Rule2024-29484
Clean Water Act Section 404 Tribal and State Assumption Program
Primary source
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Published
December 18, 2024
Effective
January 17, 2025
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA or the Agency) is finalizing the Agency's first comprehensive revisions to the regulations governing Clean Water Act (CWA) section 404 Tribal and State programs since 1988. The primary purpose of the revisions is to respond to longstanding requests from Tribes and States to clarify the requirements and processes for the assumption and administration of a CWA section 404 permitting program for discharges of dredged and fill material. The revisions facilitate Tribal and State assumption and administration of CWA section 404, consistent with the policy of the CWA as described in section 101(b), by making the procedures and substantive requirements for assumption transparent and straightforward. It clarifies the minimum requirements for Tribal and State programs while ensuring flexibility to accommodate individual Tribal and State needs. In addition, the final rule clarifies the criminal negligence standard in the CWA section 404 program, as well as making a corresponding change in the section 402 program. Finally, the final rule makes technical revisions, including removing outdated references associated with the section 404 Tribal and State program regulations.
Full Text
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[Federal Register Volume 89, Number 243 (Wednesday, December 18, 2024)]
[Rules and Regulations]
[Pages 103454-103509]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-29484]
[[Page 103453]]
Vol. 89
Wednesday,
No. 243
December 18, 2024
Part VII
Environmental Protection Agency
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40 CFR Parts 123, et al.
Clean Water Act Section 404 Tribal and State Assumption Program; Final
Rule
Federal Register / Vol. 89 , No. 243 / Wednesday, December 18, 2024 /
Rules and Regulations
[[Page 103454]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 123, 124, 232, and 233
[EPA-HQ-OW-2020-0276; FRL-6682-01-OW]
RIN 2040-AF83
Clean Water Act Section 404 Tribal and State Assumption Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
finalizing the Agency's first comprehensive revisions to the
regulations governing Clean Water Act (CWA) section 404 Tribal and
State programs since 1988. The primary purpose of the revisions is to
respond to longstanding requests from Tribes and States to clarify the
requirements and processes for the assumption and administration of a
CWA section 404 permitting program for discharges of dredged and fill
material. The revisions facilitate Tribal and State assumption and
administration of CWA section 404, consistent with the policy of the
CWA as described in section 101(b), by making the procedures and
substantive requirements for assumption transparent and
straightforward. It clarifies the minimum requirements for Tribal and
State programs while ensuring flexibility to accommodate individual
Tribal and State needs. In addition, the final rule clarifies the
criminal negligence standard in the CWA section 404 program, as well as
making a corresponding change in the section 402 program. Finally, the
final rule makes technical revisions, including removing outdated
references associated with the section 404 Tribal and State program
regulations.
DATES: This rule is effective on January 17, 2025. The incorporation by
reference of certain material listed in the rule is approved by the
Director of the Federal Register as of January 17, 2025.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OW-2020-0276. All documents in the docket are listed on the
<a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in the index, some
information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available in hard copy
form. Publicly available docket materials are available electronically
through <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Christine Maietta, Oceans, Wetlands
and Communities Division, Office of Water (4504-T), Environmental
Protection Agency, Pennsylvania Avenue NW, Washington, DC 20460;
telephone number: 202-564-1854; email address: <a href="/cdn-cgi/l/email-protection#6003170154505407200510014e070f16"><span class="__cf_email__" data-cfemail="4122362075717526012431206f262e37">[email protected]</span></a>;
website: <a href="https://www.epa.gov/cwa404g">https://www.epa.gov/cwa404g</a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. General Information
A. What action is the Agency taking?
B. What is the Agency's authority for taking this action?
C. What are the incremental costs and benefits of this action?
III. Background
A. Statutory and Regulatory History
B. Need for Rulemaking Revisions
IV. Final Rule
A. General
B. Program Approval
C. Program Operations
D. Compliance Evaluation and Enforcement
E. Federal Oversight
F. Eligible Indian Tribes
G. Impacts on Existing Programs
H. Technical Revisions
I. Incorporation by Reference
J. Severability
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review;
Executive Order 13563: Improving Regulation and Regulatory Review;
and Executive Order 14094: Modernizing Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations and Executive Order 14096: Revitalizing Our Nation's
Commitment to Environmental Justice for All
K. Congressional Review Act
I. Executive Summary
Section 404 of the Clean Water Act (CWA) establishes a program to
regulate the discharge of dredged or fill material into navigable
waters, defined as ``waters of the United States.'' 33 U.S.C. 1344. The
section 404 program, introduced in the 1972 amendments to the Federal
Water Pollution Control Act, is generally administered by the U.S. Army
Corps of Engineers (``Corps''). However, in 1977, Congress amended
section 404 of the CWA to allow States to administer their own dredged
or fill material permitting programs in certain waters of the United
States within their jurisdiction, subject to EPA approval. Id. at
1344(g). A Tribe or State administering a section 404 program is
responsible for permitting discharges of dredged and fill material,
authorizing discharges under general permits, taking enforcement
actions with respect to unauthorized discharges, and ensuring
compliance with the terms and conditions of permits under the Tribe's
or State's authority. EPA maintains oversight of Tribal and State
section 404 programs.
In 1980, EPA promulgated regulations to establish procedures and
criteria for approving or disapproving State programs under section
404(g) and for oversight of State programs after approval. 45 FR 33290
(May 19, 1980). EPA revised the regulations in 1988. 53 FR 20764 (June
6, 1988). The 1988 revisions updated procedures and criteria used in
approving, reviewing, and withdrawing approval of section 404 State
programs, as well as incorporating section 404 program definitions and
section 404(f)(1) exemptions at 40 CFR part 232. Although the Agency
made targeted revisions to 40 CFR part 233 in the early 1990s and 2000s
in light of other statutory and regulatory changes (e.g., new
provisions addressing treatment of Tribes in a similar manner as
States), the Agency has not comprehensively revised these regulations
since 1988.
Nearly half of States and a few Tribes have expressed some level of
interest to EPA over time in assuming the section 404 dredged and fill
permit program, but only two States (Michigan and New Jersey) currently
administer the program.\1\ Tribes and States have identified several
barriers to program assumption. One of the barriers they identified is
uncertainty regarding the scope of assumable waters. To address this,
the Agency convened the Assumable Waters Subcommittee in
[[Page 103455]]
2015 to provide advice and develop recommendations as to how EPA could
best clarify the scope of waters over which a Tribe or State may assume
CWA section 404 permitting responsibilities, and the scope of waters
over which the Corps retains CWA section 404 permitting
responsibilities. The final report of the Subcommittee was submitted to
the National Advisory Council for Environmental Policy and Technology
(NACEPT), which adopted the majority recommendation in the Subcommittee
report. In its 2017 letter to the Administrator conveying this
recommendation, NACEPT recommended that EPA develop regulations to
clarify assumed and retained waters.\2\
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\1\ Florida obtained EPA's approval to assume the CWA section
404 program on December 17, 2020. On February 15, 2024, the U.S.
District Court for the District of Columbia vacated EPA's approval
of Florida's program. Center for Biological Diversity v. Regan, No.
21-119, 2024 WL 655368 (D.D.C.). Accordingly, only the impacts of
this rule on the Michigan and New Jersey programs are discussed in
this rule. An appeal of the district court's decision is pending.
See No. 24-5101 (D.C. Cir.).
\2\ Available at <a href="https://www.epa.gov/cwa-404/submission-assumable-waters-subcommittees-final-report">https://www.epa.gov/cwa-404/submission-assumable-waters-subcommittees-final-report</a> and in the docket for
this final rule, Docket ID No. EPA-HQ-OW-2020-0276.
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In this rule, the Agency also responds to longstanding requests
from Tribes and States to streamline and clarify the requirements and
processes for the assumption and administration of a CWA section 404
program as well as EPA oversight.\3\ The final rule facilitates Tribal
and State assumption of the section 404 program, consistent with the
policy of the CWA as described in section 101(b), by making program
assumption procedures and requirements transparent and straightforward
and addresses State-identified barriers to assumption. The final rule
clarifies how Tribes and States can ensure their program meets the
minimum requirements of the CWA while allowing for flexibility in the
way these requirements may be met. It clarifies the criminal
enforcement requirements for Tribal and State section 404 programs and
makes a corresponding change in section 402 Tribal and State program
requirements. The Agency is also finalizing other minor updates and
technical revisions in 40 CFR parts 232, 233, and part 124 associated
with Tribal and State section 404 programs. This rule is comprehensive
in that EPA has updated all of the provisions in 40 CFR parts 232, 233,
and 124 associated with Tribal and State 404 programs that it
determined needed to be clarified or updated at this time. This rule
does not reopen any other provisions in parts 232, 233, or 124.
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\3\ See, e.g., letter from Thomas W. Easterly, Chair, Water
Committee, The Environmental Council of States, Lucy C. Edmondson,
Vice Chair, The Environmental Council of States, to Peter Silva,
Assistant Administrator, Office of Water, U.S. Environmental
Protection Agency. February 26, 2010; Letter from R. Steven Brown,
Executive Director, The Environmental Council of States, to Nancy K.
Stoner, Acting Assistant Administrator, Office of Water, U.S.
Environmental Protection Agency. July 22, 2011. Subject: Progress
Report and Recommended Actions to Further Clarify Section 404
Assumption Application Requirements and Implementation by Tribes and
States; Letter from Alexandria Dapolito Dunn, ECOS, Sean Rolland,
ACWA, and Jeanne Christie, ASWM to Nancy K. Stoner, Acting Assistant
Administrator, Office of Water, U.S. Environmental Protection
Agency. April 30, 2014.
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II. General Information
A. What action is the agency taking?
Assumption enables Tribes and States to administer the CWA section
404 program, placing them in the primary decision-making position for
permitting discharges of dredged or fill material into certain waters
of the United States. EPA is revising and modernizing its regulations
to clarify requirements for Tribal and State program assumption and
administration, reduce barriers to assumption, and make technical
corrections to facilitate Tribal and State assumption and
administration of the section 404 program. This rule also addresses
EPA's procedures and criteria for approving, exercising oversight, and
withdrawing Tribal and State programs under CWA section 404(g)-(k) and
EPA's implementing regulations at 40 CFR part 233, with one
corresponding clarification to CWA section 402 National Pollutant
Discharge Elimination System (NPDES) Tribal and State section 402
permitting program requirements for criminal enforcement at 40 CFR
123.27.
B. What is the Agency's authority for taking this action?
The authority for this action is the Federal Water Pollution
Control Act, 33 U.S.C. 1251 et seq., including sections 101, 301, 309,
402, 404, 501, and 518.
C. What are the incremental costs and benefits of this action?
The costs and benefits are qualitatively discussed in the Economic
Analysis for the Clean Water Act Section 404 Tribal and State Program
Regulation. The benefits of the final rule are primarily attributable
to establishing a process to develop a retained waters description,
providing a program effective date, and providing opportunities for
Tribal input. The incremental costs of the final rule are primarily
attributable to a potential burden increase for Tribes to meet revised
judicial review requirements and a potential burden increase to Tribes,
States, and permittees from revisions that expand on existing Tribal
opportunities to provide input. The Agency expects these benefits to
justify the costs. The economic analysis does not quantify these
potential incremental economic impacts, as there is very limited data
associated with these changes on which to base estimates.
III. Background
A. Statutory and Regulatory History
1. CWA Section 404
In 1972, Congress amended the Federal Water Pollution Control Act
(FWPCA), or the CWA as it is commonly called,\4\ to address
longstanding concerns regarding the quality of the nation's waters and
the Federal Government's ability to address those concerns under
existing law. The objective of the 1972 statutory scheme is ``to
restore and maintain the chemical, physical, and biological integrity
of the Nation's waters.'' 33 U.S.C. 1251(a). To achieve this objective,
Congress provided, ``[e]xcept as in compliance with this section and
sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the
discharge of any pollutant by any person shall be unlawful.'' Id. at
1311(a). A ``discharge of a pollutant'' is defined broadly to include
``any addition of any pollutant to navigable waters \5\ from any point
source,'' which includes the discharge of dredged or fill materials
from a point source into waters of the United States. Id. at 1362(12).
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\4\ The FWPCA is commonly referred to as the CWA following the
1977 amendments to the FWPCA. Public Law 95-217, 91 Stat. 1566
(1977). For ease of reference, EPA will generally refer to the FWPCA
in this document as the CWA or the Act.
\5\ The CWA uses the term ``navigable waters,'' which the
statute defines as ``the waters of the United States, including the
territorial seas.'' 33 U.S.C. 1362(7).
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Section 404 of the CWA establishes a permitting program to regulate
the discharge of dredged or fill material from a point source into
navigable waters, unless the discharge is associated with an activity
exempt from section 404 permitting requirements under CWA section
404(f). Id. at 1344. Discharges of dredged materials, such as the
redeposit of dredged material (other than incidental fallback), and
discharges of fill materials, such as rock, sand, or dirt, may be
associated with activities such as site development, erosion
protection, bridges and piers, linear projects (such as pipelines),
natural resource extraction, shoreline stabilization, and restoration
projects.
Section 404(a) of the CWA authorizes the Secretary of the Army to
issue permits after notice and opportunity for public hearings to
discharge dredged or fill material into navigable waters at specified
disposal sites. Id. at 1344(a). The Act specifies that the Secretary of
the Army acts through the Chief of
[[Page 103456]]
Engineers, and thus the Corps generally administers the day-to-day
permitting program under section 404, unless EPA approves a Tribe's or
State's request to do so. See id. at 1344(d), (g).
The 1977 Amendments made the regulation of the discharge of dredged
or fill material a shared responsibility of the States and the Federal
Government.\6\ This partnership is consistent with the policy of CWA
section 101(b) that ``preserve[s] and protect[s] the primary
responsibilities and rights of States to prevent, reduce, and eliminate
pollution.'' and provides for States to ``implement the permit programs
under sections 1342 and 1344 of this title.'' \7\ To facilitate State
assumption of the section 404 program, Congress structured requirements
and procedures to leverage States' existing authority to administer the
CWA section 402 program.\8\ See section III.A.4 of this preamble for
further discussion on the specific statutory provisions that apply to
assumed programs.
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\6\ See, e.g., H.R. Report No. 95-830 at 52 (1977) (``Federal
agencies are to cooperate with State and local agencies to develop
solutions to prevent, reduce and eliminate pollution in concert with
programs for managing water resources''). See also S. Report No. 95-
370 at 78 (1977) (``Several States have already established separate
State agencies to control discharges of dredge or fill materials''
and ``The amendment encourages the use of a variety of existing or
developing State and local management agencies.''). See also id. at
11 (``The provision solves most real problems with section 404: (a)
by providing general delegation authority to the States . . .'').
The 1977 amendments also introduced exemptions and general permits.
See 33 U.S.C. 1344(e)-(f).
\7\ See S. Report No. 95-370 at 77 (1977) (``The committee
amendment is in accord with the stated policy of Public Law 92-500
of `preserving and protecting the primary responsibilities and
rights of States or [stet] prevent, reduce, and eliminate
pollution.' '').
\8\ See id. at 77 (``[The amendment] provides for assumption of
the permit authority by States with approved programs for control of
discharges for dredged and fill material in accord with the criteria
and with guidelines comparable to those contained in 402(b) and
404(b)(1).''). See also id. at 77-78 (``By using the established
mechanism in section 402 of Public Law 92-500, the committee
anticipates the authorization of State management of the permit
program will be substantially expedited. At least 28 State entities
which have already obtained approval of the national pollutant
discharge elimination system under the section should be able to
assume the program quickly.''). A Tribe or State need not have an
approved CWA section 402 program prior to seeking to assume
administration of CWA section 404.
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Under the section 404 program, discharges of dredged or fill
material into waters of the United States are authorized by individual
or general permits. Individual permits are processed by the permitting
agency (i.e., the Corps, or a Tribe or State with an approved program),
which evaluates them for consistency with the environmental criteria
outlined in the CWA section 404(b)(1) Guidelines \9\ or corresponding
Tribal or State laws or regulations, respectively. General permits
developed by the permitting agency may authorize discharges that will
have only minimal adverse effects, individually and cumulatively, to
the aquatic environment. General permits must be consistent with the
environmental review criteria set forth in the CWA section 404(b)(1)
Guidelines and may be issued on a nationwide, regional, or programmatic
basis for discharges from specific categories of activities. General
permits allow activities that meet specified conditions to proceed with
little or no delay. For example, a general permit can authorize
discharges associated with minor road activities or utility line
backfill, if the regulated activities under the general permit will
cause only minimal adverse environmental effects when performed
separately, will have only minimal cumulative adverse effects on the
environment, and the discharge complies with the general permit
conditions and the CWA section 404(b)(1) guidelines.
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\9\ The CWA section 404(b)(1) Guidelines are regulations
established by EPA pursuant to CWA section 404(b)(1) in conjunction
with the Corps and codified at 40 CFR part 230. They set forth the
substantive environmental review criteria used to evaluate permits
for discharges of dredged and/or fill material under CWA section
404.
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While the Corps is the Federal permitting agency and administers
the Federal section 404 program on a day-to-day basis, EPA also plays
an important role in the Federal section 404 program. Both agencies
develop and interpret policy and guidance and have promulgated section
404 regulations.\10\ Both EPA and the Corps have enforcement
authorities pursuant to section 404, as specified in sections 301(a),
309, 404(n), and 404(s) of the CWA. In the context of section 404, the
Corps does the day-to-day work of conducting jurisdictional
determinations,\11\ making permit decisions, ensuring compliance, and
taking enforcement actions, as necessary for the implementation of the
Federal section 404 program.
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\10\ The substantive and procedural requirements applicable to
section 404 are detailed in EPA's regulations at 40 CFR parts 230
through 233 and the Corps' regulations at 33 CFR parts 320, 323,
325-328, 330 through 333, and 335 through 338.
\11\ EPA decisions on jurisdiction do not constitute approved
jurisdictional determinations as defined by the Corps regulations at
33 CFR 331.2. EPA has final administrative authority over the scope
of CWA jurisdiction. Administrative Authority to Construe Sec. 404
of the Federal Water Pollution Control Act (``Civiletti
Memorandum''), 43 Op. Att'y Gen. 197 (1979).
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Under section 404, EPA establishes environmental criteria used in
evaluating permit applications (i.e., the CWA section 404(b)(1)
Guidelines) in conjunction with the Corps; determines the applicability
of section 404(f) exemptions; approves and oversees Tribal and State
assumption of the section 404 program (sections 404(g)-(l)); may review
and comment on general permits, authorization under general permits,
and individual permit applications issued by Tribes, States, or the
Corps; may prohibit, deny, or restrict the use of any defined area as a
disposal site (section 404(c)); and may elevate Corps issued permits
for resolution (section 404(q)).
2. Scope of Tribal and State CWA Section 404(g) Programs
When Congress enacted the CWA in 1972, the Corps had long been
regulating ``navigable waters of the United States'' as defined under
the Rivers and Harbors Act of 1899 (RHA). The CWA defined ``navigable
waters'' to mean ``the waters of the United States, including the
territorial seas.'' 33 U.S.C. 1362(7). The Corps' initial post-CWA
regulations treated the two jurisdictional terms under the two
different statutes interchangeably. 39 FR 12115, 12119 (April 3, 1974).
In 1975, the U.S. District Court for the District of Columbia found
that ``waters of the United States'' under the CWA exceeds the scope of
jurisdiction under the RHA and ordered the Corps to adopt new
regulations ``clearly recognizing the full regulatory mandate of the
Water Act.'' Nat. Res. Def. Council, Inc. v. Callaway, 392 F. Supp.
685, 686 (D.D.C. 1975).
In July 1975, the Corps issued new regulations expanding the
section 404 program in phases to cover all waters of the United States,
in compliance with the court's order. 40 FR 31320 (July 25, 1975).
Phase I, which was effective immediately, regulated discharges of
dredged or fill material into coastal waters or inland navigable waters
of the United States and wetlands contiguous or adjacent to those
waters. Phase II, effective on July 1, 1976, addressed discharges of
dredged or fill material into primary tributaries and contiguous or
adjacent wetlands, as well as lakes. Phase III, effective after July 1,
1977, addressed discharges of dredged material or fill material into
``any navigable water [including intrastate lakes, rivers and streams .
. .]'' Id. at 31326. The intent of the phased approach was to provide
time for the Corps to increase staffing and resources to implement the
expanded jurisdiction and workload. Id. at 31321 (``[i]n view of man-
power and budgetary constraints it is necessary that this program be
phased in over a two year period.'').
[[Page 103457]]
Thus, the phases did not mean all of the waters in the final regulation
were not waters of the United States, but rather reflected when the
Corps would have capacity to begin regulating activities within each
type of jurisdictional water.
Some in Congress were concerned about breadth of the new
interpretation of ``waters of the United States'' under the Corps' CWA
dredged and fill regulatory program. In 1976, the House of
Representatives passed H.R. 9560, which would have redefined the CWA
term ``navigable waters'' specifically for the section 404 program (but
not the rest of the CWA) as follows:
The term ``navigable waters'' as used in this section shall mean
all waters which are presently used, or are susceptible to use in
their natural condition or by reasonable improvement as a means to
transport interstate or foreign commerce shoreward to their ordinary
high water mark, including all waters which are subject to the ebb
and flow of the tide shoreward to their mean high water mark (mean
higher high water mark on the west coast).
H.R. Rep. No. 94-1107, at 63 (1976). The House Committee explained
that the new definition would mirror the longstanding RHA section 10
definition of ``navigable waters of the United States,'' except that it
would omit the ``historical test'' of navigability. Id. at 19. The
House thought that discharges of dredged or fill material occurring in
``waters other than navigable waters of the United States . . . are
more appropriately and more effectively subject to regulation by the
States.'' Id. at 22.
The Senate disagreed. It declined to redefine ``navigable waters''
for purposes of the section 404 program and the House bill was not
enacted into law. Instead, the Senate addressed the desire for State
control by passing a bill allowing States to assume section 404
permitting authority, subject to EPA approval, in Phase II and III
waters (as defined in the Corps' 1975 regulations quoted above). S.
Rep. No. 95-370, at 75 (1977).\12\ After assumption, the Corps would
retain section 404 permitting authority in Phase I waters. This general
approach was codified in the final bill, H.R. 3199, referred to as the
1977 CWA Amendments: it did not change the definition of ``navigable
waters'' for the section 404 program, but it allowed States to assume
permitting authority in ``phase 2 and 3 waters after the approval of a
program by [EPA].'' H.R. Rep. No. 95-830, at 101 (1977).\13\ The final
amendments included a parenthetical phrase in section 404(g)(1) that
defined Corps-retained waters using the same language that the House
Committee had used in its effort to limit the Corps' jurisdiction,
other than waters that were historically used as a means to transport
interstate or foreign commerce but no longer do so, and with the
addition of ``wetlands adjacent thereto.'' H.R. Rep. No. 95-830, at 39.
The preamble to the Corps' 1977 regulations described Corps-retained
waters under section 404(g)(1) as ``waters already being regulated by
the USACE,'' i.e., those waters the Corps regulated under section 10 of
the RHA, ``plus all adjacent wetlands to these waters.'' 42 FR 37122,
37124 (July 19, 1977). The legislative history suggests that the Senate
expected widespread assumption of the section 404 program, leaving the
Corps to regulate only RHA section 10 waters that are currently used as
a means to transport interstate or foreign commerce, and adjacent
wetlands. S. Rep. No. 95-370, at 77-78, reprinted in 4 Legis. History
1977, at 710-11; see 33 U.S.C. 1344(g)(1).
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\12\ The Senate Report is reprinted in Comm. On Env't & Publ.
Works, 95th Cong., 4 A Legislative History of the Clean Water Act of
1977 (Legis. History) at 635, 708 (October 1978).
\13\ The House Report is reprinted in 3 Legis. History 1977, at
185, 285.
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3. Overview of CWA Section 404(g) Statutory Requirements for Program
Administration and Implementation
Congress laid out general procedures for Tribal \14\ and State
submissions and EPA's approval, upon which EPA has further elaborated
in regulation, as discussed in section III.A.4 of this preamble below.
Pursuant to section 404(g), a Tribe or State seeking to assume the
section 404 program must submit to the EPA Administrator a full and
complete description of the proposed program and a statement from the
attorney general (or attorney for Tribal or State agencies that have
independent legal counsel) that it has adequate authority to establish
and carry out the proposed program under Tribal or State law. 33 U.S.C.
1344(g)(1). The Administrator has up to ten days after the receipt of
the program description and attorney general statement to provide
copies to the Secretary of the Army and Secretary of the Interior
(acting through the Director of the United States Fish and Wildlife
Service), who in turn have up to 90 days from the Administrator's
receipt of a complete program description and attorney general
statement to provide comments to the Administrator.\15\ Id. at
1344(g)(2)-(3).
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\14\ The 1987 amendments to the CWA added section 518, which
authorizes EPA to treat eligible Indian Tribes in a manner similar
to States for a variety of purposes, including administering each of
the principal CWA regulatory programs such as CWA section 404. 33
U.S.C. 1377(e).
\15\ Per the regulations, a copy is also provided to the
National Marine Fisheries Service. See 40 CFR 233.15(d).
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Section 404(h) of the Act identifies eight authorities EPA must
ensure a Tribe or State has prior to approving a request to assume and
administer a section 404 program. Id. at 1344(h)(1)(A)-(H). First, a
Tribe or State must have the authority to issue permits that apply and
assure compliance with the requirements of section 404 (including but
not limited to the CWA section 404(b)(1) Guidelines); issue permits for
a set duration which cannot exceed five years; and terminate or modify
an issued permit. Id. at 1344(h)(1)(A). Second, the Tribe or State must
have the authority to inspect, monitor, enter and require reports in
association with issued permits to the same extent as required under
section 1318 of the Act. Id. at 1344(h)(1)(B). Third, the Tribe or
State must have the authority to provide public notice, provide an
opportunity to comment on proposed permits, and provide an opportunity
for a public hearing. Id. at 1344(h)(1)(C). Fourth, the Tribe or State
must have authority to assure EPA receives notice and a copy of each
application (unless review is waived). Id. at 1344(h)(1)(D). Fifth, the
Tribe or State must have authority to provide notice to Tribes and
States whose waters may be affected by the permit and for the affected
Tribe or State to provide written recommendations. Id. at
1344(h)(1)(E). Sixth, a Tribe or State must also have the authority to
assure no permit will be issued if it would substantially impede
anchorage and navigation of the navigable waters. Id. at 1344(h)(1)(F).
Seventh, the Tribe or State must have authority to abate violations of
permits and the program--including both civil and criminal penalties as
well as other ways and means of enforcement. Id. at 1344(h)(1)(G). And
lastly, the Tribe or State must have authority to assure continued
coordination with Federal and Federal-State water-related planning and
review processes. Id. at 1344(h)(1)(H).
If the EPA Administrator determines that a Tribe or State that has
submitted a program request under section 404(g)(1) has the authority
set forth in section 404(h)(1) of the CWA, then the Administrator
``shall approve'' the Tribe's or State's request to assume the section
404 program. Id. at 1344(h)(2). If the Administrator fails to make a
determination with respect to any
[[Page 103458]]
program request submitted by a Tribe or State within 120 days after the
date of receipt of the request, the program shall be deemed approved.
Id. at 1344(h)(3). The Act also provides for EPA to withdraw assumed
programs that are not administered in accordance with the requirements
of the Act. Id. at 1344(i).
A Tribe or State assuming the section 404 program must have
authority under Tribal or State law to assume, administer, and enforce
the program; EPA's approval does not delegate authority to issue a
permit on behalf of the Federal Government. By assuming administration
of the section 404 program under section 404(g), an eligible Tribe or
State takes on the primary responsibility of permitting discharges of
dredged and/or fill material into certain waters of the United States
within its jurisdiction.\16\ For section 404 permitting purposes, the
Tribe or State must exercise jurisdiction over all assumed waters
subject to the CWA except those waters to be retained by the Corps. 33
U.S.C. 1344(g). The Corps retains CWA section 404 permitting authority
for all non-assumed waters as well as RHA section 10 permitting
authority in all waters subject to RHA section 10. For example, States
generally do not assume CWA section 404 authority over Tribal waters or
waters in lands of exclusive Federal jurisdiction. Tribal or State
programs can also regulate waters that are retained by the Corps, or
waters that are not waters of the United States, under Tribal or State
law, but the Corps will remain the CWA 404 permitting authority for
retained waters.
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\16\ Legislative history makes clear that Congress did not
intend Tribal or State assumption under section 404(g) to be a
delegation of the permitting program. H.R. Rep. No. 95-830 at 104
(1977). (``The Conference substitute provides for the administration
by a State of its own permit program for the regulation of the
discharge of dredged or fill material. . . . The conferees wish to
emphasize that such a State program is one which is established
under State law and which functions in lieu of the Federal program.
It is not a delegation of Federal authority.'') The conference
report is available at <a href="https://www.epa.gov/sites/production/files/2015-11/documents/1977_conf_rept.pdf">https://www.epa.gov/sites/production/files/2015-11/documents/1977_conf_rept.pdf</a>.
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4. CWA Section 404 Tribal and State Program Regulations
In 1980, in response to the 1977 CWA Amendments, EPA promulgated
regulations to establish procedures and criteria to approve or
disapprove State programs under section 404(g) and monitor State
programs after approval. 45 FR 33290 (May 19, 1980).\17\ On June 6,
1988, EPA revised these procedures and criteria used in approving,
reviewing, and withdrawing approval of section 404 State programs and
codified them at 40 CFR part 233. 53 FR 20764 (June 6, 1988). The 1988
regulations provided States with flexibility in program design and
administration while still meeting the requirements and objectives of
the CWA. They also incorporated section 404 program definitions and
section 404(f)(1) exemptions at 40 CFR part 232.\18\
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\17\ In 1983, EPA reorganized the presentation of the permit
programs in the CFR, including moving the regulations for 404 State
programs to their current location at 40 CFR part 233, but made no
substantive changes to any of the affected sections. 48 FR 14146,
14208 (April 1, 1983).
\18\ The 1988 regulations essentially recodified at 40 CFR part
232 the section 404 program definitions and section 404(f)(1) permit
exemptions in a new, separate part to eliminate any confusion about
their applicability. The section 404 program definitions at 40 CFR
part 232 apply to both the Federal and State administered programs.
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The regulations at 40 CFR part 233 described the assuming Tribe's
or State's program requirements, EPA responsibilities, approval and
oversight of assumed programs, and requirements for review,
modification, and withdrawal of Tribal and State programs (as
necessary). Subpart B of the 404 State Program Regulations sets forth
the elements of program approval, including the program description,
the Attorney General's statement, the Memorandum of Agreement between
the Tribe or State and EPA, and the Memorandum of Agreement between the
Tribe or State and the Secretary. It also establishes procedures for
approving and revising Tribal or State programs. 40 CFR 233.10 through
233.16. Subpart C addresses Permit Requirements, subpart D lays out
Program Operation Requirements, subpart E establishes requirements for
Compliance Evaluation and Enforcement, and subpart F discusses Federal
Oversight authority. Id. at 233.20-53. In subpart G, EPA lays out
requirements and procedures for Tribal assumption, id. at 233.60-62,
and subpart H codifies EPA's approval of Michigan and New Jersey's
programs and incorporates certain State laws by reference. Id. at
233.70-71. These regulations implement key principles of Tribal and
State assumption, including that an assumed program must be consistent
with and no less stringent than the Act and implementing regulations,
allow for public participation, ensure consistency with the CWA
404(b)(1) Guidelines, and have adequate enforcement authority.
Since 1988, the Agency has made several targeted revisions and
additions to the CWA section 404 Tribal and State program regulations
at 40 CFR part 233. On February 13, 1992, EPA finalized a rule amending
the regulations to reflect the newly created Environmental Appeals
Board in Agency adjudications, including revising section 233.53
related to withdrawal. 57 FR 5320 (February 13, 1992). In 1993, the
Agency added subpart G to 40 CFR part 233 pursuant to CWA section 518,
which required EPA to promulgate regulations specifying how Indian
Tribes may qualify for treatment in a similar manner as a State (TAS)
for purposes of assuming the section 404 program. 58 FR 8172 (February
11, 1993).\19\ The 1993 rule also revised 40 CFR part 232 by adding new
definitions for ``Federal Indian reservation,'' ``Indian Tribe,'' and
``States.'' Id. The Agency further revised the subpart G regulations
regarding Tribal eligibility at sections 233.60, 233.61, and 233.62 in
1994 to improve and simplify the process for Tribes to obtain EPA
approval to assume the section 404 program. 59 FR 64339, 64345
(December 14, 1994). Under that rule, known as the Simplification Rule,
a Tribe does not need to prequalify for TAS before requesting to assume
the section 404 program. Instead, it can establish its TAS eligibility
at the program approval stage, subject to EPA notice and comment
procedures for State program approval. Id. at 64339-40. A 2005 rule on
cross-media electronic reporting added section 233.39 on electronic
reporting. 70 FR 59848 (October 13, 2005). EPA also codified the
approval of the Michigan program on October 2, 1984 (49 FR 38947) and
the New Jersey program on March 2, 1994 (59 FR 9933) in subpart H of 40
CFR part 233.
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\19\ When the term ``State Program'' is used in the regulations,
it refers to an approved program run by any of the entities
described in the definition of ``State,'' including Tribes. 58 FR
8183 (``State means any of the 50 States, the District of Columbia,
Guam, the Commonwealth of Puerto Rico, the Virgin Islands, American
Samoa, the Commonwealth of the Northern Mariana Islands, the Trust
Territory of the Pacific Islands, or an Indian Tribe, as defined in
this part, which meet the requirements of Sec. 233.60. For purposes
of this part, the word State also includes any interstate agency
requesting program approval or administering an approved
program.'').
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B. Need for Rulemaking Revisions
Although nearly half of the States and a few Tribes have expressed
some level of interest to EPA over time in assuming the Federal section
404 dredged and fill permit program, only two States currently
administer the program.\20\ In 2010 and 2011 letters to EPA, the
Environmental Council of States
[[Page 103459]]
recommended further steps to encourage Tribal and State assumption of
the program, remove barriers to assumption, and improve the efficiency
of the program.\21\ While some Tribes and States have considered
assumption, they have expressed to EPA the need for further
clarification regarding the regulations, including which waters a Tribe
or State may assume and which waters the Corps retains. For example, in
a 2014 letter to then-Acting Assistant Administrator Nancy Stoner,\22\
State associations asked EPA to clarify the scope of assumable waters,
citing uncertainty on this issue as a barrier to assuming the program.
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\20\ Florida obtained EPA's approval to assume the CWA section
404 program on December 17, 2020. On February 15, 2024, the U.S.
District Court for the District of Columbia vacated EPA's approval
of Florida's program. Center for Biological Diversity v. Regan, No.
21-119, 2024 WL 655368 (D.D.C.). An appeal of the district court's
decision is pending. See No. 24-5101 (D.C. Cir.).
\21\ Letter from Thomas W. Easterly, Chair, Water Committee, The
Environmental Council of States, Lucy C. Edmonson, Vice Chair, The
Environmental Council of States, to Peter Silva, Assistant
Administrator, Office of Water, U.S. Environmental Protection
Agency. February 26, 2010; Letter from R. Steven Brown, Executive
Director, The Environmental Council of States, to Nancy K. Stoner,
Acting Assistant Administrator, Office of Water, U.S. Environmental
Protection Agency. July 22, 2011. Subject: Progress Report and
Recommended Actions to Further Clarify Section 404 Assumption
Application Requirements and Implementation by Tribes and States.
\22\ Letter from Alexandria Dapolito Dunn, ECOS, Sean Rolland,
ACWA, and Jeanne Christie, ASWM, to Nancy Stoner, Acting Assistant
Administrator, Office of Water, U.S. Environmental Protection
Agency. April 30, 2014.
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In 2015, EPA formed the Assumable Waters Subcommittee under the
auspices of the National Advisory Council for Environmental Policy and
Technology (NACEPT) to provide advice and develop recommendations as to
how EPA could best clarify the scope of waters over which a Tribe or
State may assume CWA section 404 permitting responsibilities, and the
scope of waters over which the Corps retains CWA section 404 permitting
responsibilities. The Subcommittee included 22 members representing
States, Tribes, Federal agencies, industry, environmental groups,
Tribal and State associations, and academia. The Subcommittee presented
its recommendations to NACEPT on May 10, 2017. NACEPT endorsed the
Subcommittee report in its entirety and submitted it to former
Administrator Scott Pruitt on June 2, 2017, with additional notations
and recommendations, such as a preference for clarity through
regulation. The ``Final Report of the Assumable Waters Subcommittee,
May 2017,'' recommended that EPA develop policies, guidance, and
regulations to clarify assumed and retained waters.\23\
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\23\ Available at <a href="https://www.epa.gov/cwa-404/submission-assumable-waters-subcommittees-final-report">https://www.epa.gov/cwa-404/submission-assumable-waters-subcommittees-final-report</a> and in the docket for
the final rule, Docket ID No. EPA-HQ-OW-2020-0276.
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In addition to the needs identified by Tribes and States, the
Agency also recognized the need for other revisions, including several
technical revisions to the regulations. For example, while the 1988
regulations recognized that the part 124 regulations do not apply to
Tribal or State section 404 programs, the Agency did not make
conforming revisions. The regulation also required other revisions
throughout 40 CFR part 233 to update cross-references, ensure
consistent use of terminology, and facilitate efficient program
operation.
On June 11, 2018, the Agency published its 2018 Spring Unified
Agenda of Regulatory and Deregulatory Actions \24\ announcing the
Agency was considering a rulemaking to provide the first comprehensive
revisions to the section 404 Tribal and State program regulations since
1988.
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\24\ Available at <a href="https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201804&RIN=2040-AF83">https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201804&RIN=2040-AF83</a>.
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In September 2018, the Agency sent letters to Tribal leaders and
State governors announcing opportunities for Tribes and States to
provide input on areas of the regulation that could benefit from
additional clarity and revision. Tribes and States provided input on
various topics at Tribal and State engagement sessions, including
requests for flexibility in assuming and administering the section 404
program and clarification on retained and assumed waters. See section
V.E and F of this preamble for further discussion on Tribal and State
engagement in this rule effort. In 2023, EPA held informational
webinars for States on January 24 and for Tribes on January 2-5 and
January 31. At these webinars, EPA provided Tribes and States with an
update on the rulemaking effort and an overview of previously received
Tribal and State input to EPA. EPA did not seek additional input from
Tribes or States at the January 2023 webinars.
The Agency announced a proposed rule to revise the CWA section 404
Tribal and State program regulations on July 19, 2023; the Agency also
posted a draft of the proposed rule on its website. On August 14, 2023,
the Agency published the proposed rulemaking in the Federal Register,
88 FR 55276, which initiated a 60-day public comment period that lasted
through October 13, 2023. EPA held a virtual public hearing on
September 6, 2023, and hosted input sessions for interested State and
Tribal parties throughout August 2023, including one State input
session on August 24, 2023, and two Tribal input sessions on August 15
and 30, 2023. In finalizing the proposed rule, the Agency reviewed 44
comments received on the proposed rulemaking, in addition to input
received during pre-proposal, at the public hearing, and at the Tribal
and State input sessions. Commenters provided a range of feedback on
the proposal. The Agency discusses comments received and responses in
the applicable sections of this preamble to the rule. A complete
response to comments document is available in the docket for the rule
(Docket ID No. EPA-HQ-OW-2020-0276).
The rule addresses many of the issues raised by Tribes and States
as challenges to assuming section 404, as well as drawing from EPA's
experience working with Tribes and States pursuing assumption and in
program oversight.
IV. Final Rule
EPA is finalizing revisions to the CWA section 404 Tribal and State
program regulations at 40 CFR part 233 to provide additional clarity on
conflict of interest prohibitions, program approval procedures and
requirements, permit requirements, program operations, compliance
evaluation and enforcement, Federal oversight, and Tribal provisions.
EPA is also finalizing revisions to the criminal enforcement
requirements in 40 CFR 123.27 and 40 CFR 233.41, which apply to Tribes
and States that administer the CWA section 402 National Pollutant
Discharge Elimination System (NPDES) permitting program as well as the
section 404 program.
This section of this preamble addresses changes to seven sub-
sections in the existing subpart structure of the 40 CFR part 233
regulations: Subpart A--General, Subpart B--Program Approval, Subpart
C--Permit Requirements, Subpart D--Program Operations, Subpart E--
Compliance Evaluation and Enforcement, Subpart F--Federal Oversight,
and Subpart G--Eligible Indian Tribes. Each sub-section contains topics
covered under that subpart of the regulation. Within each topic, this
preamble includes (1) an overview of the topic and its relevant final
rule provision(s) and (2) a summary of the Agency's final rule
rationale and public comments. Where applicable, some topics also
address implementation considerations for the final rule provisions.
This preamble is structured in a manner intended to clearly convey the
relevant changes to the regulatory text. Following this preamble
discussion on the final rule provisions, this section of this preamble
also includes four sub-sections that discuss the impact of the final
rule on existing programs, technical revisions,
[[Page 103460]]
incorporation by reference, and severability.
A. General
1. Conflict of Interest
a. Overview and What the Agency Is Finalizing
The Agency's 1988 regulations for the section 404 Tribal and State
program provided a general prohibition that public officers or
employees with direct personal or pecuniary interests in a decision
must make the interest known and not participate in such decision. In
the proposal to this rule, the Agency proposed to clarify to whom the
provision applies. The proposal specified that individuals who exercise
responsibilities over section 404 permitting and programs may not be
involved in any matters in which they have a direct personal or
pecuniary interest. The proposal also clarified that this provision
applies to decisions by the Tribal or State permitting agency as well
as any entity that reviews decisions of the agency.
After reviewing public comments, the Agency is finalizing the
revisions to the conflict of interest provision as proposed. EPA is
also affirming the importance of ensuring public confidence when a
Tribe or State issues a permit to one of its agencies or departments,
though has determined that codifying specific processes or requirements
to address self-issuance of permits by assuming Tribes and States is
unnecessary. This provision does not address or affect Federal or State
court review of permitting actions.
b. Summary of Final Rule Rationale and Public Comment
CWA section 404 does not require EPA to establish guidelines on
conflicts of interest for Tribal or State programs. In contrast, the
CWA requires EPA to establish guidelines for section 402 State programs
that prohibit any entity which approves permit applications from having
members who receive, or have during the previous two years received, a
significant portion of their income from permit holders or applicants
for a permit. 33 U.S.C. 1314(i)(D). EPA's section 402 regulations,
accordingly, provide that ``State NPDES programs shall ensure that any
board or body which approves all or portions of permits shall not
include as a member any person who receives, or has during the previous
2 years received, a significant portion of income directly or
indirectly from permit holders or applicants for a permit.'' 40 CFR
123.25(c). The provision then defines the terms ``board or body,''
``significant portion of income,'' ``permit holders or applicants for a
permit,'' and ``income.'' See id. at 123.25(c)(1).
In 1984, EPA proposed to codify the section 402 provision in its
revisions to the section 404 Tribal and State program regulations. 49
FR 39012 (October 2, 1984). However, EPA ultimately decided not to hold
Tribe and State section 404 programs to the same conflict of interest
standards as State NPDES programs because of practical differences
between the two programs. 53 FR 20764, 20766 (June 6, 1988). At that
time, EPA noted that NPDES discharges are usually long-term discharges,
often from certain specific types of industrial or municipal
facilities. Id. In contrast, discharges authorized by section 404
typically tend to be one-time discharges and generated by a broader
range of dischargers than NPDES, ``ranging from private citizens to
large corporations, from small fills for boat docks or erosion
prevention to major development projects.'' Id. EPA concluded that an
absolute ban on anyone with a financial interest in a permit from
serving on a board that approves permits is likely to be more difficult
to comply with under the section 404 program because so many people
would be considered to be financially interested in section 404 permits
and therefore eliminated from the pool of potential board members. Id.
Instead, EPA provided a general prohibition that public officers or
employees with such interests in a decision shall make the interest
known and not participate in such decision. Id.
Similar distinctions between the sections 402 and 404 programs
apply today. For example, if an individual needed a section 404 permit
for the discharge of fill material into one lake to install a boat ramp
at one point in time, EPA does not think it necessary to permanently
preclude that individual from participating in any section 404-related
decision-making. The Agency proposed to revise the section 404 conflict
of interest provision, however, to further clarify to whom the
provision applies. The purpose of this clarification was to ensure that
individuals who exercise responsibilities over section 404 permitting
and programs are not involved in any matters in which they have a
direct personal or pecuniary interest. The proposal also clarified that
this provision applies to any section 404-related decisions by the
agency as well as any entity that reviews these decisions. For example,
if a Tribe or State has established boards or other bodies to advise,
oversee, or review appeals of agency decisions, members of such boards
would be subject to this conflict of interest provision even if they
are not officers or employees of the Tribe or State agency.
Some commenters expressed concerns that the change in the conflict
of interest provision weakens or injects uncertainty into the section
404 assumption process. A commenter argued that the language is too
``vague and [its] broad articulation makes it unclear to whom, exactly,
this provision applies.'' EPA disagrees; as explained above, the final
rule more clearly articulates who must provide notification of
potential conflicts of interest and recuse themselves from any section
404 program decision for which they have a conflict of interest, not
just decisions that exceed a monetary threshold. In EPA's view, this
new language is clear and does not create uncertainty; EPA presumes
that any person participating in a matter subject to a section 404
decision by the agency will be aware that they are doing so, and they
should also be aware if they have personal or pecuniary interests in
that matter. If a person is uncertain as to whether the conflict of
interest provision applies, they can always seek guidance from the
Tribal or State agency or from EPA.
With respect to Tribal and State permits being issued for Tribal or
State projects, the Agency has determined that distinct procedures to
address these types of permits are unnecessary, as all permits must
comply with the section 404(b)(1) Guidelines and other requirements of
CWA section 404. The CWA does not distinguish between a Tribe or State
with an approved program as a permittee and other permittees. Most
State permitting entities have experience issuing permits to other
agencies within that respective State. For example, States that
implement the section 402 program routinely issue NPDES permits to
various departments and agencies within that State.\25\ To the extent
the courts have considered this matter, they have found no legal
impediment to issuance of an NPDES permit by an authorized State to
itself. See, e.g., West Virginia Highlands Conservancy, Inc. v.
Huffman, 625 F.3d 159 (4th Cir. 2010). EPA is unaware of any
significant concerns arising from the issuance of NPDES permits by
States to other agencies or departments within that respective State.
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\25\ One territory, the Virgin Islands, and all states except
Massachusetts, New Hampshire, New Mexico, are authorized to
implement at least some portion of the NPDES program. See <a href="https://www.epa.gov/npdes/npdes-state-program-information">https://www.epa.gov/npdes/npdes-state-program-information</a>.
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[[Page 103461]]
Likewise, to EPA's knowledge, the agencies in Michigan and New
Jersey have been issuing section 404 permits to authorize the agencies'
own activities and activities of other agencies within those States for
many years without encountering any significant issues. The Florida
Department of Environmental Protection did the same between December
2020 and February 2024 without significant conflict of interest issues,
to EPA's knowledge. A common example of self-issuance by one State
agency to another is when the State water quality agency issues a
permit to the State department of transportation for aquatic resource
impacts associated with the construction of a State road. Similarly,
the Corps issues CWA section 404 permits to other Federal agencies, and
EPA does not have--nor did commenters provide--any information that
raises concerns on the part of EPA about the integrity and neutrality
of these intra-governmental permitting processes.
The Agency did not propose any regulatory text on the self-issuance
of permits. The Agency received one comment on this issue, expressing
concern that conflicts of interest are presented when private
developers or State agencies provide funding to the permitting
agencies, which in turn allow the permitting agency to employ permit
processers that will handle the permit applications submitted by the
same private developers or State agencies. In effect, the commenter
stated, the private developer or non-permitting State agency becomes
the employer of their permit processor. This rule does require that all
permits must comply with the section 404(b)(1) Guidelines and other
requirements of CWA section 404. Tribes and States that assume the CWA
section 404 program must also follow public notice and comment
procedures for permit applications, thereby ensuring transparency and
providing the public with an opportunity to submit input to address any
concerns. Additionally, the CWA provides EPA with oversight authority
of Tribes' and States' assumed section 404 permits, allowing Federal
review of assumed programs in general and applications for particular
proposed permits, including self-issued permits. To the extent EPA has
concerns that permits are not compliant, whether based on its own
analysis or based on comments from other agencies or interested
parties, EPA may object to the issuance of permits.
Tribes, States, and EPA have the discretion to implement additional
measures if, in a particular circumstance, they desire to further
ensure public confidence that certain permits are consistent with the
CWA and not the subject of special considerations. For example, an
assuming Tribe or State could separate its permit-issuing function from
departments or offices that apply for and receive permits or expand
public participation requirements for self-issued permits. EPA and an
assuming Tribe or State could also agree in the Memorandum of Agreement
that EPA would exercise heightened oversight (i.e., would not waive
review) over permits issued by and to Tribal or State agencies or
departments. EPA encourages Tribes and States to implement measures to
ensure transparency in the permitting process based on the specific
structures and procedures of their agencies. For all of these reasons,
EPA does not find that it is necessary to include in this regulation
any additional processes or requirements to address self-issuance of
permits by assuming Tribes and States.
2. Compliance With the CWA 404(b)(1) Guidelines
a. Overview and What the Agency Is Finalizing
The CWA section 404(b)(1) Guidelines are the substantive
environmental criteria used to evaluate discharges of dredged and/or
fill material under CWA section 404. EPA may approve a Tribal or State
request for assumption only if EPA determines, among other things, that
the Tribe or State has authority to issue permits that comply with the
CWA 404(b)(1) Guidelines. 33 U.S.C. 1344(h)(1)(A)(i). The regulations
already require that CWA section 404 permits issued by an assuming
Tribe or State must comply with the CWA 404(b)(1) Guidelines. However,
stakeholders have requested clarity regarding the way in which a Tribe
or State wishing to assume the CWA section 404 program can demonstrate
that it has authority to issue permits that ``apply, and assure
compliance with'' the CWA 404(b)(1) Guidelines. See id. EPA did not
propose any new regulatory text on compliance with the CWA 404(b)(1)
Guidelines, because the Agency did not want to unintentionally
constrain how Tribes and States can demonstrate their authority. But in
response to stakeholder requests, EPA discussed various approaches that
Tribes and States can undertake to demonstrate that they have
sufficient authority to issue permits that apply and assure compliance
with the CWA 404(b)(1) Guidelines in this preamble to the proposed
rule. After reviewing public comments, the Agency is finalizing its
proposed approach.
b. Summary of Final Rule Rationale and Public Comment
Pursuant to CWA section 404(h)(1)(A)(i), EPA may approve a Tribal
or State request for assumption only if EPA determines, among other
things, that the Tribe or State has authority ``[t]o issue permits
which--(i) apply, and assure compliance with, any applicable
requirements of this section, including, but not limited to, the
guidelines established under subsection [404](b)(1). . . .'' The CWA
404(b)(1) Guidelines also direct that ``no discharge of dredged or fill
material shall be permitted'' if there is a less environmentally
damaging practicable alternative, so long as the alternative does not
have other significant adverse environmental consequences (40 CFR
230.10(a)); if it would cause or contribute to violations of applicable
water quality standards taking into account disposal site dilution and
dispersion (40 CFR 230.10(b)(1)); if it would violate any applicable
toxic effluent standard or prohibition (40 CFR 230.10(b)(2)); if it
would cause or contribute to significant degradation of waters of the
United States (40 CFR 230.10(c)); or if it would jeopardize the
continued existence of listed endangered or threatened species under
the Endangered Species Act of 1973 or result in the likelihood of the
destruction or adverse modification of designated critical habitat (40
CFR 230.10(b)(3)); or unless appropriate and practicable steps have
been taken to minimize potential impacts of the discharge on the
aquatic ecosystem. See 40 CFR 230 Subpart H; see also section IV.B.4 of
this preamble for further discussion on mitigation.
Consistent with CWA section 404(h)(1)(A)(i), the section 404 Tribal
and State program regulations require that assuming Tribes and States
may not impose conditions less stringent than those required under
Federal law (40 CFR 233.1(d)); that Tribes and States may not issue
permits that do not comply with the requirements of the Act or this
part of the regulations, including the CWA 404(b)(1) Guidelines (40 CFR
233.20(a)); that ``[f]or each permit the Director shall establish
conditions which assure compliance with all applicable statutory and
regulatory requirements, including the 404(b)(1) Guidelines . . .'' (40
CFR 233.23(a)); and that ``The Director will review all applications
for compliance with the 404(b)(1) Guidelines and/or equivalent State
environmental criteria as well as any other applicable State laws or
[[Page 103462]]
regulations'' (40 CFR 233.34(a)). Because the regulations already
require that CWA section 404 permits issued by an assuming Tribe or
State must comply with the CWA 404(b)(1) Guidelines, EPA did not
propose adding to the regulatory text.
Several commenters asserted that the only way to ensure that Tribes
and States have sufficient authority to issue permits that apply and
assure compliance with the CWA 404(b)(1) Guidelines is to require
Tribes and States to adopt the CWA 404(b)(1) Guidelines verbatim or
incorporate them by reference into the Tribal or State program. To the
extent these commenters assert that adoption or incorporation is the
most straightforward way for a Tribe or State to demonstrate sufficient
authority, EPA agrees. However, while a Tribe or State may choose to
adopt verbatim or incorporate into their programs by reference the CWA
404(b)(1) Guidelines or other Federal requirements, nothing in the CWA
requires that they do so. See 49 FR 39012, 39015 (October 2, 1984); cf.
40 CFR 123.25(a) Note.
Requiring Tribes and States to adopt or incorporate the CWA
404(b)(1) Guidelines would complicate efforts by Tribes and States to
impose more stringent requirements as part of their CWA section 404
programs. By not requiring that Tribes and States adopt verbatim or
incorporate by reference the CWA 404(b)(1) Guidelines, Congress allowed
leeway for Tribes and States to craft a Tribal or State program
consistent with circumstances specific to that Tribe or State, so long
as their permits will assure compliance with the CWA 404(b)(1)
Guidelines at least as stringently as permits issued by the Corps.
This flexibility is consistent with the nature of the CWA 404(b)(1)
Guidelines themselves. Recognizing that a CWA section 404 permit may be
required for a variety of discharges into a wide range of aquatic
ecosystems, EPA explained in promulgating the CWA 404(b)(1) Guidelines
that they are intended to provide ``a certain amount of flexibility,''
consisting of tools for evaluating proposed discharges, rather than
numeric standards. 45 FR 85336, 85336 (December 24, 1980). EPA further
explained in this preamble to the Guidelines: ``[c]haracteristics of
waters of the United States vary greatly, both from region to region
and within a region. . . As a result, the Guidelines concentrate on
specifying the tools to be used in evaluating and testing the impact of
dredged or fill material discharges on waters of the United States
rather than on simply listing numerical pass-fail points.'' See id.;
see also 40 CFR 230.6.
EPA is not adding further regulatory text addressing how Tribes and
States may ensure compliance with the CWA 404(b)(1) Guidelines. The
section 404 Tribal and State program regulations as well as CWA section
404(h)(1)(A)(i) already require that Tribal and State permits and
environmental review criteria apply and assure compliance with the CWA
404(b)(1) Guidelines while allowing for flexibility as to how Tribes
and States wishing to assume implementation of the CWA section 404
program can demonstrate that they have sufficient authority to apply
and assure compliance with the CWA 404(b)(1) Guidelines.
Tribes and States can choose to adopt verbatim or incorporate by
reference the CWA 404(b)(1) Guidelines. To the extent a Tribe or State
wishing to assume the CWA section 404 program desires to incorporate
more stringent requirements or otherwise desires to craft a program
more tailored to that Tribe's or State's circumstances, the Tribe or
State should demonstrate clearly in its program description that it has
sufficient authority to apply and assure compliance with the CWA
404(b)(1) Guidelines. For example, a Tribe or State could provide a
crosswalk between the Tribal or State program and the CWA 404(b)(1)
Guidelines or a similar written analysis of the Tribal or State program
authority, which it could include in its request to assume the program.
A Tribe or State also could develop and include with its program
submission a permit checklist or other documentation to be used in
connection with each permit decision to document on a case-by-case
basis how each permit decision applies the CWA 404(b)(1) Guidelines.
Where a Tribe's or State's request for assumption relies upon an
already established and ongoing dredged and fill permit program under
Tribal or State law, that Tribe or State could supplement its program
description by demonstrating that the terms and conditions of permits
for discharges into waters of the United States that were issued
pursuant to the preexisting Tribal or State program complied with the
CWA 404(b)(1) Guidelines comparably with or more stringently than
Federal permits issued by the Corps for the same discharge.
Several commenters discussed the portion of the preamble to the
proposed rule in which EPA suggested various ways that Tribes and
States could demonstrate authority to issue permits that apply and
assure compliance with the CWA 404(b)(1) Guidelines' prohibition on
authorization of a discharge if the discharge would jeopardize the
continued existence of listed endangered or threatened species under
the Endangered Species Act of 1973 (listed species) or result in the
likelihood of the destruction or adverse modification of designated
critical habitat (40 CFR 230.10(b)(3)). Many of these commenters
asserted that the final rule must ensure that listed species and
critical habitat receive the same protections under a Tribal or State
program as they would if the Corps had processed the permit and engaged
in consultation with the U.S. Fish and Wildlife Service or National
Marine Fisheries Service (the Services) pursuant to section 7 of the
Endangered Species Act (ESA). These commenters proposed various ways of
ensuring protection of listed species and critical habitat, including
requiring the Tribes and States to undertake ESA section 7 consultation
themselves or requiring EPA to consult with the Services on each Tribal
or State permit as part of EPA's oversight. Several commenters asserted
that EPA must consult with the Services prior to approving a Tribal or
State program. A few commenters noted that Tribal and State permittees
must comply with the take provisions of section 10 of the ESA, and one
commenter recommended that EPA continue to pursue an approach similar
to that associated with EPA's approval of Florida's section 404 program
whereby EPA and the U.S. Fish and Wildlife Service engaged in a
programmatic consultation under ESA section 7 resulting in an
incidental take permit covering all permittees in Florida. Other
commenters expressed concerns about the protection afforded listed
species and critical habitat by Florida's or other State section 404
programs.
EPA's approval of Florida's section 404 program is the subject of
ongoing litigation (see Center for Biological Diversity v. Regan, No.
24-5101 (D.C. Cir.), and will not be addressed here. EPA's obligation
to undertake ESA section 7 consultation in connection with its approval
and/or oversight of a Tribal or State CWA section 404 program is beyond
the scope of this rulemaking.
To the extent commenters assert that assuming Tribal and State
programs must incorporate the procedural requirements of the ESA,
issuance of a permit by a Tribe or State pursuant to an assumed program
under CWA section 404(g) is not a Federal action subject to the
procedural requirements of the ESA. See H.R. Rep. No. 95-830 at 104
(1977) (``The conferees wish to emphasize that such a State program is
[[Page 103463]]
one which is established under State law and which functions in lieu of
the Federal program''); see also Chesapeake Bay Foundation v. Virginia
State Water Control Bd., 453 F. Supp. 122 (E.D. Va. 1978).
Although decisions by Tribal and State section 404 programs do not
trigger the Federal consultation process laid out in ESA section 7,
Tribes and States must demonstrate that they have sufficient authority
to issue permits that comply and assure compliance with 40 CFR
230.10(b)(3), which states that ``[no] discharge of dredged or fill
material may be permitted if it . . . [j]eopardizes the continued
existence of [threatened or endangered species listed under the ESA]''
or would adversely modify critical habitat. 40 CFR 230.10(b)(3). A few
commenters asserted that the discussion in the preamble to the proposed
rule regarding how Tribes and States could demonstrate compliance with
this aspect of the CWA 404(b)(1) Guidelines was too generalized and/or
insufficiently prescriptive or protective. On the other hand, one
commenter asserted that EPA should defer to Tribal and State expertise.
The discussion in the preamble to the proposed rule was not intended to
be exhaustive or to provide a checklist. Tribes and States retain
flexibility to tailor their programs consistent with the types of
listed species and critical habitat within their jurisdictions.
EPA recommends that Tribes and States include in the program
submission provisions and procedures to protect listed species and
habitat. EPA recommends that Tribes and States develop a method for
identifying the listed species and areas of designated critical habitat
within their geographic boundaries and for determining whether
federally listed species or critical habitat are present or would be
affected by a particular discharge. Tribes and States also could
develop processes for ensuring that their identification of federally
listed species and designated critical habitat remains up to date as
well as processes to avoid impacts to these resources.
EPA continues to encourage Tribes and States to proactively
coordinate with the relevant Services' regional or field offices when
developing their programs. To the extent that Tribes and States
coordinate with the Services as they develop their programs, such work
would help inform the Services' review opportunity to comment to EPA on
a Tribal or State program submission. See 33 U.S.C. 1344(g)(2) and
1344(h)(1); see also 40 CFR 233.15(d) and (g). Such work would also
facilitate EPA's coordination with the Services on permits for which
EPA has not waived review. See 33 U.S.C. 1344(j).
Several Tribes expressed concern that the preamble to the proposed
rule did not provide sufficient guidance regarding how a Tribe or State
could demonstrate that it has sufficient authority to apply and assure
compliance with subpart F of the CWA 404(b)(1) Guidelines. Pursuant to
subpart F (40 CFR 230.50 through 230.54), the permit issuing authority
should consider potential effects on human use characteristics,
including ``areas designated under Federal and State laws or local
ordinances to be managed for their aesthetic, educational, historical,
recreational, or scientific value,'' when making the factual
determinations and the findings of compliance or non-compliance under
the Guidelines. 40 CFR 230.54(a). These human use considerations
encompass, among other things, uses and values of aquatic resources
that are important to Tribes and local communities. For example,
section 230.51 in subpart F describes considerations regarding
potential impacts of dredged or fill material on recreational and
commercial fisheries, consisting of ``harvestable fish, crustaceans,
shellfish, and other aquatic organisms.'' Id. at 230.51(a). Section
230.52 includes considerations regarding the impact of dredged or fill
material on water-related recreation, including harvesting of resources
and non-consumptive activities such as canoeing on the water. Section
230.53 addresses potential impacts on aesthetic values of aquatic
ecosystems and notes that: ``The discharge of dredged or fill material
can mar the beauty of natural aquatic ecosystems by degrading water
quality, creating distracting disposal sites, including inappropriate
development, encouraging unplanned and incompatible human access, and
by destroying vital elements that contribute to the compositional
harmony or unity, visual distinctiveness, or diversity of an area.''
Id. at 230.53(b). Section 230.54 discusses considerations regarding
``national and historical monuments, national seashores . . . and
similar preserves'' and where the discharge may ``modify the aesthetic,
educational, historical, recreational and/or scientific qualities
thereby reducing or eliminating the uses for which such sites are set
aside and managed.'' Id. at 230.54(b). Collectively or individually,
significantly adverse effects of the discharge of pollutants on these
human uses may contribute to the significant degradation of the waters
of the United States. Id. at 230.10(c).
As with other aspects of the CWA 404(b)(1) Guidelines, Tribes and
States have the option of adopting 40 CFR 230.50 through 230.54, but
they are not required to do so. To demonstrate sufficient authority to
apply and assure compliance with subpart F of the CWA 404(b)(1)
Guidelines, a Tribe or State should include in its program description
its process and permit review criteria for evaluating and addressing
potential permit impacts on historic properties and properties with
cultural significance. Such a process could include any agreements with
and/or procedures for formal or informal coordination and communication
with the State Historic Preservation Officer or Tribal Historic
Preservation Office. The Tribe or State also could develop an agreement
with the relevant State Historic Preservation Officer or Tribal
Historic Preservation Office to establish a process to identify
historic properties that may be impacted by the Tribe's or State's
issuance of section 404 permits and a process for resolving adverse
effects. Such an agreement could include the identification of relevant
parties with an interest in potential impacts on historic properties
(these could correspond to entities that would have a consultative role
under the National Historic Preservation Act regulations), duties and
responsibilities of the identified parties, and a description of the
process to consider any impacts, including the determination and
resolution of adverse effects on historic properties. Such an agreement
could facilitate EPA's review of a Tribal or State permit's impacts on
historic properties, consistent with EPA's oversight of the permits,
for which review has not been waived, and authorized program. See 40
CFR 233.31. The program description would contain any such
agreement(s).
The foregoing, of course, are only examples, and there are likely
other means by which a Tribe or State could demonstrate that it has
sufficient authority to issue permits that comply and assure compliance
with the CWA 404(b)(1) Guidelines. EPA will avoid unnecessarily
limiting Tribes and States by imposing a single vehicle or approach for
implementing the CWA 404(b)(1) Guidelines. EPA recommends that an
assuming Tribe or State consider incorporating into its program
description ways to identify and consider impacts to other human use
characteristics, such as impacts to waters that support subsistence
fishing by the local population or that may have significance for
religious or treaty purposes. These could include, for
[[Page 103464]]
example, formalizing a process for coordinating with local communities
to identify and understand how waters that may be affected by
discharges of dredged or fill material are used for subsistence
fishing, religious purposes, or other uses important to the local
community. Such procedures would demonstrate the Tribe or State's
ability to fulfill the intent of the human use characteristics
provisions of the section 404(b)(1) Guidelines.
Some Tribes assert that compliance with the CWA 404(b)(1)
Guidelines is not an adequate substitute for the input that Tribes can
provide through consultation procedures of the National Historic
Preservation Act. While the Federal consultation procedures under
section 106 of the National Historic Preservation Act do not apply to
permits issued by a Tribe or State,\26\ the final rule expands upon
existing opportunities for Tribal input. Section IV.F of this preamble
provides detailed discussion on opportunities whereby Tribes may
request that EPA review permits that may affect their Tribal rights or
interests within or beyond reservation boundaries and Tribes that have
status of treatment in a similar manner as a State (TAS) shall receive
notice and an opportunity to provide recommendations as an ``affected
State'' for purposes of 40 CFR 233.31. See section IV.F of this
preamble. In addition, EPA review of Tribal or State permit
applications may not be waived for ``[d]ischarges within critical areas
established under State or Federal law, including but not limited to .
. . sites identified or proposed under the National Historic
Preservation Act. . . .'' 40 CFR 233.51(b)(6). Moreover, as discussed
above, Tribal and State permits must assure compliance with all
applicable statutory and regulatory requirements, including the section
404(b)(1) Guidelines as described above. Finally, assuming Tribes and
States must provide for judicial review of Tribe- or State-issued
permits, which provides another opportunity for interested parties to
raise concerns about a permit's failure to comply with the 404(b)(1)
Guidelines. See section IV.C.2 of this preamble.
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\26\ See Menominee Indian Tribe of Wisconsin v. Envt'l
Protection Agency, 947 F.3d 1065, 1073-74 (7th Cir. 2020).
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3. No Less Stringent Than
a. Overview and What the Agency Is Finalizing
The Agency's regulations provide that Tribes and States may not
impose requirements less stringent than Federal requirements. 40 CFR
233.1(d). While Tribes and States have flexibility to determine how to
best integrate sufficient authority into their programs, there are
limits to this flexibility not explicitly spelled out in the prior
regulations. Accordingly, the Agency proposed to codify its
longstanding principle that a Tribe or State cannot comply with its
obligation pursuant to section 510 of the CWA to impose requirements no
less stringent than Federal requirements by making one requirement more
stringent than federally required as a tradeoff for making another
requirement less stringent. The Agency also proposed to clarify its
interpretation that an assuming Tribe or State must demonstrate that it
will at all times have authority to issue permits for all non-exempt
discharges of dredged and fill material to all waters of the United
States within its jurisdiction except for discharges to the subset of
waters of the United States (``retained waters'') over which the Corps
retains administrative authority pursuant to CWA section 404(g)(1). To
clarify the role of Federal interpretive guidance in Tribal or State
programs, such as the Corps' General Regulatory Policies in 33 CFR part
320 or Regulatory Guidance Letters, EPA further proposed to clarify
that Tribes and States are not required to incorporate the Corps' or
EPA's interpretive guidance into their CWA section 404 programs.
Finally, EPA proposed to codify its long-held position that the Tribe
or State is responsible for administering all portions of a CWA section
404(g) program. Specifically, where the CWA 404(b)(1) Guidelines or
other regulations require that the District Engineer or the Corps of
Engineers make certain decisions or take certain actions, the proposed
rule provides that the Tribal or State agency will carry out those
responsibilities for purposes of the assumed program. After reviewing
public comments, the Agency is finalizing this approach as proposed.
b. Summary of Final Rule Rationale and Public Comment
Section 510 of the CWA provides: ``[i]f an effluent limitation, or
other limitation, effluent standard, prohibition, pretreatment
standard, or standard of performance is in effect under this chapter,
such State . . . may not adopt or enforce any effluent limitation, or
other limitation, effluent standard, prohibition, pretreatment
standard, or standard of performance which is less stringent. . . .''
33 U.S.C. 1370. Consistent with CWA section 510, EPA's regulations at
40 CFR 233.1(d) require: ``Any approved State Program shall, at all
times, be conducted in accordance with the requirements of the Act and
of this part. While States may impose more stringent requirements, they
may not impose any less stringent requirements for any purpose.'' See
also 33 U.S.C. 1344(h)(1)(A)(i); 40 CFR 233.20(a), 233.23(a),
233.34(a).
Broadly stated, the goal of those portions of the CWA and its
implementing regulations that govern Tribal and State assumption of the
CWA section 404 program is to ensure that an assuming Tribe or State
will issue permits that assure compliance with the CWA at least as
stringently as would a permit for the same discharge if issued by the
Corps. Section 404(h)(1)(A)(i) of the CWA and 40 CFR 233.1(d),
233.20(a), 233.23(a), and 233.34(a) expressly require that permits
issued by an assuming Tribe or State must apply and assure compliance
with the CWA 404(b)(1) Guidelines, as discussed in section IV.A.2 of
this preamble. In addition, Tribes and States must demonstrate that
their section 404 programs will cover at least the same discharges as
the CWA and will issue permits that are not less stringent than other
aspects of the CWA beyond the CWA 404(b)(1) Guidelines.
Commenters generally agreed that permits issued by Tribes or States
may not be less stringent than a permit for the same discharge if
issued by the Corps of Engineers. One commenter characterized this
concept as establishing a strong Federal ``floor'' for Tribal and State
permits. As with the CWA 404(b)(1) Guidelines, Tribes and States
seeking to assume the section 404 program may choose but are not
required to adopt verbatim or incorporate by reference relevant
portions of the CWA or its implementing regulations. Where a Tribe or
State chooses not to adopt or incorporate by reference portions of the
CWA or its implementing regulations, the Tribal or State program
description should describe how the Tribal or State program is no less
stringent than those provisions.
1. A Tribe or State Cannot Comply With Its Obligation Pursuant to
Section 510 of the CWA To Impose Requirements No Less Stringent Than
Federal Requirements by Trading Off More Stringent Requirements for
Less Stringent Requirements
Most commenters supported EPA's proposal to codify the principle
prohibiting tradeoffs between more lenient and more stringent
requirements. However, one commenter did not support EPA's proposed
approach and expressed concern that
[[Page 103465]]
the proposed approach would deprive Tribes and States of flexibility.
The Agency agrees that Tribes and States should have flexibility to
determine how best to ensure that their permits will apply and assure
compliance with the CWA 404(b)(1) Guidelines and be no less stringent
than Federal requirements. That said, EPA has long stated that
flexibility does not extend to tradeoffs among requirements, as
discussed, in the 1988 preamble to the CWA section 404 Tribal and State
program regulations. See 53 FR 20764, 20766 (June 6, 1988).
EPA is finalizing its proposal to codify this longstanding
principle prohibiting tradeoffs between more lenient and more stringent
requirements in its section 404 Tribal and State program regulations.
As noted above, this clarification does not represent a change in EPA's
longstanding position. Additionally, this principle is also articulated
in EPA's regulations governing the section 402 program. See 40 CFR
123.25(a), Note. EPA sees no reason not to provide similar clarity for
section 404 programs.
2. An Assuming Tribe or State Must Regulate at Least All Non-Exempt
Discharges to Navigable Waters Within Its Jurisdiction, Except for
Discharges to Waters Retained by the Corps
In addition to codifying its longstanding principle against
tradeoffs, EPA is clarifying that Tribes and States wishing to assume
the section 404 program must demonstrate consistency with aspects of
the CWA beyond the CWA 404(b)(1) Guidelines. While a Tribe or State may
regulate discharges that are not covered by the CWA, a Tribal or State
program must regulate at least all non-exempt discharges of dredged and
fill material to all navigable waters as defined by CWA section 502(7)
(``waters of the United States'') within the Tribe's or State's
jurisdiction except for discharges to the subset of retained waters.
This means that a Tribal or State program may not exempt discharges
other than those exempted pursuant to CWA section 404(f). Similarly,
when a Tribe or State assumes administration of the CWA section 404
program, it assumes administrative authority to permit discharges to
all waters of the United States within its jurisdiction except for the
subset of retained waters.\27\ See 33 U.S.C. 1344(g)(1). As noted
earlier, EPA has final administrative authority over the scope of
``waters of the United States.'' See Civiletti Memorandum.
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\27\ As noted in the 1988 preamble, ``States may have a program
that is more . . . extensive than what is required for an approvable
program.'' 53 FR at 20764, 20766 (June 6, 1988) (emphasis added). As
described elsewhere in this preamble, Tribes and States may not
assume less than what is required under the CWA.
---------------------------------------------------------------------------
The subset of waters of the United States over which the Corps
retains administrative authority pursuant to CWA section 404(g)(1) is
identified in the Memorandum of Agreement between the assuming Tribe or
State and the Corps which, among other things, includes a ``description
of waters of the United States within the State over which the
Secretary retains jurisdiction.'' 40 CFR 233.14(b)(1). See section
IV.B.2 of this preamble for further discussion on retained waters. To
the extent the coverage of the CWA as defined by the term ``waters of
the United States'' \28\ changes following court decisions or
rulemaking, assumption of the section 404 program by a Tribe or State
cannot result in a situation in which neither the assuming Tribe or
State nor the Corps has authority to issue a permit for discharges to a
water of the United States. The requirement that Tribes or States at
all times have authority to issue permits for all non-exempt discharges
to all waters of the United States within their jurisdiction is
therefore generally not governed by 40 CFR 233.16(b), which addresses
the modification of Federal statutes or other regulations.
---------------------------------------------------------------------------
\28\ See 33 U.S.C. 1311(a), 1362(7).
---------------------------------------------------------------------------
As with the CWA 404(b)(1) Guidelines (see section IV.A.2 of this
preamble), Tribes and States seeking to assume the section 404 program
need not adopt verbatim or incorporate by reference relevant portions
of the CWA or its implementing regulations, though they may do so. EPA
recommends that Tribes and States identify in the program description
(40 CFR 233.10(b) and 233.11) and Attorney General Statement (40 CFR
233.10(c) and 233.12) those provisions of Tribal or State law that will
ensure that the Tribe or State will at all times have sufficient
authority to issue permits for non-exempt discharges to all waters of
the United States within its jurisdiction except for discharges to the
subset of waters of the United States over which the Corps retains
administrative authority following assumption. A Tribal or State
section 404 program may regulate discharges into Tribal or State waters
in addition to the jurisdictional CWA waters as well as issue permits
for discharges into waters retained by the Corps; however, the Corps
remains the CWA section 404 permitting authority for retained waters.
3. Tribes and States May Adopt Federal Interpretive Guidance and the
Corps' General Regulatory Policies, But Are Not Required To Do So
EPA also is clarifying here the role of Federal interpretive
guidance in Tribal or State programs, such as the Corps' Regulatory
Guidance Letters or other interpretive statements issued by the Corps
and/or EPA. Nothing in the CWA or 40 CFR part 233 requires that Tribes
or States wishing to assume the section 404 program formally adopt or
incorporate into their programs Regulatory Guidance Letters or other
formal interpretive statements issued by the Corps and/or EPA. Federal
agency interpretive guidance may often be helpful in providing
transparency, clarity, and consistency in implementation of the Federal
program. However, it does not have the effect of legally binding
regulation and may not necessarily be applicable, for example, where
Tribal or State requirements are more stringent than Federal
requirements or the guidance references a procedure not part of the
Tribal or State program. Moreover, Federal agency interpretive guidance
may evolve over time with changes in case law and other circumstances.
Accordingly, while assuming Tribes and States may consider relevant
Federal agency interpretive guidance and may choose to adopt it to aid
in program implementation, they are not required to formally adopt
Federal agency interpretive guidance. EPA recommends that Tribes and
States provide transparency by describing as part of the Tribal or
State program description (40 CFR 233.10(b) and 233.11) if and how they
will consider Federal agency interpretative guidance.
Several commenters asserted that, in order to issue permits that
are not less stringent than permits that would be issued by the Corps
for the same discharge, Tribes and States assuming the section 404
program must incorporate the procedural and substantive provisions of
the Endangered Species Act, the National Historic Preservation Act, the
National Environmental Protection Act and other statutes that apply
generally to Federal actions, including to permits issued by the Corps
under CWA section 404. Issuance of a permit by a Tribe or State
pursuant to an assumed program under CWA section 404(g), however, is
not subject to the requirements for Federal actions under those
statutes. See H.R. No. 95-830 at 104 (1977) (``The conferees wish to
emphasize that such a State program is one which is established under
State law and which
[[Page 103466]]
functions in lieu of the Federal program''); See Chesapeake Bay
Foundation v. Virginia State Water Control Bd., 453 F. Supp. 122 (E.D.
Va. 1978). That said, while the Federal statutory procedural
requirements may not apply directly to Tribal or State actions, CWA
section 404(h)(1)(A)(i) requires that Tribal and State programs have
authority to issue permits that apply and assure compliance with the
CWA 404(b)(1) Guidelines, including those provisions that limit permit
issuance to the least environmentally damaging practicable alternative,
prohibit permitting of a discharge that would jeopardize the continued
existence of listed endangered or threatened species under the
Endangered Species Act, and require consideration of potential effects
on human use characteristics, including ``areas designated under
Federal and State laws or local ordinances to be managed for their
aesthetic, educational, historical, recreational, or scientific
value.'' See section IV.A.2 of this preamble for further discussion on
compliance with the CWA 404(b)(1) Guidelines.
Tribal or State adoption of the Corps' General Regulatory Policies
(33 CFR part 320) (including the Corps' ``public interest review'' at
33 CFR 320.4(a)) is also not required. The CWA makes no reference to
the Corps' General Regulatory Policies, which, by their own terms,
apply to a range of the Corps' regulatory authority, including, but not
limited to, CWA section 404 (see 33 CFR 320.2). As described elsewhere,
the substantive environmental criteria used to evaluate discharges of
dredged and fill material under CWA section 404 are set forth in the
CWA 404(b)(1) Guidelines. See 40 CFR 230.2. Tribes or States are free,
however, to incorporate elements of the Corps' General Regulatory
Policies into their permitting procedures if they choose to do so.
4. Tribes and States That Assume the CWA Section 404 Program Are
Responsible for Administering All Portions of the Section 404 Program
Finally, EPA is codifying its long-held position that the Tribe or
State is responsible for administering all portions of a section 404(g)
program. Certain regulations implementing CWA section 404 were drafted
to refer to the authority of the Corps of Engineers without accounting
for Tribal or State assumption of the section 404 program. EPA is
clarifying that, when a Tribe or State assumes administration of the
section 404 program, the Tribe or State becomes responsible for all of
the actions under section 404 for which the Corps would be responsible
if it were to issue the permit. The rule clarifies that it is the
assuming Tribe or State that is responsible for administering all
sections of the approved section 404 program. See section IV.B.4 of
this preamble for further discussion on mitigation.
EPA also clarifies here that only Tribal, State, or interstate
agencies may assume administration of the section 404 program. While a
Tribe or State may establish general permits for discharges of dredged
or fill material for categories of similar activities that will cause
only minimal adverse environmental effects individually or
cumulatively, they may not delegate permitting responsibility to non-
Tribal or non-State entities, such as counties or municipalities. 33
U.S.C. 1344(g)(1); 40 CFR 233.2 (definition of ``State'').
B. Program Approval
1. Partial Program Assumption
a. Overview and What the Agency Is Finalizing
Under 40 CFR 233.1(b), assuming Tribes or States must have
authority to regulate all non-exempt discharges to all waters of the
United States within their borders except for the subset of waters of
the United States over which the Corps retains administrative authority
pursuant to CWA section 404(g)(1). Although some States have expressed
an interest in being able to assume the authority to issue section 404
permits for just a portion of the section 404 regulated activities, or
a portion of the assumable waters within the Tribe's or State's
jurisdiction, the Agency proposed to maintain its longstanding position
that the statute does not authorize partial assumption. After
considering public comments, EPA is finalizing its proposed approach to
maintain the text at section 233.1(b) which clarifies that partial
programs are not approvable under section 404.
b. Summary of Final Rule Rationale and Public Comment
In 1987, Congress added section 402(n) to the CWA, specifically
authorizing EPA to approve partial Tribal and State NPDES permit
programs that ``cover, at a minimum, administration of a major category
of the discharges into the navigable waters of the State or a major
component of the permit program. . . .'' That provision specifies the
scope of partial State section 402 programs that may be approved.
Congress did not amend CWA section 404 to add a parallel provision
authorizing a Tribe or State to assume the authority to issue section
404 permits for just a portion of discharges into assumable waters.
Given the absence of a provision in the section 404 program authorizing
partial assumption parallel to the provision in the section 402
program, EPA maintains its longstanding interpretation that the best
reading of the CWA ``requir[es] State programs to have full geographic
and activities jurisdiction (subject to the limitation in section
404(g)).'' 53 FR 20764 (June 6, 1988). Because of the special status of
Indian country, a lack of State authority to regulate activities on
Indian lands will not cause the State's program to be considered a
partial program. See id.
In addition to concluding that the statute does not authorize
partial assumption, EPA also determined that partial assumption would
be extremely difficult to implement. Numerous States have expressed an
interest in being able to assume the authority to issue section 404
permits for just a portion of the section 404 regulated activities, or
a portion of the assumable waters within the Tribe's or State's
jurisdiction. While some commenters supported the status quo, others
supported some form of partial assumption, or encouraged the Agency to
explore options to provide additional flexibility. One commenter noted
that partial assumption in States with more stringent or protective
section 404 programs could advance environmental protection, and
another noted that partial assumption of program activities could allow
for more Tribal oversight and input in the permitting process.
EPA carefully considered the comments received, evaluating
potential approaches to partial assumption, but ultimately concluded
that it would be difficult to implement. Partial assumption based on a
size threshold for a project would be unworkable because the
``footprint'' of a project may change during the execution of the
project, which could result in the shifting of jurisdiction between the
Federal and the assumed program. This outcome could conceivably
encourage permittees to increase the footprint or impacts of their
proposed project in order to remain with the Corps for the permit
review process. Partial assumption based on a geographic area would
also be challenging to implement, because Tribes and States could
potentially divide watersheds or create a checkerboard of authority
that could create problems in determining jurisdiction, as well as
mitigation and enforcement. Partial assumption based on type of
waterbody would pose difficulties because it might require a waterbody-
by-waterbody determination
[[Page 103467]]
to identify permitting authority, and a project might impact more than
one waterbody, creating confusion as to whether the permitting
authority is the Corps or the Tribe or State. Partial assumption that
would allow for the assumption of certain aspects of the program, such
as a Tribe or State taking on permitting but not enforcement, or vice
versa, would cause unavoidable duplication of effort between the Tribe
or State and EPA and the Corps. And partial assumption based on
activity would pose challenges because the Agency was unable to devise
a comprehensive and clear way to define potential activities. Dividing
functions between the Federal and Tribal or State governments would
also be confusing for the regulated public.
EPA also considered phased assumption of program responsibilities,
whereby the Tribe or State would ultimately assume the full program,
but in stages or phases. EPA considered this approach but concluded
that implementing a phased approach would present all of the challenges
listed above regarding identification of the permitting authority.
Additionally, there are no tools available to the Agency to ensure that
a Tribe or State continues to phase in all portions of the program, or
to determine how much time should be allowed for the process; the only
mechanism available to the Agency to address a failure to complete
phasing-in the full program would be withdrawal of the entire program.
Tribes and States not interested in full assumption can already
take on a major role in managing their aquatic resources and in the
permitting process even without assuming the section 404 program. A
Tribe or State may develop their own dredged or fill material
permitting program. Alternatively, the Federal section 404 program
provides mechanisms that allow for Tribal and State input in developing
permits for specific activities or specific geographic areas within
Tribal or State jurisdiction. In 1977, Congress amended section 404 to
allow the Corps to issue certain types of general permits, including
State Programmatic General Permits (SPGPs). SPGPs are general permits
issued by the Corps that provide section 404 authorization for certain
discharge activities if the permittee has secured a State permit for
that same activity. Some States have worked with the Corps to develop
SPGPs, which create permitting efficiencies for certain projects within
the State. While the Corps is still the section 404 permitting
authority for SPGPs, these permits give the Tribe or State the ability
to be actively involved, as well as the opportunity to create more
stringent requirements than the Federal section 404 permitting program,
without the burden of assuming and administering the section 404
program.
In sum, EPA has concluded that continuing to interpret the CWA to
prohibit partial assumption reflects the best reading of the text of
the CWA and will enable the most transparent and consistent
implementation of the section 404 program across the nation. This
approach provides the most clarity to the public and the regulated
community as to which waters are being assumed and whether applicants
need a Tribal or State permit or a Federal permit. Conversely, partial
assumption would be more likely to cause confusion among interested
parties and be more difficult to implement consistently across the
country for the reasons discussed earlier in this section.
2. Retained Waters
a. Overview and What the Agency Is Finalizing
As discussed in section III.B.2 of this preamble, the Corps retains
authority over certain waters and wetlands adjacent to those waters
when a Tribe or State assumes permitting authority. States and Tribes
have expressed to EPA the need for further clarification regarding
which waters a Tribe or State may assume and which waters the Corps
retains. The Agency is finalizing as proposed a procedure for
determining the extent of waters over which the Corps would retain
administrative authority following Tribal or State assumption of the
section 404 program, with certain minor modifications based on comments
received. Under the procedure, before the Tribe or State submits its
assumption request to EPA, the Tribe or State must submit a request to
EPA that the Corps identify the subset of waters of the United States
that would remain subject to the Corps' section 404 administrative
authority following assumption. The Tribe or State must submit one of
the following documents with the request to show that it has taken
concrete and substantial steps toward program assumption: a citation or
copy of legislation authorizing funding to prepare for assumption, a
citation or copy of legislation authorizing assumption, a Governor or
Tribal leader directive, a letter from a head of a Tribal or State
agency, or a copy of a letter awarding a grant or other funding
allocated to investigate and pursue assumption. Within seven days of
receiving the request for the retained waters description, EPA will
review and respond to the request. If the request includes the required
information, then EPA will transmit the request to the Corps. EPA will
also notify members of the public of that transmission and invite input
to the Corps and to the Tribe or State within a 60-day period that the
Corps may consider in developing its description.
If the Corps notifies the Tribe or State and EPA within 30 days of
receiving the request transmitted by EPA that it will provide the Tribe
or State with a retained waters description, the Corps has 180 days
from the receipt of the request to provide a retained waters
description to the Tribe or State. The purpose of the 180-day period is
to allow the Corps time and opportunity to follow the process at 40 CFR
233.11(i) to identify those waters over which the Corps will retain
section 404 permitting authority while providing a timeframe within
which the Tribe or State can expect to receive a retained waters
description. If the Corps does not notify the Tribe or State and EPA
within 30 days of receipt of the request that it intends to provide a
retained waters description, the Tribe or State may prepare a retained
waters description. Similarly, if the Corps had originally indicated
that it would provide a retained waters description but does not
provide one within 180 days of EPA's transmission to the Corps, the
Tribe or State may develop the retained waters description using the
same approach described above. Alternatively, the Tribe or State and
the Corps may mutually agree to extend the period of time for the Corps
to develop the list.
The most recently published list of RHA section 10 waters (see 33
CFR 329.16) would be the starting point for the retained waters
description. The Corps, Tribe, or State would place waters of the
United States, or reaches of these waters, from the RHA section 10 list
into the retained waters description if they are known to be presently
used or susceptible to use in their natural condition or by reasonable
improvement as a means to transport interstate or foreign commerce. See
33 U.S.C. 1344(g)(1). To the extent feasible and to the extent that
information is available, the Corps, Tribe, or State would add other
waters or reaches of waters to the retained waters description that are
presently used or are susceptible to use in their natural condition or
by reasonable improvement as a means to transport interstate or foreign
commerce. See id. The Corps, Tribe, or State would not place RHA
section 10 list waters in the retained waters description if, for
example, they were historically used as a means to transport interstate
or foreign commerce
[[Page 103468]]
and are no longer susceptible to use as such with reasonable
improvement.
The description would also describe retained wetlands. The default
understanding is that the Corps would retain administrative authority
over all jurisdictional wetlands ``adjacent'' to retained waters, as
that term is defined in 40 CFR 120.2(c). A Tribe or State may choose to
negotiate an agreement with the Corps to establish an administrative
boundary through jurisdictional adjacent wetlands, landward of which
the Tribe or State would assume administrative authority. If the Tribe
or State and the Corps reach agreement on such a boundary, EPA may
consider it when it is submitted with the program submission. As a
default, however, the Corps would retain all wetlands adjacent to
retained waters. The retained waters description does not need to
include a specific list of adjacent wetlands or provide mapping or a
description of the lateral extent of those wetlands.
As recognized in EPA's regulations, in many cases, States lack
authority to regulate activities in Indian country. See 40 CFR
233.1(b). Thus, the Corps will continue to administer the program in
Indian country unless EPA determines that another jurisdiction has
authority to regulate discharges into waters in Indian country. See id.
EPA is changing the regulatory provision stating that modifications
to the extent of the retained waters description always constitute
substantial revisions to a Tribal or State program. 40 CFR 233.16(d)(3)
(2023). The new provision is more limited in scope: it states that
removals of waters from the retained waters description, other than de
minimis removals, are substantial revisions. In addition, revisions to
an approved Tribal CWA section 404 program are substantial where they
would add reservation areas to the scope of its approved program. EPA
is also providing that the Memorandum of Agreement between the Corps
and the Tribe or State must outline procedures whereby the Corps will
notify the Tribe or the State of changes to the RHA section 10 list as
well as the extent to which these changes implicate the statutory scope
of retained waters as described in CWA section 404(g)(1) and therefore
necessitate revisions to the retained waters description. The Tribe or
State would incorporate the revisions that the Corps has identified,
pursuant to the modification provisions agreed upon in the Memorandum
of Agreement.
EPA is modifying the program description requirements to provide
that the Tribal or State program will encompass all waters of the
United States not retained by the Corps at all times. 40 CFR
233.11(i)(6). EPA is also removing the term ``traditionally'' from the
term `traditionally navigable waters' in the following provision:
``[w]here a State permit program includes coverage of those
traditionally navigable waters in which only the Secretary may issue
404 permits, the State is encouraged to establish in this Memorandum of
Agreement procedures for joint processing of Federal and State permits,
including joint public notice and public hearings.'' Id. at
233.14(b)(2).
b. Summary of Final Rule Rationale and Public Comments
Section 404(g) of the CWA authorizes Tribes and States to assume
authority to administer the section 404 program in some, but not all,
navigable waters within their jurisdiction. ``Navigable waters'' is
defined at CWA section 502(7) as ``waters of the United States,
including the territorial seas.'' The Corps retains administrative
authority over a subset of these waters even after program assumption
by a Tribe or State.\29\ Specifically, section 404(g)(1) states that
the Corps retains administrative authority over the subset of waters of
the United States consisting of ``. . . waters which are presently
used, or are susceptible to use in their natural condition or by
reasonable improvement as a means to transport interstate or foreign
commerce shoreward to their ordinary high water mark . . . including
wetlands adjacent thereto.'' 33 U.S.C. 1344(g)(1). A Tribe or State
assumes section 404 administrative authority over all waters of the
United States within its jurisdiction that are not retained by the
Corps.
---------------------------------------------------------------------------
\29\ When a Tribe or State assumes administrative authority for
the CWA section 404 program, it assumes authority to permit
discharges of dredged and fill material to all ``waters of the
United States'' within the meaning of CWA section 502(7) except for
the subset of waters of the United States over which the Corps is
required to retain administrative authority under Section 404(g).
The scope of CWA jurisdiction is defined by CWA section 502(7) as
``waters of the United States,'' and is distinct from and broader
than the scope of waters over which the Corps retains administrative
authority following Tribal or State assumption of the section 404
program. This rule develops a process for identifying the subset of
waters of the United States over which the Corps retains
administrative authority following approval of a Tribal or State
section 404 program. It does not define the broader set of ``waters
of the United States'' within the scope of CWA section 502(7).
---------------------------------------------------------------------------
EPA's prior regulations require that the program description that
is part of a Tribal or State assumption request include ``[a]
description of the waters of the United States within a State over
which the State assumes jurisdiction under the approved program; a
description of the waters of the United States within a State over
which the Secretary retains jurisdiction subsequent to program
approval; and a comparison of the State and Federal definitions of
wetlands.'' 40 CFR 233.11(h) (2023). In addition, the prior regulations
state that the Memorandum of Agreement between a Tribe or State and the
Corps required as part of the assumption request shall include a
description of the waters of the United States within the Tribe or
State for which the Corps will retain administrative authority. 40 CFR
233.14(b)(1) (2023).
Prior to this rule, EPA had not provided guidance on a process for
identifying the subset of waters of the United States over which the
Corps would retain administrative authority following Tribal or State
assumption. Without a clear and practical process, individual States
and the Corps districts have had to interpret the extent of retained
waters and the meaning of ``wetlands adjacent thereto'' in the context
of case-by-case development of Tribal and State program descriptions
for prospective programs and the Memoranda of Agreement that are
negotiated between the Corps and the State as part of a program
submission. Tribes and States have indicated that confusion about how
best to identify the extent of retained waters and adjacent wetlands
has been a barrier to assumption and have asked EPA to provide clarity.
As discussed in section III.B of this preamble, EPA convened the
Assumable Waters Subcommittee under the auspices of the NACEPT to
provide advice and recommendations as to how EPA could best clarify the
subset of waters of the United States over which the Corps retains
administrative CWA section 404 authority when a Tribe or State assumes
the section 404 program. NACEPT adopted the majority recommendation in
the Subcommittee report and incorporated it into its recommendations
provided to EPA in June 2017. Although at the time of the Subcommittee
report, the Corps presented a separate view from the majority of the
extent of retained waters and adjacent wetlands for which it would
retain administrative authority, the Department of the Army
subsequently sent a letter to the Corps supporting the majority
recommendation as to the extent of retained waters and adjacent
wetlands (though the letter did not define a specific administrative
boundary for
[[Page 103469]]
adjacent wetlands).\30\ NACEPT's recommendations, based on the
Subcommittee majority recommendation that was subsequently endorsed by
the Corps, are discussed below.
---------------------------------------------------------------------------
\30\ R.D. James, Memorandum for Commanding General, U.S. Army
Corps of Engineers: Clean Water Act Section 404(g)--Non-Assumable
Waters (July 30, 2018).
---------------------------------------------------------------------------
i. Subcommittee's Recommendation
The Subcommittee majority recommended that for purposes of
identifying the subset of waters of the United States over which the
Corps would retain administrative authority following Tribal or State
assumption of the CWA section 404 program, existing RHA section 10
lists \31\ be used ``with two minor modifications: any waters that are
on the section 10 lists based solely on historic use (e.g., historic
fur trading routes) are not to be retained (based on the Congressional
record and statute), and waters that are assumable by a tribe (as
defined in the report) may also be retained by the USACE when a state
assumes the program.'' Final Report of the Assumable Waters
Subcommittee at v.\32\ The Subcommittee also recognized that ``waters
may be added to Section 10 lists after a state or tribe assumes the
program, and recommends in that case, such waters may also be added to
lists of USACE-retained waters at that time.'' Id. The majority
recommendation was based on its analysis of the text and legislative
history of section 404(g), which is discussed in the Background
description in section III of this preamble, in which the majority
concluded that Congress intended that the Corps retain permitting
authority over some RHA section 10 waters. See id. at 55-61 (Appendix
F.) The majority thought this approach had the benefit of being clear
and easy to implement. See id. at 17-20.
---------------------------------------------------------------------------
\31\ The RHA section 10 lists are compiled and maintained by the
Corps district offices for every State except Hawaii. 33 CFR 329.14
describes the process the Corps follows to make navigability
determinations pursuant to the RHA.
\32\ Available at <a href="https://www.epa.gov/sites/default/files/2017-06/documents/awsubcommitteefinalreprort_05-2017_tag508_05312017_508.pdf">https://www.epa.gov/sites/default/files/2017-06/documents/awsubcommitteefinalreprort_05-2017_tag508_05312017_508.pdf</a>.
---------------------------------------------------------------------------
The Subcommittee majority also addressed the scope of retained
adjacent wetlands. It recommended that the Corps retain administrative
authority over all wetlands adjacent to retained waters landward to an
administrative boundary agreed upon by the Tribe or State and the
Corps. This boundary, the recommendation added, ``could be negotiated
at the state or tribal level . . . if no change were negotiated, a 300-
foot national administrative default line would be used.'' Final Report
of the Assumable Waters Subcommittee at vi. The Subcommittee majority
opinion noted that large wetland complexes can extend far from the
retained water. Id. at 31. Without such an administrative line, the
Subcommittee majority noted, assumption could lead to a confusing
pattern of USACE and State or Tribal permitting authority across the
landscape.
With regard to Tribal considerations during assumption of the
section 404 program, the Subcommittee found that ``Section 518 of the
CWA, enacted as part of the 1987 amendments to the statute, authorizes
the EPA to treat eligible Indian tribes in a manner similar to states
(`treatment as a State' or TAS) for a variety of purposes, including
administering each of the principal CWA regulatory programs [including
CWA section 404] and receiving grants under several CWA authorities (81
FR 30183, May 16, 2016).'' Id. at 3. The Subcommittee majority
recommended that ``Tribal governments pursuing assumption of the 404
program will follow the same process as states, though it is expected
that there will be some nuanced differences; for example, in addressing
Tribal Indian Reservation boundaries'' and that ``[i]n a state-assumed
program, states will generally not assume authority for administering
the 404 program within Indian country; instead, such authority will
generally be retained by the USACE unless the tribe itself is approved
by EPA to assume the 404 program.'' Id.
The Subcommittee majority noted that its recommended approach is
consistent with ``the plain language of Section 404(g) and the
legislative history. Congress clearly intended that states and tribes
should play a significant role in the administration of Section 404--as
they do in other CWA programs--anticipating that many states would
assume the Section 404 program.'' See id. at 19.
ii. Final Rule Approach to Retained Waters
1. Contents of the Retained Waters Description
Taking into consideration the majority recommendation of the
Subcommittee as well as stakeholder input on the proposed rule, the
subset of waters of the United States over which the Corps would retain
administrative authority would include the following:
--Waters of the United States, or reaches of those waters, from the RHA
section 10 list(s) that are known to be presently used or susceptible
to use in their natural condition or by reasonable improvement as a
means to transport interstate or foreign commerce;
--Other waters known by the Corps or identified by the Tribe or State
as presently used or susceptible to use in their natural condition or
by reasonable improvement as a means to transport interstate or foreign
commerce, including all waters which are subject to the ebb and flow of
the tide; and
--Retained wetlands that are adjacent to the foregoing waters.
As recognized in EPA's regulations, in many cases, States lack
authority under the CWA to regulate activities covered by the section
404 program in Indian country. See 40 CFR 233.1(b). Thus, the Corps
will continue to administer the program in Indian country unless EPA
determines that a State has authority to regulate discharges into
waters in Indian country and approves the State to assume the section
404 program over such discharges. See id. The Memorandum of Agreement
between the Corps and State must address any waters in Indian Country
which are to be retained by the Corps upon program assumption by a
State. EPA also notes that the Corps would retain jurisdiction over
waters located in lands of exclusive Federal jurisdiction in relevant
respects (e.g., certain national parks identified in 16 U.S.C. Chapter
1 as having lands of exclusive Federal jurisdiction, such as Denali
National Park).
Some commenters supported this approach, outlined in the proposed
rule. Others critiqued the Agency's reliance on the RHA section 10
lists as a starting point for identifying retained waters, stating that
these lists can be out of date and often lack current information or
supporting documentation. Some commenters suggested that RHA section 10
lists should only be relied upon if they have been comprehensively
updated within the previous five years. Some commenters would require
that the Corps review all judicial determinations involving the subject
State to identify additional retained waters.
EPA recognizes that the available RHA section 10 lists may not
cover all RHA section 10 waters in the Tribe's or State's jurisdiction
and that they may not be updated to reflect current use and
characteristics of listed waters. However, EPA agrees with the
recommendation of the Assumable Waters Subcommittee that these lists
provide a useful starting point for determining the scope of retained
waters, given the clear indication in the
[[Page 103470]]
legislative history that Congress intended the Corps to generally
retain RHA section 10 waters, with some modifications, and that an
approach that starts with existing lists will be clear and easy to
implement. No commenters proposed implementable alternatives to the RHA
section 10 lists as a starting point. Comprehensively reviewing and
revising RHA section 10 lists is a multi-year, resource-intensive and
relatively rare undertaking, so excluding from use those lists not
comprehensively updated within the past five years would cause
significant delays in assumption. However, to ensure the retained
waters descriptions remain as current and accurate as is feasible, EPA
has modified the final rule to provide that whenever RHA section 10
lists are updated, an orderly process exists for incorporating those
changes, as appropriate, into a Tribe's or State's retained waters
description. Specifically, EPA now requires that the Memorandum of
Agreement between the Corps and the Tribe or State outline procedures
whereby the Corps will notify the Tribe or the State of changes to the
RHA section 10 list that implicate the statutory scope of retained
waters and the Tribe or State will incorporate those changes into its
retained waters description.
With respect to the suggestion to require review of all judicial
decisions related to navigability during the development of the
retained waters description, EPA agrees that these should be viewed as
resources during the development of the description, as well as
information submitted by interested parties, navigability analyses the
Corps has conducted since last updating its RHA section 10 list, and
other sources of information. However, EPA is declining to define the
sources of information for the development of the retained waters
description in the regulations because it would be unnecessarily
prescriptive and limit the flexibility of the Corps or the relevant
Tribe or State.
Some commenters argued that the retained waters description must
include waters that have been historically navigable, as historical
navigability often indicates whether the waterway can be navigable in
its natural condition or with reasonable improvement, which is the
statutory criteria for retained waters in section 404(g). EPA agrees
that historical navigability can sometimes indicate that a water is
navigable in its natural condition or with reasonable improvement. Yet
this is not always the case. Sometimes historically navigable waters
have been modified--as a result of dams, water diversions for
irrigation, climate change, or other circumstances--and cannot be
restored to navigability with reasonable improvements. EPA therefore
retains the proposed rule approach, based on the statutory language and
consistent with the recommendation of the Assumable Water Subcommittee,
which would remove waters or reaches of waters that were historically
navigable but that are not currently used as a means to transport
interstate or foreign commerce in their natural condition or with
reasonable improvement.
EPA also received comments stating that the starting point for the
scope of the Corps-retained waters must be documented traditional
navigable waters (TNWs) as opposed to RHA section 10 lists. The Corps'
minority recommendation in the Assumable Waters Subcommittee Final
Report advocated for this approach. See Final Report at 21-22. The
majority rejected reliance on documented TNWs as a starting point on
the basis that using the RHA section 10 lists is clearer and easier to
implement as well as more consistent with the legislative history of
section 404(g). See id. at 17. The majority explained that RHA section
10 lists are ``well established, and can be relatively easily labeled
on regional maps or GIS systems . . .'' thereby allowing members of the
public ``to readily determine which agency is responsible for Section
404 regulation at a specific location.'' See id. at 18. In contrast,
the majority expressed concerns that the extent of documented TNWs is
confusing and less transparent, as they are documented in ``multiple
regulations, guidance, and procedures,'' rather than in one central,
public location. See id. The majority also noted that because most TNWs
have not yet been identified as such and thus lists of documented TNWs
could easily and regularly increase, using RHA section 10 lists
provides greater certainty and predictability regarding the scope of
the Tribal or State program. See id at 19. In addition, the majority
viewed Congress as intending to retain Corps authority over RHA section
10 waters, with certain minor exceptions. See id. at 55-61; see also
section III of this preamble. For all of the reasons that the
Subcommittee cited, EPA has decided to establish RHA section 10 lists
as a starting point for retained waters, rather than documented TNWs.
EPA notes that ultimately the Department of the Army transmitted to the
Corps its support for the majority recommendation's reliance on RHA
section 10 lists. See section IV.B.2.b of this preamble.
The retained waters description would acknowledge that wetlands are
to be retained if they are adjacent to Corps-retained waters. As noted
above, the default understanding is that the Corps would retain
administrative authority over all jurisdictional wetlands ``adjacent''
to retained waters. Some Tribes and States may choose to negotiate with
the Corps to establish an administrative boundary through
jurisdictional adjacent wetlands, landward of which the Tribe or State
would assume administrative authority. If they do so, EPA may consider
that part of the program description when it is submitted with the
program submission. The default approach, however, is that the Corps
would retain all adjacent wetlands. A specific list of all retained
adjacent wetlands is not required to be included in the retained waters
description, because developing such a list would generally be
impracticable at the time of program assumption.
EPA had proposed that Tribes or States and the Corps establish an
administrative boundary through adjacent wetlands to delineate between
retained and assumed wetlands, and that the default boundary be 300
feet from retained waters. Some commenters expressed support for this
approach, stating that it would allow needed flexibility for Tribes,
States, and the Corps to develop Tribal or State programs and that the
proposal is authorized by the CWA. The significant majority of comments
received during the public comment period, however, expressed concerns
about an administrative boundary default approach, both with respect to
implementation and legal authority.
Concerns expressed about implementation included the lack of a
scientific basis for the 300-foot default boundary and the lack of a
methodology for applying the default boundary. Some commenters pointed
out that an administrative boundary would fragment the permitting in
large wetlands complexes, leading to stakeholder confusion, and
bifurcate the environmental review process, thereby making it difficult
to ensure a holistic evaluation of impacts. These commenters stated
that because an administrative boundary would sometimes require two
permitting agencies to issue different permits for two parts of the
same project, it would unnecessarily duplicate effort on the part of
permittees, State agencies, and members of the public. Commenters
further noted that it would also burden those seeking to challenge
permits, who might need to litigate two separate
[[Page 103471]]
permits in two separate fora, potentially on different timelines
depending on the State or Tribe's judicial review procedures.
Commenters also argued that, because the scope of ``adjacent wetlands''
significantly narrowed following the Supreme Court's May 2023 decision
in Sackett v. EPA and the Agency's subsequent August 29, 2023,
rulemaking conforming the definition of ``waters of the United States''
to that case, 88 FR 3004, an administrative boundary is no longer
necessary. EPA finds the practical concerns raised by commenters valid.
Given the challenges involved in implementing the administrative
boundary concept and the reduced need for it, as identified by
commenters, EPA decided not to finalize the proposed approach.
Commenters also raised legal objections to the administrative
boundary approach. These commenters stated that CWA section 404(g)(1)
provides that adjacent wetlands may not be assumed by a State or Tribe
and that EPA lacks the authority to approve an administrative boundary
that would allow a State to assume authority over any part of wetlands
that are adjacent to a retained water. Because EPA has decided not to
finalize the administrative boundary proposal due to implementation
concerns, addressing the scope of the Agency's legal authority to
approve such a boundary is unnecessary. If a State or Tribe chooses to
negotiate an administrative boundary with the Corps when developing an
assumption request, and the parties reach agreement, EPA may consider
issues related to the scope of their proposed program at that time.
A number of commenters asked that EPA provide more clarity as to
the ``universe of waters that would be retained,'' including the
information and data that the Corps and State or Tribe would use to
assess the scope of retained waters. As noted previously, however,
these commenters did not generally provide specific suggestions as to
how EPA could provide additional clarity. The approach EPA is outlining
adopts the recommendation of the Assumable Waters Subcommittee, which
spent several years assessing how EPA could best clarify the scope of
retained waters.
Moreover, for the purposes of CWA section 404(g)(1), determining
which waters are presently used or susceptible to use in their natural
condition or by reasonable improvement as a means to transport
interstate or foreign commerce, as well as the scope of adjacent
wetlands is, to some extent, inherently a case-specific process. While
determining whether a water is retained does not require compliance
with the requirements for determining whether a water is subject to RHA
section 10, and does not necessarily require a navigability study, the
factors used to determine RHA section 10 jurisdiction may still be
relevant to determining whether a water should be retained. As noted
earlier, however, there are key distinctions between RHA section 10
waters and the scope of retained waters. Specifically, unlike RHA
section 10 waters, Corps-retained waters do not include waters that are
only used historically for the transport of interstate or foreign
commerce but do include adjacent wetlands and, when a State is assuming
the program, waters subject to Tribal authority.
EPA's approach to determining the retained waters description
reflects its attempt to balance the competing priorities of providing
an efficient process for program assumption versus guaranteeing a fully
comprehensive and precise description. When a Tribe or State is
preparing to request assumption, the Corps or assuming Tribe or State
may not know all waters that are presently used or susceptible to use
in their natural condition or by reasonable improvement as a means to
transport interstate or foreign commerce at the time of assumption.
However, requiring a comprehensive assessment of every water within the
Tribe's or State's jurisdiction at the time of assumption to determine
if they should be retained pursuant to the parenthetical in CWA section
404(g)(1) could pose significant practical and budgetary challenges.
Depending on the number of waters within the Tribe's or State's
jurisdiction, developing a comprehensive retained waters description
could take many years and reduce the Corps' ability to carry out its
regulatory obligations. EPA attempts to strike a balance by using the
RHA section 10 list as a starting point and by stating that the
retained waters description must encompass waters ``known'' by the
Corps, Tribe, or State to meet the statutory criteria.
Further, as discussed in section IV.B.2.b.ii.2 of this preamble
below, EPA has added an opportunity for public input. EPA is confident
that geographic information systems technology and navigation charts,
review of judicial decisions, public input, past jurisdictional
determinations, and other sources of information should enable the
Corps, Tribe, or State to take significant steps in identifying waters
in the Tribe's or State's jurisdiction that should be included in the
retained waters description. As discussed further below, moreover,
EPA's regulation allows for the retained waters description and the
Memorandum of Agreement between the Corps and Tribe or State to be
modified if additional waters are identified after assumption, or if
waters included in the description no longer meet the statutory
criteria.
2. Procedures for Developing the Retained Waters Description
EPA is facilitating clarity and efficiency in the program
assumption process by establishing defined timeframes for the
development of the retained waters description. Before a Tribe or State
provides an assumption request submission to EPA, the Tribal leader,
State Governor, or Tribal or State Director must submit a request to
EPA that the Corps identify the subset of waters of the United States
over which the Corps would retain administrative authority. The Tribe
or State must submit the request with specific additional information
that should accompany the request to show that the Tribe or State has
taken concrete and substantial steps toward program assumption. One of
the following must be included with the Tribe's or State's request that
the Corps identify which waters would be retained: a citation or copy
of legislation authorizing funding to prepare for assumption, a
citation or copy of legislation authorizing assumption, a Governor or
Tribal leader directive, a letter from a head of a Tribal or State
agency, or a copy of a letter awarding a grant or other funding
allocated to investigate and pursue assumption. Within seven days of
receiving the request for the retained waters description, EPA will
review and respond to the request. If the request includes the required
information, then EPA will transmit the request to the Corps. This
requirement is intended to provide assurance to the Corps that
developing a retained waters description for purposes of program
assumption is a worthwhile expenditure of its time and resources.
One commenter opposed the requirement that a Tribe or State provide
supporting documentation for its request, stating that knowing the
scope of assumed waters is a foundational, and preliminary, piece of
information that States need before taking concrete and substantial
steps toward assumption. EPA recognizes the importance of understanding
the scope of assumed waters to Tribes and States before they consider
assumption. EPA seeks to balance the desire of Tribes and States to
assess the scope of a potential program prior to embarking on such a
program, however, with the desire to
[[Page 103472]]
avoid unnecessarily imposing workload burdens on the Corps. If EPA did
not impose such a prerequisite, the Corps could be asked to embark upon
lengthy assessments of the scope of retained waters at the request of
State environmental agency staff, for example, only to find out after
having expended significant resources that the State legislature or
governor has no intention of pursuing program assumption. EPA is
therefore finalizing its requirement that a Tribe or State document it
has taken concrete and substantial steps toward program assumption
before submitting its request for a retained waters description.
In addition to seeking to facilitate the clarity and efficiency of
the program assumption process, EPA also seeks to increase public
participation and transparency. To that end, EPA is providing that,
upon transmitting a request for a retained waters description to the
Corps, the Agency will also post a public notice of that transmission
on its website and notify members of the public known to be interested
in these matters of that transmission, inviting public input to the
Corps as well as the State or Tribe on the scope of the retained waters
description within a 60-day period. The Corps (or the Tribe or State if
the Corps declines to define the description) may consider submitted
information in developing its description. If the Corps were to develop
the description, the Tribe or State may provide information to the
Corps during that 60-day period. Similarly, if the Tribe or State were
to develop the list, the Corps may provide information to the Tribe or
State before the end of that 60-day period. Regardless of which entity
develops the retained waters description, the Corps and Tribe or State
will likely maintain regular communication regarding its development.
Yet providing data at the beginning of the description development
process will ensure that it can be adequately considered.
This public notice and input provision responds to some commenters'
requests for additional opportunities for public participation in the
development of the retained waters description, while also retaining
the efficiency in the description development process that other
commenters requested. EPA is not establishing a public notice and
comment period on the final retained waters description distinct from
the other procedural steps, as that would lengthen the time period for
seeking assumption and impose a substantial burden on the Corps, the
assuming State or Tribe, and EPA. A 60-day public input period,
however, would increase public participation in the process of
determining which waters the Corps would retain and the Tribe or State
would assume, without delaying the assumption process. The Corps (or
the Tribe or State) would not be obligated to respond directly to this
input but could consider it in compiling its description of retained
waters.
Members of the public have another opportunity to provide comment
on the retained waters description when reviewing the Tribe's or
State's program submission. Some commenters requested a separate public
notice and comment process specifically if a State takes on the
development of the retained waters description. EPA expects that the
public input opportunity offered when EPA transmits a request for a
retained waters description to the Corps will be sufficient to provide
the Tribe or State with information to assist in developing the
description. Moreover, a Tribe or State may provide opportunities for
public engagement as it develops its program submission, which would
again allow members of the public to provide input on the retained
waters description.
If the Corps notifies the Tribe or State and EPA within 30 days of
receipt of the request transmitted by EPA that it intends to provide a
retained waters description, the Corps would have 180 days from the
receipt of the request transmitted by EPA to develop the description.
During the 180-day period the Corps would be able to review the current
RHA section 10 list(s); place waters of the United States or reaches of
those waters from the RHA section 10 list into the retained waters
description if they are known to be presently used or susceptible to
use in their natural condition or by reasonable improvement as a means
to transport interstate or foreign commerce; and to the extent feasible
and to the extent that information is available, add other waters or
reaches of waters to the retained waters description that are presently
used or are susceptible to use in their natural condition or by
reasonable improvement as a means to transport interstate or foreign
commerce.
If the Corps does not notify the Tribe or State and EPA within 30
days of receipt of the request transmitted by EPA that it intends to
provide a retained waters description, the Tribe or State may prepare a
retained waters description using the same approach outlined above for
the Corps. Similarly, if the Corps had originally indicated that it
would provide a retained waters description but does not provide one
within 180 days of EPA's transmission to the Corps, the Tribe or State
may develop the retained waters description using the same approach
described above. Alternatively, the Tribe or State and the Corps may
also mutually agree to provide the Corps additional time to provide a
retained waters description.
EPA received a number of comments on the time frame and
coordination process outlined in the proposed rule, which it is
finalizing in this rule. Some commenters stated that the Corps should
be allowed one year to develop a retained waters description to allow
sufficient time to conduct the assessments needed to compile a complete
description, particularly given that some RHA section 10 lists may be
outdated. Some commenters also stated that under no circumstances
should a Tribe or State have the opportunity to develop a retained
waters description, contending that States lack the authority and
expertise to make these determinations. Other commenters stated that
180 days was too long a period to require a State or Tribe to wait
prior to finalizing their program submission, and that Congress did not
intend States and Tribes to have to wait for this length of time.
EPA decided to finalize its proposed approach of allowing the Corps
180 days to develop a list, which it views as striking a balance
between the desire of States and Tribes to understand the scope of a
potential program as quickly as possible, and the time the Corps needs
to complete the resource-intensive process of assessing those waters
that meet the statutory criteria to be retained. Moreover, in response
to those commenters who urged EPA to allow the Corps additional time,
EPA added a provision that would extend the 180-day time frame if the
requesting Tribe or State agrees with the Corps on an extension. In
response to the commenters that stated that Tribes or States may never
develop a retained waters description, EPA views this rule as providing
ample opportunity and encouragement to the Corps to develop the
description. However, allowing a Tribe or State opportunity to develop
a list if the Corps chooses not to do so is a backstop that is
consistent with and helps to implement the statute's intent of
facilitating Tribal and State assumption. Nothing in the CWA prohibits
the Tribe or State from developing a retained waters description. The
Act requires that the Tribe or State submit a description of assumed
waters, and it is reasonable for the Agency to allow a Tribe or State
to submit such a description for EPA
[[Page 103473]]
approval with their program request, if the Corps declines to develop a
retained waters description.
EPA disagrees with those commenters who expressed concerns that
allowing the Corps 180 days to develop a retained waters description
would unduly hamper Tribal or State efforts to develop a program
submission. In EPA's experience, States that have considered seeking
assumption typically spend at least several years preparing their
submissions. Allowing the Corps to spend 180 days developing the
description (or more, if an extension is jointly agreed upon) would
therefore be unlikely to impede Tribal or State efforts. Moreover, the
Corps may need 180 days to allocate staff to this project and conduct
the reviews and analyses needed to determine which waters meet the
statutory criteria to be retained by the Corps.
The Subcommittee majority recommended that identification of the
subset of waters of the United States over which the Corps would retain
administrative authority be a collaborative process. EPA anticipates
that, when a Tribe or State seeks assumption, the Tribe or State, the
Corps, and EPA will engage collaboratively throughout the development
of this description of retained waters to be submitted with the program
request package for review.
Even if the Corps does not provide a retained waters description to
the Tribe or State, the Corps may provide relevant information to the
Tribe or State at any time during the Tribe's or State's development of
the retained waters description. In addition, the Corps would have two
formal opportunities to review the list of retained waters that is
produced by the Tribe or State. First, the Memorandum of Agreement
between the Corps and the Tribe or State includes a description of
retained waters, and thus the Corps would have the opportunity to
review the description of retained waters during the drafting process
for that memorandum and before signing that memorandum. Second, the
Corps would have the opportunity to review and provide comments on the
Tribe's or State's program submission materials, which includes the
description of retained waters, after the Tribe or State submits a
program request to EPA. Similarly, if the Corps provides a retained
waters description to the Tribe or State, the Tribe or State would
presumably review it to ensure that the retained waters description
reflects waters presently used or susceptible to use in their natural
condition or by reasonable improvement as a means to transport
interstate or foreign commerce, including all waters which are subject
to the ebb and flow of the tide, as well as wetlands that are adjacent
to the foregoing waters, to the extent feasible and to the extent that
scope of waters is known.
The Subcommittee majority recommended that EPA and the Corps
establish a clear dispute resolution procedure to be followed if the
Tribe or State and the Corps were not able to complete the retained
waters description. Because EPA believes that the proposed approach
lays out a clear process for establishing the description, EPA is not
specifying such a dispute resolution procedure by regulation. See
section IV.E.1 of this preamble for further discussion on dispute
resolution. EPA encourages Tribes and States seeking to assume the
section 404 program to work collaboratively with the Corps to resolve
any issues, and EPA may participate in these discussions to advise and
facilitate development of the description.
EPA's process, similar to the one described by the Subcommittee
majority, is clear and practical, is based on available and relatively
stable and predictable information, and is able to be implemented
efficiently at the time a Tribe or State seeks assumption. It is also
consistent with the text and history of section 404(g), which reflects
Congress' intent that the Corps generally retain permitting authority
over certain RHA section 10 waters. See section III.A of this preamble.
Because the Agency's approach, consistent with the Subcommittee
majority's recommendation, effectuates the language and history of
section 404(g) and achieves Congress' goal of providing an
implementable approach for assumption, generally speaking, a retained
waters description that uses this approach will satisfy the statutory
criteria for retained waters. However, the Regional Administrator
retains the ultimate authority to determine whether to approve a Tribal
or State program. As this approach does not conflict with the approved
extent of the Michigan and New Jersey programs, no changes to their
existing program scope would be required.
3. Modifying the Extent of Retained Waters
EPA is revising the provision in the prior regulations that
currently states that modifications that affect the area of
jurisdiction (such as modifications to the retained waters description)
always constitute substantial revisions to a Tribal or State program.
The prior regulations provide that EPA may approve non-substantial
revisions by letter, but require additional procedures, including
public notice, inter-agency consultation, and Federal Register
publication, for substantial revisions. 40 CFR 233.16(d)(2)-(4) (2023).
EPA is modifying this provision to provide that all removals, except de
minimis removals, from the retained waters description are
``substantive,'' and therefore trigger the notice requirements for
``substantive'' program changes.'' In addition, changes in geographic
scope of an approved Tribal CWA section 404 program that would add
reservation areas to the scope of its approved program are substantial
program revisions.
EPA had proposed removing the provision stating that modifications
affecting the area of jurisdiction always constitute substantial
revisions, though also providing that changes in geographic scope of an
approved Tribal CWA section 404 program that would add reservation
areas to the scope of its approved program are substantial program
revisions. The proposed change was based on EPA's experience that
retained waters descriptions sometimes require minor tweaks (such as
minor modifications to the head of navigation of a particular
waterbody) and that requiring a full Federal Register notice for such
changes is unnecessarily burdensome. Commenters expressed concern,
however, that pursuant to the proposed revision waters could be
reassigned to State jurisdiction without any public notice or
opportunity to comment. These commenters therefore asked that all
removals from the retained waters description be viewed as substantial
revisions. EPA is accepting this recommendation and finalizing this
approach, with the qualification that de minimis removals are not
substantial. Examples of de minimis removals may include a reduction in
the length of a retained portion of a waterbody by a hundred feet
prompted by a new navigability study or changes resulting from a water
infrastructure project, or the removal from the retained waters
description of an oxbow lake that sedimentation has severed from a
Corps-retained river. EPA thinks this approach will achieve EPA's goal
of removing unnecessarily burdensome procedures while providing
transparency for interested parties.
While development of the retained waters description involves
collaboration between the Corps and the Tribe or State, the Corps
remains the agency with sole responsibility for maintaining and
modifying any RHA section 10 list. The Subcommittee
[[Page 103474]]
majority recognized that the Corps may add waters to RHA section 10
lists after a Tribe or State assumes the program. The Subcommittee
majority recommended that in such cases, Tribes or States may revise
their retained waters descriptions to add these waters, if consistent
with CWA section 404(g)(1). As discussed above, an RHA section 10 list
will not necessarily be co-extensive with the retained waters
description and changes to RHA section 10 lists do not always warrant
changes to the retained waters description. For example, if the Corps
adds to its RHA section 10 list a water which was historically used in
interstate or foreign commerce but is no longer used or susceptible to
use for that purpose, that water would not be added to the retained
waters description.
If, however, the Corps were to add waters to its RHA section 10
list that are used or susceptible to use in interstate or foreign
commerce, the relevant Tribe or State would add these waters to the
retained waters description. To provide a predictable and transparent
procedure for such modifications, and to address commenters' concerns
that many RHA section 10 lists are not currently up to date, the final
rule provides that the Memorandum of Agreement between the Corps and
the Tribe or State must outline procedures whereby the Corps will
notify the Tribe or the State of changes to the RHA section 10 list as
well as the extent to which these changes implicate the statutory scope
of retained waters. Pursuant to the Memorandum of Agreement, the Tribe
or State would incorporate the changes the Corps has identified as
implicating the scope of retained waters into its retained waters
description.
Under the final rule, EPA would have discretion to determine
whether additions to the area of jurisdiction, which includes the
extent of retained waters, are substantial or non-substantial. EPA may
then decide whether to approve the modification to the retained waters
description consistent with the procedures in 40 CFR 233.16.
This rule clarifies that changes in geographic scope of an approved
Tribal CWA section 404 program that would add reservation areas to the
scope of its approved program are substantial program revisions. Where
a Tribe seeks to include additional reservation areas within the scope
of its approved program, the Regional Administrator must determine that
the Tribe meets the TAS eligibility criteria for the additional areas
and waters. The substantial modification process involves circulating
notice to ``those persons known to be interested in such matters,
provide opportunity for a public hearing, and consult with the Corps,
FWS, and NMFS.'' 40 CFR 233.16(d)(3). In the case of a change in
geographic scope of a Tribal program, known interested persons would
typically include representatives of Tribes, States, and other Federal
entities located contiguous to the reservation of the Tribe which is
applying for TAS. See, e.g., Amendments to the Water Quality Standards
Regulation That Pertain to Standards on Indian Reservations, 56 FR
64876, 64884 (December 12, 1991). This clarification is necessary
because as discussed above, additions that affect the area of
jurisdiction are not always substantial. However, revising a Tribal
program to add new reservation land and waters of the United States on
that land is substantial because it requires a determination that the
Tribe meets the TAS eligibility criteria for such areas, pursuant to 40
CFR part 233, subpart G.
EPA is further amending the procedures associated with approval of
program revisions to require EPA to notify the Corps of all approvals
of program modifications, whether they are substantial or non-
substantial. EPA is also requiring that other Federal agencies be
notified of these program modification approvals as appropriate.
4. Additional Clarification
EPA is removing the term ``traditionally'' from the term
``traditionally navigable waters'' in the following provision: ``Where
a State permit program includes coverage of those traditionally
navigable waters in which only the Secretary may issue 404 permits, the
State is encouraged to establish in this Memorandum of Agreement
procedures for joint processing of Federal and State permits, including
joint public notices and public hearings.'' 40 CFR part 233.14(b)(2).
EPA is removing the term ``traditionally'' to align the reference to
retained waters with the rest of this preamble and regulations, which
refer to retained waters using the statutory language in the section
404(g) parenthetical, and do not refer to retained waters as
``traditionally'' or ``traditional navigable waters.'' ``Traditional
navigable waters'' are defined in the definition of ``waters of the
United States'' and are not addressed by this rule. See 40 CFR part
120.2(a)(1)(i).
3. Program Assumption Requirements
a. Overview and What the Agency Is Finalizing
The Agency proposed changes to better harmonize its program
approval requirements with program requirements in other sections of
the CFR. To assume the section 404 program, a Tribe or State must be
able to demonstrate that it can meet the requirements for permitting,
program operation, compliance evaluation and enforcement, and
administer a program that is consistent with section 404. EPA is
revising the requirements for the program descriptions that Tribes and
States submit to EPA when they request approval to assume the section
404 program. First, the revisions clarify that the description of the
funding and staff devoted to program administration and compliance
evaluation and enforcement must demonstrate that the Tribe or State is
able to carry out the existing regulatory requirements for permit
review, program operation, and compliance evaluation and enforcement
programs, provided in 40 CFR part 233 subparts C through E. In order to
do so, the Tribe or State must provide in the program description staff
position descriptions and qualifications, program budget and funding
mechanisms, and any other information a Tribe, State, or EPA considers
relevant. The revisions ensure that when a Tribe or State submits a
request to assume the section 404 program, its program submission would
demonstrate the Tribe or State has the resources necessary to ensure
that the permit decisions comply with permit requirements in 40 CFR
part 233 subpart C, as applicable; that its permitting operations would
comply with the program operation requirements of 40 CFR part 233
subpart D, as applicable; and that its compliance evaluation and
enforcement operations would comply with the compliance evaluation and
enforcement requirements of 40 CFR part 233 subpart E, as applicable.
EPA is also revising the requirement that currently provides that
if more than one State agency is responsible for the administration of
the program, the program description shall address the responsibilities
of each agency and how the agencies intend to coordinate
administration, compliance, enforcement, and evaluation of the program.
This rule adds that the program description must address additional
program budget and funding mechanisms for each of these agencies, and
how the agencies intend to coordinate program funding.
[[Page 103475]]
Similarly, the Agency is revising the requirement that the Tribe or
State program description include ``[a] description of the scope and
structure of the State's program. . .[which] should include [the]
extent of [the] State's jurisdiction, scope of activities regulated,
anticipated coordination, scope of permit exemptions if any, and permit
review criteria.'' 40 CFR part 233.11(a) (2023). EPA is clarifying that
this description ``must'' address all of the listed elements in
233.11(a). The rule is also clarifying that the description must
provide sufficient information to demonstrate that the criteria are
sufficient to meet the permit requirements in 40 CFR 233 subpart C.
These revisions do not substantively change the requirements for permit
review, program operation, and compliance evaluation and enforcement
programs. Rather, they ensure that Tribes or States provide EPA with
sufficient information to ensure that Tribal or State programs would be
able to meet these requirements.
Finally, EPA is revising the program description requirement that
if more than one Tribal or State agency would be administering the
program, the program description shall address inter-agency
coordination. The revision clarifies that the description of inter-
agency coordination must include coordination on enforcement and
compliance.
b. Summary of Final Rule Rationale and Public Comment
CWA section 404(h) provides that, before approving a Tribe's or
State's section 404 program, EPA shall determine whether the Tribe or
State has the authority to administer the program, including to issue
permits that comply with the CWA 404(b)(1) Guidelines, to provide for
public notice and opportunity for comment on permit applications, and
to abate violations of the permit or permit program. See 33 U.S.C.
1344(h)(1)(A), (C), (G). Section 404(h) refers to a Tribe's or State's
``authority,'' but legal authority would be meaningless without the
capacity to implement it. Clarifying that EPA must ensure that Tribes
and States have the resources and programs in place to implement their
authority best carries out section 404(h).
EPA's existing regulations effectuate section 404(h) by imposing
program requirements for permitting, program operation, and compliance
evaluation and enforcement set forth in 40 CFR part 233 subparts C
through E to administer a program that is consistent with section 404.
A program that lacks the resources to meet these requirements would not
be able to carry out its statutory and regulatory obligations. This
rule would not change these existing requirements; rather, it would
ensure that the program submission provides information necessary to
determine that Tribes and States can meet them.
In the 1988 preamble to the section 404 State program regulations,
EPA stated that the program description Tribes and States must submit
to EPA ``should provide the information needed to determine if the
State has sufficient manpower to adequately administer a good
program.'' 53 FR 20764, 20766 (June 6, 1988). However, 40 CFR part 233
subpart B, which contains the requirements for program approval, does
not explicitly state that Tribes and States must demonstrate that they
have sufficient resources to meet the requirements for permit issuance,
program operation, and compliance and enforcement outlined in subparts
C through E. The regulations require that the program description
contain ``a description'' of available funding and manpower (i.e.,
staffing),\33\ 40 CFR 233.11(d) (2023), but did not clearly state that
the available funding and staffing must be sufficient to meet the
requirements of subparts C through E. In addition, the regulations
provide that the program description must include ``a description'' of
the Tribe's or State's compliance evaluation and enforcement programs,
including a description of how the Tribe or State will coordinate its
enforcement strategy with the Corps and EPA, 40 CFR 233.11(g) (2023),
but did not clearly state that the Tribe's or State's compliance
evaluation and enforcement programs must be sufficient to meet the
requirements for section 404 program compliance evaluation and
enforcement in subpart E. In the absence of these clarifications, the
regulations did not provide sufficient guidance as to what kind of
demonstration is needed by Tribes and States as they develop their
programs. This revision would clarify the subpart B descriptions Tribes
or States must submit, consistent with the goal of this rulemaking, to
provide more clarity on the program assumption process for Tribes and
States. See section III.B of this preamble. The purpose of subpart B is
to require Tribes and States to demonstrate that they in fact have the
capacity to carry out subparts C through E, pursuant to the original
intent of the current regulations, and these changes would better
reflect that intent.
---------------------------------------------------------------------------
\33\ In this revision, EPA is replacing the term ``manpower''
with ``staffing'' and will use the term ``staffing'' throughout this
preamble.
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This rule requires the program description to identify position
descriptions and qualifications as well as budget and funding
mechanisms for all responsible Tribal or State agencies because this
information is critical to understanding whether a Tribe or State will
be able to administer subparts C through E. EPA must be able to
determine that the Tribe or State will have sufficient qualified staff
and a reliable and sufficient funding mechanism that will be
commensurate with the responsibilities it seeks to assume. Given the
importance of these elements, Tribes and States should have staffing
and budget information readily available, and providing it in the
program description should not impose a significant new burden.
Some commenters opposed these revisions, as presented in the
proposed rule, arguing that such requirements could result in
unnecessary delays or confuse Tribes or States preparing assumption
submissions. These commenters also stated that such revisions are
unnecessary. For example, one commenter argued that to the extent EPA
were to find, for example, staffing levels described in the program
description insufficient, the 120-day review period for program
submissions would not provide time for a Tribe or State to increase
those levels. EPA disagrees with these commenters and has decided to
finalize these revisions for the reasons discussed above. In response
to the commenter that said that information about staffing levels would
not aid EPA, EPA thinks that requiring transparency about staffing
levels will encourage Tribes and States to ensure that their staffing
levels will be sufficient to carry out their program. Without adequate
staff to draft protective permits and inspect and review dredged and
fill activity, it is not possible for a program to comply with CWA
requirements. For example, EPA cannot assess a Tribe's or State's
ability to administer CWA section 404 if it does not know whether the
Tribe or State will have two permit writers or twenty. Moreover, EPA
typically provides extensive technical support to Tribes and States
that are preparing program submissions, and Tribes and States may
discuss staffing levels with EPA at any time prior to their program
submission.
Many commenters supported the revisions in this section. Some asked
EPA to require additional information from Tribes or States. One
suggested addition was to require budget and funding information for
all Tribal or State agencies with program
[[Page 103476]]
administration responsibilities, not just the lead agency. This
suggested requirement is consistent with the budget and funding
information EPA proposed to require, and simply addresses a potential
ambiguity by clarifying that the budget and funding information EPA
requests applies to all Tribal or State agencies with a role in the
section 404 program, not just the lead agency. EPA is therefore
adopting this suggested requirement in the final rule.
Other program description requirements that commenters asked EPA to
finalize include, but are not limited to: Tribes or States seeking to
reallocate existing resources must describe the duties that existing
staff will no longer perform and the skills and expertise staff have
that apply to reallocated tasks; Tribal or State budget descriptions
must account for all aspects of the section 404 program, including
administrative work, human resources, information technology, training,
guidance, leadership, enforcement, compliance, scientific personnel,
on-site activities and legal personnel; and Tribes or States must
demonstrate that any existing CWA-authorized programs are adequately
funded and staffed. EPA considered requiring some or all of the
suggested information of Tribes and States, but ultimately concluded
that requiring this level of detail is unnecessary. EPA will not always
need each of these pieces of information to determine whether a program
submission meets the requirements of the CWA. Codifying information
requirements with this degree of specificity could limit flexibility on
the part of Tribes or States and EPA to design and approve program
descriptions reflecting their particular circumstances. However, EPA
views this suggested information as helpful guidance to Tribes or
States as they assess how best to demonstrate that they have the
capacity to administer the section 404 program. Tribes and States are
welcome to submit this type of information, and if they do so, it will
likely aid EPA's review of the program submission.
EPA recommends that Tribes and States provide other information to
the extent it is necessary to demonstrate that they will be able to
carry out subparts C through E. Some commenters suggested that if a
Tribal or State program submission commits to conduct the same
activities as the Corps but with a lower budget or fewer staff people,
the submission must provide detailed documentation demonstrating how
they will be able to successfully administer the section 404 program.
In fact, one commenter noted that Tribes or States should allocate more
money to assumption than the Corps in the first few years of
assumption, given the additional costs of starting a program. To the
extent Tribes or States can compare resource levels with the Corps',
EPA agrees with the commenter that this information would be useful,
and strongly encourages Tribes and States to provide such comparisons.
EPA is not codifying this requirement, however, as differences in
administrative structures may render a direct comparison between Tribe
or State funding or staff and Corps funding or staff infeasible. For
example, a Corps district may not be able to identify the number of
staff focused solely on section 404 permitting or on a single State, if
its staff administers the section 404 regulatory program as well as RHA
section 10 or other types of permitting programs, and/or if the staff
manages permitting for a number of States. The difficulties with direct
comparisons could be compounded in States that include multiple Corps
districts. An alternative approach could compare the average number of
different types of section 404 permits (i.e., individual versus general
permits) Corps staff handle in a district to the average number of
permits the Tribe or State has or anticipates its staff will handle in
an assumed program.
The rule does not prescribe a particular metric that Tribes or
States must use to ensure sufficient funding, staffing, or compliance
evaluation and enforcement programs. It also does not prescribe the
specific position descriptions and qualifications a Tribe or State must
have, a minimum budget, or a particular type of funding mechanism. The
rule therefore retains a certain amount of flexibility for Tribes and
States, recognizing that the section 404 program needs of different
Tribes and States can differ. Tribal or State agencies likely have
varying procedures for determining sufficient staff and funding levels
and may choose to organize their programs in different ways.
Furthermore, the necessary section 404 program budget may differ
depending on the anticipated workload in the particular Tribe or State,
such as the number of permits typically sought, the extent and types of
aquatic resources assumed, and the types of compensatory mitigation
mechanisms used. In adding clarification to better carry out the
requirements of 40 CFR 233.11, this revision does not reopen those
requirements.
EPA's clarification, that as part of the program description, the
Tribe or State must demonstrate that its permit review criteria are
sufficient to carry out the permitting requirements of 40 CFR part 233
subpart C, has the same goal as the program revisions described above:
it would harmonize the requirements for the program description with
the requirements for program operation, and facilitate EPA's ability to
ensure that Tribal and State permits will comply with the CWA 404(b)(1)
Guidelines.
Finally, requiring that the description of Tribal and State agency
coordination on program administration must address enforcement and
compliance will enable EPA to ensure the Tribe or State can comply with
the requirements of 40 CFR part 233 subpart E, which prescribes the
enforcement and compliance requirements for assumed programs.
4. Mitigation
a. Overview and what is the Agency finalizing?
The CWA and EPA's implementing regulations provide that every
permit issued by a Tribe or State must apply and ensure compliance with
the guidelines established under CWA section 404(b)(1).\34\ 33 U.S.C.
1344(h)(1)(A)(i); 40 CFR 233.20(a), 233.23(c)(9) (2023). Under CWA
404(b)(1) Guidelines, impacts to waters of the United States should be
avoided and minimized to the maximum extent practicable before
considering compensatory mitigation.\35\ 40 CFR 230.10(a), (d). In
2008, the Corps and EPA issued joint regulations \36\ requiring
performance standards and establishing criteria for all types of
compensatory mitigation including: (1) on- and off-site permittee-
responsible compensatory mitigation, (2) mitigation banks, and (3) in-
lieu fee programs, to ``offset unavoidable impacts to waters of the
United States authorized through the issuance of permits by the U.S.
Army Corps of Engineers (Corps) pursuant to
[[Page 103477]]
section 404 of the Clean Water Act.'' 40 CFR 230.91(a)(1).
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\34\ See section IV.A.2 of this preamble for a discussion on how
a Tribe or State can demonstrate that it has the authority to issue
permits that apply and assure compliance with aspects of the CWA
404(b)(1) Guidelines other than compensatory mitigation.
\35\ The term compensatory mitigation means ``the restoration
(re-establishment or rehabilitation), establishment (creation),
enhancement, and/or in certain circumstances preservation of aquatic
resources for the purposes of offsetting unavoidable adverse impacts
which remain after all appropriate and practicable avoidance and
minimization has been achieved.'' 40 CFR 230.92.
\36\ ``Compensatory Mitigation for Losses of Aquatic Resources''
73 FR 19594 (April 10, 2008). (Commonly referred to or known as the
``2008 Mitigation Rule''). The 2008 Mitigation Rule was adopted into
both EPA and the Corps regulations. See 33 CFR 325.1 and 332.1
through 332.8 and 40 CFR 230.91 through 230.98. The Agency refers to
EPA's regulations located at 40 CFR 230.91-98 as subpart J of the
404(b)(1) Guidelines throughout this final rule.
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The prior regulations reaffirmed that all permits issued by Tribal
and State programs must accord with the requirements of the Act or
regulations thereunder. 40 CFR 233.1(d), 233.20(a) (2023). As
previously described in section IV.A.2 of this preamble, Congress
allowed leeway for Tribes and States to craft a Tribal or State program
consistent with circumstances specific to that Tribe or State, so long
as their permits will assure compliance with the CWA 404(b)(1)
Guidelines at least as stringently as permits issued by the Corps. EPA
further explained in promulgating the CWA 404(b)(1) Guidelines that
they are intended to provide ``a certain amount of flexibility,''
consisting of tools for evaluating proposed discharges, rather than
numeric standards. 45 FR 85336, 85336 (December 24, 1980).
While 40 CFR 233.1(d) of the prior regulations reemphasized that
approved Tribe and State programs ``may impose more stringent
requirements'' but ``may not impose any less stringent requirements for
any purpose,'' the regulations did not provide any detail as to how a
Tribe or State can demonstrate and ensure compliance with the
substantive criteria and requirements of subpart J of the 404(b)(1)
Guidelines, as subpart J was developed more than a decade after the
Tribal and State section 404 program regulations were revised in 1988.
Additionally, the language used in subpart J of the 404(b)(1)
Guidelines focuses on Federal concerns regarding permits issued by the
Corps; for example, it references the ``DA [Department of the Army]
permits'' and the ``district engineer'' and does not refer to or
account for Tribe- or State-issued permits. See 73 FR 19650. These
Corps-related references have created confusion. As a result, States
have requested clarity on how a Tribe or State can demonstrate that it
has authority to issue permits that apply and assure compliance with
the substantive criteria for compensatory mitigation set forth in
subpart J of the CWA 404(b)(1) Guidelines. States have also requested
clarification about the respective roles and responsibilities of the
Tribe or State and Federal agencies in connection with compensatory
mitigation for impacts to assumed waters.
With respect to subpart J of the 404(b)(1) Guidelines, EPA
recognized some terminology and discussion refers to the Corps as the
permitting authority. EPA proposed modifying section 233.1(e) to
clarify that references to the Corps as the permitting authority (such
as references to the ``District Engineer'' or ``DA Permits'') are to be
considered as applying to the Tribal or State permitting agency or
decision maker as appropriate. The final rule codifies this proposed
approach. 40 CFR 233.1(e).
Secondly, EPA proposed a new provision codifying its interpretation
that the Tribe's or State's approach may deviate from the specific
requirements to the extent necessary to reflect Tribal or State
administration of the program as opposed to the Corps' administration,
but that these programs may not be less stringent than the substantive
criteria of subpart J. Furthermore, the new provision requires Tribes
or States to submit in their program description the Tribe's or State's
proposed approach to ensuring that all permits they issue will apply
and ensure compliance with the substantive criteria for compensatory
mitigation consistent with the requirements of subpart J of the CWA
404(b)(1) Guidelines at 40 CFR part 230. EPA is finalizing what was
proposed without modification in section 233.11(k).
Finally, EPA proposed to add a new provision to section 233.50 to
address EPA's oversight responsibilities where Tribe or State programs
are establishing third-party compensation mechanisms (i.e., mitigation
banks or in-lieu fee programs) as part of their section 404
program.\37\ The proposed process also intended to incorporate input
from other relevant agencies, which is analogous to the way the
Interagency Review Team (IRT) that oversees mitigation for Corps-issued
permits incorporates input from other relevant agencies. See, e.g., 33
U.S.C. 1344(g), (h); 40 CFR 233.20(b) (``No permit shall be issued . .
. [w]hen the Regional Administrator has objected to issuance of the
permit . . .''); 40 CFR part 233 generally; 40 CFR 230.98(b)
(describing Interagency Review Team procedures). The Agency also
proposed to revise the section title for section 233.50 to read
``Review of and objection to State permits and review of compensatory
mitigation instruments.'' This revision was intended to reflect the
Agency's role in reviewing Tribal or State compensatory mitigation
instruments.
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\37\ This requirement does not include permittee-responsible
mitigation plans as those would be reviewed as part of the permit
conditions. If the Tribe or State uses permittee-responsible
mitigation, the mitigation plan would be reviewed as part of the
permit process. After approval, all specifications generally would
be presented as permit conditions.
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The new provision (i.e., section 233.50(k)) outlines a process
which requires Tribes or States to transmit a copy of each draft
instrument to EPA, the Corps, the U.S. Fish and Wildlife Service, and
the National Marine Fisheries Service for review prior to approving the
final instrument, as well as to any Tribal or State resource agencies
to which the Tribe or State committed to send draft instruments in the
program description. In the event that EPA has commented that the
instrument is not consistent with the 404(b)(1) Guidelines (see section
233.11(k)), the Tribe or State shall not approve the final compensatory
mitigation instrument until EPA notifies the Director that the final
instrument is consistent with the Guidelines. EPA is finalizing the
proposed process along with specific time frames for receiving comments
from the reviewing agencies in section 233.50(k).
b. Summary of Final Rule Rationale and Public Comment
i. Clarifying Authority
The final rule, consistent with the proposal, clarifies in the new
provision 233.1(e) that when a Tribe or State assumes the section 404
program, references to the Corps as the permitting authority (such as
references to the ``District Engineer'' or ``DA Permits'') in subpart J
are to be considered as applying to and being implemented by the Tribal
or State permitting agency or decision maker. EPA received no comments
on this issue.
ii. Ensuring Consistency and Compliance With Subpart J
The new provision 40 CFR 233.11(k) accomplishes three objectives.
First, the new provision requires that Tribes or States submit in their
program description their approach to ensure that all permits issued
will satisfy and be consistent with the substantive standards and
criteria of the compensatory mitigation set out in subpart J. This
description allows EPA to evaluate whether the Tribe's or State's
approach can implement a compensatory mitigation program consistent
with the requirements of the CWA. Second, the new provision at section
233.11(k) clarifies that the Tribe's or State's approach may deviate
from the specific requirements of subpart J to the extent necessary to
reflect Tribal or State administration of the program. For example, a
Tribal or State program may choose to provide for mitigation in the
form of banks and permittee responsible compensatory mitigation but may
choose not to establish an in-lieu fee program. Lastly, the new
provision at section 233.11(k) codifies EPA's interpretation that
Tribal and State section 404 programs must issue permits that are no
less stringent
[[Page 103478]]
than and consistent with the substantive criteria for compensatory
mitigation described in 40 CFR part 230, subpart J. The new provision
is consistent with CWA section 404(h)(1)(a), 40 CFR 233.1(e), and 40
CFR 233.20(a).
Commenters were divided on the Agency's proposed approach to this
new provision. Commenters opposing the Agency's proposed approach asked
the Agency to require Tribes and States to adopt verbatim or by
reference the requirements of subpart J of the section 404(b)(1)
Guidelines. These commenters asserted that verbatim adoption or
incorporation by reference of the mitigation requirements set forth in
subpart J would ensure consistency with the 404(b)(1) Guidelines and
``promote consistency and ease for the EPA, permittees and citizens.''
Commenters supporting the proposed approach (i.e., allowing Tribal and
State programs to deviate from the substantive criteria of subpart J)
asserted that Tribes and States are in a better position to make
decisions and design appropriate mitigation approaches for their Tribe
or State than the Corps. Some commenters requested that EPA provide
clearer direction on its expectations for resource mitigation,
including banking and in-lieu fee proposals, greater specificity as to
the standards EPA will use to review an applicant's proposed mitigation
program, and require additional requirements in mitigation proposals.
The Agency considered these comments and decided to finalize the
proposed approach for several reasons. First, while nothing in this
rule prohibits Tribes or States from adopting or incorporating the CWA
404(b)(1) Guidelines, requiring Tribes and States to adopt or
incorporate the CWA 404(b)(1) Guidelines, including subpart J, would
conflict with the leeway Congress provided to Tribes and States to
craft a Tribal or State program consistent with circumstances specific
to that Tribe or State, so long as their permits will assure compliance
with the CWA 404(b)(1) Guidelines at least as stringently as permits
issued by the Corps. Recognizing that a CWA section 404 permit may be
required for a variety of discharges into a wide range of aquatic
ecosystems, EPA explained in promulgating the CWA 404(b)(1) Guidelines
that they are intended to provide ``a certain amount of flexibility,''
consisting of tools for evaluating proposed discharges, rather than
numeric standards. 45 FR 85336, 85336 (December 24, 1980). Similarly,
as described in section IV.A.2 of this preamble, requiring Tribes or
States to adopt or incorporate subpart J would complicate efforts by
Tribes and States to impose more stringent requirements as part of
their CWA section 404 programs. See section IV.A.2 of this preamble for
further discussion on 404(b)(1) Guidelines.
Commenters noted that mitigation requirements are tiered (or
hierarchical) and insisted EPA should not allow State programs to
``pick and choose'' between the allowable forms of mitigation (e.g.,
permittee responsible, mitigation banks, and in-lieu fees). A commenter
stated that State programs which ``do not provide for all and follow
the established hierarchy for their use would have less stringent
compensatory mitigation requirements as compared to the federal
program.'' EPA disagrees with this commenter. Tribes and States may not
impose requirements less stringent than Federal requirements.
Accordingly, Tribes and States must follow the hierarchical approach
laid out in subpart J of the 404(b)(1) Guidelines. See 40 CFR
230.93(b). But following this approach does not require the
establishment of all three mechanisms listed in the hierarchy. Rather,
Tribes and States, like the Corps, must apply the hierarchy to
available mechanisms to determine the appropriate type of compensatory
mitigation.
iii. Third Party Compensatory Mitigation Instrument Oversight and
Approval
EPA is finalizing the proposed process, which will implement the
Agency's oversight responsibilities of third-party compensatory
mitigation instrument approvals (i.e., mitigation banks and in-lieu fee
programs), as well as provide opportunities for other agencies to
review and comment on third-party compensatory instruments prior to
approval. 40 CFR 233.50(k). Under the final process, a Tribe or State
must provide EPA, the Corps, the U.S. Fish and Wildlife Service and the
National Marine Fisheries Service an opportunity to review and comment
on any draft compensatory mitigation instruments before the Tribe or
State may establish the proposed instrument. The Tribe or State may
also commit in their program description to include Tribal or State
resource agencies in the circulation of draft instruments for approval.
If EPA comments that the instrument fails to apply or ensure compliance
with the section 404(b)(1) Guidelines, the Tribe or State may not
approve the final compensatory mitigation instrument until they address
EPA's comments and EPA notifies it that the final instrument ensures
compliance with this approach.
The Agency expects this instrument review process would be familiar
to Tribes and States because it is modeled on, and similar to, the
procedures for EPA review of permits, but does not replicate them. This
process also facilitates input from other relevant agencies, similar to
how an Interagency Review Team provides input to the Corps from other
relevant Federal and State agencies on compensatory mitigation
instruments. See, e.g., 33 U.S.C. 1344(g), (h); 40 CFR 233.20(b) (``No
permit shall be issued . . . [w]hen the Regional Administrator has
objected to issuance of the permit . . .''); 40 CFR part 233 generally;
40 CFR 230.98(b) (describing Interagency Review Team procedures).
Overall, the Agency believes this review process provides sufficient
oversight for Tribal or State compensatory mitigation instruments and
provides opportunity for multiple agencies to provide input on the
draft compensatory instrument before it is approved. The Agency
believes the final requirements outlined in the new provision 233.50(k)
strike a balance between Federal oversight responsibility of draft
compensatory mitigation instruments while allowing Tribes and States
flexibility to solicit input from additional resource agencies.
No commenters opposed the proposed approach. However, one commenter
cautioned EPA not to implement a rigid process that would limit Tribes'
or States' flexibility in designing their own compensatory mitigation
approach. EPA believes that this provision provides such flexibility.
One commenter requested that the Agency expand the list of
mitigation instrument reviewers to include relevant Tribal and State
agencies (e.g., Tribal- or State-level fish and wildlife services) to
the list. The Agency agrees with the commenter and believes that
additional reviews from relevant resource agencies would be
advantageous by providing local expertise and helping assess the
applicability of the mitigation instrument (e.g., including but not
limited to the structure of the instrument, design of the proposed
projects, proposed loss and benefits, and evaluation of successful
instrument), thereby promoting positive outcomes for environmental
protections.
The Agency is not requiring circulation to ``relevant Tribal or
State agencies'' because the criteria for ``relevancy'' is vague. What
constitutes a ``relevant'' agency is susceptible to differing
interpretations, especially as Tribes and States organize their
authorities under differing or even multiple agencies (e.g., some
regulate
[[Page 103479]]
wetlands under the State Department of Lands, others regulate them
under the State water quality agency). Therefore, imposing mandatory
circulation to this category of agencies would create confusion and
implementation challenges for the Tribal or State authority.
Furthermore, the Agency believes the new provision at section 233.50(k)
provides Tribes and States the opportunity to identify and commit to
additional instrument reviews from other Tribal or State agencies in
their program description. The new provision also allows a Tribe or
State to invite other resource agencies not identified in their program
description to participate in draft instrument review on a case-by-case
basis.
The Agency received one comment requesting that EPA provide clearer
direction on its expectations for resource mitigation, including
banking and in-lieu fee proposals, and greater specificity as to the
standards EPA will use to review an applicant's proposed mitigation
program. The commenter also asked that EPA require additional
requirements in mitigation proposals. EPA is not reopening the section
404(b)(1) Guidelines in this rule and does not have the authority to
impose substantive mitigation requirements on Tribes and States that
are more stringent than the mitigation requirements in the section
404(b)(1) Guidelines.
5. Effective Date for Approved Programs
a. What is the Agency finalizing?
Section 404(h) of the CWA addresses the transfer of permitting
authority
[…truncated; see source link]Indexed from Federal Register on December 18, 2024.
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