Regulations for Water Quality: Delegation of Section 404(g) Powers to Tribes and States

Regulations for Water Quality: Delegation of Section 404(g) Powers to Tribes and States

The Clean Water Act's Section 404 Dredged and Fill Permit Program has seen significant developments as states and Tribes take on increased responsibility for managing the program.

Recently, the Environmental Protection Agency (EPA) finalized an update to the Section 404 Tribal and State Assumption Program regulations, marking the first revision since 1988. This update clarifies and streamlines the process for states and Tribes to assume authority over permitting for discharges of dredged or fill material into certain waters, while the Army Corps of Engineers retains jurisdiction over navigable rivers.

As of now, only Michigan, New Jersey, and Florida have approved state programs assuming Section 404 permitting authority; no Tribes have assumed authority yet. The 2024 rule provides clearer criteria for program descriptions, ensuring that state or Tribal programs are no less stringent than federal requirements. It also establishes streamlined program approval procedures, including a transition period of up to 120 days post-EPA approval to begin administration.

Important regulatory clarifications include jurisdiction distinctions between state, Tribal, and Corps waters, new guidelines for compensatory mitigation requiring federal review of certain mitigation plans, provisions for long-term permits extending beyond the standard five-year limit, enhanced enforcement provisions aligned with other CWA programs, expanded opportunities for Tribal input on permits issued by other jurisdictions, and greater EPA oversight transparency.

The regulatory update appears codified at 40 C.F.R. parts 123 and potentially 233, with 233 historically relating to assumption regulations. The 2024 update specifically addresses clarity and transparency in the assumption process as outlined in the Federal Register.

Part 233 sets forth the criteria and procedures by which states or Tribes may assume administration of the Section 404 program. It requires that the applicant state or Tribe demonstrate the capability to administer the permitting program in a manner consistent with federal standards, including program stringency, enforcement mechanisms, and adequate staffing and funding. Program descriptions must detail jurisdictional boundaries, coordination with the Corps and EPA, and provisions for public participation. Assumed programs must maintain environmental protections at least as stringent as the federal baseline. The regulation also highlights EPA's role in program review and oversight to ensure compliance.

In summary, the 2024 EPA rule revision modernizes and clarifies the assumption process, encourages state and Tribal participation, and strengthens environmental safeguards and enforcement frameworks under the CWA Section 404 program, while building on the foundational requirements set out in 40 CFR Part 233. Many Tribes and states have expressed interest in assuming and administering a Section 404 program.

[1] Federal Register, Vol. 80, No. 234, December 11, 2024, pp. 71450-71499. [3] Federal Register, Vol. 80, No. 234, December 11, 2024, pp. 71499-71503.

1. As ongoing developments unfold, there's a growing interest among several Tribes to assume authority over the Section 404 permitting program, following the footsteps of Michigan, New Jersey, and Florida who have already done so.
2. The revised Section 404 program regulations, finalized in 2024, have opened up new opportunities for environmental science and industry involvement, as they emphasize stringent environmental protections and transparency.
3. The finance sector may also be impacted, as the regulatory update enhances EPA oversight transparency, potentially influencing the allocation of resources for water management projects on land.

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