Clean Water Act Section 404 Tribal and State Program Regulation

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ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 123, 124, 232, and 233 [EPA-HQ-OW-2020-0276; FRL-6682-02-OW] RIN 2040-AF83 Clean Water Act Section 404 Tribal and State Program Regulation AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing the Agency's first comprehensive revision to the regulations governing Clean Water Act (CWA) section 404 Tribal and State programs since 1988. The primary purpose of the proposed revision is to respond to longstanding requests from Tribes and States to clarify the requirements and processes for assumption and administration of a CWA section 404 permitting program for discharges of dredged and fill material. The proposed revisions would facilitate Tribal and State assumption of the section 404 program, 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 allowing for flexibility in how these requirements are met. In addition, the proposed rule clarifies the criminal negligence standard for both the CWA section 402 and section 404 programs. Finally, the proposed rule makes technical revisions to remove outdated references associated with the section 404 Tribal and State program regulations.

DATES:

Comments must be received on or before October 13, 2023October 13, 2023. Comments on the information collection provisions submitted to the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA) are best assured of consideration by OMB if OMB receives a copy of your comments on or before October 13, 2023. The EPA will hold a virtual public hearing on September 6, 2023. Please refer to the SUPPLEMENTARY INFORMATION section for additional information on the public hearing.

ADDRESSES:

You may send comments, identified by Docket ID No

Budget (OMB) under the Paperwork Reduction Act (PRA) are best assured of consideration by OMB if OMB receives a copy of your comments on or before October 13, 2023. The EPA will hold a virtual public hearing on September 6, 2023. Please refer to the SUPPLEMENTARY INFORMATION section for additional information on the public hearing.

ADDRESSES:

You may send comments, identified by Docket ID No. EPA-HQ-OW-2020-0276, by any of the following methods:

• Federal eRulemaking Portal: https://www.regulations.gov/ (our preferred method). Follow the online instructions for submitting comments.

• Email: OW-Docket@epa.gov. Include Docket ID No. EPA-HQ-OW-2020-0276 in the subject line of the message.

• Mail: U.S. Environmental Protection Agency, EPA Docket Center, Water Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.

• Hand Delivery or Courier: EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., Monday-Friday (except Federal Holidays).

Instructions: All submissions received must include the Docket ID No. for this rulemaking. Comments received may be posted without change to https://www.regulations.gov/, including any personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the “Public Participation” heading of the SUPPLEMENTARY INFORMATION section of this document.

The virtual public hearing will convene at 3:30 p.m. Eastern Daylight Time (EDT) and will conclude at 7:30 p.m. EDT on September 6, 2023. Refer to the SUPPLEMENTARY INFORMATION section below for additional information.

FOR FURTHER INFORMATION CONTACT:

Kathy Hurld, Oceans, Wetlands, and Communities Division, Office of Water (4504-T), Environmental Protection Agency, Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 202-564-5700; email address: 404g-rulemaking@epa.gov; website: https://www.epa.gov/cwa404g

er 6, 2023. Refer to the SUPPLEMENTARY INFORMATION section below for additional information.

FOR FURTHER INFORMATION CONTACT:

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary II. Public Participation A. Written Comments B. Participation in Virtual Public Hearing III. General Information A. Does this action apply to me? B. What action is the Agency taking? C. What is the Agency's authority for taking this action? D. What are the incremental costs and benefits of this action? IV. Background A. Statutory and Regulatory History B. Need for Rulemaking C. Summary of Pre-Proposal Tribal and State Outreach V. Proposed Rule A. Program Approval B. Permit Requirements C. Program Operation D. Compliance Evaluation and Enforcement E. Federal Oversight F. General G. Potential Impacts of the Proposed Regulatory Changes on Existing State Section 404 Programs H. Other I. Severability VI. 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 I

vernments 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 I. Executive Summary

The proposed rule would modernize EPA's 1988 Clean Water Act (CWA) section 404 Tribal and State program regulations. 53 FR 20764 (June 6, 1988). Section 404 of the CWA establishes a program to regulate the discharge of dredged or fill material into navigable waters, which are defined as “waters of the United States.” The section 404 program is generally administered by the U.S. Army Corps of Engineers (“Corps”); however, CWA section 404(g) authorizes Tribes and States to assume administration of the program over certain waters within their jurisdiction, except those waters retained by the Corps. If a program request is approved by EPA, the Tribe or State is responsible for permitting discharges of dredged and fill material into certain waters of the United States within the Tribe's or State's jurisdiction, authorizing discharges under general permits, enforcement of unauthorized discharges, as well as enforcing the terms and conditions of permits under the Tribe's or State's authority.

authorizing discharges under general permits, enforcement of unauthorized discharges, as well as enforcing the terms and conditions of permits under the Tribe's or State's authority.

In this proposal, the Agency responds to longstanding requests from Tribes and States to clarify the requirements and processes for assumption and administration of a CWA section 404 program as well as EPA oversight. The proposed revisions would facilitate Tribal and State assumption of the section 404 program, consistent with the

Specifically, the proposal would facilitate the process of obtaining program approval by harmonizing program description requirements with program operation, compliance evaluation, and enforcement requirements; establishing a clear procedure for determining the extent of waters the Corps would retain following Tribal or State assumption; and delaying the effective date of EPA's program approval for a reasonable period of time to allow the assuming Tribe or State and the Corps time to complete preparations for implementation. It would clarify requirements for program implementation by addressing Tribal and State compensatory mitigation program requirements, explaining how Tribes and States could ensure compliance with the CWA section 404(b)(1) Guidelines at 40 CFR part 230, and stating that Tribal and State programs must allow for judicial review of issued permits. The proposal would streamline the procedure for permitting long-term projects, as well as make permitting more equitable by providing additional opportunities for Tribes to participate in the permitting process when another Tribe or State administers the section 404 program. It would clarify that States with approved section 402 and section 404 programs must authorize criminal prosecutions of violations based on a negligence standard and provide additional detail about the applicability of conflict of interest restrictions to the section 404 program

ies for Tribes to participate in the permitting process when another Tribe or State administers the section 404 program. It would clarify that States with approved section 402 and section 404 programs must authorize criminal prosecutions of violations based on a negligence standard and provide additional detail about the applicability of conflict of interest restrictions to the section 404 program. The proposal would provide Tribes and States with options for demonstrating that their programs are no less stringent than the Federal section 404 program. The proposal would also harmonize procedures for program withdrawal with the program approval process. Finally, the proposal would make certain additional minor updates to the section 404 Tribal and State program regulations, a minor update to 40 CFR part 232, and technical corrections to 40 CFR part 124 to reflect the 1988 section 404 Tribal and State program regulations.

II. Public Participation

A. Written Comments

Submit your comments, identified by Docket ID No. EPA-HQ-OW-2020-0276, at https://www.regulations.gov (our preferred method), or the other methods identified in the ADDRESSES section. Once submitted, comments cannot be edited or removed from the docket. EPA may publish any comment received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov any information you consider to be Confidential Business Information (CBI), Proprietary Business Information (PBI), or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system)

disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the full EPA public comment policy; information about CBI, PBI, or multimedia submissions; and general guidance on making effective comments.

B. Participation in Virtual Public Hearing

EPA will begin pre-registering speakers for the virtual public hearing upon publication of this document in the Federal Register . To register to speak at the virtual hearing, please use the online registration form available at https://www.epa.gov/cwa404g/current-efforts-regarding-assumption-under-cwa-section-404. The last day to pre-register to speak at the hearing will be September 5, 2023. On September 6, 2023, EPA will post a general agenda for the hearing that will list pre-registered speakers in approximate order at: https://www.epa.gov/cwa404g/current-efforts-regarding-assumption-under-cwa-section-404.

EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearing to run either ahead of schedule or behind schedule.

Each commenter will have three minutes to provide oral testimony. EPA encourages commenters to provide EPA with a copy of their oral testimony electronically by emailing it to 404g-rulemaking@epa.gov. EPA also recommends submitting the text of your oral comments as written comments to the rulemaking docket.

EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time

ee minutes to provide oral testimony. EPA encourages commenters to provide EPA with a copy of their oral testimony electronically by emailing it to 404g-rulemaking@epa.gov. EPA also recommends submitting the text of your oral comments as written comments to the rulemaking docket.

EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the public comment period will be considered with the same weight as oral comments and supporting information presented at the public hearing.

Please note that any updates made to any aspect of the hearing are posted online at https://www.epa.gov/cwa404g/current-efforts-regarding-assumption-under-cwa-section-404. While EPA expects the hearing to go forward as set forth above, please monitor our website or contact Sarah Randall at 404g-rulemaking@epa.gov to determine if there are any updates. EPA does not intend to publish a document in the Federal Register announcing updates.

If you require the services of an interpreter or special accommodations such as audio description, please pre-register for the hearing with Sarah Randall at 404g-rulemaking@epa.gov and describe your needs by August 23, 2023. EPA may not be able to arrange accommodations without advance notice.

III. General Information

A. Does this action apply to me?

This proposed rule will potentially affect Tribes and States that have assumed or will in the future request to assume administration of the CWA section 404 program. In the section 404 Tribal and State program regulations, the term “State” includes 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, and the Trust Territory of the Pacific Islands

ve assumed or will in the future request to assume administration of the CWA section 404 program. In the section 404 Tribal and State program regulations, the term “State” includes 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, and the Trust Territory of the Pacific Islands. For purposes of the section 404 Tribal and State Program regulations, the term “State” also includes eligible Federally recognized Indian Tribes and any interstate agency requesting program approval or administering an approved program. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section.

B. What action is the Agency taking?

EPA is proposing to revise and modernize its regulations for Tribal and State assumption and administration of the CWA section 404 program to provide greater clarity about the requirements, reduce barriers to assumption, and make technical

C. 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 309, 402, 404, 501, and 518.

D. What are the incremental costs and benefits of this action?

The costs and benefits are qualitatively discussed in the Economic Analysis for the Proposed Rule. Most of the changes associated with the action lead to either no economic impact or de minimis economic impacts. There are potential incremental economic impacts associated with the manner in which the proposed rule addresses the waters of the United States over which the Corps retains administrative authority, the effective date for approved Tribal and State programs, impacts to downstream States, and program withdrawal procedures

the action lead to either no economic impact or de minimis economic impacts. There are potential incremental economic impacts associated with the manner in which the proposed rule addresses the waters of the United States over which the Corps retains administrative authority, the effective date for approved Tribal and State programs, impacts to downstream States, and program withdrawal procedures. The economic analysis does not quantify these potential incremental economic impacts, as there is no data associated with these changes on which to base estimates.

IV. Background

A. Statutory and Regulatory History

1. CWA

Congress amended the Federal Water Pollution Control Act (FWPCA), or the CWA as it is commonly called, 1 in 1972 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 new statutory scheme was “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. 1251(a). In order to meet that objective, Congress declared two national goals: (1) “that the discharge of pollutants into the navigable waters be eliminated by 1985”; and (2) “that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983 . . . .” Id. at 1251(a)(1)-(2).

1 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.

Congress passed the CWA to address the discharge of pollutants into “navigable waters,” defined as “the waters of the United States.” 33 U.S.C. 1362(7)

(a)(1)-(2).

Congress passed the CWA to address the discharge of pollutants into “navigable waters,” defined as “the waters of the United States.” 33 U.S.C. 1362(7). Section 301 contains the key regulatory mechanism: “Except 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 to include “any addition of any pollutant to navigable waters from any point source,” and a “point source,” in turn, is “any discernible, confined and discrete conveyance,” such as a pipe or ditch. Id. at 1362(12), (14). The term “pollutant” means “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” Id. at 1362(6). Thus, it is unlawful to discharge pollutants into waters of the United States from a point source unless the discharge complies with certain enumerated sections of the CWA, including obtaining a permit. See id. at 1342, 1344.

oactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” Id. at 1362(6). Thus, it is unlawful to discharge pollutants into waters of the United States from a point source unless the discharge complies with certain enumerated sections of the CWA, including obtaining a permit. See id. at 1342, 1344.

2. CWA Section 404

Section 404 of the CWA establishes a program to regulate the discharge of dredged or fill material into navigable waters, defined as “waters of the United States.” Regulated discharges of dredged or fill material are defined in 40 CFR 232.2 and include any addition of dredged material, including the redeposit other than incidental fallback of dredged material, into waters of the United States and generally the addition of any fill material ( e.g., rock, sand, dirt) placed in waters of the United States which has the effect of replacing any portion of waters of the United States with dry land or changing the bottom elevation of any portion of waters of the United States. See 40 CFR 232.2. Such discharges 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 of the CWA requires a permit for discharges of dredged and/or fill material from a point source into waters of the United States unless the discharge is associated with an activity exempt from section 404 permitting requirements under CWA section 404(f). Section 404(a) of the CWA authorizes the Secretary of the Army to issue permits after notice and opportunity for public hearings, for the discharge of dredged or fill material into navigable waters at specified disposal sites

a point source into waters of the United States unless the discharge is associated with an activity exempt from section 404 permitting requirements under CWA section 404(f). Section 404(a) of the CWA authorizes the Secretary of the Army to issue permits after notice and opportunity for public hearings, for the discharge of dredged or fill material into navigable waters at specified disposal sites. The Act specifies that the Secretary of the Army acts through the Chief of Engineers, and thus the Corps generally administers the day-to-day permitting program under section 404, except where Tribes or States have assumed this authority and administer a program approved by EPA as consistent with CWA section 404. Currently, Michigan, New Jersey, and Florida have assumed this program, and the Corps manages the day-to-day administration of the section 404 program in 47 States, all Tribal lands, U.S. Territories, and the District of Columbia, and in certain waters in Michigan, New Jersey, and Florida.

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 404(b)(1) Guidelines 2 or the Tribal or State environmental review criteria 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 404(b)(1) Guidelines and may be issued on a nationwide, regional, or programmatic basis for discharges from specific categories of activities. The

2 The CWA 404(b)(1) Guidelines are regulations that were established by EPA in conjunction wih the Corps and codified at 40 CFR part 230

quatic environment. General permits must be consistent with the environmental review criteria set forth in the CWA 404(b)(1) Guidelines and may be issued on a nationwide, regional, or programmatic basis for discharges from specific categories of activities. The

2 The CWA 404(b)(1) Guidelines are regulations that were established by EPA in conjunction wih the Corps and codified at 40 CFR part 230. The CWA 404(b)(1) Guidelines are the substantive environmental review criteria used to evaluate permits for discharges of dredged and/or fill material under CWA section 404.

The Act also expressly recognizes States' role in administering permitting programs, including under section 404 of the CWA:

It is the policy of Congress that the States manage the construction grant program under this chapter and implement the permit programs under sections 1342 [402] and 1344 [404] of this title. It is further the policy of the Congress to support and aid research relating to the prevention, reduction, and elimination of pollution, and to provide Federal technical services and financial aid to State and interstate agencies and municipalities in connection with the prevention, reduction, and elimination of pollution.

33 U.S.C. 1251(b). Section 101(b) sets forth a policy focused on preserving the responsibilities and rights of States. Those responsibilities and rights are to prevent, reduce, and eliminate pollution, including, but not limited to implementing the Act's regulatory permitting programs, in partnership and with support from the Federal Government. Indeed, the Supreme Court has described, on numerous occasions, section 101(b) as creating a partnership between the Federal and State Governments in which the States administer provisions of the Act and are allowed to set standards more stringent than the Federal standards. See, e.g., Int'l Paper Co. v. Ouellette, 479 U.S

ting programs, in partnership and with support from the Federal Government. Indeed, the Supreme Court has described, on numerous occasions, section 101(b) as creating a partnership between the Federal and State Governments in which the States administer provisions of the Act and are allowed to set standards more stringent than the Federal standards. See, e.g., Int'l Paper Co. v. Ouellette, 479 U.S. 481, 489-90 (1987) (describing section 101(b) as allowing the Federal Government to authorize administration of point source pollution permits by Tribes and States and allowing States to establish more stringent discharge limitations than Federal requirements); Train v. Colo. Pub. Interest Grp., 426 U.S. 1, 16 & n.13 (1976) (describing section 101(b) as providing States authority to develop permit programs and establish standards more stringent than those under the CWA). 3. CWA Sections 404(g) and 404 (h-i)

In the 1977 Amendments to the CWA, Congress gave States the option of assuming the section 404 program in certain waters of the United States within the State's jurisdiction, subject to EPA approval. When Congress enacted the CWA in 1972, the Corps had long been regulating “navigable waters of the United States” under the Rivers and Harbors Act of 1899 (RHA). However, in the CWA, Congress defined “navigable waters” to mean “the waters of the United States,” which went beyond RHA authority. The Corps' initial post-CWA regulations treated the two jurisdictional terms interchangeably. 39 FR 12115, 12119 (April 3, 1974). In 1975, the U.S. District Court for the District of Columbia ordered the Corps to adopt new regulations in accordance with the broader water quality purposes of the CWA. Nat. Res. Def. Council, Inc. v. Callaway, 392 F. Supp. 685 (D.D.C. 1975).

red the Corps to adopt new regulations in accordance with the broader water quality purposes of the CWA. Nat. Res. Def. Council, Inc. v. Callaway, 392 F. Supp. 685 (D.D.C. 1975).

In July 1975, the Corps issued new regulations outlining how they would expand 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 material or of 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 material or of 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 of fill material into “any navigable water.” Id. at 31326. The Corps' intent with the regulatory phased-in approach was to provide time for them 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.”) Thus, the phases did not mean all of the waters in the final regulation were not waters of the United States, but rather established when the Corps would begin regulating activities within each type of jurisdictional water.

the final regulation were not waters of the United States, but rather established when the Corps would begin regulating activities within each type of jurisdictional water.

Some in Congress were concerned about this phased implementation of the definition of “waters of the United States” for the Corps' CWA dredged and fill regulatory program, and in 1976, the House of Representatives passed H.R. 9560, which 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 passed a bill that allowed the 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). 3 After assumption, the Corps would retain section 404 permitting authority in Phase I waters. The final bill, H.R

he House bill was not enacted into law. Instead, the Senate passed a bill that allowed the 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). 3 After assumption, the Corps would retain section 404 permitting authority in Phase I waters. The final bill, H.R. 3199, referred to as the 1977 CWA Amendments, was a compromise: 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). 4 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, with the exception of waters that were historically used 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 them as “waters already being regulated by the USACE,” i.e., those waters the Corps regulated under section 10 of the RHA, plus adjacent wetlands. 42 FR 37122, 37124 (July 19, 1977). The legislative history of section 404(g) in both the House and the reprinted in 4 Legis. History 1977, at 710-11.

3 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).

4 The House Report is reprinted in 3 Legis. History 1977, at 185, 285.

of 1977 (Legis. History) at 635, 708 (October 1978).

4 The House Report is reprinted in 3 Legis. History 1977, at 185, 285.

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). To assume the section 404 program, Tribes and States are required to develop a dredged and fill material discharge permit program under Tribal or State authority consistent with the requirements of the CWA and implementing regulations at 40 CFR part 233 and submit a request to EPA to assume the program. Section 404(h)(2) of the CWA states that 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 States' request to assume the section 404 program. Under CWA section 404(h)(3), if the Administrator fails to make a determination with respect to any 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.

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 borders. 5 For section 404 permitting purposes, the Tribe or State must exercise jurisdiction over all assumed waters subject to the CWA except those waters retained by the Corps. 33 U.S.C. 1344(g)

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 borders. 5 For section 404 permitting purposes, the Tribe or State must exercise jurisdiction over all assumed waters subject to the CWA except those waters retained by the Corps. 33 U.S.C. 1344(g). The Corps retains 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 authority over Tribal waters under CWA section 404. The term “waters of the United States” refers to the geographic extent of waters covered by the CWA's regulatory programs. 6 The scope of waters that may be assumed by Tribes or States under section 404(g) is a subset of waters of the United States. Tribes or States with assumed 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. This rulemaking addresses the division of authority under section 404 between the Federal Government and a Tribe or State with an approved program and does not alter the scope of CWA jurisdiction over waters of the United States.

5 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.”) (emphasis added). The conference report is available at https://www.epa.gov/sites/production/files/2015-11/documents/1977_conf_rept.pdf

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.”) (emphasis added). The conference report is available at https://www.epa.gov/sites/production/files/2015-11/documents/1977_conf_rept.pdf.

6 The agencies currently interpret “waters of the United States” consistent with the Supreme Court's decision in Sackett v. EPA, No. 21-454 (U.S. May 25, 2023).

Approved Tribal or State section 404 programs can be broader in scope or more stringent than the CWA requirements, or both. Where they have a broader scope of program coverage than what is required by the CWA section 404 program, the additional coverage is not considered part of the EPA-approved program. 7 A Tribe or State may not issue a permit if EPA has objected to or placed conditions on a permit until EPA's concerns are addressed. Tribes and States can charge permit fees to fund the permitting program. Tribes and States may authorize discharges of dredged or fill material by issuing individual permits or general permits, which are limited to five years.

7 See 40 CFR 233.1(c) and 40 CFR 233.1(d).

To date, three States—Michigan, New Jersey, and Florida—administer an EPA approved section 404 program. Michigan's program was approved in 1984 (49 FR 38947, October 2, 1984); New Jersey's was approved in 1994 (59 FR 9933, March 2, 1994); and Florida's was approved in 2020 (85 FR 83553, December 22, 2020). At present, no Tribes administer the section 404 program. Several States are exploring the possibility of assuming the section 404 program, and about one-third of States have expressed some level of interest to EPA over time regarding assumption of the Federal section 404 dredged and fill permit program. At this time, EPA is unaware of any Tribes exploring seeking to assume the section 404 program.

esent, no Tribes administer the section 404 program. Several States are exploring the possibility of assuming the section 404 program, and about one-third of States have expressed some level of interest to EPA over time regarding assumption of the Federal section 404 dredged and fill permit program. At this time, EPA is unaware of any Tribes exploring seeking to assume the section 404 program.

4. EPA's Role in CWA Section 404

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. 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. 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. A 1989 enforcement memorandum between the Department of the Army and EPA discusses the allocation of Federal enforcement for the section 404 program between EPA and the Corps. 8 In the context of section 404, the Corps does the day-to-day work of conducting jurisdictional determinations, 9 though EPA has final administrative authority over the scope of CWA jurisdiction. 10 EPA has approval and oversight authority for Tribal and State programs, including final authority and approval of the scope of assumed waters. See 33 U.S.C. 1344(g)-( l ).

programs, including final authority and approval of the scope of assumed waters. See 33 U.S.C. 1344(g)-( l ).

8 Memorandum Between the Department of the Army and the Environmental Protection Agency Concerning Federal Enforcement for the Section 404 Program of the Clean Water Act (January 19, 1989), available at: https://www.epa.gov/cwa-404/federal-enforcement-section-404-program-clean-water-act. A February 1994 memorandum modified the January 1989 memorandum to be effective indefinitely, unless modified or revoked by the agencies, see https://www.epa.gov/sites/default/files/2015-07/documents/1994_enforcement_modification.pdf.

9 EPA decisions on jurisdiction are not approved jurisdictional determinations as defined and governed by the Corps regulations at 33 CFR 331.2.

10 Administrative Authority to Construe § 404 of the Federal Water Pollution Control Act (“Civiletti Memorandum”), 43 Op. Att'y Gen. 197 (1979).

Under section 404, EPA also establishes environmental criteria used in evaluating permit applications ( i.e., the CWA 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)-(k)); reviews and comments on general permits and individual permit applications issued by a Tribe, State, or the Corps; has authority to prohibit,

EPA's role with respect to section 404 Tribal and State programs includes working with Tribes and States prior to assumption; reviewing and approving or disapproving assumption requests; overseeing assumed programs; and coordinating Federal review of Tribal or State permit actions. EPA funding programs can also be used by Tribes and States to build capacity to assume the section 404 program ( e.g., Wetland Program Development Grants) or to implement assumed programs ( e.g., CWA section 106 funds). EPA retains final administrative authority over the scope of CWA jurisdiction for assumed programs under section 404(g)

ordinating Federal review of Tribal or State permit actions. EPA funding programs can also be used by Tribes and States to build capacity to assume the section 404 program ( e.g., Wetland Program Development Grants) or to implement assumed programs ( e.g., CWA section 106 funds). EPA retains final administrative authority over the scope of CWA jurisdiction for assumed programs under section 404(g). With respect to enforcement, EPA can commence a separate enforcement action under appropriate circumstances. 33 U.S.C. 1344(n); 40 CFR 233.41, Note.

5. EPA's Existing 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 for approval or disapproval of State programs under section 404(g) and for monitoring State programs after program approval (45 FR 33290 (May 19, 1980)). 11 On June 6, 1988, EPA published in the Federal Register a final rule revising the procedures and criteria used in approving, reviewing, and withdrawing approval of section 404 State programs at 40 CFR part 233. 53 FR 20764 (June 6, 1988). The final rule also incorporated section 404 program definitions and section 404(f)(1) exemptions at 40 CFR part 232. 12 The 1988 regulations provide States with flexibility in program design and administration while still meeting the requirements and objectives of the CWA.

11 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 this rule made no substantive changes to any of the affected sections (48 FR 14146, 14208, April 1, 1983). The rule did make minor technical changes.

40 CFR part 233, but this rule made no substantive changes to any of the affected sections (48 FR 14146, 14208, April 1, 1983). The rule did make minor technical changes.

12 The final 1988 rule essentially recodified at 40 CFR part 232 the existing 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. This preamble and the proposed rule focus on EPA's regulations at 40 CFR part 233 regarding State programs under section 404(g), with one proposed minor change to a definition in 40 CFR part 232.

Several revisions and additions to the State program regulations in 40 CFR part 233 have been made since 1988. 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 of section 404 State program approval (57 FR 5320 (February 13, 1992)). On February 11, 1993, EPA published a final rule amending its section 404 State program regulations at 40 CFR part 233 by adding subpart G (“Treatment of Indian Tribes as States”), which contains procedures by which an Indian Tribe may qualify for treatment in a similar manner as a State (TAS) in order to be eligible to submit a request to assume the section 404 program (58 FR 8172, February 11, 1993). 13 The 1993 rule also revised 40 CFR part 232 by adding new definitions for “Federal Indian reservation,” “Indian Tribe,” and “States.” The 1993 rule was finalized to satisfy the statutory provisions in CWA section 518 with respect to the section 404 program

imilar manner as a State (TAS) in order to be eligible to submit a request to assume the section 404 program (58 FR 8172, February 11, 1993). 13 The 1993 rule also revised 40 CFR part 232 by adding new definitions for “Federal Indian reservation,” “Indian Tribe,” and “States.” The 1993 rule was finalized to satisfy the statutory provisions in CWA section 518 with respect to the section 404 program. In a final rule published on December 14, 1994 (59 FR 64339, 64345 (December 14, 1994)), the subpart G regulations regarding Tribal eligibility at sections 233.60, 233.61, and 233.62 were revised to improve and simplify the process for Tribes to obtain EPA approval to assume the section 404 program. Under that rule, known as the Simplification Rule, a Tribe did not need to prequalify for TAS before requesting to assume the section 404 program, but instead could establish its TAS eligibility at the program approval stage, subject to the EPA notice and comment procedures for State program approval. A 2005 rule on cross-media electronic reporting (70 FR 59848, October 13, 2005) added section 233.39 on electronic reporting. EPA also codified in regulation 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).

13 The 1993 final rule revised the definition of “State” at section 233.2 to: “ 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 § 233.60. For purposes of this part, the word State also includes any interstate agency requesting program approval or administering an approved program.” (58 FR 8183, February 11, 1993). Thus 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

, which meet the requirements of § 233.60. For purposes of this part, the word State also includes any interstate agency requesting program approval or administering an approved program.” (58 FR 8183, February 11, 1993). Thus 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.

The existing regulations at 40 CFR part 233 describe the Tribe's or State's program requirements, EPA responsibilities, approval and oversight of assumed programs, and requirements for review, modification, and withdrawal of State programs (as necessary). The regulations also specify that a Tribal or State program must be consistent with and no less stringent than the Act and implementing regulations, allow for public participation, be consistent with the CWA 404(b)(1) Guidelines, and have adequate enforcement authority. The regulations outline requirements for Tribes to determine eligibility to assume the program. Lastly, part 233, subpart H contains the approved Tribal and State programs that EPA has codified.

B. Need for Rulemaking

Congress enacted the 1977 CWA Amendments to make the regulation of the discharge of dredged or fill material a shared responsibility of the States and the Federal Government. 14 The intent of this design is to use the strengths of State and Federal Governments in a partnership to protect the nation's water resources and to meet the policy of the CWA at section 101(b) that States “implement the permit programs under sections 1342 and 1344 of this title” and of “preserv[ing] and protect[ing] the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution. . . .” 15 Congress also viewed State assumption of the section 404 program as complementing States' existing authority to administer the CWA section 402 program. 16

14 See, e.g., H.R. Report No

plement the permit programs under sections 1342 and 1344 of this title” and of “preserv[ing] and protect[ing] the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution. . . .” 15 Congress also viewed State assumption of the section 404 program as complementing States' existing authority to administer the CWA section 402 program. 16

14 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 . . .”).

15 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.' ”).

16 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.”)

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.”).

Yet while CWA section 404 and EPA's implementing regulations provide for Tribes and States to assume the program, only three States—Michigan, 17

17 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.

Tribes and States have identified uncertainty regarding the extent of assumable waters and wetlands as a key barrier to assumption. As noted above, the Tribes and States cannot assume all waters of the United States within their boundaries as the statute specifies that the Corps retains administrative authority in certain waters. While some Tribes and States have considered assumption, they have expressed to EPA the need for further clarification regarding which waters a Tribe or State may assume and which waters the Corps retains. In a 2014 letter to then-EPA Acting Assistant Administrator Nancy Stoner, 18 State associations asked EPA to clarify the scope of assumable waters, citing uncertainty on this issue as a barrier to assuming the program

tates have considered assumption, they have expressed to EPA the need for further clarification regarding which waters a Tribe or State may assume and which waters the Corps retains. In a 2014 letter to then-EPA Acting Assistant Administrator Nancy Stoner, 18 State associations asked EPA to clarify the scope of assumable waters, citing uncertainty on this issue as a barrier to assuming the program. 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 the 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, 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 EPA Administrator Scott Pruitt on June 2, 2017, with additional notations and recommendations concerning a preference for clarity through regulation. The “Final Report of the Assumable Waters Subcommittee, May 2017,” recommended that EPA develop regulations to clarify assumed and retained waters. 19 This proposed rule responds to the Subcommittee's recommendations as discussed further in section V.A.2 of this preamble addressing retained waters. The proposal also responds to many of the additional issues raised by Tribes and States as challenges to assuming section 404 and draws from EPA's experience working with Tribes and States pursuing assumption and in program oversight. Aside from the 1993 Tribal additions, this proposed rule would be the first comprehensive update of the section 404 Tribal and State program regulations since 1988

. The proposal also responds to many of the additional issues raised by Tribes and States as challenges to assuming section 404 and draws from EPA's experience working with Tribes and States pursuing assumption and in program oversight. Aside from the 1993 Tribal additions, this proposed rule would be the first comprehensive update of the section 404 Tribal and State program regulations since 1988.

18 ECOS, ACWA, and ASWM Letter to Nancy Stoner, Acting Assistant Administrator for Water. April 30, 2014.

19 Available at https://www.epa.gov/cwa-404/submission-assumable-waters-subcommittees-final-report and in the docket for this proposed rule, Docket ID No. EPA-HQ-OW-2020-0276.

Several of the challenges that Tribes and States have identified regarding section 404 assumption cannot be resolved by this proposed rulemaking. For example, lack of funding and the financial cost of Tribal or State implementation of the section 404 program has been identified as a major impediment to program assumption 20 but is outside the scope of this rulemaking. Some States have also identified a lack of political will and lack of public support as challenges to assuming the section 404 program.

20 See Association of State Wetland Managers and Environmental Council of the States, 2011, Clean Water Act Section 404 Program Assumption: A Handbook for Tribes and States, available at https://www.aswm.org/pdf_lib/cwa_section_404_program_assumption.pdf.

C. Summary of Pre-Proposal Tribal and State Outreach

On June 11, 2018, the Agency published its 2018 Spring Unified Agenda of Regulatory and Deregulatory Actions 21 announcing that the Agency was considering a rulemaking to provide the first comprehensive revision to the existing section 404 Tribal and State program regulations since 1988 and provide clarity on specific issues requested by the Tribes and States. The Agency's outreach and engagement efforts since that announcement are summarized below

ng Unified Agenda of Regulatory and Deregulatory Actions 21 announcing that the Agency was considering a rulemaking to provide the first comprehensive revision to the existing section 404 Tribal and State program regulations since 1988 and provide clarity on specific issues requested by the Tribes and States. The Agency's outreach and engagement efforts since that announcement are summarized below.

21 Available at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201804&RIN=2040-AF83.

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 existing regulation that could benefit from additional clarity and revision. EPA initiated formal consultation efforts under Executive Order 13175 on Consultation and Coordination with Indian Tribal Governments regarding provisions that require clarification within the existing section 404 Tribal and State program regulations. The Agency sent notification of the consultation period to Tribes on October 18, 2018, and consultation ran from October 22, 2018, through December 21, 2018. On November 20, 2018, and November 29, 2018, EPA held Tribal informational webinars. See section VI.F of this preamble for further details on the Agency's Tribal consultation. During the consultation period, EPA participated in in-person meetings with Tribal associations, including a presentation for the National Tribal Water Council on October 24, 2018, and an informational session at the National Congress of American Indians 75th Annual Convention on October 24, 2018. The Agency also attended the EPA Region 9 Regional Tribal Operations Committee (RTOC) meeting on October 31, 2018, the EPA Region 6 RTOC meeting on November 28, 2018, and the EPA Region 7 Enhancing State and Tribal Programs Wetland Symposium on November 5, 2018

on October 24, 2018, and an informational session at the National Congress of American Indians 75th Annual Convention on October 24, 2018. The Agency also attended the EPA Region 9 Regional Tribal Operations Committee (RTOC) meeting on October 31, 2018, the EPA Region 6 RTOC meeting on November 28, 2018, and the EPA Region 7 Enhancing State and Tribal Programs Wetland Symposium on November 5, 2018. At the meetings and webinars, EPA provided a presentation and sought input on aspects of the existing section 404 Tribal and State program regulations and assumption process. The Agency sought input on the scope of assumable waters, partial assumption, calculating economic costs and benefits, and other issues.

Although the Agency does not view this rulemaking as having Federalism implications as defined in Executive Order 13132, the Agency sought pre-proposal input from States on plans to modernize the Agency's existing section 404 Tribal and State program regulations. The Agency invited written input from State agencies from November 12, 2018, through January 11, 2019, 22 and hosted an in-person meeting with State officials on December 6, 2018. At the in-person meeting, the Agency provided an overview of the rulemaking effort and the section 404(g) program and led themed discussions for input for the proposed rule, including clarifying assumed and retained waters and adjacent wetlands, enforcement and compliance, partial assumption, and calculating economic costs and benefits of the rule.

22 Due to the lapse in Federal Government funding, EPA accepted comments from States until February 2019.

EPA considered all input received during the development of the proposed rule, including written input submitted during outreach efforts to Tribes and States. Written input and a summary of the in-person State meeting and the

In 2023, EPA held informational webinars for States on January 24th, and for Tribes on January 25th and January 31st

PA accepted comments from States until February 2019.

In 2023, EPA held informational webinars for States on January 24th, and for Tribes on January 25th and January 31st. At these webinars, EPA provided Tribes and States with an update on the rulemaking effort and reminded Tribes and States of the input they had previously provided to EPA. EPA did not seek additional input from Tribes or States at these 2023 webinars.

V. Proposed Rule

This section of the preamble describes EPA's proposed regulatory revisions and provides the Agency's rationale for those proposed revisions. EPA is proposing to revise the CWA section 404 Tribal and State program regulations at 40 CFR part 233 to provide additional clarity on program approval process and requirements, permit requirements including compensatory mitigation, program operations, compliance evaluation and enforcement, Federal oversight, dispute resolution, and conflict of interest provisions, as well as to provide other technical and minor updates. EPA is also proposing to revise its criminal enforcement requirements in 40 CFR 123.27 and 40 CFR 233.41, which apply to Tribes and States that are authorized to or that seek authorization to administer a CWA section 402 National Pollutant Discharge Elimination System (NPDES) permitting program or a section 404 program respectively. EPA proposes to provide technical edits to 40 CFR part 124 consistent with the Agency's intent to clarify that the part 124 regulations do not apply to Tribal or State section 404 programs. Finally, EPA proposes to clarify a definition in 40 CFR part 232 that is related to Tribal and State section 404 program assumption.

System (NPDES) permitting program or a section 404 program respectively. EPA proposes to provide technical edits to 40 CFR part 124 consistent with the Agency's intent to clarify that the part 124 regulations do not apply to Tribal or State section 404 programs. Finally, EPA proposes to clarify a definition in 40 CFR part 232 that is related to Tribal and State section 404 program assumption.

A. Program Approval

This section of the preamble includes topics that are generally related to EPA's approval of a Tribal or State section 404 program, including program assumption requirements, waters that are retained by the Corps, effective dates for approved or revised Tribal or State programs, and compensatory mitigation requirements.

1. Program Assumption Requirements

a. What is the Agency proposing?

EPA is proposing to revise the current requirements for the program descriptions that Tribes and States submit to EPA when they request approval to assume the section 404 program. First, the proposed revisions would 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 233 subparts C through E. The proposal further specifies that 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

permit review, program operation, and compliance evaluation and enforcement programs, provided in 40 CFR 233 subparts C through E. The proposal further specifies that 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 proposed revision would 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 233 subpart C, as applicable; that its permitting operations would comply with the program operation requirements of 40 CFR 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 233 subpart E, as applicable.

Similarly, the Agency proposes to revise the existing 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 233.11(a). EPA proposes to clarify that this description “must” address all of the listed elements in 233.11(a). The proposal would also clarify 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 proposed revisions would not substantively change the requirements for permit review, program operation, and compliance evaluation and enforcement programs. Rather, they would ensure that Tribes or States provide EPA with sufficient information to ensure that Tribal or State programs would be able to meet these requirements

sufficient to meet the permit requirements in 40 CFR 233 subpart C. These proposed revisions would not substantively change the requirements for permit review, program operation, and compliance evaluation and enforcement programs. Rather, they would 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 proposes to revise the existing 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 would clarify that the description of inter-agency coordination must include coordination on enforcement and compliance.

b. Why is the Agency proposing this approach?

The Agency is proposing these changes to better harmonize its program approval requirements with program requirements in other sections of the CFR. Specifically, EPA seeks to update 40 CFR 233 subpart B to reflect the requirements of 40 CFR 233 subparts C through E and to better effectuate these regulations and CWA section 404(h).

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, and compliance evaluation and enforcement set forth in 40 CFR 233 subparts C through E and administer a program that is consistent with section 404. A program that lacks the resources to do so would not be able to carry out existing statutory and regulatory requirements. This proposed approach would not change these existing requirements, but would ensure that EPA receives information necessary to determine that Tribes and States can meet them

orth in 40 CFR 233 subparts C through E and administer a program that is consistent with section 404. A program that lacks the resources to do so would not be able to carry out existing statutory and regulatory requirements. This proposed approach would not change these existing requirements, but would ensure that EPA receives information necessary to determine that Tribes and States can meet them. In the 1988 preamble to the existing section 404 Tribal and 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 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 existing regulations require that the program description contain “a description” of available funding and manpower ( i.e., staffing), 23 40 CFR 233.11(d), but do not clearly indicate that the available funding and staffing must be sufficient to meet the requirements of subparts C through E. In addition, the current regulations provide that the program description 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

23 In this proposal, EPA is replacing the term “manpower” with “staffing” and will use the term “staffing” throughout this proposal

gulations provide that the program description 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

23 In this proposal, EPA is replacing the term “manpower” with “staffing” and will use the term “staffing” throughout this proposal.

EPA specifically proposes to require the Tribe or State to identify position descriptions and qualifications as well as budget and funding mechanisms in the program description 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.

Tribes and States should provide other information as well to the extent it is necessary to demonstrate that they will be able to carry out subparts C through E. In addition to providing the information EPA proposes to require in the regulations, Tribes and States may choose to demonstrate their capacity to implement subparts C through E by comparing the number of Corps staff that currently administer the section 404 program in Tribal areas or in a State to the number of Tribal or State staff that will implement the assumed program. Given differences in administrative structures, a direct comparison may not be feasible, however; for example, a Corps district may not be able to identify the number of staff focused solely on section 404 permitting or one State if its staff administers the section 10 and section 404 regulatory program for a number of States

number of Tribal or State staff that will implement the assumed program. Given differences in administrative structures, a direct comparison may not be feasible, however; for example, a Corps district may not be able to identify the number of staff focused solely on section 404 permitting or one State if its staff administers the section 10 and section 404 regulatory program for a number of States. Similarly, a Tribal or State program may incorporate other permitting into its 404 program such as permits to address potential flooding. These challenges 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.

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. 404(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).

ement their authority best carries out section 404(h).

This proposal 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 proposed rule would retain 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 as well depending on the anticipated workload for the Tribe or State. EPA is committed to working with Tribes and States to help their programs meet the proposed standard and may develop guidance in the future that Tribes and States could use to ensure sufficient program capacity. In adding a new clarification to better carry out the existing requirements of 40 CFR 233.11, this proposed revision would not reopen those existing requirements.

EPA's proposed clarification that as part of the program description, the Tribe or State must contain all of the listed program description elements and must demonstrate that its permit review criteria are sufficient to carry out the permitting requirements of 40 CFR 233 subpart C has the same goal as the program revisions described above of harmonizing 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

monstrate that its permit review criteria are sufficient to carry out the permitting requirements of 40 CFR 233 subpart C has the same goal as the program revisions described above of harmonizing 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, EPA's proposal that the description of Tribal and State agency coordination on program administration must address agency coordination on enforcement and compliance would enable EPA to ensure the Tribe or State is complying with the requirements of 40 CFR 233 subpart E, addressing enforcement and compliance requirements for assumed programs.

c. Request for Comment

The Agency requests comment on all aspects of the proposed revisions. The Agency specifically requests comment as to whether to make clarifying revisions to other provisions in 40 CFR 233.11 to ensure the Agency will be able to ensure a Tribe or State is equipped to carry out the requirements of 40 CFR 233 subparts C through E. EPA requests comment as to what additional types of information in section 233.11 Tribes or States must provide. EPA also requests examples of particular metrics that Tribes and States could use to determine funding and staff sufficiency, such as ratios of funding and staff to expected permit applications, and whether to specify any such metrics in regulation.

2. Retained Waters

a. What is the Agency proposing?

The Agency is proposing a procedure to facilitate determining the extent of waters over which the Corps would retain administrative authority following Tribal or State assumption of the section 404 program. Under the proposed 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 Corps section 404 administrative authority following assumption

d retain administrative authority following Tribal or State assumption of the section 404 program. Under the proposed 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 Corps section 404 administrative authority following assumption. EPA is proposing to require that the Tribe or State submit specific additional information that should accompany the request to show that the Tribe or State has taken concrete and substantial steps toward program assumption. EPA is proposing to require that one of the following 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

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 would have 180 days from the receipt of the request transmitted by EPA to provide a retained waters description to the Tribe or State. The purpose of the 180-day period would be to allow the Corps time and opportunity to identify which waters the Corps will retain section 404 permitting authority over. 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 would prepare a retained waters description.

The Corps, Tribe, or State would start with the most recently published list of RHA section 10 waters ( see 33 CFR 329.16) as the basis for the retained waters description

y over. 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 would prepare a retained waters description.

The Corps, Tribe, or State would start with the most recently published list of RHA section 10 waters ( see 33 CFR 329.16) as the basis 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. 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 33 U.S.C. 1344(g)(1). 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, and are no longer susceptible to use as a means to transport interstate or foreign commerce. The description would also acknowledge that wetlands are to be retained if they are adjacent to Corps-retained waters. However, a specific list of 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. Finally, as recognized in EPA's existing regulations, in many cases, States lack authority to regulate activities in Indian country. See 40 CFR 233.1(b)

adjacent to Corps-retained waters. However, a specific list of 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. Finally, as recognized in EPA's existing 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 a State has authority to regulate discharges into waters in Indian country. See id.

To clarify the extent of adjacent wetlands over which the Corps retains administrative authority following Tribal or State assumption, EPA proposes that the Corps retain administrative authority over all jurisdictional wetlands “adjacent” to retained waters, 24 except that the geographic extent of the Corps' administrative authority would be limited by an agreed-upon administrative boundary ( e.g., a boundary established based on a specific distance from the ordinary high water mark for inland navigable waters or the mean high tide for coastal areas, or a boundary that relies on physical features such as a bluff line). The Corps would retain administrative authority over the jurisdictional adjacent wetlands waterward of the administrative boundary. The Tribe or State would assume administrative authority over any other adjacent wetlands landward of the administrative boundary. The administrative boundary between retained and assumed wetlands would be set jointly by the Tribe or State and the Corps, but a 300-foot administrative boundary would be established as a default if no other boundary between retained and assumed adjacent wetlands is established.

24 The agencies currently interpret the term “adjacent” consistent with the Supreme Court's decision in Sackett v. EPA, No. 21-454 (U.S. May 25, 2023)

en retained and assumed wetlands would be set jointly by the Tribe or State and the Corps, but a 300-foot administrative boundary would be established as a default if no other boundary between retained and assumed adjacent wetlands is established.

24 The agencies currently interpret the term “adjacent” consistent with the Supreme Court's decision in Sackett v. EPA, No. 21-454 (U.S. May 25, 2023).

Some project proposals involving jurisdictional adjacent wetlands that straddle the administrative boundary may involve a discharge into the wetland on both sides of the administrative boundary. The Memorandum of Agreement between the Tribe or State and the Corps must articulate an approach for permitting projects involving such discharges that may occur in the adjacent wetland on both sides of the administrative boundary. Under any agreement, the Corps may not retain waters other than those described in the CWA section 404(g)(1) parenthetical. 25 If the Corps and Tribe or State do not agree on an alternative approach for permitting the projects which may cross the administrative boundary in the Memorandum of Agreement, under the default approach the Corps would issue a section 404 permit for the discharges to jurisdictional adjacent wetlands or portions of jurisdictional adjacent wetlands that are waterward of the administrative boundary, and the Tribe or State would issue a section 404 permit for discharges to jurisdictional adjacent wetlands or portions of jurisdictional adjacent wetlands that are landward of the administrative boundary.

urisdictional adjacent wetlands that are landward of the administrative boundary.

25 Adjacent wetlands are included in the waters described in the CWA 404(g)(1) parenthetical, and therefore the MOA can provide that the Corps would retain the entirety of the adjacent wetlands notwithstanding an administrative boundary when a project includes discharges on both sides of the administrative boundary. In contrast, when a permittee's activities include discharges into those waters described in the CWA section 404(g)(1) parenthetical as well as waters that must be assumed because they are not described by the CWA section 404(g)(1) parenthetical, the retained waters cannot be expanded to encompass those waters not described by the CWA section 404(g)(1) parenthetical. This distinction in what waters can be retained does not affect the authority of the Corps to permit activities under 40 CFR 233.50(j).

In addition, EPA proposes to revise the provision in the existing regulations providing that modifications to the extent of the retained waters description always constitute substantial revisions to a Tribal or State program. Note, however, that under this proposal changes in geographic scope of an approved Tribal CWA section 404 program are substantial where the Tribe seeks to include additional reservation areas within the scope of its approved program. EPA is also proposing that the program description must specify that the Tribal or State program will encompass all waters of the United States not retained by the Corps at all times. Finally, EPA proposes to remove 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 MOA procedures for joint processing of Federal and State permits, including joint public notice and public hearings.” 40 CFR 233.14(b)(2).

m 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 MOA procedures for joint processing of Federal and State permits, including joint public notice and public hearings.” 40 CFR 233.14(b)(2).

b. Why is the Agency proposing this approach?

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 26 The Corps retains administrative authority over a subset of these waters even after program assumption by a Tribe or State. 27 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 their jurisdiction that are not retained by the Corps.

26 The permitting provisions of the CWA (as well as other provisions), including CWA section 404, apply to “navigable waters.” See 33 U.S.C. 1311(a). CWA section 502(7) in turn defines “navigable waters” as “waters of the United States, including the territorial seas.” Id. section 1362(7).

including the territorial seas.” Id. section 1362(7).

27 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 retains administrative authority. The scope of CWA jurisdiction is defined by CWA section 502(7) as “waters of the United States,” therefore, 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 proposal 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 in no way defines the broader set of waters of the United States within the scope of the CWA as defined by CWA section 502(7) and has no bearing on the scope of waters of the United States.

EPA's existing 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). In addition, the existing 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)

rison of the State and Federal definitions of wetlands.” 40 CFR 233.11(h). In addition, the existing 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).

Prior to this proposed rule, EPA had not provided specific 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 Corps districts have had to interpret the extent of retained waters and the meaning of “adjacent wetlands” in the context of case-by-case development of State program descriptions and the Memoranda of Agreement that are negotiated between the Corps and the State as part of a complete 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 IV.B of this preamble addressing Background, EPA convened the Assumable Waters Subcommittee under the auspices of the National Advisory Council for Environmental Policy and Technology (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

echnology (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 clarifying the extent of retained waters and adjacent wetlands (though the letter did not define a specific administrative boundary for adjacent wetlands). 28 The Corps relied on this letter when identifying waters to be retained when Florida assumed the section 404 program in December 2020. NACEPT's recommendations, based on the Subcommittee majority recommendation that was subsequently endorsed by the Corps, are discussed below.

28 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). The memorandum states that it “. . . is not intended to address future decisions to be made by EPA under Sections 404(g) or 404(h).” Id. at 3.

i. Retained Waters

ity recommendation that was subsequently endorsed by the Corps, are discussed below.

i. Retained Waters

(1) 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 29 be used “with two minor modifications: any waters that are on the Section 10 lists based solely on historic use ( e.g., based solely on historic fur trading) 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. 30 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 legislative history of section 404(g), which is discussed in section IV.A.3 of this preamble, addressing Background, 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.) It was also based on an assessment of an approach that would be clear and easy to implement. See id. at 17-20.

29 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

itting authority over some RHA section 10 waters. See id. at 55-61 (Appendix F.) It was also based on an assessment of an approach that would be clear and easy to implement. See id. at 17-20.

30 Available at https://www.epa.gov/sites/default/files/2017-06/documents/awsubcommitteefinalreprort_05-2017_tag508_05312017_508.pdf .

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 Id. The Subcommittee majority found that “[b]ecause Tribal Indian Reservation boundaries are not static and precise definitions and considerations vary from state to state, it is essential that waters to be retained by the USACE on tribal lands be specifically addressed in any MOA developed between the USACE and a state assuming the 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.

e program.” Id.

(2) EPA's Proposal

Taking into consideration the majority recommendation of the Subcommittee, EPA proposes that, taking current RHA section 10 list(s) as a starting point, the following steps would be taken to identify the subset of waters of the United States over which the Corps would retain administrative authority and develop the retained waters description:

—Place waters of the United States, or reaches of those waters, from the RHA section 10 list(s) 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; —Add any other waters known by the Corps or the Tribe or State 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, including all waters which are subject to the ebb and flow of the tide; —Add a description of wetlands that are adjacent to the foregoing waters consistent with the administrative boundary articulated in the Tribal-Corps or State-Corps Memorandum of Agreement ( see section V.A.2.b.ii of this preamble on adjacent wetlands). 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

tent with the administrative boundary articulated in the Tribal-Corps or State-Corps Memorandum of Agreement ( see section V.A.2.b.ii of this preamble on adjacent wetlands). 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. In addition, the Corps or assuming Tribes or States 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 it should be retained pursuant to the parenthetical in 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, potentially taking many years to complete the retained waters description. Therefore, EPA is proposing that the retained waters description encompass waters “known” by the Corps, Tribe, or State to meet these criteria. EPA's proposed regulation allows for this 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 criteria. EPA is confident that geographic information systems technology and navigation charts, as well as other approaches, 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

dentified after assumption, or if waters included in the description no longer meet the criteria. EPA is confident that geographic information systems technology and navigation charts, as well as other approaches, 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.

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 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, including that 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.

As recognized in EPA's existing 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. EPA proposes that the Memorandum of Agreement between the Corps and State address any waters in Indian Country which are to be retained by the Corps upon program assumption by a State

e 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. EPA proposes that the Memorandum of Agreement between the Corps and State 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 ( e.g., some national parks, such as certain areas of the Denali National Park).

EPA's proposed 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. The process provides for clarity that will facilitate consistent and effective operation of an assumed section 404 program. 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 IV.A.3 of this preamble, addressing Background. Since the proposed approach does not conflict with the approved extent of the Michigan, New Jersey, and Florida programs, no changes to their existing program scope would be required.

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, regardless of whether the Corps chooses to provide a retained waters list to the Tribe or State during the initial proposed 180-day period

er 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, regardless of whether the Corps chooses to provide a retained waters list to the Tribe or State during the initial proposed 180-day period. EPA's participation in these discussions could help ensure consideration of CWA requirements and related issues ( e.g., Tribal waters). The Subcommittee majority recommended that EPA and the Corps establish a clear dispute See section V.F.1 of this preamble, addressing Dispute Resolution. EPA encourages Tribes and States seeking to assume the section 404 program to work collaboratively with the Corps and EPA to resolve any issues.

While EPA anticipates that development of the retained waters description would involve 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 majority recognized that there will be circumstances under which the Corps may add waters to section 10 lists after a Tribe or State assumes the program. The Subcommittee majority recommended that in that case, such waters may, if consistent with CWA section 404(g)(1), be added to lists of Corps-retained waters at that time. As is clear from the process described above and proposed in this rulemaking, a RHA section 10 list will not necessarily be co-extensive with the subset of waters of the United States over which the Corps would retain administrative authority ( i.e., retained waters description) following Tribal or State assumption of the CWA section 404 program

dded to lists of Corps-retained waters at that time. As is clear from the process described above and proposed in this rulemaking, a RHA section 10 list will not necessarily be co-extensive with the subset of waters of the United States over which the Corps would retain administrative authority ( i.e., retained waters description) following Tribal or State assumption of the CWA section 404 program.

In light of the requests by Tribes and States for clarity and early input from the Tribes and States on this rulemaking, EPA is proposing changes to the existing regulation, similar to the Subcommittee majority opinion's recommendation, that would establish a clear regulatory process with defined timelines for a Tribe or State to identify retained waters, either by obtaining a list from the Corps or developing the list consistent with the proposed process. Specifically, EPA is proposing to specify that 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. 31 In an effort to balance the Tribe's or State's need to know the extent of waters it could assume with the Corps' permitting workload, EPA is proposing to require that the Tribe or State 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

inistrative authority. 31 In an effort to balance the Tribe's or State's need to know the extent of waters it could assume with the Corps' permitting workload, EPA is proposing to require that the Tribe or State 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. EPA is proposing to require that one of the following 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. Under this proposal, 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 proposed 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.

31 EPA recognizes that in some cases, a Tribe's or State's boundaries may overlap with multiple Corps districts. Based on the Agency's experience with States pursuing assumption of a section 404 program, the Corps may designate a “lead district” to coordinate with the State. If the Corps designates a lead district, the Tribe or State would not need to request a retained waters description from all relevant Corps districts, but rather could coordinate directly with the lead district

multiple Corps districts. Based on the Agency's experience with States pursuing assumption of a section 404 program, the Corps may designate a “lead district” to coordinate with the State. If the Corps designates a lead district, the Tribe or State would not need to request a retained waters description from all relevant Corps districts, but rather could coordinate directly with the lead district.

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 by the Corps or the Tribe or State 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. As discussed below, the description would also acknowledge that wetlands are to be retained if they are adjacent to Corps-retained waters pursuant to the proposed regulations at 40 CFR 233.11(i)(3) and (i)(5). However, a specific list of 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. The Tribe or State may provide information to the Corps during the 180-day period to aid in the Corps' development of the retained waters description

ons at 40 CFR 233.11(i)(3) and (i)(5). However, a specific list of 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. The Tribe or State may provide information to the Corps during the 180-day period to aid in the Corps' development of the retained waters description.

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 would 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, the Tribe or State may develop the retained waters description using the same approach described above. In general, the retained waters description should provide as much clarity as possible to maximize transparency for members of the public and the regulated community. Because the Agency's proposed 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, the Regional Administrator may presume that a retained waters description that uses this approach satisfies the statutory criteria for retained waters.

teria for retained waters.

Even if the Corps does not provide a retained waters description to the Tribe or State, it 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

ii. Adjacent Wetlands

(1) Subcommittee Recommendation

The Subcommittee majority 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 would pertain only to retained adjacent wetlands and not other waters of the United States to be assumed by the Tribe or State. This boundary, the recommendation added, “could be negotiated at the state or tribal level to take into account existing state regulations or natural features that would increase practicability or public understanding; if no change were negotiated, a 300-foot national administrative default line would be used.” Final Report of the Assumable Waters Subcommittee at vi

assumed by the Tribe or State. This boundary, the recommendation added, “could be negotiated at the state or tribal level to take into account existing state regulations or natural features that would increase practicability or public understanding; 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 tens or even hundreds of miles” from the retained water in “intricate and snakelike networks, which could result in a confusing pattern of USACE and state or tribal permitting authority across the landscape. For example, the St. Louis River (a tributary to Lake Superior) forms some of the boundaries of the Fond du Lac Indian Reservation in Minnesota where wetlands comprise 44% of the Reservation.” Id. at 31. The report further explained that “[w]etlands adjacent to the St. Louis River . . . are interconnected with other wetlands that extend tens of miles away from the river, well beyond other wetlands that are not connected or adjacent to the river.” Id. The majority opinion also stated that some Tribes and States have already established various boundaries, lines, or demarcations in their Tribal or State programs for reasons such as protection of water quality or flood setbacks. These established lines, the majority opinion suggested, could be used to establish the administrative boundary between retained and assumable waters. Id.

he river.” Id. The majority opinion also stated that some Tribes and States have already established various boundaries, lines, or demarcations in their Tribal or State programs for reasons such as protection of water quality or flood setbacks. These established lines, the majority opinion suggested, could be used to establish the administrative boundary between retained and assumable waters. Id.

(2) EPA's Proposal

In light of the request by Tribes and States for clarity, EPA is proposing changes to the existing regulation that are similar to the Subcommittee majority opinion's recommendation. EPA's proposal would allow Tribes or States to work with the Corps to establish a clear and reliable administrative boundary that demarks the permitting authority for adjacent wetlands. The boundary would be easily understood and implementable in the field, would facilitate coordination between the Tribe or State and the Corps, and would enable informed public comment during the assumption process and permit review. EPA is proposing that the Corps retain administrative authority over all jurisdictional wetlands adjacent to retained waters, except that, for purposes of administrative convenience, the geographic scope of the Corps' administrative authority would be limited by an agreed-upon administrative boundary. The Corps would retain administrative authority for purposes of section 404 permitting only over the adjacent wetlands waterward of the administrative boundary. The Tribe or State would assume section 404 permitting authority over any adjacent wetlands landward of the administrative boundary. This boundary would be negotiated between the Corps and the Tribe or State and take into account existing Tribal or State regulations or natural features that would facilitate implementation and clarity. This proposed provision is consistent with the Subcommittee majority opinion recommendation subsequently endorsed by the Army

ty over any adjacent wetlands landward of the administrative boundary. This boundary would be negotiated between the Corps and the Tribe or State and take into account existing Tribal or State regulations or natural features that would facilitate implementation and clarity. This proposed provision is consistent with the Subcommittee majority opinion recommendation subsequently endorsed by the Army. This proposed administrative boundary does not modify or in any way affect the interpretation of the scope of those wetlands that are “adjacent” for purposes of the definition of waters of the United States, but rather simply draws a line through them for the sole purpose of maximizing clarity as to the relevant permitting authority for these waters of the United States and thus facilitating the administration and implementability of approved Tribal and State programs.

EPA is proposing that the administrative boundary between retained and assumed wetlands be set jointly by the Tribe or State and the Corps and that a 300-foot administrative boundary from the ordinary high water mark, mean high water mark, or mean higher high water mark on the west coast, of the retained water be set as a default when no other boundary between retained and assumed wetlands is established.

ablished.

As the majority opinion in the Subcommittee report stated, “[t]he establishment of a national administrative boundary to assign regulatory responsibility over adjacent wetlands should build on USACE authorities under the RHA. The RHA was enacted primarily to protect navigation and the navigable capacity of the nation's waters.” Final Report of the Assumable Waters Subcommittee at 25-26. Section 10 of the RHA requires authorization from the Secretary of the Army, acting through the Corps, for the construction of any structure in or over any “navigable water of the United States.” Section 14 of the RHA provides that the Secretary of the Army, on the recommendation of the Chief of Engineers, may grant permission for the temporary occupation or use of any sea wall, bulkhead, jetty, dike, levee, wharf, pier or other work built by the United States. 33 U.S.C. 408. The Corps will always retain RHA section 10 and 14 permitting authorities in all waters subject to the RHA; it is the administrative authority to issue CWA section 404 permits in these waters which the Corps would not retain when a Tribe or State assumes the program.

Establishing that the Corps retains jurisdictional adjacent wetlands up to an agreed upon administrative boundary, with a default boundary of a 300-foot distance from retained waters, would preserve the Corps' authority over waters and wetlands to the extent necessary to allow the Corps to address activities that may adversely impact navigability, while ensuring certainty for the extent of waters assumed by the Tribal or State program and clarity for the regulated community. The sole purpose of the 300-foot default boundary is to facilitate efficient program administration, when an administrative boundary is not otherwise established

nds to the extent necessary to allow the Corps to address activities that may adversely impact navigability, while ensuring certainty for the extent of waters assumed by the Tribal or State program and clarity for the regulated community. The sole purpose of the 300-foot default boundary is to facilitate efficient program administration, when an administrative boundary is not otherwise established. Requiring a clear boundary between permitting authorities is well within EPA's authority to help ensure that the Tribe or State permitting program can function smoothly and effectively, and to maximize transparency for the regulated community and others as to the relevant permitting authority. See generally 33 U.S.C. 1361(a); 1344(g)-(h). The Tribe or State and the Corps may decide that existing State-established

The Subcommittee majority found that “[r]iparian buffers and setbacks are established by many states to, among other purposes, help store floodwaters and prevent sediment transport, directly supporting and preserving navigation. Thus, such state-established boundaries can provide both a practical and a logical basis for the establishment of a national administrative boundary between wetlands retained by the USACE and wetlands assumed by a state or tribe.” Final Report of the Assumable Waters Subcommittee at 26. To the extent discharges into assumed waters may affect navigability, Federal review and oversight of permits issued by a Tribe or State under an approved section 404 program can address any such impacts. The statute and existing regulations provide that the Tribe or State shall not issue a permit if the Secretary determines that anchorage and navigation of the navigable waters would be substantially impaired. 33 U.S.C. 1344(h)(1)(F), 40 CFR 233.20(d); see also 40 CFR 233.50 (addressing Federal oversight of Tribe- or State-issued permits)

n approved section 404 program can address any such impacts. The statute and existing regulations provide that the Tribe or State shall not issue a permit if the Secretary determines that anchorage and navigation of the navigable waters would be substantially impaired. 33 U.S.C. 1344(h)(1)(F), 40 CFR 233.20(d); see also 40 CFR 233.50 (addressing Federal oversight of Tribe- or State-issued permits).

The proposed default administrative boundary would allow Tribes and States to adapt the section 404 program to the Tribe's or State's natural conditions and provide additional flexibility and efficiency by simplifying the process of identifying retained waters prior to assumption. EPA agrees with the Subcommittee majority's conclusion that a 300-foot administrative boundary, or comparable demarcation between the Tribe's or State's and the Corps' permitting authority, would provide clarity and avoid “confusion or unnecessary duplication, while preserving the USACE's responsibility to protect and maintain navigation under the RHA as required by Congress.” Final Report of the Assumable Waters Subcommittee at 26. The Subcommittee majority concluded that “[s]ince the boundary defines the landward extent of the adjacent wetlands retained by the USACE, it eliminates the need to determine the extent and connectivity of large wetland systems to allocate administrative authority between the USACE and a state or tribe.” Id. EPA agrees with the Subcommittee majority's conclusion that a 300-foot default boundary is reasonable, especially since the Corps still has the opportunity to provide comment on Tribe- or State-issued permits and retains permitting authority pursuant to RHA sections 10 and 14 for all Tribal or State assumed waters subject to those provisions.

EPA recognizes that some project proposals that straddle the administrative boundary may involve a discharge into the waters on both sides of the administrative boundary

nce the Corps still has the opportunity to provide comment on Tribe- or State-issued permits and retains permitting authority pursuant to RHA sections 10 and 14 for all Tribal or State assumed waters subject to those provisions.

EPA recognizes that some project proposals that straddle the administrative boundary may involve a discharge into the waters on both sides of the administrative boundary. The extent of impacts associated with projects that straddle the boundary could be minimal or extensive, as in the case of linear projects or housing developments. In order to respond to the interests of Tribes and States in facilitating the assumption process, reducing costs, and increasing the consistency and efficiency of assumed programs, EPA is recommending that a process for determining the allocation of permitting authority in this situation be addressed in the program description and the Memorandum of Agreement between the Tribe or State and the Corps, to allow for regional differences and to best meet the conditions of individual Tribes and States. In developing the Memorandum of Agreement, the Tribe or State and the Corps should consider and memorialize permitting approaches for various project types where the project proposal may involve discharges on both sides of the administrative boundary.

EPA also recognizes that the Corps, Tribes, and States would benefit from additional clarity as to how project proposals that cross the administrative boundary should be permitted, absent an alternative approach being developed by the Corps and the Tribe or State. Under the default approach in this proposed rule, the Corps shall issue a section 404 permit for the discharges to jurisdictional adjacent wetlands or portions of such wetlands that are waterward of the administrative boundary. The Tribe or State shall issue a section 404 permit for discharges to jurisdictional adjacent wetlands or portions of such wetlands that are landward of the administrative boundary

e default approach in this proposed rule, the Corps shall issue a section 404 permit for the discharges to jurisdictional adjacent wetlands or portions of such wetlands that are waterward of the administrative boundary. The Tribe or State shall issue a section 404 permit for discharges to jurisdictional adjacent wetlands or portions of such wetlands that are landward of the administrative boundary. Note that EPA is not suggesting that, when a proposed project crosses the administrative boundary, each individual discharge should be permitted separately. Such an approach would be inconsistent with the existing regulatory requirement that “[a]ll activities which the applicant plans to undertake which are reasonably related to the same project should be included in the same permit application.” 40 CFR 233.30(b)(5). Rather, the default in the proposed rule is that the Corps and Tribe or State shall each permit all discharges to adjacent wetlands related to a proposed project on their respective sides of the administrative boundary. In such cases, EPA recommends that the Corps and the Tribe or State coordinate on permitting activities such as public notices and joint public hearings to the extent feasible to facilitate assessment of cumulative impacts.

The approved Michigan, New Jersey, and Florida CWA section 404 programs are also consistent with the proposed approach. EPA briefly summarizes the approaches taken by these States to provide examples of possible approaches that are consistent with the proposed rule. In the Memorandum of Agreement between New Jersey and the Corps, the Corps retained regulatory authority over those wetlands that are: “. . . partially or entirely located within 1000 feet of the ordinary high water mark or mean high tide of the Delaware River, Greenwood Lake, and all water bodies which are subject to the ebb and flow of the tide.” Memorandum of Agreement between the State of New Jersey and the Department of the Army at 2 (March 4, 1993)

Corps, the Corps retained regulatory authority over those wetlands that are: “. . . partially or entirely located within 1000 feet of the ordinary high water mark or mean high tide of the Delaware River, Greenwood Lake, and all water bodies which are subject to the ebb and flow of the tide.” Memorandum of Agreement between the State of New Jersey and the Department of the Army at 2 (March 4, 1993). State-administered waters in turn are generally determined by superimposing head of tide data on the State's freshwater wetlands quarter quadrangles that are at a scale of one-inch equals 1000 feet. A line was established parallel to and 1000 feet from the ordinary high-water mark or mean high tide of the waters described above. The Corps retains permitting authority over all wetlands that are waterward of, or intersected by, the administrative boundary described above. Because New Jersey regulates all wetlands and other waters under the same statute, it rarely must determine whether a wetland is assumable or non-assumable for purposes of a State permit. 32

32 For further information, see the Memorandum of Agreement between the Corps and the New Jersey Department of Environmental Protection and Energy, signed by the Division Engineer on March 4, 1993.

In Michigan, the extent of adjacent wetlands over which the Corps retains authority generally includes wetlands within the influence of the ordinary high water mark of retained waters. The State and the Corps coordinate permitting of projects that involve discharges into both assumed and retained waters to ensure the permit requirements do not conflict. 33

33 For further information, see the Memorandum of Agreement between the Corps and the Michigan Department of Natural Resources, signed by the Commander, North Central Division, on March 27, 1984

ater mark of retained waters. The State and the Corps coordinate permitting of projects that involve discharges into both assumed and retained waters to ensure the permit requirements do not conflict. 33

33 For further information, see the Memorandum of Agreement between the Corps and the Michigan Department of Natural Resources, signed by the Commander, North Central Division, on March 27, 1984.

In Florida, the Corps retains responsibility for waters that are identified in the retained waters 34

34 For further information, see the Memorandum of Agreement between the Corps and the Michigan Department of Natural Resources, signed by the Assistant Secretary of the Army (Civil Works), on August 5, 2020.

iii. Modifying the Extent of Retained Waters

EPA proposes to revise the provision in the existing regulations that currently states that modifications that affect the area of jurisdiction always constitute substantial revisions to a Tribal or State program. The existing 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, of substantial revisions. 40 CFR 233.16(d)(2)-(4). Changes to the area of jurisdiction could include changes to the retained waters description. Such changes may sometimes have limited scope and impact and therefore may be non-substantial. As described above, this proposal would clarify that the retained waters description looks initially to those waters on existing RHA section 10 lists. As such, the process set forth in proposed 40 CFR 233.11(i)(3) should be followed to identify whether changes to the RHA section 10 list warrant changes to the retained waters description for a given Tribal or State section 404 program.

EPA recognizes that changes to RHA section 10 lists do not always warrant changes to the retained waters description, or only warrant minimal changes

n 10 lists. As such, the process set forth in proposed 40 CFR 233.11(i)(3) should be followed to identify whether changes to the RHA section 10 list warrant changes to the retained waters description for a given Tribal or State section 404 program.

EPA recognizes that changes to RHA section 10 lists do not always warrant changes to the retained waters description, or only warrant minimal changes. 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. As another example, if the Corps made a relatively minor adjustment to the head of navigation for a RHA section 10 listed water, the new extent to which this water is retained would be shown on a revised retained waters list but may be considered as a non-substantial change in the retained waters description.

However, if a large water or a significant number of waters are proposed to be added to or removed from the retained waters description, that change could be a substantial revision to the Tribal or State program. Under the proposal, EPA would have discretion to determine whether changes to the area of jurisdiction, which includes the extent of retained waters, are substantial or non-substantial and approve the modification to the retained waters description and extent of the Tribal or State program consistent with the procedures in 40 CFR 233.16.

Note, however, that EPA is proposing to clarify 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

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.” 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, the Agency proposes to clarify that revisions 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 proposing to amend 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.

iv. Additional Clarifications

ubstantial. EPA is also requiring that other Federal agencies be notified of these program modification approvals as appropriate.

iv. Additional Clarifications

EPA also proposes to clarify that in the program description of an assumption request, the description of waters of the United States assumed by the Tribe or State must encompass all waters of the United States not retained by the Corps. All discharges of dredged or fill material into waters of the United States must be regulated either by the Tribe or State or the Corps; at no time can there be a gap in permitting authority for any water of the United States. See discussion of this principle in section V.E.1 of this preamble.

Finally, EPA proposes to remove 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 MOA procedures for joint processing of Federal and State permits, including joint public notices and public hearings.” 40 CFR 233.14(b)(2). EPA proposes to remove the term “traditionally” to align the reference to retained waters with the rest of the 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 proposed rule. See 40 CFR 120.2(a)(1)(i).

c. Request for Comment

EPA solicits comments on all aspects of the proposal laid out above

tory 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 proposed rule. See 40 CFR 120.2(a)(1)(i).

c. Request for Comment

EPA solicits comments on all aspects of the proposal laid out above. EPA solicits comment on whether the term “retained waters description” should be used when referring to how retained waters are identified in a Tribal or State program description or if the term “retained waters list” or some other term should be used instead and why such term is preferable over “retained waters description.”

With respect to determinations of the extent of retained waters, EPA solicits comment on the appropriate

The Agency solicits comment on how to increase transparency for the public regarding the development of the retained waters description. For example, EPA solicits comment on an approach whereby when the Tribe or State submits its request to the Corps to develop a retained waters description, the Tribe or State must publish public notice of that request, in an effort to increase transparency and maximize opportunities for public input. The Agency also solicits comment on alternative ways to increase opportunities for public participation in the development of the description, in addition to the existing opportunity for public comment after the Tribe or State submits a program request to EPA for approval

must publish public notice of that request, in an effort to increase transparency and maximize opportunities for public input. The Agency also solicits comment on alternative ways to increase opportunities for public participation in the development of the description, in addition to the existing opportunity for public comment after the Tribe or State submits a program request to EPA for approval.

The Agency solicits comment on all aspects of the proposed approach to determining the extent of retained adjacent wetlands as well as alternative approaches, including whether the 300-foot administrative default should be codified in regulatory text, whether another default, such as 500 feet or 1,000 feet, should be recommended or codified, whether an administrative boundary should be an optional recommendation rather than a requirement, and any alternative approaches to establishing a boundary and to determining which “adjacent wetlands” are retained by the Corps.

The Agency also solicits comment on all aspects of the proposed approach to modifying the extent of retained waters, including whether these modifications should be substantial or non-substantial and whether to modify or specify any other procedures, including public notifications, for such modifications. EPA specifically solicits comment on its proposal to remove the specification that changes to the area of jurisdiction, which includes the retained waters description, are always substantial changes to approved Tribal or State programs. EPA requests comment on alternative approaches, including whether to instead provide that reductions in the scope of Federal jurisdiction, such as the removal of waters from the retained waters description, are always substantial program revisions

hanges to the area of jurisdiction, which includes the retained waters description, are always substantial changes to approved Tribal or State programs. EPA requests comment on alternative approaches, including whether to instead provide that reductions in the scope of Federal jurisdiction, such as the removal of waters from the retained waters description, are always substantial program revisions.

EPA solicits comment as to whether to require the program description and the Memorandum of Agreement between the Tribe or State and the Corps to specifically address the process for permitting projects that may involve discharges both waterward and landward of the administrative boundary. EPA also solicits comment on the proposed default permitting approach for projects that would lead to discharges to jurisdictional adjacent wetlands crossing the administrative boundary.

EPA requests comment on specific ways EPA could be involved in resolving any disagreements regarding the extent of retained waters, and whether the regulations should provide a specific procedure through which EPA could provide input on the retained waters description while it is being developed. Note that EPA already has the opportunity to provide input upon review of the Tribal or State program submission, as well as when changes are proposed to an approved retained waters description. Finally, the Agency solicits comment as to whether to require that the retained waters description should be revisited at certain intervals, such as annually, biennially, or triennially, to allow for any necessary modifications, or if any such review should be handled in the Memoranda of Agreement between EPA and the Tribe or State or between the Corps and the Tribe or State.

3. Mitigation

. Finally, the Agency solicits comment as to whether to require that the retained waters description should be revisited at certain intervals, such as annually, biennially, or triennially, to allow for any necessary modifications, or if any such review should be handled in the Memoranda of Agreement between EPA and the Tribe or State or between the Corps and the Tribe or State.

3. Mitigation

a. What is the Agency proposing?

EPA is proposing to require that the program description that Tribes or States submit to EPA when seeking to assume the section 404 program include a description of the Tribe's or State's proposed approach to ensuring that all permits issued by the Tribe or State 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. The provision would clarify 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 as opposed to Corps administration, but may not be less stringent than the substantive criteria of subpart J. For example, a Tribal or State program may choose to provide for mitigation in the form of banks and permittee responsible compensatory mitigation but not establish an in-lieu fee program. EPA is proposing that if the Tribe or State establishes third party compensation mechanisms as part of their section 404 program ( e.g., banks or in-lieu-fee programs), instruments associated with these compensatory mitigation approaches must be sent to EPA, the Corps, the U.S. Fish and Wildlife Service, and the National Marine Fisheries Service for review prior to approving the 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

banks or in-lieu-fee programs), instruments associated with these compensatory mitigation approaches must be sent to EPA, the Corps, the U.S. Fish and Wildlife Service, and the National Marine Fisheries Service for review prior to approving the 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. Note that this requirement does not include permittee-responsible mitigation instruments as those would be reviewed as part of the permit conditions. Tribes and States may also send draft instruments to other relevant Tribal or State resource agencies for review. The proposed rule provides a time frame for receiving comments from the reviewing agencies. In the event that the Regional Administrator has commented that the instrument is not consistent with the description of the Tribe's or State's proposed approach to ensuring compliance with the substantive criteria for compensatory mitigation, the Tribe or State shall not approve the final compensatory mitigation instrument until the Regional Administrator notifies the Director that the final instrument is consistent with this approach.

b. Why is the Agency proposing this approach?

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). 35 33 U.S.C. 1344(h)(1)(A)(i); 40 CFR 233.20(a). The CWA 404(b)(1) Guidelines at 40 CFR part 230 are the substantive criteria used to evaluate discharges of dredged and/or fill material under CWA section 404. Subpart J of the CWA 404(b)(1) Guidelines addresses Compensatory Mitigation for Losses of Aquatic Resources. See 40 CFR 230.91 through 98. Tribes and States must also ensure that their programs are no less stringent than the requirements of the CWA and implementing regulations. 40 CFR 233.1(d)

e substantive criteria used to evaluate discharges of dredged and/or fill material under CWA section 404. Subpart J of the CWA 404(b)(1) Guidelines addresses Compensatory Mitigation for Losses of Aquatic Resources. See 40 CFR 230.91 through 98. Tribes and States must also ensure that their programs are no less stringent than the requirements of the CWA and implementing regulations. 40 CFR 233.1(d). Therefore, Tribes and States must ensure that the permits they issue comply with the substantive criteria for compensatory mitigation set forth in subpart J.

35 See section V.B.1 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.

Under the CWA 404(b)(1) Guidelines, impacts should be avoided and minimized to the maximum extent practicable before considering compensatory mitigation for unavoidable impacts. In this context, 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. In 2008, the Corps and EPA issued joint regulations, “Compensatory Mitigation for Losses of Aquatic Resources” (“2008 Mitigation Rule”) (33 CFR 325.1(d)(7), 332; 40 CFR part 230, subpart J) 36 describing the compensatory mitigation requirements for activities authorized by section 404 permits issued by the Corps. The language in the 2008 Mitigation Rule 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 19594, 19650 (April 10, 2008)

ion requirements for activities authorized by section 404 permits issued by the Corps. The language in the 2008 Mitigation Rule 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 19594, 19650 (April 10, 2008).

36 33 CFR part 332 and 40 CFR part 230, subpart J contain identical text. For ease of reference, this preamble refers to compensatory mitigation requirements in 40 CFR part 230, subpart J or “subpart J.”

States have requested clarification as to how a Tribe or State can demonstrate that it has authority to issue permits that apply and ensure 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 the Federal agencies in connection with compensatory mitigation for impacts to assumed waters.

The 2008 Mitigation Rule established performance standards and criteria for three mechanisms: permittee-responsible compensatory mitigation, mitigation banks, and in-lieu fee programs. These standards and criteria were established to improve the quality and success of compensatory mitigation projects for activities authorized by section 404 permits issued by the Corps. EPA proposes to add a new provision to the section 404 Tribal and State program regulations to codify its interpretation that Tribal and State section 404 programs must issue permits that are no less stringent than and consistent with the substantive criteria for compensatory mitigation described in 40 CFR part 230, subpart J.

EPA recognizes that unlike other subparts of 40 CFR part 230, some terminology and discussion in subpart J refers to the Corps as the permitting authority

ations to codify its interpretation that Tribal and State section 404 programs must issue permits that are no less stringent than and consistent with the substantive criteria for compensatory mitigation described in 40 CFR part 230, subpart J.

EPA recognizes that unlike other subparts of 40 CFR part 230, some terminology and discussion in subpart J refers to the Corps as the permitting authority. 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 the Tribal or State permitting agency or decision maker. In addition, the Tribe or State may exercise necessary discretion in reconciling the provisions in subpart J with the fact that the Tribe or State will be administering the program, using its administrative structures, and in determining whether and how to incorporate mitigation banking and/or an in-lieu fee program as mechanisms for compensatory mitigation. EPA proposes to clarify in this provision 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 as opposed to Corps 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 not establish an in-lieu fee program. As another example, in the context where the Corps is the permitting agency, the Tribe or State often provides the required financial assurance for mitigation banks approved by the Corps. In the context where the Tribe or State will be administering the mitigation program, they may also be providing the financial assurance ( e.g., a Department of Transportation banking instrument)

ieu fee program. As another example, in the context where the Corps is the permitting agency, the Tribe or State often provides the required financial assurance for mitigation banks approved by the Corps. In the context where the Tribe or State will be administering the mitigation program, they may also be providing the financial assurance ( e.g., a Department of Transportation banking instrument). Flexibility is needed to allow the Tribe or State to develop a program where they may be both issuing the instrument approval and providing the financial assurance for the bank or in-lieu-fee program. The Tribe or State should prioritize transparency when developing the program especially with respect, but not limited to financial assurances. On no account may the Tribal or State approach result in mitigation that is less stringent than the requirements of subpart J.

EPA proposes to require that the Tribal or State program description explain the approach to ensuring that all permits issued by the Tribe or State will apply and ensure compliance with the substantive criteria for compensatory mitigation set out in subpart J. This explanation is necessary so that EPA can fully evaluate the Tribe's or State's proposed approach to compensatory mitigation to ensure its consistency with the substantive criteria of subpart J. It would also ensure that EPA can assist the Tribe or State in ensuring that its approach is practicable and implementable.

Finally, EPA is proposing that if the Tribe or State establishes third party compensation mecha

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