assumption of the Federal section 404 dredged and fill permit 
program. At this time, EPA is unaware of any Tribes exploring seeking 
to assume the section 404 program.
4. EPA's Role in CWA Section 404
    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. 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. 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. A 1989 enforcement 
memorandum between the Department of the Army and EPA discusses the 
allocation of Federal enforcement for the section 404 program between 
EPA and the Corps.\8\ In the context of section 404, the Corps does the 
day-to-day work of conducting jurisdictional determinations,\9\ though 
EPA has final administrative authority over the scope of CWA 
jurisdiction.\10\ EPA has approval and oversight authority for Tribal 
and State programs, including final authority and approval of the scope 
of assumed waters. See 33 U.S.C. 1344(g)-(l).
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    \8\ Memorandum Between the Department of the Army and the 
Environmental Protection Agency Concerning Federal Enforcement for 
the Section 404 Program of the Clean Water Act (January 19, 1989), 
available at: https://www.epa.gov/cwa-404/federal-enforcement-section-404-program-clean-water-act. A February 1994 memorandum 
modified the January 1989 memorandum to be effective indefinitely, 
unless modified or revoked by the agencies, see https://www.epa.gov/sites/default/files/2015-07/documents/1994_enforcement_modification.pdf.
    \9\ EPA decisions on jurisdiction are not approved 
jurisdictional determinations as defined and governed by the Corps 
regulations at 33 CFR 331.2.
    \10\ Administrative Authority to Construe Sec.  404 of the 
Federal Water Pollution Control Act (``Civiletti Memorandum''), 43 
Op. Att'y Gen. 197 (1979).
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    Under section 404, EPA also establishes environmental criteria used 
in evaluating permit applications (i.e., the CWA 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)-(k)); reviews and comments on 
general permits and individual permit applications issued by a Tribe, 
State, or the Corps; has authority to prohibit,

[[Page 55281]]

deny, or restrict the use of any defined area as a disposal site 
(section 404(c)); and can elevate Corps permits for resolution (section 
404(q)).
    EPA's role with respect to section 404 Tribal and State programs 
includes working with Tribes and States prior to assumption; reviewing 
and approving or disapproving assumption requests; overseeing assumed 
programs; and coordinating Federal review of Tribal or State permit 
actions. EPA funding programs can also be used by Tribes and States to 
build capacity to assume the section 404 program (e.g., Wetland Program 
Development Grants) or to implement assumed programs (e.g., CWA section 
106 funds). EPA retains final administrative authority over the scope 
of CWA jurisdiction for assumed programs under section 404(g). With 
respect to enforcement, EPA can commence a separate enforcement action 
under appropriate circumstances. 33 U.S.C. 1344(n); 40 CFR 233.41, 
Note.
5. EPA's Existing 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 for approval or 
disapproval of State programs under section 404(g) and for monitoring 
State programs after program approval (45 FR 33290 (May 19, 1980)).\11\ 
On June 6, 1988, EPA published in the Federal Register a final rule 
revising the procedures and criteria used in approving, reviewing, and 
withdrawing approval of section 404 State programs at 40 CFR part 233. 
53 FR 20764 (June 6, 1988). The final rule also incorporated section 
404 program definitions and section 404(f)(1) exemptions at 40 CFR part 
232.\12\ The 1988 regulations provide States with flexibility in 
program design and administration while still meeting the requirements 
and objectives of the CWA.
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    \11\ 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 this rule 
made no substantive changes to any of the affected sections (48 FR 
14146, 14208, April 1, 1983). The rule did make minor technical 
changes.
    \12\ The final 1988 rule essentially recodified at 40 CFR part 
232 the existing 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. This preamble and the proposed rule focus on 
EPA's regulations at 40 CFR part 233 regarding State programs under 
section 404(g), with one proposed minor change to a definition in 40 
CFR part 232.
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    Several revisions and additions to the State program regulations in 
40 CFR part 233 have been made since 1988. 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 of section 404 State program 
approval (57 FR 5320 (February 13, 1992)). On February 11, 1993, EPA 
published a final rule amending its section 404 State program 
regulations at 40 CFR part 233 by adding subpart G (``Treatment of 
Indian Tribes as States''), which contains procedures by which an 
Indian Tribe may qualify for treatment in a similar manner as a State 
(TAS) in order to be eligible to submit a request to assume the section 
404 program (58 FR 8172, February 11, 1993).\13\ The 1993 rule also 
revised 40 CFR part 232 by adding new definitions for ``Federal Indian 
reservation,'' ``Indian Tribe,'' and ``States.'' The 1993 rule was 
finalized to satisfy the statutory provisions in CWA section 518 with 
respect to the section 404 program. In a final rule published on 
December 14, 1994 (59 FR 64339, 64345 (December 14, 1994)), the subpart 
G regulations regarding Tribal eligibility at sections 233.60, 233.61, 
and 233.62 were revised to improve and simplify the process for Tribes 
to obtain EPA approval to assume the section 404 program. Under that 
rule, known as the Simplification Rule, a Tribe did not need to 
prequalify for TAS before requesting to assume the section 404 program, 
but instead could establish its TAS eligibility at the program approval 
stage, subject to the EPA notice and comment procedures for State 
program approval. A 2005 rule on cross-media electronic reporting (70 
FR 59848, October 13, 2005) added section 233.39 on electronic 
reporting. EPA also 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).
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    \13\ The 1993 final rule revised the definition of ``State'' at 
section 233.2 to: ``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.'' (58 FR 8183, February 11, 1993). Thus 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.
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    The existing regulations at 40 CFR part 233 describe the Tribe's or 
State's program requirements, EPA responsibilities, approval and 
oversight of assumed programs, and requirements for review, 
modification, and withdrawal of State programs (as necessary). The 
regulations also specify that a Tribal or State program must be 
consistent with and no less stringent than the Act and implementing 
regulations, allow for public participation, be consistent with the CWA 
404(b)(1) Guidelines, and have adequate enforcement authority. The 
regulations outline requirements for Tribes to determine eligibility to 
assume the program. Lastly, part 233, subpart H contains the approved 
Tribal and State programs that EPA has codified.

B. Need for Rulemaking

    Congress enacted the 1977 CWA Amendments to make the regulation of 
the discharge of dredged or fill material a shared responsibility of 
the States and the Federal Government.\14\ The intent of this design is 
to use the strengths of State and Federal Governments in a partnership 
to protect the nation's water resources and to meet the policy of the 
CWA at section 101(b) that States ``implement the permit programs under 
sections 1342 and 1344 of this title'' and of ``preserv[ing] and 
protect[ing] the primary responsibilities and rights of States to 
prevent, reduce, and eliminate pollution. . . .'' \15\ Congress also 
viewed State assumption of the section 404 program as complementing 
States' existing authority to administer the CWA section 402 
program.\16\
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    \14\ 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 . . .'').
    \15\ 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.' '').
    \16\ 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.'').
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    Yet while CWA section 404 and EPA's implementing regulations 
provide for Tribes and States to assume the program, only three 
States--Michigan,

[[Page 55282]]

New Jersey, and Florida--have received approval to administer the 
program. In 2010 and 2011 letters to EPA, the Environmental Council of 
States recommended further steps to encourage Tribal and State 
assumption of the program, remove barriers to assumption, and improve 
the efficiency of the program.\17\
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    \17\ 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.
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    Tribes and States have identified uncertainty regarding the extent 
of assumable waters and wetlands as a key barrier to assumption. As 
noted above, the Tribes and States cannot assume all waters of the 
United States within their boundaries as the statute specifies that the 
Corps retains administrative authority in certain waters. While some 
Tribes and States have considered assumption, they have expressed to 
EPA the need for further clarification regarding which waters a Tribe 
or State may assume and which waters the Corps retains. In a 2014 
letter to then-EPA Acting Assistant Administrator Nancy Stoner,\18\ 
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 the 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, 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 EPA 
Administrator Scott Pruitt on June 2, 2017, with additional notations 
and recommendations concerning a preference for clarity through 
regulation. The ``Final Report of the Assumable Waters Subcommittee, 
May 2017,'' recommended that EPA develop regulations to clarify assumed 
and retained waters.\19\ This proposed rule responds to the 
Subcommittee's recommendations as discussed further in section V.A.2 of 
this preamble addressing retained waters. The proposal also responds to 
many of the additional issues raised by Tribes and States as challenges 
to assuming section 404 and draws from EPA's experience working with 
Tribes and States pursuing assumption and in program oversight. Aside 
from the 1993 Tribal additions, this proposed rule would be the first 
comprehensive update of the section 404 Tribal and State program 
regulations since 1988.
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    \18\ ECOS, ACWA, and ASWM Letter to Nancy Stoner, Acting 
Assistant Administrator for Water. April 30, 2014.
    \19\ Available at https://www.epa.gov/cwa-404/submission-assumable-waters-subcommittees-final-report and in the docket for 
this proposed rule, Docket ID No. EPA-HQ-OW-2020-0276.
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    Several of the challenges that Tribes and States have identified 
regarding section 404 assumption cannot be resolved by this proposed 
rulemaking. For example, lack of funding and the financial cost of 
Tribal or State implementation of the section 404 program has been 
identified as a major impediment to program assumption \20\ but is 
outside the scope of this rulemaking. Some States have also identified 
a lack of political will and lack of public support as challenges to 
assuming the section 404 program.
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    \20\ See Association of State Wetland Managers and Environmental 
Council of the States, 2011, Clean Water Act Section 404 Program 
Assumption: A Handbook for Tribes and States, available at https://www.aswm.org/pdf_lib/cwa_section_404_program_assumption.pdf.
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C. Summary of Pre-Proposal Tribal and State Outreach

    On June 11, 2018, the Agency published its 2018 Spring Unified 
Agenda of Regulatory and Deregulatory Actions \21\ announcing that the 
Agency was considering a rulemaking to provide the first comprehensive 
revision to the existing section 404 Tribal and State program 
regulations since 1988 and provide clarity on specific issues requested 
by the Tribes and States. The Agency's outreach and engagement efforts 
since that announcement are summarized below.
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    \21\ Available at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201804&RIN=2040-AF83.
---------------------------------------------------------------------------

    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 existing regulation that could benefit 
from additional clarity and revision. EPA initiated formal consultation 
efforts under Executive Order 13175 on Consultation and Coordination 
with Indian Tribal Governments regarding provisions that require 
clarification within the existing section 404 Tribal and State program 
regulations. The Agency sent notification of the consultation period to 
Tribes on October 18, 2018, and consultation ran from October 22, 2018, 
through December 21, 2018. On November 20, 2018, and November 29, 2018, 
EPA held Tribal informational webinars. See section VI.F of this 
preamble for further details on the Agency's Tribal consultation. 
During the 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 provided a presentation and 
sought input on aspects of the existing section 404 Tribal and State 
program regulations and assumption process. The Agency sought input on 
the scope of assumable waters, partial assumption, calculating economic 
costs and benefits, and other issues.
    Although the Agency does not view this rulemaking as having 
Federalism implications as defined in Executive Order 13132, the Agency 
sought pre-proposal input from States on plans to modernize the 
Agency's existing section 404 Tribal and State program regulations. The 
Agency invited written input from State agencies from November 12, 
2018, through January 11, 2019,\22\ 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.
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    \22\ Due to the lapse in Federal Government funding, EPA 
accepted comments from States until February 2019.
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    EPA considered all input received during the development of the 
proposed rule, including written input submitted during outreach 
efforts to Tribes and States. Written input and a summary of the in-
person State meeting and the

[[Page 55283]]

Tribal webinars are available in the docket for this proposed rule.
    In 2023, EPA held informational webinars for States on January 
24th, and for Tribes on January 25th and January 31st. At these 
webinars, EPA provided Tribes and States with an update on the 
rulemaking effort and reminded Tribes and States of the input they had 
previously provided to EPA. EPA did not seek additional input from 
Tribes or States at these 2023 webinars.

V. Proposed Rule

    This section of the preamble describes EPA's proposed regulatory 
revisions and provides the Agency's rationale for those proposed 
revisions. EPA is proposing to revise the CWA section 404 Tribal and 
State program regulations at 40 CFR part 233 to provide additional 
clarity on program approval process and requirements, permit 
requirements including compensatory mitigation, program operations, 
compliance evaluation and enforcement, Federal oversight, dispute 
resolution, and conflict of interest provisions, as well as to provide 
other technical and minor updates. EPA is also proposing to revise its 
criminal enforcement requirements in 40 CFR 123.27 and 40 CFR 233.41, 
which apply to Tribes and States that are authorized to or that seek 
authorization to administer a CWA section 402 National Pollutant 
Discharge Elimination System (NPDES) permitting program or a section 
404 program respectively. EPA proposes to provide technical edits to 40 
CFR part 124 consistent with the Agency's intent to clarify that the 
part 124 regulations do not apply to Tribal or State section 404 
programs. Finally, EPA proposes to clarify a definition in 40 CFR part 
232 that is related to Tribal and State section 404 program assumption.

A. Program Approval

    This section of the preamble includes topics that are generally 
related to EPA's approval of a Tribal or State section 404 program, 
including program assumption requirements, waters that are retained by 
the Corps, effective dates for approved or revised Tribal or State 
programs, and compensatory mitigation requirements.
1. Program Assumption Requirements
a. What is the Agency proposing?
    EPA is proposing to revise the current requirements for the program 
descriptions that Tribes and States submit to EPA when they request 
approval to assume the section 404 program. First, the proposed 
revisions would 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 233 subparts C through E. The proposal further specifies that 
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 proposed revision would 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 233 subpart C, as applicable; that 
its permitting operations would comply with the program operation 
requirements of 40 CFR 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 233 
subpart E, as applicable.
    Similarly, the Agency proposes to revise the existing 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 233.11(a). EPA proposes to clarify 
that this description ``must'' address all of the listed elements in 
233.11(a). The proposal would also clarify 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 proposed revisions would not substantively change the 
requirements for permit review, program operation, and compliance 
evaluation and enforcement programs. Rather, they would 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 proposes to revise the existing 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 would clarify that the description of 
inter-agency coordination must include coordination on enforcement and 
compliance.
b. Why is the Agency proposing this approach?
    The Agency is proposing these changes to better harmonize its 
program approval requirements with program requirements in other 
sections of the CFR. Specifically, EPA seeks to update 40 CFR 233 
subpart B to reflect the requirements of 40 CFR 233 subparts C through 
E and to better effectuate these regulations and CWA section 404(h).
    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, and compliance evaluation and enforcement set forth in 40 
CFR 233 subparts C through E and administer a program that is 
consistent with section 404. A program that lacks the resources to do 
so would not be able to carry out existing statutory and regulatory 
requirements. This proposed approach would not change these existing 
requirements, but would ensure that EPA receives information necessary 
to determine that Tribes and States can meet them. In the 1988 preamble 
to the existing section 404 Tribal and 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 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 existing regulations require that the program 
description contain ``a description'' of available funding and manpower 
(i.e., staffing),\23\ 40 CFR 233.11(d), but do not clearly indicate 
that the available funding and staffing must be sufficient to meet the 
requirements of subparts C through E. In addition, the current 
regulations provide that the program description 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

[[Page 55284]]

233.11(g), but do not clearly indicate 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 remain unclear about what kind of demonstration is needed 
by Tribes and States as they develop their programs. This proposal 
would ensure that a description of funding, staffing, or compliance 
evaluation and enforcement programs must satisfy the text of 40 CFR 
233.11(d) and (g). 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 more clearly effectuate that 
intent.
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    \23\ In this proposal, EPA is replacing the term ``manpower'' 
with ``staffing'' and will use the term ``staffing'' throughout this 
proposal.
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    EPA specifically proposes to require the Tribe or State to identify 
position descriptions and qualifications as well as budget and funding 
mechanisms in the program description 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.
    Tribes and States should provide other information as well to the 
extent it is necessary to demonstrate that they will be able to carry 
out subparts C through E. In addition to providing the information EPA 
proposes to require in the regulations, Tribes and States may choose to 
demonstrate their capacity to implement subparts C through E by 
comparing the number of Corps staff that currently administer the 
section 404 program in Tribal areas or in a State to the number of 
Tribal or State staff that will implement the assumed program. Given 
differences in administrative structures, a direct comparison may not 
be feasible, however; for example, a Corps district may not be able to 
identify the number of staff focused solely on section 404 permitting 
or one State if its staff administers the section 10 and section 404 
regulatory program for a number of States. Similarly, a Tribal or State 
program may incorporate other permitting into its 404 program such as 
permits to address potential flooding. These challenges 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.
    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. 
404(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).
    This proposal 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 
proposed rule would retain 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 as 
well depending on the anticipated workload for the Tribe or State. EPA 
is committed to working with Tribes and States to help their programs 
meet the proposed standard and may develop guidance in the future that 
Tribes and States could use to ensure sufficient program capacity. In 
adding a new clarification to better carry out the existing 
requirements of 40 CFR 233.11, this proposed revision would not reopen 
those existing requirements.
    EPA's proposed clarification that as part of the program 
description, the Tribe or State must contain all of the listed program 
description elements and must demonstrate that its permit review 
criteria are sufficient to carry out the permitting requirements of 40 
CFR 233 subpart C has the same goal as the program revisions described 
above of harmonizing 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, EPA's proposal that the description of Tribal and State 
agency coordination on program administration must address agency 
coordination on enforcement and compliance would enable EPA to ensure 
the Tribe or State is complying with the requirements of 40 CFR 233 
subpart E, addressing enforcement and compliance requirements for 
assumed programs.
c. Request for Comment
    The Agency requests comment on all aspects of the proposed 
revisions. The Agency specifically requests comment as to whether to 
make clarifying revisions to other provisions in 40 CFR 233.11 to 
ensure the Agency will be able to ensure a Tribe or State is equipped 
to carry out the requirements of 40 CFR 233 subparts C through E. EPA 
requests comment as to what additional types of information in section 
233.11 Tribes or States must provide. EPA also requests examples of 
particular metrics that Tribes and States could use to determine 
funding and staff sufficiency, such as ratios of funding and staff to 
expected permit applications, and whether to specify any such metrics 
in regulation.
2. Retained Waters
a. What is the Agency proposing?
    The Agency is proposing a procedure to facilitate determining the 
extent of waters over which the Corps would retain administrative 
authority following Tribal or State assumption of the section 404 
program. Under the proposed 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 Corps section 404 
administrative authority following assumption. EPA is proposing to 
require that the Tribe or State submit specific additional information 
that should accompany the request to show that the Tribe or State has 
taken concrete and substantial steps toward program assumption. EPA is 
proposing to require that one of the following 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

[[Page 55285]]

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. Under this proposal, 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.
    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 would have 180 
days from the receipt of the request transmitted by EPA to provide a 
retained waters description to the Tribe or State. The purpose of the 
180-day period would be to allow the Corps time and opportunity to 
identify which waters the Corps will retain section 404 permitting 
authority over. 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 would prepare a 
retained waters description.
    The Corps, Tribe, or State would start with the most recently 
published list of RHA section 10 waters (see 33 CFR 329.16) as the 
basis 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. 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 33 U.S.C. 1344(g)(1). 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, and are no 
longer susceptible to use as a means to transport interstate or foreign 
commerce. The description would also acknowledge that wetlands are to 
be retained if they are adjacent to Corps-retained waters. However, a 
specific list of 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. Finally, 
as recognized in EPA's existing 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 a State has authority to 
regulate discharges into waters in Indian country. See id.
    To clarify the extent of adjacent wetlands over which the Corps 
retains administrative authority following Tribal or State assumption, 
EPA proposes that the Corps retain administrative authority over all 
jurisdictional wetlands ``adjacent'' to retained waters,\24\ except 
that the geographic extent of the Corps' administrative authority would 
be limited by an agreed-upon administrative boundary (e.g., a boundary 
established based on a specific distance from the ordinary high water 
mark for inland navigable waters or the mean high tide for coastal 
areas, or a boundary that relies on physical features such as a bluff 
line). The Corps would retain administrative authority over the 
jurisdictional adjacent wetlands waterward of the administrative 
boundary. The Tribe or State would assume administrative authority over 
any other adjacent wetlands landward of the administrative boundary. 
The administrative boundary between retained and assumed wetlands would 
be set jointly by the Tribe or State and the Corps, but a 300-foot 
administrative boundary would be established as a default if no other 
boundary between retained and assumed adjacent wetlands is established.
---------------------------------------------------------------------------

    \24\ The agencies currently interpret the term ``adjacent'' 
consistent with the Supreme Court's decision in Sackett v. EPA, No. 
21-454 (U.S. May 25, 2023).
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    Some project proposals involving jurisdictional adjacent wetlands 
that straddle the administrative boundary may involve a discharge into 
the wetland on both sides of the administrative boundary. The 
Memorandum of Agreement between the Tribe or State and the Corps must 
articulate an approach for permitting projects involving such 
discharges that may occur in the adjacent wetland on both sides of the 
administrative boundary. Under any agreement, the Corps may not retain 
waters other than those described in the CWA section 404(g)(1) 
parenthetical.\25\ If the Corps and Tribe or State do not agree on an 
alternative approach for permitting the projects which may cross the 
administrative boundary in the Memorandum of Agreement, under the 
default approach the Corps would issue a section 404 permit for the 
discharges to jurisdictional adjacent wetlands or portions of 
jurisdictional adjacent wetlands that are waterward of the 
administrative boundary, and the Tribe or State would issue a section 
404 permit for discharges to jurisdictional adjacent wetlands or 
portions of jurisdictional adjacent wetlands that are landward of the 
administrative boundary.
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    \25\ Adjacent wetlands are included in the waters described in 
the CWA 404(g)(1) parenthetical, and therefore the MOA can provide 
that the Corps would retain the entirety of the adjacent wetlands 
notwithstanding an administrative boundary when a project includes 
discharges on both sides of the administrative boundary. In 
contrast, when a permittee's activities include discharges into 
those waters described in the CWA section 404(g)(1) parenthetical as 
well as waters that must be assumed because they are not described 
by the CWA section 404(g)(1) parenthetical, the retained waters 
cannot be expanded to encompass those waters not described by the 
CWA section 404(g)(1) parenthetical. This distinction in what waters 
can be retained does not affect the authority of the Corps to permit 
activities under 40 CFR 233.50(j).
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    In addition, EPA proposes to revise the provision in the existing 
regulations providing that modifications to the extent of the retained 
waters description always constitute substantial revisions to a Tribal 
or State program. Note, however, that under this proposal changes in 
geographic scope of an approved Tribal CWA section 404 program are 
substantial where the Tribe seeks to include additional reservation 
areas within the scope of its approved program. EPA is also proposing 
that the program description must specify that the Tribal or State 
program will encompass all waters of the United States not retained by 
the Corps at all times. Finally, EPA proposes to remove 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 MOA 
procedures for joint processing of Federal and State permits, including 
joint public notice and public hearings.'' 40 CFR 233.14(b)(2).
b. Why is the Agency proposing this approach?
    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

[[Page 55286]]

502(7) as ``waters of the United States, including the territorial 
seas.'' \26\ The Corps retains administrative authority over a subset 
of these waters even after program assumption by a Tribe or State.\27\ 
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 their jurisdiction that are not retained by the Corps.
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    \26\ The permitting provisions of the CWA (as well as other 
provisions), including CWA section 404, apply to ``navigable 
waters.'' See 33 U.S.C. 1311(a). CWA section 502(7) in turn defines 
``navigable waters'' as ``waters of the United States, including the 
territorial seas.'' Id. section 1362(7).
    \27\ 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 retains 
administrative authority. The scope of CWA jurisdiction is defined 
by CWA section 502(7) as ``waters of the United States,'' therefore, 
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 proposal 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 in no way 
defines the broader set of waters of the United States within the 
scope of the CWA as defined by CWA section 502(7) and has no bearing 
on the scope of waters of the United States.
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    EPA's existing 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). In addition, the existing 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).
    Prior to this proposed rule, EPA had not provided specific 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 Corps districts have had to interpret the extent 
of retained waters and the meaning of ``adjacent wetlands'' in the 
context of case-by-case development of State program descriptions and 
the Memoranda of Agreement that are negotiated between the Corps and 
the State as part of a complete 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 IV.B of this preamble addressing 
Background, EPA convened the Assumable Waters Subcommittee under the 
auspices of the National Advisory Council for Environmental Policy and 
Technology (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 clarifying the extent of retained waters and adjacent 
wetlands (though the letter did not define a specific administrative 
boundary for adjacent wetlands).\28\ The Corps relied on this letter 
when identifying waters to be retained when Florida assumed the section 
404 program in December 2020. NACEPT's recommendations, based on the 
Subcommittee majority recommendation that was subsequently endorsed by 
the Corps, are discussed below.
---------------------------------------------------------------------------

    \28\ 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). The memorandum states that it ``. . . is not 
intended to address future decisions to be made by EPA under 
Sections 404(g) or 404(h).'' Id. at 3.
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i. Retained Waters
(1) 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 \29\ be used ``with two minor modifications: any waters that are 
on the Section 10 lists based solely on historic use (e.g., based 
solely on historic fur trading) 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.\30\ 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 legislative history of 
section 404(g), which is discussed in section IV.A.3 of this preamble, 
addressing Background, 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.) It was also based on 
an assessment of an approach that would be clear and easy to implement. 
See id. at 17-20.
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    \29\ 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.
    \30\ Available at https://www.epa.gov/sites/default/files/2017-06/documents/awsubcommitteefinalreprort_05-2017_tag508_05312017_508.pdf.
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    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

[[Page 55287]]

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 the EPA to assume the 404 program.'' Id. The Subcommittee majority 
found that ``[b]ecause Tribal Indian Reservation boundaries are not 
static and precise definitions and considerations vary from state to 
state, it is essential that waters to be retained by the USACE on 
tribal lands be specifically addressed in any MOA developed between the 
USACE and a state assuming the 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.
(2) EPA's Proposal
    Taking into consideration the majority recommendation of the 
Subcommittee, EPA proposes that, taking current RHA section 10 list(s) 
as a starting point, the following steps would be taken to identify the 
subset of waters of the United States over which the Corps would retain 
administrative authority and develop the retained waters description:

--Place waters of the United States, or reaches of those waters, from 
the RHA section 10 list(s) 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;
--Add any other waters known by the Corps or the Tribe or State 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, including all waters which are subject to the ebb and flow of 
the tide;
--Add a description of wetlands that are adjacent to the foregoing 
waters consistent with the administrative boundary articulated in the 
Tribal-Corps or State-Corps Memorandum of Agreement (see section 
V.A.2.b.ii of this preamble on adjacent wetlands).

    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. In addition, the Corps or assuming 
Tribes or States 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 it should be retained pursuant to the 
parenthetical in 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, potentially taking many years to 
complete the retained waters description. Therefore, EPA is proposing 
that the retained waters description encompass waters ``known'' by the 
Corps, Tribe, or State to meet these criteria. EPA's proposed 
regulation allows for this 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 criteria. EPA is confident that 
geographic information systems technology and navigation charts, as 
well as other approaches, 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.
    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 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, including that 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.
    As recognized in EPA's existing 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. EPA proposes that the 
Memorandum of Agreement between the Corps and State 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 (e.g., some national parks, such as certain areas of the 
Denali National Park).
    EPA's proposed 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. 
The process provides for clarity that will facilitate consistent and 
effective operation of an assumed section 404 program. 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 IV.A.3 of this 
preamble, addressing Background. Since the proposed approach does not 
conflict with the approved extent of the Michigan, New Jersey, and 
Florida programs, no changes to their existing program scope would be 
required.
    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, regardless of whether the Corps chooses to provide 
a retained waters list to the Tribe or State during the initial 
proposed 180-day period. EPA's participation in these discussions could 
help ensure consideration of CWA requirements and related issues (e.g., 
Tribal waters). The Subcommittee majority recommended that EPA and the 
Corps establish a clear dispute

[[Page 55288]]

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 proposing to specify such a 
dispute resolution procedure by regulation. See section V.F.1 of this 
preamble, addressing Dispute Resolution. EPA encourages Tribes and 
States seeking to assume the section 404 program to work 
collaboratively with the Corps and EPA to resolve any issues.
    While EPA anticipates that development of the retained waters 
description would involve 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 
majority recognized that there will be circumstances under which the 
Corps may add waters to section 10 lists after a Tribe or State assumes 
the program. The Subcommittee majority recommended that in that case, 
such waters may, if consistent with CWA section 404(g)(1), be added to 
lists of Corps-retained waters at that time. As is clear from the 
process described above and proposed in this rulemaking, a RHA section 
10 list will not necessarily be co-extensive with the subset of waters 
of the United States over which the Corps would retain administrative 
authority (i.e., retained waters description) following Tribal or State 
assumption of the CWA section 404 program.
    In light of the requests by Tribes and States for clarity and early 
input from the Tribes and States on this rulemaking, EPA is proposing 
changes to the existing regulation, similar to the Subcommittee 
majority opinion's recommendation, that would establish a clear 
regulatory process with defined timelines for a Tribe or State to 
identify retained waters, either by obtaining a list from the Corps or 
developing the list consistent with the proposed process. Specifically, 
EPA is proposing to specify that 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.\31\ In an effort to 
balance the Tribe's or State's need to know the extent of waters it 
could assume with the Corps' permitting workload, EPA is proposing to 
require that the Tribe or State 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. EPA is proposing to require that one of the 
following 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. Under this proposal, 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 proposed 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.
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    \31\ EPA recognizes that in some cases, a Tribe's or State's 
boundaries may overlap with multiple Corps districts. Based on the 
Agency's experience with States pursuing assumption of a section 404 
program, the Corps may designate a ``lead district'' to coordinate 
with the State. If the Corps designates a lead district, the Tribe 
or State would not need to request a retained waters description 
from all relevant Corps districts, but rather could coordinate 
directly with the lead district.
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    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 by the Corps or the Tribe or State 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. As discussed below, the 
description would also acknowledge that wetlands are to be retained if 
they are adjacent to Corps-retained waters pursuant to the proposed 
regulations at 40 CFR 233.11(i)(3) and (i)(5). However, a specific list 
of 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. The Tribe or State may 
provide information to the Corps during the 180-day period to aid in 
the Corps' development of the retained waters description.
    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 would 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, the Tribe or State may develop the retained waters 
description using the same approach described above. In general, the 
retained waters description should provide as much clarity as possible 
to maximize transparency for members of the public and the regulated 
community. Because the Agency's proposed 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, the Regional Administrator may 
presume that a retained waters description that uses this approach 
satisfies the statutory criteria for retained waters.
    Even if the Corps does not provide a retained waters description to 
the Tribe or State, it 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

[[Page 55289]]

or State, the Tribe or State may still review 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 
public also has the opportunity to provide comment on the retained 
waters description when reviewing the Tribe's or State's program 
submission. To the extent the Tribe or State provide opportunities for 
public engagement as they develop their program submission, members of 
the public may be able to provide input during the development of the 
retained waters description.
ii. Adjacent Wetlands
(1) Subcommittee Recommendation
    The Subcommittee majority 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 would pertain only to retained 
adjacent wetlands and not other waters of the United States to be 
assumed by the Tribe or State. This boundary, the recommendation added, 
``could be negotiated at the state or tribal level to take into account 
existing state regulations or natural features that would increase 
practicability or public understanding; 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 tens 
or even hundreds of miles'' from the retained water in ``intricate and 
snakelike networks, which could result in a confusing pattern of USACE 
and state or tribal permitting authority across the landscape. For 
example, the St. Louis River (a tributary to Lake Superior) forms some 
of the boundaries of the Fond du Lac Indian Reservation in Minnesota 
where wetlands comprise 44% of the Reservation.'' Id. at 31. The report 
further explained that ``[w]etlands adjacent to the St. Louis River . . 
. are interconnected with other wetlands that extend tens of miles away 
from the river, well beyond other wetlands that are not connected or 
adjacent to the river.'' Id. The majority opinion also stated that some 
Tribes and States have already established various boundaries, lines, 
or demarcations in their Tribal or State programs for reasons such as 
protection of water quality or flood setbacks. These established lines, 
the majority opinion suggested, could be used to establish the 
administrative boundary between retained and assumable waters. Id.
(2) EPA's Proposal
    In light of the request by Tribes and States for clarity, EPA is 
proposing changes to the existing regulation that are similar to the 
Subcommittee majority opinion's recommendation. EPA's proposal would 
allow Tribes or States to work with the Corps to establish a clear and 
reliable administrative boundary that demarks the permitting authority 
for adjacent wetlands. The boundary would be easily understood and 
implementable in the field, would facilitate coordination between the 
Tribe or State and the Corps, and would enable informed public comment 
during the assumption process and permit review. EPA is proposing that 
the Corps retain administrative authority over all jurisdictional 
wetlands adjacent to retained waters, except that, for purposes of 
administrative convenience, the geographic scope of the Corps' 
administrative authority would be limited by an agreed-upon 
administrative boundary. The Corps would retain administrative 
authority for purposes of section 404 permitting only over the adjacent 
wetlands waterward of the administrative boundary. The Tribe or State 
would assume section 404 permitting authority over any adjacent 
wetlands landward of the administrative boundary. This boundary would 
be negotiated between the Corps and the Tribe or State and take into 
account existing Tribal or State regulations or natural features that 
would facilitate implementation and clarity. This proposed provision is 
consistent with the Subcommittee majority opinion recommendation 
subsequently endorsed by the Army. This proposed administrative 
boundary does not modify or in any way affect the interpretation of the 
scope of those wetlands that are ``adjacent'' for purposes of the 
definition of waters of the United States, but rather simply draws a 
line through them for the sole purpose of maximizing clarity as to the 
relevant permitting authority for these waters of the United States and 
thus facilitating the administration and implementability of approved 
Tribal and State programs.
    EPA is proposing that the administrative boundary between retained 
and assumed wetlands be set jointly by the Tribe or State and the Corps 
and that a 300-foot administrative boundary from the ordinary high 
water mark, mean high water mark, or mean higher high water mark on the 
west coast, of the retained water be set as a default when no other 
boundary between retained and assumed wetlands is established.
    As the majority opinion in the Subcommittee report stated, ``[t]he 
establishment of a national administrative boundary to assign 
regulatory responsibility over adjacent wetlands should build on USACE 
authorities under the RHA. The RHA was enacted primarily to protect 
navigation and the navigable capacity of the nation's waters.'' Final 
Report of the Assumable Waters Subcommittee at 25-26. Section 10 of the 
RHA requires authorization from the Secretary of the Army, acting 
through the Corps, for the construction of any structure in or over any 
``navigable water of the United States.'' Section 14 of the RHA 
provides that the Secretary of the Army, on the recommendation of the 
Chief of Engineers, may grant permission for the temporary occupation 
or use of any sea wall, bulkhead, jetty, dike, levee, wharf, pier or 
other work built by the United States. 33 U.S.C. 408. The Corps will 
always retain RHA section 10 and 14 permitting authorities in all 
waters subject to the RHA; it is the administrative authority to issue 
CWA section 404 permits in these waters which the Corps would not 
retain when a Tribe or State assumes the program.
    Establishing that the Corps retains jurisdictional adjacent 
wetlands up to an agreed upon administrative boundary, with a default 
boundary of a 300-foot distance from retained waters, would preserve 
the Corps' authority over waters and wetlands to the extent necessary 
to allow the Corps to address activities that may adversely impact 
navigability, while ensuring certainty for the extent of waters assumed 
by the Tribal or State program and clarity for the regulated community. 
The sole purpose of the 300-foot default boundary is to facilitate 
efficient program administration, when an administrative boundary is 
not otherwise established. Requiring a clear boundary between 
permitting authorities is well within EPA's authority to help ensure 
that the Tribe or State permitting program can function smoothly and 
effectively, and to maximize transparency for the regulated community 
and others as to the relevant permitting authority. See generally 33 
U.S.C. 1361(a); 1344(g)-(h). The Tribe or State and the Corps may 
decide that existing State-established

[[Page 55290]]

setbacks, buffers, a defined elevation (as in the case of New Jersey), 
other characteristics, or even the full extent of the adjacent wetlands 
should form the basis for the boundary, or they may use 300 feet as the 
default administrative boundary.
    The Subcommittee majority found that ``[r]iparian buffers and 
setbacks are established by many states to, among other purposes, help 
store floodwaters and prevent sediment transport, directly supporting 
and preserving navigation. Thus, such state-established boundaries can 
provide both a practical and a logical basis for the establishment of a 
national administrative boundary between wetlands retained by the USACE 
and wetlands assumed by a state or tribe.'' Final Report of the 
Assumable Waters Subcommittee at 26. To the extent discharges into 
assumed waters may affect navigability, Federal review and oversight of 
permits issued by a Tribe or State under an approved section 404 
program can address any such impacts. The statute and existing 
regulations provide that the Tribe or State shall not issue a permit if 
the Secretary determines that anchorage and navigation of the navigable 
waters would be substantially impaired. 33 U.S.C. 1344(h)(1)(F), 40 CFR 
233.20(d); see also 40 CFR 233.50 (addressing Federal oversight of 
Tribe- or State-issued permits).
    The proposed default administrative boundary would allow Tribes and 
States to adapt the section 404 program to the Tribe's or State's 
natural conditions and provide additional flexibility and efficiency by 
simplifying the process of identifying retained waters prior to 
assumption. EPA agrees with the Subcommittee majority's conclusion that 
a 300-foot administrative boundary, or comparable demarcation between 
the Tribe's or State's and the Corps' permitting authority, would 
provide clarity and avoid ``confusion or unnecessary duplication, while 
preserving the USACE's responsibility to protect and maintain 
navigation under the RHA as required by Congress.'' Final Report of the 
Assumable Waters Subcommittee at 26. The Subcommittee majority 
concluded that ``[s]ince the boundary defines the landward extent of 
the adjacent wetlands retained by the USACE, it eliminates the need to 
determine the extent and connectivity of large wetland systems to 
allocate administrative authority between the USACE and a state or 
tribe.'' Id. EPA agrees with the Subcommittee majority's conclusion 
that a 300-foot default boundary is reasonable, especially since the 
Corps still has the opportunity to provide comment on Tribe- or State-
issued permits and retains permitting authority pursuant to RHA 
sections 10 and 14 for all Tribal or State assumed waters subject to 
those provisions.
    EPA recognizes that some project proposals that straddle the 
administrative boundary may involve a discharge into the waters on both 
sides of the administrative boundary. The extent of impacts associated 
with projects that straddle the boundary could be minimal or extensive, 
as in the case of linear projects or housing developments. In order to 
respond to the interests of Tribes and States in facilitating the 
assumption process, reducing costs, and increasing the consistency and 
efficiency of assumed programs, EPA is recommending that a process for 
determining the allocation of permitting authority in this situation be 
addressed in the program description and the Memorandum of Agreement 
between the Tribe or State and the Corps, to allow for regional 
differences and to best meet the conditions of individual Tribes and 
States. In developing the Memorandum of Agreement, the Tribe or State 
and the Corps should consider and memorialize permitting approaches for 
various project types where the project proposal may involve discharges 
on both sides of the administrative boundary.
    EPA also recognizes that the Corps, Tribes, and States would 
benefit from additional clarity as to how project proposals that cross 
the administrative boundary should be permitted, absent an alternative 
approach being developed by the Corps and the Tribe or State. Under the 
default approach in this proposed rule, the Corps shall issue a section 
404 permit for the discharges to jurisdictional adjacent wetlands or 
portions of such wetlands that are waterward of the administrative 
boundary. The Tribe or State shall issue a section 404 permit for 
discharges to jurisdictional adjacent wetlands or portions of such 
wetlands that are landward of the administrative boundary. Note that 
EPA is not suggesting that, when a proposed project crosses the 
administrative boundary, each individual discharge should be permitted 
separately. Such an approach would be inconsistent with the existing 
regulatory requirement that ``[a]ll activities which the applicant 
plans to undertake which are reasonably related to the same project 
should be included in the same permit application.'' 40 CFR 
233.30(b)(5). Rather, the default in the proposed rule is that the 
Corps and Tribe or State shall each permit all discharges to adjacent 
wetlands related to a proposed project on their respective sides of the 
administrative boundary. In such cases, EPA recommends that the Corps 
and the Tribe or State coordinate on permitting activities such as 
public notices and joint public hearings to the extent feasible to 
facilitate assessment of cumulative impacts.
    The approved Michigan, New Jersey, and Florida CWA section 404 
programs are also consistent with the proposed approach. EPA briefly 
summarizes the approaches taken by these States to provide examples of 
possible approaches that are consistent with the proposed rule. In the 
Memorandum of Agreement between New Jersey and the Corps, the Corps 
retained regulatory authority over those wetlands that are: ``. . . 
partially or entirely located within 1000 feet of the ordinary high 
water mark or mean high tide of the Delaware River, Greenwood Lake, and 
all water bodies which are subject to the ebb and flow of the tide.'' 
Memorandum of Agreement between the State of New Jersey and the 
Department of the Army at 2 (March 4, 1993). State-administered waters 
in turn are generally determined by superimposing head of tide data on 
the State's freshwater wetlands quarter quadrangles that are at a scale 
of one-inch equals 1000 feet. A line was established parallel to and 
1000 feet from the ordinary high-water mark or mean high tide of the 
waters described above. The Corps retains permitting authority over all 
wetlands that are waterward of, or intersected by, the administrative 
boundary described above. Because New Jersey regulates all wetlands and 
other waters under the same statute, it rarely must determine whether a 
wetland is assumable or non-assumable for purposes of a State 
permit.\32\
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    \32\ For further information, see the Memorandum of Agreement 
between the Corps and the New Jersey Department of Environmental 
Protection and Energy, signed by the Division Engineer on March 4, 
1993.
---------------------------------------------------------------------------

    In Michigan, the extent of adjacent wetlands over which the Corps 
retains authority generally includes wetlands within the influence of 
the ordinary high water mark of retained waters. The State and the 
Corps coordinate permitting of projects that involve discharges into 
both assumed and retained waters to ensure the permit requirements do 
not conflict.\33\
---------------------------------------------------------------------------

    \33\ For further information, see the Memorandum of Agreement 
between the Corps and the Michigan Department of Natural Resources, 
signed by the Commander, North Central Division, on March 27, 1984.
---------------------------------------------------------------------------

    In Florida, the Corps retains responsibility for waters that are 
identified in the retained waters

[[Page 55291]]

description, as well as all waters subject to the ebb and flow of the 
tide shoreward to their mean high water mark that are not specifically 
listed in the retained waters description, including wetlands adjacent 
thereto landward to an administrative boundary. The Memorandum of 
Agreement defines the administrative boundary as 300 feet from the 
ordinary high water mark or mean high tide line of the retained water. 
The Memorandum of Agreement also contains protocols for addressing 
projects that involve discharges of dredged or fill material both 
waterward and landward of the 300-foot boundary. The Corps provided 
geographic information system (GIS) layers that reflect the extent of 
retained waters and updates them as necessary. The Memorandum of 
Agreement states that the GIS layers are a tool, but not the final 
determining factor regarding who is the permitting authority for any 
particular waterbody. The Memorandum of Agreement also states that the 
Corps shall retain responsibility for waters of the United States 
within ``Indian country,'' as that term is defined at 18 U.S.C. 
1151.\34\
---------------------------------------------------------------------------

    \34\ For further information, see the Memorandum of Agreement 
between the Corps and the Michigan Department of Natural Resources, 
signed by the Assistant Secretary of the Army (Civil Works), on 
August 5, 2020.
---------------------------------------------------------------------------

iii. Modifying the Extent of Retained Waters
    EPA proposes to revise the provision in the existing regulations 
that currently states that modifications that affect the area of 
jurisdiction always constitute substantial revisions to a Tribal or 
State program. The existing 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, of substantial revisions. 40 CFR 233.16(d)(2)-
(4). Changes to the area of jurisdiction could include changes to the 
retained waters description. Such changes may sometimes have limited 
scope and impact and therefore may be non-substantial. As described 
above, this proposal would clarify that the retained waters description 
looks initially to those waters on existing RHA section 10 lists. As 
such, the process set forth in proposed 40 CFR 233.11(i)(3) should be 
followed to identify whether changes to the RHA section 10 list warrant 
changes to the retained waters description for a given Tribal or State 
section 404 program.
    EPA recognizes that changes to RHA section 10 lists do not always 
warrant changes to the retained waters description, or only warrant 
minimal changes. 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. As 
another example, if the Corps made a relatively minor adjustment to the 
head of navigation for a RHA section 10 listed water, the new extent to 
which this water is retained would be shown on a revised retained 
waters list but may be considered as a non-substantial change in the 
retained waters description.
    However, if a large water or a significant number of waters are 
proposed to be added to or removed from the retained waters 
description, that change could be a substantial revision to the Tribal 
or State program. Under the proposal, EPA would have discretion to 
determine whether changes to the area of jurisdiction, which includes 
the extent of retained waters, are substantial or non-substantial and 
approve the modification to the retained waters description and extent 
of the Tribal or State program consistent with the procedures in 40 CFR 
233.16.
    Note, however, that EPA is proposing to clarify 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.'' 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, the 
Agency proposes to clarify that revisions 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 proposing to amend 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.
iv. Additional Clarifications
    EPA also proposes to clarify that in the program description of an 
assumption request, the description of waters of the United States 
assumed by the Tribe or State must encompass all waters of the United 
States not retained by the Corps. All discharges of dredged or fill 
material into waters of the United States must be regulated either by 
the Tribe or State or the Corps; at no time can there be a gap in 
permitting authority for any water of the United States. See discussion 
of this principle in section V.E.1 of this preamble.
    Finally, EPA proposes to remove 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 MOA procedures for joint 
processing of Federal and State permits, including joint public notices 
and public hearings.'' 40 CFR 233.14(b)(2). EPA proposes to remove the 
term ``traditionally'' to align the reference to retained waters with 
the rest of the 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 proposed rule. See 40 CFR 120.2(a)(1)(i).
c. Request for Comment
    EPA solicits comments on all aspects of the proposal laid out 
above. EPA solicits comment on whether the term ``retained waters 
description'' should be used when referring to how retained waters are 
identified in a Tribal or State program description or if the term 
``retained waters list'' or some other term should be used instead and 
why such term is preferable over ``retained waters description.''
    With respect to determinations of the extent of retained waters, 
EPA solicits comment on the appropriate

[[Page 55292]]

information that the letter from the Tribal leader, Governor, or Tribal 
or State Director should provide to demonstrate the Tribe's or State's 
commitment to pursuing assumption, including whether the Tribe or State 
should submit additional documentation or evidence of that commitment. 
EPA also solicits comment on whether the regulation should specify a 
time period for EPA review of the request for the retained waters 
description, and the length of that time period. The proposal currently 
provides EPA with 7 days to review and respond to the request for the 
retained waters description, but EPA solicits comment on alternative 
time periods such as 14 days. EPA solicits comment on alternative time 
periods that the Tribe or State must provide the Corps to prepare the 
description of retained waters, such as 90 days, 120 days, 150 days, or 
270 days. The Agency also solicits comment on alternative periods of 
time within which the Corps may inform the Tribe or State whether it 
intends to prepare the description of retained waters. EPA solicits 
comment regarding ways to further shorten or simplify the process for 
determining the extent of retained waters. Additionally, the Agency 
solicits comment on whether the regulatory text should include a 
provision that allows for an extension to the default time period for 
the Corps to prepare the description of retained waters, contingent on 
mutual agreement from the Corps and the Tribe or State.
    The Agency solicits comment on how to increase transparency for the 
public regarding the development of the retained waters description. 
For example, EPA solicits comment on an approach whereby when the Tribe 
or State submits its request to the Corps to develop a retained waters 
description, the Tribe or State must publish public notice of that 
request, in an effort to increase transparency and maximize 
opportunities for public input. The Agency also solicits comment on 
alternative ways to increase opportunities for public participation in 
the development of the description, in addition to the existing 
opportunity for public comment after the Tribe or State submits a 
program request to EPA for approval.
    The Agency solicits comment on all aspects of the proposed approach 
to determining the extent of retained adjacent wetlands as well as 
alternative approaches, including whether the 300-foot administrative 
default should be codified in regulatory text, whether another default, 
such as 500 feet or 1,000 feet, should be recommended or codified, 
whether an administrative boundary should be an optional recommendation 
rather than a requirement, and any alternative approaches to 
establishing a boundary and to determining which ``adjacent wetlands'' 
are retained by the Corps.
    The Agency also solicits comment on all aspects of the proposed 
approach to modifying the extent of retained waters, including whether 
these modifications should be substantial or non-substantial and 
whether to modify or specify any other procedures, including public 
notifications, for such modifications. EPA specifically solicits 
comment on its proposal to remove the specification that changes to the 
area of jurisdiction, which includes the retained waters description, 
are always substantial changes to approved Tribal or State programs. 
EPA requests comment on alternative approaches, including whether to 
instead provide that reductions in the scope of Federal jurisdiction, 
such as the removal of waters from the retained waters description, are 
always substantial program revisions.
    EPA solicits comment as to whether to require the program 
description and the Memorandum of Agreement between the Tribe or State 
and the Corps to specifically address the process for permitting 
projects that may involve discharges both waterward and landward of the 
administrative boundary. EPA also solicits comment on the proposed 
default permitting approach for projects that would lead to discharges 
to jurisdictional adjacent wetlands crossing the administrative 
boundary.
    EPA requests comment on specific ways EPA could be involved in 
resolving any disagreements regarding the extent of retained waters, 
and whether the regulations should provide a specific procedure through 
which EPA could provide input on the retained waters description while 
it is being developed. Note that EPA already has the opportunity to 
provide input upon review of the Tribal or State program submission, as 
well as when changes are proposed to an approved retained waters 
description. Finally, the Agency solicits comment as to whether to 
require that the retained waters description should be revisited at 
certain intervals, such as annually, biennially, or triennially, to 
allow for any necessary modifications, or if any such review should be 
handled in the Memoranda of Agreement between EPA and the Tribe or 
State or between the Corps and the Tribe or State.
3. Mitigation
a. What is the Agency proposing?
    EPA is proposing to require that the program description that 
Tribes or States submit to EPA when seeking to assume the section 404 
program include a description of the Tribe's or State's proposed 
approach to ensuring that all permits issued by the Tribe or State 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. The provision would 
clarify 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 as opposed to Corps 
administration, but may not be less stringent than the substantive 
criteria of subpart J. For example, a Tribal or 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. EPA is proposing that if the Tribe or State establishes third 
party compensation mechanisms as part of their section 404 program 
(e.g., banks or in-lieu-fee programs), instruments associated with 
these compensatory mitigation approaches must be sent to EPA, the 
Corps, the U.S. Fish and Wildlife Service, and the National Marine 
Fisheries Service for review prior to approving the 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. Note 
that this requirement does not include permittee-responsible mitigation 
instruments as those would be reviewed as part of the permit 
conditions. Tribes and States may also send draft instruments to other 
relevant Tribal or State resource agencies for review. The proposed 
rule provides a time frame for receiving comments from the reviewing 
agencies. In the event that the Regional Administrator has commented 
that the instrument is not consistent with the description of the 
Tribe's or State's proposed approach to ensuring compliance with the 
substantive criteria for compensatory mitigation, the Tribe or State 
shall not approve the final compensatory mitigation instrument until 
the Regional Administrator notifies the Director that the final 
instrument is consistent with this approach.

[[Page 55293]]

b. Why is the Agency proposing this approach?
    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).\35\ 33 U.S.C. 
1344(h)(1)(A)(i); 40 CFR 233.20(a). The CWA 404(b)(1) Guidelines at 40 
CFR part 230 are the substantive criteria used to evaluate discharges 
of dredged and/or fill material under CWA section 404. Subpart J of the 
CWA 404(b)(1) Guidelines addresses Compensatory Mitigation for Losses 
of Aquatic Resources. See 40 CFR 230.91 through 98. Tribes and States 
must also ensure that their programs are no less stringent than the 
requirements of the CWA and implementing regulations. 40 CFR 233.1(d). 
Therefore, Tribes and States must ensure that the permits they issue 
comply with the substantive criteria for compensatory mitigation set 
forth in subpart J.
---------------------------------------------------------------------------

    \35\ See section V.B.1 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.
---------------------------------------------------------------------------

    Under the CWA 404(b)(1) Guidelines, impacts should be avoided and 
minimized to the maximum extent practicable before considering 
compensatory mitigation for unavoidable impacts. In this context, 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. In 2008, the Corps and EPA issued joint 
regulations, ``Compensatory Mitigation for Losses of Aquatic 
Resources'' (``2008 Mitigation Rule'') (33 CFR 325.1(d)(7), 332; 40 CFR 
part 230, subpart J) \36\ describing the compensatory mitigation 
requirements for activities authorized by section 404 permits issued by 
the Corps. The language in the 2008 Mitigation Rule 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 19594, 19650 (April 10, 2008).
---------------------------------------------------------------------------

    \36\ 33 CFR part 332 and 40 CFR part 230, subpart J contain 
identical text. For ease of reference, this preamble refers to 
compensatory mitigation requirements in 40 CFR part 230, subpart J 
or ``subpart J.''
---------------------------------------------------------------------------

    States have requested clarification as to how a Tribe or State can 
demonstrate that it has authority to issue permits that apply and 
ensure 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 the Federal agencies in 
connection with compensatory mitigation for impacts to assumed waters.
    The 2008 Mitigation Rule established performance standards and 
criteria for three mechanisms: permittee-responsible compensatory 
mitigation, mitigation banks, and in-lieu fee programs. These standards 
and criteria were established to improve the quality and success of 
compensatory mitigation projects for activities authorized by section 
404 permits issued by the Corps. EPA proposes to add a new provision to 
the section 404 Tribal and State program regulations to codify its 
interpretation that Tribal and State section 404 programs must issue 
permits that are no less stringent than and consistent with the 
substantive criteria for compensatory mitigation described in 40 CFR 
part 230, subpart J.
    EPA recognizes that unlike other subparts of 40 CFR part 230, some 
terminology and discussion in subpart J refers to the Corps as the 
permitting authority. 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 the Tribal or State permitting 
agency or decision maker. In addition, the Tribe or State may exercise 
necessary discretion in reconciling the provisions in subpart J with 
the fact that the Tribe or State will be administering the program, 
using its administrative structures, and in determining whether and how 
to incorporate mitigation banking and/or an in-lieu fee program as 
mechanisms for compensatory mitigation. EPA proposes to clarify in this 
provision 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 as opposed to Corps 
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 not establish an in-lieu fee 
program. As another example, in the context where the Corps is the 
permitting agency, the Tribe or State often provides the required 
financial assurance for mitigation banks approved by the Corps. In the 
context where the Tribe or State will be administering the mitigation 
program, they may also be providing the financial assurance (e.g., a 
Department of Transportation banking instrument). Flexibility is needed 
to allow the Tribe or State to develop a program where they may be both 
issuing the instrument approval and providing the financial assurance 
for the bank or in-lieu-fee program. The Tribe or State should 
prioritize transparency when developing the program especially with 
respect, but not limited to financial assurances. On no account may the 
Tribal or State approach result in mitigation that is less stringent 
than the requirements of subpart J.
    EPA proposes to require that the Tribal or State program 
description explain the approach to ensuring that all permits issued by 
the Tribe or State will apply and ensure compliance with the 
substantive criteria for compensatory mitigation set out in subpart J. 
This explanation is necessary so that EPA can fully evaluate the 
Tribe's or State's proposed approach to compensatory mitigation to 
ensure its consistency with the substantive criteria of subpart J. It 
would also ensure that EPA can assist the Tribe or State in ensuring 
that its approach is practicable and implementable.
    Finally, EPA is proposing that if the Tribe or State establishes 
third party compensation mechanisms as part of their section 404 
program (e.g., banks or in-lieu-fee programs), instruments associated 
with these compensatory mitigation approaches must be sent to EPA, the 
Corps, the U.S. Fish and Wildlife Service, and the National Marine 
Fisheries Service for review prior to approving the 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. This 
requirement does not include permittee-responsible compensatory 
mitigation because those instruments would be included in individual 
permit applications. The Tribe or State may also send draft instruments 
to other relevant Tribal or State resource agencies for review on a 
case-by-case basis. Federal, Tribal, or State resource agencies have 
special expertise that may be important in facilitating the development 
of the compensatory mitigation instruments. For example, EPA 
anticipates that Tribes or States will circulate draft compensatory 
mitigation instruments to State wildlife agencies where species 
concerns may be

[[Page 55294]]

present within or adjacent to the mitigation site or if the site will 
be established for the purpose of providing habitat for a particular 
threatened or endangered species that is addressed by these agencies. 
Their review would include an opportunity for these agencies to provide 
comment on the draft instrument.
    If EPA, the Corps, the U.S. Fish and Wildlife Service, or the 
National Marine Fisheries Service intend to comment on the draft 
instrument, they must notify the Tribe or State of their intent within 
30 days of receipt. If the Tribe or State has been so notified, the 
instrument must not be effective until after the receipt of such 
comments or 90 days after the agencies' receipt of the proposed 
instrument. The Tribe or State must consider and respond to any 
comments provided by EPA, the Corps, the U.S. Fish and Wildlife 
Service, the National Marine Fisheries Service, or any Tribal or State 
resource agencies to which they committed to send draft instruments in 
the program description before the instrument can become effective for 
purposes of the State or Tribal assumed section 404 program. The 
purpose of providing the opportunity for this review and feedback is to 
ensure that the structure of the instrument, design of the proposed 
projects, impacts for which the instrument would provide compensation, 
and criteria for credit release of the approved instrument will result 
in a successful bank or in-lieu-fee program capable of mitigating for 
loss resulting from permitted activities. If EPA has commented that the 
instrument fails to apply or ensure compliance with the approach 
outlined in the program description for compliance with subpart J, the 
Tribe or State may not approve the final compensatory mitigation 
instrument until EPA notifies it that the final instrument ensures 
compliance with this approach. The procedure for EPA review implements 
EPA's oversight authority over Tribal and State section 404 programs. 
The Agency also expects that this process will be familiar to Tribes 
and States because it is modeled on, and similar to, procedures for EPA 
review of permits. The proposed process is also intended to facilitate 
input from other relevant agencies, which is analogous to how the 
Interagency Review Team that oversees mitigation for Corps-issued 
permits facilitates 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).
c. Request for Comment
    EPA requests comment on all aspects of the proposed new provision, 
including whether EPA should provide additional specificity as to 
whether or how particular provisions of subpart J should or should not 
apply to Tribal or State programs. EPA requests comment on its proposal 
that if a Tribe or State establishes third party compensation 
mechanisms as part of their section 404 program (e.g., banks or in-
lieu-fee programs), instruments associated with these compensatory 
mitigation approaches must be sent to EPA, the Corps, the U.S. Fish and 
Wildlife Service, and the National Marine Fisheries Service for review 
prior to approving the 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. EPA requests comment as to 
whether Tribal or State agencies should be required to provide draft 
instruments only to EPA, the Corps, and the U.S. Fish and Wildlife 
Service, or whether they should be required to provide such instruments 
to particular Tribal or State agencies as well. EPA also requests 
comment regarding which instruments may be appropriate for such review 
and the specific process and time frames for review of the instruments. 
EPA requests comment as to whether the time frames listed are 
appropriate, whether they should be shorter or longer (e.g., provide 60 
or 120 days for review) or if the regulations should be silent 
regarding the time frames and simply provide that specific review 
procedures for draft instruments should be addressed in the Memorandum 
of Agreement between the Tribe or State and EPA.
    EPA also requests comment regarding whether the proposed provisions 
would provide sufficient oversight for Tribal or State compensatory 
mitigation instruments, and whether to condition the Tribe's or State's 
issuance of the instrument on their addressing all comments received 
from EPA, the Corps, the U.S. Fish and Wildlife Service, and the 
National Marine Fisheries Service. EPA requests comment as to whether 
to establish a time frame for EPA's notification to the Director that 
objections have been resolved, such as 60 or 90 days. EPA also requests 
comment regarding the agencies to whom Tribes and States should 
circulate draft instruments for review, and the extent to which they 
must address comments from reviewing agencies.
4. Effective Date for Approved Programs
a. What is the Agency proposing?
    EPA is proposing to modify and more clearly define the effective 
date of the transfer of section 404 program administration from the 
Corps to a Tribe or State following EPA program approval. Specifically, 
EPA proposes to revise 40 CFR 233.11 and sections 233.13 through 233.15 
of the existing regulations to provide that the transfer of an approved 
section 404 program to a Tribe or State takes effect 30 days after 
publication of the notice of EPA's program approval appears in the 
Federal Register, except where EPA and the Tribe or State have 
established a later effective date, not to exceed 120 days from the 
date of notice in the Federal Register. Additionally, EPA is proposing 
to increase transparency and provide early notice to interested parties 
by requiring that decisions to approve Tribal and State programs and 
revisions be posted on the EPA website as well as in the Federal 
Register.
b. Why is the Agency proposing this approach?
    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 existing regulations provide that the transfer 
of permitting authority to a Tribe or State shall not be considered 
effective until notice of EPA's program approval appears in the Federal 
Register. 40 CFR 233.15(h).
    EPA proposes 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. Establishing a short, 
clearly defined period of time between program approval and Tribal or 
State assumption of program administration benefits the public and 
regulated community by providing advance notice of the date of program 
transfer and supporting the smooth transition of program functions, 
while limiting any uncertainty that could arise with a more extended 
transition period.
    Taking into consideration the input EPA has received from some 
States in the past, EPA also proposes that a Tribe or State may request 
a later effective date for the transfer of an approved section 404 
program, up to 120 days from the date that the notice of EPA's program 
approval is published in the Federal Register. EPA proposes to allow 
more than 30 days only when a Tribe's or State's specific circumstances 
justify

[[Page 55295]]

the need for additional time before assuming administration of the 
program. In all cases, that effective date would 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.
    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 permitting program if their 
program is approved. These States include some with existing surface 
water or wetlands protection programs authorized under State law that 
would be expanded or adapted to incorporate the section 404 program for 
State-regulated waters, and others without any existing similar State 
programs. In both cases, but especially the latter, Tribes and States 
may need to reorganize, assign, and train staff, and purchase and 
employ new equipment for data processing before they are fully able to 
administer a section 404 program. Tribes and States without a similar 
program will presumably need to initiate these steps well before EPA 
completes its program review and determination, but some may not be 
fully prepared to administer the program 30 days after notice of 
program approval (e.g., if funding is made available by the State 
legislature contingent upon program approval by EPA).
    EPA would expect a Tribe or State to be prepared to implement any 
final steps quickly and therefore proposes that the amount of time 
between publication of notice of program approval and transfer of the 
program to the Tribe or State not exceed 120 days. For example, a Tribe 
or State should not wait until EPA approves the program before 
initiating hiring and training processes for staff that were committed 
in the program description. The effective date would be specified in 
the Memorandum of Agreement between EPA and the Tribe or State, and the 
program description should specify the steps the Tribe or State will 
take, if any, after EPA approval to fully administer its program, such 
as specifying the timeline for any assignment and training of staff and 
ensuring program funding is accessible by the effective date.
    This proposal would revise and clarify the language in 40 CFR 
233.11 and sections 233.13 through 233.15 of the existing section 404 
Tribal and State program regulations, which address the contents of a 
Tribe's or State's program description, the EPA and Corps Memoranda of 
Agreement with Tribes and States, and the procedures for approving 
Tribal and State programs. The existing regulations require a Tribe or 
State and the Corps to 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). 
The regulations provide that the transfer of permitting authority to a 
Tribe or State shall not be considered effective until notice of EPA's 
program approval appears in the Federal Register. The Corps shall 
suspend the issuance of section 404 permits in State-regulated waters 
``on such effective date.'' 40 CFR 233.15(h). Section 404(h)(2)(A) of 
the CWA, however, specifies that after EPA has notified the Tribe or 
State and Corps of its program approval, the Corps shall suspend 
issuance of permits in Tribal or State-regulated waters ``upon 
subsequent notification from such State that it is administering such 
program.'' 33 U.S.C. 1344(h)(2)(A). Read together, the language in the 
statute and EPA's regulations may create confusion regarding when the 
Corps shall suspend the issuance of permits.
    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, see 33 U.S.C. 1344(h)(2), permitting 
responsibility should transfer. Thus, the administrative process 
envisioned by Congress is that EPA receives a program request, reviews, 
and approves or rejects the application, then notifies the parties of 
an approval decision, after which the Corps begins to transfer existing 
permitting materials. Under this framework, it is clear that some 
reasonable transition period is permissible, although Congress 
anticipated that transfer would happen relatively quickly.
    EPA is proposing 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 should 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 can request an effective date of up to 120 days 
from the date of notice. EPA also proposes that if a Tribe or State 
requests to assume administration of the program more than 30 days 
after EPA's approval, the program description will 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. 
This description would help to support the Tribe's or State's request 
and demonstrate why the Tribe or State considers the additional time 
necessary.
    EPA proposes 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. 
The Corps would continue to process permit applications and begin the 
transfer of permits under review prior to the effective date of that 
program approval, but the Tribe or State would not be authorized to 
process these permits until the effective date.
    EPA recognizes that setting an effective date more than 30 days 
after program approval could create uncertainty. It is possible that 
with a longer time period and certain steps yet to be taken by the 
Tribe or State, events could occur after program approval which could 
delay a Tribe's or State's ability to fully implement its program and 
potentially lead to a situation in which it is no longer certain when 
or whether the Tribe or State will begin to fully administer its 
program. However, such a situation could be addressed under the 
existing and proposed amended regulations, if it becomes necessary, by 
approving a revision of a Tribe's or State's program pursuant to 40 CFR 
233.16(d), by the Tribe or State voluntarily relinquishing its legal 
authority and leaving the program with the Corps, or by EPA initiating 
the process to withdraw a program approval for failure to comply with 
the requirements of 40 CFR part 233. 40 CFR 233.53(b).
c. Request for Comment
    EPA seeks comment on whether the section 404 Tribal and State 
program

[[Page 55296]]

regulations should include a default effective date for transfer of the 
section 404 program from the Corps to an approved Tribe or State; 
whether the regulations should allow for Tribes or States and EPA, on a 
case-by-case basis, to set the effective date later than 30 days but no 
more than 120 days from date of publication of program approval in the 
Federal Register; or whether the Agency should not set a new effective 
date as proposed, but rather retain the existing regulations that 
simply specify that ``transfer of the program shall not be considered 
effective until such notice appears in the Federal Register.'' 40 CFR 
233.15(h).
    With respect to EPA's proposed approach, EPA seeks comment on 
whether a presumptive effective date should be longer than 30 days, 
such as 60 or 90 days. EPA also seeks comment on whether the regulatory 
text should explicitly limit the allowable effective date to 120 days 
from the date of EPA's program approval, or whether a shorter or longer 
limit would be appropriate. EPA requests comment on whether it should 
specify particular information that the Tribe or State must provide in 
the program description if the Tribe or State requests to assume 
administration of the program more than 30 days after EPA's approval, 
such as a schedule for assigning or training staff or procuring 
resources. EPA also requests comment as to the circumstances under 
which EPA might disapprove a Tribe's or State's submission because its 
plan for implementation is inadequate. EPA requests comment on 
potential problems with deferring the effective date beyond 30 days and 
how EPA or a Tribe or State might address them. Finally, EPA requests 
comment on whether a proposed effective date may be modified after 
program approval is published in the Federal Register, and if so, the 
circumstances and procedural mechanisms for doing so.

B. Permit Requirements

    This section of the preamble includes topics that are generally 
related to Tribal and State section 404 program requirements, including 
compliance with the CWA 404(b)(1) Guidelines and requirements for 
judicial review and rights of appeal.
1. Compliance With the CWA 404(b)(1) Guidelines
a. What is the Agency proposing?
    Stakeholders have requested clarity regarding the way in which a 
Tribe or State wishing to assume the CWA section 404 program can 
satisfy CWA section 404(h)(1)(A)(i) by demonstrating that it has 
authority to issue permits that ``apply and assure compliance with'' 
the CWA 404(b)(1) Guidelines (found at 40 CFR part 230). See 33 U.S.C. 
1344(h)(1)(A)(i). Because the existing regulations already require that 
CWA section 404 permits issued by an assuming Tribe or State must 
comply with the CWA 404(b)(1) Guidelines, and EPA does not want to 
unintentionally constrain how Tribes and States can demonstrate their 
authority, EPA is not proposing to add to the regulatory text. In 
response to stakeholder requests, EPA discusses below 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.\37\
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    \37\ See section V.A.3 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 the portion of the CWA 
404(b)(1) Guidelines addressing compensatory mitigation (40 CFR part 
230, subpart J).
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b. Why is the Agency proposing this approach?
    The CWA 404(b)(1) Guidelines are the substantive criteria used to 
evaluate discharges of dredged and/or fill material under CWA section 
404. 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). . . .'' Among 
other things, the CWA 404(b)(1) Guidelines 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 causes or contributes to 
violations of applicable water quality standards taking into account 
disposal site dilution and dispersion (40 CFR 230.10(b)(1)); if it will 
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)).
    Consistent with CWA section 404(h)(1)(A)(i), the existing 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 regulations'' (40 CFR 233.34(a)).
    Recognizing that a CWA section 404 permit may be required for a 
variety of discharges into a wide range of aquatic ecosystems, the CWA 
404(b)(1) Guidelines provide ``a certain amount of flexibility,'' 
consisting of tools for evaluating proposed discharges, rather than 
numeric standards. As EPA explained in the preamble to the CWA 
404(b)(1) Guidelines: ``Characteristics 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.'' 45 FR 85336, 85336 (December 24, 1980). 
See also 40 CFR 230.6.
    With respect to Tribes or States seeking to assume administration 
of the CWA section 404 program, EPA finds that the existing section 404 
Tribal and State program regulations, including 40 CFR 233.1(d); 40 CFR 
233.20(a); 40 CFR 233.23(a); and 40 CFR 233.34, appropriately require 
that Tribal and State environmental review criteria be consistent with 
the CWA 404(b)(1) Guidelines. At the same time, the existing 
regulations appropriately avoid a ``one size fits all'' approach and 
afford assuming Tribes and States necessary flexibility as to how best 
to craft a Tribal or State program that would issue permits that apply 
and assure compliance with the Guidelines. Accordingly, EPA does not 
propose to revise the regulations implementing CWA section 404(h)'s 
requirement that Tribes and States have authority sufficient to issue 
permits that apply and assure compliance with the CWA 404(b)(1) 
Guidelines.
    EPA notes that there are a variety of means by which a Tribe or 
State

[[Page 55297]]

wishing to assume implementation of the CWA section 404 program may 
demonstrate that it has sufficient authority to issue permits that 
apply and assure compliance with the CWA 404(b)(1) Guidelines. Nothing 
in CWA section 404(h) requires that Tribes and States adopt verbatim or 
incorporate into their programs by reference the CWA 404(b)(1) 
Guidelines. See 49 FR 39012, 39015 (October 2, 1984). Clearly, a Tribe 
or State can demonstrate sufficient authority to issue permits that 
apply and assure compliance by choosing to adopt verbatim or 
incorporate into its program by reference those portions of the CWA 
404(b)(1) Guidelines that provide the substantive environmental 
criteria and analyses used for evaluating discharges of dredged and/or 
fill material under CWA section 404. That said, EPA continues to 
recognize that adoption and incorporation by reference are not the sole 
means by which an assuming Tribe or State can demonstrate sufficient 
authority to issue permits that apply and assure compliance with the 
CWA 404(b)(1) Guidelines.
    A Tribe or State wishing to assume administration of the CWA 
section 404 program, for example, could demonstrate that it has 
sufficient authority to apply and assure compliance with the CWA 
404(b)(1) Guidelines using a cross-walk 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 is consistent 
with 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 with a demonstration-type 
approach, showing, for example, that the terms and conditions of 
permits for discharges into waters of the United States that were 
issued pursuant to the Tribal or State program were consistent with 
permits issued by the Corps for the same discharge.
    EPA is aware that demonstrating authority to issue permits that 
apply and assure compliance with certain aspects of the CWA 404(b)(1) 
Guidelines may be challenging. For example, the CWA 404(b)(1) 
Guidelines direct that no discharge of dredged or fill material shall 
be permitted if it will 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)). To 
demonstrate compliance with this aspect of the CWA 404(b)(1) 
Guidelines, Tribes and States could identify the listed species and 
areas of designated critical habitat within their geographic 
boundaries, the types of discharges that are likely to be permitted, 
and other unique Tribal or State factors, and include in the program 
submission provisions and procedures to protect listed species and 
habitat. Tribes and States also could develop processes for ensuring 
that their identification of listed species and designated critical 
habitat remains up-to-date as well as processes to avoid impacts to 
these resources.
    EPA also encourages Tribes and States to consider proactively 
coordinating with the relevant National Marine Fisheries Service or 
U.S. Fish and Wildlife Service (``the Services'') regional or field 
offices when developing their program submissions. To the extent that 
Tribes and States work with the Services to develop their programs, 
such work would facilitate EPA's compliance with its obligations under 
CWA sections 404(g)(2) and 404(h)(1) to provide the Services with an 
opportunity to comment on a Tribal or State program submission and to 
consider those comments when determining whether the Tribe or State has 
the requisite authority to implement the CWA section 404 program. See 
33 U.S.C. 1344(g)(2) and 1344(h)(1); see also 40 CFR 233.15(d) and (g).
    Similarly, demonstrating that the Tribe or State has sufficient 
authority to implement subpart F of the CWA 404(b)(1) Guidelines may be 
challenging. 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).
    To demonstrate sufficient authority to apply and assure compliance 
with subpart F of the CWA 404(b)(1) Guidelines, a Tribe or State should 
consider including in its program description its process for 
evaluating and addressing potential permit impacts on historic 
properties. Such a process could include formal or informal 
coordination and communication with the State Historic Preservation 
Officer or Tribal Historic Preservation Office (SHPO or THPO). The 
Tribe or State also could consider developing an agreement with the 
relevant SHPO or THPO 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 authorized 
program.\38\
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    \38\ See 40 CFR 233.51(b)(6) (providing that EPA review of 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. . . .'')
---------------------------------------------------------------------------

    EPA also 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 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.
    In pre-proposal outreach for this rulemaking, some Tribes asked how 
a State that has assumed the section 404 program would consider 
potential impacts on Tribes or Tribal interests when making permit 
decisions. In addition to the proposed provision for coordinating with 
downstream Tribes in section 233.31 described in section V.C.2 of this 
preamble, and the addition of EPA review of a permit, upon request from 
a Tribe in section 233.51, EPA notes that complying with the CWA

[[Page 55298]]

404(b)(1) Guidelines currently provides an opportunity for States to 
consider potential impacts of proposed section 404 permits on aquatic 
resources and uses important to Tribes.
    These human use considerations encompass, among other things, uses 
and values of aquatic resources that are important to Tribes. 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.'' 40 CFR 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.'' 40 
CFR 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.'' 40 CFR 230.54(b).
    The CWA 404(b)(1) Guidelines at section 233.31-33 require that the 
Tribal or State permitting authority coordinate with affected States 
prior to permit issuance, and provide for public notice and hearings 
related to permit applications, preparation of draft general permits, 
and similar actions. As mentioned above, EPA considers the human use 
effects under subpart F of the CWA 404(b)(1) Guidelines to encompass 
impacts of proposed discharges on Tribal interests, including impacts 
on fisheries and other aquatic resources, aesthetics, and historic and 
cultural uses. As noted in section V.C.2 of this preamble, the proposed 
rule would require States to consider comments from eligible Tribes and 
suggested conditions on permit applications in the same way that 
potentially affected States' comments are currently considered under 
section 233.31. In addition, Tribes would have an opportunity to 
request EPA review of permit applications that may affect rights and 
resources of importance to the Tribe.
    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 seeks to avoid unnecessarily 
limiting Tribes and States by imposing a single vehicle or approach for 
implementing the CWA 404(b)(1) Guidelines.
c. Request for Comment
    EPA requests comment on whether the existing regulations provide 
appropriate clarity and leeway for Tribes and States to ensure that the 
permits they issue under an assumed program assure consistency with the 
CWA 404(b)(1) Guidelines. EPA also seeks comment on ways that Tribes 
and States wishing to assume the CWA section 404 program can 
demonstrate they have sufficient authority to assure consistency with 
the CWA 404(b)(1) Guidelines, including but not limited to, identifying 
the least environmentally damaging alternative, avoiding significant 
degradation, and considering impacts to threatened and endangered 
species, critical habitat, and human use characteristics, including but 
not limited to historic properties and Tribal interests.
2. Judicial Review and Rights of Appeal
a. What is the Agency proposing?
    EPA proposes to clarify that States seeking to assume the section 
404 program must provide for judicial review of decisions to approve or 
deny permits. The proposed language is similar to the language added to 
the CWA section 402 NPDES State program regulations in 1996, with one 
modification to specify that State requirements that provide for the 
losing party in a challenge to pay all attorneys' fees, regardless of 
the merit of their position, are an unacceptable impingement on the 
accessibility of judicial review. This proposed provision does not 
apply to Tribal programs.
b. Why is the Agency proposing this approach?
    The Agency is proposing this approach because it would give effect 
to 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 Tribal and State 
programs be no less stringent than the Federal section 404 program. The 
current regulations require the program description to include a 
description of the Tribe's or State's judicial review procedure but do 
not explicitly require a particular standard for that procedure. In 
addition, 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.
    In 1996, EPA promulgated the following regulation providing that 
States administering the CWA section 402 program must allow for State 
court review of decisions to approve or deny permits:

    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. A State will meet this 
standard if State law allows 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 (see Sec.  509 of the Clean 
Water Act). A State will not meet this standard if it narrowly 
restricts the class of persons who may challenge the approval or 
denial of permits (for example, if only the permittee can obtain 
judicial review, if persons must demonstrate injury to a pecuniary 
interest in order to obtain judicial review, or if persons must have 
a property interest in close proximity to a discharge or surface 
waters in order to obtain judicial review.) This requirement does 
not apply to Indian Tribes.

    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.
    Like permits issued under section 402, permits issued under section 
404 fall within the processes that are subject to the congressional 
directive of CWA section 101(e), which states:

    Public participation in the development, revision, and 
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. The Administrator, in cooperation with 
the States, shall develop and publish regulations specifying minimum 
guidelines for public participation in such processes.

    33 U.S.C. 1251(e). Permits are a key mechanism through which the 
regulations, standards, and effluent limitations of the CWA are 
implemented because they establish specific limitations applicable to 
individual dischargers. See 61 FR 20973 (May 8, 1996). This proposal 
would effectuate

[[Page 55299]]

CWA section 101(e) by requiring that States allow meaningful public 
participation in the permit development process by authorizing judicial 
review.
    As EPA explained in promulgating the section 402 judicial review 
provision, the United States Court of Appeals for the Fourth Circuit 
has agreed that ``broad availability of judicial review is necessary to 
ensure that the required public comment period serves its proper 
purpose. The 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.'' Com. of Virginia v. 
Browner, 80 F.3d 869, 879 (4th Cir. 1996) (upholding EPA's denial of 
Virginia's proposed permitting program under Title V of the Clean Air 
Act).
    When citizens lack the opportunity to challenge executive agency 
decisions in court, their ability to influence permitting decisions 
through other required elements of public participation, such as public 
comments and public hearings on proposed permits, may be compromised. 
Citizens may perceive that a State administrative agency is not 
addressing their concerns about section 404 permits because the 
citizens have no recourse to an impartial judiciary, which would have a 
chilling effect on all the remaining forms of public participation in 
the permitting process. Without the possibility of judicial review by 
citizens, public participation before a State administrative agency 
could become less meaningful. For example, State officials may spend 
less time considering and responding to the comments of parties who 
have no standing to sue as opposed to the comments of parties who can 
challenge the final administrative decision to issue or deny the permit 
in court. See id.
    The legislative history underlying section 101(e) further 
emphasizes the importance of a vigorous public participation process in 
implementing and enforcing clean water protections. 33 U.S.C. 1251(e). 
Congress included the provisions relating to public participation in 
section 101(e) because, as the Senate Report noted, it recognized that 
``[a] high degree of informed public participation in the control 
process is essential to the accomplishment of the objectives we seek--a 
restored and protected natural environment.'' S. Rep. 414, 92d Cong., 
2d Sess. 12 (1972), reprinted in A Legislative History of the Water 
Pollution Control Act Amendments of 1972, Cong. Research Service, Comm. 
Print No. 1, 93d Cong., 1st Sess. (1973) (hereinafter cited as 1972 
Legis. Hist.) at 1430.
    The Senate Report also observed that the implementation of water 
pollution control measures would depend, ``to a great extent, upon the 
pressures and persistence which an interested public can exert upon the 
governmental process. The Environmental Protection Agency and the State 
should actively seek, encourage and assist the involvement and 
participation of the public in the process of setting water quality 
requirements and in their subsequent implementation and enforcement.'' 
Id; see also 1972 Legis. Hist. 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.'').
    Similarly, the House directed EPA and the States ``to encourage and 
assist the public so that it may fully participate in the 
administrative process.'' H. Rep. 911, 92d Cong., 2d Sess. 79, 1972 
Legis. Hist. at 766. The House also noted, ``steps are necessary to 
restore the public's confidence and to open wide the opportunities for 
the public to participate in a meaningful way in the decisions of 
government;'' therefore, public participation is ``specifically 
required,'' and the Administrator is ``directed to encourage this 
participation.'' Id. at 819. Congressman Dingell, a leading sponsor of 
the CWA, characterized CWA section 101(e) as applying ``across the 
board.'' 1972 Legis. Hist. at 108.
    Section 404(h)(1)(C) of the CWA provides support for this provision 
as well. Section 404(h)(1)(C) provides that EPA may disapprove a State 
section 404 program if adequate authority does not exist 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.'' Id. at 1344(h)(1)(C). Given the language and history of 
CWA section 101(e), Congress intended the public hearing required by 
CWA section 404(h)(1)(C) to be a meaningful exercise.
    Finally, this 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'' and that 
States ``may not impose any less stringent requirements for any 
purpose.'' 40 CFR 233.1(d). 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. Allowing citizens the 
opportunity to challenge permits is not the type of technical discharge 
limitation that first comes to mind as a more or less ``stringent'' 
requirement of section 404, but this opportunity is a vital backstop 
that can ensure permits incorporate sufficiently stringent 
requirements. Permitting authorities are likely to be particularly 
careful to address citizen input and ensure that issued permits comply 
with CWA requirements if they know such permits may be challenged by a 
broad range of citizen stakeholders. Therefore, ensuring that States 
provide an opportunity for judicial review that is the same as that 
available to obtain judicial review in Federal court helps to ensure 
compliance with section 404 and all requirements of the CWA.
    This proposal for the section 404 State program regulations would 
effectuate 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 proposed rule would provide additional 
assurance of State program adequacy and fairness by ensuring 
opportunities for judicial review.
    While EPA's existing regulations require the program description to 
provide a description of the Tribe's or State's judicial review 
procedures, see 40 CFR 233.11(b), EPA's proposed application of the CWA 
standard for judicial review of permits to section 404 programs is new 
and not the only potential reading of the CWA. Yet EPA views this 
proposed requirement as the best interpretation of the sections 101 and 
404 for the reasons outlined above.
    Like the parallel provision in the section 402 regulations, a State 
will meet this standard if it allows an opportunity for judicial review 
that is the same as that available to obtain judicial review in Federal 
court of a

[[Page 55300]]

Federally-issued NPDES permit. See 61 FR 20975 (May 8, 1996). Section 
509(b)(1) of the CWA governs the availability of judicial review of 
Federally-issued NPDES permits. The term ``interested person'' in 
section 509(b) is intended to embody the injury-in-fact rule of the 
Administrative Procedure Act, as set forth by the Supreme Court in 
Sierra Club v. Morton, 405 U.S. 727 (1972). Montgomery Environmental 
Coalition v. Costle, 646 F.2d 568, 576-78 (D.C. Cir. 1980); accord 
Trustees for Alaska v. EPA, 749 F.2d 549, 554-55 (9th Cir. 1984); see 
also Roosevelt Campobello Int'l Park Comm'n v. EPA, 711 F.2d 431, 435 
(1st Cir. 1983); S. Conference Rep. No. 1236, 92d Cong, 2d Sess. 146 
(1972), 1972 Legis. Hist. at 281, 329.
    With respect to the nature of the injury that an ``interested 
person'' must show to obtain standing, the Supreme Court held in Sierra 
Club v. Morton that harm to an economic interest is not necessary to 
confer standing. 405 U.S. at 734-35. A party may also seek judicial 
review based on harm to that party's aesthetic, environmental, or 
recreational interest. Id. The Supreme Court affirmed this holding in 
Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 
U.S. 167, 183 (2000) (``environmental plaintiffs adequately allege 
injury in fact when they aver that they use the affected area and are 
persons for whom the aesthetic and recreational values of the area will 
be lessened by the challenged activity'') (internal citations omitted); 
and in Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63 (1992) 
(``[o]f course, the desire to use or observe an animal species, even 
for purely aesthetic purposes, is undeniably a cognizable interest for 
purposes of standing.'').
    EPA recognizes that CWA section 509(b)(1) does not authorize 
judicial review of Federally-issued section 404 permits, which are 
administered by the Corps. Rather, section 404 permits may be 
challenged under the Administrative Procedure Act. See National Ass'n 
of Mfrs. v. Dep't of Def., 138 S. Ct. 617, 626-27 (2018) (``EPA actions 
falling outside the scope of Sec.  1369(b)(1) . . . are typically 
governed by the APA.'') Nonetheless, establishing the same standards 
and expectations for standing to challenge the section 404 program that 
EPA has already established for the section 402 program would 
presumably enhance the efficiency and predictability of State efforts 
to assume and operate the section 404 program. Many States that 
administer the section 402 program already have systems in place to 
provide for judicial review pursuant to 40 CFR 123.30, consistent with 
the Agency's interpretation of the scope of that provision. Moreover, 
as noted above, the CWA ``interested person'' standard applicable to 
review of section 402 permits was initially derived from the 
Administrative Procedure Act, the statute under which citizens may 
challenge section 404 permits. The standard is therefore appropriate to 
apply to section 404 permitting. For these reasons, distinguishing 
between the standards for judicial review of State-issued section 402 
and 404 permits is not necessary.
    Furthermore, nothing about State-issued section 404 permits 
necessitates a distinct set of expectations for judicial review of 
those permits. The Corps' regulations address the extent to which final 
permit decisions are subject to judicial review. See 33 CFR 331.10, 
331.12. However, EPA is not the agency charged with implementing or 
interpreting these provisions governing judicial review of Corps-issued 
section 404 permits. Therefore, for the sake of consistency and ease of 
implementation, EPA proposes to use the CWA section 509(b) standard as 
a benchmark for State section 404 programs as well as State section 402 
programs.
    The proposed rule would provide that a State does not ``provide 
for, encourage, and assist'' public participation in the permitting 
process if it narrowly restricts the class of persons who may challenge 
the approval or denial of permits (for example, if only the permittee 
can obtain judicial review, or if persons must demonstrate injury to a 
pecuniary interest in order to obtain judicial review, or if persons 
must have a property interest in close proximity to a discharge or 
surface waters in order to obtain judicial review). As EPA made clear 
in the preamble to 40 CFR 123.30, broad standing to judicially 
challenge State-issued NPDES permits is necessary to ensure that public 
participation before the State permitting agency will serve its 
intended purpose. This provision is also intended to ensure that 
ordinary citizens will be in a position of substantial parity with 
permittees with respect to standing to bring judicial challenges to 
State permitting decisions. 61 FR 20975 (May 8, 1996).
    The proposed rule would also provide that a State does not 
``provide for, encourage, and assist'' public participation in the 
permitting process if State law or regulation requires that attorneys' 
fees must be imposed in favor of any prevailing party and against the 
losing party, notwithstanding the good faith or merit of the litigant's 
position. This form of ``fee shifting'' would form a barrier to court 
access for litigants unable to risk an adverse fee award, no matter the 
strength of their case. Prohibitions against narrow standing 
restrictions and mandatory fee-shifting are only examples of such 
deficiencies in State programs. The proposed provision does not only 
prohibit these provisions, but any others that would limit access to 
judicial review beyond the scope of judicial review available in 
Federal court for review of Federally-issued NPDES permits.
    EPA interprets the proposed provision to preclude State laws that 
would limit associational standing to a greater extent than Federal 
law. Under Federal law, an association may bring a challenge on behalf 
of a single member's harms resulting from a challenged action. See 
Sierra Club v. Johnson, 436 F.3d 1269, 1279 (11th Cir. 2006) 
(associational standing of Sierra Club satisfied by affidavit of one 
member who suffered injury in fact). State requirements that establish 
a higher bar for associational standing than Federal law, such as 
requirements providing that an association only has standing if a 
substantial number of an association's members would be injured by the 
challenged action, would be inconsistent with this proposal.
    As with the section 402 regulations, the proposed rule would apply 
to final actions with respect to modification, revocation and 
reissuance, and termination of permits, as well as the initial approval 
or denial of permits. EPA would consider the opportunities for judicial 
review of State-issued section 404 permits provided by State law on a 
case-by-case basis when determining whether to approve a State program 
to ensure that the State adequately ``provides for, encourages, and 
assists'' public participation in the section 404 permitting process. 
EPA would also look to the State Attorney General to provide a 
statement that the laws of the State meet the requirements of the 
regulation. See 40 CFR 233.12.
    Standing to judicially challenge permits should be distinguished 
from requirements that potential litigants must exhaust administrative 
remedies to preserve their opportunity to bring judicial challenges. 
This proposed amendment would not affect the ability of States to 
require that potential litigants must exhaust administrative remedies 
to preserve their opportunity to bring judicial challenges, including 
by participating in the submittal of public comments, or similar 
reasonable requirements.
    EPA is not proposing that this requirement apply to Tribes, 
consistent with EPA's approach in the parallel

[[Page 55301]]

section 402 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). While EPA does not, as a general matter, 
feel 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 appropriate 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. 
EPA's proposal seeks to strike a balance by ensuring that an 
appropriate means of citizen recourse is available in any approved 
Tribal section 404 program, while not restricting qualified Tribes to a 
single judicial option that may not fit existing Tribal governmental 
structures. EPA wishes to be clear that in all cases, some appropriate 
form of citizen recourse for applicants and others affected by Tribe-
issued permits would be needed to ensure meaningful public 
participation in the permitting process. EPA would consider whether 
appropriate citizen recourse has been provided in the context of 
reviewing Tribal program applications.
    EPA also 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 encourages the 
Tribe and State to describe 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. However, EPA is 
not proposing to require a specific administrative review procedure 
because the Agency recognizes that existing Tribal and State 
administrative procedures may differ across the country.
c. Request for Comment
    EPA solicits comment on all aspects of this judicial review 
provision, including whether to provide any greater specificity with 
respect to the standards for judicial review that States are expected 
to provide, or additional examples of what could constitute an 
unacceptable narrowing of the class of persons who may challenge the 
approval or denial of permits. The Agency also requests comment as to 
whether this requirement should apply to Tribal section 404 programs 
and if so, to what extent.
    In addition, EPA requests comment on whether to explicitly state in 
the regulatory text that State laws limiting associational standing to 
a greater extent than Federal law would run afoul of the proposed 
provision. EPA also requests comment on whether to require that States 
provide ``any interested person an opportunity for judicial review in 
State court of the final approval or denial of permits by the State.'' 
EPA initially proposed adding this language to the section 402 
regulations, though ultimately decided to use the approach that EPA now 
proposes to add to the section 404 regulations, on the grounds that the 
more flexible proposed language is sufficient to provide for meaningful 
public participation in the permitting process. See 60 FR 14588, 14592 
(March 17, 1995); 61 FR 20972, 20975 (May 8, 1996).
    Additionally, EPA seeks comments on whether the Agency should 
require Tribal and State section 404 programs to include an 
administrative appeals process for permit decisions, including any 
potential benefits or challenges to including such a requirement.

C. Program Operation

    This section of the preamble includes topics that are generally 
related to the operation of approved Tribal or State programs, 
including five-year permit limits and long-term projects as well as 
opportunities for Tribes to comment on permits.
1. Five-Year Permits and Long-Term Projects
a. What is the Agency proposing?
    The Agency is proposing a process for permitting long-term projects 
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 impacts to the aquatic environment as it 
reviews the permit application for compliance with the CWA 404(b)(1) 
Guidelines. For projects \40\ with a planned construction schedule 
which may extend beyond the five-year permit period, the Agency is 
proposing that the applicant submit a 404(b)(1) analysis showing how 
the project complies with the environmental review criteria set forth 
in the CWA 404(b)(1) Guidelines for the full project when they submit 
the application for the first five-year permit. The proposal would 
allow the applicant to modify the 404(b)(1) analysis, as necessary, 
when submitting applications for subsequent five-year permits. As part 
of this permitting approach, this section of the preamble discusses the 
criteria that the Tribe or State must consider when determining whether 
the 404(b)(1) analysis needs to be modified.
---------------------------------------------------------------------------

    \39\ 33 U.S.C. 404(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.
---------------------------------------------------------------------------

    Consistent with CWA requirements, pursuant to this proposal, 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. The Agency is proposing 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.
b. Why is the Agency proposing this approach?
    Certain projects by their nature may not be completed within the 
five-year CWA statutory limitation, such as some residential or 
commercial developments, linear project transportation corridors, and 
energy or mining projects, and will therefore need more than one five-
year permit to authorize all impacts to waters of the United States 
associated with the project. To minimize unnecessary effort and 
paperwork, and to provide the Tribe or State and the public with 
information that can assist with the successful permitting of a 
project, the Agency is proposing that applicants for projects with a 
planned schedule which may extend beyond the initial five-year permit 
application period submit a 404(b)(1) analysis for the full project 
with the application for the first five-

[[Page 55302]]

year permit. That way, the applicant would only need to modify the 
404(b)(1) analysis to the extent necessary when submitting applications 
for subsequent five-year permits. This approach would 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 help ensure 
consistency in permitting decisions associated with the project, 
thereby providing the applicant with more regulatory certainty than 
without such a plan.
    Under the proposed approach, all aspects of the permit application, 
public notice, and Tribal or State or Federal review requirements set 
forth in 40 CFR 233.30, 233.32, 233.34, and 233.50, respectively, still 
apply to each permit application for projects that exceed a five-year 
schedule, consistent with CWA section 404(h)(1)(A)(ii). However, EPA 
expects that the permit application process for permits after the 
initial five-year permit application would be easier and simpler 
because the applicant and Tribe or State would have already analyzed 
the full project. Further details about the Agency's proposal for 
permitting long-term projects are provided below.
i. Permitting Long-Term Projects
    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).\41\ The Agency codified this limitation in 
the permit conditions section of the existing section 404 Tribal and 
State program regulations. 40 CFR 233.23(b). However, certain projects 
by their nature cannot be completed within the five-year limitation and 
will 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.
---------------------------------------------------------------------------

    \41\ Corps-issued 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).
---------------------------------------------------------------------------

    For example, 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 10-15, the permit 
application would provide information about the construction of all six 
hundred homes. 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). 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 authorizing activity in years 6-10 of the project, 
years 11-15 of the project, and so forth. See section V.C.1.b.ii. of 
this preamble.
    All projects seeking authorization under Tribal or State section 
404 permits must comply with the environmental review criteria set 
forth in the CWA 404(b)(1) Guidelines at 40 CFR part 230. To provide 
the Tribe or State and the public with information that can assist with 
the successful permitting of long-term projects, the Agency is 
proposing that applicants for projects for which the planned schedule 
extends beyond five years at the time of the initial five-year permit 
application submit a 404(b)(1) analysis for the full 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.
    As proposed, 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. 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.
    The issuance of Tribal or State section 404 permits for projects 
that exceed a five-year schedule constitutes authorization for 
discharges associated with the project 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 and nothing in the Agency's proposal 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 have 
been 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 
proposing 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 to allow sufficient time for the application to be 
processed. This approach is consistent with other CWA programs and 
provides time for a public

[[Page 55303]]

comment period and any required EPA review of the new permit 
application.
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, descriptions of 
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 purpose or scope of the project may therefore be 
required. If there has been a change in circumstance related to an 
authorized activity following approval of a five-year permit, the 
Agency is proposing that the applicant modify the 404(b)(1) analysis 
for subsequent five-year permits. A change in circumstance related to 
the authorized activity includes, without limitation, 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 proposal;
--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 from the description 
of the full project provided with the application for the previous 
five-year permit, the applicant's new permit application may rely upon 
the most recent 404(b)(1) analysis. 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, or at the request of Federal agency 
reviewers or 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.
    The proposed approach would improve 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.
iii. Clarification Regarding Long-Term Projects
    The Agency is proposing to clarify 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). The Agency proposes to add language to 40 CFR 
233.30(a) to make it clear that applicants for projects that take more 
than five years to complete must submit a complete application for each 
five-year permit. All public notices for such permits must contain the 
information provided in 40 CFR 233.32(d). In addition, the Agency is 
clarifying that 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. The Agency is also 
clarifying that the scope of comments the public may submit in response 
to the public notice, or public hearing if a hearing is held, 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.
c. Request for Comment
    The Agency solicits comments on all aspects of the proposal laid 
out above. With respect to the process for permitting long-term 
projects, the Agency also solicits comments on an alternative approach 
based on project phase. Under the alternative approach, the applicant 
divides the project into phases that can reasonably be accomplished 
within five years but still submits with the application for the first 
five-year phase a 404(b)(1) analysis for the full scope of the project 
and modifies the 404(b)(1) analysis, as necessary, for subsequent five-
year phases. In the case of the 15-year housing development project 
example above, under the alternative approach the first five-year 
permit would include a 404(b)(1) analysis addressing the full 15-year 
project scope, but would authorize discharges associated with the 200 
houses intended for construction during the first five-years of the 
project. The discharges associated with the 400 houses intended to be 
constructed in the subsequent ten years would be authorized under 
second and third-round permits.
2. Tribes as Affected Downstream States
a. What is the Agency proposing?
    EPA is proposing three changes to certain comment and review 
provisions as they relate to Tribal interests. First, any downstream 
Tribe that has been approved by EPA for treatment in a similar manner 
as a State (TAS) for any CWA provision would have an opportunity to 
suggest permit conditions for section 404 permits issued by upstream 
States and authorized Tribes that may affect the biological, chemical, 
or physical integrity of their reservation waters. The commenting Tribe 
would receive notice and an explanation if the permit-issuing Tribe or 
State does not address their comments. Currently only States and Tribes 
with TAS to assume the section 404 program have this comment 
opportunity. 40 CFR 233.31(a); 40 CFR 233.2.\42\ Second, the Agency 
proposes to enable Tribes that have not yet been approved for TAS for 
any CWA provision to apply for TAS solely for the purpose of commenting 
as a downstream Tribe on section 404 permits proposed by States or 
other authorized Tribes. Finally, the Agency proposes 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. 
These proposed changes would increase the opportunities for Federally 
recognized Tribes to engage in the permitting process to protect their 
resources.
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    \42\ For the sake of convenience, this proposal will refer to 
Tribes whose reservation waters could be affected by pending permits 
as ``downstream Tribes.''
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b. Why is the Agency proposing this approach?
    Sections 404(h)(1)(C) and (E) of the CWA provide that a State, with 
respect

[[Page 55304]]

to issuing a permit, must provide notice of each permit application to 
the public, and any other State whose waters may be affected, and 
provide an opportunity for a public hearing before ruling on each 
application. EPA's existing regulation at 40 CFR 233.31 contains a 
similar provision: ``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.'' 
Both the CWA and EPA's implementing regulations further provide that, 
if recommendations from the State whose waters may be affected are not 
accepted by the permitting State, the permitting State must notify the 
affected State and EPA Regional Administrator of its decision not to 
accept the recommendations and reasons for doing so. 33 U.S.C. 
1341(1)(E); 40 CFR 233.31(a).
    EPA's regulation at 40 CFR 233.2 defines the term ``State'' to 
include an Indian Tribe which meets the requirements of 40 CFR 233.60. 
Section 233.60 lists the eligibility requirements for a Tribe to assume 
the section 404 program. This definition could be read to limit the 
requirement in section 233.31 for States to coordinate with only those 
Tribes that meet the requirements for section 404 program assumption. 
No Tribe has yet applied for eligibility to assume the section 404 
program, and, in pre-proposal outreach, many Tribes commented that they 
lack resources to assume the program. However, nearly half of Federally 
recognized Tribes have been approved for TAS for other CWA provisions 
and may have relevant water quality information that could inform the 
permitting decisions of upstream States. These Tribes may be interested 
in engaging with States on permitting decisions that may affect Tribal 
resources.\43\ Consistent with the Federal trust responsibility and the 
policies underlying CWA section 518, EPA seeks to increase the 
opportunities of Tribes to comment and coordinate on proposed State CWA 
section 404 permits that could impact their waters and resources.
---------------------------------------------------------------------------

    \43\ TAS information is updated bi-annually and can be found at 
https://www.epa.gov/tribal/tribes-approved-treatment-state-tas.
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    EPA notes that other mechanisms already exist that would require 
Tribal and State permitting authorities to protect Tribal interests, 
which this proposal does not implicate. 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.
    The following sections of this preamble discuss the three ways that 
EPA is proposing to expand opportunities for Tribes to provide input 
and identify concerns about permits that could affect Tribal waters and 
resources.
i. Enable Tribes With TAS for any CWA Provision To Comment as an 
Affected State
    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 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--arguably no Tribes would presently be eligible to be 
considered an affected State, as no Tribes have yet obtained TAS status 
for purposes of assuming the section 404 program. EPA views all Tribes 
that have TAS status for any CWA purpose as entitled to participate in 
matters that may affect the chemical, physical, or biological integrity 
of reservation waters. EPA is proposing that Tribes that have already 
been approved for TAS by EPA to administer other CWA programs, such as 
a water quality standards (WQS) program under CWA section 303(c), and/
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. This proposed provision would enable more 
Tribes, whose waters may be affected by an upstream dredge or fill 
project, to comment on permits to be issued by a permitting State in 
the same manner as other affected States.
    Section 518 of the CWA expressly provides opportunities for Tribes 
to play essentially the same role in implementing the CWA on their 
reservations that States do outside of Indian country, authorizing 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 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. Of the 574 
Federally recognized Tribes, over 285 have been granted TAS status for 
one or more CWA provisions. EPA maintains a website which lists all 
Tribes approved for TAS, which is updated bi-annually.\44\
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    \44\ 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 319 grants 
can be found at https://www.epa.gov/nps/current-tribal-ss319-grant-information.
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    This provision, if finalized, would mean that permitting States 
must consider comments from Tribes with TAS for any CWA provision whose 
reservation waters may be affected by a proposed discharge, in addition 
to any Tribes that have been approved for TAS to assume the section 404 
program. Under the proposed revisions to section 233.31(a), a 
permitting State would need 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. If the recommendations 
are not accepted by the permitting State, the permitting State would 
have to notify the affected Tribe and EPA Regional Administrator of its 
decision not to accept the recommendations and reasons for doing so. 
The Regional Administrator would then have time to comment upon, object 
to, or make recommendations regarding the Tribal concerns set forth in 
the original comment.
ii. Create TAS Option Specifically for the Ability To Comment as an 
Affected State
    For the reasons described above, EPA also proposes a further 
opportunity for Tribes that lack TAS for any CWA provision to 
participate as affected downstream Tribes by establishing a regulatory 
provision for Tribes to 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

[[Page 55305]]

benefit from the same notification requirements that apply to any other 
commenting affected ``State.'' This would provide an avenue for Tribes 
that do not have the resources or the desire to assume the section 404 
program and have not obtained TAS for other CWA purposes, to provide 
input and request consideration of suggested permit conditions for 
potential impacts of upstream permits on 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).
    EPA finds that it is appropriate to enable Tribes seeking to 
protect their aquatic resources to apply for TAS status for the 
distinct purpose of commenting in the same manner as an affected State, 
and to do so even if the Tribes do not take on the greater 
responsibility to administer a section 404 program. Nothing in the 
language of section 404 precludes this approach. These proposed 
revisions 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 the existing regulation at 40 CFR 233.31 does not involve any 
exercise of regulatory authority by the downstream affected entity, 
whether a State, a Tribe with an assumed section 404 program, or a 
Tribe that seeks TAS solely for the downstream commenting function. 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 a downstream Tribe. They 
would not need to demonstrate capability to administer an assumed 
section 404 program. The proposed regulatory revision would expand the 
number of Tribes able to participate in this comment opportunity.
iii. Opportunity for Tribes To Request EPA Review of Permits That May 
Affect Tribal Rights or Interests
    Finally, EPA proposes to revise section 233.51 to codify Tribes' 
opportunity to request EPA review of permits that Tribes view as 
potentially affecting Tribal rights or interests.\45\ This may include 
rights or interests both in 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. This provision is intended to 
be an opportunity for coordination on potential impacts to Tribal 
rights and resources not covered by any other commenting option. Given 
the expanded TAS provisions, EPA anticipates that Tribes will use this 
opportunity in limited circumstances and that this will not be used for 
every permit application under public notice.
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    \45\ On December 5, 2022, EPA issued a proposed rule entitled 
``Water Quality Standards Regulatory Revisions to Protect Tribal 
Reserved Rights.'' 87 FR 74361 (December 5, 2022). That rule 
proposes to amend EPA's existing water quality standards (WQS) 
regulation, 40 CFR 131 et seq., to, in pertinent part, define 
``tribal reserved rights'' for WQS purposes as ``any rights to 
aquatic and/or aquatic-dependent resources reserved or held by 
tribes, either expressly or implicitly, through treaties, statutes, 
executive orders, or other sources of federal law.'' 87 FR 74361, 
74378. The proposed revisions to section 233.51 would enable Tribes 
to request EPA's review of permits that may affect both rights 
reserved through treaties, statutes, executive orders, or other 
sources of Federal law, as well as Tribal interests in resources 
that may not be reflected in Federal law but are nonetheless of 
significance--e.g., of cultural significance--to Tribes. The 
proposed provision at section 233.51 would apply whenever a Tribe 
asserts that issuance of a particular permit would affect its rights 
or resources; however, EPA's review of a permit pursuant to proposed 
section 233.51 would not constitute a recognition by EPA that any 
particular Tribe holds reserved rights, as defined in EPA's proposed 
WQS rule, in that area.
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    This provision would provide that 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 State may not issue the permit unless it 
has taken steps required by EPA to eliminate an objection.
    EPA is proposing to add this regulatory provision explicitly 
providing Tribes the opportunity to request EPA's review of permit 
applications on a case-specific basis to address input from Tribes that 
EPA received during pre-proposal outreach. Several Tribal stakeholders 
expressed concern that their aquatic and cultural resources outside of 
their reservations may be affected by activities permitted under 
assumed section 404 programs. Some Tribes expressed concern that there 
is no reliable instrument for coordination 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. Tribes 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. Tribes expressed an interest in creating a mechanism that requires 
EPA to consider and protect Tribal resources, specifically those off 
reservation. Additionally, some Tribes have raised concerns over 
resource limitations for review of all permit applications statewide. 
The proposed approach would afford protection to Tribal resources by 
virtue of EPA's oversight of permit applications that Tribes have 
identified as having a potential impact on Tribal resources.
c. Request for Comment
    EPA is seeking comment on these proposed approaches and solicits 
suggestions of other approaches for providing additional appropriate 
opportunities for involvement by Tribes whose waters and interests both 
on and off reservation may be affected by a proposed State permit.

[[Page 55306]]

D. Compliance Evaluation and Enforcement

1. What is the Agency proposing?
    EPA proposes to amend its criminal enforcement requirements in 40 
CFR 123.27 and 40 CFR 233.41 to provide that Tribes and States that are 
authorized to administer the CWA section 402 NPDES permitting program 
and/or the CWA section 404 dredged and fill permitting program, or that 
seek authorization 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. Why is the Agency proposing this approach?
    The existing 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 EPA's current interpretation 
of the statute. EPA interprets the CWA to authorize it to approve 
Tribal or State programs that allow for prosecution based on a mens rea 
of any form of negligence, including gross negligence. This proposal 
sets forth regulatory revisions that are consistent with this 
interpretation. EPA proposed the identical regulatory revisions in the 
Federal Register on December 14, 2020, 85 FR 80713. Seven unique 
comments were received by EPA on this proposal: five comments were in 
support of the proposed rulemaking and two were opposed. Since the 
revisions proposed in 2020 were the same as those in the current 
proposal, EPA plans to respond to those comments along with any 
comments that are received on the current proposed rule.
    The proposed amendments provide clarity for Tribes and States that 
have been approved to administer or are interested in obtaining EPA 
approval to administer their own section 402 or 404 program under the 
CWA. EPA anticipates that States that already administer these CWA 
programs will not need to make any changes to their legal authority. 
Instead, these regulatory clarifications will generally assure approved 
States that their current negligence mens rea authorities comport with 
EPA's interpretation of the mens rea applicable to authorized Tribal 
and State CWA sections 402 and 404 programs. Additionally, this 
clarification will provide those Tribes and States interested in 
seeking approval to administer the CWA sections 402 and 404 programs, 
respectively, 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, EPA's regulations currently provide that 
any Tribal or State agency administering a program under section 404 of 
the CWA shall 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).
    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). Additionally, 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) specifically provides EPA with enforcement authority to 
establish misdemeanor criminal liability 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, three circuit 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). These courts 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)(``Idaho Conservation League''). 
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 enforcement actions are subject to a simple 
negligence standard, the court determined that EPA abused its 
discretion 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 standard ``no greater 
than'' simple negligence, such as strict liability or simple 
negligence. Idaho Conservation League at 628.
b. Statutory and Regulatory Framework for EPA's Interpretation
    While EPA's own enforcement authority in CWA section 309(c)(1), 33 
U.S.C. 1319(c)(1), as interpreted by the courts, requires only proof of 
ordinary negligence, that provision does not apply as a requirement for 
approval to Tribal or State programs. For section 402 and 404 programs, 
the CWA instead requires that EPA ``shall approve'' a State's 
application if it determines that the State demonstrates the 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). These statutory provisions do not 
establish specific mens rea requirements or penalties for Tribal and 
State programs.

[[Page 55307]]

    In addressing the 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 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 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). 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 
enforcement. See 33 U.S.C. 1342 (b)(7). EPA interprets CWA sections 402 
and 404 to 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 would require that Tribes and States be 
able to implement the text of section 309, requiring authority to 
prosecute based on a negligence mens rea.
    EPA's interpretation 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 
(citing Chevron U.S.A. v. NRDC, 467 U.S. 837, 865 (1984)).
    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 
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 Alaska 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.
    Finally, EPA's interpretation that CWA sections 402 and 404 do not 
require Tribes and States to have authority identical to EPA's to 
prosecute violations based on simple negligence under CWA section 309 
is consistent with the Ninth Circuit's acknowledgement in Idaho 
Conservation League v. EPA 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.'' 820 Fed. Appx. 627, 628, citing 
Consolidated Permit Regulations, 45 FR at 33382 (May 19, 1980).
    This proposed rulemaking would clarify the criminal intent 
requirements for existing and prospective Tribal and State enforcement 
programs under CWA sections 402 and 404. As discussed above, this 
proposed rulemaking would codify EPA's interpretation of Tribal and 
State criminal intent requirements that the Agency presented to the 
Ninth Circuit in Idaho Conservation League v. EPA, 820 Fed. Appx. 627 
(9th Cir. 2020), which is itself consistent with EPA's interpretation 
that Tribal and State programs are not required to have the identical 
enforcement authority to EPA's under CWA section 309.
    EPA views the other existing requirements for enforcement authority 
in 40 CFR 123.26, 123.27, and 233.41, which require, among other 
things, that a Tribe or State 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 sufficient to indicate that 
Tribes and States must 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.'' 
Indeed, section V.A.1 of this preamble, Program Assumption 
Requirements, would further buttress the requirements of 40 CFR 233.41.
    EPA has previously asserted its interpretation that Tribes and 
States do not need authority to prosecute criminal violations based on 
a simple negligence mens rea, including in Idaho Conservation League v. 
EPA. 820 Fed. Appx. 627 (9th Cir. 2020). 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 of ambiguous statutory language. 
An ``initial agency interpretation is not instantly carved in stone.'' 
Chevron, 467 U.S. at 863; see also 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). Rather, a revised rulemaking based 
on a change in interpretation of statutory authorities is

[[Page 55308]]

well within Federal agencies' discretion. Nat'l Ass'n of Home Builders 
v. EPA, 682 F.3d 1032, 1038 (D.C. Cir. 2012) (citing FCC v. Fox 
Television Stations, Inc., 556 U.S. 502, 515 (2009)). The agency must 
simply explain why ``the new policy is permissible under the statute, 
that there are good reasons for it, and that the agency believes it to 
be better.'' Fox Television Stations, 566 U.S. at 515. This preamble 
meets this standard, providing a reasoned explanation for EPA's 
proposal and its consistency with the CWA.
    Though under this proposal EPA is not requiring Tribes or States to 
have the same criminal enforcement authority 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. 
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. The absence of any 
citation to CWA section 309 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 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 
enforcement, and consistent with the regulatory requirements for Tribal 
and State enforcement authority. See 33 U.S.C. 1342(b)(7), 
1344(h)(1)(G); 40 CFR 233.41. Moreover, Tribes and States may of course 
continue to authorize criminal prosecutions based on a simple 
negligence mens rea. EPA may consider the presence of that authority as 
one factor when comprehensively assessing the adequacy of the Tribe's 
or State's enforcement program in its program submission.
    The proposed 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, 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 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 Tribal and 
State assumption of Federal programs under the CWA consistent with 
section 101(b) of the statute.
    This proposal 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 have assumed a permit program. 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 proposing to 
add 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 also proposes to remove 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 233.41(a)(3), which currently requires Tribes and States to 
have the authority ``[t]o establish the following violations and to 
assess or sue to recover civil penalties and to seek criminal 
remedies,'' EPA proposes to replace 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 
proposed changes listed in this paragraph are intended to change the 
substantive effect of the regulations.
3. Request for Comment
    EPA solicits comment on all aspects of this proposed change, 
including the extent to which States have implemented or relied upon 
the authority to prosecute violations of the section 402 or 404 
programs based on simple negligence.

E. Federal Oversight

    This section of the preamble includes topics that are generally 
related to EPA oversight of approved Tribal or State section 404 
programs, including the requirement that programs be no less stringent 
than the CWA and implementing regulations, as well as program 
withdrawal procedures.
1. No Less Stringent Than
a. What is the Agency proposing?
    The Agency's existing regulations provide that Tribes and States 
may not impose requirements less stringent than Federal requirements. 
EPA proposes to clarify this provision by codifying its longstanding 
principle that Tribes and States may not compensate for making one 
requirement more lenient than required under these regulations by 
making another requirement more stringent than required. The Agency 
also clarifies in the discussion below 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 \46\ within its jurisdiction except for 
discharges to the subset of waters of the United States over which the 
Corps retains administrative authority pursuant to CWA section 
404(g)(1). EPA clarifies that Tribes and States are not required to 
incorporate Corps or EPA interpretive guidance, such as Corps General 
Regulatory Policies in 33 CFR part 320 or Regulatory Guidance Letters, 
into their programs as a prerequisite to assuming administration of the 
CWA section 404 program. Finally, EPA is adding regulatory language to 
codify its long-held position that the Tribe or

[[Page 55309]]

State is responsible for administering all portions of a CWA 404(g) 
program.
---------------------------------------------------------------------------

    \46\ The permitting provisions of the CWA (as well as other 
provisions), including CWA section 404, apply to ``navigable 
waters.'' See 33 U.S.C. 1311(a). CWA section 502(7) in turn defines 
``navigable waters'' as ``waters of the United States, including the 
territorial seas.'' Id. section 1362(7). The reference above to 
``waters of the United States'' refers to the term in CWA section 
502(7).
---------------------------------------------------------------------------

b. Why is the Agency proposing this approach?
    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 existing 
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 a permit issued by an 
assuming Tribe or State will be consistent with the CWA to the same 
extent as 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 V.B.1 of this preamble, 
addressing Compliance with the CWA 404(b)(1) Guidelines.
    Assuming Tribes and States should have flexibility to determine how 
best to integrate sufficient authority into their programs. That said, 
flexibility does not extend to tradeoffs among requirements. EPA 
addressed this limitation in the 1988 preamble to the CWA section 404 
Tribal and State program regulations:

    ``Those parts of the State's program that go beyond the scope of 
Federal requirements for an approvable program are not subject to 
Federal oversight or federally enforceable. Of course, while States 
may impose more stringent requirements, they may not compensate for 
making one requirement more lenient than required under these 
regulations by making another requirement more stringent than 
required. . . . . A State's program must be at least as stringent 
and extensive as the Federal program.''

    53 FR 20764, 20766 (June 6, 1988). EPA proposes to codify this 
principle prohibiting ``tradeoffs'' between more lenient and more 
stringent requirements in its section 404 Tribal and State program 
regulations to enhance clarity. This clarification exists 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.
    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 Tribe 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 waters of the United States over which the 
Corps retains administrative authority pursuant to CWA section 
404(g)(1). This means that a Tribe or State wishing to assume 
administration of the CWA section 404 program may not exempt discharges 
other than those exempted pursuant to CWA section 404(f). It also means 
that when a Tribe or State assumes administration of the CWA section 
404 program, the assuming Tribe or State assumes administrative 
authority to permit discharges to all waters of the United States 
within its jurisdiction except for the subset of waters of the United 
States over which the Corps retains administrative authority pursuant 
to CWA section 404(g)(1).\47\ See 33 U.S.C. 1344(g)(1) (``The Governor 
of any State desiring to administer its own individual and general 
permit program for the discharge of dredged or fill material into the 
navigable waters (other than those 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, or mean higher high water mark on the west coast, 
including wetlands adjacent thereto) within its jurisdiction . . .''). 
The assuming Tribe or State enters into a Memorandum of Agreement with 
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).
---------------------------------------------------------------------------

    \47\ 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 20766, June 6, 1988 (emphasis added). As 
described elsewhere in this preamble, Tribes and States may not 
assume less than what may be assumed under the CWA.
---------------------------------------------------------------------------

    To the extent the scope of waters of the United States changes, 
following court decisions or rulemaking, an assuming Tribe or State 
must at all times have authority to issue permits for discharges to all 
waters within its jurisdiction that are waters of the United States, 
except for discharges to the subset of waters of the United States over 
which the Corps retains administrative authority pursuant to CWA 
section 404(g)(1). Assumption of the section 404 program 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 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 V.B.1 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 (Id. 
sections 233.10(c) and 233.12) those provisions of Tribal or State law 
that will ensure that the Tribe or State--at all times--will 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. Although a 
Tribal or State section 404 program must at all times cover all waters 
of the United States, except those retained by the Corps, the program 
can regulate discharges into Tribal or State waters in addition to the 
jurisdictional CWA waters.
    Another question raised by stakeholders is the role in Tribal or 
State programs of interpretive guidance, 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

[[Page 55310]]

issued by the Corps and/or EPA. While helpful in providing 
transparency, clarity, and aiding in implementation of the Federal 
program, Federal agency interpretive guidance does not have the effect 
of regulation. Moreover, Federal agency interpretive guidance may 
evolve as regulators gain experience. Accordingly, while assuming 
Tribes and States may consider relevant Federal interpretive guidance 
and may choose to adopt it to aid in program implementation, they are 
not required to formally adopt Federal interpretive guidance as a 
prerequisite to assumption of the section 404 program. 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 considered or will consider Federal interpretative 
guidance in the development of their program.
    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 for program assumption. The CWA 
makes no reference to the Corps General Regulatory Policies, which by 
their own terms apply to a range of Corps regulatory authority, 
including, but not limited to, CWA section 404 (see 33 CFR 320.2). As 
previously described, 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.
    Finally, EPA is adding regulatory language to codify 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. When a Tribe or State assumes administration of 
the section 404 program, the Tribe or State becomes responsible for 
many of the actions that certain regulations attribute to the Corps of 
Engineers or District Engineer. This addition is clarifying that it is 
the assuming Tribe or State that is responsible for administering all 
sections of the approved section 404 program. It is important to note 
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. 33 U.S.C. 1344(g)(1); 40 CFR 233.2 (definition of ``State'').
c. Request for Comment
    EPA requests comment regarding its proposed codification of the 
longstanding principle that Tribes and States may not compensate for 
making one requirement more lenient than required under these 
regulations by making another requirement more stringent than required. 
EPA also requests comment regarding its view that Tribal and State 
programs must at all times have authority to issue permits for non-
exempt discharges to waters of the United States within Tribal or State 
borders except for discharges to the subset of waters of the United 
States over which the Corps retains administrative authority pursuant 
to CWA section 404(g)(1). EPA requests comment as to any obstacles that 
this clarification might present to Tribe or State implementation of 
the section 404 program and suggestions as to ways of overcoming such 
obstacles.
    EPA requests comments addressing the way in which Tribes and States 
wishing to assume administration of the CWA section 404 program can 
best demonstrate they have the authority to administer the approved 
program. In addition, EPA seeks comment on how EPA can clarify ways for 
Tribes and States to demonstrate that permits issued by the Tribe or 
State will be no less stringent than a permit for the same discharge if 
issued by the Corps. See further requests for comment in section V.B.1 
of this preamble, addressing consistency with the CWA 404(b)(1) 
Guidelines.
2. Withdrawal Procedures
a. What is the Agency proposing?
    EPA is proposing to simplify the process used by the Agency when 
withdrawing an assumed section 404 program from a previously authorized 
Tribe or State. The proposed revision provides 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.
b. Why is the Agency proposing this approach?
    The existing section 404 Tribal and State program regulations, 
promulgated in 1992, set out a formal adjudicatory process for the 
withdrawal proceedings. The first section of the existing regulations 
at 40 CFR 233.53 addresses the situation where a Tribe or State 
voluntarily returns program responsibilities required by Federal law 
back to the Secretary of the Army. The next paragraph lists the various 
circumstances that might occasion the withdrawal of the assumed 
program, including when the Tribe's or State's legal authority, program 
operation, or enforcement program no longer meets applicable 
requirements or when the Tribal or State program fails to comply with 
the terms of the Memorandum of Agreement between the Tribe or State and 
EPA. The subsequent provisions of the existing regulations set forth 
the procedures to be followed to determine

[[Page 55311]]

whether to withdraw approval of a Tribal or State program. A withdrawal 
proceeding can be commenced on the Administrator's initiative, or in 
response to a petition from an interested person alleging failure of 
the Tribe or State to comply with the requirements of the regulations. 
Once the Administrator has determined that cause exists to commence 
proceedings, those proceedings are conducted as a formal adjudicatory 
hearing. The existing section 404 Tribal and State program regulations 
refer to EPA's 40 CFR part 22 regulations, which govern administrative 
adjudication of penalties assessed by EPA against alleged violators and 
are comparable to the rules for litigation in Federal district court. 
The proceeding includes provisions for motion practice and the 
presentation of evidence with the process set forth in detail in the 
regulations.
    The last section of the existing regulations sets out the time 
frame for the Administrator's decision. Within 60 days after the 
adjudicatory process, the Administrator reviews the record and issues 
his or her decision. If the Administrator finds that the Tribe or State 
has administered the program in conformity with the CWA and the 
regulations, the process is terminated. If the Administrator finds that 
the Tribe or State has failed to administer the program in conformity 
with the CWA and the regulations, the Administrator must list the 
deficiencies in the program and provide the Tribe or State with no more 
than 90 days to take required corrective action. The Tribe or State 
must perform the corrective action and certify it has done so. If the 
Tribe or State does not take appropriate corrective action and file a 
certified statement in the time provided, the Administrator issues a 
supplementary order withdrawing approval of the program. Otherwise, the 
Administrator issues a supplementary order stating that approval of 
authority is not withdrawn.
    This formal adjudication process is not required by the statute and 
its length and complexity would impose an unnecessary resource burden 
and other challenges for the Agency, Tribes and States, and 
stakeholders. EPA is therefore proposing a streamlined process that is 
easier to understand and administer, and that encourages participation 
by interested parties. The substantive requirements of the proposed 
process are comparable to the existing one, but the proposed procedures 
would be less time--and resource--intensive and better aligned with 
EPA's section 404 program approval procedures. It is reasonable to 
establish withdrawal procedures that are more similar to the procedures 
used for approval than the existing approach in order to enhance 
efficiency of the withdrawal process. The proposed process is modeled 
on the withdrawal procedures for Tribal and State Underground Injection 
Control (UIC) programs at 40 CFR 145.34, and has been revised to 
accommodate the requirements of section 404. EPA views the UIC 
program's approach as more transparent and efficient than the existing 
section 404 program withdrawal procedures.
    Enhancing administrability does not mean that EPA intends to take 
program withdrawal lightly, and EPA's experience with CWA 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.
c. Request for Comment
    EPA requests comment on all aspects of this proposed revision. EPA 
is particularly interested in any recommendations to modify the 
proposed withdrawal procedure. For example, EPA welcomes any 
suggestions to extend or shorten deadlines for the Tribe or State to 
come into compliance with the CWA or implementing regulations, such as 
limiting the Tribe or State to a 60-day remediation period or to either 
remove or lengthen the initial 30-day notice period in section 
233.53(1) to 60 or 90 days. EPA also welcomes suggestions for modifying 
the proposed opportunities for public input.
3. Program Reporting
    EPA is proposing to specify in section 233.52(b) that the Tribal or 
State program annual report requires certain information not in the 
existing regulations. The proposal would clarify that the self-
assessment should be an overview of the Tribal or State program 
including the identification of implementation challenges along with 
solutions that will address the challenges. The self-assessment should 
evaluate the program components as well as provide any quantitative 
reporting required in the existing regulations. The intent is to 
provide a robust overview and picture of the Tribe's or State's program 
and implementation and support continuous improvement. The Agency also 
proposes to add a requirement that the program annual report include 
specific metrics related to compensatory mitigation and resources and 
staffing. These revisions would clarify expectations for the program 
annual reports, facilitate EPA's review of the annual report, and 
support the Agency's oversight responsibilities to ensure program 
operation is consistent with the Act. Additionally, the Agency is 
proposing to revise section 233.52(e) to add the word ``final'' between 
``Regional Administrator's'' and ``comments'' to acknowledge that some 
discussion may occur between the Tribe or State and the EPA as the 
annual report is being finalized. Finally, the Agency is proposing to 
require that the Director make the final annual report publicly 
available. EPA requests comment on all aspects of this proposed 
revision to program reporting requirements and processes.

F. General

    This section of the preamble includes additional topics related to 
Tribal and State program assumption including partial assumption, 
dispute resolution procedures, and conflict of interest provisions.
1. Dispute Resolution
a. What is the Agency proposing?
    EPA proposes to add a general provision to the purpose and scope 
section of the regulations that would clarify EPA's role in 
facilitating the resolution of 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.
b. Why is the Agency proposing this approach?
    The Agency recognizes that Tribes or States seeking to assume 
administration of the section 404 permitting program may encounter 
disputes or disagreements unique to implementing that program. For 
example, Tribes and States could potentially 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

[[Page 55312]]

or conditions to avoid or minimize impacts to historic properties, 
threatened or endangered species, or critical habitat. Several Tribes 
and States have requested that EPA help to resolve such disputes about 
issues including, but not limited to, the development of the retained 
waters list, development of a transfer plan for permits currently under 
review by the Corps, addressing endangered species and historic 
properties during permit review, and determining whether a discharge 
affects a downstream State. 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.
    The existing CWA section 404 Tribal and State program regulations 
provide several mechanisms for resolving certain types of 
disagreements. For example, a Tribe or State must provide for 
administrative and judicial review procedures. 40 CFR 233.10(b). The 
existing regulations at 40 CFR 233.50 establish processes for 
addressing EPA's comments, conditions, or objections to potential 
Tribal or State permits. EPA is not proposing changes to these existing 
processes, but proposes to further clarify the provisions regarding 
judicial review and rights of appeal that States provide on final 
permit decisions (see section V.B.2 of this preamble).
    A Tribe or State may interact with other Tribes or States or 
Federal agencies besides EPA both while seeking to assume and when 
administering a section 404 permit program. Those interactions may 
result in disagreements. 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 Tribe 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 CWA specifies that the Corps retains permitting authority for 
certain waters even after a Tribe or State has assumed the section 404 
program. In this rulemaking, EPA is proposing to clarify how retained 
waters are identified (see section V.A.2 of this preamble); however, 
EPA may still assist in resolving issues raised about the scope of 
retained waters. For example, 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.
    The Agency sees facilitating resolution of disputes as critical to 
establishing and sustaining viable Tribal and State section 404 
permitting programs. Rather than attempt to articulate in the 
regulations all potential areas where a dispute may arise, EPA proposes 
to add a general provision to the Purpose and Scope section of the 
regulations to clearly articulate 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 the EPA. EPA 
views this clarification as consistent with its program approval and 
oversight authority in CWA sections 404(h)-(j).
c. Request for Comment
    EPA solicits public comment on other approaches to dispute 
resolution, including the particular role EPA can play in relation to 
Tribes and States as well as other Federal agencies; omitting the 
proposed provision; or requiring a provision addressing dispute 
resolution in Memoranda of Agreement between a Tribe or State and 
interested Federal agencies. EPA solicits comment as to whether these 
approaches or other alternatives would be more appropriate or effective 
for resolving potential disputes. EPA also solicits comment more 
generally regarding the role EPA should play in dispute resolution.
2. Conflict of Interest
a. What is the Agency proposing?
    EPA is proposing to revise the regulatory prohibition against 
conflicts of interest in matters subject to decision by a Tribal or 
State permitting agency by clarifying that it applies to any individual 
with responsibilities related to the section 404 permitting program, as 
well as any entity that reviews decisions of the agency.
    EPA also clarifies in this section of the preamble the importance 
of ensuring public confidence that permittees are treated consistently 
in circumstances where a Tribe or State issues a permit to one of its 
agencies or departments. However, EPA does not find that it is 
necessary to include in this proposed regulation specific processes or 
requirements to address self-issuance of permits by assuming Tribes and 
States.
b. Why is the Agency proposing this approach?
    EPA's existing section 404 Tribal and State program regulations 
require that ``[a]ny public officer or employee 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.'' 40 CFR 233.4.
    EPA is proposing to revise this regulatory prohibition against 
conflicts of interest to clarify, first, that this provision applies to 
any individual with responsibilities related to the section 404 
program. The purpose of this clarification is to ensure that any 
individuals who may not be public officers or employees, but 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. Second, EPA is proposing to revise the provision to 
clarify that it applies to decisions by the agency as well as any 
entity that reviews decisions of the agency. As an 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 the conflict of interest provision, even if they are not 
officers or employees of the Tribe or State agency.
    EPA's proposed revised conflict of interest provision would read:

    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.

    This provision does not address and would not affect Federal or 
State court review of permitting actions.
    EPA considered codifying the conflict of interest provision from 
the section 402 regulations. The CWA required EPA to establish 
guidelines for section 402 State programs that prohibit any entity

[[Page 55313]]

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 Sec.  123.25(c)(1).
    EPA had proposed codifying the section 402 provision in its 
revisions to the section 404 Tribal and State program regulations in 
1988. 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 factual differences between the two 
programs. EPA noted that NPDES discharges are usually long-term 
discharges, often from certain specific types of industrial or 
municipal facilities. In contrast, discharges authorized by section 404 
typically tend to be one time, of shorter duration, and 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.'' 53 FR 20766 (June 6, 1988). 
EPA therefore 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.
    Similar distinctions between the sections 402 and 404 programs 
apply today, and the rationale in the 1988 preamble for not codifying 
the section 402 conflict of interest provision remains valid. 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. In addition, the existing conflict of interest prohibition, 
with the proposed modification, provides sufficient safeguards to avoid 
conflicts of interest. It ensures that anyone with a direct personal or 
pecuniary interest in a particular permit decision or other program 
approval must make such interest known and must not participate in that 
permit decision. This new language allows more latitude in who may 
serve on a board than the NPDES conflict of interest provision, but 
still provides that there not be a conflict of interest or appearance 
of conflict of interest in any particular decision associated with the 
administration of a section 404(g) program.
    EPA is not proposing to codify regulatory language to address 
concerns about potential conflicts of interest related to the issuance 
of permits by Tribal or State permitting agencies to authorize 
activities by those same agencies, or activities by other Tribal or 
State agencies or departments. During the early outreach process with 
Tribes and States for this proposed rule, some expressed concern that a 
Tribal or State agency may not be impartial when regulating itself. For 
example, they were concerned that a State department of transportation 
issuing a permit to itself for discharges of dredged or fill material 
associated with transportation-related projects or the State 
environmental agency issuing a permit to a State parks agency for 
discharges of dredged or fill material associated with a dock on a 
recreational lake may not scrutinize the permit application as 
rigorously as they might review an outside party's application. It is 
important to ensure public confidence that permittees are treated 
consistently in circumstances where a Tribe or State issues a permit to 
one of its agencies or departments. However, EPA concludes that it is 
not necessary to codify any new requirements to address self-issuance 
of permits by assuming Tribes and States.
    The CWA does not distinguish between a Tribe or State with an 
approved program as a permittee and other permittees. Most States 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.\48\ 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.
---------------------------------------------------------------------------

    \48\ 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.
---------------------------------------------------------------------------

    Likewise, to EPA's knowledge, the environmental 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 of which EPA is aware. The Florida Department of Environmental 
Protection has been doing the same for over two years. A common example 
of self-issuance by one State agency to another is when the State 
environmental 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 has not seen any reason 
to doubt that these intra-governmental permitting processes maintain 
full integrity and neutrality. When the Corps is engaging in civil 
works projects, the Corps undertakes a process that is substantially 
similar to the CWA section 404 permit process, including preparation of 
a Section 404(b)(1) Evaluation Document, obtaining a State CWA section 
401 certification, and engaging in public notice and comment.\49\
---------------------------------------------------------------------------

    \49\ The process is summarized in the Corps Planning Guidance 
Notebook (Engineer Regulation ER 1105-2-100), which provides overall 
direction by which civil works projects are formulated, evaluated 
and selected for implementation. Available at: https://planning.erdc.dren.mil/toolbox/library/ERs/entire.pdf.
---------------------------------------------------------------------------

    Tribes and States that assume the CWA section 404 program must 
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. 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 and is not proposing any modifications to 
this existing regulatory text to address Tribal and State self-
issuance.

[[Page 55314]]

    EPA notes that 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 State could maintain separation of the permit-
issuing function from State departments, agencies, and sections that 
apply for and receive permits. An assuming State also could include 
within its regulations other processes to promote transparency, such as 
by voluntarily expanding public participation requirements for self-
issued permits. EPA and an assuming State could also agree in the 
Memorandum of Agreement that EPA would retain heightened oversight 
(i.e., would not waive review) over permits issued to State agencies or 
departments.
c. Request for Comment
    EPA solicits comment on the proposed revision to the conflicts of 
interest regulatory prohibition. EPA also solicits comment from the 
public regarding its determination that no amendment to the regulations 
is warranted regarding Tribal and State permit self-issuance. EPA 
requests input from the public about any situations that have posed 
concerns about the ability of Tribes and States to self-issue permits 
in a neutral manner. EPA welcomes suggestions on specific procedures 
that Tribes, States, or EPA could establish to ensure public confidence 
in self-issued permits in addition to those articulated above, 
including creating distinct offices to focus solely on Tribe or State 
issued permits or specific protocols that would ensure such permits or 
agency decisions are processed in a manner consistent with the 
requirements of the CWA and are insulated from any special 
considerations.
3. Partial Assumption
    The Agency is proposing not to revise the statement at 40 CFR 
233.1(b), which clarifies that partial programs are not approvable 
under section 404.
    Under the current regulations at 40 CFR 233.1(b), the assuming 
Tribe or State must have authority to regulate all non-exempt 
discharges to all waters of the United States within its 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). 
This approach provides the most clarity to the public and the regulated 
community as to which waters are being assumed. It ensures consistency 
across the nation because permit applicants will be able to readily 
determine whether they need a Tribal or State permit or a Federal 
permit. Three states have already successfully assumed the program in 
this manner. Providing that assumption must encompass all waters of the 
United States except those waters that the Corps retains is also the 
approach most consistent with the CWA.
    In 1987, Congress added section 402(n) to the CWA, specifically 
authorizing EPA to approve partial Tribal/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 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 or State. Given this 
level of interest in partial assumption, EPA took a close look at 
potential approaches but found each to 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 not reduce the footprint or 
impacts of their proposed project 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 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 the EPA and Corps. Dividing 
functions between the Federal and Tribal or State governments would 
also be confusing for the regulated public.
    Another approach suggested by some Tribes and States is the phased 
assumption of program responsibilities, where the Tribe or State would 
ultimately assume the full program; however, it would be done 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 the withdrawal of the entire 
program.
    Tribes and States not interested in full assumption can already 
take on a major role in the permitting process even without assuming 
the section 404 program. 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 general, individual permits are issued by the 
Corps for projects that will have more than minimal individual and 
cumulative adverse environmental impacts. But most discharges of 
dredged or fill material covered by section 404 are permitted via 
general permits. In 1977, Congress amended section 404 to allow the 
Corps to issue Nationwide General Permits (NWPs), Regional

[[Page 55315]]

General Permits (RGPs), and State Programmatic General Permits (SPGPs). 
NWPs are defined by regulation, authorize activities across the 
country, and are issued for projects with minimal individual and 
cumulative adverse environmental impacts. See 33 U.S.C. 1344(e)(1). 
RGPs are general permits issued by the Corps with certain conditions 
that pertain to a limited (regional) geographic area. See id. 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. See id. 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, they 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.

G. Potential Impacts of the Proposed Regulatory Changes on Existing 
State Section 404 Programs

    This preamble section identifies parts of this proposed 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 proposed 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 233.16.
    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 proposed regulatory changes as undermining 
serious reliance interests that outweigh the benefits of these changes. 
EPA's existing regulations contain detailed procedures for revising an 
approved section 404 program. 40 CFR 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 Sec.  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 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.
    Proposed provisions that could affect existing programs include a 
provision ensuring opportunity for judicial review of agency decisions 
(section V.B.2 of this preamble), updates to the compensatory 
mitigation requirements for Tribal and State section 404 programs 
(section V.A.3 of this preamble), and a revised approach to addressing 
the five-year limit on permits (section V.C.1 of this preamble). In 
addition, a proposed clarification as to how Tribes and States can 
demonstrate that their programs are no less stringent than the Federal 
section 404 program (section V.E.1 of this preamble) and a proposed 
modification of the conflict of interest prohibition (section V.F.2 of 
this preamble) may affect existing State programs. The following 
discussion of certain elements of the proposal provides further 
details.
1. Judicial Review
    EPA proposes to amend the existing regulations to clarify that 
States seeking to assume the section 404 program must provide for 
judicial review of decisions to approve or deny permits to the same 
extent that permittees can obtain judicial review in a Federal court of 
a Federally-issued NPDES permit (see CWA section 509). A State will not 
meet this standard if it narrowly restricts the class of persons who 
may challenge the approval or denial of permits (for example, if only 
the permittee can obtain judicial review, if persons must demonstrate 
injury to a pecuniary interest in order to obtain judicial review, or 
if persons must have a property interest in close proximity to a 
discharge or surface waters in order to obtain judicial review), or if 
it requires the imposition of attorneys' fees against the losing party 
notwithstanding the merit of the litigant's position. This proposed 
provision could affect existing State section 404 programs if they do 
not meet this standard.
    As noted above, EPA does not view this change as undermining 
reliance interests that outweigh its benefits. Furthermore, as 
discussed in section V.B.2 of this preamble, EPA has long required 
States to provide a description of their judicial review procedures in 
the program description. EPA has also long explicitly made clear that 
States seeking to assume the section 402 program must provide for 
judicial review of decisions to approve or deny permits to the same 
extent that permittees can obtain judicial review in a Federal court of 
a Federally-issued NPDES permit, and has never indicated that this 
requirement is uniquely suited to the section 402 program as 
distinguished from the section 404 program. Every State with an 
approved section 404 program also administers a section 402 program. 
Therefore, these States know that CWA programs have required the 
availability of judicial review akin to that available for Federally-
issued permits, and EPA anticipates that ensuring this opportunity is 
available for their section 404 programs as well would be feasible.
    EPA requests comment on this provision in section V.B.2 of this 
preamble. EPA also requests comment on the extent to which this 
provision would require changes to existing State programs.
2. Compensatory Mitigation
    EPA is proposing to require that the program description that 
Tribes or States submit to EPA when seeking to assume the section 404 
program include a description of the Tribe's or State's proposed 
approach to ensuring that all permits issued by the Tribe or State 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. The provision would 
clarify 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 as opposed to Corps

[[Page 55316]]

administration, but may not be less stringent than the substantive 
criteria of subpart J. Subsequent to a review of the final rule, 
Michigan, New Jersey, or Florida may determine a program revision is 
necessary to ensure that any permits they issue will apply and ensure 
compliance with the substantive criteria for compensatory mitigation in 
subpart J and may not be less stringent than those criteria.
    EPA is also proposing that if the Tribe or State establishes third 
party compensation mechanisms as part of their section 404 program 
(e.g., banks or in-lieu-fee programs), instruments associated with 
these compensatory mitigation approaches must be sent to EPA, the 
Corps, the U.S. Fish and Wildlife Service, and the National Marine 
Fisheries Service for review prior to approving the 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. Note 
that this requirement does not include permittee-responsible 
compensatory mitigation. Tribes or States may also send draft 
instruments to other relevant Tribal or State resource agencies for 
review. If the Regional Administrator has commented that the instrument 
is not consistent with the description of the Tribe's or State's 
proposed approach to ensuring compliance with the substantive criteria 
for compensatory mitigation, the Tribe or State shall not approve the 
final compensatory mitigation instrument until the Regional 
Administrator notifies the Director that the final instrument is 
consistent with this approach. As noted above, while States with 
existing programs will not be committing to send draft instruments to 
particular Tribal or State resource agencies in program descriptions, 
they would have to comply with the remaining parts of this proposed 
provision, namely, sending draft compensatory mitigation instruments to 
EPA, the Corps, the U.S. Fish and Wildlife Service, and the National 
Marine Fisheries Service, and any Tribal or State resource agencies to 
which the Tribe or State committed to send draft instruments in the 
program description. They would also need to address reviewer comments 
as the proposed rule outlines. States with existing programs may need 
to modify their procedures to comply with this provision.
    EPA requests comment on this provision in section V.A.3 of this 
preamble. EPA also requests comment on the extent to which this 
provision would require changes to existing State programs.
3. Five-Year Permits and Long-Term Projects
    The Agency is proposing that for projects with a planned schedule 
that may extend beyond the initial five-year permit application, the 
permit applicant must submit a 404(b)(1) analysis of how the project 
complies with the environmental review criteria set forth in the CWA 
404(b)(1) Guidelines for the full project with the application for the 
first five-year permit and modify the 404(b)(1) analysis, as necessary, 
when submitting applications for subsequent five-year permits. The 
Agency is also proposing to clarify that all aspects of the permit 
application, public notice, Tribal or State review, and EPA review 
requirements set forth in 40 CFR 233.30, 233.32, 233.34, and 233.50 
respectively, apply to each permit application for projects that exceed 
a five-year schedule. This proposed provision would apply to existing 
State programs, but the extent to which these programs might need to 
expand the scope of their authority or modify their procedures to 
address this provision may vary depending on the programs' existing 
authorities and procedures. EPA requests comment on this provision in 
section V.C.1 of this preamble. EPA requests comment on the extent to 
which this provision would require changes to existing State programs.
4. Program Scope
    This proposal clarifies that the geographic scope of an approved 
section 404 program must--at all times--cover all waters of the United 
States except those retained by the Corps to ensure there will be no 
gap in permitting authority. This proposed provision would apply to 
existing programs, and it represents EPA's interpretation of both the 
statute and existing regulations in 40 CFR 233.1(d) (which require a 
State program to at all times be conducted in accordance with the Act). 
EPA requests comment on this provision in section V.A.1 of this 
preamble, and expects that, if finalized, this provision may impact one 
or more existing State programs. EPA requests comment confirming the 
extent to which this provision would require changes to existing State 
programs.
5. Conflict of Interest
    This proposal addresses potential scenarios where there may be an 
actual or perceived conflict of interest in the permitting process by a 
Tribal or State agency. EPA is clarifying that the prohibition against 
participating in matters subject to decision by a Tribal or State 
permitting agency, if one has a conflict of interest, applies to any 
individual with responsibilities related to the section 404 permitting 
program, as well as any entity that reviews decisions of the agency. 
This proposed provision would apply to existing programs. EPA requests 
comment on this provision in section V.F.2 of this preamble. EPA 
requests comment confirming the extent to which this provision would 
require changes to existing State programs.

H. Other

1. Technical and Minor Updates
a. What is the Agency proposing?
    EPA is proposing several editorial and certain minor updates to 40 
CFR parts 232 and 233 to update outdated citations, update EPA office 
locations, and make other non-substantive changes. None of the proposed 
updates would have a substantive impact on program approval procedures 
or requirements.
     EPA is proposing to revise section 233.1(b) to remove the 
term ``individual'' from the reference to ``State permits,'' as States 
may also regulate discharges using general permits.
     EPA is proposing to change the ``Note'' in section 
233.1(c) to become section 233.1(d), as well as cross-reference this 
section to the process to identify waters to be retained by the Corps 
and the retained waters description at 233.11(i). Section 233.1(d) will 
be renumbered as 233.1(e).
     For consistency and clarity, EPA is proposing to add a 
definition of ``Indian lands'' for Tribal and State CWA section 404 
programs. Consistent with the Agency's long-standing interpretation of 
``Indian lands'' as synonymous with ``Indian country,'' EPA is 
proposing to add a definition clarifying that ``Indian lands'' means 
``Indian country'' as defined at 18 U.S.C. 1151. See e.g., 40 CFR 144.3 
(defining ``Indian lands'' as ``Indian country'' as defined at 18 
U.S.C. 1151); 40 CFR 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 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 UIC 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

[[Page 55317]]

``synonymous with `Indian country', which is defined at 18 U.S.C. 
[]1151'').
     EPA is proposing to revise the definition of ``State 404 
program'' or ``State program'' to remove the term ``state'' within the 
definition to clarify that Tribes and interstate agencies may also have 
an approved program. EPA also proposes to remove the ``(p)'' associated 
with the cross reference to 40 CFR 233.2 as the definitions in 40 CFR 
233.2 are no longer listed by letter.
     EPA is proposing to update section 233.10(a) and section 
233.16(d)(2) to include the term ``Tribal leader'' where the term 
``Governor'' is referenced.
     EPA is proposing to clarify in section 233.14(b)(3) that 
when a State intends to administer general permits issued by the 
Secretary, any Tribal conditions and/or certifications of those general 
permits transfer when the State assumes the program. The proposed 
revision divides the existing provision into two sentences to 
accommodate this clarification.
     EPA is proposing to add a requirement in section 
233.16(d)(2) to include an effective date for the approved non-
substantial program revisions in the letter from the Regional 
Administrator to the Governor. This addition to the letter will clarify 
the date upon which such program changes become effective.
     EPA is proposing to clarify 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 shall also submit the transition plan 
required in the existing regulations. The Agency is also proposing to 
add 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 Corps 
administration of the program. EPA is also proposing 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.
     EPA is proposing to add a provision to clarify 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.
     EPA is proposing to update the docket location and EPA 
Region 2 Regional Office location to reflect their current addresses in 
section 233.71(b).
     EPA is proposing to update 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 proposing to update the 
description of the EPA and Michigan Memorandum of Agreement in section 
233.70(c)(1) to reflect the current Memorandum, signed in 2011.
     EPA is proposing to remove the use of the masculine 
pronouns ``he'' and ``his'' throughout 40 CFR part 233 and replace them 
with ``they,'' ``their,'' ``the Administrator,'' ``the Regional 
Administrator,'' or ``Director'' as appropriate.
     Additionally, to clarify the difference between a permit 
application and a request to assume the program, throughout the 
regulations, EPA is proposing to change references to assumption 
``application'' to terms including ``request to assume,'' ``program 
submission,'' or ``assumption request materials.''
     EPA is proposing certain other non-substantive procedural 
changes to facilitate efficient program operation.
     EPA is proposing other minor updates to cross-references, 
as appropriate, and to ensure consistency in terminology.
b. Why is the Agency proposing this approach?
    The current regulations were last comprehensively updated in 1988. 
Since then, there have been changes to Federal laws and regulations, 
changes in practice, and changes in location of EPA offices, all of 
which warrant updating the regulations to ensure consistency and 
provide clarity. EPA has also gained experience in program oversight, 
which has revealed the need to clarify certain requirements or 
procedures. The purpose of the updates identified below is to 
acknowledge these non-substantive changes and assist Tribes and States 
in developing and administering a CWA section 404 program. The purpose 
of changing masculine pronouns or terms to neutral pronouns and other 
neutral terms is to acknowledge the diversity of people who may hold 
the positions of ``the Administrator,'' ``the Regional Administrator,'' 
``Director,'' and program staff. Finally, certain terms are changed to 
enhance consistency. The 1988 regulations sometimes used synonyms to 
avoid repeated use of the same undefined term throughout the 
regulations; the use of synonyms has led to questions as to whether the 
different words differ in meaning. Where no difference is intended, EPA 
proposes to use one term to improve clarity. EPA is also proposing 
certain other non-substantive procedural changes to facilitate 
efficient program operation. These changes have no substantive effect; 
rather they are technical, editorial, and minor updates to provide 
clarity, reflect technological changes, and ensure accuracy of 
citations.
c. Request for Comment
    EPA requests comment on all aspects of these proposed minor 
updates. EPA is particularly interested in the identification of 
additional technical corrections, which should be considered to ensure 
clarity regarding the assumption requirements, the approval process, 
administration of, and oversight of Tribal and State CWA section 404 
programs. EPA also seeks comment on proposed changes in section 233.53, 
especially on the transfer of ongoing investigations, compliance 
orders, and enforcement actions.
    Several provisions of the existing section 404 Tribal and State 
program regulations specify that public notices or documents should be 
``mailed.'' For example, the regulations indicate that after 
determining that a State program submission is complete, the Regional 
Administrator shall ``mail notice'' to persons known to be interested 
in such matters. 40 CFR 233.15(e). EPA seeks comment on whether to 
revise the existing regulations to clarify that electronic mail is an 
acceptable method of transmitting such information, for example by 
changing the word ``mail'' to ``send'' or adding explicit references to 
``electronic mail.''
2. Part 124
a. What is the Agency proposing?
    The Agency proposes to provide technical edits to 40 CFR part 124 
consistent with the Agency's intent to clarify that the part 124 
regulations do not apply to Tribal or State section 404 programs. The 
consolidated permit regulations at 40 CFR part 124 address several 
separate EPA permit programs, including the Resource Conservation and 
Recovery Act (RCRA), UIC, and

[[Page 55318]]

NPDES programs. EPA is not proposing to revise the aspects of the part 
124 regulations addressing these programs. Specifically, EPA is 
proposing to make targeted revisions and deletions to specific 
provisions of the regulations at 40 CFR 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.
b. Why is the Agency proposing this approach?
    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 Agency intended 
for the 40 CFR part 124 regulations to 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 has not yet 
provided conforming edits to part 124 to remove references to part 233. 
As such, the current part 124 regulations include references to an 
outdated version of the part 233 regulations, which may cause confusion 
to stakeholders regarding the applicability of part 124 to Tribal or 
State section 404 programs and assumption efforts. This proposed rule 
would finally remove the outdated references to part 233 in part 124 
and would have no substantive impact on the section 404 assumption 
process or on Tribal or State programs.
c. Request for Comment
    EPA is requesting comment on whether the Agency has identified all 
changes to the part 124 regulations that reference the outdated version 
of the part 233 regulations or Tribal or State section 404 programs.
3. Incorporation by Reference
    Currently, 40 CFR 233.70 incorporates by reference Michigan's 
regulatory and statutory authorities applicable to the State's approved 
CWA section 404 program, and 40 CFR 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 
proposing to update the incorporation by reference of the Michigan laws 
in the State's approved CWA section 404 program, which were updated in 
1994, with the exception of the Michigan Administrative Procedures Act 
of 1969 (MCL Sec.  24-201 et seq.), which was not updated. 
Additionally, EPA is proposing to incorporate the most recent versions 
of Michigan administrative code. EPA is not proposing to update any of 
the materials currently incorporated by reference for New Jersey's 
program. 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 the EPA 
Docket Center Reading Room, WJC West Building, Room 3334, 1301 
Constitution Avenue NW, Washington, DC 20004 (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 the Water Division, 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, IL 60604 (telephone number: 1-800-621-8431), at the Michigan 
Department of Environment, Great Lakes, and Energy office at 525 W 
Allegan St., Lansing, MI 48933 (telephone number: 800-662-9278), or at 
http://www.legislature.mi.gov/. Copies of the materials incorporated by 
reference for New Jersey's program can also be accessed at the Library 
of the Region 2 Regional Office, Ted Weiss Federal Building, 290 
Broadway, New York, NY 10007, at the New Jersey Department of 
Environmental Protection at 401 East State St., Trenton, NJ 08625 
(telephone number: 609-777-3373), or at https://www.epa.gov/cwa404g/us-interactive-map-state-and-tribal-assumption-under-cwa-section-404#nj.
    EPA is requesting comment on whether the Agency has identified all 
changes to the State laws and regulations incorporated by reference in 
40 CFR 233 subpart H.

I. Severability

    The purpose of this section is to clarify EPA's intent with respect 
to the severability of provisions of the proposed rule. Each provision 
and interpretation in this proposed rule is capable of operating 
independently. Once finalized, if any provision or interpretation in 
this proposed 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 proposed rule invalid. Likewise, if the 
application of any aspect of this proposed rule to a particular 
circumstance were determined to be invalid, the Agency intends that, if 
finalized, the proposed rule would remain applicable to all other 
circumstances.

VI. 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; Executive 
Order 13563: Improving Regulation and Regulatory 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. The EPA prepared an economic analysis of 
the potential impacts associated with this action. This analysis is 
contained in the Economic Analysis for the Proposed Rule, which is 
available in the docket for this action.
    The Economic Analysis for the Proposed Rule is qualitative in 
nature due to the paucity of data associated with both existing and 
potential future Tribal and State section 404 programs. Baseline 
conditions are described in the analysis based on a review of existing 
programs and feasibility studies carried out by States assessing 
potential assumption of a section 404 program. Potential impacts of the 
proposed rule described in the analysis focus on those portions of the 
proposed rule with potential substantive economic impacts, followed by 
those portions with expected de minimis economic impacts and those with 
no economic impacts. The Agency expects that provisions addressing 
retained waters, Tribal or State program effective dates, Tribes as 
affected downstream States, and program withdrawal procedures could 
have potential substantive impacts--much of which would be in the form 
of cost savings to Tribes and States. Provisions addressing program 
assumption requirements, compensatory mitigation, and five-year permits 
and long-term projects are expected to have de minimis impacts. 
Provisions with no expected economic impacts include

[[Page 55319]]

those relating to compliance with the CWA 404(b)(1) Guidelines, 
conflict of interest, criminal negligence standard, dispute resolution, 
the ``no less stringent than'' requirements, and judicial review. EPA 
solicits comments on all aspects of the economic analysis for the 
proposed rule.

B. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rule have 
been submitted for approval to OMB under the PRA. The Information 
Collection Request (ICR) document that EPA prepared has been assigned 
EPA ICR number 0220.16. You can find a copy of the ICR in the docket 
for this proposed rule, and it is briefly summarized here.
    The ICR associated with this rulemaking is functioning 
simultaneously as a renewal of the standing ICR for the section 404(g) 
program. The ICR accounts for changes to the existing three categories 
of information collection (IC) within the standing ICR in place for the 
section 404(g) program, as well as an additional IC. These categories 
include requests for information associated with program assumption 
requests, substantial program modifications, and withdrawal procedures; 
permit application information; annual reports and program information; 
and Tribes applying for TAS status for the purpose of commenting as 
downstream States. The ICR does not require the collection of any 
information of a confidential nature or status.
    Respondents/affected entities:
     Request for Program Assumption, Substantial Program 
Modifications, and Withdrawal Procedures: Tribes or States requesting 
program assumption are the anticipated respondents for this IC.
     Permit application information: States with existing 
assumed programs under section 404(g) and permittees requesting permits 
in those States under section 404 of the CWA are the anticipated 
respondents for this IC.
     Annual reports and program information: States with 
existing assumed programs under section 404(g) are the anticipated 
respondents for this IC.
     Tribes applying for TAS: Tribes seeking TAS status for the 
sole purpose of commenting as downstream States are the anticipated 
respondents for this IC.
    Respondents' obligation to respond:
     Request for Program Assumption, Substantial Program 
Modifications, and Withdrawal Procedures: Tribes and States voluntarily 
request program assumption.
     Permit application information: Permittees are required to 
submit an application to obtain a section 404 permit.
     Annual reports and program information: Tribes and States 
with assumed programs are required to submit an annual report and 
program information, and EPA is required to review Tribal and State 
annual reports and program information.
     Tribes applying for TAS: Tribes voluntarily apply for TAS 
status.
    Estimated number of respondents:
     Request for Program Assumption, Substantial Program 
Modifications, and Withdrawal Procedures: EPA estimates that two States 
could request program assumption in the next three years. While Tribes 
can request program assumption, none are expected to do so in the next 
three years.
     Permit application information: Three States presently 
have assumed programs, and EPA estimates that two additional States 
could apply for program assumption in the next three years; thus, five 
States are considered in the ICR for this rulemaking. Estimated hours 
and numbers of permits are reflected below. Burden and costs to 
permittees within Tribes or States that may assume the program during 
the period of this ICR are currently captured by the Corps ICR.
     Annual reports and program information: Three States 
presently have assumed programs, and EPA estimates that two States 
could apply for program assumption in the next three years; thus, five 
States are considered in the ICR for this rulemaking.
     Tribes applying for TAS: The Agency is estimating that 
three Tribes could apply for TAS status in the next three years; thus, 
three Tribes are considered in the ICR for this rulemaking.
    Frequency of response: This collection of information is separated 
into four parts. The annual public reporting and record keeping burden 
for this collection is estimated to average 970 hours to request 
program assumption (spread over three years), 12.7 hours for a State to 
review a permit application, 11 hours for a permittee to complete a 
permit application, 110 hours for a State to prepare the annual report, 
and 113 hours for a Tribe to apply for TAS status.
    Total estimated burden to respondents: 109,084 hours (per year). 
Burden is defined at 5 CFR 1320.3(b).
    Total estimated cost to respondents: $5,808,918 (per year), 
includes $0 annualized capital or 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 the 
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
    Submit your comments on the Agency's need for this information, the 
accuracy of the provided burden estimates, and any suggested methods 
for minimizing respondent burden to the EPA using the docket identified 
at the beginning of this rule. The Agency is particularly seeking 
comment on the burden estimate associated with the information 
collection for Tribes applying for TAS status. You may also send your 
ICR-related comments to OMB's Office of Information and Regulatory 
Affairs using the interface at www.reginfo.gov/public/do/PRAMain. Find 
this particular information collection by selecting ``Currently under 
Review--Open for Public Comments'' or by using the search function. OMB 
must receive comments no later than October 13, 2023.

C. Regulatory Flexibility Act (RFA)

    I certify that this action 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. Small 
entities are not subject to the requirements of this proposed rule.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate 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 Proposed 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, agencies 
must conduct a federalism consultation as outlined in the Executive 
Order for regulations that (1) have federalism implications, that 
impose substantial direct compliance costs on State and local 
governments, and that are not required by statute; or (2) that have 
federalism implications and that preempt State law. Executive Order 
paras. (6)(b)-(c). The Agency has concluded that compared to the status 
quo, this rule does not impose any new costs or other requirements on 
States, preempt State law, or limit States' policy discretion; rather, 
it helps to

[[Page 55320]]

clarify and facilitate the process of State assumption of the section 
404 program. 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.
    Consistent with EPA's policy to promote communications between EPA 
and State and local 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. The Agency invited 
written input from State agencies from November 12, 2018, through 
February 11, 2019, and hosted an in-person meeting with State officials 
on December 6, 2018. See section IV.C of this preamble for further 
discussion of pre-proposal Tribal and State engagement on this 
rulemaking effort. A summary of stakeholder engagement and written 
input from States on this action is available in the docket for this 
proposed rule.
    All comment letters and recommendations received by EPA during the 
comment period of this proposed rulemaking from State and local 
governments will be included in the docket for this action.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action may have Tribal implications. 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 downstream 
``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. A summary of that consultation is 
provided in the docket for this action.

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 the 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

    Executive Order 12898 (59 FR 7629, February 16, 1994) directs 
Federal agencies, to the greatest extent practicable and permitted by 
law, to make environmental justice part of their mission by identifying 
and addressing, as appropriate, disproportionately high and adverse 
human health or environmental effects of their programs, policies, and 
activities on minority populations (people of color and/or Indigenous 
peoples) and low-income populations.
    EPA believes that the human health and environmental conditions 
that exist prior to this action do not result in disproportionate and 
adverse effects on people of color, low-income populations, and/or 
Indigenous peoples. The existing 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. See Section III 
of the Economic Analysis for the Proposed Rule for additional 
information on the existing regulations.
    EPA finds that this action is not likely to result in new 
disproportionate and adverse effects on people of color, low-income 
populations, and/or Indigenous peoples. The proposed section 404 Tribal 
and State program regulations would require that Tribes and 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.
    EPA additionally identified and addressed potential environmental 
justice concerns by proposing to expand Tribes' ability to utilize TAS 
for purposes of commenting as downstream ``affected States'' and 
develop an avenue for EPA review of permits that may impact Tribal 
rights and resources. The proposed rule would enable Tribes to have a 
more significant role in the permit decision-making process than under 
current practice. See Section III of the Economic Analysis for the 
Proposed Rule for additional information on the proposed regulations.
    The information supporting this Executive Order review is contained 
in section V.C.2 of this preamble and Section III of the Economic 
Analysis for the Proposed Rule, which is available in the public docket 
for this action.

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 the preamble, the EPA proposes to 
amend 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.

Subpart B--State Program Submissions

0
2. Amend Sec.  123.27 by:

[[Page 55321]]

0
a. Revising paragraphs (a) introductory text and (a)(3) introductory 
text;
0
b. Removing the note that appears after 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:
* * * * *
    (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.
* * * * *

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 part 124 must be 
adopted by States in order to gain EPA approval to operate RCRA, UIC, 
and NPDES permit programs. These requirements are listed in Sec. Sec.  
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 Sec. Sec.  123.25 
(NPDES), 145.11 (UIC), and 271.14 (RCRA)). Part 124 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 Sec. Sec.  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'', 
``SDWA'';
0
iii. Removing the definition for ``Section 404 program or State 404 
program or 404'';
0
iv. Revising the definition for ``Site''; and
    b. Revising paragraph (b).
    The revisions read as follows:


Sec.  124.2  Definitions.

    (a) In addition to the definitions given in Sec. Sec.  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 Sec.  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'' (Sec.  
270.60), RCRA emergency permit (Sec.  270.61), RCRA standardized permit 
(Sec.  270.67), UIC area permit (Sec.  144.33), UIC emergency permit 
(Sec.  144.34), and NPDES ``general permit'' (Sec.  122.28). Permit 
does not include RCRA interim status (Sec.  270.70), UIC authorization 
by rule (Sec.  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 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 Sec. Sec.  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) introductory text and 
paragraphs (a)(1) and (3) to read as follows:


Sec.  124.3  Application for a permit.

    (a) Applicable to State programs, see Sec. Sec.  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 Sec. Sec.  270.1 (RCRA), 
144.1 (UIC), 40 CFR 52.21 (PSD), and 122.1 (NPDES). Applications are 
not required for RCRA permits by rule (Sec.  270.60), underground 
injections authorized by rules (Sec. Sec.  144.21 through 144.26), and 
NPDES general permits (Sec.  122.28).
* * * * *
    (3) Permit applications (except for PSD permits) must comply with 
the signature and certification requirements of Sec. Sec.  122.22 
(NPDES), 144.32 (UIC), and 270.11 (RCRA).
* * * * *
0
7. Amend Sec.  124.5 by:

[[Page 55322]]

0
a. Revising paragraphs (a), (c) introductory text, (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 Sec. Sec.  123.25 (NPDES), 
145.11 (UIC), and 271.14 (RCRA).) Permits (other than 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 Sec. Sec.  
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 Sec.  270.41(b)(3)) or Sec.  270.42(c) (RCRA), he or she 
shall prepare a draft permit under Sec.  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 40 CFR part 124, subpart G 
for RCRA standardized permits.
* * * * *
    (3) ``Minor modifications'' as defined in Sec. Sec.  122.63 
(NPDES), and 144.41 (UIC), and ``Classes 1 and 2 modifications'' as 
defined in Sec.  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), (c), (d) introductory text, (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. Removing in paragraph (e) the text ``(Applicable to State programs, 
see Sec. Sec.  123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14 
(RCRA).)'' and adding in its place the text ``(Applicable to State 
programs, see Sec. Sec.  123.25 (NPDES), 145.11 (UIC), and 271.14 
(RCRA).)''.
    The revisions read as follows:


Sec.  124.6  Draft permits.

    (a) (Applicable to State programs, see Sec. Sec.  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 Sec.  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 Sec. Sec.  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 Sec. Sec.  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 Sec. Sec.  122.47 (NPDES), 
144.53 (UIC), or 270.33 (RCRA) (except for PSD permits);
    (3) All monitoring requirements under Sec. Sec.  122.48 (NPDES), 
144.54 (UIC), or 270.31 (RCRA) (except for PSD permits); and
* * * * *
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 Sec. Sec.  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 (Sec.  122.28), for 
every NPDES draft permit that incorporates a variance or requires an 
explanation under Sec.  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 paragraphs (a)(1)(ii) and (iii);
0
b. Removing paragraph (a)(iv);
0
c. Redesignating paragraph (a)(v) as (a)(iv);
0
d. Revising the introductory text of paragraph (b);
0
e. Revising the introductory text of paragraph (c), and paragraphs 
(c)(1)(i), (ii), and (iv);
0
f. Removing paragraph (c)(1)(vi);
0
g. Redesignating paragraphs (c)(1)(vii) through (xi) as paragraphs 
(c)(1)(vi) through (x);
0
h. Revising paragraph (c)(2)(i);
0
i. Revising the introductory text of paragraph (d), and paragraphs 
(d)(1)(ii) and (iii);
0
j. Removing paragraph (d)(1)(viii);
0
k. Redesignating paragraphs (d)(1)(ix) and (x) as paragraphs 
(d)(1)(viii) and (ix);
0
l. Removing the ``; and'' at the end of paragraph (d)(2)(iii) and 
adding a period in its place;
0
m. Removing paragraph (d)(2)(iv); and
0
n. Revising paragraph (e).
    The revisions read as follows:


Sec.  124.10  Public notice of permit actions and public comment 
period.

    (a) * * *
    (1) * * *
    (ii) (Applicable to State programs, see Sec. Sec.  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 Sec. Sec.  123.25 (NPDES), 
145.11 (UIC), and 271.14 (RCRA).) A hearing has been scheduled under 
Sec.  124.12; or
* * * * *
    (b) Timing (applicable to State programs, see Sec. Sec.  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

[[Page 55323]]

development under CWA section 208(b)(2), 208(b)(4) or 303(e) and the 
U.S. Army Corps of Engineers, the U.S. 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 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 Sec. Sec.  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 Sec.  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 Sec. Sec.  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 Sec. Sec.  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 introductory text of paragraph 
(a) to read as follows:


Sec.  124.12  Public hearings.

    (a) (Applicable to State programs, see Sec. Sec.  123.25 (NPDES), 
145.11 (UIC), and 271.14 (RCRA).)
* * * * *
    13. Amend Sec.  124.17 by revising the introductory text of 
paragraph (a) and paragraphs (a)(2) and (c) to read as follows:


Sec.  124.17  Response to comments.

    (a) (Applicable to State programs, see Sec. Sec.  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 Sec. Sec.  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 Sec.  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 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.

Subpart A--General

0
17. Amend Sec.  233.1 by:
0
a. Revising the fourth sentence of paragraph (b);
0
b. Removing the note 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 (part 230 of this chapter) 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 for ``State 404 program or State program''.
    The additions and revision read as follows:

[[Page 55324]]

Sec.  233.2  Definitions.

* * * * *
    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 also address the administrative 
boundary associated with adjacent wetlands and 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.

Subpart B--Program Approval

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 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 of each agency and how the agencies intend to 
coordinate administration, 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 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 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 
request includes the required information, then within seven days of 
receiving the State's request, the Regional Administrator shall 
transmit the request for the retained waters description to the Corps. 
This 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)(3) of this section, if the 
Corps chooses to do so;
    (2) 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 shall develop a retained waters 
description pursuant to the process described in paragraph (i)(3) of 
this section;
    (3) 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 list 
that the State prepares pursuant to paragraph (i)(2) of

[[Page 55325]]

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 wetlands that are adjacent to the 
foregoing waters pursuant to paragraph (i)(5) of this section. This 
description does not require a specific listing of each wetland that is 
retained;
    (4) The Regional Administrator may presume that a retained waters 
description that meets the criteria in paragraph (i)(3) of this section 
satisfies the statutory criteria for retained waters;
    (5) The Secretary shall retain administrative authority over all 
jurisdictional wetlands adjacent to retained waters, waterward of the 
administrative boundary described in the Memorandum of Agreement with 
the Secretary. The extent of retained adjacent wetlands shall be 
identified in the retained waters description developed in accordance 
with paragraph (i)(3) of this section:
    (i) The administrative boundary defines the landward extent of the 
adjacent wetlands to be retained by the Corps. The administrative 
boundary shall be jointly negotiated by the Director and the Corps. A 
300-foot default boundary shall be used if no other boundary is 
negotiated; and
    (ii) The Memorandum of Agreement with the Secretary shall 
articulate an approach for permitting projects which may cross the 
administrative boundary;
    (6) The State assumes permitting authority over all waters of the 
United States not retained by the Corps as described in paragraph 
(i)(3) of this section. 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 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 120 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), and shall include a description of the administrative 
boundary demarcating the adjacent wetlands over which administrative 
authority is retained by the Corps and an approach for permitting 
projects which cross the administrative boundary. The default 
administrative boundary when no other boundary is negotiated shall be a 
300-foot administrative boundary from the ordinary high water mark, 
mean high water mark, or mean higher high water mark on the west coast, 
of the retained water. The default approach for permitting projects 
which cross the administrative boundary, when no other approach is 
negotiated, is that the Corps will exercise permitting authority for 
discharges into wetlands adjacent to a retained water waterward of the 
administrative boundary and the State will exercise permitting 
authority for discharges into adjacent wetlands landward of the 
administrative boundary. The State and the Corps are encouraged to 
coordinate permitting procedures or to conduct joint processing of 
Federal and State permits pursuant to Sec.  233.14.
    (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 in State regulated waters and other 
relevant information not already in the possession of the Director.

    Note: 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 of 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.
0
24. Amend Sec.  233.15 by revising the first sentence in the 
introductory text of paragraph (e), the second sentence of paragraph 
(g) and paragraph (h) to 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

[[Page 55326]]

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 on 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 
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.

Subpart C--Permit Requirements

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 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. A State will meet this standard if State law 
allows 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 (see section 509 of the Clean Water Act). A State 
will not meet this standard if, for example, it narrowly restricts the 
class of persons who may challenge the approval or denial of permits 
(for example, if only the permittee can obtain judicial review, if 
persons must demonstrate injury to a pecuniary interest in order to 
obtain judicial review, or if persons must have a property interest in 
close proximity to a discharge or surface waters in order to obtain 
judicial review), or if it requires the imposition of attorneys' fees 
against the losing party, notwithstanding the merit of the litigant's 
position. This requirement does not apply to Indian Tribes.

Subpart D--Program Operation

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 should apply for the new permit at least 
180 days prior to the expiration of the current permit. 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.
* * * * *

[[Page 55327]]

0
30. Amend Sec.  233.31 by revising paragraph (a) and adding paragraphs 
(c) and (d) 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 prior to 
permit issuance in writing of the Director's failure to accept these 
recommendations, together 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.
* * * * *
    (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) 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):
* * * * *
0
32. Amend Sec.  233.33 is amended 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. 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 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.

Subpart E--Compliance Evaluation and Enforcement

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.
* * * * *

Subpart F--Federal Oversight

0
37. Amend Sec.  233.50 by:
0
a. Revising the section heading;
0
b. Revising paragraphs (d), (e), (f), and (h)(1); and
0
c. Adding paragraph (k).

[[Page 55328]]

    The revisions and additions 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 resource 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, as well as 
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 and/or interest within 
the State; the number and nature of individual and general permits 
issued, modified, and denied; number of violations identified and 
number and nature of enforcement actions taken; number of suspected 
unauthorized activities reported and nature of action taken; an 
estimate of 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 responding to the Regional

[[Page 55329]]

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 of the State 
agency administering the approved program 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, 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.
* * * * *

Subpart G--Eligible Indian Tribes


Sec.  233.60  [Amended]

0
41. Amend Sec.  233.60 by removing in paragraph (c) 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. Amend Sec.  233.62 by revising paragraph (a) and adding paragraph 
(c) 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.
* * * * *
    (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 and fill 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.

Subpart H--Approved State Programs

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 requirements set forth in the 
State statutes and regulations cited in this paragraph are hereby 
incorporated by reference and made a part of the applicable 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. Material is 
incorporated as it exists on [Effective DATE of final rule]. To enforce 
any edition other than that specified in this

[[Page 55330]]

section, the 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 the EPA and at 
the National Archives and Records Administration (NARA). Copies of this 
IBR material also may be obtained from the EPA. Contact the EPA at: EPA 
Docket Center Reading Room, WJC West Building, Room 3334, 1301 
Constitution Avenue NW, Washington, DC 20004 (telephone number: 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.html or 
email [email protected]. Copies of the materials incorporated by 
reference for Michigan's program can also be accessed at the Michigan 
Department of Environment, Great Lakes, and Energy office at 525 W 
Allegan St., Lansing, MI 48933, or at http://www.legislature.mi.gov/.
    (1) Natural Resources and Environmental Protection Act 451 of 1994, 
Part 323 Great Lakes Shorelands Protection and Management, MCL Sec.  
324.323 and Part 325 Great Lakes Submerged Lands, MCL Sec.  324.325 et 
seq.
    (2) Natural Resources and Environmental Protection Act 451 of 1994, 
Part 31 Water Resources Protection, MCL Sec.  324.31 et seq.
    (3) Natural Resources and Environmental Protection Act 451 of 1994, 
Part 303 Wetland Protection, MCL Sec.  324.303 et seq.
    (4) Natural Resources and Environmental Protection Act 451 of 1994, 
Part 301 Inland Lakes and Streams, MCL Sec.  324.301 et seq.
    (5) The Michigan Administrative Procedures Act of 1969, MCL Sec.  
24-201 et seq.
    (6) Natural Resources and Environmental Protection Act 451 of 1994, 
Parts 307 Inland Lake Levels and 315 Dam Safety, MCL Sec.  324.307 et 
seq. and MCL Sec.  324.315 et seq.
    (7) R 281.21 through R 281.26 inclusive, R 281.811 through R 
281.846 inclusive, R 281.921 through R 281.925 inclusive, R 281.951 
through R 281.961 inclusive, and R 281.1301 through R 281.1313 
inclusive of the Michigan Administrative Code.
    (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.
    (1) The Memorandum of Agreement between EPA Region V and the 
Michigan Department of Natural Resources, signed by the 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 V 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. (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 last sentence of the introductory paragraph and 
paragraph (a); and
0
b. Removing and reserving paragraph (b).
    The revisions read as follows:


Sec.  233.71  New Jersey.

    * * * This program consists of the following elements, as submitted 
to EPA in the State's program submission:
    (a) Incorporation by reference. The requirements set forth in the 
State statutes and regulations cited in this paragraph are hereby 
incorporated by reference and made a 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. Material is 
incorporated as it exists as of 1 p.m. on March 2, 1994. To enforce any 
edition other than that specified in this section, the 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 the EPA and at the National Archives and 
Records Administration (NARA). Copies of this IBR material also may be 
obtained from the EPA. Contact the EPA at: EPA Docket Center Reading 
Room, WJC West Building, Room 3334, 1301 Constitution Avenue NW, 
Washington, DC 20004 (telephone number: 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 
availability of this IBR material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html or email 
[email protected]. Copies of the materials incorporated by 
reference for New Jersey's program can also be accessed at the New 
Jersey Department of Environmental Protection at 401 East State St., 
Trenton, NJ 08625, or at https://www.epa.gov/cwa404g/us-interactive-map-state-and-tribal-assumption-under-cwa-section-404#nj.
    (1) New Jersey Statutory Requirements Applicable to the Freshwater 
Wetlands Program, 1994.
    (2) New Jersey Regulatory Requirements Applicable to the Freshwater 
Wetlands Program, 1994.
    (b) [Reserved]
* * * * *
[FR Doc. 2023-15284 Filed 8-11-23; 8:45 am]
BILLING CODE 6560-50-P


