[Federal Register Volume 60, Number 52 (Friday, March 17, 1995)]
[Proposed Rules]
[Pages 14588-14592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6676]




[[Page 14587]]

_______________________________________________________________________

Part VII





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 123



Amendment to Requirements for Authorized State Permit Programs Under 
Section 402 of the Clean Water Act; Proposed Rule

Federal Register / Vol. 60, No. 52 / Friday, March 17, 1995 / 
Proposed Rules
=======================================================================
----------------------------------------------------------------------- 
[[Page 14588]] 


ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 123

[FRL-5148-6]


Amendment to Requirements for Authorized State Permit Programs 
Under Section 402 of the Clean Water Act

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to amend the regulations concerning the 
minimum requirements for federally authorized State permitting programs 
under section 402 of the Clean Water Act. The proposed rule would 
explicitly require that State law must provide any interested person an 
opportunity to challenge the approval or denial of 402 permits issued 
by the State in State court. The intent of the proposed rule is to 
ensure that any interested person has the opportunity to challenge 
judicially the final action on State-issued permits, to the same extent 
as if the permit were issued by EPA. Most States already have this 
authority which allows for local resolution of issues. As a result, EPA 
believes today's proposed rule will apply to a very small number of 
States with authorization to administer the National Pollutant 
Discharge Elimination System (NPDES) permit program. EPA is not 
proposing at this time to establish this requirement for Tribal 
permitting programs under section 402, but is soliciting comments on 
various issues related to extending this requirement to Tribes. No 
Tribes are currently authorized to operate the NPDES program.
DATES: Written comments on this proposed rule must be submitted on or 
before June 15, 1995.
ADDRESSES: Commenters are requested to submit three copies of their 
comments to the Comment Clerk for the section 402 Amendment; Water 
Docket; MC-4101, Environmental Protection Agency, 401 M Street, SW., 
Washington DC 20460. Commenters who would like acknowledgement of 
receipt of their comments should include a self-addressed, stamped 
envelope. No facsimiles (faxes) will be accepted.
    A copy of the supporting information for this proposal is available 
for review at EPA's Water Docket, room L-102, 401 M Street, SW., 
Washington, DC 20460. For access to the docket materials, call (202) 
260-3027 between 9 a.m. and 3:30 p.m. for an appointment.

FOR FURTHER INFORMATION CONTACT: Laura J. Phillips, Office of 
Wastewater Management (OWM), Permits Division (4203), Environmental 
Protection Agency, 401 M Street, SW., Washington, DC 20460, (202) 260-
9541.

SUPPLEMENTARY INFORMATION: Information in this preamble is organized as 
follows:

I. Summary and Explanation of Today's Action
    1. Background
    2. Rationale and Authority for Proposed Rule
    3. Scope of Standing Requirement
    4. Exhaustion of Administrative Remedies
    5. Alternatives Under Consideration
    6. Time Period for Compliance
II. Request for Comment
III. Supporting Documentation
    1. Compliance With Executive Order 12866 (Regulatory Impact 
Analysis)
    2. Compliance With Executive Order 12875
    3. Paperwork Reduction Act
    4. Regulatory Flexibility Act

I. Summary and Explanation of Today's Action

1. Background

    Congress enacted the Clean Water Act, 33 U.S.C. 1251 et seq. 
(``CWA'' or ``the Act''), ``to restore and maintain the chemical, 
physical, and biological integrity of the Nation's waters.'' Section 
101(a), 33 U.S.C. 1251(a). To achieve this objective, the Act 
authorizes EPA, or a State approved by EPA, to issue permits 
controlling the discharge of pollutants to navigable waters. Section 
402(a)(1), 33 U.S.C. 1342(a)(1). A State that wishes to administer its 
own permit program for discharges of pollutants, other than dredged or 
fill material, to navigable waters may submit a description of the 
program it proposes to administer to EPA for approval according to 
criteria set forth in the statute. Section 402(b), 33 U.S.C. 1342(b).
    EPA is authorized to treat Indian Tribes in the same manner as 
States for purposes of certain provisions of the CWA, including section 
402. Section 518(e), 33 U.S.C. 1377(e).
    EPA's regulations at 40 CFR part 123 establish minimum requirements 
for federally authorized State permit programs under section 402 of the 
CWA. These regulations include federally recognized Indian Tribes 
within the definition of ``State.'' 40 CFR 122.2. EPA is proposing to 
add language to part 123 that makes clear the intent that, to receive 
or retain Federal authorization, a State must have laws that afford any 
interested person the opportunity to challenge in State court the final 
approval or denial of 402 permits by the State. The intent of this 
proposal is to ensure that State programs provide the public with an 
opportunity to challenge final action on 402 permits in State courts, 
to the same extent as if the permit were federally-issued. EPA is 
inviting comment on various issues related to extending this 
requirement to Tribes.

2. Rationale and Authority for Proposed Rule

    EPA has become aware of instances in which citizens are barred from 
challenging State-issued permits because of restrictive standing 
requirements in State law. EPA believes this is a gap in the 
regulations setting minimum requirements for State 402 permit programs 
that needs to be addressed.
    A coalition of environmental groups has filed two petitions 
requesting that EPA withdraw the Virginia State 402 permit program, 
citing a limitation on citizen standing, among other alleged 
deficiencies. In particular, they allege that recent changes in the law 
in the State of Virginia have significantly narrowed the public's 
opportunity to challenge State-issued 402 permits. Virginia's State 
Water Control Law, the State law under which Virginia's authorized 
program is administered, authorizes only an ``owner aggrieved'' to 
challenge permits in court. VA Code 62.1-44.29. In 1990, the Virginia 
legislature amended and narrowed the statutory definition of ``owner.'' 
The environmental groups allege that under three opinions of the 
Virginia Court of Appeals and the State Water Control Law, only a 
permittee has standing to challenge the issuance or denial of a 402 
permit in State court. Environmental Defense Fund v. State Water 
Control Board, 12 Va. App. 456, 404 SE.2d 728 (1991), reh'g en banc 
denied, 1991 Va. App. LEXIS 129; Town of Fries v. State Water Control 
Board, 13 Va. App. 213, 409 SE.2d 634 (1991). See Citizens for Clean 
Air v. State Air Pollution Control Board, 13 Va. App. 430, 412 SE.2d 
715 (1991)(interpreting similar language in Virginia Air Pollution 
Control Law). They allege that under these three decisions, riparian 
landowners, local governments that wish to draw drinking water from the 
waters in question, downstream permittees, local business and property 
owners associations, local civic associations and environmental 
organizations whose members use the waters in question may not 
challenge a State-issued permit in State court.
    The Agency is committed to moving away from permit-by-permit 
oversight. At the same time, it is critical that EPA continue in its 
partnership role to support effective State implementation. It is also 
essential to provide for meaningful local participation and 
[[Page 14589]] resolution of permit specific issues. An important 
component of effective public participation is that the public have 
access to judicial forums to challenge State-issued permits to the same 
extent as would be the case were EPA the permitting authority. This 
approach ensures that as EPA reduces its oversight, both EPA and the 
States remain directly accountable on a permit-by-permit basis to the 
public. To this end, EPA believes the purposes of the CWA can best be 
accomplished by providing an opportunity for review in State court of 
the final approval or denial of 402 permits by all interested persons, 
as well as permittees and permit applicants, in order to ensure an 
adequate and meaningful opportunity for public review and comment on 
issues addressed by the permit. The same concerns arise when the 
program is federally administered; that is why Congress provided for 
judicial review of Federal permit actions in Federal court.
    When citizens are denied the opportunity to challenge executive 
agency decisions in court, their ability to influence permitting 
decisions through other required elements of public participation, such 
as through public comments and public hearings on proposed permits, may 
be seriously compromised. If citizens perceive that a State is not 
addressing their concerns about 402 permits because the citizens have 
no recourse to an impartial judiciary, that perception also has a 
chilling effect on all the remaining forms of public participation in 
the permitting process. EPA believes that in order to effectuate the 
policies and purposes of the CWA, States must address the legitimate 
concerns of citizens about 402 permits. Accordingly, EPA is proposing 
to add language to part 123 explicitly requiring that all interested 
persons must have an opportunity to challenge the final approval or 
denial of 402 permits in State court. In the judgment of EPA, this 
effectively balances the CWA's strong policy favoring public 
participation in the development of water pollution controls with the 
policy to ``recognize, preserve and protect the primary 
responsibilities and rights of the States to prevent, reduce and 
eliminate pollution...'' Section 101(b), 33 U.S.C. 1251(b). It 
effectuates EPA's strong policy interest in deferring to State 
administration of authorized NPDES programs while ensuring that 
citizens will be able to influence permitting decisions through public 
participation and will have access to the courts to challenge State-
issued permits to the same extent as if the program were federally 
administered.
    EPA's direct authority to specify this requirement is found at 
sections 101(e), 304(i), 402(b) and (c), and 501(a) of the CWA.
    Section 501(a), 33 U.S.C. 1361(a), confers general authority on the 
Administrator to prescribe such regulations as are necessary to carry 
out her functions under the CWA. Section 304(i), 33 U.S.C. 1314(i), 
provides that EPA shall promulgate guidelines establishing the minimum 
procedural and other elements of any State program under section 402. 
Section 101(e) provides that ``[p]ublic participation in the 
development, revision, and enforcement of any regulation, standard, 
effluent limitation, plan, or program established by the Administrator 
or any State under this chapter shall be provided for, encouraged, and 
assisted by the Administrator and the States . . . .'' 33 U.S.C. 
1251(e). To establish minimum public participation requirements 
consistent with these statutory goals, section 101(e) directs the 
Administrator, in cooperation with the States, to establish minimum 
guidelines for public participation. Id.
    Congress included the provisions relating to public participation 
in section 101(e) because it recognized that ``[a] high degree of 
informed public participation in the control process is essential to 
the accomplishment of the objectives we seek--a restored and protected 
natural environment.'' S. Rep. 414, 92d Cong., 2d Sess. 12 (1972), 
reprinted in A Legislative History of the Water Pollution Control Act 
Amendments of 1972, Cong. Research Service, Comm. Print No. 1, 93d 
Cong., 1st Sess. 108 (1973)(hereinafter cited as 1972 Legis. Hist.) at 
1430. The Senate Conference Report observed further that implementation 
of water pollution control measures would depend, ``to a great extent, 
upon the pressures and persistence which an interested public can exert 
upon the governmental process. The Environmental Protection Agency and 
the State should actively seek, encourage and assist the involvement 
and participation of the public in the process of setting water quality 
requirements and in their subsequent implementation and enforcement.'' 
Id. See also Senate Conference Report at 72, 1972 Legis. Hist. at 1490 
(``The scrutiny of the public... is extremely important in insuring 
expeditious implementation of the authority [conferred by section 402] 
and a high level of performance by all levels of government and 
discharge sources.'') Similarly, the House directed EPA and the States 
``to encourage and assist the public so that it may fully participate 
in the administrative process.'' H. Rep. 911, 92d Cong., 2d Sess. 79, 
1972 Legis. Hist. at 766. Congressman Dingell, a leading sponsor of the 
CWA, characterized section 101(e) as applying ``across the board.'' Id. 
at 108. See also id. at 249.
    Section 402(b) establishes the statutory standards applicable to 
the approval of State 402 permitting programs. These standards also 
reflect the importance that Congress attached to effective public 
participation in establishing controls on water pollution. States 
wishing to administer a 402 permit program must establish to the 
satisfaction of the Administrator that they have enacted laws that 
provide adequate authority to carry out the State program. Section 
402(b), 33 U.S.C. 1342(b). Section 402(b)(3) contains an explicit 
requirement for public participation in the development of State 
permits. Subsection (3) allows disapproval upon a finding of inadequate 
authority ``[t]o insure that the public, and any other State the waters 
of which may be affected, receive notice of each application for a 
permit and to provide an opportunity for public hearing before a ruling 
on each such application.'' Id. Section 402(c), 33 U.S.C. 1342(c), 
authorizes EPA to withdraw a State program if it is not being 
administered in accordance with applicable requirements.
    The courts have also recognized that meaningful and adequate public 
participation is an essential part of a State program under section 
402. See Natural Resources Defense Council v. EPA, 859 F.2d 156, 175-78 
(D.C. Cir. 1988)(approving part 123 regulations regarding citizen 
intervention in State enforcement actions); Citizens for a Better 
Environment v. EPA, 596 F.2d 720, reh'g denied, 596 F.2d 725 (7th Cir. 
1979)(invalidating EPA approval of a State program in the absence of 
prior promulgation of guidelines regarding citizen participation in 
State enforcement actions).
    Thus, the CWA vests considerable discretion in the Administrator to 
set minimum requirements applicable to authorized 402 programs, 
particularly with respect to public participation and the rights of 
citizens to influence the permitting process. See Natural Resources 
Defense Council v. EPA, 859 F.2d at 175-178.
    EPA's proposal is further supported by the statutory provisions 
governing challenges to 402 permits issued by EPA. Section 509(b)(1) of 
the CWA, 33 U.S.C. 1369(b)(1), provides that ``any interested person'' 
may obtain judicial review in the United States Court of 
[[Page 14590]] Appeals of the Administrator's action in issuing or 
denying any permit under section 402. There is no indication that 
Congress intended that the public's rights to challenge permit actions 
would be diminished, upon EPA's approval of a State 402 program, to the 
point that the goal of adequate and effective public participation in 
the permit issuance process would be compromised. (Similarly, Congress 
has provided citizens the ability, except in defined circumstances, to 
commence a civil action in the United States District Court against any 
person who is alleged to be in violation of any effluent standard or 
limitation under the CWA, regardless of whether the permitting 
authority is EPA or the State. Section 505(a), 33 U.S.C. 1365(a)).
    The regulations setting minimum requirements for authorized State 
402 permit programs, 40 CFR part 123, do not explicitly address 
requirements for citizen standing to challenge the approval or denial 
of permits in State court. The current part 123 regulations were 
originally issued on May 19, 1980. 45 FR 33290. When EPA issued those 
regulations, the Agency did not contemplate that State law might limit 
the opportunity for interested citizens to challenge final permit 
decisions in State court to such a degree that it is substantially 
narrower than the opportunity afforded under section 509 to challenge 
federally-issued permits. Accordingly, EPA believes it needs to specify 
standing requirements in part 123. EPA seeks to add language to part 
123 that would explicitly require that in order to receive or retain 
authorization, a State must afford any interested person the 
opportunity to challenge the final approval or denial of 402 permits in 
State court. The proposal would codify the Agency's interpretation of 
the CWA, as set forth above. EPA believes the Clean Water Act 
authorizes the Agency to specify this requirement as a precondition to 
the assumption and continued operation of a 402 permitting program by a 
State.
    The proposed rule would apply to final actions with respect to 
modification, revocation and reissuance and termination of permits as 
well as the approval or denial of permits in the first instance.

3. Scope of Standing Requirement

    EPA's proposal makes it clear that ``any interested person'' must 
be afforded standing to challenge final action by a State in issuing or 
denying a 402 permit; this proposal would ensure consistency with the 
standing afforded the public to challenge federally-issued permits in 
Federal court. The legislative history of the CWA states explicitly 
that the term ``interested person'' in section 509(b) is intended to 
embody the injury in fact rule of the Administrative Procedure Act, as 
set forth by the Supreme Court in T3Sierra Club v. Morton, 405 U.S. 727 
(1972). S. Conference Rep. No. 1236, 92d Cong, 2d Sess. 146 (1972), 
1972 Legis. Hist. at 281, 329. Montgomery Environmental Coalition v. 
Costle, 646 F.2d 568, 576-78 (D.C. Cir. 1980). See Trustees for Alaska 
v. EPA, 749 F.2d 549, 554-55 (9th Cir. 1984). EPA intends that the term 
``interested person'' as used in the proposed rule have the same 
meaning that it has in section 509(b). Today's proposal would ensure 
that citizen standing to challenge the issuance or denial of State-
issued 402 permits is similarly expansive where the State is authorized 
to administer 402 permit programs.
    As interpreted by the United States Supreme Court, the standing 
requirement of Article III of the Constitution contains three key 
elements:

    [A]t an irreducible minimum, Art. III requires the party who 
invokes the court's authority to ``show that he personally has 
suffered some actual or threatened injury as a result of the 
putatively illegal conduct of the defendant,''... and that the 
injury ``fairly can be traced to the challenged action'' and ``is 
likely to be redressed by a favorable decision.''

Valley Forge Christian College v. Americans United for Separation of 
Church and State, Inc., 454 U.S. 464, 472 (1982)(citations omitted. See 
also Lujan v. Defenders of Wildlife, 504 U.S. ______, 119 L.Ed.2d 351, 
364 (1992).
    With respect to the nature of the injury that an ``interested 
person'' must show to obtain standing, the Supreme Court held in Sierra 
Club v. Morton, 405 U.S. at 734-35, that harm to an economic interest 
is not necessary to confer standing. Harm to an aesthetic, 
environmental, or recreational interest is sufficient, provided that 
the party seeking judicial review is among the injured. This holding 
was most recently reaffirmed by the Supreme Court in Lujan v. Defenders 
of Wildlife, 504 U.S. ______, 119 L.Ed.2d at 365 (``[o]f course, the 
desire to use or observe an animal species, even for purely aesthetic 
purposes, is undeniably a cognizable interest for purposes of 
standing.''). See also Japan Whaling Ass'n v. American Cetacean 
Society, 478 U.S. 221, 231 n. 4 (1986); Middlesex County Sewerage Auth. 
v. National Sea Clammers Ass'n, 453 U.S. 1, 16-17. This low threshold 
for sufficiency of injury has been applied in many decisions. See, 
e.g., Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109 (4th Cir. 
1988), cert. denied, 491 U.S. 904 (1989) (injury to aesthetic and 
environmental interests is sufficient where pollution would affect a 
river along which a single group member hiked); Friends of the Earth v. 
Consolidated Rail Corp., 768 F.2d 57, 61 (2d Cir. 1985) (recreational 
use of a river and offense to aesthetic values are sufficient to 
demonstrate injury in fact).

4. Exhaustion of Administrative Remedies

    A requirement that all interested persons have the opportunity to 
challenge final permitting actions judicially should be distinguished 
from a requirement that interested persons must exhaust administrative 
remedies in order to preserve their opportunity to challenge permitting 
actions judicially. For example, Federal regulations require that 
interested persons must raise reasonably ascertainable issues during 
the public comment period on a draft 402 permit (40 CFR 124.13) and 
must request an evidentiary hearing on a permit decision they wish to 
challenge (40 CFR 124.74). Today's proposal does not affect the 
authority of States to adopt similar, reasonable requirements that 
interested persons exhaust available administrative remedies in order 
to preserve their opportunity to challenge final permitting actions in 
State court.

5. Alternatives Under Consideration

    EPA also considered amending part 123 to require that State law 
must provide an opportunity for judicial review of a final State permit 
action under section 402 by the permit applicant and any person who 
participated in the public comment process. See section 502(b)(6) of 
the Clean Air Act, 42 U.S.C. 7661a(b)(6). The Agency prefers the ``any 
interested person'' language because it tracks section 509(b)(1) of the 
CWA, which allows ``any interested person'' to challenge specified 
final actions of the Administrator, including the issuance or denial of 
any permit under section 402, in the United States Court of Appeals. It 
is also consistent with existing regulations under the CWA which allow 
``any interested person'' to request an evidentiary hearing on a 
Regional Administrator's final permit decision. 40 CFR 124.74. As noted 
above, States would be free under today's proposal to impose reasonable 
requirements that interested persons must exhaust administrative 
remedies, such as participation in the public comment process, in order 
to preserve their opportunity to challenge a final permitting action in 
State court. [[Page 14591]] 
    EPA solicits comment on whether it should adopt a requirement, in 
lieu of the proposed regulatory language, that State law must provide 
an opportunity for judicial review of a final permitting action under 
section 402 by the permit applicant and any person who participated in 
the public comment process.

6. Time Period for Compliance

    Under EPA's existing regulations, any approved State 402 program 
that requires revision to conform to today's proposal, when it is 
finally promulgated, would need to be revised within one year of the 
date of final promulgation of today's proposed rule, unless the State 
must amend or enact a statute in order to make the required revision. 
In that case, under EPA's existing regulations, the revision must take 
place within two years. 40 CFR 123.62(e). EPA is considering amending 
the regulations to require that States revise their programs sooner 
than specified under 40 CFR 123.62(e) to bring the program into 
compliance with today's proposed rule. For example, EPA is considering 
requiring that if a State must amend or enact a statute to make the 
necessary revisions to its law, this must be done during the first 
legislative session that begins after the date of promulgation of 
today's proposal as a final rule. EPA requests comment on whether it 
should impose a requirement that States revise their programs sooner 
than specified under 40 CFR 123.62(e) to bring the program into 
compliance with today's proposed rule, and if so, what would be an 
appropriate shortened time period for compliance.

II. Request for Comment

    EPA solicits comment on all aspects of today's proposal. In 
particular, EPA seeks comment on the appropriateness of the proposal 
from a legal and a policy perspective; on the ``any interested person'' 
language as proposed; on the alternative that would require that State 
law must provide an opportunity for judicial review of a final 
permitting action under section 402 by the permit applicant and any 
person who participated in the public comment process, as discussed 
above; and on any alternative language that would specify appropriate 
explicit standing requirements applicable to authorized State 402 
programs.
    EPA also requests comment on whether it should amend the 
regulations to require States to revise their programs sooner than 
would otherwise be required under 40 CFR 123.62(e) to bring the program 
into compliance with today's proposed rule, when it is finally 
promulgated.
    EPA is not proposing at this time to establish this requirement for 
Tribal permitting programs under section 402. Tribes are just beginning 
the development of various Clean Water Act programs and the issues of 
sovereign immunity and access to Tribal courts must be carefully 
considered. No Tribes are currently authorized to operate the NPDES 
program. EPA is soliciting comments on various issues, including the 
issue of sovereign immunity, related to extending this requirement to 
Tribes. Based upon the comments received on this proposal, EPA may 
propose regulatory action in the future with respect to review of 
Tribally-issued NPDES permits. EPA also invites comment about how it 
could phase in such a requirement for Tribes, if the Agency moves 
forward with such a proposal in the future.
    EPA is aware that access to Tribal courts may not be as broad as 
access to State courts. (EPA addressed some issues with regard to 
Tribal regulation of nonmembers, as well as differences in Tribal 
criminal enforcement programs, in the preamble to and/or the final 
regulation on NPDES authority for Tribes, 58 FR 67966, December 22, 
1993.) EPA specifically invites comment on (1) these differences with 
regard to access to Tribal courts for appeal of NPDES permits (which 
may be issued to nonmembers of the Tribe), (2) the basis of the 
differences, (3) as well as any alternative procedures that may be used 
to provide for an appeal of final Tribal NPDES permit actions, if a 
Tribal court system is not available to a person.

III. Supporting Documentation

1. Compliance With Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant,'' 
and therefore subject to review by the Office of Management and Budget 
(OMB) and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to lead to a 
rule that may:

    (1) Have an annual effect on the economy of $100 million or more, 
or adversely and materially affecting a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or Tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations, of 
recipients thereof; and
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.

    EPA believes that only a very few authorized States may be impacted 
by this proposed rule. The proposed action is consistent with and 
effectuates the public participation provisions of the CWA. As a 
result, EPA has determined that the final rule does not meet the 
definition of a significant regulation, and, therefore, the Agency is 
not conducting a Regulatory Impact Analysis.
    It has also been determined that this proposed rule is not a 
``significant regulatory action'' under the terms of Executive Order 
12866 and is therefore not subject to OMB review.

2. Compliance With Executive Order 12875

    Under Executive Order 12875, entitled Enhancing the 
Intergovernmental Partnership, the Agency is required to develop an 
effective process to permit elected officials and other representatives 
of State and Tribal governments to provide meaningful and timely input 
in the development of regulatory proposals.
    EPA fully supports this objective and has initiated a consultation 
process with both States and Tribes which will be continued through 
proposal and the public comment period. The Agency will be contacting 
each State individually for their views on this proposal. With regard 
to Indian Tribes, EPA is aware of the complex issues associated with 
applying this proposal to Tribes and is soliciting comments on those 
issues. EPA will work both with representatives of Tribes as well as 
through the Agency's American Indian Environmental Office to assure a 
full opportunity for review and comment on today's proposal and also to 
ensure an understanding of Tribal concerns or issues raised by today's 
proposal rule.
    EPA anticipates a reaction from the relatively few NPDES-authorized 
States which restrict standing to challenge State-issued NPDES permits. 
Businesses and municipalities in States which restrict standing may 
argue that allowing standing will make it more difficult to obtain a 
permit due to court challenges by citizens. However, based on EPA's 
experience in States which already provide broad standing to challenge 
permits, EPA does not expect that any significant portion of permits 
will be challenged in State courts. [[Page 14592]] 
    EPA believes that it has developed an effective process for 
receiving comments on this proposed rulemaking and has met the 
consultation requirements for States, federally recognized Tribes and 
localities under the terms of Executive Order 12875.

3. Paperwork Reduction Act

    This proposed rule does not contain information requirements 
subject to OMB review under the Paperwork Reduction Act, 44 U.S.C. 3501 
et seq.

4. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
EPA must prepare a Regulatory Flexibility Analysis for regulations 
having a significant impact on a substantial number of small entities.
    This proposed rule applies only to States with authorization to 
administer the NPDES permit program. States are not considered small 
entities under the RFA. Therefore, pursuant to section 605(b) of the 
Regulatory Flexibility Act, I certify that this proposed rule will not 
have a significant impact on a substantial number of small entities.

List of Subjects in 40 CFR Part 123

    Environmental protection, Administrative practice and procedure, 
Water pollution control.

    Dated: March 9, 1995.
Carol M. Browner,
Administrator.

    For the reasons set forth in this preamble, part 123, chapter I, 
title 40 of the Code of Federal Regulations is proposed to be amended 
as follows:

PART 123--[AMENDED]

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

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

    2. Section 123.30 is added to read as follows:


Sec. 123.30  Judicial review of approval or denial of permits.

    All States that administer or seek to administer a program under 
this part must provide any interested person an opportunity for 
judicial review in State Court of the final approval or denial of 
permits by the State. This requirement does not apply to Indian Tribes.
[FR Doc. 95-6676 Filed 3-16-95; 8:45 am]
BILLING CODE 6560-50-F