103454 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 

1Florida obtained EPA’s approval to assume the 

CWA section 404 program on December 17, 2020. 

On February 15, 2024, the U.S. District Court for the 

District of Columbia vacated EPA’s approval of 

Florida’s program. Center for Biological Diversity v. 

Regan, No. 21–119, 2024 WL 655368 (D.D.C.). 

Accordingly, only the impacts of this rule on the 

Michigan and New Jersey programs are discussed 

in this rule. An appeal of the district court’s 

decision is pending. See No. 24–5101 (D.C. Cir.). 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 123, 124, 232, and 233 

[EPA–HQ–OW–2020–0276; FRL–6682–01– 

OW] 

RIN 2040–AF83 

Clean Water Act Section 404 Tribal and 

State Assumption Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA or the Agency) is 

finalizing the Agency’s first 

comprehensive revisions to the 

regulations governing Clean Water Act 

(CWA) section 404 Tribal and State 

programs since 1988. The primary 

purpose of the revisions is to respond to 

longstanding requests from Tribes and 

States to clarify the requirements and 

processes for the assumption and 

administration of a CWA section 404 

permitting program for discharges of 

dredged and fill material. The revisions 

facilitate Tribal and State assumption 

and administration of CWA section 404, 

consistent with the policy of the CWA 

as described in section 101(b), by 

making the procedures and substantive 

requirements for assumption 

transparent and straightforward. It 

clarifies the minimum requirements for 

Tribal and State programs while 

ensuring flexibility to accommodate 

individual Tribal and State needs. In 

addition, the final rule clarifies the 

criminal negligence standard in the 

CWA section 404 program, as well as 

making a corresponding change in the 

section 402 program. Finally, the final 

rule makes technical revisions, 

including removing outdated references 

associated with the section 404 Tribal 

and State program regulations. 

DATES: This rule is effective on January 

17, 2025. The incorporation by reference 

of certain material listed in the rule is 

approved by the Director of the Federal 

Register as of January 17, 2025. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OW–2020–0276. All 

documents in the docket are listed on 

the https://www.regulations.gov 

website. Although listed in the index, 

some information is not publicly 

available, e.g., confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available in hard copy form. Publicly 

available docket materials are available 

electronically through https:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Christine Maietta, Oceans, Wetlands 

and Communities Division, Office of 

Water (4504–T), Environmental 

Protection Agency, Pennsylvania 

Avenue NW, Washington, DC 20460; 

telephone number: 202–564–1854; 

email address: cwa404g@epa.gov; 

website: https://www.epa.gov/cwa404g. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Executive Summary 

II. General Information 

A. What action is the Agency taking? 

B. What is the Agency’s authority for 

taking this action? 

C. What are the incremental costs and 

benefits of this action? 

III. Background 

A. Statutory and Regulatory History 

B. Need for Rulemaking Revisions 

IV. Final Rule 

A. General 

B. Program Approval 

C. Program Operations 

D. Compliance Evaluation and 

Enforcement 

E. Federal Oversight 

F. Eligible Indian Tribes 

G. Impacts on Existing Programs 

H. Technical Revisions 

I. Incorporation by Reference 

J. Severability 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review; Executive Order 

13563: Improving Regulation and 

Regulatory Review; and Executive Order 

14094: Modernizing Regulatory Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations and Executive Order 14096: 

Revitalizing Our Nation’s Commitment 

to Environmental Justice for All 

K. Congressional Review Act 

I. Executive Summary 

Section 404 of the Clean Water Act 

(CWA) establishes a program to regulate 

the discharge of dredged or fill material 

into navigable waters, defined as 

‘‘waters of the United States.’’ 33 U.S.C. 

1344. The section 404 program, 

introduced in the 1972 amendments to 

the Federal Water Pollution Control Act, 

is generally administered by the U.S. 

Army Corps of Engineers (‘‘Corps’’). 

However, in 1977, Congress amended 

section 404 of the CWA to allow States 

to administer their own dredged or fill 

material permitting programs in certain 

waters of the United States within their 

jurisdiction, subject to EPA approval. Id. 

at 1344(g). A Tribe or State 

administering a section 404 program is 

responsible for permitting discharges of 

dredged and fill material, authorizing 

discharges under general permits, taking 

enforcement actions with respect to 

unauthorized discharges, and ensuring 

compliance with the terms and 

conditions of permits under the Tribe’s 

or State’s authority. EPA maintains 

oversight of Tribal and State section 404 

programs. 

In 1980, EPA promulgated regulations 

to establish procedures and criteria for 

approving or disapproving State 

programs under section 404(g) and for 

oversight of State programs after 

approval. 45 FR 33290 (May 19, 1980). 

EPA revised the regulations in 1988. 53 

FR 20764 (June 6, 1988). The 1988 

revisions updated procedures and 

criteria used in approving, reviewing, 

and withdrawing approval of section 

404 State programs, as well as 

incorporating section 404 program 

definitions and section 404(f)(1) 

exemptions at 40 CFR part 232. 

Although the Agency made targeted 

revisions to 40 CFR part 233 in the early 

1990s and 2000s in light of other 

statutory and regulatory changes (e.g., 

new provisions addressing treatment of 

Tribes in a similar manner as States), 

the Agency has not comprehensively 

revised these regulations since 1988. 

Nearly half of States and a few Tribes 

have expressed some level of interest to 

EPA over time in assuming the section 

404 dredged and fill permit program, 

but only two States (Michigan and New 

Jersey) currently administer the 

program.1 Tribes and States have 

identified several barriers to program 

assumption. One of the barriers they 

identified is uncertainty regarding the 

scope of assumable waters. To address 

this, the Agency convened the 

Assumable Waters Subcommittee in 


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2Available at https://www.epa.gov/cwa-404/ 

submission-assumable-waters-subcommittees-finalreport and in the docket for this final rule, Docket 

ID No. EPA–HQ–OW–2020–0276. 

3See, e.g., letter from Thomas W. Easterly, Chair, 

Water Committee, The Environmental Council of 

States, Lucy C. Edmondson, Vice Chair, The 

Environmental Council of States, to Peter Silva, 

Assistant Administrator, Office of Water, U.S. 

Environmental Protection Agency. February 26, 

2010; Letter from R. Steven Brown, Executive 

Director, The Environmental Council of States, to 

Nancy K. Stoner, Acting Assistant Administrator, 

Office of Water, U.S. Environmental Protection 

Agency. July 22, 2011. Subject: Progress Report and 

Recommended Actions to Further Clarify Section 

404 Assumption Application Requirements and 

Implementation by Tribes and States; Letter from 

Alexandria Dapolito Dunn, ECOS, Sean Rolland, 

ACWA, and Jeanne Christie, ASWM to Nancy K. 

Stoner, Acting Assistant Administrator, Office of 

Water, U.S. Environmental Protection Agency. 

April 30, 2014. 

4The 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. 

5The CWA uses the term ‘‘navigable waters,’’ 

which the statute defines as ‘‘the waters of the 

United States, including the territorial seas.’’ 33 

U.S.C. 1362(7). 

2015 to provide advice and develop 

recommendations as to how EPA could 

best clarify the scope of waters over 

which a Tribe or State may assume 

CWA section 404 permitting 

responsibilities, and the scope of waters 

over which the Corps retains CWA 

section 404 permitting responsibilities. 

The final report of the Subcommittee 

was submitted to the National Advisory 

Council for Environmental Policy and 

Technology (NACEPT), which adopted 

the majority recommendation in the 

Subcommittee report. In its 2017 letter 

to the Administrator conveying this 

recommendation, NACEPT 

recommended that EPA develop 

regulations to clarify assumed and 

retained waters.2

In this rule, the Agency also responds 

to longstanding requests from Tribes 

and States to streamline and clarify the 

requirements and processes for the 

assumption and administration of a 

CWA section 404 program as well as 

EPA oversight.3 The final rule facilitates 

Tribal and State assumption of the 

section 404 program, consistent with the 

policy of the CWA as described in 

section 101(b), by making program 

assumption procedures and 

requirements transparent and 

straightforward and addresses Stateidentified barriers to assumption. The 

final rule clarifies how Tribes and States 

can ensure their program meets the 

minimum requirements of the CWA 

while allowing for flexibility in the way 

these requirements may be met. It 

clarifies the criminal enforcement 

requirements for Tribal and State 

section 404 programs and makes a 

corresponding change in section 402 

Tribal and State program requirements. 

The Agency is also finalizing other 

minor updates and technical revisions 

in 40 CFR parts 232, 233, and part 124 

associated with Tribal and State section 

404 programs. This rule is 

comprehensive in that EPA has updated 

all of the provisions in 40 CFR parts 

232, 233, and 124 associated with Tribal 

and State 404 programs that it 

determined needed to be clarified or 

updated at this time. This rule does not 

reopen any other provisions in parts 

232, 233, or 124. 

II. General Information 

A. What action is the agency taking? 

Assumption enables Tribes and States 

to administer the CWA section 404 

program, placing them in the primary 

decision-making position for permitting 

discharges of dredged or fill material 

into certain waters of the United States. 

EPA is revising and modernizing its 

regulations to clarify requirements for 

Tribal and State program assumption 

and administration, reduce barriers to 

assumption, and make technical 

corrections to facilitate Tribal and State 

assumption and administration of the 

section 404 program. This rule also 

addresses EPA’s procedures and criteria 

for approving, exercising oversight, and 

withdrawing Tribal and State programs 

under CWA section 404(g)–(k) and 

EPA’s implementing regulations at 40 

CFR part 233, with one corresponding 

clarification to CWA section 402 

National Pollutant Discharge 

Elimination System (NPDES) Tribal and 

State section 402 permitting program 

requirements for criminal enforcement 

at 40 CFR 123.27. 

B. What is the Agency’s authority for 

taking this action? 

The authority for this action is the 

Federal Water Pollution Control Act, 33 

U.S.C. 1251 et seq., including sections 

101, 301, 309, 402, 404, 501, and 518. 

C. What are the incremental costs and 

benefits of this action? 

The costs and benefits are 

qualitatively discussed in the Economic 

Analysis for the Clean Water Act 

Section 404 Tribal and State Program 

Regulation. The benefits of the final rule 

are primarily attributable to establishing 

a process to develop a retained waters 

description, providing a program 

effective date, and providing 

opportunities for Tribal input. The 

incremental costs of the final rule are 

primarily attributable to a potential 

burden increase for Tribes to meet 

revised judicial review requirements 

and a potential burden increase to 

Tribes, States, and permittees from 

revisions that expand on existing Tribal 

opportunities to provide input. The 

Agency expects these benefits to justify 

the costs. The economic analysis does 

not quantify these potential incremental 

economic impacts, as there is very 

limited data associated with these 

changes on which to base estimates. 

III. Background 

A. Statutory and Regulatory History 

1. CWA Section 404 

In 1972, Congress amended the 

Federal Water Pollution Control Act 

(FWPCA), or the CWA as it is commonly 

called,4 to address longstanding 

concerns regarding the quality of the 

nation’s waters and the Federal 

Government’s ability to address those 

concerns under existing law. The 

objective of the 1972 statutory scheme is 

‘‘to restore and maintain the chemical, 

physical, and biological integrity of the 

Nation’s waters.’’ 33 U.S.C. 1251(a). To 

achieve this objective, Congress 

provided, ‘‘[e]xcept as in compliance 

with this section and sections 1312, 

1316, 1317, 1328, 1342, and 1344 of this 

title, the discharge of any pollutant by 

any person shall be unlawful.’’ Id. at 

1311(a). A ‘‘discharge of a pollutant’’ is 

defined broadly to include ‘‘any 

addition of any pollutant to navigable 

waters 5 from any point source,’’ which 

includes the discharge of dredged or fill 

materials from a point source into 

waters of the United States. Id. at 

1362(12). 

Section 404 of the CWA establishes a 

permitting program to regulate the 

discharge of dredged or fill material 

from a point source into navigable 

waters, unless the discharge is 

associated with an activity exempt from 

section 404 permitting requirements 

under CWA section 404(f). Id. at 1344. 

Discharges of dredged materials, such as 

the redeposit of dredged material (other 

than incidental fallback), and discharges 

of fill materials, such as rock, sand, or 

dirt, may be associated with activities 

such as site development, erosion 

protection, bridges and piers, linear 

projects (such as pipelines), natural 

resource extraction, shoreline 

stabilization, and restoration projects. 

Section 404(a) of the CWA authorizes 

the Secretary of the Army to issue 

permits after notice and opportunity for 

public hearings to discharge dredged or 

fill material into navigable waters at 

specified disposal sites. Id. at 1344(a). 

The Act specifies that the Secretary of 

the Army acts through the Chief of 


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6See, e.g., H.R. Report No. 95–830 at 52 (1977) 

(‘‘Federal agencies are to cooperate with State and 

local agencies to develop solutions to prevent, 

reduce and eliminate pollution in concert with 

programs for managing water resources’’). See also 

S. Report No. 95–370 at 78 (1977) (‘‘Several States 

have already established separate State agencies to 

control discharges of dredge or fill materials’’ and 

‘‘The amendment encourages the use of a variety of 

existing or developing State and local management 

agencies.’’). See also id. at 11 (‘‘The provision 

solves most real problems with section 404: (a) by 

providing general delegation authority to the States 

. . .’’). The 1977 amendments also introduced 

exemptions and general permits. See 33 U.S.C. 

1344(e)–(f). 

7See 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.’ ’’). 

8See id. at 77 (‘‘[The amendment] provides for 

assumption of the permit authority by States with 

approved programs for control of discharges for 

dredged and fill material in accord with the criteria 

and with guidelines comparable to those contained 

in 402(b) and 404(b)(1).’’). See also id. at 77–78 (‘‘By 

using the established mechanism in section 402 of 

Public Law 92–500, the committee anticipates the 

authorization of State management of the permit 

program will be substantially expedited. At least 28 

State entities which have already obtained approval 

of the national pollutant discharge elimination 

system under the section should be able to assume 

the program quickly.’’). A Tribe or State need not 

have an approved CWA section 402 program prior 

to seeking to assume administration of CWA section 

404. 

9The CWA section 404(b)(1) Guidelines are 

regulations established by EPA pursuant to CWA 

section 404(b)(1) in conjunction with the Corps and 

codified at 40 CFR part 230. They set forth the 

substantive environmental review criteria used to 

evaluate permits for discharges of dredged and/or 

fill material under CWA section 404. 

10The 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. 

11EPA decisions on jurisdiction do not constitute 

approved jurisdictional determinations as defined 

by the Corps regulations at 33 CFR 331.2. EPA has 

final administrative authority over the scope of 

CWA jurisdiction. Administrative Authority to 

Construe § 404 of the Federal Water Pollution 

Control Act (‘‘Civiletti Memorandum’’), 43 Op. 

Att’y Gen. 197 (1979). 

Engineers, and thus the Corps generally 

administers the day-to-day permitting 

program under section 404, unless EPA 

approves a Tribe’s or State’s request to 

do so. See id. at 1344(d), (g). 

The 1977 Amendments made the 

regulation of the discharge of dredged or 

fill material a shared responsibility of 

the States and the Federal Government.6

This partnership is consistent with the 

policy of CWA section 101(b) that 

‘‘preserve[s] and protect[s] the primary 

responsibilities and rights of States to 

prevent, reduce, and eliminate 

pollution.’’ and provides for States to 

‘‘implement the permit programs under 

sections 1342 and 1344 of this title.’’ 7

To facilitate State assumption of the 

section 404 program, Congress 

structured requirements and procedures 

to leverage States’ existing authority to 

administer the CWA section 402 

program.8 See section III.A.4 of this 

preamble for further discussion on the 

specific statutory provisions that apply 

to assumed programs. 

Under the section 404 program, 

discharges of dredged or fill material 

into waters of the United States are 

authorized by individual or general 

permits. Individual permits are 

processed by the permitting agency (i.e., 

the Corps, or a Tribe or State with an 

approved program), which evaluates 

them for consistency with the 

environmental criteria outlined in the 

CWA section 404(b)(1) Guidelines 9 or 

corresponding Tribal or State laws or 

regulations, respectively. General 

permits developed by the permitting 

agency may authorize discharges that 

will have only minimal adverse effects, 

individually and cumulatively, to the 

aquatic environment. General permits 

must be consistent with the 

environmental review criteria set forth 

in the CWA section 404(b)(1) Guidelines 

and may be issued on a nationwide, 

regional, or programmatic basis for 

discharges from specific categories of 

activities. General permits allow 

activities that meet specified conditions 

to proceed with little or no delay. For 

example, a general permit can authorize 

discharges associated with minor road 

activities or utility line backfill, if the 

regulated activities under the general 

permit will cause only minimal adverse 

environmental effects when performed 

separately, will have only minimal 

cumulative adverse effects on the 

environment, and the discharge 

complies with the general permit 

conditions and the CWA section 

404(b)(1) guidelines. 

While the Corps is the Federal 

permitting agency and administers the 

Federal section 404 program on a dayto-day basis, EPA also plays an 

important role in the Federal section 

404 program. Both agencies develop and 

interpret policy and guidance and have 

promulgated section 404 regulations.10

Both EPA and the Corps have 

enforcement authorities pursuant to 

section 404, as specified in sections 

301(a), 309, 404(n), and 404(s) of the 

CWA. In the context of section 404, the 

Corps does the day-to-day work of 

conducting jurisdictional 

determinations,11 making permit 

decisions, ensuring compliance, and 

taking enforcement actions, as necessary 

for the implementation of the Federal 

section 404 program. 

Under section 404, EPA establishes 

environmental criteria used in 

evaluating permit applications (i.e., the 

CWA section 404(b)(1) Guidelines) in 

conjunction with the Corps; determines 

the applicability of section 404(f) 

exemptions; approves and oversees 

Tribal and State assumption of the 

section 404 program (sections 404(g)– 

(l)); may review and comment on 

general permits, authorization under 

general permits, and individual permit 

applications issued by Tribes, States, or 

the Corps; may prohibit, deny, or 

restrict the use of any defined area as a 

disposal site (section 404(c)); and may 

elevate Corps issued permits for 

resolution (section 404(q)). 

2. Scope of Tribal and State CWA 

Section 404(g) Programs 

When Congress enacted the CWA in 

1972, the Corps had long been 

regulating ‘‘navigable waters of the 

United States’’ as defined under the 

Rivers and Harbors Act of 1899 (RHA). 

The CWA defined ‘‘navigable waters’’ to 

mean ‘‘the waters of the United States, 

including the territorial seas.’’ 33 U.S.C. 

1362(7). The Corps’ initial post-CWA 

regulations treated the two 

jurisdictional terms under the two 

different statutes interchangeably. 39 FR 

12115, 12119 (April 3, 1974). In 1975, 

the U.S. District Court for the District of 

Columbia found that ‘‘waters of the 

United States’’ under the CWA exceeds 

the scope of jurisdiction under the RHA 

and ordered the Corps to adopt new 

regulations ‘‘clearly recognizing the full 

regulatory mandate of the Water Act.’’ 

Nat. Res. Def. Council, Inc. v. Callaway, 

392 F. Supp. 685, 686 (D.D.C. 1975). 

In July 1975, the Corps issued new 

regulations expanding the section 404 

program in phases to cover all waters of 

the United States, in compliance with 

the court’s order. 40 FR 31320 (July 25, 

1975). Phase I, which was effective 

immediately, regulated discharges of 

dredged or fill material into coastal 

waters or inland navigable waters of the 

United States and wetlands contiguous 

or adjacent to those waters. Phase II, 

effective on July 1, 1976, addressed 

discharges of dredged or fill material 

into primary tributaries and contiguous 

or adjacent wetlands, as well as lakes. 

Phase III, effective after July 1, 1977, 

addressed discharges of dredged 

material or fill material into ‘‘any 

navigable water [including intrastate 

lakes, rivers and streams . . .]’’ Id. at 

31326. The intent of the phased 

approach was to provide time for the 

Corps to increase staffing and resources 

to implement the expanded jurisdiction 

and workload. Id. at 31321 (‘‘[i]n view 

of man-power and budgetary constraints 

it is necessary that this program be 

phased in over a two year period.’’). 


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12The 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). 

13The House Report is reprinted in 3 Legis. 

History 1977, at 185, 285. 

14The 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). 

15Per the regulations, a copy is also provided to 

the National Marine Fisheries Service. See 40 CFR 

233.15(d). 

Thus, the phases did not mean all of the 

waters in the final regulation were not 

waters of the United States, but rather 

reflected when the Corps would have 

capacity to begin regulating activities 

within each type of jurisdictional water. 

Some in Congress were concerned 

about breadth of the new interpretation 

of ‘‘waters of the United States’’ under 

the Corps’ CWA dredged and fill 

regulatory program. In 1976, the House 

of Representatives passed H.R. 9560, 

which would have redefined the CWA 

term ‘‘navigable waters’’ specifically for 

the section 404 program (but not the rest 

of the CWA) as follows: 

The term ‘‘navigable waters’’ as used in 

this section shall mean all waters which are 

presently used, or are susceptible to use in 

their natural condition or by reasonable 

improvement as a means to transport 

interstate or foreign commerce shoreward to 

their ordinary high water mark, including all 

waters which are subject to the ebb and flow 

of the tide shoreward to their mean high 

water mark (mean higher high water mark on 

the west coast). 

H.R. Rep. No. 94–1107, at 63 (1976). 

The House Committee explained that 

the new definition would mirror the 

longstanding RHA section 10 definition 

of ‘‘navigable waters of the United 

States,’’ except that it would omit the 

‘‘historical test’’ of navigability. Id. at 

19. The House thought that discharges 

of dredged or fill material occurring in 

‘‘waters other than navigable waters of 

the United States . . . are more 

appropriately and more effectively 

subject to regulation by the States.’’ Id. 

at 22. 

The Senate disagreed. It declined to 

redefine ‘‘navigable waters’’ for 

purposes of the section 404 program and 

the House bill was not enacted into law. 

Instead, the Senate addressed the desire 

for State control by passing a bill 

allowing States to assume section 404 

permitting authority, subject to EPA 

approval, in Phase II and III waters (as 

defined in the Corps’ 1975 regulations 

quoted above). S. Rep. No. 95–370, at 75 

(1977).12 After assumption, the Corps 

would retain section 404 permitting 

authority in Phase I waters. This general 

approach was codified in the final bill, 

H.R. 3199, referred to as the 1977 CWA 

Amendments: it did not change the 

definition of ‘‘navigable waters’’ for the 

section 404 program, but it allowed 

States to assume permitting authority in 

‘‘phase 2 and 3 waters after the approval 

of a program by [EPA].’’ H.R. Rep. No. 

95–830, at 101 (1977).13 The final 

amendments included a parenthetical 

phrase in section 404(g)(1) that defined 

Corps-retained waters using the same 

language that the House Committee had 

used in its effort to limit the Corps’ 

jurisdiction, other than waters that were 

historically used as a means to transport 

interstate or foreign commerce but no 

longer do so, and with the addition of 

‘‘wetlands adjacent thereto.’’ H.R. Rep. 

No. 95–830, at 39. The preamble to the 

Corps’ 1977 regulations described 

Corps-retained waters under section 

404(g)(1) as ‘‘waters already being 

regulated by the USACE,’’ i.e., those 

waters the Corps regulated under 

section 10 of the RHA, ‘‘plus all 

adjacent wetlands to these waters.’’ 42 

FR 37122, 37124 (July 19, 1977). The 

legislative history suggests that the 

Senate expected widespread assumption 

of the section 404 program, leaving the 

Corps to regulate only RHA section 10 

waters that are currently used as a 

means to transport interstate or foreign 

commerce, and adjacent wetlands. S. 

Rep. No. 95–370, at 77–78, reprinted in 

4 Legis. History 1977, at 710–11; see 33 

U.S.C. 1344(g)(1). 

3. Overview of CWA Section 404(g) 

Statutory Requirements for Program 

Administration and Implementation 

Congress laid out general procedures 

for Tribal 14 and State submissions and 

EPA’s approval, upon which EPA has 

further elaborated in regulation, as 

discussed in section III.A.4 of this 

preamble below. Pursuant to section 

404(g), a Tribe or State seeking to 

assume the section 404 program must 

submit to the EPA Administrator a full 

and complete description of the 

proposed program and a statement from 

the attorney general (or attorney for 

Tribal or State agencies that have 

independent legal counsel) that it has 

adequate authority to establish and 

carry out the proposed program under 

Tribal or State law. 33 U.S.C. 1344(g)(1). 

The Administrator has up to ten days 

after the receipt of the program 

description and attorney general 

statement to provide copies to the 

Secretary of the Army and Secretary of 

the Interior (acting through the Director 

of the United States Fish and Wildlife 

Service), who in turn have up to 90 days 

from the Administrator’s receipt of a 

complete program description and 

attorney general statement to provide 

comments to the Administrator.15 Id. at 

1344(g)(2)–(3). 

Section 404(h) of the Act identifies 

eight authorities EPA must ensure a 

Tribe or State has prior to approving a 

request to assume and administer a 

section 404 program. Id. at 

1344(h)(1)(A)–(H). First, a Tribe or State 

must have the authority to issue permits 

that apply and assure compliance with 

the requirements of section 404 

(including but not limited to the CWA 

section 404(b)(1) Guidelines); issue 

permits for a set duration which cannot 

exceed five years; and terminate or 

modify an issued permit. Id. at 

1344(h)(1)(A). Second, the Tribe or State 

must have the authority to inspect, 

monitor, enter and require reports in 

association with issued permits to the 

same extent as required under section 

1318 of the Act. Id. at 1344(h)(1)(B). 

Third, the Tribe or State must have the 

authority to provide public notice, 

provide an opportunity to comment on 

proposed permits, and provide an 

opportunity for a public hearing. Id. at 

1344(h)(1)(C). Fourth, the Tribe or State 

must have authority to assure EPA 

receives notice and a copy of each 

application (unless review is waived). 

Id. at 1344(h)(1)(D). Fifth, the Tribe or 

State must have authority to provide 

notice to Tribes and States whose waters 

may be affected by the permit and for 

the affected Tribe or State to provide 

written recommendations. Id. at 

1344(h)(1)(E). Sixth, a Tribe or State 

must also have the authority to assure 

no permit will be issued if it would 

substantially impede anchorage and 

navigation of the navigable waters. Id. at 

1344(h)(1)(F). Seventh, the Tribe or 

State must have authority to abate 

violations of permits and the program— 

including both civil and criminal 

penalties as well as other ways and 

means of enforcement. Id. at 

1344(h)(1)(G). And lastly, the Tribe or 

State must have authority to assure 

continued coordination with Federal 

and Federal-State water-related 

planning and review processes. Id. at 

1344(h)(1)(H). 

If the EPA Administrator determines 

that a Tribe or State that has submitted 

a program request under section 

404(g)(1) has the authority set forth in 

section 404(h)(1) of the CWA, then the 

Administrator ‘‘shall approve’’ the 

Tribe’s or State’s request to assume the 

section 404 program. Id. at 1344(h)(2). If 

the Administrator fails to make a 

determination with respect to any 


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16Legislative history makes clear that Congress 

did not intend Tribal or State assumption under 

section 404(g) to be a delegation of the permitting 

program. H.R. Rep. No. 95–830 at 104 (1977). (‘‘The 

Conference substitute provides for the 

administration by a State of its own permit program 

for the regulation of the discharge of dredged or fill 

material. . . . The conferees wish to emphasize 

that such a State program is one which is 

established under State law and which functions in 

lieu of the Federal program. It is not a delegation 

of Federal authority.’’) The conference report is 

available at https://www.epa.gov/sites/production/ 

files/2015-11/documents/1977_conf_rept.pdf. 

17 In 1983, EPA reorganized the presentation of 

the permit programs in the CFR, including moving 

the regulations for 404 State programs to their 

current location at 40 CFR part 233, but made no 

substantive changes to any of the affected sections. 

48 FR 14146, 14208 (April 1, 1983). 

18The 1988 regulations essentially recodified at 

40 CFR part 232 the section 404 program definitions 

and section 404(f)(1) permit exemptions in a new, 

separate part to eliminate any confusion about their 

applicability. The section 404 program definitions 

at 40 CFR part 232 apply to both the Federal and 

State administered programs. 

19When the term ‘‘State Program’’ is used in the 

regulations, it refers to an approved program run by 

any of the entities described in the definition of 

‘‘State,’’ including Tribes. 58 FR 8183 (‘‘State means 

any of the 50 States, the District of Columbia, 

Guam, the Commonwealth of Puerto Rico, the 

Virgin Islands, American Samoa, the 

Commonwealth of the Northern Mariana Islands, 

the Trust Territory of the Pacific Islands, or an 

Indian Tribe, as defined in this part, which meet the 

requirements of § 233.60. For purposes of this part, 

the word State also includes any interstate agency 

requesting program approval or administering an 

approved program.’’). 

20Florida obtained EPA’s approval to assume the 

CWA section 404 program on December 17, 2020. 

On February 15, 2024, the U.S. District Court for the 

District of Columbia vacated EPA’s approval of 

Florida’s program. Center for Biological Diversity v. 

Regan, No. 21–119, 2024 WL 655368 (D.D.C.). An 

appeal of the district court’s decision is pending. 

See No. 24–5101 (D.C. Cir.). 

program request submitted by a Tribe or 

State within 120 days after the date of 

receipt of the request, the program shall 

be deemed approved. Id. at 1344(h)(3). 

The Act also provides for EPA to 

withdraw assumed programs that are 

not administered in accordance with the 

requirements of the Act. Id. at 1344(i). 

A Tribe or State assuming the section 

404 program must have authority under 

Tribal or State law to assume, 

administer, and enforce the program; 

EPA’s approval does not delegate 

authority to issue a permit on behalf of 

the Federal Government. By assuming 

administration of the section 404 

program under section 404(g), an 

eligible Tribe or State takes on the 

primary responsibility of permitting 

discharges of dredged and/or fill 

material into certain waters of the 

United States within its jurisdiction.16

For section 404 permitting purposes, the 

Tribe or State must exercise jurisdiction 

over all assumed waters subject to the 

CWA except those waters to be retained 

by the Corps. 33 U.S.C. 1344(g). The 

Corps retains CWA section 404 

permitting authority for all nonassumed waters as well as RHA section 

10 permitting authority in all waters 

subject to RHA section 10. For example, 

States generally do not assume CWA 

section 404 authority over Tribal waters 

or waters in lands of exclusive Federal 

jurisdiction. Tribal or State programs 

can also regulate waters that are 

retained by the Corps, or waters that are 

not waters of the United States, under 

Tribal or State law, but the Corps will 

remain the CWA 404 permitting 

authority for retained waters. 

4. CWA Section 404 Tribal and State 

Program Regulations 

In 1980, in response to the 1977 CWA 

Amendments, EPA promulgated 

regulations to establish procedures and 

criteria to approve or disapprove State 

programs under section 404(g) and 

monitor State programs after approval. 

45 FR 33290 (May 19, 1980).17 On June 

6, 1988, EPA revised these procedures 

and criteria used in approving, 

reviewing, and withdrawing approval of 

section 404 State programs and codified 

them at 40 CFR part 233. 53 FR 20764 

(June 6, 1988). The 1988 regulations 

provided States with flexibility in 

program design and administration 

while still meeting the requirements and 

objectives of the CWA. They also 

incorporated section 404 program 

definitions and section 404(f)(1) 

exemptions at 40 CFR part 232.18

The regulations at 40 CFR part 233 

described the assuming Tribe’s or 

State’s program requirements, EPA 

responsibilities, approval and oversight 

of assumed programs, and requirements 

for review, modification, and 

withdrawal of Tribal and State programs 

(as necessary). Subpart B of the 404 

State Program Regulations sets forth the 

elements of program approval, 

including the program description, the 

Attorney General’s statement, the 

Memorandum of Agreement between 

the Tribe or State and EPA, and the 

Memorandum of Agreement between 

the Tribe or State and the Secretary. It 

also establishes procedures for 

approving and revising Tribal or State 

programs. 40 CFR 233.10 through 

233.16. Subpart C addresses Permit 

Requirements, subpart D lays out 

Program Operation Requirements, 

subpart E establishes requirements for 

Compliance Evaluation and 

Enforcement, and subpart F discusses 

Federal Oversight authority. Id. at 

233.20–53. In subpart G, EPA lays out 

requirements and procedures for Tribal 

assumption, id. at 233.60–62, and 

subpart H codifies EPA’s approval of 

Michigan and New Jersey’s programs 

and incorporates certain State laws by 

reference. Id. at 233.70–71. These 

regulations implement key principles of 

Tribal and State assumption, including 

that an assumed program must be 

consistent with and no less stringent 

than the Act and implementing 

regulations, allow for public 

participation, ensure consistency with 

the CWA 404(b)(1) Guidelines, and have 

adequate enforcement authority. 

Since 1988, the Agency has made 

several targeted revisions and additions 

to the CWA section 404 Tribal and State 

program regulations at 40 CFR part 233. 

On February 13, 1992, EPA finalized a 

rule amending the regulations to reflect 

the newly created Environmental 

Appeals Board in Agency adjudications, 

including revising section 233.53 

related to withdrawal. 57 FR 5320 

(February 13, 1992). In 1993, the Agency 

added subpart G to 40 CFR part 233 

pursuant to CWA section 518, which 

required EPA to promulgate regulations 

specifying how Indian Tribes may 

qualify for treatment in a similar 

manner as a State (TAS) for purposes of 

assuming the section 404 program. 58 

FR 8172 (February 11, 1993).19 The 

1993 rule also revised 40 CFR part 232 

by adding new definitions for ‘‘Federal 

Indian reservation,’’ ‘‘Indian Tribe,’’ and 

‘‘States.’’ Id. The Agency further revised 

the subpart G regulations regarding 

Tribal eligibility at sections 233.60, 

233.61, and 233.62 in 1994 to improve 

and simplify the process for Tribes to 

obtain EPA approval to assume the 

section 404 program. 59 FR 64339, 

64345 (December 14, 1994). Under that 

rule, known as the Simplification Rule, 

a Tribe does not need to prequalify for 

TAS before requesting to assume the 

section 404 program. Instead, it can 

establish its TAS eligibility at the 

program approval stage, subject to EPA 

notice and comment procedures for 

State program approval. Id. at 64339–40. 

A 2005 rule on cross-media electronic 

reporting added section 233.39 on 

electronic reporting. 70 FR 59848 

(October 13, 2005). EPA also codified 

the approval of the Michigan program 

on October 2, 1984 (49 FR 38947) and 

the New Jersey program on March 2, 

1994 (59 FR 9933) in subpart H of 40 

CFR part 233. 

B. Need for Rulemaking Revisions 

Although nearly half of the States and 

a few Tribes have expressed some level 

of interest to EPA over time in assuming 

the Federal section 404 dredged and fill 

permit program, only two States 

currently administer the program.20 In 

2010 and 2011 letters to EPA, the 

Environmental Council of States 


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21Letter from Thomas W. Easterly, Chair, Water 

Committee, The Environmental Council of States, 

Lucy C. Edmonson, Vice Chair, The Environmental 

Council of States, to Peter Silva, Assistant 

Administrator, Office of Water, U.S. Environmental 

Protection Agency. February 26, 2010; Letter from 

R. Steven Brown, Executive Director, The 

Environmental Council of States, to Nancy K. 

Stoner, Acting Assistant Administrator, Office of 

Water, U.S. Environmental Protection Agency. July 

22, 2011. Subject: Progress Report and 

Recommended Actions to Further Clarify Section 

404 Assumption Application Requirements and 

Implementation by Tribes and States. 

22Letter from Alexandria Dapolito Dunn, ECOS, 

Sean Rolland, ACWA, and Jeanne Christie, ASWM, 

to Nancy Stoner, Acting Assistant Administrator, 

Office of Water, U.S. Environmental Protection 

Agency. April 30, 2014. 

23Available at https://www.epa.gov/cwa-404/ 

submission-assumable-waters-subcommittees-finalreport and in the docket for the final rule, Docket 

ID No. EPA–HQ–OW–2020–0276. 

24Available at https://www.reginfo.gov/public/ 

do/eAgendaViewRule?pubId=201804&RIN=2040- 

AF83. 

recommended further steps to 

encourage Tribal and State assumption 

of the program, remove barriers to 

assumption, and improve the efficiency 

of the program.21 While some Tribes 

and States have considered assumption, 

they have expressed to EPA the need for 

further clarification regarding the 

regulations, including which waters a 

Tribe or State may assume and which 

waters the Corps retains. For example, 

in a 2014 letter to then-Acting Assistant 

Administrator Nancy Stoner,22 State 

associations asked EPA to clarify the 

scope of assumable waters, citing 

uncertainty on this issue as a barrier to 

assuming the program. 

In 2015, EPA formed the Assumable 

Waters Subcommittee under the 

auspices of the National Advisory 

Council for Environmental Policy and 

Technology (NACEPT) to provide 

advice and develop recommendations as 

to how EPA could best clarify the scope 

of waters over which a Tribe or State 

may assume CWA section 404 

permitting responsibilities, and the 

scope of waters over which the Corps 

retains CWA section 404 permitting 

responsibilities. The Subcommittee 

included 22 members representing 

States, Tribes, Federal agencies, 

industry, environmental groups, Tribal 

and State associations, and academia. 

The Subcommittee presented its 

recommendations to NACEPT on May 

10, 2017. NACEPT endorsed the 

Subcommittee report in its entirety and 

submitted it to former Administrator 

Scott Pruitt on June 2, 2017, with 

additional notations and 

recommendations, such as a preference 

for clarity through regulation. The 

‘‘Final Report of the Assumable Waters 

Subcommittee, May 2017,’’ 

recommended that EPA develop 

policies, guidance, and regulations to 

clarify assumed and retained waters.23

In addition to the needs identified by 

Tribes and States, the Agency also 

recognized the need for other revisions, 

including several technical revisions to 

the regulations. For example, while the 

1988 regulations recognized that the 

part 124 regulations do not apply to 

Tribal or State section 404 programs, the 

Agency did not make conforming 

revisions. The regulation also required 

other revisions throughout 40 CFR part 

233 to update cross-references, ensure 

consistent use of terminology, and 

facilitate efficient program operation. 

On June 11, 2018, the Agency 

published its 2018 Spring Unified 

Agenda of Regulatory and Deregulatory 

Actions 24 announcing the Agency was 

considering a rulemaking to provide the 

first comprehensive revisions to the 

section 404 Tribal and State program 

regulations since 1988. 

In September 2018, the Agency sent 

letters to Tribal leaders and State 

governors announcing opportunities for 

Tribes and States to provide input on 

areas of the regulation that could benefit 

from additional clarity and revision. 

Tribes and States provided input on 

various topics at Tribal and State 

engagement sessions, including requests 

for flexibility in assuming and 

administering the section 404 program 

and clarification on retained and 

assumed waters. See section V.E and F 

of this preamble for further discussion 

on Tribal and State engagement in this 

rule effort. In 2023, EPA held 

informational webinars for States on 

January 24 and for Tribes on January 2– 

5 and January 31. At these webinars, 

EPA provided Tribes and States with an 

update on the rulemaking effort and an 

overview of previously received Tribal 

and State input to EPA. EPA did not 

seek additional input from Tribes or 

States at the January 2023 webinars. 

The Agency announced a proposed 

rule to revise the CWA section 404 

Tribal and State program regulations on 

July 19, 2023; the Agency also posted a 

draft of the proposed rule on its website. 

On August 14, 2023, the Agency 

published the proposed rulemaking in 

the Federal Register, 88 FR 55276, 

which initiated a 60-day public 

comment period that lasted through 

October 13, 2023. EPA held a virtual 

public hearing on September 6, 2023, 

and hosted input sessions for interested 

State and Tribal parties throughout 

August 2023, including one State input 

session on August 24, 2023, and two 

Tribal input sessions on August 15 and 

30, 2023. In finalizing the proposed 

rule, the Agency reviewed 44 comments 

received on the proposed rulemaking, in 

addition to input received during preproposal, at the public hearing, and at 

the Tribal and State input sessions. 

Commenters provided a range of 

feedback on the proposal. The Agency 

discusses comments received and 

responses in the applicable sections of 

this preamble to the rule. A complete 

response to comments document is 

available in the docket for the rule 

(Docket ID No. EPA–HQ–OW–2020– 

0276). 

The rule addresses many of the issues 

raised by Tribes and States as challenges 

to assuming section 404, as well as 

drawing from EPA’s experience working 

with Tribes and States pursuing 

assumption and in program oversight. 

IV. Final Rule 

EPA is finalizing revisions to the 

CWA section 404 Tribal and State 

program regulations at 40 CFR part 233 

to provide additional clarity on conflict 

of interest prohibitions, program 

approval procedures and requirements, 

permit requirements, program 

operations, compliance evaluation and 

enforcement, Federal oversight, and 

Tribal provisions. EPA is also finalizing 

revisions to the criminal enforcement 

requirements in 40 CFR 123.27 and 40 

CFR 233.41, which apply to Tribes and 

States that administer the CWA section 

402 National Pollutant Discharge 

Elimination System (NPDES) permitting 

program as well as the section 404 

program. 

This section of this preamble 

addresses changes to seven sub-sections 

in the existing subpart structure of the 

40 CFR part 233 regulations: Subpart 

A—General, Subpart B—Program 

Approval, Subpart C—Permit 

Requirements, Subpart D—Program 

Operations, Subpart E—Compliance 

Evaluation and Enforcement, Subpart 

F—Federal Oversight, and Subpart G— 

Eligible Indian Tribes. Each sub-section 

contains topics covered under that 

subpart of the regulation. Within each 

topic, this preamble includes (1) an 

overview of the topic and its relevant 

final rule provision(s) and (2) a 

summary of the Agency’s final rule 

rationale and public comments. Where 

applicable, some topics also address 

implementation considerations for the 

final rule provisions. This preamble is 

structured in a manner intended to 

clearly convey the relevant changes to 

the regulatory text. Following this 

preamble discussion on the final rule 

provisions, this section of this preamble 

also includes four sub-sections that 

discuss the impact of the final rule on 

existing programs, technical revisions, 


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25One territory, the Virgin Islands, and all states 

except Massachusetts, New Hampshire, New 

Mexico, are authorized to implement at least some 

portion of the NPDES program. See https://

www.epa.gov/npdes/npdes-state-programinformation. 

incorporation by reference, and 

severability. 

A. General 

1. Conflict of Interest 

a. Overview and What the Agency Is 

Finalizing 

The Agency’s 1988 regulations for the 

section 404 Tribal and State program 

provided a general prohibition that 

public officers or employees with direct 

personal or pecuniary interests in a 

decision must make the interest known 

and not participate in such decision. In 

the proposal to this rule, the Agency 

proposed to clarify to whom the 

provision applies. The proposal 

specified that individuals who exercise 

responsibilities over section 404 

permitting and programs may not be 

involved in any matters in which they 

have a direct personal or pecuniary 

interest. The proposal also clarified that 

this provision applies to decisions by 

the Tribal or State permitting agency as 

well as any entity that reviews decisions 

of the agency. 

After reviewing public comments, the 

Agency is finalizing the revisions to the 

conflict of interest provision as 

proposed. EPA is also affirming the 

importance of ensuring public 

confidence when a Tribe or State issues 

a permit to one of its agencies or 

departments, though has determined 

that codifying specific processes or 

requirements to address self-issuance of 

permits by assuming Tribes and States 

is unnecessary. This provision does not 

address or affect Federal or State court 

review of permitting actions. 

b. Summary of Final Rule Rationale and 

Public Comment 

CWA section 404 does not require 

EPA to establish guidelines on conflicts 

of interest for Tribal or State programs. 

In contrast, the CWA requires EPA to 

establish guidelines for section 402 

State programs that prohibit any entity 

which approves permit applications 

from having members who receive, or 

have during the previous two years 

received, a significant portion of their 

income from permit holders or 

applicants for a permit. 33 U.S.C. 

1314(i)(D). EPA’s section 402 

regulations, accordingly, provide that 

‘‘State NPDES programs shall ensure 

that any board or body which approves 

all or portions of permits shall not 

include as a member any person who 

receives, or has during the previous 2 

years received, a significant portion of 

income directly or indirectly from 

permit holders or applicants for a 

permit.’’ 40 CFR 123.25(c). The 

provision then defines the terms ‘‘board 

or body,’’ ‘‘significant portion of 

income,’’ ‘‘permit holders or applicants 

for a permit,’’ and ‘‘income.’’ See id. at 

123.25(c)(1). 

In 1984, EPA proposed to codify the 

section 402 provision in its revisions to 

the section 404 Tribal and State program 

regulations. 49 FR 39012 (October 2, 

1984). However, EPA ultimately 

decided not to hold Tribe and State 

section 404 programs to the same 

conflict of interest standards as State 

NPDES programs because of practical 

differences between the two programs. 

53 FR 20764, 20766 (June 6, 1988). At 

that time, EPA noted that NPDES 

discharges are usually long-term 

discharges, often from certain specific 

types of industrial or municipal 

facilities. Id. In contrast, discharges 

authorized by section 404 typically tend 

to be one-time discharges and generated 

by a broader range of dischargers than 

NPDES, ‘‘ranging from private citizens 

to large corporations, from small fills for 

boat docks or erosion prevention to 

major development projects.’’ Id. EPA 

concluded that an absolute ban on 

anyone with a financial interest in a 

permit from serving on a board that 

approves permits is likely to be more 

difficult to comply with under the 

section 404 program because so many 

people would be considered to be 

financially interested in section 404 

permits and therefore eliminated from 

the pool of potential board members. Id. 

Instead, EPA provided a general 

prohibition that public officers or 

employees with such interests in a 

decision shall make the interest known 

and not participate in such decision. Id. 

Similar distinctions between the 

sections 402 and 404 programs apply 

today. For example, if an individual 

needed a section 404 permit for the 

discharge of fill material into one lake 

to install a boat ramp at one point in 

time, EPA does not think it necessary to 

permanently preclude that individual 

from participating in any section 404- 

related decision-making. The Agency 

proposed to revise the section 404 

conflict of interest provision, however, 

to further clarify to whom the provision 

applies. The purpose of this clarification 

was to ensure that individuals who 

exercise responsibilities over section 

404 permitting and programs are not 

involved in any matters in which they 

have a direct personal or pecuniary 

interest. The proposal also clarified that 

this provision applies to any section 

404-related decisions by the agency as 

well as any entity that reviews these 

decisions. For example, if a Tribe or 

State has established boards or other 

bodies to advise, oversee, or review 

appeals of agency decisions, members of 

such boards would be subject to this 

conflict of interest provision even if 

they are not officers or employees of the 

Tribe or State agency. 

Some commenters expressed concerns 

that the change in the conflict of interest 

provision weakens or injects uncertainty 

into the section 404 assumption process. 

A commenter argued that the language 

is too ‘‘vague and [its] broad articulation 

makes it unclear to whom, exactly, this 

provision applies.’’ EPA disagrees; as 

explained above, the final rule more 

clearly articulates who must provide 

notification of potential conflicts of 

interest and recuse themselves from any 

section 404 program decision for which 

they have a conflict of interest, not just 

decisions that exceed a monetary 

threshold. In EPA’s view, this new 

language is clear and does not create 

uncertainty; EPA presumes that any 

person participating in a matter subject 

to a section 404 decision by the agency 

will be aware that they are doing so, and 

they should also be aware if they have 

personal or pecuniary interests in that 

matter. If a person is uncertain as to 

whether the conflict of interest 

provision applies, they can always seek 

guidance from the Tribal or State agency 

or from EPA. 

With respect to Tribal and State 

permits being issued for Tribal or State 

projects, the Agency has determined 

that distinct procedures to address these 

types of permits are unnecessary, as all 

permits must comply with the section 

404(b)(1) Guidelines and other 

requirements of CWA section 404. The 

CWA does not distinguish between a 

Tribe or State with an approved 

program as a permittee and other 

permittees. Most State permitting 

entities have experience issuing permits 

to other agencies within that respective 

State. For example, States that 

implement the section 402 program 

routinely issue NPDES permits to 

various departments and agencies 

within that State.25 To the extent the 

courts have considered this matter, they 

have found no legal impediment to 

issuance of an NPDES permit by an 

authorized State to itself. See, e.g., West 

Virginia Highlands Conservancy, Inc. v. 

Huffman, 625 F.3d 159 (4th Cir. 2010). 

EPA is unaware of any significant 

concerns arising from the issuance of 

NPDES permits by States to other 

agencies or departments within that 

respective State. 


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Likewise, to EPA’s knowledge, the 

agencies in Michigan and New Jersey 

have been issuing section 404 permits to 

authorize the agencies’ own activities 

and activities of other agencies within 

those States for many years without 

encountering any significant issues. The 

Florida Department of Environmental 

Protection did the same between 

December 2020 and February 2024 

without significant conflict of interest 

issues, to EPA’s knowledge. A common 

example of self-issuance by one State 

agency to another is when the State 

water quality agency issues a permit to 

the State department of transportation 

for aquatic resource impacts associated 

with the construction of a State road. 

Similarly, the Corps issues CWA section 

404 permits to other Federal agencies, 

and EPA does not have—nor did 

commenters provide—any information 

that raises concerns on the part of EPA 

about the integrity and neutrality of 

these intra-governmental permitting 

processes. 

The Agency did not propose any 

regulatory text on the self-issuance of 

permits. The Agency received one 

comment on this issue, expressing 

concern that conflicts of interest are 

presented when private developers or 

State agencies provide funding to the 

permitting agencies, which in turn 

allow the permitting agency to employ 

permit processers that will handle the 

permit applications submitted by the 

same private developers or State 

agencies. In effect, the commenter 

stated, the private developer or nonpermitting State agency becomes the 

employer of their permit processor. This 

rule does require that all permits must 

comply with the section 404(b)(1) 

Guidelines and other requirements of 

CWA section 404. Tribes and States that 

assume the CWA section 404 program 

must also follow public notice and 

comment procedures for permit 

applications, thereby ensuring 

transparency and providing the public 

with an opportunity to submit input to 

address any concerns. Additionally, the 

CWA provides EPA with oversight 

authority of Tribes’ and States’ assumed 

section 404 permits, allowing Federal 

review of assumed programs in general 

and applications for particular proposed 

permits, including self-issued permits. 

To the extent EPA has concerns that 

permits are not compliant, whether 

based on its own analysis or based on 

comments from other agencies or 

interested parties, EPA may object to the 

issuance of permits. 

Tribes, States, and EPA have the 

discretion to implement additional 

measures if, in a particular 

circumstance, they desire to further 

ensure public confidence that certain 

permits are consistent with the CWA 

and not the subject of special 

considerations. For example, an 

assuming Tribe or State could separate 

its permit-issuing function from 

departments or offices that apply for 

and receive permits or expand public 

participation requirements for selfissued permits. EPA and an assuming 

Tribe or State could also agree in the 

Memorandum of Agreement that EPA 

would exercise heightened oversight 

(i.e., would not waive review) over 

permits issued by and to Tribal or State 

agencies or departments. EPA 

encourages Tribes and States to 

implement measures to ensure 

transparency in the permitting process 

based on the specific structures and 

procedures of their agencies. For all of 

these reasons, EPA does not find that it 

is necessary to include in this regulation 

any additional processes or 

requirements to address self-issuance of 

permits by assuming Tribes and States. 

2. Compliance With the CWA 404(b)(1) 

Guidelines 

a. Overview and What the Agency Is 

Finalizing 

The CWA section 404(b)(1) 

Guidelines are the substantive 

environmental criteria used to evaluate 

discharges of dredged and/or fill 

material under CWA section 404. EPA 

may approve a Tribal or State request 

for assumption only if EPA determines, 

among other things, that the Tribe or 

State has authority to issue permits that 

comply with the CWA 404(b)(1) 

Guidelines. 33 U.S.C. 1344(h)(1)(A)(i). 

The regulations already require that 

CWA section 404 permits issued by an 

assuming Tribe or State must comply 

with the CWA 404(b)(1) Guidelines. 

However, stakeholders have requested 

clarity regarding the way in which a 

Tribe or State wishing to assume the 

CWA section 404 program can 

demonstrate that it has authority to 

issue permits that ‘‘apply, and assure 

compliance with’’ the CWA 404(b)(1) 

Guidelines. See id. EPA did not propose 

any new regulatory text on compliance 

with the CWA 404(b)(1) Guidelines, 

because the Agency did not want to 

unintentionally constrain how Tribes 

and States can demonstrate their 

authority. But in response to 

stakeholder requests, EPA discussed 

various approaches that Tribes and 

States can undertake to demonstrate that 

they have sufficient authority to issue 

permits that apply and assure 

compliance with the CWA 404(b)(1) 

Guidelines in this preamble to the 

proposed rule. After reviewing public 

comments, the Agency is finalizing its 

proposed approach. 

b. Summary of Final Rule Rationale and 

Public Comment 

Pursuant to CWA section 

404(h)(1)(A)(i), EPA may approve a 

Tribal or State request for assumption 

only if EPA determines, among other 

things, that the Tribe or State has 

authority ‘‘[t]o issue permits which—(i) 

apply, and assure compliance with, any 

applicable requirements of this section, 

including, but not limited to, the 

guidelines established under subsection 

[404](b)(1). . . .’’ The CWA 404(b)(1) 

Guidelines also direct that ‘‘no 

discharge of dredged or fill material 

shall be permitted’’ if there is a less 

environmentally damaging practicable 

alternative, so long as the alternative 

does not have other significant adverse 

environmental consequences (40 CFR 

230.10(a)); if it would cause or 

contribute to violations of applicable 

water quality standards taking into 

account disposal site dilution and 

dispersion (40 CFR 230.10(b)(1)); if it 

would violate any applicable toxic 

effluent standard or prohibition (40 CFR 

230.10(b)(2)); if it would cause or 

contribute to significant degradation of 

waters of the United States (40 CFR 

230.10(c)); or if it would jeopardize the 

continued existence of listed 

endangered or threatened species under 

the Endangered Species Act of 1973 or 

result in the likelihood of the 

destruction or adverse modification of 

designated critical habitat (40 CFR 

230.10(b)(3)); or unless appropriate and 

practicable steps have been taken to 

minimize potential impacts of the 

discharge on the aquatic ecosystem. See 

40 CFR 230 Subpart H; see also section 

IV.B.4 of this preamble for further 

discussion on mitigation. 

Consistent with CWA section 

404(h)(1)(A)(i), the section 404 Tribal 

and State program regulations require 

that assuming Tribes and States may not 

impose conditions less stringent than 

those required under Federal law (40 

CFR 233.1(d)); that Tribes and States 

may not issue permits that do not 

comply with the requirements of the Act 

or this part of the regulations, including 

the CWA 404(b)(1) Guidelines (40 CFR 

233.20(a)); that ‘‘[f]or each permit the 

Director shall establish conditions 

which assure compliance with all 

applicable statutory and regulatory 

requirements, including the 404(b)(1) 

Guidelines . . .’’ (40 CFR 233.23(a)); 

and that ‘‘The Director will review all 

applications for compliance with the 

404(b)(1) Guidelines and/or equivalent 

State environmental criteria as well as 

any other applicable State laws or 


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regulations’’ (40 CFR 233.34(a)). 

Because the regulations already require 

that CWA section 404 permits issued by 

an assuming Tribe or State must comply 

with the CWA 404(b)(1) Guidelines, 

EPA did not propose adding to the 

regulatory text. 

Several commenters asserted that the 

only way to ensure that Tribes and 

States have sufficient authority to issue 

permits that apply and assure 

compliance with the CWA 404(b)(1) 

Guidelines is to require Tribes and 

States to adopt the CWA 404(b)(1) 

Guidelines verbatim or incorporate 

them by reference into the Tribal or 

State program. To the extent these 

commenters assert that adoption or 

incorporation is the most 

straightforward way for a Tribe or State 

to demonstrate sufficient authority, EPA 

agrees. However, while a Tribe or State 

may choose to adopt verbatim or 

incorporate into their programs by 

reference the CWA 404(b)(1) Guidelines 

or other Federal requirements, nothing 

in the CWA requires that they do so. See 

49 FR 39012, 39015 (October 2, 1984); 

cf. 40 CFR 123.25(a) Note. 

Requiring Tribes and States to adopt 

or incorporate the CWA 404(b)(1) 

Guidelines would complicate efforts by 

Tribes and States to impose more 

stringent requirements as part of their 

CWA section 404 programs. By not 

requiring that Tribes and States adopt 

verbatim or incorporate by reference the 

CWA 404(b)(1) Guidelines, Congress 

allowed leeway for Tribes and States to 

craft a Tribal or State program 

consistent with circumstances specific 

to that Tribe or State, so long as their 

permits will assure compliance with the 

CWA 404(b)(1) Guidelines at least as 

stringently as permits issued by the 

Corps. 

This flexibility is consistent with the 

nature of the CWA 404(b)(1) Guidelines 

themselves. Recognizing that a CWA 

section 404 permit may be required for 

a variety of discharges into a wide range 

of aquatic ecosystems, EPA explained in 

promulgating the CWA 404(b)(1) 

Guidelines that they are intended to 

provide ‘‘a certain amount of 

flexibility,’’ consisting of tools for 

evaluating proposed discharges, rather 

than numeric standards. 45 FR 85336, 

85336 (December 24, 1980). EPA further 

explained in this preamble to the 

Guidelines: ‘‘[c]haracteristics of waters 

of the United States vary greatly, both 

from region to region and within a 

region. . . As a result, the Guidelines 

concentrate on specifying the tools to be 

used in evaluating and testing the 

impact of dredged or fill material 

discharges on waters of the United 

States rather than on simply listing 

numerical pass-fail points.’’ See id.; see 

also 40 CFR 230.6. 

EPA is not adding further regulatory 

text addressing how Tribes and States 

may ensure compliance with the CWA 

404(b)(1) Guidelines. The section 404 

Tribal and State program regulations as 

well as CWA section 404(h)(1)(A)(i) 

already require that Tribal and State 

permits and environmental review 

criteria apply and assure compliance 

with the CWA 404(b)(1) Guidelines 

while allowing for flexibility as to how 

Tribes and States wishing to assume 

implementation of the CWA section 404 

program can demonstrate that they have 

sufficient authority to apply and assure 

compliance with the CWA 404(b)(1) 

Guidelines. 

Tribes and States can choose to adopt 

verbatim or incorporate by reference the 

CWA 404(b)(1) Guidelines. To the 

extent a Tribe or State wishing to 

assume the CWA section 404 program 

desires to incorporate more stringent 

requirements or otherwise desires to 

craft a program more tailored to that 

Tribe’s or State’s circumstances, the 

Tribe or State should demonstrate 

clearly in its program description that it 

has sufficient authority to apply and 

assure compliance with the CWA 

404(b)(1) Guidelines. For example, a 

Tribe or State could provide a crosswalk 

between the Tribal or State program and 

the CWA 404(b)(1) Guidelines or a 

similar written analysis of the Tribal or 

State program authority, which it could 

include in its request to assume the 

program. A Tribe or State also could 

develop and include with its program 

submission a permit checklist or other 

documentation to be used in connection 

with each permit decision to document 

on a case-by-case basis how each permit 

decision applies the CWA 404(b)(1) 

Guidelines. Where a Tribe’s or State’s 

request for assumption relies upon an 

already established and ongoing 

dredged and fill permit program under 

Tribal or State law, that Tribe or State 

could supplement its program 

description by demonstrating that the 

terms and conditions of permits for 

discharges into waters of the United 

States that were issued pursuant to the 

preexisting Tribal or State program 

complied with the CWA 404(b)(1) 

Guidelines comparably with or more 

stringently than Federal permits issued 

by the Corps for the same discharge. 

Several commenters discussed the 

portion of the preamble to the proposed 

rule in which EPA suggested various 

ways that Tribes and States could 

demonstrate authority to issue permits 

that apply and assure compliance with 

the CWA 404(b)(1) Guidelines’ 

prohibition on authorization of a 

discharge if the discharge would 

jeopardize the continued existence of 

listed endangered or threatened species 

under the Endangered Species Act of 

1973 (listed species) or result in the 

likelihood of the destruction or adverse 

modification of designated critical 

habitat (40 CFR 230.10(b)(3)). Many of 

these commenters asserted that the final 

rule must ensure that listed species and 

critical habitat receive the same 

protections under a Tribal or State 

program as they would if the Corps had 

processed the permit and engaged in 

consultation with the U.S. Fish and 

Wildlife Service or National Marine 

Fisheries Service (the Services) 

pursuant to section 7 of the Endangered 

Species Act (ESA). These commenters 

proposed various ways of ensuring 

protection of listed species and critical 

habitat, including requiring the Tribes 

and States to undertake ESA section 7 

consultation themselves or requiring 

EPA to consult with the Services on 

each Tribal or State permit as part of 

EPA’s oversight. Several commenters 

asserted that EPA must consult with the 

Services prior to approving a Tribal or 

State program. A few commenters noted 

that Tribal and State permittees must 

comply with the take provisions of 

section 10 of the ESA, and one 

commenter recommended that EPA 

continue to pursue an approach similar 

to that associated with EPA’s approval 

of Florida’s section 404 program 

whereby EPA and the U.S. Fish and 

Wildlife Service engaged in a 

programmatic consultation under ESA 

section 7 resulting in an incidental take 

permit covering all permittees in 

Florida. Other commenters expressed 

concerns about the protection afforded 

listed species and critical habitat by 

Florida’s or other State section 404 

programs. 

EPA’s approval of Florida’s section 

404 program is the subject of ongoing 

litigation (see Center for Biological 

Diversity v. Regan, No. 24–5101 (D.C. 

Cir.), and will not be addressed here. 

EPA’s obligation to undertake ESA 

section 7 consultation in connection 

with its approval and/or oversight of a 

Tribal or State CWA section 404 

program is beyond the scope of this 

rulemaking. 

To the extent commenters assert that 

assuming Tribal and State programs 

must incorporate the procedural 

requirements of the ESA, issuance of a 

permit by a Tribe or State pursuant to 

an assumed program under CWA 

section 404(g) is not a Federal action 

subject to the procedural requirements 

of the ESA. See H.R. Rep. No. 95–830 

at 104 (1977) (‘‘The conferees wish to 

emphasize that such a State program is 


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one which is established under State 

law and which functions in lieu of the 

Federal program’’); see also Chesapeake 

Bay Foundation v. Virginia State Water 

Control Bd., 453 F. Supp. 122 (E.D. Va. 

1978). 

Although decisions by Tribal and 

State section 404 programs do not 

trigger the Federal consultation process 

laid out in ESA section 7, Tribes and 

States must demonstrate that they have 

sufficient authority to issue permits that 

comply and assure compliance with 40 

CFR 230.10(b)(3), which states that 

‘‘[no] discharge of dredged or fill 

material may be permitted if it . . . 

[j]eopardizes the continued existence of 

[threatened or endangered species listed 

under the ESA]’’ or would adversely 

modify critical habitat. 40 CFR 

230.10(b)(3). A few commenters asserted 

that the discussion in the preamble to 

the proposed rule regarding how Tribes 

and States could demonstrate 

compliance with this aspect of the CWA 

404(b)(1) Guidelines was too 

generalized and/or insufficiently 

prescriptive or protective. On the other 

hand, one commenter asserted that EPA 

should defer to Tribal and State 

expertise. The discussion in the 

preamble to the proposed rule was not 

intended to be exhaustive or to provide 

a checklist. Tribes and States retain 

flexibility to tailor their programs 

consistent with the types of listed 

species and critical habitat within their 

jurisdictions. 

EPA recommends that Tribes and 

States include in the program 

submission provisions and procedures 

to protect listed species and habitat. 

EPA recommends that Tribes and States 

develop a method for identifying the 

listed species and areas of designated 

critical habitat within their geographic 

boundaries and for determining whether 

federally listed species or critical habitat 

are present or would be affected by a 

particular discharge. Tribes and States 

also could develop processes for 

ensuring that their identification of 

federally listed species and designated 

critical habitat remains up to date as 

well as processes to avoid impacts to 

these resources. 

EPA continues to encourage Tribes 

and States to proactively coordinate 

with the relevant Services’ regional or 

field offices when developing their 

programs. To the extent that Tribes and 

States coordinate with the Services as 

they develop their programs, such work 

would help inform the Services’ review 

opportunity to comment to EPA on a 

Tribal or State program submission. See 

33 U.S.C. 1344(g)(2) and 1344(h)(1); see 

also 40 CFR 233.15(d) and (g). Such 

work would also facilitate EPA’s 

coordination with the Services on 

permits for which EPA has not waived 

review. See 33 U.S.C. 1344(j). 

Several Tribes expressed concern that 

the preamble to the proposed rule did 

not provide sufficient guidance 

regarding how a Tribe or State could 

demonstrate that it has sufficient 

authority to apply and assure 

compliance with subpart F of the CWA 

404(b)(1) Guidelines. Pursuant to 

subpart F (40 CFR 230.50 through 

230.54), the permit issuing authority 

should consider potential effects on 

human use characteristics, including 

‘‘areas designated under Federal and 

State laws or local ordinances to be 

managed for their aesthetic, educational, 

historical, recreational, or scientific 

value,’’ when making the factual 

determinations and the findings of 

compliance or non-compliance under 

the Guidelines. 40 CFR 230.54(a). These 

human use considerations encompass, 

among other things, uses and values of 

aquatic resources that are important to 

Tribes and local communities. For 

example, section 230.51 in subpart F 

describes considerations regarding 

potential impacts of dredged or fill 

material on recreational and commercial 

fisheries, consisting of ‘‘harvestable fish, 

crustaceans, shellfish, and other aquatic 

organisms.’’ Id. at 230.51(a). Section 

230.52 includes considerations 

regarding the impact of dredged or fill 

material on water-related recreation, 

including harvesting of resources and 

non-consumptive activities such as 

canoeing on the water. Section 230.53 

addresses potential impacts on aesthetic 

values of aquatic ecosystems and notes 

that: ‘‘The discharge of dredged or fill 

material can mar the beauty of natural 

aquatic ecosystems by degrading water 

quality, creating distracting disposal 

sites, including inappropriate 

development, encouraging unplanned 

and incompatible human access, and by 

destroying vital elements that contribute 

to the compositional harmony or unity, 

visual distinctiveness, or diversity of an 

area.’’ Id. at 230.53(b). Section 230.54 

discusses considerations regarding 

‘‘national and historical monuments, 

national seashores . . . and similar 

preserves’’ and where the discharge may 

‘‘modify the aesthetic, educational, 

historical, recreational and/or scientific 

qualities thereby reducing or 

eliminating the uses for which such 

sites are set aside and managed.’’ Id. at 

230.54(b). Collectively or individually, 

significantly adverse effects of the 

discharge of pollutants on these human 

uses may contribute to the significant 

degradation of the waters of the United 

States. Id. at 230.10(c). 

As with other aspects of the CWA 

404(b)(1) Guidelines, Tribes and States 

have the option of adopting 40 CFR 

230.50 through 230.54, but they are not 

required to do so. To demonstrate 

sufficient authority to apply and assure 

compliance with subpart F of the CWA 

404(b)(1) Guidelines, a Tribe or State 

should include in its program 

description its process and permit 

review criteria for evaluating and 

addressing potential permit impacts on 

historic properties and properties with 

cultural significance. Such a process 

could include any agreements with and/ 

or procedures for formal or informal 

coordination and communication with 

the State Historic Preservation Officer or 

Tribal Historic Preservation Office. The 

Tribe or State also could develop an 

agreement with the relevant State 

Historic Preservation Officer or Tribal 

Historic Preservation Office to establish 

a process to identify historic properties 

that may be impacted by the Tribe’s or 

State’s issuance of section 404 permits 

and a process for resolving adverse 

effects. Such an agreement could 

include the identification of relevant 

parties with an interest in potential 

impacts on historic properties (these 

could correspond to entities that would 

have a consultative role under the 

National Historic Preservation Act 

regulations), duties and responsibilities 

of the identified parties, and a 

description of the process to consider 

any impacts, including the 

determination and resolution of adverse 

effects on historic properties. Such an 

agreement could facilitate EPA’s review 

of a Tribal or State permit’s impacts on 

historic properties, consistent with 

EPA’s oversight of the permits, for 

which review has not been waived, and 

authorized program. See 40 CFR 233.31. 

The program description would contain 

any such agreement(s). 

The foregoing, of course, are only 

examples, and there are likely other 

means by which a Tribe or State could 

demonstrate that it has sufficient 

authority to issue permits that comply 

and assure compliance with the CWA 

404(b)(1) Guidelines. EPA will avoid 

unnecessarily limiting Tribes and States 

by imposing a single vehicle or 

approach for implementing the CWA 

404(b)(1) Guidelines. EPA recommends 

that an assuming Tribe or State consider 

incorporating into its program 

description ways to identify and 

consider impacts to other human use 

characteristics, such as impacts to 

waters that support subsistence fishing 

by the local population or that may have 

significance for religious or treaty 

purposes. These could include, for 


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26See Menominee Indian Tribe of Wisconsin v. 

Envt’l Protection Agency, 947 F.3d 1065, 1073–74 

(7th Cir. 2020). 

example, formalizing a process for 

coordinating with local communities to 

identify and understand how waters 

that may be affected by discharges of 

dredged or fill material are used for 

subsistence fishing, religious purposes, 

or other uses important to the local 

community. Such procedures would 

demonstrate the Tribe or State’s ability 

to fulfill the intent of the human use 

characteristics provisions of the section 

404(b)(1) Guidelines. 

Some Tribes assert that compliance 

with the CWA 404(b)(1) Guidelines is 

not an adequate substitute for the input 

that Tribes can provide through 

consultation procedures of the National 

Historic Preservation Act. While the 

Federal consultation procedures under 

section 106 of the National Historic 

Preservation Act do not apply to permits 

issued by a Tribe or State,26 the final 

rule expands upon existing 

opportunities for Tribal input. Section 

IV.F of this preamble provides detailed 

discussion on opportunities whereby 

Tribes may request that EPA review 

permits that may affect their Tribal 

rights or interests within or beyond 

reservation boundaries and Tribes that 

have status of treatment in a similar 

manner as a State (TAS) shall receive 

notice and an opportunity to provide 

recommendations as an ‘‘affected State’’ 

for purposes of 40 CFR 233.31. See 

section IV.F of this preamble. In 

addition, EPA review of Tribal or State 

permit applications may not be waived 

for ‘‘[d]ischarges within critical areas 

established under State or Federal law, 

including but not limited to . . . sites 

identified or proposed under the 

National Historic Preservation 

Act. . . .’’ 40 CFR 233.51(b)(6). 

Moreover, as discussed above, Tribal 

and State permits must assure 

compliance with all applicable statutory 

and regulatory requirements, including 

the section 404(b)(1) Guidelines as 

described above. Finally, assuming 

Tribes and States must provide for 

judicial review of Tribe- or State-issued 

permits, which provides another 

opportunity for interested parties to 

raise concerns about a permit’s failure to 

comply with the 404(b)(1) Guidelines. 

See section IV.C.2 of this preamble. 

3. No Less Stringent Than 

a. Overview and What the Agency Is 

Finalizing 

The Agency’s regulations provide that 

Tribes and States may not impose 

requirements less stringent than Federal 

requirements. 40 CFR 233.1(d). While 

Tribes and States have flexibility to 

determine how to best integrate 

sufficient authority into their programs, 

there are limits to this flexibility not 

explicitly spelled out in the prior 

regulations. Accordingly, the Agency 

proposed to codify its longstanding 

principle that a Tribe or State cannot 

comply with its obligation pursuant to 

section 510 of the CWA to impose 

requirements no less stringent than 

Federal requirements by making one 

requirement more stringent than 

federally required as a tradeoff for 

making another requirement less 

stringent. The Agency also proposed to 

clarify its interpretation that an 

assuming Tribe or State must 

demonstrate that it will at all times have 

authority to issue permits for all nonexempt discharges of dredged and fill 

material to all waters of the United 

States within its jurisdiction except for 

discharges to the subset of waters of the 

United States (‘‘retained waters’’) over 

which the Corps retains administrative 

authority pursuant to CWA section 

404(g)(1). To clarify the role of Federal 

interpretive guidance in Tribal or State 

programs, such as the Corps’ General 

Regulatory Policies in 33 CFR part 320 

or Regulatory Guidance Letters, EPA 

further proposed to clarify that Tribes 

and States are not required to 

incorporate the Corps’ or EPA’s 

interpretive guidance into their CWA 

section 404 programs. Finally, EPA 

proposed to codify its long-held 

position that the Tribe or State is 

responsible for administering all 

portions of a CWA section 404(g) 

program. Specifically, where the CWA 

404(b)(1) Guidelines or other regulations 

require that the District Engineer or the 

Corps of Engineers make certain 

decisions or take certain actions, the 

proposed rule provides that the Tribal 

or State agency will carry out those 

responsibilities for purposes of the 

assumed program. After reviewing 

public comments, the Agency is 

finalizing this approach as proposed. 

b. Summary of Final Rule Rationale and 

Public Comment 

Section 510 of the CWA provides: 

‘‘[i]f an effluent limitation, or other 

limitation, effluent standard, 

prohibition, pretreatment standard, or 

standard of performance is in effect 

under this chapter, such State . . . may 

not adopt or enforce any effluent 

limitation, or other limitation, effluent 

standard, prohibition, pretreatment 

standard, or standard of performance 

which is less stringent. . . .’’ 33 U.S.C. 

1370. Consistent with CWA section 510, 

EPA’s regulations at 40 CFR 233.1(d) 

require: ‘‘Any approved State Program 

shall, at all times, be conducted in 

accordance with the requirements of the 

Act and of this part. While States may 

impose more stringent requirements, 

they may not impose any less stringent 

requirements for any purpose.’’ See also 

33 U.S.C. 1344(h)(1)(A)(i); 40 CFR 

233.20(a), 233.23(a), 233.34(a). 

Broadly stated, the goal of those 

portions of the CWA and its 

implementing regulations that govern 

Tribal and State assumption of the CWA 

section 404 program is to ensure that an 

assuming Tribe or State will issue 

permits that assure compliance with the 

CWA at least as stringently as would a 

permit for the same discharge if issued 

by the Corps. Section 404(h)(1)(A)(i) of 

the CWA and 40 CFR 233.1(d), 

233.20(a), 233.23(a), and 233.34(a) 

expressly require that permits issued by 

an assuming Tribe or State must apply 

and assure compliance with the CWA 

404(b)(1) Guidelines, as discussed in 

section IV.A.2 of this preamble. In 

addition, Tribes and States must 

demonstrate that their section 404 

programs will cover at least the same 

discharges as the CWA and will issue 

permits that are not less stringent than 

other aspects of the CWA beyond the 

CWA 404(b)(1) Guidelines. 

Commenters generally agreed that 

permits issued by Tribes or States may 

not be less stringent than a permit for 

the same discharge if issued by the 

Corps of Engineers. One commenter 

characterized this concept as 

establishing a strong Federal ‘‘floor’’ for 

Tribal and State permits. As with the 

CWA 404(b)(1) Guidelines, Tribes and 

States seeking to assume the section 404 

program may choose but are not 

required to adopt verbatim or 

incorporate by reference relevant 

portions of the CWA or its 

implementing regulations. Where a 

Tribe or State chooses not to adopt or 

incorporate by reference portions of the 

CWA or its implementing regulations, 

the Tribal or State program description 

should describe how the Tribal or State 

program is no less stringent than those 

provisions. 

1. A Tribe or State Cannot Comply With 

Its Obligation Pursuant to Section 510 of 

the CWA To Impose Requirements No 

Less Stringent Than Federal 

Requirements by Trading Off More 

Stringent Requirements for Less 

Stringent Requirements 

Most commenters supported EPA’s 

proposal to codify the principle 

prohibiting tradeoffs between more 

lenient and more stringent 

requirements. However, one commenter 

did not support EPA’s proposed 

approach and expressed concern that 


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27As noted in the 1988 preamble, ‘‘States may 

have a program that is more . . . extensive than 

what is required for an approvable program.’’ 53 FR 

at 20764, 20766 (June 6, 1988) (emphasis added). 

As described elsewhere in this preamble, Tribes 

and States may not assume less than what is 

required under the CWA. 28See 33 U.S.C. 1311(a), 1362(7). 

the proposed approach would deprive 

Tribes and States of flexibility. The 

Agency agrees that Tribes and States 

should have flexibility to determine 

how best to ensure that their permits 

will apply and assure compliance with 

the CWA 404(b)(1) Guidelines and be no 

less stringent than Federal 

requirements. That said, EPA has long 

stated that flexibility does not extend to 

tradeoffs among requirements, as 

discussed, in the 1988 preamble to the 

CWA section 404 Tribal and State 

program regulations. See 53 FR 20764, 

20766 (June 6, 1988). 

EPA is finalizing its proposal to 

codify this longstanding principle 

prohibiting tradeoffs between more 

lenient and more stringent requirements 

in its section 404 Tribal and State 

program regulations. As noted above, 

this clarification does not represent a 

change in EPA’s longstanding position. 

Additionally, this principle is also 

articulated in EPA’s regulations 

governing the section 402 program. See 

40 CFR 123.25(a), Note. EPA sees no 

reason not to provide similar clarity for 

section 404 programs. 

2. An Assuming Tribe or State Must 

Regulate at Least All Non-Exempt 

Discharges to Navigable Waters Within 

Its Jurisdiction, Except for Discharges to 

Waters Retained by the Corps 

In addition to codifying its 

longstanding principle against tradeoffs, 

EPA is clarifying that Tribes and States 

wishing to assume the section 404 

program must demonstrate consistency 

with aspects of the CWA beyond the 

CWA 404(b)(1) Guidelines. While a 

Tribe or State may regulate discharges 

that are not covered by the CWA, a 

Tribal or State program must regulate at 

least all non-exempt discharges of 

dredged and fill material to all navigable 

waters as defined by CWA section 

502(7) (‘‘waters of the United States’’) 

within the Tribe’s or State’s jurisdiction 

except for discharges to the subset of 

retained waters. This means that a 

Tribal or State program may not exempt 

discharges other than those exempted 

pursuant to CWA section 404(f). 

Similarly, when a Tribe or State 

assumes administration of the CWA 

section 404 program, it assumes 

administrative authority to permit 

discharges to all waters of the United 

States within its jurisdiction except for 

the subset of retained waters.27 See 33 

U.S.C. 1344(g)(1). As noted earlier, EPA 

has final administrative authority over 

the scope of ‘‘waters of the United 

States.’’ See Civiletti Memorandum. 

The subset of waters of the United 

States over which the Corps retains 

administrative authority pursuant to 

CWA section 404(g)(1) is identified in 

the Memorandum of Agreement 

between the assuming Tribe or State and 

the Corps which, among other things, 

includes a ‘‘description of waters of the 

United States within the State over 

which the Secretary retains 

jurisdiction.’’ 40 CFR 233.14(b)(1). See 

section IV.B.2 of this preamble for 

further discussion on retained waters. 

To the extent the coverage of the CWA 

as defined by the term ‘‘waters of the 

United States’’ 28 changes following 

court decisions or rulemaking, 

assumption of the section 404 program 

by a Tribe or State cannot result in a 

situation in which neither the assuming 

Tribe or State nor the Corps has 

authority to issue a permit for 

discharges to a water of the United 

States. The requirement that Tribes or 

States at all times have authority to 

issue permits for all non-exempt 

discharges to all waters of the United 

States within their jurisdiction is 

therefore generally not governed by 40 

CFR 233.16(b), which addresses the 

modification of Federal statutes or other 

regulations. 

As with the CWA 404(b)(1) 

Guidelines (see section IV.A.2 of this 

preamble), Tribes and States seeking to 

assume the section 404 program need 

not adopt verbatim or incorporate by 

reference relevant portions of the CWA 

or its implementing regulations, though 

they may do so. EPA recommends that 

Tribes and States identify in the 

program description (40 CFR 233.10(b) 

and 233.11) and Attorney General 

Statement (40 CFR 233.10(c) and 

233.12) those provisions of Tribal or 

State law that will ensure that the Tribe 

or State will at all times have sufficient 

authority to issue permits for nonexempt discharges to all waters of the 

United States within its jurisdiction 

except for discharges to the subset of 

waters of the United States over which 

the Corps retains administrative 

authority following assumption. A 

Tribal or State section 404 program may 

regulate discharges into Tribal or State 

waters in addition to the jurisdictional 

CWA waters as well as issue permits for 

discharges into waters retained by the 

Corps; however, the Corps remains the 

CWA section 404 permitting authority 

for retained waters. 

3. Tribes and States May Adopt Federal 

Interpretive Guidance and the Corps’ 

General Regulatory Policies, But Are 

Not Required To Do So 

EPA also is clarifying here the role of 

Federal interpretive guidance in Tribal 

or State programs, such as the Corps’ 

Regulatory Guidance Letters or other 

interpretive statements issued by the 

Corps and/or EPA. Nothing in the CWA 

or 40 CFR part 233 requires that Tribes 

or States wishing to assume the section 

404 program formally adopt or 

incorporate into their programs 

Regulatory Guidance Letters or other 

formal interpretive statements issued by 

the Corps and/or EPA. Federal agency 

interpretive guidance may often be 

helpful in providing transparency, 

clarity, and consistency in 

implementation of the Federal program. 

However, it does not have the effect of 

legally binding regulation and may not 

necessarily be applicable, for example, 

where Tribal or State requirements are 

more stringent than Federal 

requirements or the guidance references 

a procedure not part of the Tribal or 

State program. Moreover, Federal 

agency interpretive guidance may 

evolve over time with changes in case 

law and other circumstances. 

Accordingly, while assuming Tribes 

and States may consider relevant 

Federal agency interpretive guidance 

and may choose to adopt it to aid in 

program implementation, they are not 

required to formally adopt Federal 

agency interpretive guidance. EPA 

recommends that Tribes and States 

provide transparency by describing as 

part of the Tribal or State program 

description (40 CFR 233.10(b) and 

233.11) if and how they will consider 

Federal agency interpretative guidance. 

Several commenters asserted that, in 

order to issue permits that are not less 

stringent than permits that would be 

issued by the Corps for the same 

discharge, Tribes and States assuming 

the section 404 program must 

incorporate the procedural and 

substantive provisions of the 

Endangered Species Act, the National 

Historic Preservation Act, the National 

Environmental Protection Act and other 

statutes that apply generally to Federal 

actions, including to permits issued by 

the Corps under CWA section 404. 

Issuance of a permit by a Tribe or State 

pursuant to an assumed program under 

CWA section 404(g), however, is not 

subject to the requirements for Federal 

actions under those statutes. See H.R. 

No. 95–830 at 104 (1977) (‘‘The 

conferees wish to emphasize that such 

a State program is one which is 

established under State law and which 


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functions in lieu of the Federal 

program’’); See Chesapeake Bay 

Foundation v. Virginia State Water 

Control Bd., 453 F. Supp. 122 (E.D. Va. 

1978). That said, while the Federal 

statutory procedural requirements may 

not apply directly to Tribal or State 

actions, CWA section 404(h)(1)(A)(i) 

requires that Tribal and State programs 

have authority to issue permits that 

apply and assure compliance with the 

CWA 404(b)(1) Guidelines, including 

those provisions that limit permit 

issuance to the least environmentally 

damaging practicable alternative, 

prohibit permitting of a discharge that 

would jeopardize the continued 

existence of listed endangered or 

threatened species under the 

Endangered Species Act, and require 

consideration of potential effects on 

human use characteristics, including 

‘‘areas designated under Federal and 

State laws or local ordinances to be 

managed for their aesthetic, educational, 

historical, recreational, or scientific 

value.’’ See section IV.A.2 of this 

preamble for further discussion on 

compliance with the CWA 404(b)(1) 

Guidelines. 

Tribal or State adoption of the Corps’ 

General Regulatory Policies (33 CFR 

part 320) (including the Corps’ ‘‘public 

interest review’’ at 33 CFR 320.4(a)) is 

also not required. The CWA makes no 

reference to the Corps’ General 

Regulatory Policies, which, by their own 

terms, apply to a range of the Corps’ 

regulatory authority, including, but not 

limited to, CWA section 404 (see 33 CFR 

320.2). As described elsewhere, the 

substantive environmental criteria used 

to evaluate discharges of dredged and 

fill material under CWA section 404 are 

set forth in the CWA 404(b)(1) 

Guidelines. See 40 CFR 230.2. Tribes or 

States are free, however, to incorporate 

elements of the Corps’ General 

Regulatory Policies into their permitting 

procedures if they choose to do so. 

4. Tribes and States That Assume the 

CWA Section 404 Program Are 

Responsible for Administering All 

Portions of the Section 404 Program 

Finally, EPA is codifying its long-held 

position that the Tribe or State is 

responsible for administering all 

portions of a section 404(g) program. 

Certain regulations implementing CWA 

section 404 were drafted to refer to the 

authority of the Corps of Engineers 

without accounting for Tribal or State 

assumption of the section 404 program. 

EPA is clarifying that, when a Tribe or 

State assumes administration of the 

section 404 program, the Tribe or State 

becomes responsible for all of the 

actions under section 404 for which the 

Corps would be responsible if it were to 

issue the permit. The rule clarifies that 

it is the assuming Tribe or State that is 

responsible for administering all 

sections of the approved section 404 

program. See section IV.B.4 of this 

preamble for further discussion on 

mitigation. 

EPA also clarifies here that only 

Tribal, State, or interstate agencies may 

assume administration of the section 

404 program. While a Tribe or State may 

establish general permits for discharges 

of dredged or fill material for categories 

of similar activities that will cause only 

minimal adverse environmental effects 

individually or cumulatively, they may 

not delegate permitting responsibility to 

non-Tribal or non-State entities, such as 

counties or municipalities. 33 U.S.C. 

1344(g)(1); 40 CFR 233.2 (definition of 

‘‘State’’). 

B. Program Approval 

1. Partial Program Assumption 

a. Overview and What the Agency Is 

Finalizing 

Under 40 CFR 233.1(b), assuming 

Tribes or States must have authority to 

regulate all non-exempt discharges to all 

waters of the United States within their 

borders except for the subset of waters 

of the United States over which the 

Corps retains administrative authority 

pursuant to CWA section 404(g)(1). 

Although some States have expressed an 

interest in being able to assume the 

authority to issue section 404 permits 

for just a portion of the section 404 

regulated activities, or a portion of the 

assumable waters within the Tribe’s or 

State’s jurisdiction, the Agency 

proposed to maintain its longstanding 

position that the statute does not 

authorize partial assumption. After 

considering public comments, EPA is 

finalizing its proposed approach to 

maintain the text at section 233.1(b) 

which clarifies that partial programs are 

not approvable under section 404. 

b. Summary of Final Rule Rationale and 

Public Comment 

In 1987, Congress added section 

402(n) to the CWA, specifically 

authorizing EPA to approve partial 

Tribal and State NPDES permit 

programs that ‘‘cover, at a minimum, 

administration of a major category of the 

discharges into the navigable waters of 

the State or a major component of the 

permit program. . . .’’ That provision 

specifies the scope of partial State 

section 402 programs that may be 

approved. Congress did not amend 

CWA section 404 to add a parallel 

provision authorizing a Tribe or State to 

assume the authority to issue section 

404 permits for just a portion of 

discharges into assumable waters. Given 

the absence of a provision in the section 

404 program authorizing partial 

assumption parallel to the provision in 

the section 402 program, EPA maintains 

its longstanding interpretation that the 

best reading of the CWA ‘‘requir[es] 

State programs to have full geographic 

and activities jurisdiction (subject to the 

limitation in section 404(g)).’’ 53 FR 

20764 (June 6, 1988). Because of the 

special status of Indian country, a lack 

of State authority to regulate activities 

on Indian lands will not cause the 

State’s program to be considered a 

partial program. See id. 

In addition to concluding that the 

statute does not authorize partial 

assumption, EPA also determined that 

partial assumption would be extremely 

difficult to implement. Numerous States 

have expressed an interest in being able 

to assume the authority to issue section 

404 permits for just a portion of the 

section 404 regulated activities, or a 

portion of the assumable waters within 

the Tribe’s or State’s jurisdiction. While 

some commenters supported the status 

quo, others supported some form of 

partial assumption, or encouraged the 

Agency to explore options to provide 

additional flexibility. One commenter 

noted that partial assumption in States 

with more stringent or protective 

section 404 programs could advance 

environmental protection, and another 

noted that partial assumption of 

program activities could allow for more 

Tribal oversight and input in the 

permitting process. 

EPA carefully considered the 

comments received, evaluating potential 

approaches to partial assumption, but 

ultimately concluded that it would be 

difficult to implement. Partial 

assumption based on a size threshold 

for a project would be unworkable 

because the ‘‘footprint’’ of a project may 

change during the execution of the 

project, which could result in the 

shifting of jurisdiction between the 

Federal and the assumed program. This 

outcome could conceivably encourage 

permittees to increase the footprint or 

impacts of their proposed project in 

order to remain with the Corps for the 

permit review process. Partial 

assumption based on a geographic area 

would also be challenging to 

implement, because Tribes and States 

could potentially divide watersheds or 

create a checkerboard of authority that 

could create problems in determining 

jurisdiction, as well as mitigation and 

enforcement. Partial assumption based 

on type of waterbody would pose 

difficulties because it might require a 

waterbody-by-waterbody determination 


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to identify permitting authority, and a 

project might impact more than one 

waterbody, creating confusion as to 

whether the permitting authority is the 

Corps or the Tribe or State. Partial 

assumption that would allow for the 

assumption of certain aspects of the 

program, such as a Tribe or State taking 

on permitting but not enforcement, or 

vice versa, would cause unavoidable 

duplication of effort between the Tribe 

or State and EPA and the Corps. And 

partial assumption based on activity 

would pose challenges because the 

Agency was unable to devise a 

comprehensive and clear way to define 

potential activities. Dividing functions 

between the Federal and Tribal or State 

governments would also be confusing 

for the regulated public. 

EPA also considered phased 

assumption of program responsibilities, 

whereby the Tribe or State would 

ultimately assume the full program, but 

in stages or phases. EPA considered this 

approach but concluded that 

implementing a phased approach would 

present all of the challenges listed above 

regarding identification of the 

permitting authority. Additionally, there 

are no tools available to the Agency to 

ensure that a Tribe or State continues to 

phase in all portions of the program, or 

to determine how much time should be 

allowed for the process; the only 

mechanism available to the Agency to 

address a failure to complete phasing-in 

the full program would be withdrawal 

of the entire program. 

Tribes and States not interested in full 

assumption can already take on a major 

role in managing their aquatic resources 

and in the permitting process even 

without assuming the section 404 

program. A Tribe or State may develop 

their own dredged or fill material 

permitting program. Alternatively, the 

Federal section 404 program provides 

mechanisms that allow for Tribal and 

State input in developing permits for 

specific activities or specific geographic 

areas within Tribal or State jurisdiction. 

In 1977, Congress amended section 404 

to allow the Corps to issue certain types 

of general permits, including State 

Programmatic General Permits (SPGPs). 

SPGPs are general permits issued by the 

Corps that provide section 404 

authorization for certain discharge 

activities if the permittee has secured a 

State permit for that same activity. Some 

States have worked with the Corps to 

develop SPGPs, which create permitting 

efficiencies for certain projects within 

the State. While the Corps is still the 

section 404 permitting authority for 

SPGPs, these permits give the Tribe or 

State the ability to be actively involved, 

as well as the opportunity to create 

more stringent requirements than the 

Federal section 404 permitting program, 

without the burden of assuming and 

administering the section 404 program. 

In sum, EPA has concluded that 

continuing to interpret the CWA to 

prohibit partial assumption reflects the 

best reading of the text of the CWA and 

will enable the most transparent and 

consistent implementation of the 

section 404 program across the nation. 

This approach provides the most clarity 

to the public and the regulated 

community as to which waters are being 

assumed and whether applicants need a 

Tribal or State permit or a Federal 

permit. Conversely, partial assumption 

would be more likely to cause confusion 

among interested parties and be more 

difficult to implement consistently 

across the country for the reasons 

discussed earlier in this section. 

2. Retained Waters 

a. Overview and What the Agency Is 

Finalizing 

As discussed in section III.B.2 of this 

preamble, the Corps retains authority 

over certain waters and wetlands 

adjacent to those waters when a Tribe or 

State assumes permitting authority. 

States and Tribes have expressed to EPA 

the need for further clarification 

regarding which waters a Tribe or State 

may assume and which waters the 

Corps retains. The Agency is finalizing 

as proposed a procedure for determining 

the extent of waters over which the 

Corps would retain administrative 

authority following Tribal or State 

assumption of the section 404 program, 

with certain minor modifications based 

on comments received. Under the 

procedure, before the Tribe or State 

submits its assumption request to EPA, 

the Tribe or State must submit a request 

to EPA that the Corps identify the subset 

of waters of the United States that 

would remain subject to the Corps’ 

section 404 administrative authority 

following assumption. The Tribe or 

State must submit one of the following 

documents with the request to show 

that it has taken concrete and 

substantial steps toward program 

assumption: a citation or copy of 

legislation authorizing funding to 

prepare for assumption, a citation or 

copy of legislation authorizing 

assumption, a Governor or Tribal leader 

directive, a letter from a head of a Tribal 

or State agency, or a copy of a letter 

awarding a grant or other funding 

allocated to investigate and pursue 

assumption. Within seven days of 

receiving the request for the retained 

waters description, EPA will review and 

respond to the request. If the request 

includes the required information, then 

EPA will transmit the request to the 

Corps. EPA will also notify members of 

the public of that transmission and 

invite input to the Corps and to the 

Tribe or State within a 60-day period 

that the Corps may consider in 

developing its description. 

If the Corps notifies the Tribe or State 

and EPA within 30 days of receiving the 

request transmitted by EPA that it will 

provide the Tribe or State with a 

retained waters description, the Corps 

has 180 days from the receipt of the 

request to provide a retained waters 

description to the Tribe or State. The 

purpose of the 180-day period is to 

allow the Corps time and opportunity to 

follow the process at 40 CFR 233.11(i) 

to identify those waters over which the 

Corps will retain section 404 permitting 

authority while providing a timeframe 

within which the Tribe or State can 

expect to receive a retained waters 

description. If the Corps does not notify 

the Tribe or State and EPA within 30 

days of receipt of the request that it 

intends to provide a retained waters 

description, the Tribe or State may 

prepare a retained waters description. 

Similarly, if the Corps had originally 

indicated that it would provide a 

retained waters description but does not 

provide one within 180 days of EPA’s 

transmission to the Corps, the Tribe or 

State may develop the retained waters 

description using the same approach 

described above. Alternatively, the 

Tribe or State and the Corps may 

mutually agree to extend the period of 

time for the Corps to develop the list. 

The most recently published list of 

RHA section 10 waters (see 33 CFR 

329.16) would be the starting point for 

the retained waters description. The 

Corps, Tribe, or State would place 

waters of the United States, or reaches 

of these waters, from the RHA section 

10 list into the retained waters 

description if they are known to be 

presently used or susceptible to use in 

their natural condition or by reasonable 

improvement as a means to transport 

interstate or foreign commerce. See 33 

U.S.C. 1344(g)(1). To the extent feasible 

and to the extent that information is 

available, the Corps, Tribe, or State 

would add other waters or reaches of 

waters to the retained waters 

description that are presently used or 

are susceptible to use in their natural 

condition or by reasonable improvement 

as a means to transport interstate or 

foreign commerce. See id. The Corps, 

Tribe, or State would not place RHA 

section 10 list waters in the retained 

waters description if, for example, they 

were historically used as a means to 

transport interstate or foreign commerce 


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29When a Tribe or State assumes administrative 

authority for the CWA section 404 program, it 

assumes authority to permit discharges of dredged 

and fill material to all ‘‘waters of the United States’’ 

within the meaning of CWA section 502(7) except 

for the subset of waters of the United States over 

which the Corps is required to retain administrative 

authority under Section 404(g). The scope of CWA 

jurisdiction is defined by CWA section 502(7) as 

‘‘waters of the United States,’’ and is distinct from 

and broader than the scope of waters over which 

the Corps retains administrative authority following 

Tribal or State assumption of the section 404 

program. This rule develops a process for 

identifying the subset of waters of the United States 

over which the Corps retains administrative 

authority following approval of a Tribal or State 

section 404 program. It does not define the broader 

set of ‘‘waters of the United States’’ within the 

scope of CWA section 502(7). 

and are no longer susceptible to use as 

such with reasonable improvement. 

The description would also describe 

retained wetlands. The default 

understanding is that the Corps would 

retain administrative authority over all 

jurisdictional wetlands ‘‘adjacent’’ to 

retained waters, as that term is defined 

in 40 CFR 120.2(c). A Tribe or State may 

choose to negotiate an agreement with 

the Corps to establish an administrative 

boundary through jurisdictional 

adjacent wetlands, landward of which 

the Tribe or State would assume 

administrative authority. If the Tribe or 

State and the Corps reach agreement on 

such a boundary, EPA may consider it 

when it is submitted with the program 

submission. As a default, however, the 

Corps would retain all wetlands 

adjacent to retained waters. The 

retained waters description does not 

need to include a specific list of 

adjacent wetlands or provide mapping 

or a description of the lateral extent of 

those wetlands. 

As recognized in EPA’s regulations, in 

many cases, States lack authority to 

regulate activities in Indian country. See 

40 CFR 233.1(b). Thus, the Corps will 

continue to administer the program in 

Indian country unless EPA determines 

that another jurisdiction has authority to 

regulate discharges into waters in Indian 

country. See id. 

EPA is changing the regulatory 

provision stating that modifications to 

the extent of the retained waters 

description always constitute 

substantial revisions to a Tribal or State 

program. 40 CFR 233.16(d)(3) (2023). 

The new provision is more limited in 

scope: it states that removals of waters 

from the retained waters description, 

other than de minimis removals, are 

substantial revisions. In addition, 

revisions to an approved Tribal CWA 

section 404 program are substantial 

where they would add reservation areas 

to the scope of its approved program. 

EPA is also providing that the 

Memorandum of Agreement between 

the Corps and the Tribe or State must 

outline procedures whereby the Corps 

will notify the Tribe or the State of 

changes to the RHA section 10 list as 

well as the extent to which these 

changes implicate the statutory scope of 

retained waters as described in CWA 

section 404(g)(1) and therefore 

necessitate revisions to the retained 

waters description. The Tribe or State 

would incorporate the revisions that the 

Corps has identified, pursuant to the 

modification provisions agreed upon in 

the Memorandum of Agreement. 

EPA is modifying the program 

description requirements to provide that 

the Tribal or State program will 

encompass all waters of the United 

States not retained by the Corps at all 

times. 40 CFR 233.11(i)(6). EPA is also 

removing the term ‘‘traditionally’’ from 

the term ‘traditionally navigable waters’ 

in the following provision: ‘‘[w]here a 

State permit program includes coverage 

of those traditionally navigable waters 

in which only the Secretary may issue 

404 permits, the State is encouraged to 

establish in this Memorandum of 

Agreement procedures for joint 

processing of Federal and State permits, 

including joint public notice and public 

hearings.’’ Id. at 233.14(b)(2). 

b. Summary of Final Rule Rationale and 

Public Comments 

Section 404(g) of the CWA authorizes 

Tribes and States to assume authority to 

administer the section 404 program in 

some, but not all, navigable waters 

within their jurisdiction. ‘‘Navigable 

waters’’ is defined at CWA section 

502(7) as ‘‘waters of the United States, 

including the territorial seas.’’ The 

Corps retains administrative authority 

over a subset of these waters even after 

program assumption by a Tribe or 

State.29 Specifically, section 404(g)(1) 

states that the Corps retains 

administrative authority over the subset 

of waters of the United States consisting 

of ‘‘. . . waters which are presently 

used, or are susceptible to use in their 

natural condition or by reasonable 

improvement as a means to transport 

interstate or foreign commerce 

shoreward to their ordinary high water 

mark . . . including wetlands adjacent 

thereto.’’ 33 U.S.C. 1344(g)(1). A Tribe 

or State assumes section 404 

administrative authority over all waters 

of the United States within its 

jurisdiction that are not retained by the 

Corps. 

EPA’s prior regulations require that 

the program description that is part of 

a Tribal or State assumption request 

include ‘‘[a] description of the waters of 

the United States within a State over 

which the State assumes jurisdiction 

under the approved program; a 

description of the waters of the United 

States within a State over which the 

Secretary retains jurisdiction 

subsequent to program approval; and a 

comparison of the State and Federal 

definitions of wetlands.’’ 40 CFR 

233.11(h) (2023). In addition, the prior 

regulations state that the Memorandum 

of Agreement between a Tribe or State 

and the Corps required as part of the 

assumption request shall include a 

description of the waters of the United 

States within the Tribe or State for 

which the Corps will retain 

administrative authority. 40 CFR 

233.14(b)(1) (2023). 

Prior to this rule, EPA had not 

provided guidance on a process for 

identifying the subset of waters of the 

United States over which the Corps 

would retain administrative authority 

following Tribal or State assumption. 

Without a clear and practical process, 

individual States and the Corps districts 

have had to interpret the extent of 

retained waters and the meaning of 

‘‘wetlands adjacent thereto’’ in the 

context of case-by-case development of 

Tribal and State program descriptions 

for prospective programs and the 

Memoranda of Agreement that are 

negotiated between the Corps and the 

State as part of a program submission. 

Tribes and States have indicated that 

confusion about how best to identify the 

extent of retained waters and adjacent 

wetlands has been a barrier to 

assumption and have asked EPA to 

provide clarity. 

As discussed in section III.B of this 

preamble, EPA convened the Assumable 

Waters Subcommittee under the 

auspices of the NACEPT to provide 

advice and recommendations as to how 

EPA could best clarify the subset of 

waters of the United States over which 

the Corps retains administrative CWA 

section 404 authority when a Tribe or 

State assumes the section 404 program. 

NACEPT adopted the majority 

recommendation in the Subcommittee 

report and incorporated it into its 

recommendations provided to EPA in 

June 2017. Although at the time of the 

Subcommittee report, the Corps 

presented a separate view from the 

majority of the extent of retained waters 

and adjacent wetlands for which it 

would retain administrative authority, 

the Department of the Army 

subsequently sent a letter to the Corps 

supporting the majority 

recommendation as to the extent of 

retained waters and adjacent wetlands 

(though the letter did not define a 

specific administrative boundary for 


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30R.D. James, Memorandum for Commanding 

General, U.S. Army Corps of Engineers: Clean Water 

Act Section 404(g)—Non-Assumable Waters (July 

30, 2018). 

31The RHA section 10 lists are compiled and 

maintained by the Corps district offices for every 

State except Hawaii. 33 CFR 329.14 describes the 

process the Corps follows to make navigability 

determinations pursuant to the RHA. 

32Available at https://www.epa.gov/sites/default/ 

files/2017-06/documents/awsubcommittee

finalreprort_05-2017_tag508_05312017_508.pdf. 

adjacent wetlands).30 NACEPT’s 

recommendations, based on the 

Subcommittee majority 

recommendation that was subsequently 

endorsed by the Corps, are discussed 

below. 

i. Subcommittee’s Recommendation 

The Subcommittee majority 

recommended that for purposes of 

identifying the subset of waters of the 

United States over which the Corps 

would retain administrative authority 

following Tribal or State assumption of 

the CWA section 404 program, existing 

RHA section 10 lists 31 be used ‘‘with 

two minor modifications: any waters 

that are on the section 10 lists based 

solely on historic use (e.g., historic fur 

trading routes) are not to be retained 

(based on the Congressional record and 

statute), and waters that are assumable 

by a tribe (as defined in the report) may 

also be retained by the USACE when a 

state assumes the program.’’ Final 

Report of the Assumable Waters 

Subcommittee at v.32 The Subcommittee 

also recognized that ‘‘waters may be 

added to Section 10 lists after a state or 

tribe assumes the program, and 

recommends in that case, such waters 

may also be added to lists of USACEretained waters at that time.’’ Id. The 

majority recommendation was based on 

its analysis of the text and legislative 

history of section 404(g), which is 

discussed in the Background 

description in section III of this 

preamble, in which the majority 

concluded that Congress intended that 

the Corps retain permitting authority 

over some RHA section 10 waters. See 

id. at 55–61 (Appendix F.) The majority 

thought this approach had the benefit of 

being clear and easy to implement. See 

id. at 17–20. 

The Subcommittee majority also 

addressed the scope of retained adjacent 

wetlands. It recommended that the 

Corps retain administrative authority 

over all wetlands adjacent to retained 

waters landward to an administrative 

boundary agreed upon by the Tribe or 

State and the Corps. This boundary, the 

recommendation added, ‘‘could be 

negotiated at the state or tribal level . . . 

if no change were negotiated, a 300-foot 

national administrative default line 

would be used.’’ Final Report of the 

Assumable Waters Subcommittee at vi. 

The Subcommittee majority opinion 

noted that large wetland complexes can 

extend far from the retained water. Id. 

at 31. Without such an administrative 

line, the Subcommittee majority noted, 

assumption could lead to a confusing 

pattern of USACE and State or Tribal 

permitting authority across the 

landscape. 

With regard to Tribal considerations 

during assumption of the section 404 

program, the Subcommittee found that 

‘‘Section 518 of the CWA, enacted as 

part of the 1987 amendments to the 

statute, authorizes the EPA to treat 

eligible Indian tribes in a manner 

similar to states (‘treatment as a State’ or 

TAS) for a variety of purposes, 

including administering each of the 

principal CWA regulatory programs 

[including CWA section 404] and 

receiving grants under several CWA 

authorities (81 FR 30183, May 16, 

2016).’’ Id. at 3. The Subcommittee 

majority recommended that ‘‘Tribal 

governments pursuing assumption of 

the 404 program will follow the same 

process as states, though it is expected 

that there will be some nuanced 

differences; for example, in addressing 

Tribal Indian Reservation boundaries’’ 

and that ‘‘[i]n a state-assumed program, 

states will generally not assume 

authority for administering the 404 

program within Indian country; instead, 

such authority will generally be retained 

by the USACE unless the tribe itself is 

approved by EPA to assume the 404 

program.’’ Id. 

The Subcommittee majority noted 

that its recommended approach is 

consistent with ‘‘the plain language of 

Section 404(g) and the legislative 

history. Congress clearly intended that 

states and tribes should play a 

significant role in the administration of 

Section 404—as they do in other CWA 

programs—anticipating that many states 

would assume the Section 404 

program.’’ See id. at 19. 

ii. Final Rule Approach to Retained 

Waters 

1. Contents of the Retained Waters 

Description 

Taking into consideration the majority 

recommendation of the Subcommittee 

as well as stakeholder input on the 

proposed rule, the subset of waters of 

the United States over which the Corps 

would retain administrative authority 

would include the following: 

—Waters of the United States, or 

reaches of those waters, from the RHA 

section 10 list(s) that are known to be 

presently used or susceptible to use in 

their natural condition or by 

reasonable improvement as a means 

to transport interstate or foreign 

commerce; 

—Other waters known by the Corps or 

identified by the Tribe or State as 

presently used or susceptible to use in 

their natural condition or by 

reasonable improvement as a means 

to transport interstate or foreign 

commerce, including all waters which 

are subject to the ebb and flow of the 

tide; and 

—Retained wetlands that are adjacent to 

the foregoing waters. 

As recognized in EPA’s regulations, in 

many cases, States lack authority under 

the CWA to regulate activities covered 

by the section 404 program in Indian 

country. See 40 CFR 233.1(b). Thus, the 

Corps will continue to administer the 

program in Indian country unless EPA 

determines that a State has authority to 

regulate discharges into waters in Indian 

country and approves the State to 

assume the section 404 program over 

such discharges. See id. The 

Memorandum of Agreement between 

the Corps and State must address any 

waters in Indian Country which are to 

be retained by the Corps upon program 

assumption by a State. EPA also notes 

that the Corps would retain jurisdiction 

over waters located in lands of exclusive 

Federal jurisdiction in relevant respects 

(e.g., certain national parks identified in 

16 U.S.C. Chapter 1 as having lands of 

exclusive Federal jurisdiction, such as 

Denali National Park). 

Some commenters supported this 

approach, outlined in the proposed rule. 

Others critiqued the Agency’s reliance 

on the RHA section 10 lists as a starting 

point for identifying retained waters, 

stating that these lists can be out of date 

and often lack current information or 

supporting documentation. Some 

commenters suggested that RHA section 

10 lists should only be relied upon if 

they have been comprehensively 

updated within the previous five years. 

Some commenters would require that 

the Corps review all judicial 

determinations involving the subject 

State to identify additional retained 

waters. 

EPA recognizes that the available 

RHA section 10 lists may not cover all 

RHA section 10 waters in the Tribe’s or 

State’s jurisdiction and that they may 

not be updated to reflect current use and 

characteristics of listed waters. 

However, EPA agrees with the 

recommendation of the Assumable 

Waters Subcommittee that these lists 

provide a useful starting point for 

determining the scope of retained 

waters, given the clear indication in the 


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legislative history that Congress 

intended the Corps to generally retain 

RHA section 10 waters, with some 

modifications, and that an approach that 

starts with existing lists will be clear 

and easy to implement. No commenters 

proposed implementable alternatives to 

the RHA section 10 lists as a starting 

point. Comprehensively reviewing and 

revising RHA section 10 lists is a multiyear, resource-intensive and relatively 

rare undertaking, so excluding from use 

those lists not comprehensively updated 

within the past five years would cause 

significant delays in assumption. 

However, to ensure the retained waters 

descriptions remain as current and 

accurate as is feasible, EPA has 

modified the final rule to provide that 

whenever RHA section 10 lists are 

updated, an orderly process exists for 

incorporating those changes, as 

appropriate, into a Tribe’s or State’s 

retained waters description. 

Specifically, EPA now requires that the 

Memorandum of Agreement between 

the Corps and the Tribe or State outline 

procedures whereby the Corps will 

notify the Tribe or the State of changes 

to the RHA section 10 list that implicate 

the statutory scope of retained waters 

and the Tribe or State will incorporate 

those changes into its retained waters 

description. 

With respect to the suggestion to 

require review of all judicial decisions 

related to navigability during the 

development of the retained waters 

description, EPA agrees that these 

should be viewed as resources during 

the development of the description, as 

well as information submitted by 

interested parties, navigability analyses 

the Corps has conducted since last 

updating its RHA section 10 list, and 

other sources of information. However, 

EPA is declining to define the sources 

of information for the development of 

the retained waters description in the 

regulations because it would be 

unnecessarily prescriptive and limit the 

flexibility of the Corps or the relevant 

Tribe or State. 

Some commenters argued that the 

retained waters description must 

include waters that have been 

historically navigable, as historical 

navigability often indicates whether the 

waterway can be navigable in its natural 

condition or with reasonable 

improvement, which is the statutory 

criteria for retained waters in section 

404(g). EPA agrees that historical 

navigability can sometimes indicate that 

a water is navigable in its natural 

condition or with reasonable 

improvement. Yet this is not always the 

case. Sometimes historically navigable 

waters have been modified—as a result 

of dams, water diversions for irrigation, 

climate change, or other 

circumstances—and cannot be restored 

to navigability with reasonable 

improvements. EPA therefore retains the 

proposed rule approach, based on the 

statutory language and consistent with 

the recommendation of the Assumable 

Water Subcommittee, which would 

remove waters or reaches of waters that 

were historically navigable but that are 

not currently used as a means to 

transport interstate or foreign commerce 

in their natural condition or with 

reasonable improvement. 

EPA also received comments stating 

that the starting point for the scope of 

the Corps-retained waters must be 

documented traditional navigable 

waters (TNWs) as opposed to RHA 

section 10 lists. The Corps’ minority 

recommendation in the Assumable 

Waters Subcommittee Final Report 

advocated for this approach. See Final 

Report at 21–22. The majority rejected 

reliance on documented TNWs as a 

starting point on the basis that using the 

RHA section 10 lists is clearer and 

easier to implement as well as more 

consistent with the legislative history of 

section 404(g). See id. at 17. The 

majority explained that RHA section 10 

lists are ‘‘well established, and can be 

relatively easily labeled on regional 

maps or GIS systems . . .’’ thereby 

allowing members of the public ‘‘to 

readily determine which agency is 

responsible for Section 404 regulation at 

a specific location.’’ See id. at 18. In 

contrast, the majority expressed 

concerns that the extent of documented 

TNWs is confusing and less transparent, 

as they are documented in ‘‘multiple 

regulations, guidance, and procedures,’’ 

rather than in one central, public 

location. See id. The majority also noted 

that because most TNWs have not yet 

been identified as such and thus lists of 

documented TNWs could easily and 

regularly increase, using RHA section 10 

lists provides greater certainty and 

predictability regarding the scope of the 

Tribal or State program. See id at 19. In 

addition, the majority viewed Congress 

as intending to retain Corps authority 

over RHA section 10 waters, with 

certain minor exceptions. See id. at 55– 

61; see also section III of this preamble. 

For all of the reasons that the 

Subcommittee cited, EPA has decided to 

establish RHA section 10 lists as a 

starting point for retained waters, rather 

than documented TNWs. EPA notes that 

ultimately the Department of the Army 

transmitted to the Corps its support for 

the majority recommendation’s reliance 

on RHA section 10 lists. See section 

IV.B.2.b of this preamble. 

The retained waters description 

would acknowledge that wetlands are to 

be retained if they are adjacent to Corpsretained waters. As noted above, the 

default understanding is that the Corps 

would retain administrative authority 

over all jurisdictional wetlands 

‘‘adjacent’’ to retained waters. Some 

Tribes and States may choose to 

negotiate with the Corps to establish an 

administrative boundary through 

jurisdictional adjacent wetlands, 

landward of which the Tribe or State 

would assume administrative authority. 

If they do so, EPA may consider that 

part of the program description when it 

is submitted with the program 

submission. The default approach, 

however, is that the Corps would retain 

all adjacent wetlands. A specific list of 

all retained adjacent wetlands is not 

required to be included in the retained 

waters description, because developing 

such a list would generally be 

impracticable at the time of program 

assumption. 

EPA had proposed that Tribes or 

States and the Corps establish an 

administrative boundary through 

adjacent wetlands to delineate between 

retained and assumed wetlands, and 

that the default boundary be 300 feet 

from retained waters. Some commenters 

expressed support for this approach, 

stating that it would allow needed 

flexibility for Tribes, States, and the 

Corps to develop Tribal or State 

programs and that the proposal is 

authorized by the CWA. The significant 

majority of comments received during 

the public comment period, however, 

expressed concerns about an 

administrative boundary default 

approach, both with respect to 

implementation and legal authority. 

Concerns expressed about 

implementation included the lack of a 

scientific basis for the 300-foot default 

boundary and the lack of a methodology 

for applying the default boundary. Some 

commenters pointed out that an 

administrative boundary would 

fragment the permitting in large 

wetlands complexes, leading to 

stakeholder confusion, and bifurcate the 

environmental review process, thereby 

making it difficult to ensure a holistic 

evaluation of impacts. These 

commenters stated that because an 

administrative boundary would 

sometimes require two permitting 

agencies to issue different permits for 

two parts of the same project, it would 

unnecessarily duplicate effort on the 

part of permittees, State agencies, and 

members of the public. Commenters 

further noted that it would also burden 

those seeking to challenge permits, who 

might need to litigate two separate 


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permits in two separate fora, potentially 

on different timelines depending on the 

State or Tribe’s judicial review 

procedures. Commenters also argued 

that, because the scope of ‘‘adjacent 

wetlands’’ significantly narrowed 

following the Supreme Court’s May 

2023 decision in Sackett v. EPA and the 

Agency’s subsequent August 29, 2023, 

rulemaking conforming the definition of 

‘‘waters of the United States’’ to that 

case, 88 FR 3004, an administrative 

boundary is no longer necessary. EPA 

finds the practical concerns raised by 

commenters valid. Given the challenges 

involved in implementing the 

administrative boundary concept and 

the reduced need for it, as identified by 

commenters, EPA decided not to 

finalize the proposed approach. 

Commenters also raised legal 

objections to the administrative 

boundary approach. These commenters 

stated that CWA section 404(g)(1) 

provides that adjacent wetlands may not 

be assumed by a State or Tribe and that 

EPA lacks the authority to approve an 

administrative boundary that would 

allow a State to assume authority over 

any part of wetlands that are adjacent to 

a retained water. Because EPA has 

decided not to finalize the 

administrative boundary proposal due 

to implementation concerns, addressing 

the scope of the Agency’s legal authority 

to approve such a boundary is 

unnecessary. If a State or Tribe chooses 

to negotiate an administrative boundary 

with the Corps when developing an 

assumption request, and the parties 

reach agreement, EPA may consider 

issues related to the scope of their 

proposed program at that time. 

A number of commenters asked that 

EPA provide more clarity as to the 

‘‘universe of waters that would be 

retained,’’ including the information 

and data that the Corps and State or 

Tribe would use to assess the scope of 

retained waters. As noted previously, 

however, these commenters did not 

generally provide specific suggestions as 

to how EPA could provide additional 

clarity. The approach EPA is outlining 

adopts the recommendation of the 

Assumable Waters Subcommittee, 

which spent several years assessing how 

EPA could best clarify the scope of 

retained waters. 

Moreover, for the purposes of CWA 

section 404(g)(1), determining which 

waters are presently used or susceptible 

to use in their natural condition or by 

reasonable improvement as a means to 

transport interstate or foreign 

commerce, as well as the scope of 

adjacent wetlands is, to some extent, 

inherently a case-specific process. 

While determining whether a water is 

retained does not require compliance 

with the requirements for determining 

whether a water is subject to RHA 

section 10, and does not necessarily 

require a navigability study, the factors 

used to determine RHA section 10 

jurisdiction may still be relevant to 

determining whether a water should be 

retained. As noted earlier, however, 

there are key distinctions between RHA 

section 10 waters and the scope of 

retained waters. Specifically, unlike 

RHA section 10 waters, Corps-retained 

waters do not include waters that are 

only used historically for the transport 

of interstate or foreign commerce but do 

include adjacent wetlands and, when a 

State is assuming the program, waters 

subject to Tribal authority. 

EPA’s approach to determining the 

retained waters description reflects its 

attempt to balance the competing 

priorities of providing an efficient 

process for program assumption versus 

guaranteeing a fully comprehensive and 

precise description. When a Tribe or 

State is preparing to request 

assumption, the Corps or assuming 

Tribe or State may not know all waters 

that are presently used or susceptible to 

use in their natural condition or by 

reasonable improvement as a means to 

transport interstate or foreign commerce 

at the time of assumption. However, 

requiring a comprehensive assessment 

of every water within the Tribe’s or 

State’s jurisdiction at the time of 

assumption to determine if they should 

be retained pursuant to the 

parenthetical in CWA section 404(g)(1) 

could pose significant practical and 

budgetary challenges. Depending on the 

number of waters within the Tribe’s or 

State’s jurisdiction, developing a 

comprehensive retained waters 

description could take many years and 

reduce the Corps’ ability to carry out its 

regulatory obligations. EPA attempts to 

strike a balance by using the RHA 

section 10 list as a starting point and by 

stating that the retained waters 

description must encompass waters 

‘‘known’’ by the Corps, Tribe, or State 

to meet the statutory criteria. 

Further, as discussed in section 

IV.B.2.b.ii.2 of this preamble below, 

EPA has added an opportunity for 

public input. EPA is confident that 

geographic information systems 

technology and navigation charts, 

review of judicial decisions, public 

input, past jurisdictional 

determinations, and other sources of 

information should enable the Corps, 

Tribe, or State to take significant steps 

in identifying waters in the Tribe’s or 

State’s jurisdiction that should be 

included in the retained waters 

description. As discussed further below, 

moreover, EPA’s regulation allows for 

the retained waters description and the 

Memorandum of Agreement between 

the Corps and Tribe or State to be 

modified if additional waters are 

identified after assumption, or if waters 

included in the description no longer 

meet the statutory criteria. 

2. Procedures for Developing the 

Retained Waters Description 

EPA is facilitating clarity and 

efficiency in the program assumption 

process by establishing defined 

timeframes for the development of the 

retained waters description. Before a 

Tribe or State provides an assumption 

request submission to EPA, the Tribal 

leader, State Governor, or Tribal or State 

Director must submit a request to EPA 

that the Corps identify the subset of 

waters of the United States over which 

the Corps would retain administrative 

authority. The Tribe or State must 

submit the request with specific 

additional information that should 

accompany the request to show that the 

Tribe or State has taken concrete and 

substantial steps toward program 

assumption. One of the following must 

be included with the Tribe’s or State’s 

request that the Corps identify which 

waters would be retained: a citation or 

copy of legislation authorizing funding 

to prepare for assumption, a citation or 

copy of legislation authorizing 

assumption, a Governor or Tribal leader 

directive, a letter from a head of a Tribal 

or State agency, or a copy of a letter 

awarding a grant or other funding 

allocated to investigate and pursue 

assumption. Within seven days of 

receiving the request for the retained 

waters description, EPA will review and 

respond to the request. If the request 

includes the required information, then 

EPA will transmit the request to the 

Corps. This requirement is intended to 

provide assurance to the Corps that 

developing a retained waters 

description for purposes of program 

assumption is a worthwhile expenditure 

of its time and resources. 

One commenter opposed the 

requirement that a Tribe or State 

provide supporting documentation for 

its request, stating that knowing the 

scope of assumed waters is a 

foundational, and preliminary, piece of 

information that States need before 

taking concrete and substantial steps 

toward assumption. EPA recognizes the 

importance of understanding the scope 

of assumed waters to Tribes and States 

before they consider assumption. EPA 

seeks to balance the desire of Tribes and 

States to assess the scope of a potential 

program prior to embarking on such a 

program, however, with the desire to 


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avoid unnecessarily imposing workload 

burdens on the Corps. If EPA did not 

impose such a prerequisite, the Corps 

could be asked to embark upon lengthy 

assessments of the scope of retained 

waters at the request of State 

environmental agency staff, for example, 

only to find out after having expended 

significant resources that the State 

legislature or governor has no intention 

of pursuing program assumption. EPA is 

therefore finalizing its requirement that 

a Tribe or State document it has taken 

concrete and substantial steps toward 

program assumption before submitting 

its request for a retained waters 

description. 

In addition to seeking to facilitate the 

clarity and efficiency of the program 

assumption process, EPA also seeks to 

increase public participation and 

transparency. To that end, EPA is 

providing that, upon transmitting a 

request for a retained waters description 

to the Corps, the Agency will also post 

a public notice of that transmission on 

its website and notify members of the 

public known to be interested in these 

matters of that transmission, inviting 

public input to the Corps as well as the 

State or Tribe on the scope of the 

retained waters description within a 60- 

day period. The Corps (or the Tribe or 

State if the Corps declines to define the 

description) may consider submitted 

information in developing its 

description. If the Corps were to 

develop the description, the Tribe or 

State may provide information to the 

Corps during that 60-day period. 

Similarly, if the Tribe or State were to 

develop the list, the Corps may provide 

information to the Tribe or State before 

the end of that 60-day period. 

Regardless of which entity develops the 

retained waters description, the Corps 

and Tribe or State will likely maintain 

regular communication regarding its 

development. Yet providing data at the 

beginning of the description 

development process will ensure that it 

can be adequately considered. 

This public notice and input 

provision responds to some 

commenters’ requests for additional 

opportunities for public participation in 

the development of the retained waters 

description, while also retaining the 

efficiency in the description 

development process that other 

commenters requested. EPA is not 

establishing a public notice and 

comment period on the final retained 

waters description distinct from the 

other procedural steps, as that would 

lengthen the time period for seeking 

assumption and impose a substantial 

burden on the Corps, the assuming State 

or Tribe, and EPA. A 60-day public 

input period, however, would increase 

public participation in the process of 

determining which waters the Corps 

would retain and the Tribe or State 

would assume, without delaying the 

assumption process. The Corps (or the 

Tribe or State) would not be obligated 

to respond directly to this input but 

could consider it in compiling its 

description of retained waters. 

Members of the public have another 

opportunity to provide comment on the 

retained waters description when 

reviewing the Tribe’s or State’s program 

submission. Some commenters 

requested a separate public notice and 

comment process specifically if a State 

takes on the development of the 

retained waters description. EPA 

expects that the public input 

opportunity offered when EPA transmits 

a request for a retained waters 

description to the Corps will be 

sufficient to provide the Tribe or State 

with information to assist in developing 

the description. Moreover, a Tribe or 

State may provide opportunities for 

public engagement as it develops its 

program submission, which would 

again allow members of the public to 

provide input on the retained waters 

description. 

If the Corps notifies the Tribe or State 

and EPA within 30 days of receipt of the 

request transmitted by EPA that it 

intends to provide a retained waters 

description, the Corps would have 180 

days from the receipt of the request 

transmitted by EPA to develop the 

description. During the 180-day period 

the Corps would be able to review the 

current RHA section 10 list(s); place 

waters of the United States or reaches of 

those waters from the RHA section 10 

list into the retained waters description 

if they are known to be presently used 

or susceptible to use in their natural 

condition or by reasonable improvement 

as a means to transport interstate or 

foreign commerce; and to the extent 

feasible and to the extent that 

information is available, add other 

waters or reaches of waters to the 

retained waters description that are 

presently used or are susceptible to use 

in their natural condition or by 

reasonable improvement as a means to 

transport interstate or foreign 

commerce. 

If the Corps does not notify the Tribe 

or State and EPA within 30 days of 

receipt of the request transmitted by 

EPA that it intends to provide a retained 

waters description, the Tribe or State 

may prepare a retained waters 

description using the same approach 

outlined above for the Corps. Similarly, 

if the Corps had originally indicated 

that it would provide a retained waters 

description but does not provide one 

within 180 days of EPA’s transmission 

to the Corps, the Tribe or State may 

develop the retained waters description 

using the same approach described 

above. Alternatively, the Tribe or State 

and the Corps may also mutually agree 

to provide the Corps additional time to 

provide a retained waters description. 

EPA received a number of comments 

on the time frame and coordination 

process outlined in the proposed rule, 

which it is finalizing in this rule. Some 

commenters stated that the Corps 

should be allowed one year to develop 

a retained waters description to allow 

sufficient time to conduct the 

assessments needed to compile a 

complete description, particularly given 

that some RHA section 10 lists may be 

outdated. Some commenters also stated 

that under no circumstances should a 

Tribe or State have the opportunity to 

develop a retained waters description, 

contending that States lack the authority 

and expertise to make these 

determinations. Other commenters 

stated that 180 days was too long a 

period to require a State or Tribe to wait 

prior to finalizing their program 

submission, and that Congress did not 

intend States and Tribes to have to wait 

for this length of time. 

EPA decided to finalize its proposed 

approach of allowing the Corps 180 

days to develop a list, which it views as 

striking a balance between the desire of 

States and Tribes to understand the 

scope of a potential program as quickly 

as possible, and the time the Corps 

needs to complete the resourceintensive process of assessing those 

waters that meet the statutory criteria to 

be retained. Moreover, in response to 

those commenters who urged EPA to 

allow the Corps additional time, EPA 

added a provision that would extend the 

180-day time frame if the requesting 

Tribe or State agrees with the Corps on 

an extension. In response to the 

commenters that stated that Tribes or 

States may never develop a retained 

waters description, EPA views this rule 

as providing ample opportunity and 

encouragement to the Corps to develop 

the description. However, allowing a 

Tribe or State opportunity to develop a 

list if the Corps chooses not to do so is 

a backstop that is consistent with and 

helps to implement the statute’s intent 

of facilitating Tribal and State 

assumption. Nothing in the CWA 

prohibits the Tribe or State from 

developing a retained waters 

description. The Act requires that the 

Tribe or State submit a description of 

assumed waters, and it is reasonable for 

the Agency to allow a Tribe or State to 

submit such a description for EPA 


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approval with their program request, if 

the Corps declines to develop a retained 

waters description. 

EPA disagrees with those commenters 

who expressed concerns that allowing 

the Corps 180 days to develop a retained 

waters description would unduly 

hamper Tribal or State efforts to develop 

a program submission. In EPA’s 

experience, States that have considered 

seeking assumption typically spend at 

least several years preparing their 

submissions. Allowing the Corps to 

spend 180 days developing the 

description (or more, if an extension is 

jointly agreed upon) would therefore be 

unlikely to impede Tribal or State 

efforts. Moreover, the Corps may need 

180 days to allocate staff to this project 

and conduct the reviews and analyses 

needed to determine which waters meet 

the statutory criteria to be retained by 

the Corps. 

The Subcommittee majority 

recommended that identification of the 

subset of waters of the United States 

over which the Corps would retain 

administrative authority be a 

collaborative process. EPA anticipates 

that, when a Tribe or State seeks 

assumption, the Tribe or State, the 

Corps, and EPA will engage 

collaboratively throughout the 

development of this description of 

retained waters to be submitted with the 

program request package for review. 

Even if the Corps does not provide a 

retained waters description to the Tribe 

or State, the Corps may provide relevant 

information to the Tribe or State at any 

time during the Tribe’s or State’s 

development of the retained waters 

description. In addition, the Corps 

would have two formal opportunities to 

review the list of retained waters that is 

produced by the Tribe or State. First, the 

Memorandum of Agreement between 

the Corps and the Tribe or State 

includes a description of retained 

waters, and thus the Corps would have 

the opportunity to review the 

description of retained waters during 

the drafting process for that 

memorandum and before signing that 

memorandum. Second, the Corps would 

have the opportunity to review and 

provide comments on the Tribe’s or 

State’s program submission materials, 

which includes the description of 

retained waters, after the Tribe or State 

submits a program request to EPA. 

Similarly, if the Corps provides a 

retained waters description to the Tribe 

or State, the Tribe or State would 

presumably review it to ensure that the 

retained waters description reflects 

waters presently used or susceptible to 

use in their natural condition or by 

reasonable improvement as a means to 

transport interstate or foreign 

commerce, including all waters which 

are subject to the ebb and flow of the 

tide, as well as wetlands that are 

adjacent to the foregoing waters, to the 

extent feasible and to the extent that 

scope of waters is known. 

The Subcommittee majority 

recommended that EPA and the Corps 

establish a clear dispute resolution 

procedure to be followed if the Tribe or 

State and the Corps were not able to 

complete the retained waters 

description. Because EPA believes that 

the proposed approach lays out a clear 

process for establishing the description, 

EPA is not specifying such a dispute 

resolution procedure by regulation. See 

section IV.E.1 of this preamble for 

further discussion on dispute 

resolution. EPA encourages Tribes and 

States seeking to assume the section 404 

program to work collaboratively with 

the Corps to resolve any issues, and EPA 

may participate in these discussions to 

advise and facilitate development of the 

description. 

EPA’s process, similar to the one 

described by the Subcommittee 

majority, is clear and practical, is based 

on available and relatively stable and 

predictable information, and is able to 

be implemented efficiently at the time a 

Tribe or State seeks assumption. It is 

also consistent with the text and history 

of section 404(g), which reflects 

Congress’ intent that the Corps generally 

retain permitting authority over certain 

RHA section 10 waters. See section III.A 

of this preamble. Because the Agency’s 

approach, consistent with the 

Subcommittee majority’s 

recommendation, effectuates the 

language and history of section 404(g) 

and achieves Congress’ goal of 

providing an implementable approach 

for assumption, generally speaking, a 

retained waters description that uses 

this approach will satisfy the statutory 

criteria for retained waters. However, 

the Regional Administrator retains the 

ultimate authority to determine whether 

to approve a Tribal or State program. As 

this approach does not conflict with the 

approved extent of the Michigan and 

New Jersey programs, no changes to 

their existing program scope would be 

required. 

3. Modifying the Extent of Retained 

Waters 

EPA is revising the provision in the 

prior regulations that currently states 

that modifications that affect the area of 

jurisdiction (such as modifications to 

the retained waters description) always 

constitute substantial revisions to a 

Tribal or State program. The prior 

regulations provide that EPA may 

approve non-substantial revisions by 

letter, but require additional procedures, 

including public notice, inter-agency 

consultation, and Federal Register 

publication, for substantial revisions. 40 

CFR 233.16(d)(2)–(4) (2023). EPA is 

modifying this provision to provide that 

all removals, except de minimis 

removals, from the retained waters 

description are ‘‘substantive,’’ and 

therefore trigger the notice requirements 

for ‘‘substantive’’ program changes.’’ In 

addition, changes in geographic scope of 

an approved Tribal CWA section 404 

program that would add reservation 

areas to the scope of its approved 

program are substantial program 

revisions. 

EPA had proposed removing the 

provision stating that modifications 

affecting the area of jurisdiction always 

constitute substantial revisions, though 

also providing that changes in 

geographic scope of an approved Tribal 

CWA section 404 program that would 

add reservation areas to the scope of its 

approved program are substantial 

program revisions. The proposed change 

was based on EPA’s experience that 

retained waters descriptions sometimes 

require minor tweaks (such as minor 

modifications to the head of navigation 

of a particular waterbody) and that 

requiring a full Federal Register notice 

for such changes is unnecessarily 

burdensome. Commenters expressed 

concern, however, that pursuant to the 

proposed revision waters could be 

reassigned to State jurisdiction without 

any public notice or opportunity to 

comment. These commenters therefore 

asked that all removals from the 

retained waters description be viewed 

as substantial revisions. EPA is 

accepting this recommendation and 

finalizing this approach, with the 

qualification that de minimis removals 

are not substantial. Examples of de 

minimis removals may include a 

reduction in the length of a retained 

portion of a waterbody by a hundred 

feet prompted by a new navigability 

study or changes resulting from a water 

infrastructure project, or the removal 

from the retained waters description of 

an oxbow lake that sedimentation has 

severed from a Corps-retained river. 

EPA thinks this approach will achieve 

EPA’s goal of removing unnecessarily 

burdensome procedures while 

providing transparency for interested 

parties. 

While development of the retained 

waters description involves 

collaboration between the Corps and the 

Tribe or State, the Corps remains the 

agency with sole responsibility for 

maintaining and modifying any RHA 

section 10 list. The Subcommittee 


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majority recognized that the Corps may 

add waters to RHA section 10 lists after 

a Tribe or State assumes the program. 

The Subcommittee majority 

recommended that in such cases, Tribes 

or States may revise their retained 

waters descriptions to add these waters, 

if consistent with CWA section 

404(g)(1). As discussed above, an RHA 

section 10 list will not necessarily be coextensive with the retained waters 

description and changes to RHA section 

10 lists do not always warrant changes 

to the retained waters description. For 

example, if the Corps adds to its RHA 

section 10 list a water which was 

historically used in interstate or foreign 

commerce but is no longer used or 

susceptible to use for that purpose, that 

water would not be added to the 

retained waters description. 

If, however, the Corps were to add 

waters to its RHA section 10 list that are 

used or susceptible to use in interstate 

or foreign commerce, the relevant Tribe 

or State would add these waters to the 

retained waters description. To provide 

a predictable and transparent procedure 

for such modifications, and to address 

commenters’ concerns that many RHA 

section 10 lists are not currently up to 

date, the final rule provides that the 

Memorandum of Agreement between 

the Corps and the Tribe or State must 

outline procedures whereby the Corps 

will notify the Tribe or the State of 

changes to the RHA section 10 list as 

well as the extent to which these 

changes implicate the statutory scope of 

retained waters. Pursuant to the 

Memorandum of Agreement, the Tribe 

or State would incorporate the changes 

the Corps has identified as implicating 

the scope of retained waters into its 

retained waters description. 

Under the final rule, EPA would have 

discretion to determine whether 

additions to the area of jurisdiction, 

which includes the extent of retained 

waters, are substantial or nonsubstantial. EPA may then decide 

whether to approve the modification to 

the retained waters description 

consistent with the procedures in 40 

CFR 233.16. 

This rule clarifies that changes in 

geographic scope of an approved Tribal 

CWA section 404 program that would 

add reservation areas to the scope of its 

approved program are substantial 

program revisions. Where a Tribe seeks 

to include additional reservation areas 

within the scope of its approved 

program, the Regional Administrator 

must determine that the Tribe meets the 

TAS eligibility criteria for the additional 

areas and waters. The substantial 

modification process involves 

circulating notice to ‘‘those persons 

known to be interested in such matters, 

provide opportunity for a public 

hearing, and consult with the Corps, 

FWS, and NMFS.’’ 40 CFR 233.16(d)(3). 

In the case of a change in geographic 

scope of a Tribal program, known 

interested persons would typically 

include representatives of Tribes, States, 

and other Federal entities located 

contiguous to the reservation of the 

Tribe which is applying for TAS. See, 

e.g., Amendments to the Water Quality 

Standards Regulation That Pertain to 

Standards on Indian Reservations, 56 FR 

64876, 64884 (December 12, 1991). This 

clarification is necessary because as 

discussed above, additions that affect 

the area of jurisdiction are not always 

substantial. However, revising a Tribal 

program to add new reservation land 

and waters of the United States on that 

land is substantial because it requires a 

determination that the Tribe meets the 

TAS eligibility criteria for such areas, 

pursuant to 40 CFR part 233, subpart G. 

EPA is further amending the 

procedures associated with approval of 

program revisions to require EPA to 

notify the Corps of all approvals of 

program modifications, whether they 

are substantial or non-substantial. EPA 

is also requiring that other Federal 

agencies be notified of these program 

modification approvals as appropriate. 

4. Additional Clarification 

EPA is removing the term 

‘‘traditionally’’ from the term 

‘‘traditionally navigable waters’’ in the 

following provision: ‘‘Where a State 

permit program includes coverage of 

those traditionally navigable waters in 

which only the Secretary may issue 404 

permits, the State is encouraged to 

establish in this Memorandum of 

Agreement procedures for joint 

processing of Federal and State permits, 

including joint public notices and 

public hearings.’’ 40 CFR part 

233.14(b)(2). EPA is removing the term 

‘‘traditionally’’ to align the reference to 

retained waters with the rest of this 

preamble and regulations, which refer to 

retained waters using the statutory 

language in the section 404(g) 

parenthetical, and do not refer to 

retained waters as ‘‘traditionally’’ or 

‘‘traditional navigable waters.’’ 

‘‘Traditional navigable waters’’ are 

defined in the definition of ‘‘waters of 

the United States’’ and are not 

addressed by this rule. See 40 CFR part 

120.2(a)(1)(i). 

3. Program Assumption Requirements 

a. Overview and What the Agency Is 

Finalizing 

The Agency proposed changes to 

better harmonize its program approval 

requirements with program 

requirements in other sections of the 

CFR. To assume the section 404 

program, a Tribe or State must be able 

to demonstrate that it can meet the 

requirements for permitting, program 

operation, compliance evaluation and 

enforcement, and administer a program 

that is consistent with section 404. EPA 

is revising the requirements for the 

program descriptions that Tribes and 

States submit to EPA when they request 

approval to assume the section 404 

program. First, the revisions clarify that 

the description of the funding and staff 

devoted to program administration and 

compliance evaluation and enforcement 

must demonstrate that the Tribe or State 

is able to carry out the existing 

regulatory requirements for permit 

review, program operation, and 

compliance evaluation and enforcement 

programs, provided in 40 CFR part 233 

subparts C through E. In order to do so, 

the Tribe or State must provide in the 

program description staff position 

descriptions and qualifications, program 

budget and funding mechanisms, and 

any other information a Tribe, State, or 

EPA considers relevant. The revisions 

ensure that when a Tribe or State 

submits a request to assume the section 

404 program, its program submission 

would demonstrate the Tribe or State 

has the resources necessary to ensure 

that the permit decisions comply with 

permit requirements in 40 CFR part 233 

subpart C, as applicable; that its 

permitting operations would comply 

with the program operation 

requirements of 40 CFR part 233 subpart 

D, as applicable; and that its compliance 

evaluation and enforcement operations 

would comply with the compliance 

evaluation and enforcement 

requirements of 40 CFR part 233 subpart 

E, as applicable. 

EPA is also revising the requirement 

that currently provides that if more than 

one State agency is responsible for the 

administration of the program, the 

program description shall address the 

responsibilities of each agency and how 

the agencies intend to coordinate 

administration, compliance, 

enforcement, and evaluation of the 

program. This rule adds that the 

program description must address 

additional program budget and funding 

mechanisms for each of these agencies, 

and how the agencies intend to 

coordinate program funding. 


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33 In this revision, EPA is replacing the term 

‘‘manpower’’ with ‘‘staffing’’ and will use the term 

‘‘staffing’’ throughout this preamble. 

Similarly, the Agency is revising the 

requirement that the Tribe or State 

program description include ‘‘[a] 

description of the scope and structure of 

the State’s program. . .[which] should 

include [the] extent of [the] State’s 

jurisdiction, scope of activities 

regulated, anticipated coordination, 

scope of permit exemptions if any, and 

permit review criteria.’’ 40 CFR part 

233.11(a) (2023). EPA is clarifying that 

this description ‘‘must’’ address all of 

the listed elements in 233.11(a). The 

rule is also clarifying that the 

description must provide sufficient 

information to demonstrate that the 

criteria are sufficient to meet the permit 

requirements in 40 CFR 233 subpart C. 

These revisions do not substantively 

change the requirements for permit 

review, program operation, and 

compliance evaluation and enforcement 

programs. Rather, they ensure that 

Tribes or States provide EPA with 

sufficient information to ensure that 

Tribal or State programs would be able 

to meet these requirements. 

Finally, EPA is revising the program 

description requirement that if more 

than one Tribal or State agency would 

be administering the program, the 

program description shall address interagency coordination. The revision 

clarifies that the description of interagency coordination must include 

coordination on enforcement and 

compliance. 

b. Summary of Final Rule Rationale and 

Public Comment 

CWA section 404(h) provides that, 

before approving a Tribe’s or State’s 

section 404 program, EPA shall 

determine whether the Tribe or State 

has the authority to administer the 

program, including to issue permits that 

comply with the CWA 404(b)(1) 

Guidelines, to provide for public notice 

and opportunity for comment on permit 

applications, and to abate violations of 

the permit or permit program. See 33 

U.S.C. 1344(h)(1)(A), (C), (G). Section 

404(h) refers to a Tribe’s or State’s 

‘‘authority,’’ but legal authority would 

be meaningless without the capacity to 

implement it. Clarifying that EPA must 

ensure that Tribes and States have the 

resources and programs in place to 

implement their authority best carries 

out section 404(h). 

EPA’s existing regulations effectuate 

section 404(h) by imposing program 

requirements for permitting, program 

operation, and compliance evaluation 

and enforcement set forth in 40 CFR 

part 233 subparts C through E to 

administer a program that is consistent 

with section 404. A program that lacks 

the resources to meet these 

requirements would not be able to carry 

out its statutory and regulatory 

obligations. This rule would not change 

these existing requirements; rather, it 

would ensure that the program 

submission provides information 

necessary to determine that Tribes and 

States can meet them. 

In the 1988 preamble to the section 

404 State program regulations, EPA 

stated that the program description 

Tribes and States must submit to EPA 

‘‘should provide the information needed 

to determine if the State has sufficient 

manpower to adequately administer a 

good program.’’ 53 FR 20764, 20766 

(June 6, 1988). However, 40 CFR part 

233 subpart B, which contains the 

requirements for program approval, 

does not explicitly state that Tribes and 

States must demonstrate that they have 

sufficient resources to meet the 

requirements for permit issuance, 

program operation, and compliance and 

enforcement outlined in subparts C 

through E. The regulations require that 

the program description contain ‘‘a 

description’’ of available funding and 

manpower (i.e., staffing),33 40 CFR 

233.11(d) (2023), but did not clearly 

state that the available funding and 

staffing must be sufficient to meet the 

requirements of subparts C through E. In 

addition, the regulations provide that 

the program description must include 

‘‘a description’’ of the Tribe’s or State’s 

compliance evaluation and enforcement 

programs, including a description of 

how the Tribe or State will coordinate 

its enforcement strategy with the Corps 

and EPA, 40 CFR 233.11(g) (2023), but 

did not clearly state that the Tribe’s or 

State’s compliance evaluation and 

enforcement programs must be 

sufficient to meet the requirements for 

section 404 program compliance 

evaluation and enforcement in subpart 

E. In the absence of these clarifications, 

the regulations did not provide 

sufficient guidance as to what kind of 

demonstration is needed by Tribes and 

States as they develop their programs. 

This revision would clarify the subpart 

B descriptions Tribes or States must 

submit, consistent with the goal of this 

rulemaking, to provide more clarity on 

the program assumption process for 

Tribes and States. See section III.B of 

this preamble. The purpose of subpart B 

is to require Tribes and States to 

demonstrate that they in fact have the 

capacity to carry out subparts C through 

E, pursuant to the original intent of the 

current regulations, and these changes 

would better reflect that intent. 

This rule requires the program 

description to identify position 

descriptions and qualifications as well 

as budget and funding mechanisms for 

all responsible Tribal or State agencies 

because this information is critical to 

understanding whether a Tribe or State 

will be able to administer subparts C 

through E. EPA must be able to 

determine that the Tribe or State will 

have sufficient qualified staff and a 

reliable and sufficient funding 

mechanism that will be commensurate 

with the responsibilities it seeks to 

assume. Given the importance of these 

elements, Tribes and States should have 

staffing and budget information readily 

available, and providing it in the 

program description should not impose 

a significant new burden. 

Some commenters opposed these 

revisions, as presented in the proposed 

rule, arguing that such requirements 

could result in unnecessary delays or 

confuse Tribes or States preparing 

assumption submissions. These 

commenters also stated that such 

revisions are unnecessary. For example, 

one commenter argued that to the extent 

EPA were to find, for example, staffing 

levels described in the program 

description insufficient, the 120-day 

review period for program submissions 

would not provide time for a Tribe or 

State to increase those levels. EPA 

disagrees with these commenters and 

has decided to finalize these revisions 

for the reasons discussed above. In 

response to the commenter that said that 

information about staffing levels would 

not aid EPA, EPA thinks that requiring 

transparency about staffing levels will 

encourage Tribes and States to ensure 

that their staffing levels will be 

sufficient to carry out their program. 

Without adequate staff to draft 

protective permits and inspect and 

review dredged and fill activity, it is not 

possible for a program to comply with 

CWA requirements. For example, EPA 

cannot assess a Tribe’s or State’s ability 

to administer CWA section 404 if it does 

not know whether the Tribe or State 

will have two permit writers or twenty. 

Moreover, EPA typically provides 

extensive technical support to Tribes 

and States that are preparing program 

submissions, and Tribes and States may 

discuss staffing levels with EPA at any 

time prior to their program submission. 

Many commenters supported the 

revisions in this section. Some asked 

EPA to require additional information 

from Tribes or States. One suggested 

addition was to require budget and 

funding information for all Tribal or 

State agencies with program 


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34See section IV.A.2 of this preamble for a 

discussion on how a Tribe or State can demonstrate 

that it has the authority to issue permits that apply 

and assure compliance with aspects of the CWA 

404(b)(1) Guidelines other than compensatory 

mitigation. 

35The term compensatory mitigation means ‘‘the 

restoration (re-establishment or rehabilitation), 

establishment (creation), enhancement, and/or in 

certain circumstances preservation of aquatic 

resources for the purposes of offsetting unavoidable 

adverse impacts which remain after all appropriate 

and practicable avoidance and minimization has 

been achieved.’’ 40 CFR 230.92. 

36 ‘‘Compensatory Mitigation for Losses of 

Aquatic Resources’’ 73 FR 19594 (April 10, 2008). 

(Commonly referred to or known as the ‘‘2008 

Mitigation Rule’’). The 2008 Mitigation Rule was 

adopted into both EPA and the Corps regulations. 

See 33 CFR 325.1 and 332.1 through 332.8 and 40 

CFR 230.91 through 230.98. The Agency refers to 

EPA’s regulations located at 40 CFR 230.91–98 as 

subpart J of the 404(b)(1) Guidelines throughout this 

final rule. 

administration responsibilities, not just 

the lead agency. This suggested 

requirement is consistent with the 

budget and funding information EPA 

proposed to require, and simply 

addresses a potential ambiguity by 

clarifying that the budget and funding 

information EPA requests applies to all 

Tribal or State agencies with a role in 

the section 404 program, not just the 

lead agency. EPA is therefore adopting 

this suggested requirement in the final 

rule. 

Other program description 

requirements that commenters asked 

EPA to finalize include, but are not 

limited to: Tribes or States seeking to 

reallocate existing resources must 

describe the duties that existing staff 

will no longer perform and the skills 

and expertise staff have that apply to 

reallocated tasks; Tribal or State budget 

descriptions must account for all 

aspects of the section 404 program, 

including administrative work, human 

resources, information technology, 

training, guidance, leadership, 

enforcement, compliance, scientific 

personnel, on-site activities and legal 

personnel; and Tribes or States must 

demonstrate that any existing CWAauthorized programs are adequately 

funded and staffed. EPA considered 

requiring some or all of the suggested 

information of Tribes and States, but 

ultimately concluded that requiring this 

level of detail is unnecessary. EPA will 

not always need each of these pieces of 

information to determine whether a 

program submission meets the 

requirements of the CWA. Codifying 

information requirements with this 

degree of specificity could limit 

flexibility on the part of Tribes or States 

and EPA to design and approve program 

descriptions reflecting their particular 

circumstances. However, EPA views 

this suggested information as helpful 

guidance to Tribes or States as they 

assess how best to demonstrate that they 

have the capacity to administer the 

section 404 program. Tribes and States 

are welcome to submit this type of 

information, and if they do so, it will 

likely aid EPA’s review of the program 

submission. 

EPA recommends that Tribes and 

States provide other information to the 

extent it is necessary to demonstrate 

that they will be able to carry out 

subparts C through E. Some commenters 

suggested that if a Tribal or State 

program submission commits to 

conduct the same activities as the Corps 

but with a lower budget or fewer staff 

people, the submission must provide 

detailed documentation demonstrating 

how they will be able to successfully 

administer the section 404 program. In 

fact, one commenter noted that Tribes or 

States should allocate more money to 

assumption than the Corps in the first 

few years of assumption, given the 

additional costs of starting a program. 

To the extent Tribes or States can 

compare resource levels with the Corps’, 

EPA agrees with the commenter that 

this information would be useful, and 

strongly encourages Tribes and States to 

provide such comparisons. EPA is not 

codifying this requirement, however, as 

differences in administrative structures 

may render a direct comparison 

between Tribe or State funding or staff 

and Corps funding or staff infeasible. 

For example, a Corps district may not be 

able to identify the number of staff 

focused solely on section 404 permitting 

or on a single State, if its staff 

administers the section 404 regulatory 

program as well as RHA section 10 or 

other types of permitting programs, and/ 

or if the staff manages permitting for a 

number of States. The difficulties with 

direct comparisons could be 

compounded in States that include 

multiple Corps districts. An alternative 

approach could compare the average 

number of different types of section 404 

permits (i.e., individual versus general 

permits) Corps staff handle in a district 

to the average number of permits the 

Tribe or State has or anticipates its staff 

will handle in an assumed program. 

The rule does not prescribe a 

particular metric that Tribes or States 

must use to ensure sufficient funding, 

staffing, or compliance evaluation and 

enforcement programs. It also does not 

prescribe the specific position 

descriptions and qualifications a Tribe 

or State must have, a minimum budget, 

or a particular type of funding 

mechanism. The rule therefore retains a 

certain amount of flexibility for Tribes 

and States, recognizing that the section 

404 program needs of different Tribes 

and States can differ. Tribal or State 

agencies likely have varying procedures 

for determining sufficient staff and 

funding levels and may choose to 

organize their programs in different 

ways. Furthermore, the necessary 

section 404 program budget may differ 

depending on the anticipated workload 

in the particular Tribe or State, such as 

the number of permits typically sought, 

the extent and types of aquatic resources 

assumed, and the types of compensatory 

mitigation mechanisms used. In adding 

clarification to better carry out the 

requirements of 40 CFR 233.11, this 

revision does not reopen those 

requirements. 

EPA’s clarification, that as part of the 

program description, the Tribe or State 

must demonstrate that its permit review 

criteria are sufficient to carry out the 

permitting requirements of 40 CFR part 

233 subpart C, has the same goal as the 

program revisions described above: it 

would harmonize the requirements for 

the program description with the 

requirements for program operation, and 

facilitate EPA’s ability to ensure that 

Tribal and State permits will comply 

with the CWA 404(b)(1) Guidelines. 

Finally, requiring that the description 

of Tribal and State agency coordination 

on program administration must address 

enforcement and compliance will 

enable EPA to ensure the Tribe or State 

can comply with the requirements of 40 

CFR part 233 subpart E, which 

prescribes the enforcement and 

compliance requirements for assumed 

programs. 

4. Mitigation 

a. Overview and what is the Agency 

finalizing? 

The CWA and EPA’s implementing 

regulations provide that every permit 

issued by a Tribe or State must apply 

and ensure compliance with the 

guidelines established under CWA 

section 404(b)(1).34 33 U.S.C. 

1344(h)(1)(A)(i); 40 CFR 233.20(a), 

233.23(c)(9) (2023). Under CWA 

404(b)(1) Guidelines, impacts to waters 

of the United States should be avoided 

and minimized to the maximum extent 

practicable before considering 

compensatory mitigation.35 40 CFR 

230.10(a), (d). In 2008, the Corps and 

EPA issued joint regulations 36 requiring 

performance standards and establishing 

criteria for all types of compensatory 

mitigation including: (1) on- and off-site 

permittee-responsible compensatory 

mitigation, (2) mitigation banks, and (3) 

in-lieu fee programs, to ‘‘offset 

unavoidable impacts to waters of the 

United States authorized through the 

issuance of permits by the U.S. Army 

Corps of Engineers (Corps) pursuant to 


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37This requirement does not include permitteeresponsible mitigation plans as those would be 

reviewed as part of the permit conditions. If the 

Tribe or State uses permittee-responsible 

mitigation, the mitigation plan would be reviewed 

as part of the permit process. After approval, all 

specifications generally would be presented as 

permit conditions. 

section 404 of the Clean Water Act.’’ 40 

CFR 230.91(a)(1). 

The prior regulations reaffirmed that 

all permits issued by Tribal and State 

programs must accord with the 

requirements of the Act or regulations 

thereunder. 40 CFR 233.1(d), 233.20(a) 

(2023). As previously described in 

section IV.A.2 of this preamble, 

Congress allowed leeway for Tribes and 

States to craft a Tribal or State program 

consistent with circumstances specific 

to that Tribe or State, so long as their 

permits will assure compliance with the 

CWA 404(b)(1) Guidelines at least as 

stringently as permits issued by the 

Corps. EPA further explained in 

promulgating the CWA 404(b)(1) 

Guidelines that they are intended to 

provide ‘‘a certain amount of 

flexibility,’’ consisting of tools for 

evaluating proposed discharges, rather 

than numeric standards. 45 FR 85336, 

85336 (December 24, 1980). 

While 40 CFR 233.1(d) of the prior 

regulations reemphasized that approved 

Tribe and State programs ‘‘may impose 

more stringent requirements’’ but ‘‘may 

not impose any less stringent 

requirements for any purpose,’’ the 

regulations did not provide any detail as 

to how a Tribe or State can demonstrate 

and ensure compliance with the 

substantive criteria and requirements of 

subpart J of the 404(b)(1) Guidelines, as 

subpart J was developed more than a 

decade after the Tribal and State section 

404 program regulations were revised in 

1988. Additionally, the language used in 

subpart J of the 404(b)(1) Guidelines 

focuses on Federal concerns regarding 

permits issued by the Corps; for 

example, it references the ‘‘DA 

[Department of the Army] permits’’ and 

the ‘‘district engineer’’ and does not 

refer to or account for Tribe- or Stateissued permits. See 73 FR 19650. These 

Corps-related references have created 

confusion. As a result, States have 

requested clarity on how a Tribe or State 

can demonstrate that it has authority to 

issue permits that apply and assure 

compliance with the substantive criteria 

for compensatory mitigation set forth in 

subpart J of the CWA 404(b)(1) 

Guidelines. States have also requested 

clarification about the respective roles 

and responsibilities of the Tribe or State 

and Federal agencies in connection with 

compensatory mitigation for impacts to 

assumed waters. 

With respect to subpart J of the 

404(b)(1) Guidelines, EPA recognized 

some terminology and discussion refers 

to the Corps as the permitting authority. 

EPA proposed modifying section 

233.1(e) to clarify that references to the 

Corps as the permitting authority (such 

as references to the ‘‘District Engineer’’ 

or ‘‘DA Permits’’) are to be considered 

as applying to the Tribal or State 

permitting agency or decision maker as 

appropriate. The final rule codifies this 

proposed approach. 40 CFR 233.1(e). 

Secondly, EPA proposed a new 

provision codifying its interpretation 

that the Tribe’s or State’s approach may 

deviate from the specific requirements 

to the extent necessary to reflect Tribal 

or State administration of the program 

as opposed to the Corps’ administration, 

but that these programs may not be less 

stringent than the substantive criteria of 

subpart J. Furthermore, the new 

provision requires Tribes or States to 

submit in their program description the 

Tribe’s or State’s proposed approach to 

ensuring that all permits they issue will 

apply and ensure compliance with the 

substantive criteria for compensatory 

mitigation consistent with the 

requirements of subpart J of the CWA 

404(b)(1) Guidelines at 40 CFR part 230. 

EPA is finalizing what was proposed 

without modification in section 

233.11(k). 

Finally, EPA proposed to add a new 

provision to section 233.50 to address 

EPA’s oversight responsibilities where 

Tribe or State programs are establishing 

third-party compensation mechanisms 

(i.e., mitigation banks or in-lieu fee 

programs) as part of their section 404 

program.37 The proposed process also 

intended to incorporate input from 

other relevant agencies, which is 

analogous to the way the Interagency 

Review Team (IRT) that oversees 

mitigation for Corps-issued permits 

incorporates input from other relevant 

agencies. See, e.g., 33 U.S.C. 1344(g), 

(h); 40 CFR 233.20(b) (‘‘No permit shall 

be issued . . . [w]hen the Regional 

Administrator has objected to issuance 

of the permit . . .’’); 40 CFR part 233 

generally; 40 CFR 230.98(b) (describing 

Interagency Review Team procedures). 

The Agency also proposed to revise the 

section title for section 233.50 to read 

‘‘Review of and objection to State 

permits and review of compensatory 

mitigation instruments.’’ This revision 

was intended to reflect the Agency’s 

role in reviewing Tribal or State 

compensatory mitigation instruments. 

The new provision (i.e., section 

233.50(k)) outlines a process which 

requires Tribes or States to transmit a 

copy of each draft instrument to EPA, 

the Corps, the U.S. Fish and Wildlife 

Service, and the National Marine 

Fisheries Service for review prior to 

approving the final instrument, as well 

as to any Tribal or State resource 

agencies to which the Tribe or State 

committed to send draft instruments in 

the program description. In the event 

that EPA has commented that the 

instrument is not consistent with the 

404(b)(1) Guidelines (see section 

233.11(k)), the Tribe or State shall not 

approve the final compensatory 

mitigation instrument until EPA notifies 

the Director that the final instrument is 

consistent with the Guidelines. EPA is 

finalizing the proposed process along 

with specific time frames for receiving 

comments from the reviewing agencies 

in section 233.50(k). 

b. Summary of Final Rule Rationale and 

Public Comment 

i. Clarifying Authority 

The final rule, consistent with the 

proposal, clarifies in the new provision 

233.1(e) that when a Tribe or State 

assumes the section 404 program, 

references to the Corps as the permitting 

authority (such as references to the 

‘‘District Engineer’’ or ‘‘DA Permits’’) in 

subpart J are to be considered as 

applying to and being implemented by 

the Tribal or State permitting agency or 

decision maker. EPA received no 

comments on this issue. 

ii. Ensuring Consistency and 

Compliance With Subpart J 

The new provision 40 CFR 233.11(k) 

accomplishes three objectives. First, the 

new provision requires that Tribes or 

States submit in their program 

description their approach to ensure 

that all permits issued will satisfy and 

be consistent with the substantive 

standards and criteria of the 

compensatory mitigation set out in 

subpart J. This description allows EPA 

to evaluate whether the Tribe’s or 

State’s approach can implement a 

compensatory mitigation program 

consistent with the requirements of the 

CWA. Second, the new provision at 

section 233.11(k) clarifies that the 

Tribe’s or State’s approach may deviate 

from the specific requirements of 

subpart J to the extent necessary to 

reflect Tribal or State administration of 

the program. For example, a Tribal or 

State program may choose to provide for 

mitigation in the form of banks and 

permittee responsible compensatory 

mitigation but may choose not to 

establish an in-lieu fee program. Lastly, 

the new provision at section 233.11(k) 

codifies EPA’s interpretation that Tribal 

and State section 404 programs must 

issue permits that are no less stringent 


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than and consistent with the substantive 

criteria for compensatory mitigation 

described in 40 CFR part 230, subpart J. 

The new provision is consistent with 

CWA section 404(h)(1)(a), 40 CFR 

233.1(e), and 40 CFR 233.20(a). 

Commenters were divided on the 

Agency’s proposed approach to this new 

provision. Commenters opposing the 

Agency’s proposed approach asked the 

Agency to require Tribes and States to 

adopt verbatim or by reference the 

requirements of subpart J of the section 

404(b)(1) Guidelines. These commenters 

asserted that verbatim adoption or 

incorporation by reference of the 

mitigation requirements set forth in 

subpart J would ensure consistency with 

the 404(b)(1) Guidelines and ‘‘promote 

consistency and ease for the EPA, 

permittees and citizens.’’ Commenters 

supporting the proposed approach (i.e., 

allowing Tribal and State programs to 

deviate from the substantive criteria of 

subpart J) asserted that Tribes and States 

are in a better position to make 

decisions and design appropriate 

mitigation approaches for their Tribe or 

State than the Corps. Some commenters 

requested that EPA provide clearer 

direction on its expectations for 

resource mitigation, including banking 

and in-lieu fee proposals, greater 

specificity as to the standards EPA will 

use to review an applicant’s proposed 

mitigation program, and require 

additional requirements in mitigation 

proposals. 

The Agency considered these 

comments and decided to finalize the 

proposed approach for several reasons. 

First, while nothing in this rule 

prohibits Tribes or States from adopting 

or incorporating the CWA 404(b)(1) 

Guidelines, requiring Tribes and States 

to adopt or incorporate the CWA 

404(b)(1) Guidelines, including subpart 

J, would conflict with the leeway 

Congress provided to Tribes and States 

to craft a Tribal or State program 

consistent with circumstances specific 

to that Tribe or State, so long as their 

permits will assure compliance with the 

CWA 404(b)(1) Guidelines at least as 

stringently as permits issued by the 

Corps. Recognizing that a CWA section 

404 permit may be required for a variety 

of discharges into a wide range of 

aquatic ecosystems, EPA explained in 

promulgating the CWA 404(b)(1) 

Guidelines that they are intended to 

provide ‘‘a certain amount of 

flexibility,’’ consisting of tools for 

evaluating proposed discharges, rather 

than numeric standards. 45 FR 85336, 

85336 (December 24, 1980). Similarly, 

as described in section IV.A.2 of this 

preamble, requiring Tribes or States to 

adopt or incorporate subpart J would 

complicate efforts by Tribes and States 

to impose more stringent requirements 

as part of their CWA section 404 

programs. See section IV.A.2 of this 

preamble for further discussion on 

404(b)(1) Guidelines. 

Commenters noted that mitigation 

requirements are tiered (or hierarchical) 

and insisted EPA should not allow State 

programs to ‘‘pick and choose’’ between 

the allowable forms of mitigation (e.g., 

permittee responsible, mitigation banks, 

and in-lieu fees). A commenter stated 

that State programs which ‘‘do not 

provide for all and follow the 

established hierarchy for their use 

would have less stringent compensatory 

mitigation requirements as compared to 

the federal program.’’ EPA disagrees 

with this commenter. Tribes and States 

may not impose requirements less 

stringent than Federal requirements. 

Accordingly, Tribes and States must 

follow the hierarchical approach laid 

out in subpart J of the 404(b)(1) 

Guidelines. See 40 CFR 230.93(b). But 

following this approach does not require 

the establishment of all three 

mechanisms listed in the hierarchy. 

Rather, Tribes and States, like the Corps, 

must apply the hierarchy to available 

mechanisms to determine the 

appropriate type of compensatory 

mitigation. 

iii. Third Party Compensatory 

Mitigation Instrument Oversight and 

Approval 

EPA is finalizing the proposed 

process, which will implement the 

Agency’s oversight responsibilities of 

third-party compensatory mitigation 

instrument approvals (i.e., mitigation 

banks and in-lieu fee programs), as well 

as provide opportunities for other 

agencies to review and comment on 

third-party compensatory instruments 

prior to approval. 40 CFR 233.50(k). 

Under the final process, a Tribe or State 

must provide EPA, the Corps, the U.S. 

Fish and Wildlife Service and the 

National Marine Fisheries Service an 

opportunity to review and comment on 

any draft compensatory mitigation 

instruments before the Tribe or State 

may establish the proposed instrument. 

The Tribe or State may also commit in 

their program description to include 

Tribal or State resource agencies in the 

circulation of draft instruments for 

approval. If EPA comments that the 

instrument fails to apply or ensure 

compliance with the section 404(b)(1) 

Guidelines, the Tribe or State may not 

approve the final compensatory 

mitigation instrument until they address 

EPA’s comments and EPA notifies it 

that the final instrument ensures 

compliance with this approach. 

The Agency expects this instrument 

review process would be familiar to 

Tribes and States because it is modeled 

on, and similar to, the procedures for 

EPA review of permits, but does not 

replicate them. This process also 

facilitates input from other relevant 

agencies, similar to how an Interagency 

Review Team provides input to the 

Corps from other relevant Federal and 

State agencies on compensatory 

mitigation instruments. See, e.g., 33 

U.S.C. 1344(g), (h); 40 CFR 233.20(b) 

(‘‘No permit shall be issued . . . [w]hen 

the Regional Administrator has objected 

to issuance of the permit . . .’’); 40 CFR 

part 233 generally; 40 CFR 230.98(b) 

(describing Interagency Review Team 

procedures). Overall, the Agency 

believes this review process provides 

sufficient oversight for Tribal or State 

compensatory mitigation instruments 

and provides opportunity for multiple 

agencies to provide input on the draft 

compensatory instrument before it is 

approved. The Agency believes the final 

requirements outlined in the new 

provision 233.50(k) strike a balance 

between Federal oversight responsibility 

of draft compensatory mitigation 

instruments while allowing Tribes and 

States flexibility to solicit input from 

additional resource agencies. 

No commenters opposed the proposed 

approach. However, one commenter 

cautioned EPA not to implement a rigid 

process that would limit Tribes’ or 

States’ flexibility in designing their own 

compensatory mitigation approach. EPA 

believes that this provision provides 

such flexibility. 

One commenter requested that the 

Agency expand the list of mitigation 

instrument reviewers to include 

relevant Tribal and State agencies (e.g., 

Tribal- or State-level fish and wildlife 

services) to the list. The Agency agrees 

with the commenter and believes that 

additional reviews from relevant 

resource agencies would be 

advantageous by providing local 

expertise and helping assess the 

applicability of the mitigation 

instrument (e.g., including but not 

limited to the structure of the 

instrument, design of the proposed 

projects, proposed loss and benefits, and 

evaluation of successful instrument), 

thereby promoting positive outcomes for 

environmental protections. 

The Agency is not requiring 

circulation to ‘‘relevant Tribal or State 

agencies’’ because the criteria for 

‘‘relevancy’’ is vague. What constitutes 

a ‘‘relevant’’ agency is susceptible to 

differing interpretations, especially as 

Tribes and States organize their 

authorities under differing or even 

multiple agencies (e.g., some regulate 


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wetlands under the State Department of 

Lands, others regulate them under the 

State water quality agency). Therefore, 

imposing mandatory circulation to this 

category of agencies would create 

confusion and implementation 

challenges for the Tribal or State 

authority. Furthermore, the Agency 

believes the new provision at section 

233.50(k) provides Tribes and States the 

opportunity to identify and commit to 

additional instrument reviews from 

other Tribal or State agencies in their 

program description. The new provision 

also allows a Tribe or State to invite 

other resource agencies not identified in 

their program description to participate 

in draft instrument review on a case-bycase basis. 

The Agency received one comment 

requesting that EPA provide clearer 

direction on its expectations for 

resource mitigation, including banking 

and in-lieu fee proposals, and greater 

specificity as to the standards EPA will 

use to review an applicant’s proposed 

mitigation program. The commenter 

also asked that EPA require additional 

requirements in mitigation proposals. 

EPA is not reopening the section 

404(b)(1) Guidelines in this rule and 

does not have the authority to impose 

substantive mitigation requirements on 

Tribes and States that are more stringent 

than the mitigation requirements in the 

section 404(b)(1) Guidelines. 

5. Effective Date for Approved Programs 

a. What is the Agency finalizing? 

Section 404(h) of the CWA addresses 

the transfer of permitting authority and 

pending permit applications from the 

Corps to the Tribe or State following 

EPA notice of program approval but 

does not specify an effective date. The 

prior regulations provided that the 

transfer of permitting authority could 

only take effect after notice of EPA’s 

program approval appeared in the 

Federal Register. 40 CFR 233.15(h) 

(2023). Several States that have 

contemplated assumption of the section 

404 program indicated that a transition 

period between EPA’s approval decision 

and the date of transfer of responsibility 

from the Corps to the State would 

enable them to more effectively prepare 

for the transition, including securing 

and allocating the necessary resources 

to successfully implement the assumed 

section 404 permitting program if their 

program is approved. 

EPA proposed to establish a 

presumptive effective date for program 

assumption of 30 days from the date of 

publication of the notice of EPA’s 

program approval in the Federal 

Register. The proposal also provided 

that if requested and supported by a 

Tribe or State in its request to assume 

the program, EPA may specify a later 

effective date, not to exceed 120 days 

from the date of notice in the Federal 

Register. A Tribe or State which seeks 

a later transfer date must provide a 

sufficient explanation of its need for the 

additional time as part of its program 

submission. In all cases, that effective 

date must be set forth in the 

Memorandum of Agreement between a 

Tribe or State and EPA required by 40 

CFR 233.14(b)(2) and published in the 

Federal Register. EPA also proposed to 

require that decisions to approve Tribal 

and State programs and revisions be 

posted on EPA’s website in addition to 

publication in the Federal Register. 

After reviewing public comments, the 

Agency is finalizing its approach as 

proposed with one modification to 

allow Tribes or States and EPA to 

establish a later effective date not to 

exceed 180 days from the date of notice 

in the Federal Register. 

b. Summary of Final Rule Rationale and 

Public Comments 

Section 404(h)(4) of the CWA 

provides that ‘‘[a]fter the Secretary 

receives notification from the 

Administrator under paragraph (2) or (3) 

of this subsection that a State permit 

program has been approved, the 

Secretary shall transfer any applications 

for permits pending before the Secretary 

for activities with respect to which a 

permit may be issued pursuant to such 

State program to such State for 

appropriate action.’’ 33 U.S.C. 

1344(h)(4). Once the State has received 

those permit applications, and signals to 

the Corps that it is ready to assume 

permitting activity, permitting 

responsibility should transfer. Id. at 

1344(h)(2). Thus, the administrative 

process envisioned by Congress is that 

EPA receives a program request, reviews 

and approves or denies the program 

request, then notifies the parties of an 

approval decision, after which the Corps 

begins to transfer existing permitting 

materials. The contrast between the 

specific time frames the statute provides 

for EPA’s approval of a program and the 

absence of a time frame for the transfer 

of permit applications from the Corps 

suggests that Congress intended some 

flexibility in the transition to Tribal or 

State program implementation. 

However, the fact that the statute 

describes the transfer of permits as the 

immediate next step following program 

approval indicates that Congress 

intended the transfer to happen 

relatively quickly. 

EPA proposed to modify the 

regulatory text to clarify when and how 

the section 404 program transfers to the 

Tribe or State following EPA’s approval, 

and that the presumptive date of 

transfer would be 30 days from the date 

of notice of program approval in the 

Federal Register, but that Tribes and 

States that satisfactorily demonstrate a 

need for more than 30 days to assume 

and be prepared to fully administer the 

program could request an effective date 

of up to 120 days from the date of 

notice. EPA also proposed that if a Tribe 

or State requests to assume 

administration of the program more 

than 30 days after EPA’s approval, the 

program description must include a 

description and schedule of the actions 

that will be taken following EPA 

approval for the Tribe or State to begin 

administering the program. 

A number of commenters supported 

EPA’s proposal to allow for more than 

30 days for program transfer. Most of 

these commenters, however, requested 

that the maximum time be longer than 

EPA’s proposed maximum of 120 days, 

or not specifically limited. These 

commenters agreed that some Tribes 

and States, especially smaller ones, may 

need more time to effectively prepare 

for program implementation, such as 

training staff, to successfully implement 

the assumed section 404 permitting 

program if their program is approved. 

One commenter stated that no more 

than 120 days should be needed if a 

Tribe or State were sufficiently prepared 

to assume the program. 

EPA finds that a short, clearly defined 

period of time between program 

approval and the Tribe or State’s 

assumption of program administration 

benefits the public and regulated 

community by providing advance notice 

of the date of program transfer and 

supports the smooth transition of 

program functions. However, EPA 

agrees that extending the maximum 

period of time to 180 days could reduce 

the burden for some Tribes and States, 

without significantly increasing the 

uncertainty that might arise from 

lengthier transition periods. 

The final rule allows the effective date 

to be more than 30 days following 

approval (though no more than 180 

days), when a Tribe or State identifies 

specific circumstances which support 

the need for additional time. If the Tribe 

or State takes advantage of this option 

to delay the effective date, the Tribe or 

State’s program description should set 

forth the steps it will take upon program 

approval, such as specifying the 

timeline for any assignment and training 

of staff and ensuring program funding is 

accessible by the effective date. 

Generally speaking, a Tribe or State 

should not wait until EPA approves its 


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38Corps-issued individual permits are not limited 

to five years. See 33 CFR 325.6(b), (c) (authorizing 

certain types of permits for an ‘‘indefinite duration’’ 

or else a ‘‘limited duration’’ but with no five-year 

limitation period). General permits issued by the 

Corps are limited to five years. See 33 U.S.C. 

1344(e)(2). 

39 33 U.S.C. 1344(h)(1)(A)(ii). 

40Per 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. 

41This 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. 

program before initiating hiring and 

training processes for staff that are 

committed in its program description 

and the Tribe or State should be 

prepared to implement the final steps 

soon after program approval. 

The Agency is finalizing the 

requirement that the Memorandum of 

Agreement between a Tribe or State and 

EPA include the effective date for 

transfer of the program from the Corps 

to the Tribe or State, identified as the 

number of days following the date of 

publication of program approval in the 

Federal Register. This will provide for 

the efficient development and 

administration of the Tribal or State 

program, while also making the process 

more predictable for the regulated 

community and the public. As with the 

prior regulations, the Corps will 

continue to process permit applications 

up until the effective date, but they will 

also use the time between approval and 

the effective date to begin transferring 

permits under review. The Tribe or 

State would not be authorized to 

process these permits until the effective 

date of program transfer. The Tribe or 

State and the Corps will include 

procedures for transferring pending 

section 404 permit applications and 

other relevant information to the Tribe 

or State in their Memorandum of 

Agreement. 40 CFR 233.14(b)(2). 

C. Program Operations 

1. Five-Year Permits and Long-Term 

Projects 

a. Overview and What the Agency Is 

Finalizing 

Congress limited CWA section 404 

permits issued by Tribes or States that 

assume the section 404 program to five 

years in duration. 33 U.S.C. 

1344(h)(1)(A)(ii).38 The Agency codified 

this limitation in the permit conditions 

section of the prior section 404 Tribal 

and State program regulations. 40 CFR 

233.23(b) (2023). However, certain 

projects by their nature cannot be 

completed within five years and 

therefore need more than one five-year 

permit. Examples of these long-term 

projects include some residential or 

commercial developments, linear 

projects such as transportation 

corridors, and energy or mining 

projects. The Agency is concerned that 

if applicants with long-term projects 

only submit information about activities 

that will occur during one five-year 

period of their project in their permit 

application, the permitting agency and 

members of the public will not have 

sufficient information to assess the 

scope of the entire project, or 

cumulative impacts of the entire project. 

To minimize unnecessary effort and 

paperwork, and provide the Tribe or 

State and the public with information 

that can assist with the successful 

permitting of long-term projects, the 

Agency proposed that applicants for 

projects for which the planned schedule 

extends beyond five years at the time of 

the initial five-year permit application 

must submit a 404(b)(1) analysis for the 

full scope and term of the project with 

the application for the first five-year 

permit and modify the 404(b)(1) 

analysis, as necessary, for subsequent 

five-year permits. The proposed rule 

preamble discussed the criteria that the 

Tribe or State must consider when 

determining whether the 404(b)(1) 

analysis needs to be modified. 88 FR 

55303. If there has been a change in 

circumstance related to an authorized 

activity following approval of the 

previous five-year permit, the applicant 

must modify the 404(b)(1) analysis for 

subsequent five-year permits. If there 

have been no changes in circumstances 

related to an authorized activity 

following approval of the previous fiveyear permit, the applicant’s new permit 

application may rely upon the most 

recent 404(b)(1) analysis. Consistent 

with CWA requirements, the proposal 

also required that a new permit 

application must be submitted for 

projects that exceed a five-year schedule 

(e.g., based on construction plans), and 

all aspects of the permit application, 

public notice, and Tribal or State review 

requirements set forth in 40 CFR 233.30, 

233.32, and 233.34, respectively, apply. 

To avoid a stoppage in work, the 

proposal required that an applicant 

seeking a new five-year permit should 

apply for the new permit at least 180 

days prior to the expiration of the 

current permit. 

In response to public comments, the 

Agency is revising its proposed 

approach to require that the permit 

application and public notice for a 

subsequent five-year permit application 

must indicate whether the 404(b)(1) 

analysis has been updated and that the 

Tribe or State must provide a written 

explanation if it does not require an 

updated 404(b)(1) analysis for a 

subsequent five-year permit(s). 

Additionally, EPA is authorizing the 

Tribe or State to grant permission to 

submit an application less than 180 

days prior to the expiration of the 

current permit but no later than the 

permit expiration date. 

b. Summary of Final Rule Rationale and 

Public Comments 

i. Permitting Long-Term Projects 

The Agency is finalizing a process for 

permitting long-term projects in waters 

assumed by a Tribal or State section 404 

program that is consistent with the 

statutory limitation that permits not 

exceed five years in duration,39 yet 

increases predictability for permittees 

and provides sufficient information for 

the Tribe or State to consider the full 

scope of a project’s impacts to the 

aquatic environment. When applying for 

a permit to discharge dredged or fill 

material associated with projects 40 with 

a planned construction schedule which 

may extend beyond the five-year permit 

period, applicants must submit an 

analysis that demonstrates compliance 

with the 404(b)(1) Guidelines showing 

how the complete long-term project 

complies with the environmental review 

criteria set forth in the CWA 404(b)(1) 

Guidelines when they submit the 

application for the first five-year permit. 

The 404(b)(1) analysis must provide 

information demonstrating that the 

project meets each element of the CWA 

404(b)(1) Guidelines for the full term of 

the project.41 For example, under this 

approach, an applicant seeking permit 

coverage for a 15-year, multi-phase 

housing development project would 

provide information about all phases of 

the project, covering its full 15-year 

term, in its permit application. If this 

project were anticipated to involve the 

construction of two hundred homes in 

years 0–5, two hundred homes in years 

5–10, and two hundred homes in years 


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10–15, the permit application would 

provide information about the 

construction of all six hundred homes. 

Some commenters supported the 

proposed rule approach without 

modification. Several commenters 

supported the proposed rule approach 

requiring an applicant to submit a 

404(b)(1) analysis for the entirety of the 

project as part of the first five-year 

permit review period but recommended 

modifying the proposed rule approach 

to require an automatic update to the 

404(b)(1) analysis at least every five-year 

permit cycle. According to these 

commenters, projects may change as 

they move forward and even small 

changes may have an impact on water 

quality, as well as on Tribal rights and 

resources. Some of these commenters 

supported a requirement that a written 

explanation be provided in the event the 

permitting authority does not require an 

updated section 404(b)(1) analysis. 

EPA has evaluated these comments 

and concluded that an automatic update 

to the 404(b)(1) analysis every five-year 

permitting cycle is unnecessary. Instead, 

for subsequent five-year permits, EPA is 

requiring that Tribes or States provide a 

written explanation if they do not 

determine that a ‘‘change in 

circumstance’’ has occurred requiring 

an updated 404(b)(1) analysis. Adding 

this requirement provides transparency 

and ensures the Tribe or State engages 

in a meaningful analysis of why there 

has not been a ‘‘change in 

circumstance.’’ EPA believes this 

approach strikes the right balance of 

providing more regulatory certainty for 

subsequent five-year permits, while also 

ensuring that the scope of impacts 

associated with a complete project is 

factored into the permitting decision for 

each five-year permit. 

One commenter asked EPA to require 

that sufficient information related to 

planned impacts for future permitting 

phases be included in an initial permit 

application. The rule modifies previous 

language in 40 CFR 233.30(b)(5), which 

stated that ‘‘[a]ll activities which the 

applicant plans to undertake which are 

reasonably related to the same project 

must be included in the same permit 

application.’’ (emphasis added). The 

final rule expands upon this provision 

and requires, ‘‘[f]or projects for which 

the planned schedule extends beyond 

five years at the time of the initial fiveyear permit application, the application 

for both the first and subsequent fiveyear permits must include an analysis 

demonstrating that each element of the 

404(b)(1) Guidelines is met, consistent 

with 40 CFR part 230, for the full term 

of the project.’’ The final rule also 

requires that, ‘‘[a]pplicants for 

subsequent five-year permits must 

update the 404(b)(1) Guidelines analysis 

if there has been a change in 

circumstance related to the project 

following approval of the previous fiveyear permit.’’ 

Some commenters opposed any 

regulatory changes related to long-term 

projects. One commenter argued that 

requiring a comprehensive 404(b)(1) 

analysis would present a barrier to State 

assumption and questioned the legality 

of that approach. EPA disagrees with 

this commenter. Each State that has 

assumed the section 404 program has at 

times expressed interest in allowing for 

a full project analysis at the time of the 

first permit application and allowing 

expediencies in subsequent rounds of 

permitting for the same project, as a 

means of both ensuring comprehensive 

water quality protections and protecting 

permit applicants against wasted 

financial resources. As a legal matter, 

requiring an analysis of the full project 

scope is consistent with section 

404(b)(1)(A), which provides that Tribes 

and States must have the authority to 

issue permits which apply and assure 

compliance with the 404(b)(1) 

Guidelines. The Guidelines, in turn, 

require an evaluation of the potential for 

adverse impacts on the aquatic 

ecosystems posed by dredged or fill 

material discharge activities. 40 CFR 

230.10. 

This approach is consistent with the 

Agency’s long-standing position that 

activities related to the same project 

should not be split into multiple 

permits, which can undermine efforts to 

ensure a complete alternatives analysis, 

an accurate accounting of all cumulative 

impacts, an appropriate mitigation plan, 

and that the public is sufficiently on 

notice of forthcoming dredged and fill 

activities. See 40 CFR 233.30(b)(5) 

(2023). This approach is also similar to 

the Corps’ requirement that all activities 

that are reasonably related to the same 

project be included in the same permit 

application. 33 CFR 325.1(d)(2). 

Providing information about all phases 

of the project does not authorize 

dredged and fill activity beyond the 

five-year permit term. Moreover, unless 

there has been a change in circumstance 

related to an authorized activity, the 

same information should be provided in 

subsequent applications for later stages 

of the long-term project, such as 

applications seeking authorization for 

activity in years 6–10 of the project, 

years 11–15 of the project, and so forth. 

Additionally, this approach will 

improve environmental protections by 

ensuring that the scope of impacts 

associated with a complete project is 

factored into the permitting decision for 

each five-year permit. 

This approach will also help ensure 

consistency in permitting decisions 

associated with the project, thereby 

providing the applicant with more 

regulatory certainty than without such a 

plan. Evaluating the impacts of only the 

first stage of a long-term project does not 

make business sense. For example, if a 

permitting authority evaluating a 

second- or third-round permit for a 

mine’s construction or operation were to 

deny the permit based on those 

previously unevaluated impacts, the 

investments made during the first round 

or two of permit coverage would have 

been wasted. Foregoing an initial longterm plan would therefore be extremely 

inefficient. 

The issuance of Tribal or State section 

404 permits for projects that exceed a 

five-year schedule only authorizes 

discharges occurring in the five-year 

period identified in the permit. 

Permittees for long-term projects must 

submit a new permit application for 

each subsequent five-year permit term. 

The issuance of a subsequent five-year 

permit for the same project does not 

constitute a continuance or modification 

of the previous permit. Nothing in the 

final rule affects the process for 

continuing or modifying permits set 

forth in an approved Tribal or State 

section 404 program. 

The Agency recognizes that some 

permittees may expect that a project 

will be completed within the five-year 

permit term but ultimately the project 

takes longer. The Tribe or State 

administering the section 404 program 

should make reasonable efforts to verify 

that all activities that are reasonably 

related to the same project are included 

in the same permit and to evaluate 

whether a project’s schedule extends 

beyond five years at the time of the 

initial five-year permit application. 

In the event a project anticipated to be 

completed within five years is not 

completed during that time, the 

applicant must apply for a new five-year 

permit. To avoid a stoppage in work, the 

Agency is requiring that an applicant 

seeking a new five-year permit must 

apply for the new permit at least 180 

days prior to the expiration of the 

current permit to allow sufficient time 

for the application to be processed. 

However, consistent with other CWA 

programs which have a similar 180-day 

advance application requirement (e.g., 

40 CFR 122.21(d)), upon special request 

the Tribe or State may grant permission 

to reapply less than 180 days prior to 

the expiration of the current permit but 

no later than the permit expiration date. 

This approach provides time for a 


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public comment period and any 

required EPA review of the new permit 

application. 

This final rule approach to five-year 

permits presents both environmental 

and financial advantages. It promotes 

environmental protections by ensuring 

that the scope of impacts associated 

with a complete project are factored into 

the permitting decision for each fiveyear permit. Tribal or State review of a 

404(b)(1) analysis for a five-year permit 

does not constitute pre-approval of 

subsequent five-year permits for the 

project and there is no guarantee that an 

applicant for a long-term project will 

receive all of the five-year permits 

needed to complete the project. That 

said, including a 404(b)(1) analysis for 

the full scope of the project with the 

application for the first five-year permit 

and modification of the 404(b)(1) 

analysis, as necessary, for subsequent 

five-year permits will help ensure 

consistency in permitting decisions 

associated with the project, thereby 

providing the applicant with more 

regulatory certainty than without such a 

plan. 

ii. Criteria for Modification of 404(b)(1) 

Analyses 

The Agency recognizes that changes 

in circumstances related to an 

authorized activity may occur over time. 

For example, plans for subsequent 

phases of a long-term project may lack 

detail at the time an applicant submits 

a 404(b)(1) analysis for the first five-year 

permit and adjustments to the 

description of the project may therefore 

be required. If there has been a change 

in circumstance related to an authorized 

activity following approval of the 

previous five-year permit, the Agency is 

finalizing as proposed that the applicant 

must modify the 404(b)(1) analysis for 

subsequent five-year permits. A change 

in circumstance related to the 

authorized activity includes, but is not 

limited to, the following: 

—Change in project purpose; 

—Change in project boundary; 

—Change in scope of waters impacted; 

—Change in secondary or cumulative 

impacts; 

—Change affecting compensatory 

mitigation; 

—Change in site conditions, including 

new alternatives or opportunities for 

minimization of impacts; 

—Change in environmental conditions, 

including the presence or new listing 

of threatened or endangered species 

or critical habitat; or 

—Change to applicable statutes, 

regulations, or guidance. 

If there have been no changes in 

circumstances related to an authorized 

activity following approval of the 

previous five-year permit, the 

applicant’s new permit application may 

rely upon the most recent 404(b)(1) 

analysis. As discussed above, the permit 

application and public notice for a 

subsequent five-year permit application 

must indicate whether the 404(b)(1) 

analysis has been updated. A Tribe or 

State may require that a 404(b)(1) 

analysis be updated based on a change 

in circumstances, either on their own 

motion, at the request of Federal agency 

reviewers providing comments via EPA 

or at the request of the public. Federal 

agency reviewers or members of the 

public who submit such a request must 

provide information supporting a 

change in circumstances for the Tribe or 

State to consider the request. A change 

in circumstances may be significant 

enough that the project no longer meets 

conditions for approval. Other factors 

may also weigh in favor of permit 

denial, such as an applicant’s noncompliance with the previous permit. If 

the Tribe or State does not require an 

update to the 404(b)(1) analysis, it must 

provide a detailed written explanation 

in the record of decision for the permit 

based on the ‘‘change in circumstance’’ 

factors listed above and any additional 

factors identified in the Tribe or State’s 

program description. The Tribe or State 

must provide this detailed written 

explanation for not requiring an update 

to the 404(b)(1) analysis regardless of 

whether it received a request from 

Federal agency reviewers or the public. 

iii. Clarification Regarding Long-Term 

Projects 

The Agency is finalizing as proposed 

a clarification that all aspects of the 

permit application, public notice, and 

Tribal or State review requirements set 

forth in 40 CFR 233.30, 233.32, and 

233.34, respectively, apply to each 

permit application, including for 

projects that exceed a five-year 

schedule. Such clarification will help 

ensure that applicants, Tribes, and 

States comply with the five-year permit 

limitation set forth in CWA section 

404(h)(1)(A)(ii). EPA expects that the 

permit application process for permits 

after the initial five-year permit 

application will be easier and simpler 

because the applicant and Tribe or State 

will have already analyzed the full 

project. 

All public notices for long-term 

permits must satisfy the public notice 

requirements in 40 CFR 233.32(d). In 

addition, the scope of information the 

Tribe or State may consider when 

reviewing a permit application may not 

be limited for any application, including 

applications for each five-year permit of 

a project that takes more than five years 

to complete. Nor may a Tribe or State 

limit the scope of comments the public 

may submit in response to the public 

notice, or public hearing if a hearing is 

held, to impacts arising from one fiveyear permit of a long-term project as 

opposed to impacts from the entirety of 

the long-term project. 

2. Judicial Review and Rights of Appeal 

a. Overview and What the Agency Is 

Finalizing 

The prior regulations require the 

program description to describe the 

Tribe’s or State’s judicial review 

procedure but did not contain an 

explicit corresponding substantive 

requirement for Tribal or State 

programs. The Agency proposed to 

codify a substantive requirement to 

match the prior descriptive requirement. 

After considering comments urging EPA 

to ensure that States facilitate public 

participation in the permitting process, 

EPA is finalizing a provision that would 

require States seeking to assume the 

section 404 program to provide an 

opportunity for judicial review in State 

court of the final approval or denial of 

permits by the State that is sufficient to 

provide for, encourage, and assist public 

participation in the permitting process. 

EPA did not propose any judicial review 

requirement relevant to Tribes in the 

regulatory text. In a change from 

proposal, EPA is codifying a 

requirement that Tribes must provide a 

commensurate form of citizen recourse 

for applicants and others affected by 

Tribe-issued permits. 

b. Summary of Final Rule Rationale and 

Public Comment 

This provision gives meaning to the 

existing regulatory requirement that 

State program descriptions describe 

their judicial review procedures. See 40 

CFR 233.11(b). EPA interprets the 

existing requirement that States provide 

‘‘a description of the State’s . . . 

judicial review . . . procedures’’ to 

suggest that States must authorize 

judicial review. The new substantive 

requirement that States allow for 

judicial review sufficient to provide for, 

encourage, and assist public 

participation in the permitting process 

makes explicit that States must have 

authorities in place to form the basis for 

the existing description requirement. 

The provision also carries out the 

requirement that States have the 

authority to ‘‘abate violations of the . . . 

permit program’’ through ‘‘ways and 

means of enforcement.’’ 33 U.S.C. 

1344(g). Potential violations of the 

permit program may include State 


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permitting actions, such as the issuance 

of a permit that does not assure 

compliance with the section 404(b)(1) 

Guidelines or that has not provided 

public notice and an opportunity for a 

hearing. See 33 U.S.C. 1344(h)(1)(A)(i), 

(h)(1)(C). One of the most effective ways 

to abate such violations is to allow 

members of the public to challenge 

them. Given that EPA has limited 

resources to expend on oversight of 

State permitting actions, citizen 

challenges are a critical complementary 

tool for abating violations of the permit 

program. 

The judicial review provision also 

gives meaning to the requirement that 

States must have adequate authority to 

ensure that the public ‘‘receive[s] notice 

of each application for a permit and to 

provide an opportunity for public 

hearing before a ruling on each such 

application.’’ 33 U.S.C. 1344(h)(1)(C). 

As EPA explained in promulgating a 

requirement for judicial review in the 

section 402 program, the United States 

Court of Appeals for the Fourth Circuit 

has agreed that ‘‘[t]he comment of an 

ordinary citizen carries more weight if 

officials know that the citizen has the 

power to seek judicial review of any 

administrative decision harming him.’’ 

Amendment to Requirements for 

Authorized State Permit Programs 

Under Section 402 of the Clean Water 

Act, 61 FR 20972 (May 8, 1996), 

codified at 40 CFR 123.30, citing Com. 

of Virginia v. Browner, 80 F.3d 869, 879 

(4th Cir. 1996). 

Without the possibility of judicial 

review by citizens, public participation 

before a State administrative agency 

could become less meaningful. See also 

33 U.S.C. 1251(e) (‘‘Public participation 

in the . . . enforcement of any 

regulation, standard, effluent limitation, 

plan, or program established by the 

Administrator or any State under this 

chapter shall be provided for, 

encouraged, and assisted by the 

Administrator and the States.’’); A 

Legislative History of the Water 

Pollution Control Act Amendments of 

1972, Comm. Print No. 1, 93d Cong., 1st 

Sess. at 1490 (‘‘The scrutiny of the 

public . . . is extremely important in 

insuring . . . a high level of 

performance by all levels of government 

and discharge sources.’’). 

Finally, the proposed approach is 

consistent with the CWA’s requirement 

that States issue permits that ‘‘apply, 

and assure compliance with, any 

applicable requirements’’ of section 404, 

33 U.S.C. 1344(h)(1)(A)(i); and the 

regulatory provision providing that 

‘‘[a]ny approved State Program shall, at 

all times, be conducted in accordance 

with the requirements of the Act and of 

this part.’’ 40 CFR 233.1(e). As citizens 

are authorized to challenge the issuance 

of section 404 permits when the Federal 

Government administers the program, 

challenges must also be authorized 

when a State has assumed the program 

in order to assure compliance with the 

applicable requirements of section 404 

and to ensure that the State program is 

not less stringent than the Federal 

program. Permitting authorities are 

likely to be particularly careful to 

address citizens’ input and ensure that 

issued permits comply with CWA 

requirements if such permits may be 

challenged by such citizens. Therefore, 

ensuring that States provide an 

opportunity for judicial review helps to 

ensure compliance with section 404 and 

all requirements of the CWA. Any of the 

provisions in 404(g) cited above as 

authority for the judicial review 

provision would be independently 

sufficient to justify finalizing this 

provision. 

EPA proposed the language that it is 

codifying in this rule, except for the 

regulatory requirement that Tribes 

provide a commensurate form of citizen 

recourse for those affected by permitting 

decisions. The proposal had also stated 

that a State would meet the required 

judicial review standard if it allowed an 

opportunity for judicial review that is 

the same as that available to obtain 

judicial review in Federal court of a 

federally issued NPDES permit. Further, 

the proposal stated that a State would 

not meet this standard if it either 

narrowly restricted the class of persons 

who could challenge the approval or 

denial of permits (such as by limiting 

standing to people who would suffer 

pecuniary injury from the permitting 

decision or to people who own property 

close to the discharge or receiving 

waters) or if the State required the 

losing party to pay attorneys’ fees 

notwithstanding the merit of its 

position. See 88 FR 55326. 

A number of commenters expressed 

support for the proposed provision. 

Some commenters asked that EPA 

establish broader or more detailed 

limitations on restrictions or 

disincentives to judicial review. These 

commenters emphasized the importance 

of ensuring that the public has access to 

courts and discussed the significant 

chilling effects of State limitations on 

citizen suit challenges, such as feeshifting provisions that make the ‘‘loser 

pay’’ (whether in full, in part, or at the 

judge’s discretion) and requirements to 

exhaust administrative remedies that 

can deplete prospective plaintiffs’ 

resources before they even initiate a 

State court challenge. These 

commenters asked EPA to prohibit 

certain requirements more clearly, 

including any form of fee-shifting and 

excessive administrative exhaustion 

requirements. 

Other commenters expressed 

concerns about the proposed rule 

provision, stating that it would be a 

significant impediment, if not a 

complete barrier, to States seeking 

assumption. These commenters also 

argued that, as a legal matter, nothing in 

the CWA authorizes EPA to require 

judicial review opportunities for section 

404 permits. They stated that while 

Congress does provide for judicial 

review by any interested person of 

EPA’s issuance or denial of section 402 

permits pursuant to CWA section 

509(b)(1), it is silent with respect to 

judicial review of section 404 permits. 

This omission, in the commenters’ view, 

indicates that Congress intentionally did 

not require a heightened level of review 

for section 404 permits. 

EPA has finalized the requirement 

that States must provide for judicial 

review of State-issued permits or permit 

denials that is sufficient to provide for, 

encourage, and assist public 

participation in the permitting process. 

40 CFR 233.24. The final requirement is 

shorter than the proposed requirement 

and does not specifically detail various 

examples of unacceptable barriers to 

judicial review. As noted above, it 

simply codifies the substantive corollary 

to the existing program description 

requirement that States describe their 

judicial review procedures. EPA 

disagrees with the commenters that 

stated EPA lacks authority to impose 

this requirement. As discussed above, 

the final requirement is consistent with 

the CWA’s requirements for public 

participation in the permitting process 

and that State programs comply with all 

requirements of section 404, as well as 

the regulatory requirement that State 

programs be no less stringent than the 

Federal section 404 program. EPA 

expects that States will have the 

authority and experience to implement 

this requirement because it is similar to 

the section 402 requirement that States 

authorize judicial review. 

EPA removed from the final rule the 

examples of the ways in which States 

can demonstrate that they provide for 

judicial review of State-issued permits 

or permit denials that is sufficient to 

provide for, encourage, and assist public 

participation in the permitting process. 

Commenters made clear that States can 

either facilitate or impede judicial 

review of State-issued permits in a wide 

variety of ways. Specifically listing just 

a few of those examples in the 

regulations would be under-inclusive, 

but a longer and more prescriptive list 


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risks intruding into the operations of 

State courts and State civil procedure, 

areas traditionally subject to State 

control. EPA will therefore evaluate 

State judicial review provisions as part 

of program submissions on a case-bycase basis to determine whether they 

provide for judicial review of Stateissued permits or permit denials that is 

sufficient to provide for, encourage, and 

assist public participation in the 

permitting process. Finally, in omitting 

the explicit requirement that States 

provide judicial review opportunities 

commensurate with those available for 

section 402 permits under CWA section 

509(b), the provision no longer 

implicates the commenters’ argument 

that it conflicts with Congress’ 

intentional omission of section 404 

permits from the scope of section 509(b) 

review. 

EPA would also look to the State 

Attorney General’s statement to certify 

that the laws of the State meet the 

requirements of the regulation. See 40 

CFR 233.12. States with expansive 

judicial review opportunities, such as 

those that allow standing to challenge 

permits on the part of interested citizens 

and citizen groups, and that do not 

require parties who lose lawsuits 

brought in good faith to pay other 

parties’ legal fees, should meet the 

regulatory judicial review requirement. 

As with the section 402 regulations, the 

provision applies to final actions with 

respect to modification, revocation and 

reissuance, and termination of permits, 

as well as the initial approval or denial 

of permits. 

The final rule approach for the section 

404 State program regulations 

effectuates EPA’s policy interest in 

deferring to State administration of 

authorized section 404 programs in the 

same way that EPA defers to State 

administration of section 402 programs. 

See 61 FR 20974 (May 8, 1996). EPA 

supports State assumption of the section 

404 program and is just as committed to 

ensuring robust opportunity for citizen 

participation in that program. In 

authorizing State programs to act in lieu 

of the Federal Government, EPA must 

ensure that the implementation of the 

State program will be procedurally fair 

and consistent with the intent of the 

CWA. This rule provides additional 

assurance of State program adequacy 

and fairness by ensuring opportunities 

for judicial review. 

In the proposed rule, EPA stated that 

the judicial review requirement did not 

apply to Tribes and did not include any 

requirement relevant to Tribes in the 

regulatory text. The preamble to the 

proposed rule explained that Tribes 

would need to provide appropriate 

recourse for citizens seeking to 

challenge Tribal permitting actions. One 

commenter requested clarity on the type 

of recourse Tribes would need to 

provide. A few commenters raised 

concerns that EPA was arbitrarily 

treating Tribes differently from States. 

These commenters stated that EPA’s 

concern that requiring Tribes to waive 

sovereign immunity to judicial review 

of permitting decisions would 

disincentivize Tribal assumption 

applies equally to States. One 

commenter argued that disappointed 

permittees or other affected persons 

would have no recourse from unlawful 

permitting actions on the part of 

assuming Tribes if EPA did not require 

some form of recourse. 

In response to these commenters, EPA 

is codifying the requirement that Tribes 

must provide a commensurate level of 

citizen recourse to the judicial review 

opportunities States must provide for 

those seeking to challenge permitting 

actions. Consistent with the requirement 

applicable to States, it should be 

sufficient to provide for, encourage, and 

assist public participation in the 

permitting process. EPA is not 

specifying precisely what form this 

recourse must take, given the diverse 

forms that Tribal decision-making 

entities may take. If a Tribe has a 

judicial system analogous to a State 

judiciary, the Tribe must provide for 

judicial review of section 404 permits. 

If, instead, a Tribe uses another type of 

decision-making entity to address 

disputes, that entity must be able to hear 

permit challenges. Requiring Tribes to 

provide for citizen recourse 

commensurate with the judicial review 

opportunities required of States 

provides more clarity than the proposal 

offered and ensures that persons 

affected by Tribal permitting actions 

will have recourse. 

EPA’s decision not to specifically 

require all Tribal section 404 programs 

to provide for judicial review of Tribal 

permitting actions is consistent with 

EPA’s approach in the section 402 

judicial review provision that ‘‘[t]his 

requirement does not apply to Indian 

Tribes’’ as well as EPA’s decision not to 

require Tribes to provide for judicial 

review in the same manner as States for 

purposes of the Clean Air Act Title V 

Operating Permits Program. See 40 CFR 

123.30; Indian Tribes: Air Quality 

Planning and Management, 63 FR 7254, 

7261–62 (February 12, 1998); 40 CFR 

49.4(p). While EPA does not, as a 

general matter, think that Tribal 

procedures should be less rigorous with 

respect to public participation than 

State procedures, a specific requirement 

that Tribes provide judicial review as 

the sole option for citizen recourse 

would raise issues regarding Federal 

Indian policy and law. 

In promulgating the Clean Air Act 

Tribal rule, EPA recognized that while 

many Tribes have distinct judicial 

systems analogous to State judicial 

systems, some well-qualified Tribes may 

not have a distinct judiciary and may 

use non-judicial mechanisms for citizen 

recourse. See 63 FR 7261–62 (February 

12, 1998). EPA considered that requiring 

Tribes to waive sovereign immunity to 

judicial review of permitting decisions 

would be a significant disincentive to 

Tribes to assume the Clean Air Act Title 

V program. See id. EPA recognizes the 

importance of encouraging Tribal 

implementation of environmental 

programs and avoiding creating 

unnecessary barriers to assumption. In 

this rule, EPA seeks to strike a balance 

by ensuring that citizen recourse is 

available in any approved Tribal section 

404 program commensurate with the 

judicial review opportunities required 

of State programs, while not restricting 

qualified Tribes to a single judicial 

option that may not fit existing Tribal 

governmental structures. EPA would 

consider whether commensurate citizen 

recourse has been provided in the 

context of reviewing Tribal program 

applications. 

Finally, EPA encourages Tribes and 

States to establish an administrative 

process for the review and appeal of 

permit decisions pursuant to their 

approved section 404 programs and to 

describe any such process in the 

program description. These procedures 

can conserve resources on the part of 

permittees, stakeholders, and permitting 

agencies, by resolving permitting 

disagreements without the need for 

litigation in court. EPA is not requiring 

or prohibiting any specific 

administrative review procedures, 

however, because the Agency recognizes 

that existing Tribal and State 

administrative procedures may differ 

across the country. 

D. Compliance Evaluation and 

Enforcement 

1. Overview and What the Agency Is 

Finalizing 

The CWA provides for criminal 

liability based on simple negligence. 

EPA has determined that the prior 

regulations describing the mens rea 

applicable to Tribal and State programs 

at 40 CFR 123.27(a)(3)(ii) and 40 CFR 

233.41(a)(3)(ii) do not clearly articulate 

the best interpretation of the statute. 

After reviewing public comments, EPA 

is revising its criminal enforcement 

requirements in 40 CFR 123.27 and 40 


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42Under the section 402 program, EPA’s 

regulations provide that ‘‘[t]o the extent that an 

Indian Tribe is precluded from asserting criminal 

enforcement authority as required under § 123.27, 

the Federal Government will exercise primary 

criminal enforcement responsibility. The Tribe, 

with the EPA Region, shall develop a procedure by 

which the Tribal agency will refer potential 

criminal violations to the Regional Administrator, 

as agreed to by the parties, in an appropriate and 

timely manner. This procedure shall encompass all 

circumstances in which the Tribe is incapable of 

exercising the enforcement requirements of 

§ 123.27. This agreement shall be incorporated into 

a joint or separate Memorandum of Agreement with 

the EPA Region, as appropriate.’’ 40 CFR 123.34. 

The section 404 regulations contain a nearly 

identical provision at 40 CFR 233.41(f). 

43Simple negligence is a failure to use care as a 

reasonably prudent and careful person would use 

under similar circumstances. As relevant here, it is 

used interchangeably with ‘‘ordinary negligence.’’ 

See, e.g., U.S. v. Maury, 695 F.3d 227, 260 (‘‘we are 

now confronted with a slowly expanding body of 

law from our sister circuits which indicates that 

simple or ordinary negligence may be the 

appropriate standard of mens rea under 

§ 1319(c)(1).’’) Gross negligence is sometimes 

defined as the extreme indifference to or reckless 

disregard for the safety of others. 

CFR 233.41 to provide that Tribes and 

States that administer the CWA section 

402 NPDES permitting program or the 

CWA section 404 dredged and fill 

permitting program, or that seek 

approval to do so, are required to 

authorize prosecution based on a mens 

rea, or criminal intent, of any form of 

negligence, which may include gross 

negligence. 

2. Summary of Final Rule Rationale and 

Public Comment 

The prior regulations describing the 

mens rea applicable to Tribal and State 

programs at 40 CFR 123.27(a)(3)(ii) and 

40 CFR 233.41(a)(3)(ii) do not clearly 

articulate the best interpretation of the 

statute. EPA interprets the CWA to 

authorize the approval of Tribal or State 

section 402 or 404 programs that allow 

for prosecution based on a mens rea of 

any form of negligence, including gross 

negligence. These regulatory revisions 

more clearly articulate this 

interpretation. 

These amendments provide clarity for 

Tribes and States that have been 

approved to administer or seek to obtain 

EPA’s approval to administer their own 

section 402 or 404 programs under the 

CWA. EPA anticipates that States that 

already administer these CWA programs 

will not need to change their legal 

authority. Instead, these regulatory 

clarifications will generally assure 

approved States that existing negligence 

mens rea authorities comport with the 

mens rea applicable to Tribal and State 

CWA sections 402 and 404 programs. 

Additionally, these revisions provide 

those Tribes and States seeking to 

administer CWA sections 402 and 404 

programs with clarity regarding the legal 

authorities required for approval by 

EPA. 

a. Background 

The CWA provides that Tribes and 

States seeking approval for a permitting 

program under CWA section 402 or 

CWA section 404 must demonstrate 

adequate authority ‘‘[t]o abate violations 

of the permit or the permit program, 

including civil and criminal penalties 

and other ways and means of 

enforcement.’’ 33 U.S.C. 1342(b)(7) and 

1344(h)(1)(G). EPA’s regulations 

currently provide that a Tribal or State 

agency administering a program under 

CWA section 402 must provide for 

criminal fines to be levied ‘‘against any 

person who willfully or negligently 

violates any applicable standards or 

limitations; any NPDES permit 

condition; or any NPDES filing 

requirement.’’ 40 CFR 123.27(a)(3)(ii). 

Similarly, pursuant to EPA’s current 

regulations any Tribal or State agency 

administering a section 404 program 

must have authority to seek criminal 

fines against any person who ‘‘willfully 

or with criminal negligence discharges 

dredged or fill material without a 

required permit or violates any permit 

condition issued in section 404 . . . .’’ 

40 CFR 233.41(a)(3)(ii).42

The regulations implementing both 

statutory programs also provide that the 

‘‘burden of proof and degree of 

knowledge or intent required under 

State law for establishing violations 

under paragraph (a)(3) of this section, 

shall be no greater than the burden of 

proof or degree of knowledge or intent 

EPA must bear when it brings an action 

under the Act.’’ 40 CFR 123.27(b)(2); 40 

CFR 233.41(b)(2). The implementing 

regulations for CWA section 402 include 

a note, not present in the CWA section 

404 implementing regulations, which 

states, ‘‘[f]or example, this requirement 

is not met if State law includes mental 

state as an element of proof for civil 

violations.’’ 40 CFR 123.27(b)(2). 

In contrast to the statutory language of 

CWA sections 402 and 404, section 

309(c), the general criminal enforcement 

section of the CWA specifically 

authorizes misdemeanor criminal 

liability for violations of federally 

issued or State-issued section 402 and 

404 permits in subsection (c)(1) and a 

range of penalties for ‘‘[n]egligent 

violations’’ of specified provisions. It 

also authorizes felony liability and a 

higher range of penalties for ‘‘knowing 

violations’’ of the CWA in subsection 

(c)(2). Beginning in 1999, four Federal 

courts of appeal determined that 

criminal negligence under CWA section 

309(c)(1) is ‘‘ordinary negligence’’ rather 

than gross negligence or any other form 

of negligence. U.S. v. Hanousek, 176 

F.3d 1116, 1121 (9th Cir. 1999); U.S. v. 

Ortiz, 427 F.3d 1278, 1282 (10th Cir. 

2005); U.S. v. Pruett, 681 F.3d 232, 242 

(5th Cir. 2012); U.S. v. Maury, 695 F.3d 

227, 259 (3d Cir. 2012).43 These courts 

did not address whether this provision 

implicates Tribal or State programs 

administering CWA section 402 or 404 

programs. 

On September 10, 2020, the Ninth 

Circuit Court of Appeals issued an 

unpublished decision that granted in 

part and denied in part a petition by the 

Idaho Conservation League for review of 

EPA’s approval of Idaho’s NPDES 

permitting program. Idaho Conservation 

League v. U.S. EPA, 820 Fed. Appx. 627 

(9th Cir. 2020). The League challenged 

EPA’s approval of Idaho’s program in 

part on the grounds that Idaho lacks 

authority to bring enforcement actions 

based on a simple negligence mens rea, 

which the League alleged EPA’s 

regulations require. Relying on the 

Ninth Circuit case law noted above, 

which holds that EPA’s criminal 

enforcement actions are subject to a 

simple negligence standard, the court 

determined that EPA violated its 

regulations in approving a program 

authorizing a mens rea of gross 

negligence because it is ‘‘ ‘greater than 

the burden of proof or degree of 

knowledge or intent EPA must provide 

when it brings an action . . .’ 40 CFR 

123.27(b)(2).’’ While the court 

recognized that ‘‘a State program need 

not mirror the burden of proof and 

degree of knowledge or intent EPA must 

meet to bring an enforcement action,’’ 

citing EPA’s Consolidated Permit 

Regulations, 45 FR 33290, 33382 (May 

19, 1980), the court nevertheless held 

that EPA’s current regulations at 40 CFR 

123.27(b)(2) require a ‘‘state plan to 

employ a mens rea standard ‘no greater 

than’ simple negligence, such as strict 

liability or simple negligence.’’ Idaho 

Conservation League, 820 Fed. Appx. at 

628. 

b. Statutory and Regulatory Framework 

The general enforcement provisions of 

the CWA section 309(c)(1), 33 U.S.C. 

1319(c)(1), as interpreted by the courts, 

authorize criminal prosecutions of 

violations of section 402 and 404 

permits committed with a simple 

negligence mens rea. However, the 

CWA does not state that Tribal or State 

section 402 or 404 programs must 

demonstrate such authority as a 

criterion for program approval to Tribal 

or State. The CWA provides a list of the 

authorities Tribes and States must have 

in order to qualify for section 402 or 404 


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program approval, respectively, and 

authority to prosecute criminal 

violations committed with a simple 

negligence mens rea is not on either list. 

Rather, with respect to enforcement 

authorities, the CWA requires that EPA 

‘‘shall approve’’ a Tribe or State’s 

submission to administer a section 402 

or 404 program if it demonstrates that it 

has authority to ‘‘abate violations of the 

permit or the permit program, including 

civil and criminal penalties and other 

ways and means of enforcement.’’ 33 

U.S.C. 1342(b)(7); 1344(h)(1)(G). For the 

reasons described herein, EPA has 

concluded that the best reading of these 

statutory provisions is that they do not 

establish specific mens rea requirements 

for Tribal and State section 404 

programs. 

In addressing the criminal 

enforcement requirements for State 

programs, Congress did not require 

Tribes and States to have identical 

enforcement authority to EPA’s. 

Congress did not use the words ‘‘all 

applicable,’’ ‘‘same,’’ or any phrase 

specific to any mens rea standard, let 

alone the Federal standard, as it did in 

other parts of CWA sections 404(h) or 

402(b). See 33 U.S.C. 1344(h), 1342(b). 

When ‘‘Congress includes particular 

language in one section of a statute but 

omits it in another section of the same 

Act, it is generally presumed that 

Congress acts intentionally and 

purposely in the disparate inclusion or 

exclusion.’’ Sebelius v. Cloer, 569 U.S. 

369, 378 (2013) (internal quotations 

omitted). In contrast to the broad 

authority that CWA sections 

404(h)(1)(G) and 402(b)(7) provide to 

determine whether Tribes and States 

have demonstrated adequate authority 

to abate violations, other aspects of 

Tribal and State programs are explicitly 

required to have authority that is 

equivalent to or more stringent than 

EPA’s authority. 

For example, States must have the 

authority ‘‘[t]o inspect, monitor, enter, 

and require reports to at least the same 

extent as required in section 1318 of this 

title.’’ 33 U.S.C. 1344(h)(1)(B); 

1342(b)(2)(B). Similarly, CWA section 

404(h)(1)(B) requires Tribe- or Stateissued permits to ‘‘apply, and assure 

compliance with, any applicable 

requirements of this section, including, 

but not limited to, the guidelines 

established under subsection (b)(1) of 

this section, and sections 1317 and 1343 

of this title.’’ 33 U.S.C. 1344(h)(1)(A)(i); 

and CWA section 402(b)(1)(A) requires 

Tribes and States to issue permits in 

compliance with ‘‘sections 1311, 1312, 

1316, 1317, and 1343 of this title.’’ 33 

U.S.C. 1342(b)(1)(A). By contrast, the 

more general language used to require 

Tribes and States to demonstrate 

adequate authority to abate violations 

indicates that Congress intended to 

allow for some flexibility in EPA’s 

ability to approve Tribal and State 

approaches to certain aspects of 

criminal enforcement. See 33 U.S.C. 

1342 (b)(7). EPA proposed to clarify that 

CWA sections 402 and 404 allow for 

approved Tribal and State programs to 

have a somewhat different approach to 

criminal enforcement than the Federal 

Government’s approach, namely, that 

Tribal and State programs do not need 

authority to prosecute based on a simple 

negligence mens rea. However, the 

proposed approach required that Tribes 

and States be able to implement the text 

of section 309(c), requiring authority to 

prosecute crimes committed with some 

form of negligence. 

Some commenters on the proposed 

rule agreed with EPA’s interpretation of 

the statute. Other commenters 

disagreed, arguing that the simple 

negligence criminal prosecution 

authority in CWA section 309(c) applies 

to Tribal and State programs. These 

commenters stated that CWA section 

309(c) establishes misdemeanor 

criminal liability for anyone who 

violates a CWA section 402 or 404 

permit issued by EPA or a State with a 

mens rea of simple negligence. 

According to the commenters, nothing 

in CWA section 309 limits this authority 

to EPA as opposed to State programs. 

EPA disagrees with commenters’ 

arguments that the CWA does not 

authorize EPA to approve Tribal or State 

programs that lack authority to 

prosecute criminal violations committed 

with a simple negligence mens rea. 

While EPA acknowledges that CWA 

section 309(c)(1) does mention negligent 

violations of State permits, that 

provision provides authority for Federal 

prosecutions, including enforcement of 

State permit requirements; it does not 

require or address State or Tribal 

enforcement programs or the standard 

for approval or assumption for Tribal 

and State programs. Moreover, when 

section 309(c)(1) is read alongside 

sections 402(b) and 404(h)(1), which set 

forth the requirements for Tribal and 

State programs, the more specific Tribal 

and State requirements in sections 

402(b) and 404(h)(1) prevail over the 

CWA’s general enforcement provision in 

section 309(c). See RadLAX Gateway 

Hotel, LLC v. Amalgamated Bank, 566 

U.S. 639, 645 (2012) (‘‘[I]t is a 

commonplace of statutory construction 

that the specific governs the general.’’) 

(internal citations omitted.) As 

described above, the general language 

used to describe the criminal 

enforcement authorities Tribe and States 

must have indicates Congressional 

intent to allow greater flexibility for 

Tribes and States in the criminal 

enforcement context than they have, for 

example, in permitting and inspections. 

This provides appropriate ‘‘respect’’ for 

‘‘state autonomy in the criminal sector.’’ 

NRDC v. U.S. EPA, 859 F.2d 156, 180– 

181 (D.C. Cir. 1988). 

Some commenters argued that 

executive branch agencies may not 

modify criminal intent standards absent 

express Congressional authorization. 

Modifying Congressionally authorized 

criminal liability standards, in the 

commenters’ view, is not a power left to 

the executive branch. EPA disagrees 

with the premise of this comment; as 

discussed above, Congress did not 

mandate that Tribes and States have 

authority to prosecute criminal 

violations committed with a simple 

negligence mens rea, so this rule does 

not modify Congressionally established 

standards, which continue to apply to 

Federal enforcement. 

EPA’s interpretation that it has the 

flexibility to approve Tribal or State 

programs with the authority to 

prosecute violations committed with a 

mens rea of any form of negligence is 

consistent with case law. In NRDC v. 

U.S. EPA, the petitioner challenged the 

validity of 40 CFR 123.27(a)(3) on the 

theory that it did not require States to 

have the same maximum criminal 

penalties as the Federal program. 859 

F.2d 156 (D.C. Cir. 1988). The court 

reasoned that the petitioner’s argument 

involved a ‘‘logical infirmity’’ because it 

‘‘presume[d] an unexpressed 

congressional intent that state 

requirements must mirror the Federal 

ones,’’ which is ‘‘inconsistent with the 

elements of the statutory scheme 

limiting operation of the provisions to 

enforcement efforts at the national level 

and explicitly empowering the 

Administrator to set the prerequisites 

for state plans.’’ Id. at 180 (discussing 33 

U.S.C. 1314(i)(2)(C)). The D.C. Circuit 

recognized EPA’s ‘‘broad [ ] discretion to 

respect state autonomy in the criminal 

sector’’ and that the regulations ‘‘reflect 

the balancing of uniformity and state 

autonomy contemplated by the Act.’’ Id. 

at 180–81. The court declined to 

‘‘disturb this ‘reasonable 

accommodation of manifestly 

competing interests,’ ’’ and upheld the 

agency’s penalty regulations. Id. at 181 

(internal citations omitted). 

EPA’s interpretation is also consistent 

with the Ninth Circuit’s decision in 

Akiak Native Community v. EPA, where 

that court declined to require that States 

have authority to impose administrative 

penalties identical to Federal authority. 

See Akiak Native Community, 625 F.3d 


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1162, 1171–72 (9th Cir. 2010). In that 

case, the petitioner argued that the State 

of Alaska did not have adequate 

authority to abate violations because the 

State had to initiate a legal proceeding 

to assess civil penalties, whereas EPA 

could do so administratively. Id. at 

1171. The Court held that because 

‘‘[t]here is no requirement in the CWA 

. . . that state officials have the 

authority to impose an administrative 

penalty’’ and ‘‘[t]he language of the 

statute says nothing about 

administrative penalties,’’ ‘‘there is no 

reason to conclude that Alaska lacks 

adequate enforcement authorities.’’ Id. 

1171–72. 

Some commenters argued that the 

NRDC and Akiak Native Comm’ty cases 

are inapposite. Because the NRDC case 

involved penalties and Akiak Native 

Comm’ty was about enforcement 

mechanisms, they argue neither of these 

cases bears on criminal intent standards. 

Commenters also stated that NRDC is 

distinguishable because the court relied 

on an express Congressional 

amendment authorizing EPA to allow 

for certain Tribal and State program 

departures from CWA statutory civil 

enforcement monetary penalties, and 

the CWA contains no such amendment 

regarding mens rea. In their view, the 

absence of a similar Congressional 

authorization for the Administrator to 

depart from criminal liability standards 

applicable to Tribal and State programs 

shows that Congress did not grant the 

Administrator such authority. 

Commenters also noted that NRDC 

decision ignored CWA section 402(a)(3), 

which provides that EPA’s permit 

program ‘‘shall be subject to the same 

terms, conditions, and requirements as 

apply to a State permit program and 

permits issued thereunder under 

subsection (b) of this section.’’ 33 U.S.C. 

1342(a)(3). These commenters view this 

language as prohibiting Tribes or States 

from implementing a program that is 

any less stringent than a federally run 

program, including a program lacking 

authority to prosecute criminal 

violations committed with a simple 

negligence mens rea. Commenters state 

that the fact that neither the plaintiffs in 

that case nor D.C. Circuit considered 

section 402(a)(3) renders the NRDC 

precedent less persuasive. 

Finally, commenters stated that the 

court in NRDC emphasized the 

importance of State programs being 

‘‘administered in such a manner that 

. . . [approval will] provide a much 

more effective program’’ than the 

Federal Government would otherwise 

administer. 859 F.2d at 175. 

Commenters emphasized that this 

language reflects the court’s view that 

Congress wanted to create more 

protective State programs. 

EPA disagrees with the commenters 

stating that NRDC and Akiak Native 

Comm’ty do not support the Agency’s 

view of its authority. These cases hold 

that EPA may approve State programs if 

these programs lack certain enforcement 

authorities that the CWA provides to 

EPA; this precedent is highly germane 

to these revisions, even if the precise 

authorities at issue in those cases were 

not criminal intent standards. EPA also 

disagrees that NRDC is distinguishable 

because it did not address CWA section 

402(a)(3). The fact that neither the 

plaintiffs nor the court addressed 

section 402(a)(3) may merely indicate 

that they did not find that provision 

relevant. Nor does EPA. Section 

402(a)(3) applies to the terms, 

conditions, requirements, and permits 

of a State permit program; the criminal 

negligence mens rea that States are 

authorized to prosecute is none of these. 

Section 402(a)(3) is most clearly read to 

address the permitting process, not the 

state of mind of criminal violators. 

Moreover, clearly this provision would 

not implicate section 404 permits. 

As to the 1987 amendments to the 

CWA, which noted that Tribal and State 

programs do not need to have the same 

maximum allowable penalty amount as 

EPA (see Water Quality Act of 1987, 

Title III, § 313(b)(2), Public Law 100–4, 

101 Stat. 45), the D.C. Circuit in NRDC 

characterized the amendment as simply 

‘‘confirmation of the broad authority the 

Administrator already enjoyed in 

crafting state program requirements.’’ 

NRDC, 859 F. 2d at 180 (emphasis 

added). In other words, this amendment 

is additional evidence in support of the 

Court’s interpretation of the statutory 

structure that, regardless of the 

amendment, allows EPA certain 

flexibility in determining which of its 

criminal enforcement authorities Tribes 

and States must adopt if they wish to 

administer CWA permitting programs. 

Finally, EPA agrees with commenters 

and the D.C. Circuit in NRDC about the 

importance of effective and protective 

State programs. In this rule EPA is 

maintaining and strengthening many 

provisions to help achieve this goal. 

Specifically with respect to criminal 

enforcement, EPA views the other 

requirements for Tribal and State 

enforcement authority in 40 CFR 123.26, 

123.27 and 233.41 as sufficient to 

ensure that Tribes and States operate 

compliance and enforcement programs 

that satisfy the language and purpose of 

CWA 402(b)(7) and 404(h)(1)(G) to 

‘‘abate violations of the permit or the 

permit program, including civil and 

criminal penalties and other ways and 

means of enforcement.’’ These other 

provisions require, among other things, 

that a Tribe or State must maintain a 

program designed to identify persons 

subject to regulation who have failed to 

obtain a permit or to comply with 

permit conditions, engage in inspections 

and information gathering, and have the 

authority to sue to enjoin or seek 

penalties for violations of sections 402 

and 404. As discussed in section IV.B.3 

of this preamble, EPA’s modifications to 

program assumption requirements 

would further buttress the requirements 

of 40 CFR 233.41. 

EPA has previously argued that Tribes 

and States do not need authority to 

prosecute criminal violations based on a 

simple negligence mens rea, including 

in Idaho Conservation League. Yet to 

the extent EPA’s interpretation is 

viewed as different from any earlier 

interpretations of CWA sections 402 and 

404 and implementing regulations, EPA 

has ample authority to change its 

interpretation to adopt the best reading 

of the statute. See Encino Motorcars, 

LLC v. Navarro, 136 S. Ct. 2117, 2125 

(2016) (‘‘[A]gencies are free to change 

their existing policies as long as they 

provide a reasoned explanation for the 

change.’’) (citations omitted). 

Though under this rule EPA is not 

requiring Tribes or States to have the 

same criminal intent standard that 

courts have interpreted EPA to have, the 

Tribal or State standard would still be 

based on the term ‘‘negligence’’ in the 

text of CWA section 309(c). Allowing 

Tribes or States flexibility in the degree 

of negligence for which they are 

authorized to bring criminal cases 

balances the CWA’s priorities of 

allowing for Tribal or State autonomy 

with adherence to the purposes of the 

Act. As noted above, neither CWA 

section 402(b)(7) nor CWA section 

404(h)(1)(G) requires States to abate 

violations in the same manner as 

required under CWA section 309(c). The 

absence of any citation to CWA section 

309(c) in CWA sections 402(b) and 

404(h) indicates that some degree of 

variability may be permitted between 

Federal and Tribal or State approaches 

to criminal enforcement. 

This variability does not detract from 

the obligation for Tribes and States to 

operate meaningful programs to abate 

permit program violations, including 

through penalties and other ways and 

means of criminal enforcement, and 

consistent with the regulatory 

requirements for Tribal and State 

criminal enforcement authority. See 33 

U.S.C. 1342(b)(7), 1344(h)(1)(G); 40 CFR 

233.41. Furthermore, Tribes and States 

may certainly continue to authorize 

criminal prosecutions based on a simple 


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negligence mens rea. Tribes or States 

with that authority may describe it in 

their program submissions to 

demonstrate the adequacy of their 

criminal enforcement programs. 

This regulatory clarification reflects 

EPA’s experience in approving and 

overseeing CWA State programs for over 

thirty years. Many States administering 

or seeking to administer the programs 

do not currently have authority to 

prosecute based on a simple negligence 

mens rea, and indeed, they may have 

statutory or other legal barriers to such 

standards. EPA is unaware of any 

concrete evidence indicating that the 

absence of a simple negligence mens rea 

for criminal violations has served as a 

bar to effective State criminal 

enforcement programs, and the 

requirement to have such a standard 

could dissuade Tribes and States from 

seeking to administer these programs in 

the future or potentially motivate States 

to return their approved programs to 

EPA. Clarifying that Tribes and States 

do not need authority to prosecute 

based on a simple negligence mens rea 

in their criminal enforcement programs 

therefore advances the purposes of CWA 

sections 402(b) and 404(g) to balance the 

need for uniformity with Tribal and 

State autonomy, see NRDC, 859 F.2d at 

181 (D.C. Cir. 1988), and to encourage 

Tribes and States to seek to administer 

the CWA section 402 or 404 programs 

consistent with section 101(b) of the 

statute. 

This rule does not change the 

standard applicable to EPA’s criminal 

enforcement of the CWA. Under CWA 

section 309, EPA retains its civil and 

criminal enforcement authority, 

including where Tribes and States 

administer permit programs. 

Notwithstanding Tribe or State mens rea 

authorities, Federal prosecutions are 

governed by the mens rea standards that 

Congress wrote into the statute in 1987, 

including that misdemeanor penalties 

apply to violations resulting from 

simple negligence and that felony 

penalties apply to violations resulting 

from knowing conduct. 

Consistent with the CWA’s 

requirement that Tribes and States 

administering CWA sections 402 or 404 

permitting programs have the authority 

to abate civil and criminal violations, 

EPA is adding language to 40 CFR 

123.27(a) and 233.41(a)(3) indicating 

that Tribes and States must have the 

authority to ‘‘establish violations,’’ as 

well as ‘‘to assess or sue to recover civil 

penalties and to seek criminal 

penalties,’’ which these provisions 

already state. This new language simply 

confirms EPA’s interpretation of the 

effect of its current regulations. EPA is 

also removing the term ‘‘appropriate’’ 

from the current references to the degree 

of knowledge or intent necessary to 

provide when bringing an action under 

the ‘‘appropriate Act’’ from the CWA 

sections 402 and 404 regulations, as 

these regulations only refer to actions 

under the CWA and no other statute. 

Therefore, the term ‘‘appropriate’’ is 

unnecessary. Finally, in 40 CFR 

123.27(a)(3) and 233.41(a)(3), which 

currently require Tribes and States to 

have the authority to assess or sue to 

recover ‘‘civil penalties and to seek 

criminal remedies,’’ EPA is replacing 

the word ‘‘remedies’’ with ‘‘penalties,’’ 

as ‘‘penalties’’ is a more precise 

description of the type of relief sought 

in criminal enforcement actions. None 

of the changes described in this 

paragraph are intended to change the 

substantive effect of the regulations. 

E. Federal Oversight 

1. Dispute Resolution 

a. Overview and What the Agency Is 

Finalizing 

The Agency recognizes that Tribes or 

States seeking to assume administration 

of the section 404 permitting program 

may encounter disputes or 

disagreements when developing a 

program or administering an approved 

section 404 program. For example, 

Tribes and States could encounter 

disputes with permittees or other 

affected parties regarding permitting 

decisions, as well as disagreements with 

Federal agencies that could arise in the 

assumption process or program 

implementation concerning issues such 

as the appropriate permitting authority 

or conditions to avoid or minimize 

impacts to historic properties, 

threatened or endangered species, or 

critical habitat. Specifically, such 

disputes may occur during the 

development of the retained waters 

description, development of a transfer 

plan for permits currently under review 

by the Corps, through efforts to address 

endangered species and historic 

properties during permit review, and in 

determining whether a discharge affects 

another State, as well as in other 

situations. However, while the prior 

regulations provided several 

mechanisms for resolving certain types 

of disagreements (e.g., addressing EPA’s 

comments, conditions, or objections to 

potential Tribal or State permits), the 

prior regulations did not provide a 

general dispute resolution mechanism 

or clarify EPA’s role in such disputes. 

Several Tribes and States have 

requested that EPA help resolve 

disputes encountered between 

themselves and other States, Tribes, or 

the Federal Government. 

The Agency proposed to add a general 

provision to the purpose and scope 

section at section 233.1 that would 

clarify EPA’s role in facilitating the 

resolution of potential disputes between 

the Federal agencies and the Tribe or 

State seeking to assume and/or 

administer a section 404 program. 88 FR 

55323. The proposed rule would also 

provide for resolution or elevation 

procedures to be specifically articulated 

in the Tribal or State Memoranda of 

Agreement or on a case-by-case basis. 

The provision reaffirms, however, that 

any dispute resolution or elevation 

process described in the regulations or 

in the Tribal or State Memoranda of 

Agreement must be followed. After 

reviewing public comments, the Agency 

is finalizing the dispute resolution 

provision as proposed at section 

233.1(f). 

b. Summary of Final Rule Rationale and 

Public Comment. 

The Agency sees facilitating 

resolution of disputes as critical to 

establishing and sustaining viable Tribal 

and State section 404 permitting 

programs. EPA’s engagement as a third 

party in such discussions can help to 

resolve impasses and ensure the 

program is administered consistent with 

CWA requirements. In this rule, EPA 

seeks to elucidate its role in resolving 

such disputes. Rather than attempt to 

articulate in the regulations all potential 

areas where a dispute may arise, EPA is 

adding a general provision to section 

233.1 to affirm that EPA may facilitate 

resolution to potential disputes between 

the Tribe or State and Federal agencies 

and provide for resolution or elevation 

procedures to be specifically articulated 

in the Tribal or State Memoranda of 

Agreement or resolved on a case-by-case 

basis through discussions convened by 

EPA. EPA views this clarification as 

consistent with its program approval 

and oversight authority in CWA sections 

404(h)–(j). 

Commenters generally supported this 

clarification of EPA’s role in assisting in 

the resolution of disputes. Some 

commenters raised concerns that EPA 

does not articulate any specific 

‘‘mechanism or final authority,’’ and 

asked that EPA articulate specific 

procedures to be included in the 

Memorandum of Agreement. Another 

commenter generally encouraged 

flexibility. One commenter objected to 

the proposal, arguing that it is not 

needed. After reviewing public 

comments, EPA is finalizing the general 

dispute resolution as proposed, as it 

provides requested clarity on EPA’s role 


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while maintaining flexibility in the form 

such assistance may take. EPA is 

declining to define a specific 

mechanism or procedures for dispute 

resolution to accommodate differing 

Tribal and State program structures and 

account for the individual 

circumstances and complexities of a 

potential disagreement. 

Flexibility is also important in light of 

the various scenarios in which EPA may 

help facilitate resolution of disputes that 

may arise between a Tribe or State and 

other Tribes or States or Federal 

agencies as they seek to assume and 

administer a section 404 permit 

program. For example, EPA may assist 

in resolving issues raised about the 

scope of retained waters or situations 

where the Tribe or State may disagree 

with the Corps about whether a 

proposed project would result in 

discharges to assumed or retained 

waters. As EPA is responsible for 

approving the jurisdictional scope of a 

Tribal or State section 404 program, 

EPA can help resolve such disputes. 

Potential disagreements could also arise 

in other aspects of section 404 

programs, including proper approaches 

to joint project permitting, 

administration of a compensatory 

mitigation program (such as mitigation 

banking or in-lieu fee programs), the 

determination as to whether a particular 

permit application implicates a 

discharge into waters of the United 

States, and program conditions to avoid 

or minimize impacts to threatened or 

endangered federally listed species or 

historic properties. 

Nothing in this new dispute 

resolution provision alters existing 

provisions addressing the Agency’s 

review of and objection to State permits 

located at section 233.50. Congress 

authorized EPA to serve an oversight 

role for Tribal and State section 404 

programs. EPA’s authority encompasses 

the coordination of Federal comments 

on draft Tribal or State-issued permits 

and the ability to review, comment on, 

or object to these draft permits. 40 CFR 

233.50. In this role, EPA, as a practical 

matter, works to resolve differences 

between Tribes or States and Federal 

agencies, particularly when reviewing 

draft permits. The regulations also 

establish processes whereby a Tribe or 

State may address EPA’s comments, 

conditions, or objections to potential 

Tribal or State permits. Id. 

2. Withdrawal Provisions 

a. Overview and What the Agency Is 

Finalizing 

Section 404(i) provides for EPA to 

withdraw assumed programs that are 

not administered in accordance with the 

requirements of the Act. 33 U.S.C. 

1344(i). The prior regulations, 

promulgated in 1992, set out a formal 

adjudicatory process for the withdrawal 

proceedings. The Agency proposed to 

simplify the process used by the Agency 

when withdrawing an assumed section 

404 program from a previously 

authorized Tribe or State. 88 FR 55310. 

The proposed process at section 233.53 

provided that if the Regional 

Administrator finds that a Tribe or State 

is not administering the assumed 

program consistent with the 

requirements of the CWA and 40 CFR 

part 233, then the Regional 

Administrator shall inform the Tribe or 

State as to the alleged noncompliance 

and give the Tribe or State 30 days to 

demonstrate compliance. If compliance 

is demonstrated within those 30 days, 

then the Regional Administrator will so 

notify the Tribe or State and take no 

further action. If the Tribe or State fails 

to adequately demonstrate compliance 

within 30 days, the EPA Administrator 

will schedule a public hearing to 

discuss withdrawal of the Tribal or State 

program. Notice of the hearing will be 

widely disseminated and will identify 

the Administrator’s concerns. The 

hearing will be held no less than 30 

days and no more than 60 days after 

publication of the notice of the hearing 

and all interested parties will have the 

opportunity to make written or oral 

presentations. If, after the hearing, the 

Administrator finds that the Tribe or 

State is not in compliance, the 

Administrator will notify the Tribe or 

State of the specific deficiencies in the 

Tribal or State program and the 

necessary remedial actions. The Tribe or 

State will have 90 days to carry out the 

required remedial actions to return to 

compliance or the Administrator will 

withdraw program approval. If the Tribe 

or State completes the remedial action 

within the allotted time, or EPA 

concludes after the hearing that the 

Tribe or State is in compliance, the 

Tribe or State will be notified and the 

withdrawal proceeding concluded. 

Where the Administrator determines 

that the assumed program should be 

withdrawn, that decision will be 

published in the Federal Register, the 

Corps will resume permit decisionmaking under section 404 in all waters 

of the United States in the affected Tribe 

or State, and any provision in the CFR 

addressing that Tribe’s or State’s 

assumption will be rescinded. 

After reviewing public comments, the 

Agency is finalizing the approach as 

proposed, with one revision to require 

EPA to decide whether to proceed with 

withdrawal within 90 days after the 

conclusion of the hearing process. This 

final rule approach replaces the 

adjudicatory hearing process with a 

public notice and hearing process 

modeled on the procedures for 

withdrawal of the Underground 

Injection Control program as discussed 

below. 

b. Summary of Final Rule Rationale and 

Public Comments 

The previous section 404 Tribal and 

State program regulations, promulgated 

in 1992, set out a formal adjudicatory 

process for the withdrawal proceedings. 

This formal adjudication process is not 

required by the statute and its length 

and complexity impose an unnecessary 

resource burden and other challenges 

for the Agency, Tribes and States, and 

stakeholders. The Agency proposed a 

streamlined process that is both easier 

to understand and to administer and 

encourages participation by interested 

parties. The process is modeled on the 

withdrawal procedures for Tribal and 

State Underground Injection Control 

programs at 40 CFR 145.34 and revised 

to accommodate the requirements of 

section 404. EPA views the 

Underground Injection Control 

program’s approach as more transparent 

and efficient than the prior section 404 

program withdrawal procedures. 

EPA requested comments on all 

aspects of the revision. Multiple 

commenters supported the proposed 

approach as providing a more 

meaningful backstop to ensure that 

Tribal or State programs address water 

pollution consistent with the 

requirements of section 404. Some 

commenters opposed the proposed 

approach, stating that the text of the 

statute indicates that Congress supports 

State assumption and intended 

withdrawal to be an extended 

adjudicatory process providing 

maximum due process to the State. 

These commenters expressed concern 

that an ‘‘easy out’’ would undermine the 

stability of program approval and could 

lead to economic waste of the 

substantial investments States make in 

their programs. These commenters also 

noted that a streamlined withdrawal 

process could disincentivize Tribal and 

State assumption generally. 

EPA has decided to finalize the 

proposed approach. As commenters in 

support of the proposed revision noted, 

the final rule allows EPA to respond 

quickly where there are concerns 

regarding Tribal or State compliance 

with the assumed program. By 

eliminating the adjudicatory 

requirements, it allows both EPA and 

the Tribe or State to focus on the 


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substantive requirements of the 

program. In response to commenters’ 

concerns, the substantive requirements 

of the final rule are comparable to the 

prior one but will enhance efficiency of 

the withdrawal process and better align 

with EPA’s section 404 program 

approval procedures. Nothing in the 

CWA requires the Agency to maintain 

inefficient and burdensome procedures 

for their own sake. Enhancing 

administrability does not mean that EPA 

intends to take program withdrawal 

lightly, and EPA’s experience with both 

CWA and Underground Injection 

Control programs reflects that this 

process has been carefully and rarely 

used. Consistent with EPA’s 

longstanding practice, the Agency will 

first seek to resolve program concerns 

and help enable Tribes and States to 

administer the section 404 program 

consistent with the requirements of the 

CWA and its implementing regulations. 

EPA is committed to working with 

Tribes and States through mechanisms 

such as annual program report reviews, 

informal program reviews, and formal 

program reviews to identify program 

challenges and recommended steps for 

resolution. 

Several commenters asked that EPA 

add a deadline by which time EPA must 

decide whether to proceed with 

withdrawal after the conclusion of the 

hearing process. These commenters 

suggested a deadline of no more than 60 

days. EPA considered this suggestion 

and concluded that a deadline for 

decision would add predictability to the 

withdrawal process and avoid leaving 

the relevant Tribe or State and 

stakeholders in a lengthy state of 

uncertainty as to whether the Tribe or 

State will continue to administer the 

program. However, EPA decided to 

provide the Agency 90 days to make this 

decision, rather than 60 days, to allow 

sufficient time for consideration of 

concerns raised and the Tribe or State’s 

capacity to address these concerns. The 

final rule therefore provides for a 90-day 

mandatory time frame for EPA to make 

its decision after the conclusion of the 

hearing process. 

3. Program Reporting 

a. Overview and What the Agency Is 

Finalizing 

EPA’s prior section 404 Tribal and 

State program regulations require the 

Tribe or State to provide a selfassessment in an annual report, which 

must include, among other information, 

‘‘an assessment of the cumulative 

impacts of the State’s permit program on 

the integrity of the State regulated 

waters’’ and numbers of permits issued 

and enforcement actions taken. 40 CFR 

233.52(b) (2023). The annual report is 

meant to provide a robust overview of 

the Tribe’s or State’s program and 

implementation and support continuous 

improvement such that EPA can ensure 

the program remains consistent with the 

Act and these regulations. However, 

some of the self-assessment 

requirements for the annual report in 

the prior regulation lacked the necessary 

details for a Tribe or State to know 

EPA’s expectations for the annual 

report. 

EPA proposed several revisions at 

section 233.52(b) to clarify information 

not previously explicitly required, 

including specific metrics about 

compensatory mitigation, program 

resources and staffing, and a discussion 

as to how issues identified in the 

previous annual report or other 

problems the program has encountered 

have been resolved. 88 FR 55311. 

Additionally, the Agency proposed to 

add the word ‘‘final’’ between ‘‘Regional 

Administrator’s’’ and ‘‘comments’’ in 40 

CFR 233.52(e) to acknowledge that some 

discussion may occur between the Tribe 

or State and EPA as the annual report 

is being finalized. Finally, the Agency 

also proposed to require that the 

Director make the final annual report 

publicly available. After reviewing 

public comments, the Agency is 

finalizing these revisions as proposed, 

with one non-substantive revision to 

replace ‘‘as well as’’ with ‘‘and’’ in the 

series of items the State must evaluate 

in the draft annual report located at 

section 233.52(b). 

b. Summary of Final Rule Rationale and 

Public Comment 

EPA requested comment on all 

aspects of the proposed revision to the 

annual report requirements. EPA 

received few comments on this 

provision. The majority of comments 

were general in nature, expressing 

support for the added clarity in the 

proposal. One commenter opposed the 

additional requirements, stating that 

they would increase the burden on 

States to assume and implement the 

program. EPA considered these 

comments and has decided to finalize 

the regulatory text as proposed, because 

it adds clarity to what Tribes and States 

are expected to provide, giving them 

clear expectations for the annual report 

and reducing the need for follow-up 

questions from the Agency as it 

conducts its program oversight. EPA 

therefore thinks the revisions will assist 

Tribes and States, rather than burdening 

them. 

A few commenters requested that EPA 

require additional reporting about the 

costs of administering the program and 

litigation involving the Tribal or State 

program. The Agency finds that the 

proposed requirement to document 

‘‘resources and staffing’’ will be 

sufficient to provide information EPA 

needs about program budgets. In 

addition, EPA decided that it does not 

need a litigation update in order to 

fulfill its oversight obligations; 

information already required about 

unauthorized activities and enforcement 

actions taken should, as a general 

matter, provide the litigation-related 

information most relevant to EPA’s 

oversight. To the extent EPA decides 

that it needs litigation information on a 

case-by-case basis, that information 

would be easy to research or request of 

the Tribe or State. Thus, the Agency 

finds it unnecessary to modify the 

proposed text in light of these 

comments. 

The final rule clarifies and updates 

the requirements for a Tribe’s or State’s 

annual reporting by clarifying that it 

must identify implementation 

challenges along with solutions to 

address the challenges, that evaluations 

of the program components must 

include any quantitative reporting, and 

that it must provide specific metrics 

related to compensatory mitigation, 

resources, and staffing. EPA expects 

these revisions will support a more 

streamlined process for the State’s 

annual report submittal, EPA’s 

comments and approval, and the State’s 

final report publication. The 

clarifications will also ensure 

transparency as to the state of Tribal and 

State programs and facilitate annual 

discussions between the Tribe or State 

and EPA about program implementation 

and challenges. For EPA, the revisions 

will improve the Agency’s ability to 

ensure that program operation is 

consistent with the Act. 

Existing programs may make minor 

revisions to address this change. For 

example, the 2011 Memorandum of 

Agreement between Michigan and EPA 

lists requirements of the annual reports, 

but the list does not specifically include 

compensatory mitigation or resources 

and staffing, which are included in the 

final regulatory text. The 2011 Michigan 

EPA Memorandum of Agreement list 

does not preclude the State reporting 

other information; however, the 

Memorandum of Agreement list could 

be updated to reference section 

233.52(b) or match the updated 

regulatory text. The New Jersey and EPA 

Memorandum of Agreement includes 

annual reporting requirements, but 

references section 233.52(b) rather than 

listing the requirements, so it may not 

require distinct updates. 


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44EPA maintains a website that lists all Tribes 

approved for TAS, which is updated bi-annually. 

Tribes with TAS for regulatory programs and 

administrative functions can be found at https:// 

www.epa.gov/tribal/tribes-approved-treatmentstate-tas; Tribes with TAS for section 106 grants can 

be found at https://www.epa.gov/water-pollutioncontrol-section-106-grants/tribal-grants-undersection-106-clean-water-act; Tribes with TAS for 

section 319 grants can be found at https:// 

www.epa.gov/nps/current-tribal-ss319-grantinformation. 

F. Eligible Indian Tribes 

a. Overview and What the Agency Is 

Finalizing 

Prior to issuing a permit, a Tribe or 

State with an approved section 404 

program must provide notice to another 

Tribe or State if a proposed discharge 

may affect the biological, chemical, or 

physical integrity of the other Tribal or 

State waters and provide an opportunity 

for the Tribe or State to submit written 

comments and suggest permit 

conditions. 40 CFR 233.31; see 33 U.S.C. 

1344(h)(1)(C), (E). If recommendations 

from the State whose waters may be 

affected are not accepted by the Tribe or 

State issuing the permit, the Tribe or 

State issuing the section 404 permit 

must notify the affected State and EPA 

of its decision not to accept the 

recommendations and reasons for doing 

so. 40 CFR 233.31(a); see 33 U.S.C. 

1341(1)(E). EPA’s regulation at 40 CFR 

233.2 defines the term ‘‘State’’ to 

include an Indian Tribe which meets 

the eligibility requirements for a Tribe 

to assume the section 404 program. 

Accordingly, these provisions could be 

read to limit the coordination 

requirement in section 233.31 to only 

those affected Tribes that meet the 

requirements for section 404 program 

assumption. To date, no Tribe has 

applied for eligibility to assume the 

section 404 program, and many Tribes 

lack the resources to assume the 

program. However, nearly half of 

federally recognized Tribes have been 

approved for TAS for other CWA 

provisions (i.e., TAS for CWA section 

106, section 319, and sections 303(c) 

and 401) and may have relevant water 

quality information that could inform 

the permitting decisions of Tribes or 

States administering a section 404 

program. 

In the proposal, the Agency 

considered three ways to further 

facilitate Tribal engagement in 

permitting decisions that may affect 

Tribal resources. First, the Agency 

proposed to expand the aforementioned 

coordination requirement to include 

affected Tribes that have been approved 

by EPA for TAS for any CWA provision, 

as opposed to only Tribes with TAS to 

assume the section 404 program. 

Second, the Agency proposed a new 

TAS opportunity solely for the purpose 

of receiving a heightened comment 

opportunity on section 404 permits 

proposed by other Tribes or States that 

may affect the biological, chemical, or 

physical integrity of their reservation 

waters. Finally, the Agency proposed to 

provide an opportunity for Tribes to 

request EPA review of permits that may 

affect Tribal rights or interests, even if 

Federal review has been waived. After 

reviewing public comments, the Agency 

is finalizing all three changes as 

proposed. These revisions are consistent 

with EPA’s authority under CWA 

sections 404 and 518, as well as the 

Federal trust relationship and 

responsibilities to federally recognized 

Tribes, the policies underlying CWA 

section 518, and EPA’s policies to 

facilitate Tribal opportunities to actively 

engage in managing their waters and 

resources. 

In addition to the approaches 

summarized above to facilitate Tribal 

engagement in permitting decisions, 

EPA is also clarifying that when Tribes 

seek to administer the program in areas 

where they have not already assumed 

the section 404 program, Tribes must 

demonstrate that they meet the TAS 

criteria for those additional areas. This 

is a non-substantive clarification 

because subpart G already provides a 

process whereby Tribes seeking to 

assume the section 404 program address 

the TAS criteria, and this provision 

would simply clarify that the same TAS 

application applies if Tribes seek to add 

a new area to their program. 

b. Summary of Final Rule Rationale and 

Public Comment 

i. Enabling Tribes With TAS for Any 

CWA Provision To Comment as an 

Affected State 

As discussed above, 40 CFR 233.31(a) 

currently affords specific consideration 

of comments and suggested permit 

conditions on draft permits by an 

affected State and provides an avenue of 

review if a Tribe or State with an 

assumed program chooses not to accept 

the suggested permit conditions. Under 

the current regulatory definition of 

‘‘State’’—which includes Tribes that 

have obtained TAS for purposes of 

assuming the section 404 program—no 

Tribes are presently eligible to be 

considered an affected State, as no 

Tribes have yet obtained TAS status for 

purposes of assuming the section 404 

program. 

Section 518 of the CWA authorizes 

EPA to treat eligible federally 

recognized Tribes in a similar manner as 

a State for purposes of implementing 

and managing various environmental 

functions under the statute. The 

requirements for TAS are established in 

CWA section 518 and are reflected in 

EPA regulations for various CWA 

provisions. Generally, the Tribes must 

be federally recognized, have a 

governing body that carries out 

substantial governmental duties and 

powers, seek to carry out functions 

pertaining to the management and 

protection of reservation water 

resources, and be capable of carrying 

out the functions of the particular 

provision at issue. 33 U.S.C. 1377(e). Of 

the 574 federally recognized Tribes, 

over 285 have been granted TAS status 

for one or more CWA provisions.44

The Agency proposed to revise the 

coordination requirements at section 

233.31 to expressly provide that Tribes 

that have already been approved for 

TAS by EPA to administer any other 

CWA programs, such as a water quality 

standards (WQS) program under CWA 

section 303(c), or have been approved 

for TAS for any other CWA purpose, 

such as receiving section 106 grants to 

establish and administer programs for 

the prevention, reduction, and 

elimination of water pollution, should 

also have the opportunity to comment 

on draft permits in the same manner as 

affected States. 

Most commenters supported effective 

coordination with Tribes on permits 

that may affect Tribal aquatic resources. 

EPA agrees with these commenters and 

finds this provision at 233.31 will 

enable more Tribes whose waters may 

be affected by a dredge or fill project to 

comment on permits to be issued by a 

Tribe or State in the same manner as 

other affected States. A Tribe or State 

with an approved section 404 program 

will also have to provide an opportunity 

for Tribes with TAS for any CWA 

provision to submit written comments 

within the public comment period and 

suggest permit conditions as provided 

in section 233.31(a) of the regulations. 

As finalized, Tribes and States with an 

approved section 404 program must 

consider comments from Tribes with 

TAS for any CWA provision whose 

reservation waters may be affected by a 

proposed discharge. If the 

recommendations are not accepted by 

the approved Tribe or State program, the 

approved Tribe or State program would 

have to notify the affected Tribe and 

EPA of its decision not to accept the 

recommendations and its reasons for not 

doing so. EPA would then have time to 

comment upon, object to, or make 

recommendations regarding the Tribal 

concerns set forth in the original 

comment. This is the same opportunity 

and process provided to affected States. 


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Some commenters asked EPA to 

codify specific timelines and 

notification requirements to ensure such 

coordination occurs. EPA is declining to 

mandate a specific process. Rather, EPA 

has determined that individual Tribes 

and States should have the flexibility to 

establish the procedures and 

coordination approaches that work best 

for them. EPA encourages States to work 

together with Tribes whose reservation 

waters may be affected by a proposed 

discharge prior to proposal of the 

relevant permit. Such efforts will 

improve permitting, protect interests, 

and build relationships. For example, 

existing State section 404 programs are 

already coordinating with affected 

Tribes per their Memorandum of 

Agreement with EPA. 

Some commenters expressed concern 

that this provision creates a new 

authority allowing for Tribes to engage 

in State permitting in a way that could 

result in confusion, while another 

commenter suggested that such 

opportunity be limited to Tribes with 

TAS for water quality standards and 

section 401 certification. EPA disagrees 

with these commenters. First, EPA 

disagrees that this provision will result 

in confusion. Under CWA sections 404 

and 518 and EPA’s existing regulations, 

Tribes were already afforded the 

enhanced opportunity to provide 

comment as an affected State through 

the TAS process for section 404. 

Second, EPA views any Tribe that has 

TAS status for any CWA purpose as 

both capable of participating in matters 

that may affect the chemical, physical, 

or biological integrity of reservation 

waters through the enhanced 

opportunity for comment, and as an 

appropriate entity to be afforded that 

opportunity. By receiving TAS for 

another provision of the CWA, a Tribe 

has already demonstrated they have met 

the TAS requirements as articulated in 

section 518 of the Act and that they are 

engaged in water quality protection 

activities under the Act. Accordingly, 

EPA concludes that Tribes that have 

already been approved for TAS by EPA 

to administer other CWA program(s) are 

capable of commenting on draft permits 

in the same manner as affected States 

and are relevant entities to provide 

input regarding the potential effects on 

their reservation waters of Tribal and 

State 404 permitting. 

ii. Providing TAS Opportunity 

Specifically for the Ability To Comment 

as an Affected State 

EPA is finalizing as proposed a 

process whereby Tribes may apply for 

TAS for the sole purpose of commenting 

on Tribe- or State-issued CWA section 

404 permits in the same manner as an 

affected State. Tribes that obtain TAS 

for this purpose would benefit from the 

same notification requirements that 

apply to any other commenting affected 

‘‘State.’’ This rule enables Tribes that 

have neither assumed the section 404 

program nor have obtained TAS for 

other CWA programs to obtain TAS 

solely to provide input on section 404 

permits that may affect their reservation 

waters. 

This approach is similar to 

approaches taken in other EPA 

programs. For example, the Agency’s 

regulations under the Clean Air Act 

provide opportunities for interested 

Tribes to seek TAS authorization for 

distinct severable elements of programs 

under that statute. See 40 CFR 49.7(c). 

Under that authority, EPA has 

authorized TAS for the procedural 

comment opportunity provided in 

connection with issuance of certain 

permits by upwind permitting 

authorities, without requiring those 

Tribes to seek authorization for the 

entire relevant program. See 42 U.S.C. 

7661d(a)(2). Nothing in the language of 

section 404 precludes creating this new 

TAS opportunity. This provision would 

relate solely to the coordination 

requirements set forth in section 

233.31(a). The opportunity to provide 

comments and suggest permit 

conditions established in CWA sections 

404(h)(1)(C) and (E) and 40 CFR 233.31 

do not require any exercise of regulatory 

authority by the affected Tribe. Due to 

the limited nature of TAS solely for 

purposes of commenting as an affected 

State, EPA anticipates that the 

application burden on interested Tribes 

would, in most circumstances, be 

minimal and that the process for review 

of Tribal applications would be 

straightforward. As with other TAS 

applications, interested Tribes would 

submit relevant information 

demonstrating that they meet the TAS 

eligibility criteria to the appropriate 

Regional Administrator, who would 

process the application in a timely 

manner. Because, as described above, 

commenting in the same manner as an 

affected State does not involve any 

exercise of regulatory authority by the 

applicant Tribe, no issues regarding 

Tribal regulatory authority should be 

raised or decided in this limited TAS 

context. In this sense, TAS applications 

for this purpose would be similar to 

TAS applications for the purpose of 

receiving grants, a process that many 

Tribes have undergone and with which 

EPA has substantial experience. 

Similarly, Tribes interested in this TAS 

opportunity would need to demonstrate 

their capability solely for the limited 

purpose of submitting comments as an 

affected Tribe. These Tribes would not 

need to demonstrate capability to 

administer an assumed section 404 

program. 

Many commenters supported this 

provision to fill gaps and facilitate 

Tribal engagement in permitting that 

may affect their waters within Indian 

Country. EPA agrees with these 

commenters and is finalizing the 

process as proposed to eliminate 

unnecessary barriers to Tribal 

engagement in the 404 process as 

contemplated by CWA section 518. 

Some commenters raised a concern that 

EPA lacks authority to create new Tribal 

authorities. However, EPA is not 

creating a new Tribal authority. The 

CWA and section 404 program 

regulations already provide Tribes the 

ability to obtain TAS for the section 404 

program and to comment as an affected 

State. 33 U.S.C. 1377(e). As discussed 

above, Tribes do not need to have the 

authorities and resources to fully 

administer a section 404 program, 

including issuing permits and enforcing 

violations, in order to comment as an 

affected State. Such a requirement 

would be unnecessarily burdensome 

with no benefit to Tribes or the 

environment. Thus, EPA is finalizing 

this provision to obtain TAS for the sole 

purpose of commenting on Tribe or 

State issued section 404 permits. 

One commenter suggested that 

specifically enabling Tribes to request to 

review all permits within a specified 

geographic area, including areas outside 

of reservation land, as the most efficient 

way of ensuring Tribal engagement in 

the permit issuance process for areas 

with cultural and ecological 

significance. Tribes are free to submit 

such requests to the permitting 

authority, and EPA encourages Tribes 

and States to provide for notifications of 

permitting in such areas through 

mechanisms established in regulation, a 

Memorandum of Understanding, or 

through the State Historic Preservation 

Officer and Tribal Historic Preservation 

Office. EPA is not adding any regulatory 

revisions on this point as such requests 

are most efficiently addressed on a caseby-case basis. 

Some commenters raised concerns 

that this provision would allow any 

Tribe to comment on any permit issued 

by any State. As stated above, any 

member of the public, including Tribes, 

may already comment on any draft 

permit. This provision simply provides 

an additional mechanism for eligible 

Tribes to engage in the same heightened 

comment process on draft permits that 

is already available to States and to 


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45On May 2, 2024, EPA published a final rule 

entitled ‘‘Water Quality Standards Regulatory 

Revisions to Protect Tribal Reserved Rights.’’ 89 FR 

35717 (May 2, 2024). That rule amends EPA’s water 

quality standards regulation, 40 CFR part 131 et 

seq., to, in pertinent part, define ‘‘Tribal reserved 

rights’’ for WQS purposes as ‘‘any rights to CWAprotected aquatic and/or aquatic-dependent 

resources reserved by right holders, either expressly 

or implicitly, through Federal treaties, statutes, or 

Executive orders.’’ 89 FR 35717. The Tribal 

Reserved Rights rulemaking does not affect section 

233.51 of this section 404 rulemaking, nor does 

anything in this section 404 rulemaking depend on 

the Tribal Reserved Rights rulemaking. 

Tribes that obtain TAS for the purpose 

of assuming the section 404 program. 

Tribes obtaining TAS for this limited 

purpose would be able to comment in 

the same manner as affected States on 

only those permits that may affect the 

biological, chemical, or physical 

integrity of the Tribe’s waters. Providing 

a mechanism to obtain TAS for this 

limited commenting opportunity is 

consistent with CWA sections 404 and 

518, as well as the Federal trust 

responsibility to federally recognized 

Tribes and EPA’s various Tribal policies 

seeking to facilitate Tribal opportunities 

to actively engage in managing their 

waters and resources and to eliminate 

unnecessary barriers to such Tribal 

involvement. 

Lastly, some commenters argued that 

this provision provides Tribes with an 

opportunity to comment on permits that 

does not exist in the Federal section 404 

program. As discussed above, 40 CFR 

233.31(a) already afforded specific 

consideration of comments and 

suggested permit conditions on draft 

permits by an affected State, which 

includes Tribes that have obtained TAS 

for purposes of assuming the section 

404 program. This final rule merely 

provides that Tribes may apply for TAS 

for the sole purpose of commenting on 

Tribe- or State-issued CWA section 404 

permits in the same manner as an 

affected State. Moreover, under the 

Corps’ administration as well as Tribal 

or State program administration, any 

entity may comment on any draft 

permit. 

Some commenters asked EPA to 

conduct outreach to inform Tribes about 

the opportunity to apply for TAS for the 

sole purpose of commenting on 404 

permits. EPA agrees that such outreach 

would be useful and intends to work 

with Tribes and States to develop 

implementation tools and conduct 

outreach informing Tribes, States, and 

others about this rule, including the 

opportunity to apply for TAS to 

comment on 404 permits. 

iii. Opportunity for Tribes To Request 

EPA Review of Permits That May Affect 

Tribal Rights or Interests 

EPA is also revising section 233.51 to 

codify an opportunity for Tribes to 

request EPA review of permits 

potentially affecting Tribal rights or 

interests. These may include rights or 

interests both inside and outside of a 

Tribe’s reservation and would facilitate 

EPA’s review of permits that have the 

potential to impact waters of 

significance to Tribes. The revisions to 

section 233.51 enable Tribes to request 

EPA’s review of permits that may affect 

both rights reserved through treaties, 

statutes, or executive orders, as well as 

Tribal interests in resources that may 

not be reflected in Federal law, such as 

those with historical or cultural 

significance to Tribes. Section 233.51 

applies whenever a Tribe asserts that 

issuance of a particular permit 

potentially affects its rights or resources; 

however, EPA’s review of a permit 

pursuant to section 233.51 would not 

constitute a recognition by EPA that any 

particular Tribe holds reserved rights.45

EPA anticipates that this provision 

will help address Tribal concerns about 

the loss of Federal consultation 

opportunities when permitting authority 

transfers from the Corps to a Tribe or 

State. Additionally, this provision will 

allow coordination on potential impacts 

to Tribal rights and resources not 

covered by any other commenting 

option discussed above in sections 

IV.F.b.i and IV.F.b.ii of this preamble. 

Given the TAS provisions discussed 

above, EPA anticipates that Tribes will 

use this opportunity in limited 

circumstances. 

Under this provision, a Tribe may 

notify EPA within 20 days of public 

notice of a permit application that the 

application potentially affects Tribal 

rights or interests, including those 

beyond reservation boundaries, even if 

Federal review has been waived. If a 

Tribe does so, EPA will request the 

public notice and will proceed in 

accordance with section 233.50, 

including providing a copy of the public 

notice and other information needed for 

review of the application to the Corps, 

the U.S. Fish and Wildlife Service, and 

the National Marine Fisheries Service. 

Pursuant to section 233.50, if EPA 

objects to a draft permit, the issuing 

Tribe or State may not issue the permit 

unless it has taken steps required by 

EPA to eliminate the objection. Once 

EPA removes its objection, EPA may 

send a copy of the letter removing EPA’s 

objections to a permit at a Tribe’s 

request or pursuant to a prior agreement 

with the Tribe (or other stakeholders). 

Several commenters supported the 

proposed provision, noting it helps to 

fill a gap and provide Tribes a 

mechanism to help ensure an 

opportunity to raise concerns regarding 

potential impacts to Tribal aquatic and 

cultural resources outside of their 

reservations. Some commenters 

expressed concern that there is no 

reliable instrument for coordinating 

with States assuming the section 404 

program regarding potential impacts on 

historical and cultural sites or Tribal 

natural resource rights located outside 

of reservation lands. These commenters 

referenced the Federal trust 

responsibility to Federally recognized 

Tribes, which forms an important 

element of the Tribal-federal 

relationship but which does not apply 

to States that assume the section 404 

program, as well as other aspects of 

federal law. Additionally, some 

commenters raised concerns over 

resource limitations and that following 

assumption a Tribe would need to take 

on the burden of reviewing all permit 

applications statewide for those that 

may affect Tribal resources. EPA 

encourages Tribes to work with Tribes 

and States with approved section 404 

programs to develop mechanisms (e.g., 

Memoranda of Understanding) for 

notifying Tribes at appropriate times, 

and EPA may participate in such 

discussions to aid in coordination 

efforts, if appropriate. 

This rule does not affect other 

mechanisms that require Tribal and 

State permitting authorities to protect 

Tribal interests. For example, CWA 

section 404 permits for discharges must 

comply with all applicable State water 

quality standards (including standards 

in a downstream jurisdiction) in effect 

under the CWA. See 33 U.S.C. 

1311(b)(1)(C); 40 CFR 230.10(b)(1) and 

233.20(a). To the extent designated uses 

require consideration of cultural or 

traditional uses of water that may be 

important to Tribes, Tribal or State 

section 404 programs must consider 

those during the permitting process. 

A few commenters raised a concern 

that this provision creates an 

opportunity to comment on permits 

beyond Indian Country that does not 

currently exist when the Corps is the 

permitting authority. As noted above, 

any member of the public is currently 

able to comment on any draft permit, 

and EPA has the authority to review and 

comment on any draft permit. See 33 

U.S.C. 1344(h)(1)(C), (j). In addition, the 

scope of the Corps’ Federal section 404 

program is outside the scope of this 

rulemaking. Regardless of the scope of 

the Corps’ engagement with Tribal 

stakeholders, facilitating Tribal 

engagement in permitting decisions that 

affect Tribal resources is a priority to 

EPA. In its oversight role, EPA is able 

to review and object to permits; this 


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provision provides an additional way to 

inform the Agency as it determines 

whether to review and object to a 

potential permit. 

G. Impacts to Existing Programs 

This preamble section identifies parts 

of this rule that may affect existing 

State-assumed section 404 programs by 

requiring them to modify their 

procedures or potentially expand the 

scope of their authority. Whether these 

changes would require revisions to 

existing State-assumed programs 

depends on the existing authority of the 

States that have assumed the program 

and their implementation procedures, as 

well as the interpretation of these 

authorities and processes by State 

Attorneys General or State courts. These 

States may already have some or all of 

the authority or procedures in place that 

these provisions require. States that do 

not have the authority required to 

administer the provisions of the final 

rule would need to submit a program 

revision for EPA approval after issuance 

of the rule in accordance with 40 CFR 

part 233.16. 

Final rule provisions that could affect 

existing programs include a provision 

ensuring opportunity for judicial review 

of agency decisions (section IV.C.2 of 

this preamble), updates to the 

compensatory mitigation requirements 

for Tribal and State section 404 

programs (section IV.B.4 of this 

preamble), and a revised approach to 

addressing the five-year limit on permits 

(section IV.C.1 of this preamble). In 

addition, clarification as to how Tribes 

and States can demonstrate that their 

programs are no less stringent than the 

Federal section 404 program (section 

IV.A.3 of this preamble), modification of 

the conflict of interest prohibition 

(section IV.A.1 of this preamble), and 

updated annual reporting requirements 

(section IV.E.3 of this preamble) may 

affect existing State programs. 

EPA recognizes that ‘‘[w]hen an 

agency changes course . . . it must be 

cognizant that longstanding policies 

may have engendered serious reliance 

interests that must be taken into 

account.’’ Department of Homeland 

Security v. Regents of the University of 

California, 140 S. Ct. 1891, 1913 (2020) 

(citations and internal quotation marks 

omitted.) EPA does not view the 

regulatory changes as undermining 

serious reliance interests that outweigh 

the benefits of these changes. EPA’s 

regulations contain detailed procedures 

for revising an approved section 404 

program. 40 CFR part 233.16. States 

seeking approval would therefore be 

well aware that program revisions may 

be necessary following assumption. 

Moreover, the program revision 

regulations specifically address 

revisions needed as a result of a change 

to the section 404 regulations, or to any 

other applicable statutory or regulatory 

provision. Id. at 233.16(b). The 

regulations allow Tribes and States one 

year to make such revisions, or two 

years if statutory changes are required. 

Id. The 1–2-year revision period 

supplements the lengthy preliminary 

period for proposing and finalizing this 

rule and soliciting and responding to 

public comments. Tribes and States 

therefore should anticipate the potential 

need to revise their programs based on 

Federal regulatory revisions following 

assumption. Finally, nothing in CWA 

section 404 suggests that EPA’s approval 

of a Tribal or State program terminates 

the Agency’s ability to update relevant 

regulations when necessary to 

effectively administer the Act. The 

Agency does not think Congress would 

have intended approvals to carry such a 

drastic consequence without saying so. 

H. Technical Revisions 

In addition to revising 40 CFR part 

233, EPA is also finalizing technical 

edits to clarify that the 40 CFR part 124 

regulations do not apply to Tribal or 

State section 404 programs. Specifically, 

EPA is making targeted revisions and 

deletions to specific provisions of the 

regulations at 40 CFR parts 124.1 

through 124.3, 124.5, 124.6, 124.8, 

124.10 through 124.12, and 124.17 to 

remove any references to 40 CFR part 

233. Prior to 1988, the State section 404 

program regulations included references 

to 40 CFR part 124, which contains 

consolidated permitting regulations for 

a variety of programs that EPA 

administers. See 49 FR 39012 (October 

2, 1984). The preamble to the 1988 

section 404 Tribal and State program 

regulation clearly stated that the 40 CFR 

part 124 regulations no longer apply to 

Tribal or State section 404 programs and 

announced the Agency’s intention to 

publish technical edits in the future. 53 

FR 20764 (June 6, 1988) (‘‘It is the 

agency’s intent that 40 CFR part 124 no 

longer applies to 404 State programs. 

We will be publishing technical, 

conforming regulations in the future.’’). 

Although the Agency modified 40 CFR 

part 233 to remove all references to part 

124 in 1988, the Agency did not provide 

conforming edits to 40 CFR part 124 to 

remove references to 40 CFR part 233. 

This rule removes the outdated 

references to 40 CFR part 233 in part 

124. The removal of these references has 

no substantive impact on the section 

404 assumption process or on Tribal or 

State section 404 programs. They also 

do not implicate or affect aspects of the 

part 124 regulations addressing other 

EPA permit programs, including the 

Resource Conservation and Recovery 

Act (RCRA), Underground Injection 

Control, and NPDES programs. 

EPA is also revising the definitions 

located at 40 CFR part 233.2 for 

consistency and clarity. EPA is defining 

‘‘Indian lands’’ consistent with the 

Agency’s long-standing interpretation of 

‘‘Indian lands’’ as synonymous with 

‘‘Indian country’’ as defined at 18 U.S.C. 

1151. See e.g., 40 CFR part 144.3 

(defining ‘‘Indian lands’’ as ‘‘Indian 

country’’ as defined at 18 U.S.C. 1151); 

40 CFR part 258.2 (adopting the 

definition of 18 U.S.C. 1151 for ‘‘Indian 

lands’’); U.S. EPA, Underground 

Injection Control Program: FederallyAdministered Programs, 49 FR 45292, 

45294 (November 15, 1984) (defining 

‘‘Indian lands’’ as used in EPA’s Safe 

Drinking Water Act Underground 

Injection Control Program regulations as 

‘‘Indian country,’’ explaining that ‘‘EPA 

believes this definition is most 

consistent with the concept of Indian 

lands as the Agency has used it in 

regulations and [Underground Injection 

Control] program approvals to date.’’); 

Wash. Dep’t of Ecology v. EPA, 752 F.2d 

1465, 1467 n.1 (9th Cir. 1985) (noting 

EPA’s position that ‘‘Indian lands’’ is 

‘‘synonymous with ‘Indian country’, 

which is defined at 18 U.S.C. 1151’’). 

EPA is also revising the definition of 

‘‘State 404 program’’ or ‘‘State program’’ 

to clarify that Tribes and interstate 

agencies may also have an approved 

program. The Agency is removing the 

‘‘(p)’’ associated with the cross-reference 

to 40 CFR part 233.2 in the definition 

of ‘‘State 404 program’’ or ‘‘State 

program’’ as the definitions in 40 CFR 

part 233.2 are no longer listed by letter. 

Finally, EPA is clarifying the definition 

for ‘‘State regulated waters’’ in 40 CFR 

part 232 by replacing the in-text 

description of retained waters with a 

reference to the relevant regulatory text 

at 40 CFR part 233.11(i). 

EPA is also finalizing several 

technical edits throughout 40 CFR part 

233 to update cross-references, ensure 

consistent use of terminology, and 

facilitate efficient program operation. 

First, EPA is updating section 233.10(a) 

and section 233.16(d)(2) to include the 

term ‘‘Tribal leader’’ where the term 

‘‘Governor’’ is referenced. Second, EPA 

is also removing the use of the 

masculine pronouns ‘‘he’’ and ‘‘his’’ 

throughout 40 CFR part 233 and 

replacing them with ‘‘they,’’ ‘‘their,’’ 

‘‘the Administrator,’’ ‘‘the Regional 

Administrator,’’ or ‘‘Director’’ as 

appropriate. The purpose of changing 

masculine pronouns or terms to neutral 

pronouns and other neutral terms is to 


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acknowledge the diversity of people 

who may hold the positions of ‘‘the 

Administrator,’’ ‘‘the Regional 

Administrator,’’ ‘‘Director,’’ and 

program staff. Third, EPA is changing 

references to assumption ‘‘application’’ 

to terms including ‘‘request to assume,’’ 

‘‘program submission,’’ or ‘‘assumption 

request materials’’ to more clearly 

distinguish between permit applications 

and requests to assume the program 

throughout the regulations. Fourth, EPA 

is revising section 233.1(b) to remove 

the term ‘‘individual’’ from the 

reference to ‘‘State permits,’’ as States 

may also regulate discharges using 

general permits. Fifth, the Agency is 

changing the ‘‘Note’’ in section 233.1(c) 

to become section 233.1(d) and adding 

a cross-reference to the process to 

identify retained waters and the 

retained waters description at 233.11(i). 

Section 233.1(d) will be renumbered as 

233.1(e). Sixth, EPA is clarifying in 

section 233.14(b)(3) that when a State 

intends to administer general permits 

issued by the Secretary, any Tribal or 

State conditions and/or certifications of 

those general permits transfer when the 

Tribe or State assumes the program. 

Seventh, EPA is also adding an effective 

date for the approved non-substantial 

program revisions in the letter from the 

Regional Administrator to the Governor 

requirement in section 233.16(d)(2). 

Finally, EPA is also clarifying in section 

233.53(a)(1) that when the Tribe or State 

notifies the Administrator and the 

Secretary of its intent to voluntarily 

transfer program responsibilities back to 

the Secretary, the Tribe or State must 

also submit the transition plan. The 

Agency is adding the words ‘‘no less 

than’’ before the advance notice 

requirement to clarify that Tribes and 

States may provide more than 180 days’ 

notice of intent to transfer the program. 

An extended transition time would 

allow the Tribe or State, the Corps, and 

EPA to discuss any gaps in the plan and 

ensure a smooth transition from the 

Tribe or State to the Corps’ 

administration of the program. The rule 

requires that files associated with 

ongoing investigations, compliance 

orders, and enforcement actions be 

provided to the Secretary to ensure 

compliance with these orders and 

minimize disruptions in administration 

of section 404 programs. The Agency 

requested comment on whether to revise 

the regulations to clarify that electronic 

mail is an acceptable method of 

transmitting public notices or 

documents, in addition to mail. Instead 

of changing, for example, the word 

‘‘mail’’ to ‘‘send’’ throughout the 

regulations, the Agency wishes to clarify 

that that both electronic mail and mail 

are acceptable methods of transmitting 

public notices or documents. 

I. Incorporation by Reference 

Currently, 40 CFR part 233.70 

incorporates by reference Michigan’s 

regulatory and statutory authorities 

applicable to the State’s approved CWA 

section 404 program, and 40 CFR part 

233.71 incorporates by reference New 

Jersey’s regulatory and statutory 

authorities applicable to the State’s 

approved CWA section 404 program. 

EPA codified in regulation the approval 

of the Michigan program on October 2, 

1984 (49 FR 38947) and the New Jersey 

program on March 2, 1994 (59 FR 9933). 

EPA is updating the incorporation by 

reference of the Michigan laws in the 

State’s approved CWA section 404 

program as follows: 

• The Michigan Administrative 

Procedures Act of 1969, MCL § 24–201, 

et seq., in effect as of February 13, 2024 

(addresses the effect, processing, 

promulgation, publication and 

inspection of State agency 

determinations, guidelines and rules); 

• The Natural Resources and 

Environmental Protection Act 451 of 

1994: 

Æ Part 31 Water Resources Protection, 

MCL § 324.31 et seq., in effect as of 

September 29, 2023 (provides regulatory 

authority and describes Michigan’s 

water quality provisions); 

Æ Part 301 Inland Lakes and Streams, 

MCL § 324.301 et seq., in effect as of 

October 20, 2021 (provides authority for 

Michigan’s inland lakes and streams 

rules and regulations for the streams 

and inland lakes portion of the water 

resources permitting and enforcement 

program); 

Æ Part 303 Wetland Protection, MCL 

§ 324.303 et seq., in effect as of April 27, 

2019 (provides authority for Michigan’s 

wetlands rules and regulations for the 

wetlands portion of the water resources 

permitting and enforcement program); 

Æ Part 307 Inland Lake Levels, MCL 

§ 324.307 et seq., in effect as of October 

16, 2020 (provides authority for 

Michigan regulating water levels in 

inland lakes); 

Æ Part 315 Dam Safety, MCL 

§ 324.315 et seq., in effect as of 

September 10, 2004 (provides authority 

for Michigan regulating dam safety); 

Æ Part 323 Great Lakes Shorelands 

Protection and Management, MCL 

§ 324.323 et seq., in effect as of October 

20, 2021 (allows the State to issue 

permit and violation fees); and 

Æ Part 325 Great Lakes Submerged 

Lands, MCL § 324.325 et seq., in effect 

as of October 20, 2021 (provides for and 

describes regulating activities in Great 

Lakes Submerged Lands). 

Additionally, EPA is incorporating 

the most recent versions of Michigan 

Administrative Code, Department of 

Environmental Quality, as follows: 

• Land and Water Management: 

Æ Great Lakes Shorelands, R 281.21 

through R 281.26 inclusive, in effect as 

of 2000; 

Æ Wetlands Protection, R 281.921 

through R 281.925 inclusive, in effect as 

of 2006; 

Æ Wetland Mitigation Banking, R 

281.951 through R 281.961 inclusive, in 

effect as of 1997; 

Æ Dam Safety, R 281.1301 through R 

281.1313 inclusive, in effect as of 1993; 

and 

• Water Resources Division, Inland 

Lakes and Streams, R 281.811 through R 

281.846 inclusive, in effect as of 2015. 

This material contains Michigan’s 

rules for shoreline protection, inland 

lakes and streams, wetlands protection, 

wetland mitigation banking, and dam 

safety. EPA is updating the name of the 

implementing State agency to reflect 

that the current agency implementing 

the approved Michigan assumed 

program is the Michigan Department of 

Environment, Great Lakes, and Energy 

rather than the Department of Natural 

Resources in section 233.70. EPA is also 

updating the description of EPA and 

Michigan Memorandum of Agreement 

in section 233.70(c)(1) to reflect the 

current Memorandum, signed in 2011. 

EPA is updating the incorporation by 

reference of the New Jersey state laws in 

the State’s approved CWA section 404 

program as follows: Freshwater 

Wetlands Protection Act, New Jersey 

Statutes Annotated, Title 13: 

Conservation and Development—Parks 

and Reservations; Chapter 9B: 

Freshwater Wetlands, N.J.S.A.13:9B–1 

et seq., effective as of December 23, 

1993 (provides the New Jersey 

Department of Environmental Protection 

with the authority to regulate and 

permit activities in freshwater 

wetlands). Additionally, EPA is 

incorporating the most recent version of 

the Freshwater Wetlands Protection Act 

Rules as follows: Freshwater Wetlands 

Protection Act Rules, New Jersey 

Administrative Code, N.J.A.C. 7:7A, 

amended November 7, 2022 (contains 

regulations to implement the Freshwater 

Wetlands Protection Act). 

Materials that have been incorporated 

by reference are reasonably made 

available to interested parties. Copies of 

materials incorporated by reference may 

be obtained or inspected at EPA Docket 

Center Reading Room, WJC West 

Building, Room 3334, 1301 Constitution 

Avenue NW, Washington, DC 20004 


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(telephone number: 202–566–1744); or 

send mail to Mail Code 5305G, 1200 

Pennsylvania Ave. NW, Washington, DC 

20460. Copies of the materials 

incorporated by reference for Michigan’s 

program can also be accessed at 

www.legislature.mi.gov/ and 

www.michigan.gov/lara/bureau-list/ 

moahr/admin-rules; at the Water 

Division, Environmental Protection 

Agency, Region 5, 77 West Jackson 

Boulevard, Chicago, IL 60604 (telephone 

number: 800–621–8431); or at the 

Michigan Department of Environment, 

Great Lakes, and Energy office at 525 W 

Allegan St., Lansing, MI 48933 

(telephone number: 800–662–9278). 

Copies of the materials incorporated by 

reference for New Jersey’s program can 

also be accessed at www.epa.gov/ 

cwa404g/us-interactive-map-state-andtribal-assumption-under-cwa-section404#nj; at the Library of the Region 2 

Regional Office, Ted Weiss Federal 

Building, 290 Broadway, New York, NY 

10007; or at the New Jersey Department 

of Environmental Protection at 401 East 

State St., Trenton, NJ 08625 (telephone 

number: 609–777–3373). EPA is 

updating the docket location and EPA 

Region 2 Regional Office location cited 

at 40 CFR part 233.71(b) to reflect their 

current addresses. 

J. Severability 

The purpose of this section is to 

clarify EPA’s intent with respect to the 

severability of provisions of the final 

rule. Each provision and interpretation 

in this rule is capable of operating 

independently. Once effective, if any 

provision or interpretation in this rule 

were to be determined by judicial 

review or operation of law to be invalid, 

that partial invalidation would not 

render the remainder of this rule 

invalid. Likewise, if the application of 

any aspect of this rule to a particular 

circumstance were determined to be 

invalid, the Agency intends that the rule 

would remain applicable to all other 

circumstances. None of the provisions 

in this rule depend upon any other for 

effectiveness. Taking as examples the 

provisions listed at the beginning of this 

preamble, if the new ‘‘conflict of 

interest’’ revisions were deemed invalid, 

the absence of those revisions would in 

no way affect or undermine the 

rationale for or the operation of the 

provisions addressing compliance with 

the 404(b)(1) Guidelines or being ‘‘no 

less stringent than’’ Federal 

requirements. Similarly, taking an 

example from the end of this preamble, 

if the Agency’s provisions addressing 

Tribal engagement were deemed 

invalid, the new program reporting 

requirements would retain their utility. 

V. Statutory and Executive Order 

Reviews 

Additional information about these 

statutes and Executive Orders can be 

found at https://www.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 14094: Modernizing Regulatory 

Review 

This action is a ‘‘significant regulatory 

action’’ as defined in Executive Order 

12866, as amended by Executive Order 

14094. Accordingly, EPA submitted this 

action to the Office of Management and 

Budget (OMB) for Executive Order 

12866 review. Documentation of any 

changes made in response to Executive 

Order 12866 review is available in the 

docket for this action. EPA prepared an 

analysis of the potential costs and 

benefits associated with this action. 

This analysis, the Economic Analysis 

for the Final Rule, is available in the 

docket for this action (Docket ID No. 

EPA–HQ–OW–2020–0276) and is briefly 

summarized below. 

The Economic Analysis for the Final 

Rule is qualitative in nature due to 

numerous data limitations and 

uncertainties regarding the potential 

impacts resulting from the final rule. 

See Section VI of the Economic Analysis 

for the Final Rule for further discussion 

on data limitations and uncertainties. 

Section IV of the Economic Analysis for 

the Final Rule summarizes the 

incremental and cumulative costs and 

benefits of the final rule for different 

interested parties, including Tribes, 

States, permittees, and EPA. Benefits of 

the final rule are mainly positive 

impacts resulting from clarification of 

assumption procedures and substantive 

requirements. These benefits accrue to 

Tribes, States, permittee, Federal 

agencies, and the public. Tribes, States, 

permittees, and Federal agencies may 

experience both incremental costs and 

cost savings as a result of the final rule. 

B. Paperwork Reduction Act (PRA) 

The information collection activities 

in this rulemaking have been submitted 

for approval to the Office of 

Management and Budget (OMB) under 

the PRA. The Information Collection 

Request (ICR) document that EPA 

prepared has been assigned EPA ICR 

number 0220.17. You can find a copy of 

the ICR in the docket for this rule, and 

it is briefly summarized below. The 

information collection requirements are 

not enforceable until OMB approves 

them. 

The type and frequency of 

information requested varies by 

respondent group and activity. For this 

information collection, EPA classified 

respondents into one of four categories: 

(1) States or Tribes seeking program 

assumption; (2) States or Tribes with an 

approved program and administering 

the program; (3) Permittees; and (4) 

Tribes seeking TAS for the sole purpose 

of commenting as an affected State. The 

ICR does not require the collection of 

any information of a confidential nature 

or status. 

Respondents/affected entities: States 

or Tribes seeking program assumption; 

States or Tribes with an approved 

program and administering the program; 

Permittees; and Tribes seeking TAS for 

the sole purpose of commenting as an 

affected State. 

Respondents’ obligation to respond: 

Voluntary (States or Tribes seeking 

program assumption); Required for 

program operation and maintenance 

(States or Tribes with an approved 

program and administering the 

program); Required to submit an 

application to obtain a section 404 

permit (Permittee); Voluntary (Tribes 

seeking TAS for the sole purpose of 

commenting as an affected State). 

Estimated number of respondents: 1 

State over 3 years (seeking program 

assumption); 3 States/year (with an 

approved program and administering 

the program, except for program 

modification); 2 States over 3 years 

(modifications to an approved program); 

1,693 Permittees/year for 3 approved 

programs; 1 Tribe/year over 3 years 

(seeking TAS for the sole purpose of 

commenting as an affected State). 

Frequency of response: Once (States 

or Tribes seeking program assumption); 

Variable (for States or Tribes with an 

approved program and administering 

the program); for each permit 

application (for Permittees); once (for 

Tribes seeking TAS for the sole purpose 

of commenting as an affected State). 

Total estimated burden to 

respondents: 130,725 hours (per year). 

Burden is defined at 5 CFR 1320.3(b). 

Total estimated cost to respondents: 

$6,972,139 (per year), includes $930,831 

annualized capital and start-up costs 

and $6,041,308 program operation and 

maintenance costs. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. When 

OMB approves this ICR, the Agency will 

announce that approval in the Federal 

Register and publish a technical 

amendment to 40 CFR part 9 to display 

the OMB control number for the 


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46The Agency invited written input from State 

agencies from November 12, 2018, through January 

11, 2019. Due to the lapse in Federal Government 

funding, EPA accepted input from states until 

February 2019. 

approved information collection 

activities contained in this final rule. 

C. Regulatory Flexibility Act (RFA) 

I certify that this final rule will not 

have a significant economic impact on 

a substantial number of small entities 

under the RFA. This action will not 

impose any requirements on small 

entities. Section 404(g) of the CWA 

allows for Tribes and States to assume 

the section 404 permitting program, and 

the final rule clarifies assumption 

requirements for Tribes and States to 

ensure compliance with CWA 404(b)(1) 

Guidelines. Without the final rule, 

entities (both large and small) would 

still have to comply with the CWA 

404(b)(1) Guidelines, regardless of 

whether the Tribe or State assumes the 

section 404 program or not and 

regardless of the changes in the final 

rule. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate of $100 million 

(annually adjusted for inflation) or more 

(in 1995 dollars) as described in UMRA, 

2 U.S.C. 1531–38, and does not 

significantly or uniquely affect small 

governments. This action imposes no 

enforceable duty on any State, local, or 

Tribal governments or the private sector. 

See the Economic Analysis for the Final 

Rule in the docket for this action for 

further discussion on UMRA. 

E. Executive Order 13132: Federalism 

Under the technical requirements of 

Executive Order 13132 (64 FR 43255, 

August 10, 1999), EPA has determined 

that this rulemaking does not have 

federalism implications. EPA believes, 

however, this rulemaking may be of 

significant interest to State and local 

governments. Consistent with EPA’s 

policy to promote communications 

between EPA and State governments, 

EPA engaged with State officials early in 

the process of developing the proposed 

rule to permit them to have meaningful 

and timely input into its development. 

EPA is finalizing updates to clarify 

and facilitate the process of State 

assumption of the section 404 program. 

This rule does not impose any new costs 

or other requirements on States, 

preempt State law, or limit States’ 

policy discretion. This action does not 

have federalism implications and will 

not have substantial direct effects on the 

States, on the relationship between the 

national government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. 

The Agency invited written input 

from State agencies from November 12, 

2018, through February 11, 2019,46 and 

hosted an in-person meeting with State 

officials on December 6, 2018. At the inperson meeting, the Agency provided an 

overview of the rulemaking effort and 

the section 404(g) program and led 

themed discussions for input for the 

proposed rule, including clarifying 

assumed and retained waters and 

adjacent wetlands, enforcement and 

compliance, partial assumption, and 

calculating economic costs and benefits 

of the rule. A summary of stakeholder 

engagement and written input from 

States on this action is available in the 

docket for this final rule. After 

publishing the proposed rule in the 

Federal Register, stakeholders were 

encouraged to submit comment letters 

during a 60-day public comment period 

and EPA held a public hearing on 

September 6, 2023, for all stakeholders 

to provide public comment on the 

proposed rule. Additionally, EPA 

hosted one input session specifically for 

State government representatives on 

August 24, 2023. Summaries of the 

public hearing session and of the input 

received during the State input session 

can be found in the docket for this 

rulemaking. Furthermore, EPA reviewed 

and responded to the public comment 

letters from State and local governments 

in a Response to Comments document 

that can also be found in the docket for 

this rulemaking. All comment letters 

and recommendations received by EPA 

during the public comment period from 

State and local governments are 

included in the docket for this action 

(Docket ID No. EPA–HQ–OW–2020– 

0276). 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action may have implications for 

Tribal governments. However, it will 

neither impose substantial direct 

compliance costs on federally 

recognized Tribal governments, nor 

preempt Tribal law. This action would 

expand Tribes’ ability to utilize TAS for 

purposes of commenting as ‘‘affected 

States,’’ and would develop an avenue 

for EPA review of permits that may 

impact Tribal rights and resources. 

EPA consulted with Tribal officials 

under the EPA Policy on Consultation 

and Coordination with Indian Tribes 

early in the process of developing this 

regulation to permit Tribes to have 

meaningful and timely input into its 

development. EPA has developed a 

document which further describes 

EPA’s efforts to engage with Tribal 

representatives and is available in the 

docket for this rulemaking. 

As required by section 7(a), EPA’s 

Tribal Consultation Official has certified 

that the requirements of the executive 

order have been met in a meaningful 

and timely manner. A copy of this 

certification is included in the docket 

for this action. 

The Agency initiated a Tribal 

consultation and coordination process 

before proposing a rule by sending a 

‘‘Notification of Consultation and 

Coordination’’ letter, dated October 19, 

2018, to all Tribes federally recognized 

at that time. The letter invited Tribal 

leaders and designated representatives 

to participate in the Tribal consultation 

and coordination process for this 

rulemaking. The Agency engaged with 

Tribes over a 60-day consultation period 

that concluded on December 21, 2018, 

including two Tribes-only informational 

webinars on November 20 and 29, 2018. 

During this consultation period, EPA 

participated in in-person meetings with 

Tribal associations, including a 

presentation for the National Tribal 

Water Council on October 24, 2018, and 

an informational session at the National 

Congress of American Indians 75th 

Annual Convention on October 24, 

2018. The Agency also attended the EPA 

Region 9 Regional Tribal Operations 

Committee (RTOC) meeting on October 

31, 2018, the EPA Region 6 RTOC 

meeting on November 28, 2018, and the 

EPA Region 7 Enhancing State and 

Tribal Programs Wetland Symposium 

on November 5, 2018. At the meetings 

and webinars, EPA sought input on 

aspects of the section 404 Tribal and 

State program regulations and 

assumption process. The Agency 

initiated a second Tribal consultation 

and coordination period on July 18, 

2023. The Agency engaged with Tribes 

over a 60-day period that concluded on 

September 17, 2023, including two 

Tribal input sessions on August 15 and 

30, 2023. During this consultation 

period, EPA participated in various 

meetings with Tribal associations, 

continued outreach and engagement 

with Tribes, and sought other 

opportunities to provide information 

and hear feedback from Tribes at 

national and regional Tribal meetings 

during and after the end of the 

consultation period. The Agency notes 

that two Tribes requested governmentto-government consultation. However, 

no responses were received to schedule 


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47 During the consultation period prior to the 

development of the final rule, two requests for 

government-to-government consultation were 

received. On July 25, 2023, EPA sent both the Mille 

Lacs Band of Ojibwe and the Grand Portage Band 

of Lake Superior Chippewa an invitation to 

schedule consultation. No responses were received 

to the invitation to schedule consultation. 

the consultations.47 All Tribal and 

Tribal organization letters and a 

summary of the Tribal consultation and 

coordination effort may be found in the 

docket for this action. 

After publishing the proposed rule in 

the Federal Register, stakeholders were 

encouraged to submit comment letters 

during a 60-day public comment period 

and EPA held a public hearing on 

September 6, 2023, for all stakeholders 

to provide public comment on the 

proposed rule. Summaries of the public 

hearing and of the input received during 

the Tribal input sessions can be found 

in the docket for this rulemaking. 

Furthermore, EPA reviewed and 

responded to the public comment letters 

from Tribal representatives in a 

Response to Comment document that 

can also be found in the docket for this 

rulemaking. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

EPA interprets Executive Order 13045 

as applying only to those regulatory 

actions that concern environmental 

health or safety risks that EPA has 

reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. Therefore, this action 

is not subject to Executive Order 13045 

because it does not concern an 

environmental health risk or safety risk. 

Since this action does not concern 

human health, EPA’s Policy on 

Children’s Health also does not apply. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ because it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

I. National Technology Transfer and 

Advancement Act 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations and Executive 

Order 14096: Revitalizing Our Nation’s 

Commitment to Environmental Justice 

for All 

EPA believes that the human health 

and environmental conditions that exist 

prior to this action do not result in 

disproportionate and adverse effects on 

communities with environmental justice 

concerns. The final rule creates more 

transparency and clarity for Tribes and 

States with existing section 404 

programs and for those seeking to 

assume. Environmental justice 

considerations are potentially addressed 

through the following topics in the final 

rule: (1) public notice and hearings, (2) 

no less stringent than, (3) long-term 

permitting, (4) judicial review, (5) 

affected States, and (6) opportunities for 

Tribes. 

First, within the final rule and 

assumption process, there are multiple 

opportunities for public engagement 

through public notice and hearings, 

including for communities with 

environmental justice concerns. Second, 

the section 404 Tribal and State 

regulations require that Tribes or States 

with an approved section 404 program 

may not impose conditions less 

stringent than those required under 

Federal law, so the environmental 

impacts of permitted projects would not 

increase due to this transfer of authority. 

Third, the final rule provides an 

improved ability for communities with 

environmental justice concerns to 

participate in the section 404 permitting 

process for long-term projects. Fourth, 

the requirements for State-assumed 

section 404 programs allow for judicial 

review in State courts, which is an 

opportunity for affected stakeholders to 

address concerns through judicial 

review. 

Lastly, EPA additionally identified 

and addressed potential environmental 

justice concerns by expanding Tribes’ 

ability to utilize TAS for purposes of 

commenting as ‘‘affected States’’ and 

developing an avenue for EPA review of 

permits that may impact Tribal rights 

and resources. The final rule will enable 

Tribes to have a more significant role in 

the permit decision-making process 

than under prior practice. See Section V 

of the Economic Analysis for the Final 

Rule for additional information on the 

final regulations. 

The information supporting this 

Executive Order review is contained in 

Section V of the Economic Analysis for 

the Final Rule, which is available in the 

docket for this action. 

K. Congressional Review Act (CRA) 

This action is subject to the CRA, and 

EPA will submit a rule report to each 

House of Congress and to the 

Comptroller General of the United 

States. This action does not meet the 

criteria as defined by 5 U.S.C. 804(2). 

List of Subjects 

40 CFR Part 123 

Environmental protection, Flood 

control, Water pollution control. 

40 CFR Part 124 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Hazardous waste, 

Indians—lands, Reporting and 

recordkeeping requirements, Water 

pollution control, Water supply. 

40 CFR Part 232 

Environmental protection, 

Intergovernmental relations, Water 

pollution control. 

40 CFR Part 233 

Environmental protection, 

Administrative practice and procedure, 

Incorporation by reference, Indians— 

lands, Intergovernmental relations, 

Penalties, Reporting and recordkeeping 

requirements, Water pollution control. 

Michael S. Regan, 

Administrator. 

For the reasons set forth in this 

preamble, EPA amends 40 CFR parts 

123, 124, 232, and 233 as follows: 

PART 123—STATE PROGRAM 

REQUIREMENTS 

■ 1. The authority citation for part 123 

continues to read as follows: 

Authority: Clean Water Act, 33 U.S.C. 

1251 et seq. 

■ 2. Section 123.27 is amended by: 

■ a. Revising paragraphs (a) 

introductory text and (a)(3) introductory 

text; 

■ b. Removing the note immediately 

following paragraph (a)(3)(ii); and 

■ c. Revising paragraph (b)(2). 

The revisions read as follows: 

§ 123.27 Requirements for enforcement 

authority. 

(a) Any State agency administering a 

program shall have the authority to 

establish the following violations and 

have available the following remedies 

and penalties for such violations of 

State program requirements: 

* * * * * 

(3) To assess or sue to recover in court 

civil penalties and to seek criminal 

penalties as follows: 

* * * * * 


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(b) * * * 

(2) The burden of proof and degree of 

knowledge or intent required under 

State law for establishing violations 

under paragraph (a)(3) of this section, 

shall be no greater than the burden of 

proof or degree of knowledge or intent 

EPA must provide when it brings an 

action under the Act, except that a State 

may establish criminal violations based 

on any form or type of negligence. 

Note 3 to paragraph (b)(2): For example, 

this requirement is not met if State law 

includes mental state as an element of proof 

for civil violations. 

* * * * * 

PART 124—PROCEDURES FOR 

DECISIONMAKING 

■ 3. The authority citation for part 124 

continues to read as follows: 

Authority: Resource Conservation and 

Recovery Act, 42 U.S.C. 6901 et seq.; Safe 

Drinking Water Act, 42 U.S.C. 300f et seq.; 

Clean Water Act, 33 U.S.C. 1251 et seq.; 

Clean Air Act, 42 U.S.C. 7401 et seq. 

■ 4. Amend § 124.1 by revising 

paragraphs (e) and (f) to read as follows: 

§ 124.1 Purpose and scope. 

* * * * * 

(e) Certain procedural requirements 

set forth in this part must be adopted by 

States in order to gain EPA approval to 

operate RCRA, UIC, and NPDES permit 

programs. These requirements are listed 

in 40 CFR 123.25 (NPDES), 145.11 

(UIC), and 271.14 (RCRA) and signaled 

by the following words at the end of the 

appropriate part 124 section or 

paragraph heading: (applicable to State 

programs see 40 CFR 123.25 (NPDES), 

145.11 (UIC), and 271.14 (RCRA)). This 

part does not apply to PSD permits or 

404 permits issued by an approved 

State. 

(f) To coordinate decision-making 

when different permits will be issued by 

EPA and approved State programs, this 

part allows applications to be jointly 

processed, joint comment periods and 

hearings to be held, and final permits to 

be issued on a cooperative basis 

whenever EPA and a State agree to take 

such steps in general or in individual 

cases. These joint processing agreements 

may be provided in the Memorandum of 

Agreement developed under 40 CFR 

123.24 (NPDES), 145.24 (UIC), and 

271.8 (RCRA). 

■ 5. Amend § 124.2 by: 

■ a. In paragraph (a): 

■ i. Revising the introductory text; 

■ ii. Revising the definitions for 

‘‘Facility or activity’’, ‘‘General permit’’, 

‘‘Major facility’’, ‘‘Owner or operator’’, 

‘‘Permit’’, and ‘‘SDWA’’; and 

■ iii. Removing the definition for 

‘‘Section 404 program or State 404 

program or 404’’; and 

■ iv. Revising the definition for ‘‘Site’’; 

and 

■ b. Revising paragraph (b). 

The revisions read as follows: 

§ 124.2 Definitions. 

(a) In addition to the definitions given 

in 40 CFR 122.2 and 123.2 (NPDES), 

501.2 (sludge management), 144.3 and 

145.2 (UIC), and 270.2 and 271.2 

(RCRA), the definitions below apply to 

this part, except for PSD permits which 

are governed by the definitions in 

§ 124.41. Terms not defined in this 

section have the meaning given by the 

appropriate Act. 

* * * * * 

Facility or activity means any ‘‘HWM 

facility,’’ UIC ‘‘injection well,’’ NPDES 

‘‘point source’’ or ‘‘treatment works 

treating domestic sewage’’, or any other 

facility or activity (including land or 

appurtenances thereto) that is subject to 

regulation under the RCRA, UIC, or 

NPDES programs. 

* * * * * 

General permit (NPDES) means an 

NPDES ‘‘permit’’ authorizing a category 

of discharges or activities under the 

CWA within a geographical area. For 

NPDES, a general permit means a permit 

issued under 40 CFR 122.28. 

* * * * * 

Major facility means any RCRA, UIC, 

or NPDES ‘‘facility or activity’’ 

classified as such by the Regional 

Administrator, or, in the case of 

‘‘approved State programs,’’ the 

Regional Administrator in conjunction 

with the State Director. 

Owner or operator means owner or 

operator of any ‘‘facility or activity’’ 

subject to regulation under the RCRA, 

UIC, or NPDES programs. 

Permit means an authorization, 

license or equivalent control document 

issued by EPA or an ‘‘approved State’’ 

to implement the requirements of this 

part and parts 122, 123, 144, 145, 270, 

and 271 of this chapter. ‘‘Permit’’ 

includes RCRA ‘‘permit by rule’’ (40 

CFR 270.60), RCRA emergency permit 

(40 CFR 270.61), RCRA standardized 

permit (40 CFR 270.67), UIC area permit 

(40 CFR 144.33), UIC emergency permit 

(§ 144.34), and NPDES ‘‘general permit’’ 

(40 CFR 122.28). Permit does not 

include RCRA interim status (40 CFR 

270.70), UIC authorization by rule (40 

CFR 144.21), or any permit which has 

not yet been the subject of final agency 

action, such as a ‘‘draft permit’’ or a 

‘‘proposed permit.’’ 

* * * * * 

SDWA means the Safe Drinking Water 

Act (Pub. L. 95–523, as amended by 

Pub. L. 95–1900; 42 U.S.C. 300f et seq.). 

Site means the land or water area 

where any ‘‘facility or activity’’ is 

physically located or conducted, 

including adjacent land used in 

connection with the facility or activity. 

* * * * * 

(b) For the purposes of 40 CFR part 

124, the term Director means the State 

Director or Regional Administrator and 

is used when the accompanying 

provision is required of EPAadministered programs and of State 

programs under 40 CFR 123.25 

(NPDES), 145.11 (UIC), and 271.14 

(RCRA). The term Regional 

Administrator is used when the 

accompanying provision applies 

exclusively to EPA-issued permits and 

is not applicable to State programs 

under these sections. While States are 

not required to implement these latter 

provisions, they are not precluded from 

doing so, notwithstanding use of the 

term ‘‘Regional Administrator.’’ 

■ 6. Amend § 124.3 by revising 

paragraph (a) heading, and paragraphs 

(a)(1) and (3) to read as follows: 

§ 124.3 Application for a permit. 

(a) Applicable to State programs, see 

40 CFR 123.25 (NPDES), 145.11 (UIC), 

and 271.14 (RCRA). (1) Any person who 

requires a permit under the RCRA, UIC, 

NPDES, or PSD programs shall 

complete, sign, and submit to the 

Director an application for each permit 

required under 40 CFR 270.1 (RCRA), 

144.1 (UIC), 40 CFR 52.21 (PSD), and 

122.1 (NPDES). Applications are not 

required for RCRA permits by rule (40 

CFR 270.60), underground injections 

authorized by rules (40 CFR 144.21 

through 144.26), and NPDES general 

permits (40 CFR 122.28). 

* * * * * 

(3) Permit applications (except for 

PSD permits) must comply with the 

signature and certification requirements 

of 40 CFR 122.22 (NPDES), 144.32 

(UIC), and 270.11 (RCRA). 

* * * * * 

■ 7. Amend § 124.5 by: 

■ a. Revising paragraph (a), paragraph 

(c) heading, and paragraphs (c)(1) and 

(3); 

■ b. Removing paragraph (f); and 

■ c. Redesignating paragraph (g) as 

paragraph (f). 

The revision reads as follows: 

§ 124.5 Modification, revocation and 

reissuance, or termination of permits. 

(a) (Applicable to State programs, see 

40 CFR 123.25 (NPDES), 145.11 (UIC), 

and 271.14 (RCRA).) Permits (other than 


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PSD permits) may be modified, revoked 

and reissued, or terminated either at the 

request of any interested person 

(including the permittee) or upon the 

Director’s initiative. However, permits 

may only be modified, revoked, and 

reissued or terminated for the reasons 

specified in 40 CFR 122.62 or 122.64 

(NPDES), 144.39 or 144.40 (UIC), and 

270.41 or 270.43 (RCRA). All requests 

shall be in writing and shall contain 

facts or reasons supporting the request. 

* * * * * 

(c) (Applicable to State programs, see 

40 CFR 123.25 (NPDES), 145.11 (UIC), 

and 271.14 (RCRA)). (1) If the Director 

tentatively decides to modify or revoke 

and reissue a permit under 40 CFR 

122.62 (NPDES), 144.39 (UIC), or 270.41 

(other than 40 CFR 270.41(b)(3) or 40 

CFR 270.42(c) (RCRA)), he or she shall 

prepare a draft permit under 40 CFR 

124.6 incorporating the proposed 

changes. The Director may request 

additional information and, in the case 

of a modified permit, may require the 

submission of an updated application. 

In the case of revoked and reissued 

permits, other than under 40 CFR 

270.41(b)(3), the Director shall require 

the submission of a new application. In 

the case of revoked and reissued permits 

under 40 CFR 270.41(b)(3), the Director 

and the permittee shall comply with the 

appropriate requirements in subpart G 

of this part for RCRA standardized 

permits. 

* * * * * 

(3) ‘‘Minor modifications’’ as defined 

in 40 CFR 122.63 (NPDES), and 144.41 

(UIC), and ‘‘Classes 1 and 2 

modifications’’ as defined in 40 CFR 

270.42 (a) and (b) (RCRA) are not subject 

to the requirements of this section. 

* * * * * 

■ 8. Amend § 124.6 by: 

■ a. Revising paragraphs (a) and (c), 

paragraph (d) heading and introductory 

text, paragraphs (d)(1) through (3); 

■ b. Removing paragraph (d)(4)(iv); 

■ c. Redesignating paragraph (d)(4)(v) as 

paragraph (d)(4)(iv); and 

■ d. Revising the paragraph (e) heading. 

The revisions read as follows: 

§ 124.6 Draft permits. 

(a) (Applicable to State programs, see 

40 CFR 123.25 (NPDES), 145.11 (UIC), 

and 271.14 (RCRA).) Once an 

application is complete, the Director 

shall tentatively decide whether to 

prepare a draft permit or to deny the 

application. 

* * * * * 

(c) (Applicable to State programs, see 

40 CFR 123.25 (NPDES).) If the Director 

tentatively decides to issue an NPDES 

general permit, he or she shall prepare 

a draft general permit under paragraph 

(d) of this section. 

(d) (Applicable to State programs, see 

40 CFR 123.25 (NPDES), 145.11 (UIC), 

and 271.14 (RCRA).) If the Director 

decides to prepare a draft permit, he or 

she shall prepare a draft permit that 

contains the following information: 

(1) All conditions under 40 CFR 

122.41 and 122.43 (NPDES), 144.51 and 

144.42 (UIC), or 270.30 and 270.32 

(RCRA) (except for PSD permits)); 

(2) All compliance schedules under 

40 CFR 122.47 (NPDES), 144.53 (UIC), 

or 270.33 (RCRA) (except for PSD 

permits); 

(3) All monitoring requirements under 

40 CFR 122.48 (NPDES), 144.54 (UIC), 

or 270.31 (RCRA) (except for PSD 

permits); and 

* * * * * 

(e) (Applicable to State programs, see 

40 CFR 123.25 (NPDES), 145.11 (UIC), 

and 271.14 (RCRA).) * * * 

* * * * * 

■ 9. Amend § 124.8 by revising the 

introductory text and paragraph (a) to 

read as follows: 

§ 124.8 Fact sheet. 

(Applicable to State programs, see 40 

CFR 123.25 (NPDES), 145.11 (UIC), and 

271.14 (RCRA).) 

(a) A fact sheet shall be prepared for 

every draft permit for a major HWM, 

UIC, or NPDES facility or activity, for 

every Class I sludge management 

facility, for every NPDES general permit 

(40 CFR 122.28 of this subchapter), for 

every NPDES draft permit that 

incorporates a variance or requires an 

explanation under 40 CFR 124.56(b), for 

every draft permit that includes a 

sewage sludge land application plan 

under 40 CFR 501.15(a)(2)(ix), and for 

every draft permit which the Director 

finds is the subject of wide-spread 

public interest or raises major issues. 

The fact sheet shall briefly set forth the 

principal facts and the significant 

factual, legal, methodological, and 

policy questions considered in 

preparing the draft permit. The Director 

shall send this fact sheet to the 

applicant and, on request, to any other 

person. 

* * * * * 

■ 10. Amend § 124.10 by: 

■ a. Revising paragraph (a)(1); 

■ b. Revising the paragraph (b) heading; 

■ c. Revising the introductory text of 

paragraph (c), and paragraphs (c)(1)(i), 

(ii), and (iv); 

■ d. Removing paragraph (c)(1)(vi); 

■ e. Redesignating paragraphs (c)(1)(vii) 

through (xi) as paragraphs (c)(1)(vi) 

through (x); 

■ f. Revising paragraph (c)(2)(i); 

■ g. Revising the paragraph (d) heading, 

and paragraphs (d)(1)(ii) and (iii); 

■ h. Removing paragraph (d)(1)(viii); 

■ i. Redesignating paragraphs (d)(1)(ix) 

and (x) as paragraphs (d)(1)(viii) and 

(ix); 

■ j. Adding at the end of paragraph 

(d)(2)(ii) the word ‘‘and’’ after the semicolon; 

■ k. Removing the text ‘‘; and’’ at the 

end of paragraph (d)(2)(iii) and adding 

a period in its place; 

■ l. Removing paragraph (d)(2)(iv); and 

■ m. Revising paragraph (e). 

The revisions read as follows: 

§ 124.10 Public notice of permit actions 

and public comment period. 

(a) * * * 

(1) The Director shall give public 

notice that the following actions have 

occurred: 

(i) A permit application has been 

tentatively denied under § 124.6(b); 

(ii) (Applicable to State programs, see 

40 CFR 123.25 (NPDES), 145.11 (UIC), 

and 271.14 (RCRA).) A draft permit has 

been prepared under § 124.6(d); 

(iii) (Applicable to State programs, 

see 40 CFR 123.25 (NPDES), 145.11 

(UIC), and 271.14 (RCRA)).) A hearing 

has been scheduled under § 124.12; or 

(iv) An NPDES new source 

determination has been made under 

§ 122.29 of this subchapter. 

* * * * * 

(b) Timing (applicable to State 

programs, see 40 CFR 123.25 (NPDES), 

145.11 (UIC), and 271.14 (RCRA)). 

* * * * * 

(c) Methods (applicable to State 

programs, see 40 CFR 123.25 (NPDES), 

145.11 (UIC), and 271.14 (RCRA)). 

Public notice of activities described in 

paragraph (a)(1) of this section shall be 

given by the following methods: 

(1) * * * 

(i) The applicant (except for NPDES 

general permits when there is no 

applicant); 

(ii) Any other agency which the 

Director knows has issued or is required 

to issue a RCRA, UIC, PSD (or other 

permit under the Clean Air Act), 

NPDES, sludge management permit, or 

ocean dumping permit under the 

Marine Research Protection and 

Sanctuaries Act for the same facility or 

activity (including EPA when the draft 

permit is prepared by the State); 

* * * * * 

(iv) For NPDES permits only, any 

State agency responsible for plan 

development under CWA section 

208(b)(2), 208(b)(4) or 303(e) and the 

U.S. Army Corps of Engineers, the U.S. 


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Fish and Wildlife Service and the 

National Marine Fisheries Service; 

* * * * * 

(2)(i) For major permits, NPDES 

general permits, and permits that 

include sewage sludge land application 

plans under 40 CFR 501.15(a)(2)(ix), 

publication of a notice in a daily or 

weekly newspaper within the area 

affected by the facility or activity; and 

for EPA-issued NPDES general permits, 

in the Federal Register; 

Note 1 to paragraph (c)(2)(i): The Director 

is encouraged to provide as much notice as 

possible of the NPDES draft general permit to 

the facilities or activities to be covered by the 

general permit. 

* * * * * 

(d) Contents (applicable to State 

programs, see 40 CFR 123.25 (NPDES), 

145.11 (UIC), and 271.14 (RCRA))— 

(1) * * * 

(ii) Name and address of the permittee 

or permit applicant and, if different, of 

the facility or activity regulated by the 

permit, except in the case of NPDES 

draft general permits under 40 CFR 

122.28; 

(iii) A brief description of the 

business conducted at the facility or 

activity described in the permit 

application or the draft permit, for 

NPDES general permits when there is no 

application; 

* * * * * 

(e) (Applicable to State programs, see 

40 CFR 123.25 (NPDES), 145.11 (UIC), 

and 271.14 (RCRA).) In addition to the 

general public notice described in 

paragraph (d)(1) of this section, all 

persons identified in paragraphs (c)(1) 

(i) through (iv) of this section shall be 

mailed a copy of the fact sheet or 

statement of basis (for EPA-issued 

permits), the permit application (if any) 

and the draft permit (if any). 

■ 11. Revise § 124.11 to read as follows: 

§ 124.11 Public comments and requests 

for public hearings. 

(Applicable to State programs, see 40 

CFR 123.25 (NPDES), 145.11 (UIC), and 

271.14 (RCRA).) During the public 

comment period provided under 

§ 124.10, any interested person may 

submit written comments on the draft 

permit and may request a public 

hearing, if no hearing has already been 

scheduled. A request for a public 

hearing shall be in writing and shall 

state the nature of the issues proposed 

to be raised in the hearing. All 

comments shall be considered in 

making the final decision and shall be 

answered as provided in § 124.17. 

■ 12. Amend § 124.12 by revising the 

paragraph (a) heading to read as follows: 

§ 124.12 Public hearings. 

(a) (Applicable to State programs, see 

40 CFR 123.25 (NPDES), 145.11 (UIC), 

and 271.14 (RCRA).) 

* * * * * 

■ 13. Amend § 124.17 by revising the 

paragraph (a) heading, and paragraphs 

(a)(2) and (c) to read as follows: 

§ 124.17 Response to comments. 

(a) (Applicable to State programs, see 

40 CFR 123.25 (NPDES), 145.11 (UIC), 

and 271.14 (RCRA).) 

* * * * * 

(2) Briefly describe and respond to all 

significant comments on the draft 

permit raised during the public 

comment period, or during any hearing. 

* * * * * 

(c) (Applicable to State programs, see 

40 CFR 123.25 (NPDES), 145.11 (UIC), 

and 271.14 (RCRA).) The response to 

comments shall be available to the 

public. 

PART 232—404 PROGRAM 

DEFINITIONS—EXEMPT ACTIVITIES 

NOT REQUIRING 404 PERMITS 

■ 14. The authority citation for part 232 

continues to read as follows: 

Authority: 33 U.S.C. 1251 et seq. 

■ 15. Amend § 232.2 by revising the 

definition of ‘‘State regulated waters’’ to 

read as follows: 

§ 232.2 Definitions. 

* * * * * 

State regulated waters means those 

waters of the United States in which the 

Corps suspends the issuance of section 

404 permits upon program assumption 

by a State, which exclude those 

identified as retained waters pursuant to 

40 CFR 233.11(i). All waters of the 

United States other than those identified 

as retained waters in a State with an 

approved program shall be under 

jurisdiction of the State program, and 

shall be identified in the program 

description as required by 40 CFR part 

233. 

* * * * * 

PART 233—404 STATE PROGRAM 

REGULATIONS 

■ 16. The authority citation for part 233 

continues to read as follows: 

Authority: 33 U.S.C. 1251 et seq. 

■ 17. Amend § 233.1 by: 

■ a. Revising the fourth sentence in 

paragraph (b); 

■ b. Removing the note that appears 

after paragraph (c); 

■ c. Revising paragraph (d); and 

■ d. Adding paragraphs (e) and (f). 

The revisions and additions read as 

follows: 

§ 233.1 Purpose and scope. 

* * * * * 

(b) * * * The discharges previously 

authorized by a Corps’ general permit 

will be regulated by State permits. 

* * * 

* * * * * 

(d) State assumption of the section 

404 program is limited to certain waters, 

as provided in section 404(g)(1) and as 

identified through the process laid out 

in § 233.11(i). The Federal program 

operated by the Corps of Engineers 

continues to apply to the remaining 

waters in the State even after program 

approval. However, this does not restrict 

States from regulating discharges of 

dredged or fill material into those 

waters over which the Secretary retains 

section 404 jurisdiction. 

(e) Any approved State Program shall, 

at all times, be conducted in accordance 

with the requirements of the Act and of 

this part. While States may impose more 

stringent requirements, they may not 

impose any less stringent requirements 

for any purpose. States may not make 

one requirement more lenient than 

required under these regulations as a 

tradeoff for making another requirement 

more stringent than required. Where the 

404(b)(1) Guidelines (40 CFR part 230) 

or other regulations affecting State 404 

programs suggest that the District 

Engineer or Corps of Engineers is 

responsible for certain decisions or 

actions (e.g., approving mitigation bank 

instruments), in an approved State 

Program the State Director carries out 

such action or responsibility for 

purposes of that program, as 

appropriate. 

(f) EPA may facilitate resolution of 

disputes between Federal agencies, 

Tribes, and States seeking to assume 

and/or administer a CWA section 404 

program. Where a dispute resolution or 

elevation process is enumerated in this 

part or in an agreement approved by 

EPA at the time of assumption or 

program revision, such process and 

procedures shall be followed. 

■ 18. Amend § 233.2 by: 

■ a. Adding in alphabetical order the 

definitions for ‘‘Indian lands’’, 

‘‘Retained waters description’’, and 

‘‘RHA section 10 list’’; and 

■ b. Revising the definition ‘‘State 404 

program or State program’’. 

The additions and revision read as 

follows: 

§ 233.2 Definitions. 

* * * * * 


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Indian lands means ‘‘Indian country’’ 

as defined under 18 U.S.C. 1151. That 

section defines Indian country as: 

(1) All land within the limits of any 

Indian reservation under the 

jurisdiction of the United States 

Government, notwithstanding the 

issuance of any patent, and, including 

rights-of-way running through the 

reservation, 

(2) All dependent Indian communities 

within the borders of the United States 

whether within the original or 

subsequently acquired territory thereof, 

and whether within or without the 

limits of a State, and 

(3) All Indian allotments, the Indian 

titles to which have not been 

extinguished, including rights-of-way 

running through the same. 

* * * * * 

Retained waters description: The 

subset of waters of the United States 

over which the Corps retains 

administrative authority upon program 

assumption by a State as identified 

through the process at § 233.11(i). The 

description shall address, in the case of 

State assumption, the extent to which 

waters on Indian lands are retained. 

RHA section 10 list: The list of waters 

determined to be navigable waters of the 

United States pursuant to section 10 of 

the Rivers and Harbors Act and 33 CFR 

part 329 and that are maintained in 

Corps district offices pursuant to 33 CFR 

329.16. 

* * * * * 

State 404 program or State program 

means a program which has been 

approved by EPA under section 404 of 

the Act to regulate the discharge of 

dredged or fill material into all waters 

of the United States except those 

identified in the retained waters 

description as defined in § 233.2. 

■ 19. Revise § 233.4 to read as follows: 

§ 233.4 Conflict of interest. 

Any public officer, employee, or 

individual with responsibilities related 

to the section 404 permitting program 

who has a direct personal or pecuniary 

interest in any matter that is subject to 

decision by the agency shall make 

known such interest in the official 

records of the agency and shall refrain 

from participating in any manner in 

such decision by the agency or any 

entity that reviews agency decisions. 

■ 20. Amend § 233.10 by revising 

paragraph (a) to read as follows: 

§ 233.10 Elements of a program 

submission. 

* * * * * 

(a) A letter from the Governor of the 

State or Tribal leader requesting 

program approval. 

* * * * * 

■ 21. Revise § 233.11 to read as follows: 

§ 233.11 Program description. 

The program description as required 

under § 233.10 shall include: 

(a) A description of the scope and 

structure of the State’s program. The 

description must include the extent of 

the State’s jurisdiction, scope of 

activities regulated, anticipated 

coordination, scope of permit 

exemptions if any, permit review 

criteria, and a description as to how the 

permit review criteria will be sufficient 

to carry out the requirements of 40 CFR 

part 233 subpart C. 

(b) A description of the State’s 

permitting, administrative, judicial 

review, and other applicable 

procedures. 

(c) A description of the basic 

organization and structure of the State 

agency (agencies) which will have 

responsibility for administering the 

program. If more than one State agency 

is responsible for the administration of 

the program, the description shall 

address the responsibilities and 

additional budget and funding 

mechanisms of each agency and how 

the agencies intend to coordinate 

administration, funding, compliance, 

enforcement, and evaluation of the 

program. 

(d) A description of the funding and 

staffing which will be available for 

program administration, including staff 

position descriptions and qualifications 

as well as program budget and funding 

mechanisms, sufficient to meet the 

requirements of 40 CFR part 233, 

subparts C through E. 

(e) A description and schedule of the 

actions that will be taken following EPA 

approval for the State to begin 

administering the program if the State 

makes a request to assume 

administration of the program more 

than 30 days after EPA’s approval. 

(f) An estimate of the anticipated 

workload, including but not limited to 

number of discharges, permit reviews, 

authorizations and field visits, and 

decisions regarding jurisdiction. 

(g) Copies of permit application 

forms, permit forms, and reporting 

forms. 

(h) A description of the State’s 

compliance evaluation and enforcement 

programs, including staff position 

descriptions and qualifications as well 

as program budget and funding 

mechanisms, sufficient to meet the 

requirements of 40 CFR part 233, 

subpart E, and an explanation of how 

the State will coordinate its enforcement 

strategy with that of the Corps and EPA. 

(i) A description of the waters of the 

United States within a State over which 

the State assumes jurisdiction under the 

assumed program; a description of the 

waters of the United States within a 

State over which the Secretary retains 

administrative authority subsequent to 

program approval; and a comparison of 

the State and Federal definitions of 

wetlands. 

(1) Before a State provides a program 

submission to the Regional 

Administrator, the Governor, Tribal 

leader, or Director shall submit a request 

to the Regional Administrator that the 

Corps identify the subset of waters of 

the United States that would remain 

subject to Corps administrative 

authority to include in its program 

submission. The request shall also 

include one of the following elements of 

required information: a citation or copy 

of legislation authorizing funding to 

prepare for assumption, a citation or 

copy of legislation authorizing 

assumption, a Governor or Tribal leader 

directive, a letter from the head of a 

State agency, or a copy of a letter 

awarding a grant or other funding 

allocated to investigate and pursue 

assumption. If the Regional 

Administrator determines that the 

request includes the required 

information, within seven days of 

receiving the State’s request, the 

Regional Administrator shall transmit 

the request for the retained waters 

description to the Corps. Transmitting 

the request to the Corps is intended to 

allow the Corps time to review its RHA 

section 10 list(s) and prepare a 

description of retained waters based on 

that list(s), in accordance with 

paragraph (i)(4) of this section, if the 

Corps chooses to do so. 

(2) When the Regional Administrator 

transmits a request for the retained 

waters description to the Corps, the 

Regional Administrator shall notify the 

public of this transmission by posting a 

notice on its website and circulating 

notice to those persons known to be 

interested in such matters of its 

transmission, inviting public input to 

the Corps and the State for the 

subsequent 60 days on the development 

of the description. 

(3) If the Corps does not notify the 

State and EPA that it intends to provide 

a retained waters description within 30 

days of receiving the State’s request 

transmitted by EPA, or if it does not 

provide a retained waters description 

within 180 days of receiving the State’s 

request transmitted by EPA, the State 

may develop a retained waters 


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description pursuant to the process 

described in paragraph (i)(4) of this 

section. Alternatively, the State and the 

Corps may mutually agree to extend the 

time period in which the Corps may 

develop the retained waters description. 

(4) The program description in the 

State’s program request to the Regional 

Administrator shall include a 

description of those waters of the 

United States over which the Corps 

retains administrative authority. The 

description may be a retained waters 

description that the Corps provides the 

State pursuant to paragraph (i)(1) of this 

section, or, if the Corps did not provide 

a list to the State, a description that the 

State prepares pursuant to paragraph 

(i)(3) of this section. The retained waters 

description prepared by either the Corps 

or the State shall be compiled as 

follows: 

(i) Using the relevant RHA section 10 

list(s) as a starting point; 

(ii) Placing waters of the United 

States, or reaches of these waters, from 

the RHA section 10 list into the retained 

waters description if they are known to 

be presently used or susceptible to use 

in their natural condition or by 

reasonable improvement as a means to 

transport interstate or foreign 

commerce; 

(iii) To the extent feasible and to the 

extent that information is available, 

adding other waters or reaches of waters 

to the retained waters description that 

are presently used or are susceptible to 

use in their natural condition or by 

reasonable improvement as a means to 

transport interstate or foreign 

commerce; and 

(iv) Adding a description of retained 

wetlands that are adjacent to the 

foregoing waters. A specific listing of 

each wetland that is retained is not 

required. 

(5) As a general matter, descriptions 

of retained waters compiled in 

accordance with the process in 

paragraph (i)(4) of this section will 

satisfy the statutory criteria for retained 

waters. The Regional Administrator 

ultimately determines whether to 

approve a State program submission, 

however. 

(6) The State assumes permitting 

authority over all waters of the United 

States not retained by the Corps as 

described in paragraph (i)(4) of this 

section. The State does not assume 

permitting authority over waters of the 

United States in Indian Country and 

Lands of Exclusive Federal Jurisdiction, 

as these are outside of the State’s 

jurisdiction. All discharges of dredged 

or fill material into waters of the United 

States must be regulated either by the 

State or the Corps; at no time shall there 

be a gap in permitting authority for any 

water of the United States. 

(j) A description of the specific best 

management practices proposed to be 

used to satisfy the exemption provisions 

of section 404(f)(1)(E) of the Act for 

construction or maintenance of farm 

roads, forest roads, or temporary roads 

for moving mining equipment. 

(k) A description of the State’s 

approach to ensure that all permits 

issued satisfy the substantive standards 

and criteria for the use of compensatory 

mitigation consistent with the 

requirements of 40 CFR part 230, 

subpart J. The State’s approach may 

deviate from the specific requirements 

of subpart J to the extent necessary to 

reflect State administration of the 

program using State processes as 

opposed to Corps administration. For 

example, a State program may choose to 

provide for mitigation in the form of 

banks and permittee-responsible 

compensatory mitigation but not 

establish an in-lieu fee program. A State 

program may not be less stringent than 

the requirements of subpart J. 

■ 22. Amend § 233.13 by adding 

paragraph (b)(5) to read as follows: 

§ 233.13 Memorandum of Agreement with 

Regional Administrator. 

* * * * * 

(b) * * * 

(5) Provisions specifying the date 

upon which the State shall begin 

administering its program. This effective 

date shall be 30 days from the date that 

notice of the Regional Administrator’s 

decision is published in the Federal 

Register, except where the Regional 

Administrator has agreed to a State’s 

request for a later effective date, not to 

exceed 180 days from the date of 

publication of the decision in the 

Federal Register. 

■ 23. Amend § 233.14 by revising 

paragraph (b) to read as follows: 

§ 233.14 Memorandum of Agreement with 

the Secretary. 

* * * * * 

(b) The Memorandum of Agreement 

shall include: 

(1) A description of all navigable 

waters within the State over which the 

Corps retains administrative authority. 

Retained waters shall be identified in 

accordance with procedures set forth in 

§ 233.11(i). 

(2) Procedures whereby the Secretary 

will, prior to or on the effective date set 

forth in the Memorandum of Agreement 

with the Regional Administrator, 

transfer to the State pending section 404 

permit applications for discharges into 

State regulated waters and other 

relevant information not already in the 

possession of the Director. 

Note 1 to paragraph (b)(2): Where a State 

permit program includes coverage of those 

navigable waters in which only the Secretary 

may issue section 404 permits, the State is 

encouraged to establish in this Memorandum 

of Agreement procedures for joint processing 

of Federal and State permits, including joint 

public notice and public hearings. 

(3) An identification of all general 

permits issued by the Secretary, the 

terms and conditions of which the State 

intends to administer and enforce upon 

receiving approval of its program, and a 

plan for transferring responsibility for 

these general permits to the State, 

including procedures for the prompt 

transmission from the Secretary to the 

Director relevant information not 

already in the possession of the 

Director. The information to be 

transferred includes but is not limited to 

support files for permit issuance, 

conditions and certifications placed on 

the Corps general permits, compliance 

reports, and records of enforcement 

actions. 

(4) Procedures whereby the Secretary 

would notify the State of changes to its 

RHA section 10 list that implicate 

waters that are presently used, or are 

susceptible to use in their natural 

condition or by reasonable improvement 

as a means to transport interstate or 

foreign commerce, and the State would 

then incorporates these changes into its 

retained waters description, pursuant to 

the procedures in § 233.16(d). 

■ 24. Amend § 233.15 by: 

■ a. Revising the first sentence of the 

introductory text of paragraph (e); 

■ b. Revising the second sentence of 

paragraph (g); and 

■ c. Revising paragraph (h). 

The revisions read as follows: 

§ 233.15 Procedures for approving State 

programs. 

* * * * * 

(e) After determining that a State 

program submission is complete, the 

Regional Administrator shall publish 

notice of the State’s program submission 

in the Federal Register and in enough 

of the largest newspapers in the State to 

attract statewide attention. * * * 

* * * * * 

(g) * * * The Regional Administrator 

shall prepare a responsiveness summary 

of significant comments received and 

the Regional Administrator’s response 

to these comments. * * * 

(h) If the Regional Administrator 

approves the State’s section 404 

program, the Regional Administrator 

shall notify the State and the Secretary 

of the decision, publish notice in the 

Federal Register, and post notice on 


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EPA’s website. The program for Stateassumed waters shall transfer to the 

State on the date established in the 

Memorandum of Agreement between 

the State and Regional Administrator. 

The Secretary shall suspend the 

issuance by the Corps of section 404 

permits in State regulated waters on 

such effective date. 

* * * * * 

■ 25. Amend § 233.16 by revising 

paragraphs (d)(2) and (3), and (e) to read 

as follows: 

§ 233.16 Procedures for revision of State 

programs. 

* * * * * 

(d) * * * 

(2) Notice of approval of program 

changes which the Regional 

Administrator determines are not 

substantial revisions may be given by 

letter from the Regional Administrator 

to the Governor or the Tribal leader and 

are effective upon the date in the 

approval letter. The Regional 

Administrator will notify the Secretary 

of the approval of any approved 

program modifications. The Regional 

Administrator will also notify other 

Federal agencies of approved program 

modifications as appropriate. The 

Regional Administrator shall post any 

such approval letters on the relevant 

pages of EPA’s website. 

(3) Whenever the Regional 

Administrator determines that the 

proposed revision is substantial, the 

Regional Administrator shall publish 

and circulate notice to those persons 

known to be interested in such matters, 

provide opportunity for a public 

hearing, and consult with the Corps, 

FWS, and NMFS. The Regional 

Administrator shall approve or 

disapprove program revisions based on 

whether the program fulfills the 

requirements of the Act and this part, 

and shall publish notice of the decision 

in the Federal Register. For purposes of 

this paragraph, substantial revisions 

include, but are not limited to, revisions 

that remove waters from the retained 

waters description (other than de 

minimis removals), as well as revisions 

that affect the scope of activities 

regulated, criteria for review of permits, 

public participation, or enforcement 

capability. Revisions to an Indian 

Tribe’s assumed program that would 

add a new geographic area to the 

approved program require that the 

Regional Administrator determine that 

the Tribe meets the eligibility criteria in 

§ 233.60 with regard to the new 

geographic area and constitute 

substantial revisions. 

* * * * * 

(e) Whenever the Regional 

Administrator has reason to believe that 

circumstances have changed with 

respect to a State’s program, the 

Regional Administrator may request and 

the State shall provide a supplemental 

Attorney General’s statement, program 

description, or such other documents or 

information as are necessary to evaluate 

the program’s compliance with the 

requirements of the Act and this part. 

■ 26. Amend § 233.21 by revising 

paragraphs (b) and (e)(2) to read as 

follows: 

§ 233.21 General permits. 

* * * * * 

(b) The Director may issue a general 

permit for categories of similar activities 

if the Director determines that the 

regulated activities will cause only 

minimal adverse environmental effects 

when performed separately and will 

have only minimal cumulative adverse 

effects on the environment. Any general 

permit issued shall be in compliance 

with the section 404(b)(1) Guidelines. 

* * * * * 

(e) * * * 

(2) Once the Director notifies the 

discharger of the Director’s decision to 

exercise discretionary authority to 

require an individual permit, the 

discharger’s activity is no longer 

authorized by the general permit. 

■ 27. Amend § 233.23 by revising the 

introductory text of paragraph (c)(8) to 

read as follows: 

§ 233.23 Permit conditions. 

* * * * * 

(c) * * * 

(8) Inspection and entry. The 

permittee shall allow the Director, or the 

Director’s authorized representative, 

upon presentation of proper 

identification, at reasonable times to: 

* * * * * 

■ 28. Add § 233.24 to subpart C read as 

follows: 

§ 233.24 Judicial review. 

All States that administer or seek to 

administer a program under this part 

shall provide an opportunity for judicial 

review in State Court of the final 

approval or denial of permits by the 

State that is sufficient to provide for, 

encourage, and assist public 

participation in the permitting process. 

Indian Tribes must provide a 

commensurate form of citizen recourse 

for permit applicants and others affected 

by Tribe-issued permits. 

■ 29. Amend § 233.30 by revising 

paragraphs (a) and (b)(5) to read as 

follows: 

§ 233.30 Application for a permit. 

(a) Except when an activity is 

authorized by a general permit issued 

pursuant to § 233.21 or is exempt from 

the requirements to obtain a permit 

under § 232.3, any person who proposes 

to discharge dredged or fill material into 

State regulated waters shall complete, 

sign, and submit a permit application to 

the Director. Applicants for projects that 

take more than five years to complete 

must submit a complete application for 

each five-year permit, and an applicant 

seeking a new five-year permit must 

apply for the new permit at least 180 

days prior to the expiration of the 

current permit. The Tribe or State may 

grant permission to submit an 

application less than 180 days prior to 

the expiration of the current permit but 

no later than the permit expiration date. 

Persons proposing to discharge dredged 

or fill material under the authorization 

of a general permit must comply with 

any reporting requirements of the 

general permit. 

(b) * * * 

(5) All activities which the applicant 

plans to undertake which are reasonably 

related to the same project must be 

included in the same permit 

application. For projects for which the 

planned schedule extends beyond five 

years at the time of the initial five-year 

permit application, the application for 

both the first and subsequent five-year 

permits must include an analysis 

demonstrating that each element of the 

404(b)(1) Guidelines is met, consistent 

with 40 CFR part 230, for the full term 

of the project. Applicants for subsequent 

five-year permits must update the 

404(b)(1) Guidelines analysis if there 

has been a change in circumstance 

related to the project following approval 

of the previous five-year permit, and 

clearly indicate whether the 404(b)(1) 

Guidelines analysis has been updated. 

* * * * * 

■ 30. Revise and republish § 233.31 to 

read as follows: 

§ 233.31 Coordination requirements. 

(a) If a proposed discharge may affect 

the biological, chemical, or physical 

integrity of the waters of any State(s) 

other than the State in which the 

discharge occurs, the Director shall 

provide an opportunity for such State(s) 

to submit written comments within the 

public comment period and to suggest 

permit conditions. If these 

recommendations are not accepted by 

the Director, the Director shall notify the 

affected State and the Regional 

Administrator in writing prior to permit 

issuance of the Director’s failure to 

accept these recommendations, together 


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with the Director’s reasons for so doing. 

The Regional Administrator shall then 

have the time provided for in 

§ 233.50(d) to comment upon, object to, 

or make recommendations. 

(b) State section 404 permits shall be 

coordinated with the Federal and 

Federal-State water related planning 

and review processes. 

(c) For the purposes of § 233.31(a), the 

definition of ‘‘State’’ in § 233.2 includes 

Indian Tribes that have been approved 

by EPA under CWA section 518 and 

applicable regulations for eligibility to 

administer any CWA provision as well 

as Indian Tribes that have been 

approved by EPA under paragraph (d) of 

this section for eligibility for the 

purpose of commenting under 

§ 233.31(a). 

(d) An Indian Tribe may apply to the 

Regional Administrator for a 

determination that it meets the statutory 

criteria of section 518 of the CWA, 33 

U.S.C. 1377, to be treated in a manner 

similar to that in which EPA treats a 

State, for purposes of the coordination 

requirements of sections 404(h)(1)(C) 

and (E), 33 U.S.C. 1344(h)(1)(C) and (E), 

of the CWA and paragraphs (a) and (c) 

of this section. 

(1) The Tribe’s application shall 

concisely describe how: 

(i) The Indian Tribe is recognized by 

the Secretary of the Interior; 

(ii) The Indian Tribe has a governing 

body carrying out substantial 

governmental duties and powers; 

(iii) The functions to be exercised by 

the Indian Tribe pertain to the 

management and protection of water 

resources which are held by an Indian 

Tribe, held by the United States in trust 

for Indians, held by a member of an 

Indian Tribe if such property interest is 

subject to a trust restriction on 

alienation, or otherwise within the 

borders of the Indian reservation; and 

(iv) The Indian Tribe is reasonably 

expected to be capable, in the Regional 

Administrator’s judgment, of carrying 

out the functions to be exercised in a 

manner consistent with the terms and 

purposes of the CWA and applicable 

regulations. 

(2) The Regional Administrator shall 

promptly notify the Indian Tribe of 

receipt of an application submitted 

under this section and shall process 

such application in a timely manner. 

■ 31. Amend § 233.32 by revising the 

introductory text of paragraph (c)(1) and 

paragraph (d)(6) to read as follows: 

§ 233.32 Public notice. 

* * * * * 

(c) * * * 

(1) By mailing a copy of the notice to 

the following persons (any person 

otherwise entitled to receive notice 

under this paragraph (c)(1) may waive 

their rights to receive notice for any 

classes or categories of permits): 

* * * * * 

(d) * * * 

(6) A paragraph describing the various 

evaluation factors, including the 

404(b)(1) Guidelines or State-equivalent 

criteria, on which decisions are based. 

For projects with a planned schedule 

that extends beyond five years at the 

time of the initial five-year permit 

application, the public notice for 

subsequent five-year permits must 

indicate whether the 404(b)(1) 

Guidelines analysis has been updated. 

* * * * * 

■ 32. Amend § 233.33 by revising 

paragraph (b) to read as follows: 

§ 233.33 Public hearing. 

* * * * * 

(b) The Director shall hold a public 

hearing whenever the Director 

determines there is a significant degree 

of public interest in a permit application 

or a draft general permit. The Director 

may also hold a hearing, at the 

Director’s discretion, whenever the 

Director determines a hearing may be 

useful to a decision on the permit 

application. 

* * * * * 

■ 33. Amend § 233.34 by revising 

paragraph (c) to read as follows: 

§ 233.34 Making a decision on the permit 

application. 

* * * * * 

(c) After the Director has completed 

review of the application and 

consideration of comments, the Director 

will determine, in accordance with the 

record and all applicable regulations, 

whether or not the permit should be 

issued. No permit shall be issued by the 

Director under the circumstances 

described in § 233.20. The Director shall 

prepare a written determination on each 

application outlining the Director’s 

decision and rationale for the decision. 

For projects with a planned schedule 

that extends beyond five years at the 

time of the initial five-year permit 

application, if the Director decides not 

to require an update to the 404(b)(1) 

Guidelines for a subsequent five-year 

permit, the Director must provide a 

detailed written explanation of the 

decision not to require an update in its 

determination for the subsequent fiveyear permit. The determination shall be 

dated, signed, and included in the 

official record prior to final action on 

the application. The official record shall 

be open to the public. 

■ 34. Amend § 233.36 by revising the 

introductory text of paragraph (a) and 

revising paragraph (c)(1) to read as 

follows: 

§ 233.36 Modification, suspension or 

revocation of permits. 

(a) General. The Director may 

reevaluate the circumstances and 

conditions of a permit either on the 

Director’s own motion or at the request 

of the permittee or of a third party and 

initiate action to modify, suspend, or 

revoke a permit if the Director 

determines that sufficient cause exists. 

Among the factors to be considered are: 

* * * * * 

(c) * * * 

(1) The Director shall develop 

procedures to modify, suspend, or 

revoke permits if the Director 

determines cause exists for such action 

(§ 233.36(a)). Such procedures shall 

provide opportunity for public comment 

(§ 233.32), coordination with the 

Federal review agencies (§ 233.50), and 

opportunity for public hearing 

(§ 233.33) following notification of the 

permittee. When permit modification is 

proposed, only the conditions subject to 

modification need be reopened. 

* * * * * 

■ 35. Revise § 233.37 to read as follows: 

§ 233.37 Signatures on permit applications 

and reports. 

The application and any required 

reports must be signed by the person 

who desires to undertake the proposed 

activity or by that person’s duly 

authorized agent if accompanied by a 

statement by that person designating the 

agent. In either case, the signature of the 

applicant or the agent will be 

understood to be an affirmation that the 

applicant or the agent possesses or 

represents the person who possesses the 

requisite property interest to undertake 

the activity proposed in the application. 

■ 36. Amend § 233.41 by revising 

paragraph (b)(2) to read as follows: 

§ 233.41 Requirements for enforcement 

authority. 

(b) * * * 

(2) The burden of proof and degree of 

knowledge or intent required under 

State law for establishing violations 

under paragraph (a)(3) of this section, 

shall be no greater than the burden of 

proof or degree of knowledge or intent 

EPA must provide when it brings an 

action under the Act, except that a State 

may establish criminal violations based 

on any form or type of negligence. 

* * * * * 

■ 37. Amend § 233.50 by: 

■ a. Revising the section heading; 


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■ b. Revising paragraphs (d), (e), (f), and 

(h)(1); and 

■ c. Adding paragraph (k). 

The revisions read as follows: 

§ 233.50 Review of and objection to State 

permits and review of compensatory 

mitigation instruments. 

* * * * * 

(d) If the Regional Administrator 

intends to comment upon, object to, or 

make recommendations with respect to 

a permit application, draft general 

permit, or the Director’s failure to accept 

the recommendations of an affected 

State submitted pursuant to § 233.31(a), 

the Regional Administrator shall notify 

the Director of the Regional 

Administrator’s intent within 30 days of 

receipt. If the Director has been so 

notified, the permit shall not be issued 

until after the receipt of such comments 

or 90 days of the Regional 

Administrator’s receipt of the public 

notice, draft general permit, or 

Director’s response (§ 233.31(a)), 

whichever comes first. The Regional 

Administrator may notify the Director 

within 30 days of receipt that there is no 

comment but that the Regional 

Administrator reserves the right to 

object within 90 days of receipt, based 

on any new information brought out by 

the public during the comment period 

or at a hearing. 

(e) If the Regional Administrator has 

given notice to the Director under 

paragraph (d) of this section, the 

Regional Administrator shall submit to 

the Director, within 90 days of receipt 

of the public notice, draft general 

permit, or Director’s response 

(§ 233.31(a)), a written statement of the 

Regional Administrator’s comments, 

objections, or recommendations; the 

reasons for the comments, objections, or 

recommendations; and the actions that 

must be taken by the Director in order 

to eliminate any objections. Any such 

objection shall be based on the Regional 

Administrator’s determination that the 

proposed permit is: 

(1) The subject of an interstate dispute 

under § 233.31(a); and/or 

(2) Outside requirements of the Act, 

these regulations, or the 404(b)(1) 

Guidelines. The Regional Administrator 

shall make available upon request a 

copy of any comment, objection, or 

recommendation on a permit 

application or draft general permit to 

the permit applicant or to the public. 

(f) When the Director has received an 

EPA objection or requirement for a 

permit condition to a permit application 

or draft general permit under this 

section, the Director shall not issue the 

permit unless the Director has taken the 

steps required by the Regional 

Administrator to eliminate the 

objection. 

* * * * * 

(h) * * * 

(1) If the Regional Administrator 

withdraws the objection or requirement 

for a permit condition, the Director may 

issue the permit. 

* * * * * 

(k) If the State establishes third-party 

compensation mechanisms as part of its 

section 404 program (e.g., banks or inlieu fee programs), the Director must 

transmit a copy of instruments 

associated with these compensatory 

mitigation approaches to the Regional 

Administrator, the Corps, FWS, and 

NMFS for review prior to issuance, as 

well as to any other State agencies to the 

extent the State committed to do so in 

the program description pursuant to 

§ 233.11(k). To the extent the State 

deems appropriate, the Director may 

also send these draft instruments to 

other relevant State agencies for review. 

This transmission and review 

requirement does not apply to 

permittee-responsible compensatory 

mitigation. If the Regional 

Administrator, the Corps, FWS, or 

NMFS intend to comment upon such 

instruments they must notify the 

Director of their intent within 30 days 

of receipt. If the Director has been so 

notified, the instrument must not be 

issued until after the receipt of such 

comments or after 90 days of receipt of 

the proposed instrument by the 

Regional Administrator, the Corps, the 

FWS, or NMFS. The Director must 

respond to any comments received 

within 90 days from the Regional 

Administrator, the Corps, FWS, NMFS, 

or State agencies that received the draft 

instruments pursuant to the State 

program description and inform the 

commenting agency of any comments or 

recommendations not accepted prior to 

approving the final compensatory 

mitigation instrument. In the event that 

the Regional Administrator has 

commented that the instrument fails to 

apply or ensure compliance with the 

requirements of § 233.11(k), the Director 

must not approve the final 

compensatory mitigation instrument 

until the Regional Administrator 

notifies the Director that the final 

instrument ensures compliance with 

§ 233.11(k). 

■ 38. Amend § 233.51 by adding 

paragraph (d) to read as follows: 

§ 233.51 Waiver of review. 

* * * * * 

(d) If within 20 days of public notice 

of a permit application, pursuant to 

§ 233.32, a Tribe notifies EPA that the 

application potentially affects Tribal 

rights or interests, including those 

beyond reservation boundaries, EPA 

will request a copy of the public notice 

for the permit application, even if 

Federal review of the relevant category 

of discharge has been waived, and the 

Regional Administrator and the Director 

shall then proceed in accordance with 

§ 233.50. 

■ 39. Amend § 233.52 by revising 

paragraphs (b) and (e) to read as follows: 

§ 233.52 Program reporting. 

* * * * * 

(b) The Director shall submit to the 

Regional Administrator within 90 days 

after completion of the annual period, a 

draft annual report evaluating the 

State’s administration of its program 

identifying problems the State has 

encountered in the administration of its 

program, steps taken to resolve these 

problems, and recommendations for 

resolving any outstanding problems 

along with a timeline for resolution. 

Items that shall be addressed in the 

annual report include an assessment of 

the cumulative impacts of the State’s 

permitting program on the integrity of 

the State regulated waters; identification 

of areas of particular concern or interest 

within the State; the number and nature 

of individual and general permits 

issued, modified, and denied; the 

number of violations identified and 

number and nature of enforcement 

actions taken; the number of suspected 

unauthorized activities reported and 

nature of action taken; an estimate of the 

extent of activities regulated by general 

permits; the number of permit 

applications received but not yet 

processed; and an assessment of 

avoidance, minimization, and 

compensation required for permits 

issued, including the type and quantity 

of resources impacted, type and 

quantity of compensation required 

(including quantification and rationale 

for out-of-kind or compensation 

provided outside the watershed), and a 

description of why compensation was 

not required, if applicable. The Annual 

Report shall briefly summarize 

resolution of issues identified in the 

previous Annual Report. Additionally, 

to the extent appropriate, the Annual 

Report should analyze program 

resources and staffing, including staffing 

changes, training, and vacancy rate 

since approval or the previous Annual 

Report. 

* * * * * 

(e) Within 30 days of receipt of the 

Regional Administrator’s final 

comments, the Director will finalize the 

annual report, incorporating and/or 


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responding to the Regional 

Administrator’s comments, and transmit 

the final report to the Regional 

Administrator. The Director shall make 

a copy of the final annual report, 

accepted by the Regional Administrator, 

publicly available. 

* * * * * 

■ 40. Amend § 233.53 by revising 

paragraphs (a)(1) and (c) to read as 

follows: 

§ 233.53 Withdrawal of program approval. 

(a) * * * 

(1) The State shall give the 

Administrator and the Secretary no less 

than 180 days’ notice of the proposed 

transfer. With the notice, the State shall 

submit a plan for the orderly transfer of 

all relevant program information not in 

the possession of the Secretary (such as 

permits, permit files, reports, permit 

applications, as well as files regarding 

ongoing investigations, compliance 

orders, and enforcement actions) which 

are necessary for the Secretary to 

administer the program. The notice 

shall include the proposed transfer date. 

* * * * * 

(c) The following procedures apply 

when the Administrator orders the 

commencement of proceedings to 

determine whether to withdraw 

approval of a State program: 

(1) Notice to State. If the Regional 

Administrator has cause to believe that 

a State is not administering or enforcing 

its assumed program in compliance 

with the requirements of the CWA and 

this part, the Regional Administrator 

shall inform the Director in writing of 

the specific areas of alleged 

noncompliance. If the State 

demonstrates to the Regional 

Administrator within 30 days of such 

notification that the State program is in 

compliance, the Regional Administrator 

shall take no further action toward 

withdrawal, and shall so notify the State 

in writing. 

(2) Public hearing. If the State has not 

demonstrated its compliance to the 

satisfaction of the Regional 

Administrator within 30 days of 

notification, the Regional Administrator 

shall inform the Director of that finding. 

The Administrator shall then schedule a 

public hearing to solicit comments on 

the administration of the State program 

and its compliance with the Act and 

this part. Notice of such public hearing 

shall be published in the Federal 

Register, on EPA’s website, and in 

enough of the largest newspapers and/ 

or news websites in the State to attract 

statewide attention and mailed or 

emailed to persons on appropriate 

Tribal, State, and EPA mailing lists. 

This hearing shall be convened not less 

than 30 days or more than 60 days 

following the date of publication of the 

notice of the hearing in the Federal 

Register. Notice of the hearing shall 

identify the Administrator’s concerns. 

All interested parties shall be given 

opportunity to make written or oral 

presentations on the State’s program at 

the public hearing. 

(3) Notice to State of findings. If the 

Administrator finds, after the public 

hearing, that the State is not in 

compliance, within 90 days of the 

public hearing the Administrator shall 

notify the State via letter of the specific 

deficiencies in the State program, 

including administration and 

enforcement, and of necessary remedial 

actions. Within 90 days of receipt of the 

above letter, the State shall either carry 

out the required remedial action(s) or 

the Administrator shall withdraw 

program approval. If the State performs 

all required remedial action(s) in the 

allotted time or, if the Administrator 

determines as a result of the hearing that 

the State is in compliance, the 

Administrator shall so notify the State 

in writing and conclude the withdrawal 

proceedings. If the Administrator makes 

the determination that the assumed 

program should be withdrawn, then 

such determination will be published in 

the Federal Register, and the 

Administrator shall remove from the 

CFR, as appropriate, any provision 

addressing that State’s assumed 

program. The effective date of the 

withdrawal, and the date upon which 

the Corps shall be the permitting 

authority, shall be 30 days after 

publication of the Administrator’s 

decision in the Federal Register. 

(4) Determination to withdraw. The 

Administrator’s determination to 

withdraw program approval shall 

constitute final Agency action within 

the meaning of 5 U.S.C. 704. 

* * * * * 

§ 233.60 [Amended] 

■ 41. Amend § 233.60 paragraph (c) by 

removing the word ‘‘Untied’’ and 

adding in its place the word ‘‘United.’’ 

■ 42. Amend § 233.61 by revising 

paragraph (e) to read as follows: 

§ 233.61 Determination of Tribal eligibility. 

* * * * * 

(e) The Administrator may, at the 

Administrator’s discretion, request 

further documentation necessary to 

support a Tribal application. 

* * * * * 

■ 43. Revise and republish § 233.62 to 

read as follows: 

§ 233.62 Procedures for processing an 

Indian Tribe’s application. 

(a) The Regional Administrator shall 

process an application of an Indian 

Tribe submitted pursuant to § 233.61 in 

a timely manner. The Regional 

Administrator shall promptly notify the 

Indian Tribe of receipt of the 

application. 

(b) The Regional Administrator shall 

follow the procedures described in 

§ 233.15 in processing a Tribe’s request 

to assume the 404 dredge and fill permit 

program. 

(c) The Regional Administrator shall 

follow the procedures for substantial 

program revisions described in § 233.16 

in processing a Tribe’s request to add 

additional geographic area(s) to its 

assumed 404 dredged or fill material 

permit program that would add 

reservation areas to the scope of its 

approved program. A Tribe making such 

a request shall provide an application 

meeting the requirements of § 233.61 

that describes how the Tribe meets the 

eligibility criteria in § 233.60 for the 

new area. 

■ 44. Revise § 233.70 to read as follows: 

§ 233.70 Michigan. 

The applicable regulatory program for 

discharges of dredged or fill material 

into waters of the United States in 

Michigan that are not presently used, or 

susceptible for use in their natural 

condition or by reasonable improvement 

as a means to transport interstate or 

foreign commerce shoreward to the 

ordinary high water mark, including 

wetlands adjacent thereto, except those 

on Indian lands, is the program 

administered by the Michigan 

Department of Environment, Great 

Lakes, and Energy (previously named 

Department of Natural Resources, 

Department of Environmental Quality, 

and Department of Natural Resources 

and Environment), approved by EPA, 

pursuant to section 404 of the CWA. 

Notice of this approval was published in 

the Federal Register on October 2, 1984; 

the effective date of this program is 

October 16, 1984. This program consists 

of the following elements, as submitted 

to EPA in the State’s program 

submission and subsequently revised. 

(a) Incorporation by reference. The 

Michigan statutes and regulations cited 

in paragraphs (a)(1) and (2) of this 

section are incorporated by reference as 

part of the applicable section 404 

Program under the CWA for the State of 

Michigan. This incorporation by 

reference was approved by the Director 

of the Federal Register in accordance 

with 5 U.S.C. 552(a) and 1 CFR part 51. 

To enforce any edition other than that 

specified in this section, EPA must 


khammond on DSK9W7S144PROD with RULES7
103508 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 

publish a document in the Federal 

Register and the material must be 

available to the public. This 

incorporation by reference (IBR) 

material is available for inspection at 

EPA and at the National Archives and 

Records Administration (NARA). Copies 

of this IBR material also may be 

obtained from EPA. Contact EPA at: 

EPA Docket Center Reading Room, WJC 

West Building, Room 3334, 1301 

Constitution Avenue NW, Washington, 

DC 20004 (phone: 202–566–1744), or 

send mail to Mail Code 5305G, 1200 

Pennsylvania Ave. NW, Washington, DC 

20460, and at the Water Division, 

Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, IL 60604. For information on 

the availability of this IBR material at 

NARA, visit www.archives.gov/federalregister/cfr/ibr-locations or email 

fr.inspection@nara.gov. The material 

may be obtained from the Michigan 

Department of Environment, Great 

Lakes, and Energy office at 525 W 

Allegan St., Lansing, MI 48933, phone: 

800–662–9278. 

(1) Michigan Statutes Applicable to 

the State’s Approved Clean Water Act 

Section 404 program (available at 

www.legislature.mi.gov), as follows: 

(i) The Michigan Administrative 

Procedures Act of 1969, MCL § 24–201 

et seq., in effect as of February 13, 2024. 

(ii) Natural Resources and 

Environmental Protection Act 451 of 

1994: 

(A) Part 31 Water Resources 

Protection, MCL § 324.31 et seq., in 

effect as of September 29, 2023. 

(B) Part 301 Inland Lakes and 

Streams, MCL § 324.301 et seq., in effect 

as of October 20, 2021. 

(C) Part 303 Wetland Protection, MCL 

§ 324.303 et seq., in effect as of April 27, 

2019. 

(D) Part 307 Inland Lake Levels, MCL 

§ 324.307 et seq., in effect as of October 

16, 2020. 

(E) Part 315 Dam Safety, MCL 

§ 324.315 et seq., in effect as of 

September 10, 2004. 

(F) Part 323 Great Lakes Shorelands 

Protection and Management, MCL 

§ 324.323 et seq, in effect as of October 

20, 2021. 

(G) Part 325 Great Lakes Submerged 

Lands, MCL § 324.325 et seq., in effect 

as of October 20, 2021. 

(2)(i) Michigan Regulations 

Applicable to the State’s Approved 

Clean Water Act Section 404 program 

(www.michigan.gov/lara/bureau-list/ 

moahr/admin-rules), Michigan 

Administrative Code, Department of 

Environmental Quality, as follows: 

(A) Land and Water Management: 

(1) Great Lakes Shorelands, R 281.21 

through R 281.26 inclusive, in effect as 

of 2000. 

(2) Wetlands Protection, R 281.921 

through R 281.925 inclusive, in effect as 

of 2006. 

(3) Wetland Mitigation Banking, R 

281.951 through R 281.961 inclusive, in 

effect as of 1997. 

(4) Dam Safety, R 281.1301 through R 

281.1313 inclusive in effect as of 1993. 

(B) Water Resources Division, Inland 

Lakes and Streams, R 281.811 through R 

281.846 inclusive, in effect as of 2015. 

(ii) This material contains Michigan’s 

rules for shoreline protection, inland 

lakes and streams, wetlands protection, 

wetland mitigation banking, and dam 

safety. 

(b) Other Laws. The following statutes 

and regulations, although not 

incorporated by reference, also are part 

of the approved State-administered 

program: 

(1) Administrative Procedures Act, 

MCL 24.201 et seq. 

(2) Freedom of Information Act, MCL 

15.231 et seq. 

(3) Open Meetings Act, MCL 15.261 et 

seq. 

(4) Natural Resources and 

Environmental Protection Act 451 of 

1994, Part 17 Michigan Environmental 

Protection Act, MCL 324.17 et seq. 

(c) Memoranda of Agreement. The 

following memoranda, although not 

incorporated by reference also are part 

of the approved State-administered 

program: 

(1) The Memorandum of Agreement 

between EPA Region V and the 

Michigan Department of Natural 

Resources, signed by EPA Region V 

Administrator on December 9, 1983. 

The 1983 Memorandum of Agreement 

has subsequently been replaced by a 

Memorandum of Agreement between 

EPA Region 5 and the Michigan 

Department of Environmental Quality 

(now referred to as the Michigan 

Department of Environment, Great 

Lakes, and Energy) signed on November 

9, 2011. 

(2) The Memorandum of Agreement 

between the U.S. Army Corps of 

Engineers and the Michigan Department 

of Natural Resources, signed by the 

Commander, North Central Division, on 

March 27, 1984. 

(d) Statement of Legal Authority. The 

following documents, although not 

incorporated by reference, also are part 

of the approved State administered 

program: 

(1) ‘‘Attorney General Certification 

section 404/State of Michigan’’, signed 

by Attorney General of Michigan, as 

submitted with the request for approval 

of ‘‘The State of Michigan 404 

Program’’, October 26, 1983. 

(e) The Program description and any 

other materials submitted as part of the 

original submission or supplements 

thereto. 

■ 45. Amend § 233.71 by: 

■ a. Revising the introductory text and 

paragraph (a); 

■ b. Removing paragraph (b); and 

■ c. Redesignating paragraphs (c) 

through (e) as paragraphs (b) through 

(d). 

The revisions read as follows: 

§ 233.71 New Jersey. 

The applicable regulatory program for 

discharges of dredged or fill material 

into waters of the United States in New 

Jersey that are not presently used, or 

susceptible for use in their natural 

condition or by reasonable improvement 

as a means to transport interstate or 

foreign commerce shoreward to the 

ordinary high water mark, including 

wetlands adjacent thereto, except those 

on Indian lands, is the program 

administered by the New Jersey 

Department of Environmental Protection 

and Energy, approved by EPA, pursuant 

to section 404 of the CWA. Notice of 

this approval was published in the 

Federal Register on March 2, 1994; the 

effective date of this program is March 

2, 1994. This program consists of the 

following elements, as submitted to EPA 

in the State’s program submission and 

subsequently revised. 

(a) Incorporation by reference. The 

New Jersey statues and regulations cited 

in paragraphs (a)(1) and (2) of this 

section are incorporated by reference as 

part of the applicable 404 Program 

under the CWA for the State of New 

Jersey. This incorporation by reference 

was approved by the Director of the 

Federal Register in accordance with 5 

U.S.C. 552(a) and 1 CFR part 51. To 

enforce any edition other than that 

specified in this section, EPA must 

publish a document in the Federal 

Register and the material must be 

available to the public. This 

incorporation by reference (IBR) 

material is available for inspection at 

EPA and at the National Archives and 

Records Administration (NARA). Copies 

of this IBR material also may be 

obtained from EPA. Contact EPA at: 

EPA Docket Center Reading Room, WJC 

West Building, Room 3334, 1301 

Constitution Avenue NW, Washington, 

DC 20004 (phone: 202–566–1744), or 

send mail to Mail Code 5305G, 1200 

Pennsylvania Ave. NW, Washington, DC 

20460, and at the Library of the Region 

2 Regional Office, Ted Weiss Federal 

Building, 290 Broadway, New York, NY 

10007. For information on the 


khammond on DSK9W7S144PROD with RULES7
Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103509 

availability of this IBR material at 

NARA, visit www.archives.gov/federalregister/cfr/ibr-locations or email 

fr.inspection@nara.gov. The materials 

may be obtained from the New Jersey 

Department of Environmental Protection 

at 401 East State St., Trenton, NJ 08625; 

website: www.epa.gov/cwa404g/usinteractive-map-state-and-tribalassumption-under-cwa-section-404#nj. 

(1)(i) New Jersey Statutes Applicable 

to the State’s Approved Clean Water Act 

Section 404 program as follows: 

(A) Freshwater Wetlands Protection 

Act, New Jersey Statutes Annotated, 

Title 13: Conservation and 

Development—Parks and Reservations; 

Chapter 9B: Freshwater Wetlands, 

N.J.S.A.13:9B–1 et seq., effective as of 

December 23, 1993. 

(B) [Reserved] 

(ii) The Freshwater Wetlands 

Protection Act provides the New Jersey 

Department of Environmental Protection 

with the authority to regulate and 

permit activities in freshwater wetlands. 

(2)(i) New Jersey Regulations 

Applicable to the State’s Approved 

Clean Water Act Section 404 program as 

follows: 

(A) Freshwater Wetlands Protection 

Act Rules, N.J.A.C. 7:7A, amended 

November 7, 2022. 

(B) [Reserved] 

(ii) This chapter contains regulations 

to implement the Freshwater Wetlands 

Protection Act. 

* * * * * 

[FR Doc. 2024–29484 Filed 12–17–24; 8:45 am] 

BILLING CODE 6560–50–P 


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