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.
• 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.
• 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.
• 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.
• 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.
• 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.