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EPA/OW RIN: 2040-AF83 Publication ID: Fall 2020 
Title: Clean Water Act 404 Assumption Update Regulation 
Abstract:

Under CWA section 404, a permit is required before dredged or fill material can be discharged into waters of the United States, including certain wetlands. Section 404(g)(1) of the CWA provides states and tribes the option of administering the CWA section 404 permit program in certain waters within the state's or tribe's jurisdiction, respectively. To date, only Michigan and New Jersey have assumed administration of the section 404 program -- the Army Corps of Engineers retains permitting authority for the rest of the country. In response to requests from states and tribes, EPA is seeking to clarify assumption requirements, reduce barriers to assumption, and place more states and tribes in the decision-making position on dredged and fill permits. The proposed rule will address the procedures and criteria EPA will follow in approving, reviewing, administration and oversight of state and tribal programs under CWA section 404(g) and EPA's implementing regulations at 40 CFR part 233.

 
Agency: Environmental Protection Agency(EPA)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: No  Unfunded Mandates: No 
EO 13771 Designation: Regulatory 
CFR Citation: 40 CFR 233   
Legal Authority: 33 U.S.C. 1251 et seq., Clean Water Act   
Legal Deadline:  None

Statement of Need:

In response to requests from states and tribes, EPA is seeking to clarify assumption requirements, reduce barriers to assumption, and place more states and tribes in the decision-making position on dredged and fill permits. The proposed rule will address the procedures and criteria EPA will follow in approving, reviewing, administration and oversight of state and tribal programs under CWA section 404(g) and EPA's implementing regulations at 40 CFR part 233.

Summary of the Legal Basis:

CWA section 404(g). In amendments to the CWA, Congress provided states (1977) and tribes (1988) the option of assuming administration of the section 404 permit program for discharges of dredged or fill material in certain waters of the state. EPA last revised the implementing regulations at 40 CFR part 233 in 1988.

Alternatives:

Alternatives to the clarifications to be proposed will be considered during proposal. States and tribes are not required to assume the section 404 permit program; therefore, no alternatives are required.

Anticipated Costs and Benefits:

Potential costs will be calculated in the economic analysis accompanying the proposed rule. However, we note that due to the variability in state and tribal programs and resources within the state or tribe, costs and benefits will be described qualitatively. Additionally, since the purpose of this rule is clarity, it is anticipated any change in costs will be minimal.

Risks:

There are none anticipated.

Timetable:
Action Date FR Cite
NPRM  12/00/2020 
Final Rule  12/00/2021 
Regulatory Flexibility Analysis Required: No  Government Levels Affected: Federal, State, Tribal 
Small Entities Affected: No  Federalism: Undetermined 
Included in the Regulatory Plan: Yes 
RIN Data Printed in the FR: No 
Agency Contact:
Kathy Hurld
Environmental Protection Agency
Office of Water
Mail Code 4502T,
Washington, DC 20460
Phone:202 566-1269
Email: hurld.kathy@epa.gov

Ruth Chemerys
Environmental Protection Agency
Office of Water
4504F, Mail Code 4503T,
Washington, DC 20460
Phone:202 566-1216
Email: chemerys.ruth@epa.gov