`[Federal Register Volume 89, Number 243 (Wednesday, December 18, 2024)]
[Rules and Regulations]
[Pages 103454-103509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29484]



[[Page 103453]]

Vol. 89

Wednesday,

No. 243

December 18, 2024

Part VII





 Environmental Protection Agency





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40 CFR Parts 123, et al.





Clean Water Act Section 404 Tribal and State Assumption Program; Final 
Rule

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

[[Page 103454]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 123, 124, 232, and 233

[EPA-HQ-OW-2020-0276; FRL-6682-01-OW]
RIN 2040-AF83


Clean Water Act Section 404 Tribal and State Assumption Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
finalizing the Agency's first comprehensive revisions to the 
regulations governing Clean Water Act (CWA) section 404 Tribal and 
State programs since 1988. The primary purpose of the revisions is to 
respond to longstanding requests from Tribes and States to clarify the 
requirements and processes for the assumption and administration of a 
CWA section 404 permitting program for discharges of dredged and fill 
material. The revisions facilitate Tribal and State assumption and 
administration of CWA section 404, consistent with the policy of the 
CWA as described in section 101(b), by making the procedures and 
substantive requirements for assumption transparent and 
straightforward. It clarifies the minimum requirements for Tribal and 
State programs while ensuring flexibility to accommodate individual 
Tribal and State needs. In addition, the final rule clarifies the 
criminal negligence standard in the CWA section 404 program, as well as 
making a corresponding change in the section 402 program. Finally, the 
final rule makes technical revisions, including removing outdated 
references associated with the section 404 Tribal and State program 
regulations.

DATES: This rule is effective on January 17, 2025. The incorporation by 
reference of certain material listed in the rule is approved by the 
Director of the Federal Register as of January 17, 2025.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OW-2020-0276. All documents in the docket are listed on the 
https://www.regulations.gov website. Although listed in the index, some 
information is not publicly available, e.g., confidential business 
information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the internet and will be publicly available in hard copy 
form. Publicly available docket materials are available electronically 
through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Christine Maietta, Oceans, Wetlands 
and Communities Division, Office of Water (4504-T), Environmental 
Protection Agency, Pennsylvania Avenue NW, Washington, DC 20460; 
telephone number: 202-564-1854; email address: [email protected]; 
website: https://www.epa.gov/cwa404g.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. General Information
    A. What action is the Agency taking?
    B. What is the Agency's authority for taking this action?
    C. What are the incremental costs and benefits of this action?
III. Background
    A. Statutory and Regulatory History
    B. Need for Rulemaking Revisions
IV. Final Rule
    A. General
    B. Program Approval
    C. Program Operations
    D. Compliance Evaluation and Enforcement
    E. Federal Oversight
    F. Eligible Indian Tribes
    G. Impacts on Existing Programs
    H. Technical Revisions
    I. Incorporation by Reference
    J. Severability
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review; 
Executive Order 13563: Improving Regulation and Regulatory Review; 
and Executive Order 14094: Modernizing Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations and Executive Order 14096: Revitalizing Our Nation's 
Commitment to Environmental Justice for All
    K. Congressional Review Act

I. Executive Summary

    Section 404 of the Clean Water Act (CWA) establishes a program to 
regulate the discharge of dredged or fill material into navigable 
waters, defined as ``waters of the United States.'' 33 U.S.C. 1344. The 
section 404 program, introduced in the 1972 amendments to the Federal 
Water Pollution Control Act, is generally administered by the U.S. Army 
Corps of Engineers (``Corps''). However, in 1977, Congress amended 
section 404 of the CWA to allow States to administer their own dredged 
or fill material permitting programs in certain waters of the United 
States within their jurisdiction, subject to EPA approval. Id. at 
1344(g). A Tribe or State administering a section 404 program is 
responsible for permitting discharges of dredged and fill material, 
authorizing discharges under general permits, taking enforcement 
actions with respect to unauthorized discharges, and ensuring 
compliance with the terms and conditions of permits under the Tribe's 
or State's authority. EPA maintains oversight of Tribal and State 
section 404 programs.
    In 1980, EPA promulgated regulations to establish procedures and 
criteria for approving or disapproving State programs under section 
404(g) and for oversight of State programs after approval. 45 FR 33290 
(May 19, 1980). EPA revised the regulations in 1988. 53 FR 20764 (June 
6, 1988). The 1988 revisions updated procedures and criteria used in 
approving, reviewing, and withdrawing approval of section 404 State 
programs, as well as incorporating section 404 program definitions and 
section 404(f)(1) exemptions at 40 CFR part 232. Although the Agency 
made targeted revisions to 40 CFR part 233 in the early 1990s and 2000s 
in light of other statutory and regulatory changes (e.g., new 
provisions addressing treatment of Tribes in a similar manner as 
States), the Agency has not comprehensively revised these regulations 
since 1988.
    Nearly half of States and a few Tribes have expressed some level of 
interest to EPA over time in assuming the section 404 dredged and fill 
permit program, but only two States (Michigan and New Jersey) currently 
administer the program.\1\ Tribes and States have identified several 
barriers to program assumption. One of the barriers they identified is 
uncertainty regarding the scope of assumable waters. To address this, 
the Agency convened the Assumable Waters Subcommittee in

[[Page 103455]]

2015 to provide advice and develop recommendations as to how EPA could 
best clarify the scope of waters over which a Tribe or State may assume 
CWA section 404 permitting responsibilities, and the scope of waters 
over which the Corps retains CWA section 404 permitting 
responsibilities. The final report of the Subcommittee was submitted to 
the National Advisory Council for Environmental Policy and Technology 
(NACEPT), which adopted the majority recommendation in the Subcommittee 
report. In its 2017 letter to the Administrator conveying this 
recommendation, NACEPT recommended that EPA develop regulations to 
clarify assumed and retained waters.\2\
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    \1\ Florida obtained EPA's approval to assume the CWA section 
404 program on December 17, 2020. On February 15, 2024, the U.S. 
District Court for the District of Columbia vacated EPA's approval 
of Florida's program. Center for Biological Diversity v. Regan, No. 
21-119, 2024 WL 655368 (D.D.C.). Accordingly, only the impacts of 
this rule on the Michigan and New Jersey programs are discussed in 
this rule. An appeal of the district court's decision is pending. 
See No. 24-5101 (D.C. Cir.).
    \2\ Available at https://www.epa.gov/cwa-404/submission-assumable-waters-subcommittees-final-report and in the docket for 
this final rule, Docket ID No. EPA-HQ-OW-2020-0276.
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    In this rule, the Agency also responds to longstanding requests 
from Tribes and States to streamline and clarify the requirements and 
processes for the assumption and administration of a CWA section 404 
program as well as EPA oversight.\3\ The final rule facilitates Tribal 
and State assumption of the section 404 program, consistent with the 
policy of the CWA as described in section 101(b), by making program 
assumption procedures and requirements transparent and straightforward 
and addresses State-identified barriers to assumption. The final rule 
clarifies how Tribes and States can ensure their program meets the 
minimum requirements of the CWA while allowing for flexibility in the 
way these requirements may be met. It clarifies the criminal 
enforcement requirements for Tribal and State section 404 programs and 
makes a corresponding change in section 402 Tribal and State program 
requirements. The Agency is also finalizing other minor updates and 
technical revisions in 40 CFR parts 232, 233, and part 124 associated 
with Tribal and State section 404 programs. This rule is comprehensive 
in that EPA has updated all of the provisions in 40 CFR parts 232, 233, 
and 124 associated with Tribal and State 404 programs that it 
determined needed to be clarified or updated at this time. This rule 
does not reopen any other provisions in parts 232, 233, or 124.
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    \3\ See, e.g., letter from Thomas W. Easterly, Chair, Water 
Committee, The Environmental Council of States, Lucy C. Edmondson, 
Vice Chair, The Environmental Council of States, to Peter Silva, 
Assistant Administrator, Office of Water, U.S. Environmental 
Protection Agency. February 26, 2010; Letter from R. Steven Brown, 
Executive Director, The Environmental Council of States, to Nancy K. 
Stoner, Acting Assistant Administrator, Office of Water, U.S. 
Environmental Protection Agency. July 22, 2011. Subject: Progress 
Report and Recommended Actions to Further Clarify Section 404 
Assumption Application Requirements and Implementation by Tribes and 
States; Letter from Alexandria Dapolito Dunn, ECOS, Sean Rolland, 
ACWA, and Jeanne Christie, ASWM to Nancy K. Stoner, Acting Assistant 
Administrator, Office of Water, U.S. Environmental Protection 
Agency. April 30, 2014.
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II. General Information

A. What action is the agency taking?

    Assumption enables Tribes and States to administer the CWA section 
404 program, placing them in the primary decision-making position for 
permitting discharges of dredged or fill material into certain waters 
of the United States. EPA is revising and modernizing its regulations 
to clarify requirements for Tribal and State program assumption and 
administration, reduce barriers to assumption, and make technical 
corrections to facilitate Tribal and State assumption and 
administration of the section 404 program. This rule also addresses 
EPA's procedures and criteria for approving, exercising oversight, and 
withdrawing Tribal and State programs under CWA section 404(g)-(k) and 
EPA's implementing regulations at 40 CFR part 233, with one 
corresponding clarification to CWA section 402 National Pollutant 
Discharge Elimination System (NPDES) Tribal and State section 402 
permitting program requirements for criminal enforcement at 40 CFR 
123.27.

B. What is the Agency's authority for taking this action?

    The authority for this action is the Federal Water Pollution 
Control Act, 33 U.S.C. 1251 et seq., including sections 101, 301, 309, 
402, 404, 501, and 518.

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

    The costs and benefits are qualitatively discussed in the Economic 
Analysis for the Clean Water Act Section 404 Tribal and State Program 
Regulation. The benefits of the final rule are primarily attributable 
to establishing a process to develop a retained waters description, 
providing a program effective date, and providing opportunities for 
Tribal input. The incremental costs of the final rule are primarily 
attributable to a potential burden increase for Tribes to meet revised 
judicial review requirements and a potential burden increase to Tribes, 
States, and permittees from revisions that expand on existing Tribal 
opportunities to provide input. The Agency expects these benefits to 
justify the costs. The economic analysis does not quantify these 
potential incremental economic impacts, as there is very limited data 
associated with these changes on which to base estimates.

III. Background

A. Statutory and Regulatory History

1. CWA Section 404
    In 1972, Congress amended the Federal Water Pollution Control Act 
(FWPCA), or the CWA as it is commonly called,\4\ to address 
longstanding concerns regarding the quality of the nation's waters and 
the Federal Government's ability to address those concerns under 
existing law. The objective of the 1972 statutory scheme is ``to 
restore and maintain the chemical, physical, and biological integrity 
of the Nation's waters.'' 33 U.S.C. 1251(a). To achieve this objective, 
Congress provided, ``[e]xcept as in compliance with this section and 
sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the 
discharge of any pollutant by any person shall be unlawful.'' Id. at 
1311(a). A ``discharge of a pollutant'' is defined broadly to include 
``any addition of any pollutant to navigable waters \5\ from any point 
source,'' which includes the discharge of dredged or fill materials 
from a point source into waters of the United States. Id. at 1362(12).
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    \4\ The FWPCA is commonly referred to as the CWA following the 
1977 amendments to the FWPCA. Public Law 95-217, 91 Stat. 1566 
(1977). For ease of reference, EPA will generally refer to the FWPCA 
in this document as the CWA or the Act.
    \5\ The CWA uses the term ``navigable waters,'' which the 
statute defines as ``the waters of the United States, including the 
territorial seas.'' 33 U.S.C. 1362(7).
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    Section 404 of the CWA establishes a permitting program to regulate 
the discharge of dredged or fill material from a point source into 
navigable waters, unless the discharge is associated with an activity 
exempt from section 404 permitting requirements under CWA section 
404(f). Id. at 1344. Discharges of dredged materials, such as the 
redeposit of dredged material (other than incidental fallback), and 
discharges of fill materials, such as rock, sand, or dirt, may be 
associated with activities such as site development, erosion 
protection, bridges and piers, linear projects (such as pipelines), 
natural resource extraction, shoreline stabilization, and restoration 
projects.
    Section 404(a) of the CWA authorizes the Secretary of the Army to 
issue permits after notice and opportunity for public hearings to 
discharge dredged or fill material into navigable waters at specified 
disposal sites. Id. at 1344(a). The Act specifies that the Secretary of 
the Army acts through the Chief of

[[Page 103456]]

Engineers, and thus the Corps generally administers the day-to-day 
permitting program under section 404, unless EPA approves a Tribe's or 
State's request to do so. See id. at 1344(d), (g).
    The 1977 Amendments made the regulation of the discharge of dredged 
or fill material a shared responsibility of the States and the Federal 
Government.\6\ This partnership is consistent with the policy of CWA 
section 101(b) that ``preserve[s] and protect[s] the primary 
responsibilities and rights of States to prevent, reduce, and eliminate 
pollution.'' and provides for States to ``implement the permit programs 
under sections 1342 and 1344 of this title.'' \7\ To facilitate State 
assumption of the section 404 program, Congress structured requirements 
and procedures to leverage States' existing authority to administer the 
CWA section 402 program.\8\ See section III.A.4 of this preamble for 
further discussion on the specific statutory provisions that apply to 
assumed programs.
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    \6\ See, e.g., H.R. Report No. 95-830 at 52 (1977) (``Federal 
agencies are to cooperate with State and local agencies to develop 
solutions to prevent, reduce and eliminate pollution in concert with 
programs for managing water resources''). See also S. Report No. 95-
370 at 78 (1977) (``Several States have already established separate 
State agencies to control discharges of dredge or fill materials'' 
and ``The amendment encourages the use of a variety of existing or 
developing State and local management agencies.''). See also id. at 
11 (``The provision solves most real problems with section 404: (a) 
by providing general delegation authority to the States . . .''). 
The 1977 amendments also introduced exemptions and general permits. 
See 33 U.S.C. 1344(e)-(f).
    \7\ See S. Report No. 95-370 at 77 (1977) (``The committee 
amendment is in accord with the stated policy of Public Law 92-500 
of `preserving and protecting the primary responsibilities and 
rights of States or [stet] prevent, reduce, and eliminate 
pollution.' '').
    \8\ See id. at 77 (``[The amendment] provides for assumption of 
the permit authority by States with approved programs for control of 
discharges for dredged and fill material in accord with the criteria 
and with guidelines comparable to those contained in 402(b) and 
404(b)(1).''). See also id. at 77-78 (``By using the established 
mechanism in section 402 of Public Law 92-500, the committee 
anticipates the authorization of State management of the permit 
program will be substantially expedited. At least 28 State entities 
which have already obtained approval of the national pollutant 
discharge elimination system under the section should be able to 
assume the program quickly.''). A Tribe or State need not have an 
approved CWA section 402 program prior to seeking to assume 
administration of CWA section 404.
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    Under the section 404 program, discharges of dredged or fill 
material into waters of the United States are authorized by individual 
or general permits. Individual permits are processed by the permitting 
agency (i.e., the Corps, or a Tribe or State with an approved program), 
which evaluates them for consistency with the environmental criteria 
outlined in the CWA section 404(b)(1) Guidelines \9\ or corresponding 
Tribal or State laws or regulations, respectively. General permits 
developed by the permitting agency may authorize discharges that will 
have only minimal adverse effects, individually and cumulatively, to 
the aquatic environment. General permits must be consistent with the 
environmental review criteria set forth in the CWA section 404(b)(1) 
Guidelines and may be issued on a nationwide, regional, or programmatic 
basis for discharges from specific categories of activities. General 
permits allow activities that meet specified conditions to proceed with 
little or no delay. For example, a general permit can authorize 
discharges associated with minor road activities or utility line 
backfill, if the regulated activities under the general permit will 
cause only minimal adverse environmental effects when performed 
separately, will have only minimal cumulative adverse effects on the 
environment, and the discharge complies with the general permit 
conditions and the CWA section 404(b)(1) guidelines.
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    \9\ The CWA section 404(b)(1) Guidelines are regulations 
established by EPA pursuant to CWA section 404(b)(1) in conjunction 
with the Corps and codified at 40 CFR part 230. They set forth the 
substantive environmental review criteria used to evaluate permits 
for discharges of dredged and/or fill material under CWA section 
404.
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    While the Corps is the Federal permitting agency and administers 
the Federal section 404 program on a day-to-day basis, EPA also plays 
an important role in the Federal section 404 program. Both agencies 
develop and interpret policy and guidance and have promulgated section 
404 regulations.\10\ Both EPA and the Corps have enforcement 
authorities pursuant to section 404, as specified in sections 301(a), 
309, 404(n), and 404(s) of the CWA. In the context of section 404, the 
Corps does the day-to-day work of conducting jurisdictional 
determinations,\11\ making permit decisions, ensuring compliance, and 
taking enforcement actions, as necessary for the implementation of the 
Federal section 404 program.
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    \10\ The substantive and procedural requirements applicable to 
section 404 are detailed in EPA's regulations at 40 CFR parts 230 
through 233 and the Corps' regulations at 33 CFR parts 320, 323, 
325-328, 330 through 333, and 335 through 338.
    \11\ EPA decisions on jurisdiction do not constitute approved 
jurisdictional determinations as defined by the Corps regulations at 
33 CFR 331.2. EPA has final administrative authority over the scope 
of CWA jurisdiction. Administrative Authority to Construe Sec.  404 
of the Federal Water Pollution Control Act (``Civiletti 
Memorandum''), 43 Op. Att'y Gen. 197 (1979).
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    Under section 404, EPA establishes environmental criteria used in 
evaluating permit applications (i.e., the CWA section 404(b)(1) 
Guidelines) in conjunction with the Corps; determines the applicability 
of section 404(f) exemptions; approves and oversees Tribal and State 
assumption of the section 404 program (sections 404(g)-(l)); may review 
and comment on general permits, authorization under general permits, 
and individual permit applications issued by Tribes, States, or the 
Corps; may prohibit, deny, or restrict the use of any defined area as a 
disposal site (section 404(c)); and may elevate Corps issued permits 
for resolution (section 404(q)).
2. Scope of Tribal and State CWA Section 404(g) Programs
    When Congress enacted the CWA in 1972, the Corps had long been 
regulating ``navigable waters of the United States'' as defined under 
the Rivers and Harbors Act of 1899 (RHA). The CWA defined ``navigable 
waters'' to mean ``the waters of the United States, including the 
territorial seas.'' 33 U.S.C. 1362(7). The Corps' initial post-CWA 
regulations treated the two jurisdictional terms under the two 
different statutes interchangeably. 39 FR 12115, 12119 (April 3, 1974). 
In 1975, the U.S. District Court for the District of Columbia found 
that ``waters of the United States'' under the CWA exceeds the scope of 
jurisdiction under the RHA and ordered the Corps to adopt new 
regulations ``clearly recognizing the full regulatory mandate of the 
Water Act.'' Nat. Res. Def. Council, Inc. v. Callaway, 392 F. Supp. 
685, 686 (D.D.C. 1975).
    In July 1975, the Corps issued new regulations expanding the 
section 404 program in phases to cover all waters of the United States, 
in compliance with the court's order. 40 FR 31320 (July 25, 1975). 
Phase I, which was effective immediately, regulated discharges of 
dredged or fill material into coastal waters or inland navigable waters 
of the United States and wetlands contiguous or adjacent to those 
waters. Phase II, effective on July 1, 1976, addressed discharges of 
dredged or fill material into primary tributaries and contiguous or 
adjacent wetlands, as well as lakes. Phase III, effective after July 1, 
1977, addressed discharges of dredged material or fill material into 
``any navigable water [including intrastate lakes, rivers and streams . 
. .]'' Id. at 31326. The intent of the phased approach was to provide 
time for the Corps to increase staffing and resources to implement the 
expanded jurisdiction and workload. Id. at 31321 (``[i]n view of man-
power and budgetary constraints it is necessary that this program be 
phased in over a two year period.'').

[[Page 103457]]

Thus, the phases did not mean all of the waters in the final regulation 
were not waters of the United States, but rather reflected when the 
Corps would have capacity to begin regulating activities within each 
type of jurisdictional water.
    Some in Congress were concerned about breadth of the new 
interpretation of ``waters of the United States'' under the Corps' CWA 
dredged and fill regulatory program. In 1976, the House of 
Representatives passed H.R. 9560, which would have redefined the CWA 
term ``navigable waters'' specifically for the section 404 program (but 
not the rest of the CWA) as follows:

    The term ``navigable waters'' as used in this section shall mean 
all waters which are presently used, or are susceptible to use in 
their natural condition or by reasonable improvement as a means to 
transport interstate or foreign commerce shoreward to their ordinary 
high water mark, including all waters which are subject to the ebb 
and flow of the tide shoreward to their mean high water mark (mean 
higher high water mark on the west coast).

    H.R. Rep. No. 94-1107, at 63 (1976). The House Committee explained 
that the new definition would mirror the longstanding RHA section 10 
definition of ``navigable waters of the United States,'' except that it 
would omit the ``historical test'' of navigability. Id. at 19. The 
House thought that discharges of dredged or fill material occurring in 
``waters other than navigable waters of the United States . . . are 
more appropriately and more effectively subject to regulation by the 
States.'' Id. at 22.
    The Senate disagreed. It declined to redefine ``navigable waters'' 
for purposes of the section 404 program and the House bill was not 
enacted into law. Instead, the Senate addressed the desire for State 
control by passing a bill allowing States to assume section 404 
permitting authority, subject to EPA approval, in Phase II and III 
waters (as defined in the Corps' 1975 regulations quoted above). S. 
Rep. No. 95-370, at 75 (1977).\12\ After assumption, the Corps would 
retain section 404 permitting authority in Phase I waters. This general 
approach was codified in the final bill, H.R. 3199, referred to as the 
1977 CWA Amendments: it did not change the definition of ``navigable 
waters'' for the section 404 program, but it allowed States to assume 
permitting authority in ``phase 2 and 3 waters after the approval of a 
program by [EPA].'' H.R. Rep. No. 95-830, at 101 (1977).\13\ The final 
amendments included a parenthetical phrase in section 404(g)(1) that 
defined Corps-retained waters using the same language that the House 
Committee had used in its effort to limit the Corps' jurisdiction, 
other than waters that were historically used as a means to transport 
interstate or foreign commerce but no longer do so, and with the 
addition of ``wetlands adjacent thereto.'' H.R. Rep. No. 95-830, at 39. 
The preamble to the Corps' 1977 regulations described Corps-retained 
waters under section 404(g)(1) as ``waters already being regulated by 
the USACE,'' i.e., those waters the Corps regulated under section 10 of 
the RHA, ``plus all adjacent wetlands to these waters.'' 42 FR 37122, 
37124 (July 19, 1977). The legislative history suggests that the Senate 
expected widespread assumption of the section 404 program, leaving the 
Corps to regulate only RHA section 10 waters that are currently used as 
a means to transport interstate or foreign commerce, and adjacent 
wetlands. S. Rep. No. 95-370, at 77-78, reprinted in 4 Legis. History 
1977, at 710-11; see 33 U.S.C. 1344(g)(1).
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    \12\ The Senate Report is reprinted in Comm. On Env't & Publ. 
Works, 95th Cong., 4 A Legislative History of the Clean Water Act of 
1977 (Legis. History) at 635, 708 (October 1978).
    \13\ The House Report is reprinted in 3 Legis. History 1977, at 
185, 285.
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3. Overview of CWA Section 404(g) Statutory Requirements for Program 
Administration and Implementation
    Congress laid out general procedures for Tribal \14\ and State 
submissions and EPA's approval, upon which EPA has further elaborated 
in regulation, as discussed in section III.A.4 of this preamble below. 
Pursuant to section 404(g), a Tribe or State seeking to assume the 
section 404 program must submit to the EPA Administrator a full and 
complete description of the proposed program and a statement from the 
attorney general (or attorney for Tribal or State agencies that have 
independent legal counsel) that it has adequate authority to establish 
and carry out the proposed program under Tribal or State law. 33 U.S.C. 
1344(g)(1). The Administrator has up to ten days after the receipt of 
the program description and attorney general statement to provide 
copies to the Secretary of the Army and Secretary of the Interior 
(acting through the Director of the United States Fish and Wildlife 
Service), who in turn have up to 90 days from the Administrator's 
receipt of a complete program description and attorney general 
statement to provide comments to the Administrator.\15\ Id. at 
1344(g)(2)-(3).
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    \14\ The 1987 amendments to the CWA added section 518, which 
authorizes EPA to treat eligible Indian Tribes in a manner similar 
to States for a variety of purposes, including administering each of 
the principal CWA regulatory programs such as CWA section 404. 33 
U.S.C. 1377(e).
    \15\ Per the regulations, a copy is also provided to the 
National Marine Fisheries Service. See 40 CFR 233.15(d).
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    Section 404(h) of the Act identifies eight authorities EPA must 
ensure a Tribe or State has prior to approving a request to assume and 
administer a section 404 program. Id. at 1344(h)(1)(A)-(H). First, a 
Tribe or State must have the authority to issue permits that apply and 
assure compliance with the requirements of section 404 (including but 
not limited to the CWA section 404(b)(1) Guidelines); issue permits for 
a set duration which cannot exceed five years; and terminate or modify 
an issued permit. Id. at 1344(h)(1)(A). Second, the Tribe or State must 
have the authority to inspect, monitor, enter and require reports in 
association with issued permits to the same extent as required under 
section 1318 of the Act. Id. at 1344(h)(1)(B). Third, the Tribe or 
State must have the authority to provide public notice, provide an 
opportunity to comment on proposed permits, and provide an opportunity 
for a public hearing. Id. at 1344(h)(1)(C). Fourth, the Tribe or State 
must have authority to assure EPA receives notice and a copy of each 
application (unless review is waived). Id. at 1344(h)(1)(D). Fifth, the 
Tribe or State must have authority to provide notice to Tribes and 
States whose waters may be affected by the permit and for the affected 
Tribe or State to provide written recommendations. Id. at 
1344(h)(1)(E). Sixth, a Tribe or State must also have the authority to 
assure no permit will be issued if it would substantially impede 
anchorage and navigation of the navigable waters. Id. at 1344(h)(1)(F). 
Seventh, the Tribe or State must have authority to abate violations of 
permits and the program--including both civil and criminal penalties as 
well as other ways and means of enforcement. Id. at 1344(h)(1)(G). And 
lastly, the Tribe or State must have authority to assure continued 
coordination with Federal and Federal-State water-related planning and 
review processes. Id. at 1344(h)(1)(H).
    If the EPA Administrator determines that a Tribe or State that has 
submitted a program request under section 404(g)(1) has the authority 
set forth in section 404(h)(1) of the CWA, then the Administrator 
``shall approve'' the Tribe's or State's request to assume the section 
404 program. Id. at 1344(h)(2). If the Administrator fails to make a 
determination with respect to any

[[Page 103458]]

program request submitted by a Tribe or State within 120 days after the 
date of receipt of the request, the program shall be deemed approved. 
Id. at 1344(h)(3). The Act also provides for EPA to withdraw assumed 
programs that are not administered in accordance with the requirements 
of the Act. Id. at 1344(i).
    A Tribe or State assuming the section 404 program must have 
authority under Tribal or State law to assume, administer, and enforce 
the program; EPA's approval does not delegate authority to issue a 
permit on behalf of the Federal Government. By assuming administration 
of the section 404 program under section 404(g), an eligible Tribe or 
State takes on the primary responsibility of permitting discharges of 
dredged and/or fill material into certain waters of the United States 
within its jurisdiction.\16\ For section 404 permitting purposes, the 
Tribe or State must exercise jurisdiction over all assumed waters 
subject to the CWA except those waters to be retained by the Corps. 33 
U.S.C. 1344(g). The Corps retains CWA section 404 permitting authority 
for all non-assumed waters as well as RHA section 10 permitting 
authority in all waters subject to RHA section 10. For example, States 
generally do not assume CWA section 404 authority over Tribal waters or 
waters in lands of exclusive Federal jurisdiction. Tribal or State 
programs can also regulate waters that are retained by the Corps, or 
waters that are not waters of the United States, under Tribal or State 
law, but the Corps will remain the CWA 404 permitting authority for 
retained waters.
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    \16\ Legislative history makes clear that Congress did not 
intend Tribal or State assumption under section 404(g) to be a 
delegation of the permitting program. H.R. Rep. No. 95-830 at 104 
(1977). (``The Conference substitute provides for the administration 
by a State of its own permit program for the regulation of the 
discharge of dredged or fill material. . . . The conferees wish to 
emphasize that such a State program is one which is established 
under State law and which functions in lieu of the Federal program. 
It is not a delegation of Federal authority.'') The conference 
report is available at https://www.epa.gov/sites/production/files/2015-11/documents/1977_conf_rept.pdf.
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4. CWA Section 404 Tribal and State Program Regulations
    In 1980, in response to the 1977 CWA Amendments, EPA promulgated 
regulations to establish procedures and criteria to approve or 
disapprove State programs under section 404(g) and monitor State 
programs after approval. 45 FR 33290 (May 19, 1980).\17\ On June 6, 
1988, EPA revised these procedures and criteria used in approving, 
reviewing, and withdrawing approval of section 404 State programs and 
codified them at 40 CFR part 233. 53 FR 20764 (June 6, 1988). The 1988 
regulations provided States with flexibility in program design and 
administration while still meeting the requirements and objectives of 
the CWA. They also incorporated section 404 program definitions and 
section 404(f)(1) exemptions at 40 CFR part 232.\18\
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    \17\ In 1983, EPA reorganized the presentation of the permit 
programs in the CFR, including moving the regulations for 404 State 
programs to their current location at 40 CFR part 233, but made no 
substantive changes to any of the affected sections. 48 FR 14146, 
14208 (April 1, 1983).
    \18\ The 1988 regulations essentially recodified at 40 CFR part 
232 the section 404 program definitions and section 404(f)(1) permit 
exemptions in a new, separate part to eliminate any confusion about 
their applicability. The section 404 program definitions at 40 CFR 
part 232 apply to both the Federal and State administered programs.
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    The regulations at 40 CFR part 233 described the assuming Tribe's 
or State's program requirements, EPA responsibilities, approval and 
oversight of assumed programs, and requirements for review, 
modification, and withdrawal of Tribal and State programs (as 
necessary). Subpart B of the 404 State Program Regulations sets forth 
the elements of program approval, including the program description, 
the Attorney General's statement, the Memorandum of Agreement between 
the Tribe or State and EPA, and the Memorandum of Agreement between the 
Tribe or State and the Secretary. It also establishes procedures for 
approving and revising Tribal or State programs. 40 CFR 233.10 through 
233.16. Subpart C addresses Permit Requirements, subpart D lays out 
Program Operation Requirements, subpart E establishes requirements for 
Compliance Evaluation and Enforcement, and subpart F discusses Federal 
Oversight authority. Id. at 233.20-53. In subpart G, EPA lays out 
requirements and procedures for Tribal assumption, id. at 233.60-62, 
and subpart H codifies EPA's approval of Michigan and New Jersey's 
programs and incorporates certain State laws by reference. Id. at 
233.70-71. These regulations implement key principles of Tribal and 
State assumption, including that an assumed program must be consistent 
with and no less stringent than the Act and implementing regulations, 
allow for public participation, ensure consistency with the CWA 
404(b)(1) Guidelines, and have adequate enforcement authority.
    Since 1988, the Agency has made several targeted revisions and 
additions to the CWA section 404 Tribal and State program regulations 
at 40 CFR part 233. On February 13, 1992, EPA finalized a rule amending 
the regulations to reflect the newly created Environmental Appeals 
Board in Agency adjudications, including revising section 233.53 
related to withdrawal. 57 FR 5320 (February 13, 1992). In 1993, the 
Agency added subpart G to 40 CFR part 233 pursuant to CWA section 518, 
which required EPA to promulgate regulations specifying how Indian 
Tribes may qualify for treatment in a similar manner as a State (TAS) 
for purposes of assuming the section 404 program. 58 FR 8172 (February 
11, 1993).\19\ The 1993 rule also revised 40 CFR part 232 by adding new 
definitions for ``Federal Indian reservation,'' ``Indian Tribe,'' and 
``States.'' Id. The Agency further revised the subpart G regulations 
regarding Tribal eligibility at sections 233.60, 233.61, and 233.62 in 
1994 to improve and simplify the process for Tribes to obtain EPA 
approval to assume the section 404 program. 59 FR 64339, 64345 
(December 14, 1994). Under that rule, known as the Simplification Rule, 
a Tribe does not need to prequalify for TAS before requesting to assume 
the section 404 program. Instead, it can establish its TAS eligibility 
at the program approval stage, subject to EPA notice and comment 
procedures for State program approval. Id. at 64339-40. A 2005 rule on 
cross-media electronic reporting added section 233.39 on electronic 
reporting. 70 FR 59848 (October 13, 2005). EPA also codified the 
approval of the Michigan program on October 2, 1984 (49 FR 38947) and 
the New Jersey program on March 2, 1994 (59 FR 9933) in subpart H of 40 
CFR part 233.
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    \19\ When the term ``State Program'' is used in the regulations, 
it refers to an approved program run by any of the entities 
described in the definition of ``State,'' including Tribes. 58 FR 
8183 (``State means any of the 50 States, the District of Columbia, 
Guam, the Commonwealth of Puerto Rico, the Virgin Islands, American 
Samoa, the Commonwealth of the Northern Mariana Islands, the Trust 
Territory of the Pacific Islands, or an Indian Tribe, as defined in 
this part, which meet the requirements of Sec.  233.60. For purposes 
of this part, the word State also includes any interstate agency 
requesting program approval or administering an approved 
program.'').
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B. Need for Rulemaking Revisions

    Although nearly half of the States and a few Tribes have expressed 
some level of interest to EPA over time in assuming the Federal section 
404 dredged and fill permit program, only two States currently 
administer the program.\20\ In 2010 and 2011 letters to EPA, the 
Environmental Council of States

[[Page 103459]]

recommended further steps to encourage Tribal and State assumption of 
the program, remove barriers to assumption, and improve the efficiency 
of the program.\21\ While some Tribes and States have considered 
assumption, they have expressed to EPA the need for further 
clarification regarding the regulations, including which waters a Tribe 
or State may assume and which waters the Corps retains. For example, in 
a 2014 letter to then-Acting Assistant Administrator Nancy Stoner,\22\ 
State associations asked EPA to clarify the scope of assumable waters, 
citing uncertainty on this issue as a barrier to assuming the program.
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    \20\ Florida obtained EPA's approval to assume the CWA section 
404 program on December 17, 2020. On February 15, 2024, the U.S. 
District Court for the District of Columbia vacated EPA's approval 
of Florida's program. Center for Biological Diversity v. Regan, No. 
21-119, 2024 WL 655368 (D.D.C.). An appeal of the district court's 
decision is pending. See No. 24-5101 (D.C. Cir.).
    \21\ Letter from Thomas W. Easterly, Chair, Water Committee, The 
Environmental Council of States, Lucy C. Edmonson, Vice Chair, The 
Environmental Council of States, to Peter Silva, Assistant 
Administrator, Office of Water, U.S. Environmental Protection 
Agency. February 26, 2010; Letter from R. Steven Brown, Executive 
Director, The Environmental Council of States, to Nancy K. Stoner, 
Acting Assistant Administrator, Office of Water, U.S. Environmental 
Protection Agency. July 22, 2011. Subject: Progress Report and 
Recommended Actions to Further Clarify Section 404 Assumption 
Application Requirements and Implementation by Tribes and States.
    \22\ Letter from Alexandria Dapolito Dunn, ECOS, Sean Rolland, 
ACWA, and Jeanne Christie, ASWM, to Nancy Stoner, Acting Assistant 
Administrator, Office of Water, U.S. Environmental Protection 
Agency. April 30, 2014.
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    In 2015, EPA formed the Assumable Waters Subcommittee under the 
auspices of the National Advisory Council for Environmental Policy and 
Technology (NACEPT) to provide advice and develop recommendations as to 
how EPA could best clarify the scope of waters over which a Tribe or 
State may assume CWA section 404 permitting responsibilities, and the 
scope of waters over which the Corps retains CWA section 404 permitting 
responsibilities. The Subcommittee included 22 members representing 
States, Tribes, Federal agencies, industry, environmental groups, 
Tribal and State associations, and academia. The Subcommittee presented 
its recommendations to NACEPT on May 10, 2017. NACEPT endorsed the 
Subcommittee report in its entirety and submitted it to former 
Administrator Scott Pruitt on June 2, 2017, with additional notations 
and recommendations, such as a preference for clarity through 
regulation. The ``Final Report of the Assumable Waters Subcommittee, 
May 2017,'' recommended that EPA develop policies, guidance, and 
regulations to clarify assumed and retained waters.\23\
---------------------------------------------------------------------------

    \23\ Available at https://www.epa.gov/cwa-404/submission-assumable-waters-subcommittees-final-report and in the docket for 
the final rule, Docket ID No. EPA-HQ-OW-2020-0276.
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    In addition to the needs identified by Tribes and States, the 
Agency also recognized the need for other revisions, including several 
technical revisions to the regulations. For example, while the 1988 
regulations recognized that the part 124 regulations do not apply to 
Tribal or State section 404 programs, the Agency did not make 
conforming revisions. The regulation also required other revisions 
throughout 40 CFR part 233 to update cross-references, ensure 
consistent use of terminology, and facilitate efficient program 
operation.
    On June 11, 2018, the Agency published its 2018 Spring Unified 
Agenda of Regulatory and Deregulatory Actions \24\ announcing the 
Agency was considering a rulemaking to provide the first comprehensive 
revisions to the section 404 Tribal and State program regulations since 
1988.
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    \24\ Available at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201804&RIN=2040-AF83.
---------------------------------------------------------------------------

    In September 2018, the Agency sent letters to Tribal leaders and 
State governors announcing opportunities for Tribes and States to 
provide input on areas of the regulation that could benefit from 
additional clarity and revision. Tribes and States provided input on 
various topics at Tribal and State engagement sessions, including 
requests for flexibility in assuming and administering the section 404 
program and clarification on retained and assumed waters. See section 
V.E and F of this preamble for further discussion on Tribal and State 
engagement in this rule effort. In 2023, EPA held informational 
webinars for States on January 24 and for Tribes on January 2-5 and 
January 31. At these webinars, EPA provided Tribes and States with an 
update on the rulemaking effort and an overview of previously received 
Tribal and State input to EPA. EPA did not seek additional input from 
Tribes or States at the January 2023 webinars.
    The Agency announced a proposed rule to revise the CWA section 404 
Tribal and State program regulations on July 19, 2023; the Agency also 
posted a draft of the proposed rule on its website. On August 14, 2023, 
the Agency published the proposed rulemaking in the Federal Register, 
88 FR 55276, which initiated a 60-day public comment period that lasted 
through October 13, 2023. EPA held a virtual public hearing on 
September 6, 2023, and hosted input sessions for interested State and 
Tribal parties throughout August 2023, including one State input 
session on August 24, 2023, and two Tribal input sessions on August 15 
and 30, 2023. In finalizing the proposed rule, the Agency reviewed 44 
comments received on the proposed rulemaking, in addition to input 
received during pre-proposal, at the public hearing, and at the Tribal 
and State input sessions. Commenters provided a range of feedback on 
the proposal. The Agency discusses comments received and responses in 
the applicable sections of this preamble to the rule. A complete 
response to comments document is available in the docket for the rule 
(Docket ID No. EPA-HQ-OW-2020-0276).
    The rule addresses many of the issues raised by Tribes and States 
as challenges to assuming section 404, as well as drawing from EPA's 
experience working with Tribes and States pursuing assumption and in 
program oversight.

IV. Final Rule

    EPA is finalizing revisions to the CWA section 404 Tribal and State 
program regulations at 40 CFR part 233 to provide additional clarity on 
conflict of interest prohibitions, program approval procedures and 
requirements, permit requirements, program operations, compliance 
evaluation and enforcement, Federal oversight, and Tribal provisions. 
EPA is also finalizing revisions to the criminal enforcement 
requirements in 40 CFR 123.27 and 40 CFR 233.41, which apply to Tribes 
and States that administer the CWA section 402 National Pollutant 
Discharge Elimination System (NPDES) permitting program as well as the 
section 404 program.
    This section of this preamble addresses changes to seven sub-
sections in the existing subpart structure of the 40 CFR part 233 
regulations: Subpart A--General, Subpart B--Program Approval, Subpart 
C--Permit Requirements, Subpart D--Program Operations, Subpart E--
Compliance Evaluation and Enforcement, Subpart F--Federal Oversight, 
and Subpart G--Eligible Indian Tribes. Each sub-section contains topics 
covered under that subpart of the regulation. Within each topic, this 
preamble includes (1) an overview of the topic and its relevant final 
rule provision(s) and (2) a summary of the Agency's final rule 
rationale and public comments. Where applicable, some topics also 
address implementation considerations for the final rule provisions. 
This preamble is structured in a manner intended to clearly convey the 
relevant changes to the regulatory text. Following this preamble 
discussion on the final rule provisions, this section of this preamble 
also includes four sub-sections that discuss the impact of the final 
rule on existing programs, technical revisions,

[[Page 103460]]

incorporation by reference, and severability.

A. General

1. Conflict of Interest
a. Overview and What the Agency Is Finalizing
    The Agency's 1988 regulations for the section 404 Tribal and State 
program provided a general prohibition that public officers or 
employees with direct personal or pecuniary interests in a decision 
must make the interest known and not participate in such decision. In 
the proposal to this rule, the Agency proposed to clarify to whom the 
provision applies. The proposal specified that individuals who exercise 
responsibilities over section 404 permitting and programs may not be 
involved in any matters in which they have a direct personal or 
pecuniary interest. The proposal also clarified that this provision 
applies to decisions by the Tribal or State permitting agency as well 
as any entity that reviews decisions of the agency.
    After reviewing public comments, the Agency is finalizing the 
revisions to the conflict of interest provision as proposed. EPA is 
also affirming the importance of ensuring public confidence when a 
Tribe or State issues a permit to one of its agencies or departments, 
though has determined that codifying specific processes or requirements 
to address self-issuance of permits by assuming Tribes and States is 
unnecessary. This provision does not address or affect Federal or State 
court review of permitting actions.
b. Summary of Final Rule Rationale and Public Comment
    CWA section 404 does not require EPA to establish guidelines on 
conflicts of interest for Tribal or State programs. In contrast, the 
CWA requires EPA to establish guidelines for section 402 State programs 
that prohibit any entity which approves permit applications from having 
members who receive, or have during the previous two years received, a 
significant portion of their income from permit holders or applicants 
for a permit. 33 U.S.C. 1314(i)(D). EPA's section 402 regulations, 
accordingly, provide that ``State NPDES programs shall ensure that any 
board or body which approves all or portions of permits shall not 
include as a member any person who receives, or has during the previous 
2 years received, a significant portion of income directly or 
indirectly from permit holders or applicants for a permit.'' 40 CFR 
123.25(c). The provision then defines the terms ``board or body,'' 
``significant portion of income,'' ``permit holders or applicants for a 
permit,'' and ``income.'' See id. at 123.25(c)(1).
    In 1984, EPA proposed to codify the section 402 provision in its 
revisions to the section 404 Tribal and State program regulations. 49 
FR 39012 (October 2, 1984). However, EPA ultimately decided not to hold 
Tribe and State section 404 programs to the same conflict of interest 
standards as State NPDES programs because of practical differences 
between the two programs. 53 FR 20764, 20766 (June 6, 1988). At that 
time, EPA noted that NPDES discharges are usually long-term discharges, 
often from certain specific types of industrial or municipal 
facilities. Id. In contrast, discharges authorized by section 404 
typically tend to be one-time discharges and generated by a broader 
range of dischargers than NPDES, ``ranging from private citizens to 
large corporations, from small fills for boat docks or erosion 
prevention to major development projects.'' Id. EPA concluded that an 
absolute ban on anyone with a financial interest in a permit from 
serving on a board that approves permits is likely to be more difficult 
to comply with under the section 404 program because so many people 
would be considered to be financially interested in section 404 permits 
and therefore eliminated from the pool of potential board members. Id. 
Instead, EPA provided a general prohibition that public officers or 
employees with such interests in a decision shall make the interest 
known and not participate in such decision. Id.
    Similar distinctions between the sections 402 and 404 programs 
apply today. For example, if an individual needed a section 404 permit 
for the discharge of fill material into one lake to install a boat ramp 
at one point in time, EPA does not think it necessary to permanently 
preclude that individual from participating in any section 404-related 
decision-making. The Agency proposed to revise the section 404 conflict 
of interest provision, however, to further clarify to whom the 
provision applies. The purpose of this clarification was to ensure that 
individuals who exercise responsibilities over section 404 permitting 
and programs are not involved in any matters in which they have a 
direct personal or pecuniary interest. The proposal also clarified that 
this provision applies to any section 404-related decisions by the 
agency as well as any entity that reviews these decisions. For example, 
if a Tribe or State has established boards or other bodies to advise, 
oversee, or review appeals of agency decisions, members of such boards 
would be subject to this conflict of interest provision even if they 
are not officers or employees of the Tribe or State agency.
    Some commenters expressed concerns that the change in the conflict 
of interest provision weakens or injects uncertainty into the section 
404 assumption process. A commenter argued that the language is too 
``vague and [its] broad articulation makes it unclear to whom, exactly, 
this provision applies.'' EPA disagrees; as explained above, the final 
rule more clearly articulates who must provide notification of 
potential conflicts of interest and recuse themselves from any section 
404 program decision for which they have a conflict of interest, not 
just decisions that exceed a monetary threshold. In EPA's view, this 
new language is clear and does not create uncertainty; EPA presumes 
that any person participating in a matter subject to a section 404 
decision by the agency will be aware that they are doing so, and they 
should also be aware if they have personal or pecuniary interests in 
that matter. If a person is uncertain as to whether the conflict of 
interest provision applies, they can always seek guidance from the 
Tribal or State agency or from EPA.
    With respect to Tribal and State permits being issued for Tribal or 
State projects, the Agency has determined that distinct procedures to 
address these types of permits are unnecessary, as all permits must 
comply with the section 404(b)(1) Guidelines and other requirements of 
CWA section 404. The CWA does not distinguish between a Tribe or State 
with an approved program as a permittee and other permittees. Most 
State permitting entities have experience issuing permits to other 
agencies within that respective State. For example, States that 
implement the section 402 program routinely issue NPDES permits to 
various departments and agencies within that State.\25\ To the extent 
the courts have considered this matter, they have found no legal 
impediment to issuance of an NPDES permit by an authorized State to 
itself. See, e.g., West Virginia Highlands Conservancy, Inc. v. 
Huffman, 625 F.3d 159 (4th Cir. 2010). EPA is unaware of any 
significant concerns arising from the issuance of NPDES permits by 
States to other agencies or departments within that respective State.
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    \25\ One territory, the Virgin Islands, and all states except 
Massachusetts, New Hampshire, New Mexico, are authorized to 
implement at least some portion of the NPDES program. See https://www.epa.gov/npdes/npdes-state-program-information.

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[[Page 103461]]

    Likewise, to EPA's knowledge, the agencies in Michigan and New 
Jersey have been issuing section 404 permits to authorize the agencies' 
own activities and activities of other agencies within those States for 
many years without encountering any significant issues. The Florida 
Department of Environmental Protection did the same between December 
2020 and February 2024 without significant conflict of interest issues, 
to EPA's knowledge. A common example of self-issuance by one State 
agency to another is when the State water quality agency issues a 
permit to the State department of transportation for aquatic resource 
impacts associated with the construction of a State road. Similarly, 
the Corps issues CWA section 404 permits to other Federal agencies, and 
EPA does not have--nor did commenters provide--any information that 
raises concerns on the part of EPA about the integrity and neutrality 
of these intra-governmental permitting processes.
    The Agency did not propose any regulatory text on the self-issuance 
of permits. The Agency received one comment on this issue, expressing 
concern that conflicts of interest are presented when private 
developers or State agencies provide funding to the permitting 
agencies, which in turn allow the permitting agency to employ permit 
processers that will handle the permit applications submitted by the 
same private developers or State agencies. In effect, the commenter 
stated, the private developer or non-permitting State agency becomes 
the employer of their permit processor. This rule does require that all 
permits must comply with the section 404(b)(1) Guidelines and other 
requirements of CWA section 404. Tribes and States that assume the CWA 
section 404 program must also follow public notice and comment 
procedures for permit applications, thereby ensuring transparency and 
providing the public with an opportunity to submit input to address any 
concerns. Additionally, the CWA provides EPA with oversight authority 
of Tribes' and States' assumed section 404 permits, allowing Federal 
review of assumed programs in general and applications for particular 
proposed permits, including self-issued permits. To the extent EPA has 
concerns that permits are not compliant, whether based on its own 
analysis or based on comments from other agencies or interested 
parties, EPA may object to the issuance of permits.
    Tribes, States, and EPA have the discretion to implement additional 
measures if, in a particular circumstance, they desire to further 
ensure public confidence that certain permits are consistent with the 
CWA and not the subject of special considerations. For example, an 
assuming Tribe or State could separate its permit-issuing function from 
departments or offices that apply for and receive permits or expand 
public participation requirements for self-issued permits. EPA and an 
assuming Tribe or State could also agree in the Memorandum of Agreement 
that EPA would exercise heightened oversight (i.e., would not waive 
review) over permits issued by and to Tribal or State agencies or 
departments. EPA encourages Tribes and States to implement measures to 
ensure transparency in the permitting process based on the specific 
structures and procedures of their agencies. For all of these reasons, 
EPA does not find that it is necessary to include in this regulation 
any additional processes or requirements to address self-issuance of 
permits by assuming Tribes and States.
2. Compliance With the CWA 404(b)(1) Guidelines
a. Overview and What the Agency Is Finalizing
    The CWA section 404(b)(1) Guidelines are the substantive 
environmental criteria used to evaluate discharges of dredged and/or 
fill material under CWA section 404. EPA may approve a Tribal or State 
request for assumption only if EPA determines, among other things, that 
the Tribe or State has authority to issue permits that comply with the 
CWA 404(b)(1) Guidelines. 33 U.S.C. 1344(h)(1)(A)(i). The regulations 
already require that CWA section 404 permits issued by an assuming 
Tribe or State must comply with the CWA 404(b)(1) Guidelines. However, 
stakeholders have requested clarity regarding the way in which a Tribe 
or State wishing to assume the CWA section 404 program can demonstrate 
that it has authority to issue permits that ``apply, and assure 
compliance with'' the CWA 404(b)(1) Guidelines. See id. EPA did not 
propose any new regulatory text on compliance with the CWA 404(b)(1) 
Guidelines, because the Agency did not want to unintentionally 
constrain how Tribes and States can demonstrate their authority. But in 
response to stakeholder requests, EPA discussed various approaches that 
Tribes and States can undertake to demonstrate that they have 
sufficient authority to issue permits that apply and assure compliance 
with the CWA 404(b)(1) Guidelines in this preamble to the proposed 
rule. After reviewing public comments, the Agency is finalizing its 
proposed approach.
b. Summary of Final Rule Rationale and Public Comment
    Pursuant to CWA section 404(h)(1)(A)(i), EPA may approve a Tribal 
or State request for assumption only if EPA determines, among other 
things, that the Tribe or State has authority ``[t]o issue permits 
which--(i) apply, and assure compliance with, any applicable 
requirements of this section, including, but not limited to, the 
guidelines established under subsection [404](b)(1). . . .'' The CWA 
404(b)(1) Guidelines also direct that ``no discharge of dredged or fill 
material shall be permitted'' if there is a less environmentally 
damaging practicable alternative, so long as the alternative does not 
have other significant adverse environmental consequences (40 CFR 
230.10(a)); if it would cause or contribute to violations of applicable 
water quality standards taking into account disposal site dilution and 
dispersion (40 CFR 230.10(b)(1)); if it would violate any applicable 
toxic effluent standard or prohibition (40 CFR 230.10(b)(2)); if it 
would cause or contribute to significant degradation of waters of the 
United States (40 CFR 230.10(c)); or if it would jeopardize the 
continued existence of listed endangered or threatened species under 
the Endangered Species Act of 1973 or result in the likelihood of the 
destruction or adverse modification of designated critical habitat (40 
CFR 230.10(b)(3)); or unless appropriate and practicable steps have 
been taken to minimize potential impacts of the discharge on the 
aquatic ecosystem. See 40 CFR 230 Subpart H; see also section IV.B.4 of 
this preamble for further discussion on mitigation.
    Consistent with CWA section 404(h)(1)(A)(i), the section 404 Tribal 
and State program regulations require that assuming Tribes and States 
may not impose conditions less stringent than those required under 
Federal law (40 CFR 233.1(d)); that Tribes and States may not issue 
permits that do not comply with the requirements of the Act or this 
part of the regulations, including the CWA 404(b)(1) Guidelines (40 CFR 
233.20(a)); that ``[f]or each permit the Director shall establish 
conditions which assure compliance with all applicable statutory and 
regulatory requirements, including the 404(b)(1) Guidelines . . .'' (40 
CFR 233.23(a)); and that ``The Director will review all applications 
for compliance with the 404(b)(1) Guidelines and/or equivalent State 
environmental criteria as well as any other applicable State laws or

[[Page 103462]]

regulations'' (40 CFR 233.34(a)). Because the regulations already 
require that CWA section 404 permits issued by an assuming Tribe or 
State must comply with the CWA 404(b)(1) Guidelines, EPA did not 
propose adding to the regulatory text.
    Several commenters asserted that the only way to ensure that Tribes 
and States have sufficient authority to issue permits that apply and 
assure compliance with the CWA 404(b)(1) Guidelines is to require 
Tribes and States to adopt the CWA 404(b)(1) Guidelines verbatim or 
incorporate them by reference into the Tribal or State program. To the 
extent these commenters assert that adoption or incorporation is the 
most straightforward way for a Tribe or State to demonstrate sufficient 
authority, EPA agrees. However, while a Tribe or State may choose to 
adopt verbatim or incorporate into their programs by reference the CWA 
404(b)(1) Guidelines or other Federal requirements, nothing in the CWA 
requires that they do so. See 49 FR 39012, 39015 (October 2, 1984); cf. 
40 CFR 123.25(a) Note.
    Requiring Tribes and States to adopt or incorporate the CWA 
404(b)(1) Guidelines would complicate efforts by Tribes and States to 
impose more stringent requirements as part of their CWA section 404 
programs. By not requiring that Tribes and States adopt verbatim or 
incorporate by reference the CWA 404(b)(1) Guidelines, Congress allowed 
leeway for Tribes and States to craft a Tribal or State program 
consistent with circumstances specific to that Tribe or State, so long 
as their permits will assure compliance with the CWA 404(b)(1) 
Guidelines at least as stringently as permits issued by the Corps.
    This flexibility is consistent with the nature of the CWA 404(b)(1) 
Guidelines themselves. Recognizing that a CWA section 404 permit may be 
required for a variety of discharges into a wide range of aquatic 
ecosystems, EPA explained in promulgating the CWA 404(b)(1) Guidelines 
that they are intended to provide ``a certain amount of flexibility,'' 
consisting of tools for evaluating proposed discharges, rather than 
numeric standards. 45 FR 85336, 85336 (December 24, 1980). EPA further 
explained in this preamble to the Guidelines: ``[c]haracteristics of 
waters of the United States vary greatly, both from region to region 
and within a region. . . As a result, the Guidelines concentrate on 
specifying the tools to be used in evaluating and testing the impact of 
dredged or fill material discharges on waters of the United States 
rather than on simply listing numerical pass-fail points.'' See id.; 
see also 40 CFR 230.6.
    EPA is not adding further regulatory text addressing how Tribes and 
States may ensure compliance with the CWA 404(b)(1) Guidelines. The 
section 404 Tribal and State program regulations as well as CWA section 
404(h)(1)(A)(i) already require that Tribal and State permits and 
environmental review criteria apply and assure compliance with the CWA 
404(b)(1) Guidelines while allowing for flexibility as to how Tribes 
and States wishing to assume implementation of the CWA section 404 
program can demonstrate that they have sufficient authority to apply 
and assure compliance with the CWA 404(b)(1) Guidelines.
    Tribes and States can choose to adopt verbatim or incorporate by 
reference the CWA 404(b)(1) Guidelines. To the extent a Tribe or State 
wishing to assume the CWA section 404 program desires to incorporate 
more stringent requirements or otherwise desires to craft a program 
more tailored to that Tribe's or State's circumstances, the Tribe or 
State should demonstrate clearly in its program description that it has 
sufficient authority to apply and assure compliance with the CWA 
404(b)(1) Guidelines. For example, a Tribe or State could provide a 
crosswalk between the Tribal or State program and the CWA 404(b)(1) 
Guidelines or a similar written analysis of the Tribal or State program 
authority, which it could include in its request to assume the program. 
A Tribe or State also could develop and include with its program 
submission a permit checklist or other documentation to be used in 
connection with each permit decision to document on a case-by-case 
basis how each permit decision applies the CWA 404(b)(1) Guidelines. 
Where a Tribe's or State's request for assumption relies upon an 
already established and ongoing dredged and fill permit program under 
Tribal or State law, that Tribe or State could supplement its program 
description by demonstrating that the terms and conditions of permits 
for discharges into waters of the United States that were issued 
pursuant to the preexisting Tribal or State program complied with the 
CWA 404(b)(1) Guidelines comparably with or more stringently than 
Federal permits issued by the Corps for the same discharge.
    Several commenters discussed the portion of the preamble to the 
proposed rule in which EPA suggested various ways that Tribes and 
States could demonstrate authority to issue permits that apply and 
assure compliance with the CWA 404(b)(1) Guidelines' prohibition on 
authorization of a discharge if the discharge would jeopardize the 
continued existence of listed endangered or threatened species under 
the Endangered Species Act of 1973 (listed species) or result in the 
likelihood of the destruction or adverse modification of designated 
critical habitat (40 CFR 230.10(b)(3)). Many of these commenters 
asserted that the final rule must ensure that listed species and 
critical habitat receive the same protections under a Tribal or State 
program as they would if the Corps had processed the permit and engaged 
in consultation with the U.S. Fish and Wildlife Service or National 
Marine Fisheries Service (the Services) pursuant to section 7 of the 
Endangered Species Act (ESA). These commenters proposed various ways of 
ensuring protection of listed species and critical habitat, including 
requiring the Tribes and States to undertake ESA section 7 consultation 
themselves or requiring EPA to consult with the Services on each Tribal 
or State permit as part of EPA's oversight. Several commenters asserted 
that EPA must consult with the Services prior to approving a Tribal or 
State program. A few commenters noted that Tribal and State permittees 
must comply with the take provisions of section 10 of the ESA, and one 
commenter recommended that EPA continue to pursue an approach similar 
to that associated with EPA's approval of Florida's section 404 program 
whereby EPA and the U.S. Fish and Wildlife Service engaged in a 
programmatic consultation under ESA section 7 resulting in an 
incidental take permit covering all permittees in Florida. Other 
commenters expressed concerns about the protection afforded listed 
species and critical habitat by Florida's or other State section 404 
programs.
    EPA's approval of Florida's section 404 program is the subject of 
ongoing litigation (see Center for Biological Diversity v. Regan, No. 
24-5101 (D.C. Cir.), and will not be addressed here. EPA's obligation 
to undertake ESA section 7 consultation in connection with its approval 
and/or oversight of a Tribal or State CWA section 404 program is beyond 
the scope of this rulemaking.
    To the extent commenters assert that assuming Tribal and State 
programs must incorporate the procedural requirements of the ESA, 
issuance of a permit by a Tribe or State pursuant to an assumed program 
under CWA section 404(g) is not a Federal action subject to the 
procedural requirements of the ESA. See H.R. Rep. No. 95-830 at 104 
(1977) (``The conferees wish to emphasize that such a State program is

[[Page 103463]]

one which is established under State law and which functions in lieu of 
the Federal program''); see also Chesapeake Bay Foundation v. Virginia 
State Water Control Bd., 453 F. Supp. 122 (E.D. Va. 1978).
    Although decisions by Tribal and State section 404 programs do not 
trigger the Federal consultation process laid out in ESA section 7, 
Tribes and States must demonstrate that they have sufficient authority 
to issue permits that comply and assure compliance with 40 CFR 
230.10(b)(3), which states that ``[no] discharge of dredged or fill 
material may be permitted if it . . . [j]eopardizes the continued 
existence of [threatened or endangered species listed under the ESA]'' 
or would adversely modify critical habitat. 40 CFR 230.10(b)(3). A few 
commenters asserted that the discussion in the preamble to the proposed 
rule regarding how Tribes and States could demonstrate compliance with 
this aspect of the CWA 404(b)(1) Guidelines was too generalized and/or 
insufficiently prescriptive or protective. On the other hand, one 
commenter asserted that EPA should defer to Tribal and State expertise. 
The discussion in the preamble to the proposed rule was not intended to 
be exhaustive or to provide a checklist. Tribes and States retain 
flexibility to tailor their programs consistent with the types of 
listed species and critical habitat within their jurisdictions.
    EPA recommends that Tribes and States include in the program 
submission provisions and procedures to protect listed species and 
habitat. EPA recommends that Tribes and States develop a method for 
identifying the listed species and areas of designated critical habitat 
within their geographic boundaries and for determining whether 
federally listed species or critical habitat are present or would be 
affected by a particular discharge. Tribes and States also could 
develop processes for ensuring that their identification of federally 
listed species and designated critical habitat remains up to date as 
well as processes to avoid impacts to these resources.
    EPA continues to encourage Tribes and States to proactively 
coordinate with the relevant Services' regional or field offices when 
developing their programs. To the extent that Tribes and States 
coordinate with the Services as they develop their programs, such work 
would help inform the Services' review opportunity to comment to EPA on 
a Tribal or State program submission. See 33 U.S.C. 1344(g)(2) and 
1344(h)(1); see also 40 CFR 233.15(d) and (g). Such work would also 
facilitate EPA's coordination with the Services on permits for which 
EPA has not waived review. See 33 U.S.C. 1344(j).
    Several Tribes expressed concern that the preamble to the proposed 
rule did not provide sufficient guidance regarding how a Tribe or State 
could demonstrate that it has sufficient authority to apply and assure 
compliance with subpart F of the CWA 404(b)(1) Guidelines. Pursuant to 
subpart F (40 CFR 230.50 through 230.54), the permit issuing authority 
should consider potential effects on human use characteristics, 
including ``areas designated under Federal and State laws or local 
ordinances to be managed for their aesthetic, educational, historical, 
recreational, or scientific value,'' when making the factual 
determinations and the findings of compliance or non-compliance under 
the Guidelines. 40 CFR 230.54(a). These human use considerations 
encompass, among other things, uses and values of aquatic resources 
that are important to Tribes and local communities. For example, 
section 230.51 in subpart F describes considerations regarding 
potential impacts of dredged or fill material on recreational and 
commercial fisheries, consisting of ``harvestable fish, crustaceans, 
shellfish, and other aquatic organisms.'' Id. at 230.51(a). Section 
230.52 includes considerations regarding the impact of dredged or fill 
material on water-related recreation, including harvesting of resources 
and non-consumptive activities such as canoeing on the water. Section 
230.53 addresses potential impacts on aesthetic values of aquatic 
ecosystems and notes that: ``The discharge of dredged or fill material 
can mar the beauty of natural aquatic ecosystems by degrading water 
quality, creating distracting disposal sites, including inappropriate 
development, encouraging unplanned and incompatible human access, and 
by destroying vital elements that contribute to the compositional 
harmony or unity, visual distinctiveness, or diversity of an area.'' 
Id. at 230.53(b). Section 230.54 discusses considerations regarding 
``national and historical monuments, national seashores . . . and 
similar preserves'' and where the discharge may ``modify the aesthetic, 
educational, historical, recreational and/or scientific qualities 
thereby reducing or eliminating the uses for which such sites are set 
aside and managed.'' Id. at 230.54(b). Collectively or individually, 
significantly adverse effects of the discharge of pollutants on these 
human uses may contribute to the significant degradation of the waters 
of the United States. Id. at 230.10(c).
    As with other aspects of the CWA 404(b)(1) Guidelines, Tribes and 
States have the option of adopting 40 CFR 230.50 through 230.54, but 
they are not required to do so. To demonstrate sufficient authority to 
apply and assure compliance with subpart F of the CWA 404(b)(1) 
Guidelines, a Tribe or State should include in its program description 
its process and permit review criteria for evaluating and addressing 
potential permit impacts on historic properties and properties with 
cultural significance. Such a process could include any agreements with 
and/or procedures for formal or informal coordination and communication 
with the State Historic Preservation Officer or Tribal Historic 
Preservation Office. The Tribe or State also could develop an agreement 
with the relevant State Historic Preservation Officer or Tribal 
Historic Preservation Office to establish a process to identify 
historic properties that may be impacted by the Tribe's or State's 
issuance of section 404 permits and a process for resolving adverse 
effects. Such an agreement could include the identification of relevant 
parties with an interest in potential impacts on historic properties 
(these could correspond to entities that would have a consultative role 
under the National Historic Preservation Act regulations), duties and 
responsibilities of the identified parties, and a description of the 
process to consider any impacts, including the determination and 
resolution of adverse effects on historic properties. Such an agreement 
could facilitate EPA's review of a Tribal or State permit's impacts on 
historic properties, consistent with EPA's oversight of the permits, 
for which review has not been waived, and authorized program. See 40 
CFR 233.31. The program description would contain any such 
agreement(s).
    The foregoing, of course, are only examples, and there are likely 
other means by which a Tribe or State could demonstrate that it has 
sufficient authority to issue permits that comply and assure compliance 
with the CWA 404(b)(1) Guidelines. EPA will avoid unnecessarily 
limiting Tribes and States by imposing a single vehicle or approach for 
implementing the CWA 404(b)(1) Guidelines. EPA recommends that an 
assuming Tribe or State consider incorporating into its program 
description ways to identify and consider impacts to other human use 
characteristics, such as impacts to waters that support subsistence 
fishing by the local population or that may have significance for 
religious or treaty purposes. These could include, for

[[Page 103464]]

example, formalizing a process for coordinating with local communities 
to identify and understand how waters that may be affected by 
discharges of dredged or fill material are used for subsistence 
fishing, religious purposes, or other uses important to the local 
community. Such procedures would demonstrate the Tribe or State's 
ability to fulfill the intent of the human use characteristics 
provisions of the section 404(b)(1) Guidelines.
    Some Tribes assert that compliance with the CWA 404(b)(1) 
Guidelines is not an adequate substitute for the input that Tribes can 
provide through consultation procedures of the National Historic 
Preservation Act. While the Federal consultation procedures under 
section 106 of the National Historic Preservation Act do not apply to 
permits issued by a Tribe or State,\26\ the final rule expands upon 
existing opportunities for Tribal input. Section IV.F of this preamble 
provides detailed discussion on opportunities whereby Tribes may 
request that EPA review permits that may affect their Tribal rights or 
interests within or beyond reservation boundaries and Tribes that have 
status of treatment in a similar manner as a State (TAS) shall receive 
notice and an opportunity to provide recommendations as an ``affected 
State'' for purposes of 40 CFR 233.31. See section IV.F of this 
preamble. In addition, EPA review of Tribal or State permit 
applications may not be waived for ``[d]ischarges within critical areas 
established under State or Federal law, including but not limited to . 
. . sites identified or proposed under the National Historic 
Preservation Act. . . .'' 40 CFR 233.51(b)(6). Moreover, as discussed 
above, Tribal and State permits must assure compliance with all 
applicable statutory and regulatory requirements, including the section 
404(b)(1) Guidelines as described above. Finally, assuming Tribes and 
States must provide for judicial review of Tribe- or State-issued 
permits, which provides another opportunity for interested parties to 
raise concerns about a permit's failure to comply with the 404(b)(1) 
Guidelines. See section IV.C.2 of this preamble.
---------------------------------------------------------------------------

    \26\ See Menominee Indian Tribe of Wisconsin v. Envt'l 
Protection Agency, 947 F.3d 1065, 1073-74 (7th Cir. 2020).
---------------------------------------------------------------------------

3. No Less Stringent Than
a. Overview and What the Agency Is Finalizing
    The Agency's regulations provide that Tribes and States may not 
impose requirements less stringent than Federal requirements. 40 CFR 
233.1(d). While Tribes and States have flexibility to determine how to 
best integrate sufficient authority into their programs, there are 
limits to this flexibility not explicitly spelled out in the prior 
regulations. Accordingly, the Agency proposed to codify its 
longstanding principle that a Tribe or State cannot comply with its 
obligation pursuant to section 510 of the CWA to impose requirements no 
less stringent than Federal requirements by making one requirement more 
stringent than federally required as a tradeoff for making another 
requirement less stringent. The Agency also proposed to clarify its 
interpretation that an assuming Tribe or State must demonstrate that it 
will at all times have authority to issue permits for all non-exempt 
discharges of dredged and fill material to all waters of the United 
States within its jurisdiction except for discharges to the subset of 
waters of the United States (``retained waters'') over which the Corps 
retains administrative authority pursuant to CWA section 404(g)(1). To 
clarify the role of Federal interpretive guidance in Tribal or State 
programs, such as the Corps' General Regulatory Policies in 33 CFR part 
320 or Regulatory Guidance Letters, EPA further proposed to clarify 
that Tribes and States are not required to incorporate the Corps' or 
EPA's interpretive guidance into their CWA section 404 programs. 
Finally, EPA proposed to codify its long-held position that the Tribe 
or State is responsible for administering all portions of a CWA section 
404(g) program. Specifically, where the CWA 404(b)(1) Guidelines or 
other regulations require that the District Engineer or the Corps of 
Engineers make certain decisions or take certain actions, the proposed 
rule provides that the Tribal or State agency will carry out those 
responsibilities for purposes of the assumed program. After reviewing 
public comments, the Agency is finalizing this approach as proposed.
b. Summary of Final Rule Rationale and Public Comment
    Section 510 of the CWA provides: ``[i]f an effluent limitation, or 
other limitation, effluent standard, prohibition, pretreatment 
standard, or standard of performance is in effect under this chapter, 
such State . . . may not adopt or enforce any effluent limitation, or 
other limitation, effluent standard, prohibition, pretreatment 
standard, or standard of performance which is less stringent. . . .'' 
33 U.S.C. 1370. Consistent with CWA section 510, EPA's regulations at 
40 CFR 233.1(d) require: ``Any approved State Program shall, at all 
times, be conducted in accordance with the requirements of the Act and 
of this part. While States may impose more stringent requirements, they 
may not impose any less stringent requirements for any purpose.'' See 
also 33 U.S.C. 1344(h)(1)(A)(i); 40 CFR 233.20(a), 233.23(a), 
233.34(a).
    Broadly stated, the goal of those portions of the CWA and its 
implementing regulations that govern Tribal and State assumption of the 
CWA section 404 program is to ensure that an assuming Tribe or State 
will issue permits that assure compliance with the CWA at least as 
stringently as would a permit for the same discharge if issued by the 
Corps. Section 404(h)(1)(A)(i) of the CWA and 40 CFR 233.1(d), 
233.20(a), 233.23(a), and 233.34(a) expressly require that permits 
issued by an assuming Tribe or State must apply and assure compliance 
with the CWA 404(b)(1) Guidelines, as discussed in section IV.A.2 of 
this preamble. In addition, Tribes and States must demonstrate that 
their section 404 programs will cover at least the same discharges as 
the CWA and will issue permits that are not less stringent than other 
aspects of the CWA beyond the CWA 404(b)(1) Guidelines.
    Commenters generally agreed that permits issued by Tribes or States 
may not be less stringent than a permit for the same discharge if 
issued by the Corps of Engineers. One commenter characterized this 
concept as establishing a strong Federal ``floor'' for Tribal and State 
permits. As with the CWA 404(b)(1) Guidelines, Tribes and States 
seeking to assume the section 404 program may choose but are not 
required to adopt verbatim or incorporate by reference relevant 
portions of the CWA or its implementing regulations. Where a Tribe or 
State chooses not to adopt or incorporate by reference portions of the 
CWA or its implementing regulations, the Tribal or State program 
description should describe how the Tribal or State program is no less 
stringent than those provisions.
1. A Tribe or State Cannot Comply With Its Obligation Pursuant to 
Section 510 of the CWA To Impose Requirements No Less Stringent Than 
Federal Requirements by Trading Off More Stringent Requirements for 
Less Stringent Requirements
    Most commenters supported EPA's proposal to codify the principle 
prohibiting tradeoffs between more lenient and more stringent 
requirements. However, one commenter did not support EPA's proposed 
approach and expressed concern that

[[Page 103465]]

the proposed approach would deprive Tribes and States of flexibility. 
The Agency agrees that Tribes and States should have flexibility to 
determine how best to ensure that their permits will apply and assure 
compliance with the CWA 404(b)(1) Guidelines and be no less stringent 
than Federal requirements. That said, EPA has long stated that 
flexibility does not extend to tradeoffs among requirements, as 
discussed, in the 1988 preamble to the CWA section 404 Tribal and State 
program regulations. See 53 FR 20764, 20766 (June 6, 1988).
    EPA is finalizing its proposal to codify this longstanding 
principle prohibiting tradeoffs between more lenient and more stringent 
requirements in its section 404 Tribal and State program regulations. 
As noted above, this clarification does not represent a change in EPA's 
longstanding position. Additionally, this principle is also articulated 
in EPA's regulations governing the section 402 program. See 40 CFR 
123.25(a), Note. EPA sees no reason not to provide similar clarity for 
section 404 programs.
2. An Assuming Tribe or State Must Regulate at Least All Non-Exempt 
Discharges to Navigable Waters Within Its Jurisdiction, Except for 
Discharges to Waters Retained by the Corps
    In addition to codifying its longstanding principle against 
tradeoffs, EPA is clarifying that Tribes and States wishing to assume 
the section 404 program must demonstrate consistency with aspects of 
the CWA beyond the CWA 404(b)(1) Guidelines. While a Tribe or State may 
regulate discharges that are not covered by the CWA, a Tribal or State 
program must regulate at least all non-exempt discharges of dredged and 
fill material to all navigable waters as defined by CWA section 502(7) 
(``waters of the United States'') within the Tribe's or State's 
jurisdiction except for discharges to the subset of retained waters. 
This means that a Tribal or State program may not exempt discharges 
other than those exempted pursuant to CWA section 404(f). Similarly, 
when a Tribe or State assumes administration of the CWA section 404 
program, it assumes administrative authority to permit discharges to 
all waters of the United States within its jurisdiction except for the 
subset of retained waters.\27\ See 33 U.S.C. 1344(g)(1). As noted 
earlier, EPA has final administrative authority over the scope of 
``waters of the United States.'' See Civiletti Memorandum.
---------------------------------------------------------------------------

    \27\ As noted in the 1988 preamble, ``States may have a program 
that is more . . . extensive than what is required for an approvable 
program.'' 53 FR at 20764, 20766 (June 6, 1988) (emphasis added). As 
described elsewhere in this preamble, Tribes and States may not 
assume less than what is required under the CWA.
---------------------------------------------------------------------------

    The subset of waters of the United States over which the Corps 
retains administrative authority pursuant to CWA section 404(g)(1) is 
identified in the Memorandum of Agreement between the assuming Tribe or 
State and the Corps which, among other things, includes a ``description 
of waters of the United States within the State over which the 
Secretary retains jurisdiction.'' 40 CFR 233.14(b)(1). See section 
IV.B.2 of this preamble for further discussion on retained waters. To 
the extent the coverage of the CWA as defined by the term ``waters of 
the United States'' \28\ changes following court decisions or 
rulemaking, assumption of the section 404 program by a Tribe or State 
cannot result in a situation in which neither the assuming Tribe or 
State nor the Corps has authority to issue a permit for discharges to a 
water of the United States. The requirement that Tribes or States at 
all times have authority to issue permits for all non-exempt discharges 
to all waters of the United States within their jurisdiction is 
therefore generally not governed by 40 CFR 233.16(b), which addresses 
the modification of Federal statutes or other regulations.
---------------------------------------------------------------------------

    \28\ See 33 U.S.C. 1311(a), 1362(7).
---------------------------------------------------------------------------

    As with the CWA 404(b)(1) Guidelines (see section IV.A.2 of this 
preamble), Tribes and States seeking to assume the section 404 program 
need not adopt verbatim or incorporate by reference relevant portions 
of the CWA or its implementing regulations, though they may do so. EPA 
recommends that Tribes and States identify in the program description 
(40 CFR 233.10(b) and 233.11) and Attorney General Statement (40 CFR 
233.10(c) and 233.12) those provisions of Tribal or State law that will 
ensure that the Tribe or State will at all times have sufficient 
authority to issue permits for non-exempt discharges to all waters of 
the United States within its jurisdiction except for discharges to the 
subset of waters of the United States over which the Corps retains 
administrative authority following assumption. A Tribal or State 
section 404 program may regulate discharges into Tribal or State waters 
in addition to the jurisdictional CWA waters as well as issue permits 
for discharges into waters retained by the Corps; however, the Corps 
remains the CWA section 404 permitting authority for retained waters.
3. Tribes and States May Adopt Federal Interpretive Guidance and the 
Corps' General Regulatory Policies, But Are Not Required To Do So
    EPA also is clarifying here the role of Federal interpretive 
guidance in Tribal or State programs, such as the Corps' Regulatory 
Guidance Letters or other interpretive statements issued by the Corps 
and/or EPA. Nothing in the CWA or 40 CFR part 233 requires that Tribes 
or States wishing to assume the section 404 program formally adopt or 
incorporate into their programs Regulatory Guidance Letters or other 
formal interpretive statements issued by the Corps and/or EPA. Federal 
agency interpretive guidance may often be helpful in providing 
transparency, clarity, and consistency in implementation of the Federal 
program. However, it does not have the effect of legally binding 
regulation and may not necessarily be applicable, for example, where 
Tribal or State requirements are more stringent than Federal 
requirements or the guidance references a procedure not part of the 
Tribal or State program. Moreover, Federal agency interpretive guidance 
may evolve over time with changes in case law and other circumstances.
    Accordingly, while assuming Tribes and States may consider relevant 
Federal agency interpretive guidance and may choose to adopt it to aid 
in program implementation, they are not required to formally adopt 
Federal agency interpretive guidance. EPA recommends that Tribes and 
States provide transparency by describing as part of the Tribal or 
State program description (40 CFR 233.10(b) and 233.11) if and how they 
will consider Federal agency interpretative guidance.
    Several commenters asserted that, in order to issue permits that 
are not less stringent than permits that would be issued by the Corps 
for the same discharge, Tribes and States assuming the section 404 
program must incorporate the procedural and substantive provisions of 
the Endangered Species Act, the National Historic Preservation Act, the 
National Environmental Protection Act and other statutes that apply 
generally to Federal actions, including to permits issued by the Corps 
under CWA section 404. Issuance of a permit by a Tribe or State 
pursuant to an assumed program under CWA section 404(g), however, is 
not subject to the requirements for Federal actions under those 
statutes. See H.R. No. 95-830 at 104 (1977) (``The conferees wish to 
emphasize that such a State program is one which is established under 
State law and which

[[Page 103466]]

functions in lieu of the Federal program''); See Chesapeake Bay 
Foundation v. Virginia State Water Control Bd., 453 F. Supp. 122 (E.D. 
Va. 1978). That said, while the Federal statutory procedural 
requirements may not apply directly to Tribal or State actions, CWA 
section 404(h)(1)(A)(i) requires that Tribal and State programs have 
authority to issue permits that apply and assure compliance with the 
CWA 404(b)(1) Guidelines, including those provisions that limit permit 
issuance to the least environmentally damaging practicable alternative, 
prohibit permitting of a discharge that would jeopardize the continued 
existence of listed endangered or threatened species under the 
Endangered Species Act, and require consideration of potential effects 
on human use characteristics, including ``areas designated under 
Federal and State laws or local ordinances to be managed for their 
aesthetic, educational, historical, recreational, or scientific 
value.'' See section IV.A.2 of this preamble for further discussion on 
compliance with the CWA 404(b)(1) Guidelines.
    Tribal or State adoption of the Corps' General Regulatory Policies 
(33 CFR part 320) (including the Corps' ``public interest review'' at 
33 CFR 320.4(a)) is also not required. The CWA makes no reference to 
the Corps' General Regulatory Policies, which, by their own terms, 
apply to a range of the Corps' regulatory authority, including, but not 
limited to, CWA section 404 (see 33 CFR 320.2). As described elsewhere, 
the substantive environmental criteria used to evaluate discharges of 
dredged and fill material under CWA section 404 are set forth in the 
CWA 404(b)(1) Guidelines. See 40 CFR 230.2. Tribes or States are free, 
however, to incorporate elements of the Corps' General Regulatory 
Policies into their permitting procedures if they choose to do so.
4. Tribes and States That Assume the CWA Section 404 Program Are 
Responsible for Administering All Portions of the Section 404 Program
    Finally, EPA is codifying its long-held position that the Tribe or 
State is responsible for administering all portions of a section 404(g) 
program. Certain regulations implementing CWA section 404 were drafted 
to refer to the authority of the Corps of Engineers without accounting 
for Tribal or State assumption of the section 404 program. EPA is 
clarifying that, when a Tribe or State assumes administration of the 
section 404 program, the Tribe or State becomes responsible for all of 
the actions under section 404 for which the Corps would be responsible 
if it were to issue the permit. The rule clarifies that it is the 
assuming Tribe or State that is responsible for administering all 
sections of the approved section 404 program. See section IV.B.4 of 
this preamble for further discussion on mitigation.
    EPA also clarifies here that only Tribal, State, or interstate 
agencies may assume administration of the section 404 program. While a 
Tribe or State may establish general permits for discharges of dredged 
or fill material for categories of similar activities that will cause 
only minimal adverse environmental effects individually or 
cumulatively, they may not delegate permitting responsibility to non-
Tribal or non-State entities, such as counties or municipalities. 33 
U.S.C. 1344(g)(1); 40 CFR 233.2 (definition of ``State'').

B. Program Approval

1. Partial Program Assumption
a. Overview and What the Agency Is Finalizing
    Under 40 CFR 233.1(b), assuming Tribes or States must have 
authority to regulate all non-exempt discharges to all waters of the 
United States within their borders except for the subset of waters of 
the United States over which the Corps retains administrative authority 
pursuant to CWA section 404(g)(1). Although some States have expressed 
an interest in being able to assume the authority to issue section 404 
permits for just a portion of the section 404 regulated activities, or 
a portion of the assumable waters within the Tribe's or State's 
jurisdiction, the Agency proposed to maintain its longstanding position 
that the statute does not authorize partial assumption. After 
considering public comments, EPA is finalizing its proposed approach to 
maintain the text at section 233.1(b) which clarifies that partial 
programs are not approvable under section 404.
b. Summary of Final Rule Rationale and Public Comment
    In 1987, Congress added section 402(n) to the CWA, specifically 
authorizing EPA to approve partial Tribal and State NPDES permit 
programs that ``cover, at a minimum, administration of a major category 
of the discharges into the navigable waters of the State or a major 
component of the permit program. . . .'' That provision specifies the 
scope of partial State section 402 programs that may be approved. 
Congress did not amend CWA section 404 to add a parallel provision 
authorizing a Tribe or State to assume the authority to issue section 
404 permits for just a portion of discharges into assumable waters. 
Given the absence of a provision in the section 404 program authorizing 
partial assumption parallel to the provision in the section 402 
program, EPA maintains its longstanding interpretation that the best 
reading of the CWA ``requir[es] State programs to have full geographic 
and activities jurisdiction (subject to the limitation in section 
404(g)).'' 53 FR 20764 (June 6, 1988). Because of the special status of 
Indian country, a lack of State authority to regulate activities on 
Indian lands will not cause the State's program to be considered a 
partial program. See id.
    In addition to concluding that the statute does not authorize 
partial assumption, EPA also determined that partial assumption would 
be extremely difficult to implement. Numerous States have expressed an 
interest in being able to assume the authority to issue section 404 
permits for just a portion of the section 404 regulated activities, or 
a portion of the assumable waters within the Tribe's or State's 
jurisdiction. While some commenters supported the status quo, others 
supported some form of partial assumption, or encouraged the Agency to 
explore options to provide additional flexibility. One commenter noted 
that partial assumption in States with more stringent or protective 
section 404 programs could advance environmental protection, and 
another noted that partial assumption of program activities could allow 
for more Tribal oversight and input in the permitting process.
    EPA carefully considered the comments received, evaluating 
potential approaches to partial assumption, but ultimately concluded 
that it would be difficult to implement. Partial assumption based on a 
size threshold for a project would be unworkable because the 
``footprint'' of a project may change during the execution of the 
project, which could result in the shifting of jurisdiction between the 
Federal and the assumed program. This outcome could conceivably 
encourage permittees to increase the footprint or impacts of their 
proposed project in order to remain with the Corps for the permit 
review process. Partial assumption based on a geographic area would 
also be challenging to implement, because Tribes and States could 
potentially divide watersheds or create a checkerboard of authority 
that could create problems in determining jurisdiction, as well as 
mitigation and enforcement. Partial assumption based on type of 
waterbody would pose difficulties because it might require a waterbody-
by-waterbody determination

[[Page 103467]]

to identify permitting authority, and a project might impact more than 
one waterbody, creating confusion as to whether the permitting 
authority is the Corps or the Tribe or State. Partial assumption that 
would allow for the assumption of certain aspects of the program, such 
as a Tribe or State taking on permitting but not enforcement, or vice 
versa, would cause unavoidable duplication of effort between the Tribe 
or State and EPA and the Corps. And partial assumption based on 
activity would pose challenges because the Agency was unable to devise 
a comprehensive and clear way to define potential activities. Dividing 
functions between the Federal and Tribal or State governments would 
also be confusing for the regulated public.
    EPA also considered phased assumption of program responsibilities, 
whereby the Tribe or State would ultimately assume the full program, 
but in stages or phases. EPA considered this approach but concluded 
that implementing a phased approach would present all of the challenges 
listed above regarding identification of the permitting authority. 
Additionally, there are no tools available to the Agency to ensure that 
a Tribe or State continues to phase in all portions of the program, or 
to determine how much time should be allowed for the process; the only 
mechanism available to the Agency to address a failure to complete 
phasing-in the full program would be withdrawal of the entire program.
    Tribes and States not interested in full assumption can already 
take on a major role in managing their aquatic resources and in the 
permitting process even without assuming the section 404 program. A 
Tribe or State may develop their own dredged or fill material 
permitting program. Alternatively, the Federal section 404 program 
provides mechanisms that allow for Tribal and State input in developing 
permits for specific activities or specific geographic areas within 
Tribal or State jurisdiction. In 1977, Congress amended section 404 to 
allow the Corps to issue certain types of general permits, including 
State Programmatic General Permits (SPGPs). SPGPs are general permits 
issued by the Corps that provide section 404 authorization for certain 
discharge activities if the permittee has secured a State permit for 
that same activity. Some States have worked with the Corps to develop 
SPGPs, which create permitting efficiencies for certain projects within 
the State. While the Corps is still the section 404 permitting 
authority for SPGPs, these permits give the Tribe or State the ability 
to be actively involved, as well as the opportunity to create more 
stringent requirements than the Federal section 404 permitting program, 
without the burden of assuming and administering the section 404 
program.
    In sum, EPA has concluded that continuing to interpret the CWA to 
prohibit partial assumption reflects the best reading of the text of 
the CWA and will enable the most transparent and consistent 
implementation of the section 404 program across the nation. This 
approach provides the most clarity to the public and the regulated 
community as to which waters are being assumed and whether applicants 
need a Tribal or State permit or a Federal permit. Conversely, partial 
assumption would be more likely to cause confusion among interested 
parties and be more difficult to implement consistently across the 
country for the reasons discussed earlier in this section.
2. Retained Waters
a. Overview and What the Agency Is Finalizing
    As discussed in section III.B.2 of this preamble, the Corps retains 
authority over certain waters and wetlands adjacent to those waters 
when a Tribe or State assumes permitting authority. States and Tribes 
have expressed to EPA the need for further clarification regarding 
which waters a Tribe or State may assume and which waters the Corps 
retains. The Agency is finalizing as proposed a procedure for 
determining the extent of waters over which the Corps would retain 
administrative authority following Tribal or State assumption of the 
section 404 program, with certain minor modifications based on comments 
received. Under the procedure, before the Tribe or State submits its 
assumption request to EPA, the Tribe or State must submit a request to 
EPA that the Corps identify the subset of waters of the United States 
that would remain subject to the Corps' section 404 administrative 
authority following assumption. The Tribe or State must submit one of 
the following documents with the request to show that it has taken 
concrete and substantial steps toward program assumption: a citation or 
copy of legislation authorizing funding to prepare for assumption, a 
citation or copy of legislation authorizing assumption, a Governor or 
Tribal leader directive, a letter from a head of a Tribal or State 
agency, or a copy of a letter awarding a grant or other funding 
allocated to investigate and pursue assumption. Within seven days of 
receiving the request for the retained waters description, EPA will 
review and respond to the request. If the request includes the required 
information, then EPA will transmit the request to the Corps. EPA will 
also notify members of the public of that transmission and invite input 
to the Corps and to the Tribe or State within a 60-day period that the 
Corps may consider in developing its description.
    If the Corps notifies the Tribe or State and EPA within 30 days of 
receiving the request transmitted by EPA that it will provide the Tribe 
or State with a retained waters description, the Corps has 180 days 
from the receipt of the request to provide a retained waters 
description to the Tribe or State. The purpose of the 180-day period is 
to allow the Corps time and opportunity to follow the process at 40 CFR 
233.11(i) to identify those waters over which the Corps will retain 
section 404 permitting authority while providing a timeframe within 
which the Tribe or State can expect to receive a retained waters 
description. If the Corps does not notify the Tribe or State and EPA 
within 30 days of receipt of the request that it intends to provide a 
retained waters description, the Tribe or State may prepare a retained 
waters description. Similarly, if the Corps had originally indicated 
that it would provide a retained waters description but does not 
provide one within 180 days of EPA's transmission to the Corps, the 
Tribe or State may develop the retained waters description using the 
same approach described above. Alternatively, the Tribe or State and 
the Corps may mutually agree to extend the period of time for the Corps 
to develop the list.
    The most recently published list of RHA section 10 waters (see 33 
CFR 329.16) would be the starting point for the retained waters 
description. The Corps, Tribe, or State would place waters of the 
United States, or reaches of these waters, from the RHA section 10 list 
into the retained waters description if they are known to be presently 
used or susceptible to use in their natural condition or by reasonable 
improvement as a means to transport interstate or foreign commerce. See 
33 U.S.C. 1344(g)(1). To the extent feasible and to the extent that 
information is available, the Corps, Tribe, or State would add other 
waters or reaches of waters to the retained waters description that are 
presently used or are susceptible to use in their natural condition or 
by reasonable improvement as a means to transport interstate or foreign 
commerce. See id. The Corps, Tribe, or State would not place RHA 
section 10 list waters in the retained waters description if, for 
example, they were historically used as a means to transport interstate 
or foreign commerce

[[Page 103468]]

and are no longer susceptible to use as such with reasonable 
improvement.
    The description would also describe retained wetlands. The default 
understanding is that the Corps would retain administrative authority 
over all jurisdictional wetlands ``adjacent'' to retained waters, as 
that term is defined in 40 CFR 120.2(c). A Tribe or State may choose to 
negotiate an agreement with the Corps to establish an administrative 
boundary through jurisdictional adjacent wetlands, landward of which 
the Tribe or State would assume administrative authority. If the Tribe 
or State and the Corps reach agreement on such a boundary, EPA may 
consider it when it is submitted with the program submission. As a 
default, however, the Corps would retain all wetlands adjacent to 
retained waters. The retained waters description does not need to 
include a specific list of adjacent wetlands or provide mapping or a 
description of the lateral extent of those wetlands.
    As recognized in EPA's regulations, in many cases, States lack 
authority to regulate activities in Indian country. See 40 CFR 
233.1(b). Thus, the Corps will continue to administer the program in 
Indian country unless EPA determines that another jurisdiction has 
authority to regulate discharges into waters in Indian country. See id.
    EPA is changing the regulatory provision stating that modifications 
to the extent of the retained waters description always constitute 
substantial revisions to a Tribal or State program. 40 CFR 233.16(d)(3) 
(2023). The new provision is more limited in scope: it states that 
removals of waters from the retained waters description, other than de 
minimis removals, are substantial revisions. In addition, revisions to 
an approved Tribal CWA section 404 program are substantial where they 
would add reservation areas to the scope of its approved program. EPA 
is also providing that the Memorandum of Agreement between the Corps 
and the Tribe or State must outline procedures whereby the Corps will 
notify the Tribe or the State of changes to the RHA section 10 list as 
well as the extent to which these changes implicate the statutory scope 
of retained waters as described in CWA section 404(g)(1) and therefore 
necessitate revisions to the retained waters description. The Tribe or 
State would incorporate the revisions that the Corps has identified, 
pursuant to the modification provisions agreed upon in the Memorandum 
of Agreement.
    EPA is modifying the program description requirements to provide 
that the Tribal or State program will encompass all waters of the 
United States not retained by the Corps at all times. 40 CFR 
233.11(i)(6). EPA is also removing the term ``traditionally'' from the 
term `traditionally navigable waters' in the following provision: 
``[w]here a State permit program includes coverage of those 
traditionally navigable waters in which only the Secretary may issue 
404 permits, the State is encouraged to establish in this Memorandum of 
Agreement procedures for joint processing of Federal and State permits, 
including joint public notice and public hearings.'' Id. at 
233.14(b)(2).
b. Summary of Final Rule Rationale and Public Comments
    Section 404(g) of the CWA authorizes Tribes and States to assume 
authority to administer the section 404 program in some, but not all, 
navigable waters within their jurisdiction. ``Navigable waters'' is 
defined at CWA section 502(7) as ``waters of the United States, 
including the territorial seas.'' The Corps retains administrative 
authority over a subset of these waters even after program assumption 
by a Tribe or State.\29\ Specifically, section 404(g)(1) states that 
the Corps retains administrative authority over the subset of waters of 
the United States consisting of ``. . . waters which are presently 
used, or are susceptible to use in their natural condition or by 
reasonable improvement as a means to transport interstate or foreign 
commerce shoreward to their ordinary high water mark . . . including 
wetlands adjacent thereto.'' 33 U.S.C. 1344(g)(1). A Tribe or State 
assumes section 404 administrative authority over all waters of the 
United States within its jurisdiction that are not retained by the 
Corps.
---------------------------------------------------------------------------

    \29\ When a Tribe or State assumes administrative authority for 
the CWA section 404 program, it assumes authority to permit 
discharges of dredged and fill material to all ``waters of the 
United States'' within the meaning of CWA section 502(7) except for 
the subset of waters of the United States over which the Corps is 
required to retain administrative authority under Section 404(g). 
The scope of CWA jurisdiction is defined by CWA section 502(7) as 
``waters of the United States,'' and is distinct from and broader 
than the scope of waters over which the Corps retains administrative 
authority following Tribal or State assumption of the section 404 
program. This rule develops a process for identifying the subset of 
waters of the United States over which the Corps retains 
administrative authority following approval of a Tribal or State 
section 404 program. It does not define the broader set of ``waters 
of the United States'' within the scope of CWA section 502(7).
---------------------------------------------------------------------------

    EPA's prior regulations require that the program description that 
is part of a Tribal or State assumption request include ``[a] 
description of the waters of the United States within a State over 
which the State assumes jurisdiction under the approved program; a 
description of the waters of the United States within a State over 
which the Secretary retains jurisdiction subsequent to program 
approval; and a comparison of the State and Federal definitions of 
wetlands.'' 40 CFR 233.11(h) (2023). In addition, the prior regulations 
state that the Memorandum of Agreement between a Tribe or State and the 
Corps required as part of the assumption request shall include a 
description of the waters of the United States within the Tribe or 
State for which the Corps will retain administrative authority. 40 CFR 
233.14(b)(1) (2023).
    Prior to this rule, EPA had not provided guidance on a process for 
identifying the subset of waters of the United States over which the 
Corps would retain administrative authority following Tribal or State 
assumption. Without a clear and practical process, individual States 
and the Corps districts have had to interpret the extent of retained 
waters and the meaning of ``wetlands adjacent thereto'' in the context 
of case-by-case development of Tribal and State program descriptions 
for prospective programs and the Memoranda of Agreement that are 
negotiated between the Corps and the State as part of a program 
submission. Tribes and States have indicated that confusion about how 
best to identify the extent of retained waters and adjacent wetlands 
has been a barrier to assumption and have asked EPA to provide clarity.
    As discussed in section III.B of this preamble, EPA convened the 
Assumable Waters Subcommittee under the auspices of the NACEPT to 
provide advice and recommendations as to how EPA could best clarify the 
subset of waters of the United States over which the Corps retains 
administrative CWA section 404 authority when a Tribe or State assumes 
the section 404 program. NACEPT adopted the majority recommendation in 
the Subcommittee report and incorporated it into its recommendations 
provided to EPA in June 2017. Although at the time of the Subcommittee 
report, the Corps presented a separate view from the majority of the 
extent of retained waters and adjacent wetlands for which it would 
retain administrative authority, the Department of the Army 
subsequently sent a letter to the Corps supporting the majority 
recommendation as to the extent of retained waters and adjacent 
wetlands (though the letter did not define a specific administrative 
boundary for

[[Page 103469]]

adjacent wetlands).\30\ NACEPT's recommendations, based on the 
Subcommittee majority recommendation that was subsequently endorsed by 
the Corps, are discussed below.
---------------------------------------------------------------------------

    \30\ R.D. James, Memorandum for Commanding General, U.S. Army 
Corps of Engineers: Clean Water Act Section 404(g)--Non-Assumable 
Waters (July 30, 2018).
---------------------------------------------------------------------------

i. Subcommittee's Recommendation
    The Subcommittee majority recommended that for purposes of 
identifying the subset of waters of the United States over which the 
Corps would retain administrative authority following Tribal or State 
assumption of the CWA section 404 program, existing RHA section 10 
lists \31\ be used ``with two minor modifications: any waters that are 
on the section 10 lists based solely on historic use (e.g., historic 
fur trading routes) are not to be retained (based on the Congressional 
record and statute), and waters that are assumable by a tribe (as 
defined in the report) may also be retained by the USACE when a state 
assumes the program.'' Final Report of the Assumable Waters 
Subcommittee at v.\32\ The Subcommittee also recognized that ``waters 
may be added to Section 10 lists after a state or tribe assumes the 
program, and recommends in that case, such waters may also be added to 
lists of USACE-retained waters at that time.'' Id. The majority 
recommendation was based on its analysis of the text and legislative 
history of section 404(g), which is discussed in the Background 
description in section III of this preamble, in which the majority 
concluded that Congress intended that the Corps retain permitting 
authority over some RHA section 10 waters. See id. at 55-61 (Appendix 
F.) The majority thought this approach had the benefit of being clear 
and easy to implement. See id. at 17-20.
---------------------------------------------------------------------------

    \31\ The RHA section 10 lists are compiled and maintained by the 
Corps district offices for every State except Hawaii. 33 CFR 329.14 
describes the process the Corps follows to make navigability 
determinations pursuant to the RHA.
    \32\ Available at https://www.epa.gov/sites/default/files/2017-06/documents/awsubcommitteefinalreprort_05-2017_tag508_05312017_508.pdf.
---------------------------------------------------------------------------

    The Subcommittee majority also addressed the scope of retained 
adjacent wetlands. It recommended that the Corps retain administrative 
authority over all wetlands adjacent to retained waters landward to an 
administrative boundary agreed upon by the Tribe or State and the 
Corps. This boundary, the recommendation added, ``could be negotiated 
at the state or tribal level . . . if no change were negotiated, a 300-
foot national administrative default line would be used.'' Final Report 
of the Assumable Waters Subcommittee at vi. The Subcommittee majority 
opinion noted that large wetland complexes can extend far from the 
retained water. Id. at 31. Without such an administrative line, the 
Subcommittee majority noted, assumption could lead to a confusing 
pattern of USACE and State or Tribal permitting authority across the 
landscape.
    With regard to Tribal considerations during assumption of the 
section 404 program, the Subcommittee found that ``Section 518 of the 
CWA, enacted as part of the 1987 amendments to the statute, authorizes 
the EPA to treat eligible Indian tribes in a manner similar to states 
(`treatment as a State' or TAS) for a variety of purposes, including 
administering each of the principal CWA regulatory programs [including 
CWA section 404] and receiving grants under several CWA authorities (81 
FR 30183, May 16, 2016).'' Id. at 3. The Subcommittee majority 
recommended that ``Tribal governments pursuing assumption of the 404 
program will follow the same process as states, though it is expected 
that there will be some nuanced differences; for example, in addressing 
Tribal Indian Reservation boundaries'' and that ``[i]n a state-assumed 
program, states will generally not assume authority for administering 
the 404 program within Indian country; instead, such authority will 
generally be retained by the USACE unless the tribe itself is approved 
by EPA to assume the 404 program.'' Id.
    The Subcommittee majority noted that its recommended approach is 
consistent with ``the plain language of Section 404(g) and the 
legislative history. Congress clearly intended that states and tribes 
should play a significant role in the administration of Section 404--as 
they do in other CWA programs--anticipating that many states would 
assume the Section 404 program.'' See id. at 19.
ii. Final Rule Approach to Retained Waters
1. Contents of the Retained Waters Description
    Taking into consideration the majority recommendation of the 
Subcommittee as well as stakeholder input on the proposed rule, the 
subset of waters of the United States over which the Corps would retain 
administrative authority would include the following:

--Waters of the United States, or reaches of those waters, from the RHA 
section 10 list(s) that are known to be presently used or susceptible 
to use in their natural condition or by reasonable improvement as a 
means to transport interstate or foreign commerce;
--Other waters known by the Corps or identified by the Tribe or State 
as presently used or susceptible to use in their natural condition or 
by reasonable improvement as a means to transport interstate or foreign 
commerce, including all waters which are subject to the ebb and flow of 
the tide; and
--Retained wetlands that are adjacent to the foregoing waters.

    As recognized in EPA's regulations, in many cases, States lack 
authority under the CWA to regulate activities covered by the section 
404 program in Indian country. See 40 CFR 233.1(b). Thus, the Corps 
will continue to administer the program in Indian country unless EPA 
determines that a State has authority to regulate discharges into 
waters in Indian country and approves the State to assume the section 
404 program over such discharges. See id. The Memorandum of Agreement 
between the Corps and State must address any waters in Indian Country 
which are to be retained by the Corps upon program assumption by a 
State. EPA also notes that the Corps would retain jurisdiction over 
waters located in lands of exclusive Federal jurisdiction in relevant 
respects (e.g., certain national parks identified in 16 U.S.C. Chapter 
1 as having lands of exclusive Federal jurisdiction, such as Denali 
National Park).
    Some commenters supported this approach, outlined in the proposed 
rule. Others critiqued the Agency's reliance on the RHA section 10 
lists as a starting point for identifying retained waters, stating that 
these lists can be out of date and often lack current information or 
supporting documentation. Some commenters suggested that RHA section 10 
lists should only be relied upon if they have been comprehensively 
updated within the previous five years. Some commenters would require 
that the Corps review all judicial determinations involving the subject 
State to identify additional retained waters.
    EPA recognizes that the available RHA section 10 lists may not 
cover all RHA section 10 waters in the Tribe's or State's jurisdiction 
and that they may not be updated to reflect current use and 
characteristics of listed waters. However, EPA agrees with the 
recommendation of the Assumable Waters Subcommittee that these lists 
provide a useful starting point for determining the scope of retained 
waters, given the clear indication in the

[[Page 103470]]

legislative history that Congress intended the Corps to generally 
retain RHA section 10 waters, with some modifications, and that an 
approach that starts with existing lists will be clear and easy to 
implement. No commenters proposed implementable alternatives to the RHA 
section 10 lists as a starting point. Comprehensively reviewing and 
revising RHA section 10 lists is a multi-year, resource-intensive and 
relatively rare undertaking, so excluding from use those lists not 
comprehensively updated within the past five years would cause 
significant delays in assumption. However, to ensure the retained 
waters descriptions remain as current and accurate as is feasible, EPA 
has modified the final rule to provide that whenever RHA section 10 
lists are updated, an orderly process exists for incorporating those 
changes, as appropriate, into a Tribe's or State's retained waters 
description. Specifically, EPA now requires that the Memorandum of 
Agreement between the Corps and the Tribe or State outline procedures 
whereby the Corps will notify the Tribe or the State of changes to the 
RHA section 10 list that implicate the statutory scope of retained 
waters and the Tribe or State will incorporate those changes into its 
retained waters description.
    With respect to the suggestion to require review of all judicial 
decisions related to navigability during the development of the 
retained waters description, EPA agrees that these should be viewed as 
resources during the development of the description, as well as 
information submitted by interested parties, navigability analyses the 
Corps has conducted since last updating its RHA section 10 list, and 
other sources of information. However, EPA is declining to define the 
sources of information for the development of the retained waters 
description in the regulations because it would be unnecessarily 
prescriptive and limit the flexibility of the Corps or the relevant 
Tribe or State.
    Some commenters argued that the retained waters description must 
include waters that have been historically navigable, as historical 
navigability often indicates whether the waterway can be navigable in 
its natural condition or with reasonable improvement, which is the 
statutory criteria for retained waters in section 404(g). EPA agrees 
that historical navigability can sometimes indicate that a water is 
navigable in its natural condition or with reasonable improvement. Yet 
this is not always the case. Sometimes historically navigable waters 
have been modified--as a result of dams, water diversions for 
irrigation, climate change, or other circumstances--and cannot be 
restored to navigability with reasonable improvements. EPA therefore 
retains the proposed rule approach, based on the statutory language and 
consistent with the recommendation of the Assumable Water Subcommittee, 
which would remove waters or reaches of waters that were historically 
navigable but that are not currently used as a means to transport 
interstate or foreign commerce in their natural condition or with 
reasonable improvement.
    EPA also received comments stating that the starting point for the 
scope of the Corps-retained waters must be documented traditional 
navigable waters (TNWs) as opposed to RHA section 10 lists. The Corps' 
minority recommendation in the Assumable Waters Subcommittee Final 
Report advocated for this approach. See Final Report at 21-22. The 
majority rejected reliance on documented TNWs as a starting point on 
the basis that using the RHA section 10 lists is clearer and easier to 
implement as well as more consistent with the legislative history of 
section 404(g). See id. at 17. The majority explained that RHA section 
10 lists are ``well established, and can be relatively easily labeled 
on regional maps or GIS systems . . .'' thereby allowing members of the 
public ``to readily determine which agency is responsible for Section 
404 regulation at a specific location.'' See id. at 18. In contrast, 
the majority expressed concerns that the extent of documented TNWs is 
confusing and less transparent, as they are documented in ``multiple 
regulations, guidance, and procedures,'' rather than in one central, 
public location. See id. The majority also noted that because most TNWs 
have not yet been identified as such and thus lists of documented TNWs 
could easily and regularly increase, using RHA section 10 lists 
provides greater certainty and predictability regarding the scope of 
the Tribal or State program. See id at 19. In addition, the majority 
viewed Congress as intending to retain Corps authority over RHA section 
10 waters, with certain minor exceptions. See id. at 55-61; see also 
section III of this preamble. For all of the reasons that the 
Subcommittee cited, EPA has decided to establish RHA section 10 lists 
as a starting point for retained waters, rather than documented TNWs. 
EPA notes that ultimately the Department of the Army transmitted to the 
Corps its support for the majority recommendation's reliance on RHA 
section 10 lists. See section IV.B.2.b of this preamble.
    The retained waters description would acknowledge that wetlands are 
to be retained if they are adjacent to Corps-retained waters. As noted 
above, the default understanding is that the Corps would retain 
administrative authority over all jurisdictional wetlands ``adjacent'' 
to retained waters. Some Tribes and States may choose to negotiate with 
the Corps to establish an administrative boundary through 
jurisdictional adjacent wetlands, landward of which the Tribe or State 
would assume administrative authority. If they do so, EPA may consider 
that part of the program description when it is submitted with the 
program submission. The default approach, however, is that the Corps 
would retain all adjacent wetlands. A specific list of all retained 
adjacent wetlands is not required to be included in the retained waters 
description, because developing such a list would generally be 
impracticable at the time of program assumption.
    EPA had proposed that Tribes or States and the Corps establish an 
administrative boundary through adjacent wetlands to delineate between 
retained and assumed wetlands, and that the default boundary be 300 
feet from retained waters. Some commenters expressed support for this 
approach, stating that it would allow needed flexibility for Tribes, 
States, and the Corps to develop Tribal or State programs and that the 
proposal is authorized by the CWA. The significant majority of comments 
received during the public comment period, however, expressed concerns 
about an administrative boundary default approach, both with respect to 
implementation and legal authority.
    Concerns expressed about implementation included the lack of a 
scientific basis for the 300-foot default boundary and the lack of a 
methodology for applying the default boundary. Some commenters pointed 
out that an administrative boundary would fragment the permitting in 
large wetlands complexes, leading to stakeholder confusion, and 
bifurcate the environmental review process, thereby making it difficult 
to ensure a holistic evaluation of impacts. These commenters stated 
that because an administrative boundary would sometimes require two 
permitting agencies to issue different permits for two parts of the 
same project, it would unnecessarily duplicate effort on the part of 
permittees, State agencies, and members of the public. Commenters 
further noted that it would also burden those seeking to challenge 
permits, who might need to litigate two separate

[[Page 103471]]

permits in two separate fora, potentially on different timelines 
depending on the State or Tribe's judicial review procedures. 
Commenters also argued that, because the scope of ``adjacent wetlands'' 
significantly narrowed following the Supreme Court's May 2023 decision 
in Sackett v. EPA and the Agency's subsequent August 29, 2023, 
rulemaking conforming the definition of ``waters of the United States'' 
to that case, 88 FR 3004, an administrative boundary is no longer 
necessary. EPA finds the practical concerns raised by commenters valid. 
Given the challenges involved in implementing the administrative 
boundary concept and the reduced need for it, as identified by 
commenters, EPA decided not to finalize the proposed approach.
    Commenters also raised legal objections to the administrative 
boundary approach. These commenters stated that CWA section 404(g)(1) 
provides that adjacent wetlands may not be assumed by a State or Tribe 
and that EPA lacks the authority to approve an administrative boundary 
that would allow a State to assume authority over any part of wetlands 
that are adjacent to a retained water. Because EPA has decided not to 
finalize the administrative boundary proposal due to implementation 
concerns, addressing the scope of the Agency's legal authority to 
approve such a boundary is unnecessary. If a State or Tribe chooses to 
negotiate an administrative boundary with the Corps when developing an 
assumption request, and the parties reach agreement, EPA may consider 
issues related to the scope of their proposed program at that time.
    A number of commenters asked that EPA provide more clarity as to 
the ``universe of waters that would be retained,'' including the 
information and data that the Corps and State or Tribe would use to 
assess the scope of retained waters. As noted previously, however, 
these commenters did not generally provide specific suggestions as to 
how EPA could provide additional clarity. The approach EPA is outlining 
adopts the recommendation of the Assumable Waters Subcommittee, which 
spent several years assessing how EPA could best clarify the scope of 
retained waters.
    Moreover, for the purposes of CWA section 404(g)(1), determining 
which waters are presently used or susceptible to use in their natural 
condition or by reasonable improvement as a means to transport 
interstate or foreign commerce, as well as the scope of adjacent 
wetlands is, to some extent, inherently a case-specific process. While 
determining whether a water is retained does not require compliance 
with the requirements for determining whether a water is subject to RHA 
section 10, and does not necessarily require a navigability study, the 
factors used to determine RHA section 10 jurisdiction may still be 
relevant to determining whether a water should be retained. As noted 
earlier, however, there are key distinctions between RHA section 10 
waters and the scope of retained waters. Specifically, unlike RHA 
section 10 waters, Corps-retained waters do not include waters that are 
only used historically for the transport of interstate or foreign 
commerce but do include adjacent wetlands and, when a State is assuming 
the program, waters subject to Tribal authority.
    EPA's approach to determining the retained waters description 
reflects its attempt to balance the competing priorities of providing 
an efficient process for program assumption versus guaranteeing a fully 
comprehensive and precise description. When a Tribe or State is 
preparing to request assumption, the Corps or assuming Tribe or State 
may not know all waters that are presently used or susceptible to use 
in their natural condition or by reasonable improvement as a means to 
transport interstate or foreign commerce at the time of assumption. 
However, requiring a comprehensive assessment of every water within the 
Tribe's or State's jurisdiction at the time of assumption to determine 
if they should be retained pursuant to the parenthetical in CWA section 
404(g)(1) could pose significant practical and budgetary challenges. 
Depending on the number of waters within the Tribe's or State's 
jurisdiction, developing a comprehensive retained waters description 
could take many years and reduce the Corps' ability to carry out its 
regulatory obligations. EPA attempts to strike a balance by using the 
RHA section 10 list as a starting point and by stating that the 
retained waters description must encompass waters ``known'' by the 
Corps, Tribe, or State to meet the statutory criteria.
    Further, as discussed in section IV.B.2.b.ii.2 of this preamble 
below, EPA has added an opportunity for public input. EPA is confident 
that geographic information systems technology and navigation charts, 
review of judicial decisions, public input, past jurisdictional 
determinations, and other sources of information should enable the 
Corps, Tribe, or State to take significant steps in identifying waters 
in the Tribe's or State's jurisdiction that should be included in the 
retained waters description. As discussed further below, moreover, 
EPA's regulation allows for the retained waters description and the 
Memorandum of Agreement between the Corps and Tribe or State to be 
modified if additional waters are identified after assumption, or if 
waters included in the description no longer meet the statutory 
criteria.
2. Procedures for Developing the Retained Waters Description
    EPA is facilitating clarity and efficiency in the program 
assumption process by establishing defined timeframes for the 
development of the retained waters description. Before a Tribe or State 
provides an assumption request submission to EPA, the Tribal leader, 
State Governor, or Tribal or State Director must submit a request to 
EPA that the Corps identify the subset of waters of the United States 
over which the Corps would retain administrative authority. The Tribe 
or State must submit the request with specific additional information 
that should accompany the request to show that the Tribe or State has 
taken concrete and substantial steps toward program assumption. One of 
the following must be included with the Tribe's or State's request that 
the Corps identify which waters would be retained: a citation or copy 
of legislation authorizing funding to prepare for assumption, a 
citation or copy of legislation authorizing assumption, a Governor or 
Tribal leader directive, a letter from a head of a Tribal or State 
agency, or a copy of a letter awarding a grant or other funding 
allocated to investigate and pursue assumption. Within seven days of 
receiving the request for the retained waters description, EPA will 
review and respond to the request. If the request includes the required 
information, then EPA will transmit the request to the Corps. This 
requirement is intended to provide assurance to the Corps that 
developing a retained waters description for purposes of program 
assumption is a worthwhile expenditure of its time and resources.
    One commenter opposed the requirement that a Tribe or State provide 
supporting documentation for its request, stating that knowing the 
scope of assumed waters is a foundational, and preliminary, piece of 
information that States need before taking concrete and substantial 
steps toward assumption. EPA recognizes the importance of understanding 
the scope of assumed waters to Tribes and States before they consider 
assumption. EPA seeks to balance the desire of Tribes and States to 
assess the scope of a potential program prior to embarking on such a 
program, however, with the desire to

[[Page 103472]]

avoid unnecessarily imposing workload burdens on the Corps. If EPA did 
not impose such a prerequisite, the Corps could be asked to embark upon 
lengthy assessments of the scope of retained waters at the request of 
State environmental agency staff, for example, only to find out after 
having expended significant resources that the State legislature or 
governor has no intention of pursuing program assumption. EPA is 
therefore finalizing its requirement that a Tribe or State document it 
has taken concrete and substantial steps toward program assumption 
before submitting its request for a retained waters description.
    In addition to seeking to facilitate the clarity and efficiency of 
the program assumption process, EPA also seeks to increase public 
participation and transparency. To that end, EPA is providing that, 
upon transmitting a request for a retained waters description to the 
Corps, the Agency will also post a public notice of that transmission 
on its website and notify members of the public known to be interested 
in these matters of that transmission, inviting public input to the 
Corps as well as the State or Tribe on the scope of the retained waters 
description within a 60-day period. The Corps (or the Tribe or State if 
the Corps declines to define the description) may consider submitted 
information in developing its description. If the Corps were to develop 
the description, the Tribe or State may provide information to the 
Corps during that 60-day period. Similarly, if the Tribe or State were 
to develop the list, the Corps may provide information to the Tribe or 
State before the end of that 60-day period. Regardless of which entity 
develops the retained waters description, the Corps and Tribe or State 
will likely maintain regular communication regarding its development. 
Yet providing data at the beginning of the description development 
process will ensure that it can be adequately considered.
    This public notice and input provision responds to some commenters' 
requests for additional opportunities for public participation in the 
development of the retained waters description, while also retaining 
the efficiency in the description development process that other 
commenters requested. EPA is not establishing a public notice and 
comment period on the final retained waters description distinct from 
the other procedural steps, as that would lengthen the time period for 
seeking assumption and impose a substantial burden on the Corps, the 
assuming State or Tribe, and EPA. A 60-day public input period, 
however, would increase public participation in the process of 
determining which waters the Corps would retain and the Tribe or State 
would assume, without delaying the assumption process. The Corps (or 
the Tribe or State) would not be obligated to respond directly to this 
input but could consider it in compiling its description of retained 
waters.
    Members of the public have another opportunity to provide comment 
on the retained waters description when reviewing the Tribe's or 
State's program submission. Some commenters requested a separate public 
notice and comment process specifically if a State takes on the 
development of the retained waters description. EPA expects that the 
public input opportunity offered when EPA transmits a request for a 
retained waters description to the Corps will be sufficient to provide 
the Tribe or State with information to assist in developing the 
description. Moreover, a Tribe or State may provide opportunities for 
public engagement as it develops its program submission, which would 
again allow members of the public to provide input on the retained 
waters description.
    If the Corps notifies the Tribe or State and EPA within 30 days of 
receipt of the request transmitted by EPA that it intends to provide a 
retained waters description, the Corps would have 180 days from the 
receipt of the request transmitted by EPA to develop the description. 
During the 180-day period the Corps would be able to review the current 
RHA section 10 list(s); place waters of the United States or reaches of 
those waters from the RHA section 10 list into the retained waters 
description if they are known to be presently used or susceptible to 
use in their natural condition or by reasonable improvement as a means 
to transport interstate or foreign commerce; and to the extent feasible 
and to the extent that information is available, add other waters or 
reaches of waters to the retained waters description that are presently 
used or are susceptible to use in their natural condition or by 
reasonable improvement as a means to transport interstate or foreign 
commerce.
    If the Corps does not notify the Tribe or State and EPA within 30 
days of receipt of the request transmitted by EPA that it intends to 
provide a retained waters description, the Tribe or State may prepare a 
retained waters description using the same approach outlined above for 
the Corps. Similarly, if the Corps had originally indicated that it 
would provide a retained waters description but does not provide one 
within 180 days of EPA's transmission to the Corps, the Tribe or State 
may develop the retained waters description using the same approach 
described above. Alternatively, the Tribe or State and the Corps may 
also mutually agree to provide the Corps additional time to provide a 
retained waters description.
    EPA received a number of comments on the time frame and 
coordination process outlined in the proposed rule, which it is 
finalizing in this rule. Some commenters stated that the Corps should 
be allowed one year to develop a retained waters description to allow 
sufficient time to conduct the assessments needed to compile a complete 
description, particularly given that some RHA section 10 lists may be 
outdated. Some commenters also stated that under no circumstances 
should a Tribe or State have the opportunity to develop a retained 
waters description, contending that States lack the authority and 
expertise to make these determinations. Other commenters stated that 
180 days was too long a period to require a State or Tribe to wait 
prior to finalizing their program submission, and that Congress did not 
intend States and Tribes to have to wait for this length of time.
    EPA decided to finalize its proposed approach of allowing the Corps 
180 days to develop a list, which it views as striking a balance 
between the desire of States and Tribes to understand the scope of a 
potential program as quickly as possible, and the time the Corps needs 
to complete the resource-intensive process of assessing those waters 
that meet the statutory criteria to be retained. Moreover, in response 
to those commenters who urged EPA to allow the Corps additional time, 
EPA added a provision that would extend the 180-day time frame if the 
requesting Tribe or State agrees with the Corps on an extension. In 
response to the commenters that stated that Tribes or States may never 
develop a retained waters description, EPA views this rule as providing 
ample opportunity and encouragement to the Corps to develop the 
description. However, allowing a Tribe or State opportunity to develop 
a list if the Corps chooses not to do so is a backstop that is 
consistent with and helps to implement the statute's intent of 
facilitating Tribal and State assumption. Nothing in the CWA prohibits 
the Tribe or State from developing a retained waters description. The 
Act requires that the Tribe or State submit a description of assumed 
waters, and it is reasonable for the Agency to allow a Tribe or State 
to submit such a description for EPA

[[Page 103473]]

approval with their program request, if the Corps declines to develop a 
retained waters description.
    EPA disagrees with those commenters who expressed concerns that 
allowing the Corps 180 days to develop a retained waters description 
would unduly hamper Tribal or State efforts to develop a program 
submission. In EPA's experience, States that have considered seeking 
assumption typically spend at least several years preparing their 
submissions. Allowing the Corps to spend 180 days developing the 
description (or more, if an extension is jointly agreed upon) would 
therefore be unlikely to impede Tribal or State efforts. Moreover, the 
Corps may need 180 days to allocate staff to this project and conduct 
the reviews and analyses needed to determine which waters meet the 
statutory criteria to be retained by the Corps.
    The Subcommittee majority recommended that identification of the 
subset of waters of the United States over which the Corps would retain 
administrative authority be a collaborative process. EPA anticipates 
that, when a Tribe or State seeks assumption, the Tribe or State, the 
Corps, and EPA will engage collaboratively throughout the development 
of this description of retained waters to be submitted with the program 
request package for review.
    Even if the Corps does not provide a retained waters description to 
the Tribe or State, the Corps may provide relevant information to the 
Tribe or State at any time during the Tribe's or State's development of 
the retained waters description. In addition, the Corps would have two 
formal opportunities to review the list of retained waters that is 
produced by the Tribe or State. First, the Memorandum of Agreement 
between the Corps and the Tribe or State includes a description of 
retained waters, and thus the Corps would have the opportunity to 
review the description of retained waters during the drafting process 
for that memorandum and before signing that memorandum. Second, the 
Corps would have the opportunity to review and provide comments on the 
Tribe's or State's program submission materials, which includes the 
description of retained waters, after the Tribe or State submits a 
program request to EPA. Similarly, if the Corps provides a retained 
waters description to the Tribe or State, the Tribe or State would 
presumably review it to ensure that the retained waters description 
reflects waters presently used or susceptible to use in their natural 
condition or by reasonable improvement as a means to transport 
interstate or foreign commerce, including all waters which are subject 
to the ebb and flow of the tide, as well as wetlands that are adjacent 
to the foregoing waters, to the extent feasible and to the extent that 
scope of waters is known.
    The Subcommittee majority recommended that EPA and the Corps 
establish a clear dispute resolution procedure to be followed if the 
Tribe or State and the Corps were not able to complete the retained 
waters description. Because EPA believes that the proposed approach 
lays out a clear process for establishing the description, EPA is not 
specifying such a dispute resolution procedure by regulation. See 
section IV.E.1 of this preamble for further discussion on dispute 
resolution. EPA encourages Tribes and States seeking to assume the 
section 404 program to work collaboratively with the Corps to resolve 
any issues, and EPA may participate in these discussions to advise and 
facilitate development of the description.
    EPA's process, similar to the one described by the Subcommittee 
majority, is clear and practical, is based on available and relatively 
stable and predictable information, and is able to be implemented 
efficiently at the time a Tribe or State seeks assumption. It is also 
consistent with the text and history of section 404(g), which reflects 
Congress' intent that the Corps generally retain permitting authority 
over certain RHA section 10 waters. See section III.A of this preamble. 
Because the Agency's approach, consistent with the Subcommittee 
majority's recommendation, effectuates the language and history of 
section 404(g) and achieves Congress' goal of providing an 
implementable approach for assumption, generally speaking, a retained 
waters description that uses this approach will satisfy the statutory 
criteria for retained waters. However, the Regional Administrator 
retains the ultimate authority to determine whether to approve a Tribal 
or State program. As this approach does not conflict with the approved 
extent of the Michigan and New Jersey programs, no changes to their 
existing program scope would be required.
3. Modifying the Extent of Retained Waters
    EPA is revising the provision in the prior regulations that 
currently states that modifications that affect the area of 
jurisdiction (such as modifications to the retained waters description) 
always constitute substantial revisions to a Tribal or State program. 
The prior regulations provide that EPA may approve non-substantial 
revisions by letter, but require additional procedures, including 
public notice, inter-agency consultation, and Federal Register 
publication, for substantial revisions. 40 CFR 233.16(d)(2)-(4) (2023). 
EPA is modifying this provision to provide that all removals, except de 
minimis removals, from the retained waters description are 
``substantive,'' and therefore trigger the notice requirements for 
``substantive'' program changes.'' In addition, changes in geographic 
scope of an approved Tribal CWA section 404 program that would add 
reservation areas to the scope of its approved program are substantial 
program revisions.
    EPA had proposed removing the provision stating that modifications 
affecting the area of jurisdiction always constitute substantial 
revisions, though also providing that changes in geographic scope of an 
approved Tribal CWA section 404 program that would add reservation 
areas to the scope of its approved program are substantial program 
revisions. The proposed change was based on EPA's experience that 
retained waters descriptions sometimes require minor tweaks (such as 
minor modifications to the head of navigation of a particular 
waterbody) and that requiring a full Federal Register notice for such 
changes is unnecessarily burdensome. Commenters expressed concern, 
however, that pursuant to the proposed revision waters could be 
reassigned to State jurisdiction without any public notice or 
opportunity to comment. These commenters therefore asked that all 
removals from the retained waters description be viewed as substantial 
revisions. EPA is accepting this recommendation and finalizing this 
approach, with the qualification that de minimis removals are not 
substantial. Examples of de minimis removals may include a reduction in 
the length of a retained portion of a waterbody by a hundred feet 
prompted by a new navigability study or changes resulting from a water 
infrastructure project, or the removal from the retained waters 
description of an oxbow lake that sedimentation has severed from a 
Corps-retained river. EPA thinks this approach will achieve EPA's goal 
of removing unnecessarily burdensome procedures while providing 
transparency for interested parties.
    While development of the retained waters description involves 
collaboration between the Corps and the Tribe or State, the Corps 
remains the agency with sole responsibility for maintaining and 
modifying any RHA section 10 list. The Subcommittee

[[Page 103474]]

majority recognized that the Corps may add waters to RHA section 10 
lists after a Tribe or State assumes the program. The Subcommittee 
majority recommended that in such cases, Tribes or States may revise 
their retained waters descriptions to add these waters, if consistent 
with CWA section 404(g)(1). As discussed above, an RHA section 10 list 
will not necessarily be co-extensive with the retained waters 
description and changes to RHA section 10 lists do not always warrant 
changes to the retained waters description. For example, if the Corps 
adds to its RHA section 10 list a water which was historically used in 
interstate or foreign commerce but is no longer used or susceptible to 
use for that purpose, that water would not be added to the retained 
waters description.
    If, however, the Corps were to add waters to its RHA section 10 
list that are used or susceptible to use in interstate or foreign 
commerce, the relevant Tribe or State would add these waters to the 
retained waters description. To provide a predictable and transparent 
procedure for such modifications, and to address commenters' concerns 
that many RHA section 10 lists are not currently up to date, the final 
rule provides that the Memorandum of Agreement between the Corps and 
the Tribe or State must outline procedures whereby the Corps will 
notify the Tribe or the State of changes to the RHA section 10 list as 
well as the extent to which these changes implicate the statutory scope 
of retained waters. Pursuant to the Memorandum of Agreement, the Tribe 
or State would incorporate the changes the Corps has identified as 
implicating the scope of retained waters into its retained waters 
description.
    Under the final rule, EPA would have discretion to determine 
whether additions to the area of jurisdiction, which includes the 
extent of retained waters, are substantial or non-substantial. EPA may 
then decide whether to approve the modification to the retained waters 
description consistent with the procedures in 40 CFR 233.16.
    This rule clarifies that changes in geographic scope of an approved 
Tribal CWA section 404 program that would add reservation areas to the 
scope of its approved program are substantial program revisions. Where 
a Tribe seeks to include additional reservation areas within the scope 
of its approved program, the Regional Administrator must determine that 
the Tribe meets the TAS eligibility criteria for the additional areas 
and waters. The substantial modification process involves circulating 
notice to ``those persons known to be interested in such matters, 
provide opportunity for a public hearing, and consult with the Corps, 
FWS, and NMFS.'' 40 CFR 233.16(d)(3). In the case of a change in 
geographic scope of a Tribal program, known interested persons would 
typically include representatives of Tribes, States, and other Federal 
entities located contiguous to the reservation of the Tribe which is 
applying for TAS. See, e.g., Amendments to the Water Quality Standards 
Regulation That Pertain to Standards on Indian Reservations, 56 FR 
64876, 64884 (December 12, 1991). This clarification is necessary 
because as discussed above, additions that affect the area of 
jurisdiction are not always substantial. However, revising a Tribal 
program to add new reservation land and waters of the United States on 
that land is substantial because it requires a determination that the 
Tribe meets the TAS eligibility criteria for such areas, pursuant to 40 
CFR part 233, subpart G.
    EPA is further amending the procedures associated with approval of 
program revisions to require EPA to notify the Corps of all approvals 
of program modifications, whether they are substantial or non-
substantial. EPA is also requiring that other Federal agencies be 
notified of these program modification approvals as appropriate.
4. Additional Clarification
    EPA is removing the term ``traditionally'' from the term 
``traditionally navigable waters'' in the following provision: ``Where 
a State permit program includes coverage of those traditionally 
navigable waters in which only the Secretary may issue 404 permits, the 
State is encouraged to establish in this Memorandum of Agreement 
procedures for joint processing of Federal and State permits, including 
joint public notices and public hearings.'' 40 CFR part 233.14(b)(2). 
EPA is removing the term ``traditionally'' to align the reference to 
retained waters with the rest of this preamble and regulations, which 
refer to retained waters using the statutory language in the section 
404(g) parenthetical, and do not refer to retained waters as 
``traditionally'' or ``traditional navigable waters.'' ``Traditional 
navigable waters'' are defined in the definition of ``waters of the 
United States'' and are not addressed by this rule. See 40 CFR part 
120.2(a)(1)(i).
3. Program Assumption Requirements
a. Overview and What the Agency Is Finalizing
    The Agency proposed changes to better harmonize its program 
approval requirements with program requirements in other sections of 
the CFR. To assume the section 404 program, a Tribe or State must be 
able to demonstrate that it can meet the requirements for permitting, 
program operation, compliance evaluation and enforcement, and 
administer a program that is consistent with section 404. EPA is 
revising the requirements for the program descriptions that Tribes and 
States submit to EPA when they request approval to assume the section 
404 program. First, the revisions clarify that the description of the 
funding and staff devoted to program administration and compliance 
evaluation and enforcement must demonstrate that the Tribe or State is 
able to carry out the existing regulatory requirements for permit 
review, program operation, and compliance evaluation and enforcement 
programs, provided in 40 CFR part 233 subparts C through E. In order to 
do so, the Tribe or State must provide in the program description staff 
position descriptions and qualifications, program budget and funding 
mechanisms, and any other information a Tribe, State, or EPA considers 
relevant. The revisions ensure that when a Tribe or State submits a 
request to assume the section 404 program, its program submission would 
demonstrate the Tribe or State has the resources necessary to ensure 
that the permit decisions comply with permit requirements in 40 CFR 
part 233 subpart C, as applicable; that its permitting operations would 
comply with the program operation requirements of 40 CFR part 233 
subpart D, as applicable; and that its compliance evaluation and 
enforcement operations would comply with the compliance evaluation and 
enforcement requirements of 40 CFR part 233 subpart E, as applicable.
    EPA is also revising the requirement that currently provides that 
if more than one State agency is responsible for the administration of 
the program, the program description shall address the responsibilities 
of each agency and how the agencies intend to coordinate 
administration, compliance, enforcement, and evaluation of the program. 
This rule adds that the program description must address additional 
program budget and funding mechanisms for each of these agencies, and 
how the agencies intend to coordinate program funding.

[[Page 103475]]

    Similarly, the Agency is revising the requirement that the Tribe or 
State program description include ``[a] description of the scope and 
structure of the State's program. . .[which] should include [the] 
extent of [the] State's jurisdiction, scope of activities regulated, 
anticipated coordination, scope of permit exemptions if any, and permit 
review criteria.'' 40 CFR part 233.11(a) (2023). EPA is clarifying that 
this description ``must'' address all of the listed elements in 
233.11(a). The rule is also clarifying that the description must 
provide sufficient information to demonstrate that the criteria are 
sufficient to meet the permit requirements in 40 CFR 233 subpart C. 
These revisions do not substantively change the requirements for permit 
review, program operation, and compliance evaluation and enforcement 
programs. Rather, they ensure that Tribes or States provide EPA with 
sufficient information to ensure that Tribal or State programs would be 
able to meet these requirements.
    Finally, EPA is revising the program description requirement that 
if more than one Tribal or State agency would be administering the 
program, the program description shall address inter-agency 
coordination. The revision clarifies that the description of inter-
agency coordination must include coordination on enforcement and 
compliance.
b. Summary of Final Rule Rationale and Public Comment
    CWA section 404(h) provides that, before approving a Tribe's or 
State's section 404 program, EPA shall determine whether the Tribe or 
State has the authority to administer the program, including to issue 
permits that comply with the CWA 404(b)(1) Guidelines, to provide for 
public notice and opportunity for comment on permit applications, and 
to abate violations of the permit or permit program. See 33 U.S.C. 
1344(h)(1)(A), (C), (G). Section 404(h) refers to a Tribe's or State's 
``authority,'' but legal authority would be meaningless without the 
capacity to implement it. Clarifying that EPA must ensure that Tribes 
and States have the resources and programs in place to implement their 
authority best carries out section 404(h).
    EPA's existing regulations effectuate section 404(h) by imposing 
program requirements for permitting, program operation, and compliance 
evaluation and enforcement set forth in 40 CFR part 233 subparts C 
through E to administer a program that is consistent with section 404. 
A program that lacks the resources to meet these requirements would not 
be able to carry out its statutory and regulatory obligations. This 
rule would not change these existing requirements; rather, it would 
ensure that the program submission provides information necessary to 
determine that Tribes and States can meet them.
    In the 1988 preamble to the section 404 State program regulations, 
EPA stated that the program description Tribes and States must submit 
to EPA ``should provide the information needed to determine if the 
State has sufficient manpower to adequately administer a good 
program.'' 53 FR 20764, 20766 (June 6, 1988). However, 40 CFR part 233 
subpart B, which contains the requirements for program approval, does 
not explicitly state that Tribes and States must demonstrate that they 
have sufficient resources to meet the requirements for permit issuance, 
program operation, and compliance and enforcement outlined in subparts 
C through E. The regulations require that the program description 
contain ``a description'' of available funding and manpower (i.e., 
staffing),\33\ 40 CFR 233.11(d) (2023), but did not clearly state that 
the available funding and staffing must be sufficient to meet the 
requirements of subparts C through E. In addition, the regulations 
provide that the program description must include ``a description'' of 
the Tribe's or State's compliance evaluation and enforcement programs, 
including a description of how the Tribe or State will coordinate its 
enforcement strategy with the Corps and EPA, 40 CFR 233.11(g) (2023), 
but did not clearly state that the Tribe's or State's compliance 
evaluation and enforcement programs must be sufficient to meet the 
requirements for section 404 program compliance evaluation and 
enforcement in subpart E. In the absence of these clarifications, the 
regulations did not provide sufficient guidance as to what kind of 
demonstration is needed by Tribes and States as they develop their 
programs. This revision would clarify the subpart B descriptions Tribes 
or States must submit, consistent with the goal of this rulemaking, to 
provide more clarity on the program assumption process for Tribes and 
States. See section III.B of this preamble. The purpose of subpart B is 
to require Tribes and States to demonstrate that they in fact have the 
capacity to carry out subparts C through E, pursuant to the original 
intent of the current regulations, and these changes would better 
reflect that intent.
---------------------------------------------------------------------------

    \33\ In this revision, EPA is replacing the term ``manpower'' 
with ``staffing'' and will use the term ``staffing'' throughout this 
preamble.
---------------------------------------------------------------------------

    This rule requires the program description to identify position 
descriptions and qualifications as well as budget and funding 
mechanisms for all responsible Tribal or State agencies because this 
information is critical to understanding whether a Tribe or State will 
be able to administer subparts C through E. EPA must be able to 
determine that the Tribe or State will have sufficient qualified staff 
and a reliable and sufficient funding mechanism that will be 
commensurate with the responsibilities it seeks to assume. Given the 
importance of these elements, Tribes and States should have staffing 
and budget information readily available, and providing it in the 
program description should not impose a significant new burden.
    Some commenters opposed these revisions, as presented in the 
proposed rule, arguing that such requirements could result in 
unnecessary delays or confuse Tribes or States preparing assumption 
submissions. These commenters also stated that such revisions are 
unnecessary. For example, one commenter argued that to the extent EPA 
were to find, for example, staffing levels described in the program 
description insufficient, the 120-day review period for program 
submissions would not provide time for a Tribe or State to increase 
those levels. EPA disagrees with these commenters and has decided to 
finalize these revisions for the reasons discussed above. In response 
to the commenter that said that information about staffing levels would 
not aid EPA, EPA thinks that requiring transparency about staffing 
levels will encourage Tribes and States to ensure that their staffing 
levels will be sufficient to carry out their program. Without adequate 
staff to draft protective permits and inspect and review dredged and 
fill activity, it is not possible for a program to comply with CWA 
requirements. For example, EPA cannot assess a Tribe's or State's 
ability to administer CWA section 404 if it does not know whether the 
Tribe or State will have two permit writers or twenty. Moreover, EPA 
typically provides extensive technical support to Tribes and States 
that are preparing program submissions, and Tribes and States may 
discuss staffing levels with EPA at any time prior to their program 
submission.
    Many commenters supported the revisions in this section. Some asked 
EPA to require additional information from Tribes or States. One 
suggested addition was to require budget and funding information for 
all Tribal or State agencies with program

[[Page 103476]]

administration responsibilities, not just the lead agency. This 
suggested requirement is consistent with the budget and funding 
information EPA proposed to require, and simply addresses a potential 
ambiguity by clarifying that the budget and funding information EPA 
requests applies to all Tribal or State agencies with a role in the 
section 404 program, not just the lead agency. EPA is therefore 
adopting this suggested requirement in the final rule.
    Other program description requirements that commenters asked EPA to 
finalize include, but are not limited to: Tribes or States seeking to 
reallocate existing resources must describe the duties that existing 
staff will no longer perform and the skills and expertise staff have 
that apply to reallocated tasks; Tribal or State budget descriptions 
must account for all aspects of the section 404 program, including 
administrative work, human resources, information technology, training, 
guidance, leadership, enforcement, compliance, scientific personnel, 
on-site activities and legal personnel; and Tribes or States must 
demonstrate that any existing CWA-authorized programs are adequately 
funded and staffed. EPA considered requiring some or all of the 
suggested information of Tribes and States, but ultimately concluded 
that requiring this level of detail is unnecessary. EPA will not always 
need each of these pieces of information to determine whether a program 
submission meets the requirements of the CWA. Codifying information 
requirements with this degree of specificity could limit flexibility on 
the part of Tribes or States and EPA to design and approve program 
descriptions reflecting their particular circumstances. However, EPA 
views this suggested information as helpful guidance to Tribes or 
States as they assess how best to demonstrate that they have the 
capacity to administer the section 404 program. Tribes and States are 
welcome to submit this type of information, and if they do so, it will 
likely aid EPA's review of the program submission.
    EPA recommends that Tribes and States provide other information to 
the extent it is necessary to demonstrate that they will be able to 
carry out subparts C through E. Some commenters suggested that if a 
Tribal or State program submission commits to conduct the same 
activities as the Corps but with a lower budget or fewer staff people, 
the submission must provide detailed documentation demonstrating how 
they will be able to successfully administer the section 404 program. 
In fact, one commenter noted that Tribes or States should allocate more 
money to assumption than the Corps in the first few years of 
assumption, given the additional costs of starting a program. To the 
extent Tribes or States can compare resource levels with the Corps', 
EPA agrees with the commenter that this information would be useful, 
and strongly encourages Tribes and States to provide such comparisons. 
EPA is not codifying this requirement, however, as differences in 
administrative structures may render a direct comparison between Tribe 
or State funding or staff and Corps funding or staff infeasible. For 
example, a Corps district may not be able to identify the number of 
staff focused solely on section 404 permitting or on a single State, if 
its staff administers the section 404 regulatory program as well as RHA 
section 10 or other types of permitting programs, and/or if the staff 
manages permitting for a number of States. The difficulties with direct 
comparisons could be compounded in States that include multiple Corps 
districts. An alternative approach could compare the average number of 
different types of section 404 permits (i.e., individual versus general 
permits) Corps staff handle in a district to the average number of 
permits the Tribe or State has or anticipates its staff will handle in 
an assumed program.
    The rule does not prescribe a particular metric that Tribes or 
States must use to ensure sufficient funding, staffing, or compliance 
evaluation and enforcement programs. It also does not prescribe the 
specific position descriptions and qualifications a Tribe or State must 
have, a minimum budget, or a particular type of funding mechanism. The 
rule therefore retains a certain amount of flexibility for Tribes and 
States, recognizing that the section 404 program needs of different 
Tribes and States can differ. Tribal or State agencies likely have 
varying procedures for determining sufficient staff and funding levels 
and may choose to organize their programs in different ways. 
Furthermore, the necessary section 404 program budget may differ 
depending on the anticipated workload in the particular Tribe or State, 
such as the number of permits typically sought, the extent and types of 
aquatic resources assumed, and the types of compensatory mitigation 
mechanisms used. In adding clarification to better carry out the 
requirements of 40 CFR 233.11, this revision does not reopen those 
requirements.
    EPA's clarification, that as part of the program description, the 
Tribe or State must demonstrate that its permit review criteria are 
sufficient to carry out the permitting requirements of 40 CFR part 233 
subpart C, has the same goal as the program revisions described above: 
it would harmonize the requirements for the program description with 
the requirements for program operation, and facilitate EPA's ability to 
ensure that Tribal and State permits will comply with the CWA 404(b)(1) 
Guidelines.
    Finally, requiring that the description of Tribal and State agency 
coordination on program administration must address enforcement and 
compliance will enable EPA to ensure the Tribe or State can comply with 
the requirements of 40 CFR part 233 subpart E, which prescribes the 
enforcement and compliance requirements for assumed programs.
4. Mitigation
a. Overview and what is the Agency finalizing?
    The CWA and EPA's implementing regulations provide that every 
permit issued by a Tribe or State must apply and ensure compliance with 
the guidelines established under CWA section 404(b)(1).\34\ 33 U.S.C. 
1344(h)(1)(A)(i); 40 CFR 233.20(a), 233.23(c)(9) (2023). Under CWA 
404(b)(1) Guidelines, impacts to waters of the United States should be 
avoided and minimized to the maximum extent practicable before 
considering compensatory mitigation.\35\ 40 CFR 230.10(a), (d). In 
2008, the Corps and EPA issued joint regulations \36\ requiring 
performance standards and establishing criteria for all types of 
compensatory mitigation including: (1) on- and off-site permittee-
responsible compensatory mitigation, (2) mitigation banks, and (3) in-
lieu fee programs, to ``offset unavoidable impacts to waters of the 
United States authorized through the issuance of permits by the U.S. 
Army Corps of Engineers (Corps) pursuant to

[[Page 103477]]

section 404 of the Clean Water Act.'' 40 CFR 230.91(a)(1).
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    \34\ See section IV.A.2 of this preamble for a discussion on how 
a Tribe or State can demonstrate that it has the authority to issue 
permits that apply and assure compliance with aspects of the CWA 
404(b)(1) Guidelines other than compensatory mitigation.
    \35\ The term compensatory mitigation means ``the restoration 
(re-establishment or rehabilitation), establishment (creation), 
enhancement, and/or in certain circumstances preservation of aquatic 
resources for the purposes of offsetting unavoidable adverse impacts 
which remain after all appropriate and practicable avoidance and 
minimization has been achieved.'' 40 CFR 230.92.
    \36\ ``Compensatory Mitigation for Losses of Aquatic Resources'' 
73 FR 19594 (April 10, 2008). (Commonly referred to or known as the 
``2008 Mitigation Rule''). The 2008 Mitigation Rule was adopted into 
both EPA and the Corps regulations. See 33 CFR 325.1 and 332.1 
through 332.8 and 40 CFR 230.91 through 230.98. The Agency refers to 
EPA's regulations located at 40 CFR 230.91-98 as subpart J of the 
404(b)(1) Guidelines throughout this final rule.
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    The prior regulations reaffirmed that all permits issued by Tribal 
and State programs must accord with the requirements of the Act or 
regulations thereunder. 40 CFR 233.1(d), 233.20(a) (2023). As 
previously described in section IV.A.2 of this preamble, Congress 
allowed leeway for Tribes and States to craft a Tribal or State program 
consistent with circumstances specific to that Tribe or State, so long 
as their permits will assure compliance with the CWA 404(b)(1) 
Guidelines at least as stringently as permits issued by the Corps. EPA 
further explained in promulgating the CWA 404(b)(1) Guidelines that 
they are intended to provide ``a certain amount of flexibility,'' 
consisting of tools for evaluating proposed discharges, rather than 
numeric standards. 45 FR 85336, 85336 (December 24, 1980).
    While 40 CFR 233.1(d) of the prior regulations reemphasized that 
approved Tribe and State programs ``may impose more stringent 
requirements'' but ``may not impose any less stringent requirements for 
any purpose,'' the regulations did not provide any detail as to how a 
Tribe or State can demonstrate and ensure compliance with the 
substantive criteria and requirements of subpart J of the 404(b)(1) 
Guidelines, as subpart J was developed more than a decade after the 
Tribal and State section 404 program regulations were revised in 1988. 
Additionally, the language used in subpart J of the 404(b)(1) 
Guidelines focuses on Federal concerns regarding permits issued by the 
Corps; for example, it references the ``DA [Department of the Army] 
permits'' and the ``district engineer'' and does not refer to or 
account for Tribe- or State-issued permits. See 73 FR 19650. These 
Corps-related references have created confusion. As a result, States 
have requested clarity on how a Tribe or State can demonstrate that it 
has authority to issue permits that apply and assure compliance with 
the substantive criteria for compensatory mitigation set forth in 
subpart J of the CWA 404(b)(1) Guidelines. States have also requested 
clarification about the respective roles and responsibilities of the 
Tribe or State and Federal agencies in connection with compensatory 
mitigation for impacts to assumed waters.
    With respect to subpart J of the 404(b)(1) Guidelines, EPA 
recognized some terminology and discussion refers to the Corps as the 
permitting authority. EPA proposed modifying section 233.1(e) to 
clarify that references to the Corps as the permitting authority (such 
as references to the ``District Engineer'' or ``DA Permits'') are to be 
considered as applying to the Tribal or State permitting agency or 
decision maker as appropriate. The final rule codifies this proposed 
approach. 40 CFR 233.1(e).
    Secondly, EPA proposed a new provision codifying its interpretation 
that the Tribe's or State's approach may deviate from the specific 
requirements to the extent necessary to reflect Tribal or State 
administration of the program as opposed to the Corps' administration, 
but that these programs may not be less stringent than the substantive 
criteria of subpart J. Furthermore, the new provision requires Tribes 
or States to submit in their program description the Tribe's or State's 
proposed approach to ensuring that all permits they issue will apply 
and ensure compliance with the substantive criteria for compensatory 
mitigation consistent with the requirements of subpart J of the CWA 
404(b)(1) Guidelines at 40 CFR part 230. EPA is finalizing what was 
proposed without modification in section 233.11(k).
    Finally, EPA proposed to add a new provision to section 233.50 to 
address EPA's oversight responsibilities where Tribe or State programs 
are establishing third-party compensation mechanisms (i.e., mitigation 
banks or in-lieu fee programs) as part of their section 404 
program.\37\ The proposed process also intended to incorporate input 
from other relevant agencies, which is analogous to the way the 
Interagency Review Team (IRT) that oversees mitigation for Corps-issued 
permits incorporates input from other relevant agencies. See, e.g., 33 
U.S.C. 1344(g), (h); 40 CFR 233.20(b) (``No permit shall be issued . . 
. [w]hen the Regional Administrator has objected to issuance of the 
permit . . .''); 40 CFR part 233 generally; 40 CFR 230.98(b) 
(describing Interagency Review Team procedures). The Agency also 
proposed to revise the section title for section 233.50 to read 
``Review of and objection to State permits and review of compensatory 
mitigation instruments.'' This revision was intended to reflect the 
Agency's role in reviewing Tribal or State compensatory mitigation 
instruments.
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    \37\ This requirement does not include permittee-responsible 
mitigation plans as those would be reviewed as part of the permit 
conditions. If the Tribe or State uses permittee-responsible 
mitigation, the mitigation plan would be reviewed as part of the 
permit process. After approval, all specifications generally would 
be presented as permit conditions.
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    The new provision (i.e., section 233.50(k)) outlines a process 
which requires Tribes or States to transmit a copy of each draft 
instrument to EPA, the Corps, the U.S. Fish and Wildlife Service, and 
the National Marine Fisheries Service for review prior to approving the 
final instrument, as well as to any Tribal or State resource agencies 
to which the Tribe or State committed to send draft instruments in the 
program description. In the event that EPA has commented that the 
instrument is not consistent with the 404(b)(1) Guidelines (see section 
233.11(k)), the Tribe or State shall not approve the final compensatory 
mitigation instrument until EPA notifies the Director that the final 
instrument is consistent with the Guidelines. EPA is finalizing the 
proposed process along with specific time frames for receiving comments 
from the reviewing agencies in section 233.50(k).
b. Summary of Final Rule Rationale and Public Comment
i. Clarifying Authority
    The final rule, consistent with the proposal, clarifies in the new 
provision 233.1(e) that when a Tribe or State assumes the section 404 
program, references to the Corps as the permitting authority (such as 
references to the ``District Engineer'' or ``DA Permits'') in subpart J 
are to be considered as applying to and being implemented by the Tribal 
or State permitting agency or decision maker. EPA received no comments 
on this issue.
ii. Ensuring Consistency and Compliance With Subpart J
    The new provision 40 CFR 233.11(k) accomplishes three objectives. 
First, the new provision requires that Tribes or States submit in their 
program description their approach to ensure that all permits issued 
will satisfy and be consistent with the substantive standards and 
criteria of the compensatory mitigation set out in subpart J. This 
description allows EPA to evaluate whether the Tribe's or State's 
approach can implement a compensatory mitigation program consistent 
with the requirements of the CWA. Second, the new provision at section 
233.11(k) clarifies that the Tribe's or State's approach may deviate 
from the specific requirements of subpart J to the extent necessary to 
reflect Tribal or State administration of the program. For example, a 
Tribal or State program may choose to provide for mitigation in the 
form of banks and permittee responsible compensatory mitigation but may 
choose not to establish an in-lieu fee program. Lastly, the new 
provision at section 233.11(k) codifies EPA's interpretation that 
Tribal and State section 404 programs must issue permits that are no 
less stringent

[[Page 103478]]

than and consistent with the substantive criteria for compensatory 
mitigation described in 40 CFR part 230, subpart J. The new provision 
is consistent with CWA section 404(h)(1)(a), 40 CFR 233.1(e), and 40 
CFR 233.20(a).
    Commenters were divided on the Agency's proposed approach to this 
new provision. Commenters opposing the Agency's proposed approach asked 
the Agency to require Tribes and States to adopt verbatim or by 
reference the requirements of subpart J of the section 404(b)(1) 
Guidelines. These commenters asserted that verbatim adoption or 
incorporation by reference of the mitigation requirements set forth in 
subpart J would ensure consistency with the 404(b)(1) Guidelines and 
``promote consistency and ease for the EPA, permittees and citizens.'' 
Commenters supporting the proposed approach (i.e., allowing Tribal and 
State programs to deviate from the substantive criteria of subpart J) 
asserted that Tribes and States are in a better position to make 
decisions and design appropriate mitigation approaches for their Tribe 
or State than the Corps. Some commenters requested that EPA provide 
clearer direction on its expectations for resource mitigation, 
including banking and in-lieu fee proposals, greater specificity as to 
the standards EPA will use to review an applicant's proposed mitigation 
program, and require additional requirements in mitigation proposals.
    The Agency considered these comments and decided to finalize the 
proposed approach for several reasons. First, while nothing in this 
rule prohibits Tribes or States from adopting or incorporating the CWA 
404(b)(1) Guidelines, requiring Tribes and States to adopt or 
incorporate the CWA 404(b)(1) Guidelines, including subpart J, would 
conflict with the leeway Congress provided to Tribes and States to 
craft a Tribal or State program consistent with circumstances specific 
to that Tribe or State, so long as their permits will assure compliance 
with the CWA 404(b)(1) Guidelines at least as stringently as permits 
issued by the Corps. Recognizing that a CWA section 404 permit may be 
required for a variety of discharges into a wide range of aquatic 
ecosystems, EPA explained in promulgating the CWA 404(b)(1) Guidelines 
that they are intended to provide ``a certain amount of flexibility,'' 
consisting of tools for evaluating proposed discharges, rather than 
numeric standards. 45 FR 85336, 85336 (December 24, 1980). Similarly, 
as described in section IV.A.2 of this preamble, requiring Tribes or 
States to adopt or incorporate subpart J would complicate efforts by 
Tribes and States to impose more stringent requirements as part of 
their CWA section 404 programs. See section IV.A.2 of this preamble for 
further discussion on 404(b)(1) Guidelines.
    Commenters noted that mitigation requirements are tiered (or 
hierarchical) and insisted EPA should not allow State programs to 
``pick and choose'' between the allowable forms of mitigation (e.g., 
permittee responsible, mitigation banks, and in-lieu fees). A commenter 
stated that State programs which ``do not provide for all and follow 
the established hierarchy for their use would have less stringent 
compensatory mitigation requirements as compared to the federal 
program.'' EPA disagrees with this commenter. Tribes and States may not 
impose requirements less stringent than Federal requirements. 
Accordingly, Tribes and States must follow the hierarchical approach 
laid out in subpart J of the 404(b)(1) Guidelines. See 40 CFR 
230.93(b). But following this approach does not require the 
establishment of all three mechanisms listed in the hierarchy. Rather, 
Tribes and States, like the Corps, must apply the hierarchy to 
available mechanisms to determine the appropriate type of compensatory 
mitigation.
iii. Third Party Compensatory Mitigation Instrument Oversight and 
Approval
    EPA is finalizing the proposed process, which will implement the 
Agency's oversight responsibilities of third-party compensatory 
mitigation instrument approvals (i.e., mitigation banks and in-lieu fee 
programs), as well as provide opportunities for other agencies to 
review and comment on third-party compensatory instruments prior to 
approval. 40 CFR 233.50(k). Under the final process, a Tribe or State 
must provide EPA, the Corps, the U.S. Fish and Wildlife Service and the 
National Marine Fisheries Service an opportunity to review and comment 
on any draft compensatory mitigation instruments before the Tribe or 
State may establish the proposed instrument. The Tribe or State may 
also commit in their program description to include Tribal or State 
resource agencies in the circulation of draft instruments for approval. 
If EPA comments that the instrument fails to apply or ensure compliance 
with the section 404(b)(1) Guidelines, the Tribe or State may not 
approve the final compensatory mitigation instrument until they address 
EPA's comments and EPA notifies it that the final instrument ensures 
compliance with this approach.
    The Agency expects this instrument review process would be familiar 
to Tribes and States because it is modeled on, and similar to, the 
procedures for EPA review of permits, but does not replicate them. This 
process also facilitates input from other relevant agencies, similar to 
how an Interagency Review Team provides input to the Corps from other 
relevant Federal and State agencies on compensatory mitigation 
instruments. See, e.g., 33 U.S.C. 1344(g), (h); 40 CFR 233.20(b) (``No 
permit shall be issued . . . [w]hen the Regional Administrator has 
objected to issuance of the permit . . .''); 40 CFR part 233 generally; 
40 CFR 230.98(b) (describing Interagency Review Team procedures). 
Overall, the Agency believes this review process provides sufficient 
oversight for Tribal or State compensatory mitigation instruments and 
provides opportunity for multiple agencies to provide input on the 
draft compensatory instrument before it is approved. The Agency 
believes the final requirements outlined in the new provision 233.50(k) 
strike a balance between Federal oversight responsibility of draft 
compensatory mitigation instruments while allowing Tribes and States 
flexibility to solicit input from additional resource agencies.
    No commenters opposed the proposed approach. However, one commenter 
cautioned EPA not to implement a rigid process that would limit Tribes' 
or States' flexibility in designing their own compensatory mitigation 
approach. EPA believes that this provision provides such flexibility.
    One commenter requested that the Agency expand the list of 
mitigation instrument reviewers to include relevant Tribal and State 
agencies (e.g., Tribal- or State-level fish and wildlife services) to 
the list. The Agency agrees with the commenter and believes that 
additional reviews from relevant resource agencies would be 
advantageous by providing local expertise and helping assess the 
applicability of the mitigation instrument (e.g., including but not 
limited to the structure of the instrument, design of the proposed 
projects, proposed loss and benefits, and evaluation of successful 
instrument), thereby promoting positive outcomes for environmental 
protections.
    The Agency is not requiring circulation to ``relevant Tribal or 
State agencies'' because the criteria for ``relevancy'' is vague. What 
constitutes a ``relevant'' agency is susceptible to differing 
interpretations, especially as Tribes and States organize their 
authorities under differing or even multiple agencies (e.g., some 
regulate

[[Page 103479]]

wetlands under the State Department of Lands, others regulate them 
under the State water quality agency). Therefore, imposing mandatory 
circulation to this category of agencies would create confusion and 
implementation challenges for the Tribal or State authority. 
Furthermore, the Agency believes the new provision at section 233.50(k) 
provides Tribes and States the opportunity to identify and commit to 
additional instrument reviews from other Tribal or State agencies in 
their program description. The new provision also allows a Tribe or 
State to invite other resource agencies not identified in their program 
description to participate in draft instrument review on a case-by-case 
basis.
    The Agency received one comment requesting that EPA provide clearer 
direction on its expectations for resource mitigation, including 
banking and in-lieu fee proposals, and greater specificity as to the 
standards EPA will use to review an applicant's proposed mitigation 
program. The commenter also asked that EPA require additional 
requirements in mitigation proposals. EPA is not reopening the section 
404(b)(1) Guidelines in this rule and does not have the authority to 
impose substantive mitigation requirements on Tribes and States that 
are more stringent than the mitigation requirements in the section 
404(b)(1) Guidelines.
5. Effective Date for Approved Programs
a. What is the Agency finalizing?
    Section 404(h) of the CWA addresses the transfer of permitting 
authority and pending permit applications from the Corps to the Tribe 
or State following EPA notice of program approval but does not specify 
an effective date. The prior regulations provided that the transfer of 
permitting authority could only take effect after notice of EPA's 
program approval appeared in the Federal Register. 40 CFR 233.15(h) 
(2023). Several States that have contemplated assumption of the section 
404 program indicated that a transition period between EPA's approval 
decision and the date of transfer of responsibility from the Corps to 
the State would enable them to more effectively prepare for the 
transition, including securing and allocating the necessary resources 
to successfully implement the assumed section 404 permitting program if 
their program is approved.
    EPA proposed to establish a presumptive effective date for program 
assumption of 30 days from the date of publication of the notice of 
EPA's program approval in the Federal Register. The proposal also 
provided that if requested and supported by a Tribe or State in its 
request to assume the program, EPA may specify a later effective date, 
not to exceed 120 days from the date of notice in the Federal Register. 
A Tribe or State which seeks a later transfer date must provide a 
sufficient explanation of its need for the additional time as part of 
its program submission. In all cases, that effective date must be set 
forth in the Memorandum of Agreement between a Tribe or State and EPA 
required by 40 CFR 233.14(b)(2) and published in the Federal Register. 
EPA also proposed to require that decisions to approve Tribal and State 
programs and revisions be posted on EPA's website in addition to 
publication in the Federal Register. After reviewing public comments, 
the Agency is finalizing its approach as proposed with one modification 
to allow Tribes or States and EPA to establish a later effective date 
not to exceed 180 days from the date of notice in the Federal Register.
b. Summary of Final Rule Rationale and Public Comments
    Section 404(h)(4) of the CWA provides that ``[a]fter the Secretary 
receives notification from the Administrator under paragraph (2) or (3) 
of this subsection that a State permit program has been approved, the 
Secretary shall transfer any applications for permits pending before 
the Secretary for activities with respect to which a permit may be 
issued pursuant to such State program to such State for appropriate 
action.'' 33 U.S.C. 1344(h)(4). Once the State has received those 
permit applications, and signals to the Corps that it is ready to 
assume permitting activity, permitting responsibility should transfer. 
Id. at 1344(h)(2). Thus, the administrative process envisioned by 
Congress is that EPA receives a program request, reviews and approves 
or denies the program request, then notifies the parties of an approval 
decision, after which the Corps begins to transfer existing permitting 
materials. The contrast between the specific time frames the statute 
provides for EPA's approval of a program and the absence of a time 
frame for the transfer of permit applications from the Corps suggests 
that Congress intended some flexibility in the transition to Tribal or 
State program implementation. However, the fact that the statute 
describes the transfer of permits as the immediate next step following 
program approval indicates that Congress intended the transfer to 
happen relatively quickly.
    EPA proposed to modify the regulatory text to clarify when and how 
the section 404 program transfers to the Tribe or State following EPA's 
approval, and that the presumptive date of transfer would be 30 days 
from the date of notice of program approval in the Federal Register, 
but that Tribes and States that satisfactorily demonstrate a need for 
more than 30 days to assume and be prepared to fully administer the 
program could request an effective date of up to 120 days from the date 
of notice. EPA also proposed that if a Tribe or State requests to 
assume administration of the program more than 30 days after EPA's 
approval, the program description must include a description and 
schedule of the actions that will be taken following EPA approval for 
the Tribe or State to begin administering the program.
    A number of commenters supported EPA's proposal to allow for more 
than 30 days for program transfer. Most of these commenters, however, 
requested that the maximum time be longer than EPA's proposed maximum 
of 120 days, or not specifically limited. These commenters agreed that 
some Tribes and States, especially smaller ones, may need more time to 
effectively prepare for program implementation, such as training staff, 
to successfully implement the assumed section 404 permitting program if 
their program is approved. One commenter stated that no more than 120 
days should be needed if a Tribe or State were sufficiently prepared to 
assume the program.
    EPA finds that a short, clearly defined period of time between 
program approval and the Tribe or State's assumption of program 
administration benefits the public and regulated community by providing 
advance notice of the date of program transfer and supports the smooth 
transition of program functions. However, EPA agrees that extending the 
maximum period of time to 180 days could reduce the burden for some 
Tribes and States, without significantly increasing the uncertainty 
that might arise from lengthier transition periods.
    The final rule allows the effective date to be more than 30 days 
following approval (though no more than 180 days), when a Tribe or 
State identifies specific circumstances which support the need for 
additional time. If the Tribe or State takes advantage of this option 
to delay the effective date, the Tribe or State's program description 
should set forth the steps it will take upon program approval, such as 
specifying the timeline for any assignment and training of staff and 
ensuring program funding is accessible by the effective date. Generally 
speaking, a Tribe or State should not wait until EPA approves its

[[Page 103480]]

program before initiating hiring and training processes for staff that 
are committed in its program description and the Tribe or State should 
be prepared to implement the final steps soon after program approval.
    The Agency is finalizing the requirement that the Memorandum of 
Agreement between a Tribe or State and EPA include the effective date 
for transfer of the program from the Corps to the Tribe or State, 
identified as the number of days following the date of publication of 
program approval in the Federal Register. This will provide for the 
efficient development and administration of the Tribal or State 
program, while also making the process more predictable for the 
regulated community and the public. As with the prior regulations, the 
Corps will continue to process permit applications up until the 
effective date, but they will also use the time between approval and 
the effective date to begin transferring permits under review. The 
Tribe or State would not be authorized to process these permits until 
the effective date of program transfer. The Tribe or State and the 
Corps will include procedures for transferring pending section 404 
permit applications and other relevant information to the Tribe or 
State in their Memorandum of Agreement. 40 CFR 233.14(b)(2).

C. Program Operations

1. Five-Year Permits and Long-Term Projects
a. Overview and What the Agency Is Finalizing
    Congress limited CWA section 404 permits issued by Tribes or States 
that assume the section 404 program to five years in duration. 33 
U.S.C. 1344(h)(1)(A)(ii).\38\ The Agency codified this limitation in 
the permit conditions section of the prior section 404 Tribal and State 
program regulations. 40 CFR 233.23(b) (2023). However, certain projects 
by their nature cannot be completed within five years and therefore 
need more than one five-year permit. Examples of these long-term 
projects include some residential or commercial developments, linear 
projects such as transportation corridors, and energy or mining 
projects. The Agency is concerned that if applicants with long-term 
projects only submit information about activities that will occur 
during one five-year period of their project in their permit 
application, the permitting agency and members of the public will not 
have sufficient information to assess the scope of the entire project, 
or cumulative impacts of the entire project.
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    \38\ Corps-issued individual permits are not limited to five 
years. See 33 CFR 325.6(b), (c) (authorizing certain types of 
permits for an ``indefinite duration'' or else a ``limited 
duration'' but with no five-year limitation period). General permits 
issued by the Corps are limited to five years. See 33 U.S.C. 
1344(e)(2).
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    To minimize unnecessary effort and paperwork, and provide the Tribe 
or State and the public with information that can assist with the 
successful permitting of long-term projects, the Agency proposed that 
applicants for projects for which the planned schedule extends beyond 
five years at the time of the initial five-year permit application must 
submit a 404(b)(1) analysis for the full scope and term of the project 
with the application for the first five-year permit and modify the 
404(b)(1) analysis, as necessary, for subsequent five-year permits. The 
proposed rule preamble discussed the criteria that the Tribe or State 
must consider when determining whether the 404(b)(1) analysis needs to 
be modified. 88 FR 55303. If there has been a change in circumstance 
related to an authorized activity following approval of the previous 
five-year permit, the applicant must modify the 404(b)(1) analysis for 
subsequent five-year permits. If there have been no changes in 
circumstances related to an authorized activity following approval of 
the previous five-year permit, the applicant's new permit application 
may rely upon the most recent 404(b)(1) analysis. Consistent with CWA 
requirements, the proposal also required that a new permit application 
must be submitted for projects that exceed a five-year schedule (e.g., 
based on construction plans), and all aspects of the permit 
application, public notice, and Tribal or State review requirements set 
forth in 40 CFR 233.30, 233.32, and 233.34, respectively, apply. To 
avoid a stoppage in work, the proposal required that an applicant 
seeking a new five-year permit should apply for the new permit at least 
180 days prior to the expiration of the current permit.
    In response to public comments, the Agency is revising its proposed 
approach to require that the permit application and public notice for a 
subsequent five-year permit application must indicate whether the 
404(b)(1) analysis has been updated and that the Tribe or State must 
provide a written explanation if it does not require an updated 
404(b)(1) analysis for a subsequent five-year permit(s). Additionally, 
EPA is authorizing the Tribe or State to grant permission to submit an 
application less than 180 days prior to the expiration of the current 
permit but no later than the permit expiration date.
b. Summary of Final Rule Rationale and Public Comments
i. Permitting Long-Term Projects
    The Agency is finalizing a process for permitting long-term 
projects in waters assumed by a Tribal or State section 404 program 
that is consistent with the statutory limitation that permits not 
exceed five years in duration,\39\ yet increases predictability for 
permittees and provides sufficient information for the Tribe or State 
to consider the full scope of a project's impacts to the aquatic 
environment. When applying for a permit to discharge dredged or fill 
material associated with projects \40\ with a planned construction 
schedule which may extend beyond the five-year permit period, 
applicants must submit an analysis that demonstrates compliance with 
the 404(b)(1) Guidelines showing how the complete long-term project 
complies with the environmental review criteria set forth in the CWA 
404(b)(1) Guidelines when they submit the application for the first 
five-year permit. The 404(b)(1) analysis must provide information 
demonstrating that the project meets each element of the CWA 404(b)(1) 
Guidelines for the full term of the project.\41\ For example, under 
this approach, an applicant seeking permit coverage for a 15-year, 
multi-phase housing development project would provide information about 
all phases of the project, covering its full 15-year term, in its 
permit application. If this project were anticipated to involve the 
construction of two hundred homes in years 0-5, two hundred homes in 
years 5-10, and two hundred homes in years

[[Page 103481]]

10-15, the permit application would provide information about the 
construction of all six hundred homes.
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    \39\ 33 U.S.C. 1344(h)(1)(A)(ii).
    \40\ Per 40 CFR 233.30(b)(5), all activities which the applicant 
plans to undertake which are reasonably related to the same project 
should be included in the same permit application.
    \41\ This information includes, but is not limited to: (i) 
information describing the purpose, scope, and timeline for the 
entire project; (ii) an alternatives analysis for the entire 
project; (iii) information sufficient to demonstrate appropriate and 
practicable steps that will be taken to avoid and minimize impacts 
from the entire project; (iv) information sufficient to demonstrate 
that the project will not cause or contribute to significant 
degradation of waters of the Unites States, including factual 
determinations, evaluations, and tests for the entire project; (v) 
an assessment of cumulative and secondary effects of the entire 
project; (vi) information sufficient to demonstrate that the project 
will not violate applicable state water quality standards or toxic 
effluent standards, jeopardize the continued existence of federally 
listed species or adversely modify or destroy critical habitat, or 
violate protections for marine sanctuaries designated under the 
Marine Protection, Research, and Sanctuaries Act of 1972; and (vii) 
a description of compensatory mitigation proposed to offset all 
unavoidable impacts associated with the entire project. See 
generally 40 CFR part 230.
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    Some commenters supported the proposed rule approach without 
modification. Several commenters supported the proposed rule approach 
requiring an applicant to submit a 404(b)(1) analysis for the entirety 
of the project as part of the first five-year permit review period but 
recommended modifying the proposed rule approach to require an 
automatic update to the 404(b)(1) analysis at least every five-year 
permit cycle. According to these commenters, projects may change as 
they move forward and even small changes may have an impact on water 
quality, as well as on Tribal rights and resources. Some of these 
commenters supported a requirement that a written explanation be 
provided in the event the permitting authority does not require an 
updated section 404(b)(1) analysis.
    EPA has evaluated these comments and concluded that an automatic 
update to the 404(b)(1) analysis every five-year permitting cycle is 
unnecessary. Instead, for subsequent five-year permits, EPA is 
requiring that Tribes or States provide a written explanation if they 
do not determine that a ``change in circumstance'' has occurred 
requiring an updated 404(b)(1) analysis. Adding this requirement 
provides transparency and ensures the Tribe or State engages in a 
meaningful analysis of why there has not been a ``change in 
circumstance.'' EPA believes this approach strikes the right balance of 
providing more regulatory certainty for subsequent five-year permits, 
while also ensuring that the scope of impacts associated with a 
complete project is factored into the permitting decision for each 
five-year permit.
    One commenter asked EPA to require that sufficient information 
related to planned impacts for future permitting phases be included in 
an initial permit application. The rule modifies previous language in 
40 CFR 233.30(b)(5), which stated that ``[a]ll activities which the 
applicant plans to undertake which are reasonably related to the same 
project must be included in the same permit application.'' (emphasis 
added). The final rule expands upon this provision and requires, 
``[f]or projects for which the planned schedule extends beyond five 
years at the time of the initial five-year permit application, the 
application for both the first and subsequent five-year permits must 
include an analysis demonstrating that each element of the 404(b)(1) 
Guidelines is met, consistent with 40 CFR part 230, for the full term 
of the project.'' The final rule also requires that, ``[a]pplicants for 
subsequent five-year permits must update the 404(b)(1) Guidelines 
analysis if there has been a change in circumstance related to the 
project following approval of the previous five-year permit.''
    Some commenters opposed any regulatory changes related to long-term 
projects. One commenter argued that requiring a comprehensive 404(b)(1) 
analysis would present a barrier to State assumption and questioned the 
legality of that approach. EPA disagrees with this commenter. Each 
State that has assumed the section 404 program has at times expressed 
interest in allowing for a full project analysis at the time of the 
first permit application and allowing expediencies in subsequent rounds 
of permitting for the same project, as a means of both ensuring 
comprehensive water quality protections and protecting permit 
applicants against wasted financial resources. As a legal matter, 
requiring an analysis of the full project scope is consistent with 
section 404(b)(1)(A), which provides that Tribes and States must have 
the authority to issue permits which apply and assure compliance with 
the 404(b)(1) Guidelines. The Guidelines, in turn, require an 
evaluation of the potential for adverse impacts on the aquatic 
ecosystems posed by dredged or fill material discharge activities. 40 
CFR 230.10.
    This approach is consistent with the Agency's long-standing 
position that activities related to the same project should not be 
split into multiple permits, which can undermine efforts to ensure a 
complete alternatives analysis, an accurate accounting of all 
cumulative impacts, an appropriate mitigation plan, and that the public 
is sufficiently on notice of forthcoming dredged and fill activities. 
See 40 CFR 233.30(b)(5) (2023). This approach is also similar to the 
Corps' requirement that all activities that are reasonably related to 
the same project be included in the same permit application. 33 CFR 
325.1(d)(2). Providing information about all phases of the project does 
not authorize dredged and fill activity beyond the five-year permit 
term. Moreover, unless there has been a change in circumstance related 
to an authorized activity, the same information should be provided in 
subsequent applications for later stages of the long-term project, such 
as applications seeking authorization for activity in years 6-10 of the 
project, years 11-15 of the project, and so forth. Additionally, this 
approach will improve environmental protections by ensuring that the 
scope of impacts associated with a complete project is factored into 
the permitting decision for each five-year permit.
    This approach will also help ensure consistency in permitting 
decisions associated with the project, thereby providing the applicant 
with more regulatory certainty than without such a plan. Evaluating the 
impacts of only the first stage of a long-term project does not make 
business sense. For example, if a permitting authority evaluating a 
second- or third-round permit for a mine's construction or operation 
were to deny the permit based on those previously unevaluated impacts, 
the investments made during the first round or two of permit coverage 
would have been wasted. Foregoing an initial long-term plan would 
therefore be extremely inefficient.
    The issuance of Tribal or State section 404 permits for projects 
that exceed a five-year schedule only authorizes discharges occurring 
in the five-year period identified in the permit. Permittees for long-
term projects must submit a new permit application for each subsequent 
five-year permit term. The issuance of a subsequent five-year permit 
for the same project does not constitute a continuance or modification 
of the previous permit. Nothing in the final rule affects the process 
for continuing or modifying permits set forth in an approved Tribal or 
State section 404 program.
    The Agency recognizes that some permittees may expect that a 
project will be completed within the five-year permit term but 
ultimately the project takes longer. The Tribe or State administering 
the section 404 program should make reasonable efforts to verify that 
all activities that are reasonably related to the same project are 
included in the same permit and to evaluate whether a project's 
schedule extends beyond five years at the time of the initial five-year 
permit application.
    In the event a project anticipated to be completed within five 
years is not completed during that time, the applicant must apply for a 
new five-year permit. To avoid a stoppage in work, the Agency is 
requiring that an applicant seeking a new five-year permit must apply 
for the new permit at least 180 days prior to the expiration of the 
current permit to allow sufficient time for the application to be 
processed. However, consistent with other CWA programs which have a 
similar 180-day advance application requirement (e.g., 40 CFR 
122.21(d)), upon special request the Tribe or State may grant 
permission to reapply less than 180 days prior to the expiration of the 
current permit but no later than the permit expiration date. This 
approach provides time for a

[[Page 103482]]

public comment period and any required EPA review of the new permit 
application.
    This final rule approach to five-year permits presents both 
environmental and financial advantages. It promotes environmental 
protections by ensuring that the scope of impacts associated with a 
complete project are factored into the permitting decision for each 
five-year permit. Tribal or State review of a 404(b)(1) analysis for a 
five-year permit does not constitute pre-approval of subsequent five-
year permits for the project and there is no guarantee that an 
applicant for a long-term project will receive all of the five-year 
permits needed to complete the project. That said, including a 
404(b)(1) analysis for the full scope of the project with the 
application for the first five-year permit and modification of the 
404(b)(1) analysis, as necessary, for subsequent five-year permits will 
help ensure consistency in permitting decisions associated with the 
project, thereby providing the applicant with more regulatory certainty 
than without such a plan.
ii. Criteria for Modification of 404(b)(1) Analyses
    The Agency recognizes that changes in circumstances related to an 
authorized activity may occur over time. For example, plans for 
subsequent phases of a long-term project may lack detail at the time an 
applicant submits a 404(b)(1) analysis for the first five-year permit 
and adjustments to the description of the project may therefore be 
required. If there has been a change in circumstance related to an 
authorized activity following approval of the previous five-year 
permit, the Agency is finalizing as proposed that the applicant must 
modify the 404(b)(1) analysis for subsequent five-year permits. A 
change in circumstance related to the authorized activity includes, but 
is not limited to, the following:

--Change in project purpose;
--Change in project boundary;
--Change in scope of waters impacted;
--Change in secondary or cumulative impacts;
--Change affecting compensatory mitigation;
--Change in site conditions, including new alternatives or 
opportunities for minimization of impacts;
--Change in environmental conditions, including the presence or new 
listing of threatened or endangered species or critical habitat; or
--Change to applicable statutes, regulations, or guidance.

    If there have been no changes in circumstances related to an 
authorized activity following approval of the previous five-year 
permit, the applicant's new permit application may rely upon the most 
recent 404(b)(1) analysis. As discussed above, the permit application 
and public notice for a subsequent five-year permit application must 
indicate whether the 404(b)(1) analysis has been updated. A Tribe or 
State may require that a 404(b)(1) analysis be updated based on a 
change in circumstances, either on their own motion, at the request of 
Federal agency reviewers providing comments via EPA or at the request 
of the public. Federal agency reviewers or members of the public who 
submit such a request must provide information supporting a change in 
circumstances for the Tribe or State to consider the request. A change 
in circumstances may be significant enough that the project no longer 
meets conditions for approval. Other factors may also weigh in favor of 
permit denial, such as an applicant's non-compliance with the previous 
permit. If the Tribe or State does not require an update to the 
404(b)(1) analysis, it must provide a detailed written explanation in 
the record of decision for the permit based on the ``change in 
circumstance'' factors listed above and any additional factors 
identified in the Tribe or State's program description. The Tribe or 
State must provide this detailed written explanation for not requiring 
an update to the 404(b)(1) analysis regardless of whether it received a 
request from Federal agency reviewers or the public.
iii. Clarification Regarding Long-Term Projects
    The Agency is finalizing as proposed a clarification that all 
aspects of the permit application, public notice, and Tribal or State 
review requirements set forth in 40 CFR 233.30, 233.32, and 233.34, 
respectively, apply to each permit application, including for projects 
that exceed a five-year schedule. Such clarification will help ensure 
that applicants, Tribes, and States comply with the five-year permit 
limitation set forth in CWA section 404(h)(1)(A)(ii). EPA expects that 
the permit application process for permits after the initial five-year 
permit application will be easier and simpler because the applicant and 
Tribe or State will have already analyzed the full project.
    All public notices for long-term permits must satisfy the public 
notice requirements in 40 CFR 233.32(d). In addition, the scope of 
information the Tribe or State may consider when reviewing a permit 
application may not be limited for any application, including 
applications for each five-year permit of a project that takes more 
than five years to complete. Nor may a Tribe or State limit the scope 
of comments the public may submit in response to the public notice, or 
public hearing if a hearing is held, to impacts arising from one five-
year permit of a long-term project as opposed to impacts from the 
entirety of the long-term project.
2. Judicial Review and Rights of Appeal
a. Overview and What the Agency Is Finalizing
    The prior regulations require the program description to describe 
the Tribe's or State's judicial review procedure but did not contain an 
explicit corresponding substantive requirement for Tribal or State 
programs. The Agency proposed to codify a substantive requirement to 
match the prior descriptive requirement. After considering comments 
urging EPA to ensure that States facilitate public participation in the 
permitting process, EPA is finalizing a provision that would require 
States seeking to assume the section 404 program to provide an 
opportunity for judicial review in State court of the final approval or 
denial of permits by the State that is sufficient to provide for, 
encourage, and assist public participation in the permitting process. 
EPA did not propose any judicial review requirement relevant to Tribes 
in the regulatory text. In a change from proposal, EPA is codifying a 
requirement that Tribes must provide a commensurate form of citizen 
recourse for applicants and others affected by Tribe-issued permits.
b. Summary of Final Rule Rationale and Public Comment
    This provision gives meaning to the existing regulatory requirement 
that State program descriptions describe their judicial review 
procedures. See 40 CFR 233.11(b). EPA interprets the existing 
requirement that States provide ``a description of the State's . . . 
judicial review . . . procedures'' to suggest that States must 
authorize judicial review. The new substantive requirement that States 
allow for judicial review sufficient to provide for, encourage, and 
assist public participation in the permitting process makes explicit 
that States must have authorities in place to form the basis for the 
existing description requirement.
    The provision also carries out the requirement that States have the 
authority to ``abate violations of the . . . permit program'' through 
``ways and means of enforcement.'' 33 U.S.C. 1344(g). Potential 
violations of the permit program may include State

[[Page 103483]]

permitting actions, such as the issuance of a permit that does not 
assure compliance with the section 404(b)(1) Guidelines or that has not 
provided public notice and an opportunity for a hearing. See 33 U.S.C. 
1344(h)(1)(A)(i), (h)(1)(C). One of the most effective ways to abate 
such violations is to allow members of the public to challenge them. 
Given that EPA has limited resources to expend on oversight of State 
permitting actions, citizen challenges are a critical complementary 
tool for abating violations of the permit program.
    The judicial review provision also gives meaning to the requirement 
that States must have adequate authority to ensure that the public 
``receive[s] notice of each application for a permit and to provide an 
opportunity for public hearing before a ruling on each such 
application.'' 33 U.S.C. 1344(h)(1)(C). As EPA explained in 
promulgating a requirement for judicial review in the section 402 
program, the United States Court of Appeals for the Fourth Circuit has 
agreed that ``[t]he comment of an ordinary citizen carries more weight 
if officials know that the citizen has the power to seek judicial 
review of any administrative decision harming him.'' Amendment to 
Requirements for Authorized State Permit Programs Under Section 402 of 
the Clean Water Act, 61 FR 20972 (May 8, 1996), codified at 40 CFR 
123.30, citing Com. of Virginia v. Browner, 80 F.3d 869, 879 (4th Cir. 
1996).
    Without the possibility of judicial review by citizens, public 
participation before a State administrative agency could become less 
meaningful. See also 33 U.S.C. 1251(e) (``Public participation in the . 
. . enforcement of any regulation, standard, effluent limitation, plan, 
or program established by the Administrator or any State under this 
chapter shall be provided for, encouraged, and assisted by the 
Administrator and the States.''); A Legislative History of the Water 
Pollution Control Act Amendments of 1972, Comm. Print No. 1, 93d Cong., 
1st Sess. at 1490 (``The scrutiny of the public . . . is extremely 
important in insuring . . . a high level of performance by all levels 
of government and discharge sources.'').
    Finally, the proposed approach is consistent with the CWA's 
requirement that States issue permits that ``apply, and assure 
compliance with, any applicable requirements'' of section 404, 33 
U.S.C. 1344(h)(1)(A)(i); and the regulatory provision providing that 
``[a]ny approved State Program shall, at all times, be conducted in 
accordance with the requirements of the Act and of this part.'' 40 CFR 
233.1(e). As citizens are authorized to challenge the issuance of 
section 404 permits when the Federal Government administers the 
program, challenges must also be authorized when a State has assumed 
the program in order to assure compliance with the applicable 
requirements of section 404 and to ensure that the State program is not 
less stringent than the Federal program. Permitting authorities are 
likely to be particularly careful to address citizens' input and ensure 
that issued permits comply with CWA requirements if such permits may be 
challenged by such citizens. Therefore, ensuring that States provide an 
opportunity for judicial review helps to ensure compliance with section 
404 and all requirements of the CWA. Any of the provisions in 404(g) 
cited above as authority for the judicial review provision would be 
independently sufficient to justify finalizing this provision.
    EPA proposed the language that it is codifying in this rule, except 
for the regulatory requirement that Tribes provide a commensurate form 
of citizen recourse for those affected by permitting decisions. The 
proposal had also stated that a State would meet the required judicial 
review standard if it allowed an opportunity for judicial review that 
is the same as that available to obtain judicial review in Federal 
court of a federally issued NPDES permit. Further, the proposal stated 
that a State would not meet this standard if it either narrowly 
restricted the class of persons who could challenge the approval or 
denial of permits (such as by limiting standing to people who would 
suffer pecuniary injury from the permitting decision or to people who 
own property close to the discharge or receiving waters) or if the 
State required the losing party to pay attorneys' fees notwithstanding 
the merit of its position. See 88 FR 55326.
    A number of commenters expressed support for the proposed 
provision. Some commenters asked that EPA establish broader or more 
detailed limitations on restrictions or disincentives to judicial 
review. These commenters emphasized the importance of ensuring that the 
public has access to courts and discussed the significant chilling 
effects of State limitations on citizen suit challenges, such as fee-
shifting provisions that make the ``loser pay'' (whether in full, in 
part, or at the judge's discretion) and requirements to exhaust 
administrative remedies that can deplete prospective plaintiffs' 
resources before they even initiate a State court challenge. These 
commenters asked EPA to prohibit certain requirements more clearly, 
including any form of fee-shifting and excessive administrative 
exhaustion requirements.
    Other commenters expressed concerns about the proposed rule 
provision, stating that it would be a significant impediment, if not a 
complete barrier, to States seeking assumption. These commenters also 
argued that, as a legal matter, nothing in the CWA authorizes EPA to 
require judicial review opportunities for section 404 permits. They 
stated that while Congress does provide for judicial review by any 
interested person of EPA's issuance or denial of section 402 permits 
pursuant to CWA section 509(b)(1), it is silent with respect to 
judicial review of section 404 permits. This omission, in the 
commenters' view, indicates that Congress intentionally did not require 
a heightened level of review for section 404 permits.
    EPA has finalized the requirement that States must provide for 
judicial review of State-issued permits or permit denials that is 
sufficient to provide for, encourage, and assist public participation 
in the permitting process. 40 CFR 233.24. The final requirement is 
shorter than the proposed requirement and does not specifically detail 
various examples of unacceptable barriers to judicial review. As noted 
above, it simply codifies the substantive corollary to the existing 
program description requirement that States describe their judicial 
review procedures. EPA disagrees with the commenters that stated EPA 
lacks authority to impose this requirement. As discussed above, the 
final requirement is consistent with the CWA's requirements for public 
participation in the permitting process and that State programs comply 
with all requirements of section 404, as well as the regulatory 
requirement that State programs be no less stringent than the Federal 
section 404 program. EPA expects that States will have the authority 
and experience to implement this requirement because it is similar to 
the section 402 requirement that States authorize judicial review.
    EPA removed from the final rule the examples of the ways in which 
States can demonstrate that they provide for judicial review of State-
issued permits or permit denials that is sufficient to provide for, 
encourage, and assist public participation in the permitting process. 
Commenters made clear that States can either facilitate or impede 
judicial review of State-issued permits in a wide variety of ways. 
Specifically listing just a few of those examples in the regulations 
would be under-inclusive, but a longer and more prescriptive list

[[Page 103484]]

risks intruding into the operations of State courts and State civil 
procedure, areas traditionally subject to State control. EPA will 
therefore evaluate State judicial review provisions as part of program 
submissions on a case-by-case basis to determine whether they provide 
for judicial review of State-issued permits or permit denials that is 
sufficient to provide for, encourage, and assist public participation 
in the permitting process. Finally, in omitting the explicit 
requirement that States provide judicial review opportunities 
commensurate with those available for section 402 permits under CWA 
section 509(b), the provision no longer implicates the commenters' 
argument that it conflicts with Congress' intentional omission of 
section 404 permits from the scope of section 509(b) review.
    EPA would also look to the State Attorney General's statement to 
certify that the laws of the State meet the requirements of the 
regulation. See 40 CFR 233.12. States with expansive judicial review 
opportunities, such as those that allow standing to challenge permits 
on the part of interested citizens and citizen groups, and that do not 
require parties who lose lawsuits brought in good faith to pay other 
parties' legal fees, should meet the regulatory judicial review 
requirement. As with the section 402 regulations, the provision applies 
to final actions with respect to modification, revocation and 
reissuance, and termination of permits, as well as the initial approval 
or denial of permits.
    The final rule approach for the section 404 State program 
regulations effectuates EPA's policy interest in deferring to State 
administration of authorized section 404 programs in the same way that 
EPA defers to State administration of section 402 programs. See 61 FR 
20974 (May 8, 1996). EPA supports State assumption of the section 404 
program and is just as committed to ensuring robust opportunity for 
citizen participation in that program. In authorizing State programs to 
act in lieu of the Federal Government, EPA must ensure that the 
implementation of the State program will be procedurally fair and 
consistent with the intent of the CWA. This rule provides additional 
assurance of State program adequacy and fairness by ensuring 
opportunities for judicial review.
    In the proposed rule, EPA stated that the judicial review 
requirement did not apply to Tribes and did not include any requirement 
relevant to Tribes in the regulatory text. The preamble to the proposed 
rule explained that Tribes would need to provide appropriate recourse 
for citizens seeking to challenge Tribal permitting actions. One 
commenter requested clarity on the type of recourse Tribes would need 
to provide. A few commenters raised concerns that EPA was arbitrarily 
treating Tribes differently from States. These commenters stated that 
EPA's concern that requiring Tribes to waive sovereign immunity to 
judicial review of permitting decisions would disincentivize Tribal 
assumption applies equally to States. One commenter argued that 
disappointed permittees or other affected persons would have no 
recourse from unlawful permitting actions on the part of assuming 
Tribes if EPA did not require some form of recourse.
    In response to these commenters, EPA is codifying the requirement 
that Tribes must provide a commensurate level of citizen recourse to 
the judicial review opportunities States must provide for those seeking 
to challenge permitting actions. Consistent with the requirement 
applicable to States, it should be sufficient to provide for, 
encourage, and assist public participation in the permitting process. 
EPA is not specifying precisely what form this recourse must take, 
given the diverse forms that Tribal decision-making entities may take. 
If a Tribe has a judicial system analogous to a State judiciary, the 
Tribe must provide for judicial review of section 404 permits. If, 
instead, a Tribe uses another type of decision-making entity to address 
disputes, that entity must be able to hear permit challenges. Requiring 
Tribes to provide for citizen recourse commensurate with the judicial 
review opportunities required of States provides more clarity than the 
proposal offered and ensures that persons affected by Tribal permitting 
actions will have recourse.
    EPA's decision not to specifically require all Tribal section 404 
programs to provide for judicial review of Tribal permitting actions is 
consistent with EPA's approach in the section 402 judicial review 
provision that ``[t]his requirement does not apply to Indian Tribes'' 
as well as EPA's decision not to require Tribes to provide for judicial 
review in the same manner as States for purposes of the Clean Air Act 
Title V Operating Permits Program. See 40 CFR 123.30; Indian Tribes: 
Air Quality Planning and Management, 63 FR 7254, 7261-62 (February 12, 
1998); 40 CFR 49.4(p). While EPA does not, as a general matter, think 
that Tribal procedures should be less rigorous with respect to public 
participation than State procedures, a specific requirement that Tribes 
provide judicial review as the sole option for citizen recourse would 
raise issues regarding Federal Indian policy and law.
    In promulgating the Clean Air Act Tribal rule, EPA recognized that 
while many Tribes have distinct judicial systems analogous to State 
judicial systems, some well-qualified Tribes may not have a distinct 
judiciary and may use non-judicial mechanisms for citizen recourse. See 
63 FR 7261-62 (February 12, 1998). EPA considered that requiring Tribes 
to waive sovereign immunity to judicial review of permitting decisions 
would be a significant disincentive to Tribes to assume the Clean Air 
Act Title V program. See id. EPA recognizes the importance of 
encouraging Tribal implementation of environmental programs and 
avoiding creating unnecessary barriers to assumption. In this rule, EPA 
seeks to strike a balance by ensuring that citizen recourse is 
available in any approved Tribal section 404 program commensurate with 
the judicial review opportunities required of State programs, while not 
restricting qualified Tribes to a single judicial option that may not 
fit existing Tribal governmental structures. EPA would consider whether 
commensurate citizen recourse has been provided in the context of 
reviewing Tribal program applications.
    Finally, EPA encourages Tribes and States to establish an 
administrative process for the review and appeal of permit decisions 
pursuant to their approved section 404 programs and to describe any 
such process in the program description. These procedures can conserve 
resources on the part of permittees, stakeholders, and permitting 
agencies, by resolving permitting disagreements without the need for 
litigation in court. EPA is not requiring or prohibiting any specific 
administrative review procedures, however, because the Agency 
recognizes that existing Tribal and State administrative procedures may 
differ across the country.

D. Compliance Evaluation and Enforcement

1. Overview and What the Agency Is Finalizing
    The CWA provides for criminal liability based on simple negligence. 
EPA has determined that the prior regulations describing the mens rea 
applicable to Tribal and State programs at 40 CFR 123.27(a)(3)(ii) and 
40 CFR 233.41(a)(3)(ii) do not clearly articulate the best 
interpretation of the statute. After reviewing public comments, EPA is 
revising its criminal enforcement requirements in 40 CFR 123.27 and 40

[[Page 103485]]

CFR 233.41 to provide that Tribes and States that administer the CWA 
section 402 NPDES permitting program or the CWA section 404 dredged and 
fill permitting program, or that seek approval to do so, are required 
to authorize prosecution based on a mens rea, or criminal intent, of 
any form of negligence, which may include gross negligence.
2. Summary of Final Rule Rationale and Public Comment
    The prior regulations describing the mens rea applicable to Tribal 
and State programs at 40 CFR 123.27(a)(3)(ii) and 40 CFR 
233.41(a)(3)(ii) do not clearly articulate the best interpretation of 
the statute. EPA interprets the CWA to authorize the approval of Tribal 
or State section 402 or 404 programs that allow for prosecution based 
on a mens rea of any form of negligence, including gross negligence. 
These regulatory revisions more clearly articulate this interpretation.
    These amendments provide clarity for Tribes and States that have 
been approved to administer or seek to obtain EPA's approval to 
administer their own section 402 or 404 programs under the CWA. EPA 
anticipates that States that already administer these CWA programs will 
not need to change their legal authority. Instead, these regulatory 
clarifications will generally assure approved States that existing 
negligence mens rea authorities comport with the mens rea applicable to 
Tribal and State CWA sections 402 and 404 programs. Additionally, these 
revisions provide those Tribes and States seeking to administer CWA 
sections 402 and 404 programs with clarity regarding the legal 
authorities required for approval by EPA.
a. Background
    The CWA provides that Tribes and States seeking approval for a 
permitting program under CWA section 402 or CWA section 404 must 
demonstrate adequate authority ``[t]o abate violations of the permit or 
the permit program, including civil and criminal penalties and other 
ways and means of enforcement.'' 33 U.S.C. 1342(b)(7) and 
1344(h)(1)(G). EPA's regulations currently provide that a Tribal or 
State agency administering a program under CWA section 402 must provide 
for criminal fines to be levied ``against any person who willfully or 
negligently violates any applicable standards or limitations; any NPDES 
permit condition; or any NPDES filing requirement.'' 40 CFR 
123.27(a)(3)(ii). Similarly, pursuant to EPA's current regulations any 
Tribal or State agency administering a section 404 program must have 
authority to seek criminal fines against any person who ``willfully or 
with criminal negligence discharges dredged or fill material without a 
required permit or violates any permit condition issued in section 404 
. . . .'' 40 CFR 233.41(a)(3)(ii).\42\
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    \42\ Under the section 402 program, EPA's regulations provide 
that ``[t]o the extent that an Indian Tribe is precluded from 
asserting criminal enforcement authority as required under Sec.  
123.27, the Federal Government will exercise primary criminal 
enforcement responsibility. The Tribe, with the EPA Region, shall 
develop a procedure by which the Tribal agency will refer potential 
criminal violations to the Regional Administrator, as agreed to by 
the parties, in an appropriate and timely manner. This procedure 
shall encompass all circumstances in which the Tribe is incapable of 
exercising the enforcement requirements of Sec.  123.27. This 
agreement shall be incorporated into a joint or separate Memorandum 
of Agreement with the EPA Region, as appropriate.'' 40 CFR 123.34. 
The section 404 regulations contain a nearly identical provision at 
40 CFR 233.41(f).
---------------------------------------------------------------------------

    The regulations implementing both statutory programs also provide 
that the ``burden of proof and degree of knowledge or intent required 
under State law for establishing violations under paragraph (a)(3) of 
this section, shall be no greater than the burden of proof or degree of 
knowledge or intent EPA must bear when it brings an action under the 
Act.'' 40 CFR 123.27(b)(2); 40 CFR 233.41(b)(2). The implementing 
regulations for CWA section 402 include a note, not present in the CWA 
section 404 implementing regulations, which states, ``[f]or example, 
this requirement is not met if State law includes mental state as an 
element of proof for civil violations.'' 40 CFR 123.27(b)(2).
    In contrast to the statutory language of CWA sections 402 and 404, 
section 309(c), the general criminal enforcement section of the CWA 
specifically authorizes misdemeanor criminal liability for violations 
of federally issued or State-issued section 402 and 404 permits in 
subsection (c)(1) and a range of penalties for ``[n]egligent 
violations'' of specified provisions. It also authorizes felony 
liability and a higher range of penalties for ``knowing violations'' of 
the CWA in subsection (c)(2). Beginning in 1999, four Federal courts of 
appeal determined that criminal negligence under CWA section 309(c)(1) 
is ``ordinary negligence'' rather than gross negligence or any other 
form of negligence. U.S. v. Hanousek, 176 F.3d 1116, 1121 (9th Cir. 
1999); U.S. v. Ortiz, 427 F.3d 1278, 1282 (10th Cir. 2005); U.S. v. 
Pruett, 681 F.3d 232, 242 (5th Cir. 2012); U.S. v. Maury, 695 F.3d 227, 
259 (3d Cir. 2012).\43\ These courts did not address whether this 
provision implicates Tribal or State programs administering CWA section 
402 or 404 programs.
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    \43\ Simple negligence is a failure to use care as a reasonably 
prudent and careful person would use under similar circumstances. As 
relevant here, it is used interchangeably with ``ordinary 
negligence.'' See, e.g., U.S. v. Maury, 695 F.3d 227, 260 (``we are 
now confronted with a slowly expanding body of law from our sister 
circuits which indicates that simple or ordinary negligence may be 
the appropriate standard of mens rea under Sec.  1319(c)(1).'') 
Gross negligence is sometimes defined as the extreme indifference to 
or reckless disregard for the safety of others.
---------------------------------------------------------------------------

    On September 10, 2020, the Ninth Circuit Court of Appeals issued an 
unpublished decision that granted in part and denied in part a petition 
by the Idaho Conservation League for review of EPA's approval of 
Idaho's NPDES permitting program. Idaho Conservation League v. U.S. 
EPA, 820 Fed. Appx. 627 (9th Cir. 2020). The League challenged EPA's 
approval of Idaho's program in part on the grounds that Idaho lacks 
authority to bring enforcement actions based on a simple negligence 
mens rea, which the League alleged EPA's regulations require. Relying 
on the Ninth Circuit case law noted above, which holds that EPA's 
criminal enforcement actions are subject to a simple negligence 
standard, the court determined that EPA violated its regulations in 
approving a program authorizing a mens rea of gross negligence because 
it is `` `greater than the burden of proof or degree of knowledge or 
intent EPA must provide when it brings an action . . .' 40 CFR 
123.27(b)(2).'' While the court recognized that ``a State program need 
not mirror the burden of proof and degree of knowledge or intent EPA 
must meet to bring an enforcement action,'' citing EPA's Consolidated 
Permit Regulations, 45 FR 33290, 33382 (May 19, 1980), the court 
nevertheless held that EPA's current regulations at 40 CFR 123.27(b)(2) 
require a ``state plan to employ a mens rea standard `no greater than' 
simple negligence, such as strict liability or simple negligence.'' 
Idaho Conservation League, 820 Fed. Appx. at 628.
b. Statutory and Regulatory Framework
    The general enforcement provisions of the CWA section 309(c)(1), 33 
U.S.C. 1319(c)(1), as interpreted by the courts, authorize criminal 
prosecutions of violations of section 402 and 404 permits committed 
with a simple negligence mens rea. However, the CWA does not state that 
Tribal or State section 402 or 404 programs must demonstrate such 
authority as a criterion for program approval to Tribal or State. The 
CWA provides a list of the authorities Tribes and States must have in 
order to qualify for section 402 or 404

[[Page 103486]]

program approval, respectively, and authority to prosecute criminal 
violations committed with a simple negligence mens rea is not on either 
list. Rather, with respect to enforcement authorities, the CWA requires 
that EPA ``shall approve'' a Tribe or State's submission to administer 
a section 402 or 404 program if it demonstrates that it has authority 
to ``abate violations of the permit or the permit program, including 
civil and criminal penalties and other ways and means of enforcement.'' 
33 U.S.C. 1342(b)(7); 1344(h)(1)(G). For the reasons described herein, 
EPA has concluded that the best reading of these statutory provisions 
is that they do not establish specific mens rea requirements for Tribal 
and State section 404 programs.
    In addressing the criminal enforcement requirements for State 
programs, Congress did not require Tribes and States to have identical 
enforcement authority to EPA's. Congress did not use the words ``all 
applicable,'' ``same,'' or any phrase specific to any mens rea 
standard, let alone the Federal standard, as it did in other parts of 
CWA sections 404(h) or 402(b). See 33 U.S.C. 1344(h), 1342(b). When 
``Congress includes particular language in one section of a statute but 
omits it in another section of the same Act, it is generally presumed 
that Congress acts intentionally and purposely in the disparate 
inclusion or exclusion.'' Sebelius v. Cloer, 569 U.S. 369, 378 (2013) 
(internal quotations omitted). In contrast to the broad authority that 
CWA sections 404(h)(1)(G) and 402(b)(7) provide to determine whether 
Tribes and States have demonstrated adequate authority to abate 
violations, other aspects of Tribal and State programs are explicitly 
required to have authority that is equivalent to or more stringent than 
EPA's authority.
    For example, States must have the authority ``[t]o inspect, 
monitor, enter, and require reports to at least the same extent as 
required in section 1318 of this title.'' 33 U.S.C. 1344(h)(1)(B); 
1342(b)(2)(B). Similarly, CWA section 404(h)(1)(B) requires Tribe- or 
State-issued permits to ``apply, and assure compliance with, any 
applicable requirements of this section, including, but not limited to, 
the guidelines established under subsection (b)(1) of this section, and 
sections 1317 and 1343 of this title.'' 33 U.S.C. 1344(h)(1)(A)(i); and 
CWA section 402(b)(1)(A) requires Tribes and States to issue permits in 
compliance with ``sections 1311, 1312, 1316, 1317, and 1343 of this 
title.'' 33 U.S.C. 1342(b)(1)(A). By contrast, the more general 
language used to require Tribes and States to demonstrate adequate 
authority to abate violations indicates that Congress intended to allow 
for some flexibility in EPA's ability to approve Tribal and State 
approaches to certain aspects of criminal enforcement. See 33 U.S.C. 
1342 (b)(7). EPA proposed to clarify that CWA sections 402 and 404 
allow for approved Tribal and State programs to have a somewhat 
different approach to criminal enforcement than the Federal 
Government's approach, namely, that Tribal and State programs do not 
need authority to prosecute based on a simple negligence mens rea. 
However, the proposed approach required that Tribes and States be able 
to implement the text of section 309(c), requiring authority to 
prosecute crimes committed with some form of negligence.
    Some commenters on the proposed rule agreed with EPA's 
interpretation of the statute. Other commenters disagreed, arguing that 
the simple negligence criminal prosecution authority in CWA section 
309(c) applies to Tribal and State programs. These commenters stated 
that CWA section 309(c) establishes misdemeanor criminal liability for 
anyone who violates a CWA section 402 or 404 permit issued by EPA or a 
State with a mens rea of simple negligence. According to the 
commenters, nothing in CWA section 309 limits this authority to EPA as 
opposed to State programs.
    EPA disagrees with commenters' arguments that the CWA does not 
authorize EPA to approve Tribal or State programs that lack authority 
to prosecute criminal violations committed with a simple negligence 
mens rea. While EPA acknowledges that CWA section 309(c)(1) does 
mention negligent violations of State permits, that provision provides 
authority for Federal prosecutions, including enforcement of State 
permit requirements; it does not require or address State or Tribal 
enforcement programs or the standard for approval or assumption for 
Tribal and State programs. Moreover, when section 309(c)(1) is read 
alongside sections 402(b) and 404(h)(1), which set forth the 
requirements for Tribal and State programs, the more specific Tribal 
and State requirements in sections 402(b) and 404(h)(1) prevail over 
the CWA's general enforcement provision in section 309(c). See RadLAX 
Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012) 
(``[I]t is a commonplace of statutory construction that the specific 
governs the general.'') (internal citations omitted.) As described 
above, the general language used to describe the criminal enforcement 
authorities Tribe and States must have indicates Congressional intent 
to allow greater flexibility for Tribes and States in the criminal 
enforcement context than they have, for example, in permitting and 
inspections. This provides appropriate ``respect'' for ``state autonomy 
in the criminal sector.'' NRDC v. U.S. EPA, 859 F.2d 156, 180-181 (D.C. 
Cir. 1988).
    Some commenters argued that executive branch agencies may not 
modify criminal intent standards absent express Congressional 
authorization. Modifying Congressionally authorized criminal liability 
standards, in the commenters' view, is not a power left to the 
executive branch. EPA disagrees with the premise of this comment; as 
discussed above, Congress did not mandate that Tribes and States have 
authority to prosecute criminal violations committed with a simple 
negligence mens rea, so this rule does not modify Congressionally 
established standards, which continue to apply to Federal enforcement.
    EPA's interpretation that it has the flexibility to approve Tribal 
or State programs with the authority to prosecute violations committed 
with a mens rea of any form of negligence is consistent with case law. 
In NRDC v. U.S. EPA, the petitioner challenged the validity of 40 CFR 
123.27(a)(3) on the theory that it did not require States to have the 
same maximum criminal penalties as the Federal program. 859 F.2d 156 
(D.C. Cir. 1988). The court reasoned that the petitioner's argument 
involved a ``logical infirmity'' because it ``presume[d] an unexpressed 
congressional intent that state requirements must mirror the Federal 
ones,'' which is ``inconsistent with the elements of the statutory 
scheme limiting operation of the provisions to enforcement efforts at 
the national level and explicitly empowering the Administrator to set 
the prerequisites for state plans.'' Id. at 180 (discussing 33 U.S.C. 
1314(i)(2)(C)). The D.C. Circuit recognized EPA's ``broad [ ] 
discretion to respect state autonomy in the criminal sector'' and that 
the regulations ``reflect the balancing of uniformity and state 
autonomy contemplated by the Act.'' Id. at 180-81. The court declined 
to ``disturb this `reasonable accommodation of manifestly competing 
interests,' '' and upheld the agency's penalty regulations. Id. at 181 
(internal citations omitted).
    EPA's interpretation is also consistent with the Ninth Circuit's 
decision in Akiak Native Community v. EPA, where that court declined to 
require that States have authority to impose administrative penalties 
identical to Federal authority. See Akiak Native Community, 625 F.3d

[[Page 103487]]

1162, 1171-72 (9th Cir. 2010). In that case, the petitioner argued that 
the State of Alaska did not have adequate authority to abate violations 
because the State had to initiate a legal proceeding to assess civil 
penalties, whereas EPA could do so administratively. Id. at 1171. The 
Court held that because ``[t]here is no requirement in the CWA . . . 
that state officials have the authority to impose an administrative 
penalty'' and ``[t]he language of the statute says nothing about 
administrative penalties,'' ``there is no reason to conclude that 
Alaska lacks adequate enforcement authorities.'' Id. 1171-72.
    Some commenters argued that the NRDC and Akiak Native Comm'ty cases 
are inapposite. Because the NRDC case involved penalties and Akiak 
Native Comm'ty was about enforcement mechanisms, they argue neither of 
these cases bears on criminal intent standards. Commenters also stated 
that NRDC is distinguishable because the court relied on an express 
Congressional amendment authorizing EPA to allow for certain Tribal and 
State program departures from CWA statutory civil enforcement monetary 
penalties, and the CWA contains no such amendment regarding mens rea. 
In their view, the absence of a similar Congressional authorization for 
the Administrator to depart from criminal liability standards 
applicable to Tribal and State programs shows that Congress did not 
grant the Administrator such authority.
    Commenters also noted that NRDC decision ignored CWA section 
402(a)(3), which provides that EPA's permit program ``shall be subject 
to the same terms, conditions, and requirements as apply to a State 
permit program and permits issued thereunder under subsection (b) of 
this section.'' 33 U.S.C. 1342(a)(3). These commenters view this 
language as prohibiting Tribes or States from implementing a program 
that is any less stringent than a federally run program, including a 
program lacking authority to prosecute criminal violations committed 
with a simple negligence mens rea. Commenters state that the fact that 
neither the plaintiffs in that case nor D.C. Circuit considered section 
402(a)(3) renders the NRDC precedent less persuasive.
    Finally, commenters stated that the court in NRDC emphasized the 
importance of State programs being ``administered in such a manner that 
. . . [approval will] provide a much more effective program'' than the 
Federal Government would otherwise administer. 859 F.2d at 175. 
Commenters emphasized that this language reflects the court's view that 
Congress wanted to create more protective State programs.
    EPA disagrees with the commenters stating that NRDC and Akiak 
Native Comm'ty do not support the Agency's view of its authority. These 
cases hold that EPA may approve State programs if these programs lack 
certain enforcement authorities that the CWA provides to EPA; this 
precedent is highly germane to these revisions, even if the precise 
authorities at issue in those cases were not criminal intent standards. 
EPA also disagrees that NRDC is distinguishable because it did not 
address CWA section 402(a)(3). The fact that neither the plaintiffs nor 
the court addressed section 402(a)(3) may merely indicate that they did 
not find that provision relevant. Nor does EPA. Section 402(a)(3) 
applies to the terms, conditions, requirements, and permits of a State 
permit program; the criminal negligence mens rea that States are 
authorized to prosecute is none of these. Section 402(a)(3) is most 
clearly read to address the permitting process, not the state of mind 
of criminal violators. Moreover, clearly this provision would not 
implicate section 404 permits.
    As to the 1987 amendments to the CWA, which noted that Tribal and 
State programs do not need to have the same maximum allowable penalty 
amount as EPA (see Water Quality Act of 1987, Title III, Sec.  
313(b)(2), Public Law 100-4, 101 Stat. 45), the D.C. Circuit in NRDC 
characterized the amendment as simply ``confirmation of the broad 
authority the Administrator already enjoyed in crafting state program 
requirements.'' NRDC, 859 F. 2d at 180 (emphasis added). In other 
words, this amendment is additional evidence in support of the Court's 
interpretation of the statutory structure that, regardless of the 
amendment, allows EPA certain flexibility in determining which of its 
criminal enforcement authorities Tribes and States must adopt if they 
wish to administer CWA permitting programs.
    Finally, EPA agrees with commenters and the D.C. Circuit in NRDC 
about the importance of effective and protective State programs. In 
this rule EPA is maintaining and strengthening many provisions to help 
achieve this goal. Specifically with respect to criminal enforcement, 
EPA views the other requirements for Tribal and State enforcement 
authority in 40 CFR 123.26, 123.27 and 233.41 as sufficient to ensure 
that Tribes and States operate compliance and enforcement programs that 
satisfy the language and purpose of CWA 402(b)(7) and 404(h)(1)(G) to 
``abate violations of the permit or the permit program, including civil 
and criminal penalties and other ways and means of enforcement.'' These 
other provisions require, among other things, that a Tribe or State 
must maintain a program designed to identify persons subject to 
regulation who have failed to obtain a permit or to comply with permit 
conditions, engage in inspections and information gathering, and have 
the authority to sue to enjoin or seek penalties for violations of 
sections 402 and 404. As discussed in section IV.B.3 of this preamble, 
EPA's modifications to program assumption requirements would further 
buttress the requirements of 40 CFR 233.41.
    EPA has previously argued that Tribes and States do not need 
authority to prosecute criminal violations based on a simple negligence 
mens rea, including in Idaho Conservation League. Yet to the extent 
EPA's interpretation is viewed as different from any earlier 
interpretations of CWA sections 402 and 404 and implementing 
regulations, EPA has ample authority to change its interpretation to 
adopt the best reading of the statute. See Encino Motorcars, LLC v. 
Navarro, 136 S. Ct. 2117, 2125 (2016) (``[A]gencies are free to change 
their existing policies as long as they provide a reasoned explanation 
for the change.'') (citations omitted).
    Though under this rule EPA is not requiring Tribes or States to 
have the same criminal intent standard that courts have interpreted EPA 
to have, the Tribal or State standard would still be based on the term 
``negligence'' in the text of CWA section 309(c). Allowing Tribes or 
States flexibility in the degree of negligence for which they are 
authorized to bring criminal cases balances the CWA's priorities of 
allowing for Tribal or State autonomy with adherence to the purposes of 
the Act. As noted above, neither CWA section 402(b)(7) nor CWA section 
404(h)(1)(G) requires States to abate violations in the same manner as 
required under CWA section 309(c). The absence of any citation to CWA 
section 309(c) in CWA sections 402(b) and 404(h) indicates that some 
degree of variability may be permitted between Federal and Tribal or 
State approaches to criminal enforcement.
    This variability does not detract from the obligation for Tribes 
and States to operate meaningful programs to abate permit program 
violations, including through penalties and other ways and means of 
criminal enforcement, and consistent with the regulatory requirements 
for Tribal and State criminal enforcement authority. See 33 U.S.C. 
1342(b)(7), 1344(h)(1)(G); 40 CFR 233.41. Furthermore, Tribes and 
States may certainly continue to authorize criminal prosecutions based 
on a simple

[[Page 103488]]

negligence mens rea. Tribes or States with that authority may describe 
it in their program submissions to demonstrate the adequacy of their 
criminal enforcement programs.
    This regulatory clarification reflects EPA's experience in 
approving and overseeing CWA State programs for over thirty years. Many 
States administering or seeking to administer the programs do not 
currently have authority to prosecute based on a simple negligence mens 
rea, and indeed, they may have statutory or other legal barriers to 
such standards. EPA is unaware of any concrete evidence indicating that 
the absence of a simple negligence mens rea for criminal violations has 
served as a bar to effective State criminal enforcement programs, and 
the requirement to have such a standard could dissuade Tribes and 
States from seeking to administer these programs in the future or 
potentially motivate States to return their approved programs to EPA. 
Clarifying that Tribes and States do not need authority to prosecute 
based on a simple negligence mens rea in their criminal enforcement 
programs therefore advances the purposes of CWA sections 402(b) and 
404(g) to balance the need for uniformity with Tribal and State 
autonomy, see NRDC, 859 F.2d at 181 (D.C. Cir. 1988), and to encourage 
Tribes and States to seek to administer the CWA section 402 or 404 
programs consistent with section 101(b) of the statute.
    This rule does not change the standard applicable to EPA's criminal 
enforcement of the CWA. Under CWA section 309, EPA retains its civil 
and criminal enforcement authority, including where Tribes and States 
administer permit programs. Notwithstanding Tribe or State mens rea 
authorities, Federal prosecutions are governed by the mens rea 
standards that Congress wrote into the statute in 1987, including that 
misdemeanor penalties apply to violations resulting from simple 
negligence and that felony penalties apply to violations resulting from 
knowing conduct.
    Consistent with the CWA's requirement that Tribes and States 
administering CWA sections 402 or 404 permitting programs have the 
authority to abate civil and criminal violations, EPA is adding 
language to 40 CFR 123.27(a) and 233.41(a)(3) indicating that Tribes 
and States must have the authority to ``establish violations,'' as well 
as ``to assess or sue to recover civil penalties and to seek criminal 
penalties,'' which these provisions already state. This new language 
simply confirms EPA's interpretation of the effect of its current 
regulations. EPA is also removing the term ``appropriate'' from the 
current references to the degree of knowledge or intent necessary to 
provide when bringing an action under the ``appropriate Act'' from the 
CWA sections 402 and 404 regulations, as these regulations only refer 
to actions under the CWA and no other statute. Therefore, the term 
``appropriate'' is unnecessary. Finally, in 40 CFR 123.27(a)(3) and 
233.41(a)(3), which currently require Tribes and States to have the 
authority to assess or sue to recover ``civil penalties and to seek 
criminal remedies,'' EPA is replacing the word ``remedies'' with 
``penalties,'' as ``penalties'' is a more precise description of the 
type of relief sought in criminal enforcement actions. None of the 
changes described in this paragraph are intended to change the 
substantive effect of the regulations.

E. Federal Oversight

1. Dispute Resolution
a. Overview and What the Agency Is Finalizing
    The Agency recognizes that Tribes or States seeking to assume 
administration of the section 404 permitting program may encounter 
disputes or disagreements when developing a program or administering an 
approved section 404 program. For example, Tribes and States could 
encounter disputes with permittees or other affected parties regarding 
permitting decisions, as well as disagreements with Federal agencies 
that could arise in the assumption process or program implementation 
concerning issues such as the appropriate permitting authority or 
conditions to avoid or minimize impacts to historic properties, 
threatened or endangered species, or critical habitat. Specifically, 
such disputes may occur during the development of the retained waters 
description, development of a transfer plan for permits currently under 
review by the Corps, through efforts to address endangered species and 
historic properties during permit review, and in determining whether a 
discharge affects another State, as well as in other situations. 
However, while the prior regulations provided several mechanisms for 
resolving certain types of disagreements (e.g., addressing EPA's 
comments, conditions, or objections to potential Tribal or State 
permits), the prior regulations did not provide a general dispute 
resolution mechanism or clarify EPA's role in such disputes. Several 
Tribes and States have requested that EPA help resolve disputes 
encountered between themselves and other States, Tribes, or the Federal 
Government.
    The Agency proposed to add a general provision to the purpose and 
scope section at section 233.1 that would clarify EPA's role in 
facilitating the resolution of potential disputes between the Federal 
agencies and the Tribe or State seeking to assume and/or administer a 
section 404 program. 88 FR 55323. The proposed rule would also provide 
for resolution or elevation procedures to be specifically articulated 
in the Tribal or State Memoranda of Agreement or on a case-by-case 
basis. The provision reaffirms, however, that any dispute resolution or 
elevation process described in the regulations or in the Tribal or 
State Memoranda of Agreement must be followed. After reviewing public 
comments, the Agency is finalizing the dispute resolution provision as 
proposed at section 233.1(f).
b. Summary of Final Rule Rationale and Public Comment.
    The Agency sees facilitating resolution of disputes as critical to 
establishing and sustaining viable Tribal and State section 404 
permitting programs. EPA's engagement as a third party in such 
discussions can help to resolve impasses and ensure the program is 
administered consistent with CWA requirements. In this rule, EPA seeks 
to elucidate its role in resolving such disputes. Rather than attempt 
to articulate in the regulations all potential areas where a dispute 
may arise, EPA is adding a general provision to section 233.1 to affirm 
that EPA may facilitate resolution to potential disputes between the 
Tribe or State and Federal agencies and provide for resolution or 
elevation procedures to be specifically articulated in the Tribal or 
State Memoranda of Agreement or resolved on a case-by-case basis 
through discussions convened by EPA. EPA views this clarification as 
consistent with its program approval and oversight authority in CWA 
sections 404(h)-(j).
    Commenters generally supported this clarification of EPA's role in 
assisting in the resolution of disputes. Some commenters raised 
concerns that EPA does not articulate any specific ``mechanism or final 
authority,'' and asked that EPA articulate specific procedures to be 
included in the Memorandum of Agreement. Another commenter generally 
encouraged flexibility. One commenter objected to the proposal, arguing 
that it is not needed. After reviewing public comments, EPA is 
finalizing the general dispute resolution as proposed, as it provides 
requested clarity on EPA's role

[[Page 103489]]

while maintaining flexibility in the form such assistance may take. EPA 
is declining to define a specific mechanism or procedures for dispute 
resolution to accommodate differing Tribal and State program structures 
and account for the individual circumstances and complexities of a 
potential disagreement.
    Flexibility is also important in light of the various scenarios in 
which EPA may help facilitate resolution of disputes that may arise 
between a Tribe or State and other Tribes or States or Federal agencies 
as they seek to assume and administer a section 404 permit program. For 
example, EPA may assist in resolving issues raised about the scope of 
retained waters or situations where the Tribe or State may disagree 
with the Corps about whether a proposed project would result in 
discharges to assumed or retained waters. As EPA is responsible for 
approving the jurisdictional scope of a Tribal or State section 404 
program, EPA can help resolve such disputes. Potential disagreements 
could also arise in other aspects of section 404 programs, including 
proper approaches to joint project permitting, administration of a 
compensatory mitigation program (such as mitigation banking or in-lieu 
fee programs), the determination as to whether a particular permit 
application implicates a discharge into waters of the United States, 
and program conditions to avoid or minimize impacts to threatened or 
endangered federally listed species or historic properties.
    Nothing in this new dispute resolution provision alters existing 
provisions addressing the Agency's review of and objection to State 
permits located at section 233.50. Congress authorized EPA to serve an 
oversight role for Tribal and State section 404 programs. EPA's 
authority encompasses the coordination of Federal comments on draft 
Tribal or State-issued permits and the ability to review, comment on, 
or object to these draft permits. 40 CFR 233.50. In this role, EPA, as 
a practical matter, works to resolve differences between Tribes or 
States and Federal agencies, particularly when reviewing draft permits. 
The regulations also establish processes whereby a Tribe or State may 
address EPA's comments, conditions, or objections to potential Tribal 
or State permits. Id.
2. Withdrawal Provisions
a. Overview and What the Agency Is Finalizing
    Section 404(i) provides for EPA to withdraw assumed programs that 
are not administered in accordance with the requirements of the Act. 33 
U.S.C. 1344(i). The prior regulations, promulgated in 1992, set out a 
formal adjudicatory process for the withdrawal proceedings. The Agency 
proposed to simplify the process used by the Agency when withdrawing an 
assumed section 404 program from a previously authorized Tribe or 
State. 88 FR 55310. The proposed process at section 233.53 provided 
that if the Regional Administrator finds that a Tribe or State is not 
administering the assumed program consistent with the requirements of 
the CWA and 40 CFR part 233, then the Regional Administrator shall 
inform the Tribe or State as to the alleged noncompliance and give the 
Tribe or State 30 days to demonstrate compliance. If compliance is 
demonstrated within those 30 days, then the Regional Administrator will 
so notify the Tribe or State and take no further action. If the Tribe 
or State fails to adequately demonstrate compliance within 30 days, the 
EPA Administrator will schedule a public hearing to discuss withdrawal 
of the Tribal or State program. Notice of the hearing will be widely 
disseminated and will identify the Administrator's concerns. The 
hearing will be held no less than 30 days and no more than 60 days 
after publication of the notice of the hearing and all interested 
parties will have the opportunity to make written or oral 
presentations. If, after the hearing, the Administrator finds that the 
Tribe or State is not in compliance, the Administrator will notify the 
Tribe or State of the specific deficiencies in the Tribal or State 
program and the necessary remedial actions. The Tribe or State will 
have 90 days to carry out the required remedial actions to return to 
compliance or the Administrator will withdraw program approval. If the 
Tribe or State completes the remedial action within the allotted time, 
or EPA concludes after the hearing that the Tribe or State is in 
compliance, the Tribe or State will be notified and the withdrawal 
proceeding concluded. Where the Administrator determines that the 
assumed program should be withdrawn, that decision will be published in 
the Federal Register, the Corps will resume permit decision-making 
under section 404 in all waters of the United States in the affected 
Tribe or State, and any provision in the CFR addressing that Tribe's or 
State's assumption will be rescinded.
    After reviewing public comments, the Agency is finalizing the 
approach as proposed, with one revision to require EPA to decide 
whether to proceed with withdrawal within 90 days after the conclusion 
of the hearing process. This final rule approach replaces the 
adjudicatory hearing process with a public notice and hearing process 
modeled on the procedures for withdrawal of the Underground Injection 
Control program as discussed below.
b. Summary of Final Rule Rationale and Public Comments
    The previous section 404 Tribal and State program regulations, 
promulgated in 1992, set out a formal adjudicatory process for the 
withdrawal proceedings. This formal adjudication process is not 
required by the statute and its length and complexity impose an 
unnecessary resource burden and other challenges for the Agency, Tribes 
and States, and stakeholders. The Agency proposed a streamlined process 
that is both easier to understand and to administer and encourages 
participation by interested parties. The process is modeled on the 
withdrawal procedures for Tribal and State Underground Injection 
Control programs at 40 CFR 145.34 and revised to accommodate the 
requirements of section 404. EPA views the Underground Injection 
Control program's approach as more transparent and efficient than the 
prior section 404 program withdrawal procedures.
    EPA requested comments on all aspects of the revision. Multiple 
commenters supported the proposed approach as providing a more 
meaningful backstop to ensure that Tribal or State programs address 
water pollution consistent with the requirements of section 404. Some 
commenters opposed the proposed approach, stating that the text of the 
statute indicates that Congress supports State assumption and intended 
withdrawal to be an extended adjudicatory process providing maximum due 
process to the State. These commenters expressed concern that an ``easy 
out'' would undermine the stability of program approval and could lead 
to economic waste of the substantial investments States make in their 
programs. These commenters also noted that a streamlined withdrawal 
process could disincentivize Tribal and State assumption generally.
    EPA has decided to finalize the proposed approach. As commenters in 
support of the proposed revision noted, the final rule allows EPA to 
respond quickly where there are concerns regarding Tribal or State 
compliance with the assumed program. By eliminating the adjudicatory 
requirements, it allows both EPA and the Tribe or State to focus on the

[[Page 103490]]

substantive requirements of the program. In response to commenters' 
concerns, the substantive requirements of the final rule are comparable 
to the prior one but will enhance efficiency of the withdrawal process 
and better align with EPA's section 404 program approval procedures. 
Nothing in the CWA requires the Agency to maintain inefficient and 
burdensome procedures for their own sake. Enhancing administrability 
does not mean that EPA intends to take program withdrawal lightly, and 
EPA's experience with both CWA and Underground Injection Control 
programs reflects that this process has been carefully and rarely used. 
Consistent with EPA's longstanding practice, the Agency will first seek 
to resolve program concerns and help enable Tribes and States to 
administer the section 404 program consistent with the requirements of 
the CWA and its implementing regulations. EPA is committed to working 
with Tribes and States through mechanisms such as annual program report 
reviews, informal program reviews, and formal program reviews to 
identify program challenges and recommended steps for resolution.
    Several commenters asked that EPA add a deadline by which time EPA 
must decide whether to proceed with withdrawal after the conclusion of 
the hearing process. These commenters suggested a deadline of no more 
than 60 days. EPA considered this suggestion and concluded that a 
deadline for decision would add predictability to the withdrawal 
process and avoid leaving the relevant Tribe or State and stakeholders 
in a lengthy state of uncertainty as to whether the Tribe or State will 
continue to administer the program. However, EPA decided to provide the 
Agency 90 days to make this decision, rather than 60 days, to allow 
sufficient time for consideration of concerns raised and the Tribe or 
State's capacity to address these concerns. The final rule therefore 
provides for a 90-day mandatory time frame for EPA to make its decision 
after the conclusion of the hearing process.
3. Program Reporting
a. Overview and What the Agency Is Finalizing
    EPA's prior section 404 Tribal and State program regulations 
require the Tribe or State to provide a self-assessment in an annual 
report, which must include, among other information, ``an assessment of 
the cumulative impacts of the State's permit program on the integrity 
of the State regulated waters'' and numbers of permits issued and 
enforcement actions taken. 40 CFR 233.52(b) (2023). The annual report 
is meant to provide a robust overview of the Tribe's or State's program 
and implementation and support continuous improvement such that EPA can 
ensure the program remains consistent with the Act and these 
regulations. However, some of the self-assessment requirements for the 
annual report in the prior regulation lacked the necessary details for 
a Tribe or State to know EPA's expectations for the annual report.
    EPA proposed several revisions at section 233.52(b) to clarify 
information not previously explicitly required, including specific 
metrics about compensatory mitigation, program resources and staffing, 
and a discussion as to how issues identified in the previous annual 
report or other problems the program has encountered have been 
resolved. 88 FR 55311. Additionally, the Agency proposed to add the 
word ``final'' between ``Regional Administrator's'' and ``comments'' in 
40 CFR 233.52(e) to acknowledge that some discussion may occur between 
the Tribe or State and EPA as the annual report is being finalized. 
Finally, the Agency also proposed to require that the Director make the 
final annual report publicly available. After reviewing public 
comments, the Agency is finalizing these revisions as proposed, with 
one non-substantive revision to replace ``as well as'' with ``and'' in 
the series of items the State must evaluate in the draft annual report 
located at section 233.52(b).
b. Summary of Final Rule Rationale and Public Comment
    EPA requested comment on all aspects of the proposed revision to 
the annual report requirements. EPA received few comments on this 
provision. The majority of comments were general in nature, expressing 
support for the added clarity in the proposal. One commenter opposed 
the additional requirements, stating that they would increase the 
burden on States to assume and implement the program. EPA considered 
these comments and has decided to finalize the regulatory text as 
proposed, because it adds clarity to what Tribes and States are 
expected to provide, giving them clear expectations for the annual 
report and reducing the need for follow-up questions from the Agency as 
it conducts its program oversight. EPA therefore thinks the revisions 
will assist Tribes and States, rather than burdening them.
    A few commenters requested that EPA require additional reporting 
about the costs of administering the program and litigation involving 
the Tribal or State program. The Agency finds that the proposed 
requirement to document ``resources and staffing'' will be sufficient 
to provide information EPA needs about program budgets. In addition, 
EPA decided that it does not need a litigation update in order to 
fulfill its oversight obligations; information already required about 
unauthorized activities and enforcement actions taken should, as a 
general matter, provide the litigation-related information most 
relevant to EPA's oversight. To the extent EPA decides that it needs 
litigation information on a case-by-case basis, that information would 
be easy to research or request of the Tribe or State. Thus, the Agency 
finds it unnecessary to modify the proposed text in light of these 
comments.
    The final rule clarifies and updates the requirements for a Tribe's 
or State's annual reporting by clarifying that it must identify 
implementation challenges along with solutions to address the 
challenges, that evaluations of the program components must include any 
quantitative reporting, and that it must provide specific metrics 
related to compensatory mitigation, resources, and staffing. EPA 
expects these revisions will support a more streamlined process for the 
State's annual report submittal, EPA's comments and approval, and the 
State's final report publication. The clarifications will also ensure 
transparency as to the state of Tribal and State programs and 
facilitate annual discussions between the Tribe or State and EPA about 
program implementation and challenges. For EPA, the revisions will 
improve the Agency's ability to ensure that program operation is 
consistent with the Act.
    Existing programs may make minor revisions to address this change. 
For example, the 2011 Memorandum of Agreement between Michigan and EPA 
lists requirements of the annual reports, but the list does not 
specifically include compensatory mitigation or resources and staffing, 
which are included in the final regulatory text. The 2011 Michigan EPA 
Memorandum of Agreement list does not preclude the State reporting 
other information; however, the Memorandum of Agreement list could be 
updated to reference section 233.52(b) or match the updated regulatory 
text. The New Jersey and EPA Memorandum of Agreement includes annual 
reporting requirements, but references section 233.52(b) rather than 
listing the requirements, so it may not require distinct updates.

[[Page 103491]]

F. Eligible Indian Tribes

a. Overview and What the Agency Is Finalizing
    Prior to issuing a permit, a Tribe or State with an approved 
section 404 program must provide notice to another Tribe or State if a 
proposed discharge may affect the biological, chemical, or physical 
integrity of the other Tribal or State waters and provide an 
opportunity for the Tribe or State to submit written comments and 
suggest permit conditions. 40 CFR 233.31; see 33 U.S.C. 1344(h)(1)(C), 
(E). If recommendations from the State whose waters may be affected are 
not accepted by the Tribe or State issuing the permit, the Tribe or 
State issuing the section 404 permit must notify the affected State and 
EPA of its decision not to accept the recommendations and reasons for 
doing so. 40 CFR 233.31(a); see 33 U.S.C. 1341(1)(E). EPA's regulation 
at 40 CFR 233.2 defines the term ``State'' to include an Indian Tribe 
which meets the eligibility requirements for a Tribe to assume the 
section 404 program. Accordingly, these provisions could be read to 
limit the coordination requirement in section 233.31 to only those 
affected Tribes that meet the requirements for section 404 program 
assumption. To date, no Tribe has applied for eligibility to assume the 
section 404 program, and many Tribes lack the resources to assume the 
program. However, nearly half of federally recognized Tribes have been 
approved for TAS for other CWA provisions (i.e., TAS for CWA section 
106, section 319, and sections 303(c) and 401) and may have relevant 
water quality information that could inform the permitting decisions of 
Tribes or States administering a section 404 program.
    In the proposal, the Agency considered three ways to further 
facilitate Tribal engagement in permitting decisions that may affect 
Tribal resources. First, the Agency proposed to expand the 
aforementioned coordination requirement to include affected Tribes that 
have been approved by EPA for TAS for any CWA provision, as opposed to 
only Tribes with TAS to assume the section 404 program. Second, the 
Agency proposed a new TAS opportunity solely for the purpose of 
receiving a heightened comment opportunity on section 404 permits 
proposed by other Tribes or States that may affect the biological, 
chemical, or physical integrity of their reservation waters. Finally, 
the Agency proposed to provide an opportunity for Tribes to request EPA 
review of permits that may affect Tribal rights or interests, even if 
Federal review has been waived. After reviewing public comments, the 
Agency is finalizing all three changes as proposed. These revisions are 
consistent with EPA's authority under CWA sections 404 and 518, as well 
as the Federal trust relationship and responsibilities to federally 
recognized Tribes, the policies underlying CWA section 518, and EPA's 
policies to facilitate Tribal opportunities to actively engage in 
managing their waters and resources.
    In addition to the approaches summarized above to facilitate Tribal 
engagement in permitting decisions, EPA is also clarifying that when 
Tribes seek to administer the program in areas where they have not 
already assumed the section 404 program, Tribes must demonstrate that 
they meet the TAS criteria for those additional areas. This is a non-
substantive clarification because subpart G already provides a process 
whereby Tribes seeking to assume the section 404 program address the 
TAS criteria, and this provision would simply clarify that the same TAS 
application applies if Tribes seek to add a new area to their program.
b. Summary of Final Rule Rationale and Public Comment
i. Enabling Tribes With TAS for Any CWA Provision To Comment as an 
Affected State
    As discussed above, 40 CFR 233.31(a) currently affords specific 
consideration of comments and suggested permit conditions on draft 
permits by an affected State and provides an avenue of review if a 
Tribe or State with an assumed program chooses not to accept the 
suggested permit conditions. Under the current regulatory definition of 
``State''--which includes Tribes that have obtained TAS for purposes of 
assuming the section 404 program--no Tribes are presently eligible to 
be considered an affected State, as no Tribes have yet obtained TAS 
status for purposes of assuming the section 404 program.
    Section 518 of the CWA authorizes EPA to treat eligible federally 
recognized Tribes in a similar manner as a State for purposes of 
implementing and managing various environmental functions under the 
statute. The requirements for TAS are established in CWA section 518 
and are reflected in EPA regulations for various CWA provisions. 
Generally, the Tribes must be federally recognized, have a governing 
body that carries out substantial governmental duties and powers, seek 
to carry out functions pertaining to the management and protection of 
reservation water resources, and be capable of carrying out the 
functions of the particular provision at issue. 33 U.S.C. 1377(e). Of 
the 574 federally recognized Tribes, over 285 have been granted TAS 
status for one or more CWA provisions.\44\
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    \44\ EPA maintains a website that lists all Tribes approved for 
TAS, which is updated bi-annually. Tribes with TAS for regulatory 
programs and administrative functions can be found at https://www.epa.gov/tribal/tribes-approved-treatment-state-tas; Tribes with 
TAS for section 106 grants can be found at https://www.epa.gov/water-pollution-control-section-106-grants/tribal-grants-under-section-106-clean-water-act; Tribes with TAS for section 319 grants 
can be found at https://www.epa.gov/nps/current-tribal-ss319-grant-information.
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    The Agency proposed to revise the coordination requirements at 
section 233.31 to expressly provide that Tribes that have already been 
approved for TAS by EPA to administer any other CWA programs, such as a 
water quality standards (WQS) program under CWA section 303(c), or have 
been approved for TAS for any other CWA purpose, such as receiving 
section 106 grants to establish and administer programs for the 
prevention, reduction, and elimination of water pollution, should also 
have the opportunity to comment on draft permits in the same manner as 
affected States.
    Most commenters supported effective coordination with Tribes on 
permits that may affect Tribal aquatic resources. EPA agrees with these 
commenters and finds this provision at 233.31 will enable more Tribes 
whose waters may be affected by a dredge or fill project to comment on 
permits to be issued by a Tribe or State in the same manner as other 
affected States. A Tribe or State with an approved section 404 program 
will also have to provide an opportunity for Tribes with TAS for any 
CWA provision to submit written comments within the public comment 
period and suggest permit conditions as provided in section 233.31(a) 
of the regulations. As finalized, Tribes and States with an approved 
section 404 program must consider comments from Tribes with TAS for any 
CWA provision whose reservation waters may be affected by a proposed 
discharge. If the recommendations are not accepted by the approved 
Tribe or State program, the approved Tribe or State program would have 
to notify the affected Tribe and EPA of its decision not to accept the 
recommendations and its reasons for not doing so. EPA would then have 
time to comment upon, object to, or make recommendations regarding the 
Tribal concerns set forth in the original comment. This is the same 
opportunity and process provided to affected States.

[[Page 103492]]

    Some commenters asked EPA to codify specific timelines and 
notification requirements to ensure such coordination occurs. EPA is 
declining to mandate a specific process. Rather, EPA has determined 
that individual Tribes and States should have the flexibility to 
establish the procedures and coordination approaches that work best for 
them. EPA encourages States to work together with Tribes whose 
reservation waters may be affected by a proposed discharge prior to 
proposal of the relevant permit. Such efforts will improve permitting, 
protect interests, and build relationships. For example, existing State 
section 404 programs are already coordinating with affected Tribes per 
their Memorandum of Agreement with EPA.
    Some commenters expressed concern that this provision creates a new 
authority allowing for Tribes to engage in State permitting in a way 
that could result in confusion, while another commenter suggested that 
such opportunity be limited to Tribes with TAS for water quality 
standards and section 401 certification. EPA disagrees with these 
commenters. First, EPA disagrees that this provision will result in 
confusion. Under CWA sections 404 and 518 and EPA's existing 
regulations, Tribes were already afforded the enhanced opportunity to 
provide comment as an affected State through the TAS process for 
section 404. Second, EPA views any Tribe that has TAS status for any 
CWA purpose as both capable of participating in matters that may affect 
the chemical, physical, or biological integrity of reservation waters 
through the enhanced opportunity for comment, and as an appropriate 
entity to be afforded that opportunity. By receiving TAS for another 
provision of the CWA, a Tribe has already demonstrated they have met 
the TAS requirements as articulated in section 518 of the Act and that 
they are engaged in water quality protection activities under the Act. 
Accordingly, EPA concludes that Tribes that have already been approved 
for TAS by EPA to administer other CWA program(s) are capable of 
commenting on draft permits in the same manner as affected States and 
are relevant entities to provide input regarding the potential effects 
on their reservation waters of Tribal and State 404 permitting.
ii. Providing TAS Opportunity Specifically for the Ability To Comment 
as an Affected State
    EPA is finalizing as proposed a process whereby Tribes may apply 
for TAS for the sole purpose of commenting on Tribe- or State-issued 
CWA section 404 permits in the same manner as an affected State. Tribes 
that obtain TAS for this purpose would benefit from the same 
notification requirements that apply to any other commenting affected 
``State.'' This rule enables Tribes that have neither assumed the 
section 404 program nor have obtained TAS for other CWA programs to 
obtain TAS solely to provide input on section 404 permits that may 
affect their reservation waters.
    This approach is similar to approaches taken in other EPA programs. 
For example, the Agency's regulations under the Clean Air Act provide 
opportunities for interested Tribes to seek TAS authorization for 
distinct severable elements of programs under that statute. See 40 CFR 
49.7(c). Under that authority, EPA has authorized TAS for the 
procedural comment opportunity provided in connection with issuance of 
certain permits by upwind permitting authorities, without requiring 
those Tribes to seek authorization for the entire relevant program. See 
42 U.S.C. 7661d(a)(2). Nothing in the language of section 404 precludes 
creating this new TAS opportunity. This provision would relate solely 
to the coordination requirements set forth in section 233.31(a). The 
opportunity to provide comments and suggest permit conditions 
established in CWA sections 404(h)(1)(C) and (E) and 40 CFR 233.31 do 
not require any exercise of regulatory authority by the affected Tribe. 
Due to the limited nature of TAS solely for purposes of commenting as 
an affected State, EPA anticipates that the application burden on 
interested Tribes would, in most circumstances, be minimal and that the 
process for review of Tribal applications would be straightforward. As 
with other TAS applications, interested Tribes would submit relevant 
information demonstrating that they meet the TAS eligibility criteria 
to the appropriate Regional Administrator, who would process the 
application in a timely manner. Because, as described above, commenting 
in the same manner as an affected State does not involve any exercise 
of regulatory authority by the applicant Tribe, no issues regarding 
Tribal regulatory authority should be raised or decided in this limited 
TAS context. In this sense, TAS applications for this purpose would be 
similar to TAS applications for the purpose of receiving grants, a 
process that many Tribes have undergone and with which EPA has 
substantial experience. Similarly, Tribes interested in this TAS 
opportunity would need to demonstrate their capability solely for the 
limited purpose of submitting comments as an affected Tribe. These 
Tribes would not need to demonstrate capability to administer an 
assumed section 404 program.
    Many commenters supported this provision to fill gaps and 
facilitate Tribal engagement in permitting that may affect their waters 
within Indian Country. EPA agrees with these commenters and is 
finalizing the process as proposed to eliminate unnecessary barriers to 
Tribal engagement in the 404 process as contemplated by CWA section 
518. Some commenters raised a concern that EPA lacks authority to 
create new Tribal authorities. However, EPA is not creating a new 
Tribal authority. The CWA and section 404 program regulations already 
provide Tribes the ability to obtain TAS for the section 404 program 
and to comment as an affected State. 33 U.S.C. 1377(e). As discussed 
above, Tribes do not need to have the authorities and resources to 
fully administer a section 404 program, including issuing permits and 
enforcing violations, in order to comment as an affected State. Such a 
requirement would be unnecessarily burdensome with no benefit to Tribes 
or the environment. Thus, EPA is finalizing this provision to obtain 
TAS for the sole purpose of commenting on Tribe or State issued section 
404 permits.
    One commenter suggested that specifically enabling Tribes to 
request to review all permits within a specified geographic area, 
including areas outside of reservation land, as the most efficient way 
of ensuring Tribal engagement in the permit issuance process for areas 
with cultural and ecological significance. Tribes are free to submit 
such requests to the permitting authority, and EPA encourages Tribes 
and States to provide for notifications of permitting in such areas 
through mechanisms established in regulation, a Memorandum of 
Understanding, or through the State Historic Preservation Officer and 
Tribal Historic Preservation Office. EPA is not adding any regulatory 
revisions on this point as such requests are most efficiently addressed 
on a case-by-case basis.
    Some commenters raised concerns that this provision would allow any 
Tribe to comment on any permit issued by any State. As stated above, 
any member of the public, including Tribes, may already comment on any 
draft permit. This provision simply provides an additional mechanism 
for eligible Tribes to engage in the same heightened comment process on 
draft permits that is already available to States and to

[[Page 103493]]

Tribes that obtain TAS for the purpose of assuming the section 404 
program. Tribes obtaining TAS for this limited purpose would be able to 
comment in the same manner as affected States on only those permits 
that may affect the biological, chemical, or physical integrity of the 
Tribe's waters. Providing a mechanism to obtain TAS for this limited 
commenting opportunity is consistent with CWA sections 404 and 518, as 
well as the Federal trust responsibility to federally recognized Tribes 
and EPA's various Tribal policies seeking to facilitate Tribal 
opportunities to actively engage in managing their waters and resources 
and to eliminate unnecessary barriers to such Tribal involvement.
    Lastly, some commenters argued that this provision provides Tribes 
with an opportunity to comment on permits that does not exist in the 
Federal section 404 program. As discussed above, 40 CFR 233.31(a) 
already afforded specific consideration of comments and suggested 
permit conditions on draft permits by an affected State, which includes 
Tribes that have obtained TAS for purposes of assuming the section 404 
program. This final rule merely provides that Tribes may apply for TAS 
for the sole purpose of commenting on Tribe- or State-issued CWA 
section 404 permits in the same manner as an affected State. Moreover, 
under the Corps' administration as well as Tribal or State program 
administration, any entity may comment on any draft permit.
    Some commenters asked EPA to conduct outreach to inform Tribes 
about the opportunity to apply for TAS for the sole purpose of 
commenting on 404 permits. EPA agrees that such outreach would be 
useful and intends to work with Tribes and States to develop 
implementation tools and conduct outreach informing Tribes, States, and 
others about this rule, including the opportunity to apply for TAS to 
comment on 404 permits.
iii. Opportunity for Tribes To Request EPA Review of Permits That May 
Affect Tribal Rights or Interests
    EPA is also revising section 233.51 to codify an opportunity for 
Tribes to request EPA review of permits potentially affecting Tribal 
rights or interests. These may include rights or interests both inside 
and outside of a Tribe's reservation and would facilitate EPA's review 
of permits that have the potential to impact waters of significance to 
Tribes. The revisions to section 233.51 enable Tribes to request EPA's 
review of permits that may affect both rights reserved through 
treaties, statutes, or executive orders, as well as Tribal interests in 
resources that may not be reflected in Federal law, such as those with 
historical or cultural significance to Tribes. Section 233.51 applies 
whenever a Tribe asserts that issuance of a particular permit 
potentially affects its rights or resources; however, EPA's review of a 
permit pursuant to section 233.51 would not constitute a recognition by 
EPA that any particular Tribe holds reserved rights.\45\
---------------------------------------------------------------------------

    \45\ On May 2, 2024, EPA published a final rule entitled ``Water 
Quality Standards Regulatory Revisions to Protect Tribal Reserved 
Rights.'' 89 FR 35717 (May 2, 2024). That rule amends EPA's water 
quality standards regulation, 40 CFR part 131 et seq., to, in 
pertinent part, define ``Tribal reserved rights'' for WQS purposes 
as ``any rights to CWA-protected aquatic and/or aquatic-dependent 
resources reserved by right holders, either expressly or implicitly, 
through Federal treaties, statutes, or Executive orders.'' 89 FR 
35717. The Tribal Reserved Rights rulemaking does not affect section 
233.51 of this section 404 rulemaking, nor does anything in this 
section 404 rulemaking depend on the Tribal Reserved Rights 
rulemaking.
---------------------------------------------------------------------------

    EPA anticipates that this provision will help address Tribal 
concerns about the loss of Federal consultation opportunities when 
permitting authority transfers from the Corps to a Tribe or State. 
Additionally, this provision will allow coordination on potential 
impacts to Tribal rights and resources not covered by any other 
commenting option discussed above in sections IV.F.b.i and IV.F.b.ii of 
this preamble. Given the TAS provisions discussed above, EPA 
anticipates that Tribes will use this opportunity in limited 
circumstances.
    Under this provision, a Tribe may notify EPA within 20 days of 
public notice of a permit application that the application potentially 
affects Tribal rights or interests, including those beyond reservation 
boundaries, even if Federal review has been waived. If a Tribe does so, 
EPA will request the public notice and will proceed in accordance with 
section 233.50, including providing a copy of the public notice and 
other information needed for review of the application to the Corps, 
the U.S. Fish and Wildlife Service, and the National Marine Fisheries 
Service. Pursuant to section 233.50, if EPA objects to a draft permit, 
the issuing Tribe or State may not issue the permit unless it has taken 
steps required by EPA to eliminate the objection. Once EPA removes its 
objection, EPA may send a copy of the letter removing EPA's objections 
to a permit at a Tribe's request or pursuant to a prior agreement with 
the Tribe (or other stakeholders).
    Several commenters supported the proposed provision, noting it 
helps to fill a gap and provide Tribes a mechanism to help ensure an 
opportunity to raise concerns regarding potential impacts to Tribal 
aquatic and cultural resources outside of their reservations. Some 
commenters expressed concern that there is no reliable instrument for 
coordinating with States assuming the section 404 program regarding 
potential impacts on historical and cultural sites or Tribal natural 
resource rights located outside of reservation lands. These commenters 
referenced the Federal trust responsibility to Federally recognized 
Tribes, which forms an important element of the Tribal-federal 
relationship but which does not apply to States that assume the section 
404 program, as well as other aspects of federal law. Additionally, 
some commenters raised concerns over resource limitations and that 
following assumption a Tribe would need to take on the burden of 
reviewing all permit applications statewide for those that may affect 
Tribal resources. EPA encourages Tribes to work with Tribes and States 
with approved section 404 programs to develop mechanisms (e.g., 
Memoranda of Understanding) for notifying Tribes at appropriate times, 
and EPA may participate in such discussions to aid in coordination 
efforts, if appropriate.
    This rule does not affect other mechanisms that require Tribal and 
State permitting authorities to protect Tribal interests. For example, 
CWA section 404 permits for discharges must comply with all applicable 
State water quality standards (including standards in a downstream 
jurisdiction) in effect under the CWA. See 33 U.S.C. 1311(b)(1)(C); 40 
CFR 230.10(b)(1) and 233.20(a). To the extent designated uses require 
consideration of cultural or traditional uses of water that may be 
important to Tribes, Tribal or State section 404 programs must consider 
those during the permitting process.
    A few commenters raised a concern that this provision creates an 
opportunity to comment on permits beyond Indian Country that does not 
currently exist when the Corps is the permitting authority. As noted 
above, any member of the public is currently able to comment on any 
draft permit, and EPA has the authority to review and comment on any 
draft permit. See 33 U.S.C. 1344(h)(1)(C), (j). In addition, the scope 
of the Corps' Federal section 404 program is outside the scope of this 
rulemaking. Regardless of the scope of the Corps' engagement with 
Tribal stakeholders, facilitating Tribal engagement in permitting 
decisions that affect Tribal resources is a priority to EPA. In its 
oversight role, EPA is able to review and object to permits; this

[[Page 103494]]

provision provides an additional way to inform the Agency as it 
determines whether to review and object to a potential permit.

G. Impacts to Existing Programs

    This preamble section identifies parts of this rule that may affect 
existing State-assumed section 404 programs by requiring them to modify 
their procedures or potentially expand the scope of their authority. 
Whether these changes would require revisions to existing State-assumed 
programs depends on the existing authority of the States that have 
assumed the program and their implementation procedures, as well as the 
interpretation of these authorities and processes by State Attorneys 
General or State courts. These States may already have some or all of 
the authority or procedures in place that these provisions require. 
States that do not have the authority required to administer the 
provisions of the final rule would need to submit a program revision 
for EPA approval after issuance of the rule in accordance with 40 CFR 
part 233.16.
    Final rule provisions that could affect existing programs include a 
provision ensuring opportunity for judicial review of agency decisions 
(section IV.C.2 of this preamble), updates to the compensatory 
mitigation requirements for Tribal and State section 404 programs 
(section IV.B.4 of this preamble), and a revised approach to addressing 
the five-year limit on permits (section IV.C.1 of this preamble). In 
addition, clarification as to how Tribes and States can demonstrate 
that their programs are no less stringent than the Federal section 404 
program (section IV.A.3 of this preamble), modification of the conflict 
of interest prohibition (section IV.A.1 of this preamble), and updated 
annual reporting requirements (section IV.E.3 of this preamble) may 
affect existing State programs.
    EPA recognizes that ``[w]hen an agency changes course . . . it must 
be cognizant that longstanding policies may have engendered serious 
reliance interests that must be taken into account.'' Department of 
Homeland Security v. Regents of the University of California, 140 S. 
Ct. 1891, 1913 (2020) (citations and internal quotation marks omitted.) 
EPA does not view the regulatory changes as undermining serious 
reliance interests that outweigh the benefits of these changes. EPA's 
regulations contain detailed procedures for revising an approved 
section 404 program. 40 CFR part 233.16. States seeking approval would 
therefore be well aware that program revisions may be necessary 
following assumption. Moreover, the program revision regulations 
specifically address revisions needed as a result of a change to the 
section 404 regulations, or to any other applicable statutory or 
regulatory provision. Id. at 233.16(b). The regulations allow Tribes 
and States one year to make such revisions, or two years if statutory 
changes are required. Id. The 1-2-year revision period supplements the 
lengthy preliminary period for proposing and finalizing this rule and 
soliciting and responding to public comments. Tribes and States 
therefore should anticipate the potential need to revise their programs 
based on Federal regulatory revisions following assumption. Finally, 
nothing in CWA section 404 suggests that EPA's approval of a Tribal or 
State program terminates the Agency's ability to update relevant 
regulations when necessary to effectively administer the Act. The 
Agency does not think Congress would have intended approvals to carry 
such a drastic consequence without saying so.

H. Technical Revisions

    In addition to revising 40 CFR part 233, EPA is also finalizing 
technical edits to clarify that the 40 CFR part 124 regulations do not 
apply to Tribal or State section 404 programs. Specifically, EPA is 
making targeted revisions and deletions to specific provisions of the 
regulations at 40 CFR parts 124.1 through 124.3, 124.5, 124.6, 124.8, 
124.10 through 124.12, and 124.17 to remove any references to 40 CFR 
part 233. Prior to 1988, the State section 404 program regulations 
included references to 40 CFR part 124, which contains consolidated 
permitting regulations for a variety of programs that EPA administers. 
See 49 FR 39012 (October 2, 1984). The preamble to the 1988 section 404 
Tribal and State program regulation clearly stated that the 40 CFR part 
124 regulations no longer apply to Tribal or State section 404 programs 
and announced the Agency's intention to publish technical edits in the 
future. 53 FR 20764 (June 6, 1988) (``It is the agency's intent that 40 
CFR part 124 no longer applies to 404 State programs. We will be 
publishing technical, conforming regulations in the future.''). 
Although the Agency modified 40 CFR part 233 to remove all references 
to part 124 in 1988, the Agency did not provide conforming edits to 40 
CFR part 124 to remove references to 40 CFR part 233. This rule removes 
the outdated references to 40 CFR part 233 in part 124. The removal of 
these references has no substantive impact on the section 404 
assumption process or on Tribal or State section 404 programs. They 
also do not implicate or affect aspects of the part 124 regulations 
addressing other EPA permit programs, including the Resource 
Conservation and Recovery Act (RCRA), Underground Injection Control, 
and NPDES programs.
    EPA is also revising the definitions located at 40 CFR part 233.2 
for consistency and clarity. EPA is defining ``Indian lands'' 
consistent with the Agency's long-standing interpretation of ``Indian 
lands'' as synonymous with ``Indian country'' as defined at 18 U.S.C. 
1151. See e.g., 40 CFR part 144.3 (defining ``Indian lands'' as 
``Indian country'' as defined at 18 U.S.C. 1151); 40 CFR part 258.2 
(adopting the definition of 18 U.S.C. 1151 for ``Indian lands''); U.S. 
EPA, Underground Injection Control Program: Federally-Administered 
Programs, 49 FR 45292, 45294 (November 15, 1984) (defining ``Indian 
lands'' as used in EPA's Safe Drinking Water Act Underground Injection 
Control Program regulations as ``Indian country,'' explaining that 
``EPA believes this definition is most consistent with the concept of 
Indian lands as the Agency has used it in regulations and [Underground 
Injection Control] program approvals to date.''); Wash. Dep't of 
Ecology v. EPA, 752 F.2d 1465, 1467 n.1 (9th Cir. 1985) (noting EPA's 
position that ``Indian lands'' is ``synonymous with `Indian country', 
which is defined at 18 U.S.C. 1151''). EPA is also revising the 
definition of ``State 404 program'' or ``State program'' to clarify 
that Tribes and interstate agencies may also have an approved program. 
The Agency is removing the ``(p)'' associated with the cross-reference 
to 40 CFR part 233.2 in the definition of ``State 404 program'' or 
``State program'' as the definitions in 40 CFR part 233.2 are no longer 
listed by letter. Finally, EPA is clarifying the definition for ``State 
regulated waters'' in 40 CFR part 232 by replacing the in-text 
description of retained waters with a reference to the relevant 
regulatory text at 40 CFR part 233.11(i).
    EPA is also finalizing several technical edits throughout 40 CFR 
part 233 to update cross-references, ensure consistent use of 
terminology, and facilitate efficient program operation. First, EPA is 
updating section 233.10(a) and section 233.16(d)(2) to include the term 
``Tribal leader'' where the term ``Governor'' is referenced. Second, 
EPA is also removing the use of the masculine pronouns ``he'' and 
``his'' throughout 40 CFR part 233 and replacing them with ``they,'' 
``their,'' ``the Administrator,'' ``the Regional Administrator,'' or 
``Director'' as appropriate. The purpose of changing masculine pronouns 
or terms to neutral pronouns and other neutral terms is to

[[Page 103495]]

acknowledge the diversity of people who may hold the positions of ``the 
Administrator,'' ``the Regional Administrator,'' ``Director,'' and 
program staff. Third, EPA is changing references to assumption 
``application'' to terms including ``request to assume,'' ``program 
submission,'' or ``assumption request materials'' to more clearly 
distinguish between permit applications and requests to assume the 
program throughout the regulations. Fourth, EPA is revising section 
233.1(b) to remove the term ``individual'' from the reference to 
``State permits,'' as States may also regulate discharges using general 
permits. Fifth, the Agency is changing the ``Note'' in section 233.1(c) 
to become section 233.1(d) and adding a cross-reference to the process 
to identify retained waters and the retained waters description at 
233.11(i). Section 233.1(d) will be renumbered as 233.1(e). Sixth, EPA 
is clarifying in section 233.14(b)(3) that when a State intends to 
administer general permits issued by the Secretary, any Tribal or State 
conditions and/or certifications of those general permits transfer when 
the Tribe or State assumes the program. Seventh, EPA is also adding an 
effective date for the approved non-substantial program revisions in 
the letter from the Regional Administrator to the Governor requirement 
in section 233.16(d)(2). Finally, EPA is also clarifying in section 
233.53(a)(1) that when the Tribe or State notifies the Administrator 
and the Secretary of its intent to voluntarily transfer program 
responsibilities back to the Secretary, the Tribe or State must also 
submit the transition plan. The Agency is adding the words ``no less 
than'' before the advance notice requirement to clarify that Tribes and 
States may provide more than 180 days' notice of intent to transfer the 
program. An extended transition time would allow the Tribe or State, 
the Corps, and EPA to discuss any gaps in the plan and ensure a smooth 
transition from the Tribe or State to the Corps' administration of the 
program. The rule requires that files associated with ongoing 
investigations, compliance orders, and enforcement actions be provided 
to the Secretary to ensure compliance with these orders and minimize 
disruptions in administration of section 404 programs. The Agency 
requested comment on whether to revise the regulations to clarify that 
electronic mail is an acceptable method of transmitting public notices 
or documents, in addition to mail. Instead of changing, for example, 
the word ``mail'' to ``send'' throughout the regulations, the Agency 
wishes to clarify that that both electronic mail and mail are 
acceptable methods of transmitting public notices or documents.

I. Incorporation by Reference

    Currently, 40 CFR part 233.70 incorporates by reference Michigan's 
regulatory and statutory authorities applicable to the State's approved 
CWA section 404 program, and 40 CFR part 233.71 incorporates by 
reference New Jersey's regulatory and statutory authorities applicable 
to the State's approved CWA section 404 program. EPA codified in 
regulation the approval of the Michigan program on October 2, 1984 (49 
FR 38947) and the New Jersey program on March 2, 1994 (59 FR 9933).
    EPA is updating the incorporation by reference of the Michigan laws 
in the State's approved CWA section 404 program as follows:
     The Michigan Administrative Procedures Act of 1969, MCL 
Sec.  24-201, et seq., in effect as of February 13, 2024 (addresses the 
effect, processing, promulgation, publication and inspection of State 
agency determinations, guidelines and rules);
     The Natural Resources and Environmental Protection Act 451 
of 1994:
    [cir] Part 31 Water Resources Protection, MCL Sec.  324.31 et seq., 
in effect as of September 29, 2023 (provides regulatory authority and 
describes Michigan's water quality provisions);
    [cir] Part 301 Inland Lakes and Streams, MCL Sec.  324.301 et seq., 
in effect as of October 20, 2021 (provides authority for Michigan's 
inland lakes and streams rules and regulations for the streams and 
inland lakes portion of the water resources permitting and enforcement 
program);
    [cir] Part 303 Wetland Protection, MCL Sec.  324.303 et seq., in 
effect as of April 27, 2019 (provides authority for Michigan's wetlands 
rules and regulations for the wetlands portion of the water resources 
permitting and enforcement program);
    [cir] Part 307 Inland Lake Levels, MCL Sec.  324.307 et seq., in 
effect as of October 16, 2020 (provides authority for Michigan 
regulating water levels in inland lakes);
    [cir] Part 315 Dam Safety, MCL Sec.  324.315 et seq., in effect as 
of September 10, 2004 (provides authority for Michigan regulating dam 
safety);
    [cir] Part 323 Great Lakes Shorelands Protection and Management, 
MCL Sec.  324.323 et seq., in effect as of October 20, 2021 (allows the 
State to issue permit and violation fees); and
    [cir] Part 325 Great Lakes Submerged Lands, MCL Sec.  324.325 et 
seq., in effect as of October 20, 2021 (provides for and describes 
regulating activities in Great Lakes Submerged Lands).
    Additionally, EPA is incorporating the most recent versions of 
Michigan Administrative Code, Department of Environmental Quality, as 
follows:
     Land and Water Management:
    [cir] Great Lakes Shorelands, R 281.21 through R 281.26 inclusive, 
in effect as of 2000;
    [cir] Wetlands Protection, R 281.921 through R 281.925 inclusive, 
in effect as of 2006;
    [cir] Wetland Mitigation Banking, R 281.951 through R 281.961 
inclusive, in effect as of 1997;
    [cir] Dam Safety, R 281.1301 through R 281.1313 inclusive, in 
effect as of 1993; and
     Water Resources Division, Inland Lakes and Streams, R 
281.811 through R 281.846 inclusive, in effect as of 2015.
    This material contains Michigan's rules for shoreline protection, 
inland lakes and streams, wetlands protection, wetland mitigation 
banking, and dam safety. EPA is updating the name of the implementing 
State agency to reflect that the current agency implementing the 
approved Michigan assumed program is the Michigan Department of 
Environment, Great Lakes, and Energy rather than the Department of 
Natural Resources in section 233.70. EPA is also updating the 
description of EPA and Michigan Memorandum of Agreement in section 
233.70(c)(1) to reflect the current Memorandum, signed in 2011.
    EPA is updating the incorporation by reference of the New Jersey 
state laws in the State's approved CWA section 404 program as follows: 
Freshwater Wetlands Protection Act, New Jersey Statutes Annotated, 
Title 13: Conservation and Development--Parks and Reservations; Chapter 
9B: Freshwater Wetlands, N.J.S.A.13:9B-1 et seq., effective as of 
December 23, 1993 (provides the New Jersey Department of Environmental 
Protection with the authority to regulate and permit activities in 
freshwater wetlands). Additionally, EPA is incorporating the most 
recent version of the Freshwater Wetlands Protection Act Rules as 
follows: Freshwater Wetlands Protection Act Rules, New Jersey 
Administrative Code, N.J.A.C. 7:7A, amended November 7, 2022 (contains 
regulations to implement the Freshwater Wetlands Protection Act).
    Materials that have been incorporated by reference are reasonably 
made available to interested parties. Copies of materials incorporated 
by reference may be obtained or inspected at EPA Docket Center Reading 
Room, WJC West Building, Room 3334, 1301 Constitution Avenue NW, 
Washington, DC 20004

[[Page 103496]]

(telephone number: 202-566-1744); or send mail to Mail Code 5305G, 1200 
Pennsylvania Ave. NW, Washington, DC 20460. Copies of the materials 
incorporated by reference for Michigan's program can also be accessed 
at www.legislature.mi.gov/ and www.michigan.gov/lara/bureau-list/moahr/admin-rules; at the Water Division, Environmental Protection Agency, 
Region 5, 77 West Jackson Boulevard, Chicago, IL 60604 (telephone 
number: 800-621-8431); or at the Michigan Department of Environment, 
Great Lakes, and Energy office at 525 W Allegan St., Lansing, MI 48933 
(telephone number: 800-662-9278). Copies of the materials incorporated 
by reference for New Jersey's program can also be accessed at 
www.epa.gov/cwa404g/us-interactive-map-state-and-tribal-assumption-under-cwa-section-404#nj; at the Library of the Region 2 Regional 
Office, Ted Weiss Federal Building, 290 Broadway, New York, NY 10007; 
or at the New Jersey Department of Environmental Protection at 401 East 
State St., Trenton, NJ 08625 (telephone number: 609-777-3373). EPA is 
updating the docket location and EPA Region 2 Regional Office location 
cited at 40 CFR part 233.71(b) to reflect their current addresses.

J. Severability

    The purpose of this section is to clarify EPA's intent with respect 
to the severability of provisions of the final rule. Each provision and 
interpretation in this rule is capable of operating independently. Once 
effective, if any provision or interpretation in this rule were to be 
determined by judicial review or operation of law to be invalid, that 
partial invalidation would not render the remainder of this rule 
invalid. Likewise, if the application of any aspect of this rule to a 
particular circumstance were determined to be invalid, the Agency 
intends that the rule would remain applicable to all other 
circumstances. None of the provisions in this rule depend upon any 
other for effectiveness. Taking as examples the provisions listed at 
the beginning of this preamble, if the new ``conflict of interest'' 
revisions were deemed invalid, the absence of those revisions would in 
no way affect or undermine the rationale for or the operation of the 
provisions addressing compliance with the 404(b)(1) Guidelines or being 
``no less stringent than'' Federal requirements. Similarly, taking an 
example from the end of this preamble, if the Agency's provisions 
addressing Tribal engagement were deemed invalid, the new program 
reporting requirements would retain their utility.

V. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 14094: Modernizing Regulatory Review

    This action is a ``significant regulatory action'' as defined in 
Executive Order 12866, as amended by Executive Order 14094. 
Accordingly, EPA submitted this action to the Office of Management and 
Budget (OMB) for Executive Order 12866 review. Documentation of any 
changes made in response to Executive Order 12866 review is available 
in the docket for this action. EPA prepared an analysis of the 
potential costs and benefits associated with this action. This 
analysis, the Economic Analysis for the Final Rule, is available in the 
docket for this action (Docket ID No. EPA-HQ-OW-2020-0276) and is 
briefly summarized below.
    The Economic Analysis for the Final Rule is qualitative in nature 
due to numerous data limitations and uncertainties regarding the 
potential impacts resulting from the final rule. See Section VI of the 
Economic Analysis for the Final Rule for further discussion on data 
limitations and uncertainties. Section IV of the Economic Analysis for 
the Final Rule summarizes the incremental and cumulative costs and 
benefits of the final rule for different interested parties, including 
Tribes, States, permittees, and EPA. Benefits of the final rule are 
mainly positive impacts resulting from clarification of assumption 
procedures and substantive requirements. These benefits accrue to 
Tribes, States, permittee, Federal agencies, and the public. Tribes, 
States, permittees, and Federal agencies may experience both 
incremental costs and cost savings as a result of the final rule.

B. Paperwork Reduction Act (PRA)

    The information collection activities in this rulemaking have been 
submitted for approval to the Office of Management and Budget (OMB) 
under the PRA. The Information Collection Request (ICR) document that 
EPA prepared has been assigned EPA ICR number 0220.17. You can find a 
copy of the ICR in the docket for this rule, and it is briefly 
summarized below. The information collection requirements are not 
enforceable until OMB approves them.
    The type and frequency of information requested varies by 
respondent group and activity. For this information collection, EPA 
classified respondents into one of four categories: (1) States or 
Tribes seeking program assumption; (2) States or Tribes with an 
approved program and administering the program; (3) Permittees; and (4) 
Tribes seeking TAS for the sole purpose of commenting as an affected 
State. The ICR does not require the collection of any information of a 
confidential nature or status.
    Respondents/affected entities: States or Tribes seeking program 
assumption; States or Tribes with an approved program and administering 
the program; Permittees; and Tribes seeking TAS for the sole purpose of 
commenting as an affected State.
    Respondents' obligation to respond: Voluntary (States or Tribes 
seeking program assumption); Required for program operation and 
maintenance (States or Tribes with an approved program and 
administering the program); Required to submit an application to obtain 
a section 404 permit (Permittee); Voluntary (Tribes seeking TAS for the 
sole purpose of commenting as an affected State).
    Estimated number of respondents: 1 State over 3 years (seeking 
program assumption); 3 States/year (with an approved program and 
administering the program, except for program modification); 2 States 
over 3 years (modifications to an approved program); 1,693 Permittees/
year for 3 approved programs; 1 Tribe/year over 3 years (seeking TAS 
for the sole purpose of commenting as an affected State).
    Frequency of response: Once (States or Tribes seeking program 
assumption); Variable (for States or Tribes with an approved program 
and administering the program); for each permit application (for 
Permittees); once (for Tribes seeking TAS for the sole purpose of 
commenting as an affected State).
    Total estimated burden to respondents: 130,725 hours (per year). 
Burden is defined at 5 CFR 1320.3(b).
    Total estimated cost to respondents: $6,972,139 (per year), 
includes $930,831 annualized capital and start-up costs and $6,041,308 
program operation and maintenance costs.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves 
this ICR, the Agency will announce that approval in the Federal 
Register and publish a technical amendment to 40 CFR part 9 to display 
the OMB control number for the

[[Page 103497]]

approved information collection activities contained in this final 
rule.

C. Regulatory Flexibility Act (RFA)

    I certify that this final rule will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. Section 
404(g) of the CWA allows for Tribes and States to assume the section 
404 permitting program, and the final rule clarifies assumption 
requirements for Tribes and States to ensure compliance with CWA 
404(b)(1) Guidelines. Without the final rule, entities (both large and 
small) would still have to comply with the CWA 404(b)(1) Guidelines, 
regardless of whether the Tribe or State assumes the section 404 
program or not and regardless of the changes in the final rule.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate of $100 million 
(annually adjusted for inflation) or more (in 1995 dollars) as 
described in UMRA, 2 U.S.C. 1531-38, and does not significantly or 
uniquely affect small governments. This action imposes no enforceable 
duty on any State, local, or Tribal governments or the private sector. 
See the Economic Analysis for the Final Rule in the docket for this 
action for further discussion on UMRA.

E. Executive Order 13132: Federalism

    Under the technical requirements of Executive Order 13132 (64 FR 
43255, August 10, 1999), EPA has determined that this rulemaking does 
not have federalism implications. EPA believes, however, this 
rulemaking may be of significant interest to State and local 
governments. Consistent with EPA's policy to promote communications 
between EPA and State governments, EPA engaged with State officials 
early in the process of developing the proposed rule to permit them to 
have meaningful and timely input into its development.
    EPA is finalizing updates to clarify and facilitate the process of 
State assumption of the section 404 program. This rule does not impose 
any new costs or other requirements on States, preempt State law, or 
limit States' policy discretion. This action does not have federalism 
implications and will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.
    The Agency invited written input from State agencies from November 
12, 2018, through February 11, 2019,\46\ and hosted an in-person 
meeting with State officials on December 6, 2018. At the in-person 
meeting, the Agency provided an overview of the rulemaking effort and 
the section 404(g) program and led themed discussions for input for the 
proposed rule, including clarifying assumed and retained waters and 
adjacent wetlands, enforcement and compliance, partial assumption, and 
calculating economic costs and benefits of the rule. A summary of 
stakeholder engagement and written input from States on this action is 
available in the docket for this final rule. After publishing the 
proposed rule in the Federal Register, stakeholders were encouraged to 
submit comment letters during a 60-day public comment period and EPA 
held a public hearing on September 6, 2023, for all stakeholders to 
provide public comment on the proposed rule. Additionally, EPA hosted 
one input session specifically for State government representatives on 
August 24, 2023. Summaries of the public hearing session and of the 
input received during the State input session can be found in the 
docket for this rulemaking. Furthermore, EPA reviewed and responded to 
the public comment letters from State and local governments in a 
Response to Comments document that can also be found in the docket for 
this rulemaking. All comment letters and recommendations received by 
EPA during the public comment period from State and local governments 
are included in the docket for this action (Docket ID No. EPA-HQ-OW-
2020-0276).
---------------------------------------------------------------------------

    \46\ The Agency invited written input from State agencies from 
November 12, 2018, through January 11, 2019. Due to the lapse in 
Federal Government funding, EPA accepted input from states until 
February 2019.
---------------------------------------------------------------------------

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

    This action may have implications for Tribal governments. However, 
it will neither impose substantial direct compliance costs on federally 
recognized Tribal governments, nor preempt Tribal law. This action 
would expand Tribes' ability to utilize TAS for purposes of commenting 
as ``affected States,'' and would develop an avenue for EPA review of 
permits that may impact Tribal rights and resources.
    EPA consulted with Tribal officials under the EPA Policy on 
Consultation and Coordination with Indian Tribes early in the process 
of developing this regulation to permit Tribes to have meaningful and 
timely input into its development. EPA has developed a document which 
further describes EPA's efforts to engage with Tribal representatives 
and is available in the docket for this rulemaking.
    As required by section 7(a), EPA's Tribal Consultation Official has 
certified that the requirements of the executive order have been met in 
a meaningful and timely manner. A copy of this certification is 
included in the docket for this action.
    The Agency initiated a Tribal consultation and coordination process 
before proposing a rule by sending a ``Notification of Consultation and 
Coordination'' letter, dated October 19, 2018, to all Tribes federally 
recognized at that time. The letter invited Tribal leaders and 
designated representatives to participate in the Tribal consultation 
and coordination process for this rulemaking. The Agency engaged with 
Tribes over a 60-day consultation period that concluded on December 21, 
2018, including two Tribes-only informational webinars on November 20 
and 29, 2018. During this consultation period, EPA participated in in-
person meetings with Tribal associations, including a presentation for 
the National Tribal Water Council on October 24, 2018, and an 
informational session at the National Congress of American Indians 75th 
Annual Convention on October 24, 2018. The Agency also attended the EPA 
Region 9 Regional Tribal Operations Committee (RTOC) meeting on October 
31, 2018, the EPA Region 6 RTOC meeting on November 28, 2018, and the 
EPA Region 7 Enhancing State and Tribal Programs Wetland Symposium on 
November 5, 2018. At the meetings and webinars, EPA sought input on 
aspects of the section 404 Tribal and State program regulations and 
assumption process. The Agency initiated a second Tribal consultation 
and coordination period on July 18, 2023. The Agency engaged with 
Tribes over a 60-day period that concluded on September 17, 2023, 
including two Tribal input sessions on August 15 and 30, 2023. During 
this consultation period, EPA participated in various meetings with 
Tribal associations, continued outreach and engagement with Tribes, and 
sought other opportunities to provide information and hear feedback 
from Tribes at national and regional Tribal meetings during and after 
the end of the consultation period. The Agency notes that two Tribes 
requested government-to-government consultation. However, no responses 
were received to schedule

[[Page 103498]]

the consultations.\47\ All Tribal and Tribal organization letters and a 
summary of the Tribal consultation and coordination effort may be found 
in the docket for this action.
---------------------------------------------------------------------------

    \47\ During the consultation period prior to the development of 
the final rule, two requests for government-to-government 
consultation were received. On July 25, 2023, EPA sent both the 
Mille Lacs Band of Ojibwe and the Grand Portage Band of Lake 
Superior Chippewa an invitation to schedule consultation. No 
responses were received to the invitation to schedule consultation.
---------------------------------------------------------------------------

    After publishing the proposed rule in the Federal Register, 
stakeholders were encouraged to submit comment letters during a 60-day 
public comment period and EPA held a public hearing on September 6, 
2023, for all stakeholders to provide public comment on the proposed 
rule. Summaries of the public hearing and of the input received during 
the Tribal input sessions can be found in the docket for this 
rulemaking. Furthermore, EPA reviewed and responded to the public 
comment letters from Tribal representatives in a Response to Comment 
document that can also be found in the docket for this rulemaking.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive Order. Therefore, this action is not subject to Executive 
Order 13045 because it does not concern an environmental health risk or 
safety risk. Since this action does not concern human health, EPA's 
Policy on Children's Health also does not apply.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations and 
Executive Order 14096: Revitalizing Our Nation's Commitment to 
Environmental Justice for All

    EPA believes that the human health and environmental conditions 
that exist prior to this action do not result in disproportionate and 
adverse effects on communities with environmental justice concerns. The 
final rule creates more transparency and clarity for Tribes and States 
with existing section 404 programs and for those seeking to assume. 
Environmental justice considerations are potentially addressed through 
the following topics in the final rule: (1) public notice and hearings, 
(2) no less stringent than, (3) long-term permitting, (4) judicial 
review, (5) affected States, and (6) opportunities for Tribes.
    First, within the final rule and assumption process, there are 
multiple opportunities for public engagement through public notice and 
hearings, including for communities with environmental justice 
concerns. Second, the section 404 Tribal and State regulations require 
that Tribes or States with an approved section 404 program may not 
impose conditions less stringent than those required under Federal law, 
so the environmental impacts of permitted projects would not increase 
due to this transfer of authority. Third, the final rule provides an 
improved ability for communities with environmental justice concerns to 
participate in the section 404 permitting process for long-term 
projects. Fourth, the requirements for State-assumed section 404 
programs allow for judicial review in State courts, which is an 
opportunity for affected stakeholders to address concerns through 
judicial review.
    Lastly, EPA additionally identified and addressed potential 
environmental justice concerns by expanding Tribes' ability to utilize 
TAS for purposes of commenting as ``affected States'' and developing an 
avenue for EPA review of permits that may impact Tribal rights and 
resources. The final rule will enable Tribes to have a more significant 
role in the permit decision-making process than under prior practice. 
See Section V of the Economic Analysis for the Final Rule for 
additional information on the final regulations.
    The information supporting this Executive Order review is contained 
in Section V of the Economic Analysis for the Final Rule, which is 
available in the docket for this action.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and EPA will submit a rule 
report to each House of Congress and to the Comptroller General of the 
United States. This action does not meet the criteria as defined by 5 
U.S.C. 804(2).

List of Subjects

40 CFR Part 123

    Environmental protection, Flood control, Water pollution control.

40 CFR Part 124

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous waste, Indians--lands, Reporting and 
recordkeeping requirements, Water pollution control, Water supply.

40 CFR Part 232

    Environmental protection, Intergovernmental relations, Water 
pollution control.

40 CFR Part 233

    Environmental protection, Administrative practice and procedure, 
Incorporation by reference, Indians--lands, Intergovernmental 
relations, Penalties, Reporting and recordkeeping requirements, Water 
pollution control.

Michael S. Regan,
Administrator.

    For the reasons set forth in this preamble, EPA amends 40 CFR parts 
123, 124, 232, and 233 as follows:

PART 123--STATE PROGRAM REQUIREMENTS

0
1. The authority citation for part 123 continues to read as follows:

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


0
2. Section 123.27 is amended by:
0
a. Revising paragraphs (a) introductory text and (a)(3) introductory 
text;
0
b. Removing the note immediately following paragraph (a)(3)(ii); and
0
c. Revising paragraph (b)(2).
    The revisions read as follows:


Sec.  123.27  Requirements for enforcement authority.

    (a) Any State agency administering a program shall have the 
authority to establish the following violations and have available the 
following remedies and penalties for such violations of State program 
requirements:
* * * * *
    (3) To assess or sue to recover in court civil penalties and to 
seek criminal penalties as follows:
* * * * *

[[Page 103499]]

    (b) * * *
    (2) The burden of proof and degree of knowledge or intent required 
under State law for establishing violations under paragraph (a)(3) of 
this section, shall be no greater than the burden of proof or degree of 
knowledge or intent EPA must provide when it brings an action under the 
Act, except that a State may establish criminal violations based on any 
form or type of negligence.

    Note 3 to paragraph (b)(2):  For example, this requirement is 
not met if State law includes mental state as an element of proof 
for civil violations.

* * * * *

PART 124--PROCEDURES FOR DECISIONMAKING

0
3. The authority citation for part 124 continues to read as follows:

    Authority: Resource Conservation and Recovery Act, 42 U.S.C. 
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300f et seq.; Clean 
Water Act, 33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 7401 et 
seq.


0
4. Amend Sec.  124.1 by revising paragraphs (e) and (f) to read as 
follows:


Sec.  124.1  Purpose and scope.

* * * * *
    (e) Certain procedural requirements set forth in this part must be 
adopted by States in order to gain EPA approval to operate RCRA, UIC, 
and NPDES permit programs. These requirements are listed in 40 CFR 
123.25 (NPDES), 145.11 (UIC), and 271.14 (RCRA) and signaled by the 
following words at the end of the appropriate part 124 section or 
paragraph heading: (applicable to State programs see 40 CFR 123.25 
(NPDES), 145.11 (UIC), and 271.14 (RCRA)). This part does not apply to 
PSD permits or 404 permits issued by an approved State.
    (f) To coordinate decision-making when different permits will be 
issued by EPA and approved State programs, this part allows 
applications to be jointly processed, joint comment periods and 
hearings to be held, and final permits to be issued on a cooperative 
basis whenever EPA and a State agree to take such steps in general or 
in individual cases. These joint processing agreements may be provided 
in the Memorandum of Agreement developed under 40 CFR 123.24 (NPDES), 
145.24 (UIC), and 271.8 (RCRA).

0
5. Amend Sec.  124.2 by:
0
a. In paragraph (a):
0
i. Revising the introductory text;
0
ii. Revising the definitions for ``Facility or activity'', ``General 
permit'', ``Major facility'', ``Owner or operator'', ``Permit'', and 
``SDWA''; and
0
iii. Removing the definition for ``Section 404 program or State 404 
program or 404''; and
0
iv. Revising the definition for ``Site''; and
0
b. Revising paragraph (b).
    The revisions read as follows:


Sec.  124.2  Definitions.

    (a) In addition to the definitions given in 40 CFR 122.2 and 123.2 
(NPDES), 501.2 (sludge management), 144.3 and 145.2 (UIC), and 270.2 
and 271.2 (RCRA), the definitions below apply to this part, except for 
PSD permits which are governed by the definitions in Sec.  124.41. 
Terms not defined in this section have the meaning given by the 
appropriate Act.
* * * * *
    Facility or activity means any ``HWM facility,'' UIC ``injection 
well,'' NPDES ``point source'' or ``treatment works treating domestic 
sewage'', or any other facility or activity (including land or 
appurtenances thereto) that is subject to regulation under the RCRA, 
UIC, or NPDES programs.
* * * * *
    General permit (NPDES) means an NPDES ``permit'' authorizing a 
category of discharges or activities under the CWA within a 
geographical area. For NPDES, a general permit means a permit issued 
under 40 CFR 122.28.
* * * * *
    Major facility means any RCRA, UIC, or NPDES ``facility or 
activity'' classified as such by the Regional Administrator, or, in the 
case of ``approved State programs,'' the Regional Administrator in 
conjunction with the State Director.
    Owner or operator means owner or operator of any ``facility or 
activity'' subject to regulation under the RCRA, UIC, or NPDES 
programs.
    Permit means an authorization, license or equivalent control 
document issued by EPA or an ``approved State'' to implement the 
requirements of this part and parts 122, 123, 144, 145, 270, and 271 of 
this chapter. ``Permit'' includes RCRA ``permit by rule'' (40 CFR 
270.60), RCRA emergency permit (40 CFR 270.61), RCRA standardized 
permit (40 CFR 270.67), UIC area permit (40 CFR 144.33), UIC emergency 
permit (Sec.  144.34), and NPDES ``general permit'' (40 CFR 122.28). 
Permit does not include RCRA interim status (40 CFR 270.70), UIC 
authorization by rule (40 CFR 144.21), or any permit which has not yet 
been the subject of final agency action, such as a ``draft permit'' or 
a ``proposed permit.''
* * * * *
    SDWA means the Safe Drinking Water Act (Pub. L. 95-523, as amended 
by Pub. L. 95-1900; 42 U.S.C. 300f et seq.).
    Site means the land or water area where any ``facility or 
activity'' is physically located or conducted, including adjacent land 
used in connection with the facility or activity.
* * * * *
    (b) For the purposes of 40 CFR part 124, the term Director means 
the State Director or Regional Administrator and is used when the 
accompanying provision is required of EPA-administered programs and of 
State programs under 40 CFR 123.25 (NPDES), 145.11 (UIC), and 271.14 
(RCRA). The term Regional Administrator is used when the accompanying 
provision applies exclusively to EPA-issued permits and is not 
applicable to State programs under these sections. While States are not 
required to implement these latter provisions, they are not precluded 
from doing so, notwithstanding use of the term ``Regional 
Administrator.''


0
6. Amend Sec.  124.3 by revising paragraph (a) heading, and paragraphs 
(a)(1) and (3) to read as follows:


Sec.  124.3  Application for a permit.

    (a) Applicable to State programs, see 40 CFR 123.25 (NPDES), 145.11 
(UIC), and 271.14 (RCRA). (1) Any person who requires a permit under 
the RCRA, UIC, NPDES, or PSD programs shall complete, sign, and submit 
to the Director an application for each permit required under 40 CFR 
270.1 (RCRA), 144.1 (UIC), 40 CFR 52.21 (PSD), and 122.1 (NPDES). 
Applications are not required for RCRA permits by rule (40 CFR 270.60), 
underground injections authorized by rules (40 CFR 144.21 through 
144.26), and NPDES general permits (40 CFR 122.28).
* * * * *
    (3) Permit applications (except for PSD permits) must comply with 
the signature and certification requirements of 40 CFR 122.22 (NPDES), 
144.32 (UIC), and 270.11 (RCRA).
* * * * *


0
7. Amend Sec.  124.5 by:
0
a. Revising paragraph (a), paragraph (c) heading, and paragraphs (c)(1) 
and (3);
0
b. Removing paragraph (f); and
0
c. Redesignating paragraph (g) as paragraph (f).
    The revision reads as follows:


Sec.  124.5  Modification, revocation and reissuance, or termination of 
permits.

    (a) (Applicable to State programs, see 40 CFR 123.25 (NPDES), 
145.11 (UIC), and 271.14 (RCRA).) Permits (other than

[[Page 103500]]

PSD permits) may be modified, revoked and reissued, or terminated 
either at the request of any interested person (including the 
permittee) or upon the Director's initiative. However, permits may only 
be modified, revoked, and reissued or terminated for the reasons 
specified in 40 CFR 122.62 or 122.64 (NPDES), 144.39 or 144.40 (UIC), 
and 270.41 or 270.43 (RCRA). All requests shall be in writing and shall 
contain facts or reasons supporting the request.
* * * * *
    (c) (Applicable to State programs, see 40 CFR 123.25 (NPDES), 
145.11 (UIC), and 271.14 (RCRA)). (1) If the Director tentatively 
decides to modify or revoke and reissue a permit under 40 CFR 122.62 
(NPDES), 144.39 (UIC), or 270.41 (other than 40 CFR 270.41(b)(3) or 40 
CFR 270.42(c) (RCRA)), he or she shall prepare a draft permit under 40 
CFR 124.6 incorporating the proposed changes. The Director may request 
additional information and, in the case of a modified permit, may 
require the submission of an updated application. In the case of 
revoked and reissued permits, other than under 40 CFR 270.41(b)(3), the 
Director shall require the submission of a new application. In the case 
of revoked and reissued permits under 40 CFR 270.41(b)(3), the Director 
and the permittee shall comply with the appropriate requirements in 
subpart G of this part for RCRA standardized permits.
* * * * *
    (3) ``Minor modifications'' as defined in 40 CFR 122.63 (NPDES), 
and 144.41 (UIC), and ``Classes 1 and 2 modifications'' as defined in 
40 CFR 270.42 (a) and (b) (RCRA) are not subject to the requirements of 
this section.
* * * * *


0
8. Amend Sec.  124.6 by:
0
a. Revising paragraphs (a) and (c), paragraph (d) heading and 
introductory text, paragraphs (d)(1) through (3);
0
b. Removing paragraph (d)(4)(iv);
0
c. Redesignating paragraph (d)(4)(v) as paragraph (d)(4)(iv); and
0
d. Revising the paragraph (e) heading.
    The revisions read as follows:


Sec.  124.6  Draft permits.

    (a) (Applicable to State programs, see 40 CFR 123.25 (NPDES), 
145.11 (UIC), and 271.14 (RCRA).) Once an application is complete, the 
Director shall tentatively decide whether to prepare a draft permit or 
to deny the application.
* * * * *
    (c) (Applicable to State programs, see 40 CFR 123.25 (NPDES).) If 
the Director tentatively decides to issue an NPDES general permit, he 
or she shall prepare a draft general permit under paragraph (d) of this 
section.
    (d) (Applicable to State programs, see 40 CFR 123.25 (NPDES), 
145.11 (UIC), and 271.14 (RCRA).) If the Director decides to prepare a 
draft permit, he or she shall prepare a draft permit that contains the 
following information:
    (1) All conditions under 40 CFR 122.41 and 122.43 (NPDES), 144.51 
and 144.42 (UIC), or 270.30 and 270.32 (RCRA) (except for PSD 
permits));
    (2) All compliance schedules under 40 CFR 122.47 (NPDES), 144.53 
(UIC), or 270.33 (RCRA) (except for PSD permits);
    (3) All monitoring requirements under 40 CFR 122.48 (NPDES), 144.54 
(UIC), or 270.31 (RCRA) (except for PSD permits); and
* * * * *
    (e) (Applicable to State programs, see 40 CFR 123.25 (NPDES), 
145.11 (UIC), and 271.14 (RCRA).) * * *
* * * * *


0
9. Amend Sec.  124.8 by revising the introductory text and paragraph 
(a) to read as follows:


Sec.  124.8  Fact sheet.

    (Applicable to State programs, see 40 CFR 123.25 (NPDES), 145.11 
(UIC), and 271.14 (RCRA).)
    (a) A fact sheet shall be prepared for every draft permit for a 
major HWM, UIC, or NPDES facility or activity, for every Class I sludge 
management facility, for every NPDES general permit (40 CFR 122.28 of 
this subchapter), for every NPDES draft permit that incorporates a 
variance or requires an explanation under 40 CFR 124.56(b), for every 
draft permit that includes a sewage sludge land application plan under 
40 CFR 501.15(a)(2)(ix), and for every draft permit which the Director 
finds is the subject of wide-spread public interest or raises major 
issues. The fact sheet shall briefly set forth the principal facts and 
the significant factual, legal, methodological, and policy questions 
considered in preparing the draft permit. The Director shall send this 
fact sheet to the applicant and, on request, to any other person.
* * * * *


0
10. Amend Sec.  124.10 by:
0
a. Revising paragraph (a)(1);
0
b. Revising the paragraph (b) heading;
0
c. Revising the introductory text of paragraph (c), and paragraphs 
(c)(1)(i), (ii), and (iv);
0
d. Removing paragraph (c)(1)(vi);
0
e. Redesignating paragraphs (c)(1)(vii) through (xi) as paragraphs 
(c)(1)(vi) through (x);
0
f. Revising paragraph (c)(2)(i);
0
g. Revising the paragraph (d) heading, and paragraphs (d)(1)(ii) and 
(iii);
0
h. Removing paragraph (d)(1)(viii);
0
i. Redesignating paragraphs (d)(1)(ix) and (x) as paragraphs 
(d)(1)(viii) and (ix);
0
j. Adding at the end of paragraph (d)(2)(ii) the word ``and'' after the 
semi-colon;
0
k. Removing the text ``; and'' at the end of paragraph (d)(2)(iii) and 
adding a period in its place;
0
l. Removing paragraph (d)(2)(iv); and
0
m. Revising paragraph (e).
    The revisions read as follows:


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

    (a) * * *
    (1) The Director shall give public notice that the following 
actions have occurred:
    (i) A permit application has been tentatively denied under Sec.  
124.6(b);
    (ii) (Applicable to State programs, see 40 CFR 123.25 (NPDES), 
145.11 (UIC), and 271.14 (RCRA).) A draft permit has been prepared 
under Sec.  124.6(d);
    (iii) (Applicable to State programs, see 40 CFR 123.25 (NPDES), 
145.11 (UIC), and 271.14 (RCRA)).) A hearing has been scheduled under 
Sec.  124.12; or
    (iv) An NPDES new source determination has been made under Sec.  
122.29 of this subchapter.
* * * * *
    (b) Timing (applicable to State programs, see 40 CFR 123.25 
(NPDES), 145.11 (UIC), and 271.14 (RCRA)).
* * * * *
    (c) Methods (applicable to State programs, see 40 CFR 123.25 
(NPDES), 145.11 (UIC), and 271.14 (RCRA)). Public notice of activities 
described in paragraph (a)(1) of this section shall be given by the 
following methods:
    (1) * * *
    (i) The applicant (except for NPDES general permits when there is 
no applicant);
    (ii) Any other agency which the Director knows has issued or is 
required to issue a RCRA, UIC, PSD (or other permit under the Clean Air 
Act), NPDES, sludge management permit, or ocean dumping permit under 
the Marine Research Protection and Sanctuaries Act for the same 
facility or activity (including EPA when the draft permit is prepared 
by the State);
* * * * *
    (iv) For NPDES permits only, any State agency responsible for plan 
development under CWA section 208(b)(2), 208(b)(4) or 303(e) and the 
U.S. Army Corps of Engineers, the U.S.

[[Page 103501]]

Fish and Wildlife Service and the National Marine Fisheries Service;
* * * * *
    (2)(i) For major permits, NPDES general permits, and permits that 
include sewage sludge land application plans under 40 CFR 
501.15(a)(2)(ix), publication of a notice in a daily or weekly 
newspaper within the area affected by the facility or activity; and for 
EPA-issued NPDES general permits, in the Federal Register;

    Note 1 to paragraph (c)(2)(i):  The Director is encouraged to 
provide as much notice as possible of the NPDES draft general permit 
to the facilities or activities to be covered by the general permit.

* * * * *
    (d) Contents (applicable to State programs, see 40 CFR 123.25 
(NPDES), 145.11 (UIC), and 271.14 (RCRA))--
    (1) * * *
    (ii) Name and address of the permittee or permit applicant and, if 
different, of the facility or activity regulated by the permit, except 
in the case of NPDES draft general permits under 40 CFR 122.28;
    (iii) A brief description of the business conducted at the facility 
or activity described in the permit application or the draft permit, 
for NPDES general permits when there is no application;
* * * * *
    (e) (Applicable to State programs, see 40 CFR 123.25 (NPDES), 
145.11 (UIC), and 271.14 (RCRA).) In addition to the general public 
notice described in paragraph (d)(1) of this section, all persons 
identified in paragraphs (c)(1) (i) through (iv) of this section shall 
be mailed a copy of the fact sheet or statement of basis (for EPA-
issued permits), the permit application (if any) and the draft permit 
(if any).

0
11. Revise Sec.  124.11 to read as follows:


Sec.  124.11  Public comments and requests for public hearings.

    (Applicable to State programs, see 40 CFR 123.25 (NPDES), 145.11 
(UIC), and 271.14 (RCRA).) During the public comment period provided 
under Sec.  124.10, any interested person may submit written comments 
on the draft permit and may request a public hearing, if no hearing has 
already been scheduled. A request for a public hearing shall be in 
writing and shall state the nature of the issues proposed to be raised 
in the hearing. All comments shall be considered in making the final 
decision and shall be answered as provided in Sec.  124.17.

0
12. Amend Sec.  124.12 by revising the paragraph (a) heading to read as 
follows:


Sec.  124.12  Public hearings.

    (a) (Applicable to State programs, see 40 CFR 123.25 (NPDES), 
145.11 (UIC), and 271.14 (RCRA).)
* * * * *

0
13. Amend Sec.  124.17 by revising the paragraph (a) heading, and 
paragraphs (a)(2) and (c) to read as follows:


Sec.  124.17  Response to comments.

    (a) (Applicable to State programs, see 40 CFR 123.25 (NPDES), 
145.11 (UIC), and 271.14 (RCRA).)
* * * * *
    (2) Briefly describe and respond to all significant comments on the 
draft permit raised during the public comment period, or during any 
hearing.
* * * * *
    (c) (Applicable to State programs, see 40 CFR 123.25 (NPDES), 
145.11 (UIC), and 271.14 (RCRA).) The response to comments shall be 
available to the public.

PART 232--404 PROGRAM DEFINITIONS--EXEMPT ACTIVITIES NOT REQUIRING 
404 PERMITS

0
14. The authority citation for part 232 continues to read as follows:

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


0
15. Amend Sec.  232.2 by revising the definition of ``State regulated 
waters'' to read as follows:


Sec.  232.2  Definitions.

* * * * *
    State regulated waters means those waters of the United States in 
which the Corps suspends the issuance of section 404 permits upon 
program assumption by a State, which exclude those identified as 
retained waters pursuant to 40 CFR 233.11(i). All waters of the United 
States other than those identified as retained waters in a State with 
an approved program shall be under jurisdiction of the State program, 
and shall be identified in the program description as required by 40 
CFR part 233.
* * * * *

PART 233--404 STATE PROGRAM REGULATIONS

0
16. The authority citation for part 233 continues to read as follows:

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


0
17. Amend Sec.  233.1 by:
0
a. Revising the fourth sentence in paragraph (b);
0
b. Removing the note that appears after paragraph (c);
0
c. Revising paragraph (d); and
0
d. Adding paragraphs (e) and (f).
    The revisions and additions read as follows:


Sec.  233.1  Purpose and scope.

* * * * *
    (b) * * * The discharges previously authorized by a Corps' general 
permit will be regulated by State permits. * * *
* * * * *
    (d) State assumption of the section 404 program is limited to 
certain waters, as provided in section 404(g)(1) and as identified 
through the process laid out in Sec.  233.11(i). The Federal program 
operated by the Corps of Engineers continues to apply to the remaining 
waters in the State even after program approval. However, this does not 
restrict States from regulating discharges of dredged or fill material 
into those waters over which the Secretary retains section 404 
jurisdiction.
    (e) Any approved State Program shall, at all times, be conducted in 
accordance with the requirements of the Act and of this part. While 
States may impose more stringent requirements, they may not impose any 
less stringent requirements for any purpose. States may not make one 
requirement more lenient than required under these regulations as a 
tradeoff for making another requirement more stringent than required. 
Where the 404(b)(1) Guidelines (40 CFR part 230) or other regulations 
affecting State 404 programs suggest that the District Engineer or 
Corps of Engineers is responsible for certain decisions or actions 
(e.g., approving mitigation bank instruments), in an approved State 
Program the State Director carries out such action or responsibility 
for purposes of that program, as appropriate.
    (f) EPA may facilitate resolution of disputes between Federal 
agencies, Tribes, and States seeking to assume and/or administer a CWA 
section 404 program. Where a dispute resolution or elevation process is 
enumerated in this part or in an agreement approved by EPA at the time 
of assumption or program revision, such process and procedures shall be 
followed.

0
18. Amend Sec.  233.2 by:
0
a. Adding in alphabetical order the definitions for ``Indian lands'', 
``Retained waters description'', and ``RHA section 10 list''; and
0
b. Revising the definition ``State 404 program or State program''.
    The additions and revision read as follows:


Sec.  233.2  Definitions.

* * * * *

[[Page 103502]]

    Indian lands means ``Indian country'' as defined under 18 U.S.C. 
1151. That section defines Indian country as:
    (1) All land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and, including rights-of-way running through 
the reservation,
    (2) All dependent Indian communities within the borders of the 
United States whether within the original or subsequently acquired 
territory thereof, and whether within or without the limits of a State, 
and
    (3) All Indian allotments, the Indian titles to which have not been 
extinguished, including rights-of-way running through the same.
* * * * *
    Retained waters description: The subset of waters of the United 
States over which the Corps retains administrative authority upon 
program assumption by a State as identified through the process at 
Sec.  233.11(i). The description shall address, in the case of State 
assumption, the extent to which waters on Indian lands are retained.
    RHA section 10 list: The list of waters determined to be navigable 
waters of the United States pursuant to section 10 of the Rivers and 
Harbors Act and 33 CFR part 329 and that are maintained in Corps 
district offices pursuant to 33 CFR 329.16.
* * * * *
    State 404 program or State program means a program which has been 
approved by EPA under section 404 of the Act to regulate the discharge 
of dredged or fill material into all waters of the United States except 
those identified in the retained waters description as defined in Sec.  
233.2.

0
19. Revise Sec.  233.4 to read as follows:


Sec.  233.4  Conflict of interest.

    Any public officer, employee, or individual with responsibilities 
related to the section 404 permitting program who has a direct personal 
or pecuniary interest in any matter that is subject to decision by the 
agency shall make known such interest in the official records of the 
agency and shall refrain from participating in any manner in such 
decision by the agency or any entity that reviews agency decisions.

0
20. Amend Sec.  233.10 by revising paragraph (a) to read as follows:


Sec.  233.10  Elements of a program submission.

* * * * *
    (a) A letter from the Governor of the State or Tribal leader 
requesting program approval.
* * * * *

0
21. Revise Sec.  233.11 to read as follows:


Sec.  233.11  Program description.

    The program description as required under Sec.  233.10 shall 
include:
    (a) A description of the scope and structure of the State's 
program. The description must include the extent of the State's 
jurisdiction, scope of activities regulated, anticipated coordination, 
scope of permit exemptions if any, permit review criteria, and a 
description as to how the permit review criteria will be sufficient to 
carry out the requirements of 40 CFR part 233 subpart C.
    (b) A description of the State's permitting, administrative, 
judicial review, and other applicable procedures.
    (c) A description of the basic organization and structure of the 
State agency (agencies) which will have responsibility for 
administering the program. If more than one State agency is responsible 
for the administration of the program, the description shall address 
the responsibilities and additional budget and funding mechanisms of 
each agency and how the agencies intend to coordinate administration, 
funding, compliance, enforcement, and evaluation of the program.
    (d) A description of the funding and staffing which will be 
available for program administration, including staff position 
descriptions and qualifications as well as program budget and funding 
mechanisms, sufficient to meet the requirements of 40 CFR part 233, 
subparts C through E.
    (e) A description and schedule of the actions that will be taken 
following EPA approval for the State to begin administering the program 
if the State makes a request to assume administration of the program 
more than 30 days after EPA's approval.
    (f) An estimate of the anticipated workload, including but not 
limited to number of discharges, permit reviews, authorizations and 
field visits, and decisions regarding jurisdiction.
    (g) Copies of permit application forms, permit forms, and reporting 
forms.
    (h) A description of the State's compliance evaluation and 
enforcement programs, including staff position descriptions and 
qualifications as well as program budget and funding mechanisms, 
sufficient to meet the requirements of 40 CFR part 233, subpart E, and 
an explanation of how the State will coordinate its enforcement 
strategy with that of the Corps and EPA.
    (i) A description of the waters of the United States within a State 
over which the State assumes jurisdiction under the assumed program; a 
description of the waters of the United States within a State over 
which the Secretary retains administrative authority subsequent to 
program approval; and a comparison of the State and Federal definitions 
of wetlands.
    (1) Before a State provides a program submission to the Regional 
Administrator, the Governor, Tribal leader, or Director shall submit a 
request to the Regional Administrator that the Corps identify the 
subset of waters of the United States that would remain subject to 
Corps administrative authority to include in its program submission. 
The request shall also include one of the following elements of 
required information: a citation or copy of legislation authorizing 
funding to prepare for assumption, a citation or copy of legislation 
authorizing assumption, a Governor or Tribal leader directive, a letter 
from the head of a State agency, or a copy of a letter awarding a grant 
or other funding allocated to investigate and pursue assumption. If the 
Regional Administrator determines that the request includes the 
required information, within seven days of receiving the State's 
request, the Regional Administrator shall transmit the request for the 
retained waters description to the Corps. Transmitting the request to 
the Corps is intended to allow the Corps time to review its RHA section 
10 list(s) and prepare a description of retained waters based on that 
list(s), in accordance with paragraph (i)(4) of this section, if the 
Corps chooses to do so.
    (2) When the Regional Administrator transmits a request for the 
retained waters description to the Corps, the Regional Administrator 
shall notify the public of this transmission by posting a notice on its 
website and circulating notice to those persons known to be interested 
in such matters of its transmission, inviting public input to the Corps 
and the State for the subsequent 60 days on the development of the 
description.
    (3) If the Corps does not notify the State and EPA that it intends 
to provide a retained waters description within 30 days of receiving 
the State's request transmitted by EPA, or if it does not provide a 
retained waters description within 180 days of receiving the State's 
request transmitted by EPA, the State may develop a retained waters

[[Page 103503]]

description pursuant to the process described in paragraph (i)(4) of 
this section. Alternatively, the State and the Corps may mutually agree 
to extend the time period in which the Corps may develop the retained 
waters description.
    (4) The program description in the State's program request to the 
Regional Administrator shall include a description of those waters of 
the United States over which the Corps retains administrative 
authority. The description may be a retained waters description that 
the Corps provides the State pursuant to paragraph (i)(1) of this 
section, or, if the Corps did not provide a list to the State, a 
description that the State prepares pursuant to paragraph (i)(3) of 
this section. The retained waters description prepared by either the 
Corps or the State shall be compiled as follows:
    (i) Using the relevant RHA section 10 list(s) as a starting point;
    (ii) Placing waters of the United States, or reaches of these 
waters, from the RHA section 10 list into the retained waters 
description if they are known to be presently used or susceptible to 
use in their natural condition or by reasonable improvement as a means 
to transport interstate or foreign commerce;
    (iii) To the extent feasible and to the extent that information is 
available, adding other waters or reaches of waters to the retained 
waters description that are presently used or are susceptible to use in 
their natural condition or by reasonable improvement as a means to 
transport interstate or foreign commerce; and
    (iv) Adding a description of retained wetlands that are adjacent to 
the foregoing waters. A specific listing of each wetland that is 
retained is not required.
    (5) As a general matter, descriptions of retained waters compiled 
in accordance with the process in paragraph (i)(4) of this section will 
satisfy the statutory criteria for retained waters. The Regional 
Administrator ultimately determines whether to approve a State program 
submission, however.
    (6) The State assumes permitting authority over all waters of the 
United States not retained by the Corps as described in paragraph 
(i)(4) of this section. The State does not assume permitting authority 
over waters of the United States in Indian Country and Lands of 
Exclusive Federal Jurisdiction, as these are outside of the State's 
jurisdiction. All discharges of dredged or fill material into waters of 
the United States must be regulated either by the State or the Corps; 
at no time shall there be a gap in permitting authority for any water 
of the United States.
    (j) A description of the specific best management practices 
proposed to be used to satisfy the exemption provisions of section 
404(f)(1)(E) of the Act for construction or maintenance of farm roads, 
forest roads, or temporary roads for moving mining equipment.
    (k) A description of the State's approach to ensure that all 
permits issued satisfy the substantive standards and criteria for the 
use of compensatory mitigation consistent with the requirements of 40 
CFR part 230, subpart J. The State's approach may deviate from the 
specific requirements of subpart J to the extent necessary to reflect 
State administration of the program using State processes as opposed to 
Corps administration. For example, a State program may choose to 
provide for mitigation in the form of banks and permittee-responsible 
compensatory mitigation but not establish an in-lieu fee program. A 
State program may not be less stringent than the requirements of 
subpart J.

0
22. Amend Sec.  233.13 by adding paragraph (b)(5) to read as follows:


Sec.  233.13  Memorandum of Agreement with Regional Administrator.

* * * * *
    (b) * * *
    (5) Provisions specifying the date upon which the State shall begin 
administering its program. This effective date shall be 30 days from 
the date that notice of the Regional Administrator's decision is 
published in the Federal Register, except where the Regional 
Administrator has agreed to a State's request for a later effective 
date, not to exceed 180 days from the date of publication of the 
decision in the Federal Register.

0
23. Amend Sec.  233.14 by revising paragraph (b) to read as follows:


Sec.  233.14  Memorandum of Agreement with the Secretary.

* * * * *
    (b) The Memorandum of Agreement shall include:
    (1) A description of all navigable waters within the State over 
which the Corps retains administrative authority. Retained waters shall 
be identified in accordance with procedures set forth in Sec.  
233.11(i).
    (2) Procedures whereby the Secretary will, prior to or on the 
effective date set forth in the Memorandum of Agreement with the 
Regional Administrator, transfer to the State pending section 404 
permit applications for discharges into State regulated waters and 
other relevant information not already in the possession of the 
Director.

    Note 1 to paragraph (b)(2):  Where a State permit program 
includes coverage of those navigable waters in which only the 
Secretary may issue section 404 permits, the State is encouraged to 
establish in this Memorandum of Agreement procedures for joint 
processing of Federal and State permits, including joint public 
notice and public hearings.

    (3) An identification of all general permits issued by the 
Secretary, the terms and conditions of which the State intends to 
administer and enforce upon receiving approval of its program, and a 
plan for transferring responsibility for these general permits to the 
State, including procedures for the prompt transmission from the 
Secretary to the Director relevant information not already in the 
possession of the Director. The information to be transferred includes 
but is not limited to support files for permit issuance, conditions and 
certifications placed on the Corps general permits, compliance reports, 
and records of enforcement actions.
    (4) Procedures whereby the Secretary would notify the State of 
changes to its RHA section 10 list that implicate waters that are 
presently used, or are susceptible to use in their natural condition or 
by reasonable improvement as a means to transport interstate or foreign 
commerce, and the State would then incorporates these changes into its 
retained waters description, pursuant to the procedures in Sec.  
233.16(d).

0
24. Amend Sec.  233.15 by:
0
a. Revising the first sentence of the introductory text of paragraph 
(e);
0
b. Revising the second sentence of paragraph (g); and
0
c. Revising paragraph (h).
    The revisions read as follows:


Sec.  233.15  Procedures for approving State programs.

* * * * *
    (e) After determining that a State program submission is complete, 
the Regional Administrator shall publish notice of the State's program 
submission in the Federal Register and in enough of the largest 
newspapers in the State to attract statewide attention. * * *
* * * * *
    (g) * * * The Regional Administrator shall prepare a responsiveness 
summary of significant comments received and the Regional 
Administrator's response to these comments. * * *
    (h) If the Regional Administrator approves the State's section 404 
program, the Regional Administrator shall notify the State and the 
Secretary of the decision, publish notice in the Federal Register, and 
post notice on

[[Page 103504]]

EPA's website. The program for State-assumed waters shall transfer to 
the State on the date established in the Memorandum of Agreement 
between the State and Regional Administrator. The Secretary shall 
suspend the issuance by the Corps of section 404 permits in State 
regulated waters on such effective date.
* * * * *

0
25. Amend Sec.  233.16 by revising paragraphs (d)(2) and (3), and (e) 
to read as follows:


Sec.  233.16  Procedures for revision of State programs.

* * * * *
    (d) * * *
    (2) Notice of approval of program changes which the Regional 
Administrator determines are not substantial revisions may be given by 
letter from the Regional Administrator to the Governor or the Tribal 
leader and are effective upon the date in the approval letter. The 
Regional Administrator will notify the Secretary of the approval of any 
approved program modifications. The Regional Administrator will also 
notify other Federal agencies of approved program modifications as 
appropriate. The Regional Administrator shall post any such approval 
letters on the relevant pages of EPA's website.
    (3) Whenever the Regional Administrator determines that the 
proposed revision is substantial, the Regional Administrator shall 
publish and circulate notice to those persons known to be interested in 
such matters, provide opportunity for a public hearing, and consult 
with the Corps, FWS, and NMFS. The Regional Administrator shall approve 
or disapprove program revisions based on whether the program fulfills 
the requirements of the Act and this part, and shall publish notice of 
the decision in the Federal Register. For purposes of this paragraph, 
substantial revisions include, but are not limited to, revisions that 
remove waters from the retained waters description (other than de 
minimis removals), as well as revisions that affect the scope of 
activities regulated, criteria for review of permits, public 
participation, or enforcement capability. Revisions to an Indian 
Tribe's assumed program that would add a new geographic area to the 
approved program require that the Regional Administrator determine that 
the Tribe meets the eligibility criteria in Sec.  233.60 with regard to 
the new geographic area and constitute substantial revisions.
* * * * *
    (e) Whenever the Regional Administrator has reason to believe that 
circumstances have changed with respect to a State's program, the 
Regional Administrator may request and the State shall provide a 
supplemental Attorney General's statement, program description, or such 
other documents or information as are necessary to evaluate the 
program's compliance with the requirements of the Act and this part.

0
26. Amend Sec.  233.21 by revising paragraphs (b) and (e)(2) to read as 
follows:


Sec.  233.21  General permits.

* * * * *
    (b) The Director may issue a general permit for categories of 
similar activities if the Director determines that the regulated 
activities will cause only minimal adverse environmental effects when 
performed separately and will have only minimal cumulative adverse 
effects on the environment. Any general permit issued shall be in 
compliance with the section 404(b)(1) Guidelines.
* * * * *
    (e) * * *
    (2) Once the Director notifies the discharger of the Director's 
decision to exercise discretionary authority to require an individual 
permit, the discharger's activity is no longer authorized by the 
general permit.

0
27. Amend Sec.  233.23 by revising the introductory text of paragraph 
(c)(8) to read as follows:


Sec.  233.23  Permit conditions.

* * * * *
    (c) * * *
    (8) Inspection and entry. The permittee shall allow the Director, 
or the Director's authorized representative, upon presentation of 
proper identification, at reasonable times to:
* * * * *

0
28. Add Sec.  233.24 to subpart C read as follows:


Sec.  233.24  Judicial review.

    All States that administer or seek to administer a program under 
this part shall provide an opportunity for judicial review in State 
Court of the final approval or denial of permits by the State that is 
sufficient to provide for, encourage, and assist public participation 
in the permitting process. Indian Tribes must provide a commensurate 
form of citizen recourse for permit applicants and others affected by 
Tribe-issued permits.

0
29. Amend Sec.  233.30 by revising paragraphs (a) and (b)(5) to read as 
follows:


Sec.  233.30  Application for a permit.

    (a) Except when an activity is authorized by a general permit 
issued pursuant to Sec.  233.21 or is exempt from the requirements to 
obtain a permit under Sec.  232.3, any person who proposes to discharge 
dredged or fill material into State regulated waters shall complete, 
sign, and submit a permit application to the Director. Applicants for 
projects that take more than five years to complete must submit a 
complete application for each five-year permit, and an applicant 
seeking a new five-year permit must apply for the new permit at least 
180 days prior to the expiration of the current permit. The Tribe or 
State may grant permission to submit an application less than 180 days 
prior to the expiration of the current permit but no later than the 
permit expiration date. Persons proposing to discharge dredged or fill 
material under the authorization of a general permit must comply with 
any reporting requirements of the general permit.
    (b) * * *
    (5) All activities which the applicant plans to undertake which are 
reasonably related to the same project must be included in the same 
permit application. For projects for which the planned schedule extends 
beyond five years at the time of the initial five-year permit 
application, the application for both the first and subsequent five-
year permits must include an analysis demonstrating that each element 
of the 404(b)(1) Guidelines is met, consistent with 40 CFR part 230, 
for the full term of the project. Applicants for subsequent five-year 
permits must update the 404(b)(1) Guidelines analysis if there has been 
a change in circumstance related to the project following approval of 
the previous five-year permit, and clearly indicate whether the 
404(b)(1) Guidelines analysis has been updated.
* * * * *

0
30. Revise and republish Sec.  233.31 to read as follows:


Sec.  233.31  Coordination requirements.

    (a) If a proposed discharge may affect the biological, chemical, or 
physical integrity of the waters of any State(s) other than the State 
in which the discharge occurs, the Director shall provide an 
opportunity for such State(s) to submit written comments within the 
public comment period and to suggest permit conditions. If these 
recommendations are not accepted by the Director, the Director shall 
notify the affected State and the Regional Administrator in writing 
prior to permit issuance of the Director's failure to accept these 
recommendations, together

[[Page 103505]]

with the Director's reasons for so doing. The Regional Administrator 
shall then have the time provided for in Sec.  233.50(d) to comment 
upon, object to, or make recommendations.
    (b) State section 404 permits shall be coordinated with the Federal 
and Federal-State water related planning and review processes.
    (c) For the purposes of Sec.  233.31(a), the definition of 
``State'' in Sec.  233.2 includes Indian Tribes that have been approved 
by EPA under CWA section 518 and applicable regulations for eligibility 
to administer any CWA provision as well as Indian Tribes that have been 
approved by EPA under paragraph (d) of this section for eligibility for 
the purpose of commenting under Sec.  233.31(a).
    (d) An Indian Tribe may apply to the Regional Administrator for a 
determination that it meets the statutory criteria of section 518 of 
the CWA, 33 U.S.C. 1377, to be treated in a manner similar to that in 
which EPA treats a State, for purposes of the coordination requirements 
of sections 404(h)(1)(C) and (E), 33 U.S.C. 1344(h)(1)(C) and (E), of 
the CWA and paragraphs (a) and (c) of this section.
    (1) The Tribe's application shall concisely describe how:
    (i) The Indian Tribe is recognized by the Secretary of the 
Interior;
    (ii) The Indian Tribe has a governing body carrying out substantial 
governmental duties and powers;
    (iii) The functions to be exercised by the Indian Tribe pertain to 
the management and protection of water resources which are held by an 
Indian Tribe, held by the United States in trust for Indians, held by a 
member of an Indian Tribe if such property interest is subject to a 
trust restriction on alienation, or otherwise within the borders of the 
Indian reservation; and
    (iv) The Indian Tribe is reasonably expected to be capable, in the 
Regional Administrator's judgment, of carrying out the functions to be 
exercised in a manner consistent with the terms and purposes of the CWA 
and applicable regulations.
    (2) The Regional Administrator shall promptly notify the Indian 
Tribe of receipt of an application submitted under this section and 
shall process such application in a timely manner.

0
31. Amend Sec.  233.32 by revising the introductory text of paragraph 
(c)(1) and paragraph (d)(6) to read as follows:


Sec.  233.32  Public notice.

* * * * *
    (c) * * *
    (1) By mailing a copy of the notice to the following persons (any 
person otherwise entitled to receive notice under this paragraph (c)(1) 
may waive their rights to receive notice for any classes or categories 
of permits):
* * * * *
    (d) * * *
    (6) A paragraph describing the various evaluation factors, 
including the 404(b)(1) Guidelines or State-equivalent criteria, on 
which decisions are based. For projects with a planned schedule that 
extends beyond five years at the time of the initial five-year permit 
application, the public notice for subsequent five-year permits must 
indicate whether the 404(b)(1) Guidelines analysis has been updated.
* * * * *

0
32. Amend Sec.  233.33 by revising paragraph (b) to read as follows:


Sec.  233.33  Public hearing.

* * * * *
    (b) The Director shall hold a public hearing whenever the Director 
determines there is a significant degree of public interest in a permit 
application or a draft general permit. The Director may also hold a 
hearing, at the Director's discretion, whenever the Director determines 
a hearing may be useful to a decision on the permit application.
* * * * *

0
33. Amend Sec.  233.34 by revising paragraph (c) to read as follows:


Sec.  233.34  Making a decision on the permit application.

* * * * *
    (c) After the Director has completed review of the application and 
consideration of comments, the Director will determine, in accordance 
with the record and all applicable regulations, whether or not the 
permit should be issued. No permit shall be issued by the Director 
under the circumstances described in Sec.  233.20. The Director shall 
prepare a written determination on each application outlining the 
Director's decision and rationale for the decision. For projects with a 
planned schedule that extends beyond five years at the time of the 
initial five-year permit application, if the Director decides not to 
require an update to the 404(b)(1) Guidelines for a subsequent five-
year permit, the Director must provide a detailed written explanation 
of the decision not to require an update in its determination for the 
subsequent five-year permit. The determination shall be dated, signed, 
and included in the official record prior to final action on the 
application. The official record shall be open to the public.

0
34. Amend Sec.  233.36 by revising the introductory text of paragraph 
(a) and revising paragraph (c)(1) to read as follows:


Sec.  233.36  Modification, suspension or revocation of permits.

    (a) General. The Director may reevaluate the circumstances and 
conditions of a permit either on the Director's own motion or at the 
request of the permittee or of a third party and initiate action to 
modify, suspend, or revoke a permit if the Director determines that 
sufficient cause exists. Among the factors to be considered are:
* * * * *
    (c) * * *
    (1) The Director shall develop procedures to modify, suspend, or 
revoke permits if the Director determines cause exists for such action 
(Sec.  233.36(a)). Such procedures shall provide opportunity for public 
comment (Sec.  233.32), coordination with the Federal review agencies 
(Sec.  233.50), and opportunity for public hearing (Sec.  233.33) 
following notification of the permittee. When permit modification is 
proposed, only the conditions subject to modification need be reopened.
* * * * *

0
35. Revise Sec.  233.37 to read as follows:


Sec.  233.37  Signatures on permit applications and reports.

    The application and any required reports must be signed by the 
person who desires to undertake the proposed activity or by that 
person's duly authorized agent if accompanied by a statement by that 
person designating the agent. In either case, the signature of the 
applicant or the agent will be understood to be an affirmation that the 
applicant or the agent possesses or represents the person who possesses 
the requisite property interest to undertake the activity proposed in 
the application.

0
36. Amend Sec.  233.41 by revising paragraph (b)(2) to read as follows:


Sec.  233.41  Requirements for enforcement authority.

    (b) * * *
    (2) The burden of proof and degree of knowledge or intent required 
under State law for establishing violations under paragraph (a)(3) of 
this section, shall be no greater than the burden of proof or degree of 
knowledge or intent EPA must provide when it brings an action under the 
Act, except that a State may establish criminal violations based on any 
form or type of negligence.
* * * * *

0
37. Amend Sec.  233.50 by:
0
a. Revising the section heading;

[[Page 103506]]

0
b. Revising paragraphs (d), (e), (f), and (h)(1); and
0
c. Adding paragraph (k).
    The revisions read as follows:


Sec.  233.50  Review of and objection to State permits and review of 
compensatory mitigation instruments.

* * * * *
    (d) If the Regional Administrator intends to comment upon, object 
to, or make recommendations with respect to a permit application, draft 
general permit, or the Director's failure to accept the recommendations 
of an affected State submitted pursuant to Sec.  233.31(a), the 
Regional Administrator shall notify the Director of the Regional 
Administrator's intent within 30 days of receipt. If the Director has 
been so notified, the permit shall not be issued until after the 
receipt of such comments or 90 days of the Regional Administrator's 
receipt of the public notice, draft general permit, or Director's 
response (Sec.  233.31(a)), whichever comes first. The Regional 
Administrator may notify the Director within 30 days of receipt that 
there is no comment but that the Regional Administrator reserves the 
right to object within 90 days of receipt, based on any new information 
brought out by the public during the comment period or at a hearing.
    (e) If the Regional Administrator has given notice to the Director 
under paragraph (d) of this section, the Regional Administrator shall 
submit to the Director, within 90 days of receipt of the public notice, 
draft general permit, or Director's response (Sec.  233.31(a)), a 
written statement of the Regional Administrator's comments, objections, 
or recommendations; the reasons for the comments, objections, or 
recommendations; and the actions that must be taken by the Director in 
order to eliminate any objections. Any such objection shall be based on 
the Regional Administrator's determination that the proposed permit is:
    (1) The subject of an interstate dispute under Sec.  233.31(a); 
and/or
    (2) Outside requirements of the Act, these regulations, or the 
404(b)(1) Guidelines. The Regional Administrator shall make available 
upon request a copy of any comment, objection, or recommendation on a 
permit application or draft general permit to the permit applicant or 
to the public.
    (f) When the Director has received an EPA objection or requirement 
for a permit condition to a permit application or draft general permit 
under this section, the Director shall not issue the permit unless the 
Director has taken the steps required by the Regional Administrator to 
eliminate the objection.
* * * * *
    (h) * * *
    (1) If the Regional Administrator withdraws the objection or 
requirement for a permit condition, the Director may issue the permit.
* * * * *
    (k) If the State establishes third-party compensation mechanisms as 
part of its section 404 program (e.g., banks or in-lieu fee programs), 
the Director must transmit a copy of instruments associated with these 
compensatory mitigation approaches to the Regional Administrator, the 
Corps, FWS, and NMFS for review prior to issuance, as well as to any 
other State agencies to the extent the State committed to do so in the 
program description pursuant to Sec.  233.11(k). To the extent the 
State deems appropriate, the Director may also send these draft 
instruments to other relevant State agencies for review. This 
transmission and review requirement does not apply to permittee-
responsible compensatory mitigation. If the Regional Administrator, the 
Corps, FWS, or NMFS intend to comment upon such instruments they must 
notify the Director of their intent within 30 days of receipt. If the 
Director has been so notified, the instrument must not be issued until 
after the receipt of such comments or after 90 days of receipt of the 
proposed instrument by the Regional Administrator, the Corps, the FWS, 
or NMFS. The Director must respond to any comments received within 90 
days from the Regional Administrator, the Corps, FWS, NMFS, or State 
agencies that received the draft instruments pursuant to the State 
program description and inform the commenting agency of any comments or 
recommendations not accepted prior to approving the final compensatory 
mitigation instrument. In the event that the Regional Administrator has 
commented that the instrument fails to apply or ensure compliance with 
the requirements of Sec.  233.11(k), the Director must not approve the 
final compensatory mitigation instrument until the Regional 
Administrator notifies the Director that the final instrument ensures 
compliance with Sec.  233.11(k).

0
38. Amend Sec.  233.51 by adding paragraph (d) to read as follows:


Sec.  233.51  Waiver of review.

* * * * *
    (d) If within 20 days of public notice of a permit application, 
pursuant to Sec.  233.32, a Tribe notifies EPA that the application 
potentially affects Tribal rights or interests, including those beyond 
reservation boundaries, EPA will request a copy of the public notice 
for the permit application, even if Federal review of the relevant 
category of discharge has been waived, and the Regional Administrator 
and the Director shall then proceed in accordance with Sec.  233.50.

0
39. Amend Sec.  233.52 by revising paragraphs (b) and (e) to read as 
follows:


Sec.  233.52  Program reporting.

* * * * *
    (b) The Director shall submit to the Regional Administrator within 
90 days after completion of the annual period, a draft annual report 
evaluating the State's administration of its program identifying 
problems the State has encountered in the administration of its 
program, steps taken to resolve these problems, and recommendations for 
resolving any outstanding problems along with a timeline for 
resolution. Items that shall be addressed in the annual report include 
an assessment of the cumulative impacts of the State's permitting 
program on the integrity of the State regulated waters; identification 
of areas of particular concern or interest within the State; the number 
and nature of individual and general permits issued, modified, and 
denied; the number of violations identified and number and nature of 
enforcement actions taken; the number of suspected unauthorized 
activities reported and nature of action taken; an estimate of the 
extent of activities regulated by general permits; the number of permit 
applications received but not yet processed; and an assessment of 
avoidance, minimization, and compensation required for permits issued, 
including the type and quantity of resources impacted, type and 
quantity of compensation required (including quantification and 
rationale for out-of-kind or compensation provided outside the 
watershed), and a description of why compensation was not required, if 
applicable. The Annual Report shall briefly summarize resolution of 
issues identified in the previous Annual Report. Additionally, to the 
extent appropriate, the Annual Report should analyze program resources 
and staffing, including staffing changes, training, and vacancy rate 
since approval or the previous Annual Report.
* * * * *
    (e) Within 30 days of receipt of the Regional Administrator's final 
comments, the Director will finalize the annual report, incorporating 
and/or

[[Page 103507]]

responding to the Regional Administrator's comments, and transmit the 
final report to the Regional Administrator. The Director shall make a 
copy of the final annual report, accepted by the Regional 
Administrator, publicly available.
* * * * *

0
40. Amend Sec.  233.53 by revising paragraphs (a)(1) and (c) to read as 
follows:


Sec.  233.53  Withdrawal of program approval.

    (a) * * *
    (1) The State shall give the Administrator and the Secretary no 
less than 180 days' notice of the proposed transfer. With the notice, 
the State shall submit a plan for the orderly transfer of all relevant 
program information not in the possession of the Secretary (such as 
permits, permit files, reports, permit applications, as well as files 
regarding ongoing investigations, compliance orders, and enforcement 
actions) which are necessary for the Secretary to administer the 
program. The notice shall include the proposed transfer date.
* * * * *
    (c) The following procedures apply when the Administrator orders 
the commencement of proceedings to determine whether to withdraw 
approval of a State program:
    (1) Notice to State. If the Regional Administrator has cause to 
believe that a State is not administering or enforcing its assumed 
program in compliance with the requirements of the CWA and this part, 
the Regional Administrator shall inform the Director in writing of the 
specific areas of alleged noncompliance. If the State demonstrates to 
the Regional Administrator within 30 days of such notification that the 
State program is in compliance, the Regional Administrator shall take 
no further action toward withdrawal, and shall so notify the State in 
writing.
    (2) Public hearing. If the State has not demonstrated its 
compliance to the satisfaction of the Regional Administrator within 30 
days of notification, the Regional Administrator shall inform the 
Director of that finding. The Administrator shall then schedule a 
public hearing to solicit comments on the administration of the State 
program and its compliance with the Act and this part. Notice of such 
public hearing shall be published in the Federal Register, on EPA's 
website, and in enough of the largest newspapers and/or news websites 
in the State to attract statewide attention and mailed or emailed to 
persons on appropriate Tribal, State, and EPA mailing lists. This 
hearing shall be convened not less than 30 days or more than 60 days 
following the date of publication of the notice of the hearing in the 
Federal Register. Notice of the hearing shall identify the 
Administrator's concerns. All interested parties shall be given 
opportunity to make written or oral presentations on the State's 
program at the public hearing.
    (3) Notice to State of findings. If the Administrator finds, after 
the public hearing, that the State is not in compliance, within 90 days 
of the public hearing the Administrator shall notify the State via 
letter of the specific deficiencies in the State program, including 
administration and enforcement, and of necessary remedial actions. 
Within 90 days of receipt of the above letter, the State shall either 
carry out the required remedial action(s) or the Administrator shall 
withdraw program approval. If the State performs all required remedial 
action(s) in the allotted time or, if the Administrator determines as a 
result of the hearing that the State is in compliance, the 
Administrator shall so notify the State in writing and conclude the 
withdrawal proceedings. If the Administrator makes the determination 
that the assumed program should be withdrawn, then such determination 
will be published in the Federal Register, and the Administrator shall 
remove from the CFR, as appropriate, any provision addressing that 
State's assumed program. The effective date of the withdrawal, and the 
date upon which the Corps shall be the permitting authority, shall be 
30 days after publication of the Administrator's decision in the 
Federal Register.
    (4) Determination to withdraw. The Administrator's determination to 
withdraw program approval shall constitute final Agency action within 
the meaning of 5 U.S.C. 704.
* * * * *


Sec.  233.60  [Amended]

0
41. Amend Sec.  233.60 paragraph (c) by removing the word ``Untied'' 
and adding in its place the word ``United.''

0
42. Amend Sec.  233.61 by revising paragraph (e) to read as follows:


Sec.  233.61  Determination of Tribal eligibility.

* * * * *
    (e) The Administrator may, at the Administrator's discretion, 
request further documentation necessary to support a Tribal 
application.
* * * * *

0
43. Revise and republish Sec.  233.62 to read as follows:


Sec.  233.62  Procedures for processing an Indian Tribe's application.

    (a) The Regional Administrator shall process an application of an 
Indian Tribe submitted pursuant to Sec.  233.61 in a timely manner. The 
Regional Administrator shall promptly notify the Indian Tribe of 
receipt of the application.
    (b) The Regional Administrator shall follow the procedures 
described in Sec.  233.15 in processing a Tribe's request to assume the 
404 dredge and fill permit program.
    (c) The Regional Administrator shall follow the procedures for 
substantial program revisions described in Sec.  233.16 in processing a 
Tribe's request to add additional geographic area(s) to its assumed 404 
dredged or fill material permit program that would add reservation 
areas to the scope of its approved program. A Tribe making such a 
request shall provide an application meeting the requirements of Sec.  
233.61 that describes how the Tribe meets the eligibility criteria in 
Sec.  233.60 for the new area.

0
44. Revise Sec.  233.70 to read as follows:


Sec.  233.70  Michigan.

    The applicable regulatory program for discharges of dredged or fill 
material into waters of the United States in Michigan that are not 
presently used, or susceptible for use in their natural condition or by 
reasonable improvement as a means to transport interstate or foreign 
commerce shoreward to the ordinary high water mark, including wetlands 
adjacent thereto, except those on Indian lands, is the program 
administered by the Michigan Department of Environment, Great Lakes, 
and Energy (previously named Department of Natural Resources, 
Department of Environmental Quality, and Department of Natural 
Resources and Environment), approved by EPA, pursuant to section 404 of 
the CWA. Notice of this approval was published in the Federal Register 
on October 2, 1984; the effective date of this program is October 16, 
1984. This program consists of the following elements, as submitted to 
EPA in the State's program submission and subsequently revised.
    (a) Incorporation by reference. The Michigan statutes and 
regulations cited in paragraphs (a)(1) and (2) of this section are 
incorporated by reference as part of the applicable section 404 Program 
under the CWA for the State of Michigan. This incorporation by 
reference was approved by the Director of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any 
edition other than that specified in this section, EPA must

[[Page 103508]]

publish a document in the Federal Register and the material must be 
available to the public. This incorporation by reference (IBR) material 
is available for inspection at EPA and at the National Archives and 
Records Administration (NARA). Copies of this IBR material also may be 
obtained from EPA. Contact EPA at: EPA Docket Center Reading Room, WJC 
West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 
20004 (phone: 202-566-1744), or send mail to Mail Code 5305G, 1200 
Pennsylvania Ave. NW, Washington, DC 20460, and at the Water Division, 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, IL 60604. For information on the availability of this IBR 
material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations or email [email protected]. The material may be obtained 
from the Michigan Department of Environment, Great Lakes, and Energy 
office at 525 W Allegan St., Lansing, MI 48933, phone: 800-662-9278.
    (1) Michigan Statutes Applicable to the State's Approved Clean 
Water Act Section 404 program (available at www.legislature.mi.gov), as 
follows:
    (i) The Michigan Administrative Procedures Act of 1969, MCL Sec.  
24-201 et seq., in effect as of February 13, 2024.
    (ii) Natural Resources and Environmental Protection Act 451 of 
1994:
    (A) Part 31 Water Resources Protection, MCL Sec.  324.31 et seq., 
in effect as of September 29, 2023.
    (B) Part 301 Inland Lakes and Streams, MCL Sec.  324.301 et seq., 
in effect as of October 20, 2021.
    (C) Part 303 Wetland Protection, MCL Sec.  324.303 et seq., in 
effect as of April 27, 2019.
    (D) Part 307 Inland Lake Levels, MCL Sec.  324.307 et seq., in 
effect as of October 16, 2020.
    (E) Part 315 Dam Safety, MCL Sec.  324.315 et seq., in effect as of 
September 10, 2004.
    (F) Part 323 Great Lakes Shorelands Protection and Management, MCL 
Sec.  324.323 et seq, in effect as of October 20, 2021.
    (G) Part 325 Great Lakes Submerged Lands, MCL Sec.  324.325 et 
seq., in effect as of October 20, 2021.
    (2)(i) Michigan Regulations Applicable to the State's Approved 
Clean Water Act Section 404 program (www.michigan.gov/lara/bureau-list/moahr/admin-rules), Michigan Administrative Code, Department of 
Environmental Quality, as follows:
    (A) Land and Water Management:
    (1) Great Lakes Shorelands, R 281.21 through R 281.26 inclusive, in 
effect as of 2000.
    (2) Wetlands Protection, R 281.921 through R 281.925 inclusive, in 
effect as of 2006.
    (3) Wetland Mitigation Banking, R 281.951 through R 281.961 
inclusive, in effect as of 1997.
    (4) Dam Safety, R 281.1301 through R 281.1313 inclusive in effect 
as of 1993.
    (B) Water Resources Division, Inland Lakes and Streams, R 281.811 
through R 281.846 inclusive, in effect as of 2015.
    (ii) This material contains Michigan's rules for shoreline 
protection, inland lakes and streams, wetlands protection, wetland 
mitigation banking, and dam safety.
    (b) Other Laws. The following statutes and regulations, although 
not incorporated by reference, also are part of the approved State-
administered program:
    (1) Administrative Procedures Act, MCL 24.201 et seq.
    (2) Freedom of Information Act, MCL 15.231 et seq.
    (3) Open Meetings Act, MCL 15.261 et seq.
    (4) Natural Resources and Environmental Protection Act 451 of 1994, 
Part 17 Michigan Environmental Protection Act, MCL 324.17 et seq.
    (c) Memoranda of Agreement. The following memoranda, although not 
incorporated by reference also are part of the approved State-
administered program:
    (1) The Memorandum of Agreement between EPA Region V and the 
Michigan Department of Natural Resources, signed by EPA Region V 
Administrator on December 9, 1983. The 1983 Memorandum of Agreement has 
subsequently been replaced by a Memorandum of Agreement between EPA 
Region 5 and the Michigan Department of Environmental Quality (now 
referred to as the Michigan Department of Environment, Great Lakes, and 
Energy) signed on November 9, 2011.
    (2) The Memorandum of Agreement between the U.S. Army Corps of 
Engineers and the Michigan Department of Natural Resources, signed by 
the Commander, North Central Division, on March 27, 1984.
    (d) Statement of Legal Authority. The following documents, although 
not incorporated by reference, also are part of the approved State 
administered program:
    (1) ``Attorney General Certification section 404/State of 
Michigan'', signed by Attorney General of Michigan, as submitted with 
the request for approval of ``The State of Michigan 404 Program'', 
October 26, 1983.
    (e) The Program description and any other materials submitted as 
part of the original submission or supplements thereto.

0
45. Amend Sec.  233.71 by:
0
a. Revising the introductory text and paragraph (a);
0
b. Removing paragraph (b); and
0
c. Redesignating paragraphs (c) through (e) as paragraphs (b) through 
(d).
    The revisions read as follows:


Sec.  233.71  New Jersey.

    The applicable regulatory program for discharges of dredged or fill 
material into waters of the United States in New Jersey that are not 
presently used, or susceptible for use in their natural condition or by 
reasonable improvement as a means to transport interstate or foreign 
commerce shoreward to the ordinary high water mark, including wetlands 
adjacent thereto, except those on Indian lands, is the program 
administered by the New Jersey Department of Environmental Protection 
and Energy, approved by EPA, pursuant to section 404 of the CWA. Notice 
of this approval was published in the Federal Register on March 2, 
1994; the effective date of this program is March 2, 1994. This program 
consists of the following elements, as submitted to EPA in the State's 
program submission and subsequently revised.
    (a) Incorporation by reference. The New Jersey statues and 
regulations cited in paragraphs (a)(1) and (2) of this section are 
incorporated by reference as part of the applicable 404 Program under 
the CWA for the State of New Jersey. This incorporation by reference 
was approved by the Director of the Federal Register in accordance with 
5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than 
that specified in this section, EPA must publish a document in the 
Federal Register and the material must be available to the public. This 
incorporation by reference (IBR) material is available for inspection 
at EPA and at the National Archives and Records Administration (NARA). 
Copies of this IBR material also may be obtained from EPA. Contact EPA 
at: EPA Docket Center Reading Room, WJC West Building, Room 3334, 1301 
Constitution Avenue NW, Washington, DC 20004 (phone: 202-566-1744), or 
send mail to Mail Code 5305G, 1200 Pennsylvania Ave. NW, Washington, DC 
20460, and at the Library of the Region 2 Regional Office, Ted Weiss 
Federal Building, 290 Broadway, New York, NY 10007. For information on 
the

[[Page 103509]]

availability of this IBR material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations or email [email protected]. The 
materials may be obtained from the New Jersey Department of 
Environmental Protection at 401 East State St., Trenton, NJ 08625; 
website: www.epa.gov/cwa404g/us-interactive-map-state-and-tribal-assumption-under-cwa-section-404#nj.
    (1)(i) New Jersey Statutes Applicable to the State's Approved Clean 
Water Act Section 404 program as follows:
    (A) Freshwater Wetlands Protection Act, New Jersey Statutes 
Annotated, Title 13: Conservation and Development--Parks and 
Reservations; Chapter 9B: Freshwater Wetlands, N.J.S.A.13:9B-1 et seq., 
effective as of December 23, 1993.
    (B) [Reserved]
    (ii) The Freshwater Wetlands Protection Act provides the New Jersey 
Department of Environmental Protection with the authority to regulate 
and permit activities in freshwater wetlands.
    (2)(i) New Jersey Regulations Applicable to the State's Approved 
Clean Water Act Section 404 program as follows:
    (A) Freshwater Wetlands Protection Act Rules, N.J.A.C. 7:7A, 
amended November 7, 2022.
    (B) [Reserved]
    (ii) This chapter contains regulations to implement the Freshwater 
Wetlands Protection Act.
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[FR Doc. 2024-29484 Filed 12-17-24; 8:45 am]
BILLING CODE 6560-50-P`