description, and the length of that time period. The proposal currently
provides EPA with 7 days to review and respond to the request for the
retained waters description, but EPA solicits comment on alternative
time periods such as 14 days. EPA solicits comment on alternative time
periods that the Tribe or State must provide the Corps to prepare the
description of retained waters, such as 90 days, 120 days, 150 days, or
270 days. The Agency also solicits comment on alternative periods of
time within which the Corps may inform the Tribe or State whether it
intends to prepare the description of retained waters. EPA solicits
comment regarding ways to further shorten or simplify the process for
determining the extent of retained waters. Additionally, the Agency
solicits comment on whether the regulatory text should include a
provision that allows for an extension to the default time period for
the Corps to prepare the description of retained waters, contingent on
mutual agreement from the Corps and the Tribe or State.
    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.
    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.
    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
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. 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).
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).
---------------------------------------------------------------------------

    \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. 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). 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 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. This
requirement does not include permittee-responsible compensatory
mitigation because those instruments would be included in individual
permit applications. The Tribe or State may also send draft instruments
to other relevant Tribal or State resource agencies for review on a
case-by-case basis. Federal, Tribal, or State resource agencies have
special expertise that may be important in facilitating the development
of the compensatory mitigation instruments. For example, EPA
anticipates that Tribes or States will circulate draft compensatory
mitigation instruments to State wildlife agencies where species
concerns may be

present within or adjacent to the mitigation site or if the site will
be established for the purpose of providing habitat for a particular
threatened or endangered species that is addressed by these agencies.
Their review would include an opportunity for these agencies to provide
comment on the draft instrument.
    If EPA, the Corps, the U.S. Fish and Wildlife Service, or the
National Marine Fisheries Service intend to comment on the draft
instrument, they must notify the Tribe or State of their intent within
30 days of receipt. If the Tribe or State has been so notified, the
instrument must not be effective until after the receipt of such
comments or 90 days after the agencies' receipt of the proposed
instrument. The Tribe or State must consider and respond to any
comments provided by EPA, the Corps, the U.S. Fish and Wildlife
Service, the National Marine Fisheries Service, or any Tribal or State
resource agencies to which they committed to send draft instruments in
the program description before the instrument can become effective for
purposes of the State or Tribal assumed section 404 program. The
purpose of providing the opportunity for this review and feedback is to
ensure that the structure of the instrument, design of the proposed
projects, impacts for which the instrument would provide compensation,
and criteria for credit release of the approved instrument will result
in a successful bank or in-lieu-fee program capable of mitigating for
loss resulting from permitted activities. If EPA has commented that the
instrument fails to apply or ensure compliance with the approach
outlined in the program description for compliance with subpart J, the
Tribe or State may not approve the final compensatory mitigation
instrument until EPA notifies it that the final instrument ensures
compliance with this approach. The procedure for EPA review implements
EPA's oversight authority over Tribal and State section 404 programs.
The Agency also expects that this process will be familiar to Tribes
and States because it is modeled on, and similar to, procedures for EPA
review of permits. The proposed process is also intended to facilitate
input from other relevant agencies, which is analogous to how the
Interagency Review Team that oversees mitigation for Corps-issued
permits facilitates input from other relevant agencies. See, e.g., 33
U.S.C. 1344(g), (h); 40 CFR 233.20(b) (``No permit shall be issued . .
. [w]hen the Regional Administrator has objected to issuance of the
permit . . .''); 40 CFR part 233 generally; 40 CFR 230.98(b)
(describing Interagency Review Team procedures).
c. Request for Comment
    EPA requests comment on all aspects of the proposed new provision,
including whether EPA should provide additional specificity as to
whether or how particular provisions of subpart J should or should not
apply to Tribal or State programs. EPA requests comment on its proposal
that if a 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. EPA requests comment as to
whether Tribal or State agencies should be required to provide draft
instruments only to EPA, the Corps, and the U.S. Fish and Wildlife
Service, or whether they should be required to provide such instruments
to particular Tribal or State agencies as well. EPA also requests
comment regarding which instruments may be appropriate for such review
and the specific process and time frames for review of the instruments.
EPA requests comment as to whether the time frames listed are
appropriate, whether they should be shorter or longer (e.g., provide 60
or 120 days for review) or if the regulations should be silent
regarding the time frames and simply provide that specific review
procedures for draft instruments should be addressed in the Memorandum
of Agreement between the Tribe or State and EPA.
    EPA also requests comment regarding whether the proposed provisions
would provide sufficient oversight for Tribal or State compensatory
mitigation instruments, and whether to condition the Tribe's or State's
issuance of the instrument on their addressing all comments received
from EPA, the Corps, the U.S. Fish and Wildlife Service, and the
National Marine Fisheries Service. EPA requests comment as to whether
to establish a time frame for EPA's notification to the Director that
objections have been resolved, such as 60 or 90 days. EPA also requests
comment regarding the agencies to whom Tribes and States should
circulate draft instruments for review, and the extent to which they
must address comments from reviewing agencies.
4. Effective Date for Approved Programs
a. What is the Agency proposing?
    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 to revise 40 CFR 233.11 and sections 233.13 through 233.15
of the existing regulations to provide that the transfer of an approved
section 404 program to a Tribe or State takes effect 30 days after
publication of the notice of EPA's program 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. Additionally, EPA is proposing
to increase transparency and provide early notice to interested parties
by requiring that decisions to approve Tribal and State programs and
revisions be posted on the EPA website as well as in the Federal
Register.
b. Why is the Agency proposing this approach?
    Section 404(h) of the CWA addresses the transfer of permitting
authority and pending permit applications from the Corps to the Tribe
or State following EPA notice of program approval but does not specify
an effective date. The existing regulations provide that the transfer
of permitting authority to a Tribe or State shall not be considered
effective until notice of EPA's program approval appears in the Federal
Register. 40 CFR 233.15(h).
    EPA proposes to establish a presumptive effective date for program
assumption of 30 days from the date of publication of the notice of
EPA's program approval in the Federal Register. Establishing a short,
clearly defined period of time between program approval and Tribal or
State assumption of program administration benefits the public and
regulated community by providing advance notice of the date of program
transfer and supporting the smooth transition of program functions,
while limiting any uncertainty that could arise with a more extended
transition period.
    Taking into consideration the input EPA has received from some
States in the past, EPA also proposes that a Tribe or State may request
a later effective date for the transfer of an approved section 404
program, up to 120 days from the date that the notice of EPA's program
approval is published in the Federal Register. EPA proposes to allow
more than 30 days only when a Tribe's or State's specific circumstances
justify

the need for additional time before assuming administration of the
program. In all cases, that effective date would be set forth in the
Memorandum of Agreement between a Tribe or State and EPA required by 40
CFR 233.14(b)(2) and published in the Federal Register.
    Several States that have contemplated assumption of the section 404
program indicated that a transition period between EPA's approval
decision and the date of transfer of responsibility from the Corps to
the State would enable them to more effectively prepare for the
transition, including securing and allocating the necessary resources
to successfully implement the assumed permitting program if their
program is approved. These States include some with existing surface
water or wetlands protection programs authorized under State law that
would be expanded or adapted to incorporate the section 404 program for
State-regulated waters, and others without any existing similar State
programs. In both cases, but especially the latter, Tribes and States
may need to reorganize, assign, and train staff, and purchase and
employ new equipment for data processing before they are fully able to
administer a section 404 program. Tribes and States without a similar
program will presumably need to initiate these steps well before EPA
completes its program review and determination, but some may not be
fully prepared to administer the program 30 days after notice of
program approval (e.g., if funding is made available by the State
legislature contingent upon program approval by EPA).
    EPA would expect a Tribe or State to be prepared to implement any
final steps quickly and therefore proposes that the amount of time
between publication of notice of program approval and transfer of the
program to the Tribe or State not exceed 120 days. For example, a Tribe
or State should not wait until EPA approves the program before
initiating hiring and training processes for staff that were committed
in the program description. The effective date would be specified in
the Memorandum of Agreement between EPA and the Tribe or State, and the
program description should specify the steps the Tribe or State will
take, if any, after EPA approval to fully administer its program, such
as specifying the timeline for any assignment and training of staff and
ensuring program funding is accessible by the effective date.
    This proposal would revise and clarify the language in 40 CFR
233.11 and sections 233.13 through 233.15 of the existing section 404
Tribal and State program regulations, which address the contents of a
Tribe's or State's program description, the EPA and Corps Memoranda of
Agreement with Tribes and States, and the procedures for approving
Tribal and State programs. The existing regulations require a Tribe or
State and the Corps to include procedures for transferring pending
section 404 permit applications and other relevant information to the
Tribe or State in their Memorandum of Agreement. 40 CFR 233.14(b)(2).
The regulations provide that the transfer of permitting authority to a
Tribe or State shall not be considered effective until notice of EPA's
program approval appears in the Federal Register. The Corps shall
suspend the issuance of section 404 permits in State-regulated waters
``on such effective date.'' 40 CFR 233.15(h). Section 404(h)(2)(A) of
the CWA, however, specifies that after EPA has notified the Tribe or
State and Corps of its program approval, the Corps shall suspend
issuance of permits in Tribal or State-regulated waters ``upon
subsequent notification from such State that it is administering such
program.'' 33 U.S.C. 1344(h)(2)(A). Read together, the language in the
statute and EPA's regulations may create confusion regarding when the
Corps shall suspend the issuance of permits.
    Section 404(h)(4) of the CWA provides that ``[a]fter the Secretary
receives notification from the Administrator under paragraph (2) or (3)
of this subsection that a State permit program has been approved, the
Secretary shall transfer any applications for permits pending before
the Secretary for activities with respect to which a permit may be
issued pursuant to such State program to such State for appropriate
action.'' 33 U.S.C. 1344(h)(4). Once the State has received those
permit applications, and signals to the Corps that it is ready to
assume permitting activity, see 33 U.S.C. 1344(h)(2), permitting
responsibility should transfer. Thus, the administrative process
envisioned by Congress is that EPA receives a program request, reviews,
and approves or rejects the application, then notifies the parties of
an approval decision, after which the Corps begins to transfer existing
permitting materials. Under this framework, it is clear that some
reasonable transition period is permissible, although Congress
anticipated that transfer would happen relatively quickly.
    EPA is proposing to modify the regulatory text to clarify when and
how the section 404 program transfers to the Tribe or State following
EPA's approval, and that the presumptive date of transfer should be 30
days from the date of notice of program approval in the Federal
Register, but that Tribes and States that satisfactorily demonstrate a
need for more than 30 days to assume and be prepared to fully
administer the program can request an effective date of up to 120 days
from the date of notice. EPA also proposes that if a Tribe or State
requests to assume administration of the program more than 30 days
after EPA's approval, the program description will include a
description and schedule of the actions that will be taken following
EPA approval for the Tribe or State to begin administering the program.
This description would help to support the Tribe's or State's request
and demonstrate why the Tribe or State considers the additional time
necessary.
    EPA proposes that the Memorandum of Agreement between a Tribe or
State and EPA include the effective date for transfer of the program
from the Corps to the Tribe or State, identified as the number of days
following the date of publication of program approval in the Federal
Register. This will provide for the efficient development and
administration of the Tribal or State program, while also making the
process more predictable for the regulated community and the public.
The Corps would continue to process permit applications and begin the
transfer of permits under review prior to the effective date of that
program approval, but the Tribe or State would not be authorized to
process these permits until the effective date.
    EPA recognizes that setting an effective date more than 30 days
after program approval could create uncertainty. It is possible that
with a longer time period and certain steps yet to be taken by the
Tribe or State, events could occur after program approval which could
delay a Tribe's or State's ability to fully implement its program and
potentially lead to a situation in which it is no longer certain when
or whether the Tribe or State will begin to fully administer its
program. However, such a situation could be addressed under the
existing and proposed amended regulations, if it becomes necessary, by
approving a revision of a Tribe's or State's program pursuant to 40 CFR
233.16(d), by the Tribe or State voluntarily relinquishing its legal
authority and leaving the program with the Corps, or by EPA initiating
the process to withdraw a program approval for failure to comply with
the requirements of 40 CFR part 233. 40 CFR 233.53(b).
c. Request for Comment
    EPA seeks comment on whether the section 404 Tribal and State
program

regulations should include a default effective date for transfer of the
section 404 program from the Corps to an approved Tribe or State;
whether the regulations should allow for Tribes or States and EPA, on a
case-by-case basis, to set the effective date later than 30 days but no
more than 120 days from date of publication of program approval in the
Federal Register; or whether the Agency should not set a new effective
date as proposed, but rather retain the existing regulations that
simply specify that ``transfer of the program shall not be considered
effective until such notice appears in the Federal Register.'' 40 CFR
233.15(h).
    With respect to EPA's proposed approach, EPA seeks comment on
whether a presumptive effective date should be longer than 30 days,
such as 60 or 90 days. EPA also seeks comment on whether the regulatory
text should explicitly limit the allowable effective date to 120 days
from the date of EPA's program approval, or whether a shorter or longer
limit would be appropriate. EPA requests comment on whether it should
specify particular information that the Tribe or State must provide in
the program description if the Tribe or State requests to assume
administration of the program more than 30 days after EPA's approval,
such as a schedule for assigning or training staff or procuring
resources. EPA also requests comment as to the circumstances under
which EPA might disapprove a Tribe's or State's submission because its
plan for implementation is inadequate. EPA requests comment on
potential problems with deferring the effective date beyond 30 days and
how EPA or a Tribe or State might address them. Finally, EPA requests
comment on whether a proposed effective date may be modified after
program approval is published in the Federal Register, and if so, the
circumstances and procedural mechanisms for doing so.

B. Permit Requirements

    This section of the preamble includes topics that are generally
related to Tribal and State section 404 program requirements, including
compliance with the CWA 404(b)(1) Guidelines and requirements for
judicial review and rights of appeal.
1. Compliance With the CWA 404(b)(1) Guidelines
a. What is the Agency proposing?
    Stakeholders have requested clarity regarding the way in which a
Tribe or State wishing to assume the CWA section 404 program can
satisfy CWA section 404(h)(1)(A)(i) by demonstrating that it has
authority to issue permits that ``apply and assure compliance with''
the CWA 404(b)(1) Guidelines (found at 40 CFR part 230). See 33 U.S.C.
1344(h)(1)(A)(i). Because the existing regulations already require that
CWA section 404 permits issued by an assuming Tribe or State must
comply with the CWA 404(b)(1) Guidelines, and EPA does not want to
unintentionally constrain how Tribes and States can demonstrate their
authority, EPA is not proposing to add to the regulatory text. In
response to stakeholder requests, EPA discusses below various
approaches that Tribes and States can undertake to demonstrate that
they have sufficient authority to issue permits that apply and assure
compliance with the CWA 404(b)(1) Guidelines.\37\
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    \37\ See section V.A.3 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 the portion of the CWA
404(b)(1) Guidelines addressing compensatory mitigation (40 CFR part
230, subpart J).
---------------------------------------------------------------------------

b. Why is the Agency proposing this approach?
    The CWA 404(b)(1) Guidelines are the substantive criteria used to
evaluate discharges of dredged and/or fill material under CWA section
404. Pursuant to CWA section 404(h)(1)(A)(i), EPA may approve a Tribal
or State request for assumption only if EPA determines, among other
things, that the Tribe or State has authority ``[t]o issue permits
which--(i) apply, and assure compliance with, any applicable
requirements of this section, including, but not limited to, the
guidelines established under subsection [404](b)(1). . . .'' Among
other things, the CWA 404(b)(1) Guidelines direct that ``no discharge
of dredged or fill material shall be permitted'' if there is a less
environmentally damaging practicable alternative, so long as the
alternative does not have other significant adverse environmental
consequences (40 CFR 230.10(a)); if it causes or contributes to
violations of applicable water quality standards taking into account
disposal site dilution and dispersion (40 CFR 230.10(b)(1)); if it will
cause or contribute to significant degradation of waters of the United
States (40 CFR 230.10(c)); or if it would jeopardize the continued
existence of listed endangered or threatened species under the
Endangered Species Act of 1973 or result in the likelihood of the
destruction or adverse modification of designated critical habitat (40
CFR 230.10(b)(3)).
    Consistent with CWA section 404(h)(1)(A)(i), the existing section
404 Tribal and State program regulations require that assuming Tribes
and States may not impose conditions less stringent than those required
under Federal law (40 CFR 233.1(d)); that Tribes and States may not
issue permits that do not comply with the requirements of the Act or
this part of the regulations, including the CWA 404(b)(1) Guidelines
(40 CFR 233.20(a)); that ``[f]or each permit the Director shall
establish conditions which assure compliance with all applicable
statutory and regulatory requirements, including the 404(b)(1)
Guidelines . . .'' (40 CFR 233.23(a)); and that ``The Director will
review all applications for compliance with the 404(b)(1) Guidelines
and/or equivalent State environmental criteria as well as any other
applicable State laws or regulations'' (40 CFR 233.34(a)).
    Recognizing that a CWA section 404 permit may be required for a
variety of discharges into a wide range of aquatic ecosystems, the CWA
404(b)(1) Guidelines provide ``a certain amount of flexibility,''
consisting of tools for evaluating proposed discharges, rather than
numeric standards. As EPA explained in the preamble to the CWA
404(b)(1) Guidelines: ``Characteristics of waters of the United States
vary greatly, both from region to region and within a region . . . As a
result, the Guidelines concentrate on specifying the tools to be used
in evaluating and testing the impact of dredged or fill material
discharges on waters of the United States rather than on simply listing
numerical pass-fail points.'' 45 FR 85336, 85336 (December 24, 1980).
See also 40 CFR 230.6.
    With respect to Tribes or States seeking to assume administration
of the CWA section 404 program, EPA finds that the existing section 404
Tribal and State program regulations, including 40 CFR 233.1(d); 40 CFR
233.20(a); 40 CFR 233.23(a); and 40 CFR 233.34, appropriately require
that Tribal and State environmental review criteria be consistent with
the CWA 404(b)(1) Guidelines. At the same time, the existing
regulations appropriately avoid a ``one size fits all'' approach and
afford assuming Tribes and States necessary flexibility as to how best
to craft a Tribal or State program that would issue permits that apply
and assure compliance with the Guidelines. Accordingly, EPA does not
propose to revise the regulations implementing CWA section 404(h)'s
requirement that Tribes and States have authority sufficient to issue
permits that apply and assure compliance with the CWA 404(b)(1)
Guidelines.
    EPA notes that there are a variety of means by which a Tribe or
State

wishing to assume implementation of the CWA section 404 program may
demonstrate that it has sufficient authority to issue permits that
apply and assure compliance with the CWA 404(b)(1) Guidelines. Nothing
in CWA section 404(h) requires that Tribes and States adopt verbatim or
incorporate into their programs by reference the CWA 404(b)(1)
Guidelines. See 49 FR 39012, 39015 (October 2, 1984). Clearly, a Tribe
or State can demonstrate sufficient authority to issue permits that
apply and assure compliance by choosing to adopt verbatim or
incorporate into its program by reference those portions of the CWA
404(b)(1) Guidelines that provide the substantive environmental
criteria and analyses used for evaluating discharges of dredged and/or
fill material under CWA section 404. That said, EPA continues to
recognize that adoption and incorporation by reference are not the sole
means by which an assuming Tribe or State can demonstrate sufficient
authority to issue permits that apply and assure compliance with the
CWA 404(b)(1) Guidelines.
    A Tribe or State wishing to assume administration of the CWA
section 404 program, for example, could demonstrate that it has
sufficient authority to apply and assure compliance with the CWA
404(b)(1) Guidelines using a cross-walk between the Tribal or State
program and the CWA 404(b)(1) Guidelines or a similar written analysis
of the Tribal or State program authority, which it could include in its
request to assume the program. A Tribe or State also could develop and
include with its program submission a permit checklist or other
documentation to be used in connection with each permit decision to
document on a case-by-case basis how each permit decision is consistent
with the CWA 404(b)(1) Guidelines. Where a Tribe's or State's request
for assumption relies upon an already established and ongoing dredged
and fill permit program under Tribal or State law, that Tribe or State
could supplement its program description with a demonstration-type
approach, showing, for example, that the terms and conditions of
permits for discharges into waters of the United States that were
issued pursuant to the Tribal or State program were consistent with
permits issued by the Corps for the same discharge.
    EPA is aware that demonstrating authority to issue permits that
apply and assure compliance with certain aspects of the CWA 404(b)(1)
Guidelines may be challenging. For example, the CWA 404(b)(1)
Guidelines direct that no discharge of dredged or fill material shall
be permitted if it will jeopardize the continued existence of listed
endangered or threatened species under the Endangered Species Act of
1973 or result in the likelihood of the destruction or adverse
modification of designated critical habitat (40 CFR 230.10(b)(3)). To
demonstrate compliance with this aspect of the CWA 404(b)(1)
Guidelines, Tribes and States could identify the listed species and
areas of designated critical habitat 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. Tribes and States also could develop processes for ensuring
that their identification of listed species and designated critical
habitat remains up-to-date as well as processes to avoid impacts to
these resources.
    EPA also encourages Tribes and States to consider proactively
coordinating with the relevant National Marine Fisheries Service or
U.S. Fish and Wildlife Service (``the Services'') regional or field
offices when developing their program submissions. To the extent that
Tribes and States work with the Services to develop their programs,
such work would facilitate EPA's compliance with its obligations under
CWA sections 404(g)(2) and 404(h)(1) to provide the Services with an
opportunity to comment on a Tribal or State program submission and to
consider those comments when determining whether the Tribe or State has
the requisite authority to implement the CWA section 404 program. See
33 U.S.C. 1344(g)(2) and 1344(h)(1); see also 40 CFR 233.15(d) and (g).
    Similarly, demonstrating that the Tribe or State has sufficient
authority to implement subpart F of the CWA 404(b)(1) Guidelines may be
challenging. Pursuant to subpart F (40 CFR 230.50 through 230.54), the
permit issuing authority should consider potential effects on human use
characteristics, including ``areas designated under Federal and State
laws or local ordinances to be managed for their aesthetic,
educational, historical, recreational, or scientific value,'' when
making the factual determinations and the findings of compliance or
non-compliance under the Guidelines. 40 CFR 230.54(a).
    To demonstrate sufficient authority to apply and assure compliance
with subpart F of the CWA 404(b)(1) Guidelines, a Tribe or State should
consider including in its program description its process for
evaluating and addressing potential permit impacts on historic
properties. Such a process could include formal or informal
coordination and communication with the State Historic Preservation
Officer or Tribal Historic Preservation Office (SHPO or THPO). The
Tribe or State also could consider developing an agreement with the
relevant SHPO or THPO to establish a process to identify historic
properties that may be impacted by the Tribe's or State's issuance of
section 404 permits and a process for resolving adverse effects. Such
an agreement could include the identification of relevant parties with
an interest in potential impacts on historic properties (these could
correspond to entities that would have a consultative role under the
National Historic Preservation Act regulations), duties and
responsibilities of the identified parties, and a description of the
process to consider any impacts, including the determination and
resolution of adverse effects on historic properties. Such an agreement
could facilitate EPA's review of a Tribal or State permit's impacts on
historic properties, consistent with EPA's oversight of the authorized
program.\38\
---------------------------------------------------------------------------

    \38\ See 40 CFR 233.51(b)(6) (providing that EPA review of State
permit applications may not be waived for ``[d]ischarges within
critical areas established under State or Federal law, including but
not limited to . . . sites identified or proposed under the National
Historic Preservation Act. . . .'')
---------------------------------------------------------------------------

    EPA also recommends that an assuming Tribe or State consider
incorporating into its program description ways to identify and
consider impacts to other human use characteristics, such as impacts to
waters that support subsistence fishing by the local population or that
may have significance for religious or treaty purposes. These could
include, for example, formalizing a process for coordinating with local
communities to identify and understand how waters that may be affected
by discharges of dredged or fill material are used for subsistence
fishing, religious purposes, or other uses important to the local
community.
    In pre-proposal outreach for this rulemaking, some Tribes asked how
a State that has assumed the section 404 program would consider
potential impacts on Tribes or Tribal interests when making permit
decisions. In addition to the proposed provision for coordinating with
downstream Tribes in section 233.31 described in section V.C.2 of this
preamble, and the addition of EPA review of a permit, upon request from
a Tribe in section 233.51, EPA notes that complying with the CWA

404(b)(1) Guidelines currently provides an opportunity for States to
consider potential impacts of proposed section 404 permits on aquatic
resources and uses important to Tribes.
    These human use considerations encompass, among other things, uses
and values of aquatic resources that are important to Tribes. For
example, section 230.51 in subpart F describes considerations regarding
potential impacts of dredged or fill material on recreational and
commercial fisheries, consisting of ``harvestable fish, crustaceans,
shellfish, and other aquatic organisms.'' 40 CFR 230.51(a). Section
230.52 includes considerations regarding the impact of dredged or fill
material on water-related recreation, including harvesting of resources
and non-consumptive activities such as canoeing on the water. Section
230.53 addresses potential impacts on aesthetic values of aquatic
ecosystems and notes that: ``The discharge of dredged or fill material
can mar the beauty of natural aquatic ecosystems by degrading water
quality, creating distracting disposal sites, including inappropriate
development, encouraging unplanned and incompatible human access, and
by destroying vital elements that contribute to the compositional
harmony or unity, visual distinctiveness, or diversity of an area.'' 40
CFR 230.53(b). Section 230.54 discusses considerations regarding
``national and historical monuments, national seashores . . . and
similar preserves'' and where the discharge may ``modify the aesthetic,
educational, historical, recreational and/or scientific qualities
thereby reducing or eliminating the uses for which such sites are set
aside and managed.'' 40 CFR 230.54(b).
    The CWA 404(b)(1) Guidelines at section 233.31-33 require that the
Tribal or State permitting authority coordinate with affected States
prior to permit issuance, and provide for public notice and hearings
related to permit applications, preparation of draft general permits,
and similar actions. As mentioned above, EPA considers the human use
effects under subpart F of the CWA 404(b)(1) Guidelines to encompass
impacts of proposed discharges on Tribal interests, including impacts
on fisheries and other aquatic resources, aesthetics, and historic and
cultural uses. As noted in section V.C.2 of this preamble, the proposed
rule would require States to consider comments from eligible Tribes and
suggested conditions on permit applications in the same way that
potentially affected States' comments are currently considered under
section 233.31. In addition, Tribes would have an opportunity to
request EPA review of permit applications that may affect rights and
resources of importance to the Tribe.
    The foregoing, of course, are only examples, and there are likely
other means by which a Tribe or State could demonstrate that it has
sufficient authority to issue permits that comply and assure compliance
with the CWA 404(b)(1) Guidelines. EPA seeks to avoid unnecessarily
limiting Tribes and States by imposing a single vehicle or approach for
implementing the CWA 404(b)(1) Guidelines.
c. Request for Comment
    EPA requests comment on whether the existing regulations provide
appropriate clarity and leeway for Tribes and States to ensure that the
permits they issue under an assumed program assure consistency with the
CWA 404(b)(1) Guidelines. EPA also seeks comment on ways that Tribes
and States wishing to assume the CWA section 404 program can
demonstrate they have sufficient authority to assure consistency with
the CWA 404(b)(1) Guidelines, including but not limited to, identifying
the least environmentally damaging alternative, avoiding significant
degradation, and considering impacts to threatened and endangered
species, critical habitat, and human use characteristics, including but
not limited to historic properties and Tribal interests.
2. Judicial Review and Rights of Appeal
a. What is the Agency proposing?
    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 proposed language is similar to the language added to
the CWA section 402 NPDES State program regulations in 1996, with one
modification to specify that State requirements that provide for the
losing party in a challenge to pay all attorneys' fees, regardless of
the merit of their position, are an unacceptable impingement on the
accessibility of judicial review. This proposed provision does not
apply to Tribal programs.
b. Why is the Agency proposing this approach?
    The Agency is proposing this approach because it would give effect
to the CWA's requirements for public participation in the permitting
process and that State programs comply with all requirements of section
404, as well as the regulatory requirement that Tribal and State
programs be no less stringent than the Federal section 404 program. The
current regulations require the program description to include a
description of the Tribe's or State's judicial review procedure but do
not explicitly require a particular standard for that procedure. In
addition, EPA expects that States will have the authority and
experience to implement this requirement because it is similar to the
section 402 requirement that States authorize judicial review.
    In 1996, EPA promulgated the following regulation providing that
States administering the CWA section 402 program must allow for State
court review of decisions to approve or deny permits:

    All States that administer or seek to administer a program under
this part shall provide an opportunity for judicial review in State
Court of the final approval or denial of permits by the State that
is sufficient to provide for, encourage, and assist public
participation in the permitting process. A State will meet this
standard if State law allows an opportunity for judicial review that
is the same as that available to obtain judicial review in federal
court of a federally-issued NPDES permit (see Sec.  509 of the Clean
Water Act). A State will not meet this standard if it narrowly
restricts the class of persons who may challenge the approval or
denial of permits (for example, if only the permittee can obtain
judicial review, if persons must demonstrate injury to a pecuniary
interest in order to obtain judicial review, or if persons must have
a property interest in close proximity to a discharge or surface
waters in order to obtain judicial review.) This requirement does
not apply to Indian Tribes.

    Amendment to Requirements for Authorized State Permit Programs
Under Section 402 of the Clean Water Act, 61 FR 20972 (May 8, 1996),
codified at 40 CFR 123.30.
    Like permits issued under section 402, permits issued under section
404 fall within the processes that are subject to the congressional
directive of CWA section 101(e), which states:

    Public participation in the development, revision, and
enforcement of any regulation, standard, effluent limitation, plan,
or program established by the Administrator or any State under this
chapter shall be provided for, encouraged, and assisted by the
Administrator and the States. The Administrator, in cooperation with
the States, shall develop and publish regulations specifying minimum
guidelines for public participation in such processes.

    33 U.S.C. 1251(e). Permits are a key mechanism through which the
regulations, standards, and effluent limitations of the CWA are
implemented because they establish specific limitations applicable to
individual dischargers. See 61 FR 20973 (May 8, 1996). This proposal
would effectuate

CWA section 101(e) by requiring that States allow meaningful public
participation in the permit development process by authorizing judicial
review.
    As EPA explained in promulgating the section 402 judicial review
provision, the United States Court of Appeals for the Fourth Circuit
has agreed that ``broad availability of judicial review is necessary to
ensure that the required public comment period serves its proper
purpose. The comment of an ordinary citizen carries more weight if
officials know that the citizen has the power to seek judicial review
of any administrative decision harming him.'' Com. of Virginia v.
Browner, 80 F.3d 869, 879 (4th Cir. 1996) (upholding EPA's denial of
Virginia's proposed permitting program under Title V of the Clean Air
Act).
    When citizens lack the opportunity to challenge executive agency
decisions in court, their ability to influence permitting decisions
through other required elements of public participation, such as public
comments and public hearings on proposed permits, may be compromised.
Citizens may perceive that a State administrative agency is not
addressing their concerns about section 404 permits because the
citizens have no recourse to an impartial judiciary, which would have a
chilling effect on all the remaining forms of public participation in
the permitting process. Without the possibility of judicial review by
citizens, public participation before a State administrative agency
could become less meaningful. For example, State officials may spend
less time considering and responding to the comments of parties who
have no standing to sue as opposed to the comments of parties who can
challenge the final administrative decision to issue or deny the permit
in court. See id.
    The legislative history underlying section 101(e) further
emphasizes the importance of a vigorous public participation process in
implementing and enforcing clean water protections. 33 U.S.C. 1251(e).
Congress included the provisions relating to public participation in
section 101(e) because, as the Senate Report noted, it recognized that
``[a] high degree of informed public participation in the control
process is essential to the accomplishment of the objectives we seek--a
restored and protected natural environment.'' S. Rep. 414, 92d Cong.,
2d Sess. 12 (1972), reprinted in A Legislative History of the Water
Pollution Control Act Amendments of 1972, Cong. Research Service, Comm.
Print No. 1, 93d Cong., 1st Sess. (1973) (hereinafter cited as 1972
Legis. Hist.) at 1430.
    The Senate Report also observed that the implementation of water
pollution control measures would depend, ``to a great extent, upon the
pressures and persistence which an interested public can exert upon the
governmental process. The Environmental Protection Agency and the State
should actively seek, encourage and assist the involvement and
participation of the public in the process of setting water quality
requirements and in their subsequent implementation and enforcement.''
Id; see also 1972 Legis. Hist. at 1490 (``The scrutiny of the public .
. . is extremely important in insuring . . . a high level of
performance by all levels of government and discharge sources.'').
    Similarly, the House directed EPA and the States ``to encourage and
assist the public so that it may fully participate in the
administrative process.'' H. Rep. 911, 92d Cong., 2d Sess. 79, 1972
Legis. Hist. at 766. The House also noted, ``steps are necessary to
restore the public's confidence and to open wide the opportunities for
the public to participate in a meaningful way in the decisions of
government;'' therefore, public participation is ``specifically
required,'' and the Administrator is ``directed to encourage this
participation.'' Id. at 819. Congressman Dingell, a leading sponsor of
the CWA, characterized CWA section 101(e) as applying ``across the
board.'' 1972 Legis. Hist. at 108.
    Section 404(h)(1)(C) of the CWA provides support for this provision
as well. Section 404(h)(1)(C) provides that EPA may disapprove a State
section 404 program if adequate authority does not exist to ensure that
the public ``receive[s] notice of each application for a permit and to
provide an opportunity for public hearing before a ruling on each such
application.'' Id. at 1344(h)(1)(C). Given the language and history of
CWA section 101(e), Congress intended the public hearing required by
CWA section 404(h)(1)(C) to be a meaningful exercise.
    Finally, this proposed approach is consistent with the CWA's
requirement that States issue permits that ``apply, and assure
compliance with, any applicable requirements'' of section 404, 33
U.S.C. 1344(h)(1)(A)(i); and the regulatory provision providing that
``[a]ny approved State Program shall, at all times, be conducted in
accordance with the requirements of the Act and of this part'' and that
States ``may not impose any less stringent requirements for any
purpose.'' 40 CFR 233.1(d). As citizens are authorized to challenge the
issuance of section 404 permits when the Federal Government administers
the program, challenges must also be authorized when a State has
assumed the program in order to assure compliance with the applicable
requirements of section 404 and to ensure that the State program is not
less stringent than the Federal program. Allowing citizens the
opportunity to challenge permits is not the type of technical discharge
limitation that first comes to mind as a more or less ``stringent''
requirement of section 404, but this opportunity is a vital backstop
that can ensure permits incorporate sufficiently stringent
requirements. Permitting authorities are likely to be particularly
careful to address citizen input and ensure that issued permits comply
with CWA requirements if they know such permits may be challenged by a
broad range of citizen stakeholders. Therefore, ensuring that States
provide an opportunity for judicial review that is the same as that
available to obtain judicial review in Federal court helps to ensure
compliance with section 404 and all requirements of the CWA.
    This proposal for the section 404 State program regulations would
effectuate EPA's policy interest in deferring to State administration
of authorized section 404 programs in the same way that EPA defers to
State administration of section 402 programs. See 61 FR 20974 (May 8,
1996). EPA supports State assumption of the section 404 program and is
just as committed to ensuring robust opportunity for citizen
participation in that program. In authorizing State programs to act in
lieu of the Federal Government, EPA must ensure that the implementation
of the State program will be procedurally fair and consistent with the
intent of the CWA. This proposed rule would provide additional
assurance of State program adequacy and fairness by ensuring
opportunities for judicial review.
    While EPA's existing regulations require the program description to
provide a description of the Tribe's or State's judicial review
procedures, see 40 CFR 233.11(b), EPA's proposed application of the CWA
standard for judicial review of permits to section 404 programs is new
and not the only potential reading of the CWA. Yet EPA views this
proposed requirement as the best interpretation of the sections 101 and
404 for the reasons outlined above.
    Like the parallel provision in the section 402 regulations, a State
will meet this standard if it allows an opportunity for judicial review
that is the same as that available to obtain judicial review in Federal
court of a

Federally-issued NPDES permit. See 61 FR 20975 (May 8, 1996). Section
509(b)(1) of the CWA governs the availability of judicial review of
Federally-issued NPDES permits. The term ``interested person'' in
section 509(b) is intended to embody the injury-in-fact rule of the
Administrative Procedure Act, as set forth by the Supreme Court in
Sierra Club v. Morton, 405 U.S. 727 (1972). Montgomery Environmental
Coalition v. Costle, 646 F.2d 568, 576-78 (D.C. Cir. 1980); accord
Trustees for Alaska v. EPA, 749 F.2d 549, 554-55 (9th Cir. 1984); see
also Roosevelt Campobello Int'l Park Comm'n v. EPA, 711 F.2d 431, 435
(1st Cir. 1983); S. Conference Rep. No. 1236, 92d Cong, 2d Sess. 146
(1972), 1972 Legis. Hist. at 281, 329.
    With respect to the nature of the injury that an ``interested
person'' must show to obtain standing, the Supreme Court held in Sierra
Club v. Morton that harm to an economic interest is not necessary to
confer standing. 405 U.S. at 734-35. A party may also seek judicial
review based on harm to that party's aesthetic, environmental, or
recreational interest. Id. The Supreme Court affirmed this holding in
Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528
U.S. 167, 183 (2000) (``environmental plaintiffs adequately allege
injury in fact when they aver that they use the affected area and are
persons for whom the aesthetic and recreational values of the area will
be lessened by the challenged activity'') (internal citations omitted);
and in Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63 (1992)
(``[o]f course, the desire to use or observe an animal species, even
for purely aesthetic purposes, is undeniably a cognizable interest for
purposes of standing.'').
    EPA recognizes that CWA section 509(b)(1) does not authorize
judicial review of Federally-issued section 404 permits, which are
administered by the Corps. Rather, section 404 permits may be
challenged under the Administrative Procedure Act. See National Ass'n
of Mfrs. v. Dep't of Def., 138 S. Ct. 617, 626-27 (2018) (``EPA actions
falling outside the scope of Sec.  1369(b)(1) . . . are typically
governed by the APA.'') Nonetheless, establishing the same standards
and expectations for standing to challenge the section 404 program that
EPA has already established for the section 402 program would
presumably enhance the efficiency and predictability of State efforts
to assume and operate the section 404 program. Many States that
administer the section 402 program already have systems in place to
provide for judicial review pursuant to 40 CFR 123.30, consistent with
the Agency's interpretation of the scope of that provision. Moreover,
as noted above, the CWA ``interested person'' standard applicable to
review of section 402 permits was initially derived from the
Administrative Procedure Act, the statute under which citizens may
challenge section 404 permits. The standard is therefore appropriate to
apply to section 404 permitting. For these reasons, distinguishing
between the standards for judicial review of State-issued section 402
and 404 permits is not necessary.
    Furthermore, nothing about State-issued section 404 permits
necessitates a distinct set of expectations for judicial review of
those permits. The Corps' regulations address the extent to which final
permit decisions are subject to judicial review. See 33 CFR 331.10,
331.12. However, EPA is not the agency charged with implementing or
interpreting these provisions governing judicial review of Corps-issued
section 404 permits. Therefore, for the sake of consistency and ease of
implementation, EPA proposes to use the CWA section 509(b) standard as
a benchmark for State section 404 programs as well as State section 402
programs.
    The proposed rule would provide that a State does not ``provide
for, encourage, and assist'' public participation in the permitting
process if it narrowly restricts the class of persons who may challenge
the approval or denial of permits (for example, if only the permittee
can obtain judicial review, or if persons must demonstrate injury to a
pecuniary interest in order to obtain judicial review, or if persons
must have a property interest in close proximity to a discharge or
surface waters in order to obtain judicial review). As EPA made clear
in the preamble to 40 CFR 123.30, broad standing to judicially
challenge State-issued NPDES permits is necessary to ensure that public
participation before the State permitting agency will serve its
intended purpose. This provision is also intended to ensure that
ordinary citizens will be in a position of substantial parity with
permittees with respect to standing to bring judicial challenges to
State permitting decisions. 61 FR 20975 (May 8, 1996).
    The proposed rule would also provide that a State does not
``provide for, encourage, and assist'' public participation in the
permitting process if State law or regulation requires that attorneys'
fees must be imposed in favor of any prevailing party and against the
losing party, notwithstanding the good faith or merit of the litigant's
position. This form of ``fee shifting'' would form a barrier to court
access for litigants unable to risk an adverse fee award, no matter the
strength of their case. Prohibitions against narrow standing
restrictions and mandatory fee-shifting are only examples of such
deficiencies in State programs. The proposed provision does not only
prohibit these provisions, but any others that would limit access to
judicial review beyond the scope of judicial review available in
Federal court for review of Federally-issued NPDES permits.
    EPA interprets the proposed provision to preclude State laws that
would limit associational standing to a greater extent than Federal
law. Under Federal law, an association may bring a challenge on behalf
of a single member's harms resulting from a challenged action. See
Sierra Club v. Johnson, 436 F.3d 1269, 1279 (11th Cir. 2006)
(associational standing of Sierra Club satisfied by affidavit of one
member who suffered injury in fact). State requirements that establish
a higher bar for associational standing than Federal law, such as
requirements providing that an association only has standing if a
substantial number of an association's members would be injured by the
challenged action, would be inconsistent with this proposal.
    As with the section 402 regulations, the proposed rule would apply
to final actions with respect to modification, revocation and
reissuance, and termination of permits, as well as the initial approval
or denial of permits. EPA would consider the opportunities for judicial
review of State-issued section 404 permits provided by State law on a
case-by-case basis when determining whether to approve a State program
to ensure that the State adequately ``provides for, encourages, and
assists'' public participation in the section 404 permitting process.
EPA would also look to the State Attorney General to provide a
statement that the laws of the State meet the requirements of the
regulation. See 40 CFR 233.12.
    Standing to judicially challenge permits should be distinguished
from requirements that potential litigants must exhaust administrative
remedies to preserve their opportunity to bring judicial challenges.
This proposed amendment would not affect the ability of States to
require that potential litigants must exhaust administrative remedies
to preserve their opportunity to bring judicial challenges, including
by participating in the submittal of public comments, or similar
reasonable requirements.
    EPA is not proposing that this requirement apply to Tribes,
consistent with EPA's approach in the parallel

section 402 provision that ``[t]his requirement does not apply to
Indian Tribes'' as well as EPA's decision not to require Tribes to
provide for judicial review in the same manner as States for purposes
of the Clean Air Act Title V Operating Permits Program. See 40 CFR
123.30; Indian Tribes: Air Quality Planning and Management, 63 FR 7254,
7261-62 (February 12, 1998). While EPA does not, as a general matter,
feel that Tribal procedures should be less rigorous with respect to
public participation than State procedures, a specific requirement that
Tribes provide judicial review as the sole option for citizen recourse
would raise issues regarding Federal Indian policy and law.
    In promulgating the Clean Air Act Tribal rule, EPA recognized that
while many Tribes have distinct judicial systems analogous to State
judicial systems, some well-qualified Tribes may not have a distinct
judiciary and may use appropriate non-judicial mechanisms for citizen
recourse. See 63 FR 7261-62 (February 12, 1998). EPA considered that
requiring Tribes to waive sovereign immunity to judicial review of
permitting decisions would be a significant disincentive to Tribes to
assume the Clean Air Act Title V program. See id. EPA recognizes the
importance of encouraging Tribal implementation of environmental
programs and avoiding creating unnecessary barriers to assumption.
EPA's proposal seeks to strike a balance by ensuring that an
appropriate means of citizen recourse is available in any approved
Tribal section 404 program, while not restricting qualified Tribes to a
single judicial option that may not fit existing Tribal governmental
structures. EPA wishes to be clear that in all cases, some appropriate
form of citizen recourse for applicants and others affected by Tribe-
issued permits would be needed to ensure meaningful public
participation in the permitting process. EPA would consider whether
appropriate citizen recourse has been provided in the context of
reviewing Tribal program applications.
    EPA also encourages Tribes and States to establish an
administrative process for the review and appeal of permit decisions
pursuant to their approved section 404 programs and encourages the
Tribe and State to describe such process in the program description.
These procedures can conserve resources on the part of permittees,
stakeholders, and permitting agencies, by resolving permitting
disagreements without the need for litigation in court. However, EPA is
not proposing to require a specific administrative review procedure
because the Agency recognizes that existing Tribal and State
administrative procedures may differ across the country.
c. Request for Comment
    EPA solicits comment on all aspects of this judicial review
provision, including whether to provide any greater specificity with
respect to the standards for judicial review that States are expected
to provide, or additional examples of what could constitute an
unacceptable narrowing of the class of persons who may challenge the
approval or denial of permits. The Agency also requests comment as to
whether this requirement should apply to Tribal section 404 programs
and if so, to what extent.
    In addition, EPA requests comment on whether to explicitly state in
the regulatory text that State laws limiting associational standing to
a greater extent than Federal law would run afoul of the proposed
provision. EPA also requests comment on whether to require that States
provide ``any interested person an opportunity for judicial review in
State court of the final approval or denial of permits by the State.''
EPA initially proposed adding this language to the section 402
regulations, though ultimately decided to use the approach that EPA now
proposes to add to the section 404 regulations, on the grounds that the
more flexible proposed language is sufficient to provide for meaningful
public participation in the permitting process. See 60 FR 14588, 14592
(March 17, 1995); 61 FR 20972, 20975 (May 8, 1996).
    Additionally, EPA seeks comments on whether the Agency should
require Tribal and State section 404 programs to include an
administrative appeals process for permit decisions, including any
potential benefits or challenges to including such a requirement.

C. Program Operation

    This section of the preamble includes topics that are generally
related to the operation of approved Tribal or State programs,
including five-year permit limits and long-term projects as well as
opportunities for Tribes to comment on permits.
1. Five-Year Permits and Long-Term Projects
a. What is the Agency proposing?
    The Agency is proposing a process for permitting long-term projects
that is consistent with the statutory limitation that permits not
exceed five years in duration,\39\ yet increases predictability for
permittees and provides sufficient information for the Tribe or State
to consider the full scope of impacts to the aquatic environment as it
reviews the permit application for compliance with the CWA 404(b)(1)
Guidelines. For projects \40\ with a planned construction schedule
which may extend beyond the five-year permit period, the Agency is
proposing that the applicant submit a 404(b)(1) analysis showing how
the project complies with the environmental review criteria set forth
in the CWA 404(b)(1) Guidelines for the full project when they submit
the application for the first five-year permit. The proposal would
allow the applicant to modify the 404(b)(1) analysis, as necessary,
when submitting applications for subsequent five-year permits. As part
of this permitting approach, this section of the preamble discusses the
criteria that the Tribe or State must consider when determining whether
the 404(b)(1) analysis needs to be modified.
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    \39\ 33 U.S.C. 404(h)(1)(A)(ii).
    \40\ Per 40 CFR 233.30(b)(5), all activities which the applicant
plans to undertake which are reasonably related to the same project
should be included in the same permit application.
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    Consistent with CWA requirements, pursuant to this proposal, a new
permit application must be submitted for projects that exceed a five-
year schedule (e.g., based on construction plans), and all aspects of
the permit application, public notice, and Tribal or State review
requirements set forth in 40 CFR 233.30, 233.32, and 233.34,
respectively, apply. The Agency is proposing that an applicant seeking
a new five-year permit should apply for the new permit at least 180
days prior to the expiration of the current permit.
b. Why is the Agency proposing this approach?
    Certain projects by their nature may not be completed within the
five-year CWA statutory limitation, such as some residential or
commercial developments, linear project transportation corridors, and
energy or mining projects, and will therefore need more than one five-
year permit to authorize all impacts to waters of the United States
associated with the project. To minimize unnecessary effort and
paperwork, and to provide the Tribe or State and the public with
information that can assist with the successful permitting of a
project, the Agency is proposing that applicants for projects with a
planned schedule which may extend beyond the initial five-year permit
application period 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. This approach would improve
environmental protections by ensuring that the scope of impacts
associated with a complete project is factored into the permitting
decision for each five-year permit. This approach will help ensure
consistency in permitting decisions associated with the project,
thereby providing the applicant with more regulatory certainty than
without such a plan.
    Under the proposed approach, all aspects of the permit application,
public notice, and Tribal or State or Federal review requirements set
forth in 40 CFR 233.30, 233.32, 233.34, and 233.50, respectively, still
apply to each permit application for projects that exceed a five-year
schedule, consistent with CWA section 404(h)(1)(A)(ii). However, EPA
expects that the permit application process for permits after the
initial five-year permit application would be easier and simpler
because the applicant and Tribe or State would have already analyzed
the full project. Further details about the Agency's proposal for
permitting long-term projects are provided below.
i. Permitting Long-Term Projects
    Congress limited CWA section 404 permits issued by Tribes or States
that assume the section 404 program to five years in duration. 33
U.S.C. 1344(h)(1)(A)(ii).\41\ The Agency codified this limitation in
the permit conditions section of the existing section 404 Tribal and
State program regulations. 40 CFR 233.23(b). However, certain projects
by their nature cannot be completed within the five-year limitation and
will therefore need more than one five-year permit. Examples of these
long-term projects include some residential or commercial developments,
linear projects such as transportation corridors, and energy or mining
projects. The Agency is concerned that if applicants with long-term
projects only submit information about activities that will occur
during one five-year period of their project in their permit
application, the permitting agency and members of the public will not
have sufficient information to assess the scope of the entire project.
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    \41\ Corps-issued permits are not limited to five years. See 33
CFR 325.6(b), (c) (authorizing certain types of permits for an
``indefinite duration'' or else a ``limited duration'' but with no
five-year limitation period).
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    For example, an applicant seeking permit coverage for a 15-year,
multi-phase housing development project would provide information about
all phases of the project, covering its full 15-year term, in its
permit application. If this project were anticipated to involve the
construction of two hundred homes in years 0-5, two hundred homes in
years 5-10, and two hundred homes in years 10-15, the permit
application would provide information about the construction of all six
hundred homes. This approach is consistent with the Agency's long-
standing position that activities related to the same project should
not be split into multiple permits, which can undermine efforts to
ensure a complete alternatives analysis, an accurate accounting of all
cumulative impacts, an appropriate mitigation plan, and that the public
is sufficiently on notice of forthcoming dredged and fill activities.
See 40 CFR 233.30(b)(5). This approach is also similar to the Corps'
requirement that all activities that are reasonably related to the same
project be included in the same permit application. 33 CFR 325.1(d)(2).
Providing information about all phases of the project does not
authorize dredged and fill activity beyond the five-year permit term.
Moreover, unless there has been a change in circumstance related to an
authorized activity, the same information should be provided in
subsequent applications for later stages of the long-term project, such
as applications authorizing activity in years 6-10 of the project,
years 11-15 of the project, and so forth. See section V.C.1.b.ii. of
this preamble.
    All projects seeking authorization under Tribal or State section
404 permits must comply with the environmental review criteria set
forth in the CWA 404(b)(1) Guidelines at 40 CFR part 230. To provide
the Tribe or State and the public with information that can assist with
the successful permitting of long-term projects, the Agency is
proposing that applicants for projects for which the planned schedule
extends beyond five years at the time of the initial five-year permit
application submit a 404(b)(1) analysis for the full term of the
project with the application for the first five-year permit and modify
the 404(b)(1) analysis, as necessary, for subsequent five-year permits.
    As proposed, the 404(b)(1) analysis must provide information
demonstrating that the project meets each element of the CWA 404(b)(1)
Guidelines for the full term of the project. This information includes,
but is not limited to: (i) information describing the purpose, scope,
and timeline for the entire project; (ii) an alternatives analysis for
the entire project; (iii) information sufficient to demonstrate
appropriate and practicable steps that will be taken to avoid and
minimize impacts from the entire project; (iv) information sufficient
to demonstrate that the project will not cause or contribute to
significant degradation of waters of the Unites States, including
factual determinations, evaluations, and tests for the entire project;
(v) an assessment of cumulative and secondary effects of the entire
project; (vi) information sufficient to demonstrate that the project
will not violate applicable state water quality standards or toxic
effluent standards, jeopardize the continued existence of federally
listed species or adversely modify or destroy critical habitat, or
violate protections for marine sanctuaries designated under the Marine
Protection, Research, and Sanctuaries Act of 1972; and (vii) a
description of compensatory mitigation proposed to offset all
unavoidable impacts associated with the entire project. See generally
40 CFR part 230.
    The issuance of Tribal or State section 404 permits for projects
that exceed a five-year schedule constitutes authorization for
discharges associated with the project occurring in the five-year
period identified in the permit. Permittees for long-term projects must
submit a new permit application for each subsequent five-year permit
term. The issuance of a subsequent five-year permit for the same
project does not constitute a continuance or modification of the
previous permit and nothing in the Agency's proposal affects the
process for continuing or modifying permits set forth in an approved
Tribal or State section 404 program.
    The Agency recognizes that some permittees may expect that a
project will be completed within the five-year permit term but
ultimately the project takes longer. The Tribe or State administering
the section 404 program should make reasonable efforts to verify that
all activities that are reasonably related to the same project have
been included in the same permit and to evaluate whether a project's
schedule extends beyond five years at the time of the initial five-year
permit application.
    In the event a project anticipated to be completed within five
years is not completed during that time, the applicant must apply for a
new five-year permit. To avoid a stoppage in work, the Agency is
proposing that an applicant seeking a new five-year permit should apply
for the new permit at least 180 days prior to the expiration of the
current permit to allow sufficient time for the application to be
processed. This approach is consistent with other CWA programs and
provides time for a public

comment period and any required EPA review of the new permit
application.
ii. Criteria for Modification of 404(b)(1) Analyses
    The Agency recognizes that changes in circumstances related to an
authorized activity may occur over time. For example, descriptions of
subsequent phases of a long-term project may lack detail at the time an
applicant submits a 404(b)(1) analysis for the first five-year permit
and adjustments to the purpose or scope of the project may therefore be
required. If there has been a change in circumstance related to an
authorized activity following approval of a five-year permit, the
Agency is proposing that the applicant modify the 404(b)(1) analysis
for subsequent five-year permits. A change in circumstance related to
the authorized activity includes, without limitation, the following:

--Change in project purpose;
--Change in project boundary;
--Change in scope of waters impacted;
--Change in secondary or cumulative impacts;
--Change affecting compensatory mitigation proposal;
--Change in site conditions, including new alternatives or
opportunities for minimization of impacts;
--Change in environmental conditions, including the presence or new
listing of threatened or endangered species or critical habitat; or
--Change to applicable statutes, regulations, or guidance.

    If there have been no changes in circumstances from the description
of the full project provided with the application for the previous
five-year permit, the applicant's new permit application may rely upon
the most recent 404(b)(1) analysis. A Tribe or State may require that a
404(b)(1) analysis be updated based on a change in circumstances,
either on their own motion, or at the request of Federal agency
reviewers or the public. Federal agency reviewers or members of the
public who submit such a request must provide information supporting a
change in circumstances for the Tribe or State to consider the request.
A change in circumstances may be significant enough that the project no
longer meets conditions for approval. Other factors may also weigh in
favor of permit denial such as an applicant's non-compliance with the
previous permit.
    The proposed approach would improve environmental protections by
ensuring that the scope of impacts associated with a complete project
are factored into the permitting decision for each five-year permit.
Tribal or State review of a 404(b)(1) analysis for a five-year permit
does not constitute pre-approval of subsequent five-year permits for
the project and there is no guarantee that an applicant for a long-term
project will receive all of the five-year permits needed to complete
the project. That said, including a 404(b)(1) analysis for the full
scope of the project with the application for the first five-year
permit and modification of the 404(b)(1) analysis, as necessary, for
subsequent five-year permits will help ensure consistency in permitting
decisions associated with the project, thereby providing the applicant
with more regulatory certainty than without such a plan.
iii. Clarification Regarding Long-Term Projects
    The Agency is proposing to clarify that all aspects of the permit
application, public notice, and Tribal or State review requirements set
forth in 40 CFR 233.30, 233.32, and 233.34, respectively, apply to each
permit application, including for projects that exceed a five-year
schedule. Such clarification will help ensure that applicants, Tribes,
and States comply with the five-year permit limitation set forth in CWA
section 404(h)(1)(A)(ii). The Agency proposes to add language to 40 CFR
233.30(a) to make it clear that applicants for projects that take more
than five years to complete must submit a complete application for each
five-year permit. All public notices for such permits must contain the
information provided in 40 CFR 233.32(d). In addition, the Agency is
clarifying that the scope of information the Tribe or State may
consider when reviewing a permit application may not be limited for any
application, including applications for each five-year permit of a
project that takes more than five years to complete. The Agency is also
clarifying that the scope of comments the public may submit in response
to the public notice, or public hearing if a hearing is held, may not
be limited for any application, including applications for each five-
year permit of a project that takes more than five years to complete.
c. Request for Comment
    The Agency solicits comments on all aspects of the proposal laid
out above. With respect to the process for permitting long-term
projects, the Agency also solicits comments on an alternative approach
based on project phase. Under the alternative approach, the applicant
divides the project into phases that can reasonably be accomplished
within five years but still submits with the application for the first
five-year phase a 404(b)(1) analysis for the full scope of the project
and modifies the 404(b)(1) analysis, as necessary, for subsequent five-
year phases. In the case of the 15-year housing development project
example above, under the alternative approach the first five-year
permit would include a 404(b)(1) analysis addressing the full 15-year
project scope, but would authorize discharges associated with the 200
houses intended for construction during the first five-years of the
project. The discharges associated with the 400 houses intended to be
constructed in the subsequent ten years would be authorized under
second and third-round permits.
2. Tribes as Affected Downstream States
a. What is the Agency proposing?
    EPA is proposing three changes to certain comment and review
provisions as they relate to Tribal interests. First, any downstream
Tribe that has been approved by EPA for treatment in a similar manner
as a State (TAS) for any CWA provision would have an opportunity to
suggest permit conditions for section 404 permits issued by upstream
States and authorized Tribes that may affect the biological, chemical,
or physical integrity of their reservation waters. The commenting Tribe
would receive notice and an explanation if the permit-issuing Tribe or
State does not address their comments. Currently only States and Tribes
with TAS to assume the section 404 program have this comment
opportunity. 40 CFR 233.31(a); 40 CFR 233.2.\42\ Second, the Agency
proposes to enable Tribes that have not yet been approved for TAS for
any CWA provision to apply for TAS solely for the purpose of commenting
as a downstream Tribe on section 404 permits proposed by States or
other authorized Tribes. Finally, the Agency proposes to provide an
opportunity for Tribes to request EPA review of permits that may affect
Tribal rights or interests, even if Federal review has been waived.
These proposed changes would increase the opportunities for Federally
recognized Tribes to engage in the permitting process to protect their
resources.
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    \42\ For the sake of convenience, this proposal will refer to
Tribes whose reservation waters could be affected by pending permits
as ``downstream Tribes.''
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b. Why is the Agency proposing this approach?
    Sections 404(h)(1)(C) and (E) of the CWA provide that a State, with
respect

to issuing a permit, must provide notice of each permit application to
the public, and any other State whose waters may be affected, and
provide an opportunity for a public hearing before ruling on each
application. EPA's existing regulation at 40 CFR 233.31 contains a
similar provision: ``if a proposed discharge may affect the biological,
chemical, or physical integrity of the waters of any State(s) other
than the State in which the discharge occurs, the Director shall
provide an opportunity for such State(s) to submit written comments
within the public comment period and to suggest permit conditions.''
Both the CWA and EPA's implementing regulations further provide that,
if recommendations from the State whose waters may be affected are not
accepted by the permitting State, the permitting State must notify the
affected State and EPA Regional Administrator of its decision not to
accept the recommendations and reasons for doing so. 33 U.S.C.
1341(1)(E); 40 CFR 233.31(a).
    EPA's regulation at 40 CFR 233.2 defines the term ``State'' to
include an Indian Tribe which meets the requirements of 40 CFR 233.60.
Section 233.60 lists the eligibility requirements for a Tribe to assume
the section 404 program. This definition could be read to limit the
requirement in section 233.31 for States to coordinate with only those
Tribes that meet the requirements for section 404 program assumption.
No Tribe has yet applied for eligibility to assume the section 404
program, and, in pre-proposal outreach, many Tribes commented that they
lack resources to assume the program. However, nearly half of Federally
recognized Tribes have been approved for TAS for other CWA provisions
and may have relevant water quality information that could inform the
permitting decisions of upstream States. These Tribes may be interested
in engaging with States on permitting decisions that may affect Tribal
resources.\43\ Consistent with the Federal trust responsibility and the
policies underlying CWA section 518, EPA seeks to increase the
opportunities of Tribes to comment and coordinate on proposed State CWA
section 404 permits that could impact their waters and resources.
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    \43\ TAS information is updated bi-annually and can be found at
https://www.epa.gov/tribal/tribes-approved-treatment-state-tas.
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    EPA notes that other mechanisms already exist that would require
Tribal and State permitting authorities to protect Tribal interests,
which this proposal does not implicate. For example, CWA section 404
permits for discharges must comply with all applicable state water
quality standards (including standards in a downstream jurisdiction) in
effect under the CWA. See 33 U.S.C. 1311(b)(1)(C); 40 CFR 230.10(b)(1)
and 233.20(a). To the extent designated uses require consideration of
cultural or traditional uses of water that may be important to Tribes,
Tribal or State section 404 programs must consider those during the
permitting process.
    The following sections of this preamble discuss the three ways that
EPA is proposing to expand opportunities for Tribes to provide input
and identify concerns about permits that could affect Tribal waters and
resources.
i. Enable Tribes With TAS for any CWA Provision To Comment as an
Affected State
    40 CFR 233.31(a) currently affords specific consideration of
comments and suggested permit conditions on draft permits by an
affected State and provides an avenue of review if a State with an
assumed program chooses not to accept the suggested permit conditions.
Under the current regulatory definition of ``State''--which includes
Tribes that have obtained TAS for purposes of assuming the section 404
program--arguably no Tribes would presently be eligible to be
considered an affected State, as no Tribes have yet obtained TAS status
for purposes of assuming the section 404 program. EPA views all Tribes
that have TAS status for any CWA purpose as entitled to participate in
matters that may affect the chemical, physical, or biological integrity
of reservation waters. EPA is proposing that Tribes that have already
been approved for TAS by EPA to administer other CWA programs, such as
a water quality standards (WQS) program under CWA section 303(c), and/
or have been approved for TAS for any other CWA purpose, such as
receiving section 106 grants to establish and administer programs for
the prevention, reduction, and elimination of water pollution, should
also have the opportunity to comment on draft permits in the same
manner as affected States. This proposed provision would enable more
Tribes, whose waters may be affected by an upstream dredge or fill
project, to comment on permits to be issued by a permitting State in
the same manner as other affected States.
    Section 518 of the CWA expressly provides opportunities for Tribes
to play essentially the same role in implementing the CWA on their
reservations that States do outside of Indian country, authorizing EPA
to treat eligible Federally recognized Tribes in a similar manner as a
State for purposes of implementing and managing various environmental
functions under the statute. The requirements for TAS are established
in section 518 and are reflected in EPA regulations for various CWA
provisions. Generally, the Tribes must be Federally recognized, have a
governing body that carries out substantial governmental duties and
powers, seek to carry out functions pertaining to the management and
protection of reservation water resources, and be capable of carrying
out the functions of the particular provision at issue. Of the 574
Federally recognized Tribes, over 285 have been granted TAS status for
one or more CWA provisions. EPA maintains a website which lists all
Tribes approved for TAS, which is updated bi-annually.\44\
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    \44\ Tribes with TAS for regulatory programs and administrative
functions can be found at https://www.epa.gov/tribal/tribes-approved-treatment-state-tas; Tribes with TAS for section 319 grants
can be found at https://www.epa.gov/nps/current-tribal-ss319-grant-information.
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    This provision, if finalized, would mean that permitting States
must consider comments from Tribes with TAS for any CWA provision whose
reservation waters may be affected by a proposed discharge, in addition
to any Tribes that have been approved for TAS to assume the section 404
program. Under the proposed revisions to section 233.31(a), a
permitting State would need to provide an opportunity for Tribes with
TAS for any CWA provision to submit written comments within the public
comment period and suggest permit conditions. If the recommendations
are not accepted by the permitting State, the permitting State would
have to notify the affected Tribe and EPA Regional Administrator of its
decision not to accept the recommendations and reasons for doing so.
The Regional Administrator would then have time to comment upon, object
to, or make recommendations regarding the Tribal concerns set forth in
the original comment.
ii. Create TAS Option Specifically for the Ability To Comment as an
Affected State
    For the reasons described above, EPA also proposes a further
opportunity for Tribes that lack TAS for any CWA provision to
participate as affected downstream Tribes by establishing a regulatory
provision for Tribes to apply for TAS for the sole purpose of
commenting on Tribe- or State-issued CWA section 404 permits in the
same manner as an affected State. Tribes that obtain TAS for this
purpose would

benefit from the same notification requirements that apply to any other
commenting affected ``State.'' This would provide an avenue for Tribes
that do not have the resources or the desire to assume the section 404
program and have not obtained TAS for other CWA purposes, to provide
input and request consideration of suggested permit conditions for
potential impacts of upstream permits on their reservation waters.
    This approach is similar to approaches taken in other EPA programs.
For example, the Agency's regulations under the Clean Air Act provide
opportunities for interested Tribes to seek TAS authorization for
distinct severable elements of programs under that statute. See 40 CFR
49.7(c). Under that authority, EPA has authorized TAS for the
procedural comment opportunity provided in connection with issuance of
certain permits by upwind permitting authorities, without requiring
those Tribes to seek authorization for the entire relevant program. See
42 U.S.C. 7661d(a)(2).
    EPA finds that it is appropriate to enable Tribes seeking to
protect their aquatic resources to apply for TAS status for the
distinct purpose of commenting in the same manner as an affected State,
and to do so even if the Tribes do not take on the greater
responsibility to administer a section 404 program. Nothing in the
language of section 404 precludes this approach. These proposed
revisions would relate solely to the coordination requirements set
forth in section 233.31(a). The opportunity to provide comments and
suggest permit conditions established in CWA sections 404(h)(1)(C) and
(E) and the existing regulation at 40 CFR 233.31 does not involve any
exercise of regulatory authority by the downstream affected entity,
whether a State, a Tribe with an assumed section 404 program, or a
Tribe that seeks TAS solely for the downstream commenting function. Due
to the limited nature of TAS solely for purposes of commenting as an
affected State, EPA anticipates that the application burden on
interested Tribes would, in most circumstances, be minimal and that the
process for review of Tribal applications would be straightforward. As
with other TAS applications, interested Tribes would submit relevant
information demonstrating that they meet the TAS eligibility criteria
to the appropriate Regional Administrator, who would process the
application in a timely manner. Because, as described above, commenting
in the same manner as an affected State does not involve any exercise
of regulatory authority by the applicant Tribe, no issues regarding
Tribal regulatory authority should be raised or decided in this limited
TAS context. In this sense, TAS applications for this purpose would be
similar to TAS applications for the purpose of receiving grants, a
process that many Tribes have undergone and with which EPA has
substantial experience. Similarly, Tribes interested in this TAS
opportunity would need to demonstrate their capability solely for the
limited purpose of submitting comments as a downstream Tribe. They
would not need to demonstrate capability to administer an assumed
section 404 program. The proposed regulatory revision would expand the
number of Tribes able to participate in this comment opportunity.
iii. Opportunity for Tribes To Request EPA Review of Permits That May
Affect Tribal Rights or Interests
    Finally, EPA proposes to revise section 233.51 to codify Tribes'
opportunity to request EPA review of permits that Tribes view as
potentially affecting Tribal rights or interests.\45\ This may include
rights or interests both in and outside of a Tribe's reservation and
would facilitate EPA's review of permits that have the potential to
impact waters of significance to Tribes. This provision is intended to
be an opportunity for coordination on potential impacts to Tribal
rights and resources not covered by any other commenting option. Given
the expanded TAS provisions, EPA anticipates that Tribes will use this
opportunity in limited circumstances and that this will not be used for
every permit application under public notice.
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    \45\ On December 5, 2022, EPA issued a proposed rule entitled
``Water Quality Standards Regulatory Revisions to Protect Tribal
Reserved Rights.'' 87 FR 74361 (December 5, 2022). That rule
proposes to amend EPA's existing water quality standards (WQS)
regulation, 40 CFR 131 et seq., to, in pertinent part, define
``tribal reserved rights'' for WQS purposes as ``any rights to
aquatic and/or aquatic-dependent resources reserved or held by
tribes, either expressly or implicitly, through treaties, statutes,
executive orders, or other sources of federal law.'' 87 FR 74361,
74378. The proposed revisions to section 233.51 would enable Tribes
to request EPA's review of permits that may affect both rights
reserved through treaties, statutes, executive orders, or other
sources of Federal law, as well as Tribal interests in resources
that may not be reflected in Federal law but are nonetheless of
significance--e.g., of cultural significance--to Tribes. The
proposed provision at section 233.51 would apply whenever a Tribe
asserts that issuance of a particular permit would affect its rights
or resources; however, EPA's review of a permit pursuant to proposed
section 233.51 would not constitute a recognition by EPA that any
particular Tribe holds reserved rights, as defined in EPA's proposed
WQS rule, in that area.
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    This provision would provide that a Tribe may notify EPA within 20
days of public notice of a permit application that the application
potentially affects Tribal rights or interests, including those beyond
reservation boundaries, even if Federal review has been waived. If a
Tribe does so, EPA will request the public notice and will proceed in
accordance with section 233.50, including providing a copy of the
public notice and other information needed for review of the
application to the Corps, the U.S. Fish and Wildlife Service, and the
National Marine Fisheries Service. Pursuant to section 233.50, if EPA
objects to a draft permit, the State may not issue the permit unless it
has taken steps required by EPA to eliminate an objection.
    EPA is proposing to add this regulatory provision explicitly
providing Tribes the opportunity to request EPA's review of permit
applications on a case-specific basis to address input from Tribes that
EPA received during pre-proposal outreach. Several Tribal stakeholders
expressed concern that their aquatic and cultural resources outside of
their reservations may be affected by activities permitted under
assumed section 404 programs. Some Tribes expressed concern that there
is no reliable instrument for coordination with States assuming the
section 404 program regarding potential impacts on historical and
cultural sites or Tribal natural resource rights located outside of
reservation lands. Tribes referenced the Federal trust responsibility
to Federally recognized Tribes, which forms an important element of the
Tribal-Federal relationship but which does not apply to States that
assume the section 404 program, as well as other aspects of Federal
law. Tribes expressed an interest in creating a mechanism that requires
EPA to consider and protect Tribal resources, specifically those off
reservation. Additionally, some Tribes have raised concerns over
resource limitations for review of all permit applications statewide.
The proposed approach would afford protection to Tribal resources by
virtue of EPA's oversight of permit applications that Tribes have
identified as having a potential impact on Tribal resources.
c. Request for Comment
    EPA is seeking comment on these proposed approaches and solicits
suggestions of other approaches for providing additional appropriate
opportunities for involvement by Tribes whose waters and interests both
on and off reservation may be affected by a proposed State permit.

D. Compliance Evaluation and Enforcement

1. What is the Agency proposing?
    EPA proposes to amend its criminal enforcement requirements in 40
CFR 123.27 and 40 CFR 233.41 to provide that Tribes and States that are
authorized to administer the CWA section 402 NPDES permitting program
and/or the CWA section 404 dredged and fill permitting program, or that
seek authorization to do so, are required to authorize prosecution
based on a mens rea, or criminal intent, of any form of negligence,
which may include gross negligence.
2. Why is the Agency proposing this approach?
    The existing regulations describing the mens rea applicable to
Tribal and State programs at 40 CFR 123.27(a)(3)(ii) and 40 CFR
233.41(a)(3)(ii) do not clearly articulate EPA's current interpretation
of the statute. EPA interprets the CWA to authorize it to approve
Tribal or State programs that allow for prosecution based on a mens rea
of any form of negligence, including gross negligence. This proposal
sets forth regulatory revisions that are consistent with this
interpretation. EPA proposed the identical regulatory revisions in the
Federal Register on December 14, 2020, 85 FR 80713. Seven unique
comments were received by EPA on this proposal: five comments were in
support of the proposed rulemaking and two were opposed. Since the
revisions proposed in 2020 were the same as those in the current
proposal, EPA plans to respond to those comments along with any
comments that are received on the current proposed rule.
    The proposed amendments provide clarity for Tribes and States that
have been approved to administer or are interested in obtaining EPA
approval to administer their own section 402 or 404 program under the
CWA. EPA anticipates that States that already administer these CWA
programs will not need to make any changes to their legal authority.
Instead, these regulatory clarifications will generally assure approved
States that their current negligence mens rea authorities comport with
EPA's interpretation of the mens rea applicable to authorized Tribal
and State CWA sections 402 and 404 programs. Additionally, this
clarification will provide those Tribes and States interested in
seeking approval to administer the CWA sections 402 and 404 programs,
respectively, with clarity regarding the legal authorities required for
approval by EPA.
a. Background
    The CWA provides that Tribes and States seeking approval for a
permitting program under CWA section 402 or CWA section 404 must
demonstrate adequate authority ``[t]o abate violations of the permit or
the permit program, including civil and criminal penalties and other
ways and means of enforcement.'' 33 U.S.C. 1342(b)(7) and
1344(h)(1)(G). EPA's regulations currently provide that a Tribal or
State agency administering a program under CWA section 402 must provide
for criminal fines to be levied ``against any person who willfully or
negligently violates any applicable standards or limitations; any NPDES
permit condition; or any NPDES filing requirement.'' 40 CFR
123.27(a)(3)(ii). Similarly, EPA's regulations currently provide that
any Tribal or State agency administering a program under section 404 of
the CWA shall have authority to seek criminal fines against any person
who ``willfully or with criminal negligence discharges dredged or fill
material without a required permit or violates any permit condition
issued in section 404. . . .'' 40 CFR 233.41(a)(3)(ii).
    The regulations implementing both statutory programs also provide
that the ``burden of proof and degree of knowledge or intent required
under State law for establishing violations under paragraph (a)(3) of
this section, shall be no greater than the burden of proof or degree of
knowledge or intent EPA must bear when it brings an action under the
Act.'' 40 CFR 123.27(b)(2); 40 CFR 233.41(b)(2). Additionally, the
implementing regulations for CWA section 402 include a note, not
present in the CWA section 404 implementing regulations, which states,
``[f]or example, this requirement is not met if State law includes
mental state as an element of proof for civil violations.'' 40 CFR
123.27(b)(2).
    In contrast to the statutory language of CWA sections 402 and 404,
section 309(c) specifically provides EPA with enforcement authority to
establish misdemeanor criminal liability in subsection (c)(1) and a
range of penalties for ``[n]egligent violations'' of specified
provisions. It also authorizes felony liability and a higher range of
penalties for ``knowing violations'' of the CWA in subsection (c)(2).
Beginning in 1999, three circuit courts of appeal determined that
criminal negligence under CWA section 309(c)(1) is ``ordinary
negligence'' rather than gross negligence or any other form of
negligence. U.S. v. Hanousek, 176 F.3d 1116, 1121 (9th Cir. 1999); U.S.
v. Ortiz, 427 F.3d 1278, 1282 (10th Cir. 2005); U.S. v. Pruett, 681
F.3d 232, 242 (5th Cir. 2012). These courts did not address whether
this provision implicates Tribal or State programs administering CWA
section 402 or 404 programs.
    On September 10, 2020, the Ninth Circuit Court of Appeals issued an
unpublished decision that granted in part and denied in part a petition
by the Idaho Conservation League for review of EPA's approval of
Idaho's NPDES permitting program. Idaho Conservation League v. U.S.
EPA, 820 Fed. Appx. 627 (9th Cir. 2020)(``Idaho Conservation League'').
The League challenged EPA's approval of Idaho's program in part on the
grounds that Idaho lacks authority to bring enforcement actions based
on a simple negligence mens rea, which the League alleged EPA's
regulations require. Relying on the Ninth Circuit case law noted above,
which holds that EPA enforcement actions are subject to a simple
negligence standard, the court determined that EPA abused its
discretion in approving a program authorizing a mens rea of gross
negligence because it is ` ``greater than the burden of proof or degree
of knowledge or intent EPA must provide when it brings an action . . .
'40 CFR 123.27(b)(2).'' While the court recognized that ``a State
program need not mirror the burden of proof and degree of knowledge or
intent EPA must meet to bring an enforcement action,'' citing EPA's
Consolidated Permit Regulations, 45 FR 33290, 33382 (May 19, 1980), the
court nevertheless held that EPA's current regulations at 40 CFR
123.27(b)(2) require a State plan to employ a standard ``no greater
than'' simple negligence, such as strict liability or simple
negligence. Idaho Conservation League at 628.
b. Statutory and Regulatory Framework for EPA's Interpretation
    While EPA's own enforcement authority in CWA section 309(c)(1), 33
U.S.C. 1319(c)(1), as interpreted by the courts, requires only proof of
ordinary negligence, that provision does not apply as a requirement for
approval to Tribal or State programs. For section 402 and 404 programs,
the CWA instead requires that EPA ``shall approve'' a State's
application if it determines that the State demonstrates the authority
to ``abate violations of the permit or the permit program, including
civil and criminal penalties and other ways and means of enforcement.''
33 U.S.C. 1342(b)(7); 1344(h)(1)(G). These statutory provisions do not
establish specific mens rea requirements or penalties for Tribal and
State programs.

    In addressing the enforcement requirements for State programs,
Congress did not require Tribes and States to have identical
enforcement authority to EPA's. Congress did not use the words ``all
applicable,'' ``same,'' or any phrase specific to any mens rea
standard, let alone the Federal standard, as it did in other parts of
CWA sections 404(h) or 402(b). See 33 U.S.C. 1344(h), 1342(b). When
``Congress includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally presumed
that Congress acts intentionally and purposely in the disparate
inclusion or exclusion.'' Sebelius v. Cloer, 569 U.S. 369, 378 (2013)
(internal quotations omitted). In contrast to the broad authority that
CWA sections 404(h)(1)(G) and 402(b)(7) provide to determine whether
Tribes and States have demonstrated adequate authority to abate
violations, other aspects of Tribal and State programs are explicitly
required to have authority that is equivalent to or more stringent than
EPA's authority.
    For example, States must have the authority ``[t]o inspect,
monitor, enter, and require reports to at least the same extent as
required in section 1318 of this title.'' 33 U.S.C. 1344(h)(1)(B);
1342(b)(2)(B). Similarly, CWA section 404(h)(1)(B) requires State-
issued permits to ``apply, and assure compliance with, any applicable
requirements of this section, including, but not limited to, the
guidelines established under subsection (b)(1) of this section, and
sections 1317 and 1343 of this title.'' 33 U.S.C. 1344(h)(1)(A)(i); and
CWA section 402(b)(1)(A) requires States to issue permits in compliance
with ``sections 1311, 1312, 1316, 1317, and 1343 of this title.'' 33
U.S.C. 1342(b)(1)(A). The more general language used to require Tribes
and States to demonstrate adequate authority to abate violations
indicates that Congress intended to allow for some flexibility in EPA's
ability to approve Tribal and State approaches to certain aspects of
enforcement. See 33 U.S.C. 1342 (b)(7). EPA interprets CWA sections 402
and 404 to allow for approved Tribal and State programs to have a
somewhat different approach to criminal enforcement than the Federal
Government's approach, namely, that Tribal and State programs do not
need authority to prosecute based on a simple negligence mens rea.
However, the proposed approach would require that Tribes and States be
able to implement the text of section 309, requiring authority to
prosecute based on a negligence mens rea.
    EPA's interpretation is consistent with case law. In NRDC v. U.S.
EPA, the petitioner challenged the validity of 40 CFR 123.27(a)(3) on
the theory that it did not require States to have the same maximum
criminal penalties as the Federal program. 859 F.2d 156 (D.C. Cir.
1988). The court reasoned that the petitioner's argument involved a
``logical infirmity'' because it ``presume[d] an unexpressed
congressional intent that state requirements must mirror the federal
ones,'' which is ``inconsistent with the elements of the statutory
scheme limiting operation of the provisions to enforcement efforts at
the national level and explicitly empowering the Administrator to set
the prerequisites for state plans.'' Id. at 180 (discussing 33 U.S.C.
1314(i)(2)(C)). The D.C. Circuit recognized EPA's ``broad[ ] discretion
to respect state autonomy in the criminal sector'' and that the
regulations ``reflect the balancing of uniformity and state autonomy
contemplated by the Act.'' Id. at 180-81. The court declined to
``disturb this `reasonable accommodation of manifestly competing
interests,' '' and upheld the agency's penalty regulations. Id. at 181
(citing Chevron U.S.A. v. NRDC, 467 U.S. 837, 865 (1984)).
    EPA's interpretation is also consistent with the Ninth Circuit's
decision in Akiak Native Community v. EPA, where that court declined to
require that States have authority to impose administrative penalties
identical to Federal authority. See Akiak Native Community, 625 F.3d
1162, 1171-72 (9th Cir. 2010). In that case, the petitioner argued that
the State of Alaska did not have adequate authority to abate violations
because Alaska had to initiate a legal proceeding to assess civil
penalties, whereas EPA could do so administratively. Id. at 1171. The
Court held that because ``[t]here is no requirement in the CWA . . .
that state officials have the authority to impose an administrative
penalty'' and ``[t]he language of the statute says nothing about
administrative penalties,'' ``there is no reason to conclude that
Alaska lacks adequate enforcement authorities.'' Id. 1171-72.
    Finally, EPA's interpretation that CWA sections 402 and 404 do not
require Tribes and States to have authority identical to EPA's to
prosecute violations based on simple negligence under CWA section 309
is consistent with the Ninth Circuit's acknowledgement in Idaho
Conservation League v. EPA that ``a state program need not mirror the
burden of proof and degree of knowledge or intent EPA must meet to
bring an enforcement action.'' 820 Fed. Appx. 627, 628, citing
Consolidated Permit Regulations, 45 FR at 33382 (May 19, 1980).
    This proposed rulemaking would clarify the criminal intent
requirements for existing and prospective Tribal and State enforcement
programs under CWA sections 402 and 404. As discussed above, this
proposed rulemaking would codify EPA's interpretation of Tribal and
State criminal intent requirements that the Agency presented to the
Ninth Circuit in Idaho Conservation League v. EPA, 820 Fed. Appx. 627
(9th Cir. 2020), which is itself consistent with EPA's interpretation
that Tribal and State programs are not required to have the identical
enforcement authority to EPA's under CWA section 309.
    EPA views the other existing requirements for enforcement authority
in 40 CFR 123.26, 123.27, and 233.41, which require, among other
things, that a Tribe or State maintain a program designed to identify
persons subject to regulation who have failed to obtain a permit or to
comply with permit conditions, engage in inspections and information
gathering, and have the authority to sue to enjoin or seek penalties
for violations of sections 402 and 404, as sufficient to indicate that
Tribes and States must operate compliance and enforcement programs that
satisfy the language and purpose of CWA 402(b)(7) and 404(h)(1)(G) to
``abate violations of the permit or the permit program, including civil
and criminal penalties and other ways and means of enforcement.''
Indeed, section V.A.1 of this preamble, Program Assumption
Requirements, would further buttress the requirements of 40 CFR 233.41.
    EPA has previously asserted its interpretation that Tribes and
States do not need authority to prosecute criminal violations based on
a simple negligence mens rea, including in Idaho Conservation League v.
EPA. 820 Fed. Appx. 627 (9th Cir. 2020). Yet to the extent EPA's
interpretation is viewed as different from any earlier interpretations
of CWA sections 402 and 404 and implementing regulations, EPA has ample
authority to change its interpretation of ambiguous statutory language.
An ``initial agency interpretation is not instantly carved in stone.''
Chevron, 467 U.S. at 863; see also Encino Motorcars, LLC v. Navarro,
136 S. Ct. 2117, 2125 (2016) (``[A]gencies are free to change their
existing policies as long as they provide a reasoned explanation for
the change.'') (citations omitted). Rather, a revised rulemaking based
on a change in interpretation of statutory authorities is

well within Federal agencies' discretion. Nat'l Ass'n of Home Builders
v. EPA, 682 F.3d 1032, 1038 (D.C. Cir. 2012) (citing FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 515 (2009)). The agency must
simply explain why ``the new policy is permissible under the statute,
that there are good reasons for it, and that the agency believes it to
be better.'' Fox Television Stations, 566 U.S. at 515. This preamble
meets this standard, providing a reasoned explanation for EPA's
proposal and its consistency with the CWA.
    Though under this proposal EPA is not requiring Tribes or States to
have the same criminal enforcement authority that courts have
interpreted EPA to have, the Tribal or State standard would still be
based on the term ``negligence'' in the text of CWA section 309.
Allowing Tribes or States flexibility in the degree of negligence for
which they are authorized to bring criminal cases balances the CWA's
priorities of allowing for Tribal or State autonomy with adherence to
the purposes of the Act. As noted above, neither CWA section 402(b)(7)
nor CWA section 404(h)(1)(G) requires States to abate violations in the
same manner as required under CWA section 309. The absence of any
citation to CWA section 309 in CWA sections 402(b) and 404(h) indicates
that some degree of variability may be permitted between Federal and
Tribal or State approaches to enforcement.
    This variability does not detract from the obligation for Tribes
and States to operate meaningful programs to abate permit program
violations, including through penalties and other ways and means of
enforcement, and consistent with the regulatory requirements for Tribal
and State enforcement authority. See 33 U.S.C. 1342(b)(7),
1344(h)(1)(G); 40 CFR 233.41. Moreover, Tribes and States may of course
continue to authorize criminal prosecutions based on a simple
negligence mens rea. EPA may consider the presence of that authority as
one factor when comprehensively assessing the adequacy of the Tribe's
or State's enforcement program in its program submission.
    The proposed regulatory clarification reflects EPA's experience in
approving and overseeing CWA State programs for over thirty years. Many
States administering or seeking to administer the programs do not
currently have authority to prosecute based on a simple negligence mens
rea, and indeed, may have statutory or other legal barriers to such
standards. EPA is unaware of any concrete evidence indicating that the
absence of a simple negligence mens rea for criminal violations has
served as a bar to effective State enforcement programs, and the
requirement to have such a standard could dissuade Tribes and States
from seeking to administer these programs in the future or potentially
motivate States to return their approved programs to EPA. Clarifying
that Tribes and States do not need authority to prosecute based on a
simple negligence mens rea in their criminal enforcement programs
therefore advances the purposes of CWA sections 402(b) and 404(g) to
balance the need for uniformity with Tribal and State autonomy, see
NRDC, 859 F.2d at 181 (D.C. Cir. 1988), and to encourage Tribal and
State assumption of Federal programs under the CWA consistent with
section 101(b) of the statute.
    This proposal does not change the standard applicable to EPA's
criminal enforcement of the CWA. Under CWA section 309, EPA retains its
civil and criminal enforcement authority, including where Tribes and
States have assumed a permit program. Notwithstanding Tribe or State
mens rea authorities, Federal prosecutions are governed by the mens rea
standards that Congress wrote into the statute in 1987, including that
misdemeanor penalties apply to violations resulting from simple
negligence and that felony penalties apply to violations resulting from
knowing conduct.
    Consistent with the CWA's requirement that Tribes and States
administering CWA sections 402 or 404 permitting programs have the
authority to abate civil and criminal violations, EPA is proposing to
add language to 40 CFR 123.27(a) and 233.41(a)(3) indicating that
Tribes and States must have the authority to ``establish violations,''
as well as ``to assess or sue to recover civil penalties and to seek
criminal penalties,'' which these provisions already state. This new
language simply confirms EPA's interpretation of the effect of its
current regulations. EPA also proposes to remove the term
``appropriate'' from the current references to the degree of knowledge
or intent necessary to provide when bringing an action under the
``appropriate Act'' from the CWA sections 402 and 404 regulations, as
these regulations only refer to actions under the CWA and no other