The Nickel Report

On August 14, EPA published its proposed modifications to regulations establishing the requirements for a state or tribe to assume the Clean Water Act (CWA) section 404 permit program, including necessary state program elements, EPA responsibilities (e.g., approval and oversight of assumed programs), and requirements for review, modification, and withdrawal of state programs.  88 Fed. Reg. 55,276 (Aug. 14, 2023).  The proposal provides helpful clarifications but does not resolve a number of key issues faced by states considering assumption and by permittees in those States. 

Background and Overview

The federal CWA generally prohibits the discharge of pollutants into waters of the United States (WOTUS) unless the discharge is otherwise permitted.  CWA section 404 authorizes the US Army Corps of Engineers (Corps) to issue permits for the discharge of dredged or fill material into WOTUS.  These permits are generally issued for discharges of fill material associated with infrastructure projects (e.g., highways, airports, pipelines, etc.), wetland restoration and enhancement projects, residential and commercial building, mining, renewable energy projects, and a host of other important economic and environmental activities.  State programs with permitting standards and procedures that are at least as stringent as the federal program may receive approval from EPA to administer the 404 program for certain internal waterbodies that are WOTUS (but not coastal waters, traditional navigable waters, or certain wetlands adjacent to those features).  This is not a delegation of federal 404 authority; rather the state establishes its own 404 program under state law, and then “assumes” 404 permitting authority (subject to EPA oversight) upon EPA approval of the state program.

According to EPA, several states are exploring the possibility of assuming the CWA section 404 program, and about one-third of states have expressed some level of interest, but so far EPA has only approved 404 assumption by three states:  Florida (2020), Michigan (1984), and New Jersey (1994).  States that are considering whether to assume CWA 404 permitting (and permittees within those states) are likely to take into account the Supreme Court’s Sackett decision and associated narrowing of federal CWA jurisdiction, as well as Florida’s experiences with its recent assumption of the 404 program.  EPA’s proposed modifications seek to clarify a number of procedural issues – such as the process for defining the scope of geographic authority over WOTUS retained by the Corps, the procedure for permitting long-term projects, and the transition period to a new program – to facilitate the process for states to assume the program.  The proposal does not address:

• The scope of WOTUS and how that scope would affect the extent of waters that would be subject to state 404 assumption (which determines whether a project requires a state or federal CWA 404 permit), except to say that the agencies currently interpret WOTUS consistent with the Supreme Court’s decision in Sackett; and 
• When and how EPA will engage in Endangered Species Act (ESA) section 7 consultation with the US Fish and Wildlife Service and National Marine Fisheries Service when approving assumption of a state 404 program, including how requirements associated with such a consultation would be implemented under a state 404 program including through project permits.

Summary of Proposed Rulemaking

EPA’s proposal addresses the following aspects of EPA’s 404 State Program regulations at 40 C.F.R. Part 233:

• Program Approval
  • Assumption Requirements.  EPA proposes to revise the current requirements for the program descriptions that tribes and states must submit to EPA when they request approval to clarify, e.g., that 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.
  • Waters Subject to Permitting Authority Retained by Corps.  EPA proposes a process to determine the extent of waters over which the Corps would retain permitting and other administrative authority following tribal or state assumption of the section 404 program (“retained waters”).  In general, the Corps will retain permitting authority over coastal waters, traditional navigable waters, and certain wetlands adjacent to those waterbodies.
    • Before the state submits its assumption request to EPA, it must submit a request to EPA that the Corps identify the retained waters.  The Corps would then have 180 days from the receipt of the request to provide a retained waters description to the state. 
    • Consistent with the recommendations of the Assumable Waters Subcommittee, EPA proposes the following steps to identify retained waters:
      • Use Rivers and Harbors Act (RHA) section 10 lists (or reaches of those waters) to identify waterbodies that are WOTUS, and place those waterbodies in 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 a Memorandum of Agreement (a 300-foot administrative boundary would be established as a default if no other boundary is agreed upon).
  • Mitigation.  EPA proposes to clarify that the tribe’s or state’s approach may deviate from the specific mitigation requirements of subpart J of the 404(b)(1) Guidelines (40 C.F.R. § 230.91) to the extent necessary to reflect tribal or state administration of the program as opposed to Corps administration of the program.  On no account may the tribal or state approach result in mitigation that is less stringent than the requirements of subpart J.
  • Effective Date.  EPA is proposing to modify and more clearly define the effective date of the transfer of section 404 program administration from the Corps to a tribe or state following EPA program approval.  Specifically, EPA proposes that the transfer of an approved program takes effect 30 days after publication of the notice of EPA’s approval appears in the Federal Register, except where EPA and the tribe or state have established a later effective date, not to exceed 120 days from the date of notice in the Federal Register.  Delaying the effective date for a reasonable period of time allows the assuming tribe or state and the Corps time to complete preparations for implementation.
• Program Operation
  • Five-Year Permits.  There are no limits on the expiration date the Corps may set in a 404 permit.  However, Congress limited state-issued 404 permits to five years in duration.  33 U.S.C. § 1344(h)(1)(A)(ii).  To minimize unnecessary effort and paperwork, EPA proposes that applicants for projects that may require 404 permit authorization that extends beyond an initial five-year period to submit a 404(b)(1) analysis for the full project with the application for the first five-year permit.  That way, the applicant would only need to modify the 404(b)(1) analysis to the extent necessary when submitting applications for subsequent five-year permits.
  • Downstream Tribes.  EPA proposes that any downstream tribe that has been approved by EPA for treatment in a similar manner as a state (TAS) would have an opportunity to suggest permit conditions for section 404 permits issued by upstream states or tribes that may affect the biological, chemical, or physical integrity of their reservation waters.
  • Partial Assumption.  EPA proposes not to revise the statement in its current regulations that partial programs are not approvable under section 404.  See 40 C.F.R. § 233.1(b).  Although numerous states have expressed an interest in being able to assume the authority to issue section 404 permits for just a portion of the program (e.g., particular industries, waterbodies, or projects of a certain size), EPA looked at potential approaches but found each to be too difficult to implement.  EPA’s refusal to allow partial assumption may dissuade states that are not interested in assuming, or not funded or staffed to assume, the full range of 404 permitting within state-assumed waters.  
  • Enforcement.  EPA proposes to amend its criminal enforcement requirements at 40 C.F.R. § 233.41 to provide that tribes and states are required to enact laws or promulgate regulations that authorize criminal prosecution based on mere negligence (i.e., a mens rea or criminal intent standard of negligence, which may include gross negligence). 
• State Permit Requirements
  • Compliance with 404(b)(1) Guidelines.  While stakeholders requested EPA clarify how a state wishing to assume the 404 program can demonstrate that its proposed permitting process is consistent with the 404(b)(1) Guidelines, EPA is not proposing to add that to the regulatory text.  Nevertheless, EPA recognizes in the preamble that adoption and incorporation by reference of the 404(b)(1) Guidelines are not the sole means to demonstrate sufficient authority and discusses other approaches to make the case.
    • For example, to demonstrate that no permitted discharge of dredged or fill material will jeopardize the continued existence of ESA-listed species, tribes and states could identify the listed species within their geographic boundaries, the types of discharges that are likely to be permitted, and other unique tribal or state factors and include in the program submission provisions and procedures to protect listed species and habitat.  See 88 Fed. Reg. at 55,297. 
  • Judicial Review and Rights of Appeal. EPA proposes to clarify that states seeking to assume the section 404 program must provide for judicial review of decisions to approve or deny permits.  The proposal also specifies that state requirements that provide for the losing party in a challenge to pay attorneys’ fees, regardless of the merit of their position, are an unacceptable impingement on the accessibility of judicial review.
• Federal Oversight
  • No Less Stringent.  EPA’s existing regulations provide that tribes and states may not impose requirements less stringent than federal requirements.  EPA proposes to clarify that tribes and states may not compensate for a less stringent requirement by making another requirement more stringent than necessary.
    • EPA also clarifies that tribes and states are not required to incorporate Corps or EPA interpretive guidance, such as Corps Regulatory Guidance Letters, into their programs as a prerequisite to assumption.  See 88 Fed. Reg. at 55,308.
    • To the extent the scope of jurisdiction over WOTUS changes, following court decisions or rulemaking, an assuming tribe or state must at all times have authority to issue permits for discharges to all WOTUS within its jurisdiction, except for WOTUS retained by the Corps.  Assumption of the program cannot result in a situation in which neither the assuming tribe or state nor the Corps has authority to issue a permit for discharges to a WOTUS.  See 88 Fed. Reg. at 55,309.
  • Withdrawal Procedures.  EPA is proposing to simplify the process used by the Agency when withdrawing an assumed section 404 program from a previously authorized tribe or state.  The current process is not required by the statute, and its length and complexity would, according to EPA, impose an unnecessary burden on EPA, tribes and states, and stakeholders.  The proposed withdrawal process is modeled on the procedures for withdrawal of State Underground Injection Control (UIC) programs at 40 C.F.R. § 145.34.
  • Dispute Resolution.  Rather than attempt to articulate in the regulations all potential areas where a dispute may arise, EPA proposes to add a general provision to the Purpose and Scope section of the regulations to clearly articulate that EPA may facilitate resolution to potential disputes between the tribe or state and federal agencies and provide for resolution or elevation procedures to be articulated in the Memoranda of Agreement or resolved on a case-by-case basis through discussions convened by the EPA.

Next Steps

EPA will hold a virtual public hearing on the proposal on September 6, 2023, and written comments are due October 13, 2023.  EPA has also indicated that it intends to issue a final rule in 2024.