Monday
June 6, 1988
Part V
Environmental
Protection Agency
40 CFR Parts 232 and 233
Clean Water Section 404 Program
Definition and Permit Exemptions;
Section 404 State Program Regulations;
Final Rule
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20764
6- 1988 /
and Regulations
ENVIRONMENTAL PROTECTION
AGEHCY
40 CFR Parts 232 and 233
[FRL-3214-1J
Clean Water Act Section 404 Program
Definitions and Permit Exemptions:
Section 404 State Program
Regulations
^GENCY.• Environmental Protection
Agency (EPA).
ACTION; Final rule.
SUMMARY: We are hereby issuing final
rules containing 404 program definitions
and 404{f)(l) exemptions and the
procedures and criteria used in
approving, reviewing and withdrawing
approval of State 404 programs. Part 232
contains definitions and exemptions
related to both the Federal and State-run
404 program and Part 233 deals with
State programs only. The revisions in
these rules will provide the States more
flexibility in program design and
administration while still meeting the
requirements and objectives of the
Clean Water Act (the Act).
EFFECTIVE DATES: This final rule is
effective on July 6.1988. In accordance
with 40 CFR 23.2, this regulation shall be
considered issued for purposes of
judicial review at 1:00 p.m., Eastern time
on June 20,1988.
FOR FURTHER INFORMATION CONTACT:
Lori Williams, Office of Wetlands
Protection (A-104F), U.S. Environmental
Protection Agency, Washington, DC
20460, (202) 382-5043.
SUPPLEMENTARY INFORMATION: This
final rule contains the 404 program
definitions and 404(f)(i) permit
exemptions in addition to the
procedures and criteria used in
approving, reviewing and withdrawing
approval of 404 State programs. Part 232
basically recodif.es the existing 404
program definitions and 404(fj(l) permit
exemptions in a new, separate part of
eliminate any confusion about their
applicability. Part 232 applies to both
the Federal and State programs. Part 233
revises the procedures and criteria used
in approving, reviewing and
withdrawing approval of 404 State
programs. These final rules provide the
States more flexibility in program design
and administration while still meeting
the requirements and objectives of the
Act.
This rule was proposed on October 2
1984 at 49 FR 39012. The notice invited
public comments for a 60-day period
ending December 3,1984. On December
10,1984 (49 FR 48064), the comment
period was extended to January 2.1985.
Thirty-eight comments were received
15 State agencies, 10 environmental
groups, 6 industry groups, 4 Federal
agencies, and 3 others.
The comments covered the full range
of views, ranging from those which
indicated that more streamlining is
required to those which indicated that
the proposed regulations increased
flexibility at the expense of
environmental protection.
In addition to the more significant
revisions described in the preamble, we
have made minor editorial and content
• changes from the proposal. We have
also renumbered the sections in Part 233
to close the large gaps in numbering in
the proposal.
It is the agency's intent that 40 CFR
) Part 124 no longer applies to 404 State
programs. We will be publishing .
technical, conforming regulations in the
near future.
The following summarizes the'major
comments and EPA's response to them.
Response to Comments and Explanation
of Changes ~
Part 232-—404 Program Definitions,
Exempt Activities Not Requiring 404
Permits
Section 232.2(b): In response to
comment, we have revised the proposed
definition of "application" for clarity.
Section 232.2 (e) and (f): The •
definition of "discharge of. dredged
material" and "discharge of fill
material" were modified for consistency
with the Corps regulations (33 CFR 323.2
(d)and(f)).
Section 232.2(j): We received
comment that our definition of "general
permit" is different from the Corps'
definition (33 CFR 323.2(n)). The
proposed definition was taken from the
Act (404(e)(l)) and, therefore, has been
retained in the final regulation.
Section 232.2(1): Under Section 404 of
the Act, the Corps (and States approved
by EPA) issue permits for discharges of
dredged and fill material into waters of
the U.S. Under Section 402, EPA (and
States approved by EPA) issue permits
for discharges of all other pollutants into
waters of the U.S. In January 1986 the
Corps and EPA entered into a
Memorandum of Agreement (MO A) to
resolve a longstanding difference over
the appropriate Clean Water Act
program to regulate certain discharges
of solid wastes into waters of the U.S.
The Corps issued its definition of "fill
material" in 1977, which provided that
only those solid wastes discharged with
the primary purpose of replacing an
aquatic area or of changing the bottom
elevation of a waterbody are regulated
under the Corps' 404 program. These
discharges include discharges of
pollutants intended to fill a regulated
wetland to create fast land for
development. The Corps' definition
excludes pollutants discharged with the
primary purpose to dispose of wastes
which, under the Corps' definition,
would be regulated under Section 402.
Under EPA's definition of "fill material,"
all such solid waste discharges would
be regulated under Section 404,
regardless of the primary purpose of the
• discharger., The difference complicated
the regulatory program for some solid
wastes discharged into waters of the
U.S.
The MOA provides an interim
arrangement between the agencies for
controlling these discharges. In the
longer term EPA and Army agree that
con'sideration given to the control of
discharges of solid waste both in wateis
of the U.S. and upland should take into
account the results of studies being
implemented under the 1984 Hazardous
and Solid Waste Amendments to the
Resource Conservation and Recovery
Act (RCRA). The main focus of the
interim arrangement is to ensure arit
" effective enforcement program under
Section 309 of the Act of controlling
discharges of solid and semi-solid
wastes into waters of the U.S. for the
purpose of dispoal of waste. When
warranted, EPA will normally initiate
section 309 action to control such
unauthorized discharges. If it becomes
necessary to determine whether Section
402 or 404 applies to an ongoing or
proposed discharge, the determination
will be based upon criteria in the
agreement, which provide, inter alia, for
certain homogeneous wastes to be
regulated under the Section 402 Program
and certain heterogeneous wastes to be
regulated under the Section 404
Program, subject to certain criteria. This
agreement does not affect the regulatory
requirements for materials discharged
into waters of the U.S. for the primary'
purpose of replacing an aquatic area or
of changing the bottom elevation of a
water body. Discharges listed in the
Corps definition of "discharge of fill
material" (33 CFR 323.2(1)) remain
subject to Section 404 even if they occur
in association with discharges of waste /
meeting the criteria in the agreement for
Section 402 discharges.
Unless extended by mutual
agreement, the MOA will expire at such
time as EPA has accomplished specified
steps in its implementation of RCRA. In
the meantime, these regulations simply
repromulgate EPA's existing definition
of fill material.
Section 232.2 (q) and (r):. Several
comments were directed toward the
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Federal Register / Vol. 53, No. 108 / Monday, June 6, 1988 /Rules arid Regulations 20785
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definitions of "waters of the United ,
States" and wetlands." The com.mentors
suggested that these definitions exceed
the original intent of Congress.
The legislative history of the Act, from
both 1972 and 1977, emphasizes
Congress' intent that the jurisdiction of '
the Act over waters of the United States
reflect the maximum extent permissible
under the Commerce Clause of the.
Constitution. The specific definition of
wetlands Ui>ed in these regulations was
originally promulgated in ,1977 (prior to
the 1977 Amendments to the Act) and
has been approved in numerous courts,
most recently by the Supreme Court in
• U.S. v. Riverside Bayview Homes Inc.
(106 S.Ct 455 (Dec. 4,1985)). The overall
definition of waters of the United States
has also been approved by the courts,
both in its current articulation and in
earlier versions. Therefore, we see no ,
need to change these definitions to
narrow their coverage.
Several questions have arisen about
this application of this definition to
isolated waters which are or could be
used by migratory birds and endangered
species. As the Agency explained in an
opinion by (he General Counsel dated
September 12,1985, if evidence
reasonably'indicates that isolated
Waters are or would be used by
migratory birds or endangered species,
they are covered by EPA's regulation. Of
"course,, the clearest evidence would be
evidence showing actual use in at least
a portion of the waterbody. In adition, if
a particular waterbody shares the
characteristics of other waterbodies
whose use by and value to migratory
birds as well established, and those
characteristics make it likely >hat the
waterbody in question would also be '
used by migratory birds, it would also
seem to fall clearly within the definition
(unless, of course, there is other
informatic n that indicates the particular
waterbody would not in fact be so
used). Endangered species are, almost
by definition, rare. Therefore, in the case
of endangered species, if there is no
evidence of actual use of the waterbody
(or similar waters in the area) by the
species in question, one could actually
assume that the waterbody was not
susceptible to use'by such species,
nptwithstariding the particular
characteristics of the waterbody.
However, in each case a specific
determination of jurisdiction would have
'to be made, and would turn cin the ,,
particular fact's.
For clarity and consistency, we are
adding the following language from the
preamble to the Corps' regulations
published on November 13, 1986 (51 FR
41217). This language clarifies some
casesUhalgtypically are^r ate not.
considered "waters-pf the United '
States." ;..;
"Waters of the United States"
typically include the following waters:
• Which are or Would be used as
habitat by birds protected by Migratory
Bird Treaties; or
• • Which are or would be used as
'habitat by other migratory birds which
, cross State lines; or
• Which are or would be used as
habitat for endangered species; or
• Used to irrigate crops sold in -
interstate commerce. , ,v
For clarification it should be noted
that we generally do not consider the
following waters to be "waters of the
United States." However, EPA reserves
the right on a case-by-case basis to
determine that a particular waterbody
within these categories of waters is a
water of the United States. Pursuant to
agreements with EPA, the permitting
authority also has the right to determine
on a case-by-case basis if any of these
waters are "waters of the United
States."
Non-tidal drainage and irrigation
ditches excavated on dry land.
• Artificially irrigated areas which
would revert to upland if the irrigation
ceased.
• Artificial lakes or ponds created by
excavating and/or diking dry land to
collect and retain water and which are
used exclusively for such purposes as
stock watering, irrigation, settling
basins, or rice growing.
• Artificial reflecting or swimming
pools or other small ornamental bodies
of water created by. excavating and/or
diking dry land to retain water for •
primarily aesthetic reasons.
• Waterfilled depressions created in
dry land incidental to construction
activity and pits excavated in dry land
for the purpose of obtaining fill, sand, or
gravel unless and until the construction
or excavation operation is abandoned
and the resulting body of water meets
the definition of waters of the United
States.
Section 232.3: The 1977 Clean Water
Act provided for specific exemptions
(404(f)(l)) from permitting requirements.
EPA's 1980 Consolidated Permit
Regulations promulgated regulations
spelling out the scope of the exempted
activities. The October 2,1984,
publication proposed several
substantive revisions to the 404{f)(l)
exemptions, as well as organizational
changes. This rulemaking finalizes the
organizational changes, but finalizes
only one of the proposed substantive
revisions. That revision substitutes "one
year from discovery" for the previous
"one year from formation" in
§ 232.2(d)(3)(i}(D), which exempts as
minor drainage certain discharge of
dredged or fill material.incidental to the
emergency removal of sandbars, gravel
bars, or other similar blockages. This
rule also includes'the revised irrigation
ditch provision which was the subject of
a separate rulemaking (40 CFR
233.35(a)(3), December 20,1984).
Additionally, we have made the note
following § 232.3.(b) more explicit to .
clarify that a conversion of wetlands to
non-wetlands is (and has been)
considered a "change in use." Apart
from these changes, it appears, based on
the comments received, that the
regulated sector is familiar with the
existing language and that no additional
clarification or improvement is now
needed. •
One commenter suggested that the ,
Best Management Practices (BMPs) for
the exemption from permitting for
construction or .maintenance of farm.
roads, forest roads or temporary roads
for moving mining equipment are
complex and difficult to administer and
should be left to negotiation between
the State and EPA for inclusion in the
, Memorandum of Agreement (§ 233.13).
These BMPs are the same BMPs that are
required for exemption from Federal
permitting requirements. These BMPs
were promulgated in 1980 and have not
been the subject of significant comment
or complaint since then. A discharger •
under, an approved State program-
should meet the same requirements as
under the Federal program.
Part 233—State Section 404 Program
Assumption Regulations
We received several comments
expressing concern that the proposed
regulations would weaken Federal
responsibilities, such as those in the
Fish and Wildlife Coordination Act,... "_. .
Endangered Species Act, and National
Environmental Policy Act. WTien a State
assumes the 404 permitting
responsibility, these statutes usually no
longer apply, since these statutes only
apply to Federal actions. When a State
assumes the program, the permit
decision is a State action, not a.Federal .
action. However, a Federal oversight
role is clearly established, by section
404(j) of the Act. Therefore, the altered
Federal role after program approval is a
function of the statutory scheme, not
these regulations.
Section 233.1: Several comments were
received on partial State programs,
ranging from the view that partial
programs should not be allowed to the
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20766 Federal Register /Vol. 53. No. 108 / Monday, June 6, 1988 / Rules and Regulations
view that it is desirable to approve
partial programs. The commentors
identified partial programs in terms of
geographic extent or scope of activities
regulated. EPA interprets the Act as
requiring State programs to have full
geographic and activities jurisdiction
(subject to the limitation in section
404(g)). While specific authorization for
partial programs under section 402 was
enacted in the Water Quality Act of
1987, no similar provision was added for
section 404. Accordingly, partial 404
programs are not approvable. Because
of the special status of Indians, a lack of
State authority to regulate activities on
Indian lands will not cause the State's
program to be considered a partial
program.
We encourage Stales to begin working
with the Federal land-owning agencies
(I.e., Forest Service, Bureau of Land
Management, and National Park Service
to name a few) early in the program
development stage. This should
eliminate or reduce any confusion that
may develop, since subsequent to
program approval, the State will assume
404 permitting responsibility in these
lands.
In response to comments, we have
clarified that States may have a program
that is more stringent or extensive than
what is required for an approvable
program. Under State law, and not as
part of its approved program, States
may also regulate discharges into those
waters over which the Corps retains
jurisdiction. Those parts of the State's
program that go beyond the scope of
Federal requirements for an approvable
program are not subject to Federal
oversight or federally enforceable. Of
course, while States may impose more
stringent requirements they may not
compensate for making one requirement
more lenient than required under these
regulations by making another
requirement more? i. .ngent than
required.
Section 233.3: One commentor
requested that we limit confidentiality
only to that information that does not
rotate to adverse effects on the aquatic
environment. As these regulations
conform to EPA's general regulations on
confidentiality of information (40 CFR
Part 2}, we did not make the requested
change.
Section 233.4: In the preamble to the
proposed rulemaking, we specifically
sought comment on the conflict of
interest section. Several comments were
received on this topic, the vast majority
of which supported the need for a
conflict of interest provision. However,
several commentors did suggest that
some flexibility should be added into
this section
The current language is derived from
the requirements for an approvable
NPDES program. However, State 404
programs should not be held to the same
conflict of interest standards as State
NPDES programs because of factual
differences between the two programs.
NPDES discharges are usually long term
discharges, often from certain specific
types of industrial or municipal
dischargers. Discharges authorized by
section 4Q4 typically tend to be one time,
of shorter duration, and by a wider
range of dischargers than NPDES,
ranging from private citizens to large
corporations, from small fills for boat
docks or erosion prevention to major
development projects. Therefore, an
absolute ban on anyone with a financial
interest in a permit from serving on a
board that approves permits is likely to
be more difficult to comply with under
the 404 program than under the NPDES
program because under the NPDES '
criteria, so many people would be
considered to be financially interested
in 404 permits that the pool of potential
404 board members would be
unreasonably small. In addition,
because of the nature and size of the
discharge, 404 dischargers will often
have less at stake financially than 402
dischargers.
Therefore, we have simplified the
conflict of interest section from what
was proposed. The final rule does not
prohibit a person with an interest in a
404 permit decision from generally
•participating on a board which makes
decisions on permit issuance or denial.
However, anyone with a direct personal
or pecuniary interest in a particular
permit decision must make such interest
known and must not participate in that
permit decision. This new language
allows more latitude in who may serve
on a board, but still provides that there
not be a conflict of interest or
appearance of conflict of interest in any
particular permit decision. This
language effectuates the basic intent of
the NPDES criteria, by ensuring that
board members are disinterested
decisionmakers.
Section 233.10: In response to
comment, we have clarified our original
intent that copies of State statutes and
regulations submitted as part of a
State's submission include statutes and
regulations concerning the State's
applicable administrative procedures.
Section 233.11: Several comments
addressed the need for additional
information in the program description.
These commentors were concerned that
there may be insufficient information
available to determine a program's
adequacy. These regulations reflect
EPA's view that a complete program
description is essential for determining
the adequacy of a State's program. A
State's program must be at least as
stringent and extensive as the Federal
program. In response to these comments,
we have specified certain information
that must be included in the scope and
structure of the.State's program. The
description of the scope and structure of
the State's program must include a
detailed description of the extent of the
State's jurisdiction, scope of the .
activities regulated as well as the scope
of permit exemptions (if any),
anticipated coordination, and the
environmental permit review criteria.
Section 233.11(h) clarifies the
requirements for a description of the
State's jurisdiction. As part of the
program description, the State must
describe separately the waters it will
assume after program approval and the
waters retained by the Corps. This
should make it easier for the public to
understand the split jurisdiction
between the State and the Corps.
We dp not concur with the comment
that, in addition to a description of
funding and manpower available for
program administration, the program
description should include formal
assurance from the Governor that the
level of funding is sufficient to provide
for an effective program. However, we
have reinstated the existing requirement
that the State provide an estimate of the
anticipated workload. This should
provide the information needed to
determine if the State has sufficient
manpower to adequately administer a
good program. If there is insufficient
funding or manpower for an adequate
program, this will becoir-e evident either
in review of the program submission or
in the annual review of an approved
program.
Section 233.13: In response to
comm ->nt, we have specified that, if
more than one State agency has
responsibility for program
administration, all the involved State
agencies must be parties to the
Memorandum of Agreement (MOA)
between the State and EPA's Regional
Administrator. This requirement is in
the existing regulations, but had been
eliminated in the proposal. Restoring
this requirement ensures that all State
agencies respbnsible for program
implementation are fully aware of their
responsibilities.
One commenter suggested we use the
MOA to establish procedures to
withdraw a permit from State processing
prior to any State action on the
application. We do-not agree with this
suggestion. Except for one situation
provided for in Section 404(j), only the
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20767
• Stats may issue a permit for discharges
in State regulated waters.
We do not agree with the comment
that the proposal fails to ensure
adequate coordination of EPA and State
enforcement activities, as it requires the
MOA to address State and EPA roles
and coordination on compliance
monitoring and enforcement activities.
The purpose of formalizing this aspect of
the State's program in an MOA is to
assure adeq ate coordination on
compliance monitoring and enforcement,:
activities. As part of the State's program
submission, this MOA is subject to
public comment. If there is any question
on the adequacy of a particular program,
it should become apparent during
Federal agency and public review.
Many commentors expressed concern
about the provision for waiver of
Federal review. Many were concerned
that the waiver provision would be
abused and that environmental
protection of the resources would suffer.
Several commentors were concerned
that inappropriate categories would be
waived. We feel that use of this waiver
provision will reduce workload and
paperwork and focus Federal resources
where they are most needed and
appropriate. Specific waivers will be
available for public review and,
comment prior to program approval.
This final regulation eliminates a
, separate section on sharing of
information (former 40 CFR 233.29),
since the MOA with the Regional
Administrator is already required to '-
address State submittal of information
to EPA and EPA access to State records,
reports and files relevant to the
program.. We feel this adequately serves
the purpose of 40 CFR 233.29.
Section 233.14: In. response to
comments, we have, as in the previous
section, now specified that all State
agencies responsible for program
administration must be parties to the
Memorandum of Agreement between.
the State and the Secretary.
EPA has also added a note
encouraging States to use this MOA to -.
establish procedures for joint processing
of Federal and State permits. Several
comments requested that joint
processing be made mandatory. While
we agree that joint permit processing
may be very beneficial to the regulated
public, we cannot make this a condition
to an approvable program. However, we
will continue to,strongly encourage
States to look .into the possibility of joint
processing! • .
In response to,comment, we have
retained the existing requirement that, if
States plan to assume existing Corps
general permits, this MOA. must include
procedures for transferring the support
-files, for,;t;hese genera\Eermts from-the "•
Corps tcltrie. State.;Tr8l wil!" facilitate '•
State oversight of such general permits.
One commentor was concerned that
the regulations eliminated a provision
for procedures to ensure the State did
not approve permits on the basis of
incomplete applications transferred by
the Corps/This provision was deleted as
unnecessary. Once a State assumes the
program, it is responsible for fulfilling all
permitting requirements, including •
public notice. The regulation requires
that sufficient information be available
to meet the information requirements for
public notice and for assessing the
impacts of the discharge. Therefore, the
State must either deny incomplete
applications or take steps to get the
complete information.
• Section 233.15: The Act establishes a
120-day time clock for EPA decision on,
• a State's request for program approval.
The final regulation clarifies'that this
statuforily mandated time period starts
. on EPA's receipt of a complete program
submission. If the State significantly ,
changes its submission during the
review period, the time clocks starts
over upon EPA's receipt of the revised
submission. The review period may be
extended upon agreement of the State
and EPA. .
We cannot agree to the suggestion
that the regulation lengthen the public
comment period and notice of public
hearing for decision on a State program.
The Act is ve'ry specific on the
timeframe for this decision. If a decision
is not made within the 120 days
timeframe, the State's program is
automatically approved. EPA cannot
make a decision within the mandated
120 days of receipt if these time frames
are extended. Of course, as noted
earlier, a State may agree to extend the
time period for program approval; in •
that event, additional time could be
provided for public participation within
that State.
EPA vvill make its decision to approve
, or disapprove the State's program within
the statutorily mandated timeframe.
However, if approved, the State's
program will not be effective until the
notice of approval is published in the
Federal Register. • •
• Many comments were received on the
delegation of authority to the Regional
Administrator tp approve/disapprove
State programs. Most commentors were'
concerned about national consistency
among the States' programs. The
Delegation Manual, which formalizes
" this delegation of authority, requires
that the Regional Administrator
approving a State program must obtain
. the concurrence of two EPA -
headquarters offices—Office of Water
and Office of GeneralCounsel. This
should ensure-the desired national
consistency.
EPA has added language to make it. .
'explicit that programs shall be approved
. or disapproved based on whether the
State's program fulfills the requirements
of this regulation-and the Act.
This rule also clarifies that EPA will
use existing State, Corps, FWS and
NMFS mailing lists as the basis for
mailing notices about the State's request
for program approval.
A summary of significant comments
received and response to these
comments will be prepared by the
Regional Administrator prior to decision
on a State's program. Since there are
already specific requirements for public
notice and public hearing, there is no
need for (and we have deleted the
requirement for) the responsiveness
summary itself to describe the public
participation activities or matters
presented to the public.
' Section 233.16: This rule clarifies that -
it is the. State's obligation to keep the
Regional Administrator informed of any
proposed or actual changes to the
State's approved program.;
We rejected the suggestion that if a
State must amend or enact new
legislation to comply with any
, modification in Federal regulation, the
change must be promulgated Within one
year of the modification. A two year
time period was chosen because many
State legislatures do not meet every
year. A one-year deadline for these
States would be impossible to meet. *
We also do not agree with the
suggestion that minor revisions to an
approved State program should undergo
as much review and/or coordination as
substantial program revisions. As the
name (minor revision) implies, these
program changes will not have a
significant impact on the program or the
environment. Of course, if there is
question in EPA's mind about whether a
proposed revision is minor or
substantial, the revision shall be
considered substantial and undergo full
review specified for an original
application.
Section 233.21: Several commentors
questioned the legality"of State issued-
general permits. Sections 404 (g), (h) and
(j) of the Act authorize this type of State
permit.
Many commenters were received on
general permits. States have the option
of assuming administration of Corps'
existing general permits. If they choose
to exercise this option, the State is •
responsible for ensuring discharges
comply with any existing permit
conditions and any reporting, monitoring
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Federal Register / Vol. 53, No. 108 / Monday, June 6; 1988 / Rules. and Regulations
or prcdischarge requirements. The Corps
shall provide the State copies of the
support files for any general permits
assumed by the State.
One commentor questioned the
advisability of EPA approving transfer
of some existing Corps general permits
to a State. EPA cannot ignore Sections
404 (g)(l) and (h)(5) which provide for a
State to assume existing general
permits. If a State with an approved
State program proposes renewal of any
permits that have not worked well, EPA
will comment/object to these proposed
permits, as appropriate.
Several commentors expressed
satisfaction with the Corps' existing
general permits. These commentors
expressed concern about the States not
assuming such existing general permits
and about their opportunity for
participation in such a decision. It is the
, State's prerogative not to assume any of
the existing general permits. However,
if, at the time of initial program
assumption, the State does not intend to
assume existing Corps general permits,
this will be noted within the program
submission and will be subject to public
comment and public hearing as part of
the approval process. Failure to assume
existing Corps general permits does not
constitute a partial program, since the
State will process individual permit
applications for those discharges
previously authorized by general permit.
Any Corps general permit not assumed
by the State will remain in effect, for
purposes of the Clean Water Act, until
its normal expiration date, unless
revoked or modified sooner by the
Corps under its procedures. If
subsequent to program approval the
State decides to revoke or modify a
general permit it has assumed, the
normal revocation procedures will
apply.
Many comments were received on
prcdischnrgc notified lien requirements
for general permits. Some commenters
agreed that notification should be
determined on a permit-by-permit basis;
others felt that such notification should
be required on all general permits. This
rule adopts the proposal that
notification requirements be established
on a permit-by-permit basis. For
instance, prenotification or reporting
may be required in areas where there is
a likelihood for individual or cumulative
adverse effect on the environment
because of discharges conducted under
a general permit. AH draft general
permits will be reviewed by EPA and
the other Federal review agencies as
well as the general public. If during the
review of a particular draft general
permit, EPA determines that notification
provisions are appropriate to ensure
compliance with the 404(b)(l)
Guidelines, we will so state in the
Federal comments to the State. This
ensures that notification requirements '
will be included where in fact
appropriate.
The Department of the Interior
requested that we require a 30-day
prenotification requirement on any
discharge pursuant to a general permit
that may impact units of the National
Park System, National Wildlife Refuge
System, National Fish Hatchery,
Reclamation project lands, Indian
' Reservation and Trust lands, and public
lands under the jurisdiction of the
Bureau of Land Management. We -do not
feel at this time that there is a basis for
automatically requiring such
prenotification. If there is a need for
prenotification for a particular permit, it
may be specified through the Federal
comment on the draft permits and \vill
therefore be included in the issued .
general permit, in accordance with
'§233.50.
Several commentors requested that
we retain limits on any single operation
conducted under a general permit. We
agree that this is appropriate.
Subsection 233.2i(c) (1) and (2) require
each general permit to have limits pn the
size and location and type of fill for any
single operation, sufficient to ensure
minimal adverse environmental effects
when performed separately and minimal
cumulative adverse effects, as required
by Section 404(e). ',
One commentor was concerned that
we had deleted all the standard permit
conditions (§ 233.23) for general permits.
Section 233.21(c) (1) and (2) recapture
the main items of § 233.23(c)(l) such as
specific description of activities
authorized including limitations for any
single operation and precise description
of geographic area to which the general
permit applies including any limitations
where operations may be conducted.
The only part of § 233.23 (Permit
conditions) that does not apply for
general permits is § 233.23(c)(l), which is
not applicable because it refers to items
that are pertinent only to individual
permits (e.g. name and address of
permittee).
Several commentors suggested that
the Director should show cause for
invoking discretionary authority to
require an individual permit. This
regulation specifies that discretionary
authority may be based on concerns for
the aquatic environment including
compliance with these regulations and
the 404(b)(l) Guidelines. Section 510 of
the Act preserves the Director's right to
impose more stringent requirements, i.e.,
to invoke discretionary authority for
other reasons under State law. Once the
Director notifies a discharger that he
will exercise discretionary authority to
require an individual permit, the activity
is no longer authorized under the
general permit. If the activity continues
after notification, the discharger is
subject to enforcement action.
Section 233.22: In response to
comments requesting more specific
permit conditions, we have clarified that
emergency permits, to the extent
possible, should incorporate all
applicable permit conditions (§ 233.23),
including restoration of the site. We
have also retained the provision that
emergency permits shall be limited to
duration of time needed to complete the
authorized emergency action.
We do not agree with the comment
that the Regional Administrator must . .
show cause to terminate an emergency
permit. The Regional Administrator ' :
never terminates permits. The Director
may terminate an emergency permit if
he determines such an action is
necessary to protect human health or
the environment.
- Section 233.23: Each permit shall have
conditions which assure compliance
with all applicable statutory and
regulatory requirements. If any of these
requirements change, the permit
conditions must be modified as needed
to assure compliance with,the revised
requirements.
In response to comments, we have
added a requirement that the permit
contain conditions which assure that the
discharge will be conducted in a manner
which minimizes adverse impacts on the
' physical, chemical and biological
integrity of the waters of the United
States. This is a reiteration of the
requirements in the 404(b)(l) Guidelines
(§ 230.10(a)). Restoration and mitigation
may be considered as mechanisms for
reducing adverse impacts inappropriate
circumstances.
One commentor expressed concern
about the proposed deletion of the
permit condition referring to BMP's -
approved by a Statewide 208(b)(4)
agency. If a State has an approved 208
program, these requirements would be
covered by § 233.23(a), which requires
the Director to establish conditions
which assure compliance with all
applicable statutory and regulatory
requirements, so there is no need for a
separate reference to the BMP's.
In response to comment, we have
retained the requirement for a permit
condition explaining that a permit
violation is a violation of the Act as well
as of State statutes or regulations, as
•this reminder may enhance compliance. "
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53, No. 108 /Monday, June 6, 1988 / Rules and Regulations
20769
We also, have expanded § 233.23(c)(6) to
require the permittee to provide the
Director information to determine
whether cause exists for permit
revocation or termination as well as
modification.
We concur with the comment that the
Director or his authorized representative
should have proper identification before,
they can enter the premises or inspect
any records. We believe this is
reasonable and have added this to the
final regulation.
One commentor requested that the
regulation require more specific
identification of the disposal site. We
feel that between the existing
requirements for permit application,
public notice and permit conditions, the
disposal site will be adequately
identified. However, as a safeguard, we
have added'that the description of the
project on the issued permit must
include a description of the purpose of
the discharge.
Section 233.24 (Effect of a permit).
This section has been deleted as
unnecessary. The statements in this
section were simply facts which do not
need to be included in regulations to be
in effect.
Section 233.30: Many comments were
received on the State application form.
A number expressed concern that there
would not be enough information
available to evaluate the potential
impacts of the discharge activity. We
•have accordingly revised this section to
generally reflect the same application
information requirements contained in
the Corps' current regulations [33 CFR
Part 325). Under this approach. State
assumption of the program should not
result in any change in either the kind of
information available for review or the
burden upon the applicant to supply the
information. In, addition, a requirement
for certification that all information
contained in the application is true and
accurate has been added to
§ 233,30(b)(4). ; ;
^Several commentors requested that '
we include the publicity and pre-
application consultation requirements in .
the regulations-. As noted in the
preamble to the proposed rule, we agree
that publicity and preapplicatipn
consultation are beneficial; however,
they are not required for an appro vable
.program. We will continue to en'courage
, States to include them in their programs.
Section 233.31: In response to
comment, this section has been
simplified from proposed § 233.61; it
now simply requires'coordination with
other States whose waters may be
impacted by the discharge and
coordination with Federal and Federal-
State water related planning and review
processes,, without.attempting to list
such processes. The's'ifiaHning and
. review processes may include, but are -
not limited to, coastal zone management
plans, 208 areawide plans. Continuing
Planning Process {§ 303(e)), and
advanced identification (40 CFR 230.80).
The coordination procedures will likely
vary from State to State. The State's
•. anticipated coordination shall be
included in the program description.
EPA will carefully scrutinize the
anticipated coordination to assure it is
adequate..
Comments were received suggesting
that we require States to incorporate
into their programs information
, developed by FWS' National Wetlands
Inventory (NWI). While we agree that
this information would be very useful in
administering a State's program and
encourage States to take advantage of it,
it should not be mandatory for States to
. incorporate this information in their
programs. The.NWI was not developed
for regulatory purposes. Additionally,
the FWS did not use EPA's definition of
wetlands in the NWI; therefore, the
"NWI wetlands" and the "404 wetlands"
may not always coincide.
Several commentors were concerned
that the lack of specificity of
coordination requirements would
weaken State programs. While these
regulations do not list specific entities
(agencies) that must be coordinated
with, we will carefully evaluate the
coordination aspects of each State's
program prior to decision on approval/
disapproval. While we'anticipate that ,
the State's permitting agency will
coordinate with State fish and game
agencies,'this is not required by the Fish
and Wildlife Coordination Act.(FWCA).
Once a State assumes the 404 permitting
responsibility, that.Act no longer applies
in the permitting process since
permitting becomes a State (not Federal)
action. The FWCA will still require ,
coordination with FWS whenever a '
State-issued permit is' issued to a •'
Federal agency or facility. However, it
must also be remembered that States
must assure compliance with the
404(b)(l) Guidelines which provide for
protection of fish and wildlife resources.
EPA is responsible for soliciting
comments from the Corps, FWS, and
NMFS, and commenting to the States.
Section 233.32: Many comments were
received on proposed § 233.62 (public
notice), some in support of and others
Opposed to shortening the public
comment period. The final rule provides
for a public comment period at least
comparable to that under the Federal
program. The existing Corps' regulations
(33 CFR.-Part 325.3) specify^ public-
notice period of "A reasonable period of
time, normally thirty days but not less
than fifteen days from date of mailing."
Today's rules specify ."* * *a
reasonable period of time, normally 30
days," and allows approving a program
that allows less than a 30 day public
comment period if the Regional
Administrator determines that
"sufficient public notice is provided for."
The Regional Administrator must
carefully consider all aspects of a
State's program in regard to public .
involvement, including how extensive
the State's mailing lis.t is, whether notice
is published in area newspapers, what
the actual length of the comment period
is, whether the shorter time period is for
, all projects or just certain categories of
discharge. We anticipate that comment
periods would not be shorter than 20
days, and we will carefully scrutinize
any that are less than 30 days.
Several comments on the content of
the public notices were also received.
These comments objected to the lack of
specificity of the information required to
be included in the public notice. In
response to these comments, the
information requirements for public
notice have been changed.- These • ' • . •
regulations incorporate much of the
language in, the Corps' existing
regulations (33 CFR 325.3.) Therefore,
there should be no net change in the .
information available to evaluate a
proposed discharge from the existing
Federal program to an approved State
"program.
We have modified the requirement on
who must automatically be mailed
notice of a permit application. While the ,
notification may varjrdepending on'the
type and location of the project, certain
notifications, such as the local
governmental agency, should be routine.
Other notificatibns that may be useful
include historic preservation and coastal
zone management offices.
In response to comments, we have
also clarified that anyone may request
to be put on a mailing list to receive
copies of public notices.
1 One commentor .suggested that we ,-
make it clear that information obtained
in response to the public notice will be
taken into consideration as part of the
environmental assessment to determine
if an environmental impact statement
(EIS) should be prepared. We have not •
included this language since, once a
State assumes the permitting •
responsibility, the National
Environmental Policy Act (NEPA) no
longer applies, NEPA applies to Federal
actions. When a State assumes the
program, the permit decision is a^State
action, not a Federal action. While many
States have a State law equivalent to
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o1' 53' No" WB I Monday, June 6, 1988 / Rules
NEPA, it is not the function of these
regulations to address EIS requirements
under such State laws.
Section 233.33: This provision has
been rewritten to clarify how the
transcript of public hearings will be
made available to the public.
Section 233.34: Several commentors
expressed concern that requiring the
State to prepare a written determination
for each permit is excessive paperwork.
We do not concur with this view; we
feel that a written determination is
needed for each permit decision to
ensure proper evaluation and to
facilitate subsequent review. Therefore,
these regulations contain the
requirement that the Director must
prepare a written determination for each
permit application outlining the decision
and the rationale for the decision. Of
course, in accordance with § 230.6 of the
Guidelines, the level of detail may be
tailored to the circumstances.
Any State environmental review
criteria must be at least equivalent to
the 404(b)(l) Guidelines for an
approvable program. The 404(b)(l)
Guidelines were the subject of an
Advanced Notice of Proposed
Rulemaking (ANPRM) (47 FR 36798)
published August 23,1982, to solicit
comments and examples of alleged
problems with these Guidelines. At this
time, EPA has not found sufficient basis
for revising the Guidelines. Therefore,
States must assure compliance with the
current Guidelines, as required in
section 404(h)(l)(A)(i).
We do not concur with the suggestion
that we establish specific deadlines for
State decision on an application. The
only deadlines in this regulation are
those which relate to the statutorily
mandated limefrarnes for Federal
review of an application.
Section 233.35:The final regulation
simply requires signature by both the
applicant and .he Director, and does not
specify the sequence in which they sign.
However. EPA anticipates that, if the
project is controversial or if the permit
conditions are restrictive, the Director
may wish to require the applicant to sign
the permit to indicate acceptance of its
terms prior to the Director's signature.
Section 233.36: These regulations
simplify the procedures for modification,
suspension and revocation of permits.
State procedures to handle these
situations shall be approved if there is
opportunity for public comment,
coordination with the Federal review
agencies, and opportunity for public
hciiring. Language has been added
(§ 233,36(b)) specifying that permit
modification must be in compliance with
§ 233.20 (Prohibitions).
The 402 State program regulations
handle modifications differently than
these 404 State Program Regulations, 40
CFR 122.62 provides an exclusive list of
grounds which justify the modification
of a 402 State.permit. Section 233.36
does not. This difference between the
two programs is appropriate for the
following reasons. First, the 402 program
has a long history of litigation
concerning reopener and the five year
maximum permit term; the 404 program
aoes not. Second, the 402 program
generally regulates continuous
discharges; consequently, there is great
concern with balancing the permittee's
need for certainty and continuity against
the program's need to impose more
stringent standards. The 404 program,
however, tends to regulate short-term
discharges, and thus the permittee's
need for continuity is much less than it
is in the 402 program. Consequently, the
404 programs may facilitate permit-
modification by States where the 402
program can not. ',
One commenter expressed concern
about use of abbreviated review
procedures for modification of permits
for minor modification of project plans
that do not "significantly" change the
character, scope and/or purpose of the
project or result in significant change in
environmental impact. The commenter
was concerned that the use of the word
"significant" was too vague and allowed
a procedural loophole to avoid public
and agency review. The key word in this
sentence is "minor" modification.
Things that will be evaluated in making
the decision on whether the project
modification is minor are whether there
is any change m project purpose, or any
change that increases the amount of
dredged or fill material, or'any change
that enlarges the scope of the project.
We anticipate that, if there is any
question about the need for public and
a-ency review of a project modification,
the State will initiate full review
procedures.
Section 233.37: In the preamble to the
proposed regulation (49 FR 39015) we
noted that the requirements concerning
who must sign may not necessarily be
appropriate for the 404 program. The
language in the proposal was the result
of a settlement agreement [NRDC v.
EPA, and consolidated cases [No. 80-
1607 (D.C. Circuit)]). All the comments
received on this subject agreed that the
proposed signature requirements are
appropriate for NPDES discharges, but
are too inflexible and are not really
appropriate for 404 discharges, since
most 404 discharges are a one time
discharge and on a relatively small
scale. We concur with these comments.
Therefore, this final regulation
incorporates the signatory requirements
contained in the Corps' current
regulations (33 CFR 325.1). Thus, there
will be no change from the existing
Section 404 requirements when a State
assumes the program.
The certification that all statements
contained in the application or other
documents are true and accurate and
that there are penalties for submitting
false information has been removed
from this section to § 233.30 (Application
for a permit). Section 233.41(a)(3)(iii)
also addresses this certification in that it
provides for authority to seek criminal
fines against any person who knowingly
makes false statements in any
application, record, report, plan or other
document filed or required to be '
maintained under the Act, these
regulations or the approved State
program.
Section 233.38: One commentor
requested that if a State permit
application has been submitted in a
timely manner, an existing Federal
permit should be continued beyond its
expiration date until a State permit is
issued. The provision in the
Administrative Procedures Act for •
continuing Federal permits does not
apply in this setting. Therefore, such
continuation may be accomplished only '
through State law. These regulations
allow but do not require the State to
have such authority. We cannot
mandate that this be a requirement for
an approvable program.
Section 233.40: The compliance
evaluation provision has been rewritten
from the existing regulation to simplify it
and to provide additional flexibility. We
continue to believe that compliance
evaluation is an important component of
an effective Section 404 program.
Therefore, the previous provisions (40
CFR 233.27 (1984)) should be considered
as guidance in interpreting the new
streamlined language,. '
We do not agree with the comment
that State agency authority to "* * *
enter any site or premises subject to
regulation" is excessive or may violate
civil rights. This provision does not
override applicable warrant
requirements or other safeguards. Of
course, if State requirements so
constrain the State's right of entry that
the State lacks meaningful authority to
inspect, the program would not be
approvable. (We are not presently
aware of any States where there would
be this problem, however.)
Section 233.41: Many comments were
received on the proposed alternative
requirements for authority to assess civil
and criminal fines of a specific amount.
The comments ranged from approval of
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=2^teLlJ^ 20771
the alternative concept to concern about
weakening State enforcement capability.
This regulation promulgates the
proposed subsection allowing approval
of a State program without the'specific.
monetary penalty authority if it has a
demonstrable effective alternative
enforcement mechanism.
We are interested in ensuring that .
State programs have strong enforcement
capability, since it is not desirable for
EPA to constantly overfile in State
enforcement actions. Because the Act
does not specify that a State must have
penalties equal to the Federal penalties
or at any other particular level for an
approvable program, EPA has
substantial discretion in deciding what
is sufficient State enforcement authority.
These regulations establish monetary
penalties for .which the State must have
the authority to assess; they need not be
assessed by the State for every
violation. These amounts are
approximately half those EPA is
authorized to assess.
. If a State cannot fulfill these monetary
penalty requirements, it can still have an
approved program if EPA is satisfied >'
that it has "an alternate, demonstrably
effective method of ensuring
compliance." However, even under the
alternative enforcement program
provision, States must still have the ..
authority to assess both civil and
criminal penalties, although the amounts
may not equal those required by
§ 233.41(a}(iH"i).
Before approving any alternate '
enforcement mechanism, ,the Regional
Administrator (RA) will carefully
evaluate the State's proposed
alternative enforcement mechanism to
ascertain the effectiveness of the
proposed alternative. The State's
program must have a clear history of
demonstrated effective deterrence,
while also having direct punitive value. '
Programs will have to be in effect for at
least one year prior to formal
application for program approval in
order to have a sufficient track record
for evaluating effectiveness.
An effective, strong restpration
program is the type of enforcement
program that would be given serious
consideration as an alternative under
this provision. Being of a solid nature,
404 discharges tend to stay where
originally placed, making restoration of
illegally filled areas more feasible for
404 discharges as compared to 402
discharges. Most 404 discharges are a
onetime discharge, of relatively short
duration, and on a relatively small scale.
This lends more'credence to restoration
working as an alternative enforcement
mechanism which can serve to protect
the- environrnent,. djejgr future violations,
and penalize the vjpIftorf~ •
A key aspect that the RA must
consider in determining effectiveness is
whether the alternative program has an
equivalent deterrence effect as would
assessment of monetary penalties. The
alternative approach must be strong
enough to cause a violator to cease any
and all illegal activities. It must also
deter others from violating the State's
permit program. How effective the
alternative mechanism will be in ,
preventing and restoring any
environmental damage will also be
considered by the RA in making a
decision on approval/denial of a State's
alternative enforcement program.
The enforcement authority which a
State must have in order for a Section
404 program to be approved is
essentially the same enforcement
authority it must have to administer an ,
NPDES program.under the Act. If a State
lacks authority to recover penalties of
the levels required under
§ 233.41(a)(3)(i)-(Jii), EPA will review a
State's authority to assess penalties in
light .of the State's ability to provide
other incentives to compliance and
- deterrence to noncompliance. EPA
intends that penalties for violations of
Section 404 programs will provide
general and specific deterrence.
Penalties assessed in State administered
programs should persuade the. viola tor
to take precautions against falling into
, noncompliance again, deter violations ^
by others, and restore economic equity
to regulated parties who have complied
with Section 404 requirements. Penalties
assessed in a State program should, at a
minimum, recapture the economic
benefit that a violator has wrongfully
obtained. In support of its application
for program approval, a State may
provide information regarding its
authority to obtain money judgments
from Section 404 violators under
equitable theories such as restitution
and unjust enrichment.
Any proposed alternative enforcement
mechanism will be available for public
comment as part of the State's program
submission. We'are concerned about
national consistency in administration
and effectiveness of State programs.
Therefore, we must stress that approval
of an alternate enforcement mechanism
will not be undertaken lightly. States
should continue to try to meet the
existing monetary penalty requirements.
In these regulations we have added a '
reporting requirement for States using
the alternative enforcement authority.
Under fina} § 233.41(d) the State must -
keep the Regional Administrator
informed of all enforcement actions
carried out under the alternative
provision. The manner of reporting will
be established as part of the State's
submission in the Memorandum of
Agreement with the Regional
Administrator. This reporting
requirement will enable EPA to closely
monitor the effectiveness of the State's
enforcement program and to determine
any need for EPA overfiling in State
enforcement cases and/or action under
Section 309.
In response to comment, we have ,
retained the requirement that the burden
of proof for State enforcement cases
shall be no greater than the burden of
proof required of EPA.
One commentor suggested that any
intervention in a State enforcement
action must include some showing of
justification. This regulation adopts the
proposal which allows intervention
"* * * by any citizen having an interest
which is or may be adversely affected."
We feel this adequately answers the
suggestion. ,
^One commentor requested that EPA
prescribe procedures for any affected
person to initiate legal action in State or
Federal court against the Director, the
permittee, or anyone operating in
noncompliance with a State program.
This would be comparable to the citizen
suit provision in Section 505 of the Act. '
While such a provision might strengthen
a State program, there is no such
statutory requirement for an approvable
program. However, we do anticipate
that many States will have some form of
citizen suit provisions.
. Subpart F—Oversight Policy
Many Federal environmental
programs were designed by Congress to
be administered at the State level
wherever possible. EPA's policy has
been to transfer the administration of
national programs to State governments
to the fullest extent possible, consistent
with statutory intent and good
management practice. The clear intent
of this design is to use the strengths of
Federal and State governments in a
partnership to protect public health and
the nation's.air, water, and land. State
governments are expected to assume
primary responsibility, while EPA is to
provide consistent environmental
leadership at the national level, develop
general program frameworks, establish
standards as required by the legislation,
assist States in preparing to assume
responsibility for program operation,
provide technical support to States in
maintaining high quality programs, and
ensure national compliance with
environmental quality standards.
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Federal Register / Vol. 53, No. 108 / Monday, June 6, 1988 / Rules and Regulations
The relationship between EPA and the
States under assumption of the Section
404 Program is intended to be a
partnership. Both EPA and the States
have continuing roles and
responsibilities under assumed State 404
programs. EPA remains responsible to
the President, the Congress and the
public for progress toward meeting
national environmental goals and for
ensuring that the C'ean Water Act is
adequately enforced. Thus, EPA's policy
to transfer management responsibilities
for environmental programs to State
governments carriers with it a
corresponding EPA responsibility to
assure the objectives of the Federal law
are achieved,
Evaluation of approved State 404
programs will generally focus on overall
program performance and identifying
patterns of problems. However, there
will be some cases where EPA (and
other Federal agency) participation in an
Individual State permit decision will be
appropriate. Section 404(j) specifically
provides for Federal comment on
individual permit applications.
However, based on our general policy
and our specific experience with
Michigan's Section 404 program, the
provision for waiver of Federal review
(§ 404{k)J will be exercised to focus
permit-specific oversight primarily on
proposed discharges with potentially
serious adverse environmental impacts.
Review of Michigan's assumed program
clearly illustrates that Federal review
was waived in the vast majority of
cases. In 1985, approximately 1% of the
permit applications received Federal '
review; in 1986, approximately 1.596.
We expect to issue guidance on
Federal oversight of approved State
programs under these regulations. This
will include guidance on identifying and
describing categories of activities
eligible and appropriate for waiver of
Federal review, emphasizing reasonable
waiver initially, followed by increasing
waiver over time based on experience
with the State 404 Program. Thus, as
experience demonstrates that a State is
effectively administering its approved
program, so as to comply with all
national requirements, it is expected
that additional waivers will be
developed, replacing more individual
permit review with periodic
programmatic review. This periodic
review will usually be conducted on an
annual basis, but may be more frequent,
as necessary or appropriate. EPA
intends that other Federal agencies with
responsibility under Section 404 will
have an opportunity to participate in
Stale program review activities and in
the determination of what changes to
-such review would be appropriate,
Section 233.50: Several commentors
expressed concern that top much time is
allowed for Federal review of State '
permit applications. The final
regulations retain the proposed time
frames because they are based on
Section 404(j) of the Act. However, the
regulations do allow for the times to be
shortened by mutual agreement of the
Federal agencies and the State.
Several commentors questioned why
EPA receives the public notice from the
State and distributes the notice to the
Federal agencies. The Act establishes
EPA as the Federal focus of contact with
the State. However, if the State, with the
goal of streamlining, wants to provide
copies of the public notice directly to all
the Federal agencies, this can be
accommodated within the Memorandum
of Agreement with the Regional
Administrator (§ 233.13). In either case,
the comments from the Federal review
agencies will be forwarded to EPA to
consolidate the Federal comment to the
State.
In addition to the public notice and
draft general permit, the Regional
Administrator shall forward to the
Corps, FWS, and NMFS any other
information pertinent to making an'
informed comment that the States
makes available to him.
This regulation eliminates the
requirement that States prepare draft
individual permits. Draft general permits
must be prepared (§ 404(j) refers to a
copy of each proposed general permit)
but there is no comparable statutory
requirement for draft individual permits.
Moreover, draft permits are not
prepared as part of the current Federal
program. Public review of individual
permit applications is currently based
on the public notice; public review
subsequent to State assumption will
also be based on public notice.
Therefore, th_.e will be no substantial
change from existing procedures.
One commentor questioned why the
public notice was circulated to EPA for
Federal review instead of the permit
application (§ 404(j)). The public notice
usually contains all the pertinent
information in the permit application
(§ 233.32(d)). Under the Corps
administered program, public and
Federal review is normally based on the
public notice; therefore, there will be no
significant change from current practice.
In addition, under ei'ther the Federal and
State programs, EPA can request a copy
of a particular application if it has a
need for it.
In response to comment, we have
reinstated the provision that if the
Regional Administrator notified the
Director within 30 days of receipt of the
public notice that there is no comment,
he may reserve the right to object within
90 days of receipt of the notice based on
new information .brought out by the
public during the comment period or at a
hearing.
Contrary to several comments
received, the regulation already
provides that the State shall provide a .
copy of every issued permit to the
Regional Administrator (§ 233.50(a)(4)).
These issued permits will be reviewed
for compliance with the requirements for
an approvable program, as part of EPA's
overall oversight.
One cOmmentor suggested that our
provision for the Regional Administrator
to consolidate comments for the Federal
agencies conflicted with Section
404(h)(l)(H). However, Section 404fj)
specifically assigns this coordination/
consolidation role to EPA's Regional
Administrator. This section clearly
establishes EPA's Regional
Administrator as the Federal focus for
approved State programs. After "full
consideration" of the comments of the
Federal review agencies, EPA will
prepare and transmit the Federal
comment on a permit application to the
State. If appropriate and/or useful, EPA
may transmit copies of the other Federal
agencies' comment to the State as part
of the official Federal comment. Those
agencies are, of course, also'free to
furnish information copies of their
comments to the State at the same time
they submit them to EPA.
Section 233.51: This section received
many comments, which range-from the
view that Federal review has been
waived far too much to one that Federal
review has not been waived for enough
categories of discharge. Other than the
few categories never eligible for waiver,
waivers will be developed on a State-
' by-State basis. Each State has unique
resources that must be considered in
developing categories or discharge
eligible for waiver. These categories will
be developed in consultation with the
Federal review agencies and will be
open to public comment. We anticipate
that use of this waiver mechanism will
reduce unnecessary paperwork and
direct the Federal presence to where it is,,
most needed and appropriate.
The proposed rule specified that
general permits are not eligible for
waiver of Federal review. The proposal
intended that draft general permits are
not eligible for waiver of review. This
has been clarified in the final rule.
In response to comment, we have
reinstated the provision that discharges
into National and historical monuments
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.^^J^ Regulations 20773
are not eligible for, waiver pf Federal •
review, in light of the special Federal
interest in them.
We anticipate that existing Corps
nationwide permits will be used as a
basis for developing categories to
discharge eligible for waiver of Federal
review. Previous Federal agencies'
comments (or no comment) can also1 be
used in determining activities eligible,for
waiver of Federal peview. Where EPA
has .used.the advanced identification
procedure with the Corps or the State
under 40 CFR 230.80, or on its own
initiative under Section 404(c) (40 CFR
Part 231), the results of that process will
be used to determine those areas and
categories of discharge that should be,
and/or those that should not be,
considered for waiver of Federal review.
Categories of activities eligible for "
Waiver of Federal review, in a particular
State will be developed after
consultation with the Corps, FWS, and
NMFS. These categories will be
described in the State's submission for
program approval and therefore will be
subject to public comment. Activities for
which Federal review is waived are also
subject to annual review. If, at any time,
any of these.categories of activities are
deemed inappropriate for continued .
waiver, they can (and will) be ,
withdrawn from the waiver provision
and become subject to individual
review.
(Section 233.52: In response to
^comments, we have added a
requirement .that the State's draft annual
report to be made available for public -
inspection. . . .
The annual report is a mandatory, not
a discretionary, requirement for an
approved program. In response to
comment, we have added to the
information that shall be included in the
annual report the number of suspected
unauthorized activities reported to the ,
State and Jie nature of the State's action
on these reported activities; added that
the State shall report the .number of
violations identified as well as the
number and nature of enforcement
actions taken; and the number of permit
applications,received but not yet,
processed.
Contrary to comment on the annual.
reporting requirements, the regulation
does require the Director to respond, in
the final report, to the Regional
Administrator's comments and
questions about the draft report.
Section 233.53:'One commentor
suggested that program withdrawal
should be initiated only where a State's
•program, on the whole; has repeatedly
failed to, comply with the 'requirements
for an approvable program; This
comnientor suggested that continued '..
, problems ;j|-ith any one'.^theSbriteria
specified in*§ 233.53(b) (2) and (3) is not
sufficient grounds for program
withdrawal; We cannot concur with this
. suggestion. While we do agree that
.program withdrawal will not be taken
lightly and that program approval will
. not be withdrawn for minor reasons,
continued non-performance of any of the
criteria specified can be grounds for
initiating program withdrawal. Each of -
the criteria listed is a vital part of an
approved program and continued non-
performance of any of these would
result in a program that no longer fulfills
the requirements for an approved
program'.
These regulations provide that the
Administrator shall respond in writing
to a'ny petition to commence withdrawal
proceedings^ One commentor suggested
that this exceeded the public
involvement requirements. We believe .
'that such written response is
nonetheless good policy and publish the
rule as proposed.
Executive Order 12291
Since these rules are revisions which
provide regulatory relief by, for the most
part, increasing flexibility in State
program design and administralion, we
have determined that they are not a
major rule requiring a Regulatory Impact
Analysis under Executive Order 12291. -7
This rule has been reviewed'by the
Office of Management and Budget in
accordance with the requirements of
'Executive Order 12291; .
Regulatory Flexibility Act
.This final rule was .reviewed under
the Regulatory Flexibility Act of 1980,
Pub. L. 96-354, which requires
preparation of a regulatory flexibility
analysis for any rule which is likely to
have significant economic impact on a
•substantial number of small entities.
Since this revision to 40 CFR Part 233
will reduce paperwork, reporting
requirements and application
information requirements, this final rule
• will be beneficial to small entities. Thus,
no Regulatory Flexibility Analysis is _
needed.
Paperwork Reduction Act
The Office of Management and Budget
(OMB) has approved the information
collection requirements contained in this1
final rule under the provisions of the
Paperwork Reduction Act. 44, U.S.C.
3501 el seq. and has assigned OMB
control numbers: ; •-
2090-011. ; -
' 2090-012. •
' 2090-013. .'.-,".
- 2p9Ch-015.,
List of Subjects in 40 CFR Parts 232 and
233
Administrative practice and
procedure, Reporting and recordkeeping
requirements, Confidential business
information. Water pollution control, >
Indian lands, Intergovernmental
. relations, Water supply, Waterways,
Navigation, Penalties, Wetlands.
Dated: May 27.1988.
Lee M. .Thomas,
Administrator, Environmental Protection
Agency.
For the reasons set out in the
preamble, 40 CFR Part 232 is amended
as set forth below. ,
, 1. Part 232 is added to read as follows:
PART 232—404 PROGRAM
DEFINITIONS; EXEMPT ACTIVITIES
NOT REQUIRING 404 PERMITS
Sec. '-••"•
232.1 Purpose and scope of this part.
232.2 Definitions.
232.3 Activities not requiring permits.
"Authority: 33 U.S.C. 1344.
§232.1 Purpose and scope of this part
Part 232 contains definitions
applicable to the Section 404--program
for discharges of dredged or fill material.
These definitions apply to both the
Federally operated program and State
administered programs after program
approval. This part also describes those
activities which are exempted from
regulation. Regulations prescribing the
substantive environmental criteria for
issuance of Section 404 permits appear
' at 40 CFR Part 230; Regulations
establishing procedures to be followed
by the EPA in denying or restricting a
disposal site appear at 40 CFR Part 231.
Regulations containing the procedures
and policies-used by the Corps in
administering the 404 program appear at •
33 CFR Parts 320-330. Regulations
specifying the procedures EPA will
follow, and the criteria EPA will apply
in approving, monitoring, and
withdrawing approval of Section 404
State programs appear at 4b CFR Part '
233.
§232.2 Definitions.
(a) Administrator means the
Administrator of the Environmental
Protection Agency or an authorized
representative.1
(b) Application means a form for :
applying for a permit to discharge
dredged or fill material into waters of
the United States. ••',.•
(c) Approved program means a' State
•program-which has "been approved by
the,Regional Administrator under Part
233 of this chapter of which is deemed
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20774
Federal Register / Vol. 53, No. 108 / Monday, June 6, 1988 / Rules and Regulations
approved undor Section 404(h)(3). 33
U.S.C. 1344(h)(3).
(d) Best management practices
(BMPs) means schedules of activities,
prohibitions of practices, maintenance
procedures, and other management
practices to prevent or reduce the
pollution of waters of the United States
from discharges of dredged or fill
material. BMPs include methods,
measures, practices, or design and
performance standards which facilitate
compliance with the Section 404(b)(l)
Guidelines {40 CFR Part 230). effluent
limitations or prohibitions under Section
307(a), and applicable water quality
standards.
(e) Discharge of dredged material
means any addition of dredged material
into waters of the United Stales. The
term includes, without limitation, the
addition of dredged material to a
specified discharge site located in
waters of the United States and the
runoff or overflow from a contained
land or water disposal site. Discharges
of pollutants into waters of the United
States resulting from the onshore
subsequent processing of dredged
material that is extracted for any
commercial use (other than fill) are not
included within this term and are
subject to Section 402 of the Act even
though the extraction and deposit of
such material may require a permit from
the Corps or the State Section 404
program. The term does not include de
minimus, incidental soil movement
occurring during normal dredging
operations.
(f) Discharge of fill material means
the addition of fill material into waters
of the United States. The term generally
Includes, without limitation, the
following activities: Placement of fill
that is necessary to the construction of
any structure; the building of any
structure or impoundment requiring
rock, sand, dirt, or other materials for its
construction; site-development fills for
recreational, industrial, commercial,
residential, and other uses, causeways
or road fills; dams and dikes; artificial
islands; property protection and/or
reclamation devices such as riprap,
groins, seawalls, breakwaters, and
revetments; beach nourishment; levees;
fill for structures such as sewage
treatment facilities, intake and outfall
pipes associated with power plants and
subaqueous utility lines; and artificial
reefs,
(g) Dredged material means material
th«t is excavated or dredged from
waters of the United States.
(h) Effluent means dredged material
or fill material, including return flow
from confined sites.
(i) Fill material means any "pollutant"
which replaces portions of the "waters
of the United States" with dry land or
which changes the bottorn elevation of a
water body for,any purppse.
(j) General permit means a permit
authorizing a category of discharges of
dredged or fill material under the Act.
General permits are permits for
categories of discharge Which are
similar in nature, will cause only
minimal adverse environmental effects
when performed separately, and will
have only minimal cumulative adverse
effect on the environment.
(k) Owner or operator means the
owner or operator of any activity
subject to regulation under the 404
program.
(1) Permit means a written
authorization issued by an approved .
State to implement the requirements of
Part 233, or by the Corps under 33 CFR
Parts 320-330. When used in these
regulations, "permit" includes "general
permit" as well as individual permit.
(m) Person means an individual,
association, partnership, corporation,
municipality, State or Federal agency, or
an agent or employee thereof.,
(n) Regional Administrator means the
Regional Administrator of the
appropriate Regional Office of the
Environmental Protection Agency or the
authorized representative of the
Regional Administrator,
(o) Secretary means the Secretary of
the Army acting through the Chief of
Engineers.
(p) State regulated waters means
those waters of the United States in
which the Corps suspends the issuance
of Section 404 permits upon approval of
a State's Section 404 permit-program by
the Administrator under Section 404(h).
The program cannot be transferred for
those waters which are presently used,
or are susceptible to use in their natural
condition or by reasonable improvement
as a means to transport interstate or
foreign commerce shoreward to their
ordinary high water mark, including all
waters which are subject to the ebb and
flow of the tide shoreward to the high
tide line, including wetlands adjacent
thereto. All other waters of the United
States in a State with an approved , "
program shall be under jurisdiction of
the State program, and shall be.
identified in the program description as
required by Part 233.
(q) Waters of the United States
means: • '
(1) All waters which are currently
used, were used in the past, or may be
susceptible to us in interstate or foreign
commerce, including all waters which
are subject to the ebb and flow of the
tide. ,
(2) All interstate waters including
interstate wetlands.
(3) All other waters, such as intrastate
lakes, rivers, streams (including
intermittent streams), mudflats,
sandflats, wetlands, sloughs, prairie
potholes, wet meadows, playa lakes, or
natural ponds, the use, degradation, or
destruction of which would or could
affect interstate or foreign commerce
including any such waters:
(i) Which are or could be used by
interstate or foreign travelers for
recreational or other purposes; "or
((ii) From which fish or shellfish are or
could be taken and sold in interstate or
foreign commerce; or
(m) Which are used or Could be used
for industrial purposes by industries in
interstate commerce.
(4) All impoundments of waters
otherwise defined as waters of the
United States under this definition;
(5) Tributaries of waters identified in
paragraphs (g)(l)-(4) of this section;
(6) The territorial sea; and
(7) Wetlands adjacent to waters
(other than waters that are themselves
wetlands) identified in paragraphs
(q)(l)-(6) of this section.
Waste .treatment systems, including
treatment ponds or lagoons designed to
meet the requirements of the Act (other
than cooling ponds as defined in 40 CFR
123.11(m) which also meet the criteria of
this definition) are not waters of the
United States.
(r) Wetlands means those areas that
are inundated or saturated by surface or
ground water at a frequency and '
duration sufficient to support, and that
under normal circumstances do support,
a prevalence of vegetation typically
adapted for life in saturated soil
conditions. Wetlands generally include
swamps, marshes, bogs, and similar
areas.
§ 232.3 Activities not requiring permits.
Except as specified in paragraphs (a)
and (b) of this section, any discharge of
dredged or fill material that may result
from any of the activities described in
paragraph (c) of this section is'not
prohibited by or otherwise subject to
regulation under this Part. s
(a) If any discharge of dredged or fill
material resulting from the activities
listed in paragraph (c) of this section
contains any toxic polutant listed under
Section 307 of the Act, such discharge
shall be subject to any applicable toxic
effluent standard or prohibition, and
shall require a Section 404 permit.
(b) Any discharge of dredged or fill
material into waters of the United States
incidental to any of the activities
identified in paragraph (c) of this section
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IL±0ŁLI±^^ 20775
must have a permit if it is part of an
activity whose purpose, is to convert an
area of the waters of the United 'States
into a use to which it was net-previously
subject, where the flow or circulation of
waters of the United States may be
impaired or the reach of such waters '
reduged. Where the proposed discharge
. will result in significant'discemable
alterations to flow or circulation, the
presumption is that flow or circulation
may be impaired by such alteration.
[Note.—For example, a permit will be
required for the conversion of a cypress
swamp to some other use or the conversion of
a wetland from silvicultural to agricultural
use when there is .a discharge of dredged or
, fill material into waters of the United States
in conjunction vs iih constuction of d&es,
drainage ditches or other works or structures
used to effect such;conversion. A conversion
of Section 404 wetland to a non-wetland is a
change in use of an area of waters of the U.S.
A discharge which elevates the bottom of
waters of the United States without
converting it to dry land does not thereby :
reduce the reach of, but may alter the flow or
circulation of, waters of the United States.]
(c) The following activities are exempt
from Section 404 permit requirements;
• except as specified in paragraphs (a)
and (b} of this section:-
(l)'(i) Normal farming, silviculture and
ranching activities such as plowing,
seeding, cultivating, minor drainage, and
harvesting for the production of food,
fiber, and forest products, or upland soil,
and water conservation practices, as
defined in paragraph (d) of this section
. (»)(A) To fall under this exemption,
the activities specified in paragraph
(c)(l) of this'section must be part of an
established (i.e., ongongj-farming,
silviculture, or ranching operation, and
must be in accordance with definitions
in paragraph (d) of this section.
Activities on areas lying fallow as part
of a conventional rotational cycle are
part of an established operation.
- (B) Activities which bring an area into
farming, silviculture or ranching use are
not part of an established operation. An
operation ceases to be established when
the area in which it was conducted has
been converted to another use or has
lain idle so long that modifications to
the hydrological regime are necessary to
resume opera'ion. If an activity takes
place outside the waters of the United
States, or if it does not involve a \
discharge, it doRS not need a Section 404
permit whether or not it was part of an
established farming, silviculture or
ranching operation.
(2) Maintenance, including emergency
reconstruction of recently damaged •
narts, of currently serviceable structures
such as dikes, dams, levees, groins,
riprap breakwaters, causeways, bridge
abutme'nts or approaches, and
transfortatioh striiMiref; Maintenance
does not include any modification that
changes the character, scope, or size of
the original fill design. Emergency
reconstruction must occur within a
•reasonable period of time after damage
occurs in order to qualify for this
exemption.
• (3) Construction or maintenance of
farm or stock ponds or irrigation ditches
or the maintenance (but not
, construction] of drainage ditches.
Discharge associated with siphons,
pumps, headgates, wingwalls, wiers,
diversion structures, and such other
facilities as are appurtenant and
functionally related to irrigation ditches
are included in this exemption.
(4) Construction of temporary
sedimentation basins on a construction
site which does not include placement of
fill material into waters of the United
States. The term "construction site"
refers to any site involving the erection
of buildings, roads, and other discrete
structures and the installation of support
facilities necessary for construction and
utilization of such structures. The term
• also includes .any other land areas
which involve land-disturbing
excavation activities, including
quarrying or other mining activities, •
where an increase in the runoff of
sediment is controlled through the use of
temporary sedimentation basins.
(5) Any activity with respect to which
a State has an approved program under
Section 208(b](4) of the Act which meets
the requirements of Section 208(b)(4)fB)
and (C). " '
(6) Construction or maintenance of
farm roads, forest roads, or temporary
roads for moving mining equipment,
where such roads are constructed and
maintained in accordance with best
management practices (BMPs) to assure
that flow and circulation patterns and
chemical and biological characteristi 3
of waters of the United States are not"
impaired, that the reach of the waters of
the United States is not reduced, and
that any adverse effect on the aquatic
environment will be otherwise
minimized. The BMPs which must be
applied to satisfy this provision include
the following baseline provisions:
(i) Permanent roads (for farming or
forestry activities), temporary access
roads (for mining, forestry, or farm
purposes) and skid trails (for losing) in
waters of the United States shall be held
to the minimum feasible number, width,
and total length consistent with the
purpose of specific farming, silvicultural
or mining operations, and local-
topographic and climatic conditions;
• (ii) All roads, temporary or •'
permanent, shall be located sufficiently
. far from streams or other water bodies
(except for portions of such roads which
must cross water bodies) to minimize
discharges of dredged or fill material
into waters of the United States;
(iii) The road fill shall be bridged,
culverted, or otherwise designed to •
prevent the restriction of expected-flood
flows;
'. (iv) The fill shall be properly
stabilized and maintained to prevent
erosion during and following
construction; .
(v) Discharges of dredged or fill
material into waters of the United States
to construct a road fill shall be made in
a manner that minimizes the
encroachment of trucks, tractors,
bulldozers, or other heavy equipment "
within the waters pf the United States
(inpluding adjacent wetlands) that lie
outside the lateral boundaries of the fill
itself;
(yi) In designing, constructing, and
maintaining roads, vegetative
disturbance in the waters of the United
States shall be kept to a minimum;
(vii) The design, construction and
maintenance of the road crossing shall
not disrupt the migration or other
movement of those species of aquatic
life inhabiting the water body;
(v}ii) Borrow material shall be taken
from upland sources whenever feasible;
(ix) The discharge shall not take, or
jeopardize the continued existence of, a
threatened or endangered species as
defined under the Endangered Species
. Act, or adversely modify or destroy the
critical habitat of such species;
(x) Discharges into breeding and
nesting areas for migratory waterfowl,
spawning areas, and wetlands shall be
avoided if practical alternatives exist;
. (xi) The discharge shall not be located
in the proximity of a public water supply
intake; , .
(xii) The discharge shall not occur in .
areas of concentrated shellfish
production;
(xiii) The discharge shall not occur in
a component of the National Wild and
Scenic River System;
(xiv) The discharge of material shall
consist of suitable material free from
toxic pollutants in toxic amounts; and
(XV) All temporary fills shall be -
removed in their entirety and the area
restored to its original elevation.
(d) For purpose of paragraph (c)(l) of
this section, cultivating, harvesting,
minor drainage, plowing, and seeding
are defined as follows:
(1) Cultivating means physical
methods of soil treatment employed ' '
.within established farming, ranching
and silviculture lands on farm, ranch, or
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20776
6- 1988 / Rules and Regulations
forest crops to aid and improve their
growth, quality, or yield.
(2) Harvesting means physical
measures employed directly upon farm,
forest, or ranch crops within established
agricultural and silvicultural lands to
bring about their removal from farm,
forest, or ranch land, but does not
Include the construction of farm, forest,
or ranch roads.
(3)(i) Minor drainage means:
(A) The discharge of dredged or fill
material incidental to connecting upland
drainage facilities to waters of the
United States, adequate to effect the
removal of excess soil moisture from
upland croplands. Construction and
maintenance of upland (dryland)
facilities, such as ditching and tiling,
incidental to the planting, cultivating,
protecting, or harvesting of crops,
involve no discharge of dredged or fill
material into waters of the United
States, and as such never require a
Section 404 permit;
(B) The discharge of dredged or fill
material for the purpose of installing
ditching or other water control facilities
Incidental to planting, cultivating,
protecting, or harvesting of rice,
cranberries or other wetland crop
species, where these activities and the
discharge occur in waters of the United
States which are in established use for
such agricultural and silvicultural
wetland crop production;
(C) The discharge of dredged or fill
material for the purpose of manipulating
the water levels of, or regulating the
flow or distribution of water within,
existing impoundments which have been
constructed in accordance with
applicable requirements of the Act, and
which are in established use for the
production or rice, cranberries, or other
wetland crop species.
[Note.—The provisions of paragraphs
{d){3J(i) (B) and (C) of this section apply to
areas that are In established use exclusively
for wetland crop production as well as areas
in established use for conventional wetland/
non-welland crop rotation (e.g., the rotations
of rice and soybeans) where such rotation
results in the cyclical or intermittent
temporary dewalering of such areas.]
(D) The discharge of dredged or fill
material incidental to the emergency
removal of sandbars, gravel bars, or
other similar blockages which are
formed during flood flows or other
events, where such blockages close or
constrict previously existing
drainageways and, if not promptly
removed, would result in damage to or
loss of existing crops or would impair or
prevent the plowing, seeding, harvesting
or cultivating of crops on land in
established use for crop production.
Such removal does not include enlarging
or extending the dimensions of, or
changing the bottom elevations of, the
affected drainageway as it existed prior
to the formation of the blockage.
Removal must be accomplished within
one year after such blockages are
discovered in order to be eligible for
exemption.
(ii) Minor drainage in Waters of the
United States is limited to drainage
within areas that are part of an
established farming or silviculture
operation. It does not include drainage
associated with the immediate or
gradual conversion of a \yetland to,a
non-wetland (e.g., wetland species to
upland species not typically adequate to
life in saturated soil conditions), or
conversion from one wetland use to
another (for example, silviculture to
farming).
In addition, minor drainage does not
include the construction of any canal,
ditch, dike or other waterway or
structure which drains or otherwise
significantly modifies a stream, lake,
swamp, bog or any other wetland or
aquatic area constituting waters of the
United States. Any discharge of dredged
or fill material into the waters of the
United States incidental to the
construction of any such structure or
waterway requires a permit.
(4) Plowing means all forms of
primary tillage, including rholdboard,
chisel, or wide-blade plowing, discing,
harrowing, and similar physical means
used on farm, forest or ranch land for
the breaking up, cutting, turning over, or
stirring of soil to prepare it for the,
planting of crops. Plowing does not
include the redistribution of soil, rock,
sand, or other surficial materials in a
manner which changes any area of the
waters of the United States to dryland.
For example, the redistribution of
surface materials by blading, grading, or
other means to fill in wetland areas is ,
not plowing. Rock crushing activities
which result in the loss of natural
drainage characteristics, the reduction
of water storage and recharge
capabilities, or the overburden of
natural water filtration capacities do not
constitute plowing. Plowing, as
described above, will never involve a
discharge of dredged or fill material.
(5) Seeding means the sowing of seed
and placement of seedlings to produce
farm, ranch, or forest crops and includes
the placement of soil beds,for seeds or
seedlings on established farm and forest
lands. . ,
(e) Federal projects which qualify
under the criteria contained in Section
404(r) of the Act are exempt from
Section 404 permit requirements, but
may be subject to other State or Federal
requirements.
2. Authority citation for Part ".33
continues to read as follows:
Authority: 33 U.S.C. 1344.
3. Part 233 is amended by revising.
Subparts A, B, C, E, and F and by
redesignating Subpart D as G and the
section number is changed from "233.42"
to "233.60" and by adding a new
Subpart D to read as follows:
PART 233-404 STATE PROGRAM
REGULATIONS
Subpart A—General
Sec. • ,
233.1. Purpose and scope.
233.2 Definitions.
233.3 Confidentiality of information.
233.4 Conflict of interest.
Subpart B—Program Approval
233.10 Elements of a program submission.
233.11 Program description.
233.12 Attorney General's statement.
233.13 Memorandum of Agreement with
Regional Administrator.
233.14 Memorandum of Agreement with the
Secretary.
233.15 Procedures for approving State
programs.
233.16 Procedures for revision of State
programs.
Subpart C—Permit Requirements
233.20 Prohibitions. , '
233.21 General permits.
233.22 Emergency permits.
233.23 Permit conditions.
Subpart D—Program Operation
233.30 Application for a permit.
233.31 Coordination requirements.
233.32 Public notice.
233.33 Public hearing.
233.34 Making a decision on the permit
application.
233.35 Issuance and effective date of permit.
233.36 Modification, suspension or
revocation of permits.
233.37 Signatures on permit applications
and reports.
233.38 Continuation of expiring permits.
Subpart E—Compliance Evaluation and
Enforcement .
233.40 Requirements for compliance
evaluation programs. •
233.41 Requirements for enforcement
authority.
Subpart F—Federal Oversight
233.50 Review of and objection to State
permits.
233.51 Waiver of review.
233.52 Program reporting.
233.53 Withdrawal of program approval.
Subpart A—General
§ 233.1 Purpose and scope.
(a) This Part specifies the procedures
EPA will follow, and the criteria EPA
I/
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20777
will apply, in approving, reviewing, and ,
withdrawing approval of State programs
under Section 404 of the Act.
(b) Except as provided in § 232.3, the
State program miist regulate all
discharges of dredged or fill material
into State regulated waters. Partial State
programs are not approvable under
Section404. A State's decision'not to
assume existing Corps general permits
does not constitute a partial program.
The discharges previously authorized by
general permit will be regulated by State
. individual permits. However, in many
pases States will lack authority to
regulate activities on Indian lands. This ;'
lack of authority does not impair a
State's ability to obtain full program
approval in accordance with this Part,
i.e., inability of a State to regulate
activities on Indian lands does not
constitute a partial program. The
Secretary will administer the program
on Indian lands if the State does not
have authprity to regulate activities on
Indian lands.
(c) Nothing in this Part precludes a
State from adopting or enforcing
requirements which are more stringent ,
or from operating a program with
greater scope, than required under this.
Part. Where an approved State program
has a greater scope than required by
Federal law, the additional coverage is
not part of the Federally, approved
program and is not subject to Federal
oversight or enforcement.
Note.;—State assumption of the Section.404
program is limited to certain waters, as
provided in section 404(g)'(l). The Federal
program operated by the Corps of Engineers ,
continues to apply to the remaining waters in
the State even after program approval.
However, this does not restrict States from
regulating discharges of dredged or fill
.material into those waters over which the
Secretary retains Section 4O4 jurisdiction.
(d) Any approved State Program shall,
at-all times, be conducted in accordance
with their'- > iirements of the Act and,of
this Part. VVhile States may impose-more
stringent'requirements, they may not
impose any less stringent requirements
for any purpose. ,. '
§233.2 Definitions.
The definitions in Parts 230 and 232 as
well as the following definitions apply
to this Part.
(a) Act means the Clean Water Act
(33 ILS.C. 1251 et seq.).
,(b) Corps means the U.S. Army Corps
of Engineers.
(c) FVVS means the U.S. Fish and :
Wildlife Service. ,
(d) Interstate agency means an agency
of two or more States established by or
under an agreement or compact
approved by the Congress, or any other
agency-of two or more States having
substantial powers or duties pertaining
to the control of pollution. *" ,
(e) NMFS means the National Marine
Fisheries Service.
• (f) State means any of the 50 States,
the District of Columbia, Guam, the
Commonwealth of Puerto Rico, the
Virgin Islands, American Samoa, the
Commonwealth of the Northern Mariana
Islands, and the Trust Territory of the '
'Pacific Islands. For purposes of this
regulation, the word State also includes
any interstate agency requesting
program approval or administering an
approved program.-
(g) State Director [Director] means the
chief administrative officer of any State
or interstate agency operating an
approved programmer the delegated
representative of the Director. If
responsibility is divided among two or
more State or interstate agencies,'
Director means the chief administrative
officer of the State or interstate agency
authorized to perform the particular
procedure or function to which reference
is made. • '"•'".
(h) State 404 program or State , "
program; means a State program which
has been approved by EPA under
Section 404 of the Act to regulate the
discharge of dredged or fill material into
certain-waters as defined in § 232.2(p).
§ 233.3 Confidentiality of information.
.; (a) Any information submitted to EPA
pursuant to these regulations may be
claimed as confidential by the submitter
at the time of submittal and a final
determination as to that claim will be
made in accordance with the procedures
of 40 CFR Part 2 and paragraph (c) of
•this section.
(b) Any information submitted to the
Director may be claimed as confidential
in accordance with State law, subject to
paragraphs {a} and (c) of this section.
(c) Claims of confidentiality for the '
following information will be denied:
(1) The name, and address of any
permit applicant or permittee,
(2) Effluent data, .
(3) Permit application, and
(4) Issued permit.
§ 233.4 Conflict of Interest
\
Any public officer or employee who
has a'direct personal or pecuniary
interest in any matter that is subject to •
decision by the agency shall make
, known such interest in the'official
records of the agency and shall refrain
from participating in any manner in such
decision. :
Subpart B—Program Approval
§ 233.10 Elements of a program
submission.
Any State that seeks to administer a
404 program under this Part shall submit
to the Regional Administrator at least
three-copies .of the following:
(a] A letter from the Governor of the
State requesting program approval.
(b] A complete program description,,
as set forth in § 233.11.
(c) An Attorney General's statement,
as. set forth in § 233.12. ,,
(d) A Memorandum of Agreement
with the Regional Administrator, as set
forth in § 233.13.
(e) A Memorandum of Agreement
with the Secretary, as set forth in
§ 233.14.
(f) Copies of all applicable State
statutes and regulations, including those
governing applicable State
administrative procedures,
§233.11 Program description.
The program description as required
under § 233.10 shall include:
(a) A description of the scope and
structure of the State's program. The
description should include extent.of
State's jurisdiction, scope of activities
regulated, anticipated coordination,
scope of permit exemptions if any, and
permit review criteria;
(b) A description of the State's
. permitting, administrative, judicial
review, and other applicable
procedures; „
(c) A description of the basic
organization and structure of the State
agency (agencies) which will have
responsibility for administering the
program. If more than one State agency
is responsible for the administration of
the program; the description shall
address the responsibilities of each
agency and how the agencies intend to
.coordinate administration and
evaluation'of the program;
. (d) A description of the funding and
manpower which will be available for
program administration; . ' • •
(e) An estimate of the ant:.cipated
workload, e.g., number of dischargei.
. (f) Copies of permit application forms,
permit forms, and reporting forms;
(g) A description of the State's
compliance evaluation and enforcement
programs, including a description of how
-the State will coordinate its enforcement
strategy with that of the Corps and EPA;
(h) A description of the waters of the
United States within a State over which
the State assumes jurisdiction under the
approved program; a description of the
waters of the United States within a
State over which the Secretary retains
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jurisdiction subsequent to program
approval; and a comparison of the State
and Federal definitions of wetlands.
Noto.—Stales should obtain from the
Secretary an identification of {hose waters of
the U.S. within the State over which the
Corps retains authority under Section 404(g)
of the Act.
(i) A description of the specific best
management practices proposed to be
used to satisfy the exemption provisions
of Section 404(f){l)(E) of the Act for
construction or maintenance of farm
roads, forest roads, or temporary roads
for moving mining equipment.
§ 233.12 Attorney General's statement
(a) Any State that seeks to administer
a program under this Part shall submit a
statement from the State Attorney
General (or the attorney for those State
or interstate agencies which have
independence legal counsel), that the
laws and regulations of the State, or an
interstate compact, provide adequate
authority to carry out the program and
meet the applicable requirements of this
Part. This statement shall cite specific
Statutes and administrative regulations
which are lawfully adopted at the time
the statement is signed and which shall
be fully effective by the time the
program is approved, and, where
appropriate, judicial decisions which
demonstrate adequate authority. The
attorney signing the statement required
by this section must have authority to
represent the State agency in court on
all matters pertaining to the State
program.
(b) If a Stale seeks approval of a
program covering activities on Indian
lands, the statement shall contain an
analysis of the State's authority over
such activities.
(c) The State Attorney General's
statement shall contain a legal analysis
of the effect of State law regarding the
prohibition on taking private property
without just compensation on the
successful implementation of the State's
program.
(d) In those States where more than
one agency has responsibility for
administering the State program, the
statement must include certification that
each agency has full authority to
administer the program within its
category of jurisdiction and that the
State, as a whole, has full authority to
administer a complete State Section 404
program.
§ 233.13 Memorandum of Agreement with
Regional Administrator.
(a) Any State that seeks to administer
a program under this Part shall submit a
Memorandum of Agreement executed by
the Director and the Regional
Administrator. The Memorandum of
Agreement shall become effective upon
approval of the State program. When
more than one agency within a State has
responsibility for administering the
State program. Directors of each of the
responsible State agencies shall be
.parties to the Memorandum of
Agreement.
(b) The Memorandum of Agreement
shall set out the State and Federal
responsibilities for program
administration and enforcement. These
shall include, but not be limited to:
(1) Provisions specifying classes and
categories of permit applications for
which EPA will waive Federal review
(as specified in § 233.51).
(2) Provisions specifying the frequency
and content of reports, documents and
other information which the State may
be required to submit to EPA in addition
to the annual report, as well as a
provision establishing the submission
date for the annual report, The State
shall also allow EPA routinely to'review
State records, reports and files relevant
to the administration and enforcement
of the approved program.
(3) Provisions addressing EPA and
State roles and coordination with
respect to compliance monitoring and
enforcement activities.
(4) Provisions addressing modification
of the Memorandum of Agreement.
§ 233.14 Memorandum of Agreement with
the Secretary.
(a) Before a State program is approved
under this Part, the Director shall enter
into a Memorandum of Agreement with
the Secretary. When more than one
agency within a State has responsibility
for administering the State, program,
Directors of each of the responsible
agencies shall.be parties of the
Memorandum of Agreement.
(b) The Memorandum of Agreement
shall include:
(1) A description of waters of the
United States within the State over
which the Secretary retains jurisdiction,
as identified by the Secretary.
(2) Procedures whereby the Secretary
will, upon program approval, transfer to
the State pending 404 permit
applications for discharges in State
regulated waters and other relevant
information not already in the
possession of the Director.
Note.—Where a State permit program
includes coverage of those traditionally
navigable waters in which only the Secretary
may issue Section 404 permits, the State is
encouraged to establish in this MOA
procedures for joint processing of Federal
and State permits, including jd.nt public
notices and public hearings
(3) An identification of all general
permits issued by the Secretary the
terms and conditions of which the State
intends to administer and enforce upon
receiving approval of its program, and a
plan for transferring responsibility for
these general permits to the State,
including procedures for the prompt
transmission from the Secretary to the
Director of relevant information not
already in the possession of the
Director, including support files for
permit issuance, compliance reports and
records of enforcement actions.
§ 233.15 Procedures for approving State
programs.
(a) The 120 day statutory review
period shall commence on the date of
receipt of a complete State program
submission as set out in § 233.10 of this
Part. EPA shall determine whether the
submission is complete within 30 days
of receipt of the submission and shall
notify the State of its determination. If
EPA finds that a State's submission is
incomplete, the statutory review period
shall not begin until all the necessary
information is received by EPA.
(b) If EPA determines the State
significantly changes its submission
during the review period, the statutory
review period shall begin again upon the
receipt of a revised submission.
(c) The State and EPA may extend the
statutory review period-by agreement.
(d) Within 10 days of receipt of a
complete State Section 404 program
submission, the Regional Administrator
shall provide copies of the State's
submission to the Corps, FWS, and
NMFS (both Headquarters and
appropriate Regional organizations.)
(e) After determining that a State
program submission .Is complete, the
Regional Administrator shall publish
notice of the State's application in the
Federal Register and in enough of the
largest newspapers in the State to
attract statewide attention. The
Regional Administrator shall also mail
notice to persons known to be interested
in such matters. Existing State, EPA,
Corps, FWS, and NMFS mailing lists
shall be used as a basis for this mailing.
However, failure to mail all such notices
shall not be grounds for invalidating
'approval (or disapproval) 6f an
otherwise acceptable (or unacceptable)
program. This notice shall:
(1) Provide for a comment period of
not less than 45 days during which
interested members of the .public may
express their views on the State
program.
(2) Provide for a public hearing within
the State to be held not less than 30
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No.108 / Monday, June 6, 1988 / Rules and Regulations 20779
Tiinnniiiiiiimiiimi \\i\m\ mi i .in •m.n I~-,.I'.-IM,-I-, : *-* • **\*f i \j
days after notice of hearing is published
in the Federal Register;
(3) Indicate where and when the
State's submission may be reviewed by
the public;
(4) Indicate whom an interested
member of the public with questions
. should,contact; and
(5) Briefly outline the fundamental
aspects of the State's proposed program
and the process for EPA review and
decision. . . ,
(f) Within 90 days of EPA's receipt of
a complete program submission, the
Corps, FWSi and NMFS shall submit to
• EPA any comments on the State's
program.1
(g) Within 120 days of receipt of a
complete program submission (unless an
extension is agreed to by the State), the
Regional Administrator shall approve or
disapprove the program based'on „
whether the State's program fulfills the
requirements of this Part and the Act,
taking intp consideration all comments •
received. The Regional Administrator
shall prepare a responsiveness summary
of significant comments received and his
.response to these comments. The
Regional Administrator shall respond
individually to, comments received from
the Corps, FWS, and NMFS. . •
(h) If the Regional Administrator
approves the State's Section 404
program, he shall notify the State and
the Secretary of the decision and
* publish notice in the Federal Register.
Transfer of the program to the State
shall not be considered effective until
such notice appears in the Federal
Register. The Secretary shall suspend
the issuance by the Corps of Section 404
permits in State regulated waters on
such effective date.
(i) If the Regional Administrator
disapproves the State's program based
on the State not meeting the
requirements of the Act and this Part,
the Regional Administrator shall notify
the State of the reasons for the
disapproval and of any revisions or
modifications to the State's program •
which are necessary to obtain approval.
If the State fesubmits a program
submission remedying the identified -
problem areas, the approval procedure
and statutory review period shall begin
upon receipt.of thb.revised submission.
§ 233,16 Procedures for revision of State
programs.
(a) The State shall keep the Regional
Administrator fully informed of any
proposed,or actual changes to the
State's statutory or regulatory authority
or any other modifications which are •
significant to administration of the
program.
(b) Any approved program which
requires revision because of'a
modification to this Part or to, any other
applicable Federal statute or regulation
shall be revised within one year of the
date of promulgation of such regulation,
except that if a State must amend or
enact a statute in order to make the
required revision, the revision shall take
place within .two years.
fc) States with approved programs
shall notify the Regional Administrator
whenever they propose to transfer all or
part of any program from the approved
State agency to any other State agency,
The new agency is not authorized to
administer the program until approved
by the Regional Administrator under
paragraph (d) of this section.
(d) Approval of revision •of a State
program shall be accomplished as
follows:
(1) The Director shall submit a
modified program description or other;
documents which the Regional
Administrator determines to be
necessary to evaluate whether the
program complies with the requirements
of the Act and this Part.
(Z) Notice of approval of program
changes which are not substantial
revisions may be given by letter from
the Regional Administrator to the
Governor or his designee.
(3J Whenever the Regional
Administrator determines that the
: proposed revision is substantial, he shall
publish and circulate notice to those
persons known to be interested in such
matters, provide opportunity for a public
hearing, and consult with the Corps,
FWS, and NMFS,The Regional
Administrator shall approve or
disapprove program revisions based on
whether the program fulfills the
« requirements of the Act and this Part,
and shall publish notice of his decision
in the Federal Register. For purposes of
this paragraph, substantial revisions
include, but are.not,limited to, revisions
that affect the area 'of jurisdiction, scope
of activities regulated, criteria for
review of permits, public participation,
or enforcement capability. - •
(4) Substantial program changes shall
become effective upon approval by the
Regional Administrator and publication
of notice in the Federal Register.
(e) Whenever the Regional
Administrator has reason to believe that
circumstances have changed with
respect to a State's program, he may
request and the State shall provide a
supplemental Attorney General's
statement, program description, or such
other documents or information'as are
necessary to evaluate the program's
compliance with the requirements of the
Act-and this Part. " ,
Subpart C—Permit Requirements
§ 233.20 Prohibitions.
No permit shall be issued by the
Director in the following circumstances:
(a) When permit does not comply with
the requirements of the Act or
regulations thereunder, including the
Section 404(b)(l) Guidelines (Part 230 of
this Chapter).
(b) When the Regional Administrator
has objected to issuance of the permit
under § 233.50 and the objection has not
been resolved. -^
(c) When the proposed discharges
would be in an area which has been
prohibited, withdrawn, or denied as a
disposal site by the Administrator under
Section 404(c) of the Act, or when the
-discharge would fail to_ comply with a
restriction imposed thereunder.
(d) If the Secretary determines, after
consultation with the Secretary of the
Department in which the Coast Guard is
operating, that anchorage and
navigation of any of the navigable
waters would be substantially impaired.
§ 233.21 General permits.
(a) Under Section 404(h)(5)bf the Act,
States may, after program approval,
administer and enforce general permits
previously issued by the Secretary in
State regulated Waters.
Note: If States intend to assume existing
general permits, they must be able to ensure '
compliance with existing permit conditions '
an any reporting monitoring, or .
prenotification requirements.
(b) The Director may issue a general
permit for categories of similar activities
if he determines that the regulated
'activities willcause only.minimal
adverse environmental effects when
performed separately and will have only
, minimal cumulative adverse effects-on
the environment. Any general permit
issued shall be in'compliance with the
•Section 404(b)[l) Guidelines. •
(c) In addition to the conditions
specified in § 233.23, each general
permit shall contain:
(1) A specific description of the
type(s) of activities which are
authorized, including limitations for any
single operation. The description shall
be detailed enough to ensure that the
requirements of paragraph (b) of this
section are met. (This paragraph
.supercedes § 233.23(c)(l) for general
permits;) '. • ' •• . •
(2) A precise description of the
geographic area to which the general
permit applies,Including limitations on
the type(s) of water where operations
may be conducted sufficient to ensure
that the requirements of paragraph (b) of
this section are met.
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Regulations
(dj Predischarge notification or other
reporting requirements may be required
by the Director on a permit-by-permit •
basis as appropriate to ensure that the
general permit will comply with the
requirement (section 404(e) of the Act)
that the regulated activities will cause
only minimal adverse environmental
effects when performed separately and
will have only minimal cumulative
adverse effects on the environment.
(e) The Director may, without
revoking the general permit, require any
person authorized under a general
permit to apply for an individual permit.
This discretionary authority will be
based on concerns for the aquatic
environment including compliance with
paragraph (b) of this section and the
4Q4(b)(l) Guidelines (40 CFR Part 230.)
(1) This provision in no way affects
«Ihe legality of activities undertaken
pursuant to the general permit prior to
notification by the Director of such
requirement.
(2) Once the Director notifies the
discharger of his decision to exercise
discretionary authority to require an
Individual permit, the discharger's
activity is no longer authorized by the
general permit.
§ 233.22 Emergency permits.
(a) Notwithstanding any other
provision of this Part, the Director may
issue a temporary emergency permit for
a discharge of dredged or fill material if
unacceptable harm to life or severe loss
of physical property is likely to occur
before a permit could be issued or
modified under procedures normally
required.
(b) Emergency permits shall
incorporate, to the extent possible and
not inconsistent with the emergency
situation, all applicable requirements of
§ 233.23.
(1) Any emergency permit shall be
limited to the duration of time (typically
no more lhaii 90 d^jS] required to
complete the authorized emergency
action.
(2) The emergency permit shall have a
condition requiring appropriate
restoration of the site.
(c) The emergency permit may be
terminated at any time without process
{§ 233.38) if the Director determines that
termination is necessary to protect
human health or the environment.
(d) The Director shall consult in an
expeditious manner, such as by
telephone, with the Regional
Administrator, the Corps, FWS, and
NMFS about issuance of an emergency
permit.
(e) The emergency permit may be oral
or written. If oral, it must be followed
within Ł days by a written emergency
permit. A copy of the written permit
shall be sent to the Regional
Administrator.
(f) Notice of the emergency permit
shall be published and public comments
solicited in accordance with § 233.32 as
soon as possible but no later than 10
days after the issuance date.
§ 233.23 Permit conditions.
(a) For each permit the Director shall
establish conditions which assure
compliance with all applicable statutory
and regulatory requirements, including
the 404{b)(l) Guidelines, applicable
Section 303 water quality standards, and
applicable Section 307 effluent
standards and prohibitions.
(b) Section 404 permits shall be
effective for a fixed term not to exceed 5
years.
(c) Each 404 permit shall include
conditions meeting or implementing the
following requirements:
(1) A specific identification and
complete description of the authorized
activity including name and address of'
permittee, location and purpose of
discharge, type and quantity of material
to be discharged. (This subsection is not
applicable to general permits).
(2) Only the activities specifically
described in the permit are authorized.
(3) The permittee shall comply with all
conditions of the permit even if that
requires halting or reducing the
permitted activity to maintain
compliance. Any permit violation
constitutes a violation of the Act as well
as of State statute and/or regulation.
(4) The permittee shall take all
reasonable steps to minimize or prevent
any discharge in violation of this permit.
(5) The permittee shall inform the
Director of any expected or known
actual noncompliance.
(6) The permittee" shall provide such
information to the Director, as the
Director requests, to determine
compliance status, or whether cause
exists for permit modification,
revocation or termination.
(7) Monitoring, reporting and
recordkeeping requirements as needed
to safeguard the aquatic environment.
(Such requirements will be determined
on a case-by-case basis, but at a
minimum shall include monitoring and
reporting of any expected leachates,
reporting of noncompliance, planned
changes or transfer of the permit.)
(8) Inspection and entry. The
permittee shall allow the Director, or his
authorized representative, upon
presentation of proper identification, at
reasonable times to:
(i) Enter upcjn the permittee's premises
where a regulated activity is located or
where records must be kept under the
.conditions of the permit,
(ii) Have access to and copy any
records that must be kept under the
conditions of the permit,
(iii) Inspect operations regulated or
required under the permit, and
(iv) Sample or monitor, for the -
purposes of assuring permit compliance
or as otherwise authorized by the Act,
any substances or parameters at any
location. '
(9) Conditions assuring that the
discharge will be conducted in a manner
which minimizes adverse impacts upon
the physical, chemical and biological
integrity of the waters of the United
States, such as requirements for
restoration or mitigation.
Subpart D—Program Operation
- § 233.30 Application for a permit,
(a) Except when an activity is
authorized by a general permit issued
pursuant to § 233.21 or is exempt from
the requirements to obtain a permit
under § 232.3, any person who proposes '
to discharge dredged or fill material into
State regulated waters shall complete,
sign and submit a permit application to
the Director. Persons proposing to
discharge dredged or fill materialunder
the authorization of a general permit
must comply with any reporting
requirements of the general permit.
(b) A complete application shall
include: x
(1) Name, address, telephone number
of the applicant and name(s) and
address(es) of adjoining property
owners. " , •
(2) A complete description of the
proposed activity including necessary
drawings, sketches or plans sufficient
for public notice (the applicant is not
generally expected to submit detailed
engineering plans and specifications);
the location, purpose and intended use
of the proposed activity; scheduling of
the activity; the location and dimensions
of adjacent structures; and a list of
authorizations required by other
Federal, interstate, State or local
agencies for the work, including all
approvals received or denials already
made.
(3) The application must include a
description of the type, composition,
source and quantity of the material to be
discharged, the method of discharge,
and the site and plans for disposal of the
dredged or fill material.
(4) A certification that all information
contained in the application is true and
accurate and acknowledging awareness
of penalties for submitting false
information. ,.
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No. 108 /Monday, June 6, 1988 / Rules and Regulations 20781
(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. f
- (c) In addition to the information
indicated in § 233.30(b), the applicant •
will be required to furnish such
additional information as the Director
deems appropriate to assist in the
evaluation of the application. Such
additional information may include
environmental data and information on
alternate methods and sites as may be
necessary for the .preparation of the
required environmental documentation.
(d) TKe level of detail shall be
reasonably commensurate with the type
and size of discharge, proximity to
critical areas, likelihood of long-lived
toxic chemical substances, and potential
level of environmental degradation.
Note: EPA encourages States to provide
permit applicants guidance regarding the-
level of detail of information and, '
documentation required under this
subsection. This guidance can be provided
either through the application form or on an
individual basis, EPA also encourages the
State to maintain a program to inform
potential applicants for permits of the
requirements of the State program and of the
steps required to obtain permits for activities
in State regulated waters.
§ 233.31 Coordination requirements.
[a) 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. If these
recommendations are not accepted by '
the Director, he shall notify the affected
State and the Regional Administrator
prior to permit issuance in writing, of his
failure to accept-these
recommendations, together with his
. reasons for so doing. The Regional
Administrator shall then have the time
provided for in § 23,3.50(d) to comment
upon, object to, or make
recommendations.
(b) State Section 404 permits shall be
coordinated with Federal and Federal-
State water related planning and review
processes.
§233.32 Public notice.
(a) Applicability.
(1) The Director shall give public
notice of the .following actions: '
(i) Receipt of a permit application.
(ii) Preparation of a draft general
permit.
(iii) Consideration of a major
modification to an issued permit.
(iv) Scheduling of a public hearing.
(v) Issuance of an emergency permit.
(2) Public notices may describe more
than one permit or action.
(b) Timing. ' ;
(1) The public notice shall provide a
• reasonable period of time/normally at
least 30 days', within which interested
parties may express their views
concerning the permit application.
(2)~ Public notice of a public hearing
shall be given at least 30 days before the
hearing.
(3) The Regional Administrator may
approve a program with shorter public
notice timing if the Regional
Administrator determines that sufficient'
public notice is provided for.
(c) The Director shall give public
notice by each of the following methods:
(1) By mailing a copy of the notice to
the following persons (any person
otherwise entitled to receive notice
under this paragraph may waive his
rights to receive notice for any classes
' or categories of permits):
(i) The applicant..
(ii) Any agency with jurisdiction over
the activity or the disposal site, whether
or not the agency issues a permit.
(iii) Owners of property adjoining the
property where the regulated activity
will occur.
(iv) All persons who have specifically
requested copies of public notices. (The
Director may update the mailing list
from time to time by requesting written
indication of continued interest from ,
those listed. The Director may delete
from the list the name of any person
who fails to respond to such a request.)
(y) Any State whose waters may be-
affected by the proposed discharge.
(2) In addition, by providing notice in
at least one other way (such as
advertisement in a newspaper of
sufficient circulation) reasonably
calculated to cover the area affected by
the activity. ' ,
(d) All public notices shall contain at
least the following information:.
(l>The name and address of the
applicant and, if different, the address
or location of the activity(ies) regulated
by the -permit.
. (2) The name, address, and telephone
number of a person to contact for further
information.
(3) A brief description of the comment
procedures and procedures to request a
public hearing, including deadlines.
(4) A brief description of the proposed
activity, its purpose and intended use, "
so as to'provide sufficient information
concerning the nature of the activity to
generate meaningful comments,
including a description of the type of
structures, if any, to be erected on fills,
and a description of the type.
composition and quantity of materials to
be discharged.
(5) Ajplan and elevation drawing
showing the general and specific site.
. location and character of all proposed
activities, including the size relationship
of the proposed structures, to the.size of
the impacted waterway and depth of
water in the area, -
(6) A paragraph describing the various
evaluation factors, including the '
404{b)(l) Guidelines or State-equivalent
criteria, on which decisions are based.
(7) Any other information which
would significantly assist interested
parties in evaluating the likely impact of
the proposed activity.
(e) Notice of public hearing shall also
contain the following information:
(1) Time, date, and place of hearing.
(2) Reference to the date of any
previous public notices relating to the
permit.
(3) Brief description of the nature and
purpose of the hearing.
§233.33 Public hearing.
(a) Any interested person may request
a public hearing during the public
comment period as specified in § 233.32.
Requests shall be in writing and shall
state the nature of the issues proposed
to be raised at the hearing.
(b) The Director shall hold a public
hearing whenever he determines there is
a significant degree of public interest in
a permit application 'or a draft general
permit, He may also hold a hearing, at_
his discretion, whenever he detejmines
a hearing may be useful to a decision on
the permit application.
(c) At a hearing, any person may
submit oral or-written statements or
data concerning the permit application
or draft general permit. The public
comment period shall automatically be
extended to the close of any public
hearing under this section. The presiding
officer may also extend the comment
period at the hearing.
(d) All public hearings shall be
reported verbatim. Copies of the record
of proceedings maybe purchased by
any person from the Director or the .
reporter of such hearing. A copy of the
transcript (or if none is prepared, a tape
of the proceedings) shall be made
available for public inspection at an
appropriate State office.
§ 233.34 Making a decision on the permit
application. . ' . .
(a) The Director will review all
applications for compliance with the
404(b)(l) Guidelines and/or equivalent
State environmental criteria as well as
any other applicable State laws or
regulations.
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(b) The Director shall consider all
comments received in response to the
public notice, and public hearing if a
hearing is held. All comments, as well as
the record of any public hearing, shall
be made part of the official record on
the application.
(c) After the Director has completed
his review of the application and
consideration of comments, the Director
will determine, in accordance with the
record and all applicable regulations,
whether or not the permit should be .
issued. No permit shall be issued by the
Director under the circumstances
described in § 233.20. The Director shall
prepare a written determination on each
application outlining his decision and
rationale for his decision. The
determination shall be dated, signed and
included in the official record prior to
final action on the application. The
official record shall be open to the
public.
§ 233.35 Issuance and effective date of
permit
(a) If the Regional Administrator
comments on a permit application or
draft general permit under § 233.50, the
Director shall follow the procedures
specified in that section in issuing the
permit,
(b) If the Regional Administrator does
not comment on a permit application or
draft general permit, the Director shall
make a final permit decision after the
close of the public comment period and
shall notify the applicant.
(1) If the decision is to issue a permit,
the permit becomes effective when it is
signed by the Director and the applicant.
(2) If the decision is to deny the
permit, the Director will notify the
applicant in writing of (hti reasonfs) for
denial.
§ 233.36 Modification, suspension or
revocation of permits.
(a) Gener ' The Director may
reevaluale the circumstances and
conditions of a permit either on his own
motion or at the request of the permittee
or of a third party and initiate action to
modify, suspend, or revoke a permit if
he determines that sufficient cause
exists. Among the factors to be
considered are:
(1) Permittee's noncompliance with
any of the terms or conditions of the
permit;
(2) Permittee's failure in the
application or during the permit
issuance process to disclose fully all
relevant facts or the permittee's
misrepresentation of any relevant facts
•it the time:
(3) Information that activities
authorized by a general permit are .
.1...
having more than minimal individual or
cumulative adverse effect on the
environment, or that the permitted
activities are more appropriately
regulated by individual permits;
(4) Circumstances relating to the
authorized activity have changed since
the permit was issued and justify
changed permit conditions Or temporary
or permanent cessation of any discharge
Controlled by the permit;
(5) Any significant information
relating to the activity authorized by the
permit if such information was not
available at the time the permit was
issued and would have justified the
imposition of different permit conditions
or denial at the time of issuance;
(6) Revisions to applicable statutory
or regulatory authority, including toxic
effluent standards or prohibitions or
water quality standards. •
1 [b] Limitations. Permit modifications
shall be in compliance with § 233.20.
(c) Procedures. (1) The Director shall
develop procedures to modify, suspend
or revoke permits if he determines cause
exists for such action (§ 233.36(a)). Such
procedures shall provide opportunity for
public comment {§ 233.32), coordination
with the Federal review agencies
(§ 233.50), and opportunity for public
hearing (§ 233.33) following notification
of the permittee. When permit
modification is proposed, only the
conditions subject to modification need
be reopened.
(2) Minor modification of permits. The
Director may, upon the consent of the
permittee, use abbreviated procedures
to modify a permit to make trie following
corrections or allowance for changes in
the permitted activity:
(ij Correct typographical errors;
(ii) Require more frequent monitoring
or reporting by permittee;
(iii) Allow for a change in ownership
or operational control of a project or
activity where the Director determines
that no other change in the permit is
necessary, provided that a written
agreement containing a specific date for
transfer of permit responsibility,
coverage, and liability between the
current and new permittees has been
submitted to the Director
(iv) Provide for minor modification of
project plans that do not significantly
change the character, scope, and/or
purpos'e of the project or result in
significant change in environmental
impact; ' ,
(v) Extend the term of a permit, so
long as the modification does not extend
the term of the permit beyond 5 years
from its original effective date and does
not result in any increase in the amount
of dredged or fill material allowed to be
discharged. :
§ 233.37 Signatures on permit applications
and reports.
The application and any required
reports must be signed by, the person •
who desires to undertake the proposed
activity or by that person's duly
authorized agent if accompanied by a
statement by that person designating the
agent. In either case, the signature of the
applicant or the agent will be ,
understood to be an affirmation that he
possesses or represents the person who
possesses the requisite property interest
to undertake the activity proposed in the
appli'cation.
§ 233.38 Continuation of expiring permits.
A Corps 404 permit does not continue
in force beyond its expiration date
under Federal law if, at that time, a
State is the permitting authority. States
authorized to administer the 404
Program may continue Corps or State-
issued permits until the effective date of
the new permits, if State law allows.
Otherwise, the discharge is being
conducted without a permit from the
time of expiration of the old permit to
the effective date of a new State-issued
permit, if any.
Subpart E—Compliance Evaluation
and Enforcement
§ 233.40 Requirements for compliance
evaluation programs.
(a) Irt.order to abate violations of the
permit program, the State shall maintain "
a program designed to identify persons
subject to regulation who have failed to
obtain a permit or to comply with permit
conditions.
(b) The Director and State officers
engaged in compliance evaluation, upon
presentation of proper identification,
shall have authority to enter any site or
premises subject to regulation or in
which records relevant to program
operation are kept in order to copy any
records, inspect, monitor or otherwise
investigate compliance with the S.tate
program.
(c) The State program shall provide
for inspections to be conducted, samples
to be taken and other information to be
gathered in a manner that will produce
evidence admissible in an enforcement
proceeding.
(d) The State shall maintain a program
for receiving and ensuring proper •
consideration of information submitted
by the public about violations.
§ 233.41 Requirements for enforcement
authority.
(a) Any State agency "administering a
program shall have'authority:
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20783
(1) To restrain immediately and ,
effectively any persoriirom engaging in '
any unauthorized .activity;
(2) To sue to enjoin any threatened or
continuing violation of any program
requirement;
(3) To assess or sue to recover civil
penalties and to seek criminal remedies, .
, as follows:
(i) The agency shall have the authority
to assess or recover civil penalties for
discharg > of dredged or fill material
without a required permit or in violation
of any Section 404 permit condition in
an amount of at least $5,000 per day of
such violation. •
(ii) The agency shall have the
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
under Section 404 in the amount of at
least $10,000 per day of such violation.
(iii) The agency shall have the
authority.to seek criminal fines against
any person who knowingly makes false
statements, representation, or
certification in any application, record,
rreport, plan, or other document filed or
required to be maintained under the Act,
these regulations or the approved State
•program, or who falsifies, tampers with,
or knowingly renders inaccurate any
monitoring device or method required -to
be maintained under the permit, in an
amount of at least $5,000 for each
instance of violation.
(b)(l) The approved maximum civil
penalty or criminal fine shall be
assessable for each violation and, if the.
violation is'continuous, shall be
assessable in that maximum amount for
each day of violation. -
(2) 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.
(c) The civil penalty assessed, sought,
or agreed upon by the Director under
paragraph (a] (3) of this section shall be
appropriate to the violation.
Note.—To the extent that State judgments or
settlements provide penalties in amounts
which EPA believes to be substantially
inadequate in comparison to the .amounts
which EPA would require, under similar facts,
EPA may, when authorized by Section 309 of
the Act, commence separate action for
penalties. ...
(d)(l) The Regional Administrator
may approve,a State program where ,the
State lacks authority to recover ' ,
penalties of the levels required under
paragraphs (a)(3)(i)-(iii) of this section
only if the Regional Administrator
determines, after .evalulfiing'''a record of
at least one year for an alternative •
enforcement program, that the State has
an alternate, demoristrably effective -
method of ensuring compliance which
has both punitive and deterrence effects.
(2) States whose programs were
approved via waiver of monetary"
penalties shall keep the Regional •
Administrator informed of all
enforcement actions taken under any
alternative method approved pursuant
to paragraph (d)(l) of this section. The.
manner of reporting will be established
in the Memorandum of Agreement with
the Regional Administrator (§ 233.13).
(e) Any State administering a program
shall provide for public participation in
the State enforcement process by
providing either:
(1) Authority which allows
intervention of right in any civil or
•administrative action to obtain remedies
specified in paragraph (a)(3) of this
section by any citizen having an interest
which is or may be adversely affected, .
of . , ' .
(2) Assurance that the State agency or
enforcement authority will: - .. • •
(i) Investigate and provide written
responses to all citizen'complaints
submitted pursuant,to State procedures;
, (ii) Not oppose intervention by any
citizen when permissive intervention
may be authorized by statute, rule, or
regulation; and
(iii) Publish notice of and provide at
least 30 days for public comment on any
proposed settlement of a State
enforcement action.
Subpart F—Federal Oversight
§233.50 Review of and objection to State
permits.
(a) The Director shall promptly
transmit to the Regional Administrator:
.(1) A copy of the public notice for any
complete permit applications received
by >'..d Director, except those for which
permit review has.been waived under
§ 233.51. The State shall supply the
Regional Administrator with copies of
public notices for permit applications for
which permit review has been waived
whenever requested by EPA.
(2) A'copy of a draft general permit
whenever the State intends to issue a
general permit. •
(3) Notice of every significant action
taken by the State agency related to the
qonsideratiori of any permit application
except those for which Federal review
has been waived or draft general permit.
(4) A copy qf every issued permit.
(5) A copy of the Director's response
to another State's comments/
.recommendations, if the Director does
not accept these recommendations
(§ 233.32(a)). - .
(b) Unless review has been waived
under § 233.51, the Regional
Administrator shall provide a copy of
each public notice, each draft general
•permit, and other information needed for
review of the application to the Corps,
FWS. and NMFS. within 10 days of
. receipt. These agencies shall notify the -
Regional Administrator within 45 days
: of their receipt if they wish to comment
on the public notice or draft general
permit. Such agencies should submit
their evaluation and comments to the
Regional Administrator within 50 days
of such receipt. The final decision to
comment, object or to require permit
conditions shall be made by the
Regional Administrator, (These times
may be shortened by mutual agreement
of the affecteo' Federal agencies and the
State.)
(c) If the information provided is
inadequate to determine whether the
permit application or draft general
permit meets the requirements of the
Act, these regulations, and the 404(b)(l)
Guidelines, the Regional Administrator
, may, within 30 days of receipt, request
the Director to transmit to the Regional
Administrator the complete record of
the permit proceedings before the State,
or any portions of the record, or other
information, including a supplemental
application, that the Regional
Administrator determines necessary for
review.
(d) If the Regional Administrator
intends to comment upon, object to, or
make recommendations with respect to
a permit application, draft general
permit, or the Director's failure to accept
the recommendations of an affected
State submitted pursuant to § 233.31(a),
he shall notify the Director of his intent
within 30 days of receipt. If the Director,
has been so notified, the permit shall not
be issued until after the receipt of such
comments or 90 days of the Regional'
Administrator's receipt of the public
notice, draft general permit or Director's
response (§ 233.31(a)), whichever comes
first. The Regional Administrator may
notify the Director within 30 days of
receipt that there is no comment but that
he reserves the right to object within 90
days of receipt, based on any new
information brought out by the public
during the comment period or at a
.hearing.
(e) If the Regional Administrator has
given notice to the Director under .
paragraph (d) of this section, he shall
submit to the Director, within 90 days of
receipt of the public notice, draft general
permit, or Director's response
(§ 233.31(a)), a.written statement of his
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comments, objections, or
recommendations: the reasons for the
comments, objections, or
recommendations; and the actions that
must be taken by the Director in order to
eliminate any objections. Any such
objection shall be based on the Regional
Administrator's determination that the
proposed permit is (1) the subject of an
interstate dispute underj 233.31(a) and/
or (2) outside requirements of the Act,
these regulations, or the 404(b)(l)
Guidelines. The Regional Administrator
shall make available upon request a
copy of any comment, objection, or
recommendation on a permit application
or draft general permit to the permit
applicant or to the public.
(f) When the Director has received an
EPA objection or requirement for a
permit condition to a permit application
or draft general permit under this
section, he shall not issue the permit
unless he has taken the steps required
by the Regional Administrator to
eliminate the objection.
(g) Within 90 days of receipt by the
Director of an objection or requirement
for a permit condition by the Regional
Administrator, the State or any
interested person may request that the
Regional Administrator hold a public
hearing on ihe objection or requirement.
The Regional Administrator shall
conduct a public hearing whenever
requested by the State proposing to
issue the permit, or if warranted by
significant public interest based on
requests received.
(h) If a public hearing is held under
paragraph (g) of this section, the
Regional Administrator shall, following
that hearing, reaffirm, modify or
withdraw the objection or requirement
for a permit condition, and notify the
Director of this decision.
(1) If the Regional Administrator
withdraws his objection or requirement
for a permi! condition, the Director may
issue the permit.
(2) If Ihe Regional Administrator does
not withdraw the objection or
requirement for a permit condition, the
Director must issue a permit revised to
satisfy the Regional Administrator's
objection or requirement for a permit
condition or notify EPA of its intent to
deny the permit within 30 days of
receipt of the Regional Administrator's
notification.
(i) If no public hearing is held under
paragraph (g) of (his section, the
Director within 90 days of receipt of the
objection or requirement for a permit
condition shall either issue the permit
rt'Vtaed to satisfy EPA's objections or
notify EPA of its intent to deny the
permit.
(j) In the event that the Director
neither satisfies EPA's objections or
requirement for a permit condition nor
denies the permit,, the Secretary shall
process the permit application.
§233.51 Waiver of review.
(a) The MOA with the Regional
' Administrator shall specify the
categories of discharge for which EPA
will waive Federal review of State
permit applications. After program
approval, the MOA may be modified to
reflect any additions or deletions of
categories of discharge for which EPA
will waive review. The Regional
Administrator shall consult with the
Corps, FWS, and NMFS prior to
specifying or modifying such categories.
(b) With the following exceptions, any
category of discharge is eligible for
consideration for waiver:
(1) Draft general permits;
(2) Discharges with reasonable
potential for affecting endangered or
threatened species as determined bv
FWS;
(3) Discharges with reasonable
potential for adverse impacts on waters
of another State;
(4} Discharges known or suspected to
contain toxic pollutants in toxic
amounts (Section 101(aj(3} of the Act) or
hazardous substances in importable
quantities (Section 311 of the Act);
(5) Discharges located in proximity of
a public water supply intake;
(6) Discharges within critical areas
established under State or Federal lawv
including but not limited to National and
State parks, fish and wildlife
sanctuaries and refuges, National and
historical monuments, wilderness areas
and preserves, sites identified or
proposed under the National Historic
Preservation Act, and components of the
National Wild and Scenic Rivers
System.
(c) The Regional Administrator retains
the right to terminate a waiver as to •
future permit actions at any time by
sending'the Director written notice of
termination.
§ 233.52 Program reporting
(a) The starting date for the annual
period to be covered by.reports shall be
established in the Memorandum of
Agreement with the Regional
Administrator (§ 233.13.)
(b) The Director shall submit to the
Regional Administrator within 90 days
after completion of the annual period, a
draft annual report evaluating the
State's administration of its program
identifying problems the State has
encountered in the administration of its
program and recommendations for
resolving these problems. Items that
shall be addressed in the annual report.
include an assessment of the cumulative
impacts of the State's permit program on
the integrity of the State regulated
, waters; identification of areas of
particular concern and/or interest
within the State; 'he number and nature
of individual and general permits issued,
modified, and denied; number of
Violations identified and number and
nature-of enforcement actions taken;
number of suspected unauthorized
activities reported and nature of action
taken; an estimate of extent of activities
regulated by general permits; and the
number of permit applications received
but not yet processed.
(c) The State shall make the draft
annual report available for public
inspection.
(d) Within 60 days of receipt of the
draft annual report, the Regional
Administrator will complete review of
the draft report and transmit comments,
questions, and/or requests for
additional evaluation and/or
information to the Director.
(e) Within 30 days of receipt of the
Regional Administrator's comments, the
Director will finalize the annual report,
incorporating and/or responding to the
Regional Administrator's comments, and
transmit the final report to the Regional
Administrator.
(f) Upon acceptance of the annual
report, the Regional Administrator shall
publish notice of availability of the final
annual report.
§ 233.53 Withdrawal of program approval. ••
(a) A State with a program approved
under this Part may voluntarily transfer.
program responsibilities required by
Federal law to the Secretary by taking .
the following actions, or in such other
manner as may be agreed upon with the
Administrator. , .
(1) The State shall give the
Administrator and the Secretary 180
days notice of the proposed transfer.
The State shall also submit a plan for
the orderly transfer of all relevant
program information not in the
possession of the Secretary (such as
permits, permit files, reports, permit
applications) which are necessary for
the Secretary to administer the program.
(2) Within 60 days of receiving the
notice and transfer plan, the
Administrator and the Secretary shall •
'evaluate the State's transfer plan and
shall identify for the State any
additional information needed by the
Federal government for program
administration.
(3) At least 30 days before the transfer
is to occur the \drninistrj.or shall
publish notice of jansfer 1.1 n? Federal
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Federal Register /Vol., 53, No. 108 / Monday, June 6, 1988 / Rules and Regulations 20785
Register and in a sufficient number of
the largest newspapers in the State to
provide statewide coverage, and shall
mail notice to all permit holders, permit
applicants, other regulated persons and
other interested persons on appropriate
EPA., Corps and State mailing lists.
(b) The Administrator may withdraw
program approval when a State program
no .longer complies with the
requirements of this Part, and the State
fails to take corrective action. Such ,
circumstances include the following:
(1) When the State's legal authority no
longer meets the requirements of this
Part, including:
(i) Failure of the State to promulgate
or enact new authorities when
necessary; or
(ii) Action by a Sta,te legislature or
court striking down or limiting State
authorities. .
. (2) When the operation of the State
program fails to comply with the
requirements of this Part, including:
(i) Failure to exercise control over
activities required to be regulated under
this Part, including failure to issue
permits; , :
(ii) Issuance of permits which do not
conform to the requirements of this Part;
or • . ' •
(iii) Failure to comply with, the public
participation requirements of this Part.
, (3) Wh''en the State's enforcement
program fails to comply with the
requirements of this Part, including:
(i) Failure to act on violations of
permits or other program requirements;
(ii) Failure to seek adequate
enforcement penalties or to collect
administrative fines when imposed, or
to implement alternative enforcement
methods approved by the Administrator;
or
(iii) Failure to inspect and monrtor
activities subject to regulation.
; (4) When the State program fails to
comply with the terms of the
Memora idum of Agreement required
under § 233.13.. '
(c) The following procedures apply
when the Administrator orders the
commencement of proceedings to
determine whether to withdraw
approval of a State program:
. (1) Order. The Administrator may
order the commencement of withdrawal
proceedings on the Administrator's
initiative or in response to a petition
from an interested person alleging
failure.of the State to comply with the
requirements of this Part as set forth in
subsection (b) of this section. The
Administrator shall respond in writing
to any petition'to commence withdrawal
proceedings. He may conduct an
informal review of the allegations in the
petition to determine whether cause
- exists to commence proceedings under
this paragraph.'The Administrator's .-
order commf ncing proceedings under
this paragraph, shall fix'a time and place
for the commencement of the hearing,
shall specify the allegations against the
State which are to be considered at the
hearing, and shall be published in the
Federal Register. Within 30 days after
publication of the Administrator's order
in the Federal Register, the State shall
admit or deny these allegations in a
written answer.
The party seeking withdrawal of the
State's program shall have the burden of
coming forward with the evidence in a
hearing under this paragraph.
(2) Definitions. For purposes of this
paragraph the definition of
"Administrative Law judge," "Hearing
Clerk," and "Presiding Officer" in 40
CFR 22.03 apply in addition to the
following: .
(i) "Party" means the petitioner, the
State, the Agency, and any other person
whose request to participate as a party
is granted.
(ii) "Person" means the Agency, the
State and any individual or organization
having an interest in the subject matter
of the proceedings.
(iii) "Petitioner" means any person
whose petition for commencement of
withdrawal proceedings has been
granted by the Administrator. .
. (3) Procedures.
(i) The following provisions of 40 CFR
Part 22 [Consolidated Rules of Practice]
are applicable to proceedings under this
paragraph:
(A) Section 22.02—(use of number/
gender); . .
(B) Section 22.04—(authorities of
Presiding Officer);
(C) Section 22.06—(filing/service of
rulings and orders);
(D) Section 22.09—(examination of
filed documents);
(E) Section 22.19 (a), (b) and (c)—
(prehearing conference);
(F) Section 22.22—(evidence);
(G) Section 22.23—(objections/offers
of-proof);
(H) Section 22.25—(filing the
transcript; and
(I) Section 22.2&-r(findings/
' conclusions).
• (ii) The following provisions are also
applicable:..
(A) Computation and extension of
time.
(1) Computation. In computing any
period of time prescribed or allowed in
these rules of practice, except as
otherwise provided, the day of the event
.from which the designated period begins
to run shall not be included. Saturdays,
Sundays, and Federal legal holidays
shall be included. When a stated time
expires on a Saturday, Sunday or
Federal legal holiday, the stated time
period shall be extended to include the
next business day.
(2) Extensions of time, fhe
Administrator, Regional Administrator,
or Presiding Officer, as appropriate, may
grant an extension of time for the filing
of any pleading, document, or motion [i]
upon timely motion of a party to the
proceeding, for good .cause shown and
after consideration of prejudice to other
parties, or (ii] upon his own motion.
Such a motion by a party may only be
made after notice to all other parties,
unless the movant can show good cause
why serving notice is impracticable. The
motion shall be filed in advance of the
date on which the pleading, document or
motion is due .to be filed, unless the
failure of a party to make timely motion
for extension of time was the result of
excusable neglect.
(3) The time for commencement of the
hearing shall not be extended beyond
the date set in the Administrator's order
; without approval of the Administrator.
(B) Ex parte discussion of proceeding.
At no time after the issuance of the
order commencing proceedings shall the
Administrator, Regional Administrator,
Judicial Officer, Regional Judicial
Officer, Presiding Officer, or any other
person who is likely, to advise these
officials in the decisions on .the case,
discuss ex parte the merits of the
proceeding with any interested person
outside the Agency, with any Agency
staff member, who performs a
prosecutorial or investigative function in
such proceeding or a factually related
proceeding, or with any representative
of such person." Any ex parte
memorandum or othei communication
addressed to the Administrator,
Regional Administrator, Judicial Officer,
Regional Judicial Officer, or the
Presiding Officer during the pendency of
the proceeding and relating to the merits
thereof, by or on behalf of any party
shall be regarded as argument made in
the proceeding and shall be served upon
all other parties. The other parties shall
be given an opportunity to reply to such
memorandum or communication.
(C) Intervention.
(1) Motion. A motion for leave to,'
intervene in any proceeding conducted
under these rules of practice must set
forth the grounds for the proposed
intervention, the position and interest jf
the movant and the likely impact that
intervention will have on the
expeditious progress of the proceeding.;
Any person already a party to the
proceeding may file an answer to a
motion to intervene, making specific
reference to the factors set forth in the
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20786 Federalkegister / Vol. 53, No. -108 / Monday, June 6, 1988 / Rules and Regulations
foregoing sentence and paragraph
(b)(3)(ii)(CJ(3) of this section, within ten
(10) days after service of the motion for
leave to intervene.
[2] However, motions to intervene
must be filed within 15 days from the
date the notice of the Administrator's
order is published in the Federal
Register.
(3\ Disposition. Leave to intervene
may be granted only if the movant
demonstrates that (/) his presence in the
proceeding would not unduly prolong or
otherwise prejudice the adjudication of
Ihe rights of the original parties; {ii] the
movant will be adversely affected by a
final order, and (iii} the interests of the
movant are not being adequately
represented by the original parties. The
intervenor shall become a full party to
* the proceeding upon the granting of
leave to intervene.
[4) Amfcus curiae. Persons not parties
to the proceeding who wish to file briefs
may so move. The motion shall identify
the interest of the applicant and shall
state the reasons why the proposed
amicus brief is desirable. If the motion is
granted, the Presiding Officer or
Administrator shall issue an order
setting the time for filing such brief. An
amicus curiae is eligible to participate in
any briefing after his motion is granted,
and shall be served with all briefs, reply
briefs, motions, and orders relating to
issues to be briefed.
(D) Motions. (1) General. All motions,
except those made orally on the record
during a hearing, shall (f) be in writing;
{//) state the grounds therefore with
particularity; (iii] set forth the reliefer
order sought; and (iv) be accompanied
by any affidavit, certificate, other
evidence, or legal memorandum relied
upon. Such motions shall be served as
provided by paragraph (b}(4) of this
section.
(2) Response Co motions. A party's
respons »to any written motion must be
filed within ten (10) days after service of
such motion, unless additional time is
allowed for such response. The response
shall be accompanied by any affidavit,
certificate, other evidence, or legal
memorandum relied upon. If no
response is filed within the designated
period, the parties may be deemed to
have waived any objection to the
granting of the motion. The Presiding
Officer, Regional Administrator, or
Administrator, as appropriate. may,set a
shorter time for response, or make such
other orders concerning the disposition
of motions as they deem appropriate.
(3) Decision. The Administrator shall
rule on all motions filed or made after
service of the recommended decision
upon the parties. The Presiding Officer
shall rule on all other motions. Oral
argument on motions will be permitted
where the Presiding Officer, Regional
Administrator, or the Administrator
considers it necessary or desirable.
[4] Record of proceedings, (i) The
hearing shall be either stenographically
reported verbatim or tape recorded, and ,
thereupon transcribed by an official
reporter designated by the Presiding
Officer;
[if] All orders issued by the Presiding
Officer, transcripts of testimony, written
statements of position, stipulations,
exhibits, motions, briefs, and other
written material of any kind submitted
in the hearing shall be a part of the
record and shall be available for
inspection or copying in the Office of the
Hearing Clerk, upon payment of costs.
Inquiries may be made at the Office of
the Administrative Law Judges, Hearing
Clerk, 401 M Street SW., Washington, "
DC 20460;
{iii] Upon notice to all parties the '
Presiding Officer may authorize
corrections to the transcript which
involve matters of substance;
(/V) An original and two (2) copies of
all written submissions to the hearing
shall be filed with the Hearing Clerk; •
(v] A copy of each such submission
shall be served by the person making
the submission upon the Presiding
Officer and each party of record. Service,
under this paragraph shall take place by
mail or personal delivery;
(vi) Every submission shall be
accompanied by acknowledgement of
service by the person served or proof of
service in the form of a statement of the
date, time, and manner of service and
the names of the persons served,
certified by the person who made
service; and
(v/7) The Hearing Clerk shall maintain
and furnish to any person upon request,
a list containing the name, service
address, and telephone number of'all
parties and their attorneys or duly
authorized representatives.
[5] Participation by a person not a
party. A person who is not a party may,
in the discretion of the Presiding Officer,
be permitted to make a limited
appearance by making an oral or
written statement of his/her position on
the issues within such limits and on
such conditions as may be fixed by the
Presiding Officer, but he/she may not
otherwise participate in the proceeding.
(6} Rights of parties, (i) All parties to
the proceeding may:
(A) Appear by counsel or other
representative in all hearing and
prehearing proceedings;
(B) Agree to stipulations of facts
which shal! be made a part of the
record.
(7) Recommended decision, (i) Within
30 days after the filing of proposed
findings and conclusions and reply
briefs, the Presiding Officer shall
evaluate the record before him/her, the
proposed findings and conclusions and
any briefs filed by the parties, and shall
•prepare a recommended decision, and
shall certify the entire record, including
the recommended decision, to the
Administrator.
(ii) Copies of the recommended
decision shall be served upon all parties.
(iii) Within 20 days after the '
certification and filing of the record and
recommended decision, all parties may
file with the Administrator exceptions to
the recommended decision and a
supporting brief.
(8) Decision by Administrator, (i)
Within 60 days after certification of the
record and filing of the Presiding
Officer's recommended decision, the
Administrator shall review the record
before him and issue his own decision.
(ii) If the Administrator concludes that
the State has administered the program
in conformity with the Act and this Part,
his decision shall constitute "final
agency action" within the meaning of 5
U.S.C. 704.
(iii) If the Administrator concludes
that the State has not administered the
program in conformity with the Act and
regulations, he shall list the deficiencies
in the program and provide the State a
reasonable time, not to exceed 90 days,
to take such appropriate corrective
action as the Administrator determines
necessary.
(iv) Within the time prescribed by the
Administrator the State shall take such
appropriate corrective action as
required by the Administrator and shall
file with the Administrator and all
parties a statement certified by the State
Director that appropriate corrective
action has been taken.
(v) The Administrator may require a
further showing in addition to the
certified statement that corrective action
has been taken.
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Federal Register / Vol 53, No. 108 /Monday, June 6, 1988 / Rules and Regulations 20787
(vi) If the state fails to take
appropriate corrective action and file a
certified statement thereof within the :
time prescribed by, the Administrator,
the Administrator shall issue a
supplementary order withdrawing
approval of the State program. If the
State takes appropriate corrective
action, the Administrator shall issue a
supplementary order stating that
approval of authority is not withdrawn.
(vii) The Administrator's
supplementary order shall constitute
final Agency action withiirthe meaning
of 5 U.S. 704. .
(d) Withdrawal of authorization under
this section and the Act does not relieve
any person from complying with the
requirements of State law, nor does it
affect the validity of actions taken by
the State prior to withdrawal.
'* • * * ' • * *
[FR Doc. 88-12032 Filed 6-3-88; 8:45 am]
BILLING CODE 6560-SO-M
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