EPA Proposes Revisions to Clean Water Act Tribal and State Program Assumption Regulations

On August 14, 2023, the U.S. Environmental Protection Agency (EPA) published proposed revisions in the Federal Register to the Clean Water Act’s (CWA) Section 404 Tribal and State regulations. The program has not been revised since 1988.

Section 404(g) of the CWA authorizes tribes and states to assume administration of the program over certain waters within their jurisdiction, except those waters retained by the U.S. Army Corps of Engineers (Corps). If approved by EPA, the tribe or state is responsible for:

  • Permitting discharges of dredged and fill material into certain waters of the United States within the tribe’s or state’s jurisdiction.
  • Authorizing discharges under general permits.
  • Enforcement of unauthorized discharges.
  • Enforcing the terms and conditions of permits under the tribe’s or state’s authority.

Specifically, EPA proposes changes to the description of state programs, how they are approved and withdrawn, and which waters and wetlands are covered by those programs. The proposal also addresses additional topics, including compensatory mitigation, long-term permitting, and compliance and enforcement.  

Comments on the proposed rule are due October 13, 2023.