EPA Issues Proposed Rule To Streamline Requirements For State And Tribal Assumption Of CWA Section 404 Programs

On Aug. 14, 2023, the U.S. Environmental Protection Agency (EPA) published a proposed rule that would clarify the requirements and processes for states and tribes to administer a Clean Water Act (CWA) Section 404 permitting program for discharges of dredged and fill material into regulated waters. The proposed rule is intended to address key barriers identified by states and tribes to administering CWA Section 404 programs and marks the first comprehensive revision to the regulations governing CWA Section 404 state and tribal programs since 1988.

By way of background, the U.S. Army Corps of Engineers (Corps) generally administers the CWA Section 404 program. However, CWA Section 404(g) authorizes states and tribes to assume administration of the program over certain waters within their jurisdiction, except for waters retained by the Corps. If EPA approves a program request, the state or tribe is responsible for permitting discharges of dredged and fill material into