On Aug. 14, 2023, the U.S. Environmental Protection Agency (EPA) published a proposed rule that would clarify the requirements and processes for states and tribes to administer a Clean Water Act (CWA) Section 404 permitting program for discharges of dredged and fill material into regulated waters. The proposed rule is intended to address key barriers identified by states and tribes to administering CWA Section 404 programs and marks the first comprehensive revision to the regulations governing CWA Section 404 state and tribal programs since 1988.
By way of background, the U.S. Army Corps of Engineers (Corps) generally administers the CWA Section 404 program. However, CWA Section 404(g) authorizes states and tribes to assume administration of the program over certain waters within their jurisdiction, except for waters retained by the Corps. If EPA approves a program request, the state or tribe is responsible for permitting discharges of dredged and fill material into regulated waters, authorizing discharges under general permits, enforcing unauthorized discharges, and enforcing the terms and conditions of permits. Currently, Michigan, New Jersey, and Florida administer approved CWA Section 404 programs. No tribes have assumed administration of the program.
Key elements of the proposed rule include the following:
- Program Approval
- Program Assumption Requirements. EPA is
proposing to revise the current requirements for the program
descriptions that states and tribes submit when they request
approval to assume the program. First, the program description of
funding and staff must demonstrate that the state or tribe is able
to carry out the requirements for permitting, program operation,
and compliance evaluation and enforcement. The program description
must also address "the scope and structure of the State's
program . . . [which] should include [the] extent of [the]
State's jurisdiction, scope of activities regulated,
anticipated coordination, scope of permit exemptions if any, and
permit review criteria." 40 CFR 233.11(a). Finally, EPA
proposes to revise the program description requirement to address
inter-agency coordination if more than one state or tribal agency
will administer the program.
- Retained Waters. EPA is proposing a procedure
to determine the extent of waters over which the Corps would retain
administrative authority following state or tribal assumption of
the program. Under this procedure, before the state or tribe
submits its program request, the state or tribe must submit an
inquiry that the Corps identify the subset of regulated waters that
will remain subject to the Corps' jurisdiction. The inquiry
should include additional information to show that the state or
tribe "has taken concrete and substantial steps toward program
assumption" (i.e., a citation or copy of legislation
authorizing funding to prepare for assumption, a citation or copy
of legislation authorizing assumption, a governor or tribal leader
directive, a letter from a head of a tribal or state agency, or a
copy of a letter awarding a grant or other funding allocated to
investigate and pursue assumption). Submitting this inquiry
triggers a review by the Corps pursuant to specific evaluation
criteria. Additionally, EPA is proposing that the Corps retain
jurisdiction over all wetlands "adjacent" to retained
waters, except as agreed to by the state or tribe and the
Corps.
- Mitigation. EPA is proposing to require that
the program description include a proposed approach to ensure
compliance with the substantive criteria for compensatory
mitigation under 40 CFR 230 Subpart J—Compensatory Mitigation
for Losses of Aquatic Resources. However, the state or tribe's
approach may deviate from these requirements "to the extent
necessary to reflect tribal or state administration of the program
as opposed to Corps administration, but may not be less stringent
than the substantive criteria of subpart J."
- Effective Date for Approved Programs. EPA is
proposing that the transfer of an approved program to a state or
tribe take effect 30 days after publication of the notice of
EPA's approval in the Federal Register, except where EPA and
the state or tribe have agreed to a later effective date, not to
exceed 120 days from the date of notice in the Federal
Register.
- Program Assumption Requirements. EPA is
proposing to revise the current requirements for the program
descriptions that states and tribes submit when they request
approval to assume the program. First, the program description of
funding and staff must demonstrate that the state or tribe is able
to carry out the requirements for permitting, program operation,
and compliance evaluation and enforcement. The program description
must also address "the scope and structure of the State's
program . . . [which] should include [the] extent of [the]
State's jurisdiction, scope of activities regulated,
anticipated coordination, scope of permit exemptions if any, and
permit review criteria." 40 CFR 233.11(a). Finally, EPA
proposes to revise the program description requirement to address
inter-agency coordination if more than one state or tribal agency
will administer the program.
- Permit Requirements
- Compliance With the CWA 404(b)(1) Guidelines.
Stakeholders requested clarity regarding how a state or tribe can
satisfy CWA Section 404(h)(1)(A)(i) by demonstrating that it has
the authority to issue permits that "apply and assure
compliance with" the CWA 404(b)(1) Guidelines. However, EPA
declined to add regulatory text on the matter "[b]ecause the
existing regulations already require that CWA section 404 permits
issued by an assuming tribe or state must comply with the CWA
404(b)(1) Guidelines, and EPA does not want to unintentionally
constrain how tribes and states can demonstrate their
authority." Instead, EPA provides various examples of
approaches that states and tribes can take to make this
demonstration.
- Judicial Review and Rights of Appeal. EPA is
proposing that states seeking to assume the program must provide
for judicial review of decisions to approve or deny permits. The
proposed language is similar to that of CWA Section 402 National
Pollutant Discharge Elimination System (NPDES) State program
regulations, except for one modification to specify that state
requirements that provide for the losing party in a challenge to
pay all attorneys' fees, regardless of the merit of their
position, are an unacceptable impingement on the accessibility of
judicial review. This provision does not apply to tribes.
- Compliance With the CWA 404(b)(1) Guidelines.
Stakeholders requested clarity regarding how a state or tribe can
satisfy CWA Section 404(h)(1)(A)(i) by demonstrating that it has
the authority to issue permits that "apply and assure
compliance with" the CWA 404(b)(1) Guidelines. However, EPA
declined to add regulatory text on the matter "[b]ecause the
existing regulations already require that CWA section 404 permits
issued by an assuming tribe or state must comply with the CWA
404(b)(1) Guidelines, and EPA does not want to unintentionally
constrain how tribes and states can demonstrate their
authority." Instead, EPA provides various examples of
approaches that states and tribes can take to make this
demonstration.
- Program Operation
- Five-Year Permits and Long-Term Projects. EPA
is proposing to revise the application process for long-term
projects under the statutory limitation that permits not exceed
five years in duration. For projects where planned construction may
extend beyond the five-year permit period, the applicant should
submit an analysis showing how the project complies with the
environmental review criteria set forth in the CWA 404(b)(1)
Guidelines for the full project when they submit the application
for the first five-year permit. The applicant will be allowed to
modify the analysis, as necessary, when submitting applications for
subsequent five-year permits.
- Tribes as Affected Downstream States. EPA is
proposing three changes to certain comment and review provisions.
First, any downstream tribe that has been approved by EPA for
treatment in a similar manner as a state (TAS) would have an
opportunity to suggest permit conditions for CWA Section 404
permits issued by upstream states and tribes that may affect the
biological, chemical, or physical integrity of their reservation
waters. Second, tribes that have not yet been approved for TAS will
be enabled to apply for TAS solely for the purpose of commenting as
a downstream tribe. Lastly, EPA would allow tribes to request EPA
review of permits that may affect tribal rights or interests, even
if federal review has been waived.
- Five-Year Permits and Long-Term Projects. EPA
is proposing to revise the application process for long-term
projects under the statutory limitation that permits not exceed
five years in duration. For projects where planned construction may
extend beyond the five-year permit period, the applicant should
submit an analysis showing how the project complies with the
environmental review criteria set forth in the CWA 404(b)(1)
Guidelines for the full project when they submit the application
for the first five-year permit. The applicant will be allowed to
modify the analysis, as necessary, when submitting applications for
subsequent five-year permits.
- Compliance Evaluation and Enforcement
- EPA is proposing to amend its criminal enforcement requirements
to provide that states and tribes that are authorized to administer
the CWA Section 402 or 404 program or that seek authorization to do
so are required to authorize prosecution based on any form of
negligence, including gross negligence.
- EPA is proposing to amend its criminal enforcement requirements
to provide that states and tribes that are authorized to administer
the CWA Section 402 or 404 program or that seek authorization to do
so are required to authorize prosecution based on any form of
negligence, including gross negligence.
- Federal Oversight
- No Less Stringent Than. EPA's regulations
provide that states and tribes may not impose requirements less
stringent than federal requirements. EPA is proposing to clarify
this provision by codifying its longstanding principle that states
and tribes may not compensate for making one requirement more
lenient than required by making another requirement more stringent
than required. A state or tribe must also demonstrate that it will
— at all times — have the authority to issue permits
for all non-exempt discharges of dredged and fill material to all
regulated waters within its jurisdiction except for discharges to
the subset of regulated waters over which the Corps retains
jurisdiction pursuant to CWA Section 404(g)(1). Additionally, EPA
is adding regulatory language to codify its long-held position that
the state or tribe is responsible for administering all portions of
a CWA Section 404(g) program.
- Withdrawal Procedures. EPA is proposing to
simplify the process used to withdraw an assumed CWA Section 404
program from a previously authorized state or tribe. Under this
process, if the regional administrator finds that a state or tribe
is not properly administering the program, then the regional
administrator shall inform the state or tribe of the alleged
noncompliance and give the state or tribe 30 days to demonstrate
compliance. If the state or tribe fails to adequately demonstrate
compliance within 30 days, a withdrawal proceeding will be
initiated.
- Program Reporting. EPA is proposing to add a
self-assessment to the program reporting requirements. The
self-assessment should provide an overview of the program,
including the identification of implementation challenges along
with solutions that will address the challenges, as well as an
evaluation of the program components and any quantitative reporting
required in the regulations. EPA is also proposing to add a
requirement that the program's annual report include specific
metrics related to compensatory mitigation and resources and
staffing.
- No Less Stringent Than. EPA's regulations
provide that states and tribes may not impose requirements less
stringent than federal requirements. EPA is proposing to clarify
this provision by codifying its longstanding principle that states
and tribes may not compensate for making one requirement more
lenient than required by making another requirement more stringent
than required. A state or tribe must also demonstrate that it will
— at all times — have the authority to issue permits
for all non-exempt discharges of dredged and fill material to all
regulated waters within its jurisdiction except for discharges to
the subset of regulated waters over which the Corps retains
jurisdiction pursuant to CWA Section 404(g)(1). Additionally, EPA
is adding regulatory language to codify its long-held position that
the state or tribe is responsible for administering all portions of
a CWA Section 404(g) program.
- Miscellaneous
- The proposed rule also includes additional topics such as dispute resolution, conflict of interest, and partial assumption, as well as several technical and minor updates.
The 60-day comment period began on Aug. 14, 2023, with the publication of the proposed rule in the Federal Register. Public comments are due Oct. 13, 2023.
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