20772 Federal Register / Vol. 61, No. 90 / Wednesday, May 8, 1996 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 123

[FRL–5500–9]

RIN 2040–AC43

Amendment to Requirements for

Authorized State Permit Programs

Under Section 402 of the Clean Water

Act

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is amending the

regulations concerning the minimum

requirements for federally authorized

State permitting programs under Section

402 of the Clean Water Act. This

amendment will explicitly require that

all States that administer or seek to

administer a program under this part

must provide an opportunity for judicial

review in State Court of final permit

decisions (including permit approvals

and denials) that is sufficient to provide

for, encourage, and assist public

participation in the permitting process.

A State will meet this standard where

State law allows an opportunity for

judicial review that is equivalent to that

available to obtain judicial review in

federal court of federally-issued NPDES

permits. A State will not meet this

standard if it narrowly restricts the class

of persons who may challenge the

approval or denial of State-issued

permits.

This rule is being issued because EPA

has become aware of instances in which

citizens are barred from challenging

State-issued permits because of

restrictive standing requirements in

State law. The current regulations

setting minimum requirements for State

402 permit programs do not explicitly

address this problem. EPA believes this

is a gap in the regulations setting

minimum requirements for State 402

programs that needs to be addressed.

Today’s rule is intended to ensure

effective and meaningful public

participation in the permit issuance

process by establishing a minimum

level of public participation among

State water pollution control programs.

When citizens have the opportunity to

challenge executive agency decisions in

court, their ability to influence

permitting decisions through other

required elements of public

participation, such as public comments

and public hearings on proposed

permits, is enhanced. This rule will

promote effective and meaningful

public participation and will minimize

the possibility of unfair and inconsistent

treatment of similarly situated people

potentially affected by State permit

decisions.

This requirement does not apply to

Indian Tribes. EPA will decide at a later

time whether it should be extended to

Tribes.

EFFECTIVE DATE: This rule is effective on

June 7, 1996. Under EPA’s State 402

program rules, States will have up to

two years to adopt legislative changes,

if necessary, to meet this requirement

and maintain federal program

authorization.

FOR FURTHER INFORMATION CONTACT:

Robert Klepp, Office of Wastewater

Management (OWM), Permits Division

(4203), Environmental Protection

Agency, 401 M Street, S.W.,

Washington, D.C. 20460, (202) 260–

5805.

SUPPLEMENTARY INFORMATION:

Regulated Entities

Entities potentially regulated by this

action are authorized State programs.

Category Examples of regulated entities

State Government.State NPDES Permit Issuing

Authorities.

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

regulated by this action. This table lists

the types of entities that EPA is now

aware could potentially be regulated by

this action. Other types of entities not

listed in the table could also be

regulated. To determine whether your

organization is likely to be regulated by

this action, you should carefully read

the applicability language of today’s

rule. If you have any questions

regarding the applicability of this action

to a particular entity, consult the person

listed in the preceding FOR FURTHER

INFORMATION CONTACT section.

Information in this preamble is

organized as follows:

I. Summary and Explanation of Today’s

Action

1. Background

2. Rationale and Authority

a. Restrictive Standing Requirements In

States

b. Policy Concerns With Restrictive

Standing Provisions

c. Legal Authority

3. Regulatory Language

4. Exhaustion of Administrative Remedies

5. Consideration of Alternatives

6. Time Period for Compliance

II. Summary of Response to Comments

1. EPA Authority to Require Standing

2. Judicial Review is Distinct from Public

Participation

3. Rule would Impermissibly Affect State

Sovereignty

4. Potential Conflicts with the Tenth

Amendment

5. The Potential for Waste and Abuse of

Judicial Resources

6. Suggested Revisions

7. Time Frame for Compliance

8. Indian Tribes

9. Virginia-specific Issues

10. Impact of the Rule

11. Support for the Rule

III. Administrative Requirements

1. Compliance with Executive Order 12866

2. Unfunded Mandates Reform Act and

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’s regulations at 40 CFR Part 123

establish minimum requirements for

federally authorized State permit

programs under § 402 of the CWA.

Today, EPA is adding language to Part

123 that makes it clear that States that

administer or seek to administer

authorized 402 permitting programs

must provide an opportunity for judicial

review in State court of the final

approval or denial of permits by the

State that is sufficient to provide for,

encourage, and assist public

participation in the permitting process.

A State will meet this standard if State

law allows an opportunity for judicial

review that is the same as that available

to obtain judicial review of federallyissued permits in federal court (see

§ 509 of the Clean Water Act.) A State

will not meet this standard if it

narrowly restricts the class of persons

who may challenge the approval or

denial of permits (for example, if only

the permittee can obtain judicial review,

or if persons must demonstrate injury to

a pecuniary interest in order to obtain

judicial review, or if persons must have
Federal Register / Vol. 61, No. 90 / Wednesday, May 8, 1996 / Rules and Regulations 20773

1 EPA notes that in April 1996, the Virginia

legislature passed a bill that would amend certain

Virginia statutes, including the Water Control Law,

with respect to the availability of judicial review.

EPA is assessing the impact of the bill, which is not

yet effective as law.

a property interest in close proximity to

a discharge or surface waters in order to

obtain judicial review). States are free

under today’s rule to impose reasonable

requirements that administrative

remedies be exhausted in order to

preserve the opportunity to challenge

final permitting actions in State court.

This rule does not apply to Tribal

programs. EPA will decide at a later

time whether it should be extended to

Tribes.

2. Rationale and Authority

a. Restrictive Standing Requirements

In States. 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.

In 1993, a coalition of environmental

groups 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 alleged

that recent changes in the law in the

State of Virginia had 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

62.1–44.29.1 The petitioners alleged that

in 1990, the Virginia legislature

amended and narrowed the statutory

definition of ‘‘owner.’’ They also alleged

that under three opinions of the Virginia

Court of Appeals, 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 S.E.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 S.E.2d 634 (1991).

See Citizens for Clean Air v.

Commonwealth, 13 Va. App. 430, 412

S.E.2d 715 (1991)(interpreting similar

language in Virginia Air Pollution

Control Law). They alleged 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.

When EPA issued the regulations that

delineate the elements of an approvable

program, EPA 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

§ 509 of the Clean Water Act to

challenge federally-issued permits, or to

the point that adequate and effective

public participation in the permit

issuance process would be

compromised. EPA now believes that

this is the case in at least a limited

number of States and, thus, believes it

needs to specify standing requirements

in Part 123.

b. Policy Concerns With Restrictive

Standing Provisions. EPA believes that

the ability to judicially challenge

permits is an essential element of public

participation under the Clean Water

Act. Permits issued under § 402 (also

known as National Pollutant Discharge

Elimination System or NPDES permits)

fall within the broad range of processes

that are subject to the Congressional

directive of § 101(e) that public

participation be ‘‘provided for,

encouraged, and assisted by the

Administrator and the States.’’ Permits

are a critical means of implementing the

requirements and objectives of the Clean

Water Act because they establish

specific effluent limitations applicable

to individual dischargers covered by the

permits.

As EPA noted when it proposed

today’s rule on March 17, 1995 (60 FR

14588), 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 public

comments and public hearings on

proposed permits, may be seriously

compromised. If citizens perceive that a

State administrative agency is not

addressing their concerns about 402

permits because the citizens have no

recourse to an impartial judiciary, that

perception has a chilling effect on all

the remaining forms of public

participation in the permitting process.

Without the possibility of judicial

review by citizens, public participation

before a State administrative agency

could become a paper exercise. State

officials will inevitably spend less time

considering and responding to the

comments of parties who have no

standing to sue, but will be more

attentive to the comments of parties

who can challenge the administrative

decision in court.

The United States Court of Appeals

for the Fourth Circuit has agreed that

‘‘broad availability of judicial review is

necessary to ensure that the required

public comment period serves its proper

purpose. The comment of an ordinary

citizen carries more weight if officials

know that the citizen has the power to

seek judicial review of any

administrative decision harming him.’’

Virginia v. Browner, No. 95–1052, slip

op. at 17 (4th Cir. March 26, 1996)

(upholding EPA’s denial of Virginia’s

proposed permitting program under

Title V of the Clean Air Act). The Fourth

Circuit quoted from EPA’s March 17,

1995 proposal to support that

conclusion. Other courts also have

recognized broadly that meaningful and

adequate public participation is an

essential part of a State program under

Section 402. See e.g., 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).

These points are reinforced by

comments received regarding the

proposed rule. As described in more

detail in the response to comments

document that is included in the

rulemaking record, many comments

received by EPA expressed concerns

that a State’s failure to provide standing

for non-dischargers to seek judicial

review of permits creates an uneven

playing field that may result in:

• A failure by a State permitting

agency to adequately consider

comments by citizens because it is not

judicially accountable to them, while at

the same time giving undue deference to

those of a discharger who may bring an

action in court;

• A reduction in public participation

in the permit process because such

participation is perceived as fruitless;

and

• A government that is perceived by

its citizens to be distant and

unaccountable.

Moreover, the lack of adequate public

participation increases the likelihood

that States may issue permits with

limits and conditions that are

inadequate to protect the environment

because permit writers will not have the

benefit of the valuable insights and
20774 Federal Register / Vol. 61, No. 90 / Wednesday, May 8, 1996 / Rules and Regulations

information provided by public

participants. Finally, today’s rule also

effectuates EPA’s strong policy interest

in deferring to State administration of

authorized NPDES programs. EPA

firmly believes that States should

implement the NPDES program in lieu

of the federal government. However,

EPA just as firmly believes that the

opportunity for citizen participation is a

vital component of a State NPDES

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 both substantively adequate and

procedurally fair. Because this rule will

provide additional assurance of State

program adequacy and fairness, it will

allow EPA to exercise less oversight of

State programs and allow more State

autonomy in implementing NPDES

programs.

c. Legal Authority. EPA believes it has

authority under the Clean Water Act to

promulgate today’s rule. Section 101(e)

of the CWA provides, in part:

Public participation in the development,

revision, and enforcement of any regulation,

standard, effluent limitation, plan, or

program established by the Administrator or

any State under this chapter shall be

provided for, encouraged, and assisted by the

Administrator and the States.

This language explicitly directs that

both the Administrator and the States

must provide for, encourage, and assist

public participation in the development

of any ‘‘regulation, standard, effluent

limitation, plan, or program’’

established under the Act. Section

101(e) also requires that EPA, ‘‘in

cooperation with the States, shall

develop and publish regulations

specifying minimum guidelines for

public participation in such processes.’’

As EPA noted in the preamble to the

March 17, 1995 proposed rule, 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. (1973)

(hereinafter cited as 1972 Legis. Hist.) at

1430 (emphasis added).

The Senate Report observed further

that the implementation of water

pollution control measures would

depend, ‘‘to a great extent, upon the

pressures and persistence which an

interested public can exert upon the

governmental process. The

Environmental Protection Agency and

the State should actively seek,

encourage and assist the involvement

and participation of the public in the

process of setting water quality

requirements and in their subsequent

implementation and enforcement.’’ Id.

See also Senate Report at 72, 1972 Legis.

Hist. at 1490 (‘‘The scrutiny of the

public * * * is extremely important in

insuring * * * a high level of

performance by all levels of government

and discharge sources.’’).

Similarly, the House directed EPA

and the States ‘‘to encourage and assist

the public so that it may fully

participate in the administrative

process.’’ H. Rep. 911, 92d Cong., 2d

Sess. 79, 1972 Legis. Hist. at 766. The

House also noted, ‘‘steps are necessary

to restore the public’s confidence and to

open wide the opportunities for the

public to participate in a meaningful

way in the decisions of government;’’

therefore, public participation is

‘‘specifically required’’ and the

Administrator is ‘‘directed to encourage

this participation.’’ Id. at 819.

Congressman Dingell, a leading sponsor

of the CWA, characterized Section

101(e) as applying ‘‘across the board.’’

1972 Legis. Hist. at 108. See also id. at

249.

The Act reinforces the importance of

the directive in § 101(e) by reiterating it

repeatedly. See e.g., § 402(b)(3) (State

permit programs must provide for

public notice and an opportunity for

hearing before a State issues an NPDES

permit); § 505(a) (‘‘any citizen’’ is

authorized to bring enforcement suits);

§ 303(c)(1) (States are to hold public

hearings in reviewing and revising State

water quality standards); § 319 (a)(1)

and (b)(1) (States are to notice and take

public comment on nonpoint source

management programs); § 320(f) (public

review and comment required on plans

for protection of estuaries).

Other provisions of the Act reinforce

and confirm EPA’s authority to

promulgate today’s rule. First, § 304(i)

provides that EPA shall ‘‘promulgate

guidelines establishing the minimum

procedural and other elements of any

State program’’ under § 402. Today’s

rule specifies such a requirement.

Second, § 501(a) confers general

authority on the Administrator to

prescribe such regulations as are

necessary to carry out her functions

under the CWA. EPA believes it must

heed the command of § 101(e) in

carrying out the general authority

provided by §§ 304(i) and 501(a).

Finally, § 402(b)—the provision that

establishes the statutory standards

applicable to the approval of State

permitting programs by the

Administrator—itself contains an

explicit requirement for public

participation in the development of

State permits. Section 402(b)(3)

provides that EPA may disapprove a

State NPDES program if adequate

authority does not exist ‘‘to insure that

the public * * * receive notice of each

application for a permit and to provide

an opportunity for public hearing before

a ruling on each such application’’

(emphasis added). Section 402(b)(3)

must be interpreted in light of the

command of § 101(e) that public

participation be ‘‘provided for,

encouraged, and assisted by the

Administrator and the States.’’

Especially in light of § 101(e), it is

inconceivable that Congress intended

the public hearing required by

§ 402(b)(3)—and other forms of public

participation in the State administrative

process—to be a meaningless exercise.

Thus, EPA believes it has authority to

specify reasonable State court judicial

review requirements for purposes of

NPDES State program approval in order

to ensure that the administrative process

serves its intended purpose. Today’s

rule will help ensure a minimum level

of public participation among State

water pollution control programs and

minimize the possibility for unfair and

inconsistent treatment of similarly

situated people potentially affected by

State permit decisions. It will reduce

pressures on States to compete against

each other in a downward spiral

towards less effective and overly

restrictive judicial review provisions in

State permit programs. At the same

time, it will help to ensure that similar

pollution sources in different States will

be treated fairly and consistently.

3. Regulatory Language

The language of today’s final rule

differs from the language proposed on

March 17, 1995. The proposed language

would have required that ‘‘[a]ll 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.’’ The language of the proposal

was based on § 509(b)(1) of the Clean

Water Act, which provides that ‘‘any

interested person’’ may obtain judicial

review in the United States Court of

Appeals of the Administrator’s action in

issuing or denying any permit under

§ 402 of the Clean Water Act. The intent

of the proposal was to provide for

meaningful public participation before

the State permitting agency by ensuring

that ‘‘any interested person’’ has the

opportunity to judicially challenge final
Federal Register / Vol. 61, No. 90 / Wednesday, May 8, 1996 / Rules and Regulations 20775

action on State-issued permits to the

same extent as if the permit were

federally issued.

As is noted elsewhere in this

preamble, a number of commenters

(including several States) argued that

the Clean Water Act does not authorize

EPA to specify any standing

requirement applicable to State 402

programs, or to impose the federal

standing provisions contained in § 509

upon the States. Other commenters

argued that EPA could provide for

meaningful public participation before

the State permitting agency without

going so far as to prescribe that ‘‘any

interested person’’ must be afforded

standing by the States. Some of these

commenters (including several States)

stated that the proposed language was

too rigid because a State might provide

for meaningful public participation in

the administrative process before the

State permitting agency even though it

does not precisely meet the ‘‘any

interested person’’ test laid out in the

proposal.

After considering these and related

comments on the proposal, EPA decided

to adopt a more flexible, functional test

that is tied directly to the mandate of

§ 101(e). Today’s rule provides that

States seeking to administer an

authorized program under § 402 of the

Clean Water Act must provide an

opportunity for judicial review in State

court of the final approval or denial of

permits by the State that is sufficient to

provide for, encourage, and assist public

participation in the permitting process.

A State will certainly meet this

standard if it allows an opportunity for

judicial review that is the same as that

available to obtain judicial review in

federal court of a federally-issued

NPDES permit. As noted above and in

the preamble to the proposed rule,

§ 509(b)(1) governs the availability of

judicial review of federally-issued

NPDES permits. The term ‘‘interested

person’’ in Section 509(b) is intended to

embody the injury in fact rule of the

Administrative Procedure Act, as set

forth by the Supreme Court in Sierra

Club v. Morton, 405 U.S. 727 (1972).

Montgomery Environmental Coalition v.

Costle, 646 F.2d 568, 576–78 (D.C. Cir.

1980); accord Trustees for Alaska v.

EPA, 749 F.2d 549, 554–55 (9th Cir.

1984); see also Roosevelt Campobello

Int’l Park Comm’n v. EPA, 711 F.2d 431,

435 (1st Cir. 1983); S. Conference Rep.

No. 1236, 92d Cong, 2d Sess. 146 (1972),

1972 Legis. Hist. at 281, 329.

The majority of decisions on standing

under the Clean Water Act and other

environmental statutes have held that

plaintiffs must at least satisfy the

requirements of Article III. See, e.g.,

NRDC v. Texaco Ref. & Mktg., Inc., 2

F.3d 493, 505 (3d Cir. 1993); NRDC v.

Watkins, 954 F.2d 974, 978 (4th Cir.

1992). As interpreted by the United

States Supreme Court, the standing

requirement of Article III 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.

555, 560–61 (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.

at 562–63 (‘‘[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.’’).

On the other hand, today’s rule also

provides that a State does not ‘‘provide

for, encourage, and assist’’ public

participation in the permitting process if

it narrowly restricts the class of persons

who may challenge the approval or

denial of permits (for example, if only

the permittee can obtain judicial review,

or if persons must demonstrate injury to

a pecuniary interest in order to obtain

judicial review, or if persons must have

a property interest in close proximity to

a discharge or surface waters in order to

obtain judicial review.) As the

regulation itself makes clear, these are

only examples of such deficiencies in

State programs. EPA believes that if

State law does not allow broad standing

to judicially challenge State-issued

NPDES permits—including standing

based on injury to aesthetic,

environmental, or recreational

interests—the opportunity for judicial

review will be insufficient to ensure that

public participation before the State

permitting agency will serve its

intended purpose. See Virginia v.

Browner, No. 95–1052, slip op. at 16–18

(4th Cir. March 26, 1996). At a

minimum, ordinary citizens should be

in a position of substantial parity with

permittees with respect to standing to

bring judicial challenges to State

permitting decisions.

EPA will examine the opportunities

for judicial review of State-issued 402

permits that are provided by State law,

on a case-by-case basis, to determine

whether or not the State adequately

‘‘provides for, encourages, and assists’’

public participation in the NPDES

permitting process. EPA will look to the

State Attorney General to provide a

statement that the laws of the State meet

the requirements of today’s rule. 40 CFR

123.23.

Today’s rule 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.

4. Exhaustion of Administrative

Remedies

Standing to judicially challenge

permits should be distinguished from a

requirement that potential litigants must

exhaust administrative remedies in

order to preserve their opportunity to

bring judicial challenges. For example,

federal regulations require that all

persons must raise reasonably

ascertainable issues during the public

comment period on a draft 402 permit

(40 CFR 124.13). Interested persons

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.

5. Consideration of Alternatives

In addition to the proposed approach

(which would have required that State

law provide any ‘‘interested person’’ an

opportunity to challenge the approval or

denial of 402 permits issued by States

in State court), EPA also considered as

an alternate approach, amending Part

123 to require that State law must

provide an opportunity for judicial

review of a final State permit action to

permit applicants and any person who

participated in the public comment

process. EPA solicited comments on

that approach. One commenter

endorsed this alternate approach as a

way to ensure that access to courts is

limited to those who participated in the

administrative process.

After considering that and related

comments, EPA decided to adopt a more

flexible, functional test that is tied

directly to the mandate of § 101(e). This

functional test and reasons for EPA’s

adoption of today’s rule are described in

more detail above at I.3. However, this

rule does not affect States’ ability to
20776 Federal Register / Vol. 61, No. 90 / Wednesday, May 8, 1996 / Rules and Regulations

adopt reasonable requirements that

interested persons exhaust available

administrative remedies, including

participating in the submittal of public

comments, to preserve their opportunity

to challenge final permitting actions in

State court.

6. Time Period for Compliance

Any approved State section 402

permit program which requires revision

to conform to this part shall be so

revised within one year of the date of

promulgation of this regulation, unless

a State must amend or enact a statute in

order to make the required revision, in

which case such revision shall take

place within 2 years. New States seeking

EPA authorization to operate the NPDES

program must comply with this

regulation at the time authorization is

requested. This is consistent with

current requirements for State programs

found at § 123.62(e). In the March 17,

1995 proposal, EPA requested comment

on whether a shorter time frame should

be imposed than what is provided at

§ 123.62(e) to comply with this

regulation.

Commenters were divided on the

issue of the time frame for

implementation. One commenter

expressed concern that the two-year

time frame is too short and does not

allow enough time for a legislature to

amend its rules in a reasoned and

thoughtful manner. Another noted that

a State would require a full two years

to enact legislative changes and

additional time to engage in

administrative rulemaking, including

providing public notice and conducting

a hearing, to determine the level of

participation that constitutes an

‘‘interested person’’ as proposed. Yet

another commenter indicated that States

would require a minimum of three years

following promulgation to comply with

the rule to have sufficient time to

develop, adopt, implement, and receive

EPA approval.

Other commenters stated that the twoyear time frame is too long and that

compliance with the rule should be

undertaken immediately or, if a State

needs to amend its statute, within the

first legislative session. Another

commenter added that a 1–2 year

compliance period is unnecessary since

legislation needed to comply with the

rule is simple, straightforward and

easily accomplished.

While EPA believes it has adequate

authority under the CWA to impose a

shorter time frame than that imposed

under 40 CFR § 123.62(e), the Agency

believes that the 1–2 year compliance

period as required under its existing

regulations is the most appropriate time

frame for this rule because it provides

States with adequate time to make

necessary changes while taking into

account the need for legislative action.

II. Summary of Response to Comments

A number of comments were received

in response to the March 17, 1995

proposal. EPA’s full response to those

comments is provided in the response to

comments document included in the

record for this rulemaking. However,

EPA has summarized its response to

some of the major comments below.

1. EPA Authority to Require Standing

A number of commenters asserted

that the Clean Water Act does not

provide EPA with authority to prescribe

State court judicial review requirements

for NPDES permits. For the reasons set

forth above, and as further detailed in

the response to comments document,

EPA believes that it has authority under

the Clean Water Act to promulgate

today’s rule.

2. Judicial Review is Distinct from

Public Participation

Commenters also contended that

judicial review and public participation

are not the same and treated differently

in the CWA and applicable regulations.

Thus, EPA may not impose judicial

standing requirements to resolve public

participation concerns.

For reasons set forth above and as

further detailed in the response to

comments document, EPA believes

broad standing to challenge permits in

court to be essential to meaningful

public participation in NPDES

programs. See Virginia v. Browner, No.

95–1052, slip op. at 17 (4th Cir. March

26, 1996).

3. Rule would Impermissibly Affect

State Sovereignty

Commenters stated that the proposed

rule would require that a State waive its

sovereign immunity in a manner

dictated by EPA in order to obtain

approval of its NPDES program.

Commenters argued that this is

impermissible unless Congress has

made its intent to do so unmistakably

clear in the language of the Clean Water

Act (the ‘‘plain statement rule’’).

Gregory v. Ashcroft, 501 U.S. 452, 460

(1991); Will v. Michigan Dep’t of State

Police, 491 U.S. 58 (1989); Atascadero

State Hospital v. Scanlon, 473 U.S. 234,

242 (1985). They stated that the Clean

Water Act does not contain such a

‘‘plain statement.’’

Today’s rule does not impermissibly

impinge on a State’s sovereign

immunity, nor does the ‘‘plain

statement rule’’ have any application

here. This is because States voluntarily

assume the NPDES program. Section

402 of the CWA provides that States that

wish to obtain authorization from EPA

to implement the NPDES program

requirements may apply to EPA and,

where they meet the requirements of

§ 402, be approved to operate a permit

program in lieu of the federal program.

States seek this authorization

voluntarily, based on State interests;

there is no mandate that they do so.

However, in choosing to regulate in lieu

of the federal government, a State must

meet federal requirements set forth in

the CWA and implementing regulations.

These requirements will now include an

explicit standing requirement. If a State

finds any of these conditions for federal

approval unacceptable, the State may

decline the opportunity to implement

the NPDES program and leave such

implementation to the federal

government. The Supreme Court has

held that Congress may offer the States

the choice of regulating an activity

according to federal standards or having

State law preempted by federal

regulation (New York v. U.S., 505 U.S.

144, 167 (1992) (specifically referring to

the Clean Water Act); Hodel v. Virginia

Surface Mining & Reclamation Assn.,

Inc., 452 U.S. 264, 288 (1981)).

Similarly, the ‘‘plain statement rule’’

applied in such cases as Gregory v.

Ashcroft, 501 U.S. 452 (1991), does not

apply where Congress has provided a

choice for the States. As the Court stated

in Gregory, the requirement that

Congress clearly state its intent to

preempt traditional State sovereign

powers ‘‘is nothing more than an

acknowledgment that the States retain

substantial sovereign powers under our

constitutional scheme, powers with

which Congress does not readily

interfere.’’ Id. at 461. It is a rule of

interpretation designed to avoid a

potential constitutional problem. Here,

however, as discussed above, there is no

constitutional dilemma.

Because today’s rule will be imposed

only on States that voluntarily seek

authorization (or choose to retain

authorization) for a permit program

under § 402, it does not interfere with

State powers. Thus, no ‘‘plain

statement’’ of Congressional intent is

necessary. In any case, this rule has a

minimal effect upon State standing,

because it applies only to

administration of the federally

authorized State NPDES program, but

does not affect State standing

requirements in any other respect.
Federal Register / Vol. 61, No. 90 / Wednesday, May 8, 1996 / Rules and Regulations 20777

4. Potential Conflicts with the Tenth

Amendment

Some commenters also argued that

the proposal is suspect under the Tenth

Amendment because it would expand

the standing rights already afforded by

State law, contrary to FERC v.

Mississippi, 456 U.S. 742 (1982)

(standing and appeal provisions of

Public Utilities Regulatory Policies Act

of 1978 upheld only because they did

not expand standing rights afforded by

State law).

For reasons similar to those explained

in paragraph 3 above, the Agency does

not believe this rule is suspect under the

Tenth Amendment. The CWA is a

federal program that draws on

Commerce Clause authority to require

nationwide adherence to federal

standards protecting water quality.

Section 402 of the CWA provides that

States that wish to obtain authorization

from EPA to implement the NPDES

program requirements may apply to

EPA and, where they meet the

requirements of § 402, be approved to

operate a permit program in lieu of the

federal program. Similarly, to retain

authorization, States must continue to

meet federal requirements, including

the new one promulgated today. States

seek this authorization voluntarily. As

noted above, the Supreme Court has

held that Congress may offer the States

the choice of regulating an activity

according to federal standards or having

State law preempted by federal

regulation. New York, Hodel. Because

States voluntarily choose to assume

responsibility for the § 402 program, this

rule does not require that States expand

their standing rights.

The commenter’s reliance on FERC v.

Mississippi is misplaced. In fact, FERC

supports the legality of today’s rule. As

in New York and Hodel, the FERC Court

upheld federal conditions on State

implementation of a federal program,

including procedural requirements, on

the grounds that the federal law in

question, like the Clean Water Act,

allowed States the choice to regulate

according to federal requirements or

leave implementation to the federal

government. Recently, the U.S. Court of

Appeals for the Fourth Circuit upheld a

standing rule under the Clean Air Act

(CAA) against similar Tenth

Amendment challenges by the

Commonwealth of Virginia. The Court

found that the CAA did not compel

States to modify their standing rules but

merely induced them to do so through

financial sanctions and imposition of

federal requirements; this was found to

not violate the Tenth Amendment.

Virginia v. Browner, No. 95–1052, slip

op. (4th Cir. March 26, 1996).

5. The Potential for Waste and Abuse of

Judicial Resources

One commenter stated that Congress

has expressed concern about the

potential for waste and abuse involving

State judicial resources (e.g., being

subject to harassing lawsuits) that could

result from the proposed rule. (1972

Legis. Hist. at 467.)

Today’s rule does not encourage

harassing lawsuits. Instead, it effectively

balances the CWA’s strong policy

favoring public participation in the

development of water pollution controls

(see CWA § 101(e)) with the policy to

recognize, preserve, and protect the

primary rights and responsibilities of

the States to prevent, reduce, and

eliminate pollution (see CWA § 101(b)).

The rule ensures that citizens will be

able to influence State permitting

decisions through public participation

as Congress intended. In addition, States

may impose reasonable requirements

that prospective plaintiffs exhaust

administrative remedies in order to

preserve their opportunity to challenge

State-issued permits in State court.

In addressing comments on the

proposed rule, EPA surveyed a number

of States that provide citizen standing to

challenge permits in State court

(Connecticut, New Jersey, Maryland,

Georgia, Michigan, Iowa, Colorado,

California, and Washington) concerning

the frequency of judicial permit appeals

as compared to the total number of

permits issued by the States in the last

five calender years. EPA found the

frequency of such judicial appeals to be

very low particularly when compared to

the total number of permits issued by

those States. Four States (Iowa,

Maryland, Michigan, and Connecticut)

reported that they each had one permit

judicially appealed within the last five

years. The number of permits issued by

each of those States during that time

ranged from 116 (for Connecticut) to

1175 (for Iowa). Other States reported

similar rates of State permit judicial

appeals. EPA has also found very low

rates of judicial permit appeals for

NPDES permits that it issues in States

that have not been authorized to issue

NPDES permits. Finally, a number of

commenters supported EPA’s statement

in the proposed rule that the Agency did

not expect that any significant portion

of permits would be challenged in State

courts. See 60 FR at 14591. This

information confirms EPA’s belief that

this rule will not impose a discernable

burden on State judicial resources.

6. Suggested Revisions

Several commenters noted that the

rule must clearly reflect the proper

limits of standing to sue. In response to

this and other related comments, EPA

has decided not to specify, as proposed,

that ‘‘any interested person’’ must be

provided an opportunity for judicial

review of State-issued permits in State

court. Instead, the Agency has adopted

a more flexible, functional final rule that

is tied directly to the statutory language

of § 101(e).

The final rule provides that States that

administer or seek to administer an

authorized NPDES program must

provide an opportunity for judicial

review in State court of State permitting

decisions that is sufficient to provide

for, encourage, and assist public

participation in the permitting process.

A State will meet this standard if State

law allows an opportunity for judicial

review that is the same as that available

to obtain judicial review in federal court

of federally-issued permits. States may

demonstrate to EPA that even if their

standing rules are not the same as these

federal standing provisions, they are

nevertheless broad enough to provide

for, encourage, and assist public

participation in the administrative

process before the State permitting

agency. A State will not meet this

standard if it narrowly restricts the class

of persons who may challenge the

approval or denial of permits (for

example, if only the permittee is able to

obtain judicial review, or if a person

must have a property interest in close

proximity to a discharge or surface

waters in order to obtain judicial

review, or if the State requires that

persons demonstrate injury to a

pecuniary interest in order to obtain

judicial review). (‘‘A plaintiff need not

show ‘pecuniary harm’ to have Article

III standing; injury to health or to

aesthetic, environmental, or recreational

interests will suffice.’’ Virginia v.

Browner, No. 95–1052, slip op. at 17

(4th Cir. March 26, 1996), citing United

States v. Students Challenging

Regulatory Agency Procedures (SCRAP),

412 U.S. 669, 686–87 (1973); Sierra Club

v. Morton, 405 U.S. 727, 734 (1972).)

EPA believes this approach will

ensure the meaningfulness of public

participation in the State permitting

process, without prescribing a specific

level of standing that all States must

afford. Therefore, it should affect even

fewer States than the proposal.

7. Time Frame for Compliance

This issue is addressed above.
20778 Federal Register / Vol. 61, No. 90 / Wednesday, May 8, 1996 / Rules and Regulations

2 See footnote 1.

8. Indian Tribes

EPA did not propose to subject Indian

permitting programs under § 402 to the

requirements of today’s rule. However,

EPA did solicit comment on this issue.

Commenters raised several concerns

with regard to the treatment of Indian

Tribes under the proposal. A few

commenters requested that the

exemption for Tribes be removed from

the rule and stated that to exclude

Tribes would be ‘‘outside the realm’’ of

the CWA. These commenters stated that

Tribes should be treated as States under

CWA § 518(e) and should not be

exempted from the rule. Others

suggested that one alternative for

addressing Tribal NPDES permits is to

use EPA’s objection authority contained

in CWA § 402(d). One commenter added

that the rule is unnecessary with respect

to Tribes because Tribes have already

provided for public participation,

including authorizing judicial review of

Tribal administrative actions. The

Agency is not subjecting Tribal

permitting programs under § 402 to the

requirements of this rule for the time

being, as discussed in the proposal and

in more detail in the response to

comments document. The Agency will

make a final determination at a later

time whether to extend the

requirements of today’s rule to Indian

Tribes.

With regard to the suggestion that

EPA use its objection authority to

oversee Tribal permit decisions, EPA

does not agree that it should use its

authority to review permits prior to

issuance as a substitute for public

participation in the permitting process.

With respect to the necessity of this rule

for Tribes, EPA appreciates that some

Indian Tribes already provide for the

participation of interested or aggrieved

parties in permitting matters. While

EPA does not as a general matter feel

that Tribal procedures should be less

rigorous with respect to public

participation than State procedures, this

rule does raise special issues regarding

Federal Indian policy and law which

EPA is still assessing. EPA may propose

regulatory action in the future with

respect to judicial review of Triballyissued NPDES permits. This rule,

however, would not preclude a Tribe

from voluntarily including a judicial

review process as part of its program

application.

9. Virginia-Specific Issues

Some commentators raised the issue

that this rule singles out the

Commonwealth of Virginia, and that

EPA is proposing this rule to avoid the

process of deciding on a petition to

withdraw Virginia’s NPDES

authorization. Based on general

information, EPA believes that there

may be a small number of States in

addition to Virginia that have restrictive

standing laws pertaining to State

judicial review of State-issued NPDES

permits. In addition, several other States

have indicated in comments to the rule

that they may have to revise their

current program regulations in response

to the proposal. Although today’s rule

provides more flexibility for State

programs with respect to standing

requirements than the proposal, EPA

believes that a small number of States in

addition to Virginia might need to revise

their programs to comply with the final

rule.

EPA has chosen to proceed with this

rulemaking because the Agency believes

that adequate public participation in

authorized State NPDES permitting

programs is fundamental to the effective

implementation of the CWA, and that

limitations or potential limitations upon

such participation are best addressed

through a regulation that will help

ensure an appropriate opportunity for

public participation in all authorized

States. With respect to the Virginia

withdrawal petition, it is EPA’s view

that the appropriate mechanism for

addressing the citizen standing issues

raised in that petition is to clarify the

fundamental elements of effective

public participation programs in a

rulemaking. Other issues raised in the

petition concerning the Virginia NPDES

program will be resolved in a separate

proceeding.

One commenter stated that Virginia

citizens are given full and serious

consideration when administrative

decisions are made on permit

conditions. This commenter added that

judicial standing is granted to those who

can demonstrate injury. Another stated

that Virginia law does not imply a

restriction on third-party private

property rights; rather, third parties

have a right to bring a claim before State

court if their property is damaged or

they are otherwise harmed by a

permitted activity.

As discussed in more detail above,

EPA has reason to believe that Virginia

does not provide for an effective public

participation program because it

restricts standing to judicially contest

final State-issued permits to the

discharger.2 Numerous commenters

supported this concern, which they

asserted results in a situation where

citizen comments do not need to be

taken seriously or can be ignored since

citizens have no ability to challenge

permits in court. In any case, today’s

rule is not about a single State or State

program; rather, the rule is intended to

ensure that all authorized NPDES

programs provide the judicial standing

necessary to ensure effective public

participation in the permitting program.

Moreover, today’s rule does not require

that a State meet a single standing

formula; rather, a State must

demonstrate that its access to courts is

sufficiently broad to ensure adequate

public participation in the permitting

process.

10. Impact of the Rule

Some commenters also questioned the

impact of today’s rule. One commenter

stated that EPA must conduct a

regulatory impact analysis (RIA) and

request Office of Management and

Budget review in accordance with E.O.

12866 or withdraw the rule. This

commenter noted that the rule meets the

definition of ‘‘significant regulation’’

and therefore must be assessed in an

RIA. Another commenter stated that the

rule affects small entities and EPA must

prepare a Regulatory Flexibility

Analysis. One commenter stated that

further analysis is necessary to assess

the potential impact of the rule.

EPA does not believe that the rule

meets the definition of a significant

regulatory action, as defined in E.O.

12866. The rule potentially impacts

only very few States and is consistent

with and effectuates the public

participation provisions of the CWA.

OMB has determined that this rule is

not a ‘‘significant regulatory action’’

under the terms of E.O. 12866 and is

therefore not subject to its review. With

regard to the need for a Regulatory

Flexibility Analysis, EPA notes that the

rule applies to States with authorization

to administer the NPDES permit

program, and States are not considered

small entities under the Regulatory

Flexibility Act. Nor does the Agency

believe that the rule will have a

significant impact on small businesses

due to the potential for such businesses

to incur increased litigation costs. As

described in more detail in responses to

individual comments in the record for

this rulemaking, EPA’s experience with

States that already provide broad

standing to challenge permits indicates

that ensuring appropriate criteria for

standing in the few States that now

unduly limit it will not result in a

significant portion of permits being

challenged in State court. Thus, a

Regulatory Flexibility Analysis is not

necessary.

Nothing in this rule or preamble

should be construed as addressing the
Federal Register / Vol. 61, No. 90 / Wednesday, May 8, 1996 / Rules and Regulations 20779

standing of citizen plaintiffs under

§§ 309 or 505 of the Clean Water Act.

11. Support for the Rule

Numerous commenters supported

some or all of the rule. Many of them

agreed with the Agency’s proposal to

include language stating that ‘‘any

interested person’’ should be able to

appeal pollutant discharge permits in

State court. These commenters viewed

the rule as necessary to ensure

meaningful public participation, in the

permitting process. As described above,

EPA has chosen to not require that

States explicitly adopt an ‘‘interested

person’’ standard, but instead has

decided to provide flexibility in this

area consistent with the need for

effective public participation.

Commenters stated that the rule is

necessary to ensure meaningful public

participation and expressed concern

that if standing is not broadened in

those States that unduly restrict it,

citizen comments will not be taken

seriously or may be ignored since

citizens have no ability to challenge

permits in court. Other commenters

stated that the rule is necessary for

citizens to challenge permit terms that

directly impact their property rights and

valuable State resources. Other

commenters stated that the lack of

meaningful public participation has a

direct adverse impact on business.

Other commenters stated that the rule

would bring consistency, accountability,

and credibility to the permitting process

and significantly improve the quality of

the final permits. EPA has addressed

these comments in more detail in the

response to comments document but

notes that promulgation of this rule

should address many of the concerns

raised by these commenters.

III. Administrative Requirements

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 affect 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; or

(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 rule. This rule is consistent with

and effectuates the public participation

provisions of the CWA. It has been

determined that this rule is not a

‘‘significant regulatory action’’ under

the terms of Executive Order 12866 and

is therefore not subject to OMB review.

As a result, the Agency is not

conducting a Regulatory Impact

Analysis.

2. Unfunded Mandates Reform Act and

Compliance With Executive Order

12875

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), P.L. 104–

4, establishes requirements for Federal

agencies to assess the effects of their

regulatory actions on State, local, and

Tribal governments and the private

sector. Under section 202 of UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for the proposed and final

rules with ‘‘federal mandates’’ that may

result in expenditures to State, local,

and Tribal governments, in the

aggregate, or to the private sector, of

$100 million or more in any one year.

Before promulgating an EPA rule for

which a written statement is needed,

§ 205 of UMRA generally requires EPA

to identify and consider a reasonable

number of regulatory alternatives and

adopt the least costly, most costeffective or least burdensome alternative

that achieves the objectives of the rule.

In addition, under § 203 of UMRA,

before EPA establishes any regulatory

requirements that may significantly or

uniquely affect small governments,

including Tribal governments, it must

develop a small government agency

plan. The plan must provide for

notifying potentially affected small

governments, enabling timely input in

the development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising

small governments on compliance with

the regulatory requirements.

The specific provisions of §§ 202 and

205 of UMRA do not apply because this

rule does not contain any Federal

mandates. As discussed above, the rule

does not impose any enforceable duty

on any State, local, or Tribal

government or the private sector.

Moreover, any duties arising from this

rule are the result of participation in a

voluntary Federal program. States are

free to leave NPDES regulation to the

federal government if they find the

requirements in today’s rule

unacceptable. In any event, no mandates

in this rule would result in the

expenditure of $100 million or more in

any one year by governmental or private

entities. With respect to § 203 of UMRA,

this rule will impact State governments

only; there will be no significant impact

or unique effect on small governments.

EPA did consult with States and

Tribes during the proposal and the

public comment period. The Agency

contacted each State individually,

seeking its views on the proposal. With

regard to Indian Tribes, EPA also

worked 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 the proposal and to ensure

an understanding of Tribal concerns or

issues raised by this rulemaking.

3. Paperwork Reduction Act

This 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 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,

5 U.S.C. 605(b), I certify that this final

rule will not have a significant

economic 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: May 1, 1996.

Carol M. Browner,

Administrator.

For the reasons set forth in this

preamble, part 123, Chapter I of Title 40

of the Code of Federal Regulations is to

be amended as follows:
20780 Federal Register / Vol. 61, No. 90 / Wednesday, May 8, 1996 / Rules and Regulations

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:

§ 123.30 Judicial review of approval or

denial of permits.

All States that administer or seek to

administer a program under this part

shall provide an opportunity for judicial

review in State Court of the final

approval or denial of permits by the

State that is sufficient to provide for,

encourage, and assist public

participation in the permitting process.

A State will meet this standard if State

law allows an opportunity for judicial

review that is the same as that available

to obtain judicial review in federal court

of a federally-issued NPDES permit (see

§ 509 of the Clean Water Act). A State

will not meet this standard if it

narrowly restricts the class of persons

who may challenge the approval or

denial of permits (for example, if only

the permittee can obtain judicial review,

if persons must demonstrate injury to a

pecuniary interest in order to obtain

judicial review, or if persons must have

a property interest in close proximity to

a discharge or surface waters in order to

obtain judicial review.) This

requirement does not apply to Indian

Tribes.

[FR Doc. 96–11328 Filed 5–7–96; 8:45 am]

BILLING CODE 6560–50–P