Clean Water Act Section 404 Tribal and State Assumption Program

<RULE> ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Parts 123, 124, 232, and 233</CFR> <DEPDOC>[EPA-HQ-OW-2020-0276; FRL-6682-01-OW]</DEPDOC> <RIN>RIN 2040-AF83</RIN> <SUBJECT>Clean Water Act Section 404 Tribal and State Assumption Program</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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 Finally, the final rule makes technical revisions, including removing outdated references associated with the section 404 Tribal and State program regulations. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> 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. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> 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 <E T="03">https://www.regulations.gov</E> website. Although listed in the index, some information is not publicly available, <E T="03">e.g.,</E> 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 <E T="03">https://www.regulations.gov.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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: <E T="03">cwa404g@epa.gov;</E> website: <E T="03">https://www.epa.gov/cwa404g.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Table of Contents</HD> <EXTRACT> <FP SOURCE="FP-2">I. Executive Summary</FP> <FP SOURCE="FP-2">II. General Information</FP> <FP SOURCE="FP1-2">A. What action is the Agency taking?</FP> <FP SOURCE="FP1-2">B. What is the Agency's authority for taking this action?</FP> <FP SOURCE="FP1-2">C. What are the incremental costs and benefits of this action?</FP> <FP SOURCE="FP-2">III. Background</FP> <FP SOURCE="FP1-2">A. Statutory and Regulatory History</FP> <FP SOURCE="FP1-2">B. Need for Rulemaking Revisions</FP> <FP SOURCE="FP-2">IV. Final Rule</FP> <FP SOURCE="FP1-2">A. General</FP> <FP SOURCE="FP1-2">B. Program Approval</FP> <FP SOURCE="FP1-2">C. Program Operations</FP> <FP SOURCE="FP1-2">D. Compliance Evaluation and Enforcement</FP> <FP SOURCE="FP1-2">E. Federal Oversight</FP> <FP SOURCE="FP1-2">F. Eligible Indian Tribes</FP> <FP SOURCE="FP1-2">G. Impacts on Existing Programs</FP> <FP SOURCE="FP1-2">H. Technical Revisions</FP> <FP SOURCE="FP1-2">I. Incorporation by Reference</FP> <FP SOURCE="FP1-2">J. Severability</FP> <FP SOURCE="FP-2">V. Statutory and Executive Order Reviews</FP> <FP SOURCE="FP1-2">A. Executive Order 12866: Regulatory Planning and Review; Executive Order 13563: Improving Regulation and Regulatory Review; and Executive Order 14094: Modernizing Regulatory Review</FP> <FP SOURCE="FP1-2">B. Paperwork Reduction Act (PRA)</FP> <FP SOURCE="FP1-2">C. Regulatory Flexibility Act (RFA)</FP> <FP SOURCE="FP1-2">D. Unfunded Mandates Reform Act (UMRA)</FP> <FP SOURCE="FP1-2">E. Executive Order 13132: Federalism</FP> <FP SOURCE="FP1-2">F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments</FP> <FP SOURCE="FP1-2">G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks</FP> <FP SOURCE="FP1-2">H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use</FP> <FP SOURCE="FP1-2">I. National Technology Transfer and Advancement Act</FP> <FP SOURCE="FP1-2">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</FP> <FP SOURCE="FP1-2">K. Congressional Review Act</FP> </EXTRACT> <HD SOURCE="HD1">I. Executive Summary</HD> 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. <E T="03">Id.</E> 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 T="03">e.g.,</E> 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. <SU>1</SU> <FTREF/> 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 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. <SU>2</SU> <FTREF/> <FTNT> <SU>1</SU>  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. <E T="03">Center for Biological Diversity</E> v. <E T="03">Regan,</E> 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. <E T="03">See</E> No. 24-5101 (D.C. Cir.). </FTNT> <FTNT> <SU>2</SU>  Available at <E T="03">https://www.epa.gov/cwa-404/submission-assumable-waters-subcommittees-final-report</E> and in the docket for this final rule, Docket ID No. EPA-HQ-OW-2020-0276. </FTNT> 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. <SU>3</SU> <FTREF/> 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 flexibi ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 427k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━