Amendment to Requirements for Authorized State Permit Programs Under Section 402 of the Clean Water Act

[[Page 14588]]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 123

[FRL-5148-6]

Amendment to Requirements for Authorized State Permit Programs

Under Section 402 of the Clean Water Act

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to amend the regulations concerning the

minimum requirements for federally authorized State permitting programs

under section 402 of the Clean Water Act. The proposed rule would

explicitly require that State law must provide any interested person an

opportunity to challenge the approval or denial of 402 permits issued

by the State in State court. The intent of the proposed rule is to

ensure that any interested person has the opportunity to challenge

judicially the final action on State-issued permits, to the same extent

as if the permit were issued by EPA. Most States already have this

authority which allows for local resolution of issues. As a result, EPA

believes today's proposed rule will apply to a very small number of

States with authorization to administer the National Pollutant

Discharge Elimination System (NPDES) permit program. EPA is not

proposing at this time to establish this requirement for Tribal

permitting programs under section 402, but is soliciting comments on

various issues related to extending this requirement to Tribes. No

Tribes are currently authorized to operate the NPDES program.

DATES: Written comments on this proposed rule must be submitted on or

before June 15, 1995.

ADDRESSES: Commenters are requested to submit three copies of their

comments to the Comment Clerk for the section 402 Amendment; Water

Docket; MC-4101, Environmental Protection Agency, 401 M Street, SW.,

Washington DC 20460. Commenters who would like acknowledgement of

receipt of their comments should include a self-addressed, stamped

envelope. No facsimiles (faxes) will be accepted.

A copy of the supporting information for this proposal is available

for review at EPA's Water Docket, room L-102, 401 M Street, SW.,

Washington, DC 20460. For access to the docket materials, call (202)

260-3027 between 9 a.m. and 3:30 p.m. for an appointment.

FOR FURTHER INFORMATION CONTACT: Laura J. Phillips, Office of

Wastewater Management (OWM), Permits Division (4203), Environmental

Protection Agency, 401 M Street, SW., Washington, DC 20460, (202) 260-

9541.

SUPPLEMENTARY INFORMATION: Information in this preamble is organized as

follows:

I. Summary and Explanation of Today's Action

1. Background

2. Rationale and Authority for Proposed Rule

3. Scope of Standing Requirement

4. Exhaustion of Administrative Remedies

5. Alternatives Under Consideration

6. Time Period for Compliance

II. Request for Comment

III. Supporting Documentation

1. Compliance With Executive Order 12866 (Regulatory Impact

Analysis)

2. Compliance With Executive Order 12875

3. Paperwork Reduction Act

4. Regulatory Flexibility Act

I. Summary and Explanation of Today's Action

1. Background

Congress enacted the Clean Water Act, 33 U.S.C. 1251 et seq.

(``CWA'' or ``the Act''), ``to restore and maintain the chemical,

physical, and biological integrity of the Nation's waters.'' Section

101(a), 33 U.S.C. 1251(a). To achieve this objective, the Act

authorizes EPA, or a State approved by EPA, to issue permits

controlling the discharge of pollutants to navigable waters. Section

402(a)(1), 33 U.S.C. 1342(a)(1). A State that wishes to administer its

own permit program for discharges of pollutants, other than dredged or

fill material, to navigable waters may submit a description of the

program it proposes to administer to EPA for approval according to

criteria set forth in the statute. Section 402(b), 33 U.S.C. 1342(b).

EPA is authorized to treat Indian Tribes in the same manner as

States for purposes of certain provisions of the CWA, including section

402. Section 518(e), 33 U.S.C. 1377(e).

EPA's regulations at 40 CFR part 123 establish minimum requirements

for federally authorized State permit programs under section 402 of the

CWA. These regulations include federally recognized Indian Tribes

within the definition of ``State.'' 40 CFR 122.2. EPA is proposing to

add language to part 123 that makes clear the intent that, to receive

or retain Federal authorization, a State must have laws that afford any

interested person the opportunity to challenge in State court the final

approval or denial of 402 permits by the State. The intent of this

proposal is to ensure that State programs provide the public with an

opportunity to challenge final action on 402 permits in State courts,

to the same extent as if the permit were federally-issued. EPA is

inviting comment on various issues related to extending this

requirement to Tribes.

2. Rationale and Authority for Proposed Rule

EPA has become aware of instances in which citizens are barred from

challenging State-issued permits because of restrictive standing

requirements in State law. EPA believes this is a gap in the

regulations setting minimum requirements for State 402 permit programs

that needs to be addressed.

A coalition of environmental groups has filed two petitions

requesting that EPA withdraw the Virginia State 402 permit program,

citing a limitation on citizen standing, among other alleged

deficiencies. In particular, they allege that recent changes in the law

in the State of Virginia have significantly narrowed the public's

opportunity to challenge State-issued 402 permits. Virginia's State

Water Control Law, the State law under which Virginia's authorized

program is administered, authorizes only an ``owner aggrieved'' to

challenge permits in court. VA Code 62.1-44.29. In 1990, the Virginia

legislature amended and narrowed the statutory definition of ``owner.''

The environmental groups allege that under three opinions of the

Virginia Court of Appeals and the State Water Control Law, only a

permittee has standing to challenge the issuance or denial of a 402

permit in State court. Environmental Defense Fund v. State Water

Control Board, 12 Va. App. 456, 404 SE.2d 728 (1991), reh'g en banc

denied, 1991 Va. App. LEXIS 129; Town of Fries v. State Water Control

Board, 13 Va. App. 213, 409 SE.2d 634 (1991). See Citizens for Clean

Air v. State Air Pollution Control Board, 13 Va. App. 430, 412 SE.2d

715 (1991)(interpreting similar language in Virginia Air Pollution

Control Law). They allege that under these three decisions, riparian

landowners, local governments that wish to draw drinking water from the

waters in question, downstream permittees, local business and property

owners associations, local civic associations and environmental

organizations whose members use the waters in question may not

challenge a State-issued permit in State court.

The Agency is committed to moving away from permit-by-permit

oversight. At the same time, it is critical that EPA continue in its

partnership role to support effective State implementation. It is also

essential to provide for meaningful local participation and

[[Page 14589]] resolution of permit specific issues. An important

component of effective public participation is that the public have

access to judicial forums to challenge State-issued permits to the same

extent as would be the case were EPA the permitting authority. This

approach ensures that as EPA reduces its oversight, both EPA and the

States remain directly accountable on a permit-by-permit basis to the

public. To this end, EPA believes the purposes of the CWA can best be

accomplished by providing an opportunity for review in State court of

the final approval or denial of 402 permits by all interested persons,

as well as permittees and permit applicants, in order to ensure an

adequate and meaningful opportunity for public review and comment on

issues addressed by the permit. The same concerns arise when the

program is federally administered; that is why Congress provided for

judicial review of Federal permit actions in Federal court.

When citizens are denied the opportunity to challenge executive

agency decisions in court, their ability to influence permitting

decisions through other required elements of public participation, such

as through public comments and public hearings on proposed permits, may

be seriously compromised. If citizens perceive that a State is not

addressing their concerns about 402 permits because the citizens have

no recourse to an impartial judiciary, that perception also has a

chilling effect on all the remaining forms of public participation in

the permitting process. EPA believes that in order to effectuate the

policies and purposes of the CWA, States must address the legitimate

concerns of citizens about 402 permits. Accordingly, EPA is proposing

to add language to part 123 explicitly requiring that all interested

persons must have an opportunity to challenge the final approval or

denial of 402 permits in State court. In the judgment of EPA, this

effectively balances the CWA's strong policy favoring public

participation in the development of water pollution controls with the

policy to ``recognize, preserve and protect the primary

responsibilities and rights of the States to prevent, reduce and

eliminate pollution...'' Section 101(b), 33 U.S.C. 1251(b). It

effectuates EPA's strong policy interest in deferring to State

administration of authorized NPDES programs while ensuring that

citizens will be able to influence permitting decisions through public

participation and will have access to the courts to challenge State-

issued permits to the same extent as if the program were federally

administered.

EPA's direct authority to specify this requirement is found at

sections 101(e), 304(i), 402(b) and (c), and 501(a) of the CWA.

Section 501(a), 33 U.S.C. 1361(a), confers general authority on the

Administrator to prescribe such regulations as are necessary to carry

out her functions under the CWA. Section 304(i), 33 U.S.C. 1314(i),

provides that EPA shall promulgate guidelines establishing the minimum

procedural and other elements of any State program under section 402.

Section 101(e) provides that ``[p]ublic participation in the

development, revision, and enforcement of any regulation, standard,

effluent limitation, plan, or program established by the Administrator

or any State under this chapter shall be provided for, encouraged, and

assisted by the Administrator and the States . . . .'' 33 U.S.C.

1251(e). To establish minimum public participation requirements

consistent with these statutory goals, section 101(e) directs the

Administrator, in cooperation with the States, to establish minimum

guidelines for public participation. Id.

Congress included the provisions relating to public participation

in section 101(e) because it recognized that ``[a] high degree of

informed public participation in the control process is essential to

the accomplishment of the objectives we seek--a restored and protected

natural environment.'' S. Rep. 414, 92d Cong., 2d Sess. 12 (1972),

reprinted in A Legislative History of the Water Pollution Control Act

Amendments of 1972, Cong. Research Service, Comm. Print No. 1, 93d

Cong., 1st Sess. 108 (1973)(hereinafter cited as 1972 Legis. Hist.) at

1430. The Senate Conference Report observed further that implementation

of water pollution control measures would depend, ``to a great extent,

upon the pressures and persistence which an interested public can exert

upon the governmental process. The Environmental Protection Agency and

the State should actively seek, encourage and assist the involvement

and participation of the public in the process of setting water quality

requirements and in their subsequent implementation and enforcement.''

Id. See also Senate Conference Report at 72, 1972 Legis. Hist. at 1490

(``The scrutiny of the public... is extremely important in insuring

expeditious implementation of the authority [conferred by section 402]

and a high level of performance by all levels of government and

discharge sources.'') Similarly, the House directed EPA and the States

``to encourage and assist the public so that it may fully participate

in the administrative process.'' H. Rep. 911, 92d Cong., 2d Sess. 79,

1972 Legis. Hist. at 766. Congressman Dingell, a leading sponsor of the

CWA, characterized section 101(e) as applying ``across the board.'' Id.

at 108. See also id. at 249.

Section 402(b) establishes the statutory standards applicable to

the approval of State 402 permitting programs. These standards also

reflect the importance that Congress attached to effective public

participation in establishing controls on water pollution. States

wishing to administer a 402 permit program must establish to the

satisfaction of the Administrator that they have enacted laws that

provide adequate authority to carry out the State program. Section

402(b), 33 U.S.C. 1342(b). Section 402(b)(3) contains an explicit

requirement for public participation in the development of State

permits. Subsection (3) allows disapproval upon a finding of inadequate

authority ``[t]o insure that the public, and any other State the waters

of which may be affected, receive notice of each application for a

permit and to provide an opportunity for public hearing before a ruling

on each such application.'' Id. Section 402(c), 33 U.S.C. 1342(c),

authorizes EPA to withdraw a State program if it is not being

administered in accordance with applicable requirements.

The courts have also recognized that meaningful and adequate public

participation is an essential part of a State program under section

402. See Natural Resources Defense Council v. EPA, 859 F.2d 156, 175-78

(D.C. Cir. 1988)(approving part 123 regulations regarding citizen

intervention in State enforcement actions); Citizens for a Better

Environment v. EPA, 596 F.2d 720, reh'g denied, 596 F.2d 725 (7th Cir.

1979)(invalidating EPA approval of a State program in the absence of

prior promulgation of guidelines regarding citizen participation in

State enforcement actions).

Thus, the CWA vests considerable discretion in the Administrator to

set minimum requirements applicable to authorized 402 programs,

particularly with respect to public participation and the rights of

citizens to influence the permitting process. See Natural Resources

Defense Council v. EPA, 859 F.2d at 175-178.

EPA's proposal is further supported by the statutory provisions

governing challenges to 402 permits issued by EPA. Section 509(b)(1) of

the CWA, 33 U.S.C. 1369(b)(1), provides that ``any interested person''

may obtain judicial review in the United States Court of

[[Page 14590]] Appeals of the Administrator's action in issuing or

denying any permit under section 402. There is no indication that

Congress intended that the public's rights to challenge permit actions

would be diminished, upon EPA's approval of a State 402 program, to the

point that the goal of adequate and effective public participation in

the permit issuance process would be compromised. (Similarly, Congress

has provided citizens the ability, except in defined circumstances, to

commence a civil action in the United States District Court against any

person who is alleged to be in violation of any effluent standard or

limitation under the CWA, regardless of whether the permitting

authority is EPA or the State. Section 505(a), 33 U.S.C. 1365(a)).

The regulations setting minimum requirements for authorized State

402 permit programs, 40 CFR part 123, do not explicitly address

requirements for citizen standing to challenge the approval or denial

of permits in State court. The current part 123 regulations were

originally issued on May 19, 1980. 45 FR 33290. When EPA issued those

regulations, the Agency did not contemplate that State law might limit

the opportunity for interested citizens to challenge final permit

decisions in State court to such a degree that it is substantially

narrower than the opportunity afforded under section 509 to challenge

federally-issued permits. Accordingly, EPA believes it needs to specify

standing requirements in part 123. EPA seeks to add language to part

123 that would explicitly require that in order to receive or retain

authorization, a State must afford any interested person the

opportunity to challenge the final approval or denial of 402 permits in

State court. The proposal would codify the Agency's interpretation of

the CWA, as set forth above. EPA believes the Clean Water Act

authorizes the Agency to specify this requirement as a precondition to

the assumption and continued operation of a 402 permitting program by a

State.

The proposed rule would apply to final actions with respect to

modification, revocation and reissuance and termination of permits as

well as the approval or denial of permits in the first instance.

3. Scope of Standing Requirement

EPA's proposal makes it clear that ``any interested person'' must

be afforded standing to challenge final action by a State in issuing or

denying a 402 permit; this proposal would ensure consistency with the

standing afforded the public to challenge federally-issued permits in

Federal court. The legislative history of the CWA states explicitly

that the term ``interested person'' in section 509(b) is intended to

embody the injury in fact rule of the Administrative Procedure Act, as

set forth by the Supreme Court in T3Sierra Club v. Morton, 405 U.S. 727

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

1972 Legis. Hist. at 281, 329. Montgomery Environmental Coalition v.

Costle, 646 F.2d 568, 576-78 (D.C. Cir. 1980). See Trustees for Alaska

v. EPA, 749 F.2d 549, 554-55 (9th Cir. 1984). EPA intends that the term

``interested person'' as used in the proposed rule have the same

meaning that it has in section 509(b). Today's proposal would ensure

that citizen standing to challenge the issuance or denial of State-

issued 402 permits is similarly expansive where the State is authorized

to administer 402 permit programs.

As interpreted by the United States Supreme Court, the standing

requirement of Article III of the Constitution contains three key

elements:

[A]t an irreducible minimum, Art. III requires the party who

invokes the court's authority to ``show that he personally has

suffered some actual or threatened injury as a result of the

putatively illegal conduct of the defendant,''... and that the

injury ``fairly can be traced to the challenged action'' and ``is

likely to be redressed by a favorable decision.''

Valley Forge Christian College v. Americans United for Separation of

Church and State, Inc., 454 U.S. 464, 472 (1982)(citations omitted. See

also Lujan v. Defenders of Wildlife, 504 U.S. ______, 119 L.Ed.2d 351,

364 (1992).

With respect to the nature of the injury that an ``interested

person'' must show to obtain standing, the Supreme Court held in Sierra

Club v. Morton, 405 U.S. at 734-35, that harm to an economic interest

is not necessary to confer standing. Harm to an aesthetic,

environmental, or recreational interest is sufficient, provided that

the party seeking judicial review is among the injured. This holding

was most recently reaffirmed by the Supreme Court in Lujan v. Defenders

of Wildlife, 504 U.S. ______, 119 L.Ed.2d at 365 (``[o]f course, the

desire to use or observe an animal species, even for purely aesthetic

purposes, is undeniably a cognizable interest for purposes of

standing.''). See also Japan Whaling Ass'n v. American Cetacean

Society, 478 U.S. 221, 231 n. 4 (1986); Middlesex County Sewerage Auth.

v. National Sea Clammers Ass'n, 453 U.S. 1, 16-17. This low threshold

for sufficiency of injury has been applied in many decisions. See,

e.g., Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109 (4th Cir.

1988), cert. denied, 491 U.S. 904 (1989) (injury to aesthetic and

environmental interests is sufficient where pollution would affect a

river along which a single group member hiked); Friends of the Earth v.

Consolidated Rail Corp., 768 F.2d 57, 61 (2d Cir. 1985) (recreational

use of a river and offense to aesthetic values are sufficient to

demonstrate injury in fact).

4. Exhaustion of Administrative Remedies

A requirement that all interested persons have the opportunity to

challenge final permitting actions judicially should be distinguished

from a requirement that interested persons must exhaust administrative

remedies in order to preserve their opportunity to challenge permitting

actions judicially. For example, Federal regulations require that

interested persons must raise reasonably ascertainable issues during

the public comment period on a draft 402 permit (40 CFR 124.13) and

must request an evidentiary hearing on a permit decision they wish to

challenge (40 CFR 124.74). Today's proposal does not affect the

authority of States to adopt similar, reasonable requirements that

interested persons exhaust available administrative remedies in order

to preserve their opportunity to challenge final permitting actions in

State court.

5. Alternatives Under Consideration

EPA also considered amending part 123 to require that State law

must provide an opportunity for judicial review of a final State permit

action under section 402 by the permit applicant and any person who

participated in the public comment process. See section 502(b)(6) of

the Clean Air Act, 42 U.S.C. 7661a(b)(6). The Agency prefers the ``any

interested person'' language because it tracks section 509(b)(1) of the

CWA, which allows ``any interested person'' to challenge specified

final actions of the Administrator, including the issuance or denial of

any permit under section 402, in the United States Court of Appeals. It

is also consistent with existing regulations under the CWA which allow

``any interested person'' to request an evidentiary hearing on a

Regional Administrator's final permit decision. 40 CFR 124.74. As noted

above, States would be free under today's proposal to impose reasonable

requirements that interested persons must exhaust administrative

remedies, such as participation in the public comment process, in order

to preserve their opportunity to challenge a final permitting action in

State court. [[Page 14591]]

EPA solicits comment on whether it should adopt a requirement, in

lieu of the proposed regulatory language, that State law must provide

an opportunity for judicial review of a final permitting action under

section 402 by the permit applicant and any person who participated in

the public comment process.

6. Time Period for Compliance

Under EPA's existing regulations, any approved State 402 program

that requires revision to conform to today's proposal, when it is

finally promulgated, would need to be revised within one year of the

date of final promulgation of today's proposed rule, unless the State

must amend or enact a statute in order to make the required revision.

In that case, under EPA's existing regulations, the revision must take

place within two years. 40 CFR 123.62(e). EPA is considering amending

the regulations to require that States revise their programs sooner

than specified under 40 CFR 123.62(e) to bring the program into

compliance with today's proposed rule. For example, EPA is considering

requiring that if a State must amend or enact a statute to make the

necessary revisions to its law, this must be done during the first

legislative session that begins after the date of promulgation of

today's proposal as a final rule. EPA requests comment on whether it

should impose a requirement that States revise their programs sooner

than specified under 40 CFR 123.62(e) to bring the program into

compliance with today's proposed rule, and if so, what would be an

appropriate shortened time period for compliance.

II. Request for Comment

EPA solicits comment on all aspects of today's proposal. In

particular, EPA seeks comment on the appropriateness of the proposal

from a legal and a policy perspective; on the ``any interested person''

language as proposed; on the alternative that would require that State

law must provide an opportunity for judicial review of a final

permitting action under section 402 by the permit applicant and any

person who participated in the public comment process, as discussed

above; and on any alternative language that would specify appropriate

explicit standing requirements applicable to authorized State 402

programs.

EPA also requests comment on whether it should amend the

regulations to require States to revise their programs sooner than

would otherwise be required under 40 CFR 123.62(e) to bring the program

into compliance with today's proposed rule, when it is finally

promulgated.

EPA is not proposing at this time to establish this requirement for

Tribal permitting programs under section 402. Tribes are just beginning

the development of various Clean Water Act programs and the issues of

sovereign immunity and access to Tribal courts must be carefully

considered. No Tribes are currently authorized to operate the NPDES

program. EPA is soliciting comments on various issues, including the

issue of sovereign immunity, related to extending this requirement to

Tribes. Based upon the comments received on this proposal, EPA may

propose regulatory action in the future with respect to review of

Tribally-issued NPDES permits. EPA also invites comment about how it

could phase in such a requirement for Tribes, if the Agency moves

forward with such a proposal in the future.

EPA is aware that access to Tribal courts may not be as broad as

access to State courts. (EPA addressed some issues with regard to

Tribal regulation of nonmembers, as well as differences in Tribal

criminal enforcement programs, in the preamble to and/or the final

regulation on NPDES authority for Tribes, 58 FR 67966, December 22,

1993.) EPA specifically invites comment on (1) these differences with

regard to access to Tribal courts for appeal of NPDES permits (which

may be issued to nonmembers of the Tribe), (2) the basis of the

differences, (3) as well as any alternative procedures that may be used

to provide for an appeal of final Tribal NPDES permit actions, if a

Tribal court system is not available to a person.

III. Supporting Documentation

1. Compliance With Executive Order 12866

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the

Agency must determine whether the regulatory action is ``significant,''

and therefore subject to review by the Office of Management and Budget

(OMB) and the requirements of the Executive Order. The Order defines

``significant regulatory action'' as one that is likely to lead to a

rule that may:

(1) Have an annual effect on the economy of $100 million or more,

or adversely and materially affecting a sector of the economy,

productivity, competition, jobs, the environment, public health or

safety, or State, local, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs, or the rights and obligations, of

recipients thereof; and

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

EPA believes that only a very few authorized States may be impacted

by this proposed rule. The proposed action is consistent with and

effectuates the public participation provisions of the CWA. As a

result, EPA has determined that the final rule does not meet the

definition of a significant regulation, and, therefore, the Agency is

not conducting a Regulatory Impact Analysis.

It has also been determined that this proposed rule is not a

``significant regulatory action'' under the terms of Executive Order

12866 and is therefore not subject to OMB review.

2. Compliance With Executive Order 12875

Under Executive Order 12875, entitled Enhancing the

Intergovernmental Partnership, the Agency is required to develop an

effective process to permit elected officials and other representatives

of State and Tribal governments to provide meaningful and timely input

in the development of regulatory proposals.

EPA fully supports this objective and has initiated a consultation

process with both States and Tribes which will be continued through

proposal and the public comment period. The Agency will be contacting

each State individually for their views on this proposal. With regard

to Indian Tribes, EPA is aware of the complex issues associated with

applying this proposal to Tribes and is soliciting comments on those

issues. EPA will work both with representatives of Tribes as well as

through the Agency's American Indian Environmental Office to assure a

full opportunity for review and comment on today's proposal and also to

ensure an understanding of Tribal concerns or issues raised by today's

proposal rule.

EPA anticipates a reaction from the relatively few NPDES-authorized

States which restrict standing to challenge State-issued NPDES permits.

Businesses and municipalities in States which restrict standing may

argue that allowing standing will make it more difficult to obtain a

permit due to court challenges by citizens. However, based on EPA's

experience in States which already provide broad standing to challenge

permits, EPA does not expect that any significant portion of permits

will be challenged in State courts. [[Page 14592]]

EPA believes that it has developed an effective process for

receiving comments on this proposed rulemaking and has met the

consultation requirements for States, federally recognized Tribes and

localities under the terms of Executive Order 12875.

3. Paperwork Reduction Act

This proposed rule does not contain information requirements

subject to OMB review under the Paperwork Reduction Act, 44 U.S.C. 3501

et seq.

4. Regulatory Flexibility Act

Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,

EPA must prepare a Regulatory Flexibility Analysis for regulations

having a significant impact on a substantial number of small entities.

This proposed rule applies only to States with authorization to

administer the NPDES permit program. States are not considered small

entities under the RFA. Therefore, pursuant to section 605(b) of the

Regulatory Flexibility Act, I certify that this proposed rule will not

have a significant impact on a substantial number of small entities.

List of Subjects in 40 CFR Part 123

Environmental protection, Administrative practice and procedure,

Water pollution control.

Dated: March 9, 1995.

Carol M. Browner,

Administrator.

For the reasons set forth in this preamble, part 123, chapter I,

title 40 of the Code of Federal Regulations is proposed to be amended

as follows:

PART 123--[AMENDED]

1. The authority citation for part 123 continues to read as

follows:

Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

2. Section 123.30 is added to read as follows:

Sec. 123.30 Judicial review of approval or denial of permits.

All States that administer or seek to administer a program under

this part must provide any interested person an opportunity for

judicial review in State Court of the final approval or denial of

permits by the State. This requirement does not apply to Indian Tribes.

[FR Doc. 95-6676 Filed 3-16-95; 8:45 am]

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