Clean Water Act Section 404 Tribal and State Assumption Program Response to Comments


Clean Water Act Section 404 Tribal and State Assumption Program

Response to Comments

This Response to Comments Document, together with the preamble to the final Clean Water Act
Section 404 Tribal and State Assumption Program rule, presents responses of the U.S.
Environmental Protection Agency (EPA) to the comments received on the proposed rule, 88 FR
55276.

In finalizing the proposed rule, the Agency reviewed and considered input from a broad
spectrum of interested parties. The Agency reviewed and responded to input from stakeholder
meetings as well as the 46 comment letters received on the proposed rulemaking. Commenters
provided a wide range of feedback on the proposal, including the substantive and procedural
aspects of the proposed rule, how the proposed rule would impact stakeholders, and the legal
basis for the proposed rule. EPA fully considered these comments and addressed all significant
issues raised therein, including revising the rule to help streamline and clarify the requirements
and processes for the assumption and administration of a CWA section 404 program, EPA's
oversight, and how Tribes and States can demonstrate and ensure their program meets the
minimum requirements of the CWA.

To prepare this document, the Agency read and responded to all comments received from
interested parties, including input provided by Tribes, States, and other stakeholders attending
outreach meetings and providing comment letters. Comments are categorized into 11 categories,
and categories are presented in a manner similar to the general organization of the preamble and
regulatory text. In this document, the Agency's responses appear in bold text. The responses
presented in this document respond to comments that are not otherwise addressed in the
preamble and, in some instances, supplement the preamble's responses to key issues raised in
comments.

Although portions of the preamble to the final rule are paraphrased in this document where
useful to add clarity to responses, the preamble itself is the definitive statement of the Agency's
rationale for the final rule. To the extent a response in this document could be construed as in
conflict with the preamble of the final rule, the language in the final rule preamble and regulatory
text controls and should be used for purposes of understanding the requirements and basis of the
final rule.

In many instances, responses presented in this Response to Comments Document include cross-
references to responses on similar or related issues located in the preamble to the final rule, the
Economic Analysis for the Final Rule, and/or other sections of the Response to Comments
Document. Accordingly, this Response to Comments Document, together with the preamble to
the final rule, the Economic Analysis for the Final Rule, and the rest of the administrative record
should be considered collectively as EPA's response to all of the significant comments submitted
on the proposed rule.

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Table of Contents

Table of Contents	i

Abbreviations	iv

A.	Subpart A - General	1

1.	Conflict of interest	1

1.1	Revised regulatory prohibition against conflicts of interest	1

1.2	Self-issuance of permits	3

2.	Compliance with the 404(b)(1) Guidelines	4

2.1	General comments	4

2.2	Demonstrating Tribes and States have sufficient authority to apply and assure
compliance with the CWA 404(b)(1) Guidelines	11

2.3	Endangered Species Act	14

2.4	National Historic Preservation Act (NHPA)	42

3.	No less stringent than	49

B.	Subpart B - Program Approval	55

1.	Partial or phased assumption	55

2.	Retained waters	58

2.1	Procedures for determining which waters are retained	58

2.2	Technical issues regarding determining the scope of retained waters	80

2.3	Legal issues regarding retained waters	81

2.4	Procedure for determining which adjacent wetlands are retained and the
"administrative boundary "	86

2.5	Procedures for modifying the extent of retained waters and other proposed
clarifications	98

2.6	Public participation in the development of the retained waters description	99

2.7	Other comments on retained waters and adjacent wetlands	101

3.	Program assumption requirements	102

3.1	Staffing andfunding requirements for administration, enforcement, and
compliance	102

3.2	Other comments on the program assumption requirements	124

4.	Compliance with compensatory mitigation requirements and federal oversight of third-
party instruments	127

5.	Effective date for approved programs	136

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6.	General comments on Memorandum of Agreements (MO As)	141

7.	Other comments on program approval	148

C.	Subpart D - Program Operation	157

1.	Five-year permits and long-term projects	157

2.	Judicial review and rights of appeal	162

D.	Subpart E - Compliance Evaluation and Enforcement	183

1.	Criminal intent standard {mens rea)	183

2.	Other comments	202

E.	Subpart F - Federal Oversight	204

1.	Dispute resolution	204

2.	Withdrawal provisions	213

3.	Program reporting	221

4.	Other comments on federal oversight	223

5.	Categories of permits for which EPA review cannot be waived	223

F.	Subpart G - Eligible Indian Tribes	225

1.	Legal issues regarding tribal opportunities	225

2.	Comments on tribal opportunities for engagement	225

3.	Comment opportunity for Tribes with TAS for any CWA provision	232

4.	Applying for TAS solely to comment on proposed section 404 permits	233

5.	Opportunity to request EPA review of permits affecting Tribal rights and interests	236

6.	Comments regarding EPA's Trust responsibilities	244

7.	Other approaches for Tribal involvement	259

8.	Other comments on tribal opportunities for engagement	264

G.	Technical edits	269

H.	Statutory and Executive Order Reviews	271

1.	Executive Order 13132: Federalism	271

2.	Environmental Justice	272

I.	Economic Analysis	273

J. General Comments	275

1.	Pre-proposal Tribal and State outreach	275

2.	General comments on the proposed rule	276

2.1 General support for the proposed rule	276

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2.2	General opposition to the proposed rule	279

2.3	Requests for extension of the comment period	282

2.4	Potential impacts on proposed changes on existing State section 404programs	290

2.5	Other general comments on the proposed rule	302

2.6	Other comments on permit requirements	303

3.	General comments on Tribal or State assumption	304

3.1	General support for Tribal or State assumption	304

3.2	General opposition for Tribal or State assumption	307

3.3	Comments regarding States and Tribes not currently administering a 404
program	311

4.	General comments on authority to administer a section 404 program	329

5.	General comments on stakeholder engagement	332

K. Out of scope	335

1.	Request to expand or exercise authority	335

2.	Definitions of "waters of the United States"	336

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Abbreviations

APA	Administrative Procedure Act

CFR	Code of Federal Regulations

Corps	U.S. Army Corps of Engineers

CWA	Clean Water Act

E.O.	Executive Order

EPA	U.S. Environmental Protection Agency

ESA	Endangered Species Act

FR	Federal Register

FTE	Full-time Equivalent

FWS	U.S. Fish and Wildlife Service

ICR	Information Collection Request

MOA	Memorandum of Agreement

MOU	Memorandum of Understanding

NMFS	National Marine Fisheries Service

RHA	Rivers and Harbors Act

TAS	Treatment in a similar manner as a State

USACE	U.S. Army Corps of Engineers

USFWS	U.S. Fish and Wildlife Service

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A. Subpart A - General

1. Conflict of interest

I.I Revised regulatory prohibition against conflicts of interest

National Association of Wetland Managers (NAWM) (EPA-HO-QW-2020-0276-0072-0026)
NAWM agrees that there should be no conflict, or appearance of conflict, when States
and Tribes are issuing permits under an authorized Section 404 Program. This includes
permits which a State or Tribe issues to itself for work in federally regulated waters. In
EPA's oversight role, it is suggested that the agency put in place safeguards to assure
that permitting decisions are made within the parameters, and guided by, the Section
404(b)(1) Guidelines so as to avoid any appearance of conflict. Such safeguards should
be incorporated into the MOA between EPA and the authorized State or Tribe and
should include size and quality criteria for agency review.

Agency Response: The Agency appreciates commenter input regarding potential
conflicts of interest or the appearance of conflict. See Section IV.A.1 of the final
rule preamble for further discussion of the Agency's rationale for providing this
revised regulatory prohibition against conflicts of interest and response to these
comments. As the preamble states, the proposal does not preclude development and
inclusion of additional conflict of interest safeguards in the State-EPA
Memorandum of Agreement (MOA). Additionally, EPA may request review of any
permit to address potential conflicts. See also Section IV.A.1 of the final rule
preamble discussing transparency with respect to potential conflict of interest.

State of Alaska Department of Environmental Conservation (EPA-HO-OW-2020-0276-0Q79-

002 n

EPA proposes to broaden the current conflict-of-interest prohibition to apply to
"individuals" and not just "public officer[s] or employee[s]." [Footnote 51: 88 Fed. Reg.
55312.]. The proposed revisions would require "any public officer, employee, or
individual with responsibilities related to the section 404 permitting program who has a
direct personal or pecuniary interest in any matter that is subject to decision by the
agency" to "make known such interest in the official records of the agency" and to
"refrain from participating in any manner in such decision by the agency or any entity
that reviews agency decisions." [Footnote 52: 88 Fed. Reg. 55312.].

Alaska opposes this new provision. Its vague and broad articulation makes it unclear to
whom, exactly, this provision applies. The additional uncertainty injected to the 404
assumption process by this provision will not facilitate State assumption, as desired.

Agency Response: See Section IV.A.1 of the final rule preamble for further
discussion of the Agency's rationale for revising this provision. The preamble
addresses this concern and makes clear that anyone who has direct personal or
pecuniary interests in a section 404 permitting decision shall make such interests
known and recuse themselves from such decisions. EPA disagrees with the

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commenter that this provision will not facilitate State assumption; the commenter
has not provided any basis for the proposition that this provision will disincentivize
assumption.

Center for Biological Diversity (EPA-HO-OW-2020-0276-0083-0Q14>)

The EPA's proposed rule would further erode public trust in the permitting process by
unnecessarily weakening conflict of interest provisions to suit the 404 program. While at
one point the EPA considered application of a stronger conflict of interest provisions
found in delegated NPDES programs, the EPA has instead decided to promulgate a
weaker conflict of interest provision specific to the 404.

The EPA's justification for this change is nonsensical. EPA argues that while NPDES
permits are typically long-term and industrial, 404 permits are shorter and purportedly
used by both industry and private citizens alike, all of whom would presumably derive a
"significant portion of income" from 404 permitting programs. First, in this rule EPA is
proposing long-term permitting for the 404 programs. The proposed rule itself envisions
permit applications accounting for "15-year, multi-phase housing" projects that would
both run longer than many NPDES actions and create substantial industrial activity en
route to producing hundreds of housing units. [Footnote 48: RIN 2040-AF83 at 88]
Factoring in EPA's "long-standing position that activities related to the same project
should not be split into multiple permits," and a permit for a multi-stage housing project
could be stretched decades into the future and long past even longer NPDES projects.
The justification for the proposed rule change cannot stand on a contention that it better
differentiates 402 and 404 permits when the proposed rule can create longer projects.

Agency Response: See Section IV.A. 1 of the final rule preamble for further
discussion of this conflict of interest provision. The preamble makes clear that
anyone who has direct personal or pecuniary interests in a section 404 permitting
decision shall make such interests known and recuse themselves from such
decisions. EPA disagrees that a monetary threshold, similar to the 402 regulations,
is an appropriate measure to avoid conflict of interest in Tribal or State section 404
permitting decisions. Section 402 permits are typically sought to authorize
continuous discharges while section 404 permits are generally one-time discharges.
Thus, the Agency has determined that recusing individuals on a case-by-case basis
will be sufficient to ensure avoidance of conflicts of interest.

Finally, nowhere in the rulemaking is EPA proposing permits be issued for longer
than 5 years - the statute limits Tribal and State permits to 5 years in duration. The
purpose of the long-term permitting/project is to ensure all impacts associated with
large projects that extend beyond an individual 5-year permit limit are considered
with each 5-year permit associated with that project in mind. See Section IV.C.l of
the final rule preamble.

Center for Biological Diversity (EPA-HQ-OW-2020-0276-0083-0015)

Second, the EPA cannot realistically argue that extended and often private application for
404 programs means that "so many people would be . . . eliminated from the pool of

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potential board members. "Significant portion of income" is defined as "10 percent or
more of gross personal income for a calendar year" and it would be improper to argue a
person performing small-scale, individual projects would fall into this category. Taking
another EPA example, it is illogical to conclude that building a single boat ramp or
erosion control project would constitute 10 percent of an applicant's income for a
calendar year. Unless the individual constructed ramps or carried out erosion
management projects as a consistent business venture, only the rarest occasion would
eliminate a potential board member or conflict out an applicant.

If EPA were serious about implementing conflict of interest changes, the proper course
of action would be codifying the section 402 provision as it considered doing in
1988. [Footnote 49: Id. at 124] The "significant portion of income" standard would not
dilute the pool of potential board members and applicants, as EPA wrongly asserts
because of the unlikely scenario of an applicant hitting that "10% of gross income"
threshold in a project. Instead, EPA's proposed threshold of "significant pecuniary
interest" provides no meaningful figure to guide applicants and runs contrary to EPA's
desire to "ensure public confidence that permittees are treated consistently." [Footnote
50: Id. at 125.] Instead, the proposed rule offers an unwieldly tool that does little to
govern other than adding both confusing language and regulatory uncertainty. We
therefore oppose EPA's weakened conflict of interest provisions.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0083-0014. EPA agrees that many section 404 individual permitting projects
may not implicate 10% of a person's income, and indeed, this is an additional
reason that the Agency is not applying the section 402 conflict of interest provision
to section 404 State program regulations. The section 402 provision would be both
under- and over-inclusive. EPA has determined that when Tribes or States assume
the section 404 program, a person should not be involved in any permitting decision
in which the person has a direct personal or pecuniary interest, even if the decision
does not implicate 10% of the person's income - a threshold which, as the
commenter notes, many projects would not meet. Involvement in a permitting
decision in which a person has a direct personal or pecuniary interest (no matter
the percentage of the person's income implicated) risks undermining the integrity
and neutrality, and certainly the appearance of integrity and neutrality, of the
permitting process.

1.2 Self-issuance of 'permits

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q38N)

VI. EPA should address conflicts of interest resulting from funding by private
developers and state agencies.

Conflicts of interest are also presented when private developers or state agencies are
allowed to provide funding to the permitting agency that in turn allows the permitting
agency to employ permit processers that will handle the permit applications submitted by
the same private developers or state agencies. In effect, the private developer or non-

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permitting state agency becomes the employer of their permit processor(s) even if the
exact funding provided is not directly traceable to paying those specific staff. These
arrangements are inherently problematic and divest the public's trust in the permitting
agency's decision-making. See Article(s) [Footnote 74: J. Tobias, Defanged, Money and
Politics Could Doom the Florida Panther -and the Endangered Species Act, THE
INTERCEPT (Jan. 24, 2021).] EPA should clarify how this proposed rule addresses
these concerns and make necessary changes to prevent these conflicts of interest, or
appearance of such, from arising.

Agency Response: See Section IV.A.l of the final rule preamble. This rulemaking
does not address sources of funding for Tribal or State agencies. Moreover, the
commenter has not presented data indicating that fees paid by permit applicants,
including developers or State agencies, to permitting agencies affects the agencies'
objectivity in the permitting process.

2. Compliance with the 404(b)(1) Guidelines

2.1 General comments

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0033)

EPA should also require that the MOA between the assuming state and the Corps include
a provision that federal law will control injudicial review when a challenger alleges non-
compliance with the Section 404(b)(1) Guidelines. Federal courts have already interpreted
how the 404(b)(1) Guidelines apply, whereas applicant states do not have that experience
interpreting the requirements of the Section 404(b)(1) Guidelines. In the preamble, EPA
recognizes that compliance with the Section 404(b)(1) Guidelines may be challenging and
offers up suggestions for how states can demonstrate compliance, id. at 55297, but EPA
can and should simply require an assuming state to incorporate the 404(b)(1) Guidelines
to ensure compliance. Adoption and incorporation of the Guidelines is especially
important as EPA acknowledges that the only avenue where states may be able to apply
the equivalent of federal laws, such as the ESA and the NHPA, after state assumption is
through the application of the Guidelines. Id. at 55297, 55298. This is especially important
in a state like Alaska which has no federal equivalent to NEPA.

Agency Response: To the extent the commenter requests that the final rule require
that federal law will control in a challenge alleging in state court that a state-issued
permit is not consistent with the 404(b)(1) Guidelines, Tribal and State permits are
Tribal and State actions subject to Tribal and State law. H.R. Rep. No. 95-830 at 104
(1977) ("The conferees wish to emphasize that such a State program is one which is
established under State law and which functions in lieu of the Federal program").
See Chesapeake Bay Foundation v. Va. State Water Control Bd., 453 F. Supp. 122 (E.D.
Va 1978) (no NEPA review required for NPDES permit issued by State because the
State permit is not a federal action).

To the extent the commenter recommends that the final rule require that Tribes and
States incorporate or adopt verbatim the 404(b)(1) Guidelines, the Agency disagrees.
If Congress had so intended, it could have expressed that intent more clearly than by

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directing that EPA "determine... whether such State has the following authority with
respect to the issuance of permits pursuant to such programs ... (i) to apply, and
assure compliance with [the 404(b)(1) Guidelines]." By using the terms "apply" and
"assure compliance with" throughout 404(h)(1), Congress left the manner of such
application and assurance to the Tribes and States. See S. Rep. No. 95-370 at 77
(1977) ("[The amendment] provides for assumption of the permit authority by States
with approved programs for control of discharges for dredged and fill material in
accord with the criteria and with the guidelines comparable to those contained in
402(b) and 404(b)(1).") (emphasis added). Thus, Congress allowed leeway for Tribes
and States to craft a Tribal or State program consistent with circumstances specific
to that Tribe or State that would still result in permits that will comply with the
404(b)(1) Guidelines and other federal requirements to the same extent as a permit
for the same discharge if issued by the Corps. See Section IV.A.2 of the final rule
preamble for a discussion of the Agency's rationale.

For further discussion on judicial review, see Section IV.C.2 of the final rule
preamble.

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0034)

At the very least, applicant states must show with specificity how their proposals and state
laws and regulations match up with each provision of the Section 404(b)(1) Guidelines
and concede that federal court decisions and federal interpretations of the Guidelines will
receive deference injudicial review.

Agency Response: The Agency agrees with the commenter that Tribal and State
section 404 programs must demonstrate sufficient authority to issue permits that
apply and assure compliance with the 404(b)(1) Guidelines. See Section IV.A.2 of the
final rule preamble for a further discussion.

To the extent the commenter proposes that the final rule require that federal law will
control in a challenge alleging in state court that a state-issued permit is not consistent
with the 404(b)(1) Guidelines, the Agency disagrees as Tribal and State permits are
Tribal and State actions subject to Tribal and State law. See Response to Comment
EPA-HQ-OW-2020-0276-0063-0033.

The Agency disagrees to the extent the commenter asserts that federal interpretive
guidance is binding on Tribal and State programs. See Section IV.A.3 for a discussion
of the rule of federal interpretive guidance in Tribal and State section 404 programs.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-Q0m

A. EPA must clearly articulate the requirements for how a state program demonstrates
that permits will "apply and ensure compliance with" Section 404, including the 404(b)(1)
Guidelines.

EPA's proposed rule fails to clearly require that state permits apply the 404(b)(1)
Guidelines. Section 404 requires that for a state to assume the 404 program, the state must
have authority to issue permits that "apply, and assure compliance with," any applicable

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requirements in Section 404, including but not limited to the 404(b)(1) Guidelines. 33
U.S.C.§ 1344(h)(l)(A)(i). Congress used the word "and" to create two independent
requirements for state programs: that state permits must (1) apply the 404(b)(1)
Guidelines; and (2) assure compliance with those Guidelines. See Bruesewitz v. Wyeth
LLC, 562 U.S. 223, 236 (2011).

The proposed rule does not meet this statutory requirement as it repeatedly states that a
state need only show that its state permits will be somehow be consistent with the 404(b)(1)
Guidelines. 88 Fed. Reg. at 55,277-78, 55,281, 55,284, 55,292, 55,296-98, 55,301-02,
55,310, 55,316; id. at 55,326 (to be codified at 40 C.F.R. § 233.21(b)); id. (to be codified
at 40 C.F.R. § 233.30(b)(5)). The proposed rule also fails to fix this error where it appears
in the existing regulations. See 40 C.F.R. §§ 233.20(a), 233.21(b), (e), 233.23(a). Rather,
EPA can readily address this problem and ensure stringency in keeping with the statutory
mandate by simply requiring the assuming state to fully adopt the 404 Guidelines as
written. In doing so, EPA is assured that a state's program is as protective as the federal
program, it eases administrative burdens considerably (no need to sift and weigh the many
different permutations a state program may take), and it helps ensure consistency among
programs and among EPA decisionmakers.

To comply with the Clean Water Act's mandates, EPA must explicitly require that a state
program (1) adopt or incorporate by reference the 404(b)(1) Guidelines; or (2) adopt and
apply more stringent state statutes and regulations [Footnote 61: EPA may alternatively
require that states adopt and apply different but as stringent state statutes and regulations
but must clearly articulate what an equivalent state program must look like. The proposed
rule does not provide this clarity.]

Agency Response: To the extent the commenter asserts that adoption verbatim or
incorporation of the 404(b)(1) Guidelines into a Tribal or State program is one way
to satisfy CWA Section 404(h)(l)(A)(i), the Agency agrees. To the extent, however,
the commenter asserts that CWA Section 404(h)(l)(A)(i) mandates that Tribes and
States adopt verbatim or incorporate the 404(b)(1) Guidelines, EPA disagrees. See
Response to Comment EPA-HQ-OW-2020-0276-0063-0033. See also Section IV.A.2
of the final rule preamble for more discussion of the Agency's rationale.

To the extent the commenter suggests that use of the term "consistent with" the
404(b)(1) Guidelines in the proposed rule preamble has a meaning other than that
Tribal and State CWA section 404 programs must have authority to issue permits
that "apply, and assure compliance with" the 404(b)(1) Guidelines, the Agency
disagrees. The proposed rule preamble uses the phrase "consistent with"
interchangeably with its description of the relevant authority. Regardless, the
Agency has revised the language in a number of places to make clear that it is the
Agency's interpretation that permits issued by Tribal and State CWA section 404
programs must comply with the 404(b)(1) Guidelines.

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To the extent the commenter suggests that the existing regulations do not implement
Section 404(h)(l)(A)(i), EPA disagrees. The regulations cited by the commenter all
require that permits issued by a Tribes or State comply with the 404(b)(1) Guidelines.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q13N)

B. EPA must rigorously examine state program applications to ensure that state permits
will both apply and comply with Section 404 and the 404(b)(1) Guidelines in particular.

EPA is proposing to continue its practice of allowing case-by-case analysis of state
programs, which only amplifies the existing uncertainty about what states must do to
assume the 404 program and will contribute to a lack of consistency across states and EPA
regions. 88 Fed. Reg. at 55,296-97.

EPA must clearly articulate specific criteria states must meet and by which EPA will
review state program applications and their compliance with the 404(b)(1) Guidelines to
avoid creating loopholes that can be exploited by states and future administrations to the
detriment of our Nation's waters and wetlands. These criteria must ensure that state
applications (1) clearly and fully define the particular regulatory and statutory provisions
that the state will apply; and (2) clearly state that those provisions either incorporate/adopt
the 404(b)(1) Guidelines or adopt more stringent requirements [Footnote 62: EPA's
proposal to evaluate a permit checklist or existing state wetlands permits is inadequate
because it does not examine the legal requirements of a state program, which may include
too much flexibility and allow for inadequate state permits even if the examples provided
are adequate. See 88 Fed. Reg. at 55,297. EPA must look to the state statutes and
regulations, and how they are applied, to ensure that they meet the necessary
requirements.].

Agency Response: Consistent with CWA Section 404(h)(l)(A)(i), the final rule
ensures that Tribal and State programs will result in permits that apply and assure
compliance with the 404(b)(1) Guidelines while providing Tribes and States the
leeway allowed by Congress to craft a program consistent with the circumstances
specific to that Tribe or State. See Section IV.A.2 of the final rule preamble. The
404(b)(1) Guidelines themselves provide sufficiently specific criteria against which to
compare proposed Tribal and State programs.

National Association of Wetland Managers (NAWM) (EPA-HO-QW-2020-0276-0072-0014)

2. The proposed rule is requesting comment on how States and Tribes can document that
there is program equivalency between the 404(b)(1) Guidelines and the applying
authority's regulations. While, as indicated within the rule, the simplest method would be
to incorporate the Guidelines by reference, it may be that applying States or Tribes already
have regulatory language which is equivalent and so would not need to amend existing
regulations. It also affords flexibility to a State or Tribe to allow for the justification of
program stringency equal to the federal one without simply incorporating the Guidelines
verbatim. Since the Regional Administrator is the determiner of equivalency for EPA, it
would seem prudent for the agency to develop a list of elements contained within the
404(b)(1) Guidelines which it will use to make this judgement and require applying

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authorities to make a step-by-step comparison between their regulations and the
Guidelines. This sets a clear expectation for applicants, informs the public as to how the
equivalency determination was made, and establishes a "bar" for States and Tribes to plan
for and make regulatory adjustments accordingly.

Agency Response: To the extent the commenter suggests that Tribes and States that
already have regulatory language that provides sufficient authority to issue permits
that apply and assure compliance with the 404(b)(1) Guidelines need not adopt
verbatim or incorporate the 404(b)(1) Guidelines, the Agency agrees. To the extent
the commenter suggests that EPA should develop a checklist of elements contained
within the 404(b)(1) Guidelines either in the final rule or in guidance, the Agency
disagrees. The 404(b)(1) Guidelines themselves provide sufficiently specific criteria
against which to compare proposed Tribal and State programs without EPA setting
out an additional checklist.

Port Gamble S'Klallam Tribe (PGST^) (EPA-HO-OW-2020-0276-0078-002QN)

If a state assumes Section 404 permitting authority, EPA may object to a proposed permit
that is inconsistent with the CWA Section 404(b)(1) Guidelines. 33 U.S.C. § 1344(j).
However, EPA currently only reviews approximately 2-5% of the total permit applications
received by the states that are administering Section 404 programs.

Agency Response: Under the final rule, the Agency retains its oversight authority
over permits issued by Tribal and State section 404 programs. See 40 CFR 233.50-
53. For a discussion of how the final rule proposes to clarify certain aspects of EPA's
oversight, see Section IV.E of the final rule preamble. The manner in which the
Agency implements its oversight authority on a permit-by-permit basis is beyond the
scope of this rulemaking.

Port Gamble S'Klallam Tribe (PGST^) (EPA-HO-OW-2020-0276-0078-0Q29N)

EPA should include in the regulations a requirement that assuming states must adopt or
incorporate by reference the CWA Section 404(b)(1) Guidelines. Although states may
have alternative avenues that may be parallel to the 404(b)(1) Guidelines, the only way to
ensure that the standards of the Guidelines will be met is if they are fully adopted or
incorporated. Adopting or incorporating the 404(b)(1) Guidelines does not unnecessarily
constrain states' ability to conduct state-specific analyses or require additional
information, it merely ensures that the state's requirements are at least as stringent as the
Guidelines.

Agency Response: See Response to Comment EPA-HQ-OW-2020-0276-0063-0033.
See also Section IV.A.2 of the final rule preamble for further discussion on the
Agency's rationale.

Great Lakes Indian Fish and Wildlife Commission (EPA-HQ-OW-2020-0276-0080-0008)

II. Permit Requirements. EPA should include in the regulations a requirement that
assuming states must adopt or incorporate by reference the CWA Section 404(b)(1)
Guidelines. Although states may have alternative avenues that may be parallel to the

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404(b)(1) Guidelines, the only way to ensure that the standards within the Guidelines will
be met is if they are fully adopted or incorporated. Adopting or incorporating the 404(b)(1)
Guidelines does not unnecessarily constrain states' ability to conduct state- specific
analyses or require additional information, it merely ensures that the state's requirements
are at least as stringent as the Guidelines.

Agency Response: To the extent the commenter asserts that CWA Section
404(h)(l)(A)(i) mandates that Tribes and States adopt verbatim or incorporate the
404(b)(1) Guidelines, the Agency disagrees. See Response to Comment EPA-HQ-
OW-2020-0276-0063-0033. See also Section IV.A.2 of the final rule preamble for
further discussion of the Agency's rationale.

Tulalip Tribes of Washington (EPA-HO-OW-2020-0276-0082-00Q5N)

Tulalip insists that any final rulemaking requires that states fully adopt Section 404(b)(1)
Guidelines to guarantee that the Section 404(b)(1) Guidelines will be met. Relatedly, the
EPA should mandate that the Section 404(b)(1) analysis to be automatically updated for
every five-year permit cycle.

Agency Response: To the extent the commenter asserts that CWA Section
404(h)(l)(A)(i) mandates that Tribes and States adopt verbatim or incorporate the
404(b)(1) Guidelines, the Agency disagrees. See Response to Comment EPA-HQ-
OW-2020-0276-0063-0033. See Section IV.A.2 of the final rule preamble for more
discussion of the Agency's rationale. To the extent the commenter recommends that
EPA should mandate that a Tribe or State must automatically update its analysis of
how a permit applies and assures compliance with the 404(b)(1) Guidelines every five
years, see Section IV.C.l of the final rule preamble.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q29N)

EPA should include in the regulations a requirement that assuming states must adopt or
incorporate by reference the CWA Section 404(b)(1) Guidelines. Although states may
have alternative avenues that may be parallel to the 404(b)(1) Guidelines, the only way to
ensure that the standards of the Guidelines will be met is if they are fully adopted or
incorporated. Adopting or incorporating the 404(b)(1) Guidelines does not unnecessarily
constrain states' ability to conduct state specific analyses or require additional information,
it merely ensures that the state's requirements are at least as stringent as the Guidelines.

Agency Response: To the extent the commenter asserts that CWA Section
404(h)(l)(A)(i) mandates that Tribes and States adopt verbatim or incorporate the
404(b)(1) Guidelines, the Agency disagrees. See Response to Comment EPA-HQ-
OW-2020-0276-0063-0033. See Section IV.A.2 of the final rule preamble for further
discussion of the Agency's rationale.

Chickaloon Native Village (CNV) (EPA-HQ-OW-2020-0276-0085-0030)

EPA should also require that the MOA between the assuming state and the Corps include
a provision that federal law will control injudicial review when a challenger alleges non-
compliance with the Section 404(b)(1) Guidelines. Federal courts have already interpreted

9

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how the 404(b)(1) Guidelines apply, whereas applicant states do not have that experience
interpreting the requirements of the Section 404(b)(1) Guidelines.

Agency Response: To the extent the commenter proposes that the final rule require
that federal law will control in a challenge alleging in state court that a state-issued
permit is not consistent with the 404(b)(1) Guidelines, the Agency disagrees as Tribal
and State actions subject to Tribal and State law. See Response to Comment EPA-
HQ-OW-2020-0276-0063-0033. See also Section IV.A.2 of the final rule preamble for
a discussion of the Agency's rationale.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-00Q6N)

Agency Response: Under the final rule, the Agency retains its oversight authority
over permits issued by Tribal and State section 404 programs. See 40 CFR 233.50-
53. For a discussion of how the final rule proposes to clarify certain aspects of EPA's
oversight, see Section IV.E of the final rule preamble. The manner in which the
Agency implements its oversight authority on a permit-by-permit basis is beyond the
scope of this rulemaking.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q18N)

EPA's proposed rule must clearly require that state permits apply the 404(b)(1) Guidelines
and not simply be "consistent with" as the proposed rule is currently drafted. While true,
if a state assumes Section 404 permitting authority EPA may object to a proposed permit
that is inconsistent with or does not "apply, and assure compliance with" any applicable
requirements in Section 404, including but not limited to the Clean Water Act Section
404(b)(1) Guidelines, that potential for an objection provides little assurance. [Footnote
27: 33 U.S.C. § 1344(j).] EPA currently only reviews approximately 2-5% of the total
permit applications received by the states that are administering Section 404 programs.

Agency Response: To the extent the commenter suggests that use of the term
"consistent with" the 404(b)(1) Guidelines in the proposed rule preamble has a
meaning other than that Tribal and State CWA section 404 programs must have
authority to issue permits that "apply, and assure compliance with" the 404(b)(1)
Guidelines, the Agency disagrees. The proposed rule preamble uses the phrase
"consistent with" interchangeably with its description of the relevant authority.
Regardless, the Agency has revised the language in a number of places to make clear
that it is the Agency's interpretation that permits issued by Tribal and State CWA
section 404 programs must comply with the 404(b)(1) Guidelines.

Under the final rule, the Agency retains its oversight authority over permits issued
by Tribal and State section 404 programs. See 40 CFR 233.50-53. For a discussion of
how the final rule proposes to clarify certain aspects of EPA's oversight, see Section
IV.E of the final rule preamble. The manner in which the Agency implements its

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oversight authority on a permit-by-permit basis is beyond the scope of this
rulemaking.

2.2 Demonstrating Tribes and States have sufficient authority to apply and assure compliance
with the CWA 404(b)(1) Guidelines

Individual commenter (EPA-HO-QW-2020-0276-0050-0008^

For their applications, I would recommend Tribes and States focus on identifying
vulnerable areas, how they would avoid significant degradation, and impacts of human use
characteristics. These are aspects of the program that, although related to the permitting
aspect, are not explicitly lined out in the program. Including them would show initiative
and what the Tribe or State will prioritize post-assumption. I also think that States should
consider the impacts on Tribes and Tribal interests if they were to assume the section 404
program and finalize this in a Memorandum of Agreement with the Tribe(s).

Agency Response: The Agency appreciates the comment. Pursuant to CWA section
404(h)(l)(A)(i), EPA may approve a Tribal or State request for assumption only if
EPA determines, among other things, that the Tribe or State has authority "[t]o issue
permits which - (i) apply, and assure compliance with, any applicable requirements
of this section, including, but not limited to, the guidelines established under
subsection [404](b)(l)...." Consistent with CWA section 404(h)(l)(A)(i), the existing
section 404 Tribal and State program regulations require that permits issued by
Tribes and States apply and assure compliance with the 404(b)(1) Guidelines. See 40
CFR 233.1(d); 233.20(a)); 233.23(a)); and 233.34(a). Among other things, the CWA
404(b)(1) Guidelines direct that "no discharge of dredged or fill material shall be
permitted" if there is a less environmentally damaging practicable alternative, so long
as the alternative does not have other significant adverse environmental
consequences (40 CFR 230.10(a)); if it would cause or contribute to violations of
applicable water quality standards taking into account disposal site dilution and
dispersion (40 CFR 230.10(b)(1)); if it would cause or contribute to significant
degradation of waters of the United States (40 CFR 230.10(c)); or if it would
jeopardize the continued existence of listed endangered or threatened species under
the Endangered Species Act of 1973 or result in the likelihood of the destruction or
adverse modification of designated critical habitat (40 CFR 230.10(b)(3)). See Section
IV.A.2 of the preamble to the final rule.

The final rule provides a number of ways in which Tribes can meaningfully engage
with Tribal and State section 404 programs. The final rule directs that assuming
Tribes and States provide for judicial review of Tribe or state-issued permits. In
addition, under the final rule, Tribes may request that EPA review permits that may
affect Tribal rights or interests within or beyond reservation boundaries. Tribes also
may receive notice and an opportunity to provide recommendations as an "affected
State" for purposes of 40 CFR 233.31 either by already having status of treatment
similar to a state (TAS) for any provision of the CWA or by specifically seeking TAS
for the purpose of commenting on proposed permits to be issued by a state. See
Section IV.F of the preamble to the final rule.

11

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Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0032)

EPA should include in the regulations a requirement that assuming states must adopt or
incorporate by reference the CWA Section 404(b)(1) Guidelines. Although states may
have alternative avenues that may be parallel to the 404(b)(1) Guidelines, the only way to
ensure that the standards of the Guidelines will be met is if they are fully adopted or
incorporated. Adopting or incorporating the 404(b)(1) Guidelines does not unnecessarily
constrain states' ability to conduct state specific analyses or require additional information,
it merely ensures that the state's requirements are at least as stringent as the Guidelines.

Agency Response: To the extent the commenter asserts that CWA Section
404(h)(l)(A)(i) mandates that Tribes and States adopt verbatim or incorporate the
404(b)(1) Guidelines, the Agency disagrees. If Congress had so intended, it could have
expressed that intent far more clearly than by directing that EPA "determine...
whether such State has the following authority with respect to the issuance of permits
pursuant to such programs ... (i) to apply, and assure compliance with [the 404(b)(1)
Guidelines]." See Response to Comments EPA-HQ-OW-2020-0276-0063-0033 for
further discussion. See also Section IV.A.2 of the final rule preamble for more
discussion of the Agency's rationale.

Port Gamble S'Klallam Tribe (PGSTI (EPA-HO-QW-2020-0276-0078-0030

EPA should also require that the MOA between the assuming state and the Corps includes
a provision that federal law will control injudicial review when a challenger alleges non-
compliance with the Section 404(b)(1) Guidelines. Federal courts have already interpreted
how the 404(b)(1) Guidelines apply, whereas applicant states do not have that experience
interpreting the requirements of the Section 404(b)(1) Guidelines. In the preamble, EPA
recognizes that compliance with the Section 404(b)(1) Guidelines may be challenging and
offers up suggestions for how states can demonstrate compliance, id. at 55297, but the
challenge itself indicates that states should simply incorporate the 404(b)(1) Guidelines to
ensure compliance.

Agency Response: To the extent the commenter proposes that the final rule require
that federal law will control in a challenge alleging in State court that a State-issued
permit is not consistent with the 404(b)(1) Guidelines, the Agency disagrees. Tribal
and State section 404 permits are Tribal and State actions subject to Tribal and State
law. To the extent the commenter recommends that the final rule require that Tribes
and States incorporate or adopt verbatim the 404(b)(1) Guidelines, the Agency
disagrees. See Response to Comment EPA-HQ-OW-2020-0276-0063-0033. See also
Section IV.A.2 of the final rule preamble for a discussion of the Agency's rationale.

Port Gamble S'Klallam Tribe (PGST^) (EPA-HO-OW-2020-0276-0078-0Q3 n

At the very least, applicant states must show with specificity how their proposals and state
laws and regulations match up with each provision of the Section 404(b)(1) Guidelines
and concede that federal court decisions and federal interpretations of the Guidelines will
receive deference injudicial review.

12

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Agency Response: The Agency agrees with the commenter that Tribal and State
section 404 programs must demonstrate sufficient authority to issue permits that
apply and assure compliance with the 404(b)(1) Guidelines. See Section IV.A.2 of the
final rule preamble for a further discussion.

To the extent the commenter proposes that the final rule require that federal law will
control in a challenge alleging in State court that a State-issued permit is not
consistent with the 404(b)(1) Guidelines, Tribal and State permits are Tribal and
State actions subject to Tribal and State law. See Response to Comment EPA-HQ-
OW-2020-0276-0063-0033.

The Agency disagrees to the extent the commenter asserts that federal interpretive
guidance is binding on Tribal and State programs. See Section IV.A.3 for a discussion
of the rule of federal interpretive guidance in Tribal and State section 404 programs.

State of Alaska Department of Environmental Conservation (EPA-HO-OW-2020-0276-0Q79-
0007")

EPA uses the proposed rule as a vehicle to offer suggestions regarding how States may
"demonstrate they have sufficient authority to issue permits that apply and assure
compliance with the CWA 404(b)(1) Guidelines." [Footnote 21: 88 Fed. Reg. 55296.].
EPA uses this section to advance interpretations of its existing regulations, such as: "EPA
considers the human use effects under subpart F ... to encompass impacts of proposed
discharges on Tribal interests, including impacts on fisheries and other aquatic resources,
aesthetics, and historic and cultural uses." [Footnote 22: 88 Fed. Reg. 55298],

Alaska's Attorney General Office is more than capable of demonstrating that the State has
sufficient authority to issue permits that assure compliance with the 404(b)(1) Guidelines.
We suggest EPA defer to a State Attorney General Office's evaluation of its own State's
authority.

Agency Response: The Agency appreciates the comment. CWA section 404(h)(1)
directs EPA to determine whether a Tribe or State seeking to assume implementation
of the CWA section 404 program has the authority as described in that subsection,
including whether the Tribe or State has "sufficient authority to issue permits that
apply, and assure compliance with [the 404(b)(1) Guidelines]." 33 U.S.C.
1344(h)(1)(A). The Agency will continue to carry out its statutory responsibility.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q3n

In the preamble, EPA recognizes that compliance with the Section 404(b)(1) Guidelines
may be challenging and offers up suggestions for how states can demonstrate compliance,
id. at 55297, but EPA can and should simply require an assuming state to incorporate the
404(b)(1) Guidelines to ensure compliance. Adoption and incorporation of the Guidelines
is especially important as EPA acknowledges that the only avenue where states may be
able to apply the equivalent of federal laws, such as the ESA and the NHPA, after state
assumption is through the application of the Guidelines. Id. at 55297, 55298. This is
especially important in a state like Alaska which has no federal equivalent to NEPA.

13

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At the very least, applicant states must show with specificity how their proposals and state
laws and regulations match up with each provision of the Section 404(b)(1) Guidelines
and concede that federal court decisions and federal interpretations of the Guidelines will
receive deference injudicial review.

Agency Response: The Agency agrees with the commenter that Tribal and State
section 404 programs must demonstrate sufficient authority to issue permits that
apply and assure compliance with the 404(b)(1) Guidelines. See Section IV.A.2 of the
final rule preamble for a further discussion.

To the extent the commenter asserts that CWA Section 404(h)(l)(A)(i) mandates that
Tribes and States adopt verbatim or incorporate the 404(b)(1) Guidelines, the
Agency disagrees. See Response to Comment EPA-HQ-OW-2020-0276-0063-0033.
See Section IV.A.2 of the final rule preamble for more discussion of the Agency's
rationale. The 404(b)(1) Guidelines themselves provide sufficiently specific criteria
against which to compare proposed Tribal and State programs.

To the extent the commenter proposes that the final rule require that federal law will
control in a challenge alleging in State court that a State-issued permit is not
consistent with the 404(b)(1) Guidelines, EPA disagrees as Tribal and State permits
are Tribal and State actions subject to Tribal and State law. See Response to
Comment EPA-HQ-OW-2020-0276-0063-0033.

The Agency disagrees to the extent the commenter asserts that federal interpretive
guidance is binding on Tribal and State programs. See Section IV.A.3 for a discussion
of the rule of federal interpretive guidance in Tribal and State section 404 programs.

2.3 Endangered Species Act

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-003QN)

III. EPA must ensure that ESA-listed threatened and endangered species are adequately
protected during EPA's review of state assumption applications as well as a state's
operation of an assumed 404 program.

The proposed rule fails to ensure that ESA-listed threatened and endangered species and
their habitats continue to receive the same level of protection under state-assumed
programs as they currently receive with federal 404 permitting. EPA must amend the rule
to address the intersecting requirements of the Endangered Species Act and Section 404.
And EPA must provide clear, binding guidelines to ensure that assuming states comply
with the Clean Water Act's independent requirement that no permit jeopardize protected
species or adversely modify or destroy critical habitat.

Agency Response: See Section IV.A.2 of the final rule preamble.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q3 n

A. EPA must address its ESA consultation obligations in the proposed rule.

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EPA itself has acknowledged that the agency must engage in consultation when deciding
whether to approve a Section 404 assumption application [Footnote 66: D. Ross, EPA,
Memorandum on Endangered Species Act Section 7(a)(2) Consultation for State and
Tribal Clean Water Act Section 404 Program Approvals, Aug. 27, 2020.]. The proposed
rule must be revised to ensure that in this programmatic consultation, EPA complies with
the ESA-mandates for formal consultation, including using the "best scientific and
commercial data available" considering the "effects of the action as a whole" to 50 C.F.R.
§ 402.14(c)-(d) [Footnote 67: We adopt and incorporate Earthjustice's prior comment
regarding EPA's obligation to consult on its decisions regarding 404 assumption
applications. Letter from Kristen Boyles et al., Earthjustice et al., to Kathy Hurld, EPA,
June 6, 2020],

EPA should commit to using the wealth of information available from federal 404
permitting in assumed states to analyze the effects of 404 permitting on protected species
and habitat. 50 C.F.R. §§ 402.12(f)(2)-(4), 402.14(c)(l)(i)(F), (c)(l)(iii), (vi). And EPA
must ensure that the wildlife agencies have access to that information when conducting
their consultation. Id. The agency must commit to fully and rigorously examining the
effects of its decision, including the cumulative effects. Id. §§ 402.14(f)(4), 402.14(c)(iv).
It must also ensure that the framework in place for permit review provides adequate
protections to ensure a thorough evaluation of the potential effects of a permitting decision
at the individual permit application level.

Agency Response: See Section IV.A.2 of the final rule preamble. EPA agrees that it
must ensure that the framework in place for permit review provides adequate
protections to ensure a thorough evaluation of the potential effects of a permitting
decision at the individual permit level. See 40 CFR 233.51.

Earthjustice et al. (EPA-HO-OW-2020-0276-0068-0Q32N)

The program approval stage provides an important point to consider potential adverse
impacts to species resulting from state 404 permitting decisions. Ultimately, the ESA
mandates that "[e]ach Federal agency," including EPA, "shall, in consultation with and
with the assistance of' the Services, ensure that any action it authorizes, funds, or carries
out is not likely to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification of critical habitat.
16 U.S.C. § 1536 (a)(2) (further explaining that in fulfilling this obligation, agencies must
"use the best scientific and commercial data available") (emphasis added). Approval of an
inadequate program has that potential, particularly given the importance of wetlands to
biodiversity, as described above. Further, this is not a situation in which EPA's hands are
tied by any sort of affirmative obligation to proceed even in the face of jeopardy to listed
species or adverse modification of critical habitat. Quite the opposite, the 404(b)(1)
Guidelines require that state permits ensure the absence of such results, and Section 404
requires EPA to ensure that a state program is adequate to do so. Further, the Clean Water
Act obligates EPA to transmit copies of a state's submission to wildlife agencies for
comment and to take any responsive comments received into account. 33 U.S.C. §
1344(g)-(h).

15

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Agency Response: See Section IV.A.2 of the final rule preamble. See also 40 CFR
233.50 and 233.51.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q33N)

B. EPA must engage in permit-specific ESA consultation pursuant to its oversight
authority over state permits.

The ESA imposes continuous duties on both EPA and the wildlife agencies to ensure that
the ongoing implementation and effects of 404 assumption will not jeopardize species or
adversely modify or destroy critical habitat. In addition to conducting programmatic
consultation at the time EPA decides to allow state assumption, EPA has a continuing
obligation to ensure that species are protected at the permit level.

Under Section 404(j), EPA retains authority and discretion over individual permits issued
by states under an assumed program. 33 U.S.C. § 1344(j). Section 404(j) requires that
copies of applications and proposed permits must be submitted to EPA for review and
comment and that EPA shall provide copies of the proposed permit to the Secretary of
Interior through the USFWS. Id. Further, Section 404(j) provides that if EPA uses its
discretion and authority to comment on a permit, EPA's comments must be resolved to
EPA's satisfaction before the permit may be issued by the state. Id. This discretionary
involvement allows EPA to object to the issuance of any permit that is outside of the
requirements of the 404(b)(1) Guidelines, including the guideline that prohibits any permit
from jeopardizing protected species or adversely modifying or destroying critical habitat.
Id.; 40 C.F.R. §§ 233.50, 233.51(b)(2).

EPA should amend 40 C.F.R. § 233.50 to make clear that its review pursuant to Section
404(j) triggers EPA's ESA consultation obligations for any state-permitted project that has
the reasonable potential to impact protected species and that EPA will review and comment
on the subject permit. EPA's rules must also require that state permit applications and
proposed permits disclose and highlight the following information: (1) a list of all ESA-
listed species likely to be present all or part of any given year within the affected area of
the permitted project; (2) the location of the permitted project relative to proposed or
designated critical habitat for listed species; (3) impacts, including direct, indirect, and
cumulative, to protected species or their critical habitat as a result of the permitted activity;
and (4) all proposed, enforceable permit requirements that would ensure the protection of
the identified protected species from jeopardy and incidental take and avoidance of
destruction or adverse modification to critical habitat.

EPA's rule must also explicitly require that if a permitted project will occur within
proposed or designated critical habitat for a protected species, or if disclosed impacts,
direct, indirect, or cumulative, have the reasonable potential to harm or jeopardize a
protected species, then (1) EPA retains full authority over the permit for the project; and
(2) EPA shall comment on and ensure protection of the protected species and habitat by
requiring adequate permit terms to address species protections specifically designed to
ensure no incidental take occurs.

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Agency Response: See Section IV.A.2 of the final rule preamble. This rulemaking
addresses compliance with the CWA, not the ESA. EPA declines to codify obligations
under the ESA in its regulations implementing CWA section 404. EPA notes that
EPA has the opportunity to review all Tribal and State permit applications with
reasonable potential to affect endangered or threatened species as determined by the
Fish and Wildlife Service. See 40 CFR 233.51(b)(2). EPA also shares these permits
with the USFWS, NMFS and the Corps for their review and has the opportunity to
provide comment, recommendations, conditions on these permit applications or
object to the issuance of the permit. See 40 CFR 233.51(b)(2).

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q34N)

As to EPA's review of state permits, EPA should also revise 40 C.F.R. § 233.51(b)(2) to
read, "Discharges with reasonable potential for affecting endangered and threatened
species and proposed or designated critical habitat as determined by FWS and NMFS" in
order to conform to ESA obligations for the protection of listed species. See 40 C.F.R. §
233.51(b)(2) (proposed addition emphasized). Although it is implicit that discharges that
damage critical habitat also harm listed species, this language change would eliminate any
potential for misunderstanding as to the obligations at issue. EPA should also interpret this
provision as giving USFWS and NMFS the role and responsibility to determine whether a
permit has the reasonable potential to affect threatened and endangered species. If EPA
decides to continue to allow state agencies to make an initial determination of impacts to
protected species, the agency must require record-based concurrence from the wildlife
agencies prior to permit approval to ensure that state agencies may not unilaterally exclude
permits from EPA's review when those permits may, in fact, impact protected species.

The proposed rule, in allowing a state to demonstrate no jeopardy to EPA, 88 Fed. Reg. at
55,297, improperly places EPA in the position of determining jeopardy and adverse
modification/destruction, a role reserved for the wildlife agencies pursuant to the ESA. 16
U.S.C. § 1536. The preamble to the proposed rule vaguely identifies ways by which a state
may demonstrate its permits will not jeopardize protected species or adversely modify or
destroy critical habitat, stating that they could provide certain information in the
submission and "include in the program submission provisions and procedures to protect
listed species and habitat." 88 Fed. Reg. at 55,297. It provides no guidance, however, on
what protections and processes are necessary. At the federal level, a body of law
concerning the obligations to avoid jeopardy and adverse modification exists under and in
the judicial decisions construing the ESA. States must, at a minimum, provide the same
level of protection in their own permit processes. EPA cannot step into the shoes of the
wildlife agencies, particularly where Congress has spoken. Moreover, EPA does not have
the experience and expertise necessary to make a jeopardy determination.

In addition, EPA should not allow the use of a non-statutory technical assistance process
that lacks the same level of guardrails and requirements as the ESA (e.g., the use of the
best available science) and allows a state to issue permits without input from the wildlife
agencies, without having to use the best available science, without evaluating the baseline
status of species, without evaluating the permit-specific and cumulative impacts on
species, without a jeopardy determination, and without incidental take limits.

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Agency Response: See Section IV.A.2 of the final rule preamble. This rulemaking
addresses compliance with the CWA, not the ESA. EPA decided not to modify 40
CFR 233.51(b)(2) to state that it will not waive review of "[discharges with
reasonable potential for affecting endangered and threatened species and proposed
or designated critical habitat as determined by USFWS and NMFS" (proposed
addition emphasized) because CWA 404(j) and 404(m) specifically identify the
USFWS, not NMFS, for review of section 404 permit applications. This is likely
because the Corps generally retains administrative authority over those waters
where NMFS addresses endangered and threatened species and critical habitat, such
as coastal waters, tidal waters, and wetlands adjacent to these waters. In addition,
many Tribes and States do not have coastal waters and therefore would not have
species under the protection of NMFS. However, in the event a Tribe or State seeking
to assume section 404 permitting authority would assume waters where NMFS
addresses the relevant threatened or endangered species and critical habitat, EPA
encourages that Tribe or State to incorporate into its MO A with EPA that it would
not waive EPA's review of "[discharges with reasonable potential for affecting
endangered and threatened species and proposed or designated critical habitat as
determined by USFWS and NMFS." EPA could work with the assuming Tribe or
State at that time to codify this change in its MOA.

National Association of Home Builders (NAHm (EPA-HO-OW-2020-0276-0077-0Q17N)

However, two other specific barriers, including the lack of available mitigation credits and
delays during the Endangered Species Act (ESA) Section 7 consultation process that will
occur within states that assume the program, must also be addressed.

Agency Response: The lack of available credits and delays during the ESA section 7
consultation process are outside of the scope of this rulemaking. EPA would be glad
to work with stakeholders separately to try to assist in addressing these separate
concerns.

State of Alaska Department of Environmental Conservation (EPA-HO-OW-2020-0276-0079-

0027")

Notably, the Proposed Rule does not address what has been a large hurdle for some States
considering assumption: clarity on the issue of liability under the Endangered Species Act.
Alaska urges EPA to state that Florida's approach - completing a programmatic evaluation
- should be used as a model. If EPA disagrees with this, EPA should indicate its reasons
for disagreeing - and offer a better solution.

Agency Response: See Section IV.A.2 of the final rule preamble.

Center for Biological Diversity (EPA-HO-OW-2020-0276-0083-001QN)

Similarly, the EPA has completed several biological opinions on aspects of its water
program, including a consultation for its 316(b) regulations,[Footnote 33: Cooling Water
Intake Structure Coalition v. US EPA, 905 F. 3d 49 (2nd Cir. 2018)] a consultation on the
NPDES general permit for storm water, [Footnote 34: EPA, Storm water Discharges
https://www.epa.gov/npdes/stormwater-discharges-industrial-activities-threatened- and-

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endangered-species (last accessed May 13, 2022).] and consultations on the use of
organophosphate pesticides. [Footnote 35: NOAA, Pesticide Consultations
https://www.fisheries.noaa.gov/national/consultations/pesticide-consultations	(last

accessed May 13, 2022).] For each of these programmatic types of action, the EPA could
not predict exactly when or where a third party will choose to apply a pesticide, or the
choice by a third party of technology at any specific facility to address thermal impacts or
the amount of pollution from a third party will seek in a general permit for stormwater (not
to mention predicting when or how much it will rain). Nonetheless, the EPA's
authorizations provided the necessary legal approval for such activities to eventually
occur, influenced and shaped the actions of numerous (perhaps countless) third parties,
and ultimately impacted the conservation status of numerous endangered species. The EPA
itself has already stated that "going forward, EPA has determined that it should consult
with the Services under Section 7 of the ESA if a decision to approve a state or tribal CWA
Section 404 program may affect ESA-listed species or designated critical habitat" and
notes that his view is supported by both the text and legislative history of the CWA support
requiring consultation.[Footnote 36: U.S. EPA, Memorandum on Endangered Species Act
Section 7(a)(2) Consultation for State and Tribal Clean Water Act Section 404 Program
Approvals at 1] However, the EPA must endeavor to consult on the front-end on the
entirety of the assumption rule and ensure that the regulatory text is strong enough to
ensure actual compliance with the ESA at assumption.

Agency Response: See Section IV.A.2 of the final rule preamble.

Center for Biological Diversity (EPA-HO-OW-2020-0276-0083-0Q1 n

EPA's prior actions approving state-administration of wetlands program have been
disastrous for the overall health of wetlands and wetland-dependent species. Instead of
effectuating the purposes of the Clean Water Act, EPA has approved delegation with no
guardrails to prevent underfunded and understaffed state-agencies from expediting
wetlands approvals with zero regard for wetland-dependent listed species. As written, the
proposed rule provides no concrete metrics that will ensure delegation benefits wetland
conservation moving forward resulting in subsequent action that will clearly lead to a "may
effect" determination for hundreds of listed species, including the Everglades snail kite,
Florida panther, and Topeka shiner.

Agency Response: See Sections II.A and IV.A.2 of the final rule preamble. EPA's
actions approving specific Section 404 programs are outside of the scope of this
rulemaking.

Center for Biological Diversity (EPA-HO-QW-2020-0276-0083-0012^

Florida's improper and illegal administration of its wetlands program is emblematic of the
harm associated with an improper delegation of authority. Until recently, the State of
Florida consistently applied a court-invalidated definition of "Waters of the United States"
when identifying jurisdictional waters in Florida, with no meaningful recourse.
Furthermore, the state- driven, non-statutory "technical assistance" process established to
review endangered species impacts falls far short of the Endangered Species Act's
requirements, which are intended to ensure against jeopardy for all listed species. Under
this framework, it appears that if the Services were to neglect to participate, they would

19

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effectively abdicate their duty to make project-specific jeopardy determinations while state
permitting proceeded forward. Furthermore, there is no clear mechanism for citizens to
enforce the requirements of the Endangered Species Act in connection with this
insufficient framework.

Agency Response: See Section IV.A.2 of the final rule preamble. This rulemaking
addresses compliance with the CWA, not the ESA. Implementation of an individual
State or Tribal section 404 program or compliance of any particular State program
with the requirements of the CWA or any other statute are outside of the scope of
this rulemaking. EPA notes that on February 15,2024, the U.S. District Court for the
District of Columbia issued an order vacating the EPA's approval of the Florida's
CWA section 404 assumption request. The U.S. Army Corps of Engineers is the
section 404 permitting authority within Florida at this time.

Center for Biological Diversity (EPA-HO-OW-2020-0276-0083-0Q13N)

Alaska's ambition to assume 404 authority presents similar problems. Notwithstanding
glaring issues of capacity and funding the Alaska - which include recent legislative
decisions to axe funding for 404 delegation - the state has repeatedly signaled support
permits that EPA would eventually deny or pushed forward projects that ultimately
required federal involvement.[Footnote 37: James Brooks Committee Axes Funding for
Alaska's Effort to Take Over a Federal Wetlands Permitting Program ALASKA BEACON
(March 28, 2023) https://alaskabeacon.com/2023/03/28/committee-removes-funding-for-
alaskas- effort-to-take-over-a-federal-wetlands-permitting-program/]

EPA ultimately vetoed the massive, open-air Pebble Mine project in Bristol Bay, a decision
that Alaska vehemently opposed despite unacceptable harms to a one-of-a-kind ecosystem,
local fisheries, and risk to imperiled species like the northern sea otter, Steller's eider, and
short-tailed albatross.[Footnote 38: Office of Governor Mike Dunleavy, EPA's
Preemptive Veto Sets Dangerous Precedent (Jan. 31, 2023) https://gov.alaska.gov/epas-
preemptive-veto-sets-dangerous-precedent/; U.S. FWS Proposed Pebble Mine Project
Section 7 Consultation (June 18, 2020)

https://www.fws.gov/sites/default/files/documents/2020-F-

0279 USACE%2C%20USCG%2C%20BSEE Pebble%20Mine s7%20ack%201tr 2020
0618.pdf] The Izembek Refuge road - which would require a 404 permit and potentially
harm endangered eider species by building a road directly through a wildlife refuge - was
also supported by Alaska, even as the Department of the Interior withdrew the land
exchange at the heart of the controversy. [Footnote 39: Alaska Department of Law, Alaska
and King Cove Corp. Seek to Halt Secretary Haaland's Withdrawal From Izembek Land
Exchange (April 27, 2023) https://law.alaska.gov/press/releases/2023/Q42723-
KingCove.html; Harvard Environmental & Energy Law Program, The Izembek Refuge
Road (last accessed Oct. 12, 2023) https://eelp.law.harvard.edu/2021/02/the-izembek-
refuge-road/] The risk of harm is especially stark for the wetland-dependent, critically
endangered, Everglade snail kite. The main threat to the Everglade snail kite is the loss
and degradation of wetlands, as excessive drainage and development have reduced its
essential habitat over time.[Footnote 40: Fla. FWC, Everglade Snail Kite (accessed Oct.
4, 2023) https://myfwc.com/wildlifehabitats/profiles/birds/raptors- and-
vultures/everglade-snail-kite/] The snail kite is unique in that it is almost entirely

-------
dependent on the Florida apple snail as its food source.[Footnote 41: U.S. FWS, Everglade
Snail Kite 5-Year Review at 6 (July 1, 2023) https://ecosphere-documents-production-
public.s3.amazonaws.com/sams/public_docs/species_nonpublish/4500.pdf] This endemic
snail is wetland-dependent, and the snail kite's hooked beak is specially adapted for
removing the snail from its shell. Loss of wetlands drastically reduces the bird's prey and
subsequent survival. Given that the Everglade snail kite is one of the rarest birds in the
country and heavily impacted by wetland loss, any action that expedites or authorizes
additional wetlands loss clearly crosses the "may effect" and "likely to adversely affect"
thresholds requiring consultation with expert wildlife agencies.

Conversion of habitat potential authorized by the EPA's assumption rule would push the
Florida snail kite and hundreds of other species towards extinction. Highly specialized
plants such as the mountain sweet pitcher plant also rely on the unique hydrology of
mountain wetland bogs - one of the rarest and most imperiled habitat types in the
Southeastern United States - and are threatened by continued conversion of
wetlands.[Footnote 42: U.S. FWS, Mountain Sweet Pitcher Plant 5- Year Review at 19
(June 10, 2021) https://ecosphere-documents- production-

public. s3.amazonaws.com/sams/public_docs/species_nonpublish/996.pdf] The highly
imperiled Salt Creek tiger beetle has also historically faced risk from loss of saline
wetlands in Nebraska.[Footnote 43: U.S. FWS, 5-Year Review for the Salt Creek Tiger
Beetle (Aug. 31, 2022)] Wetland loss also further reduces stream habitat for imperiled fish
including the Topeka shiner, as it alters stream hydrology creating potentially unsuitable
environments.[Footnote 44: S.D. Dep't of Game, Fish & Parks, Topeka Shiner
Management Plan for the State of South Dakota, Rpt. No 2003- 10 (2003)
https://gfp.sd.gov/UserDocs/nav/TopekaShinerManagementPlan-Revised.pdf]
Copperbelly watersnakes were once abundant in Indiana, but continued conversion of
essential wetland habitat has imperiled the species, with the latest extensive survey in the
state revealing no snake occurrences.[Footnote 45: U.S. FWS, Copperbelly Watersnake
Northern Population Segment (Sept. 27, 2023) https://ecosphere-documents- production-
public. s3.amazonaws.com/sams/public_docs/species_nonpublish/10539.pdf] The Florida
panther relies upon wetlands as part of its last remaining habitat relative to its historic
range, and conversion throughout the state threatens the very existence of this iconic
cat.[Footnote 46: U.S. FWS, Florida Panther, 5-Year Review at 14-15 (Apr. 28, 2009)
https://ecosphere-documents-production-

public.s3.amazonaws.com/sams/public_docs/species_nonpublish/1347.pdf] Land

conversions that result in loss of wetlands are continuing throughout the range of the
Oregon spotted frog, and historic conversion effectively eliminated the amphibians from
the Willamette Valley.[Footnote 47: Endangered and Threatened Wildlife and Plants;
Threatened Status for Oregon Spotted Frog 79 Fed. Reg. 51658, 51699 (Aug. 29, 2014)]

Hundreds of species are imperiled by wetland loss, and a process that expedites wetland
conversion would clearly affect the Everglade snail kite, Salt Creek tiger beetle, mountain
sweet pitcher plant, Topeka shiner, Florida panther, copperbelly watersnake, Oregon
spotted frog, and hundreds of other listed species nationwide. EPA must comply with the
Endangered Species Act at the outset before finalizing this rule, in any subsequent

-------
approvals, and provide clear, binding guidelines to ensure that individual permits do not
jeopardize the existence of listed species or adversely modify or destroy critical habitat.

Agency Response: See Section IV.A.2 of the final rule preamble. This rulemaking
addresses compliance with the CWA, not the ESA. Compliance of any particular
State program, or potential Tribal or State program, with the requirements of the
CWA or any other statute, are outside of the scope of this rulemaking.

Center for Biological Diversity (EPA-HO-OW-2020-0276-0083-0006)

EPA discusses endangered wildlife primarily in the context of Section 404 Guidelines,
which are the substantive criteria used to evaluate dredge and fill permits promulgated
under Section 404(b)(1) of the Clean Water Act. States must subsequently demonstrate
that their assumed programs comply with all aspects of the Clean Water Act, including the
Section 404 Guidelines that in part require that permit conditions shall not "jeopardize the
continued existence of listed endangered or threatened species under the Endangered
Species Act of 1973 or result in the likelihood of the destruction or adverse modification
of designated critical habitat."[Footnote 12: 40 CFR 230.10(b)(3)], EPA contends that
complying with these guidelines could be challenging, but it highlights compliance with
endangered species protections as example. Instead of initiating Endangered Species Act
consultation as required by law to protect species at the front-end with assistance from
expert wildlife agencies, EPA recommends that a state could meet this requirement simply
by identifying a list of species, the types of discharges, any unique conditions, and any
state procedures aimed at protecting listed species and habitat.

Agency Response: To the extent the commenter asserts that the final rule would allow
Tribes or States to issue permits that do not assure compliance with the 404(b)(1)
Guidelines, the Agency disagrees. A Tribal- or State- issued permit cannot authorize
discharges of dredged or fill material if the discharge would jeopardize the continued
existence of listed endangered or threatened species under the Endangered Species
Act of 1973 (listed species) or result in the likelihood of the destruction or adverse
modification of designated critical habitat (40 CFR 230.10(b)(3)). See Section IV.A.2
of the final rule preamble for a discussion of the Agency's rationale.

Center for Biological Diversity (EPA-HO-OW-2020-0276-0083-00Q7N)

While EPA continues the disturbing trend of evading its legal obligations to consult and
ensure that its assumption rule does not jeopardize the existence of any listed species, in
passing the Endangered Species Act, Congress made a deliberate choice "to give
endangered species priority over the 'primary missions' of federal agencies" in order to
"halt and reverse the trend toward species extinction, whatever the cost."[Footnote 13:
Tenn. Valley Authority v. Hill ("TVA"), 437 U.S. 153, 175, 184, 185 (1978).]
Accordingly, Section 2(c) of the ESA establishes that it is "the policy of Congress that all
Federal departments and agencies shall seek to conserve endangered species and
threatened species and shall utilize their authorities in furtherance of the purposes of this
Act. "[Footnote 14: 16U.S.C. § 1531(c)(1).] The ESA defines "conservation" to mean "the
use of all methods and procedures which are necessary to bring any endangered species or

22

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threatened species to the point at which the measures provided pursuant to this Act are no
longer necessary."[Footnote 15: Id. § 1532(3).]

While many of the ESA's provisions work to effectuate the conservation goals of the
statute, the "heart of the ESA" is the interagency consultation requirements of Section
7.[Footnote 16: Western Watersheds Project v. Kraayenbrink, 632 F.3d 472, 495 (9th Cir.
2011); 16 U.S.C. § 1536.] To reach these goals, Section 7(a)(2) of the ESA requires federal
agencies to "insure that any action authorized, funded, or carried out by such agency . . .
is not likely to jeopardize the continued existence of any endangered species or threatened
species or result in the destruction or adverse modification of [the critical] habitat of such
species."[Footnote 17: Id. § 1536(a)(2).] "Action" is broadly defined to include "all
activities or programs of any kind authorized, funded, or carried out, in whole or in part"
by federal agencies and includes conservation measures, granting permits and licenses, as
well as actions that may directly or indirectly "cause modifications to the land, water, or
air."[Footnote 18: 50 C.F.R. § 402.02.] Section 7 consultations are required on an agency
action "so long as the agency has 'some discretion' to take action for the benefit of a
protected species "[Footnote 19: NRDC v. Jewell, 749 F.3d 776, 779-80 (9th Cir. 2014).]
If "an agency has any statutory discretion over the action in question, that agency has the
authority, and thus the responsibility, to comply with the ESA."[Footnote 20: Am. Rivers
v. United States Army Corps of Eng'rs, 271 F.Supp.2d 230, 251 (D.D.C. 2003) (emph.
added)).]

Agency Response: See Section IV.A.2 of the final rule preamble.

Center for Biological Diversity (EPA-HO-OW-2020-0276-0083-00Q8)

At the first step of the consultation process, an action agency must complete a biological
assessment or biological evaluation to identify species that may be affected. [Footnote 21:
16 U.S.C. § 1536(c).] If the agency determines that an action may affect a species —
whether such effects are beneficial or unknown in character and even if the effect is small,
indirect, or the result of cumulative actions —it must consult with the Services. [Footnote
22: 50 C.F.R. §§ 402.02, 402.14(a), (g).] The only exception to the consultation
requirement for a discretionary federal action is if the agency concludes its action will have
"no effect" on listed species or critical habitat.[Footnote 23: 50 C.F.R § 402.14(b); Am.
Fuel, 937 F.3d at 597.] As the D.C. Circuit held, the "inability to 'attribute' environmental
harms 'with reasonable certainty' ... is not the same as a finding that [it] 'will not affect'
or 'is not likely to adversely affect' listed species or critical habitat," and does not absolve
the agency's consultation duty.[Footnote 24: Am. Fuel Mfrs., 937 F.3d at 597-598 (D.C.
Cir. 2019)] If the action agency determines, after a biological evaluation or through
informal consultation with the Services, that the proposed action "may affect," but is "not
likely to adversely affect," any listed species or habitat,[Footnote 25: A finding that the
action "may affect" but is "not likely to adversely affect" means all effects are expected to
be "discountable, insignificant, or completely beneficial." Id. at xv, 3-12, 3-13.] then it
must obtain the written concurrence of the Services, and no further consultation is
required.[Footnote: 16 U.S.C. § 1536(c); 50 C.F.R. §§ 402.13(a), 402.14(b)(1).] If an
action agency determines that its action will "likely adversely affect" any listed species,
then a formal consultation must occur. In making these effects determinations, agencies
must use the "best scientific and commercial data available."[Footnote 27: 16 U.S.C. §§

23

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1536(a)(2), (c)(1).] Under the formal consultation process, the Services must complete a
biological opinion that evaluates the agency action. If the Services find that the action will
jeopardize a species or result in the destruction or adverse modification of critical habitat,
they must identify "reasonable and prudent alternatives" for the action that comply with
Section 7. [Footnote 28: 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h)(3).] If the action
will not result in jeopardy, then they must provide "reasonable and prudent measures" to
minimize take of any listed species, as well as an "incidental take statement," which
provides the action agency legal coverage for any remaining take that is
unavoidable.[Footnote 29: 16 U.S.C. § 1536(b); 50 C.F.R. §§ 402.14(h), (i).] Critically,
strict adherence to the procedural requirements of Section 7 and the consultation
regulations is absolutely necessary to ensure against the extinction of the nation's
biodiversity. As the Ninth Circuit aptly explained, "because the procedural requirements
are designed to ensure compliance with the substantive provisions ... the strict substantive
provisions of the ESA justify more stringent enforcement of its procedural
requirements."[Footnote 30: Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985).]

Agency Response: See Section IV.A.2 of the final rule preamble.

Center for Biological Diversity (EPA-HO-OW-2020-0276-0083-00Q9)

Congress always understood that the ESA's consultation process should apply broadly to
federal agency actions. The law requires that each agency "insure that any action
authorized, funded, or carried out by such agency" not jeopardize listed species or their
critical habitats. Almost by definition, an agency authorization covers those situations
where a federal agency has a role whereby the consequences of the agency action are
casually remote from the actual harms to listed species. Indeed, this is why the Services'
joint regulations specifically contemplate consultations applying to the promulgation of
regulations, and why the Services also developed additional procedures for both a
"framework programmatic action" and a "mixed programmatic action."[Footnote 31: 50
C.F.R. § 402.02]

Consultation on the Assumption Rule and subsequent program approvals are no more or
less complicated than other programmatic consultations that potentially apply over large
portions of the country on programmatic agency actions. For example, in 2011, the
Services completed consultations on the nationwide wildland firefighting program's
potential impact on listed species, especially aquatic species that are harmed by the
chemicals in fire-retardants dropped from aircraft.[Footnote 32: US Forest Service, 2011.
Nationwide Aerial Application of Fire Retardant on National Forest System Land; see
also, Forest Serv. Employees, for Envtl. Ethics v. U.S. Forest Serv., 726 F. Supp.2d 1195
(D. Mont. 2010).] No one would ever claim that the Forest Service can predict the place
that any specific wildfire would occur in the future, or if during the course of any particular
wildfire that the use of fire-retardant would be needed, or that the retardant chemical would
be applied over or near a specific body of water. Nonetheless, because there existed a
potential for harm — even indirect and causally distant harm — a consultation was
completed.

Agency Response: See Section IV.A.2 of the final rule preamble.

-------
Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q37N)

EPA must ensure that ESA-listed threatened and endangered species are adequately
protected during EPA's review of state assumption applications as well as a state's
operation of an assumed 404 program. The proposed rule misses the opportunity to provide
additional clarity, and the preamble includes potentially confusing language, with respect
to obligations to ensure that ESA-listed threatened and endangered species and their
habitats continue to receive the same level of protection under state-assumed programs as
they currently receive with federal 404 permitting. EPA should amend the rule to address
the intersecting requirements of the ESA and Section 404. And EPA should provide clear,
binding guidelines to ensure that assuming states comply with the Clean Water Act's
independent requirement that no permit jeopardize protected species or adversely modify
or destroy critical habitat.

The Preamble to the Proposed Rule ignores, and the Proposed Rule fails to clarify, EPA's
consultation obligations. EPA has taken inconsistent positions in the past with respect to
whether it has an obligation to engage in formal consultation under ESA Section 7 when
reviewing a state's application to assume permitting presently conducted by the Corps
under Section 404. The proposed rule misses the opportunity to solidify a position on this
issue, providing clarity and uniformity for future applications. Further, the preamble, by
mentioning other coordination with the U.S. Fish and Wildlife Service or the National
Marine Fisheries Service (USFWS, NMFS, or "the Services") without mentioning EPA's
own obligations under Section 7 might otherwise be misread to introduce confusion in this
regard.

Agency Response: See Section IV.A.2 of the final rule preamble.

Alaska Clean Water Advocacy et al. (EPA-HQ-OW-2020-0276-0086-0038)

The preamble to the proposed rules states that EPA "encourages Tribes and States to
consider proactively coordinating with the relevant [Services] regional or field offices
when developing their program submissions" and suggests that this "would facilitate
EPA's compliance with its obligations" under the Clean Water Act to provide the Services
"an opportunity to comment on" the submission.[Footnote 77: 88 Fed. Reg. at 55,297.]
Neither the preamble nor the proposed rule, however, say anything about EPA's obligation
to engage in ESA Section 7 consultation. But as EPA itself has acknowledged, the agency
must engage in consultation when deciding whether to approve a Section 404 assumption
application.[Footnote 78: D. Ross, EPA, Memorandum on Endangered Species Act
Section 7(a)(2) Consultation for State and Tribal Clean Water Act Section 404 Program
Approvals, Aug. 27, 2020 (discussing programmatic consultation, including in
circumstances where a State will assume authority over subsequent activity); see also 80
Fed. Reg. 26,832 (May 11, 2015)] EPA should revise this language and amend the
proposed rule to clarify that it will engage in Section 7 consultation concerning assumption
applications.

In that regard, the proposed rule must also be revised to ensure that in this programmatic
consultation, EPA engages in formal Section 7 consultation, which, among other
obligations, uses the "best scientific and commercial data available" to consider the

-------
"effects of the action as a whole."[Footnote 79: 50 C.F.R. § 402.14(c)-(d).] EPA should
commit to using the wealth of information available from federal 404 permitting in
assumed states to analyze the effects of 404 permitting on protected species and
habitat.[Footnote 80: 50 C.F.R. §§ 402.12(f)(2)-(4), 402.14(c)(i)(F), (c)(iii), (vi).] And
EPA must ensure that the Services have access to that information when conducting their
consultation.[Footnote 81: Id.] The agency must commit to fully and rigorously examine
the effects of its decision, including the cumulative effects.[Footnote 82: Id. §§
402.14(f)(4), 402.14(c)(iv).] It must also ensure that the framework in place for permit
review provides adequate protections to ensure a thorough evaluation of the potential
effects of a permitting decision at the individual permit application level.

Agency Response: See Section IV.A.2 of the final rule preamble.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q39N)

The program approval stage provides an important point to consider potential adverse
impacts to species resulting from state 404 permitting decisions. It also lends efficiency in
addressing any concerns of the Services and avoiding inadequacy or insufficient
protections at the program level. And the ESA requires that USFWS and EPA consider
those impacts at the programmatic level. Therefore, EPA must use its ESA role and
responsibilities to ensure that programmatic consultation on state 404 assumption is done
right.

Agency Response: See Section IV.A.2 of the final rule preamble.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-004QN)

We note that state assumption of 404 permitting does not fit neatly into the definitions of
"framework programmatic action" and "mixed programmatic action" as described in 50
C.F.R. § 402.02. A "framework programmatic action" addresses a framework for the
development of future actions that would themselves be subject to Section 7
consultation.[Footnote 83: See 50 C.F.R. § 402.02.] The nature of future state permitting
decisions is such that EPA's rules, as the agency currently construes them, do not
contemplate direct application of Section 7 to future state permitting decisions.
Meanwhile, a "mixed programmatic action" is one that approves a framework for future
actions that are not themselves subject to future Section 7 consultation as to each individual
action. See id. The definition, however, extends to circumstances in which the federal
action agency is approving both the framework and the actions themselves.[Footnote 84:
See id.] Here, EPA is not approving any permit, or future permit decision through the
proposed rules. As such, the regulations concerning incidental take statements for
"framework programmatic" or "mixed programmatic" actions would not be directly on
point. If EPA does revise the proposed rules to clarify that its own post- assumption review
right for permit applications under Section 404(j)[Footnote 85: 33 U.S.C. § 1344(j).]
triggers Section 7 consultation obligations, this would resolve the challenge of reconciling
EPA's present proposal with the USFWS regulations. This subsequent Section 7
consultation would be consistent with treatment of the review and approval of an
assumption request as a "framework programmatic action."

26

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Relatedly, USFWS has explained that if an incidental take statement at an early stage
would be based on information lacking detail, it would be difficult to write "sufficiently
specific and meaningful terms and conditions" to minimize the impact of take on the listed
species and "provide an accurate and reliable trigger for reinitiation of
consultation."[Footnote 86: 80 Fed. Reg. at 26,835.] Accordingly, USFWS has referenced
a "policy goal[]" of the Services to "focus the provision of incidental take statements at
the action level where such take will result "[Footnote 87: Id.] If in USFWS's view, it is
unworkable to prepare an incidental take statement at a programmatic stage ahead of the
action level at which it anticipates take, then its conclusion that it is unworkable to do so
would be equally true regardless of whether subsequent actions are, or are not, the subject
of future Section 7 consultation. The Services should not use Section 7 consultation as a
vehicle to issue any incidental take statement that does not meet the statutory requirements
and which is not based on a level information sufficient for the Services to provide specific,
meaningful terms.

Agency Response: See Section IV.A.2 of the final rule preamble.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q4n

Ultimately, the ESA mandates that "[e]ach Federal agency," including EPA, "shall, in
consultation with and with the assistance of' the Services, insure that any action it
authorizes, funds, or carries out is not likely to jeopardize the continued existence of any
endangered species or threatened species or result in the destruction or adverse
modification of critical habitat.[Footnote 88: 16 U.S.C. § 1536 (a)(2) (further explaining
that in fulfilling this obligation, agencies must "use the best scientific and commercial data
available").] Approval of an inadequate program has that potential, particularly given the
importance of wetlands to biodiversity, as described above. Further, this is not a situation
in which EPA's hands are tied by any sort of affirmative obligation to proceed even in the
face of jeopardy to listed species or adverse modification of critical habitat. Quite the
opposite, the 404(b)(1) Guidelines require that state permits ensure the absence of such
results, and Section 404 requires EPA to ensure that a state program is adequate to do so.
Further, the Clean Water Act obligates EPA to transmit copies of a state's submission to
USFWS for comment and to take any responsive comments received into
account.[Footnote 89: 33 U.S.C. § 1344(g)-(h).]

Agency Response: See Section IV.A.2 of the final rule preamble.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q42N)

EPA must engage in permit-specific ESA consultation pursuant to its oversight authority
over state permits with a reasonable potential for affecting ESA-listed species and critical
habitat. Under Section 404(j), EPA retains a measure of authority and discretion over
individual permits issued by states under an assumed program.[Footnote 90: Id. § 1344(j).]
Section 404(j) requires that copies of applications and proposed permits must be submitted
to EPA for review and comment and that EPA shall provide copies of the proposed permit
to the Secretary of Interior through the USFWS. [Footnote 91: Id.] Further, Section 404(j)
provides that if EPA uses its discretion and authority to comment on a permit, EPA's
comments must be resolved to EPA's satisfaction before the permit may be issued by the
state.[Footnote 92: Id.] This discretionary involvement allows EPA to object to the

27

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issuance of any permit that is outside of the requirements of the 404(b)(1) Guidelines,
including the Guideline that prohibits any permit from jeopardizing protected species or
adversely modifying or destroying critical habitat.[Footnote 93: Id.; 40 C.F.R. §§ 233.50,
233.51(b)(2).]

EPA should amend 40 C.F.R. § 233.50 to make clear that its review pursuant to Section
404(j) triggers EPA's ESA consultation obligations for any state-permitted project that has
the reasonable potential to impact protected species and that EPA will review and comment
on the subject permit. EPA's rules must also require that state permit applications and
proposed permits disclose and highlight the following information: (1) a list of all ESA-
listed species likely to be present all or part of any given year within the affected area of
the permitted project; (2) the location of the permitted project relative to proposed or
designated critical habitat for listed species; (3) impacts, both direct, indirect, and
cumulative, to protected species or their critical habitat as a result of the permitted activity;
and (4) all proposed, enforceable permit requirements that would ensure the protection of
the identified protected species from jeopardy and incidental take and avoidance of
destruction or adverse modification to critical habitat.

EPA's rule must also explicitly require that if a permitted project will occur within
proposed or designated critical habitat for a protected species, or if disclosed impacts,
direct or indirect, has the reasonable potential to harm a protected species, then (1) EPA
retains full authority over the permit for the project; and (2) EPA shall comment on and
ensure protection of the protected species and habitat by requiring adequate permit terms
to address species protections specifically designed to ensure no incidental take occurs.

Agency Response: See Section IV.A.2 of the final rule preamble. The CWA does not
provide a mechanism for EPA to assert authority over certain categories of section
404 permits. But see 33 U.S.C. 1344(j)-(m) and 40 CFR 233.50-51, providing an
opportunity for EPA to review draft Tribal or State permits, including permit
applications that would result in discharges with reasonable potential to affect
endangered or threatened species as determined by the US Fish and Wildlife Service
(USFWS); requiring EPA to circulate permit applications it receives to the USFWS
as well as other agencies; and authorizing EPA to object to permits based on failure
to comply with CWA section 404 and its implementing regulations. If an assuming
Tribe or State does not address EPA's objections within the statutory time frame,
the permit application is transferred to the Corps for processing. See 33 U.S.C.
13440).

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q43N)

EPA must ensure that state permit-level review includes protections at least as stringent as
federal requirements, including ESA Section 7 consultation, to ensure state programs
satisfy the 404(b)(1) Guideline that prohibits jeopardy of protected species and adverse
modification or destruction of critical habitat. The preamble to the proposed rule vaguely
identifies ways by which a state may demonstrate its permits will not jeopardize protected
species or adversely modify or destroy critical habitat, stating that they could provide
certain information in the submission and "include in the program submission provisions

28

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and procedures to protect listed species and habitat."[Footnote 94: 88 Fed. Reg. at 55,297.]
It provides no guidance, apart from reference to the 404(b)(1) Guidelines themselves,
however, on what protections and processes are necessary. At the federal level, a body of
law concerning the obligations to avoid jeopardy and adverse modification exists under
and in the judicial decisions construing the ESA. States must, at a minimum, provide the
same level of protections in their own permit processes.

Agency Response: This rule addresses compliance with the CWA, not the ESA. To
the extent the commenter asserts that the final rule would allow Tribes or States to
issue permits that do not assure compliance with the 404(b)(1) Guidelines, the Agency
disagrees. A Tribal- or State- issued permit cannot authorize discharges of dredged
or fill material if the discharge would jeopardize the continued existence of listed
endangered or threatened species under the Endangered Species Act of 1973 (listed
species) or result in the likelihood of the destruction or adverse modification of
designated critical habitat (40 CFR 230.10(b)(3)). See Section IV.A.2 of the final rule
preamble for a discussion of the Agency's rationale.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q44N)

Additionally, any state permit that is issued without federal Section 7 consultation would
require compliance with Section 10 of the ESA, concerning "take" of a listed species. The
final rule would benefit from an acknowledgement that state agencies may wish to
coordinate with federal agencies on whether Section 7 review will occur. This could help
to address whether the Section 10 process is needed.

Agency Response: See Section IV.A.2 of the final rule preamble.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-3-0Q14N)

EPA Rules Must Provide for Protection of ESA-Listed Species.
Fifth, EPA rules must ensure that ESA-listed species continue to receive the same level of
protection under state-assumed programs as they currently receive with Corps permitting,
including protections from take related to individual projects. Earthjustice has several
recommendations for EPA to consider as it moves forward with this rulemaking.
Under 404(h), EPA must consider any comments by the Secretary of Interior submitted on
a state application to assume 404 permitting. Section 404(h) also requires EPA to consider
whether a state seeking to assume 404 permitting has the authority to issue permits which
apply and assure compliance with the CWA Section 404(b)(1) Guidelines. Those
Guidelines include a provision that prohibits the permitting of a discharge if it jeopardizes
the continued existence of endangered or threatened species or results in the likelihood of
the destruction or adverse modification of designated critical habitat. 40 C.F.R.
230.10(b)(3). As a result of these directives, EPA must engage in Section 7 consultation
under the ESA regarding assumption of 404 permitting by a state. That consultation must
be meaningful and detailed, and EPA's rules should include criteria to ensure that the
consultation is robust.

Further, assuming this initial consultation is undertaken as a programmatic consultation,
EPA must first review its Section 404(b)(1) Guidelines to ensure they include requirements
adequate to protect listed species on a project basis. Then, EPA must include in its rules,

-------
in the consultation document, and in the MO A with the state, requirements for project-
level consultation requirements and procedures that are species- and project-specific and
that protect against jeopardy and take, through the requirements of 404(h)'s application of
the federal 404 guidelines, 404(j), and Section 10 of the ESA. Under 404(j), EPA retains
a measure of authority and discretion over individual permits issued by states under an
assumed program. Section 404(j) requires that copies of applications and proposed permits
must be submitted to EPA for review and comment and that EPA shall provide copies of
the proposed permit to the Secretary of Interior through the U.S. Fish and Wildlife Service.
Further, Section 404(j) provides that if EPA uses its discretion and authority to comment
on a permit, EPA's comments must be resolved to EPA's satisfaction before the permit
may	be	issued	by	the	state.

EPA's rules should make clear that this provision triggers EPA's ESA consultation
obligations for any state-permitted project that may affect a listed species and that EPA
will review and comment on the subject permit. EPA's rules must also, in order to ensure
protections for ESA-listed species are not degraded or lost as a result of assumption of the
permitting program by a state, require that permit applications and proposed permits
provided to EPA disclose and highlight the following information: (1) a list of all ESA-
listed species likely to be present all or part of any given year within the permitted project
location; (2) location of the permitted project relative to proposed or designated critical
habitat for a listed species; (3) impacts, both direct and indirect, to proposed or designated
critical habitat for a listed species as a result of the permitted activity; and (4) all proposed,
enforceable permit requirements for ensuring the protection of identified species from
jeopardy and take. If a permitted project will occur within proposed or designated critical
habitat for an ESA-listed species, or if disclosed impacts, direct or indirect, may likely
harm an ESA-listed species, then EPA's rules must be clear that EPA retains full authority
over the permits for the project and EPA shall comment on and ensure protection of the
ESA-listed species by requiring terms in the permit adequate to address species protections
specifically designed to ensure no take occurs.

Finally, EPA's rules must make clear that any MOA for an assumed program must include
an acknowledgement by the state that it is subject to the requirements of Section 9 of the
ESA and that the state is required to ensure that any permit issued under the assumed
program includes enforceable requirements of the permittee to ensure against any take of
any listed species, caused in any way, directly or indirectly, by the permitted project

Agency Response: See Section IV.A.2 of the final rule preamble.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-3-00Q4N)

Similar results will occur with the Endangered Species Act (ESA) and the National
Environmental Protection Act (NEPA); those harms will extend beyond tribes to all
citizens who have an interest in full public process and protections under all applicable
environmental laws. For the ESA, EPA must pay close attention to the disastrous
consequences, still playing out, of allowing Florida to assume 404 permitting in 2020. EPA
allowed Florida to assume the program on the basis of a programmatic Biological Opinion
that resulted in no real assessment or consultation of the impact to critically endangered
and threatened species dependent on Florida wetlands. EPA's approval also rested on a

30

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"technical assistance" process that has no basis in law. It punts ESA determinations to state
agencies while granting them, and state permittees, protection against take liability without
having to follow the processes laid out by Congress.

Agency Response: See Section IV.A.2 of the final rule preamble. Implementation of
specific section 404 Tribal or State programs is outside of the scope of this
rulemaking.

Earthiustice(EPA-HO-OW-2020-0276-0068-SD-5-000n

II. Delegation Of Cwa § 404 Duties To A State Is A Discretionary Action That Requires
Esa Consultation.

As EPA recognized in the Federal Register notice seeking public comment, EPA's position
has been that consultation under ESA § 7 is not required when EPA approves a state or
tribal request to assume CWA § 404 duties because EPA considered this to be a non-
discretionary action. 85 Fed. Reg. 30,953 (May 21, 2020). Reconsideration of this position
is appropriate: EPA's delegation of CWA § 404 programs to states or tribes is, in fact, a
discretionary action, one that requires consultation with FWS and NMFS.

Agency Response: See Section IV.A.2 of the final rule preamble.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-5-001QN)

B. Consultation on State Assumption of a CWA § 404 Program

By its very nature, assumption of the CWA § 404 program is a major undertaking. It
requires exhaustive review by EPA and the Services and, once implemented, immense
resources and training at the state level. CWA § 404 permits are required for all projects
that necessitate discharging dredge or fill material into Waters of the United States. This
implicates a massive amount of widely diverse projects, especially in states with numerous
listed species and vast surface waters.

Florida, a state currently pursing assumption of the CWA § 404 program, perhaps
illustrates this best. With over 130 listed species, more than 7,700 lakes (greater than 10
acres), 33 first-magnitude springs, 11 million acres of wetlands, almost 1,200 miles of
coastline, and approximately 27,561 linear miles of rivers and streams, water and
biodiversity are two of Florida's most prominent features [Footnote 2: See Florida Fish
and Wildlife Conservation Commission, Florida's Official Endangered And Threatened
Species List, 4 (2018), https://myfwc.com/media/1945/threatend-endangered- species.pdf;
Elizabeth Purdum, Florida Waters: A Water Resources Manual 49 (2002),
https://www.swfwmd.state.fl.us/sites/default/files/store_products/floridawaters.pdf;
Florida Department of State, Quick Facts, http://dos.myflorida.com/florida-facts/quick-
facts/; U.S. Geologic Survey, National Water Summary on Wetland Resources Water
Supply Paper 2425, https://water.usgs.gov/nwsum/

WSP2425/state_highlights_summary.html; Florida Department of Environmental
Protection, 2016 Integrated Water Quality Assessment for Florida 34 (2016)
https://floridadep.gov/sites/default/files/2016-Integrated-Report.pdf.]. Section 7

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consultation in Florida will involve analyzing limitless projects blanketing most of the
state to determine their potential impacts on numerous listed species.

Florida, however, has proposed that the Services engage in a one-time consultation that
would only identify procedural requirements for state permitting under Section 404 needed
to support the Services determination that assumption would not result in jeopardy to any
listed species. DEP White Paper, EPA Approval of State Assumption of Clean Water Act
Section 404 Program at 1-2. While programmatic consultation allows consultation on an
agency's multiple actions on a program, including a proposed program or regulation that
provides a framework for future proposed actions, 50 C.F.R. § 402.02, under Florida's
proposal, the truncated consultation would essentially give EPA wholesale approval from
the Services for specified and foreseeable actions without any analysis of the effects of the
whole action, jeopardy determinations, or take limits in direct contravention to the ESA's
mandate, implementing regulations, and numerous court holdings. See, e.g., Conner v.
Burford, 848 F.2d 1441, 1453-54 (9th Cir. 1988); N. Slope Borough v. Andrus, 642 F.2d
589, 608 (D.C. Cir. 1980); Wild Fish Conservancy v. Salazar, 628 F.3d 513, 521 (9th Cir.
2010); Forest Service Employees for Environmental Ethics v. U.S. Forest Service, 726 F.
Supp. 2d 1195, 1225-26 (D. Mont. 2010). Under such an approach, the Services will have
failed to fully consult on the action and EPA will not satisfy its burden to ensure that the
proposed action is not likely to jeopardize listed species or destroy or adversely modify
critical habitat.

The sheer number of listed species in Florida alone results in various circumstances for
permit review that a truncated consultation's blanket authority cannot adequately cover.
With Florida's vast waterways creating further complexities, Florida must explain to EPA
the scope and structure of its program, including the extent of state jurisdiction, the scope
of regulated activities, anticipated coordination (i.e. with biological agencies), and its
permit review criteria which must ensure no jeopardy to listed species. 40 C.F.R. §§
233.11, 233.20(a). EPA then has the daunting task to determine the adequacy of Florida's
authority to administer the CWA § 404 program. 40 C.F.R. § 233.1(a). This also includes
reviewing Florida's funding and manpower available for program administration and
estimated workload to determine its ability to administer the program. 40 C.F.R. § 233.11.

EPA then must determine whether Florida can fulfill the requirements of the CWA and its
implementing regulations, including section 404(b)(1) guidelines and the guidelines' no
jeopardy mandate. 40 C.F.R. §§ 233.1(a), 233.15(g). Indeed, section 404(b)(l)'s no
jeopardy requirement reiterates the requirements and considerations in ESA § 7(a)(2)
consultation. Accordingly, under a programmatic consultation, EPA must review Florida's
proposed criteria and process for ensuring state issued permits will not cause jeopardy to
listed species. More importantly, EPA may only approve Florida's program if it determines
the program fulfills this requirement while taking into account comments from the
Services and the Corps. 40 C.F.R. § 233.15(g).

Indeed, even under a programmatic consultation, if assumption is approved, the jeopardy
analysis cannot end. States like Florida must still ensure there will be no jeopardy to listed
species prior to the issuance of permits for the discharge of dredged or fill material

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pursuant to the CWA's 404(b)(1) guidelines. A state's program must be at least as stringent
as the federal program, which expressly requires that both individual and general permits
comply with the ESA.

The requirements regarding the robustness of a state program can be found in both the text
of the CWA and EPA's implementing regulations. CWA § 404(g), which provides for
state assumption of the § 404 permitting program, requires that a state certify in its
application that state law provides adequate authority to carry out the federal program.
EPA's implementing regulations prohibit states from "imposing] any less stringent
requirements for any purpose." 40 CFR § 233.1 (emphasis added).

The heart of the federal 404 permitting program can be found in the CWA § 404(b)(1)
guidelines. The purpose of the guidelines "is to restore and maintain the chemical,
physical, and biological integrity of waters of the United States through the control of
discharges of dredged or fill material." 40 C.F.R. § 230.1(a). The guidelines achieve this
purpose in part by prohibiting permits that will "[j]eopardize[] the continued existence of
species listed as endangered or threatened under the [ESA], or result[] in likelihood of the
destruction or adverse modification ... [of] critical habitat" unless an exemption is granted
by the Endangered Species Committee. 40 CFR § 230.10(b)(3). In order to restore and
maintain biological diversity, the Guidelines require ESA compliance for each and every
permit.

Given this framework, to assume the federal § 404 program, states must have a mechanism
to ensure that all permits comply with the ESA because a state program must be at least as
stringent as the federal requirements. To further cement the importance of the guidelines,
not only do EPA's assumption regulations require that state programs be as stringent as
the federal program, they expressly require that states comply with the guidelines in at
least two sections. 40 CFR § 233.23 requires that "[f]or each permit the [state] Director
shall establish conditions which assure compliance with all applicable statutory and
regulatory requirements, including the 404(b)(1) Guidelines" (emphasis added). In
addition, 40 CFR § 233.34 states that the state Director "will review all applications for
compliance with the 404(b)(1) Guidelines."

Furthermore, EPA's implementing regulations provide a process for the Services to inform
both EPA and states that have assumed the program when consultation is required. All
public notices for complete permit applications must be provided to EPA for review, which
must transmit them to the Services. 40 C.F.R. § 233.50(a)-(b). EPA cannot waive review
of permit applications for proposed discharges with "reasonable potential for affecting
endangered or threatened species" or discharges within "critical areas established under
State or Federal law." 40 C.F.R. § 233.51(b).

While EPA must consult on its discretionary decision to allow a state to take over a § 404
program, states cannot evade later, specific ESA consultation requirements through an up-
front abridged consultation. CWA § 404(b)(1) guidelines require compliance with the ESA
on a permit-by-permit basis, reinforcing the importance Congress gave to protection of
threatened and endangered species and habitat in the CWA § 404 permitting process.

33

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Agency Response: See Section IV.A.2 of the final rule preamble.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-5-0002N)

A. The U.S. Supreme Court Decision in National Association of Home Builders Held that
Assumption of CWA § 402 Programs by States Were Non-Discretionary Decisions that
Did Not Require ESA § 7(a)(2) Consultation.

ESA § 7(a)(2) requires any federal agency to consult with federal biological agencies to
ensure that any proposed action is "not likely to jeopardize the continued existence of any
endangered species or threatened species or result in the destruction or adverse
modification of habitat of such species." 16 U.S.C. §1536(a)(2). An agency "action"
includes all activities or programs of any kind authorized in part by federal agencies,
including the granting of permits. 50 C.F.R. § 402.02. The ESA's implementing
regulations provide that § 7(a)(2) applies to "all actions in which there is discretionary
Federal involvement or control." 50 C.F.R. § 402.03; see also Florida Key Deer v.
Paulison, 522 F.3d 1133, 1141 (11th Cir. 2008) (FEMA had discretion in administering
statute that required the agency to make flood insurance available in areas the agency
determined had adequate land use and control measures pursuant to criteria the agency
developed after considering information it deemed necessary to encourage adoption of
local measures to reduce development in flood-prone land and "otherwise improve long-
range land management and use of flood-prone areas" and therefore ESA applied); cf. Nat.
Res. Def. Council v. Houston, 146 F.3d 1118, 1125-26 (9th Cir. 1998) ("Where there is
no agency discretion to act, the ESA does not apply.").

The U.S. Supreme Court most recently addressed the question of discretionary
involvement or control in the context of the CWA in National Association of Home
Builders v. Defenders of Wildlife, 551 U.S. 644 (2007). Reviewing delegation to the state
of Arizona of the CWA § 402 program, a section of the Act that controls the issuance of
point source pollution permits, the Supreme Court held EPA's delegation of that
permitting program was non- discretionary and did not trigger ESA § 7(a)(2) consultation.
The Supreme Court looked to the statutory language of § 402(b) that states that the EPA
"shall approve each submitted program unless [it] determines that adequate authority does
not exist" pursuant to nine listed criteria. 33 U.S.C. § 1342(b) (emphasis added). In
reaching its decision, the Supreme Court evaluated the plain language of the statute, the
overall statutory scheme, and the EPA's implementing regulations for ESA § 7(a)(2). Nat'l
Home Builders Ass'n, 551 U.S. at 661-66.

The Supreme Court first determined that the meaning of "shall approve" was must approve
"unless" the nine criteria listed were not met. Id. at 662. This statutory command left no
room for agency discretion to consider the impact of delegation on protected species or
their habitat. Id. Second, reviewing the overall structure of § 402(b), the Supreme Court
held that, because § 402(b) states that the Administrator "shall approve" a state's NPDES
assumption application once it met nine enumerated criteria, it operates as both a "ceiling
as well as a floor." Id. at 663. Additionally, "nothing in the text of § 402(b) authorizes the
EPA to consider the protection of threatened or endangered species as an end in itself when
evaluating a transfer application." Id. at 671. Requiring consultation under ESA § 7(a)(2)

34

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would add an additional criterion and "raise[] that floor," creating an impermissible clash
with the mandate in § 402(b). Id. at 664. Finally, the Supreme Court deferred to the EPA's
interpretation that ESA § 7(a)(2) applied only to those situations in which there was room
for agency discretion in making a decision. Id. at 665. Because CWA § 402(b) set out a
clear mandate for the agency to only consider the enumerated criteria, there was no agency
discretion. Id. at 673.

Following Home Builders, courts determine whether an agency action is discretionary by
examining whether, given the plain language, purpose, and legislative history of a statute,
the "agency had some discretion to influence or change the activity for the benefit of a
protected species" when making its decision. Karuk Tribe of California v. U.S. Forest
Serv., 681 F.3d 1006, 1021 (9th Cir. 2012). Courts will also look to the implementing
regulations that the agency has promulgated under the statute and how the agency has
interpreted the statutory language over time to determine whether an agency action is
discretionary. Id. at 1025-26 (evaluating regulations that the Forest Service issued under
mining law to determine whether the agency had discretion to evaluate endangered species
before allowing mining activities to proceed).

Agency Response: See Section IV.A.2 of the final rule preamble.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-5-00Q3N)

B. Under Home Builders, Delegation of the CWA § 404 Program Is a Discretionary
Action.

Since 2010, EPA's position has been that the reasoning in Home Builders about CWA §
402 delegation being non-discretionary applied equally to CWA § 404 delegation, resting
its position primarily on the similar "shall approve" language in both sections. 85 Fed.
Reg. at 30,954. Through this request for comment, EPA acknowledges that it is
reconsidering its position. Given the plain language of the statute, EPA's regulations, and
the legislative history of the CWA, EPA should reverse its position and find that CWA §
404 delegation is a discretionary action that requires ESA § 7(a)(2) consultation.

Agency Response: See Section IV.A.2 of the final rule preamble. Implementation of
specific section 404 Tribal or State programs is outside of the scope of this
rulemaking.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-5-0004N)

1. The plain language of CWA § 404 requiring EPA to consider comments from FWS
makes EPA's delegation decision discretionary.

ESA consultation is required for an agency action if the statute leaves "some discretion"
for the agency to act for the benefit of a protected species. Nat'l Res. Def. Council v.
Jewell, 749 F.3d 776, 784 (9th Cir. 2014) (citing Karuk Tribe, 681 F.3d at 1024). The test
is whether, given the plain text and structure of a statute, the "agency could influence [an
activity] to benefit a listed species, not whether it must do so." Karuk Tribe, 681 F.3d at
1025 (citing Turtle Island Restoration Network v. Nat'l Marine Fisheries Serv., 240 F.3d

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969, 977 (9th Cir. 2003)). Here, § 404(g) - (h) do not embody a simple checklist. Instead,
these statutory sections include an additional step which requires EPA to "tak[e] into
account any comments" from FWS — leaving room for a consideration of threatened and
endangered species. CWA § 402(b), the section at issue in Home Builders, does not
mention threatened or endangered species nor require EPA to consider any agency
comments.

Courts have referred to statutes that leave agencies with no discretion as "checklist"
statutes. See, e.g., Alaska Wilderness League v. Jewell, 788 F.3d 1212, 1220-26 (9th Cir.
2015) (holding that CWA § 311 reads like a "checklist statute" not leaving any room for
agency discretion, despite the presence of some ambiguous language).

Unlike the CWA § 402(b) state assumption provision, § 404(g) and (h) explicitly state that
FWS must submit comments and EPA must consider them. 33 U.S.C. § 1344(g)(3) (" . . .
the Secretary [of the Army] and the Secretary of the Interior, acting through the Director
of the United States Fish and Wildlife Service, shall submit any comments with respect to
[a proposed State assumption] program and statement to the Administrator in writing.");
33 U.S.C. § 1344(h)(1) (" . . . the Administrator shall determine, taking into account any
comments submitted by the Secretary [of the Army] and the Secretary of the Interior,
acting through the Director of the United States Fish and Wildlife Service . . . "). This
additional step takes the CWA § 404 statutory language out of the checklist, non-
discretionary category. In CWA § 402, "[n]othing in the text . . . authorizes the EPA to
consider the protection of threatened or endangered species as an end in itself when
evaluating a transfer application." Nat'l Home Builders Ass'n, 551 U.S. at 671. By
contrast, CWA § 404(h) provides that additional step, requiring EPA to take into
consideration the federal biological agency's comments regarding the effects of state
assumption on protected species and habitat. EPA's consideration of listed species is "an
end in itself' that can alter the EPA's final decision, making a § 404(h) action
discretionary.

Agency Response: See Section IV.A.2 of the final rule preamble.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-5-0005N)

2. EPA's regulations support an interpretation that CWA § 404 delegation is discretionary.

EPA's regulations also direct the agency to take into consideration comments from FWS,
NMFS, and the Corps. 40 C.F.R. § 233.15(g) ("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 into consideration all comments received The Regional
Administrator shall respond individually to comments received from the Corps, FWS, and
NMFS."). EPA cannot merely go down a check list; it must consider and use these agency
comments, which is clearly a discretionary action.

Additionally, CWA § 404(h) references EPA guidelines which explicitly require
consideration of endangered and threatened species. 33 U.S.C. § 1344(h)(l)(A)(i). Under
§ 404(h)(l)(A)(i), a state plan to assume dredge and fill permitting must comply with the

36

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guidelines issued under § 404(b)(1). Id. Those implementing guidelines, in 40 C.F.R. §
230.30, require consideration of the potential effects on biological characteristics of an
aquatic system before issuing permits. These guidelines define threatened and endangered
species, § 230.30(a), and list the possible adverse effects from dredge and fill materials,
§230.30(b). Id.

This guideline reference stands in contrast to CWA § 402(b), which does not contain a
reference to any other EPA regulations or guidelines that require evaluating the impact to
endangered and threatened species before a final agency action. It is significant that, when
drafting § 404(h), Congress chose to mandate that one criterion for a state to assume § 404
permitting power is compliance with "guidelines under subsection (b)(1) of this section."
33 U.S.C. § 1344(h)(l)(A)(i). This incorporation of references to listed species parallels
the references to endangered sea turtles encompassed in the High Seas Fishing Compliance
Act at issue in Turtle Island Restoration Network, where the appellate court held that
congressional inclusion of references to international conservation and management
measures indicated that the action at issue was discretionary and required ESA § 7(a)(2)
consultation. Turtle Island, 340 F.3d 969 (holding that the permitting provision of the High
Seas Fishing Compliance Act is discretionary, in part, because the statute itself refers to a
convention on protecting and conserving certain marine species); Northwest Envt'l. Adv.
v. U.S. Dep't of Commerce, 283 F. Supp. 3d 982 (W.D. Wash. 2017) (holding that CWA
§ 319 decisions are discretionary, in part, because EPA promulgated related regulations to
flesh out the statutory language).

Agency Response: See Section IV.A.2 of the final rule preamble.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-5-0006N)

3. Contrary to EPA's current interpretation, the legislative history of CWA § 404 shows
specific congressional intent to protect fish and wildlife.

EPA's 2010 Opinion Letter stated that "the legislative history clarifies Congress's intent
to make program transfer under § 402 and § 404 essentially the same." U.S. Env'l
Protection Agency, Opinion Letter on Applicability of ESA Consultation to CWA § 404(h)
Determinations at 2 (Dec. 27, 2010) [hereinafter Opinion Letter], However, this position
overlooks the clear distinction between the Congressional intent in designing § 404 and §
402 — the legislative history of § 404 reflects a desire to ensure that fish and wildlife that
depend on wetlands are protected, while the legislative history of § 402 reflects a desire to
create a program to allow the states to assume permitting power as quickly as possible
without considering criteria outside of what is listed in the statute.

The legislative history of § 404(h) reflects a desire to ensure wetlands are protected and to
prevent "serious, permanent ecological damage." S. REP. NO. 95-370, 10 (1977)
[hereinafter S. Rep.]. The "implementation of section 404 . . . attempted to achieve" a
correction of the unregulated destruction of wetlands. Id. Throughout the Congressional
Record, Congress members made statements emphasizing that protection of wildlife is a
nation-wide concern that EPA should use its authority to address.

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Senator Chaffee offered that "I think it is important to bear in mind that marshes and
wetlands are ... a national asset. They are not just confined within boundaries which
happen to exist in any one of our States. The wetlands perform a vital part of the food
chain for our wildlife." 123 Cong. Rec. (Bound) 26682, 26716 (Aug. 4 1977) [hereinafter
1977 Cong. Rec.]. Senator Baker added that "the [CWA] places the responsibility upon
EPA to administer a permit program for industrial and municipal discharges The statutory
language authorizing the 404 program requires cooperation of [the Army] [C]orps [of
Engineers] and EPA to insure that discharges of dredged material and fill material will not
have unacceptable adverse effects on municipal water supplies, shellfish beds, fisheries,
wildlife, and recreation." 1977 Cong. Rec. at 26718. The Senate Report states that
"although discretion is granted to establish separate administration for a State permit
program, the authority of the Administrator to assure compliance with guidelines in the
issuance and enforcement of permits and in the specification of disposal sites ... is in no
way diminished." S. Rep., at 78. This reflects a desire to not only protect fish and wildlife,
but to give EPA enough "discretion" and "authority" to ensure that § 404 permitting is
predominantly a power exercised by the federal agency. Id.

The provisions requiring EPA to consider FWS comments further support the view that
Congress intended EPA's § 404 delegation to be discretionary, not simply a box checking
exercise. The U.S. House of Representatives Report declares that "this procedure is
intended to recognize that the [FWS], because of its responsibilities to protect a very vital
natural resource, should provide advice and consultation [FWS] should be involved at the
beginning of the permit process and not after the fact." H. R. REP. NO. 95-830, at 105
(1977) (Conf. Rep.). The Senate Report further explains that "committee amendments
relating to the [FWS commenting step in 404(g)-(h)] are designed to (1) recognize the
particular expertise of that agency and the relationship between its goals for fish and
wildlife protection and the goals of the [CWA], . . . this consultation preserves the
Administrator's discretion in addressing the concerns of these agencies, yet affords them
reasonable and early participation . . " S. Rep., at 78-79 (emphasis added).

In contrast, the legislative history of CWA § 402 does not contain any discussion of
protecting wildlife or maintaining discretion and authority in the EPA's permitting power.
Rather, it reflects the Congress's desire for "prompt action by the [EPA]" to approve state
programs. 118 Cong. Rec. 10198, 10219 (Mar. 27, 1972) (statement of Rep. Terry). In
fact, Representatives Absug and Rangel opposed § 402(b) in part because Fish and
Wildlife Agencies "will no longer have statutory authority to review and comment on
permit applications." 118 Cong. Rec. 8655, 8810 (Mar. 16, 1972). Congressional members
highlighted the non- discretionary nature of § 402(b), complaining that "once EPA
receives the permit applications, it can do no more than merely file them. No provision is
made for EPA to comment on the applications. EPA cannot object to the issuance of a
permit." 118 Cong. Rec. at 10240.

It is also important to consider the timing of Congressional action with respect to § 402
and § 404. Congress was fully aware of the ESA's requirements and mandates when
drafting and passing § 404(g) and (h), unlike when passing § 402. Pub. L. 95-217, § 67(b),
Dec. 27, 1977, 91 Stat. 1600. Indeed, a controlling factor in Home Builders was that

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Congress enacted § 402(b) prior to the ESA and incorporating the ESA's consultation
requirement into the state's § 402 assumption checklist would add an additional and
unrelated criterion. Nat'l Home Builders Ass'n, 551 U.S. at 662-63. The Court explained
that although a later enacted statute can amend or repeal an earlier statute, "repeals by
implication are not favored." Id. The Court therefore found incorporating ESA § 7
consultation would effectively repeal CWA § 402's exclusive checklist for state
assumption. Id. Given that Congress enacted § 404's operative language after the ESA,
along with the congressional intent to specifically consider the Services' comments and
protect fish and wildlife, with respect to § 404 assumption, there is nothing to repeal.

Agency Response: See Section IV.A.2 of the final rule preamble.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-5-00Q7N)

III. ESA § 7 CONSULTATION IS A COMPLEX, FACT INTENSIVE ANALYSIS

ESA § 7 consultation on whether EPA's approval of a state's assumption of the CWA §
404 dredge and fill permitting program will jeopardize listed species is a complex, fact
intensive analysis. ESA § 7(a)(2) first places a procedural obligation on EPA to initiate
consultation with FWS and NMFS "at the earliest possible time" to determine what effects
a state's assumption of the § 404 program may have on endangered and threatened species
and their critical habitats. ESA § 7(a)(2) next places a substantive obligation on EPA to
ensure its actions will not jeopardize the continued existence of endangered and threatened
species or destroy or adversely modify their critical habitats. 16 U.S.C. § 1536(a)(2); 50
C.F.R. § 402.14.

Agency Response: See Section IV.A.2 of the final rule preamble.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-5-00Q8N)

A. ESA Requirements For Programmatic Consultation

The ESA's implementing regulations dictate the precise requirements for satisfying this
substantive obligation. Pursuant to these regulations, the Services must determine whether
a state's assumption of the § 404 program poses an unacceptable risk to the survival,
recovery, or critical habitat of any listed species based on the "best scientific and
commercial data available" while "considering the effects of the action as a whole." Id. §
402.14(c), (d) (emphasis added). The "best scientific and commercial data" standard exists
"to ensure that the ESA [is not] implemented haphazardly, on the basis of speculation or
surmise." Bennett v. Spear, 520 U.S. 154, 176 (1997).

Using the "best scientific and commercial data available," the Services must produce a
biological opinion. In preparing a biological opinion for a state's assumption of a CWA §
404 program, the Services must review all relevant information provided by EPA "or
otherwise available" to evaluate the "effects of the action," including its direct and indirect
effects, the "environmental baseline," and "cumulative effects." 50 C.F.R. § 402.14(g)(1)-
(4); §402.14(h) (specifying contents of a biological opinion); see also 16 U.S.C. § 1536(c).
Notably, the regulations reiterate that even when undertaking a programmatic consultation,

-------
the action agency is not relieved "of the requirements for considering the effects of the
action or actions as a whole." 50 C.F.R. § 402.14(c)(4). Moreover, the "action area" to be
examined encompasses "all areas to be affected directly or indirectly by the federal action
and not merely the immediate area involved in the action." 50 C.F.R. § 402.02 (emphasis
added).

After "add[ing] the effects of the action and cumulative effects to the environmental
baseline and in light of the status of the species and critical habitat," the Services must
determine whether the action is likely to jeopardize the continued existence of listed
species or result in the destruction or adverse modification of critical habitat. 50 C.F.R. §
402.14(g)(4). The Services joint regulations define "jeopardize the continued existence"
to mean "[engaging] in an action that reasonably would be expected, directly or indirectly,
to reduce appreciably the likelihood of both the survival and recovery of a listed species
in the wild by reducing the reproduction, numbers, or distribution of that species."
"Destruction or adverse modification" means "a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the conservation of a
listed species." 50 C.F.R. § 402.02. The Services must also consider both recovery and
survival impacts to listed species and critical habitat. Nat'l Wildlife Fed'n v. Nat'l Marine
Fisheries Serv., 524 F.3d 917, 931 (9th Cir. 2008); Gifford Pinchot Task Force v. U.S.
Fish & Wildlife Serv., 378 F.3d 1059, 1070-71 (9th Cir.), amended, 387 F.3d 968 (9th Cir.
2004). The biological opinion does not merely provide an opinion of whether jeopardy
will result, but explains "how the agency action affects the species or its critical habitat."
16 U.S.C. § 1536(b)(3)(a); 50 C.F.R. § 402.14.

When the Services determine that a federal action is likely to jeopardize a species or
adversely modify critical habitat, they must also suggest reasonable and prudent
alternatives ("RPAs") to the proposed action to avoid such impacts. 16 U.S.C. §
1536(b)(3)(A); 50 C.F.R. § 402.14(h)(3). If the Services conclude that a proposed action
will result in the incidental taking of a listed species but will not cause jeopardy or
destruction/adverse modification of critical habitat, they must issue an incidental take
statement specifying the allowable impact on listed species; reasonable and prudent
measures to minimize the impact; measures to comply with the Marine Mammal
Protection Act; and other terms and conditions to be followed by the action agency. 16
U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i); Bennett, 520 U.S. at 170. Note that even mixed
programmatic actions require incidental take statements at the programmatic level if the
actions are "reasonably certain to cause take and are not subject to further section 7
consultation." 50 C.F.R. § 402.14(i)(6).

To fulfill the ESA § 7 consultation requirement, the Services must also use the best
scientific and commercial data available. 16 U.S.C. § 1536(a)(2), (b)(4). The agency can
not merely list a state's threatened and endangered species, dismiss further analysis as
requiring too much speculation, or punt all meaningful analysis to the state at some future
time.

Agency Response: See Section IV.A.2 of the final rule preamble.

40

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Earthiustice(EPA-HO-OW-2020-0276-0068-SD-5-00Q9)

EPA's current position on the interplay between CWA § 404 state assumption and ESA §
7 consultation is incorrect. In reviewing the CWA's plain language, implementing
regulations, and legislative history, it is clear that CWA § 404(h) provides EPA discretion
in deciding whether to grant a state permitting power, unlike the checklist requirements of
CWA § 402(b). Because EPA's action under CWA § 404 is discretionary, EPA must
initiate and complete formal consultation under ESA § 7(a)(2) prior to granting any state
§ 404 permitting power.

Additionally, programmatic consultation over state delegation of a CWA § 404 program
alone is not enough. EPA must first consult with the Services and to determine whether a
state can fulfill the requirements of the CWA and its implementing regulations, including
§ 404(b)(1) guidelines and their no jeopardy mandate. 40 C.F.R. §§ 233.1(a), 233.15(g).
Overarching programmatic consultation does not relieve the state of its responsibility to
determine at the site-specific permit level whether there will be no jeopardy to listed
species prior to the issuance of permits for the discharge of dredged or fill material
pursuant to the CWA's 404(b)(1) guidelines.

Agency Response: See Section IV.A.2 of the final rule preamble.

Responsible Growth Management Coalition (EPA-HQ-OW-2020-0276-TRANS-092923-007-

0001)

So, I'm really concerned, as echoing a lot of the concerns of prior speakers, including the
lady from the National Wildlife Federation, about how state assumption of the Clean Water
Act interfaces with the mandates of the Endangered Species Act, and the regulatory
responsibilities of the U.S. Fish and Wildlife Service. When I read through a certain
document, for instance, when I read through, living here in the State of Florida, you know,
so we're at the epicenter of this issue of state assumption, right?

Agency Response: See Section IV.A.2 of the final rule preamble.

Responsible Growth Management Coalition (EPA-HO-OW-2020-0276-TRANS-092923-0Q7-

0002)

When I read through this document, ESA Biological Evaluation for Clean Water Act
section 404 Assumption by the State of Florida, I would assume this lays out the
mechanisms by which the state assumption and the state agencies implement the Clean
Water Act to protect endangered species. But I read this one passage, so it says the state
404 program rules, and it recites the rule number and so forth, "prohibit issuance of a
permit that will likely jeopardize a continued existence of endangered or threatened
species, or result in the likely destruction or adverse modification of habitat designated as
critical for any species as determined by the U.S. Fish and Wildlife Service and confirms
that U.S. Fish and Wildlife Service conclusions about the effects of state 404 permits on
listed species are determinative. FDA will monitor adverse effect determinations on listed
species and critical habitat by incorporating information into their permit tracking
database, similar to the information collected by the USACE. This data collection will
assist in facilitating compliance with permit conditions, and can also be shared," that seems
almost optional, "to be shared with U.S. Fish and Wildlife Service." I mean, why isn't U.S.

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Fish and Wildlife Service at the very center, you know, driving the bus on this issue of
implementation of the Endangered Species Act? That's not what that passage stated at all.

Agency Response: See Section IV.A.2 of the final rule preamble. Implementation of
specific section 404 Tribal or State programs is outside of the scope of this
rulemaking.

Responsible Growth Management Coalition (EPA-HO-OW-2020-0276-TRANS-092923-0Q7-
0003")

This is reinforced by a monograph, a very illuminating monograph, that I found published
in Environmental Law and let me give you who the author is. The author is Elizabeth
Rosan, the title is "EPA's Approach to Endangered Species Protection and State Clean
Water Act Programs." It was published in 2000, I believe, and it says, "The Intersection
of the CWA and the ESA: To adequately address the protection of threatened and
endangered species, The CWA and the ESA must work together more effectively." The
current statutory framework of these environmental statutes, however, provides only
limited overlap given the prominent role of states under the Clean Water Act. In 1973,
Congress never addressed whether ESA procedures apply to state authorized CWA
programs. With this congressional silence as a backdrop, EPA has declared that its
oversight authority of state-issued CWA permits is not a federal action as contemplated by
the ESA and therefore does not trigger the ESA's requirements. Well, this is really scary
stuff here in Florida for us, all right.

Agency Response: See Section IV.A.2 of the final rule preamble.

Responsible Growth Management Coalition (EPA-HQ-OW-2020-0276-TRANS-092923-007-
0004)

We are on the verge of losing the Florida panther. It is headed towards extinction. There
have only been six, I mean, I shouldn't say this because it sounds like it should be a positive
thing, six vehicular fatalities of Florida panthers within this year. When in prior years it
was in the teens, and even sometimes twenties number.

Agency Response: See Section IV.A.2 of the final rule preamble.

2.4 National Historic Preservation Act (SHI'Aj

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0010)

EPA's proposed rule must strengthen safeguards for protecting tribal cultural and historic
resources, particularly in Alaska. As discussed above, federally recognized tribes are
entitled to consultation under Section 106 of the NHPA when a federal undertaking would
potentially impact tribal cultural or historic resources. Once a state assumes Section 404
permitting authority, there is no longer a federal undertaking and the procedural
requirements of the NHPA do not apply. Menominee, 947 F.3d at 1073-74.

In its proposed rule, EPA suggests that an applicant state or tribe seeking to assume Section
404 permitting authority "should consider" including a process for evaluating and
addressing impacts to historic properties. The proposed rule does not require applicants to

-------
consult with tribes that may have historic or cultural resources in or near assumed waters,
and does not require that the proposed program have a cultural or historic resource
evaluation component. While an applicant is required to demonstrate that it will comply
with the 404(b)(1) Guidelines, the lack of clarity on this point is especially troubling for
tribes that rely on NHPA Section 106 consultation as a major component of cultural and
historic preservation efforts. The federal guidelines, notifications and processes under the
NHPA are at least familiar to tribal historic preservation personnel, while a patchwork of
varying state-level protections - almost certain to be sporadically applied - does not
provide the same assurances that tribal cultural and historic interests will be identified or
protected. Critically, Alaska's state historic preservation act does not even mention tribes.

Agency Response: See Section IV.A.2 of the final rule preamble.

Choctaw Nation of Oklahoma (EPA-HQ-OW-2020-0276-0069-000n

The Choctaw Nation of Oklahoma submits this comment letter to EPA in order to shed
light on how state assumption of Section 404 permitting can impact tribes within the
applicant state as well as tribes that have ancestral territory in the applicant state.

The Choctaw Nation of Oklahoma has an area of historic interest encompassing portions
of 9 states. Within this area, Choctaw Nation's Historic Preservation Department
annually consults on over 4,000 federal undertakings under the National Historic
Preservation. Section 800.2(c)(2)(ii)(C) of the National Historic Preservation Act's
regulations states: "consultation with an Indian tribe must recognize the government-to-
government relationship between the Federal Government and Indian tribes. The agency
official shall consult with representatives designated or identified by the tribal
government." Section 800.2(c)(4) of the same regulations states that "Federal agencies that
provide authorizations to applicants remain responsible for their government-to-
government relationships with Indian tribes." Finally, as noted by the ACHP in its
statement on Limitations on the Delegation of Authority by Federal Agencies to Initiate
Tribal Consultation under Section 106 of the National Historic Preservation Act; "federal
agencies cannot unilaterally delegate their tribal consultation responsibilities to an
applicant nor presume that such discussions substitute for federal agency tribal
consultation responsibilities."

Executive Order 13175 as well as President Biden's 2022 "Memo on Uniform Standards
for Tribal Consultation" further require federal agencies to consult with Tribes on federal
actions that affect them on a government-to-government level.

Army Corps issuance of a permit to discharge dredged or fill material into waters of the
United States under CWA Section 404 is a federal undertaking that affords federally
recognized Tribes the right to government-to-government consultation under the National
Historic Preservation Act. When a state assumes the responsibility to approve or deny
dredge and fill permits, then there is no federal action to trigger these federal regulatory
processes. States assuming the Section 404 permitting program will be under no equivalent
obligation under this proposed rule. Accordingly, upon state assumption of the Section 404
permitting program, an Indian tribe with rights or resources in the assuming state stands

43

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to lose significant and longstanding procedural and substantive legal rights that were put
in place to protect tribal interests in cultural, historic and treaty-protected resources.

The Choctaw Nation of Oklahoma was involved when the State of Florida
assumed Section 404 permitting authority. 85 Fed. Reg. 83553-83554 (Dec. 22, 2020).
While Florida did enter into a Programmatic Agreement regarding impacts to cultural and
historic properties with EPA and the Advisory Council on Historic Preservation (ACHP),
no tribes were party it. In the brief consultation meetings that lead up to that agreement,
Tribes including the Choctaw Nation of Oklahoma, voiced numerous concerns over this
responsibility being delegated to a state including: the abdication of the federal trust and
consultation responsibilities; lack of notification from the state on individual permits that
may impact tribal resources; lack of clarity and notice with regard to procedures for
protecting cultural or historic properties impacted by the issuance of general permits; lack
of time for tribes to coordinate with and respond to state agencies throughout the
permitting process; impacts to lands and waters over which there may be unresolved legal
disputes; lack of state resources to adequately manage a Section 404 program; impacts to
and implications for tribal traditional, cultural and statutory use rights; and concerns about
all tribes being lumped together under the state's program, when tribes as
individual sovereign governments have different legal rights and interests.

Over the past nearly three years, the concerns we raised seem to have been realized. The
Choctaw Nation Historic Preservation Department has no record of receiving a
single notification from the State of Florida on its issuance of 404 permits. Our historic
and sacred sites may very well be getting destroyed through the issuance of these permits.
We have no way of knowing, as the consultation and Tribal review process has apparently
broken down entirely. In delegating its responsibilities, the EPA seems to have effectively
repealed that part of the National Historic Preservation that formerly applied to the
issuance of 404 permits within the State of Florida.

Agency Response: See Section IV.A.2 of the final rule preamble addressing National
Historic Preservation Act (NHPA) compliance. See Section IV.F of the final preamble
addressing opportunities to increase Tribal engagement in Tribal and State section
404 permitting. Implementation of specific section 404 Tribal or State programs is
outside of the scope of this rulemaking.

Choctaw Nation of Oklahoma (EPA-HO-OW-2020-0276-0069-00Q2N)

Interacting with states under what was formerly a federal agency's jurisdiction
is problematic for Tribes for a number of reasons. One of these is that states do not have a
trust responsibility to Tribes. In practice, this means that Tribal governments are often
lumped in with the general public when it comes to sharing information about projects and
tribal cultural sites. Often this means that consultation is not very meaningful, with little
or no follow up on the part of the states. The relationship between tribes and states not
being a trust relationship further means that information that a Tribe may share with a state
government does not have the same protections that it would if shared with a federal
agency. Often, when Tribes express concern about an undertaking's potential to impact a
sacred or historic site, we are put in a position of having to prove the existence, importance,

-------
and locations of such sites. If we share this sensitive information with a state, a state is not
under the same trust responsibility to safeguard this information that a federal agency
would be under. This can force tribes to make difficult decisions about whether to allow a
site to be endangered by an undertaking or to allow the site to be endangered by disclosing
sensitive information about it to entities that may not be able to protect that information.

Agency Response: See Section IV.A.2 of the final rule preamble addressing National
Historic Preservation Act (NHPA) compliance. The Agency recognizes that
relationships between individual Tribes and States vary. In Section IV.E.l of the
preamble EPA discusses the codification of EPA's ability to facilitate resolution of
disputes. With respect to providing information of a sensitive nature, or proving the
Tribes interest or right, EPA will work with the Tribe, State, and other federal
agencies to address these concerns on a permit-by-permit basis. See Section IV.F of
the final preamble addressing opportunities to increase Tribal engagement in Tribal
and State section 404 permitting.

Choctaw Nation of Oklahoma (EPA-HO-OW-2020-0276-0069-00Q3N)

Beyond the illegality of federal agencies delegating Tribal consultation to states,
companies, and other third parties, the practice places an undue hardship on tribal
historic preservation offices. Our office has found that by and large individuals,
corporations, and state agencies other than SHPOs, do not possess the expertise to conduct
meaningful cultural resources review or even follow the cultural resources review
procedures that federal agencies have laid out for them. This results in a situation where
our office has to expend its own time and resources to educate a continual stream of project
applicants about the law, about their responsibilities under the law, and about cultural
resources in general. In many cases, our office ends up essentially doing the cultural
resources reviews for these applicants, and by extension for the federal agency that has
delegated its responsibilities to them. This places an unfunded burden on Tribal Historic
Preservation Offices that takes resources away from other areas where they are needed.

Agency Response: See Section IV.A.2 of the final rule preamble addressing National
Historic Preservation Act (NHPA) compliance. EPA acknowledges the commenter's
concerns about the burdens it must bear to educate project applicants about cultural
resources review obligations. See Section IV.F of the final preamble addressing
opportunities to increase Tribal engagement in Tribal and State section 404
permitting. See Section IV.B.3 of the final rule preamble, which explains that the
final rule now requires program budget and additional funding being allocated for
all agencies that are responsible for program administration, potentially including
the historic preservation offices of assuming Tribes and States.

Port Gamble S'Klallam Tribe (PGST^) (EPA-HO-OW-2020-0276-0078-0Q34N)

As discussed above, federally recognized tribes are entitled to consultation under Section
106 of the NHPA when a federal undertaking would potentially impact tribal cultural or
historic resources. According to one Circuit Court of Appeals, once a state assumes Section
404 permitting authority, there is no longer a federal undertaking and the procedural
requirements of the NHPA do not apply. Menominee, 947 F.3d at 1073-74.

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In its proposed rule, EPA suggests that an applicant state or tribe seeking to assume Section
404 permitting authority "should consider" including a process for evaluating and
addressing impacts to historic properties. The proposed rule does not require applicants to
consult with tribes that may have historic or cultural resources in or near assumed waters
and does not require that the proposed program have a cultural or historic resource
evaluation component. While an applicant is required to demonstrate that it will comply
with the 404(b)(1) Guidelines, the lack of clarity on this point is especially troubling for
tribes that rely on NHPA Section 106 consultation as a major component of off-reservation
cultural and historic preservation. The Port Gamble S'Klallam Tribe uses Section 106
consultation frequently and ensures that all Army Corps, county, state, and federal permit
applications the Tribe receives will have no impact on culturally important resources and
have proper inadvertent discovery plans. The federal guidelines, notifications, and
processes under the NHPA are at least familiar to tribal historic preservation personnel,
while a patchwork of varying state-level protections - almost certain to be sporadically
applied - does not provide the same assurances that tribal cultural and historic interests
will be identified or protected.

Recently, Florida assumed Section 404 permitting authority. 85 Fed. Reg. 83553- 83554
(Dec. 22, 2020). While Florida did enter into a programmatic agreement regarding impacts
to cultural and historic properties with EPA and the Advisory Council on Historic
Preservation (ACHP), no tribes were party to the programmatic agreement [Footnote 2:
See https://floridadep.gov/sites/default/files/Programmatic_Agreement_-_12-16-20.pdf.].
Potentially impacted tribes with cultural resources in Florida voiced numerous concerns
about state assumption, including: abdication of the federal trust and consultation
responsibilities; lack of notification from the state on individual permits that may impact
tribal resources; lack of clarity and notice with regard to procedures for protecting cultural
or historic properties impacted by the issuance of general permits; lack of time for tribes
to coordinate with and respond to state agencies throughout the permitting process;
impacts to lands and waters over which there may be unresolved legal disputes; lack of
state resources to adequately manage a Section 404 program; impacts to and implications
for tribal traditional, cultural and statutory use rights; and concerns about all tribes being
lumped together under the state's program, when tribes as individual sovereign
governments have different legal rights and interests [Footnote 3: See, generally
https://www.regulations.gOv/document/EPA-HQ-OW-2018-0640-0606.].

Agency Response: See Section IV.A.2 of the final rule preamble. Implementation of
specific section 404 Tribal or State programs is outside of the scope of this
rulemaking.

Chickaloon Native Village (CNV) (EPA-HQ-QW-2020-0276-0085-0007)

EPA's proposed rule must strengthen safeguards for protecting Tribal cultural and historic
resources, particularly in Alaska. As discussed above, federally recognized Tribes are
entitled to consultation under Section 106 of the NHPA when a federal undertaking would
potentially impact Tribal cultural or historic resources. Once a state assumes Section 404
permitting authority, there is no longer a federal undertaking and the procedural
requirements of the NHPA do not apply. Menominee, 947 F.3d at 1073-74.

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In its proposed rule, EPA suggests that an applicant state or Tribe seeking to assume
Section 404 permitting authority "should consider" including a process for evaluating and
addressing impacts to historic properties. The proposed rule does not require applicants to
consult with Tribes that may have historic or cultural resources in or near assumed waters,
and does not require that the proposed program have a cultural or historic resource
evaluation component. While an applicant is required to demonstrate that it will comply
with the 404(b)(1) Guidelines, the lack of clarity on this point is especially troubling for
Tribes that rely on NHPA Section 106 consultation as a major component of cultural and
historic preservation efforts. The federal guidelines, notifications and processes under the
NHPA are at least familiar to Tribal historic preservation personnel, while a patchwork of
varying state-level protections - almost certain to be sporadically applied - does not
provide the same assurances that Tribal cultural and historic interests will be identified or
protected. Critically, the Alaska Historic Preservation Act does not even mention Tribes.

Recently, Florida assumed Section 404 permitting authority. 85 Fed. Reg. 83553- 83554
(Dec. 22, 2020). While Florida did enter into a programmatic agreement regarding impacts
to cultural and historic properties with EPA and the Advisory Council on Historic
Preservation (ACHP), no Tribes were party to the programmatic agreement [Footnote 1:
See https://floridadep.gov/sites/default/files/Programmatic_Agreement_-_12-16-20.pdf.].
Potentially impacted Tribes with cultural resources in Florida voiced numerous concerns
about state assumption, including: abdication of the federal trust and consultation
responsibilities; lack of notification from the state on individual permits that may impact
Tribal resources; lack of clarity and notice with regard to procedures for protecting cultural
or historic properties impacted by the issuance of general permits; lack of time for Tribes
to coordinate with and respond to state agencies throughout the permitting process;
impacts to lands and waters over which there may be unresolved legal disputes; lack of
state resources to adequately manage a Section 404 program; impacts to and implications
for Tribal traditional, cultural and statutory use rights; and concerns about all Tribes being
lumped together under the state's program, when Tribes as individual sovereign
governments have different legal rights and interests [Footnote 2: See, generally
https://www.regulations.gOv/document/EPA-HQ-OW-2018-0640-0606.].

Agency Response: See Section IV.A.2 of the final rule preamble. Implementation of
specific section 404 Tribal or State programs is outside of the scope of this
rulemaking.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-3-0Q12N)

- EPA's Rules Must Protect Rights Under the National Historic Preservation Act.
Third, EPA rules must provide for consultation under NHPA at the time of the assumption
decision, but cannot end there. There must also be provisions for NHPA protections at the
time that a particular project and permit is proposed. Again, the Menominee Indian Tribe
of Wisconsin case presents the precise example of why. Often, sites of historic importance,
particularly to a tribe, may not be known at the time a state applies to assume 404
permitting. In the case of Michigan, the state applied to assume permitting in the early
1980s. At that point in time, while members of the Menominee Tribe had spiritual, cultural,
and ancestral connections to both sides of the Menominee River, including in Michigan,

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without a particular threat articulated to historic sites and without full knowledge of the
extent of historic sites, programmatic NHPA consultation would have provided little (or
incomplete) protection to the Tribe and would have made meaningful participation by the
Tribe difficult. Without NHPA protections at the time that a specific project is proposed
that represents a specific threat to a historic site (often decades after a state assumes
permitting), tribes will be left unprotected [Footnote 6: EPA cannot rely on state law to
protect historic places. State historic preservation acts often lack equivalent protections of
historic properties of cultural and religious importance to tribes and in some cases, like
Alaska, do not even mention tribes.].

To address potential impacts to important historic places for tribes that may occur years,
even decades, after assumption, EPA rules must provide that if the National Historic
Preservation Act is implicated in any state permit action under an assumed program, the
state permit cannot proceed and the Corps will retain or reclaim permitting authority over
the subject project. Therefore, EPA must retain affirmative review and control over
NHPA-implicated projects through its rules from the outset.
EPA rules must make clear that a state must examine and disclose whether a project
requiring a 404 permit may affect a site defined under NHPA, that the presence of such a
site entitles a tribe to consultation, and where that is the case, EPA and the Corps retain
permitting authority and the permitting authority is not assumed by the state. Further, the
rules should require that any Memorandum of Agreement (MOA) between an assuming
state and any federal agency must fully set forth this limitation in state authority and
retention of authority by EPA and the Corps.

Agency Response: See Section IV.A.2 of the final rule preamble.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-3-00Q3)

First, absent the protections outlined below, upon assumption of a 404 program by a state,
a number of federal statutes may no longer apply to protect tribal interests. As was
determined with respect to Michigan's program, the National Historic Preservation Act
(NHPA) no longer applies to protect wetlands and areas adjacent to them that are of
historic and cultural import to tribes. Menominee Indian Tribe of Wisconsin v. EPA, 947
F.3d 1065, 1074 (7th Cir. 2020) [Footnote 2: Earthjustice continues to question the
correctness of this decision given the plain language in the NHPA that provides a federal
"undertaking" subject to consultation includes a project, activity, or program funded in
whole or in part under the direct or indirect jurisdiction of a Federal agency, including...
those subject to State or local regulation administered pursuant to a delegation or approval
by a Federal agency." 54 U.S.C. §300320 (formerly 16 U.S.C. § 470w) (emphasis added).
Unfortunately, at this point two Circuit Courts have denied NHPA protections under
assumed programs, one at the urging of your agency against tribal interests and
protections.]. Tribes will lose procedural protections available under the NHPA as a result
of a state assuming a program, even if there are identified archeological, historic, and
cultural sites within the proposed project area. Our client, the Menominee Indian Tribe of
Wisconsin, faced this exact scenario when participating in Michigan's wetland permit
process for the Back Forty Mine. Because Michigan had assumed 404 permitting,
Michigan (and EPA) disregarded all protections afforded the Menominee people under the
NHPA.

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Agency Response: See Section IV.A.2 of the final rule preamble addressing the
NHPA. See Section IV.F of the final rule preamble addressing increased
opportunities for Tribal engagement in the permitting process where Tribes or States
have assumed Section 404 permitting.

3. No less stringent than

Environmental Protection Network (EPN) (EPA-HQ-QW-2020-0276-005 7-0006)

No Less Stringent Requirements

EPN supports the clarification of how the No Less Stringent Requirement will be
implemented under the proposed regulation. The prior regulations were not clear that all
aspects of the program submitted to EPA for review had to be No Less Stringent than the
federal program. This led to situations where the program submission included some
provisions that were less stringent while others were more stringent. This change clarifies
this issue. To implement this requirement, where programs are not adopted by reference
to the federal program, the State Attorney General or Tribal official should be required to
certify that the approach taken by the state or Tribe is no less stringent.

Agency Response: The Agency appreciates the commenter's support for the
Agency's proposal to codify its longstanding principle that Tribes and States may
not compensate for making one requirement more lenient than required under
these regulations by making another requirement more stringent than required.
See Section IV.A.3 of the final rule preamble for a further discussion of the
Agency's rationale for codifying this longstanding principle. To the extent the
commenter recommends that the regulatory text be revised to expressly require
that, where programs are not adopted by reference to the federal program, the
State Attorney General or Tribal official certify that the State or Tribal program
will result in permits that apply the CWA no less stringently than a permit for the
same discharge if issued by the Corps, the Agency disagrees. The CWA and the
final rule are sufficient to ensure that the State or Tribal program will result in
permits that will be consistent with the CWA to the same extent as a permit for the
same discharge if issued by the Corps without adding the commenter's suggested
statement to the Attorney General's statement required by 40 CFR 233.12.

Florida Department of Environmental Protection (FDEP) (EPA-HO-OW-2020-0276-0066-0Q28)
EPA proposes to provide increased rigidity to the regulations related to the Clean Water
Act provision requiring state 404 permit programs to be no less stringent than federal
requirements. EPA is proposing to codify the principle that States may not compensate
for making one requirement in their 404 program more lenient by making another more
stringent.

Agency Response: To the extent the commenter summarizes the Agency's proposal
to codify the principle that Tribes and States may not compensate for making one
requirement more lenient than required under these regulations by making another
requirement more stringent than required, the Agency agrees. See Section IV.A.3 of
the final rule preamble for a further discussion of the Agency's rationale for

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codifying this principle. To the extent the commenter characterizes the Agency's
proposal as providing "increased rigidity," the Agency disagrees. The principle is a
longstanding one dating back at least to the 1988 preamble to the CWA section 404
Tribal and State program regulations. 53 FR 20764, 20766 (June 6,1988). By
codifying the principle in the regulations, the Agency is providing increased clarity
regarding a longstanding principle.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-Q0in

I. The proposed rule fails to comply with the Clean Water Act's mandate that state 404
programs be at least as stringent as the federal program.

EPA is correct that the Clean Water Act mandates that a state may not impose
requirements that are less stringent than federal requirements. 88 Fed. Reg. at 55,308.
EPA is also correct that a state may not trade a stringent requirement for relaxation of
other requirements under the law. Id. However, the proposed rule's discussion regarding
state program stringency, and the 404(b)(1) Guidelines in particular, runs counter to
these plain legal requirements and appears to excuse relaxation of the legal requirements
by claiming "flexibility" from Congress.

See 88 Fed. Reg. at 55,277, 55,296. Flexibility cannot extend beyond the bounds of the
law.

EPA may provide some flexibility to a state wishing to create a more stringent program,
which goes above and beyond the 404(b)(1) Guidelines and enforcement requirements.
But EPA may not, in the name of flexibility, allow a state to skirt those requirements to
create a less stringent program.

Agency Response: To the extent the commenter asserts that flexibility provided by
the final rule "runs counter" to the requirement that a state may not impose
requirements that are less stringent than federal requirements or "excuses"
relaxation of legal requirements, the Agency disagrees. Nothing in CWA section
404(h) requires that Tribes and States adopt verbatim or incorporate into their
programs by reference the CWA 404(b)(1) Guidelines or other federal
requirements. By not requiring verbatim adoption or incorporation by reference,
Congress allowed leeway for Tribes and States to craft a Tribal or State program
consistent with circumstances specific to that Tribe or State that would still result
in permits that will apply the CWA at least as stringently as a permit for the same
discharge if issued by the Corps. The CWA and the final rule are sufficient to
ensure that the State or Tribal program will result in permits that will apply the
CWA at least as stringently as a permit for the same discharge without requiring
verbatim adoption or incorporation by reference of portions of the federal
program. See Sections IV.A.2 and IV.A.3 of the final rule preamble for a further
discussion of the Agency's rationale.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-00Q2N)

EPA has also overlooked key federal protections that are lost during state assumption,
including the Endangered Species Act (ESA), National Environmental Policy Act

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(NEPA), and National Historic Preservation Act (NHPA). The federal program works in
harmony and in conjunction with these federal statutes, and a state program must ensure
the same level of protections are afforded by state law in order to be equivalent to, or as
stringent as, the federal program.

Agency Response: As set forth in Sections IV.A.2 and IV.A.3 of the final rule
preamble, Section 7 of the Endangered Species Act (ESA), the National
Environmental Policy Act (NEPA), and Section 106 of the National Historic
Preservation Act (NHPA) apply to federal actions. Issuance of a permit by a Tribe
or State is not a federal action subject to those statutory provisions and processes.
See Sections IV.A.2 and IV.A.3 of the final rule preamble for a discussion regarding
how, pursuant to 33 U.S.C. 1344(h)(l)(A)(i), Tribal and State programs can
demonstrate they have authority to issue permits that apply and assure compliance
with those aspects of the CWA 404(b)(1) Guidelines that authorize only the least
environmentally damaging practicable alternative, prohibit permitting of a
discharge that would jeopardize the continued existence of listed endangered or
threatened species under the ESA, and require consideration of potential effects on
human use characteristics, including "areas designated under Federal and State
laws or local ordinances to be managed for their aesthetic, educational, historical,
recreational, or scientific value."

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-00Q3N)

It is even more important not to weaken protections for waters under Clean Water Act
jurisdiction following the U.S. Supreme Court's misguided decision in Sackett v. EPA,
598 U.S. 651 (2023), which leaves many wetlands newly vulnerable. EPA must
substantially revise the proposed rule to ensure that the federal floor for state 404
programs is as stringent as the Clean Water Act requires. Congress passed the Clean
Water Act to set the minimum standards for protecting our Nation's waters and wetlands.
EPA must ensure those minimum standards are met and maintained by any state
assuming the 404 program [Footnote 2: These comments address state assumption of the
404 program only, not assumption of the 404 program by Tribes, which does not raise
the same suite of concerns. Moreover, EPA has acknowledged that it is not aware of any
Tribes currently considering assumption.].

Agency Response: See Section IV.A.3 of the final rule preamble for discussion of
requirements for Tribal and State programs to be consistent with and no less
stringent than the requirements of the Act and its implementing regulations.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-00Q5N)

EPA must ensure that the Section 404 state assumption regulations abide by the Clean
Water Act's establishment of a strong federal floor to ensure that the chemical, physical,
and biological integrity of the Nation's waters and wetlands are restored and protected
because states have failed to protect our waters and wetlands. In their many years of
administering Section 402 Clean Water Act programs, states have struggled to
implement (and many actively resist) their Clean Water Act responsibilities to set
standards, assess water quality, and issue and enforce permits to limit pollutants, with the

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result that our waters still do not attain basic standards of cleanliness and protection.
EPA's most recent National Aquatic Resource Survey data shows that 70% of rivers and
streams are not healthy based on their biological communities and 58% have excess
nutrients, while 52% of wetland area is not healthy based on biological communities
[Footnote 49: EPA, Explore National Water Quality. EPA reports that, using the "fish
indicator" as an example, only 26% of assessed perennial rivers and streams were of
"good" quality (down approximately 8% from the 2008-2009 data), 22% were of "fair"
quality, and 37% were of "poor" quality (up approximately 10% from the 2008-2009
data). See also EPA, National Rivers and Streams Assessment 2013-2014 at 19 (Dec.
2020). The results were even more alarming for some other indicators. For example, 44%
of assessed rivers and streams were of "poor" quality using the macroinvertebrate
indicator, and 43% were "poor" using the nitrogen indicator. Id. at 20, 23. For many of
the indicators, water quality worsened between the 2008/2009 survey and the 2013/2014
survey.]

Agency Response: The Agency agrees that Tribal and State permit must apply the
requirements of the CWA at least as stringently as would a permit for the same
discharge if issued by the Corps. See Sections IV.A.2 and IV.A.3 of the final rule
preamble for a further discussion of the Agency's rationale. The Agency
acknowledges the National Aquatic Resource Survey and the National Rivers and
Streams Assessment 2013-2014 mentioned by the commenter. To the extent the
commenter seeks to attribute the results of those surveys to alleged improper
implementation of the National Pollutant Discharge Elimination System permit
program by authorized States, those reports refer only broadly and generally to
potential sources of certain pollutants, including some nonpoint sources. Those
reports do not evaluate the quality of State NPDES programs or whether State
NPDES programs are consistent with federal requirements.

Individual commenter (EPA-HO-OW-2020-0276-0050-0Q13N)

I believe that EPA should reconsider partial assumption for Tribes that to not meet TAS
status. This would serve the interests of Tribal Sovereignty.

Agency Response: See Section IV.B.l of the final rule preamble for discussion of the
Agency's rationale for this provision and response to these comments.

State of Michigan. Michigan Department of Environment Great Lakes, and Energy (EGLE).

Water Resources Division (EPA-HO-OW-2020-0276-0071-00Q1)

The WRD supports the "no less stringent" standard for assumed programs and the U.S.
EPA's position on partial assumption as reflected in the proposed rule.

Agency Response: The Agency appreciates the commenter's support for the
Agency's proposals regarding how Tribes and States can issue permits that apply
the requirements of the CWA at least as stringently as would a permit for the same
discharge if issued by the Corps and for the Agency's position on partial
assumption. For a further discussion of the Agency's rationale, see Sections IV.A.2,
IV.A.3 and IV.B.l of the final rule preamble.

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National Association of Wetland Managers (NAWM) (EPA-HO-QW-2020-0276-0072-0022)
1. No Less Stringent Than

NAWM supports the proposed rule language and agrees that trading of impacts and
standards is not protective of aquatic resources nor meets the federal stringency test.

Agency Response: The Agency appreciates the comment. For a further discussion
of the Agency's rationale, see Section IV.A.3 of the final rule preamble.

Alaska Clean Water Advocacy et al. (EPA-HO-QW-2020-0276-0086-0002)

While the Clean Water Act is the principal legislation outlining protection of our nation's
waters, it does not exist in a vacuum. The Act operates in conjunction with other laws
including but not limited to the Endangered Species Act (ESA), National Environmental
Policy Act (NEPA), and National Historic Preservation Act (NHPA). When a state
assumes the federal program, the direct protections afforded by these federal statutes are
largely lost. For a state, such as Alaska, which does not have parallel state laws (let alone
equal access to courts or tribal consultation), assumption of the 404 program without
adequate safeguards means that Alaskans may one day have their own Cuyahoga River
incident. That is not a reality we are willing to face and one that the EPA, charged with
protecting our nation's waters, should demand does not occur. Thus, EPA must require in
any final rule, that a state program ensures the same level of protections are afforded by
state law to be equivalent to, or as stringent as, the federal program.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0068-0002.

Environmental Confederation of Southwest Florida (EPA-HQ-OW-2020-0276-TR.ANS-092923-
002-0001)

It's very important that each and every state is consistent with federal regulations and not
be allowed to be less stringent in any way. If they want to be more stringent, that'd be
great. Quite frankly, if that worked out, the EPA might consider becoming more stringent
themselves.

Agency Response: The Agency appreciates the comment. For a further discussion
of the Agency's rationale, see Section IV.A.3 of the final rule preamble.

Natural Resources Defense Council (EPA-HO-OW-2020-0276-TRANS-Q92923-008-0002)

Second, EPA must ensure that states seeking to assume permitting authority have dredge
and fill permit programs that are at least as stringent as the Federal Government's.

Agency Response: The Agency agrees. For a further discussion of the Agency's
rationale, see Section IV.A.3 of the final rule preamble.

Natural Resources Defense Council (EPA-HO-OW-2020-0276-TRANS-Q92923-008-0006)
EPA must also ensure that state programs are equally protective of water bodies as the
federal requirements, and a state seeking assumed authority must demonstrate equal
stringency in all respects.

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Agency Response: The Agency agrees. For a further discussion of the Agency's
rationale, see Section IV.A.3 of the final rule preamble.

Chickaloon Native Village (EPA-HO-OW-2020-0276-TRANS-092923-009-00Q3N)

We appreciate that EPA requires the state programs to not be less stringent than the
federal programs, however, to ensure this the EPA will need to put significant and
continual effort into oversight, particularly in resource extraction states, including boots
on the ground compliance reviews.

Agency Response: The Agency agrees that permits issued by Tribes and States must
apply the requirements of the CWA at least as stringently as a permit for the same
discharge if issued by the Corps. The CWA provides EPA with oversight authority
over permits issued by Tribal and State section 404 programs. See 40 CFR 233.50-
53. For a discussion of how the final rule proposes to clarify certain aspects of
EPA's oversight, see Section IV.E of the final rule preamble.

Earthiustice(EPA-HO-OW-2020-0276-0068-SD-2-00Q2N)

While Congress did preserve important roles for states, giving them the first obligation
and authority to develop water quality standards and the ability to be delegated permit
authority, Congress made plain that state obligation and authority is always subject to the
review and authority backstop of the EPA and that federal law and the EPA set the Clean
Water Act minimum for water quality standards, permitting, effluent limits, and
enforcement in the effort to address previous shortcomings in clean water efforts. See 33
U.S.C. §§1309, 1313, 1314, 1316, 1342, and 1344.

Based upon this history and Congress' direction, a fundamental tenet of the Clean Water
Act is that the Clean Water Act is a floor, a minimum baseline in all respects for
protection of the Nation's waters. States retain only the flexibility to be more, but never
less, protective than the Clean Water Act's foundational protections. See, 33 U.S.C. § §
1311(b)(1)(C) and PUD No. 1, of Jefferson County v. Wash. Dep't of Ecology, 511 U.S.
700, 705-707 (1994). This proposed rule runs directly contrary to this foundational and
well-established principle.

Agency Response: To the extent the commenter asserts that permits issued by
Tribes and States must be at least as stringent as a permit for the same discharge if
issued by the Corps, the Agency agrees. The Agency disagrees that the final rule
"runs directly counter" to the requirement that a State may not impose
requirements that are less stringent than federal requirements. The CWA and the
final rule are sufficient to ensure that Tribal and State permits will apply the CWA
at least as stringently as would a permit issued by the Corps for the same discharge.
See Sections IV.A.2 and IV.A.3 of the final rule preamble for the Agency's
rationale.

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B. Subpart B - Program Approval

1. Partial or phased assumption

Association of Clean Water Administrators (ACWA) (EPA-HQ-OW-2020-0276-0060-0003)

Partial Assumption: The Proposed Rule does not address the issue of partial assumption.
Several states have expressed interest in partial assumption of the section 404 program
and ACWA encourages the agencies to further explore options to allow for this
approach. We request that EPA work with states to reconsider this position and to
explore providing states with additional flexibility in the assumption of section 404
permitting authority.

Agency Response: See Section IV.B.l of the final rule preamble for discussion of the
Agency's rationale for this provision and response to these comments.

Florida Department of Environmental Protection (FDEP) (EPA-HQ-OW-2020-0276-0066-0020)
EPA acknowledges that there has been a high level of interest in partial assumption and
that this is one of the common barriers discouraging States from seeking assumption
[Footnote 18: 88 Fed. Reg. 55,314; Economic Analysis at 12 (noting that "a desire to
assume part of the section 404 program but not the entire program" was a "reason[]

States cited for not pursuing assumption.").]. The Proposed Rule examines partial
assumption but declines to revise the regulations in 40 CFR 233.1(b), which establishes
that partial programs are not approvable under section 404 [Footnote 19: 88 Fed. Reg.
55,314.]. EPA briefly assesses options for implementing partial assumption, but
ultimately interprets the CWA as not authorizing partial assumption under 404.

Florida encourages EPA to revisit its interpretation of Section 404 as prohibiting partial
assumption. Particularly in light of Sackett, where a State's partial program may go
further to protect non-WOTUS waters than the 404 program, integration into the federal
program would be beneficial and ultimately have a greater reach than the federal
program. Nothing in the Act prohibits partial assumption by States, and partial
assumption would clearly help advance the CWA's cooperative federalism objectives.
Accordingly, Florida suggests that EPA further consider ways to allow States to
implement partial assumption of a 404 program, or work with Congress to increase state
flexibility in these respects.

Agency Response: See Section IV.B.l of the final rule preamble for discussion of the
Agency's rationale for this provision and response to these comments.

National Association of Wetland Managers (NAWM) (EPA-HO-OW-2020-0276-0072-0Q27)
3. Partial Assumption

NAWM understands the Agency's position on partial assumption and agrees that States
and Tribes could avail themselves of the State Programmatic General Permit (SPGP)
application process for specific activities or impact thresholds. Members of our
community have successfully utilized this tool in-leu of applying for authorization to
assume the entire program. The use of SPGPs has been effective in allowing the States to
provide resource protection while giving project proponents the benefit of minimizing

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application costs and time frames since both State and Tribal impacts would be included
in the same application for federal jurisdiction. However, the application and
implementation of SPGP's is not without resources costs to States and Tribes and
assistance should be provided for SPGP implementation. There are differences of
opinions among NAWM members on this issue and the utility of partial assumption and
benefits. We will defer to individual State and Tribes for specific concerns or support of
EPA's proposed rule.

Agency Response: See Section IV.B.l of the final rule preamble for discussion of the
Agency's rationale for this provision and response to these comments.

National Tribal Water Council (NTWC) (EPA-HO-OW-2020-0276-0074-SD-00Q9N)

1. Partial assumption of program.

The concept of allowing an assumption of authority for administering the program for
certain waters may seem at first glance a reasonable means to reduce the burden on
already stretched staff and financial resources in Indian country. The fact of the matter,
however, is a tribe would still need to implement the entirety of the program. Therefore,
this proposal probably would not significantly change the workload required to fulfill the
requirements of assumption, but would reduce the number of waters for which tribes
could issue permits. This outcome does not seem of any benefit to tribes.

In contrast, the NTWC is intrigued by the concept that Kathy Hurld (EPA, Office of
Wetlands, Oceans and Watersheds) presented to the NTWC on October 24, 2018, which
suggested that tribes might assume "certain activities" of the program, but for all tribal
waters. This proposal might actually streamline the requirements of full assumption
while allowing for more tribal oversight and input into the permitting process, and
therefore we think that this concept merits consideration.

Agency Response: See Section IV.B.l of the final rule preamble for discussion of the
Agency's rationale for this provision and response to these comments.

National Tribal Water Council (NTWC) (EPA-HO-OW-2020-0276-0074-SD-00Q9N)

1. Partial assumption of program.

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while allowing for more tribal oversight and input into the permitting process, and
therefore we think that this concept merits consideration.

Agency Response: See Section IV.B.l of the final rule preamble for discussion of the
Agency's rationale for this provision and response to these comments.

State of Alaska Department of Environmental Conservation (EPA-HQ-QW-2020-0276-0079-
0022")

EPA has declined to revise the regulations on this point because EPA continues to
believe that partial assumption is not allowed by statute [Footnote 53: 88 Fed. Reg.
55314.]. EPA additionally indicates its belief that partial assumption would be difficult
for States to implement.

The inability for States to take a partial or phased approach to assumption has,
historically, been a major hurdle for States seeking to assume [Footnote 54: E.g., State of
Oregon HB 2436 Partial 404 Assumption Legislative Update (Nov. 2019) (identifying
workgroup recommendation of "partial assumption" of 404 program covering "specific
geographic areas for specific activities" in Oregon); Oregon Department of State Lands
Dec. 2020 Legislative Update, at 5 (viability of partial assumption dependent on "revised
404(g) rules on assumption"), available at

https://www.oregon.gov/dslAVW/Documents/LegislativeUpdate-December2020.pdf.]. It
is almost certainly a hurdle for TAS Tribes as well.

EPA should not be making policy calls about how easy or difficult EPA estimates it will
be for States to partially assume the program - and certainly not without recent
conversation with States, including Alaska. The conversations that Alaska has had with
other States indicate that, contrary to EPA's statement, partial assumption would not be
difficult for States to implement. States could, and sometimes would prefer to, take a
partial or phased approach to assumption. Alaska urges EPA to reconsider pragmatic
options allowing for a partial or phased assumption.

Agency Response: See Section IV.B.l of the final rule preamble for discussion of the
Agency's rationale for this provision and response to these comments. EPA
determined not to authorize partial assumption following extensive discussion and
outreach with Tribes and States and comments received during the public comment
period. See Section III.B of the final rule preamble for a discussion of outreach
conducted on this rule and public input opportunities. EPA looks forward to
continuing to engage with Tribes and States to assist in facilitating Tribal and State
assumption following the issuance of this rulemaking.

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2. Retained waters

2.1 Procedures for determining which waters are retained

Anonymous (EPA-HO-QW-2020-0276-0044-0001 ^

The proposed rule also states that EPA and the Corps would jointly determine which
waters are excluded from assumption by Tribes or States, based on the best available
information and data, and would publish a list of such waters for each assumed program.
However, the proposed rule does not specify how EPA and the Corps would make such
determinations, what information and data they would use, how they would resolve any
disputes or disagreements, and how they would update or revise the list of excluded
waters over time.

This is an important issue that needs more clarification, as it may affect the scope and
effectiveness of the assumed programs, as well as the rights and responsibilities of the
Tribes, States, project applicants, and the public. Lack of treatment of this issue could
lead to clarifying litigation.

Agency Response: See Section IV.B.2 of the final rule preamble for a discussion of
the rationale for EPA's approach to determining the scope of the Corps-retained
waters. As discussed in the preamble, EPA convened an Assumable Waters
Subcommittee under the National Advisory Council for Environmental Policy and
Technology (NACEPT) specifically for the purpose of recommending a clearer
process for determining the scope of retained waters. The Subcommittee met for over
a year and developed a thorough report and recommendation. The Subcommittee
submitted its recommendations to NACEPT, which passed it, in turn, to EPA. This
rule implements the Subcommittee's majority recommendation, with even greater
clarity in the form of more specific time frames and procedures. EPA also carefully
reviewed the public comments on this rule, and while commenters asked for greater
clarity, none provided specific and actionable suggestions as to the form such
additional clarity could take. EPA therefore pursued all avenues to provide clarity
with respect to the process for determining the scope of retained waters. Ultimately,
applying the statutory language to different water bodies within the jurisdiction of
different Tribes or States with varying types of data will require some case-by-case
analysis and determinations. Yet the process EPA is establishing in this rule will
provide predictability and certainty by establishing clear time frames and
information sources for the development of the description. In addition, this rule
establishes specific opportunities for public input, ensuring that members of the
public can provide suggestions regarding the scope of retained waters to the Corps
and the Tribe or State.

The rule is clear that the retained waters list would include the following:

Waters of the United States, or reaches of those waters, from the RHA section
10 list(s) that are known to be presently used or susceptible to use in their natural
condition or by reasonable improvement as a means to transport interstate or foreign
commerce;

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Other waters known by the Corps or identified by the Tribe or State as
presently used or susceptible to use in their natural condition or by reasonable
improvement as a means to transport interstate or foreign commerce, including all
waters which are subject to the ebb and flow of the tide; and

Retained wetlands that are adjacent to the foregoing waters.

The data and information that may be used to compile the list will vary depending
on the sources of information the Corps district, State, or Tribe have available. The
preamble discusses potential sources of such information, but EPA determined that
it is not necessary or helpful to limit or prescribe the universe of such sources in
regulatory text.

As recognized in EPA's regulations, in many cases, States lack authority under the
CWA to regulate activities covered by the section 404 program in Indian country and
Lands of Exclusive Federal Jurisdiction. See 40 CFR 233.1(b). Thus, the Corps will
continue to administer the program in Indian country unless EPA determines that a
State has authority to regulate discharges into waters in Indian country and approves
the State to assume the section 404 program over such discharges. The rule also
addresses ways of updating the list over time. See Section IV.B.2 of the final rule
preamble.

Anonymous (EPA-HO-OW-2020-0276-0044-0002N)

Some questions this suggests are:

How would EPA and the Corps define and identify excluded navigable waters of the
United States, especially in light of the ongoing review of the definition of waters of the
United States by EPA and the Corps in a separate rulemaking process?

How would EPA and the Corps determine which waters are adjacent to or tributaries of
excluded navigable waters of the United States, especially in cases where such waters are
intermittent, ephemeral, or isolated?

How would EPA and the Corps account for changes in hydrology, ecology, land use,
climate, or other factors that may affect the status or condition of assumed or excluded
waters over time?

How would EPA and the Corps communicate and coordinate with Tribes, States, project
applicants, and the public about which waters are assumed or excluded, and how they
can access relevant information and data?

How would EPA and the Corps handle any challenges or appeals from Tribes, States,
project applicants, or the public regarding the determination of assumed or excluded
waters?

Agency Response: See Section IV.B.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0044-0001.

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EPA is not currently engaged in rulemaking addressing the definition of "waters of
the United States." This rulemaking does not affect, modify or otherwise address the
definition of "waters of the United States." To the extent the Corps uses its expertise
to assess the scope of "waters of the United States" in compiling the retained waters
description, this rulemaking does not address that part of the Corps' analysis.

Following program assumption, the Tribe or State maintains the descriptions of
retained waters. Section IV.B.2 of the final rule preamble discusses procedures for
modifications of that list. The Tribe or State will have the lead role in modifying and
communicating to members of the public about the list and its modifications, though
as discussed in the preamble, the Memorandum of Agreement between the Corps
and the Tribe or State must outline procedures whereby the Corps will notify the
Tribe or the State of changes to the RHA section 10 list as well as the extent to which
these changes implicate the statutory scope of retained waters as described in CWA
section 404(g)(1) and therefore necessitate revisions to the retained waters
description. The Tribe or State would incorporate the revisions that the Corps has
identified, pursuant to the modification provisions agreed upon in the Memorandum
of Agreement. EPA must approve all program revisions, including changes to the
retained waters descriptions. Substantial revisions, such as the removal of waters
from the retained waters description and substantial additions to the description,
include a public notice process. Changes in hydrology, ecology, land use, climate, or
other factors that may affect the status or condition of assumed or retained waters
over time may be addressed through the program modification process. See Section
IV.B.2 for opportunities for public input on the retained waters description. EPA's
approval of Tribal or State programs, including its approval of the retained waters
description, may be challenged in federal district court.

Individual commenter (EPA-HO-OW-2020-0276-0050-00Q4N)

The term "retained waters description" is preferrable because it implies a more detailed
response than a simple list of names. I think there should be some avenue for Tribes and
States to argue for the waters they think should be under their authority.

Agency Response: The Agency is retaining the term "retained waters description."
See Section IV.B.2 of the final rule preamble for a discussion of the collaborative
approach the Agency anticipates between Tribes or States and the Corps in
developing the retained waters description.

Kletsel Environmental Regulatory Authority (KERA) (EPA-HQ-QW-2020-0276-005 1 -0001)

While I understand the need for modernizing the CWA section 404,1 am concerned with
the lack of clarity on what waters fall under the jurisdiction of a Tribe versus the Corps. I
would also like there to be clearer definitions on how waters are determined to be
excluded, for instance in the case of ephemeral or intermittent bodies of water. Due to
the importance of these definitions, it is necessary that all parties involved fully
understand how these determinations are made.

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Moreover, I am curious whether these definitions are set in stone, or can be revisited over
time as usage may change.

Agency Response: See Section IV.B.2 of the final rule preamble and the Agency's
Response to Comments EPA-HQ-OW-2020-0276-0044-0001 and -0002.

Buena Vista Rancheria of Me-Wuk Indians (EPA-HO-OW-lOlO-OlTe-OOSS-OOOe^)

BVR asks that when a Tribe applies for 404 authority that there be no waters retained by
the Corps. All waters on Tribal land should be under the jurisdiction of the Tribe.

Agency Response: CWA section 404(g) provides that when a State assumes the
section 404 program, the Corps retains waters that are currently used or susceptible
to use in their natural condition or by reasonable improvement as a means to
transport interstate or foreign commerce, and adjacent wetlands. See 33 U.S.C.
1344(g)(1). EPA's regulations define "State" to include eligible Indian Tribes. See 40
CFR 233.2, citing 233.60. Nothing in the CWA authorizes an entity other than the
Corps to retain waters that are known to be presently used or susceptible to use in
their natural condition or by reasonable improvement as a means to transport
interstate or foreign commerce.

Buena Vista Rancheria of Me-Wuk Indians (EPA-HO-OW-2020-0276-0053-0Q(m

In addition, BVR asks for clarification on how permitting authority for wetlands/waters
that extend beyond the jurisdiction of a Tribe (beyond Tribal trust land) will be
determined. In the case where a wetland or waterbody under permit review spans tribal,
state, or federal jurisdiction, BVR suggests the Corps establish a mechanism for a Tribe
to be the permitting agency for an entire wetland or water body in the permit so the
permittee does not have to apply for several permits on a project that crosses
jurisdictional boundaries. If the tribe cannot be the primary permitting authority, EPA
must identify a means for dealing with permits that cross jurisdictional bounds.

Agency Response: EPA did not finalize its proposed approach to administrative
boundaries. EPA therefore expects a significant reduction in the number of projects
that straddle the boundary between assumed and retained waters. EPA recognizes
that dealing with permits that cross jurisdictional bounds can be challenging, and
that dealing with such issues is an inevitable result of State or Tribal assumption, as
there may be permitting projects that cross State or Tribal boundaries. EPA cannot
authorize a Tribe to administer a permitting program outside of the Tribe's
boundaries, however, just as, for example, it could not authorize Michigan to
administer the entirety of a permitting project if part of the project crossed into
Indiana. Tribes and States may still choose to address projects requiring joint
permitting in their MOA with the Corps. EPA would be glad to work with Tribes,
States, and the Corps to help facilitate efficient and mutually satisfactory
approaches to addressing permits that cross jurisdictional boundaries.

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Buena Vista Rancheria of Me-Wuk Indians (EPA-HO-OW-2020-0276-0053-00Q8N)

BVR also supports the statement on page 55286 of the federal register that "waters that
are assumable by a tribe (as defined in the report) may also be retained by the USACE
when a state assumes the program" as this would allow Tribes who are not yet ready to
assume 404 responsibilities the ability to have jurisdiction over waters on their lands in
the future when they are ready to assume 404 responsibilities. In the case where a state
does assume the permitting authority over waters that could later be assumed by the
Tribe. There needs to be a mechanism in place for the Tribe to assume the permitting
authority from the state.

Agency Response: States cannot assume permitting authority over waters eligible
for assumption by a Tribe. See Section IV.B.2 of the final rule preamble and 40
CFR 233.11(i)(6). As recognized in EPA's regulations, in many cases, States lack
authority under the CWA to regulate activities covered by the section 404 program
in Indian country. See 40 CFR 233.1(b). Thus, the Corps will continue to administer
the program in Indian country unless EPA determines that a State has authority to
regulate discharges into waters in Indian country and approves the State to assume
the section 404 program over such discharges. See id. The Memorandum of
Agreement between the Corps and State must address any waters which are to be
retained by the Corps upon program assumption by a State, which includes waters
in Indian country. Id. at 233.14(b)(1).

Anonymous (EPA-HQ-OW-2020-0276-0054-000n

According to the proposed rule, Tribes or States that assume the Section 404 program
would have jurisdiction over all waters of the United States within their boundaries,
except for those waters that are excluded from assumption by statute or regulation. It also
states that the EPA and the Corps would jointly determine which waters are excluded
from assumption by Tribes or States, based on the best available information and data.
Then they would publish a list of such waters for each assumed program. However, the
proposed rule does not specify how the EPA and the Corps would determine this, what
information and data they would use, how they would resolve any disputes or
disagreements, how they would update or revise the list of excluded waters over time,
and where they would post the list to be seen. I feel like this is essential information that
is necessary to be public and clarified so that more than three states can assume
jurisdiction. Additionally, how would the EPA and the Corps account for changes in
hydrology, ecology, and land use due to climate changes that may affect the condition of
assumed or excluded waters over time?

Agency Response: See Section IV.B.2 of the final rule preamble and the Agency's
Response to Comments EPA-HQ-OW-2020-0276-0044-0001 and -0002.

Environmental Protection Network (EPN) (EPA-HQ-QW-2020-0276-005 7-0004)

Retained Waters

The proposed regulation clarifies how the state/Tribe will work with COE to determine
which waters COE will retain under the assumption of the program. However, additional
clarification that COE retains the 404 permitting authority on Tribal lands within states

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that receive 404 authority may still be needed. Historically, this determination was not
always completed as the state/Tribal programs were being developed. EPN supports this
clarification requiring that before the program is submitted to EPA for review, states and
Tribes need to submit a request to EPA to ask the COE to identify the retained waters.
This change will allow the states and Tribes to show they are taking concrete and
substantial steps towards assumption and streamline the process. In previous years, there
has been no guidance, and this led to confusion over how COE and the states and Tribes
worked through this process.

Agency Response: See Section IV.B.2 of the final rule preamble and the Agency's
Response to Comments EPA-HQ-OW-2020-0276-0053-0008.

Association of Clean Water Administrators (ACWA) (EPA-HQ-QW-2020-0276-0060-0005)
Retained Waters: The process for assumption is ambiguous on what waters, exactly, are
to be retained by the U.S. Army Corps of Engineers (USACE) when a state assumes
section 404 authority. In the Proposed Rule, EPA has revised procedures by which
USACE may determine which waters will remain under their jurisdiction after state
assumption. EPA expresses that these revisions are intended to address state and tribal
concerns over a lack of clarity and national consistency in determinations of which
waters will remain under USACE jurisdiction. However, the process laid out in the
Proposed Rule imposes new requirements on states and will likely add unnecessary
delays to the process of determining which waters will be retained. The question of
which waters will be retained by the USACE is a fundamental issue for states
considering assumption. While we appreciate the agency's effort to clearly outline a
process for states to assume the section 404 program, without identifying the universe of
waters to be retained by the USACE, the assumption process will continue to be long,
drawn-out and uncertain impacting states' interest in the program. The Proposed Rule
should address this fundamental issue. We request that EPA work with states to identify
ways in which the Rule may be refined to more effectively address the shortcomings of
USACE's prior approach.

Agency Response: See Section IV.B.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0044-0001.

Yukon River Inter-Tribal Watershed Council (EPA-HO-OW-2020-0276-0063-0Q18N)

EPA's proposal for how to identify retained waters is problematic and contrary to the
language in Section 404(g). The approach in the proposed rule is to start with the Army
Corps of Engineers' retained waters list developed under Section 10 of the Rivers and
Harbors Act. These lists are often severely out of date and often lack supporting and
current information. If a state is applying for assumption and it intends on using a
Section 10 list from the Army Corps, it should only be allowed to use lists that have been
comprehensively updated within the previous five years. Indeed, it is the Corps' duty to
determine the scope of its jurisdiction that will be assumed by a state agency in
compliance with the Clean Water Act. If, after EPA passes along a states' request to the
Corps for a retained waters list, the Corps cannot provide a list that has been updated
within the previous five years, the Corps must be allowed time to research and update its
Section 10 list to ensure it is consistent with Section 404(g). To allow time for the Corps

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to update the Section 10 lists, a state should make its request for a retained waters list at
least 1 year prior to submission of the state application.

Agency Response: See Section IV.B.2 of the final rule preamble.

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0019)

In the event that assuming states are the parties developing the retained waters list instead
of the Corps, the state process must include full public information and disclosure
followed by public comment from the outset. This requirement must be included as a
requirement for assumption in EPA's regulations. The minimum amount of time that the
state must use to develop its retained waters list should reflect the amount of information
the public needs to evaluate to make informed comments on the proposed retained waters
list. That is, the more waters there are within a state that must be evaluated, the longer
the state must give for the public to evaluate and comment on the state's proposed list. In
no event should this process take less than 6 months. EPA must recognize that this
approach, whereby states start developing the retained waters list without input from the
Corps, places an undue burden on the public to identify retained waters and review the
state's proposed list and evidentiary support. Although EPA may perceive a need for
states to start the process of assumption, it is still EPA's duty to ensure that it is only
delegating waters that are allowed to be delegated under the CWA.

Agency Response: See Section IV.B.2 of the final rule preamble. EPA agrees that it
bears responsibility for ensuring that Tribes and States only assume waters able to
be assumed under section 404(g), and it views the rule's approach as the most
feasible means of helping the Agency to carry out that obligation.

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0020)

In the event that a state begins to prepare a retained waters list in preparation for
submission of the application, and the Corps begins to update its Section 10 list after the
state has begun the preparation but prior to the full assumption of Section 404 permitting,
the applicant must be required to incorporate and use the most recent Section 10 list to
create its proposed retained waters list.

Agency Response: See Section IV.B.2 of the final rule preamble. The Corps has the
first opportunity to create a retained waters description, and presumably it would
use any simultaneous updates to the RHA section 10 list to inform the creation of
that description. If the responsibility to develop the retained waters description
were to pass to the Tribe or State, the Corps as well as members of the public could
still communicate their input to the Tribe or State, including information about
updates to the relevant RHA section 10 list(s). The preamble emphasizes the
importance of such communications. See also Section IV.B.2 of the final rule
preamble addressing modifications to the retained waters description following
program approval.

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Yukon River Inter-Tribal Watershed Council (EPA-HO-OW-2020-0276-0063-0Q2n

Regardless of whether it is the state applicant or the Corps that develops the retained
waters list, the retained waters list must also include waters that have been historically
navigable. Historical navigability is often an indicator of whether the waterway can be
navigable in its natural condition or with reasonable improvement, which is the statutory
requirement for retained waters in Section 404(g). Indeed, it is often human construction
or action that makes a waterway non-navigable and the CWA specifically ensures that
waters that would otherwise be navigable are retained.

Agency Response: See Section IV.B.2 of the final rule preamble.

Yukon River Inter-Tribal Watershed Council (EPA-HO-OW-2020-0276-0063-0Q22)

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
establish a new requirement for a periodic mandatory review of the retained waters
description because a comprehensive review may be extremely time- and resource-
intensive and unnecessary. The goal of keeping the descriptions current can be
achieved through periodic modifications of the retained waters description to
address new information, such as changes to the RHA section 10 list. Stakeholders
wishing to draw attention to the need for certain updates may petition the Tribe or
State, the Corps, or EPA, to revise the retained waters description.

Florida Department of Environmental Protection (FDEP) (EPA-HO-OW-2020-0276-0066-0Q12)
EPA proposes new requirements for States developing a description of retained waters.
Under the proposed procedure, a State would be required to submit a request to EPA that
the Corps identify the list of retained waters, along with some evidence that the State is
actively pursuing assumption (i.e., legislation authorizing assumption or assumption
funding, a letter from the head of a state agency, or a copy of a grant or other funding
allocated to pursue assumption). After this

is submitted, the Proposed Rule identifies a timeline for EPA to send to the Corps (7
days) and for the Corps to notify the State that it will complete the request (30 days). The
Proposed Rule provides that, if the Corps does not provide notification within 30 days, or
if it does but does not provide a retained waters list within 180 days, a State may develop
a retained waters description using the same framework as the Corps.

Again, EPA should be careful to not impose new requirements that go beyond the plain
text of the CWA. Section 404(g)(1) provides the limits of state 404 purview, authorizing
States to assume Section 404 permitting authority within the State's jurisdiction, except
for "those waters which are presently used, or are susceptible to use in their natural

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condition or by reasonable improvements 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 their mean high water mark,
including wetlands adjacent thereto." 33 U.S.C. 1344(g)(1). So long as a State abides by
that requirement and adopts a workable arrangement with the Corps of Engineers for
identifying those waters (as was done in Florida's process), EPA should mandate no
more. For example, requiring States to wait 30 days for the Corps to agree to develop the
retained waters list and then another 180 days for it to actually develop the list and then
allowing the Corps to not provide it, at which time the State may then develop a list, may
allow undue delay not intended by Congress.

Agency Response: See Section IV.B.2 of the final rule preamble.

Florida Department of Environmental Protection (FDEP) (EPA-HQ-QW-2020-0276-0066-0013)
EPA also proposes changes to how a State or the Corps should approach the
development of a retained waters list. The Proposed Rule outlines the steps that the
Corps, or States if the Corps declines or fails to delineate the retained waters, should take
to create a retained waters list. As proposed, the list would be prepared by (i) starting
with the relevant Rivers and Harbors Act ("RHA") section 10 lists, then (ii) adding
waters from the RHA section 10 list that are presently used or susceptible to use as a
means to transport commerce, (iii) adding other waters that are presently used or
susceptible to use in commerce "[t]o the extent feasible and to the extent that information
is available," and finally (iv) adding a description of adjacent wetlands, noting that the
"description does not require a specific listing of each wetland that is retained."

[Footnote 5: 88 Fed. Reg. 55,325.] As EPA notes, previously "individual States and
Corps districts have had to interpret the extent of retained waters and the meaning of
"adjacent wetlands" in the context of case-by-case development of State program
descriptions and the Memoranda of Agreement that are negotiated between the Corps
and the State as part of a complete program submission." [Footnote 6: Id. at 55,286.]

As part of Florida's years-long 404 assumption process, in 2017 Florida began
coordinating with the Corps' Jacksonville District to identify the scope of assumable and
retained waters in Florida. Over the following three years the Corps refined the list based
on similar standards that are articulated in the Proposed Rule (e.g., removing waters
deemed navigable based solely on historic use), and the list was contained in the MOA
between the Corps and Florida. The approach used in the Florida process provides an
appropriate and flexible process that is consistent with the text of the CWA, while also
allowing for case-specific determinations made during program implementation.

Agency Response: See Section IV.B.2 of the final rule preamble.

Florida Department of Environmental Protection (FDEP) (EPA-HO-OW-2020-0276-0066-0Q15)
EPA is also making clear in its proposal that modifications to the "retained waters" list
do not always constitute "substantial" revisions requiring additional notice and comment
procedures. EPA proposes to amend 40 C.F.R. Section 233.15(d)(3) to eliminate from
the definition of "substantial revision" those revisions that effect the "area of
jurisdiction." Instead, these types of modifications could be approved by a letter from the

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Regional Administrator, which will be published on EPA's website. Florida supports this
change, which would allow additional flexibility for federal and state agencies to
maintain an up-to-date public list of areas considered to be retained waters. The key
point is that there needs to be a workable process for updating the retained waters list
based on current information. EPA's proposed approach should help to facilitate
appropriate oversight while reducing unnecessary red tape, which will support state
assumption of 404 programs and increase state-federal cooperation.

Agency Response: See Section IV.B.2 of the final rule preamble.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q15N)

The Conservation Organizations support developing a process and definition for retained
waters under Section 404(g)(1). This is an essential component of assumption because it
affects which waterways will receive the greatest protection under federal law, with
specific actions in retained waters subject not only to the requirements of the Clean
Water Act, but also subject to review under NEPA and consultation pursuant to Section 7
of the Endangered Species Act and the NHPA.

But EPA's proposal is contrary to the Clean Water Act and fails to ensure public
participation that will increase accuracy of the identification of retained waters.

Agency Response: See Section IV.B.2 of the final rule preamble.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q19N)

EPA's proposed process for developing a retained waters list also contains several flaws
that must be addressed before the rule is finalized.

Agency Response: See Section IV.B.2 of the final rule preamble.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-002QN)

1. Time Limits.

EPA's proposed rule provides that a state may develop the description of retained waters
if: (1) the Corps does not indicate it will prepare the retained waters list within 30 days of
a request, or (2) the Corps does not prepare a retained waters list within 180 days of
indicating that it would. 88 Fed. Reg. at 55,285.

These arbitrary deadlines are unnecessary and may needlessly rush a process that may
require more time. It would be reasonable, for example, if the Corps required more time
to complete a retained waters list because of navigability assessments that are
anticipated, needed, or underway but not yet completed. It would make little sense to
require the completion of a process within an arbitrary timeframe that would render the
product of that process obviously inaccurate or out of date soon after [Footnote 64: As a
case in point, in 2021, the Menominee Indian Tribe of Wisconsin petitioned to correct
Michigan's Section 10 list for a mistake that the Corps itself had identified years earlier.
As of these comments, however, that issue has yet to be resolved. Plainly, then, the time
limits EPA is proposing are unreasonable.]

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A time limit of 180 days is particularly unreasonable given that a state will ordinarily
take 3-5 years to develop a program for submission to EPA. The Corps should be
afforded a minimum of one year to develop a retained waters list, through a process that
gives the agency enough time for its assessment and ensures robust opportunities for
public engagement and comment.

Agency Response: See Section IV.B.2 of the final rule preamble.

Earthiustice et al. (EPA-HQ-QW-2020-0276-0068-0021)

In addition to avoiding strict time limits, EPA should not propose that states undertake
the description of retained waters in the event that the Corps requires additional time.
States do not have the authority or expertise to make retained waters determinations,
which turn on questions of federal law and fall squarely within the longstanding
regulatory and legal expertise of the Corps. While states may coordinate with the Corps
on these determinations, it must be clear that the federal question of what waters are to
be retained is a determination to be made exclusively by federal agencies.

It is not sufficient for EPA to rely on the "two formal opportunities" the Corps will have
to "review" a retained waters list drafted by a state. 88 Fed. Reg. at 55,288. EPA and the
Corps have a non-delegable duty to ensure that only assumable waters are transferred to
a state following program approval. They have no authority to allow the transfer of
authority over waters and wetlands that must be retained by the Corps as a matter of law.
The responsibility must therefore remain with the Corps to develop a retained waters list,
and with EPA to ensure that any transfer of authority complies with 404(g)(1).

Agency Response: See Section IV.B.2 of the final rule preamble.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q22N)

3. Using Existing RHA Section 10 Lists as Basis.

Rivers and Harbors Act (RHA) Section 10 lists will only be useful to developing a
retained waters list after they have been carefully scrutinized. Retained waters lists will
also have to identify other waters that meet the definition of Section 1344(g)(1).

EPA's proposal that the Corps use only "the most recently published list" of Section 10
waters as its starting point, 88 Fed. Reg. 55,285, is inadequate. To begin, not every state
has an adequate Section 10 list. Some are grossly out of date and rely on determinations
that are no longer consistent with federal law. Other Corps districts have multiple
Section 10 lists, all of which must be considered when developing a retained waters list.
The Corps must also review all judicial determinations involving the subject state to
identify additional retained waters.

For example, Florida's retained waters list omitted Silver River, which is the Silver
Springs Run, a water deemed covered under the RHA by a federal court. Silver Springs
Paradise Co. v. Ray, 50 F.2d 356, 357 (5th Cir. 1931). Michigan's retained waters list

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excluded the Menominee River, an interstate river forming the boundary between two
states, in error.

Agency Response: See Section IV.B.2 of the final rule preamble. EPA recognizes
that not all RHA section 10 lists are fully comprehensive and up to date, but they
are the best and most comprehensive lists available of waters that would be
candidates to be retained by the Corps. As discussed in Section IV.B.2 in the final
rule preamble, the RHA section 10 lists are simply starting points. Waters of the
United States or reaches of those waters from the RHA section 10 list would be
placed into the retained waters description if they are known to be presently used
or susceptible to use in their natural condition or by reasonable improvement as a
means to transport interstate or foreign commerce; and to the extent feasible and to
the extent that information is available, other waters or reaches of waters would be
added to the retained waters description that 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. The Tribe or State may provide
information to the Corps to aid in the Corps' development of the retained waters
description, as may members of the public. If the responsibility to create the
retained waters description has passed to the Tribe or State, the Corps and
members of the public may provide information to them. See 40 CFR 233.11(i)(2).

Moreover, to ensure the retained waters descriptions remain as current and
accurate as is feasible, EPA has modified the final rule to provide that whenever
RHA section 10 lists are updated, an orderly process exists for incorporating those
changes, as appropriate, into a Tribe's or State's retained waters description.
Specifically, EPA now requires that the Memorandum of Agreement between the
Corps and the Tribe or State outline procedures whereby the Corps will notify the
Tribe or the State of changes to the RHA section 10 list that implicate the statutory
scope of retained waters and the Tribe or State will incorporate those changes into
its retained waters description.

Earthiustice et al. (EPA-HO-OW-lOlO-OlTe-OOeS-OOie^)

We agree that some additions to a retained waters list could be deemed non-substantial
for purposes of program modification. All other modifications to a retained waters list,
however, should be open for public notice and comment. This includes the removal of
any waters from a retained waters list, as that change not only affects the Corps'
jurisdiction under the Clean Water Act, but also the applicability of other federal
protections, including review under NEPA, Section 7 consultation under the ESA, and
consultation under the NHPA.

In addition, EPA should require re-evaluation of any retained waters list whenever, as
pertains to an approved (or applying) state: (1) the Corps makes a modification to its
Rivers and Harbors Act Section 10 list, (2) EPA or the Corps makes a stand-alone Clean
Water Act (a)(1) traditionally navigable waters determination, (3) a federal court makes a
navigability determination, and (4) a member of the public requests a navigability
determination.

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Program revisions to the retained waters list that are approved by the EPA, whether EPA
deems them substantial or insubstantial, should not only be communicated to the Corps,
88 Fed. Reg. at 55,291, but also to the public.

Agency Response: See Section IV.B.2 of the final rule preamble. To ensure the
retained waters descriptions remain as current and accurate as is feasible, EPA has
modified the final rule to provide that whenever RHA section 10 lists are updated,
an orderly process exists for incorporating those changes, as appropriate, into a
Tribe's or State's retained waters description. Specifically, EPA now requires that
the Memorandum of Agreement between the Corps and the Tribe or State outline
procedures whereby the Corps will notify the Tribe or the State of changes to the
RHA section 10 list that implicate the statutory scope of retained waters and the
Tribe or State will incorporate those changes into its retained waters description.
Not all of the events listed above will always necessitate changes to the retained
waters description, however, because, for example, the scope of RHA section 10 lists
and traditional navigable waters is not coextensive with the scope of waters subject
to the 404(g) parenthetical referring to Corps-retained waters. EPA has preserved
some discretion as to the most appropriate time to initiate revisions to the retained
waters description.

State of Michigan. Michigan Department of Environment Great Lakes, and Energy (EGLE).

Water Resources Division (EPA-HQ-OW-2020-0276-0071-0002)

The WRD also supports the 2017 recommendations of the Assumable Waters Committee
which the proposed rule reflects.

Agency Response: EPA acknowledges this expression of support.

National Association of Wetland Managers (NAWM) (EPA-HO-QW-2020-0276-0072-0011)
Comments on the timeframe for the Corps to provide retained waters analysis, dispute
resolution process methods, and retained waters adjustments have been requested.
NAWM agrees that when a State or Tribe has begun the application process for
authorization, once criteria has been established to indicate a good faith commitment, the
Corps should be able to provide an analysis of retained waters in a reasonable amount of
time to the applicant. While the Corps would best be able to determine the effort needed
to produce this information it does not seem unreasonable that the process of notification
to EPA and subsequent Corps notice (30 days) allowing 180 days for production is
unreasonable; however, some states have indicated that this is too long of a period for the
Corps to provide this information.

Agency Response: See Section IV.B.2 of the final rule preamble.

National Association of Wetland Managers (NAWM) (EPA-HO-OW-2020-0276-0072-00Q7)
Establishing a consistent process for identifying those waters which are retained under
federal jurisdiction is an important element for States and Tribes in determining whether
to apply for authorization to assume Section 404 as well as estimating the extent of their
resource needs to implement the program. It is also important that this process complies

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with Congressional intent to protect waters used to transport commerce. This intent goes
beyond the maintenance of navigational channels and includes protecting the significant
and public use and reliance on the functions of these waters. This is evident by the
inclusion of adjacent wetlands by Congress and not just retaining control to the ordinary
high-water mark of Section 10 waters.

Agency Response: See Section IV.B.2 of the final rule preamble.

Nebraska Department of Environment and Energy (EPA-HQ-QW-2020-0276-0073-0004)

The proposed rule has added another step that must be completed through EPA instead of
States working directly with the Corps to get the retained waters list and start working on
the administrative line. The proposal is outlining 180 days for the Corps to provide the
list.

• This will delay assumption and coordination with the Corps on developing the
MOA and administrative line as no communication between the State and Corps
would begin until after this official request is satisfied through EPA.

o The Department suggest EPA continue to support States and facilitate
productive working relationships between State 404 programs and
regional and State Corps programs by allowing States and the Corps to
work together on MO As and the premise behind the administrative line
while the Corps is reviewing their section 10 and tribal waters for the
development of the retain waters list.

Agency Response: See Section IV.B.2 of the final rule preamble. EPA encourages
Tribes and States to work with the Corps and EPA on other parts of the
assumption package during the development of the retained waters description.

National Association of Home Builders (NAHm (EPA-HO-OW-2020-0276-0077-001QN)

EPA's description of "retained waters," which identifies the subset of waters the Corps
would retain administrative authority (i.e., federal permitting) over after a state or Tribe
takes assumption of the CWA Section 404 program is reasonable and consistent with the
recommendations of the Assumable Waters Subcommittee and Corps policy [Footnote
23: NACEPT. Final Report of the Assumable Waters Subcommittee. May 2017.
Available at: https://www.epa.gov/sites/default/files/2017-

06/documents/awsubcommitteefinalreprort_05- 2017_tag508_05312017_508.pdf.]
[Footnote 24: James, R.D. Office of the Assistant Secretary Civil Works, Army Corps.
July 30, 2018. Memorandum CWA 404(g) Non- Assumable Waters.]. The proposed rule
acknowledges the Corps only retains jurisdiction over those CWA Section 10 waters that
are presently used or currently susceptible to use for interstate or foreign commerce, any
other waters known by state or Tribe that are used or susceptible for use to transport
interstate or foreign commerce, plus any wetlands that are adjacent to these retain waters
[Footnote 25: 88 Fed. Reg. §55287 (August 14, 2023)].

Agency Response: EPA acknowledges this expression of support.

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National Association of Home Builders (NAHm (EPA-HO-OW-2020-0276-0077-Q0m

NAHB supports EPA's description of "retained waters" since it appropriately limits
federal authority under Section 10 of the Rivers and Harbors Act (RHA) to only those
waterbodies and their adjacent wetlands that are presently used in interstate commerce
(or capable of being used in their present condition). NAHB applauds the EPA by
clarifying what waterbodies are Section 10 RHA and are therefore retained by the Corps
following the assumption by a state or Tribe. This ongoing issue has been adequately
addressed as one of the barriers previously identified by states [Footnote 27: 88 Fed.
Reg. §55282 (August 14, 2023)].

Agency Response: EPA acknowledges this expression of support.

National Association of Home Builders (NAHB^ (EPA-HO-OW-2020-0276-0077-00Q7N)

NAHB opposes affording Corps districts up to 180 days to identify retained waters
within a given state or Tribal boundary because 180 days exceeds EPA's statutory
deadline of 120 days to determine a pending CWA 404 assumption request [Footnote 17:
33 U.S.C. 1344(h)(1).]. The EPA proposal directs states and Tribes to submit a request to
EPA that the Corps identify the subset of waters that would remain under Corps
authority. Once EPA receives the request, it will review and respond to the state or
Tribes within seven days and notify the Corps [Footnote 18: Ibid.]. The proposal then
gives the Corps 30 days to notify the state, Tribe, and EPA that it will provide the
description of its retained waters and an additional 180 days to do so [Footnote 19: 88
Fed. Reg. 55285 (August 14, 2023).] . This could result in a total of 210 days. The
timeline could be even further extended if the Corps for does not provide the list and the
state or Tribe are forced to prepare their own.

EPA's proposal to allow Corps districts up to 180 days to comment on a state's or
Tribe's description of "retained waters" is illogical since Congress has already
established in the statute that EPA's failure to make a determination finding within 120
days means the CWA assumption request is deemed approved [Footnote 20: 33 U.S.C.
1344(h(3).]. These timelines should not be extended; if modified, they must be shortened
to comply with the statutory deadlines established by which EPA must address
completed assumption requests. EPA must not propose procedural changes for the
Corps' identification of "retained waters" on pending assumption requests that conflict
with statutory deadlines for EPA to provide required determinations on pending
assumption requests.

Agency Response: See Section IV.B.2 of the final rule preamble. Allowing the Corps
180 days to assess the scope of potentially retained waters for inclusion in a Tribe's
or State's program submission is not inconsistent with the statutory 120-day review
period for program submissions. The Corps' assessments occur before program
submission and may necessitate time-consuming analyses of waters.

Port Gamble S'Klallam Tribe (PGST^) (EPA-HO-OW-2020-0276-0078-001QN)

EPA's proposal for how to identify retained waters is problematic and contrary to the
language in Section 404(g). The approach in the proposed rule is to start with the Army

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Corps of Engineers' retained waters list developed under Section 10 of the Rivers and
Harbors Act. These lists are often severely out of date and often lack supporting and
current information. If a state is applying for assumption and it intends on using a
Section 10 list from the Army Corps, it should only be allowed to use lists that have been
comprehensively updated within the previous five years. Indeed, it is the Corps' duty to
determine the scope of its jurisdiction that will be assumed by a state agency in
compliance with the Clean Water Act. If, after EPA passes along a states' request to the
Corps for a retained waters list, the Corps cannot provide a list that has been updated
within the previous five years, the Corps must be allowed time to research and update its
Section 10 list to ensure it is consistent with Section 404(g). To allow time for the Corps
to update the Section 10 lists, a state should make its request for a retained waters list at
least 1 year prior to submission of the state application.

In the event that assuming states are the parties developing the retained waters list instead
of the Corps, the state process must include full public information and disclosure
followed by public comment from the outset. This requirement must be included in
EPA's regulations as a requirement for assumption. The minimum amount of time that
the state must use to develop its retained waters list must reflect the amount of
information the public needs to evaluate to make informed comments on the proposed
retained waters list. That is, the more waters there are within a state that must be
evaluated, the longer the state must give for the public to evaluate and comment on the
state's proposed list. In no event should this process take less than 6 months. EPA must
recognize that this approach, whereby states start developing the retained waters list
without input from the Corps, places an undue burden on the public to identify retained
waters and review the state's proposed list and evidentiary support. Although EPA may
perceive a need for states to start the process of assumption, it is still EPA's duty to
ensure that it is only delegating waters that are allowed to be delegated under the CWA.

In the event that a state begins to prepare a retained waters list in preparation for
submission of the application, and the Corps begins to update its Section 10 list after the
state has begun the preparation but prior to the full assumption of Section 404 permitting,
then the applicant must be required to incorporate and use the most recent Section 10 list
to create its proposed retained waters list.

Agency Response: See Section IV.B.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0063-0020.

Port Gamble S'Klallam Tribe (PGST^) (EPA-HO-OW-2020-0276-0078-Q0in

Regardless of whether it is the state applicant or the Corps that develops the retained
waters list, the retained waters list must also include waters that have been historically
navigable. Historical navigability is often an indicator of whether the waterway can be
navigable in its natural condition or with reasonable improvement, which is the statutory
requirement for retained waters in Section 404(g). Indeed, it is often human construction
or action that makes a waterway non-navigable and the CWA specifically ensures that
waters that would otherwise be navigable are retained.

Agency Response: See Section IV.B.2 of the final rule preamble.

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Port Gamble S'Klallam Tribe (PGST") (EPA-HO-OW-2020-0276-0078-Q0m

Finally, the retained waters list must also be revisited on a periodic basis, at least every
five years. The failure to revisit the retained waters list must be considered by EPA as a
reason to revoke state assumption. Other provisions of the CWA require periodic review
(e.g., triennial review of state water quality standards required under 33 U.S.C. § 1313(d)
and 40 C.F.R. § 131.20) to account for changing circumstances. Periodic review of the
Corps' retained waters list ensures the list is up to date and accounts for changes in
navigability or the extent of adjacent waters and wetlands. Again, if any changes to the
retained waters list result from this process, these should be considered substantial
modifications and notice should be provided to those persons known to be interested in
the matter, including any tribes in whose U&A the water body may exist.

Agency Response: See Section IV.B.2 of the final rule preamble and EPA Response
to Comments EPA-HQ-OW-2020-0276-0063-0022.

Port Gamble S'Klallam Tribe (PGST^) (EPA-HO-OW-2020-0276-0078-00Q6N)

The Retained Waters List is a key aspect of the proposed rule from the Tribe's
perspective. In order to protect the Treaty Tribes' reserved rights, EPA must include on
the Retained Waters List—and therefore retain the Corps' administrative authority over
these waters even after state assumption of 404 program authority—all waters of the
United States (WOTUS) subject to Rivers and Harbors Act (RHA) Section 10
jurisdiction and all WOTUS that were historically used, are presently used, or are
susceptible to use in their natural conditions or by reasonable improvement as a means to
transport interstate or foreign commerce throughout western Washington; all WOTUS
anywhere within Indian lands; and all WOTUS anywhere within a Tribe's Usual &
Accustomed fishing area or open and unclaimed lands.

Agency Response: See Section IV.B.2 of the final rule preamble.

State of Alaska Department of Environmental Conservation (EPA-HQ-OW-2020-0276-0079-

0004")

Alaska does not oppose requiring the Corps to identify which waters it believes are
retained, and which are assumable. We suggest that, for added clarity and certainty, the
Corps affirmatively indicate that each of the waters on its prepared list are "navigable"
and include information appended to the list demonstrating the waters' navigability.
Making navigability findings will provide clear direction to the Corps and will provide
additional assurance to the State, the State's Legislature, and members of the public that
the list is unlikely to change and can, therefore, be relied on. Imposing such a procedure
is also consistent with the purpose underlying the administrative boundary in the first
place: demarcating the point at which regulation is needed to protect the navigable
capacity of certain waterways.

We further suggest requiring that the Corps work with the State in assembling this list,
which will facilitate program transition. The Corps does not need six months to prepare
the list of retained waters: this should not be an onerous task, given the availability of
Section 10 waters lists. If, however, the Corps needs to determine the navigability of

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certain waterbodies, and thoroughly document each waterbodies' navigability, as we
recommend, six months is a reasonable amount of time.

We strongly urge EPA to eliminate the requirement that the State prove that it has taken
"concrete and substantial steps toward program assumption" before the Corps begins
preparation of the retained waters list. EPA would require States to submit proof of
legislation authorizing funding, legislation authorizing assumption, a Governor directive,
or a letter awarding a grant or other funding to pursue assumption [Footnote 16: 88 Fed.
Reg. 55284-55285.]. But the very first step of the assumption process is evaluating what
stands to be gained - i.e., what waters can be assumed. This is a foundational, and
preliminary, piece of information that States absolutely need. Without it, States will have
a very difficult time gaining the momentum necessary to obtain the items listed to prove
"concrete steps." The retained waters list must be made available to the State at the
beginning - not the middle or the end - of a State's push for assumption. Requiring
otherwise risks severely hamstringing States' efforts.

Agency Response: See Section IV.B.2 of the final rule preamble. As discussed in the
preamble, waters will only be placed in the description of retained waters if they
are presently used or susceptible to use in then-natural condition or by reasonable
improvement as a means to transport interstate or foreign commerce. Placement in
the description constitutes an affirmative indication that waters meet these criteria.
Consistent with the Agency's experience, the final rule preamble anticipates
collaboration between the Corps and the Tribe or State in developing this
description.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q16N)

Agency Response: See Section IV.B.2 of the final rule preamble.

Chickaloon Native Village (CNV) fEPA-HO-QW-2020-0276-0085-0017^

In the event that assuming states are the parties developing the retained waters list instead
of the Corps, the state process must include full public information and disclosure

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followed by public comment from the outset. This requirement must be included as a
requirement for assumption in EPA's regulations. The minimum amount of time that the
state must use to develop its retained waters list should reflect the amount of information
the public needs to evaluate to make informed comments on the proposed retained waters
list. That is, the more waters there are within a state that must be evaluated, the longer
the state must give for the public to evaluate and comment on the state's proposed list. In
no event should this process take less than 6 months. EPA must recognize that this
approach, whereby states start developing the retained waters list without input from the
Corps, places an undue burden on the public to identify retained waters and review the
state's proposed list and evidentiary support. Although EPA may perceive a need for
states to start the process of assumption, it is still EPA's duty to ensure that it is only
delegating waters that are allowed to be delegated under the CWA.

Agency Response: See Section IV.B.2 of the final rule preamble.

Chickaloon Native Village (CNV) fEPA-HO-QW-2020-0276-0085-0018^

In the event that a state begins to prepare a retained waters list in preparation for
submission of the application, and the Corps begins to update its Section 10 list after the
state has begun the preparation but prior to the full assumption of Section 404 permitting,
the applicant must be required to incorporate and use the most recent Section 10 list to
create its proposed retained waters list.

Regardless of whether it is the state applicant or the Corps that develops the retained
waters list, the retained waters list must also include waters that have been historically
navigable. Historical navigability is often an indicator of whether the waterway can be
navigable in its natural condition or with reasonable improvement, which is the statutory
requirement for retained waters in Section 404(g). Indeed, it is often human construction
or action that makes a waterway non-navigable and the CWA specifically ensures that
waters that would otherwise be navigable are retained.

Agency Response: See Section IV.B.2 of the final rule preamble.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q45N)

EPA's approach to retained/assumable waters must be revised. EPA's proposed process
for identifying retained waters is inadequate. EPA's proposal for how to identify retained
waters is problematic and contrary to the language in Section 404(g). The approach in
the proposed rule is to start with the Corps' retained waters list developed under Section
10 of the Rivers and Harbors Act (RHA). These lists are often severely out of date and
often lack supporting and current information. If a state is applying for assumption and it
intends on using a Section 10 list from the Corps, it should only be allowed to use lists
that have been comprehensively updated within the previous five years. Indeed, it is the
Corps' duty to determine the scope of its jurisdiction that will be assumed by a state
agency in compliance with the Clean Water Act. If, after EPA passes along a states'
request to the Corps for a retained waters list, the Corps cannot provide a list that has
been updated within the previous five years, the Corps must be allowed time to research
and update its Section 10 list to ensure it is consistent with Section 404(g). To allow time
for the Corps to update the Section 10 lists, a state should make its request for a retained

76

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waters list at least 1 year prior to submission of the state application. [Footnote 95: As of
January 26, 2023, the exact extent of waters potentially assumed by Alaska under a
CWA 404 program and retained waters that would remain under the jurisdiction of the
Corps was unclear. See 2023 Feasibility Report at 31-34. From the Feasibility Report, it
appears that DEC would depend on the Corps expertise to identify retained waters and
then plans to negotiate the delineation between retained and assumable waters. Id.]

Agency Response: See Section IV.B.2 of the final rule preamble.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q46N)

Regardless of whether a state applicant or the Corps develops the retained waters list, the
retained waters list must also include waters that have been historically navigable.
Historical navigability is often an indicator of whether the waterway can be navigable in
its natural condition or with reasonable improvement, which is the statutory requirement
for retained waters in Section 404(g). Indeed, it is often human construction or action
that makes a waterway non-navigable and the Clean Water Act specifically ensures that
waters that would otherwise be navigable are retained.

Agency Response: See Section IV.B.2 of the final rule preamble.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q47N)

Regarding the proposed rule change providing discretion on whether a modification to a
retained waters list is substantial, we request the EPA revise the draft rule. We agree that
some additions to a retained waters list could be deemed non-substantial for purposes of
program modification. All other modifications to a retained waters list, however, should
be open for public notice and comment, just as the development of an initial retained
waters list should be. This includes the removal of any waters from a retained waters list,
as that change not only affects the Corps' jurisdiction under the Clean Water Act, but
also the applicability of other federal protections, including review under NEPA, Section
7 consultation under the ESA, and consultation under the NHPA.[Footnote 96: See 88
Fed. Reg. at 55,292 (specifically requesting comment on whether removals from retained
waters list should always be considered substantial program revisions).]

Agency Response: See Section IV.B.2 of the final rule preamble.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q48N)

In addition, EPA should require re-evaluation of any retained waters list whenever, as
pertains to an approved (or applying) State: (1) the Corps makes a modification to its
RHA Section 10 list, (2) EPA or the Corps makes a stand-alone traditionally navigable
waters determination, (3) a federal court makes a navigability determination, and (4) a
member of the public requests a navigability determination.

Program revisions to the retained waters list that are approved by EPA, whether EPA
deems them substantial or insubstantial, should not only be communicated to the
Corps,[Footnote 97: 88 Fed. Reg. 55,291.] but also to the public.

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Finally, the retained waters list must also be revisited on a periodic basis, at least every
five years. The failure to revisit the retained waters list must be considered by EPA as a
reason to revoke state assumption. Other provisions of the Clean Water Act
require periodic review (e.g., triennial review of state water quality standards required
under 33 U.S.C. § 1313(d) and 40 C.F.R. § 131.20) to account for changing
circumstances. Periodic review of the Corps' retained waters list ensures the list is up to
date and accounts for changes in navigability or the extent of adjacent waters and
wetlands.

Agency Response: See Section IV.B.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0063-0022.

Natural Resources Defense Council (EPA-HO-OW-lOlO-OlTe-TRANS-OgigiS-OOS-OOOS^)
Similarly, in determining which waters are reserved for federal permitting, the Corps
can't rely on section ten lists or other shortcuts; but instead, the Corps must affirmatively
determine which waters the state may assume authority over.

Agency Response: See Section IV.B.2 of the final rule preamble.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-3-001QN)

- EPA Must Ensure a Process For Determining Assumable Waters That Fully Complies
with 33 U.S.C. §1344(g) Limitations and That Does Not Rely On Current Section 10
Waters Lists.

Second, EPA must establish a process to ensure that states cannot and do not assume
permitting in waters which are presently used, or are susceptible to use, in their natural
condition or by reasonable improvement, in interstate or foreign commerce shoreward,
including all waters which are subject to the ebb and flow of the tide, and including
wetlands adjacent to waters that meet this definition. 33 U.S.C. § 1344(g). There are two
routes for EPA to do so.

If EPA insists on relying on Corps Section 10 lists for each Corps regional office, the
current lists cannot be used as a proxy for determining which waters may be assumed by
a state under 404's statutory limitations. As noted above, the current Section 10 lists are
inaccurate, outdated, and were not developed in accordance with the specific language
and limitation of Section 404(g). Therefore, EPA and the Corps must spend the
necessary time, with public notice and comment and tribal consultation, to assess the
accuracy of the Section 10 lists and the lists' compliance with the specifics of Section
404(g) as set forth above. Alternatively, EPA must work with the Corps at the time EPA
considers a petition to assume 404 permitting from a state to specifically determine
which waters meet the definition of non-assumable waters under Section 404(g) and
provide the proposed list to the public with adequate time and information for comments
prior to any final decision on a state's petition.

EPA must also, in its rulemaking, make clear that any water that is an interstate water
(that is, it forms a boundary or crosses a state border) or a water that forms a boundary or
crosses a boundary between a state and tribal lands cannot be part of a state's assumed
program.

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Agency Response: See Section IV.B.2 of the final rule preamble. Interstate waters
(that is, waters that form a boundary or cross a state border) or waters that form or
cross a boundary between a Tribal and State lands are retained by the Corps if they
are presently used or susceptible to use in their natural condition or by reasonable
improvement as a means to transport interstate or foreign commerce, or if they are
wetlands adjacent to such waters.

Earthiustice(EPA-HO-OW-2020-0276-0068-SD-3-00(m

Earthjustice strongly objects to the proposed shorthand approach of using the Corps'
"Section 10 Waters lists" to determine for which waters a state may assume 404
permitting, as fraught with error and not in compliance with the Clean Water Act
statutory requirements.

Section 404(g) expressly limits the waters for which permitting may be delegated to a
state. A state may not assume Section 404 permitting in:

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 their high water mark or the tide shoreward to
their mean high water mark or mean higher high water mark on the west coast, including
wetlands adjacent thereto.

33 U.S.C. § 1344(g) (emphasis added). Any rule that EPA develops regarding
assumption of 404 permitting must conform to this limitation and Earthjustice is
concerned that the proposal regarding the use of Section 10 Waters lists does not
conform to this statutory requirement.

Of most significant concern is the fact that the Corps' Section 10 waters lists are grossly
out of date and inaccurate, as we have learned in the Menominee Indian Tribe litigation
(cited above). In that case, evidence from the Corps' own files demonstrates that the
Menominee River, upstream of the first mile or so, was mistakenly omitted from the
regional Corps office's Section 10 waters list contrary to the Corps' own consultant's
and attorney's recommendations. The Menominee River is a large river that forms the
boundary between two states, Michigan and Wisconsin, and is used, and could be used in
its natural condition, in interstate commerce. The Corps and EPA, while acknowledging
that the Corps' documents demonstrated the Menominee River was recommended to be
on the Section 10 water list, refused to take jurisdiction of permitting for a mine that was
on the Michigan side of the Menominee River and that would destroy adjacent and/or
connected wetlands. Earthjustice, on behalf of the Menominee Tribe, has been forced to
petition to amend the Section 10 list to include the Menominee River. It should not be
this difficult to get the Corps to change the Section 10 lists, when even the Corps' own
files show the list is in error. For this reason alone, Section 10 lists cannot be used as the
determinative "assumable waters" list for any state.

Moreover, the Corps appears too ready to manipulate its Section 10 lists depending on
the administration. During the Trump Administration, the Corps substantially altered its
longstanding Section 10 waters list to aid Florida's plan to assume 404 jurisdiction,
cutting significant numbers of waters off the Section 10 list, contrary to longstanding
definitions and contrary to Section 404(g) requirements and creating the current

79

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untenable situation with the State of Florida assuming control of and then refusing to
protect many waters through permitting.

Agency Response: See Section IV.B.2 of the final rule preamble. As described in
that Section, RHA section 10 lists are a starting point and are not determinative of
the scope of retained waters. The process that EPA lays out for determining the
scope of waters is based on recommendations from the Assumable Waters
Subcommittee, stakeholder input, and comments on the proposal, and is the most
feasible way EPA determined to maximize consistency with the text of CWA section
404(g).

EarthiusticefEPA-HO-OW-lOlO-OlTe-OOeS-SD-S-OOO^

In other instances, it is likely that the Section 10 waters lists are incomplete. For
example, adjacent wetlands are not listed at all. It also appears from our experience that
some Corps regional offices omit waters from the Section 10 lists if they are not used for
large commercial navigation, a definition much narrower than that set forth in Section
404(g) [Footnote 4: In fact, the Section 10 waters lists are created by the Corps for
regulatory reasons and uses distinct from 404(g) and as a result cannot be counted on to
conform to the express limitations set forth in 404(g).]. Rather, the 404(g) limitation on
assumption expressly provides that waters presently used or that could be used, in their
natural condition or by reasonable improvement, in interstate commerce cannot be part
of a state's assumed permitting. For this additional reason, Section 10 lists cannot be
used to determine assumable waters for any state.

In order to ensure that a state only assumes 404 permitting in waters allowed under
Section 404(g), EPA must either spend the time working with the Corps to examine and
amend each and every Section 10 waters list to ensure it is accurate and meets the
statutory requirements under 404(g), allow the public notice and opportunity to comment
on the proposed updated lists, and provide for and implement procedures to examine and
update the lists on a regular schedule, or EPA must reject the recommendation to use
Section 10 lists and instead determine, with notice and comment at the time a state
applies to assume 404 permitting, which waters in the state would be covered by state
permitting under the specific limitations of 404(g).

We object strongly to any proposal or rule or practice that allows the use of existing
Section 10 waters lists to determine the scope of a state's assumed permitting authority
as not factually supported and not compliant with the Clean Water Act.

Agency Response: See Section IV.B.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0068-SD-3-0007.

J.J technical issues rcgan/ing i/clcriiimiiig the scope <>j reiamcil n ulcrs

Port Gamble S'Klallam Tribe (PGSTI fEPA-HO-QW-2020-0276-0078-0009^

The Tribe agrees with the statement at page 55,291 of the preamble that "at no time can
there be a gap in permitting authority for any water of the United States," and therefore
agrees with EPA's proposed clarification that "in the program description of an
assumption request, the description of waters of the United States assumed by the Tribe
or State must encompass all waters of the United States not retained by the Corps."

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Agency Response: EPA acknowledges the commenter's expression of support.

2.3 Legal issues regarding retained waters

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q16N)

A. EPA's Proposed Retained Waters' Definition is Contrary to the Plain Language of
Section 1344(g).

The Clean Water Act defines retained waters as:

[T]hose 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 their mean high water mark, or mean
higher high water mark on the west coast, including wetlands adjacent thereto.

33 U.S.C. § 1344(g)(1).

EPA's proposed interpretation of retained waters as excluding waters used for interstate
commerce in the past, other traditional navigable waters, and adjacent wetlands beyond
an arbitrary cutoff is unlawful. EPA's regulations should instead clarify that retained
waters are those that the Corps exercises exclusive jurisdiction over pursuant to the
Rivers and Harbors Act (including "historic use" waters), traditionally navigable waters
under the Clean Water Act, as defined in 33 C.F.R. § 328.3(a)(1); 40 C.F.R. §

120.2(a)(1), and the entire area of all wetlands adjacent thereto.

Congress' description of retained waters mirrors the Supreme Court's longstanding
interpretation of traditionally navigable waters. In The Daniel Ball, the Supreme Court
held that waterways are navigable in fact when they are "used, or are susceptible of being
used, in their ordinary condition, as highways for commerce, over which trade and travel
are or may be conducted in the customary modes of trade and travel on water." 77 U.S.
557, 563 (1870), superseded in part by statute as recognized by Rapanos v. U.S., 547
U.S. 715, 723-24 (2006). They are navigable waters of the United States "when they
form in their ordinary condition by themselves, or by uniting with other waters, a
continued highway over which commerce is or may be carried on with other States or
foreign countries in the customary modes in which such commerce is conducted by
water." Id.

In Economy Light & Power Co. v. United States, 256 U.S. 113 (1921), the Supreme
Court applied the Daniel Ball test of whether a water in its natural state is used, or
capable of being used, as a highway for interstate commerce, and concluded that this test
was met based on the river having had actual navigable capacity in the past (i.e., its
historic use). Id. at 118, 121-124. The Supreme Court thus held that a waterway is a
navigable water of the United States based on past use "even though it be not at present
used for such commerce, and be incapable of such use according to present methods." Id.
at 123.

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That "historic use" satisfies the "used [or] susceptible of being used" for interstate
commerce in "its natural state" test was thus firmly established and in use long before
Congress passed the 1977 amendments to the Clean Water Act using the same terms to
describe retained waters. Retained waters therefore plainly encompass historic use
waters. See United States v. Wells, 519 U.S. 482, 495 (1997) ("[W]e presume that
Congress expects its statutes to be read in conformity with this Court's precedents" as
relates to substantially similar language); Davis v. Michigan Dep't of Treasury, 489 U.S.
803, 813 (1989) ("When Congress codifies a judicially defined concept, it is presumed,
absent an express statement to the contrary, that Congress intended to adopt the
interpretation placed on that concept by the courts."); Midlantic Nat. Bank v. New Jersey
Dep't of Env't Prot., 474 U.S. 494, 501 (1986) ("[I]f Congress intends for legislation to
change the interpretation of a judicially created concept, it makes that intent specific.").

The Corps codified the Supreme Court's interpretation of traditionally navigable waters,
including historic use waters, in regulations under both the Rivers and Harbors Act and
the Clean Water Act. 33 C.F.R. §§ 328.3(a)(1) (Clean Water Act), 329.4 (Rivers and
Harbors Act).

The Corps articulated the position that retained waters include Clean Water Act (a)(1)
traditionally navigable waters when it served on the Assumable Waters Subcommittee,
something EPA attempts to gloss over by referring to the Corps' position at the time as
"separate" rather than diametrically opposed to EPA's. And notably, the Corps was the
only entity on the Assumable Waters Subcommittee with legal authority to interpret the
Rivers and Harbors Act and, with EPA, the Clean Water Act.

Agency Response: See Sections III.A and IV.B.2 of the final rule preamble and
Appendix F of the Assumable Waters Subcommittee Report, available at

https://www.epa.gov/sites/defauit/fiies/2017-

06/documents/awsubcommitteefinalreprort 05-2 * * 'g508 0 * • 17 508.pdf'.
The legislative history of section 404(g) and the statutory text clearly indicate that
the scope of the Corps-retained waters was intended to be based on RHA section 10
waters, minus waters no longer susceptible to use in their natural condition or by
reasonable improvement for transporting interstate or foreign commerce. To the
extent "historic use" waters (i.e., waters historically used as a means to transport
interstate or foreign commerce) are susceptible to use in their natural condition or
by reasonable improvement for transporting interstate or foreign commerce, they
generally satisfy the statutory criteria for the Corps-retained waters. If they are not
susceptible to use in their natural condition or by reasonable improvement, they do
not meet the statutory criteria.

EPA agrees that the Corps interpreted the scope of retained waters as
encompassing all traditional navigable waters, in the minority position on the
Assumable Waters Subcommittee Report. EPA also recognizes that the Department
of the Army subsequently sent a letter to the Corps supporting the majority
recommendation as to the extent of retained waters. R.D. James, Memorandum for

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Commanding General, U.S. Army Corps of Engineers: Clean Water Act Section
404(g) - Non-Assumable Waters (July 30, 2018).

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q17N)

EPA's own regulations confirm that retained waters include traditionally navigable
waters. In 40 C.F.R. § 233.14(b)(2), EPA stated: "Where a State permit program includes
coverage of those traditionally navigable waters in which only the Secretary may issue
404 permits, the State is encouraged to establish in this MOA procedures for joint
processing of Federal and State permits, including joint public notices and public
hearings." But rather than effectuate Congress' intent, EPA now proposes to remove the
word "traditionally" from this regulation to align with its unduly, and unlawfully,
restrictive view of retained waters. EPA should abandon that proposal.

EPA's description of the "legislative history" as supporting its proposed definition of the
retained waters provision is incomplete and speculative. (It is also based entirely on the
accounting of the provision's legislative history by the majority opinion in the
Assumable Waters Subcommittee Report, even though that subcommittee has no legal
authority.)

Agency Response: See Sections III.A and IV.B.2 of the final rule preamble, the
Agency's Response to Comment EPA-HQ-OW-2020-0276-0068-0016, and
Appendix F of the Assumable Waters Subcommittee Report, available at

https://www.epa.gov/sites/defauit/fiies/2017-

06/documents/awsubcommitteefinalreprort 05-2017 tag508 05312017 508.pdf'.
EPA has not previously interpreted the scope of the section 404(g) parenthetical
referring to the Corps-retained waters to encompass all traditional navigable
waters as EPA and the Corps have defined that term in the regulatory definitions of
"waters of the United States." For example, EPA's approval of the scope of retained
waters in the Michigan, New Jersey, and Florida section 404 programs did not rely
on that interpretation. The term "navigable" is found in the section 404(g)
parenthetical, so it is unsurprising that EPA once used that term as shorthand to
refer to the waters in that parenthetical. It is also unsurprising that EPA sought a
shorthand term to refer to the scope of the parenthetical, given its length. However,
EPA is revising 40 CFR 233.14(b)(2) to avoid confusion and to clarify the
distinction between "traditional navigable waters" as currently defined in 40 CFR
120.2(a) and waters in the 404(g) parenthetical, i.e., waters that are susceptible to
use in their natural condition or by reasonable improvement for transporting
interstate or foreign commerce.

EPA disagrees that the legislative history in support of its interpretation of the
scope of the 404(g) parenthetical is incomplete and speculative. EPA has conducted
its own research on the legislative history, reflected in the final rule preamble, and
has concluded that the legislative history is unusually clear as to Congress' intent:
that the scope of the Corps-retained waters is similar to the scope of RHA section
10 waters, minus waters no longer used or susceptible to use in their natural
condition or by reasonable improvement for transporting interstate or foreign

83

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commerce. EPA finds Appendix F of the Assumable Waters Subcommittee Report
to be a helpful summary of the legislative history, and consistent with EPA's own
research.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q18N)

EPA claims that the House proposed restricting the Corps' 404 authority and that the
Congress ultimately reached a compromise that authorized state assumption while
allowing the Corps to retain authority over the waters described by the House. But EPA
points to no actual evidence of this supposed "compromise." Instead, the conference
report EPA cites states:

The Conference substitute provides for the administration by a State of its own permit
program for the regulation of the discharge of dredged or fill material into the navigable
waters other than traditionally navigable waters and adjacent wetlands [if EPA approves
program],

H.R. Rep. No. 95-830 at 104 (emphasis added) [Footnote 63: Notably, EPA's adopted
accounting of the provision's history appears to have originated from private lawyers
whose purpose in drafting the document is not clear. See V.S. Albrecht & B.R. Levey,
The legislative history of Section 404(g)(1) of the Clean Water Act (Nov. 30, 2015). The
content was later included, virtually verbatim, in Appendix F of the 2017 Assumable
Waters Subcommittee Report. EPA should not rely on it (or its unsupported
assumptions).].

EPA states that the legislative history described retained waters as relating to "phase 1"
of the Corps' Clean Water Act regulations. 88 Fed. Reg. at 55,279. See S. Rep. 93-370 at
75; see also H.R. Rep. 95-830 at 98, 101 (amendments would allow states to administer
Section 404 in phase 2 and phase 3 waters after program approved by EPA). But EPA's
proposed interpretation of retained waters is far more restrictive than what constituted the
Corps' phase 1 waters. 40 Fed. Reg. 31,320 (July 25, 1975); 42 Fed. Reg. 37,122, 37,124
(July 19, 1977) (phase 1 consists of waters "already regulated" by the Corps plus
adjacent wetlands).

Agency Response: See Sections III.A and IV.B.2 of the final rule preamble, the
Agency's Response To Comment EPA-HQ-OW-2020-0276-0068-0017, and
Appendix F of the Assumable Waters Subcommittee Report, available at
https://www.epa.gov/sites/default/files/2017-

06/documents/awsubcommitteefinalreprort 05-2 g508 05312017 508.pdf.
EPA disagrees with the comments rejecting EPA's interpretation that the legislative
history of section 404(g) indicates Congress' intent that the Corps retain waters
subject to RHA section 10. The legislative history excerpts in the final rule
preamble and Appendix F of the Subcommittee Report clearly reflect this intent. In
addition, the Conference Report states that Senate's version of section 404 provides
that "[t]he authority for control of discharges of dredge or fill material granted to a
State through the approval of a program pertains solely to the environmental
concerns reflected in the specific guidelines set forth in the amendment. The

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responsibility of the Corps of Engineers under the [RHA], as specified under
section 511 of the Act, is not affected or altered by this provision." H.R. Rep. No.
95-830, at 99 (1977). As noted in the preamble, the 1977 amendments allowed States
to assume permitting authority in "phase 2 and 3 waters after the approval of a
program by [EPA]." H.R. Rep. No. 95-830, at 101 (1977). The conference report
was referring to the Corps' three-phased regulatory exercise of jurisdiction over
"waters of the United States." The Corps explained that phase 1 waters, in contrast,
were "waters already being regulated by the Corps [] plus all adjacent wetlands to
those waters..." 42 FR 37122, 37124 (July 19,1977). The "waters already being
regulated by the Corps" referred to "the same waters that were being regulated
under the Rivers and Harbors Act of 1899." Id. at 37,123. The only difference
between the waters being regulated by the Corps under the RHA and the scope of
retained waters under section 404(g) is that the final text of 404(g) removes the
reference to waters "used in the past" to transport interstate or foreign commerce.
33 U.S.C. 1344(g).

There are significant similarities in terminology and legal history between the scope
of RHA section 10 and the regulatory definition of "traditional navigable waters in
40 CFR 120.2(a), and it is understandable that the two concepts may be confused or
conflated. However, EPA's decision to use RHA section 10 lists as a starting point
for retained waters descriptions is based on the practical advantages of this
approach in addition to the legislative history of this section of the Act. See Section
IV.B.2 of the final rule preamble.

Finally, the Assumable Waters Subcommittee consisted of a diverse group of
experts representing a wide array of stakeholders, convened to provide advice and
recommendations as to how the EPA could best clarify the scope of waters over
which a Tribe or State may assume permitting responsibility under a CWA section
404 Program. The recommendations carried out this goal. EPA disagrees with
comments suggesting that any part of the Subcommittee Report should be rejected
based on the identity of individual Subcommittee members who may have penned a
first draft of that part.

Earthiustice et al. fEPA-HO-OW-2020-0276-0068-0Q24>)

EPA's proposal that simply following the prescribed process to develop a retained waters
list authorizes the Regional Administrator to presume that the list satisfies legal
requirements is wholly unacceptable because it fails to conform to EPA's statutory duty
to ensure that only permitting authority over assumable waters is ultimately transferred.

Agency Response: EPA disagrees with this comment. The procedure EPA outlines
for the development of the retained waters description is the procedure EPA has
determined will be most likely to result in a description that complies with the
statutory language. EPA would review any description and any public or federal
agency comments received during its review of a program request, prior to
approving a Tribal or State program to ensure its compliance with EPA's

85

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regulations and the text of section 404(g)-(/). See Section IV.B.2 of the final rule
preamble.

Natural Resources Defense Council (EPA-HO-OW-2020-0276-TRANS-Q92923-008-000 n
The Clean Water Act prohibits states from assuming permitting authority over
traditionally navigable waters and their adjacent wetlands. To state the obvious, EPA
cannot abide by this command if it allows states to permit discharges into waters that
meet that description. Accordingly, EPA can't, as it proposes to, create administrative
boundaries on federal waters.

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries.

2.4 Procedure for determining which adjacent wetlands are retained and the "administrative
boundary "

Buena Vista Rancheria of Me-Wuk Indians (EPA-HO-OW-2020-0276-0053-00Q5N)

Buena Vista Rancheria is in full support of the Corps working with Tribal governments
"to establish a clear and reliable administrative boundary that demarks the permitting
authority for adjacent wetlands" and encourages the Corps to have good faith discussions
with the Tribe while discussing administrative boundaries.

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries.

The Petroleum Alliance of Oklahoma (EPA-HO-OW-2020-0276-0055-001QN)

Third, EPA is proposing that the "administrative boundary between retained and assumed
wetlands be set jointly by the tribe or state and the Corps," with a default value of 300
feet. The practical effect of this proposal in Oklahoma could be the state and 38 federally
recognized tribes all would have to negotiate the administrative boundary with the Corps
on an individual basis for different reaches of a water way. That potentially could leave
Oklahoma with numerous different administrative boundaries along its waters, creating a
permitting maze that surely would confound many permittees and increase regulatory
costs, a fact EPA's Economic Analysis does not acknowledge.

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries.

Environmental Protection Network (EPN) (EPA-HQ-QW-2020-0276-005 7-0003)

Default Boundary between Corps of Engineers and State/Tribal Waters and Wetlands
EPN supports the proposed rule's approach to setting a 300-foot default boundary
between COE-retained waters and the assumed program covering state/Tribal waters and
wetlands but would recommend more detail be provided on how this number was
selected. This boundary will be used to clarify how the program will be administered and
allows for a clear demarcation for permits issued for retained and assumed waters. EPN
also suggests that the proposed rule identifies a simple methodology for how this default
boundary will be applied on the ground. For example, will it be measured along the

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entire length of the retained and assumed program waters? Or will it be applied at points
along the boundary where the proximities are the closest?

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries.

Idaho Department of Environmental Quality (TDEQ) (EPA-HQ-QW-2020-0276-0059-0001)
I. Retained Waters and Adjacent Wetlands

Due to the complexity of defining retained waters and adjacent wetlands as well as
jurisdictional determinations, IDEQ suggests that EPA provide further clarification
regarding which waters may be assumed under CWA section 404(g) and which waters
will be retained by the Army Corps of Engineers (USACE). EPA should require the
USACE to make navigability determinations for all retained waters.

Information on Section 10 navigable waters designations already exists, so it should not
take the USACE 180 days from the receipt of request to provide a retained waters
description if they have identified that they will do so. In addition, resources should be
made available that help Tribes and States document and further evaluate retained waters
and to clarify the extent of adjacent wetlands for decision making. Under the proposed
Rule, decision making will be complicated and slowed by administrative boundary
authority, inconsistent application of regulations, ecosystem fragmentation, lack of
coordination, enforcement challenges, and monitoring and data sharing. To expound,
conflicts may arise if multiple Tribal or State authorities claim jurisdiction over the same
wetlands which can lead to legal disputes and confusion over regulatory conflicts.
Different Tribal or State authorities may have varying regulations and management
priorities. Inconsistencies can result in confusion for landowners. Environmental impact
determination may vary by jurisdiction. Dividing management responsibilities along
administrative boundaries can lead to fragmented ecosystem management, which may
not adequately protect the resources.

Under the proposed Rule, the administrative boundary between retained and assumed
wetlands would be set jointly by the Tribe or State and the USACE, but a 300-foot
administrative boundary from the ordinary high water mark would be established as a
default if no other boundary is established. Some project proposals involving
jurisdictional adjacent wetlands that straddle the administrative boundary may involve a
discharge into the wetland on both sides of the administrative boundary. The 300-foot
administrative boundary is arbitrary and may be difficult to delineate.

Agency Response: See Section IV.B.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0044-0001. EPA did not finalize its
proposed approach to administrative boundaries. EPA is willing to provide
technical assistance and to aid in resolving disputes regarding the scope of retained
waters. See Section IV.E.l of the final rule preamble.

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Maryland Department of the Environment (MDE) (EPA-HQ-QW-2020-0276-0061 -0001)
1) Retained wetlands

a) Sections 233.11 (i)(5)(i); 233.14(b)(1) discuss a default boundary for retained
adjacent wetlands which are within 300 feet of mean high water or ordinary high water.
In large, contiguous systems this may fragment the wetland with split between federal
and State/Tribal jurisdiction. There will be additional work involved in delineating
jurisdictional limits. We suggest that EPA consider assigning contiguous adjacent
wetlands to the category of retained waters or develop a method and opportunity for a
state to take jurisdiction over the WOTUS resources with the 300 feet with concurrence
from the Corps or EPA.

b) There should be more guidance on how retained adjacent wetlands are identified.
The development of regional field protocols is recommended and will be necessary.

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries. The default
understanding is that the Corps would retain administrative authority over all
jurisdictional wetlands "adjacent" to retained waters, as that term is defined in 40
CFR 120.2. The definitions in 40 CFR 120.2 are outside of the scope of this
rulemaking.

Yukon River Inter-Tribal Watershed Council (EPA-HO-OW-2020-0276-0063-0Q23)

[Italics: Id ] The language of the proposed rule practically allows for the Corps'
jurisdiction to vary from the exact boundary of the retained water to 300 feet from the
boundary of the retained water with no analysis whatsoever of whether or how the
retained waters are connected to adjacent wetlands. In a worst-case scenario, the state
and the Corps could negotiate an administrative boundary that ends at the retained water,
even though there are clearly identified adjacent wetlands that are connected to the
retained water that should be retained by the Corps under the express language of the
statute. The administrative boundary proposal and the default 300-foot boundary should
be eliminated. The state and the Corps must define with evidentiary support where
jurisdictional waters end, in compliance with the requirements of Section 404(g), for
each state application.

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries.

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Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0024)

The introduction of the administrative boundary also leads to jurisdictional confusion
between the Corps and a state because now there is an increased likelihood that a project
will cross the jurisdictional boundary. EPA's proposed rule states that "[t]he MOA
between the Tribe or State and the Corps must articulate an approach for permitting
projects involving such discharges that may occur in the adjacent wetland on both sides
of the administrative boundary." Id. at 55285. The proposed rule then goes on to say that
if the state and the Corps do not have a provision in the MOA outlining how projects
straddling the administrative boundary will be permitted, then EPA's default provision is
that the Corps would permit the part of the project waterward of the administrative
boundary and the state will permit the part of the project landward of the administrative
boundary. Id. This split permitting structure creates a myriad of problems for the Corps,
the permittee, interested parties, and the public. Initially, this can create confusion as to
which agency is the proper permitting entity, which has the domino effect of bifurcating
and needlessly replicating the scope of work for each permitting entity. And because,
under the proposed rule, EPA is not requiring all assuming states to adopt the language
and standards in the CWA and implementing regulations, the information required for a
permit application and how those permit applications are reviewed can vary between
state standards and Corps standards. This also has the effect of potentially circumventing
federal law that requires that projects be reviewed holistically for environmental impacts.
The split permitting structure can continue to create hurdles down the line. For example,
judicial review of two separate permits can create an undue burden on the ability to
challenge those permits and will complicate enforcement. Parties could be stuck
litigating two separate permits in two forums simultaneously, or worse yet, on drastically
different timelines depending on the state's judicial review procedures. The difficulties
of split jurisdiction provide a practical reason, as well as the legal reasons outlined
above, for EPA to discard the "administrative boundary" proposal in the rule.

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries.

Florida Department of Environmental Protection (FDEP) (EPA-HQ-QW-2020-0276-0066-0014)
The Proposed Rule also provides additional guidance as to retained wetlands and
establishes a 300-foot default boundary for what should be considered "adjacent
wetlands" under the CWA. Although 300 feet would be a default boundary, the Proposed
Rule offers flexibility for the State seeking assumption to jointly agree upon a different
boundary with the Corps during the assumption process.

Florida supports a default 300-foot administrative boundary while also providing
flexibility to set alternative boundaries on a state-by-state basis taking into consideration
the geographical, geological, and hydrological differences. During Florida's assumption
process, Florida and the Corps mutually agreed to a 300-foot administrative boundary for
what is considered "adjacent wetlands" under the retained waters list. This delineation
allows Florida to provide a mapping tool to the public, which provides a helpful starting
point for determining whether particular projects would be considered within the
purview of the state 404 program.

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Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q25N)

The Clean Water Act does not authorize setting arbitrary boundaries within a wetland.
Section 404(g)(1) expressly states that adjacent wetlands may not be assumed by a state,
full stop. Whether a wetland is adjacent (and to what extent) is a mixed question of fact
and federal law. Sackett v. EPA, 598 U.S. 651 (2023). It cannot be reduced to an
arbitrary number of feet from a retained water, and certainly not to a default of a mere
300 feet as EPA proposes. 88 Fed. Reg. at 55,285.

EPA recognizes as much in Footnote 25, where it states that by agreement in an MOA
the Corps "may" exercise jurisdiction over adjacent wetlands on both sides of the
administrative boundary where a permittee's activities will fall on both sides. But
Section 404(g)(1) does not make the extent of the Corps' jurisdiction optional. It
expressly states that adjacent wetlands may not be assumed by a state, whatever their
extent. There is no authority to invent an "administrative boundary" that would allow a
state to assume authority over part of wetlands that are adjacent to a retained water.
EPA's proposal "that the Corps retain administrative authority over all jurisdictional
wetlands adjacent to retained waters, except that, for purposes of administrative
convenience, the geographic scope of the Corps' administrative authority would be
limited by an agreed-upon administrative boundary," 88 Fed. Reg. at 55,289, is plainly
contrary to law by allowing a state to exercise 404 authority over non-assumable
wetlands.

Paradoxically, EPA holds the line when it comes to ensuring that the Corps will not
exercise authority over a water that is assumable by law. 88 Fed. Reg. at 55,285 n.25.
The same must hold true to ensure that a state will not exercise authority over waterways
and wetlands that are not assumable by law.

EPA's reliance on the Assumable Waters Subcommittee Report to propose limiting the
Corps' authority over retained waters fails. Congress did not give EPA or the
Subcommittee the authority to re-write its description of retained wetlands, or to carve
out some of those wetlands.

There is in fact no statutory authority to "establish[] a national administrative boundary
to assign regulatory responsibility" either to the Corps or a state on retained waters.
Congress already established the boundary: the Corps retains sole authority over
wetlands that are adjacent to a retained water. This is not, as EPA suggests, an
"administrative" authority. It is a legal duty statutorily-imposed by Congress.

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries.

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Region 10 Tribal Operations Committee (RTOC) and National Tribal Water Council (NTWC)

(EPA-HO-OW-2020-0276-0070-0Q(m

The current interpretation of Waters of the United States includes all wetlands, which are
adjacent to, and "indistinguishable from" a "relatively permanent body of water
connected to traditional interstate navigable waters."[Footnote 5: Sackett v. EPA, 598
U.S. (2023).] The 300-foot default rule sidesteps this definition and creates another layer
of classification, based on administrative compromises.

This further complicates the regulatory geography. One parcel may be part of the Waters
of the U.S. for the purposes of a 402 permit, but functionally not part of Waters of the
U.S. for a 404 permit. Although the default border may create simplicity within one-step
of State 404 program assumption, its divergence from the legal definition of waters
covered under CWA will create confusion later.

More significantly for Tribes, this bartering between an assuming State and USACE
results in areas whose protections do not correlate to their legal classification. States may
instead regulate Waters of the U.S., the regulation of which should implicate the Federal
trust obligation toward Tribes, with no obligation towards Tribal interests. The Federal
Government should not be able to avoid their trust obligations through an agreement of
convenience with a State, which is based on a thin distinction between permitting
authority and administrative authority.

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries.

National Association of Wetland Managers (NAWM) (EPA-HO-OW-2020-0276-0072-00Q8)
It is therefore critical that any establishment of an administrative demarcation boundary
be based on science and technical data supporting the limits of federally retained control,
not just as an "administrative boundary" selected out of convenience. It is difficult to
determine how EPA selected the 300-foot administrative default since it does not seem to
be supported by any data indicating that this limit is protective of Section 10 waters.
States and Tribes have indicated that the identification of the administrative default needs
clarification. As currently proposed, there is confusion on whether the 300-foot
measurement begins at the ordinary high-water mark (OHM) or at the ordinary high tide
line; if one exists. NAWM recommends that a repeatable method be used to determine
the appropriate limits of retained waters to comply with Congressional intent and to
provide clarity to those interested in assuming the program.

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries.

National Association of Wetland Managers (NAWM) (EPA-HO-OW-2020-0276-0072-00Q9)
It is worth noting that regardless of what method or boundary is selected there may be
differences in State and Tribal jurisdictional waters and WOTUS limits. A hydrologic
benchmark would seem to be appropriate and could be replicated by modeling based on
inputs and flow regimes. This method should be coordinated with EPA's Office of

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Research and Development and the U.S. Army Corps of Engineers (Corps). It may be
that a benchmark such as the active floodplain could be appropriate to provide both
replicability and would be protective of the functions of retained waters. The draft rule
advocates for the administrative approach to demarcation of the boundary between
federal and state jurisdiction in order to provide clarity to permit applicants. However,
this justification may be unwarranted since many states currently have different
boundaries and activities which are regulated outside of the federal Section 404 scope
and these differences have been navigated by project proponents since the inception of
the federal regulations.

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries.

National Association of Home Builders (NAHm (EPA-HO-OW-2020-0276-0077-Q0in
Notably, EPA acknowledges the meaning of the term "adjacent wetlands" must be
consistent with the U.S. Supreme Court's interpretation of the term "adjacent" under the
Sackett ruling [Footnote 26: Ibid.].

Port Gamble S'Klallam Tribe (PGSTI (EPA-HO-OW-2020-0276-0078-0Q13N)

EPA's proposal to establish an "administrative boundary" to limit the Corps'
administrative authority adjacent to retained waters must be eliminated as contrary to
Section 404(g). EPA proposed to draw these administrative boundaries "to clarify the
extent of adjacent wetlands over which the Corps retains administrative authority," 88
Fed. Reg. at 55285, but the concept simply lacks support in the law, is arbitrary, and
must be abandoned in the final rule. The state and the Corps must define with evidentiary
support where jurisdictional waters end, in compliance with the requirements of Section
404(g), for each state application and may not arbitrarily set a default distance for such
boundaries (of 300 feet or any other distance), which has no grounding in a wetland
delineation or any scientific understanding of complex wetland processes and their
connection with adjacent waters. The administrative boundary proposal and the default
300-foot boundary should be eliminated entirely [Footnote 1 If a default boundary is
retained, which it should not be, it should be much higher. For instance, the default
boundary approved for New Jersey is 1,000 feet. While still unacceptable, this would at
least not exclude as many adjacent wetlands that should properly remain subject to
federal 404 authority under Section 404(g) as the proposed 300-foot default.]

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries.

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Port Gamble S'Klallam Tribe (PGST^) (EPA-HO-OW-2020-0276-0078-0Q14>)

This is especially true as the proposed rule allows for the "administrative boundary
between retained and assumed wetlands [to] be set jointly by the Tribe or State and the
Corps" or for "a 300-foot administrative boundary [to] be established as a default if no
other boundary between retained and assumed adjacent wetlands is established." Id. In a
worst- case scenario, the state and the Corps could negotiate an administrative boundary
that ends at the retained water, even though there are clearly identified adjacent wetlands
that are connected to the retained water that should be retained by the Corps under the
express language of the statute. Or it may arbitrarily set a 300-foot line when the adjacent
wetland, in reality, may actually extend miles beyond the retained water boundary. This
is unacceptable and has no basis in the statutory language of Section 404(g) or in
scientific literature or wetland delineation practice.

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries.

Port Gamble S'Klallam Tribe (PGST^) (EPA-HO-OW-2020-0276-0078-0Q15N)

The introduction of the administrative boundary also leads to jurisdictional confusion
between the Corps and a state because there is an increased likelihood that a project will
cross the jurisdictional boundary. EPA's proposed rule states that "[t]he MOA between
the Tribe or State and the Corps must articulate an approach for permitting projects
involving such discharges that may occur in the adjacent wetland on both sides of the
administrative boundary." Id. at 55285. The proposed rule then goes on to say that if the
state and the Corps do not have a provision in the MOA outlining how projects
straddling the administrative boundary will be permitted, then EPA's default provision is
that the Corps would permit the part of the project waterward of the administrative
boundary and the state will permit the part of the project landward of the administrative
boundary. Id. This split permitting structure creates myriad problems for the Corps, the
permittee, interested parties, and the public. Initially, this can create confusion as to
which agency is the proper permitting entity, which has the domino effect of bifurcating
and needlessly replicating the scope of work for each permitting entity. And because,
under the proposed rule, EPA is not requiring all assuming states to adopt the language
or standards in the CWA and implementing regulations, the information required for a
permit application and how those permit applications are reviewed can vary between
state standards and Corps standards. This also has the effect of potentially circumventing
federal law that requires that projects be reviewed holistically for environmental impacts.
The split permitting structure can continue to create hurdles down the line. For example,
judicial review of two separate permits can create an undue burden on the ability to
challenge those permits and will complicate enforcement. Parties could be stuck
litigating two separate permits in two forums simultaneously, or worse yet, on drastically
different timelines depending on the state's judicial review procedures. The difficulties
of split jurisdiction provide a practical reason, as well as the legal reasons outlined
above, for EPA to discard the "administrative boundary" proposal in the rule.

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries.

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Port Gamble S'Klallam Tribe (PGST") (EPA-HO-OW-2020-0276-0078-0Q16N)

Further, for projects that may include both Corps-retained wetlands and state- assumed
wetlands, EPA regulations should require that the Corps is the lead permitting entity with
cooperative participation by the state. As stated above, this requirement must be outlined
in the MO As between the federal agencies and the assuming state. This requirement
would ensure that environmental review is not unlawfully segmented and will protect the
rights of interested parties injudicial review, particularly tribes. And because state
requirements may not be less stringent than Federal requirements, judicial review of the
Corps' permitting decisions in federal court will not infringe on any rights of the state
permitting agency or the permittee. This requirement would also ensure consistency
between different Corps Districts and applicant states in how they will analyze proposed
projects that straddle the jurisdictional boundary.

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries. EPA therefore expects
a significant reduction in the number of projects that straddle the boundary
between assumed and retained waters. Tribes and States may still choose to address
projects requiring joint permitting in their MOA with the Corps.

Port Gamble S'Klallam Tribe (PGST) (EPA-HQ-QW-2020-0276-0078-0007)

Moreover, all jurisdictional wetlands adjacent to such retained waters must be included
on the Retained Waters List and described in the Memorandum of Agreement with the
assuming State. As described below, administrative boundaries for adjacent wetlands
must extend to the full extent of the wetland boundary delineated and not to an arbitrary
distance (of 300 feet or otherwise) from the boundary of the retained water. Further,
there should be no shared authority with a state for permitting projects that "may cross
the administrative boundary"—or a need to "articulate an approach" for dealing with
such circumstances—because there should be no "administrative boundaries" but only
scientifically defensible adjacent wetland boundaries, such that it is clear that the entire
adjacent wetland remains on the Retained Waters List and subject to Corps rather than
state authority.

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries. EPA therefore expects
a significant reduction in the number of projects that straddle the boundary
between assumed and retained waters. Tribes and State may still choose to address
projects requiring joint permitting in their MOA with the Corps.

State of Alaska Department of Environmental Conservation (EPA-HQ-OW-2020-0276-0079-

0003")

Thank you for proposing to codify a default administrative boundary line. Alaska agrees
with the rationale underlying the 2017 Subcommittee's evaluation and recommendation
of the default boundary-line approach, which is that the line should be drawn only so far
as "necessary to protect these waters from activities that may adversely impact
navigability." [Footnote 12: 2017 Subcommittee Report at 26.]. As recognized by the
2017 Subcommittee, the Corps is tasked under the Rivers and Harbors Act with

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protecting the "navigable capacity" of waterways subject to that Act [Footnote 13: Id at
26], And as the 2017 Subcommittee further recognized, the only "[rjegulated activities
that may impact navigable capacity . . . would likely occur in areas that are in close
proximity to the waterways retained by the [Corps]." [Footnote 14: Id. at 26.]. Therefore,
tracking back to the navigable capacity of a waterway, and establishing a boundary on
that basis, makes sense. To do this, of course, the Corps must document the navigable
capacity of the waterways it seeks to retain.

The second, more obvious, caveat that must be reflected in the final rule is that this line
cannot be used to demarcate waters outside of the scope of "waters of the United States"
(of which "retained waters" are a subset). This means that if a wetland is distinguishable
[Footnote 15: See Sackett v. EPA, 598 U.S. 651, 678 (2023) (holding that, to be subject
to the Clean Water Act, a wetland must be "indistinguishable" from a water body that is
a waters of the United States in its own right).], from a traditionally navigable water at a
point closer than 300 feet away from the water body, it is the point closer to the water
body which demarcates the extent of the retained water for that water body. Frequently,
in Alaska, wetlands are distinguishable before that point. To prevent unnecessary delay
and confusion, the final rule should indicate that the administrative boundary line is in no
event to exceed the point at which a wetland is distinguishable from the adjacent
waterway, consistent with Sackett v. EPA.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-002QN)

EPA's proposal to establish an "administrative boundary" to limit the Corps'
administrative authority adjacent to retained waters must be eliminated as contrary to
Section 404(g). We recognize the appeal of creating an administrative boundary "to
clarify the extent of adjacent wetlands over which the Corps retains administrative
authority," but it simply lacks support in the law and is arbitrary. 88 Fed. Reg. at 55285.
This is especially true as the proposed rule allows for the "administrative boundary
between retained and assumed wetlands [to] be set jointly by the Tribe or State and the
Corps" or for "a 300-foot administrative boundary [to] be established as a default if no
other boundary between retained and assumed adjacent wetlands is established." Id. The
language of the proposed rule practically allows for the Corps' jurisdiction to vary from
the exact boundary of the retained water to 300 feet from the boundary of the retained
water with no analysis whatsoever of whether or how the retained waters are connected
to adjacent wetlands. In a worst-case scenario, the state and the Corps could negotiate an
administrative boundary that ends at the retained water, even though there are clearly
identified adjacent wetlands that are connected to the retained water that should be
retained by the Corps under the express language of the statute. The administrative
boundary proposal and the default 300-foot boundary should be eliminated. The state and

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the Corps must define with evidentiary support where jurisdictional waters end, in
compliance with the requirements of Section 404(g), for each state application.

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q2n

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries.

Chickaloon Native Village (CNV) fEPA-HO-QW-2020-0276-0085-0022^

Further, for projects that may include both Corps retained wetlands and state- assumed
wetlands, EPA regulations should require that the Corps is the lead permitting entity with
cooperative participation by the state. As stated above, this requirement must be outlined
in the MO As between the federal agencies and the assuming state. This requirement
would ensure that environmental review is not unlawfully segmented and will protect the
rights of interested parties injudicial review, particularly Tribes. And because state
requirements may not be less stringent than Federal requirements, judicial review of the
Corps' permitting decisions in federal court will not infringe on any rights of the state
permitting agency or the permittee.

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Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries. EPA therefore expects
a significant reduction in the number of projects that straddle the boundary
between assumed and retained waters. Tribes and State may still choose to address
projects requiring joint permitting in their MOA with the Corps.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q49N)

EPA's proposal to establish an administrative boundary to limit the Corps' administrative
authority must be eliminated. EPA's proposal to establish an "administrative boundary"
to limit the Corps' administrative authority adjacent to retained waters must be
eliminated as contrary to Section 404(g). The Clean Water Act does not authorize setting
arbitrary boundaries within a wetland. Section 404(g)(1) expressly states that adjacent
wetlands may not be assumed by a State, full stop. Whether a wetland is adjacent (and to
what extent) is a mixed question of fact and federal law.[Footnote 98: Sackett v. EPA,
No. 21-454 (U.S. May 25, 2023).] It cannot be reduced to an arbitrary number of feet
from a retained water, and certainly not to a default of a mere 300 feet as EPA
proposes.[Footnote 99: 88 Fed. Reg. at 55,285.]

The introduction of the administrative boundary also leads to jurisdictional confusion
between the Corps and a state because now there is an increased likelihood that a project
will cross the jurisdictional boundary. EPA's proposed rule states that "[t]he
Memorandum of Agreement between the Tribe or State and the Corps must articulate an
approach for permitting projects involving such discharges that may occur in the
adjacent wetland on both sides of the administrative boundary. "[Footnote 100: 88 Fed.
Reg. 55,291.] The proposed rule then goes on to say that if a state and the Corps do not
have a provision in the memorandum of agreement outlining how projects straddling the
administrative boundary will be permitted, then EPA's default provision is that the Corps
would permit the part of the project waterward of the administrative boundary and the
state will permit the part of the project landward of the administrative
boundary. [Footnote 101: Id.] This split permitting structure creates a myriad of problems
for the Corps, the permittee, interested parties, and the public. Initially, this can create
confusion as to which agency is the proper permitting entity, which has the domino
effect of bifurcating and needlessly replicating the scope of work for each permitting
entity. And because, under the proposed rule, EPA is not requiring all assuming states to
adopt the language and standards in the Clean Water Act and implementing regulations,
the information required for a permit application and how those permit applications are
reviewed can vary between state standards and Corps standards. This also has the effect
of potentially circumventing federal law that requires that projects be reviewed
holistically for environmental impacts. The split permitting structure can continue to
create hurdles down the line. For example, judicial review of two separate permits can
create an undue burden on the ability to challenge those permits and will complicate
enforcement. Parties could be stuck litigating two separate permits in two forums
simultaneously, or worse yet, on drastically different timelines depending on the state's
judicial review procedures. The difficulties of split jurisdiction provide a practical
reason, as well as the legal reasons outlined above, for EPA to discard the
"administrative boundary" proposal in the rule.

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Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-005QN)

Further, for projects that may include both Corps retained wetlands and state- assumed
wetlands, EPA regulations should require that the Corps is the lead permitting entity with
cooperative participation by the state. As stated above, this requirement must be outlined
in the memorandum of agreement between the federal agencies and the assuming state.
This requirement would ensure that environmental review is not unlawfully segmented
and will protect the rights of interested parties in judicial review, particularly tribes. And
because state requirements may not be less stringent than Federal requirements, judicial
review of the Corps' permitting decisions in federal court will not infringe on any rights
of the state permitting agency or the permittee.

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries. EPA therefore expects
a significant reduction in the number of projects that straddle the boundary
between assumed and retained waters. Tribes and State may still choose to address
projects requiring joint permitting in their MOA with the Corps.

Natural Resources Defense Council (EPA-HO-OW-2020-0276-TRANS-092923-008-00Q4N)
Wetlands that are adjacent to traditionally navigable waters are not assumable, even if
they extend landward for a significant distance. Especially in light of the Supreme
Court's improper redefinition of adjacency in the Sackett case, maintaining federal
authority over such adjacent wetlands is hardly a major imposition on the states.

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not
finalize its proposed approach to administrative boundaries. EPA therefore expects
a significant reduction in the number of projects that straddle the boundary
between assumed and retained waters. Tribes and State may still choose to address
projects requiring joint permitting in their MOA with the Corps.

2.5 Procedures for modifying the extent of retained waters and other proposed clarifications

Port Gamble S'Klallam Tribe (PGSTI (EPA-HO-OW-2020-0276-0078-00Q8N)

The Tribe disagrees with the proposal at page 55,291 of the preamble that would change
the current regulatory requirement that all modifications that affect the area of
jurisdiction always constitute substantial revisions to a Tribal or State program, such that
they require notice to "those persons known to be interested in such matters." Given the
breadth of the Tribe's U&A and the need for the Federal trustee to retain Section 404
authority throughout it, all changes to the Retained Water List or description and all
reductions in the scope of Federal jurisdiction (including the removal of any waters from
the Retained Waters List or description) are "substantial" modifications from the Tribe's
perspective, and the Tribe should receive notice and an opportunity to comment on all
such changes. This is especially true when EPA makes this proposal in the same breath
as saying that all changes in geographic scope of an approved tribal CWA section 404
program that would add reservation areas to the scope of its approved program are

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substantial program revisions, requiring notice to known interested parties and additional
process on the part of the tribe. This difference in how modifications to state
jurisdictional authority versus tribal jurisdictional authority would be handled is simply
unacceptable. All such changes should be considered substantial modifications, and all
known interested parties, including Tribes with U&A that covers the waters proposed to
be modified, must receive notice of such modification and an opportunity to comment on
the change.

Agency Response: See Section IV.B.2 of the final rule preamble. In response to
comments such as this, EPA is clarifying that all non-de minimis removals from the
retained waters description are considered substantial modifications that require
public notice. EPA expects this clarification will address the commenter's concern
about remaining apprised of reductions in areas subject to federal trusteeship.
Changes in geographic scope of an approved Tribal CWA section 404 program that
would add reservation areas to the scope of its approved program are substantial
program revisions because EPA must ensure that the Tribe's exercise of
jurisdiction over that area meets the statutory criteria for treatment in a manner
similar to that in which it treats a State, for purposes of the section 404 program.
See 33 U.S.C. 1378(e); 40 CFR 233.60, 233.61.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q19N)

Agency Response: See Section IV.B.2 of the final rule preamble and EPA Response
to Comment EPA-HQ-OW-2020-0276-0063-0022.

2.6 Public participation in the development of the retained waters description

Individual commenter (EPA-HO-QW-2020-0276-0050-001 n

Once this agreed upon description of retained waters is created, it should be made
available to the public and a 30-day comment period should commence. After all the
comments have been considered the description can be finalized. Adding this would
increase the public's transparency and allow for additional input on the issue of Tribal or
State sovereignty from citizens.

Agency Response: See Section IV.B.2 of the final rule preamble.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q23N)

Public Participation.

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In response to EPA's express request for comment on "how to increase transparency for
the public regarding the development of the retained waters description," 88 Fed. Reg.
55,292, Conservation Organizations maintain that the Corps should publish notice when
it receives a request to develop a retained waters list and provide a reasonable
opportunity for public submission of data and comment. The public must be afforded an
opportunity to weigh in on retained waters lists before they are finalized by the Corps to
be included in a Memorandum of Agreement with a state or to be submitted by the state
in its application.

EPA's proposal to include all retained waters "known" to the Corps, the state, or Tribes,
88 Fed. Reg. at 55,287, should not merely be a passive exercise based on old
information. Even if EPA will not require comprehensive navigability assessments in
every case, EPA should at a minimum require a process by which the public has an
opportunity to identify and make "known" to the Corps additional waterways that meet
the retained waters definition and must be retained by law [Footnote 65: In the case of
Florida, longtime residents, environmental advocacy groups, and Tribes identified
additional waterways that the Corps should have considered in developing its retained
waters list. This included evidence of navigability pertaining to the critically
consequential Everglades. But the Corps arbitrarily terminated a public comment period
it had initiated to assess the navigability of Florida's waters before state assumption, and
the public's comments were ignored. This resulted in the unlawful transfer of non-
assumable waters to the State.] Note that this is particularly important given the multiple
examples of error in the Section 10 lists; the public can provide valuable and necessary
information to ensure that the retained waters meet the requirements of the statutes.

It is not sufficient that the public will have an opportunity to comment on a state's
completed submission to EPA, nor that the public "may" have an opportunity to weigh in
during the state's development of its application. 88 Fed. Reg. 55,289. The public must
have the opportunity to weigh in before the Corps has prepared the retained waters list,
and that is when the Corps is in the process of developing it.

Agency Response: See Section IV.B.2 of the final rule preamble.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q29N)

EPA should make clear that the requirement for a "description" of the waters to be
assumed by the state, and those to be retained by the Corps must be identified in some
manner that makes apparent to the public which entity has 404 jurisdiction over which
waterways. 88 Fed. Reg. at 55,324-25 (proposed § 233.1 l(i)). This was EPA's intention
when it promulgated earlier 404 assumption regulations, and it is essential to
transparency and clarity for the public.

It should not be sufficient for a state only to "describe" assumed waters categorically (as
those waters not retained by the Corps). 88 Fed. Reg. at 55,325 (proposed §

233.1 l(i)(6)). It should similarly not be sufficient for the Corps to rely on a categorical
description of retained waters by adopting the definition in 404(g)(1) to claim it has
properly retained authority over all non-assumable waters. Retained waters lists should

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explicitly identify the retained waterways, including those that are subject to the ebb and
flow of the tide. And descriptions of assumed waters should be provided in a comparable
way that is clear and accessible to the public.

Agency Response: See Section IV.B.2 of the final rule preamble.

2.7 Other comments on retained waters and adjacent wetlands

National Tribal Water Council (NTWC) (EPA-HO-OW-2020-0276-0074-SD-Q0in

- It is imperative that before any further approvals of state CWA § 404 programs are
made, EPA and US ACE must clearly define the extent of the state's permit authority,
including by specifying which wetlands are subject to a state permit when there is a
coast, a navigable waterway used for interstate commerce, or similar waters subject to
ACE jurisdiction.

Agency Response: See Section IV.B.2 of the final rule preamble

Wetlands Coordinator for Confederated Salish and Kootenai Tribes (CSKT) (EPA-HQ-OW-
2020-0276-TRANS-083023-001-0002")

Comment 2

The third attendee that had commented through the chat asked through the chat which
waters are retained by the Corps and requested examples.

Comment 3

The attendee followed up asking which waters of the U.S. tribes would need to request
permits for.

Agency Response: See Section IV.B.2 of the final rule preamble. Tribes would need
to seek permits from an assuming Tribe or State for discharges into all waters other
than those retained by the Corps. Section IV.B.2 of the final rule preamble
addresses the scope of waters retained by the Corps.

National Tribal Water Council (NTWC) (EPA-HO-OW-2020-0276-0074-SD-Q0in

Agency Response: See Section IV.B.2 of the final rule preamble. The default
understanding of the scope of retained adjacent wetlands is that the Corps would
retain administrative authority over all jurisdictional wetlands "adjacent" to
retained waters, as that term is defined in 40 CFR 120.2. The definitions in 40 CFR
120.2 are outside of the scope of this rulemaking.

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3. Program assumption requirements

3.1 Staffing and funding requirements for administration, enforcement, and compliance

Maryland Department of the Environment (MDE) (EPA-HQ-QW-2020-0276-0061 -0004)
4) Implementation Support

MDE encourages and recommends that financial support be made available to
jurisdictions implementing an assumed Section 404 program. In addition, some states or
jurisdictions have Programmatic General Permits (PGPs) issued from the Corps, under
which authorizations result in a comparable federal authorization. While this is not a
form of assumption, the jurisdictions with PGPs are doing uncompensated work on
behalf of federal agencies. The jurisdiction with the PGPs may also assume
responsibility for receiving and distributing joint permit applications to the Corps and
other federal agencies for review as needed and agreed upon. Jurisdictions with PGPs
also assume oversight over permittee responsible mitigation projects for a no net loss of
wetlands.

Agency Response: This rulemaking addresses the requirements and procedures for
Tribal and State section 404 program approval, operation, and program
withdrawal. Federal funding for Tribal and State programs is outside of the scope
of this rulemaking.

Individual commenter (EPA-HO-OW-2020-0276-0050-0003)

Tribes and States being able to prove that they can carry out permitting operations at the
same capacity as the USACE is essential to the assumption process. Proving this ability
should be based on the current permit load that the USACE deals with and comparing it
to the Tribe or State's proposed program funding and staff. There is still confusion for
Tribes and States that have more than one USACE district operating in their boundaries,
and there should be guidelines in place to help entities in this situation. I worry about the
Tribes and States that do not have adequate funding or manpower to administer the
program at the same level as the USACE. I believe there should be a section in the
application to request additional funds or training from EPA. A Tribe or States may have
the perfect design for their program, but just not the resources to realize it and this should
not necessarily be a barrier to assumption.

Agency Response: See Section IV.B.3 of the final rule preamble for a discussion
about the importance of ensuring that Tribes and States that assume the section 404
program have the capacity to implement it, and about the utility and feasibility of
comparisons with the Corps' funding and staff. See also the Agency's Response to
Comment EPA-HQ-OW-2020-0276-0061-0004.

Environmental Protection Network (EPN) (EPA-HQ-QW-2020-0276-005 7-0008)

Clarify Requirements for Demonstration of Sufficient Resources by States and Tribes.
Under the Section 404(g) assumption program, the states and Tribes need to show they
have sufficient resources both in terms of staffing and funding to support all aspects of
the ongoing program. The existing regulations did not clearly identify which parts of the

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program required this demonstration. Assumption of the Section 404 program is an
expensive proposition, and it is critical that states and Tribes demonstrate they have the
resources to fully implement the program. The proposed regulation makes it clear that
the state/Tribe must show they have sufficient resources to implement the program
properly.

Agency Response: EPA acknowledges the commenter's expression of support. See
Section IV.B.3 of the final rule preamble for a discussion about the importance of
ensuring that Tribes and States that assume the section 404 program have the
capacity to administer the program in its entirety.

Association of Clean Water Administrators (ACWA) (EPA-HQ-QW-2020-0276-0060-0004)

Funding: Several state officials have expressed that lack of funding precludes states from
assuming the section 404 program, which requires significant resources including
financial, staff and administrative costs on the part of the state. State resources are
already strained and while many states would like to assume the section 404 program,
lack of federal funding support will impact states' interest in the program. Recognizing
the challenges faced by states in section 404 assumption, we ask that EPA provide
federal funding to support state or tribal assumption of the section 404 program.

Agency Response: EPA recognizes that lack of dedicated funding for 404
implementation may affect the interest of Tribes and States in assuming the section
404 program. See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0061-0004.

Alaska Miners Association (AMA) (EPA-HO-OW-2020-0276-0067-00Q4N)

Lastly, AMA advocates that when the assumption process is evaluated, a federal funding
structure should be considered. Primacy programs, such as the 404 Program, are
administered through cooperative federalism, meaning the federal law is established by
national standards while states implement them within their borders. One of the key
principles of cooperative federalism is that "states that choose to implement federal
programs should be both adequately funded by the federal government to do so as
Congress directed in authorizing statutes and should also invest state resources (either
directly or through fees or other methods) sufficient to implement a successful program."
EPA should not propose changes and new requirements to the assumption process,
including a discussion of incentives, without consideration of supplying states with
additional resources.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0061-0004.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q36N)

V. EPA must provide more requirements for states regarding sufficient funding and
staffing.

The proposed rule improves upon existing regulations by specifying that states must not
only describe available funding and staffing, but also demonstrate that funding and

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staffing will be sufficient to meet program requirements. However, the rule does not go
far enough in providing transparency and requirements for states that seek to assume the
program. EPA must provide additional minimum requirements to avoid creating
underfunded, understaffed, inadequate state 404 programs, recognizing that those who
advocate for a state to assume the 404 program are always incentivized to minimize its
costs to make assumption more politically palatable.

Florida is a prime example. In its application to assume the 404 program, the Florida
Department of Environmental Protection prepared a detailed description of its anticipated
workload under the assumed program, concluding that it would be able to administer the
state 404 program using only existing resources, including reallocating existing positions
and staff time from elsewhere in the Department [Footnote 68: FDEP, Program
Description, Section (e) - Workload Analysis at 8 (undated) (FDEP, Program
Description, Section (e)).] In total, the department expected to reallocate 18 staff to the
404 permitting program [Footnote 69: FDEP, Program Description, Section (d) -
Funding and Person Power at 3 (undated).]. These conclusions were based in part on
Florida's existing wetlands permitting program, the requirements for which the
department believed overlapped with 404 permitting requirements by "85%." [Footnote
70: FDEP, Program Description, Section (e) at 9.] These predictions proved wildly
inaccurate, and the state found itself completely unprepared to administer the program. In
the first annual report on the program, for example, the department reported that it had
212 people working within the 404 program, including 69 full-time members of the
permitting team, 34 full-time members of the compliance and enforcement team, and
additional clerical, training, guidance and leadership personnel [Footnote 71: FDEP,

State 404 Program Annual Report, July 1, 2021 - June 30, 2022 at 38 (May 10, 2023)
(Florida 2022 Annual Report).]. And, even that number was inadequate; the department
was still "obtaining] new positions and hir[ing] new staff as quickly as possible."
[Footnote 72: Id.]. In part, the enormous shortfall was due to a permitting workload that
was almost double what the state's application predicted [Footnote 73: Compare FDEP,
Program Description, Section (e) at 9-15 (adding the estimated number of permits
annually for all types and districts equals 791 anticipated permits) with Florida 2022
Annual Report at 35 (six months after assuming the program, Florida had 1,322 open
404 permit applications).] But undoubtedly, the incentive to minimize costs in the pursuit
of program approval also played a role.

Agency Response: See Section IV.B.3 of the final rule preamble for a discussion
about the importance of ensuring that Tribes and States that assume the section 404
program have the capacity to administer the program in its entirety.

Earthiustice et al. (EPA-HQ-OW-2020-0276-0068-0037)

EPA must learn from this example. EPA's final rule should make clear that in evaluating
whether funding and staffing is sufficient to meet program requirements, EPA will, at
minimum, apply the following standards:

- Reallocation of existing resources is presumptively inadequate to meet any part of the
program requirements. States seeking to rely on the reallocation of resources must

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provide detailed supporting documentation, including, if applicable, (1) a description of
duties existing staff perform that they will no longer perform, and the person-hours
gained by eliminating those duties; and (2) a description of the skills and expertise staff
have that are applicable to reallocated tasks, and any skills or expertise staff would need
to develop to perform the reallocated tasks.

-	Claims of efficiency related to overlapping state and federal requirements should
presumptively be excluded from calculations of the funding and staffing necessary to
meet program requirements. States seeking to rely on such efficiencies must provide
detailed supporting documentation describing the tasks performed under existing state
programs that are redundant with tasks under the 404 program, and the person-hours that
may be gained by eliminating those duties.

-	The state program will be presumed to be no more efficient than the Corps 404
program and will likely be less so as states will have less experience and will need at
least several years to reach maximum efficiency. States seeking to rely on claims of
equivalent or greater efficiency compared to the Corps 404 program must provide
detailed supporting documentation describing the tasks that the state anticipates
completing more efficiently, the rationale for expecting the efficiency, and a comparison
of qualifications of relevant staff between the state and Corps and permitting budgets
from the Corps for the immediately preceding years for purposes of comparison.

-	EPA will presume that the state must establish salaries commensurate with Corps
salaries for comparable positions. Any state seeking to rely on a program description
with lower compensation than the analogous Corps positions must provide detailed
supporting documentation explaining how a lower salary will enable the state to fill
comparable positions.

-	States must account for staffing and funding for all aspects of the 404 program,
including administrative, human resources, training, guidance, leadership, enforcement,
compliance, scientific personnel and legal personnel.

-	Descriptions of necessary staffing and funding resources should include all state
agencies involved in the 404 program, not just the state agency primarily responsible for
administering the program (such as wildlife agencies, state historic preservation offices,
Tribal historic preservation offices, and attorneys general).

-	States must provide information about their ability to hire qualified staff for open
positions in agencies that would be involved in the 404 program, including the average
length of vacancies and any hiring challenges that the state currently faces or anticipates.

-	In calculating the staff and funding required for the program, states must provide at
least a 20 percent margin of error to account for any economic changes or difficulties in
precise predictions for a wholly new state program. In addition, staff will require training
in new duties, and typically new staff will need to be hired. State permit loads may
increase following assumption, compared to the federal permitting loads. All of these
factors, and EPA's experience with states that have assumed the program, justify
requiring a 20 percent margin of error in state resource calculations.

-	In addition to a margin of error, states should describe the steps they will take to
address unexpected shortfalls. These steps must include how EPA will be notified of
shortfalls, how additional funding will be obtained, how positions will be filled, and
timelines for doing so.

-	EPA should specify the actions it will take if the state fails to provide sufficient

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staffing and funding for the program following assumption, including but not limited to
revoking the assumed program.

- EPA should specify what benchmarks a state will need to meet in order to show that
staffing and funding are sufficient, and at what intervals (not less than every five years,
and not less than every two years for the first 4-6 years).

- Publication with sources for detailed information should be provided allowing EPA
and the public to verify all data (which includes more than simply state budgets—the
information should be individual and line-item specific).

- States must also demonstrate to EPA any existing Clean Water Act delegated or
assumed programs are adequately funded and staffed. EPA will presume that any current
failure to adequately fund or staff such existing programs precludes the state from
adequately funding or staffing a state 404 program.

- It is strongly recommended that states pursuing assumption commission an unbiased
feasibility study the goal of which is to provide information about both the costs and
benefits of assuming the program, not merely to demonstrate that assumption is
beneficial to the state.

Agency Response: See Section IV.B.3 of the final rule preamble for a response to
the commenters' recommendation that EPA require information similar to what is
listed above. EPA will not always need each of the pieces of information listed above
to determine whether a program submission meets the requirements of the CWA,
and therefore EPA has decided that the Agency should not commit to rejecting a
program submission if it lacks any piece of the data listed above. Moreover,
codifying information requirements with this degree of specificity could limit
flexibility on the part of Tribes or States and EPA to design and approve program
descriptions reflecting their particular circumstances. However, EPA views this
suggested information as helpful guidance to Tribes or States as they assess how
best to demonstrate that they have the capacity to administer the section 404
program.

Region 10 Tribal Operations Committee (RTOC) and National Tribal Water Council (NTWC)
(EPA-HO-QW-2020-0276-0070-0014)

IX. Lack of dedicated funding for 404 administration precludes participation by smaller
Tribes and States

Without sufficient supplementary funding offered through EPA or US ACE, it will
remain financially difficult for Tribes to assume the administration of section 404
programs. Although the proposed rule clarifies many aspects of the application process,
the expense and challenge of administering the program remains largely unchanged.

Agency Response: EPA recognizes that lack of funding may affect the interest of
Tribes and States in assuming the section 404 program. See the Agency's Response
to Comment EPA-HQ-OW-2020-0276-0061-0004.

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Region 10 Tribal Operations Committee (RTOC) and National Tribal Water Council (NTWC)

(EP A-HO-QW-2020-0276-0070-0015)

A. The opportunity costs of existing grants lessen the appeal of using the funds to
develop and administer a section 404 program.

Although EPA offers several channels of funding which may be used "to build capacity
to assume the section 404 program,"[Footnote 10: Id. at 55,281.] the limited resources of
Tribes hamper the ability to use such funds for creating a replacement for an existing
federally operated program. For example, the supplementary information for the
proposed rule suggests that Wetland Program Development Grants could be used to
enable the assumption of a section 404 program. While those funds are intended to be
used to "conduct projects that promote the coordination and acceleration of research,
investigations, experiments, training, demonstrations, surveys and studies relating to the
causes, effects, extent, prevention, reduction and elimination of water
pollution." [Footnote 11: "About Wetland Program Development Grants (WPDGs),"
Environmental Protection Agency, https://www.epa.gov/wetlands/wetland-program-
development-grants-and-epa-wetlands-grant-coordinatorsl Using these grants to create a
permitting agency would necessarily take that money away from the research and
discovery that the grants are intended for. Similarly, CWA section 106 grants are general
in their application; therefore, any section 106 funds going to creating a 404 program are
going to deprive a different program. Without committed grants for the development of
Tribal 404 programs, many Tribes may continue to lack the capacity for program
assumption.

Region 10 Tribal Operations Committee (RTOC) and National Tribal Water Council (NTWC)

(EPA-HO-QW-2020-0276-0070-0016)

Furthermore, grants are only temporary, and therefore the stable administration of a 404
program would require more permanent funding sources. While the proposed rule allows
for the charging of permit fees,[Footnote 12: Clean Water Act Section 404 Tribal and
State Program Regulation, 88 Fed. Reg. 55,280.] the requirement to show "sufficient"
program budgets and funding mechanisms for program administration, as well as
compliance evaluation and enforcement programs,[Footnote 13: Id. at 55,324-25 (to be
codified at 40 C.F.R. 233.11(d), (h)).] implies that funding is expected beyond the
revenues from permit fees.[Footnote 14: For example, Arizona's Department of
Environmental Quality estimated that it would have to charge at least 24 times more than
USACE for permits in order to have a self-funded program. The cost was substantially
higher for individual permits. See Arizona Department of Environmental Quality.
(2018). Clean Water Act §404 Program

Technical Working Group - Fees White Paper. Meanwhile, Alaska Department of
Environmental Conservation estimates that adopting the 404 program will require
continual fiscal support from the General Fund. See Alaska Department of

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Environmental Conservation. (2023). Clean Water Act Section 404 Dredge and Fill
Program Assumption Feasibility Report.] If EPA envisages permit programs, which fund
themselves, then the assumption of 404 programs would appear much more accessible.

Given the opportunity cost of using limited grant money on the assumption of 404
program responsibilities when a functioning 404 program already exists at the Federal
level, the prospect of assuming a 404 program will likely remain impractical for many
Tribes.

Region 10 Tribal Operations Committee (RTOC) and National Tribal Water Council (NTWC)

(EP A-HO-OW-2020-0276-0070-0Q17)

B. Efficiency gains from section 404 program assumption could be granted to the
assuming agency to offset the cost-shifting.

Some concerns over sufficient funding for the assumption of 404 programs may be
alleviated by a reallocation of the funds that will be saved through the Tribes' adoption
of 404 responsibilities. One of the main benefits of assuming the 404 program is the
"elimination of a high percentage of duplication in state/tribal and federal permitting
programs."[Footnote 15: "Section 404 Program Assumption: A Handbook for States and
Tribes" Prepared by the Association of State Wetland Managers and the Environmental
Council of the States (Aug. 2011). Hearing Before the Subcommittee on Water
Resources and Environment, 112th Cong. 125 (Sept. 20, 2012).] The permitee will
experience this elimination of duplication, but also by the USACE, who will be able to
transition from administering into oversight. Some amount of the funds saved by the
consolidation of permit administration into a Tribe's aegis could be granted to the Tribe
to incentivize assumption of the program and facilitate its smooth operation. The use of
some of these efficiency gains as an incentive for program adoption can still result in
costs savings overall.

State of Michigan. Michigan Department of Environment Great Lakes, and Energy (EGLE).

Water Resources Division (EPA-HO-OW-2020-0276-0Q71-0005)

Although not part of the proposed rule, the WRD would like to comment on the need for
the U.S. EPA to provide financial resources to support program implementation that is
specifically for assumed Section 404 programs. The State of Michigan has been a
proponent of this type of funding from the time our program was assumed. Furthermore,
not having this type of funding is a barrier for other states who are interested in assuming
the program.

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Agency Response: EPA recognizes that lack of funding may affect the interest of
Tribes and States in assuming the section 404 program. See the Agency's Response
to Comment EPA-HQ-OW-2020-0276-0061-0004.

National Association of Wetland Managers (NAWM) (EPA-HO-QW-2020-0276-0072-0002)
NAWM appreciates EPA's efforts to clarify the minimum requirements needed for
Tribal and State authorization and the attempts to make them more transparent,
straightforward, and flexible. However, it is also important to recognize the significant
resources required by a Tribe or State to implement the federal program. If EPA wishes
to encourage Tribes and States to assume the CWA 404 program, resource support is
necessary to achieve this goal and incorporate it into a larger program strategy; clarifying
regulations may not be sufficient to entice Tribes and States to seek program
authorization without added implementation resources.

Nebraska Department of Environment and Energy (EPA-HQ-QW-2020-0276-0073-0005)

Within the preamble of the proposed rule EPA States, "EPA funding programs can also be used
by Tribes and States to build capacity to assume the section 404 program or to implement assumed
programs (e.g., CWA Section 106 funds).". EPA goes on to State that a lack of funding is outside
of the scope of this rulemaking.

• Clarification is needed from EPA if they are taking into account assumed programs in
their calculations for 1 06 fund allocations or if States and tribes are supposed to prioritize
106 funds for assumed program over other eligible activities.

o The Department would like EPA to clarify if they are accounting for assumed
programs in the calculation for 106 fund allocations.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0061-0004.

National Tribal Water Council (NTWC) (EPA-HO-QW-2020-0276-0074-0004)

Further, if EPA genuinely seeks to encourage tribes to seek TAS for CWA §404
authority, there needs to be a concerted effort to identify and secure adequate financial
and technical support for tribal programs.

National Tribal Water Council (NTWC) (EPA-HO-OW-2020-0276-0074-SD-00Q3N)

However, resources are a major consideration: CWA § 404 programs require substantial
resources to develop and implement, in terms of both the staff required and the dollars
needed to develop and administer an extensive and complex permit program. Indeed, this
may be the primary reason why only two states have assumed responsibility for the

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program to date. The resource burden is even greater on tribes than on states, since tribes
in general lack a tax base and have significantly fewer industries within their
jurisdictions that would be available to share some of the costs, for example, through the
assessment of permit fees.

Presumably EPA is aware of the cost and effort that its staff expends in an oversight role
of an assumed program. It is unfortunate that EPA does not seem to recognize the need
to fund tribes to take over this permitting program. It is summarily inadequate to suggest
that the competitive wetlands program development grants or CWA § 106 funding are a
viable means to fund such a program. Wetland program development grants could
certainly be used to start a permitting program, but not to sustain it, and CWA § 106
grants are intended to fund tribal water quality monitoring programs. For tribes to begin
down this arduous process requires a significant commitment on their part, one which
they cannot responsibly take on without having at least some certainty in long-term
funding streams.

If EPA truly wants to increase tribes' interest in assuming a CWA § 404 program, it must
provide specific funding for tribes to build the capacity needed to receive assumed
authority. Further, it must continue to fund tribes to administer the program once it is
delegated. Perhaps the DITCA (Direct Implementation Tribal Cooperative Agreement)
framework could serve as a model for how EPA could support a sustainable tribal
wetland permitting program. Alternatively, there could be an EPA-funded group or
groups formed to assist tribes in developing CWA § 404 programs. The group could be
based on EPA Regions, and would also support tribes in each region by providing the
essential skills and expertise needed both to assess whether to assume authority for the
program and to develop and manage it.

Moreover, the effort involved in seeking and obtaining CWA § 404(g) authority is itself
very labor intensive, from a technical, legal and policy standpoint. The NTWC suggests
that EPA consider streamlining the process, in terms of time commitment as well as
paperwork. Training and support from EPA will be needed to educate the tribes on how
to fill out the packet. In addition, such an effort not only costs tribes money but also
requires tribes to take time away from other important efforts. Tribes are concerned that
states are in a much better position than tribes staff-wise, as well as financially, to
assume authority to manage the CWA § 404(g) program, which could lead to the
additional problems discussed below.

National Association of Home Builders (NAHm (EPA-HO-OW-lOlO-OlTe-OOTT-OOie^)
EPA identifies within the preamble several challenges states and Tribes face when
considering assuming the CWA Section 404 program. The lack of federal funding or
assistance to states and Tribes to develop wetlands permitting programs remains one of
the primary barriers. However, while acknowledging the lack of funding is a significant

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barrier, the Agency also points out that addressing funding concerns is outside the scope
of this EPA rulemaking [Footnote 32: 88 Fed. Reg. 55282 (August 14, 2023)].

National Association of Home Builders (NAHm (EPA-HO-OW-2020-0276-0077-00Q4N)

In addition to removing the obstacles and clarifying the various provisions of CWA
Section 404, NAHB strongly encourages EPA to consider establishing funding
mechanisms for states and Tribes seeking to assume the program.

National Association of Home Builders (NAHm (EPA-HO-OW-2020-0276-0077-00Q6N)
Congress established a firm statutory timeline for EPA to make required CWA 404
assumption determinations. In concert with those deadlines, EPA's proposed revisions
must be clear, transparent, and capable of being efficiently implemented. In other words,
EPA must avoid proposing new administrative procedures or requirements that would
result in unnecessary delays or confuse states or Tribes preparing CWA assumption
requests. Consistent with this view, NAHB objects to two of EPA's proposed revisions.
The first is a proposed procedure for having Corps districts identify all "retained waters"
under Section 10 Rivers and Harbors Act within the boundaries of a state or Tribe
seeking program assumption [Footnote 15: 88 Fed. Reg. 55285 (August 14, 2023).] . The
second is a proposed requirement for states or Tribes, when complying with the
"program description" requirement, to include for EPA's review and comment copies of
all job position descriptions and qualifications for staff responsible for administrative,
inspections, or enforcement activities [Footnote 16: 88 Fed. Reg. 55283 (August 14,
2023).].

Agency Response: See Section IV.B.2 of the final rule preamble for a discussion
about the development of a retained waters description. See Section IV.B.3 of the
final rule preamble for a discussion about the importance of ensuring that Tribes
and States that assume the section 404 program have the capacity to fully
administer all components of a program.

National Association of Home Builders (NAHB^ (EPA-HO-OW-2020-0276-0077-00Q8N)

NAHB also opposes EPA's proposal to require states or tribes when submitting the
required "program description" to include job qualifications and position descriptions for
staff handling administrative, inspection, and enforcement responsibilities [Footnote 21:
88 Fed. Reg. 55324 (August 14, 2023)]. As EPA acknowledges, current regulations
concerning program description require states and Tribes to include information on
projected staffing levels, organization structure, and administrative responsibilities
[Footnote 22: 40 C.F.R. §233.10], NAHB believes EPA's existing requirements are
sufficient for the EPA to make its determination on the adequacy of a state's or Tribe's

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assumption request. Furthermore, NAHB questions the usefulness of EPA receiving
copies of position descriptions or qualifications from a state or Tribe. Does EPA envision
seeking changes to a state or Tribal government's required qualifications for staffing
positions within the 120 days EPA must complete its determination? How would this
affect states with existing state wetland programs - including those state wetland
programs that already protect wetlands beyond the level of federal protection afforded
under the CWA? Would these existing state wetland programs need to change their
position descriptions and qualifications if they sought the CWA Section 404 assumption?
NAHB questions the utility of EPA's proposal and urges the Agency not to finalize this
requirement.

Agency Response: See Section IV.B.3 of the final rule preamble for a discussion
about the importance of ensuring that Tribes and States that assume the section 404
program have the capacity to implement it. This rule does not necessarily require
States with existing wetland programs that seek assumption to change their position
descriptions and qualifications. It does not prescribe specific position descriptions
and qualifications and recognizes the importance of providing flexibility to Tribes
and States to describe positions and list required qualifications. The rule simply
requires that Tribes and States provide information about position descriptions and
qualifications so that EPA can determine whether the Tribe or State has the
capacity to carry out the section 404 program consistent with the CWA and
implementing regulations.

Port Gamble S'Klallam Tribe (PGST^) (EPA-HO-OW-2020-0276-0078-0Q27N)

We have concerns about the ability of states and tribes to assume permitting authority
due to possible funding constraints, and we therefore request that EPA advocate for
federal funds to be made available for tribes who are interested in taking over the 404
program. We understand that the implementation of Section 404 permitting programs
can be an expensive endeavor if done correctly. A permitting program that is compliant
with the CWA requires staff to review permit applications holistically, as well as staff to
review technical details, and to understand topics like wetland delineation and impacts.
Staff must also comply with the Section 404(b)(1) Guidelines and other federal
requirements. Consequently, EPA should work with interested tribes to develop a
realistic budget for tribal assumption of the 404 program and sufficient federal funds
should be made available for tribes to successfully take over the 404 program.

Further, EPA should include clarifying revisions to its proposed rules to assess a state's
financial ability to carry out all of the requirements of Section 404, the Section 404(b)(1)
Guidelines, and any other federal requirements. Prior to submitting an application, the
state must inquire to the Corps for an approximate accounting of the cost of
administering Section 404 permits within the state. The applicant state should
approximate how many permits it may process over the course of five years, estimate the
number of professional staff required to process that number of permits, and estimate
how much the state requires in its annual budget to run such a program for a period of
five years using the Corps' data. The applicant state should also include data from the
Corps in its application to provide a baseline for its financial accounting. Without a

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baseline to compare state applications, there is no way to actually evaluate whether an
applicant state has the fiscal capacity to carry out a program that complies with federal
law.

Agency Response: EPA recognizes that lack of funding may affect the interest of
Tribes and States in assuming the section 404 program. See the Agency's Response
to Comment EPA-HQ-OW-2020-0276-0061-0004.

See Section IV.B.3 of the final rule preamble for a discussion about the importance
of ensuring that Tribes and States that assume the section 404 program have the
capacity to implement it, and of the utility and feasibility of comparisons with the
Corps' funding and staff.

State of Alaska Department of Environmental Conservation (EPA-HQ-QW-2020-0276-0079-
0002")

1. Program Assumption Requirements

EPA proposes to impose more requirements on what a State application must contain.
For example, EPA would require States to identify "position descriptions as well as
budget and funding mechanisms in the program description" [Footnote 4: 88 Fed. Reg.
55324.]; introduce new terminology mandating that all elements currently listed in 40
CFR 233.11(a) are addressed in an assumption application, on penalty of disapproval
[Footnote 5: 88 Fed. Reg. 55283.]; and require a description of inter-agency coordination
if applicable.

While these requirements are more onerous than the current program description
requirements, these are details that my Division identified last session and marked for
inclusion in our application. Alaska therefore does not object to these additional
requirements.

Agency Response: See Section IV.B.3 of the final rule preamble for a discussion
about the importance of ensuring that Tribes and States that assume the section 404
program have the capacity to administer all portions of a section 404 program.

State of Alaska Department of Environmental Conservation (EPA-HO-OW-2020-0276-0Q79-
0028")

The Proposed Rule also does not account for another major hurdle to State assumption,
which is the lack of funding. Alaska thanks EPA for the express notation that "EPA
funding programs can also be used by Tribes and States to build capacity to assume the
section 404 program (e.g., Wetland Program Development Grants) or to implement
assumed programs (e.g., CWA section 106 funds)." [Footnote 61: 88 Fed. Reg. 55281.].
Whether the Wetland Program Development Grants could be used for 404 assumption
efforts was a point of unclarity for us last legislative session. We urge EPA to increase
the section 106 funds so that some may be made available to pursue assumption, and
otherwise push to make funds available for implementation of a 404 assumed program.

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Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0061-0004.

Tulalip Tribes of Washington (EPA-HO-OW-2020-0276-0082-00Q4N)

Further, it is disappointing that the EPA acknowledged tribal concerns over the lack of
program funding being a major impediment to tribal assumption of Section 404 authority
but chose not to address this issue in the Proposed Rule. It is commonplace for the
federal government to provide funding for tribal programs that had been historically
administered by the federal government. See e.g., 25 U.S.C. § Chapter 46. A similar
approach should be considered for tribal assumption of Section 404 authority.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q26N)

Chickaloon Native Village concerns about Alaska's ability to assume permitting
authority due to possible funding constraints. We understand that the implementation of
Section 404 permitting programs can be an expensive endeavor if done correctly. A
permitting program that complies with the CWA requires staff to review permit
applications holistically, as well as staff to review technical details, and to understand
topics like wetland delineation and impacts. Staff must also comply with the Section
404(b)(1) Guidelines and other federal requirements. Earlier this year, Alaska
Department of Environmental Conservation (DEC) sought five million dollars for annual
funding for assumption of the Section 404 permitting program. This is significantly less
than the approximately eight million dollars the Corps currently spends to administer its
wetlands permitting program in Alaska, and less than half of what Michigan, Florida and
New Jersey each spend to administer their Section 404 programs [Footnote 5: See Jade
North, LLC, Clean Water Act Section 404 Dredge and Fill Program Assumption:
Feasibility report at 5 (Jan. 25, 2023) ("Michigan's budget for its 404 Program is $12.3
million and includes 82 staff in 10 offices."); id. ("New Jersey's budget for its 404
Program is $14.5 million and includes 176 staff"); id. ("Florida's budget for its 404
Program is $11.3 million and includes 170 staff.").].

EPA should include clarifying revisions to its proposed rules regarding a state's financial
commitment to ensure that states will be able to carry out all of the requirements of
Section 404, the Section 404(b)(1) Guidelines, and any other federal requirements. Prior
to submitting an application, the state must inquire to the Corps for an approximate
accounting of the cost of administering Section 404 permits within the state. The
applicant state should approximate how many permits it may process over the course of
five years, estimate the number of professional staff required to process that number of
permits, and estimate how much the state requires in its annual budget to run such a
program for a period of five years using the Corps' data. The applicant state should also
include data from the Corps in its application to provide a baseline for its financial
accounting. Without a baseline to compare state applications, there is no way to actually
evaluate whether an applicant state has the fiscal capacity to carry out a program that
complies with federal law.

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Agency Response: See Section IV.B.3 of the final rule preamble for a discussion
about the importance of ensuring that Tribes and States that assume the section 404
program have the capacity to fully administer all portions of the program, and of
the utility and feasibility of comparisons with the Corps' funding and staff.

Alaska Clean Water Advocacy et al. (EPA-HO-QW-2020-0276-0086-001 n

The rule must outline these requirements so that states fully understand EPA's
expectations for assuming the program. For example, EPA must make clear in the final
rule that reallocation of existing resources is presumptively inadequate to meet any part
of the program requirements. If a state's program description includes such a
reallocation, a state must provide detailed supporting documentation, including, if
applicable, 1) a description of duties existing staff perform that they will no longer
perform, and the person-hours gained by eliminating those duties; 2) a description of the
skills and expertise staff have that are applicable to reallocated tasks, and any skills or
expertise staff would need to develop to perform the reallocated tasks; and (3) a
description of any tasks performed under existing state programs that are redundant with
tasks under the 404 program, and the person-hours that may be gained by eliminating
those duties.

Agency Response: See Section IV.B.3 of the final rule preamble for a discussion
about the importance of ensuring that Tribes and States that assume the section 404
program have the capacity to fully administer all portions of the program. This
rulemaking preserves certain flexibility for Tribes and States by not setting bright
line budgetary or funding requirements, such as presuming that reallocations of
resources are presumptively inadequate. EPA decided not to require submission of
each piece of information that this commenter requests as a Tribe or State's failure
to submit each of these pieces of information should not necessarily warrant
rejecting a program submission. Rather, the final rule requires certain information
that will enable the Agency to judge whether a Tribal or State agency has the
capacity to implement its program based on the specific conditions within its
jurisdiction, such as expected numbers of permit applications and federally listed
threatened and endangered species affected.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-Q0m

A state such as Alaska, for example, must not take a myopic view of assumption of the
program. Thus, it is inherent that the final rule clarifies that states must account for
staffing and funding for all aspects of the 404 program, including administrative, human
resources, training, guidance, leadership, enforcement, compliance, and legal personnel.
This means that a state only accounts for staffing in ADEC, for example. Descriptions of
necessary staffing and funding resources must include all state agencies involved in the
404 program, not just the state agency primarily responsible for administering the
program.

Agency Response: See Section IV.B.3 of the final rule preamble for a discussion
about the importance of ensuring that Tribes and States that assume the section 404
program have the capacity to fully administer all provisions of the program. EPA

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has clarified in the final rule that descriptions of necessary staffing and funding
resources must include all Tribal or State agencies involved in the 404 program, not
just the Tribal or State agency primarily responsible for administering the
program.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-00Q8N)

Additionally, while the proposed rule improves upon existing regulations by specifying
that states must not only describe available funding and staffing but also demonstrate that
funding and staffing will be sufficient to meet program requirements, it does not go far
enough in providing transparency and guidance to states that seek to assume the
program. EPA must draw from its experience in the few states that have assumed the
program and provide additional minimum requirements to avoid creating underfunded,
understaffed, inadequate state 404 programs.

Agency Response: See Section IV.B.3 of the final rule preamble for a discussion
about the importance of ensuring that Tribes and States that assume the section 404
program have the capacity to full administer all provisions of the program. EPA
has balanced the importance of that goal with the need to allow certain flexibility
for Tribes and States to adapt staffing and funding requirements to the particular
circumstances of their prospective programs.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-00Q9N)

In Alaska, this is of particular concern. Alaska does not have the financial or staffing
resources to successfully carry out the 404 program. Currently, the federal program
requires an annual budget of roughly $7.9 million; in 2023, ADEC requested roughly $5
million from the Alaska Legislature.[Footnote 15: Alaska Legislature, Differences
Between Operating Budget HB39 (SCSI and SCS2) / Mental Health Bill (SCSI and
SCS2) (Apr. 26, 2023).] Since 2013, the Alaska Legislature has routinely faced
budgetary challenges. Specifically, in 2023, the Governor presented a state budget

• with a $400 million dollar deficit. Such fiscal irresponsibility does not bode well
for a state being able to assume the requirements of such a large program.

• As it is, Alaska is already requesting federal financing to implement the 404
program:

• AK DEC, with support from the Environmental Council of the States (ECOS) and
NAWM, is seeking a change that will allow federal grant funds to help support
state implemented 404 Programs. The DEC commissioner has sought and
received support for the action from U.S. Senator Lisa Murkowski and
Congresswoman Mary Peltola directly and U.S. Senator Dan Sullivan's staff. The
entire Alaska Congressional Delegation expressed support to help the state obtain
federal funding to develop and implement this program.[Footnote 16: ADEC,
Section 404 Dredge and Fill Program, Frequently Asked Questions at 6 (updated
Apr, 18, 2023).]

• Alaska's potential assumption of the program seemingly relies on a double-edged
sword. The federal government (i.e., U.S. taxpayers) would potentially still be
paying for implementation of the Section 404 program in Alaska and yet the

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protections (i.e., notice and comment, Tribal consultation, NEPA, ESA, NHPA,
equal access to courts, etc.) offered by the federal program would be lost.

•	With Alaska's wetlands covering approximately 174 million acres, or about 43%
of Alaska's surface area and comprising 63% of the Nation's wetlands, a large
investment of resources will be required for the State to successfully run the
program. For comparison, three states have assumed the 404 program thus far:

•	Florida assumed the 404 Program in 2020. Florida has approximately 10 million
acres of wetlands (approximately 24% of its surface area). Florida's budget for its
404 Program is $11.3 million and includes 170 staff.[Footnote 17: Jade North,
LLC, Clean Water Act Section 404 Dredge and Fill Program Assumption
Feasibility Report at 5 (Jan. 25, 2023) (2023 Feasibility Report)] Note: Florida
originally projected that assumption would require no additional funding from the
legislature and just a shift of 18 positions because, unlike Alaska, Florida already
had a state wetland permit program.[Footnote 18: See Florida Department of
Environmental Protection (FDEP), Program Description, Section (e) - Workload
Analysis at 8-9; FDEP, Program Description, Section (d) - Funding and Person
Power at 3; Florida Department of Environmental Protection, Program
Description, Section (e) - Workload Analysis at 9.] Florida learned quickly that it
had grievously underestimated the resources required to run the

program.[Footnote 19: See FDEP, State 404 Program Annual Report, July 1, 2021
- June 30, 2022 (May 10, 2023) (reporting that it had 212 people working within
the 404 program, including 69 full-time members of the permitting team, 34 full-
time members of the compliance and enforcement team, and additional clerical,
training, guidance and leadership personnel and still needed more).] While
staffing and funding levels have increased, Florida has continued to understaff
and underfund the program, relying on entry-level staff who lack the training and
expertise necessary to adequately administer the program. [Footnote 20: Letter
from Jeanneanne Gettle, EPA, to Emile Hamilton, FDEP, Apr. 6, 2023.]

New Jersey assumed the 404 Program in 1994. New Jersey has 915,000 acres of
wetlands (approximately 16% of its surface area). New Jersey's budget for its 404
Program is $14.5 million and includes 176 staff.[Footnote 21: 2023 Feasibility Report at
5.]

Michigan assumed the 404 Program in 1984. Michigan has 6.5 million acres of wetlands
(approximately 10% of its surface area). Michigan's budget for its 404 Program is $12.3
million and includes 82 staff in 10 offices. [Footnote 22: Id.]

Currently, the Federal program requires 49 staff. With that level of staffing the U.S.

Army Corps of Engineers (Corps) completed 775 actions per year over a five-year period
(2017-2022) or 48 FTE =16 actions/FTE/year. In contrast, Alaska plans to assume the
program with 28 positions, expanding with an additional 4 positions in year two to a total
of 32. [Footnote 23: Id. at x.] Alaska proposed that it could assume approximately 75% of
the Corps permitting responsibilities: 581 actions per year = 32 FTE =18
actions/FTE/year.[Footnote 24: Id. at 52, Tbl. 2.]

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Agency Response: See Section IV.B.3 of the final rule preamble for a discussion
about the importance of ensuring that Tribes and States that assume the section 404
program have the capacity to implement it. See also Section II.B.4 of the Economic
Analysis for the Clean Water Act Section 404 Tribal and State Program Regulation
(EA) for further discussion. If Alaska were to submit a request to assume the
program, EPA would evaluate that request based on the criteria laid out in the
statute and regulations.

Sierra Club (EPA-HO-OW-2020-0276-TRANS-092923-004-00Q4N)

EPA's rules must be at least as stringent as federal law requires, including ensuring that
the states have the resources, that means staff with expertise and funding, to operate the
state 404 program, to protect the rights of people and wildlife, not the pockets of
politicians and their donors.

Florida Wildlife Federation (EPA-HO-OW-2020-0276-TRANS-092923-006-00Q2N)

I also wanted to talk about funding and staffing. I heard a previous speaker mentioned,
but I would like to dive deeper on behalf of Florida's experience to date. We are seeing
firsthand here in Florida what happens when EPA fails to require an adequate showing
that a state has the funding and staffing to operate all aspects of the state 404 program. In
its application, Florida told EPA that it needed no additional funding or resources to take
over the 404 program. That has not been true. Moreover, EPA failed to analyze the
capacity of other state agencies that have a role in the Florida 404 program, including the
Florida Fish and Wildlife Conservation Commission, Florida State Historic Preservation
Officer, and Tribal Historic Preservation Officers. EPA must require Florida to fix its
resource problems and must ensure that no other state can assume the 404 program
without demonstrating the capacity, funding, and expertise to run it.

Agency Response: See Section IV.B.3 of the final rule preamble for a discussion
about the importance of ensuring that Tribes and States that assume the section 404
program have the capacity to fully administer all provisions of the program. EPA
has clarified in the final rule that descriptions of necessary staffing and funding
resources must include all state agencies involved in the 404 program, not just the
state agency primarily responsible for administering the program.

Natural Resources Defense Council (EPA-HO-OW-2020-0276-TRANS-Q92923-008-00in
Five, the state has the technical and resource capacity necessary to implement and
enforce the program.

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Chickaloon Native Village (EPA-HO-OW-2020-0276-TRANS-092923-009-0Q(m

The state of Alaska has never disclosed the true cost of primacy over the fall for wetlands
permitting that they are trying to take over, or how the state would pay for it. We
appreciate the EPA is considering specificity in state primacy proposals about what
primacy would cost, that the states have resources and funding to operate a program, and
what personnel and technical skills would be needed to implement the program. We feel
EPA should regularly review the capacity of states to fund a primacy program, including
adequate staffing, engaging the public, and compliance and enforcing violations.

Agency Response: See Section IV.B.3 of the final rule preamble for a discussion
about the importance of ensuring that Tribes and States that assume the section 404
program have the capacity to fully administer all provisions of the program. See
also Section IV.E.3 of the final rule preamble for a discussion of the agency's
revised program reporting requirements, designed to ensure that the EPA can
regularly review the capacity of Tribes and States to staff and operate a section 404
program that meets statutory and regulatory requirements. EPA has also clarified
the requirements for the annual report. See also Section IV.E.3 of the final rule
preamble for a discussion of the Agency's revised program reporting requirements,
designed to ensure that the EPA can regularly review the capacity of Tribes and
States to staff and operate a section 404 program meeting statutory and regulatory
requirements.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-001QN)

EPA must learn from prior states who assumed the program. Approving a state program
as inadequate as Florida's, for example, does not serve the protective purposes of the
Clean Water Act and is a disservice to Alaskans who are proud of our environment and
way of life, reliant on clean and healthy waters. Considering the experience of other
states and ADEC's poor track record with the 402 program, we strongly support EPA
requiring 404 assumption applicants to comply with 40 C.F.R. § 233.11 Program
description (g), "including a description of how the State will coordinate its enforcement
strategy with that of the Corps and EPA." Additionally, EPA's final rule should make
clear that it will rigorously evaluate whether funding and staffing is sufficient to meet
program requirements and will apply trigger mechanisms and enforcement measures if a
state is unable to fulfill its assumed obligations. As Alaskans have learned from the
State's poor track record in regard to the 402 program, EPA writing a report outlining
Alaska's deficiencies is not enough.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q13N)

As the EPA has discovered with Alaska's assumption of the 402 and Clean Air Act
compliance and enforcement programs, Alaska is often understaffed and underfunded
leading to failure to be able to perform the most basic compliance and enforcement tasks.
EPA's final rule must account for such failures by states moving forward. It must require

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that states describe steps they will take to address unexpected shortfalls and the notice
requirements states must follow to alert EPA when shortfalls occur. EPA must also
include the actions it will take if a state fails to provide sufficient staffing and funding for
the program following assumption, including but not limited to revoking the assumed
program.

Environmental Confederation of Southwest Florida (EPA-HQ-OW-2020-0276-TR.ANS-092923-

002-0002)

The next thing that I think is important that I never really see conversation about is
enforcement. When you talk about if they have the ability to fund, if they have the ability
to staff the assumption of the 404 you need to also know if they have the dollars and staff
to enforce 404. I've seen throughout my life where there are many rules and regulations
that are adopted, but they're never enforced, and that's what the plan is. There are never
any dollars for it, so that's as critical as having any other staff person available. As far as
the enforcement goes, you need to do a cost-benefit analysis. You need to make it more
costly to not follow the 404 rule than the benefit you get by not following the 404 rule.
And again, in my life, I see it's generally just a slap on the hand. It's called the cost of
doing business. We need to change that. We need to make sure that historic waters,
historic used waters, continue to remain protected. We don't want to have any protections
taken away from them. They are historic waters. I'm a history buff, and that's important
to the whole being of Florida. Many times, we pave over our history, but we certainly
shouldn't pollute over our history.

Agency Response: See Section IV.B.3 of the final rule preamble for a discussion
about the importance of ensuring that Tribes and States that assume the section 404
program have the capacity to fully administer all provisions of the program,
including compliance and enforcement. Penalty amounts are beyond the scope of
this rulemaking.

EarthiusticefEPA-HO-OW-lOlO-OlTe-OOeS-SD-S-OOm

IV. Epa Must Rigorously Review A State's Staffing, Resources And Funding Proposals
And Require Full Adequate Funding Prior To Assumption Of 404 Permitting Programs.

Funding is a key indicator of a state's seriousness and readiness to assume a permitting
program under Section 404 that will fully comply with the Clean Water Act and will
fully protect tribes, individual citizens, and the environment. The proper time for EPA to
review and ensure that funding is adequate to protection of the environment through
robust permitting programs is well before a state has assumed the program. To that end,

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there are several key pieces of data that EPA's rules should require of any application
(and, of course, that EPA must scrutinize carefully in deciding whether a state should
assume the program).

First, EPA should review the state's NPDES permitting program. How many staff do
they have and what are the areas and levels of expertise? What is the annual budget?
How many permits are issued by those staff? Has that number changed over the period
the state has had the program? Is there a backlog, how much, and what is the claimed
reason? How might the budget be affected during periods of economic downturn? EPA
should carefully review NPDES permits issued by the state for stringency and
compliance with the Clean Water Act. EPA should elicit public comment on the precise
issue of state performance under an existing program.

This will provide EPA with information on two important data points. If a state NPDES
program is robust and meeting the requirements of the law, then that information will
give EPA a gauge for funding the additional 404 permitting; funding of a new program
should be roughly equivalent and additive to the existing adequate permitting program. If
the NDPES program is not functioning well—delays or failure to be adequately
protective or not adequately responsive to the public—it may be an indicator that the
state is underfunding its permitting obligations and will be a red flag against allowing the
state to take on 404 permitting.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-3-002QN)

Second, EPA should review the Corps' 404 permitting for that state. EPA should assess
regional Corps staffing over the previous 5 years for 404 permitting (and disregarding
the years the Navigable Waters Protection Rule was in place because the Corps' ability
to regulate and permit during that time was improperly constrained) and the kind and
levels of expertise the Corps staff have. What is the cost of the Corps program for the
applicant state? EPA should set the expected funding level for any state seeking to
assume the program at a level significantly greater than the Corps' budget for at least the
first 3 to 5 years of a state's assumed program as the state gets the program started and
gains experience. Any state will be starting a wholly new program with staff requiring
skills different than or additive to a state's existing staff. It should be expected that a
state must spend more in the initial phases than the Corps spends on a long- existing
program.

Agency Response: See Section IV.B.3 of the final rule preamble for a discussion
about the importance of ensuring that Tribes and States that assume the section 404
program have the capacity to fully administer all provisions of the program, and
about the utility and feasibility of comparisons with the Corps' funding and staff.

Earthiustice (EPA-HO-QW-2020-0276-0068-SD-3-002n

Third, EPA must set requirements for staffing the state program and require the state to
have certified wetland specialists for wetland identification and delineation. It is

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unacceptable for a state to wholly rely on a permit applicant for this function. The state
must have certified wetlands specialists capable of independently assessing extent, type,
and impact to waters and wetlands as part of an assumed program and make sure that
there are enough personnel to have the time to do so for each permit.

Fourth, EPA must make clear in its regulations that a state cannot expect to assume 404
permitting with existing (or one or two more) staff. It is inconceivable that a state could
take on an entire program without adding staff and EPA should set that expectation
immediately. If a state is not adding those staff, then the state has not invested the
requisite financial resources into ensuring a comparable program to one administered by
the Corps and EPA and adequate under the Clean Water Act.

Agency Response: See Section IV.B.3 of the final rule preamble for a discussion
about the importance of ensuring that Tribes and States that assume the section 404
program have the capacity to fully administer all provisions of the program. This
rulemaking preserves certain flexibility for Tribes and States, including by not
establishing particular position descriptions or qualifications, or minimum staffing
numbers. Rather, the rule requires certain information that will enable the Agency
to judge whether a Tribal or State agency has the capacity to implement its
program based on the specific conditions within its jurisdiction, such as expected
numbers of permit applications, types of wetlands and surface waters likely to be
affected, and number of threatened or endangered species potentially affected.

National Tribal Water Council (NTWC) (EPA-HO-OW-2020-0276-0074-SD-00Q3)

However, resources are a major consideration: CWA § 404 programs require substantial
resources to develop and implement, in terms of both the staff required and the dollars
needed to develop and administer an extensive and complex permit program. Indeed, this
may be the primary reason why only two states have assumed responsibility for the
program to date. The resource burden is even greater on tribes than on states, since tribes
in general lack a tax base and have significantly fewer industries within their
jurisdictions that would be available to share some of the costs, for example, through the
assessment of permit fees.

Presumably EPA is aware of the cost and effort that its staff expends in an oversight role
of an assumed program. It is unfortunate that EPA does not seem to recognize the need
to fund tribes to take over this permitting program. It is summarily inadequate to suggest
that the competitive wetlands program development grants or CWA § 106 funding are a
viable means to fund such a program. Wetland program development grants could
certainly be used to start a permitting program, but not to sustain it, and CWA § 106
grants are intended to fund tribal water quality monitoring programs. For tribes to begin
down this arduous process requires a significant commitment on their part, one which
they cannot responsibly take on without having at least some certainty in long-term
funding streams.

If EPA truly wants to increase tribes' interest in assuming a CWA § 404 program, it must
provide specific funding for tribes to build the capacity needed to receive assumed
authority. Further, it must continue to fund tribes to administer the program once it is

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delegated. Perhaps the DITCA (Direct Implementation Tribal Cooperative Agreement)
framework could serve as a model for how EPA could support a sustainable tribal
wetland permitting program. Alternatively, there could be an EPA-funded group or
groups formed to assist tribes in developing CWA § 404 programs. The group could be
based on EPA Regions, and would also support tribes in each region by providing the
essential skills and expertise needed both to assess whether to assume authority for the
program and to develop and manage it.

Agency Response: EPA recognizes that lack of funding may affect the interest of
Tribes and States in assuming the section 404 program. However, this rulemaking
addresses the requirements and procedures for Tribal and State section 404
program approval, operation, and program withdrawal. Federal funding for Tribal
and State programs is outside of the scope of this rulemaking. By streamlining and
clarifying assumption requirements, EPA expects this rulemaking will reduce costs
and confusion on the part of Tribes and States as they prepare to seek assumption.
EPA would also be glad to work with Tribes to discuss concerns about the costs and
effort of assumption.

Yukon River Inter-Tribal Watershed Council (EPA-HO-OW-lOlO-OlTe-OOeS-OOSO^)

Agency Response: See Section IV.B.3 of the final rule preamble for a discussion
about the importance of ensuring that Tribes and States that assume the section 404

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program have the capacity to fully administer all provisions of the program, and
about the utility and feasibility of comparisons with the Corps' funding and staff.

Nebraska Department of Environment and Energy (EPA-HQ-QW-2020-0276-0073-0003)

EPA is seeking comments on making revisions for requiring the submittal of additional
evidence of commitment, job descriptions and position qualifications for assumed
program implementation and is requesting comments for additional types of information
that should be provided to EPA for assumption such as metrics to determine funding and
staffing needs based on Corps 404 programs.

• The current required program elements for an application to EPA already require
a complete program description including sustainable funding, staffing
descriptions, estimated workloads, approved State regulations and letters from
both the Governor and Attorney General. This appears to be adding unnecessary
and duplicative burdens on States. The Corps data has shown to be incomplete
and inconsistent between Corps Districts and among staff within the same District
making using their data to estimate assumed program needs difficult.

o The Department suggests leaving the required program elements from the
previous rule as is. Information as to how each of these elements may be
developed should be provided in guidance and EPA should work with the
Corps to streamline their data entry to provide consistently among Corps
Districts.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0030.

3.2 Other comments on the program assumption requirements

Individual commenter (EPA-HQ-QW-2020-0276-0058-000 n

As it stands the states that have assumed 404 have been wholly unprepared for the
financial burden they placed on themselves. They've also used their assumption of the
program to weaken protections and fail in their duties to enforce the law. Please ensure
that any assumption of 404 regulations by states or tribes only occurs after they've shown
that they have the financial ability to run the program and actually intend on enforcing
the law.

Agency Response: See Section IV.B.3 of the final rule preamble for a discussion
about the importance of ensuring that Tribes and States that assume the section 404
program have the capacity to fully administer all provisions of the program.

Florida Department of Environmental Protection (FDEP) (EPA-HO-OW-2020-0276-0066-001Q)
As noted in EPA's Economic Analysis for the Proposed Clean Water Act Section 404
Tribal and State Program Rule ("Economic Analysis"), the existing regulations already
require that the program description contain information on available funding,
manpower, and compliance evaluation and enforcement programs, and therefore the
proposed changes to this provision are not a substantial change from the baseline because
it does not impose any specific metrics for States to meet. Florida agrees with EPA's

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decision not to include specific threshold metric requirements. Based on the Economic
Analysis and other EPA statements, the revisions in this section are not intended to be
more stringent or shift the benchmarks to create new rigorous requirements. EPA should
ensure that the proposed revisions are not used as a way to impose more onerous
standards on States.

Agency Response: See Section IV.B.3 of the final rule preamble for a discussion
about the importance of ensuring that Tribes and States that assume the section 404
program have the capacity to administer all provisions of the program. This
rulemaking preserves certain flexibility for Tribes and States by not setting bright
line budgetary or funding requirements, such as presuming that reallocations of
resources are presumptively inadequate. Rather, the rule requires certain
information that will enable the Agency to judge whether a Tribal or State agency
has the capacity to implement its program based on the specific conditions within
its jurisdiction, such as expected numbers of permit applications and numbers of
threatened or endangered species potentially affected.

Florida Department of Environmental Protection (FDEP) (EPA-HQ-QW-2020-0276-0066-0008)
EPA proposes to revise the current program assumption requirements to clarify and add
to the information required as part of the application package for program assumption
[Footnote 2: 88 Fed. Reg. 55,283.]. The Proposed Rule provides more detail on what
EPA is looking for when asking for descriptions of available resources and existing
programs and makes mandatory certain descriptions by replacing the word "should" with
"must" in CFR 233.11(a) [Footnote 3: The proposed changes to the program assumption
requirements also include additional guidance on the development of the "retained
waters" description and a compensatory mitigation description requirement, which are
discussed in more detail in sections IV. and V. below.].

Florida Department of Environmental Protection (FDEP) (EPA-HQ-QW-2020-0276-0066-0009)
Although Florida generally supports EPA's efforts to provide clarity on the requirements
for a complete application, EPA should be cautious not to allow additional terms to
hinder state assumption. And EPA should ensure that it does not depart from the plain
text of Section 404(g)(1), which provides that a state application needs to be a "full and
complete description of the program" along with a legal "statement" explaining that the
State has "adequate authority to carry out the described program..." 33 U.S.C. §
1344(g)(1) (emphasis added). Respecting and trusting the States to manage their water
resources effectively and in compliance with law, Congress did not mandate an overly
complicated or comprehensive application process. In fact, Congress directed that, within
120 days of the filing of a complete application, EPA "shall" approve or disapprove the
program. If EPA does not act within that timeframe, the state program is automatically
"deemed approved." Id. § 1344(h)(3).

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Agency Response: See Section IV.B.3 of the final rule preamble for a discussion
about the importance of ensuring that Tribes and States that assume the section 404
program have the capacity to fully administer all provisions of the program.
Consistent with the commenter's recommendation, this rulemaking preserves
certain flexibility for Tribes and States, and EPA expects that the rule's new
requirements will still enable EPA to carry out its obligation to evaluate program
submissions and either approve or disapprove them within 120 days of receipt of a
complete program submission.

National Association of Wetland Managers (NAWM) (EPA-HO-QW-2020-0276-0072-0006)

NAWM supports the Agency's efforts to clarify the requirements it views as essential for
States and Tribes to be authorized to assume the CWA Section 404 Program. These
requirements need to be consistent and transparent so that all parties, including States,
Tribes, and the regulated community, understand the metrics which EPA will use to
judge the adequacy of the applicant and the applicant's baseline resources which are
needed to implement the Section 404 program. As is indicated in the proposed rule, these
requirements must include the regulatory framework, personnel, and the resources
sufficient to implement the program and to comply with the 404(b)(1) Guidelines. It is
incumbent on the Regional Administrator to assure that the submitted intent and
application is supported by a budget, personnel plan and commitment which indicates a
good faith effort to meet the program requirement outlined in subparts C through E.
These elements are also important to support the resource investment of EPA and other
resource partners in the assumption application process. They are equally important to
assure affected communities that their aquatic resources will be protected and project
proponents that the State or Tribe have sufficient resources to review their proposals in a
timely manner.

Many States and Tribes, while having interest in applying for authorization, would not
have the capacity, necessary resources, nor the ability to hire and fund a program until
such time as the application is approved. The final rule needs to be clear on the
expectations of EPA for an approved applicant to obtain personnel and budgetary
resources so that interested States and Tribes can include this into their cost estimates for
program implementation and secure leadership authorization and support. States and
Tribes are best suited to determine the appropriate times frames for implementation
however, NAWM fully supports the identification of clear and transparent expectations
for those interested in applying for authorization.

Agency Response: See Section IV.B.3 of the final rule preamble for a discussion
about the importance of ensuring that Tribes and States that assume the section 404
program have the capacity to fully administer all provisions of the program. EPA
agrees that program submission requirements must be consistent and transparent,
and the final rule is intended to achieve those goals. See Section IV.B.5 for a
discussion about the time frame for program implementation.

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Alaska Clean Water Advocacy et al. fEPA-HO-QW-2020-0276-0086-0014^

The EPA must take advantage of this rare opportunity and ensure that state governments
who wish to assume the 404 program are crystal clear on what resources will be required
to assume the program and understanding of the requisite coordination and oversight
with the Corps and EPA. The rule must require a clear plan of action, with detailed
benchmarks a state must meet when assuming the program, and outline the actions that
the EPA will take if a state is not meeting its Clean Water Act obligations, including
revoking the program.

Agency Response: See Section IV.B.3 of the final rule preamble for a discussion
about the importance of ensuring that Tribes and States that assume the section 404
program have the capacity to fully administer all provisions of the program. EPA
agrees that program submission requirements must be consistent and transparent,
and the final rule is intended to achieve those goals. See Section IV.E.2 of the final
rule preamble for a discussion about EPA's revisions to program withdrawal
procedures.

4. Compliance with compensatory mitigation requirements and federal oversight of third-
party instruments

Individual commenter (EPA-HO-QW-2020-0276-0050-0006^

Regarding mitigation, EPA should provide specificity on whether or how particular
provisions of subpart J should or should not apply to Tribal or State programs. This
would clear up additional confusion and would encourage more Tribes and States to
assume. If a Tribe or State establishes third party mechanisms, then EPA and the other
listed agencies should be informed and able to review them. Relevant Tribal or State
agencies, such as Fish and Wildlife Services, should be added to the list.

Agency Response: The Agency appreciates commenter input regarding the
application of subpart J of the 404(b)(1) Guidelines to Tribal or State programs.
See Section IV.B.4 of the final rule preamble for further discussion as to how
subpart J applies to Tribal and State programs and the response to these
comments.

Regarding the comment on third party mechanisms, the Agency is finalizing a new
provision that outlines a process which requires Tribes or States administering
section 404 programs to transmit a copy of each draft instrument to EPA, the
Corps, the U.S. Fish and Wildlife Service, and the National Marine Fisheries
Service (if appropriate) for review prior to approving the final instrument, as well
as to any Tribal or State resource agencies to which the Tribe or State committed to
send draft instruments in the program description. See Section IV.B.4 of the final
rule preamble for further discussion of third party compensatory mitigation
instrument oversight and approval.

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Environmental Protection Network (EPN) (EPA-HQ-QW-2020-0276-005 7-0009)

Wetlands Mitigation and Coordination under the Endangered Species Act and National
Historic Preservation Act

EPN has two other areas of concern. The final rule should include references to the
current regulations requiring compensatory mitigation and the procedures for
implementing those requirements. It should be clear that the assumed programs will have
to follow the same tiered approach to compensatory mitigation set out in the current
regulations.

Agency Response: See the Section IV.B.4 of the final rule preamble for the Agency's
response to this comment.

Yukon River Inter-Tribal Watershed Council (EPA-HO-OW-2020-0276-0063-0Q3n

State applications to assume Section 404 permitting authority must include, in detail,
how the state will comply with the mitigation requirements set forth in subpart J of the
Section 404(b)(1) Guidelines. 40 C.F.R. §230 subpart J. The best approach to this, and
the one most likely to promote consistency and ease for EPA, permittees, and citizens, is
for EPA to simply require that states adopt outright or incorporate by reference the
Section 404(b)(1) Guidelines, including and especially when it comes to mitigation.

The purpose of the CWA is to avoid or minimize impacts to jurisdictional waters and
wetlands, and in the event that those impacts cannot be avoided, to then require
mitigation of those impacts. 40 C.F.R. part 230. Mitigation requirements are hierarchical
to ensure that waters and wetlands are protected from impacts to protect aquatic values.
40 C.F.R. § 230.91(c). The most consistent avenue to ensure that states are actually
meeting the substantive criteria outlined in the Section 404(b)(1) Guidelines is to require
states to adopt those guidelines or incorporate them by reference.

Further, any mitigation agreements or "instruments" that the applicant state proposes to
use must be reviewed by EPA and the Corps before they are effective. It is the duty of
the Corps to ensure that actions are not infringing on its jurisdiction, and it is the duty of
EPA to ensure that state-assumed programs do not violate the CWA. Any instruments
addressing mitigation cannot be approved until they address all concerns that EPA
identifies in its review. Further, any instruments addressing mitigation must also be sent
to tribes within the state and tribes with ancestral territory within the state's permitting
area.

EPA should also amend the 404(b)(1) Guidelines to supersede the 1994 Alaska Wetlands
Initiative and other EPA and Army Corps' memoranda regarding compensatory
mitigation in Alaska, which have been applied—frequently at the expense of Alaska
Tribes—to provide lesser protection and compensation for Alaska wetlands than for
wetlands in other regions of the country.

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Agency Response: See Section IV.B.4 of the final rule preamble for discussion on
ensuring consistency and compliance with subpart J of the 404(b)(1) Guidelines and
the Agency's response to this aspect of the comment.

Regarding the comment on third party mechanisms, see Section IV.B.4 of the final
rule preamble for further discussion and the Agency's response to this aspect of the
comment. The final rule process for third party mechanisms does not require the
Tribe or State to provide the draft instrument to Tribes within the State's
permitting area or with interests within the Tribe's or State's jurisdiction, because
review of the third party mechanisms is part of EPA's oversight of Tribal and State
programs, and Tribes do not exercise oversight over assumed programs. However,
a Tribe or State can commit to sending draft instruments to Tribes and State
resource agencies in their program description or elect to send draft instruments on
a case-by-case basis.

The comment on amending the 404(b)(1) Guidelines is outside the scope of this
rulemakings. This rulemaking does not revise the 404(b)(1) Guidelines.

Florida Department of Environmental Protection (FDEP) (EPA-HQ-QW-2020-0276-0066-0016)
EPA proposes requiring States to include a description of its compensatory mitigation
approach "consistent with the requirements of part 230, subpart J." [Footnote 7: 88 Fed.
Reg. 55,292.] Although it still must be as stringent as the requirements of subpart J, EPA
makes clear that a "State's approach may deviate from the specific requirements of
subpart J to the extent necessary to reflect State administration of the program using
State processes as opposed to Corps administration." [Footnote 8: Id.]

Florida supports allowing States to develop and implement the compensatory mitigation
approach that is the best fit for the particular State so long as it is consistent with the
minimum requirements of the Clean Water Act. Among the three States that have
assumed the 404 program, each State has codified a different approach to determining
appropriate amounts of required compensatory mitigation. For example, while New
Jersey and Michigan primarily calculate required compensation based on acre ratios,
Florida relies on the Uniform Mitigation Assessment Method, which considers numerous
factors, including current condition of the wetlands, hydraulic

connection, uniqueness, fish and wildlife utilization, and mitigation risk [Footnote 9: See
Fla. Admin. Code R. 62-345.300.]. For purposes of issuing Section 404 permits outside
these three programs, the Corps is responsible for determining whether compensatory
mitigation is required for a specific Section 404 permit [Footnote 10: 40 C.F.R. §§ 230.5,
.91(c)(2).]. The Corps makes such determinations based on what is "practicable" and
capable of compensating for the aquatic resource functions that will be lost as a result of
the permitted activity [Footnote 11: Id. §§ 230.93(a), (c).]. The Guidelines define
"practicable" as "available and capable of being done after taking into consideration cost,
existing technology, and logistics in light of overall project purposes."[Footnote 12: See
id. § 230.3(1).]

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Florida Department of Environmental Protection (FDEP) (EPA-HQ-QW-2020-0276-0066-0018)
EPA is also proposing to include additional federal oversight over third-party
compensatory mitigation instruments used in state 404 programs. Specifically, EPA is
proposing that States that use these mechanisms must submit instruments associated with
these mechanisms, if any, to EPA, the Corps, the U.S. Fish and Wildlife Service
("USFWS"), the National Marine Fisheries Service ("NMFS"), and any state resource
agencies to which the State committed to send draft instruments in the program
description for comment.

Florida cautions EPA not to create rigid new standards that will frustrate States' ability to
develop and implement a compensatory mitigation approach that best fits each particular
State. As discussed above, Florida's compensatory mitigation approach has been
successful in meeting the requirements of 40 C.F.R. 230 prior to this type of proposal.

Agency Response: See Section IV.B.4 of the final rule preamble for discussion on
ensuring consistency and compliance with subpart J of the 404(b)(1) Guidelines and
the Agency's response to this aspect of the comment.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q14N)

C. EPA must ensure that state 404 programs have equivalent mitigation requirements.

EPA must ensure that mitigation requirements for state programs will comply with the
mitigation requirements set forth in subpart J of the Section 404(b)(1) Guidelines. To
foster that and ensure that the requirements are transparent, EPA must detail in the rule
the minimum substantive requirements for state programs that are fully equivalent to
federal requirements, including the federal program's policy for no net loss of wetlands.
EPA must ensure that state programs detail how they will comply with these mitigation
requirements.

The purpose of the Clean Water Act is to avoid or minimize impacts to jurisdictional
waters and wetlands, and in the event that those impacts cannot be avoided, to then
require mitigation of those impacts. 40 C.F.R. part 230. Mitigation requirements are
hierarchical to ensure that waters and wetlands are protected from impacts to protect
aquatic values. 40 C.F.R. § 230.91(c). The most consistent avenue to ensure that states
are actually meeting the substantive criteria outlined in the Section 404(b)(1) Guidelines
is to require states to adopt those guidelines or incorporate them by reference.

Further, EPA cannot allow state programs to pick and choose between the forms of
mitigation allowed (permittee responsible, mitigation banks, and in-lieu fees). This
would allow state programs to circumvent the established hierarchy of using these forms
of mitigation and would not be equivalent to the federal program. 40 CFR § 230.93(b).
All three have a function and some, like permittee-responsible mitigation, is often less
successful and therefore generally less favored. 40 CFR § 230.93(a)(1), (b). State

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programs that do not provide for all and follow the established hierarchy for their use
would have less stringent compensatory mitigation requirements as compared to the
federal program.

Further, any mitigation agreements or "instruments" that the applicant state proposes to
use must be reviewed by EPA and the Corps before they are effective. It is the duty of
the Corps to ensure that actions are not infringing on its jurisdiction, and it is the duty of
EPA to ensure that state-assumed programs do not violate the Clean Water Act. Any
instruments addressing mitigation cannot be approved until they address all concerns that
EPA identifies in review.

EPA should move forward with their proposed approach to require state programs to:
(1) send third party mechanisms' instruments to EPA, Corps, USFWS, NMFS and Tribal
or state resource agencies for review prior to issuance, (2) satisfy all concerns raised by
federal agencies prior to issuance, and (3) receive approval of third-party mechanisms'
instruments from EPA, Corps, USFWS, NMFS and Tribal or state resource agencies
prior to issuance.

Agency Response: See Section IV.A.2 and IV.A.3 of the final rule preamble
regarding compliance with the 404(b)(1) Guidelines and requirements for Tribal
and State programs to be consistent with and no less stringent than the
requirements of the Act and its implementing regulations. Regarding the comment
on ensuring consistency and compliance with subpart J of the 404(b)(1) Guidelines,
including the application of the hierarchy approach, see Section IV.B.4 of the final
rule preamble for further discussion and the Agency's response to this aspect of the
comment.

Regarding the comment on third party mechanisms, see Section IV.B.4 of the final
rule preamble and the Agency's response to comment EPA-HQ-OW-2020-0276-
0063-0031.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q67N)

- Any instruments addressing mitigation must also be sent to Tribes within the state and
Tribes with ancestral territory within the state's permitting area.

Agency Response: See Section IV.B.4 of the final rule preamble for further
discussion and the Agency's response to comment EPA-HQ-OW-2020-0276-0063-
0031.

State of Michigan. Michigan Department of Environment Great Lakes, and Energy (EGLE).

Water Resources Division (EPA-HO-QW-2020-0276-0071-0004)

The proposed rule appears to allow the states some flexibility in meeting the
compensatory mitigation requirements of Part 230, Subpart J. The WRD supports
allowing states to deviate from the specific requirements of Subpart J as long as they are
no less stringent.

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Agency Response: See Section IV.B.4 of the final rule preamble for discussion on
ensuring consistency and compliance with subpart J of the 404(b)(1) Guidelines and
the Agency's response to this comment.

National Association of Wetland Managers (NAWM) (EPA-HO-QW-2020-0276-0072-0012)
The goal of mitigation is to replace functions lost and degraded through permitted
activities which allow for impacts to aquatic resources. It is a key component of any
wetlands permit program and essential to comply with the intent of the CWA and the
404(b)(1) Guidelines. Many tools can be used to achieve this functional replacement, and
these may include in- lieu-fee and banking projects. In order for EPA to assure that an
assumed State or Tribal program is compliant with the 404(b)(1) Guidelines, subpart J,
EPA should provide clear direction on what the expectation is for resource mitigation
including banking and in-lieu- fee proposals. This includes what standards EPA will be
using for the review of an applicant's proposed mitigation program. As part of the
application process NAWM suggests that standards for mitigation prospectus review be
included and reviewed during the assumption application process and memorialized in
the MOA between the State or Tribe and the federal resource agencies; these standards
should also be consistent with the mitigation requirements for retained waters mitigation
(i.e., the 2008 Corps and EPA Mitigation Rule). EPA, in its oversight role, should screen
the banking or in-lieu-fee proposal prospectuses and, should the prospectus not comply
with the agreed upon elements outlined in the MOA, coordinate with the other federal
resource agencies for concurrence prior to approval. The mitigation proposals should
include an analysis of functions lost and diminished as a result of permit issuance,
expected functional gain of replacement or uplift proposals, monitoring protocol
(including measurable success criteria), and financial assurance mechanisms.

Agency Response: See Section IV.B.4 of the final rule preamble for further
discussion of third party mechanisms and the Agency's response to this comment.
As discussed in that Section, the standards EPA will use to evaluate proposed
mitigation programs are that while it may deviate from the specific requirements of
subpart J to the extent necessary to reflect Tribal or State administration of the
program, the mitigation mechanisms may be no less stringent than the substantive
criteria for compensatory mitigation described in 40 CFR part 230, subpart J. See
Section IV.A.2 and IV.A.3 for a description of requirements for Tribal and State
programs to be consistent with and no less stringent than the requirements of the
Act and its implementing regulations including issuance of permits which comply
with the 404(b)(1) Guidelines.

National Association of Home Builders (NAHm (EPA-HO-OW-2020-0276-0077-0Q13N)

Concerning compensatory mitigation requirements for state or tribal programs seeking
CWA 404 assumption, EPA's proposal reaffirms the CWA 404(b)(1) guidelines and
EPA's implementing regulations provide that every permit issued must apply and ensure
compliance under the CWA, including compensatory mitigation requirements [Footnote
28: 88 Fed. Reg. 55293 (August 14, 2023).] [Footnote 29: 40 C.F.R. 230, Subpart J]
NAHB recognizes that any state or tribal program receiving CWA 404 assumption must
ensure compensatory mitigation performed as a permit condition of a CWA 404 permit
must be consistent with the Corps' compensatory mitigation requirements [Footnote 30:

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See Corps (2008) Compensatory Mitigation of Losses of Aquatic Resources (73 Fed.
Reg. §§19594-19650)]. While NAHB recognizes this, EPA and Corps must address the
lack of options available to abide by the 2008 Mitigation Rule [Footnote 31: 70 Fed.
Reg. 19594 (April 10, 2008).] .NAHB urges the Agencies to work together to ensure
enough mitigation banks are online and available to meet the market's demand. The
Interagency Review Team (IRT) process to approve mitigation banks is slow,
convoluted, and faulty. Home builders must compete with private companies and state
and federal agencies for credits that are oftentimes scares and overly expensive. To
address the nation's housing shortage, our members desperately need access to all
mitigation options, including having credits readily available for purchase. NAHB urges
the agencies to adopt reasonable compensatory mitigation banking programs that will be
applied consistently and provide other options such as in lieu fee programs as a viable
compensatory mitigation option. EPA should work with the states and Tribes seeking to
assume the CWA 404 permitting program to expedite the IRT process to create
additional mitigation options in their boundaries.

Agency Response: While the Agency appreciates commenter input on available
options to meet compensatory mitigation requirements, the development of
mitigation banks or other mitigation mechanisms is outside the scope of this
rulemaking. This rulemaking solely addresses the implementing regulations for
CWA section 404 Tribal and State programs.

Regarding the comment on the instrument review process, see Section IV.B.4 of the
final rule preamble for further discussion.

Port Gamble S'Klallam Tribe (PGST^) (EPA-HO-OW-2020-0276-0078-0Q28N)

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identifies in its review. Further, any instruments addressing mitigation must also be sent
to tribes within the state, tribes with ancestral territory within the state's permitting area,
and tribes with off-reservation reserved rights within the state.

In response to the comment on third party mechanisms, see Section IV.B.4 of the
final rule preamble and the Agency's responses to comments EPA-HQ-OW-2020-
0276-0063-0031 and EPA-HQ-OW-2020-0276-0072-0012.

State of Alaska Department of Environmental Conservation (EPA-HQ-QW-2020-0276-0079-

0005")

The Proposed Rule would add a requirement that a State's assumption application
include "[a] description of the State's approach to ensure that all permits issued satisfy
the substantive standards and criteria for the use of compensatory mitigation consistent
with the requirements of part 230, subpart J." [Footnote 17: 88 Fed. Reg. 55292-55294,
55325.] Subpart J is the compensatory mitigation portion of the 404(b) Guidelines
[Footnote 18: See 40 Code of Fed. Reg. ("C.F.R.") parts 230.91-.98 (entitled
"Compensatory Mitigation for Loss of Aquatic Resources").]. EPA indicates that a State
"may deviate from the specific requirements of subpart J to the extent necessary to
reflect State administration of the program using State processes as opposed to Corps
administration . . . [but] may not be less stringent than the requirements of
subpart J." [Footnote 19: 88 Fed. Reg. 55325.].

The State appreciates EPA's explicit recognition of the flexibility the States enjoy when
crafting a compensatory mitigation program tailored to their State. Last legislative
session, in Alaska, we obtained broad consensus on how to expand and improve upon the
Corps' compensatory mitigation program in Alaska. We discussed allowing permittees to
clean up contaminated sites affecting water quality, completing projects to improve fish
passage, and improving wastewater management, among other projects that would
improve the health of Alaska's environment. We spoke with EPA Region 10, who
expressed their support. States are incentivized to find the projects that would most
improve water quality in their State and to design a compensatory mitigation system
accordingly. The Corps has no such incentive. We appreciate EPA's continued support
on this point.

Agency Response: The Agency appreciates the commenter's support for flexibility
in compensatory mitigation programs, which may differ from the substantive
criteria of subpart J of the 404(b)(1) Guidelines, but Tribal or State section 404
programs must be consistent with and no less stringent than federal requirements.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q27N)

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the one most likely to promote consistency and ease for EPA, permittees, and citizens, is
for EPA to simply require that states adopt outright or incorporate by reference the
Section 404(b)(1) Guidelines, including and especially when it comes to mitigation.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q28N)

Further, any mitigation agreements or "instruments" that the applicant state proposes to
use must be reviewed by EPA and the Corps before they are effective. It is the duty of
the Corps to ensure that actions are not infringing on its jurisdiction, and it is the duty of
EPA to ensure that state-assumed programs do not violate the CWA. Any instruments
addressing mitigation cannot be approved until they address all concerns that EPA
identifies in its review. Further, any instruments addressing mitigation must also be sent
to Tribes within the state and Tribes with ancestral territory within the state's permitting
area.

Agency Response: See Section IV.B.4 of the final rule preamble and response to
comment EPA-HQ-OW-2020-0276-0063-0031.

California State Water Resources Control Board (EPA-HO-OW-2020-0276-TRANS-Q82423-
003-0002")

Comment 2

I just want to verify that the requirement for EPA review of compensatory mitigation
would only apply to states that have assumed 404 program administration and will not
affect mitigation required under state authorities.

Agency Response: This rulemaking solely addresses the implementing regulations
for CWA section 404 Tribal and State programs.

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Chickaloon Native Village (EPA-HO-OW-2020-0276-TRANS-092923-009-00Q8N)

We in Alaska have massive acres of wetlands, thousands, and thousands of acres and
correspondingly massive, planned projects across the street that would dredge and fill
wetlands. We agree with Patty Whitehead's comment that intermittent wetlands that don't
fall under the Sackett rule are still vital for habitat. Currently, compensatory mitigation in
Alaska operates under an Alaska exception that allows the Corps to permit projects
without compensatory mitigation. We would like to see the EPA require the state of
Alaska to have compensatory mitigation for all wetland permitting as a condition for the
state to take over primacy. EPA wants comments on whether there is a need for
specificity on requirements for compensatory mitigation, and whether third-party
compensatory mitigation mechanisms should be provided to EPA, and we emphatically
agree yes, that is needed.

Agency Response: See Section IV.B.4 of the final rule preamble for further
discussion on ensuring consistency and compliance with subpart J of the 404(b)(1)
Guidelines and third-party mechanisms. Nothing in this rulemaking prevents the
State from requiring mitigation for impacts to other waters and EPA encourages
Tribes to work with the State to protect these resources.

5. Effective date for approved programs

Individual commenter (EPA-HO-OW-2020-0276-0050-0Q(m

I agree that the section 404 Tribal and State program regulations should have an effective
date for transfer, the maximum time limit should be longer than 120 days, as Congress
may be overestimating the ease at which these transfers will happen. The public should be
informed of the selected timeframe and what that transition entails. A comment period
needs to be established so that the public's opinion on the assumption can be heard and
considered. I also agree that, should a Tribe or State request a longer timeframe, they
should include in their program description their reasoning and a plan.

Agency Response: The Agency appreciates commenter input regarding the
establishment of an effective date for transfer of approved programs. The Agency
proposed to establish, as a default, a minimum effective date of 30 days from
publication of the notice of EPA's program approval in the Federal Register, but also
to allow for an effective date of up to 120 days from publication of notice in the
Federal Register. The final rule provides for a presumptive 30-day effective date, but
also provides that Tribes and States can request an effective date that is up to 180
days from publication of the notice of EPA's program approval in the Federal
Register. See Section IV.B.5 of the final rule preamble for further discussion of the
Agency's rationale for this provision.

Idaho Department of Environmental Quality (IDEO) (EPA-HO-OW-2020-0276-0059-00Q2)
II. Program Assumption Requirement

The proposed Rule would revise current requirements and specify that the transfer of an
approved program to a Tribe or State would take effect 30 days after publication of the

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notice of EPA's program approval in the Federal Register, except where EPA and the Tribe
or State have established a later effective date (not to exceed 120 days from the Federal
Register publication). Idaho is one of the many states fully authorized to assume the
National Pollutant Discharge Elimination System (NPDES) program which was
successfully transferred using a phased-in approach. IDEQ recommends that the final Rule
not default to a 30-day, with a maximum 120-day, effective date to allow Tribes or States
to negotiate the flexibility to begin program administration and allow for best program
implementation. A regulatory phased-in approach may be necessary for Tribes and States
to provide added time to hire additional qualified staff and increase resources to implement
and expand budgetary constraints required for program development and implementation.
Though legislative support or proof of allocated funds may be submitted as part of the
assumption process, budget cycles and/or hiring processes may not align with the timing
of fund allocation or staffing availability. Therefore, an allowance for effective date
flexibility is warranted and should be provided in the Memorandum of Agreement (MO A)
with the Regional Administrator. Furthermore, the proposed Rule does not specify the
conditions or circumstances under which a Tribe or State may request a later effective date
from the date of the program assumption notice publication in the Federal Register.

Agency Response: See Sections IV.B.l and IV.B.5 of the final rule preamble for the
Agency's rationale for this provision. The Final Rule provides for a 30-day default
effective date of program transfer and allows for later effective dates up to a
maximum period of 180 days from publication of the notice of EPA's program
approval in the Federal Register. In Section IV.B.5 of the final rule preamble, EPA
discusses some of the circumstances that could lead a Tribe or State to request a
longer effective date, but EPA does not intend for this discussion to specify the only
conditions or circumstances that might support a request for a later effective date.

Association of Clean Water Administrators (ACWA) (EPA-HQ-OW-2020-0276-0060-0006)

Delayed Effective Date: We appreciate EPA's inclusion of new language in the Proposed
Rule that would provide a default delay period between EPA approval of a state's
assumption section 404 authority and the effective date upon which the state begins
administration of the program. However, 30 days (as provided in the Proposed Rule) is an
insufficient amount of time for states to take necessary steps to ensure that section 404
authority can be transferred to states without any disruption. We recommend that EPA
modify the Proposed Rule to provide a default period of at least 120 days between EPA
approval of state assumption and the effective date on which states begin administration
of the section 404 program.

Agency Response: Based on prior experience and consistent with some of the
comments received, EPA believes that 30 days is a sufficient amount of time for
program transfer when a Tribe or State has its staff and other resources in place.
The final rule also allows flexibility for Tribes and States to request the effective date
be up to 180 days from publication of the notice. See Section IV.B.5 of the final rule
preamble and the Agency's Response to Comment EPA-HQ-OW-2020-0276-0050-
0007.

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Florida Department of Environmental Protection (FDEP) (EPA-HO-OW-2020-0276-0066-0011)
EPA proposes that the effective date for a state program would commence, and a State
would begin administering its program, 30 days after EPA's approval is published in the
Federal Register, except where EPA and the State have agreed to a later date not to exceed
120 days from publication [Footnote 4: 88 Fed. Reg. 55,294.]. The existing regulations
provide that the transfer of permitting authority shall not be considered effective until
EPA's approval is published in the Federal Register, but otherwise do not dictate the timing
requirements for an effective date.

States seeking assumption make significant investments to apply for and obtain approval
of a state Section 404 program and may often be prepared to assume the program as soon
as it is approved. Arrangements for timely and effective transfer of the program can be
addressed between the State, the Corps, and EPA, and should be left to a state-specific
decision with maximum flexibility to select an effective date that is appropriate under the
circumstances.

Although Florida supports EPA's efforts to allow flexibility for a State to request a later
effective date, the 30-day minimum effective date is not necessary. Rather than setting a
strictly prescribed minimum effective date, EPA should work with each State seeking
assumption on developing a timeframe that is tailored to the State, which would be
identified in the MOA.

Agency Response: See Section IV.B.5 of the final rule preamble for a discussion of
the thirty-day minimum effective date.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q59N)

XIV. EPA's decision on whether to approve an application to assume the 404 program
is a rulemaking that requires at least a thirty-day delay in effect.

We agree that EPA must provide at least a thirty-day delay in effect of a decision to
approve a 404 state assumption application. 88 Fed. Reg. 55,294-95. Although EPA may
expand this delay beyond thirty days, EPA must comply with the Administrative
Procedure Act's default effective date of thirty days. When EPA decides to approve a state
404 assumption application, it is engaging in rulemaking, not adjudication. Ctr. for
Biological Diversity v.

Regan, 597 F.Supp.3d 173, 211-12, & n.9 (D.D.C. 2022). As a result, the procedural
requirements of the Administrative Procedure Act apply, and EPA must provide at least a
thirty- day delay in the effective date of its decision. 5 U.S.C. § 553(d).

This thirty-day delay is necessary to ensure that members of the public have an opportunity
to request that EPA stay the effect of its decision pending any potential legal challenge on
EPA's action. 5 U.S.C. § 705. Without this delay, affected members of the public will be
deprived of their legal right to seek a stay from the agency. See Ctr. for Biological
Diversity v. Regan, No. CV 21-119 (RDM), 2023 WL 5437496 (D.D.C. Aug. 23, 2023).

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A minimum thirty-day delay would also provide structure for a more seamless transition
to state permitting, rather than a haphazard scramble on the part of the Corps and states.
By clearly establishing this delayed effective date, an assuming state and the Corps would
be able to plan for the transfer, allow time for permit files to be transmitted, and create
more certainty for all parties involved.

Agency Response: EPA has finalized the thirty-day minimum delay between
publication in the Federal Register and effective date of a Tribal or State program.
See Section IV.B.5 of the final rule preamble for a discussion of the minimum and
maximum time between approval and program administration.

Region 10 Tribal Operations Committee (RTOC) and National Tribal Water Council (NTWC)

(EPA-HO-OW-2020-0276-007Q-001S)

C. Limited transfer period introduces substantial risk into application for smaller Tribes
and States.

The narrow window for the date of transferring program administration
disproportionately impacts smaller Tribes and States. In order to be ready for the transfer
within the 30 days (stated as a default) or 120 days (the proposed maximum time), EPA
recommends that "a Tribe or State should not wait until EPA approves the program before
initiating hiring and training processes for staff that were committed in the program
description."[Footnote 16: Clean Water Act Section 404 Tribal and State Program
Regulation, 88 Fed. Reg. 55,295.] Most States that have conducted feasibility studies
estimate a training period of 1-2 years. [Footnote 17: "Economic Analysis for the Proposed
Clean Water Act Section 404 Tribal and State Program Rule," (June 2023) 14-18.]
However, one would assume that EPA approval is not necessarily a given for all programs.
Initiating hiring and training processes while the authorization is pending is a gamble. By
making the transfer period shorter than the time reasonably expected for creating a new
administrative program, the proposed Rule creates a barrier of risk for Tribes unwilling to
dedicate scarce resources before the EPA ruling is known. This could be alleviated by
allowing a broader range of possible dates when drafting the Memorandum of Agreement
with EPA.

Agency Response: EPA recognizes that while Tribes or States with similar programs
may not need to add significant resources prior to program approval, those without
existing programs probably need to commit new resources, and possibly hire or train
staff, before EPA has determined whether their programs are approved. To limit the
scope of these resource commitments early in the process, EPA is allowing Tribes
and States to demonstrate the need for an effective date that is up to 180 days from
the date of formal program approval. The Agency is also available to work closely
with a Tribe or State as it prepares its program submission and to help address
concerns about timing, resources, and other issues. Since the Tribe or State controls
the timing of its program submission, this coordination should help the Tribe or State
develop a clearer understanding of the sufficiency of its proposed program and better
time its commitment of administrative resources before the Tribe or State submits a
program assumption request. With these measures, the Agency believes that by the

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time a Tribe or State has submitted an approvable program, it should be in a position
to take all remaining steps to fully implement the program by the agreed-upon
effective date.

National Association of Wetland Managers (NAWM) (EPA-HO-OW-2 020-0276-0072-0013)

In order to assure a smooth transition of the 404 program from the Corps to a State or Tribe
we believe that a specific time frame for application, permit review and compliance
transfer be established. This time frame could have multiple variables depending on the
regulatory and resource status of the approved authority. If an approved program needs to
develop a program structure, secure implementation funding, hire qualified staff, and
implement a permitting program there could be a need for flexibility in the effective date
of the approved program. Therefore, it would seem reasonable that a range of time be
established in the proposed rule to accommodate the potential variability in the existing
regulatory structure of the approved State or Tribe. The effective date should be included
in the Federal Register notice of approval, and it would seem unlikely to be less than 30
days from notice and should not be greater than 120 days as indicated in the proposal. Any
time frame greater than 120 days would seem to indicate that the applying authority is not
yet prepared to assume the program and so notice should be withheld until such time as
the applying State or Tribe can meet the time frames proposed. States and Tribes have
indicated that flexibility needs to be maintained in the determination of the effective date
and should be dependent upon the needs and resources of the individual applying authority.

Agency Response: EPA agrees that specifying a program transfer period of at least
30 days will provide the benefits that the commenter identifies, whereas the need for
a very long time frame could indicate the Tribe or State is not sufficiently prepared
to assume the program. However, the Agency has determined that there may be
instances in which a Tribe or State can meet the requirements for program
assumption, but still demonstrate the need for up to 180 days to ensure it is able to
fully implement the program. See Section IV.B.5 of the final rule preamble.

Nebraska Department of Environment and Energy (EPA-HO-OW-2020-0276-0073-00Q6)

Approved program effective date delay of up to 120 with an automatic delay of 30 days
once EPA approves the program application.

• Delaying the effective date allows for additional training of new program staff
and potential applicants and gives the Corps and those with permits already in the
review process time to either complete them or prepare to begin a new application
for a State 404 permit. This will help alleviate the Corps transferring a larger
workload than necessary as many permits being reviewed can be completed and
new permittees can be notified of the program effective date and can plan
accordingly.

Agency Response: EPA agrees that specifying a program transfer period of 30 to 180
days will provide these benefits. See Section IV.B.5 of the final rule preamble for a
discussion of the delayed effective date.

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State of Alaska Department of Environmental Conservation (EPA-HO-OW-2020-0276-0079-
0006)

EPA proposes an effective date of 30 days after program approval unless a later effective
date, not to exceed 120 days, is established for special circumstances [Footnote 20: 88 Fed.
Reg. 55294.].

Alaska has no objection to a short transition time to transfer an assumed program from the
Corps to a State.

Agency Response: The final rule provides for a minimum transfer period of 30 days
but allows for a period of up to 180 days. See Section IV.B.5 of the final rule
preamble.

6. General comments on Memorandum of Agreements (MOAs)

Yukon River Inter-Tribal Watershed Council (EPA-HO-OW-2020-0276-0063-0Q15)

Program approval relies on the execution of a Memorandum of Agreement (MO A)
between the assuming state, the Corps, and EPA. 40 C.F.R. § 233.14. EPA proposes
several amendments and requests comment on topics that must be included in an MOA
for Section 404 assumption. The proposed rule is silent as to how MOAs must involve or
include tribes within the assuming state. We propose several additions to the MOA
requirements that would ensure tribal rights are protected and to provide an avenue for
tribes within the state to be involved.

As an initial matter, tribes within the state should be consulted on draft versions of the
MOA prior to finalization. As stated above, consultation with tribal governments should
occur as early as possible. Affected tribes should also be afforded the opportunity to be
signatories to the MOA if appropriate. There also must be a process whereby affected
tribes who were not afforded an opportunity to review the MOA prior to execution, or
who were unable to participate in the MOA to review and make recommendations later,
or to later become a participating party to the MOA. This will ensure that affected tribes
are able to participate as sovereign nations in state programs and decision making
processes that impact their rights and resources. Tribes must have the ability to stay
involved when states assume Section 404 permitting.

MOAs must be revisited at a regular interval to ensure they are consistent with updated
information on tribal rights and resources and with developments in the law. We suggest
that MOAs be revisited by the assuming state, federal agencies, and tribes every 5 years.

Agency Response: Pursuant to EPA's Policy on Consultation and Coordination
with Indian Tribes ("Consultation Policy"), approving Tribal or State section 404
programs is an activity that is generally appropriate for consultation. See EPA's
Policy, available at https://www.epa.gov/svstein/files/docuinents/2Q23-f2/epa-policv-
on-con sultati on - with -in di an ~tribes~2C at 5-6. The Consultation Policy notes

that, "Tribal officials may request consultation on EPA actions or decisions [and]
EPA strives to honor Tribal governments' requests with consideration of the nature

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of the activity, past consultation efforts, available resources, timing, and all other
relevant factors." Id. at 6. These consultations may address the MOA between the
assuming Tribe or State and the Corps, or the MOA between the assuming Tribe or
State and EPA, as those MO As are critical components of a Tribal or State section
404 program submission.

Consistent with EPA's policy, for example, when EPA was reviewing Florida's
submission seeking to assume the section 404 program, EPA initiated and
completed consultation with the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, and the Poarch Band of Creek Indians. Tribes may also seek
consultation opportunities prior to a submission of a Tribal or State program
request, and EPA will consider that request consistent with the Policy. This rule
does not modify EPA's Consultation Policy in any way.

MOAs between the State and EPA or the Corps and EPA involve matters specific to
the two agencies entering these agreements, such as procedures for transmitting
permit applications or draft permits to each other and for communicating on those
applications. Moreover, the presence of federally recognized Tribes, and those
Tribes' degree of interest in and engagement with the section 404 permitting
program varies significantly between States. One national requirement for Tribal
inclusion in all the Corps-State or EPA-State MOAs would therefore not be
appropriate. Tribes interested in entering into an MOA with an assuming Tribe or
State, the Corps, or EPA may raise that concern during consultations on program
approvals or separately, and the assuming Tribe or State may enter into an MOA
or other agreement with Tribes or entities addressing issues of importance to
Tribes. In addition, EPA is providing other opportunities in this rule to facilitate
Tribal engagement in the section 404 permitting process where Tribes or States
have assumed that program. See Section IV.F of the final rule preamble.

EPA declines to set a 5-year requirement for revisiting MOAs. In EPA's experience,
the existing procedures for revision of Tribal and State programs at 40 CFR 233.16,
in coordination with the annual report requirements in 233.52, function effectively
to ensure that State programs remain up-to-date. EPA has decided to retain its
existing approach of event-based or need-based revisions rather than imposing the
burden of additional 5-year review requirements on Tribes, States, EPA regional
offices, and the Corps.

Earthiustice et al. (EPA-HO-OW-lOlO-OlTe-OOeS-OOei^)

- Tribes within the state or Tribes with treaty rights, resources, or ancestral territory
within the state should be consulted on draft versions of the MOA with EPA prior to
finalization. There also must be a process whereby affected Tribes who were not
afforded an opportunity to review the MOA prior to execution, or who were unable to
participate in the MOA to review and make recommendations later, or to later become a
participating party to the MOA.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0015.

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Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q64N)

- MO As must be revisited at a regular interval to ensure they are consistent with
updated information on Tribal rights and resources and with developments in the law.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0015.

Choctaw Nation of Oklahoma (EPA-HO-OW-2020-0276-0069-00Q5N)

From our experience in Florida, our office can see that if the EPA transfers 404
permitting authority to states via MO As, a mechanism has to be created for revisiting the
MOA regular interval to ensure they are consistent with updated information on tribal
rights and resources and with developments in the law. We suggest that MO As be
revisited by the assuming state, federal agencies, and affected tribes every 5 years.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0015.

National Tribal Water Council (NTWC) (EPA-HO-OW-2020-0276-0074-SD-001Q)

The tribes within Michigan's borders have had 34 years of experience with a state dredge
and fill permitting authority, and this experience should be used to inform all
assumptions of that permitting authority going forward. In light of lessons learned, as
summarized above, whenever EPA develops MoAs with states in connection with
assumption of the CWA § 404 program, each MoA should include specific terms that
protect tribal interests, tribal jurisdiction and treaty and subsistence rights.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0015.

National Tribal Water Council (NTWC) (EPA-HO-OW-2020-0276-0074-SD-0Q14)

- Future EPA/State MoAs should explicitly require consultation and coordination with
Tribes in treaty-affected lands, not just adjacent to trust lands but throughout ceded
territory where there are retained treaty and subsistence rights. Permit processes must
explicitly consider impacts to treaty-protected resources. A treaty with the federal
government is constitutionally the highest law of the land, and therefore treaty
protections supersede state permit guidelines.

Agency Response: EPA anticipates that the opportunities EPA is providing in this
rule to facilitate Tribal engagement in assumed section 404 permitting programs
will address Tribal concerns and facilitate protection of Tribal interests within
Indian country and in treaty-affected lands. See Section IV.F of the final rule
preamble addressing Tribal engagement opportunities, and Section IV.A.2 of the
final rule preamble addressing the considerations that must be addressed during
the permitting process.

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National Tribal Water Council (NTWC) (EPA-HO-OW-2020-0276-0074-SD-0Q15)

- All EPA/state MoAs must explicitly require that permit processes within ceded territory
not present an onerous burden on tribes' exercise of treaty-protected rights, including
activities designed to conserve and protect those rights.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0074-SD-0014.

Port Gamble S'Klallam Tribe (PGSTI (EPA-HO-OW-2020-0276-0078-0Q23N)

Program approval relies on the execution of a Memorandum of Agreement (MO A)
between the assuming state, the Corps, and EPA. 40 C.F.R. § 233.14. EPA proposes
several amendments and requests comment on topics that must be included in an MOA
for Section 404 assumption. The proposed rule is silent as to how MO As must involve or
include tribes within the assuming state, or tribes with treaty rights, resources, or
ancestral territory within the assuming state. We propose several additions to the MOA
requirements that would ensure tribal rights are protected and to provide an avenue for
tribes within the state or tribes with treaty rights, resources, or ancestral territory within
the state (collectively "affected tribes") to be involved.

As an initial matter, tribes within the state or tribes with treaty rights, resources, or
ancestral territory within the state should be consulted on draft versions of the MOA
prior to finalization. Consultation with tribal governments should occur as early as
possible. Affected tribes should also be afforded the opportunity to be signatories to the
MOA if appropriate. There also must be a process whereby affected tribes who were not
afforded an opportunity to review the MOA prior to execution, or who were unable to
participate in the MOA development, can review, make recommendations, and even
become a participating party to the MOA later. This will ensure that affected tribes are
able to participate as sovereign nations in state programs and decision-making processes
that impact their rights and resources. Tribes must have the ability to stay involved when
states assume Section 404 permitting.

MO As must be revisited at a regular interval to ensure they are consistent with updated
information on tribal rights and resources and with developments in the law. We suggest
that MO As be revisited by the assuming state, federal agencies, and affected tribes every
5 years.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0015 and EPA-HQ-OW-2020-0276-0074-SD-0014.

Great Lakes Indian Fish and Wildlife Commission (EPA-HO-OW-2020-0276-0080-00Q7)

I. Memorandum of Agreement for Program Assumption. In GLIFWC staffs experience
interacting with the State of Michigan (which has delegated 404 authority), the
Memorandum of Agreement was ineffective at providing any mechanism for tribal
involvement or opportunities for recourse to the EPA to ensure that treaty resources were
protected. Unfortunately, the proposed rule is also silent as to how MOA's will help
ensure that treaty rights are appropriately considered. Because the entry into an MOA is

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an EPA action that may impact treaty rights, the consideration and approval of an MOA
with a state should be the subject of tribal consultation.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0015 and EPA-HQ-OW-2020-0276-0074-SD-0014.

Tulalip Tribes of Washington (EPA-HO-OW-2020-0276-0082-00Q2N)

The Proposed Rule should require that federally recognized Indian tribes be consulted
during the early stages of any proposed Memorandum of Agreement ("MOA") pursuant
to 40 C.F.R. § 233.14. The EPA and the Corps should utilize tribal liaisons to ensure that
affected federally recognized Indian tribes are provided meaningful opportunities to
review and critique MO As. Further, any final rulemaking should require that MO As
include federal consultation regarding any state permitting action that may impact tribal
rights and resources. MO As should also make clear that the Corps is the lead agency
when there are permitting projects spanning retained and assumed jurisdiction.
Additionally, MO As should be reviewed by the signatories and affected tribes at least
every five years and must include a dispute resolution process that provides affected
tribes a potential path to address concerns without litigation.

Agency Response: See Section IV.F of the final rule preamble. EPA may consult
with Tribes on the development of its MOA with a Tribe or State pursuing
assumption of the program. EPA's current policy on Consultation with Indian
Tribes is available at https://www.epa.gov/system/files/documents/2023-12/epa-
policy-on-consultation-with-indian-tribes-2023_0.pdf. See the Agency's Response to
Comment EPA-HQ-OW-2020-0276-0063-0046 for an explanation as to why EPA is
not requiring the designation of an EPA-Tribal liaison as a condition of State
assumption of a CWA section 404 program.

Just as EPA is not mandating one specific approach to resolving all disputes, EPA
declines to require Tribal or State MOAs with EPA to include one specific dispute
resolution approach. Tribal and State program structures may differ, as may the
circumstances of particular disagreements. EPA does not think it would be helpful
to prescribe one method of resolution, nor to mandate that Tribes or States do the
same. However, to the extent Tribes or States choose to lay out a dispute resolution
or elevation provision in their MOAs, that provision must be followed. See 40 CFR
233.1(f).

See the Agency's Response to Comment EPA-HQ-OW-2020-0276-0063-0015 and
EPA-HQ-OW-2020-0276-0074-SD-0014. EPA is available to assist in resolving
disputes; see Section IV.E.l of the final rule preamble.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q13N)

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include Tribes within the assuming state. We propose several additions to the MOA
requirements that would ensure Tribal rights are protected and to provide an avenue for
Tribes within the state to be involved.

As an initial matter, Tribes within the state should be consulted on draft versions of the
MOA prior to finalization. As stated above, consultation with Tribal governments should
be initiated as early as possible and consultation should be invited repeatedly throughout
the development of the MOA. Affected Tribes should also be afforded the opportunity to
be signatories to the MOA if appropriate. There also must be a process whereby affected
Tribes 1) who were not afforded an opportunity to review the MOA prior to execution
can review and make recommendations later, or 2) who were unable to participate in the
MOA, can later become a participating party to the MOA. This will ensure that affected
Tribes are able to participate as sovereign nations in state programs and decision-making
processes that impact their rights and resources. Tribes must have the ability to stay
involved when states assume Section 404 permitting.

MO As must be revisited at a regular interval to ensure they are consistent with updated
information on Tribal rights and resources and with developments in the law. We suggest
that MO As be revisited by the assuming state, federal agencies, and Tribes every 5 years.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0015.

Individual commenter (EPA-HO-OW-2020-0276-0050-0012^

A Memorandum of Agreement between the Tribe or State and the USACE about this
transition is necessary. Tribes and States need to know what support they can expect
from the USACE.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0015.

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0016)

The MOA must also be explicit in how it addresses permitting for projects that span both
state and Corps jurisdiction. Specifically, the Corps should be the lead permitting entity
for the entire project with state input or with a state acting as co-lead. This will ensure
that federal protections are not lost and that projects are reviewed holistically for impacts
to the entire project area. Splitting permitting review and decisions will lead to
inconsistencies for project review and can have further impacts when it comes to judicial
review. Split permitting also requires more resources from the public to be involved in
the permitting process, including having to submit comments to and participate in public
hearings for two different entities on the same project. The MOA should explicitly list
the Corps as the lead permitting agency and outline how the state will assist or provide
input into that process.

Agency Response: EPA recommends that MOAs between the assuming Tribe or
State and EPA should address permitting for projects that span both the State's
and the Corps' jurisdiction. EPA is willing to assist assuming Tribes or States and

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the Corps in reaching agreement on such an approach. EPA is not establishing one
national requirement for coordination as Tribal and State agencies may already
have procedures for communicating with the Corps, and EPA does not want to
preclude them from developing case-specific approaches that would be most
efficient and environmentally protective.

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0025)

Further, for projects that may include both Corps retained wetlands and state-assumed
wetlands, EPA regulations should require that the Corps is the lead permitting entity with
cooperative participation by the state. As stated above, this requirement must be outlined
in the MO As between the federal agencies and the assuming state. This requirement
would ensure that environmental review is not unlawfully segmented and will protect the
rights of interested parties injudicial review, particularly tribes. And because state
requirements may not be less stringent than Federal requirements, judicial review of the
Corps' permitting decisions in federal court will not infringe on any rights of the state
permitting agency or the permittee.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0016.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q63N)

- The MOA must also be explicit in how it addresses permitting for projects that span
both state and Corps jurisdiction. Specifically, the Corps should be the lead permitting
entity for the entire project with state input or with a state (or tribe) acting as co-lead.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0016.

Region 10 Tribal Operations Committee (RTOC) and National Tribal Water Council (NTWC)

(EPA-HQ-OW-2020-0276-0070-0003)

I. Determination of retained waters in State-US ACE memoranda of agreement should
involve Tribes when Tribal waters are being discussed.

As structured, the proposed rule divides waters and wetlands between States assuming
404 programs and the U.S. Army Corps of Engineers ("USACE") as the result of
bilateral discussions, with no explicit role for the Tribes, whose water resources will
likely be affected.

Naturally, developing a Memorandum of Agreement ("MOA") between the State and
USACE regarding administrative boundaries is a valuable step towards the efficient
operation of concurrent 404 programs. However, in light of the recently ambiguous
interpretation of the Federal Government's trust relationship with Tribes,[Footnote 1:
See Arizona v. Navajo Nation, 599 U.S. (2023).] allowing for direct Tribal involvement
in the MOA will help to ensure that Tribal resources are properly respected. Given that
the proposed rule allows Tribes to request EPA review of permits affecting water
resources beyond reservation boundaries,[Footnote 2: Clean Water Act Section 404
Tribal and State Program Regulation, 88 Fed. Reg. 55,328 (Aug. 14, 2023) (to be

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codified at 40 C.F.R. § 233.51(d)).] some uncertainty could be resolved early by
allowing those off-reservation interests to be noted in the MOA. This involvement could
be through consultation with Tribes throughout the drafting process or by allowing
Tribes full participation in the process, and to become signatories.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0015.

Port Gamble S'Klallam Tribe (PGST^) fEPA-HO-QW-2020-0276-0078-0024^

The MOA must also be explicit in how it addresses permitting for projects that span both
state and Corps jurisdiction. Specifically, the Corps should be the lead permitting entity
for the entire project with state input or with a state (or tribe) acting as co-lead. This will
ensure that federal protections are not lost and that projects are reviewed holistically for
impacts to the entire project area. Splitting permitting review and decisions will lead to
inconsistencies for project review and can have further impacts when it comes to judicial
review. Split permitting also requires more resources from the public to be involved in
the permitting process, including having to submit comments to and participate in public
hearings for two different entities on the same project. The MOA should explicitly list
the Corps as the lead permitting agency and outline how the state will assist or provide
input into that process.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0016.

Chickaloon Native Village (CNV) fEPA-HO-QW-2020-0276-0085-0014^

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0016.

7. Other comments on program approval

Association of Clean Water Administrators (ACWA) (EPA-HQ-QW-2020-0276-0060-0007)

Effects to other States/Tribes: EPA should provide a process for states pursuing
assumption to account for potential impacts to interstate wetlands and waters.

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Agency Response: EPA encourages the permitting Agency to engage with potentially
affected Tribes and States early in the permitting process to ensure permits do not
adversely affect the waters of another Tribe or State. See Section IV.F of the final
rule preamble for discussion of coordination requirements at 40 CFR 233.31.

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0012)

As discussed above, lack of federal consultation is a major concern for tribes with lands,
waters and cultural or historic ties within states that seek to assume Section 404 permitting
authority. At a minimum, as a condition of approval of a state application to assume
Section 404 permitting authority, a state should be required to enter into programmatic
agreements with EPA, the ACHP, and each federally recognized tribe with lands or
resources that may be affected by state assumption of Section 404 authority so that tribal
cultural resources maintain the equivalent procedural and substantive protection that is
afforded to them under the permitting regime as implemented by the Corps. See Advisory
Council on Historic Preservation Handbook on Consultation with Indian Tribes in the
Section 106 Review Process, § V.A.6. (June 2021)(federal consultation under NHPA
Section 106 may only be delegated to a non-federal party if a tribe agrees in advance and
the federal agency remains responsible for ensuring that the process is carried out
properly).

Agency Response: See Section IV.A.2 of the final rule preamble. Nothing in the CWA
authorizes EPA to require States and Tribes to enter into agreements with the
Advisory Council on Historic Reservation or with Tribes that "may be affected" by
State assumption. See Section IV.F of the final rule preamble for a discussion of ways
that EPA intends to further facilitate Tribal engagement in permitting decisions that
may affect Tribal resources. Where such MO As may be required pursuant to
another law, or would be helpful in addressing various interests and facilitating
coordination, EPA encourages Tribes and States to develop them.

Florida Department of Environmental Protection (FDEP) (EPA-HO-OW-2020-0276-0066-0Q35)
The Proposed Rule does not address consultation with USFWS regarding the Endangered
Species Act ("ESA") consultation process and the incidental take issues that often arise in
the 404 context. Florida supports programmatic approaches to ESA consultation. During
Florida's assumption, EPA designated FDEP as the non-Federal representative for
purposes of engaging in consultation with USFWS under Section 7 of the ESA. FDEP
submitted a biological evaluation to USFWS concerning the impact of Florida's Section
404 Program on federally listed species and critical habitat, and USFWS issued a
biological	opinion	to	accompany	EPA's	determination

concerning Florida's 404 assumption request. The USFWS programmatic biological
opinion ("State 404 BiOp") that covers the EPA's approval of Florida's assumption is the
mechanism by which technical assistance between USFWS and Florida has been
established. The State 404 BiOp's establishment of a technical assistance process between
Florida and USFWS ensures that no state 404 permit will be likely to jeopardize the
continued existence of any listed species or result in the destruction or adverse
modification of critical habitat. This technical assistance process results in a project-level
analysis that allows Florida to request comments and receive input from the USFWS and

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to incorporate protection measures into permits. The USFWS State 404 BiOp includes a
programmatic incidental take statement ("ITS") that exempts any incidental take that
results from the issuance of a state 404 permit from being considered as prohibited take
under section 9 of the ESA. The exemption from Section 9 prohibitions provided by the
ITS covers the permittee as long as the permittee abides by the state 404 permit conditions.

Florida encourages EPA to recognize the right to engage in programmatic consultation
under Section 7 during the Section 404 assumption process and issue regulations or
guidance that outline the process that Florida took and recognize the benefits that a
programmatic approach can have for assumption.

Agency Response: See Section IV.A.2 of the final rule preamble.

Earthiustice et al. (EPA-HO-OW-lOlO-OlTe-OOeS-OOSe^)

XII. EPA should further clarify requirements for a complete application.

We urge EPA to clarify that a state's assumption application may only be deemed complete
when all documents that the state's application references, or on which the state otherwise
relies to demonstrate that its program meets the requirements for assumption, have been
submitted to EPA and made available to the public for comment. In the case of Florida,
EPA deemed the State's submission complete even though Florida: (1) had not adequately
described the waters over which the State would assume authority (using instead the
tautology that the State would assume all waters of the United States not retained); (2) had
not adopted or otherwise demonstrated that it would at all times abide by the governing
definition of waters of the United States under federal law; (3) relied on components of a
"forthcoming" programmatic biological opinion to claim that its program, and permits
issued pursuant to that program, would not jeopardize ESA species or adversely modify
critical habitat.

Agency Response: See Section IV.A.2 of the final rule preamble. Whether Florida's
submission to EPA was complete is outside of the scope of this rulemaking.

Earthiustice et al. (EPA-HO-OW-lOlO-OlTe-OOeS-OOeg^)

- At a minimum, as a condition of approval of a state application to assume Section 404
permitting authority, a state should be required to enter into programmatic agreements with
EPA, the ACHP, and each federally recognized tribe with lands or resources that may be
affected by state assumption of Section 404 authority, so that Tribal cultural resources
maintain the equivalent procedural and substantive protection that is afforded to them
under the permitting regime as implemented by the Corps.

Agency Response: See Section IV.A.2 of the final rule preamble and the Agency's
Response to Comments EPA-HQ-OW-2020-0276-0063-0012.

Earthiustice et al. (EPA-HO-OW-lOlO-OlTe-OOeS-OOTO^)

XVI. EPA should not approve any 404 state assumption application until the conclusion
of this rulemaking, and must ensure existing programs are modified to conform to the final
rules.

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Our research indicates that several states, including Minnesota, Oregon, North Carolina,
Virginia, and Alaska are exploring assumption or actively moving to petition to assume
the 404 program. EPA should make clear to states that it will not consider any request to
assume the Clean Water Act 404 program until after this rulemaking is complete and that
any request to assume must conform to the final rules. EPA must also require that existing
approved programs are revised to conform to the new rules.

In addition, since some of the components of the proposed rule have already been
implemented as to Florida and their legality is currently being challenged in federal court,
EPA should not approve 404 programs until the conclusion of that litigation.

Agency Response: Whether EPA may approve specific Tribal or State 404 program
submissions is outside of the scope of this rulemaking. EPA notes, however, that it
has not approved any programs between the time this comment was submitted and
finalizing this rule.

National Association of Wetland Managers (NAWM) (EPA-HQ-QW-2020-0276-0072-0005)

State and Tribal representatives have also raised concerns about endangered species and
historic resource impact coordination procedures and the need for EPA to assure that the
federal agencies entrusted with these resources are adequately consulted with to assure
their protections and compliance with federal regulations. It is also important that any
selected options for final rule language are supported by data and sound science so that the
physical, chemical, and biological integrity of the nation's waters are protected.

Agency Response: See Section IV.A.2 of the final rule preamble for a discussion of
consultation obligations. The final rule is reasonable and informed by the agency's
experience and available data, and it is intended to further the protection of the
physical, chemical, and biological integrity of the nation's waters. EPA notes that this
rule does not, however, raise scientific or technical issues, e.g., it does not reopen the
CWA section 404(b)(1) Guidelines. Rather, the rule is focused on making the
procedures and substantive requirements for assumption transparent and
straightforward.

National Association of Home Builders (NAHB) (EPA-HQ-QW-2020-0276-0077-0014)

NAHB members within the State of Florida report difficulties and significant delays
getting the U.S. Fish and Wildlife Service (FWS) to complete its required review of
potential impacts of Section 404-related activities on endangered species (i.e., threatened
or endangered species) and/or designated critical habitat under the ESA. The Florida
Department of Environmental Protection's (FDEP's) establishment of permitting
timeframes under its state's wetlands environmental resource permitting (ERP) program
significantly benefits NAHB members as they plan, design, or undertake construction
activities and could be used as a model for other states. Following the CWA Section 404
assumption, FDEP advised all applicants seeking state-issued CWA 404 permits that may
impact endangered species and or designated critical habitat, must sign a waiver
acknowledging ERP permitting deadlines do not apply [Footnote 33: Florida Department
of Environmental Protection State 404 Program Frequently Asked Questions. Available at

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ttps://floridadep.gov/water/submerged-lands-environmental-resources-
coordination/content/state-404-program- frequently.]. FDEP's request for applicants to
sign waivers acknowledging permit deadlines cannot be achieved due to delays incurred
during FWS's review of CWA 404 permit applications. FDEP's experiences with the
CWA 404 assumption process, including required FWS review of pending CWA 404
permits could be informative for other states considering CWA 404 assumption.

Agency Response: EPA acknowledges this comment.

National Association of Home Builders (NAHm (EPA-HO-OW-2020-0276-0077-0Q15N)

Many states with existing state wetlands programs also have statutory deadlines on when
they shall issue a permit. For example, in the State of Ohio for projects under ,5-acre
impact, the Ohio Environmental Protection Agency requires the permit to be issued in
under 30 days; if the project impacts more than 3 acres, they'll issue the permit in 180 days
[Footnote 34: Ohio Environmental Protection Agency. Available at
https://epa.ohio.gov/divisions-and-offices/surface- water/permitting/water-quality -

certification-and-isolated-wetland-permits.]. For states like Ohio with a wetland
permitting program with permitting deadlines, EPA should consider how assumption
would impact these programs and timelines. If EPA's goal is to enable more states to seek
CWA 404 assumption, it must ensure all aspects of the CWA 404 permitting process,
including the ESA's Section 7 consultation process, operate efficiently.

Agency Response: EPA acknowledges the importance of efficient operation of Tribal
and State permitting efforts. EPA would be glad to work with Tribes and States
seeking assumption to help them determine whether and how their existing program
structures and time frames can align with the permitting procedures laid out in the
CWA and implementing regulations. General permits are one useful tool that many
States find helpful to more efficiently issue permits with minimal individual and
cumulative impacts. EPA cannot approve Tribal or State programs that do not
comply with the requirements of the Act and implementing regulations, including
the procedural and substantive requirements of the permitting process.

National Association of Home Builders (NAHm (EPA-HO-OW-2020-0276-0077-00Q5N)

Importantly, the statute and regulations require that if the EPA Administrator determines
a CWA 404(g) assumption request submitted by a state or Tribe has demonstrated the
authority required to administer the CWA 404 permitting program then the EPA
Administrator "shall approve" the state's (or Tribe's) request to transfer CWA 404
permitting program authority [Footnote 13: 33 U.S.C. 1344(h)(3).]. Furthermore, CWA
404(h)(3) states that if the EPA Administrator fails to determine with respect to any
complete CWA 404 program assumption request submitted by a state or Tribe within the
120-day deadline, that state's or Tribe's CWA 404(g) program request shall be deemed
approved [Footnote 14: Ibid.]. Therefore, in addition to clarifying the specific information
and data that must be included in a submittal, it is critically important that the proposed
revisions to the CWA 404 assumption regulations do not create unnecessary new
procedures or requirements that could prevent EPA, states, or Tribes from achieving these
statutorily-established deadlines.

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Agency Response: EPA agrees with the commenter that it lacks authority to approve
Tribal or State programs that do not comply with the requirements of the Act and
implementing regulations, including the procedural and substantive requirements of
the permitting process. Nothing in this rule impedes the implementation of the
statute's requirements.

National Association of Home Builders (NAHm (EPA-HO-OW-2020-0276-0077-00Q9N)

Lastly, any extension or delays will be interpreted as purposefully creating regulatory
confusion and unnecessary delay, thereby discouraging States from taking advantage of
statutory opportunities under Sections 101(b) and 404(g) of the CWA. EPA touts this
proposal as facilitating the process of obtaining program approval. Increasing the approval
timeline will undermine the achievement of this goal.

Agency Response: EPA acknowledges the importance of efficient operation of Tribal
and State permitting efforts, consistent with CWA requirements. Nothing in this rule
impedes the implementation of the statute's requirements for program approval or
operation.

Port Gamble S'Klallam Tribe (PGSTI (EPA-HO-OW-2020-0276-0078-0Q35N)

As discussed above, lack of federal consultation is a major concern for tribes with lands,
waters, and cultural or historic ties within states that seek to assume Section 404 permitting
authority. At a minimum, as a condition of approval of a state application to assume
Section 404 permitting authority, a state should be required to enter into programmatic
agreements with EPA, the ACHP, and each federally recognized tribe with lands or
resources that may be affected by state assumption of Section 404 authority, so that tribal
cultural resources maintain the equivalent procedural and substantive protection that is
afforded to them under the permitting regime as implemented by the Corps. See Advisory
Council on Historic Preservation Handbook on Consultation with Indian Tribes in the
Section 106 Review Process, § V.A.6. (June 2021) (federal consultation under NHPA
Section 106 may only be delegated to a non-federal party if an Indian tribe agrees in
advance and the federal agency remains responsible for ensuring that the process is carried
out properly).

Agency Response: See Section IV.A.2 of the final rule preamble and the Agency's
Response to Comments EPA-HQ-OW-2020-0276-0063-0012.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q45N)

As discussed above, lack of federal consultation is a major concern for Tribes with lands,
waters and cultural or historic ties within states that seek to assume Section 404 permitting
authority. At a minimum, as a condition of approval of a state application to assume
Section 404 permitting authority, a state should be required to enter into programmatic
agreements with EPA, the ACHP, and each federally recognized Tribe with lands or
resources that may be affected by state assumption of Section 404 authority so that Tribal
cultural resources maintain the equivalent procedural and substantive protection that is
afforded to them under the permitting regime as implemented by the Corps. See Advisory
Council on Historic Preservation Handbook on Consultation with Indian Tribes in the
Section 106 Review Process, § V.A.6. (June 2021) (federal consultation under NHPA

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Section 106 may only be delegated to a non-federal party if a Tribe agrees in advance and
the federal agency remains responsible for ensuring that the process is carried out
properly).

Agency Response: See Section IV.A.2 of the final rule preamble and the Agency's
Response to Comments EPA-HQ-OW-2020-0276-0063-0012.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-00Q6N)

EPA must make clear to all states that it will not consider any request to assume the Clean
Water Act 404 program until after this rulemaking is complete and that any request to
assume must conform to the final rule. In addition, since some of the components of the
proposed rule have already been implemented as to Florida and their legality is currently
being challenged in federal court, EPA should not approve 404 programs until the
conclusion of that litigation. While Alaska has actively moved to petition to assume the
404 program, consistent with the requirements of the Clean Water Act and in particular 40
CFR § 233.15, EPA must immediately inform it (and all states) that any assumption must
be on hold until completion of these rule, ensuring that applications meet the requirements
of the Act. This is important for consistency and a level playing field as well as
transparency for all members of the public and affected groups.

Agency Response: Whether EPA may approve a specific Tribal or State 404 program
request is outside of the scope of this rulemaking. However, EPA notes that it has not
approved any programs between the time this comment was submitted and finalizing
this rule.

California State Water Resources Control Board (EPA-HO-OW-2020-0276-TRANS-Q82423-

003-0003")

Comment 3

Will EPA's approval cover only the assumed jurisdiction[?], or will it address the states
whole mitigation process [?] (i.e. does EPA approval require that the state have a single
mitigation process for both federal and non-federal waters[?)]

Agency Response: EPA's approval of the compensatory mitigation component of a
Tribe or State's program submission only addresses the mitigation procedures that
the Tribe or State will implement for discharges into assumed waters. It does not
address procedures for discharges into the Corps-retained waters. That said, EPA
encourages assuming Tribes or States to coordinate with the Corps, to the extent
helpful and appropriate, to maximize efficiencies and meet compensatory mitigation
requirements for impacts to assumed and retained waters.

Florida Wildlife Federation (EPA-HO-QW-2020-0276-TRANS-092923-006-000 n

Regarding threatened and endangered species, EPA must ensure it is adequately consulting
with U.S. Fish and Wildlife Service, and the National Marine Fisheries Service, pursuant
to the Endangered Species Act (ESA) when considering whether to approve a state for a
404-assumption application. In considering a state application, EPA must ensure the

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wildlife agencies rigorously adhere to the ESA by considering the baseline status of
protected species, as well as impacts of assumption on species in their habitats. This is the
only way to ensure that assumption will not jeopardize their survival in recovery of species
in assumed states. If wildlife agencies determine that as a result of assumption species will
likely be injured or killed or habitat will be destroyed or adversely modified, EPA must
ensure that this harm is limited and controlled through incidental take limits in meaningful
terms and conditions at the program level.

Agency Response: See Section IV.A.2 of the final rule preamble.

Natural Resources Defense Council (EPA-HO-OW-2020-0276-TRANS-092923-008-0Q(m

This includes but is not limited to first, the state has an environmental review process
equivalent to the National Environmental Policy Act assessment that the Corps undertakes
when it issues a section 404 permit.

Agency Response: Whether Tribes or States implement a process equivalent to the
National Environmental Policy Act (NEPA) is outside of the scope of CWA section
404. That said, many of the considerations normally addressed in a NEPA analysis
must be considered in the statutorily-required analysis as to whether a draft section
404 permit ensures compliance with the CWA section 404(b)(1) Guidelines. Some
Tribes and States may have their own programs with requirements similar to those
of NEPA.

South Florida Wildlands Association (EPA-HO-OW-2020-0276-TRANS-092923-010-00Q5N)

I talked in general about the acts, but let's look at the Endangered Species Act. Let's look
about the role of the U.S. Fish and Wildlife Service under the federal permitting. So, when
the Army Corps would field an application, they would have to look at the application,
look at the project, and if they saw the potential for injury to a federally listed species they
would be required to consult with the U.S. Fish and Wildlife Service and the Fish and
Wildlife Service would produce a formal, full-blown biological opinion, subject to NEPA,
subject to all kind of federal laws. We've substituted something called technical
consultation from the U.S. Fish and Wildlife Service, who adds that to the state office,
Fish and Wildlife Commission, and submits that to the Florida DEP. None of these
agencies have any experience or expertise in reviewing projects in any way near the
expertise of the scientists of the U.S. Fish and Wildlife Service.

I'm absolutely convinced that had this 404 process not been turned over to the state,
eventually the Fish and Wildlife Service would have been looking at these projects, they
would have produced a biological opinion that found jeopardy, meaning a likelihood of
extinction or likelihood that the panther, or the Florida panther, or another one of our
endangered species, could never recover and claim jeopardy and that would have stopped
the project. And that would have stopped, actually, that would have created a domino
effect, we would have stopped many projects.

Agency Response: See Section IV.A.2 of the final rule preamble. Implementation of
a particular State's section 404 program is outside of the scope of this rulemaking.

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Earthiustice (EPA-HO-OW-2020-0276-0068-SD-3-0Q13N)

- EPA Rules Should Ensure Protection of Designated Uses of Waters Under Treaty
Reserved Rights
Fourth, in recent proposed rules, https://www.govinfo.gov/content/pkg/FR-2022-12-
05/pdf/2022-26240.pdf, EPA has clarified and standardized the longstanding obligation of
EPA (and states) to consider the impact on tribal interests and treaty-reserved uses of
waters when reviewing a state's water quality standards. EPA's rules here should similarly
ensure that those reserved rights and interests are properly considered when determining
whether a state's program is adequate for the protection of those rights. In determining
whether a state meets the requirements for assumption, EPA has an obligation to determine
whether the state program meets the requirements of the Clean Water Act and that includes
protecting designated uses of water. Designated uses must include treaty-reserved uses and
tribal interests. Further, under that requirement it is appropriate for EPA to require review
of every permit that may affect those rights.

Agency Response: See Section IV.F of the final rule preamble. In approving Tribal
or State programs, EPA must ensure that the programs have the authority to issue
permits that comply with the 404(b)(1) Guidelines. The 404(b)(1) Guidelines, in turn,
must ensure protection of designated uses. See 40 CFR 230.10.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-3-0Q18N)

EPA Must Ensure Complete Applications

Finally, while it shouldn't need to be said, EPA's rules must make abundantly clear that
each one of these and all the rules' requirements must be included, in full, in a state's
application before EPA deems that application complete. There can be no room for
"conditional" completion or pro forma complete application that triggers the timeline for
EPA decisions on applications. Applications must be fully complete, with all information
necessary to EPA's decision under the law, in compliance with all the rules—not just some
completed "form"— before EPA can deem the application complete and ready for EPA
consideration.

Agency Response: EPA agrees that it must only review complete program
submissions, consistent with 40 CFR 233.15(a).

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-3-00Q9N)

- Stay of 404 Program Assumptions By States Until Conclusion of Rulemaking
First and foremost, EPA must make clear to states that it will not consider any request to
assume 404 permitting until after this rulemaking is complete and that any request to
assume must conform to the rules. Our latest research indicated that some states, for
example Minnesota, Oregon, North Carolina, and Alaska, are "exploring" assumption or
actively moving to petition to assume 404 permitting. EPA must immediately inform them
(and all states) that any assumption must be on hold until completion of rules. This is
important for consistency and a level playing field as well as transparency for all citizens
and interested groups.

Agency Response: Whether EPA may approve specific Tribal or State 404 programs
is outside of the scope of this rulemaking. However, EPA notes that it has not

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approved any programs between the time this comment was submitted and finalizing
this rule.

Earthiustice(EPA-HO-OW-2020-0276-0068-SD-4-000n

We are writing to express increasing concern from environmental advocates and tribes
across the country about state efforts to take over Section 404 Clean Water Act permitting.
Our concerns fall into two significant categories:

(1) that EPA has not developed robust guidance and/or rules regarding requirements for
and measures of comparability as required by the Clean Water Act in order to approve a
state's assumption of 404 permitting; and

(2) that state assumption has an extremely adverse impact on tribes due to the resulting
abdication of the federal government's trust responsibility to tribes. When states issue
permits for projects impacting tribal lands, waters or resources, there is no requirement for
government-to-government consultation, making it highly likely that the lands, waters, and
ways of life of tribes and tribal communities, will suffer irreparable harms. This is contrary
to the current administration's commitment to environmental justice and support of tribal
communities.

Based upon these important considerations, we ask that EPA take a step back to ensure
that it is not harming the environment or tribes in an ill-conceived rush to have states
assume 404 permitting. Below we briefly detail some of the concerns we have, and would
be happy to further discuss them.

Agency Response: EPA acknowledges these concerns. This rulemaking is intended to
clarify requirements for Tribal and State assumption of the section 404 program,
both to facilitate the assumption process and to ensure that Tribal and State program
approval and operation is administered consistent with the requirements of the CWA
and these regulations. EPA has included and clarified various measures in this
rulemaking to ensure Tribal participation in the permitting process. See Section IV.F
of the final rule preamble.

C. Subpart D - Program Operation

1. Five-year permits and long-term projects

Maryland Department of the Environment (MDE) (EPA-HQ-OW-2020-0276-0061 -0002)
2) Entire and Complete Projects

Section 233.30 (a) discusses review of projects which may take more than 5 years to
complete. A new permit would be required for any part of the project that will not be
completed within any 5-year period, including all subsequent phases. MDE recommends
that additional language be included in Section 330.30 (b) clarifying that sufficient
information related to planned impacts for future phases included in the initial
application. It is important to reinforce the need to review an entire and complete project

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to not limit avoidance and minimization opportunities of later phases of the project due
to the authorized impacts in the initial phase conducted during the first 5-year permit
cycle. All cumulative impacts to regulated resources should be considered as early as
possible.

Agency Response: See Section IV.C.l of the final rule preamble.

Yukon River Inter-Tribal Watershed Council (EPA-HO-OW-2020-0276-0063-0Q4n

YRITWC agrees that the initial review of proposed projects should encompass the
entirety of the project. EPA's proposed approach to require an applicant submit a
404(b)(1) analysis for the entirety of the project as part of the first five-year permit
review period is appropriate to see and analyze the impacts of the project over its
lifespan. EPA's proposal also allows for the 404(b)(1) analysis to be updated at the
request of an assuming state agency, but EPA should instead require the 404(b)(1)
analysis to be automatically updated for every five-year permit cycle. Id. at 55303.
Projects may change as they move forward and even small changes may have an impact
on tribal rights and resources. EPA should also require states to provide written
explanation in the event the state does not require an updated 404(b)(1) analysis.

Agency Response: See Section IV.C.l of the final rule preamble.

Florida Department of Environmental Protection (FDEP) (EPA-HO-OW-2020-0276-0066-0Q21)
EPA is proposing to add some guidance for what is required in permit applications that
are expected to take more than five years. The CWA does provide that state-issued
permits may not exceed five years [Footnote 20: 33 U.S.C. § 1344(h) ("state has the
following authority with respect to the issuance of permits pursuant to such program: to
issue permits which.. .are for fixed terms not exceeding five years")]. However, the
Proposed Rule offers some revisions that would make "the permit application process for
permits after the initial five-year permit application [] easier and simpler." [Footnote 21:
88 Fed. Reg. 55,302], Although projects that expect to exceed five years will still need to
obtain a new permit every five years, EPA is proposing that the application for the first
five-year permit should include an analysis covering the full term of the project—this in
turn would allow each subsequent permit application to use the same analysis, unless
there has been a significant change in circumstances. Although EPA is clear that this
"does not constitute pre-approval of subsequent five-year permits for the project," it will
streamline the process for approval. Florida appreciates EPA's efforts to allow the first
five-year permit to streamline longer term coverage.

Agency Response: See Section IV.C.l of the final rule preamble. The requirement
to update the 404(b)(1) analysis for subsequent five-year permits applies if there
has been any change in circumstance related to an authorized activity. The rule also
requires a written explanation if the Tribe or State does not require an update to
the 404(b)(1) analysis.

Alaska Miners Association (AMA) (EPA-HO-OW-2020-0276-0067-00Q3N)

The provision introduced regarding a five-year permit threshold should be removed.
Project proposals like mines generally have a permit timeline of five years so that the

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mine can continuously be evaluated and practices changed for best management and
performance. The requirement to do analysis for longer than five years is actually to the
detriment of the environment, and should be discouraged. In addition, it brings risk of
litigation to permit decisions.

Agency Response: See Section IV.C.l of the final rule preamble. EPA disagrees
with the comment. Nothing in the rule approach affects the statutory limit of five
years for Tribal or State 404 permits. As a result, long-term projects like mines will
continue to receive a thorough review every five years. Requiring an applicant to
submit a 404(b)(1) analysis for the entirety of the project as part of the first five-
year permit review period and update that analysis for subsequent five-year
permits if there has been a change in circumstances related to an authorized
activity is consistent with the Act and benefits the environment by ensuring that the
scope of impacts associated with a complete project is factored into the permitting
decision for each five-year permit. The requirement that a Tribe or State provide a
detailed written explanation in the record of decision for the permit if they do not
require an update to the 404(b)(1) analysis promotes transparency and reasoned
decision-making which should reduce the risk of litigation involving permitting
decisions.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q45N)

VIII. EPA must improve its proposal for permitting projects that would require more
than five years to complete.

Conservation Groups agree that the first five-year permit of proposed projects should
encompass the entirety of the project, not just the activities taking place in the initial
five-year period. EPA's proposed approach to require an applicant to submit a Section
404(b)(1) analysis for the entirety of the project as part of the first five-year permit
review period is appropriate to see and analyze the impacts of the project over its
lifespan.

EPA's proposal also allows for the Section 404(b)(1) analysis to be updated at the
request of an assuming state agency, but EPA should instead require the Section
404(b)(1) analysis to be automatically updated at least every five-year permit cycle. Id. at
55,303. Projects may change as they move forward, and even small changes may have an
impact on Tribal rights and resources. Immediate permit modification should be required
where those changes would affect the overall impacts of the long-term project.

EPA should also emphasize the need for adequate public outreach for long-term
permitting decisions because it will likely be difficult to raise concerns about the entire
project at later permitting stages.

Agency Response: See Section IV.C.l of the final rule preamble. EPA believes the
proposed "immediate permit modification" requirement is unnecessary since a
Tribal or State 404 permit may be challenged at any time if the applicant exceeds
the impacts authorized under the permit. The commenter also emphasized the need

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for adequate public outreach for long-term permitting decisions because it will
likely be difficult to raise concerns about the entire project at later permitting
stages. EPA believes the final rule approach, which requires an applicant to submit
a 404(b)(1) analysis for the entirety of the project as part of the first five-year
permit application and requires that permit applications and public notices for
subsequent five-year permits indicate whether the 404(b)(1) analysis has been
updated, ensures the public has adequate information to evaluate long-term
projects at all permitting stages.

State of Michigan. Michigan Department of Environment Great Lakes, and Energy (EGLE).

Water Resources Division (EPA-HO-OW-2020-0276-0071-0003)

The proposed rule language on demonstrating how a state program's permit review
criteria will be sufficient to carry out federal requirements, as well as the proposed
language on what is required for long-term projects, is supported by the WRD.

Agency Response: See Section IV.C.l of the final rule preamble.

National Association of Wetland Managers (NAWM) (EPA-HO-QW-2020-0276-0072-0016)
1. Five-Year Permits and Long-term Projects

Establishing procedures for the permitting of long-term projects is helpful for the
analysis of total project impacts, development of alternatives to avoid aquatic resources,
and to inform the public and neighboring jurisdictions on total project plan proposals. It
is important though to review and update these analyses during each 5-year permit cycle
to ensure that conditions and project needs have not changed. While this proposal is
informative, it should not be considered "once and done" nor should the authorized
program minimize its review standards. Each subsequent permit application and analysis
needs to be reviewed to assure that all opportunities for avoidance and minimization are
employed and not limited by the initial project review. It is important that in EPA's
oversight role they review and respond accordingly to long-term projects and permit
review to assure compliance with the 404(b)(1) Guidelines.

Agency Response: See Section IV.C.l of the final rule preamble. EPA agrees with
the commenter and will carefully review long-term projects for compliance with the
404(b)(1) Guidelines as part of the initial five-year permit application and for all
subsequent five-year permit applications.

Nebraska Department of Environment and Energy (EPA-HO-OW-2020-0276-0073-00Q7)

The proposed rules allows for long term projects to submit an analysis showing how the
entire project will comply with the 404(b)(1) guidelines during the first 5-year permit.
This is intended to streamline the permitting process for the second 5-year permit. EPA
is proposing applicants apply for the second 5-year permit at least 180 days prior to the
expiration of the current permit.

• This will streamline the permitting process to allow for continued construction
and timely completion of the project while also planning for all necessary controls
and mitigation of unavoidable impacts.

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Agency Response: See Section IV.C.l of the final rule preamble.

Port Gamble S'Klallam Tribe (PGSTI (EPA-HO-OW-2020-0276-0078-0Q32N)

The Port Gamble S'Klallam Tribe agrees that the initial review of proposed projects
should encompass the entirety of the project. EPA's proposed approach to require an
applicant submit a Section 404(b)(1) analysis for the entirety of the project as part of the
first five-year permit review period is appropriate to see and analyze the impacts of the
project over its lifespan. EPA's proposal also allows for the Section 404(b)(1) analysis to
be updated at the request of an assuming state agency, but EPA should instead require
the Section 404(b)(1) analysis to be automatically updated for every five-year permit
cycle. Id. at 55303. Projects may change as they move forward and even small changes
may have an impact on tribal rights and resources. EPA should also require states to
provide written explanation in the event the state does not require an updated Section
404(b)(1) analysis.

Agency Response: See Section IV.C.l of the final rule preamble.

State of Alaska Department of Environmental Conservation (EPA-HQ-QW-2020-0276-0079-

oom

The Proposed Rule acknowledges that Congress limited 404 permit terms to five years.
EPA, however, is concerned that "if applicants with long-term projects only submit
information about activities that will occur during one five-year period of their project in
their permit application, the permitting agency and members of the public will not have
sufficient information to assess the scope of the entire project." To address its concern,
EPA is proposing that permit applicants for projects whose lifespan is expected to exceed
5 years must "include an analysis demonstrating that each element of the 404(b)(1)
Guidelines is met... for the full term of the project." [Footnote 29: 88 Fed. Reg. 55326.]
This requirement would apply to assumed programs only, creating another disparity
between Corps-issued 404 permits and State-issued 404 permits. EPA indicates that this
new requirement will improve environmental protection and will "provid[e] the applicant
with more regulatory certainty" because it will "ensure consistency in permitting
decision associated with the project." [Footnote 30: 88 Fed. Reg. 55303.].

This proposed requirement would hinder, if not halt entirely, assumption efforts. As a
practical and political matter, placing more requirements on permit applications under a
state- assumed program, as compared to a Corps-run program, is likely to generate strong
public opposition from industry. Without industry support - crucial for many States - a
State is unlikely to generate the momentum necessary to make the requisite legislative
changes and obtain funding.

Agency Response: See Section IV.C.l of the final rule preamble.

State of Alaska Department of Environmental Conservation (EPA-HO-OW-2020-0276-0Q79-

0012)

This new requirement suffers from legal infirmities as well. First, EPA is not free to
substitute its judgement for Congress, who imposed permit terms of 5 years. Requiring
permittees to demonstrate compliance with the 404(b)(1) Guidelines for the lifespan of

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the project is inconsistent with Congress's requirement that permits be limited to 5 years.
Second, this requirement would make State programs more stringent than the federal
program. While States may choose to make State programs more stringent than the
federal program, EPA may not force that choice. EPA's suggestion that this proposed
requirement improves regulatory certainty, and therefore is a helpful addition, disregards
reality. Alaska recommends deleting this new provision.

Agency Response: See Section IV.C.l of the final rule preamble.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q38N)

Chickaloon Native Village agrees that the initial review of proposed projects should
encompass the entirety of the project. EPA's proposed approach to require an applicant
submit a 404(b)(1) analysis for the entirety of the project as part of the first five- year
permit review period is appropriate to see and analyze the impacts of the project over its
lifespan. EPA's proposal also allows for the 404(b)(1) analysis to be updated at the
request of an assuming state agency, but EPA should instead require the 404(b)(1)
analysis to be automatically updated for every five-year permit cycle. Id. at 55303.
Projects may change as they move forward and even small changes may have an impact
on Tribal rights and resources. EPA should also require states to provide written
explanation in the event the state does not require an updated 404(b)(1) analysis.

Agency Response: See Section IV.C.l of the final rule preamble.

2. Judicial review and rights of appeal

Alaska Mining Impacts Network (EPA-HO-OW-2020-0276-0045-00Q4)

EPA must ensure that the public has equal access to courts. The EPA acknowledges in its
proposed rule that the public can be discouraged from bringing environmental lawsuits in
state courts due to the potential for high litigation fees. Even though the EPA plans to
reject state programs with mandatory fee shifting, it should do more to guarantee that fee
shifting in assumed states only occurs within the narrow boundaries permitted by federal
law. In Alaska, the lack of a public interest litigant exception to the state's fee- shifting
provision chills concerned citizens from bringing their concerns before the courts. We
see this in the assumed 402 program currently, and if the state were to assume the 404
program, the same chilling effect would happen.

Agency Response: See Section IV.C.2 of the final rule preamble. EPA appreciates
the commenters' concern about potential chilling effects of fee shifting
requirements. EPA will evaluate State judicial review provisions and
commensurate Tribal provisions as part of program submissions on a case-by-case
basis to determine whether they provide for judicial review of Tribal- or State-
issued permits or permit denials that is sufficient to provide for, encourage, and
assist public participation in the permitting process. States and Tribes with
expansive judicial review opportunities, such as those that allow standing to
challenge permits on the part of interested citizens and citizen groups, and that do
not require parties who lose lawsuits brought in good faith to pay other parties'
legal fees, should meet the regulatory judicial review requirement.

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Individual commenter (EPA-HO-OW-2020-0276-0050-00Q9N)

The judicial review and appeal rule should apply to Tribes that have judicial systems
analogous to State judicial systems. This would be difficult to enforce because it would
be on a case-by-case basis, but I believe it important for Tribes to be treated as the
sovereign groups that they are.

Agency Response: See Section IV.C.2 of the final rule preamble.

The Petroleum Alliance of Oklahoma (EPA-HQ-QW-2020-0276-0055-0014)

IV. EPA IS PROPOSING NO REQUIREMENT FOR JUDICIAL REVIEW OF A
TRIBAL PERMIT DECISION

On the one hand, "EPA proposes to clarify that States seeking to assume the section 404
program must provide for judicial review of decisions to approve or deny permits. 88
Fed. Reg. at 55298. The agency's focus on judicial review of state decisions is so
detailed that the agency even seeks comment on state standards for associational
standing.

Yet on the other hand, "EPA is not proposing that this [judicial review] requirement
apply to Tribes." 88 Fed. Reg. at 55300. EPA went farther and stated that it does not
intend to restrict "qualified Tribes to a single judicial option that may not fit existing
Tribal governmental structures." Id. at 55301 [Footnote 14: It is not enough for EPA to
assert it has taken the same approach in other regulatory contexts. Those regulatory
programs may well suffer from the same defects as the instant regulation.]. Therefore,
EPA resorted to requiring "some appropriate form of citizen recourse for applicants ...
affected by Tribe-issued permits would be needed to ensure meaningful public
participation in the permitting process." Id. EPA closed by stating that it encourages
tribes and states to "establish an administrative process for the review and appeal of
permit decisions...." Id.

The Alliance understands EPA's conundrum here. We assume EPA is reluctant to ask,
much less require that Tribes waive their sovereign immunity in exchange for
assumption of the section 404 program. Yet the agency is unable to identify an equally
effective alternative, or any alternative for that matter. EPA does not specify any form of
recourse available to a disappointed permittee, or any other affected person. The agency
is left to "encourage" establishment of administrative remedies yet is silent on judicial
review. It is more than conceivable that a non- Indian permittee would be left with no
recourse if a Tribe asserts sovereign immunity in tribal, state, and federal Court. That
leaves citizens with no recourse but to seek to elide sovereign immunity [Footnote 15:
See Lustre Oil. Co. LLC v. Anadarko Minerals, Inc., 2023 MT 62 (223).] or raise
Constitutional objections to the preclusion of judicial review. (Providing some form of
administrative review, even if available, does not suffice if the tribe does not permit
judicial review.)

The absence of real and meaningful judicial review of a state or tribe's final decision
raises serious Constitutional due process and equal protection concerns that could be
fatal to the entire program. It may be that these issues will not be raised and adjudicated

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until a permittee challenges a specific permit denial, but it is unlikely this issue will
avoid litigation forever. EPA should resolve this issue before finalizing its rules for
assumption of section 404 authority.

Agency Response: See Section IV.C.2 of the final rule preamble.

The Petroleum Alliance of Oklahoma (EPA-HO-OW-2020-0276-0055-00Q2N)

It also is important to note that in excluding tribes from the requirement that entities
seeking to assume administration of the section 404 program must provide access to
judicial review, the proposed rule could leave regulated entities with no recourse at any
level for judicial review. This raises fundamental Constitutional issues.

Agency Response: See Section IV.C.2 of the final rule preamble.

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0035)

The EPA correctly acknowledges that particular state processes or other state
requirements may be impediments to judicial review of state-issued Section 404 permits.
Accordingly, EPA must keep the requirement for judicial review, equivalent to federal
judicial review, in the regulatory text. In addition, EPA should further elaborate on the
restriction against the imposition of attorneys' fees. The preamble identifies "State
requirements that provide for the losing party in a challenge to pay all attorneys' fees,
regardless of the merit of their position, is an unacceptable impingement on the
accessibility of judicial review." Id. at 55298. The language of the proposed regulation
states that a state will not meet EPA's standard "if it requires the imposition of attorneys'
fees against the losing party, notwithstanding the merit of the litigant's position."
Although the language appears to be clear on the imposition of attorneys' fees, EPA
must go further and clarify that this prohibition includes the imposition of any attorneys'
fees, including partial fees. Any state program that imposes even partial fees must be
barred from assuming a 404 program by EPA. This issue is of particular concern in
Alaska,which has a loser-pays rule, whereby litigants who lose in civil cases may be
required to pay a percentage of the attorney's fees for the prevailing party. Alaska Civil
Rule 82. This loser-pays requirement has the affect of significantly limiting judicial
review, especially for clients with limited financial resources, which includes many small
tribes.

Agency Response: See Section IV.C.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0045-0004.

Yukon River Inter-Tribal Watershed Council (EPA-HO-OW-2020-0276-0063-0Q36)

EPA should ensure that states cannot make it more difficult to obtain judicial review of
Section 404 permits. For example, EPA should explicitly limit any state requirements for
administrative exhaustion to the same reasonable efforts that are required under federal
law prior to or as part of judicial review of state-issued section 404 permits. Without this
explicit regulation, states may include administrative exhaustion requirements that are
unduly burdensome and cost-prohibitive such that the public and tribes may not be able
to successfully challenge the permit. Federally issued Section 404 permits are challenged
under the Administrative Procedure Act. 88 Fed. Reg. at 55300. This process, based on

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an administrative record, allows for broad public and tribal participation. And although
any litigation is costly, review under the APA is not as costly as producing a full
evidentiary hearing before an administrative agency. EPA should explicitly limit
burdensome administrative exhaustion requirements in the final rule. This will ensure
that members of the public and tribes do not have to pay exorbitant costs before they are
afforded the opportunity for judicial review. Extensive administrative review processes
that are substantially different from federal judicial review and are more costly can stifle
public participation ("When citizens lack the opportunity to challenge executive agency
decisions in court, their ability to influence permitting decisions through other required
elements of public participation, such as public comments and public hearings on
proposed permits, may be compromised. Citizens may perceive that a State
administrative agency is not addressing their concerns about section 404 permits because
the citizens have no recourse to an impartial judiciary, which would have a chilling effect
on all the remaining form of public participation in the permitting process.") Id. at
55299.

Agency Response: See Section IV.C.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0045-0004.

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0037)

Quite simply, state judicial review provisions must not be more burdensome on
challengers to state-issued permits than what would be required under federal law. This
provision does not require EPA to impose a specific administrative review procedure, but
instead allows states to continue with state review, as long as they defer to federal
requirements on standing and administrative exhaustion. Limiting state administrative
appeals processes for permitting decisions is consistent with ensuring the public has
access to judicial review. EPA should make clear in the final rule that administrative
exhaustion requirements under state laws may be no more burdensome than challenges to
federally issued section 404 permits. EPA should also make clear that exhaustion
requirements or other burdens to judicial access will result in an automatic denial of a
state application to assume Section 404 permitting.

Agency Response: See Section IV.C.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0045-0004.

Yukon River Inter-Tribal Watershed Council (EPA-HO-OW-2020-0276-0063-0Q38)

EPA should also consider adding a requirement that the same standard of review for
federal permits should apply to state judicial review of state-issued 404 permits. This
ensures that the public and tribes can participate in permit challenges without having to
put on affirmative evidence, which can be costly. EPA should also explicitly include that
standing for judicial review should mirror that of federal review and should not be
unduly limited. All of the above proposals will ensure that the public can participate in
the judicial review process for state-issued permits without substantial burdens that
would not exist in federal judicial review.

Agency Response: See Section IV.C.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0045-0004.

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Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0039)

EPA should also include in the final rule the actions that EPA can and will take in the
event states violate the judicial review provision. At minimum, if a state is violating
judicial review requirements, EPA must immediately suspend the state permitting
program and pending permits. This ensures that applicants or agencies are not
circumventing the requirements of the CWA by processing permits that cannot be
reviewed by an impartial judiciary. If a state comes into compliance with judicial review
requirements, then it can resume processing permits.

Agency Response: See Section IV.C.2 of the final rule preamble. In the event Tribes
or States do not comply with the requirements of the CWA or this rule, EPA may
exercise oversight, and ultimately may initiate program withdrawal.

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0040)

EPA must also provide an avenue for judicial review in Federal District Court in certain
circumstances. At a minimum, Federal District Court review should be available for
tribes with rights and resources that may be impacted by a state-issued permit. EPA's
proposed rule assumes that states will comply with the Section 404(b)(1) Guidelines and
"EPA notes that complying with the CWA 404(b)(1) Guidelines currently provides an
opportunity for States to consider potential impacts of proposed section 404 permits on
aquatic resources and uses important to Tribes." Id at 55298-97. However, state courts,
and state administrative agencies in particular, are not appropriate entities to determine
the scope of tribal rights or resources. If YRITWC disagrees with a state analysis of how
the proposed permit will impact tribal rights and resources, we should be able to
challenge that finding in federal court. These are federal questions and EPA should
include a provision explicitly recognizing that judicial review in Federal District Court is
available where federally protected tribal rights and resources are at stake.

Agency Response: The question as to which court may exercise jurisdiction over
challenges to Tribal or State permitting actions is outside the scope of this
rulemaking. Generally speaking, Tribal or State permits are issued under Tribal or
State law and thus subject to the jurisdiction of the Tribe or State as appropriate.
See H.R. Rep. No. 95-830 at 104 (1977) ("The conferees wish to emphasize that such
a State program is one which is established under State law and which functions in
lieu of the Federal program"). See Chesapeake Bay Foundation v. Va. State Water
Control Bd., 453 F. Supp. 122 (E.D. Va 1978) (no NEPA review required for NPDES
permit issued by State because the State permit is not a federal action)."

Florida Department of Environmental Protection (FDEP) (EPA-HO-OW-2020-0276-0066-0Q24)
In the name of public participation, EPA is proposing to require all States to meet
specific standards for judicial review, standing, and granting of attorney's fees. EPA's
proposal to mandate that States have procedural measures that are identical to federal
civil procedure is unnecessary and oversteps what is required under the CWA. EPA
should evaluate each State on a case-by-case basis, taking the existing state-specific
processes into consideration.

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Agency Response: See Section IV.C.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0045-0004.

Florida Department of Environmental Protection (FDEP) (EPA-HQ-QW-2020-0276-0066-0025)
EPA proposes to require all States to meet specific standards for judicial review and
standing for state 404 assumption. The current regulations simply require a State to
provide a description of its judicial review procedure, but do not set a defined threshold
or require a State's judicial review process to mirror the federal process. The Proposed
Rule would require a State to have a judicial review process "that is the same as that
available to obtain judicial review in Federal court of a Federally-issued NPDES
permit."[Footnote 25: 88 Fed. Reg. 55,315], Florida urges EPA to defer to state
approaches so long as they are consistent with the requirements of the CWA. In other
words, as long as a State's program is as protective as the federal program, additional
requirements pertaining to state judicial review procedures should not be mandated.
Florida is concerned that EPA's proposal attempts to apply a one-size-fits-all approach
for judicial review processes that is not necessary under CWA Section 404.

Agency Response: See Section IV.C.2 of the final rule preamble.

Florida Department of Environmental Protection (FDEP) (EPA-HQ-QW-2020-0276-0066-0026)
To be clear, the Florida 404 program incorporates extensive public participation in the
permitting and judicial review process, with mechanisms for public comment,
administrative hearings, and judicial appeals. Florida law gives many opportunities for
public engagement throughout the permitting process as well as ample opportunities to
bring permit challenges under the Florida APA (Fla. Stat. Ch. 120) and the Florida
Environmental Protection Act (Fla. Stat.§ 403.412). In fact, just as the public has a right
to broader information under Florida's Sunshine laws, Florida administrative law also
gives them greater opportunities to use that information to advance their interests in
permit challenges. Consistent with the federal process, interested persons may submit
any information that they would like during the public notice and comment process. See
Fla. Admin. Code § 62-331.060 (describing public notice and comment procedures).
However, Florida administrative law also provides for a de novo permit hearing before a
Florida 404 permit becomes effective, which provides affected parties with an additional
opportunity to obtain and submit even more information (including via depositions and
interrogatories) and to ensure consideration of that additional information in the hearing
record. See Fla. Stat. § 120.57(l)(b).

During the pendency of the administrative hearing process, FDEP's issuance of a permit
is not final agency action (meaning that the permit is automatically stayed pending
resolution of the administrative challenge). The "administrative hearing process is
designed to formulate agency action" so FDEP's "final action may be different from the
proposed agency action and may result in the issuance of a permit as requested by the
applicant or as modified in the course of the [administrative] proceeding or by
settlement." Fla. Admin. Code § 62-110.106(7)(e)(2). Moreover, FDEP's initial
determination receives no deference and all of the parties to the administrative
proceeding have the "opportunity to respond, to present evidence and argument on all
issues involved, [and] to conduct cross-examination and submit rebuttal evidence. . . ."

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Id.§ 120.57(l)(b); see, e.g., Hamilton Cnty. Bd. of Cnty. Comm'rs v. Fla. Dep't of Envt'l
Regulation, 587 So.2d 1378, 1387-88 (Fla. IstDCA 1991). In other words, these de
novo administrative proceedings are designed to give aggrieved "parties an opportunity
to change the agency's mind." Capeletti Bros. v. Dep't of Gen. Servs., 432 So.2d 1359,
1363 (Fla. IstDCA 1983).

If the administrative process described above results in a final order issuing the permit,
Florida law provides for a right to seek judicial review. See Fla. Stat. § 120.68. [Footnote
26: Under Florida law, any person "substantially affected" by an FDEP rule or proposed
rule may seek an administrative determination that the rule is invalid. See Fla. Stat. §
120.56(l)(a); § 120.569(1). Florida courts have interpreted Chapter 120 liberally to
achieve the statutory purpose of increasing public participation in agency decisions.
NAACP, Inc. v. Fla. Bd. of Regents, 863 So. 2d 294, 298 (Fla. 2003); Palm Beach Cnty.
Envt'l Coal. v. Fla. Dep't of Envt'l Prot., 14 So.3d 1076 (Fla. 4th DCA 2009). This
includes the opportunity to challenge the validity of an existing rule "at any time during
which the rule is in effect." Fla. Stat. § 120.56(3).] The "reviewing court's decision may
be mandatory, prohibitory, or declaratory in form, and it shall provide whatever relief is
appropriate irrespective of the original form of the petition." Fla. Stat. § 120.68(6)(a).
Florida courts may, among other things, "[o]rder agency action required by law; order
agency exercise of discretion when required by law; set aside agency action; remand the
case for further agency proceedings; or decide the rights, privileges, obligations,
requirements, or procedures at issue between the parties; and [ojrder such ancillary relief
as the court finds necessary to redress the effects of official action wrongfully taken or
withheld." Id. Under Florida law, unlike federal law, agencies do not receive any
deference to their interpretations. FLA. CONST. Art. V, § 21 ("In interpreting a state
statute or rule, a state court or an officer hearing an administrative action pursuant to
general law may not defer to an administrative agency's interpretation of such statute or
rule and must instead interpret such statute or rule de novo.").

Florida's robust process serves as an example why EPA should not dictate how States
must handle judicial review as a regulatory threshold requirement. States with various
judicial review mechanisms may be unable or discouraged from pursuing 404
assumption, even where they could "provide for, encourage, and assist public
participation in the permitting process" in other, more efficient, and effective ways.
Moreover, in light of the cooperative federalism framework of the CWA and other
overriding constitutional federalism concerns, EPA should avoid intruding into areas of
state control including state judicial review processes.

Agency Response: See Section IV.C.2 of the final rule preamble.

Florida Department of Environmental Protection (FDEP) (EPA-HQ-QW-2020-0276-0066-0027)
EPA also proposes to amend Section 233.24 that "state requirements that provide for the
losing party in a challenge to all attorneys' fees, regardless of the merit of their position,
are an unacceptable impingement on the accessibility of judicial review."[Footnote 27:
88 Fed Reg. 55,326.]. EPA argues that awarding attorney's fees following litigation
"does not 'provide for, encourage, and assist' public participation in the permitting

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process" and therefore a State may not apply this type of provision during its
implementation of the 404 program.

Florida strongly disagrees with this proposed change. There is simply no basis in law for
imposing such a requirement on States, nor should EPA intrude into an issue that is so
obviously within the sovereign purview of States to manage their state judicial
procedures. This is especially true given the total lack of any record evidence showing
that these provisions are currently being used in inappropriate ways. Likewise, the
addition of this language adds additional barriers to state assumption, which are
unnecessary under the CWA. EPA has not provided a sufficient rationale to justify
imposing this requirement. Before EPA imposes a blanket requirement based on a
hypothetical concern about a broad statute, it should determine that there is a track record
of States using this kind of authority against permit challengers in ways that are
inconsistent with the CWA. As discussed in section L above, EPA should defer to state
approaches so long as they are consistent with the specific requirements of the CWA.

Agency Response: See Section IV.C.2 of the final rule preamble.

Florida Department of Environmental Protection (FDEP) (EPA-HQ-QW-2020-0276-0066-0007)
Florida also disagrees with EPA's proposed provisions requiring States to adopt federal
standards of civil judicial review and attorney's fees provisions that are clearly areas of
state sovereign control and beyond the scope of EPA's proper purview.

Agency Response: See Section IV.C.2 of the final rule preamble.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q39N)

VII. EPA's proposed rule must do more to ensure adequate access to courts.

As EPA's proposal recognizes and explains, ensuring access to state courts and tribunals
is necessary to "provide for, encourage, and assist public participation in the permitting
process." 88 Fed. Reg. at 55,326, 55,300. Specifically, "ensuring that States provide an
opportunity for judicial review that is the same as that available to obtain judicial review
in Federal court" is critical. Id. at 55,299 (emphasis added). State judicial review
provisions must not be more burdensome on challengers to state-issued permits than
what is required under federal law.

Agency Response: See Section IV.C.2 of the final rule preamble.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-004QN)

A. EPA must strengthen the rule's prohibition against fee shifting.

All plaintiffs should have sufficient access to court to enforce the Clean Water Act—
from indigent individuals to Tribes, nonprofit organizations, and government bodies of
all sizes and means. EPA's proposal improves the judicial review language used in the
1996 Clean Water Act Section 402 National Pollutant Discharge Elimination System
state program regulations by acknowledging that states' fee shifting requirements can
unacceptably impinge on access to judicial review. See 88 Fed. Reg. at 55,326, 55,300.

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However, the proposed rule does not go far enough to ensure that any assuming states
appropriately provide for, encourage, and assist public participation in the permitting
process. EPA should not permit assumption by any states that provide for mandatory or
discretionary fee shifting in any amount against losing plaintiffs except in extraordinary
circumstances.

In federal court lawsuits brought under the Clean Water Act and similar federal statutes,
fee shifting against a losing plaintiff is both discretionary and limited to a narrow set of
circumstances related to abuse of the judicial process. In these kinds of cases, courts may
award attorney's fees to the prevailing defendant only if "a court finds that [the losing
plaintiffs] claim was frivolous, unreasonable, [] groundless," or was made in bad faith.
Christiansburg Garment Co. v. Equal Emp. Opportunity Comm'n, 434 U.S. 412, 422
(1978); see also Akiak Native Cmty. v. U.S. E.P.A., 625 F.3d 1162, 1166-67 (9th Cir.
2010) (noting the Christiansburg standard applies to the fee shifting provision in the
Clean Water Act) (citing Saint John's Organic Farm v. Gem County Mosquito
Abatement Dist., 574 F.3d 1054, 1063-64, n. 1 (9th Cir. 2009)). This is appropriate
because in such cases, 1) the plaintiff is the instrument Congress chose to vindicate an
important right conferred by federal statute, and 2) when a prevailing plaintiff is awarded
attorney's fees, the award is against a party that violated federal law, (while the same is
not true, for example, for a prevailing defendant.) Christiansburg Garment Co., 434 U.S.
at 422. "To take the further step of assessing attorney's fees against plaintiffs simply
because they do not finally prevail would substantially add to the risks inhering in most
litigation and would undercut the efforts of Congress to promote the vigorous
enforcement of [these laws]." Id. In practice, the Christiansburg standard ensures that
unsuccessful challenges to 404 permits "brought in federal court will ordinarily not result
in a fee award against the plaintiff who brought the challenge." Akiak Native Cmty., 625
F.3d at 1167.

The Christiansburg standard is a critical pillar of access to federal courts for public
interest environmental litigation, which is especially vulnerable to the risks posed by fee
shifting. This type of litigation most often seeks equitable relief to prevent or reverse
environmental damage, generating important but nonmonetary benefits for society at
large, only some part of which the plaintiff will enjoy. It often involves no prospect of
financial remuneration for plaintiffs beyond, at most, the possibility of partially
recovering attorney's fees. On the other hand, even partial fee shifting against a losing
plaintiff can pose unknown and essentially unlimited financial risks. And, every lawsuit,
no matter how meritorious, carries some risk of losing. "This leaves the plaintiffs' risk-
reward analysis severely skewed" such that any fee shifting against losing plaintiffs is a
significant deterrent to filing. G. Sommers, The End of the Public Interest Exception:
Preventing the Deterrence of Future Litigants with Rule 82(b)(3)(i), 31 Alaska L. Rev.
131, 155 (2014) (Sommers 2014). Finally, the risks posed by fee shifting have been
amply demonstrated by academicians as a significant barrier to a citizen protecting their
rights and obtaining access to the courts. That access is fostered and guaranteed by the
Clean Water Act without the risk of fee shifting. In order to ensure equivalency, EPA
must examine this aspect of state programs and reject any that erect even partial barriers.

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Agency Response: See Section IV.C.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0045-0004.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q4n

Under the proposed rule, a state would be ineligible to assume the program "if it requires
the imposition of attorneys' fees against the losing party, notwithstanding the merit of
the litigant's position." 88 Fed. Reg. at 55,326. This does not ensure adequate access to
courts, because it does not limit the scope of discretionary fee shifting against losing
plaintiffs in a manner commensurate with the Christiansburg standard.

To adequately provide for public participation in the 404 permitting process, states that
assume the program should be required to demonstrate that their fee shifting scheme is
not designed in such a way as to have a greater chilling effect on potential plaintiffs than
the rule that applies in federal court—i.e., that any fee shifting against plaintiffs who
unsuccessfully sue to enforce the program or vindicate their rights under the program is
discretionary and limited to claims that are frivolous, unreasonable, groundless, or filed
in bad faith. Any broader risk of fee shifting against losing plaintiffs in these cases
substantially adds to the inherent risks of litigation and undercuts Congress' efforts to
promote the Clean Water Act's vigorous enforcement. See Christiansburg Garment Co.,
434 U.S. at 422.

EPA should revise the rule in pertinent part to read:

A State will not meet this standard if, for example, it narrowly restricts the class of
persons who may challenge the approval or denial of permits (for example, if only the
permittee can obtain judicial review, if persons must demonstrate injury to a pecuniary
interest in order to obtain judicial review, or if persons must have a property interest in
close proximity to a discharge or surface waters in order to obtain judicial review), or if
it permits any imposition of attorneys' fees, fully or partially, against losing plaintiffs
whose claims are not frivolous, unreasonable, groundless, or made in bad faith.

Agency Response: See Section IV.C.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0045-0004.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q42N)

B. EPA must ensure that states enact no stricter standing requirements than are
applicable under federal law.

EPA requests comment on whether to require, consistent with federal law, "that States
provide 'any interested person an opportunity for judicial review in State court of the
final approval or denial of permits by the State,"' and that they recognize associational
standing to the same extent that it is recognized under federal law. 88 Fed. Reg. at
55,301. While these requirements may already be implicit in the proposed rule, EPA
should make explicit that no state may assume the permitting program if it enacts stricter
standing requirements than those that apply in challenges to federal permits. Flexibility
on this point is neither necessary nor appropriate. Like the risk of fee shifting, it goes to

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the heart of whether a state "provide[s] for, encourage[s], and assist[s] public
participation in the permitting process." Id. at 55,326, 55,300.

Agency Response: See Section IV.C.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0045-0004.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q43N)

C.	EPA must ensure that access to court cannot be narrowed via mandatory additive
administrative processes.

EPA recognizes that "[w]hen citizens lack the opportunity to challenge executive agency
decisions in court, their ability to influence permitting decisions through other required
elements of public participation, such as public comments and public hearings on
proposed permits, may be compromised." Id. at 55,299. In many states, however,
potential plaintiffs must exhaust some administrative remedies before they can gain
access to court. See id. at 55,300. Depending on a state's laws, seeking these remedies
can cost thousands of dollars more and take far longer than the reasonable exhaustion
efforts required under federal law, deterring their use. Therefore, EPA cannot ensure
adequate access to court without also ensuring that any required administrative review
procedures are not prohibitively burdensome, expensive, or inaccessible. EPA should
revise the rule to explicitly prohibit assuming states from requiring more burdensome
exhaustion procedures than the reasonable efforts that are required under federal law.

Agency Response: See Section IV.C.2 of the final rule preamble.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q44N)

D.	EPA should specify consequences for violating the judicial review provision.

In addition to providing more clarity in general about what actions EPA will take in the
event state programs fall out of compliance with these rules, EPA should specifically
identify the actions that EPA will take in the event states violate the judicial review
provision. At minimum, if a state is violating judicial review requirements, EPA must
immediately suspend the state permitting program and pending permits. This would
ensure that applicants or agencies are not circumventing the requirements of the Clean
Water Act by processing permits that cannot be reviewed by an impartial judiciary. And,
making these consequences explicit would establish clear expectations for states that
seek to assume or retain the permitting program.

Agency Response: See Section IV.C.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0063-0039.

Region 10 Tribal Operations Committee (RTOC) and National Tribal Water Council (NTWC)
(EPA-HO-OW-2020-0276-0070-0Q12)

Although the proposed rule ensures that States adopt Federal judicial standing rules,
there are no requirements ensuring that judicial review will be as readily available as it is
under Federal authority. The proposed rule allows for States to impose substantial

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administrative exhaustion hurdles that could make the road to meaningful judicial review
so tortuous that it is functionally blocked. There is no clear reason why EPA should
allow States to make judicial review any more difficult to obtain after program
assumption than the currently functioning Federal system. Therefore, the rule should
have language prohibiting States from making meaningful judicial review more difficult
than Federal procedures.

Agency Response: See Section IV.C.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0045-0004.

Region 10 Tribal Operations Committee (RTOC) and National Tribal Water Council (NTWC)
(EP A-HO-QW-2020-0276-0070-0019)

X. There should be more explicit requirements for the judicial review that is implicitly
required for Tribes seeking to assume program administration.

While the proposed Rule's text notes that Tribes are exempted from the requirement for
judicial review of permit decisions, the supplementary information alludes to the need
for some form of quasi-judicial recourse. In the supplementary information, EPA seems
to require "some appropriate form of citizen recourse for applicants and others affected
by Tribe-issued permits," but without actually requiring that in the rule itself.[Footnote
18: Clean Water Act Section 404 Tribal and State Program Regulation, 88 Fed. Reg.
55,301.] EPA notes that certain "non-judicial mechanisms for citizen recourse" may be
appropriate, but does not provide criteria for when it is and is not appropriate or why a
mechanism might be.[Footnote 19: Id.]

We request clarification on what the actual requirements are for ensuring sufficient
"meaningful public participation" via judicial review, as hinted at in the rule's
supplementary information.

Agency Response: See Section IV.C.2 of the final rule preamble.

National Association of Wetland Managers (NAWM) (EP A-HO-QW-2020-0276-0072-0015)
3. Judicial Review and Rights of Appeal

NAWM supports the inclusion of public participation in the 404 regulatory process and
that any impediments to encourage this should be removed prior to application approval.
Since the NPDES assumption process has developed and used language since 1996, it
would be an established model for States and Tribes to transfer and we recommend
inclusion of similar language into the 404(g) regulations to encourage and assure public
participation. This would also set an established expectation for program equivalency
determinations during the application review process.

Agency Response: See Section IV.C.2 of the final rule preamble.

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Nebraska Department of Environment and Energy (EPA-HQ-QW-2020-0276-0073-0001)

The Proposed Rule would clarify that States seeking approval to administer a State 404
program must provide for judicial review of decisions to approve or deny State 404
permits equivalent to the judicial review provided for federal 402 permits.

•	Requiring a heightened level of judicial review for State issued permits does not
facilitate State implementation of a 404 permit program and is not consistent with
the Clean Water Act (CWA). Section 101(b) of the CWA States "It is the policy
of Congress that the States manage the construction grant program under this Act
and implement the permit programs under sections 402 and 404 of this Act." The
proposed rule would run contrary to section 101(b) of the CWA by creating an
additional hurdle to States seeking program approval. Additionally, section
509(b)(1) of the CWA provides for judicial review by any interested person for
the Administrator's action in issuing or denying 402 permits and is silent on 404
permits. Long-established principles of statutory interpretation say that because
the Act is silent on 404 permits while addressing 402 permits, Congress was
intentional in not requiring a heightened level of judicial review for 404 permits.
Requiring States to provide a level of judicial review which does not exist for
federal 404 permits, and is not required under the CWA, is inconsistent with
CWA section 101(b) and would require States to implement State 404 programs
which are not consistent with the structure of 404 permitting programs Congress
intended under CWA section 509(b)(1).

•	EPA s assertions that heightened judicial review is necessary to facilitate public
participation or that a State agency will give less weight to commenters without
judicial review[Footnote 1: 88 Fed. Reg. 55298-55299 (Aug. 14, 2023) is purely
speculative, challenges the integrity of the State agencies, and does not recognize
the efforts made by States to secure meaningful public engagement. EPA relies on
a Fourth Circuit Court of Appeals decision [Footnote 2: Com. of Va. v. Browner,
80 F.3d 869 (4th Cir. 1996), amended (Apr. 17, 1996), amended (May 9, 1996)]
as confirmation that judicial review is necessary to ensure that the public
comment period serves its proper purpose.[Footnote 3: 88 Fed. Reg. 55299 (Aug.
14, 2023)] However, the decision, on which EPA relies on, is addressing section
502(b)(6) of the Clean Air Act, which specifically directs EPA to promulgate
regulations which require State Title V programs to provide for judicial review of
permit decisions by any person with Article III standing[Footnote 4: Com. of Va.
v. Browner, at 877] who participates in the State public comment process. Section
101 (e) of the CWA differs from the Clean Air Act because it does not specifically
require judicial review. Section 101(e) only requires that public participation be
provided for in the development, revision, and enforcement of any regulation,
standard, effluent limitation, plan, or program. EPA's determination that States
need to implement a heightened level of judicial review in order to provide for
meaningful public participation is flawed and discredits the hard work of its
partner States.

•	The public has the opportunity to comment on State issued 404 permits within a
public comment period and at a hearing if so requested.[Footnote 5: 40 C.F.R. §§
233.32 and 233.33] The State must consider all comments received and make

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those comments part of the official record. [Footnote 6: 40 C.F.R. § 233.34] EPA
ignores the fact that EPA retains oversight of all permits issued by a State under
Section 404.[Footnote 7: 40 C.F.R. § 233.50] States must forward permits to EPA
for review prior to issuance, and if EPA determines that a State did not adequately
consider the comments of a citizen, then EPA can require the State to correct the
deficiency before the permit can be issued. Requiring that a State implement a
heightened level of judicial review for permit decisions is an unnecessary
impediment to States seeking approval of a State 404 program because EPA
retains oversight.

• Section 101(e) of the CWA directs the Administrator to develop the regulations
which specify the minimum guidelines for public participation in cooperation
with the States.

o The Department suggests EPA remove the proposed section 233.24 from
the 404(g) rule.

Agency Response: See Section IV.C.2 of the final rule preamble.

State of Alaska Department of Environmental Conservation (EPA-HQ-QW-2020-0276-0079-
0010")

Fourth, EPA's proposal would not allow States to limit standing to challenge permits in
State court [Footnote 28: 88 Fed. Reg. 55300.] If EPA is going to require States to
rewrite standing rules in their courts - some of which are developed by common law,
and therefore very difficult to rewrite - in order to assume the 404 program, EPA all but
guarantees that States whose courts do not already utilize EPA's preferred standing rules
will be unable to assume the program.

This section, as proposed, poses strong disincentives and potentially insurmountable
hurdles to assumption. Alaska recommends deleting it in its entirety.

Agency Response: See Section IV.C.2 of the final rule preamble.

State of Alaska Department of Environmental Conservation (EPA-HO-OW-2020-0276-0Q79-
0008")

Presently, the standards governing a court challenge to a NPDES permit are different
from the standards governing a court challenge to a Corps-issued 404 permit. EPA
proposes to make the judicial standard of review for a State-issued 404 permit similar to
that required for State NPDES programs, with one modification: the finalized rule will
"specify that State requirements that provide for the losing party in a challenge to pay all
attorneys' fees, regardless of the merit of their position, are an unacceptable
impingement on the accessibility of judicial

review." [Footnote 23: 88 Fed. Reg. 55298.]. EPA's basis for this is to "give effect to the
CWA's requirements for public participation in the permitting process" as reflected in §
101(e) [Footnote 24: 88 Fed. Reg. 55298.]. Curiously, EPA would not make this section
applicable to Tribe-administered 404 programs—only State-administered programs.

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As a preliminary matter, EPA lacks a basis for imposing different requirements on States
and Tribes with Treatment as States ("TAS") status administering an assumed program.
When Tribes attain TAS status, they are "treated as states" - not subject to special
requirements (or exempt from certain requirements). EPA's rationale for not applying
this section to Tribes - that "requiring Tribes to waive sovereign immunity to judicial
review of permitting decision would be a significant disincentive to Tribes" to assume
the program - applies equally to States. This is an arbitrary distinction.

Agency Response: See Section IV.C.2 of the final rule preamble.

State of Alaska Department of Environmental Conservation (EPA-HQ-QW-2020-0276-0079-

0009")

Second, provisions about attorneys' fees in court are outside the scope of permissible
bases on which to approve or reject a State's application [Footnote 25: See CWA §§
404(g), (h).] EPA's cited authority, CWA§ 101(e), does not leave it up to EPA alone, but
rather EPA and the States, to "provide[] for, encourage[], and assist[]" public
participation by "developing] and publishing] regulations specifying minimum
guidelines for public participation." [Footnote 26: 88 Fed. Reg. 55298 (quoting 33
U.S.C. § 1251(e)).]. This is not an appropriate application requirement and may not be
repackaged as one without a statutory re-write.

Third, by requiring parity with NPDES standards of review, as opposed to the current
404 standards of review, EPA essentially subjects State 404 permits to a higher degree of
court scrutiny than Corps 404 permits. And, of course, CWA § 509(b)(1), does not
authorize the judicial review of federally issued 404 permits - that is authorized by the
federal Administrative Procedure Act ("APA"), and subject to APA standards [Footnote
27: See 88 Fed. Reg. 55300.] Legally, EPA may not require State 404 permits to meet a
higher level of scrutiny than federal 404 permits. Practically, this will disincentivize
State assumption by jeopardizing industry support.

Agency Response: See Section IV.C.2 of the final rule preamble.

Tulalip Tribes of Washington (EPA-HO-OW-2020-0276-0082-00Q6N)

By way of the Treaty of Point Elliott, which is the supreme law of the land, Tulalip
reserved property rights—both within and outside of the exterior boundaries of the
Tulalip Indian Reservation—that could be affected by Section 404 permitting decisions.
If such permitting decisions are made by Washington, Tulalip should not be forced to put
these valuable, federally reserved property rights before a state judicial process. Any
final rulemaking should explicitly require that judicial review in Federal District Court
shall be available to tribes when challenging state Section 404 permitting decisions.

Agency Response: The question as to which court may exercise jurisdiction over
challenges to Tribal or State permitting actions is outside the scope of this
rulemaking. See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0063-0040.

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Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q32N)

The EPA correctly acknowledges that particular state processes or other state
requirements may be impediments to judicial review of state-issued Section 404 permits.
Accordingly, EPA must keep the requirement for judicial review, equivalent to federal
judicial review, in the regulatory text. In addition, EPA should further elaborate on the
restriction against the imposition of attorneys' fees. The preamble identifies "State
requirements that provide for the losing party in a challenge to pay all attorneys' fees,
regardless of the merit of their position, is an unacceptable impingement on the
accessibility of judicial review." Id. at 55298. The language of the proposed regulation
states that a state will not meet EPA's standard "if it requires the imposition of attorneys'
fees against the losing party, notwithstanding the merit of the litigant's position."
Although the language appears to be clear on the imposition of attorneys' fees, EPA
must go further and clarify that this prohibition includes the imposition of any attorneys'
fees, including partial fees. Any state program that imposes even partial fees must be
barred from assuming a 404 program by EPA. This issue is of particular concern in
Alaska, which has a loser-pays rule, whereby litigants who lose in civil cases may be
required to pay a percentage of the attorney's fees for the prevailing party. Alaska Civil
Rule 82. This loser-pays requirement has the effect of significantly limiting judicial
review, especially for clients with limited financial resources, which includes many small
Tribes.

Agency Response: See Section IV.C.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0045-0004.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q33N)

EPA should ensure that states cannot make it more difficult to obtain judicial review of
Section 404 permits. For example, EPA should explicitly limit any state requirements for
administrative exhaustion to the same reasonable efforts that are required under federal
law prior to or as part of judicial review of state-issued section 404 permits. Without this
explicit regulation, states may include administrative exhaustion requirements that are
unduly burdensome and cost-prohibitive such that the public and Tribes may not be able
to successfully challenge the permit. Federally issued Section 404 permits are challenged
under the Administrative Procedure Act. 88 Fed. Reg. at 55300. This process, based on
an administrative record, allows for broad public and Tribal participation. And although
any litigation is costly, review under the APA is not as costly as producing a full
evidentiary hearing before an administrative agency. EPA should explicitly limit
burdensome administrative exhaustion requirements in the final rule. This will ensure
that members of the public and Tribes do not have to pay exorbitant costs before they are
afforded the opportunity for judicial review. Extensive administrative review processes
that are substantially different from federal judicial review and are more costly can stifle
public participation ("When citizens lack the opportunity to challenge executive agency
decisions in court, their ability to influence permitting decisions through other required
elements of public participation, such as public comments and public hearings on
proposed permits, may be compromised. Citizens may perceive that a State
administrative agency is not addressing their concerns about section 404 permits because
the citizens have no recourse to an impartial judiciary, which would have a chilling effect

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on all the remaining forms of public participation in the permitting process.") Id. at
55299.

Agency Response: See Section IV.C.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0045-0004.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q34N)

Quite simply, state judicial review provisions must not be more burdensome on
challengers to state-issued permits than what would be required under federal law. This
provision does not require EPA to impose a specific administrative review procedure, but
instead allows states to continue with state review, as long as they defer to federal
requirements on standing and administrative exhaustion. Limiting state administrative
appeals processes for permitting decisions is consistent with ensuring the public has
access to judicial review. EPA should make clear in the final rule that administrative
exhaustion requirements under state laws may be no more burdensome than challenges to
federally issued section 404 permits. EPA should also make clear that exhaustion
requirements or other burdens to judicial access will result in an automatic denial of a
state application to assume Section 404 permitting.

Agency Response: See Section IV.C.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0045-0004.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q35N)

EPA should also consider adding a requirement that the same standard of review for
federal permits should apply to state judicial review of state-issued 404 permits. This
ensures that the public and Tribes can participate in permit challenges without having to
put on affirmative evidence, which can be costly. EPA should also explicitly include that
standing for judicial review should mirror that of federal review and should not be
unduly limited. All of the above proposals will ensure that the public can participate in
the judicial review process for state-issued permits without substantial burdens that
would not exist in federal judicial review.

Agency Response: See Section IV.C.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0045-0004.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q36N)

EPA should also include in the final rule the actions that EPA can and will take in the
event states violate the judicial review provision. At minimum, if a state is violating
judicial review requirements, EPA must immediately suspend the state permitting
program and pending permits. This ensures that applicants or agencies are not
circumventing the requirements of the CWA by processing permits that cannot be
reviewed by an impartial judiciary. If a state comes into compliance with judicial review
requirements, then it can resume processing permits.

Agency Response: See Section IV.C.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0063-0039.

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Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q37N)

EPA must also provide an avenue for judicial review in Federal District Court in certain
circumstances. At a minimum, Federal District Court review should be available for
Tribes with rights and resources that may be impacted by a state-issued permit. EPA's
proposed rule assumes that states will comply with the Section 404(b)(1) Guidelines and
"EPA notes that complying with the CWA 404(b)(1) Guidelines currently provides an
opportunity for States to consider potential impacts of proposed section 404 permits on
aquatic resources and uses important to Tribes." Id at 55298-97. However, state courts,
and state administrative agencies in particular, are not appropriate entities to determine
the scope of Tribal rights or resources. If Chickaloon Native Village disagrees with a
state analysis of how the proposed permit will impact Tribal rights and resources, we
should be able to challenge that finding in federal court. These are federal questions and
EPA should include a provision explicitly recognizing that judicial review in Federal
District Court is available where federally protected Tribal rights and resources are at
stake.

Agency Response: The question as to which court may exercise jurisdiction over
challenges to Tribal or State permitting actions is outside the scope of this
rulemaking. See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0063-0040.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q32N)

EPA must ensure the final rule requires equal access to courts for any state seeking to
assume the 404 program by strengthening the rule's prohibition against fee shifting. All
plaintiffs should have sufficient access to court to enforce the Clean Water Act. Under
the Clean Water Act, citizens have the authority to bring lawsuits to address violations
and force compliance with the Act.[Footnote 55: 33 U.S. Code § 1365.] These citizens'
suits have been an essential tool in furthering the purposes of the Act and protecting the
quality of our nation's waters.[Footnote 56: K. D. Florio, Attorney's Fees in
Environmental Citizen's Suits: Should Prevailing Defendants Recover?, 27 BOSTON
COLLEGE ENV. AFFAIRS L. REV. 707, 709 (2000).] In such suits, courts may award
any prevailing or substantially prevailing party fees as it deems appropriate.[Footnote 57:
33 U.S. Code § 1365(d).] However, federal courts only award attorney's fees to
defendants in rare circumstances.[Footnote 58: C. Kinley, The Water is on Fire: Current
Circuit Approaches to Fee?Shifting in Citizen?Suits Under the Clean Water Act and the
Need for Clearer and More Uniform Standards, 46 WM. & MARY ENVTL. L. & POL'Y
REV. 521 (2022) (Kinley 2022).] Conversely, courts will typically award fees to
prevailing plaintiffs.[Footnote 59: Id.] This practice has made it financially feasible for
citizens to act in the public interest, bringing actions to protect water quality. [Footnote
60: K. S. Coplan, Citizen Litigants Citizen Regulators: Four Cases Where Citizen Suits
Drove Development of Clean Water Law, 25 COLO. NAT. RES. ENERGY &ENV'T. L.
REV. 61, 72 (2011).] EPA's draft regulations seem to acknowledge this reality by
acknowledging that states' fee shifting requirements can unacceptably impinge on access
to judicial review. The rule, however, does not go far enough. The final rule must clearly
state that EPA will disqualify any state that provides for mandatory or discretionary fee
shifting in any amount against losing plaintiffs except in extraordinary circumstances.

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Agency Response: See Section IV.C.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0045-0004.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q33N)

In the Ninth Circuit, a court may only award a prevailing defendant fees in a Clean Water
Act suit where a plaintiffs claim was frivolous, unreasonable, or groundless.[Footnote
61: Razore v. Tulalip Tribes, 66 F.3d 236, 240 (9th Cir. 1995) (adopting Title VII fee-
shifting standard set out in Christiansburg Garment Co. v. Equal Emp. Opportunity
Comm'n, 434 U.S. 412, 422 (1978)).] In addition, a court may only deny a prevailing
plaintiff fees under very narrow, rare, special circumstances—for example, where
plaintiffs suit did not provide a social benefit. [Footnote 62: St. John's Organic Farm v.
Gem County Mosquito Abatement Dist., 574 F.3d 1054, 1062 (9th Cir. 2009) (citing
Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968)).] Under these standards,
citizens in Alaska are currently protected from high degrees of risk or uncertainty that
they will need to pay a defendant's fees if they are unsuccessful in bringing a Clean
Water Act Section 404 suit. They are also relatively assured of recovering their fees if
they are successful. This balance of financial risks is essential in enabling citizens to
participate in protecting water quality within Alaska for purposes of Section 404 of the
Clean Water Act. [Footnote 63: See Kinley 2022 at 576 ("Considering the environmental
crises we continue to face today and the often limited resources available to government
agencies, more citizens need to participate in enforcing the CWA. However, greater
participation requires a predictable, inclusive, and incentivizing fee shifting
provision.").]

In contrast, under Alaska law, unsuccessful plaintiffs may be required to pay not only
their own fees but also the prevailing party's fees.[Footnote 64: AS 09.60.010; Alaska
Rule of Civil Procedure 82(a) (requiring partial fee shifting against the losing party in
civil cases); Alaska Rule of Appellate Procedure 508(e)(4) (requiring partial fee shifting
against the losing party in appeals from agency action); see also G. Sommers, The End of
the Public Interest Exception: Preventing the Deterrence of Future Litigants with Rule
82(b)(3)(i), 31 Alaska L. Rev. 131, 155 (2014) (Sommers 2014).] For ordinary civil
cases, the court may consider the reasonableness of a plaintiffs position in determining
the appropriate amount of a fee award. [Footnote 65: Alaska Rule of Civil Procedure
82(b)(3)(F).] And for administrative appeals, the court may not award fees if it
determines the fee award would deter similarly situated litigants if not reduced. [Footnote
66: Alaska Rule of Appellate Procedure 508(e)(4)(B).]

Agency Response: See Section IV.C.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0045-0004.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q34N)

Alaska is the only state in the country with a "loser pays" rule that does not fully insulate
public interest litigants from having to pay the opposing party's fees if they lose in
litigation. The only exception to that rule is where a plaintiff brings a claim in the public
interest under the Alaska or U.S. Constitution[Footnote 67: AS 09.60.010(c); Alaska
Rule of Civil Procedure 82(a).]—an exception that would not protect Clean Water Act

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citizen's suits should the State achieve primacy over Section 404 permitting. While
Alaskan courts have the discretion to ameliorate the fees public interest plaintiffs may be
subject to, those results are unpredictable and unreliable for plaintiffs and provide no up-
front assurance that plaintiffs will be insulated from having to pay defendants'
fees.[Footnote 68: See Sommers 2014.] This creates a significant chilling effect on
plaintiffs seeking to protect the public interest. There are examples in Alaska where
individual citizens bringing suits in the public interest have been threatened with
overwhelming fees—even where their lawsuit was constitutional in nature and they
should have been protected from fees.[Footnote 69: J. Edge, Protesters show support for
Hammond, Fisher in Pebble Mine case, ALASKA PUBLIC MEDIA (Oct. 23, 2013);
Nunamta Aulukestai v. State of Alaska Dept. of Nat. Res, Case No. 3AN- 09-09173,
Declaration of Victor Fischer (Feb. 5, 2012); Nunamta Aulukestai v. State of Alaska
Dept. of Nat. Res, Case No. 3AN-09-09173, Declaration of Bella Gardiner Hammond
(Jan. 27, 2012) (Hammond Decl.); Nunamta Aulukestai v. State of Alaska Dept. of Nat.
Res, Case No. 3AN-09-09173, Declaration of Ricky Delkittie, Sr. (Jan. 24, 2012);
Nunamta Aulukestai v. State of Alaska Dept. of Nat. Res, Case No. 3AN-09-09173,
Declaration of Violet Willson (Jan. 30, 2012).] Non-profit organizations that financially
supported plaintiffs in bringing public interest lawsuits but were not parties to such suits
have been subjected to invasive discovery requests related to defendants attempting to
seek fees. [Footnote 70: See Nunamta Aulukestai, et at. v. State of Alaska Dept. of Nat.
Res, Case No. 3AN-09-09173 CI, Alaska Conservation Foundation, Memorandum in
Support of Motion for Protective Order (Oct. 8, 2012).] These actions, even where
unsuccessful, lead citizens to conclude that they "will not consider ever becoming
involved" in public interest suits in the future.[Footnote 71: Hammond Decl. ]} 14.] The
courts' discretion to ameliorate these risks is insufficient to counterbalance the chilling
effect they have on public interest litigation in the state.

Agency Response: See Section IV.C.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0045-0004.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q35N)

When the State sought and achieved permitting authority under Section 402, EPA relied
on Alaska courts' discretion in managing fee awards, as well as the State's stated
commitment that it would not seek fees unless a suit was deemed frivolous or brought
only for purposes of delay.[Footnote 72: ADEC, Alaska Pollutant Discharge Elimination
System Program Description at 57 (Oct. 29, 2008).]

That has been insufficient and has led to a chilling effect for citizen enforcement related
to Section 402 permitting decisions. Even to the extent the State holds to its
commitment, there is no bar on intervenors seeking fees in such cases. And the courts'
power to ameliorate fee awards is "simply too open-ended, and the uncertainty this
creates for litigants may be chilling in its own right."[Footnote 73: Summers 2014 at
156.] In the years since Alaska was granted primacy over the NPDES program, public
interest litigants that previously participated in litigation to protect Alaska's waters have
been deterred. For example, the Sierra Club "has not brought a single action in Alaska
state court since [Alaska abolished its public interest exemption to fee-shifting] because
there has been no reliable way to predict its potential liability for fee and cost

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awards."[Footnote 74: Id.] Similarly, the Northern Alaska Environmental Center "has
filed only one non-constitutional case . . . which had eight plaintiff organizations to share
the burden of any potential adverse fee award."[Footnote 75: Id.]

Under the proposed rule, a state would be ineligible to assume the program "if it requires
the imposition of attorneys' fees against the losing party, notwithstanding the merit of
the litigant's position."[Footnote 76: 88 Fed. Reg. at 55,326.] This does not ensure
adequate access to courts, because it does not limit the scope of discretionary fee shifting
against losing plaintiffs.

Agency Response: See Section IV.C.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0045-0004.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q36N)

Under this standard, if Alaska were awarded 404 primacy without being required to
eliminate the discretionary fee shifting, citizens would experience much higher financial
risks and burdens when seeking to enforce Section 404 of the Clean Water Act. EPA
must protect against this narrowing of citizens' ability to participate in Clean Water Act
enforcement. EPA must ensure that fee-shifting for defendants only occurs in the limited
scenarios envisioned by federal law.

EPA should revise the rule in pertinent part to read:

Agency Response: See Section IV.C.2 of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0045-0004.

Gila river Indian Community. Department of Environmental Quality (EPA-HQ-QW-2020-0276-
TRANS-081523-002-000 n
Comment 1

A second attendee asked through the chat for further clarification about the judicial
review and not including Tribes/tribal courts in that portion of the rule.

Comment 2

The attendee asked through the chat if EPA was trying to impose something on judicial
reviews that is not available in tribal court systems, and if so, where would judicial
review occur.

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Agency Response: See Section IV.C.2 of the final rule preamble.

Sierra Club (EPA-HO-OW-2020-0276-TRANS-092923-004-00Q5N)

It must require the state to give all affected people the ability to challenge permits, to
enforce permit conditions, and to do what all people have the right to do, to enforce our
environmental laws.

Agency Response: See Section IV.C.2 of the final rule preamble.

Natural Resources Defense Council (EPA-HO-OW-2020-0276-TRANS-Q92923-008-001(T)

Four, the state's judicial and administrative processes provide citizens with an equivalent
ability to challenge permit decisions and do not create grave financial risks to citizens
that engage in such challenges.

Agency Response: See Section IV.C.2 of the final rule preamble.

Chickaloon Native Village (EPA-HO-OW-2020-0276-TRANS-092923-009-00Q5N)

We appreciate the EPA is clarifying the methods for dispute resolution and judicial
review, and we'd like to ensure that Tribes are able to engage in these, when there are
state permits that they would like to challenge, especially where state permits would
damage Tribal historical, cultural, and natural resources.

Agency Response: See Sections IV.C.2 and IV.F of the final rule preamble.

Chickaloon Native Village (EPA-HO-OW-2020-0276-TRANS-092923-009-00Q6N)

EPA needs to mandate that Tribes and the public are able to challenge permits and
enforce environmental laws when the states have primacy.

Agency Response: See Sections IV.C.2 and IV.F of the final rule preamble.

D. Subpart E - Compliance Evaluation and Enforcement

1. Criminal intent standard (mens rea)

California State Water Resources Control Board (EPA-HO-OW-2020-0276-TRANS-Q82423-
002-000n

On the compliance and enforcement request, are you interested in just criminal
prosecutions or do you want feedback on simple negligence in civil and administrative
context as well?

Agency Response: This rule only addresses the mens rea for criminal violations of
the CWA.

Environmental Protection Network (EPN) (EPA-HQ-QW-2020-0276-005 7-0007)

Revision of Criminal Enforcement Standards

EPN supports this clarification of the Criminal Enforcement mens rea requirements. This
change clarifies the evidentiary standard that is necessary to prove a criminal violation.
The existing regulations were not consistent with the underlying statutory requirements

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and resulted in some state/Tribe enforcement programs having to modify their statutory
requirements to meet the CWA requirements. There was a question as to how stringent
they needed to be given the conflict between the statute and the regulations. Under the
proposed regulations, the state/Tribal enforcement programs allow for any mens rea to
prosecute a criminal violation.

Agency Response: EPA acknowledges the commenter's expression of support.

Idaho Department of Environmental Quality (TDEQ) (EPA-HQ-QW-2020-0276-0059-0004)
IV. Compliance and Enforcement

IDEQ supports the proposed Rule clarification that Tribes and States that are authorized
to administer the CWA section 402 and 404 permitting programs, or that seek
authorization to do so, are required to authorize prosecution based on a criminal intent of
any form of negligence, which may include gross negligence.

Agency Response: EPA acknowledges the commenter's expression of support.

Charles River Watershed Association (CRWA^) (EPA-HO-OW-2020-0276-0062-0Q0n

CRWA has reviewed this rule. Our initial analysis is that while the purpose of this
rulemaking may have some benefit - streamlining the procedures for state assumption of
Clean Water Act ("CWA") Section 404 permitting authority - in practice, due to its
treatment of criminal intent standards, this rule may impair the protectiveness of the
program and may effectively authorize a race to the bottom with respect to state CWA
enforcement programs.

CRWA draws attention to the below out of an abundance of caution and to demonstrate
the necessity of extending the comment period for this rulemaking so that its full effects
may be properly analyzed. Portions of this rule - in particular the changes to mens rea
requirements - were first proposed during the Trump Administration. As is often the
result of many such regulatory streamlining initiatives, through this rulemaking, EPA
may be significantly weakening protections for national water resources, a decision with
significant climate change implications. As a watershed organization, CRWA recognizes
that the effects of climate change cross state boundaries. Despite Massachusetts'
relatively robust protections for wetlands, the same may not be true of our neighbors.
Restoration and flooding are cross-boundary issues that could easily alter Massachusetts'
natural environment if § 404 permitting was handled differently by surrounding
states. [Footnote 1: In particular, Vermont has looked into the assumption of § 404
permitting authority. See Vermont State Wetland Program Summary, National
Association of Wetland Managers (NAWM),

https://www.nawm.ore/pdf lib/state summaries/vermont state wetla >eram summ
arv ' F] In particular, interstate rivers like the Connecticut or Merrimack cross

state boundaries, meaning that less stringent state-administered § 404 programs could
have deleterious effects on our state's water resources. Other instate waters could
likewise be harmed by regulatory changes by upstream neighbors. Even if the Army
Corps of Engineers ("the Corps") retained permitting authority over the mainstem

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branches of these interstate rivers, harm to tributaries or waters within larger watershed
areas could still negatively affect water resources in our state.

However, as other commenters have noted, it is difficult to properly ascertain the full
effects of this rule due to the 60-day comment period, which is wholly insufficient to
fully analyze a rulemaking whose effects may be so far-reaching. For the following
reasons, CRWA expresses concern about this rulemaking and joins the other commenters
in requesting that EPA extend the comment period for this rule by 30 days.

Agency Response: See Section IV.D of the final rule preamble. EPA disagrees with
the commenter that this rule will impair the protectiveness of the section 404
program and effectively authorize a race to the bottom with respect to state CWA
enforcement programs. Many States administering or seeking to administer the
programs do not currently have authority to prosecute based on a simple negligence
mens rea. EPA is unaware of any concrete evidence indicating that the absence of a
simple negligence mens rea for criminal violations has served as a bar to effective
State criminal enforcement programs. EPA also is unaware of any evidence
indicating that the absence of such a standard in a State issuing a section 402 or 404
permit would affect the behavior of dischargers to the extent that it would notably
increase the deleterious effects of pollution on downstream states that have a simple
negligence mens rea.

EPA did not extend the original 60-day comment period, as 60 days provides
sufficient opportunity to consider and respond to the proposed rule. See Section
III.B of the final rule preamble for further discussion on the rulemaking
development process, including opportunities for public engagement and input.
EPA notes that the proposal to clarify the criminal negligence mens rea was
originally issued separately in December 2020, so stakeholders have had ample
opportunity to consider this particular aspect of the rule.

Charles River Watershed Association (CRWA^) (EPA-HO-OW-2020-0276-0062-00Q3N)

This rulemaking affords the EPA Administrator too much discretion to approve state
enforcement programs with less protective criminal intent standards than the Federal
Clean Water Act program would otherwise employ

In this proposed rulemaking EPA relies on § 402(b)(7) and § 404(h) to assert that the
Administrator of EPA has broad discretion to approve state enforcement programs less
stringent than those in the statute. EPA further takes the position that in authorizing state
programs, the Administrator is not bound to apply the objective criminal liability
standards and sanctions in § 309 of the statute, and may substitute their own. EPA notes
that "beginning in 1999, three circuit courts of appeal determined that criminal
negligence under CWA § 309(c)(1) is 'ordinary negligence' rather than gross negligence
or any other form of negligence." However, EPA correctly notes that "[tjhese courts did
not address whether this provision implicates Tribal or State programs administering
CWA § 402 or 404 programs." Given that, EPA now asserts that the provision simply
does not apply to Tribal or State Programs: "[wjhile EPA's own enforcement authority in

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CWA § 309(c)(1), 33 U.S.C. 1319(c)(1), as interpreted by the courts, requires only proof
of ordinary negligence, that provision does not apply as a requirement for approval to
Tribal or State programs. For § 402 and 404 programs, the CWA instead requires that
EPA 'shall approve' a State's application if it determines that the State demonstrates the
authority to 'abate violations of the permit or the permit program, including civil and
criminal penalties and other ways and means of enforcement.' 33 U.S.C. 1342(b)(7);
1344(h)(1)(G)."

However, a requirement to demonstrate the "authority to abate violations of the permit or
permit program" is far from an objective standard. Whatever preference Congress may
have expressed for state autonomy, minimum national standards are a central tenant of
the CWA. If EPA's position were to prevail, the Administrator could approve state
enforcement programs with de-minimis criminal negligence standards, undermining this
fundamental premise. If states are not required to implement the statutory enforcement
standards of § 309 there would be no objective criminal enforcement standards. Rather,
all that would be left would be a reliance on the current EPA Administrator's discretion.
Of even greater concern, in this rulemaking, EPA identifies no limit on the
Administrator's authority in this respect, and, "while the current EPA might be rigorous
in its evaluation of any state's application to assume responsibility for Section 404
permits, one can easily imagine an Administration in which that rigor might be
relaxed."[Footnote 6: Id.]

Agency Response: See Section IV.D of the final rule preamble.

Charles River Watershed Association (CRWA^) (EPA-HO-OW-2020-0276-0062-00Q4N)

EPA's interpretation that Clean Water Act §§ 402 and 404 allow for "approved Tribal
and State programs to have a 'somewhat different' approach to criminal enforcement
than the Federal Government's approach" ignores statutory directives such as 402(a)(3)
which require permit programs with the "same terms, conditions, and requirements..."
for states and the federal government

CWA § 402(a)(3) provides in full: "The permit program of the Administrator under
paragraph (1) of this section, and permits issued thereunder, shall be subject to the same
terms, conditions, and requirements as apply to a State permit program and permits
issued thereunder under subsection (b) of this section."

This language reasonably gives rise to the interpretation that Congress intended the EPA
Administrator to establish a permit program for the states through 402(b) that is
substantially similar to the Federal program. While EPA takes care to provide substantial
precedent to support the position that state enforcement programs do not have to
"mirror" federal standards,[Footnote 7: 88 Fed. Reg. 55276, 55307 (Aug. 14, 2023).]
arguably the more likely reason for a similarity between Federal and state programs is to
prevent a two-tiered permitting regime where state-administered CWA programs are less
protective. Therefore, more logically - and much more true to the spirit of the CWA - the
purpose of 402(a)(3) is to set a floor from which state-administered programs may be
more stringent.

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EPA's proposed rule appears to entirely disregard § 402(a)(3), and largely relies on §
402(b)(7) for the proposition that the controlling factor in determining whether a state
program's enforcement standards are appropriate is the Administrator's discretion as to
whether or not they are "adequate." This ignores the fact that nowhere in the CWA does
Congress explicitly state that § 309 does not apply to the states. Regardless of whether
case law authorizes EPA's approach, CRWA has a great deal of trepidation around a
national CWA enforcement scheme that has no floor and leaves determinations of
adequacy largely in the hands of a single unelected individual.

However, some of the cited cases also do not appear to support state program deviation
from the federal floor of simple negligence found in § 309. In Akiak Native Community
v. EPA, the decision appeared premised more on enforcement mechanisms and less on
criminal intent standards.[Footnote 8: 625 F.3d 1162 (9th Cir., 2010).] InNRDC v. EPA,
the court ruled that EPA may allow states to apply less than the maximum statutory
criminal penalties in the Act but neither litigant mentioned § 402(a)(3), and the court, in
its ruling, did not take judicial notice of this statutory provision. [Footnote 9: 859 F.2d
156 (D.C. Cir., 1988).] The court's ruling also appears to contradict the statutory text
which applies solely to civil penalties under § 309(d).[Footnote 10: Id.] EPA also ignores
that this ruling concerns criminal penalties, not criminal intent standards, which are
appropriately analyzed very differently. Perhaps most importantly, in NRDC the court
noted the foundation of the permit program and the congressional intent of these
provisions was that the CWA "be administered in such a manner that the abilities of the
States to control their own permit programs will be developed and strengthened.
[Members of Congress] look for and expect State and local interest, initiative, and
personnel to provide a much more effective program than that which would result from
control in the regional offices of the Environmental Protection Agency. "[Footnote 11: Id.
at 175 (emphasis added).] As interpreted by the court, Congress' goal was always to
create more protective state programs.

Thus, while CRWA recognizes the support for state autonomy and the administrative
balancing required by the Administrator in the permitting process, allowing states to
have lower criminal enforcement standards is largely incompatible with the intent for
states to have the "much more effective" programs referenced in NRDC. This supports
the interpretation that if Congress intended state programs to deviate from the criminal
enforcement standards articulated in the CWA, the goal would be to have more stringent
enforcement in light of the Sackett decision. Should states be allowed to implement less
stringent enforcement measures, the now heavily reduced number of protected waters
under the CWA would be at even more risk and therefore defy the very purpose for
which the CWA was enacted.

Agency Response: See Section IV.D of the final rule preamble.

Charles River Watershed Association (CRWA^) (EPA-HO-OW-2020-0276-0062-00Q5N)

The modification of legislatively approved criminal liability standards by executive
branch agencies without express Congressional authorization implicates significant
constitutional questions

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Absent explicit legislative authorization, executive branch agencies may not modify the
type of criminal standards and sanctions Congress authorized and to whom they apply.
Section 309 deals with criminal liability standards and sanctions. Where other explicitly
required elements of state § 404 programs are technical standards of the kind where
deference is often afforded to expert agencies[Footnote 12: EPA notes the specific
inclusion of §§ 1317, 1318, and 1343 (and other sections) as required elements of a state
§ 404 program and contrasts them with the absence of section § 1319 as a required
element. EPA appears to argue this is proof that only explicitly stated provisions are
required in CWA § 402 and § 404 state programs.], deciding which criminal liability
standards and sanctions to apply is not a power implicitly left to the discretion of
unelected executive branch officials. Only Congress has the authority to decide who is
subject to such standards and sanctions and the nature of the sanctions. Therefore, the
Congressionally set criminal intent standard should apply, even if not explicitly included
as a required element of a state 404 program. EPA's position that the Administrator may
- through the context of state program authorizations - effectively modify
congressionally authorized criminal intent standards and thereby to whom criminal
sanctions apply raises significant constitutional questions, particularly with respect to the
non-delegation doctrine. The interaction between the non-delegation doctrine and agency
interpretation of criminal rulemaking authority has been recognized, and it has also been
recognized that "criminal law delegations are different from other delegations ... [t]hey
are inconsistent with foundational criminal law doctrine, they present greater threats to
the principles underlying the non-delegation doctrine, and they are not supported by the
ordinary arguments in favor of delegation."[Footnote 13: F. Andrew Hessick & Carissa
Byrne Hessick, Nondelegation and Criminal Law, 107 Va. L. Rev. 281, 282 (2021).]

EPA's position also conflicts with the Historical and Statutory Notes found at the end of
§ 309 of the CWA[Footnote 14: 33 USC §1319(d); Water Quality Act of 1987, Title III,
§313(b)(2), Pub. L. No. 100-4, 101 Stat. 45 (INCREASED PENALTIES NOT
REQUIRED UNDER STATE PROGRAMS).]. In those notes, Congress explicitly
authorizes departures from state program civil enforcement penalties in the context of
state program approval. Arguably, the discretion to depart from the criminal liability
standards - a far greater authority since it involves who is or is not subject to criminal
sanctions - is a power that Congress would have to explicitly authorize, which it does not
appear to have done. The absence of explicit Congressional authorization to depart from
criminal liability standards applicable to state programs may be fatal to EPA's proposal.

EPA is likely unable to rely on Chevron deference to apply criminal liability standards
not found in the statute being interpreted.

EPA asserts that to the extent its interpretation "is viewed as different from any earlier
interpretations of CWA sections 402 and 404 and implementing regulations, [it] has
ample authority to change its interpretation of ambiguous statutory language," citing
Chevron in support of this assertion. [Footnote 15: Chevron, U.S.A., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837, 844, 104 S. Ct. 2778, 2782, 81 L. Ed. 2d 694 (1984)]
However, as discussed above, delegation does - or should - function differently in the
context of criminal law, and the same applies to deference standards. The principle that

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Chevron deference does not apply to interpretations of criminal statutes has been
conclusively established.[Footnote 16: United States v. Apel, 571 U.S. 359, 369 (2014);
Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1155 (10th Cir. 2016); and Abramski v.
United States, 573 U.S. 169, 191 (2014).] EPA appears to be asserting Chevron
deference through this rulemaking to determine who is and is not subject to criminal
liability. This position is contrary to well-settled law.

Moreover, if this rule is finalized, EPA will be applying criminal liability standards
(gross negligence and willfulness) through state programs that are not found in the
CWA. As EPA notes, the case law is clear that the criminal negligence standard in the
CWA is simple negligence and that there is no willful standard in the statute. EPA's
position is therefore not likely to be entitled to Chevron deference, appears contrary to
the statute as explained above, and ignores the clear implications of Congress' explicit
grant of authority to the Administrator to vary statutory civil penalties despite making no
such grant with respect to criminal liability standards.

Agency Response: See Section IV.D of the final rule preamble.

Florida Department of Environmental Protection (FDEP) (EPA-HO-OW-2020-0276-0066-0Q19)
According to EPA, the proposed "new language confirms EPA's interpretation of the
effect of its current regulation" that the CWA authorizes approval of state programs that
allow for

prosecution based on a mens rea of any form of negligence, including gross negligence.
Criminal enforcement for water resources violations is clearly an area of traditional state
control, and federal mandates related to state criminal laws would implicate important
constitutional principles. Additionally, as the Proposed Rule notes, "[i]n addressing the
enforcement requirements for State programs, Congress did not require Tribes and States
to have identical enforcement authority to EPA's. Congress did not use the words 'all
applicable,' 'same,' or any phrase specific to any mens rea standard, let alone the Federal
standard, as it did in other parts of CWA sections 404(h) or 402(b)." [Footnote 16: 88
Fed. Reg. 55,307.]

Florida agrees with EPA's approach here. Under CWA Section 404(h)(1), a State need
[in bold]only demonstrate authority necessary to "abate violations of' its permitting
program, "including civil and criminal penalties and other ways and means of
enforcement." [Footnote 17: 33 U.S.C. § 1344(h)(1)(G).] That broad language makes it
clear that States have flexibility in devising criminal enforcement regimes. The Proposed
Rule affirms this and affirms that EPA has discretion to approve state programs that
deviate from the federal enforcement model within the framework of the Proposed Rule.
Accordingly, the Proposed Rule would further the intent of the CWA Section 402(g) and
404(g) of balancing "the need for uniformity with Tribal and State autonomy" by making
clear that variable state enforcement authority is allowed as part of Section 404
assumption.

Agency Response: See Section IV.D of the final rule preamble.

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Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q46N)

IX. EPA's proposal to allow weaker state enforcement programs conflicts with the Clean
Water Act.

EPA's proposed rule would also allow weaker state enforcement programs than what
federal law requires by allowing states to adopt "any" negligence standard for criminal
enforcement rather than the federal standard. Id. at 55,321, 55,306-08.

At the outset, we remind EPA that there has been strong, widespread opposition to such a
change precisely because it would conflict with the Clean Water Act, undermine the
Act's objectives, and further imperil our waterways.

In the preamble, EPA downplays the extent of that opposition by claiming that there
were only two comments in opposition to its earlier effort to allow weaker state
enforcement programs, while five comments supported the change. Id. at 55,306. But the
fact is that at least nine environmental organizations, including three national
organizations, opposed the change by comment letter dated January 13, 2021.75 An
additional twenty-seven organizations later asked EPA to withdraw the proposed change
on April 20, 2021.76 EPA acknowledged receipt on June 22, 2021. It is therefore clear
that EPA's proposal to undermine criminal enforcement is widely opposed.

Agency Response: See Section IV.D of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0062-0001. EPA agrees with the
commenter's characterization of the number of organizations that signed comment
letters in January and April of 2021 and does not intend to downplay opposition to
its December 2020 proposal addressing the simple negligence mens rea.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q47N)

A. The Clean Water Act plainly requires that state programs have authority to
prosecute simple negligence violations.

Section 309 of the Clean Water Act plainly enumerates violations under Section 402 and
404 for permits issued by the Corps or by a state. Section 309(c)(1) specifically provides
that "[a]ny person who . . . negligently violates . . . any permit condition or limitation
implementing" provisions of the Clean Water Act in a permit issued under Sections 402
or 404 by a state "shall be punished by a fine . . ., imprisonment... or by both." 33
U.S.C. § 1319(c)(1). The plain language of the statute thus provides the floor for state or
federal criminal enforcement of Sections 402 and 404.

75 The January 2021 letter was submitted by Center for Biological Diversity, Columbia
Waterkeeper, Conservancy of Southwest Florida, Earthjustice, Environmental
Confederation of Southwest Florida, Miami Waterkeeper, Minnesota Center for
Environmental Advocacy, Sierra Club, and St. Johns Riverkeeper. See Earthjustice et al.
2021 Letter.

76 The April 2021 letter was submitted by the nine organizations listed above as well as
twenty- seven more organizations from around the country: Advocates for Clean and
Clear Waterways, Alabama Rivers Alliance, Anthropocene Alliance, The Alliance for

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the Great Lakes, Clean Water Action, Colorado Latino Forum, Defenders of Wildlife,
Endangered Habitats League, Environment America, Florida Wildlife Federation, For
the Love of Water, GreenLatinos, Harpeth Conservancy, Idaho Conservation League,
Illinois Council of Trout Unlimited, League of Conservation Voters, Mississippi River
Collaborative, Missouri Confluence Waterkeeper, National Latino Farmers and Ranchers
Trade Association, National Parks Conservation Association, Natural Resources Defense
Council, Nebraska Wildlife Federation, Our Santa Fe River, PolicyLink, Puget
Soundkeeper Alliance, Rural Coalition, Surfrider Foundation, Tennessee Clean Water
Network, and Waterkeeper Alliance. Letter from Tania Galloni et al., Earthjustice et al.,
to Michael Regan et al., EPA, Apr. 20, 2021

Federal courts interpreting Section 309 have uniformly held that the standard set by
Congress for criminal liability is one of simple negligence. See United States v. Maury,
259-60 (3d Cir. 2012) (plain language of "negligence" means ordinary negligence);
United States v. Pruett, 681 F.3d 232, 242-43 (5th Cir. 2012) (same); United States v.
Ortiz, 427 F.3d 1278, 1283 (10th Cir. 2005) (same); United States v. Hanousek, 176 F.3d
1116, 1120 (9th Cir.

1999) (same). States administering Section 402 or 404 must therefore also provide
criminal liability for negligent violations of the Clean Water Act.

EPA's preamble claims that Section 309(c) "specifically provides EPA with enforcement
authority to establish misdemeanor criminal liability in subsection (c)(1) and a range of
penalties for '[njegligent violations' of specified provisions." 88 Fed. Reg. at 55,306. But
Section 309(c) says nothing about granting EPA enforcement authority, nothing about
authorizing EPA to establish misdemeanor criminal liability, and, in fact, nothing about
EPA at all other than as the issuer of Clean Water Act permits and orders that could be
violated. See 33 U.S.C. § 1319(c).

To the contrary, in Section 309(c) Congress itself established misdemeanor criminal
liability for negligent violations of the Clean Water Act. Congress spoke quite plainly on
the matter, stating that anyone who negligently violates a 402 or 404 permit issued by a
State "shall be punished." Id.

Agency Response: See Section IV.D of the final rule preamble.

Earthjustice et al. (EPA-HO-OW-2020-0276-0068-0Q48N)

There is nothing in Section 309(c) that limits criminal liability for negligent violations to
prosecution by the EPA. Where Congress intended to specify authority pertaining to
EPA, it said so. See, e.g., 33 U.S.C. §§ 1319(a)(1) (addressing compliance orders that
may be issued by EPA); 1319(g) (addressing administrative penalties that may be
imposed by EPA or the Corps). Section 309(c), by contrast, is not limited to actions by
EPA (or the Corps).

Congress further expressly required that any state seeking to administer Section 402 or
404 programs demonstrate it has the authority to abate violations of state-issued permits
through civil and criminal penalties before EPA may approve the delegation or
assumption of authority under the Clean Water Act. 33 U.S.C. §§ 1342(b)(7),

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1344(h)(1)(G). The Clean Water Act sets forth those violations in Section 309(c),
including 309(c)(1). States must therefore demonstrate that they have authority to abate
simple negligence violations through criminal penalties.

EPA's preamble acknowledges that states must be able to demonstrate authority to abate
violations through civil and criminal penalties but claims that Section 309 does not apply
as a requirement for state 402 or 404 programs. 88 Fed. Reg. 55,306. But EPA fails to
identify any other place in the Clean Water Act that sets forth the "violations" to which
Sections 402(b)(7) and 404(h)(1)(G) refer. The reference is plainly to Section 309.

The fatal flaw in EPA's approach is evident from the agency's own preamble. At a loss
for any other standard, EPA defends its proposed "any negligence will do" approach as
requiring that "States be able to implement the text of section 309, requiring authority to
prosecute based on a negligence mens rea." 88 Fed. Reg. at 55,307. But the text of
Section 309 criminalizes simple negligence. In other words, the negligence in Section
309 is not "any" negligence. It is, as federal courts have universally recognized, simple
negligence.

EPA claims that its approach is supported by Congress' not requiring identical
enforcement authority in Sections 402 and 404 and seeks to contrast this with other
provisions where Congress required equivalence with federal law. 88 Fed. Reg. at 55,307
(citing Sebelius v. Cloer, 569 U.S. 369, 378 (2013)). But Congress plainly required that
states have authority to abate violations by civil and criminal penalties and plainly set
forth those violations (including as to permits issued by a state) in Section 309. Congress
was required to do no more to make this intent clear.

Agency Response: See Section IV.D of the final rule preamble.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q49N)

As prior comment letters have explained, neither Nat. Res. Def. Council, Inc. v. E.P.A.,
859 F.2d 156 (D.C. Cir. 1988) (NRDC), nor Akiak Native Community v. EPA, 625 F.3d
1162 (9th Cir. 2010), on which EPA continues to rely, support EPA's proposed approach
here. In NRDC, the Court held that state programs need not establish the same maximum
penalties for civil or criminal violations as available under federal law. The issue here is
allowing a state not to have the same minimum negligence standard that is required
under federal law.

In NRDC, the Court recognized the importance of enforcement to meet Clean Water Act
goals. The Court ruled that states were not required to have the same maximum penalties
in light of an express Congressional amendment that stated that increased penalties were
not required for state programs. 859 F.2d at 179. There is no comparable pronouncement
by Congress here. To the contrary, Congress spoke directly to violations of state permits
in Section 309.

In Akiak Native Community, the issue was Alaska's failure to provide for administrative
penalties in its 402 program. The Ninth Circuit ruled that Congress did not require states

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to be able to impose administrative penalties, because the delegation provision addressed
only civil and criminal penalties. 625 F.3d at 1171-72. The issue here, by contrast, is a
state's ability to impose criminal penalties, which the Clean Water Act clearly requires.
See 33 U.S.C. §§ 1342(b)(7); 1344(h)(1)(G).

Allowing states to exclude an entire class of criminal violations from criminal liability
under state law would incentivize states like Idaho and Florida to further avoid
enforcement of the Act and remove an important deterrent to violations of the Act,
regardless of what actions a state may take. 77

Agency Response: See Section IV.D of the final rule preamble.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-005QN)

B. EPA's own regulations have long recognized that states may not require a higher
burden of proof for criminal intent than is required of EPA.

EPA's regulations have rightly recognized that the criminal intent standard for states with
assumed programs must be no greater than that required of EPA under the Clean Water
Act. 40

77 In states with political climates where Clean Water Act enforcement is limited to
begin with, such as Florida and Idaho, a more demanding mens rea requirement would
only tip the scales further, providing cover for state regulators to avoid enforcement
responsibilities. The Idaho Department of Environmental Quality has recently proven
reluctant to take action even against serial violators causing serious environmental harm.
In one notable example, only a citizen suit against the Gallena Complex Mine filed by
the Idaho Conservation League prodded the agency even to file a formal complaint. EPA
should not further erode enforcement by allowing states to ignore an important tool for
deterrence required by Congress.

C.F.R. § 123.27(b)(2) ("The burden of proof and degree of knowledge or intent required
under State law for establishing violations under [§ 123.27(a)(3)] shall be no greater
than" that required of EPA when it prosecutes the offense); id. § 233.41(b)(2) ("The
burden of proof and degree of knowledge or intent required under State law for
establishing violations under [§ 233.41(a)(3)] 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."); see also Idaho Conservation League v. U.S. Env't Prot. Agency, 820 F. App'x
627 (9th Cir. 2020).

EPA suggests that its proposed approach is "consistent with" the Ninth Circuit's
statement in Idaho Conservation League that a state program's burden of proof on
criminal intent need not "mirror" the federal programs' burden. 88 Fed. Reg. at 55,307.
But the Ninth Circuit expressly rejected that argument as authorizing EPA to approve a
state 402 program with a heightened mens rea requirement, because under the very
regulations EPA now seeks to "clarify," EPA clearly required that a state's criminal
intent standard be no greater than that required of EPA [Footnote 78: The Ninth Circuit
also expressly rejected EPA's argument that its own regulation was ambiguous or

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internally inconsistent and that the Court should therefore defer to the agency's
interpretation. 820 F. App'x at 628.] 820 F. App'x at 628. As the Ninth Circuit
recognized, the issue is not one of mirroring, but of meeting the minimum Clean Water
Act standard. Id.

Although EPA claims it has long asserted this position, the preamble points to nothing
other than EPA's litigation position in Idaho Conservation League, which the Ninth
Circuit panel unanimously rejected. EPA neglects to mention that the agency originally
notified Idaho that its proposed 402 program was not adequate under federal law because
of its heightened mens rea standard. The Trump Administration reversed course and
approved Idaho's program anyway. It then went on to approve Florida's 404 program
notwithstanding the same enforcement deficiency. It is disappointing that this
administration has chosen to continue down the road of undermining Clean Water Act
enforcement.

Whether old or new, EPA's proposed approach is unlawful. As shown above, the Clean
Water Act plainly requires states to have the authority to abate simple negligence
violations by criminal penalties. There is therefore no ambiguity in the statute for the
agency to resolve. Cf. 88 Fed. Reg. at 55,307-08. And because EPA's proposed approach
is contrary to the statute, it is not reasonable, and therefore not lawful.

Lastly, EPA's claim that there is no "concrete evidence" to demonstrate that the absence
of simple negligence mens rea in some state programs has adversely affected state
enforcement is neither here nor there. Id. at 55,308. Congress has spoken clearly on what
is required. And a primary purpose of the Clean Water Act's robust enforcement scheme
is to deter, as well as punish, violations. It may not be practical to quantify the impact a
strict enforcement regime has. But that is no reason to ignore what Congress has
mandated.

Congress has struck the balance between state autonomy, minimum federal requirements,
and the interest in uniformity. That balance is reflected in the statute itself. EPA cannot
reweigh those interests where Congress has plainly spoken. And EPA cannot, and should
not, authorize state programs that undermine enforcement of the Clean Water Act.

Agency Response: See Section IV.D of the final rule preamble. EPA disagrees with
the commenter's assertion that in States with political climates where CWA
enforcement is limited to begin with, its change to the mens rea requirement would
only "tip the scales" further away from enforcement. EPA is unaware of evidence
indicating that any lack of willingness to prosecute "serial violators causing serious
environmental harm" would be affected by the authority to prosecute simple
negligence violations of the CWA.

Nebraska Department of Environment and Energy (EPA-HO-OW-2020-0276-0073-00Q8)

The proposed rule amends the criminal enforcement requirement to provide that assumed
States must authorize prosecution based on any form of negligence.

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• This lessens the burden on States that would have had to pass legislation for
simple negligence standards.

Agency Response: See Section IV.D of the final rule preamble.

State of Alaska Department of Environmental Conservation (EPA-HQ-QW-2020-0276-0079-

oo m

The Proposed Rule provides that States and Tribes "do not need authority to prosecute
based on a simple negligence mens rea in their criminal enforcement programs."
[Footnote 42: 88 Fed. Reg. 55308.] It "does not change the standard applicable to EPA's
criminal enforcement of the CWA." [Footnote 43: 88 Fed. Reg. 55308.].

Alaska has no objection to this provision, which does not change current law.

Agency Response: EPA acknowledges this comment.

Idaho Conservation League (EPA-HQ-OW-2020-0276-TRANS-092923-013-000n

This rulemaking concerns some of our interests as the state of Idaho in the last several
years has been granted primacy for NPDES program and is in the relative infancy of
developing their program and administrating that program successfully. As the general
political will in the state of Idaho does not generally afford the Idaho Department of
Environmental Quality the ability to be particularly aggressive on compliance and
enforcement issues for NPDES, organization has played a role in watchdogging
violations of the IPDES and NPDES program, including initiating citizen suits against
specific violators.

So, specifically to this rule to my understanding as it would allow, or potentially, I guess,
to put in writing the regulatory ability for states to develop their own standard for
criminal intent, we see this as potentially a negative impact for our interests and the
interest of environmental conservation in Idaho. Citizen suit procedures were written into
the Clean Water Act for a reason and although we may not be able to bring a criminal
case as an organization, it would help, or so, I guess, strengthen the intent for the
responsibility for the State of Idaho to hold criminal violators responsible to the same
standard that the Federal Government would. So, I think for the cases, EPA and those
listening as it pertains to them in their interest, if there is an interest in making sure that
conservation is, and protections of, you know, the Clean Water Act regulations and
resources is consistent throughout the states and held to the highest standard as the
Federal Government sees it, then I would recommend that these regulations or
rulemaking does not allow for criminal intent to be interpreted by an individual state, that
it should be, as with many other regulators that it needs to be, or many other regulations,
that it needs to be consistent, at least as stringent as federal standards, if not more, but no
less. So, thank you for the time. If there's any questions, I'd be happy to elaborate and
thank you again.

Agency Response: See Section IV.D of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0068-0050.

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EarthiusticeffiPA-HO-OW-2020-0276-0068-SD-2-000n

We write on behalf of several local, state and national conservation organizations
devoted to protecting the Nation's lands, water and wildlife to urge the U.S.
Environmental Protection Agency ("EPA") to withdraw its proposed rule regarding the
Criminal Negligence Standard for State Clean Water Act 402 and 404 Programs. The
proposed amendment to 40 C.F.R. §§ 123.27 and 233.41(b)(2) is arbitrary, unreasonable,
and an unlawful interpretation of the negligence standard required under Clean Water
Act section 309(c)(1), 33 U.S.C. § 1319(c)(1), in that it would allow for state-assumed
enforcement to be less stringent than federal enforcement, in violation of federal law. We
urge the EPA to abandon this unlawful, unreasonable proposal that would ultimately
result in weakened and inconsistent protections for wetlands, water, and wildlife.

Agency Response: See Section IV.D of the final rule preamble.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-2-00Q3)

A.	Criminal Enforcement Of The Clean Water Act Is Critical To Ensure Fulfillment Of
The Promises And Requirements Of The Act.

The backstop of criminal enforcement is a critical safeguard and deterrent to ensure that
permittees comply with permit conditions to minimize environmental degradation and
maximize environmental protections as required by the Clean Water Act. To that end,
Clean Water Act Section 309(c)(1)(A), codified in 33 U.S.C. § 1319(c)(1)(A), makes it a
crime to negligently violate "any permit condition or limitation implementing any of
such sections in a permit issued under section 402 of this title by the Administrator or by
a State or.. .404 of this title by the Secretary of the Army or by a State." (emphasis
added). Every federal circuit court to have considered this language has held that the
plain meaning of section 309(c)(1) establishes liability for simple or ordinary negligence
for violations of Clean Water Act permits.

In section 309(c)(1), Congress spoke directly and unambiguously to the mens rea
requirement for Clean Water Act violations. Section 309(c)(1) states: "[a]ny person who.
. . negligently violates. . . any requirement imposed. . . in a permit issued under sections
402 or 404 of this title by the Secretary of the Army or by a State. . . shall be
punished[.]" 33 U.S.C. § 1319(c)(1).

B.	The Proposed Rule Itself Is Internally Inconsistent.

EPA's proposed regulation at 40 C.F.R. §§ 123.27(b)(2) and 233.41(b)(2) is internally
inconsistent, and therefore arbitrary and unreasonable. The proposed regulation purports
to continue to require that state mens rea requirements be as stringent as federal law, but
then creates an express exception that eviscerates that very requirement, making the first
statement false. The proposed regulation is directly contrary to the requirement that EPA
authorize state programs only if they are at least as stringent as the federal program. 33
U.S.C. §§ 1342(b) and 1344(g)(1), (h)(1); 40 C.F.R. §§ 123.27, 233.1(d), and
233.41(b)(2).

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Agency Response: See Section IV.D of the final rule preamble. EPA affirms in this
rule the importance of the principle that Tribal and State programs must no less
stringent than federal programs, but also recognizes the need to allow for some
degree of variation in Tribal and State regulatory, administrative and judicial
structures. See also Sections IV.A.2 and IV.C.2 of the final rule preamble.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-2-00Q4N)

C. EPA Cannot Propose A Rule Contrary To The Express Direction Of Congress And
The Overwhelming Weight Of Case Law.

Although Congress spoke directly to the standard of negligence required to violate a
federal or state-issued 402 or 404 permit, EPA claims that it seeks "to clarify that
states... are not required to establish the same negligence standard that the CWA
establishes." 85 Fed. Reg.

80713 (December 13, 2020). EPA's proposal does not "clarify," but rather, changes and
amends 40 C.F.R. §§ 123.27(b)(2) and 233.41(b)(2) to add the language underlined
below:

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 provide when it brings an
action under the Act, except that a State may establish criminal violations based on any
form or type of negligence.

EPA's Proposed Rule would allow for distinctly different mens rea standards to be
applied by states that assume 402 or 404 permitting, and therefore would allow for less
stringent enforcement and less protection under state programs. Ordinary negligence is
the lowest form of criminal mens rea aside from strict liability. It is the failure to use care
that a reasonably prudent and careful person would under similar circumstances. United
States v. Hanousek, 176 F.3d 1116, 1120 (9th Cir. 1999). A lower mens rea standard
provides for more robust criminal enforcement of permit violations - and therefore
greater environmental protections - because it sets a lower bar the government must
meet to bring and prevail in an enforcement action and promotes compliance through
deterrence.

Gross or culpable (criminal) negligence, is a different mens rea as compared to ordinary
negligence. For example, in Florida, culpable negligence is defined as "reckless
indifference or grossly careless disregard of the safety of others." State v. Greene, 348
So. 2d 3, 4 (Fla. 1977). It has also been defined as "a gross and flagrant character,
evincing reckless disregard for human life or of the safety of persons exposed to its
dangerous effects;" or "the entire want of care which would raise the presumption of
indifference to consequences;" or "reckless indifference to the rights of others, which is
equivalent to an intentional violation of them." Id. Unlike simple negligence, culpable
negligence encompasses threatened or actual harm to others and can be the basis for
violent crimes such as manslaughter. In the context of environmental offenses, such a

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high bar would exclude an entire class of permit violations that are subject to criminal
penalty under federal law.

Every Circuit Court of Appeal to have interpreted this provision of the Clean Water Act
has held it requires ordinary or simple negligence, rather than a higher criminal
negligence standard, such as gross negligence. Hanousek, 176 F.3d at 1120; United
States v. Ortiz, 427 F.3d 1278, 1283 (10th Cir. 2005); United States v. Pruett, 681 F.3d
232, 243 (5th Cir. 2012); United States v. Maury, 695 F.3d 227, 259 (3d Cir. 2012). No
other court has interpreted this statutory provision to state otherwise.

Agency Response: See Section IV.D of the final rule preamble.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-2-00Q5N)

Agencies cannot override Congress's plain direction, either explicitly or in the manner
the agency interprets and applies its rule. See, United States v. Maes, 546 F.3d 1066,
1068 (9th Cir. 2008) ("a regulation does not trump an otherwise applicable statute"); and
United States v. Doe, 701 F.2d 819, 823 (9th Cir. 1983) ("[wjhere an administrative
regulation conflicts with a statute, the statute controls"). Because Congress has spoken
directly to the standard of negligence required for a violation of section 402 and 404
permits, EPA is not authorized to promulgate a regulation contrary to the statute. See, 5
U.S.C. § 706(2)(A); Chevron v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984).

For section 402 and 404 programs, Congress clearly states at section 309(c)(1)(A) that
the negligence mens rea standard applies to violations of permits issued by the
Administrator, the Corps, or by a state. Because sections 402 and 404 of the Clean Water
Act pertains to both federal and state-assumed programs, it is incorrect for EPA to
maintain that section 309(c)(1) applies only to criminal enforcement actions brought by
EPA. See, 85 Fed. Reg. 80715. When a state government enforces a state-assumed 402
or 404 program, it is required to uphold the purposes and minimum standards of the
Clean Water Act, even if the programs are not identical. This premise is evident in the
current regulations, which state that "the degree of knowledge or intent required under
State law for establishing violations. . . shall be no greater than the degree of knowledge
or intent EPA must provide when it brings an action under the Act." See, e.g., 40

C.F.R. § 233.41(b)(2). See also, 40 C.F.R. § 233.1(d). It is further evident in the
congressional intent that state-assumed Clean Water Act programs be more effective
than the federal program, discussed further below, and the requirement that states
demonstrate adequate authority to carry out a 402 or 404 program. 33 U.S.C. §§ 1342(b)
and 1344(g)(1).

That the ordinary negligence standard applies to Clean Water Act program violations,
regardless whether the permit is issued by the federal government or the state, is affirmed
in United States v. Maury, 695 F. 3d 227 (3d Cir. 2012). In Maury, the Department of
Justice brought an enforcement action under Clean Water Act section 309(c) for
violations of a New Jersey-issued National Pollutant Discharge Elimination System
("NPDES") permit (a section 402 permit). Id. at 234, 244. DOJ charged defendants with
willful violations of the Act, but defendants requested a jury instruction for lesser

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included offenses, which were misdemeanor negligent violations. Id. at 255. The court
instructed the jury as to simple negligence, rather than gross negligence, for the lesser
included offenses, and defendants were convicted for willful and negligent violations of
the Act. Id. at 246, 256.

The Third Circuit Court of Appeals affirmed application of the simple negligence
standard, citing Hanousek, Ortiz, and Pruett. Id. at 257-58. The court adopted the
reasoning in those cases, citing the plain language of the text and noting that when
Congress intended a higher mens rea requirement in other provisions of the Act, it
explicitly stated so. Id. at 257 (citing 33

U.S.C. § 1321(b)(7)(D), where Congress used the phrase "gross negligence"). The court
also cited the Ninth Circuit's reasoning in Hanousek that the Clean Water Act is public
welfare legislation that can criminalize ordinary negligent conduct that "a reasonable
person should know is subject to stringent public regulation and may seriously threaten
the community's health or safety." Id.

Agency Response: See Section IV.D of the final rule preamble. EPA agrees that it
lacks authority to issue a rule contrary to the CWA, but as described in the
preamble, the Agency views this rule as consistent with the statute.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-2-00Q6N)

EPA attempts to minimize the significance of its proposal by characterizing it as
"[a] 11 owing states or tribes flexibility in the degree of negligence for which they are
authorized to bring criminal cases," 85 Fed. Reg. 80716. This "flexibility," however,
would allow states to exclude an entire class of permit violations from criminal liability.
Further, as set forth above, the "flexibility" afforded by the Clean Water Act is a one-
way ratchet, only allowing states to be more, not less, protective.

EPA also cites Natural Resources Defense Council, Inc. (NRDC) v. EPA in an attempt to
support its radical change to allow state assumed permit programs to offer less
protections to water resources than when those programs are administered by federal
agencies. EPA claims in this regard that state and federal programs need not "mirror"
each other. 85 Fed. Reg. 80715-16 (citing Nat. Res. Def. Council, Inc. v. United States
Envtl. Prot. Agency, 859 F. 2d 156 (D.C. Cir. 1988)). While a state program need not
"mirror" the federal program, it absolutely must provide at least the same level of
protections to the nation's water resources - including the disincentives and enforcement
safeguards - as those afforded under federally administered programs. See, 40

C.F.R. § 233.1(d) ("[a]ny approved State program shall, at all times, be conducted in
accordance with the requirements of the Act. . . [wjhile States may impose more
stringent requirements, they may not impose any less stringent requirements for any
purpose").

NRDC provides no support for EPA's proposed rule, as NRDC is factually
distinguishable, and it in fact makes clear that the present proposal is contrary to
legislative intent. NRDC is distinguishable to the proposed rule at hand, first because it

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addresses penalties, not liability. It therefore presumes successful prosecution of a
violation in the first place. The case involved a challenge to EPA regulations that
allowed different maximum penalties in a state-administered NPDES program to those
required under the Clean Water Act. Nat. Res. Def. Council, Inc., 859 F. 2d at 173. EPA
was tasked with fashioning minimum enforcement provisions deemed adequate for state-
delegated 402 programs, and the minimum penalties in the regulation at issue were set
higher than the minimum penalties in the Clean Water Act. Id. at 178-179 (emphasis
added). This is, of course, consistent with the overall policy and goal of Congress to
make the Clean Water Act the minimum baseline protections for our water resources.
The EPA's reasoning in promulgating the minimum penalty baseline regulation was "to
ensure effective State enforcement programs" so that EPA would not "be forced to take
its own enforcement action in approved States" because of an inadequate state program.
Id. at 181. The court recognized that while EPA regulations establish "a floor for. . . state
enforcement authority," Congress made its intent clear that state-assumed Clean Water
Act programs must be administered to "provide a much more effective program than that
which would result from control in the regional offices of the Environmental Protection
Agency." Id. at 174.

Here, EPA is attempting to set the floor for enforcement actions below what is required
by CWA; that is, to allow a state program that is harder to enforce because of a higher
mens rea standard is below the floor of minimum enforcement requirements and
therefore contrary to legislative intent for state-assumed programs. EPA would allow
states to pull the floor out from Clean Water Act enforcement by allowing states to
exclude an entire class of criminal violations from criminal enforcement, and in doing so,
undermining deterrence, compliance with, and enforcement of the Act. Plainly implicit
in NRDC is that a state program that is less effective than a federally administered
program runs counter to the Act and is, in a word, pointless.

Finally, EPA's proposed rule here would create the very scenario EPA sought to avoid in
the rulemaking at issue in NRDC: state-assumed programs with higher negligence mens
rea standards would be inadequate and require EPA to step in to ensure compliance with
the Act.

Agency Response: See Section IV.D of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0062-0001.

Earthiustice(EPA-HO-OW-2020-0276-0068-SD-2-0Q(m

The other case EPA cites, Akiak Native Community, v. EPA, is also factually
distinguishable and further demonstrates that EPA's proposed rule here is unlawful. See
85 Fed. Reg. 80716 (citing Akiak Native Cmty. v. United States Envtl. Prot. Agency 625
F. 3d 1162, 1171-72 (9th Cir. 2010)). That case involved a challenge to the delegation of
section 402 permitting authority to the state of Alaska. First, Akiak involved a challenge
to Alaska's ability to assess civil penalties administratively compared to the federal
government's, which is entirely different to the issue in the proposed rulemaking, which
involves criminal liability for Clean Water Act program violations. See, Akiak, 625 F. 3d
at 1171 (emphasis added). The court upheld the program transfer, finding that Alaska
had other effective enforcement means as to civil penalties, such as the ability to sue

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permit violators for environmental remediation costs or damages. Id. at 1172. Akiak
reinforces the principle that a state program must be at least as stringent as its federal
counterpart. The Ninth Circuit allowed the state to assume the program, but only because
the state's alternative method was sufficient to ensure that Alaska had equally adequate
civil enforcement of permit requirements. Here, if the proposed rule were adopted, it
would allow states to exclude an entire class of permit violations from criminal liability.
This would undermine deterrence and compliance with the Clean Water Act and is
plainly not equal or adequate.

Finally, the Ninth Circuit recently again affirmed, in Idaho Conservation League v.
United States Envtl. Prot. Agency, No. 18-72684 (September 10, 2020), that state-
assumed programs must provide water resources protection equal to federal programs,
finding that the EPA abused its discretion in approving a state 402 program with a gross
negligence standard. The court re-affirmed that ordinary negligence is the standard for
violations of Clean Water Act section 309(c)(1), and while acknowledging that a state
program need not "mirror" the federal program as to mens rea, a state plan must include
criminal liability for a mens rea standard no greater than ordinary negligence. Slip op. at
3 (citing 40 CFR § 123.27(b)(2), which is identical to § 233.41(b)(2)).

EPA's proposed rule finds no support in either the statute or case law.

Agency Response: See Section IV.D of the final rule preamble.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-2-00Q8N)

EPA's proposed rule would allow states to implement inconsistent and contrary levels of
water resource protections through differing levels of enforcement. This is a very real
and immediate problem that directly contradicts the basic policy and purpose of
Congress to provide a minimum baseline of water protections across the nation and also
Supreme Court case law directing that one state's permitting cannot interfere with
another state's implementation and achievement of its water Clean Water Act standards
and protections. See, Arkansas v. Oklahoma, 503 U.S. 91 (1992).

In practice, why for example, should a polluter be able to remain free of criminal
penalties in North Dakota, but be subject to those penalties in Minnesota for discharges
of pollutants that may affect both states? When a violation occurs, what happens to a
discharger into a large river like the Columbia/Snake system or the Missouri or the
Menominee River that traverse and/or border multiple states? Perhaps the upstream state
(e.g. Idaho in the Columbia/Snake system) has a different mens rea than downstream, but
the downstream states' (Oregon and Washington's) hands are tied to take action against
what may be a serious violation causing serious damage. Plainly this system is directly
contrary to the concept that the federal Clean Water Act sets the minimum guarantees
and protections for all waters. It further is directly contrary to the principles espoused
regarding permitting in Arkansas v. Oklahoma that an upstream state cannot issue
permits or take actions that will negatively affect a downstream state's ability to meet
that state's water quality standards. A different mens rea in an upstream or bordering
state would cause similar problems, removing the ability of the downstream state to
obtain equal and adequate enforcement of standards and permit requirements.

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EPA's proposed rule is therefore both impractical, likely to lead to confusing and
contradictory results, and contrary to long-established and basic Clean Water Act
principles and requirements for consistent baseline protection of water resources.

Agency Response: See Section IV.D of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0062-0001. Per the commenter's
example, in the event a downstream Tribe or State were unable to take action
against a criminal violation that occurred in an upstream Tribe or State, and that is
affecting the downstream Tribe or State's waters because of the absence of a simple
negligence standard in the upstream Tribe or State, the downstream Tribe or State
could ask EPA to exercise its enforcement authority. EPA anticipates that such
situations will be extremely rare, as in most cases downstream Tribes or States
would be able to prosecute discharges affecting their waters from upstream Tribes
or States as grossly negligent or knowing violations.

Earthiustice(EPA-HO-OW-2020-0276-0068-SD-3-0Q17N)

- EPA Must Not Approve Programs That Lack the Proper Mens Rea Standard
As EPA is aware from litigation over Idaho's application to assume Section 402
permitting, EPA cannot approve a state permitting program that fails to criminalize
simple negligence for violations of the law. The Ninth Circuit found EPA's approval of
Idaho's submission contrary to the law on that basis. Yet, EPA did the same thing in
approving Florida's assumption of Section 404 permitting. This is incorrect under the
law. EPA's new rules must be clear on this point and EPA must ensure that its staff
understands and uniformly applies and enforces that requirement in all states.

Agency Response: See Section IV.D of the final rule preamble.

2. Other comments

The Petroleum Alliance of Oklahoma (EPA-HO-OW-2020-0276-0055-0Q15N)

V. EPA SHOULD NOT REQUIRE STATES TO HAVE THE SAME CRIMINAL
ENFORCEMENT AUTHORITY AS EPA

In a separate proposed rulemaking, EPA proposed that states and tribes should not be
required to have the same criminal enforcement authority as the courts have interpreted
EPA to have. 85 Fed. Reg. 80713 (Dec. 14, 2020). As EPA noted in the preamble to that
proposed rulemaking, while EPA's enforcement authority under the Clean Water Act
requires only proof of ordinary negligence, that provision does not necessarily apply to
state or tribal programs. Id. at 80715.

Instead, EPA maintains that it is enough that the state has authority to "abate violations
of the permit or permit program." Id., citing 33 U.S.C §§ 1342(b)(7), 1344(h)(1)(G). The
Act, EPA concluded, does not require identical enforcement authority between states and
EPA. Id.

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The practical effect of EPA's interpretation in the 2020 rulemaking and the instant
rulemaking, see 88 Fed. Reg. at 55307, is that states may account for different degrees of
negligence for which they are authorized to bring criminal cases. The Alliance agrees
with and supports EPA's analysis of the underlying statutory provisions and the
applicable case law. The Clean Water Act does not require that states' enforcement
authority merely duplicate the Act's enforcement authority; the Act and EPA's
interpretation thereof appropriately acknowledge state autonomy in this instance.

Agency Response: EPA acknowledges the commenter's expression of support.

The Petroleum Alliance of Oklahoma (EPA-HO-OW-2020-0276-0055-00Q3N)

Conversely, The Alliance agrees with and supports EPA's conclusion that sections 402
and 404 of the Clean Water Act allow for state programs to have approaches to criminal
enforcement different than EPA's statutorily mandated approach [Footnote 1: EPA raised
the issue of criminal negligence in this rulemaking apparently without adverting to the
complexity of tribal criminal jurisdiction, particularly tribal criminal jurisdiction over
non-Indians. The leading treatise on Indian law notes that Indian tribes do not have
criminal jurisdiction over non-Indians. Instead, the treatise notes, EPA typically will
grant primary regulatory status to tribes without requiring them to demonstrate full
criminal enforcement authority. COHEN'S HANDBOOK OF FEDERAL INDIAN
LAW § 10.06[2] at 816 (Nell Jessup Newton (ed. 2012). Recent Supreme Court
decisions have addressed tribal criminal authority over non-Indians but leave the subject
confused. See Oklahoma v. Castro-Huerta, 142 S. Ct. 2486 (2022); United States v.
Cooley, 141 S. Ct. 1638 (2021). The Alliance strongly urges the agency to reconsider
whether it is prudent to enmesh the section 404 issue with tribal criminal enforcement
authority.].

Agency Response: See Section IV.D of the final rule preamble. This rule does not
impose any new enforcement authority requirements on Tribes.

National Association of Wetland Managers (NAWM) (EP A-HO-OW-2020-0276-0072-0Q21)
In order for States and Tribes applying for authorization to meet the "no less stringent
then" standard there should be comparable standards of compliance evaluation and
enforcement to the current federal authorities. In order to ensure that this standard is
achieved, and to provide clear expectations of EPA to the applying authority, it would
seem best to incorporate these expectations into the regulations. NAWM supports a
consistent approach between authorized authorities, the federal 404 program, and
consistency among CWA programs.

Agency Response: See Section IV.D of the final rule preamble.

Natural Resources Defense Council (EPA-HO-OW-2020-0276-TRANS-Q92923-008-0009)

Three, the state has the capacity to enforce against the full range of violations of the law,
including negligent ones.

Agency Response: See Section IV.D of the final rule preamble.

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Chickaloon Native Village (EPA-HO-OW-2020-0276-TRANS-Q92923-009-00050

I also agree with Becky Ayech's comment regarding the funding that is required for
enforcement, and that you need to make it more costly to not follow the 404. Regulations
mean nothing without enforcement, and too often we see regulations go forward and
they'll follow up work on the ground to actually enforce them. I also agree with her
comments that EPA needs to regularly review how well states that have primacy are
protecting their resources, and not only should the EPA take enforcement actions if they
are not but begin proceedings to remove their authority of primacy. That ends my
comments.

Agency Response: EPA agrees with the commenter's assertion of the importance of
Tribal and State 404 program enforcement, and of EPA oversight of Tribal and
State enforcement efforts. This rule clarifies and strengthens requirements related
to both Tribal and State program enforcement, and EPA oversight of their efforts.
EPA also agrees that it is important that EPA maintains the authority to conduct
enforcement actions even where Tribes and States have assumed permitting
authority.

E. Subpart F - Federal Oversight

1. Dispute resolution

The Petroleum Alliance of Oklahoma (EPA-HO-OW-2020-0276-0055-00Q8N)

One example rests on the fact that the preamble and proposed rule do little to explain how
EPA would respond if both the state and one or more tribes located within Oklahoma
concurrently sought to assume administration of section 404 within their jurisdictions.
Disputes among similarly situated parties would be almost certain to arise, yet EPA sees
its role only as a facilitator of conflict resolution.

EPA's response to concerns that such disputes may arise provides little solace. The
preamble to the proposed rule states that EPA will assist in facilitating resolution of such
disputes but provides little in the way of detail. In fact, EPA declined to "articulate in the
regulations all potential areas where a dispute may arise." 88 Fed. Reg. at 53312. Instead,
EPA is proposing to add a "general provision" to the Purpose and Scope section stating
EPA may facilitate resolution of such disputes. Perhaps that is the best EPA can do but
permit applicants may find themselves in extended purgatory while EPA attempts - if it
chooses to become involved - to facilitate a resolution between a state and potentially
numerous tribes as well as upstream entities. This approach will impose potentially
significant costs on states that EPA's Economic Analysis does not address.

Presumably, permittees would be left on the sidelines while the parties waited on EPA's
assistance. The preamble says nothing about how EPA would respond if the dispute
remained unresolved. Does permitting in those jurisdictions simply come to a halt? Such
a situation would create confusion for the regulated community, as well as significant
permitting delay. The Alliance sees such a circumstance as unacceptable. Presumably, the
State of Oklahoma would be forced to somehow navigate the issues at the root of the

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dispute, yet the agency's Economic Analysis does not even qualitatively identify this as a
cost. Neither does the Economic Analysis try to estimate how such delays would affect the
regulated community.

Agency Response: The Agency appreciates the concerns raised by the commenter;
however, EPA disagrees that the provision is not sufficient to resolve disputes. The
Agency has provided this clarification to address situations, such as the one presented
by the commenter. The provision's intentional flexibility and lack of a prescriptive
list of scenarios where conflict may arise, allows EPA to facilitate, as appropriate
(i.e., EPA will not likely engage in disputes between a State water quality agency and
its sister wildlife agency). Disagreements are highly dependent on particular factual
circumstances and relevant case law and thus the Agency has provided flexibility on
how these are to be resolved. EPA disagrees that permittees will be waiting
indefinitely for disputes to be resolved. Permitting processes, including timelines, are
clearly outlined in sections 40 CFR 233.30, 233.32, and 233.34 of the regulations. See
Section IV.E.l of the final rule preamble for further discussion of the Agency's
rationale for providing this clarification regarding resolution of disputes as well as
response to the comments below.

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0017)

EPA must require that MOAs include a provision on dispute resolution. This dispute
resolution process must include an avenue for tribes within the state or with rights,
resources or ancestral territory within the state to initiate a dispute resolution process in
the event their concerns are not heard or addressed by either the assuming state, the Corps,
or EPA. Dispute resolution is a valuable tool that may reduce the need for litigation.

Agency Response: See Section IV.E.l of the final rule preamble and the Agency's
Response to Comments in Section B.6. Just as EPA is not mandating one specific
approach to resolving all disputes, EPA declines to require Tribal or State MOAs
with EPA to include one specific dispute resolution approach. Tribal and State
program structures may differ, as may the circumstances of particular
disagreements. EPA does not think it would be helpful to prescribe one method of
resolution, nor to mandate that Tribes or States do the same. However, to the extent
Tribes or States choose to lay out a dispute resolution or elevation provision in their
MOAs, the rule does require that provision to be followed. See 40 CFR 233.1(f).

Regarding a Tribe's ability to seek resolution about concerns associated with permits
issued by other Tribes or States that may adversely affect their waters or interests,
see Section IV.F of the final rule preamble, Section F of the Agency's response to
comments regarding Tribal considerations, and 40 CFR 233.30, 233.32, 233.34, and
233.51(b)(3). Additionally, EPA generally consults with affected Tribes on the
approval of Tribal and State program requests. See EPA Policy on Consultation with
Indian Tribes at 5, available at https://www.epa.gov/system/files/documents/2023-
12/epa-policy-on-consultation-with-indian-tribes-2023_0.pdf.

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Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0027)

EPA fails to outline how it will facilitate dispute resolution within the proposed
regulations, and declines to include in the proposed regulations a requirement that
applicant states and the Corps include a dispute resolution process in their MOAs. As
stated above, dispute resolution must be a required component of MOAs between
assuming states and the federal agencies. Those dispute resolution provisions must address
how the assuming state and federal agencies will address concerns raised by affected tribes.
Dispute resolution can be a helpful tool and may help reduce potential litigation.

Agency Response: See Section IV.E.l of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0063-0017.

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0028)

EPA must also have a separate dispute resolution process outlined in the regulations for
affected tribes and the public to raise concerns throughout the state application process for
assumption of 404 permitting authority. EPA's proposed regulations outline several steps
states must take even before submitting a full application to EPA for Section 404
assumption. Every step along the way poses potential for dispute, including the process
for establishing a retained waters list, state demonstrations of funding to adequately
administer the permitting program, state demonstrations of legal parity with federal
requirements, to name a few. EPA must find a way to resolve disputes between state
agencies, affected tribes, and the public. State assumption can have broad, and potentially
severe impacts, particularly to affected tribes. A dispute resolution process provides
interested parties an assured mechanism for disputes to be resolved in a transparent
manner.

Agency Response: See Section IV.E.l of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0063-0017. There is no bright line
national standard that EPA could establish to address each of the particular
situations the commenter has identified, which would be highly dependent on
particular factual circumstances and relevant case law.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q58N)

XIII. EPA should require that dispute resolution procedures be outlined in memoranda
of agreement.

Regarding EPA's proposed rule changes to clarify its role in facilitating dispute resolution,
EPA should require that state programs provide the procedures for dispute resolution in
the memorandum of agreement between the state and EPA. This will ensure transparency
for all interested and affected parties.

Agency Response: See Section IV.E.l of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0063-0017.

Earthiustice et al. (EPA-HQ-QW-2020-0276-0068-0065)

- EPA must require that MOAs include a provision on dispute resolution. This dispute
resolution process must include an avenue for Tribes within the state or with treaty rights

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or resources or ancestral territory within the state to initiate a dispute resolution process in
the event their concerns are not heard or addressed by either the assuming state, the Corps,
or EPA. EPA must also have a separate dispute resolution process outlined in the
regulations for affected Tribes and the public to raise concerns throughout the state
application process for assumption of 404 permitting authority.

Agency Response: See Section IV.E.l of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0063-0017.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q66N)

It is not up to EPA to determine whether a state has jurisdiction in Indian Country.
Questions or uncertainties about state jurisdiction in Indian Country must be first
addressed with the affected tribe, and EPA must maintain a presumption that there is no
state jurisdiction in Indian Country. If there is still a dispute, then the proper avenue is for
a federal judiciary or Congress, not EPA, to determine.

Agency Response: EPA appreciates the commenter's concern. As recognized in
EPA's regulations, in many cases, States lack authority to regulate activities in Indian
country. See 40 CFR 233.1(b). Thus, the Corps will continue to administer the
program in Indian country unless EPA determines that a State has authority to
regulate discharges into waters in Indian country. See id. If a question arises with
respect to potential State jurisdiction in Indian County, EPA will work with the
appropriate decision authorities to resolve the uncertainty. However, EPA does have
the authority to approve the scope of a Tribal or State section 404 program. See 33
U.S.C. 1344(h)-(l).

Choctaw Nation of Oklahoma (EPA-HQ-QW-2020-0276-0069-0006)

Additionally, dispute resolution must be a required component of MOAs
between assuming states and the federal agencies. Those dispute resolution provisions
must address how the assuming state and federal agencies will address concerns raised by
affected tribes. Dispute resolution can be a helpful tool and may help reduce potential
litigation.

Agency Response: See Section IV.E.l of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0063-0017.

Region 10 Tribal Operations Committee (RTOC) and National Tribal Water Council (NTWC)

(EPA-HO-OW-2020-0276-0070-0Q11)

VII. The lack of a clear dispute resolution process or guidelines lacks transparency and
impedes the ability of parties to seek judicial review.

A clearly articulated procedure for dispute resolution will be necessary for Tribes to
preserve the option for judicial recourse. The more discretion granted to EPA in mediating
disputes, the less basis for independent assessment and therefore the less ability for the
judiciary to address perceived errors.[Footnote 6: See, e.g., Menominee Indian Tribe of
Wise. v. Environmental Protection Agency, 947 F.3d 1065, 1073 (7th Cir. 2020).] In
effect, agency flexibility is able to trump judicial oversight. Given the rule's

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acknowledgement of judicial review as being essential for ensuring "meaningful public
participation" in other parts of the program,[Footnote 7: Clean Water Act Section 404
Tribal and State Program Regulation, 88 Fed. Reg. 55,299.] the same needs and
requirements should be present in dispute resolution. Dispute resolution should be
transparent and reviewable, and the proposed rule does not appear to provide such
safeguards.

Agency Response: The Agency appreciates the commenter's concern regarding
transparency and reviewability of resolution of disputes. The provision is written to
maintain necessary flexibility in how disputes are resolved, however. See Sections
IV.E.l and IV.C.2 of the final rule preamble and the Agency's Response to Comment
EPA-HQ-OW-2020-0276-0063-0017. EPA separately addresses Tribal engagement
in the permitting process in Section IV.F of the final rule preamble.

Region 10 Tribal Operations Committee (RTOC) and National Tribal Water Council (NTWC)

(EPA-HO-OW-2020-0276-007Q-0013)

VIII. The language of the rule only allows EPA to facilitate dispute resolution for States
seeking to administer a section 404 program, and not disputes arising once the State has
begun administering the program.

To create broad dispute resolution powers, the "Purpose and Scope" section was amended
to include language enabling EPA to mediate in disputes "between Federal agencies,
Tribes, and States seeking to assume and/or administer a CWA section 404
program,"[Footnote 8: Id. at 55,323 (to be codified at 40 C.F.R. 233.1(f)).] but this
language would exempt all disputes that arise once the State or Tribe has begun
administering the program. The supplementary information suggests that this power of
mediating would be useful for "disputes with permitees or other affected parties regarding
permitting decisions,"[Footnote 9: Id. at 55,312.] among other disputes. However,
permitees and permitting decisions only exist after the agency has begun issuing permits.
At that point, the agency would no longer be seeking to assume or administer a program;
they already would be administering it.

Agency Response: EPA disagrees that this language is limited to EPA resolving
disputes during the assumption process. The language "to assume and/or
administer" makes clear that it applies during program administration as well as
when Tribes or States seek assumption. See 40 CFR 233.1(f).

Region 10 Tribal Operations Committee (RTOC) and National Tribal Water Council (NTWC)

(EPA-HO-OW-2020-0276-0070-00Q4)

Furthermore, the MOA should contain provisions for addressing Tribal waters and the role
of the Tribe in the operation of the 404 program. Procedures for dispute resolution between
Tribes and the assuming State could be established in the MOA, provided that Tribes are
involved in such drafting. When dividing up the waters and establishing rules of operation,
an ounce of prevention may be worth a pound of cure.

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Program assumption will have effects on Tribes, even when Tribal waters are retained by
US ACE. EPA should acknowledge Tribal sovereignty and interests when dividing up
the inherently interconnected waters of a region, and should do so by promoting Tribal
participation in the drafting of the MOA and its later operation.

Agency Response: The Agency appreciates the concerns raised by the commenter
regarding Tribal interest in agreements associated with assumption of the section 404
program by other Tribes and States. However, EPA is not incorporating this
recommendation into the final rule. While States and Tribes are welcome to enter
into joint MOAs clearly articulating coordination processes, and the MOA between
EPA and the assuming Tribe or State may reference such agreements and processes,
an MOA between two parties may not obligate another party, not part of the
agreement, to abide by provisions in said agreement. The regulations indicate that
the two required MOAs are between the EPA and the assuming Tribe or State, and
the second is between the Corps and the assuming Tribe or State. See also Section
IV.F of the final rule preamble for a discussion of ways that this rule facilitates Tribal
engagement in the permitting process.

National Association of Wetland Managers (NAWM) (EPA-HO-QW-2020-0276-0072-0010)

Any dispute resolution process should be chaired by the EPA Regional Administrator, and
specific steps for this process should be identified in the rule and formalized in the
accompanying Memorandum of Agreement (MOA). While modification to the retained
waters scope may be necessary, it seems that this process should inherently be a federal
responsibility. NAWM suggests that procedures be identified for a State or Tribe to
petition the Corps for modification to the identified waters. Should a disagreement occur
between the Corps and a State or Tribe, then the dispute resolution process, chaired by
EPA, should be initiated similar to the original method during the application process; this
process should be memorialized in the MOA between the applying authority, Corps
District(s), and EPA Region.

Agency Response: The Agency thanks the commenter for the suggestions that the
Regional Administrator chair and specific steps to laying out dispute resolution
processes be memorialized in the EPA - Tribal or State MOA. However, EPA
maintains that by not incorporating specific processes in the rule, flexibility is
maintained on how and when disputes are resolved - as appropriate to the situation.
The final rule does require that Tribes or States must comply with any dispute
resolutions that they choose to establish in their MOAs, however. See 40 CFR
233.1(f). Additionally, EPA is not incorporating the recommendation that the
Regional Administrator chair dispute resolution processes. While the Regional
Administrator is the final decision maker for approval or denial of program requests
and maintaining EPA objections to permits, to require the Regional Administrator
to be the chair of dispute resolution processes would likely and unnecessarily result
in long delays. The final rule does not preclude the Regional Administrator from
engaging in the resolution of disputes, but as many disputes may be resolved at other
levels or through mechanisms other than a formal hearing or process requiring the
presence of the Regional Administrator, the Agency is finalizing the provision as

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proposed as it provides the most flexibility in how disputes may be resolved. See
Section IV.E.l of the preamble of the final rule.

EPA is not adopting the commenter's recommendation that procedures must be
identified for a Tribe or State to petition the Corps for modification of retained
waters, as this is unnecessary. The Tribe or State may modify the list of retained
waters whenever it deems it appropriate, consistent with CWA section 404(g); the
Corps exercises authority over the Rivers and Harbors Act (RHA) section 10 list, but
the retained waters description is managed by the Tribe or State as approved by
EPA. The Memorandum of Agreement between the Corps and the Tribe or State
must outline procedures whereby the Corps will notify the Tribe or the State of
changes to the RHA section 10 list as well as the extent to which these changes
implicate the statutory scope of retained waters as described in CWA section
404(g)(1) and therefore necessitate revisions to the retained waters description. The
Tribe or State would incorporate the revisions that the Corps has identified,
pursuant to the modification provisions agreed upon in the Memorandum of
Agreement.

EPA agrees with the commenter to the extent the commenter views the scope of
retained waters as subject to federal approval, however; any changes the Tribe or
State makes to the scope of retained waters must be approved by EPA. 40 CFR
233.16(d). See Section IV.B.2 of the final rule preamble.

National Association of Wetland Managers (NAWM) (EPA-HO-QW-2020-0276-0072-0025)
1. Dispute Resolution
Concur without comment.

Agency Response: The Agency thanks the commenter for support of this provision
as proposed.

Port Gamble S'Klallam Tribe (PGSTI (EPA-HO-QW-2020-0276-0078-0025^

EPA must require that MOAs include a provision on dispute resolution. This dispute
resolution process must include an avenue for tribes within the state or with treaty rights
or resources or ancestral territory within the state to initiate a dispute resolution process in
the event their concerns are not heard or addressed by either the assuming state, the Corps,
or EPA. Dispute resolution is a valuable tool that may reduce the need for litigation.

Agency Response: The Agency thanks the commenter for their recommendation
regarding how disputes between Tribes and States should be formalized in the MOA.
EPA is not incorporating this recommendation into the final rule; however, the
Agency has clarified and expanded opportunities for Tribes to raise concerns with
discharges that may affect their aquatic resources or interests. See Sections IV.E.l
and IV.F of the final rule preamble and the Agency's Response to Comment EPA-
HQ-OW-2020-0276-0063-0017.

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State of Alaska Department of Environmental Conservation (EPA-HO-OW-2020-0276-0079-
0020")

EPA proposes to add a "general provision to . . . clearly articulate that EPA may facilitate
resolution of potential disputes between the Tribe or State and Federal agencies and
provide for resolution or elevation procedures . . .This section specifically suggests that
EPA may resolve disputes regarding retained waters [Footnote 50: 88 Fed. Reg. 55312.].

EPA has not demonstrated a need for it to serve in a dispute-resolution role. Please consider
removing.

Agency Response: See Section IV.E.l of the final rule preamble. A number of Tribes,
States, and organizations have asked EPA to clarify its role in resolving disputes.

Great Lakes Indian Fish and Wildlife Commission (EPA-HO-OW-2020-0276-0080-0Q12)

MOA's must also contain an avenue for tribes to initiate dispute resolution should the
assuming state or the Corps fail to address their concerns.

Agency Response: See Sections IV.E.l and IV.F of the final rule preamble and the
Agency's Response to Comment EPA-HQ-OW-2020-0276-0063-0017.

Tulalip Tribes of Washington (EPA-HQ-OW-2020-0276-0082-0002)

The Proposed Rule should require that federally recognized Indian tribes be consulted
during the early stages of any proposed Memorandum of Agreement ("MOA") pursuant
to 40 C.F.R. § 233.14. The EPA and the Corps should utilize tribal liaisons to ensure that
affected federally recognized Indian tribes are provided meaningful opportunities to
review and critique MOAs. Further, any final rulemaking should require that MOAs
include federal consultation regarding any state permitting action that may impact tribal
rights and resources. MOAs should also make clear that the Corps is the lead agency when
there are permitting projects spanning retained and assumed jurisdiction. Additionally,
MOAs should be reviewed by the signatories and affected tribes at least every five years
and must include a dispute resolution process that provides affected tribes a potential path
to address concerns without litigation.

Agency Response: See Sections IV.E.l and IV.F of the final rule preamble and the
Agency's Response to Comment EPA-HQ-OW-2020-0276-0063-0017 and EPA-HQ-
OW-2020-0276-0063-0015.

Chickaloon Native Village (CNV) (EPA-HQ-OW-2020-0276-0085-0015)

EPA must require that MOAs include a provision on dispute resolution. This dispute
resolution process must include an avenue for Tribes within the state or with rights,
resources or ancestral territory within the state to initiate a dispute resolution process in
the event their concerns are not heard or addressed by either the assuming state, the Corps,
or EPA. Dispute resolution is a valuable tool that may reduce the need for litigation.

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Agency has clarified and expanded opportunities for Tribes to raise concerns with
discharges that may affect their aquatic resources or interests. See Sections IV.E.l
and IV.F of the final rule preamble and the Agency's Response to Comment EPA-
HQ-OW-2020-0276-0063-0017.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q24N)

EPA fails to outline how it will facilitate dispute resolution within the proposed
regulations, and declines to include in the proposed regulations a requirement that
applicant states and the Corps include a dispute resolution process in their MOAs. As
stated above, dispute resolution must be a required component of MOAs between
assuming states and the federal agencies. Those dispute resolution provisions must address
how the assuming state and federal agencies will address concerns raised by affected
Tribes. Dispute resolution can be a helpful tool and may help reduce potential litigation.

Agency Response: The Agency thanks the commenter for their recommendation
regarding how disputes between Tribes and States should be formalized in the MOA.
EPA is not incorporating this recommendation into the final rule; however, the
Agency has clarified and expanded opportunities for Tribes to raise concerns with
discharges that may affect their aquatic resources or interests. See Section IV.E.l of
the final rule preamble and the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0017.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q25N)

EPA must also have a separate dispute resolution process outlined in the regulations for
affected Tribes and the public to raise concerns throughout the state application process
for assumption of 404 permitting authority. EPA's proposed regulations outline several
steps states must take even before submitting a full application to EPA for Section 404
assumption. Every step along the way poses potential for dispute, including the process
for establishing a retained waters list, state demonstrations of funding to adequately
administer the permitting program, state demonstrations of legal parity with federal
requirements, to name a few. EPA must find a way to resolve disputes between state
agencies, affected Tribes, and the public. State assumption can have broad, and potentially
severe impacts, particularly to affected Tribes. A dispute resolution process provides
interested parties an assured mechanism for disputes to be resolved in a transparent
manner.

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2. W ithdrawal provisions

Environmental Protection Network (EPN) (EPA-HO-OW-2020-0276-0057-00Q5)

Withdrawal of Program and Partial Assumption

Under the existing regulations, the withdrawal of the assumed program required formal
adjudication, which was difficult and time consuming for all parties. EPN supports the
proposed regulation that streamlines the process while protecting the rights of the states
and Tribes to be part of the process.

EPN also supports the clarification in the proposed regulation that specifies that partial
program assumptions are not authorized under the Section 404(g) assumption program.
Other federal programs such as the National Pollutant Discharge Elimination System
allow for this, and historically, this question has come up during Section 404(g)
assumption discussions for the state/Tribes to seek only part of the program. This
addresses the issue directly.

Agency Response: See Sections IV.B.l and IV.E.2 of the final rule preamble for
discussion of the Agency's rationale for this provision and response to these
comments.

Yukon River Inter-Tribal Watershed Council (EPA-HO-OW-2020-0276-0063-0Q48)

EPA's proposed revisions to streamline the process to withdraw approval of a state
permitting program are clear. However, EPA needs to impose a timeline on when it will
make a determination of whether the state is in compliance with the requirements of
Section 404. As proposed, the timeline includes deadlines for the state's first opportunity
to come into compliance (30 days), a timed window for a public hearing if they don't
correct (between 30 and 60 days), and a deadline for the state's second opportunity to
come into compliance (90 days). Id. at 55310. The regulations do not state, however,
when EPA must make a decision after the public hearing of whether the state is in
compliance with the law. This means that a program can be out of compliance for
anywhere from 150 days to several months or years while EPA makes that
determination. We suggest that EPA include a timeline for when it will make a decision
and we suggest an outer time limit of 60 days. This time limit is reasonable, especially
given that as the rule is proposed, EPA has already made an initial determination that the
state is not in compliance before a public hearing is even scheduled.

EPA must also include a provision in this section that all permitting will be suspended
during this review period. This pause on permitting process must be automatic once EPA
makes its first determination that the state is not in compliance and issues its first notice
to the state. Permits processed by a program that is not in compliance with the law
cannot meet the standards of the CWA. State permitting can resume once EPA makes a
final determination that the state program has come into compliance with Section 404
requirements. EPA must also review any permits that are partially processed during the
time the state program is determined to be non- compliant. These regulatory additions
ensure that the goals and protections of the CWA are being met and not circumvented by
applicants or state agencies.

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Agency Response: See Section IV.E.2 of the final rule preamble for discussion of the
Agency's rationale for this provision and response to these comments. EPA is not
requiring that permitting be suspended during the program compliance review
period because turning permitting authority off for an interim period, before EPA
has determined whether or not the Tribe or State will ultimately retain that
authority, would be unnecessarily disruptive to Tribal or State program staff,

Corps staff, and permit applicants. If ultimately EPA concludes that the Tribe or
State is not administering the program consistent with CWA requirements, it will
withdraw permitting authority pursuant to the statute and regulations.

Florida Department of Environmental Protection (FDEP) (EPA-HQ-QW-2020-0276-0066-003 1)
EPA is proposing significant changes to the withdrawal process for state programs. The
Proposed Rule notes that these changes would "harmonize procedures for program
withdrawal with the program approval process." The Proposed Rule would eliminate the
current formal adjudicatory process with a simplified process that would not afford the
State the protections of an adjudicatory hearing and would limit the State's ability to
defend its program. Under the proposal, if "the Regional Administrator finds that a []
State is not administering the assumed program consistent with the requirements of the
CWA and 40 CFR part 233" then the State will be informed and has 30 days to
"adequately demonstrate compliance." [Footnote 28: 88 Fed. Reg. 55,310.] The proposed
rule does not set any parameters for how the Regional Administrator would assess a
program, nor does it provide any threshold standards for a "finding." If compliance is not
"adequately demonstrate^]," a public hearing would be held, and EPA will make a
compliance determination. Based on a determination of non-compliance, a State would
have 90 days to carry out remedial actions as prescribed by EPA. If a State cannot carry
out the remedial actions, EPA will withdraw program approval with no further
proceedings. The withdrawal decision will be published in the Federal Register and the
Corps would resume permit decision making under section 404 immediately.

Florida strongly opposes this proposal and disagrees with EPA's reasoning and support
for this proposal. The idea of "harmonizing" program approval and program withdrawal
contradicts the text of the statute, Congress's legislative intent, and EPA's historical
position. Additionally, this kind of "easy in, easy out" system is wrong-headed, contrary
to law, and simply bad policy. It encourages economic waste, erodes stability and
predictability, and disincentivizes state investment in assumption. "Streamlining" the
withdrawal process raises due process issues that EPA has not addressed and is plainly
contrary to the principle of cooperative federalism so fundamental to the CWA.

Agency Response: See Section IV.E.2 of the final rule preamble for discussion of the
Agency's rationale for this provision and response to these comments. Due process
requirements and the CWA's emphasis on cooperative federalism do not require
the lengthy adjudicatory procedures surrounding the prior withdrawal procedures.
EPA's revised procedures provide ample opportunity for input from the assuming
Tribe or State as well as stakeholders, as well as ample opportunity for corrective
action by the Tribe or State. In fact, the revised process is more transparent to
members of the public than the internal agency adjudicatory trial required by the

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prior withdrawal requirements. Moreover, this rule does not alter the potential
grounds for withdrawal in EPA's prior regulations, only the procedures attending
withdrawal. Therefore, this rule should not give rise to concerns that programs will
be withdrawn more hastily than they would have been under the prior regulations.

Florida Department of Environmental Protection (FDEP) (EPA-HQ-QW-2020-0276-0066-0032)
First, the text of the statute makes it clear that the program approval process is intended
to promote cooperative federalism, which streamlines the approval of a state program but
provides additional hurdles for withdrawing a program once approved. Specifically, the
statute has clear language that, when EPA fails to make a determination on a state
program submission within 120 days, the state program "shall be deemed approved" and
a State will begin administering the 404 program without further review. 33 U.S.C. §
1344(h)(3). This language clearly indicates that Congress intended to encourage state
assumption. Conversely, the statute requires a public hearing to be conducted before the
Administrator may even determine that a State is not administering the program in
accordance with the statute. See 33 U.S.C. 1344(i). Only after a hearing may EPA then
provide notice to the State and direct corrective actions be taken. Id. The plain text of the
statute makes it clear that Congress intended CWA 404 assumption to be "easy in" but
program withdrawal as an extended case-specific adjudicatory process designed to give
maximum due process to the State. The current regulations are in line with the clear
language of the statute and require withdrawal proceedings to be conducted as a formal
adjudicatory hearing. The current regulations also indicate how EPA's historical
interpretation of the statute and the intent behind the withdrawal provisions required an
adjudicatory process.

Florida Department of Environmental Protection (FDEP) (EPA-HQ-QW-2020-0276-0066-0033)
Second, it is bad policy to remove adjudicatory protections and erode the barriers to non-
voluntary withdrawal of an involved and large-scale state program like this. This
proposed "easy in, easy out" system creates the potential for a flip-flopping effect that
will negatively affect States, federal agencies, and the regulated public. As discussed
above, Florida spent a considerable amount of time and resources in its assumption
process. By undermining the stability of the program approval, the proposed revisions to
the withdrawal provisions leave the door open for these significant investments to be
rendered obsolete without a fair and transparent adjudication. Not only is there a
potential for economic waste due to withdrawal of programs that have already invested
in state programs, but also the threat of withdrawal will disincentivize state investment in
assumption generally [Footnote 29: EPA notes that the proposed process is modeled on
the withdrawal procedures for state Underground Injection Control ("UIC") programs.
88 Fed. Reg. 55,311. There are significant differences between a CWA 404 program and

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a UIC program, notably a state-run CWA 404 program covers a larger geographical
scope, supplies more permits, and is just generally broader and more involved than a UIC
program. The resource intensity and the investments a State must make to assume a 404
program is not comparable to a UIC program and should not be as easily withdrawn]. In
addition to economic effects of an easy withdrawal, this proposal also erodes stability
and predictability for stakeholders and States.

Agency Response: See Section IV.E.2 of the final rule preamble for discussion of the
Agency's rationale for this provision and response to these comments. See also
EPA's Response to Comment EPA-HQ-OW-2020-0276-0066-0031. EPA disagrees
that removing unnecessary encumbrances to the withdrawal procedures will
disincentivize investment in State programs.

Florida Department of Environmental Protection (FDEP) (EPA-HO-OW-2020-0276-0066-0Q34)
Third, the proposed withdrawal process raises significant due process concerns. A formal
adjudicatory hearing is not a mere procedural hurdle; it is a foundational element of
ensuring that States have a meaningful opportunity to be heard, to present evidence, and
to address and respond to EPA concerns before their program is withdrawn. The action
of withdrawing is properly considered an adjudication because the withdrawal of a state
program involves a determination about specific facts related to an individual State's
compliance or performance, which has tangible consequences for the State, for which the
State should receive all the benefits of an adjudicatory hearing. Eliminating the long-
standing process of providing an adjudicatory hearing during withdrawal procedures
disregards the constitutional principles of due process which guarantee fair procedures
by government agencies before depriving an entity of its interests.

The act of aligning the approval and withdrawal processes does not, in and of itself,
ensure fairness or justice. By ignoring the text and intent of the statute and sidelining a
historically rooted adjudicatory process, the EPA risks undermining the trust and
confidence of States, undermining the legitimacy of its own actions, and potentially
setting a precedent for future regulatory changes that could further sideline due process
considerations. The withdrawal procedures must be fair, transparent, and allow States an
adequate opportunity to respond and address EPA concerns—the proposed withdrawal
procedures do not, but the existing procedures do. Accordingly, Florida respectfully
requests that EPA omit the updated withdrawal provisions from the final rule.

Agency Response: See Section IV.E.2 of the final rule preamble for discussion of the
Agency's rationale for this provision and response to these comments. See also
EPA's Response to Comment EPA-HQ-OW-2020-0276-0066-0031. EPA disagrees
with the commenter that only an adjudicatory process allows for a determination
about specific facts related to an individual State's compliance or performance; the
revised withdrawal procedures allow for public input and Tribal or State feedback
specifically regarding whether the Tribe or State meets CWA and regulatory
requirements, or can take remedial action to meet these requirements.

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Florida Department of Environmental Protection (FDEP) (EPA-HQ-QW-2020-0276-0066-0006)
Specifically, Florida opposes, among other things, EPA's proposal to eliminate the
adjudicatory hearing for an EPA determination to withdraw approval of a state program.

Agency Response: See Section IV.E.2 of the final rule preamble for discussion of the
Agency's rationale for this provision and response to these comments.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q53N)

If and when annual reporting shows that a state is no longer in compliance with federal
requirements, EPA must remedy this issue using the process prescribed in the Clean
Water Act by initiating withdrawal proceedings. These proceedings were created to give
EPA the tools to ensure that states remain in compliance with the Clean Water Act. EPA
must comply with the statutory requirements and institute withdrawal proceedings when
states are no longer in compliance.

Agency Response: See Section IV.E.2 of the final rule preamble for discussion of the
Agency's rationale for this provision and response to these comments.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q55N)

XI. EPA must go further to streamline withdrawal procedures and should initiate
withdrawal procedures when necessary to ensure that state programs comply with federal
requirements.

EPA's proposal to simplify and streamline withdrawal procedures is a step forward to
ensure that EPA withdraws Section 404 authority from any state that fails to comply with
the law. Although EPA has stated it will not "take program withdrawal lightly," 88 Fed.
Reg. at 55,311, the agency should not shy away from using this process to bring states
into compliance with the law. When a state program fails to comply with federal
requirements, EPA must initiate withdrawal to ensure that our waters and wetlands are
protected.

We agree with EPA's plans to create firm deadlines for the steps in the withdrawal
process. Id. at 55,310. However, EPA must also create deadlines to (1) make its findings
after the public hearing; (2) notify a state of the specific deficiencies in the state program
and of necessary remedial actions or notify a state that the state is complying with the
law; and

(3) publish its decision to withdraw a state 404 program that would initiate the transfer
back to the Corps. See id.

We also agree with EPA's statement that the agency must "widely disseminate[]" notice
of the hearing regarding potential withdrawal of a state program, including in the Federal
Register and on EPA's website. Id. at 55,310, 55,329. EPA must ensure that the public
has adequate time to prepare and participate in this hearing.

Agency Response: See Section IV.E.2 of the final rule preamble for discussion of the
Agency's rationale for this provision and response to these comments.

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National Association of Wetland Managers (NAWM) (EPA-HO-QW-2020-0276-0072-0023)
2. Withdrawal Procedures

We concur with the proposed regulatory changes and would suggest the inclusion of a
probationary review period for those authorities which receive formal notification of
non- compliance from the Regional Administrator and satisfactorily correct identified
deficiencies.

Agency Response: See Section IV.E.2 of the final rule preamble for discussion of the
Agency's rationale for this provision and response to these comments. The
withdrawal procedures allow for both a 30-day and a subsequent 90-day period in
which a Tribe or State may address issues of non-compliance that EPA has
identified.

National Tribal Water Council (NTWC) (EPA-HQ-OW-2020-0276-0074-SD-0016)

- For each state that assumes authority under CWA § 404(g), EPA must conduct a
periodic review of that state's implementation of its authority. To facilitate this review,
EPA should lay out the criteria that will be used to judge a state's efforts and should
provide standards and procedures for revoking a state's authority when it has not
exercised its CWA § 404 authority properly.

Agency Response: See Section IV.E.2 of the final rule preamble for discussion of the
Agency's rationale for this provision and response to these comments. The annual
report that any assuming Tribe or State must submit provides an opportunity for a
regular review of the Tribe or State's implementation of its authority. In this rule,
EPA is clarifying the information that Tribes or States must provide in their
reports. See Section IV.E.3 of the final rule preamble.

Port Gamble S'Klallam Tribe (PGST^) (EPA-HO-OW-2020-0276-0078-0Q33N)

EPA's proposed revisions to streamline the process to withdraw approval of a state
permitting program is clear. However, EPA needs to impose a timeline on when it will
make a determination of whether the state is in compliance with the requirements of
Section 404. As proposed, the timeline includes deadlines for the state's first opportunity
to come into compliance (30 days), a timed window for a public hearing if they don't
correct (between 30 and 60 days), and a deadline for the state's second opportunity to
come into compliance (90 days). Id. at 55310. The regulations do not state, however,
when EPA must make a decision after the public hearing of whether the state is in
compliance with the law. This means that a program can be out of compliance for
anywhere from 150 days to several months or years while EPA makes that
determination. EPA must include a timeline for when it will make a decision, and we
suggest an outer time limit of 60 days. This time limit is reasonable, especially given that
as the rule is proposed, EPA has already made an initial determination that the state is
not in compliance before a public hearing is even scheduled.

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to the state. Permits processed by a program that is not in compliance with the law
cannot meet the standards of the CWA. State permitting can resume once EPA makes a
final determination that the state program has come into compliance with Section 404
requirements. EPA must also review any permits that are partially processed during the
time the state program is determined to be non-compliant. These regulatory additions
ensure that the goals and protections of the CWA are being met and not circumvented by
applicants or state agencies.

Agency Response: See Section IV.E.2 of the final rule preamble for discussion of the
Agency's rationale for this provision and response to these comments. See also
EPA's Response to Comment EPA-HQ-OW-2020-0276-0063-0048.

State of Alaska Department of Environmental Conservation (EPA-HQ-QW-2020-0276-0079-

oo m

In general, Alaska is appreciative of EPA's transparency with this rulemaking. But
EPA's proposal under this section to "simplify" and "streamline" its own withdrawal
procedures is at odds with facilitating State assumption. This proposal would eviscerate
the processes that are currently in place to ensure that withdrawal is done fairly and after
the State or Tribe has had a full and fair opportunity to be heard [Footnote 44: 88 Fed.
Reg. 55310.].

Currently, EPA may only withdraw program approval following a formal adjudication
process, which allows for motion practice, presentation of evidence, and other due
process-like safeguards [Footnote 45: 88 Fed. Reg. 55311.]. Under EPA's new process,
or lack thereof, a Regional Administrator may withdraw program approval if he finds
that a State is "not administering the program consistent with the requirements of the
CWA and 40 CFR part 233" and gives the State or Tribe "30 days to demonstrate
compliance." [Footnote 46: 88 Fed. Reg. 55310.]. If the 30 days pass and the State has,
in EPA's estimation, failed to demonstrate compliance, EPA will hold a public hearing
(non-adjudicatory hearing). Thereafter, EPA must notify the State of specific deficiencies
and give the State 90 days to return to compliance or return the program [Footnote 47: 88
Fed. Reg. 55310.].

Missing from the new proposed process is a meaningful opportunity for the State to be
heard, or meaningful standards to constrain the Regional Administrator's discretion.
Alaska urges EPA to retain the existing withdrawal procedures, which ensure a fair
process. The new procedures do not. The new procedures, and specifically the discretion
- i.e., instability and unpredictability - they inject into the withdrawal process, will
discourage, rather than facilitate, State assumption. Please remove this section and retain
the existing procedures.

Agency Response: See Section IV.E.2 of the final rule preamble for discussion of the
Agency's rationale for this provision and response to these comments. See also
EPA's Response to Comment EPA-HQ-OW-2020-0276-0066-0031.

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Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q43N)

EPA must also include a provision in this section that all permitting will be suspended
during this review period. This pause on permitting process must be automatic once EPA
makes its first determination that the state is not in compliance and issues its first notice
to the state. Permits processed by a program that is not in compliance with the law
cannot meet the standards of the CWA. State permitting can resume once EPA makes a
final determination that the state program has come into compliance with Section 404
requirements. EPA must also review any permits that are partially processed during the
time the state program is determined to be non-compliant. These regulatory additions
ensure that the goals and protections of the CWA are being met and not circumvented by
applicants or state agencies.

Environmental Confederation of Southwest Florida (EPA-HQ-OW-2020-0276-TR.ANS-092923-

002-0003")

I want to remind you that you talked about this is about preventing pollution and
managing their aquatic waters. Florida is dismal, in being able to do either of those
things. If you don't know we have this thing called blue-green algae because they took
over the numeric standards. You need to be able to go back to those states and to those
states that have taken over the program, and if they are not meeting those requirements of
the program, not only should you take enforcement action, but you should take
proceedings to remove that program from them.

Agency Response: See Section IV.E.2 of the final rule preamble for discussion of the
Agency's rationale for this provision and response to these comments. EPA's
oversight of any particular State program is outside of the scope of this rulemaking.

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3. Program reporting

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0049)

EPA's program reporting requirements should also include budgetary information.
Specifically, the state's annual report should include the budgetary costs of administering
the program for the preceding year. The annual report should also include the project costs
to administer the program for the next year. The annual report should also include an
update on any litigation within the state regarding state-issued section 404 permits that
may have commenced or concluded in the reporting year.

Agency Response: The Agency appreciates commenter input suggesting additional
reporting requirements including the program's budget and any litigation regarding
Tribal or State issued section 404 permits. See Section IV.F of the final rule preamble
for further discussion of the Agency's rationale for not specifying additional
requirements for the Tribe's or State's annual report to include budget or litigation.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q5n

X. EPA must strengthen its oversight to ensure that state assumed programs stay in
compliance with the Clean Water Act.

Because EPA relies heavily on annual reporting, it must ensure that it codifies specific,
detailed requirements for this reporting and should include budgetary information.
Specifically, the state's annual report should include the budgetary costs of administering
the program for the preceding year. The annual report should also include the project costs
to administer the program for the next year. The annual report should also include an
update on any litigation within the state regarding state-issued section 404 permits that
may have commenced or concluded in the reporting year.

Agency Response: See Section IV.F of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0063-0049.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q54N)

Conservation Groups support EPA's decision to ensure that annual reporting is publicly
available. EPA should also ensure that draft state reports and EPA requests for additional
information are included in the publicly disclosed information.

Agency Response: The Agency appreciates the commenter input requesting
transparency regarding the annual review. The final report will contain any
information that EPA has requested, and the rule requires that the final report be
made publicly available. See Section IV.E.3 of the final rule preamble.

National Association of Wetland Managers (NAWM) (EPA-HO-QW-2020-0276-0072-0024)

3. Program Reporting NAWM supports clear and transparent program metrics and
reporting for all authorized Section 404 permit programs including the public availability
and notice of annual reports.

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Agency Response: The Agency appreciates commenter support for transparent
metrics and reporting. See Section IV.E of the final rule preamble for a summary of
the final rule's requirements for annual reporting and how the Agency determined
the annual report will provide increased transparency in program reporting and
oversight.

State of Alaska Department of Environmental Conservation (EPA-HO-OW-2020-0276-0079-

00 ISO

EPA proposes to increase the requirements of what must be in a State's annual report to
EPA [Footnote 48: 88 Fed. Reg. 55311.]. EPA would require a "robust" overview that
includes identifying implementation challenges and solutions, quantitative reporting, and
specific metrics related to compensatory mitigation, resources, and staffing [Footnote 49:
88 Fed. Reg. 55311.]

The more onerous EPA's regulations are, the more State resources are taxed in ensuring
compliance. And the more difficult it is to secure the necessary legislative authority and
funding. There is no demonstrated benefit in this provision, which appears rooted in a
mistrust of State management. Alaska suggests this provision be removed.

Agency Response: The Agency appreciates commenter input opposing additional
reporting and suggesting that the proposed rule would make it more difficult for
Tribes and States to assume section 404. See Section IV.E of the final rule preamble
for further discussion of the Agency's rationale for clarifying annual reporting
requirements and its finding that the new requirements will not make Tribal or State
assumption more difficult.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q44N)

Agency Response: See Section IV.F of the final rule preamble and the Agency's
response to comment EPA-HQ-OW-2020-0276-0063-0049.

Natural Resources Defense Council (EPA-HO-OW-2020-0276-TRANS-Q92923-008-00\2)

An essential component of this stringency demonstration is that it must be maintained over
time. EPA needs to build into these regulations a robust oversight rule by which states
must report annually to EPA on their implementation of the program and EPA must
carefully review states permitting for consistency with the Clean Water Act and be
prepared to withdraw the program when deficiencies are evident.

Agency Response: The Agency acknowledges the commenter's support for Tribal
and State annual reporting and careful and robust EPA review. See Section IV.F of

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the final rule preamble for a summary of how the final rule clarifies requirements
for annual reporting, thereby improving EPA's ability to ensure a program remains
consistent with section 404 program requirements. See Section IV.E.2 for a
discussion of program withdrawal.

4. Oilier commenls 011 federal oversight

Florida Department of Environmental Protection (FDEP) (EPA-HO-OW-2020-0276-0066-003Q)
EPA's oversight role should not be transformed into a tool to impose requirements or
practices that go beyond what the law requires. Wherever possible, EPA should take a
flexible approach and provide adequate transition periods for States to update their
programs to reflect changes in federal law. EPA must ensure that States have sufficient
time to adjust to changes in federal law, particularly where States are required to modify
laws and regulations and/or where changes occur via judicial decisions. For example, as
seen in numerous Supreme Court cases, the definition of WOTUS can quickly change,
which may create new requirements under the CWA. Accordingly, EPA should ensure that
there is sufficient flexibility and lead time for state programs to the greatest extent
consistent with the CWA.

Agency Response: The Agency appreciates commenter input regarding EPA
oversight and providing sufficient time for approved programs to address any
potential program changes resulting from changes to federal statutes or regulations.
See 40 CFR 233.16 for the time frames provided for making conforming changes to
approved programs.

Earthiustice et al. (EPA-HO-QW-2020-0276-0068-0052^

EPA must also ensure that it maintains consistent and thorough review of assumed
programs to ensure that states remain in compliance, even ten or twenty years after
assumption. For example, changes in state administrations can have a profound impact on
the resources allocated to state environmental agencies.

Agency Response: The Agency appreciates commenter concerns regarding EPA
oversight of approved programs. The final rule preamble describes clarifications and
revisions to provisions of the preamble and regulations associated with EPA
oversight. See Section IV.A.3 of the final rule preamble clarifying minimum
standards; Section IV.B.4 of the final rule preamble regarding compensatory
mitigation instruments; and Section IV.E of the final rule preamble addressing
federal oversight.

5. Categories of permits for which EPA review cannot be waived

Earthiustice (EPA-HO-QW-2020-0276-0068-SD-3-000n

Overall, Earthjustice's experience dictates that state assumption of 404 permitting must be
subjected to very strict scrutiny and oversight by EPA, both at the time a state applies to
assume the program as well as after assumption. This is in keeping with the overall Clean
Water Act concept of cooperative federalism which requires EPA to function as the
backstop and oversight to state administration and implementation of Clean Water Act

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requirements. That oversight obligation does not have an expiration date. The possibility
of tribes, individual citizens, and the environment generally losing significant protections
as a result of state assumption of 404 programs is very real and must be rigorously
protected against.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0068-0052.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-3-0Q16)

- EPA Must Ensure the 404 Guidelines Fully Apply and Have a Review Mechanism to
Ensure That Remains the Case Over Time

Seventh, recent experience with the State of Michigan and their Office of Administrative
Hearings demonstrated that states that have approved permit programs may not see the
need to strictly adhere to Section 404 Guidelines and/or may not understand that this is an
assumed program under the Clean Water Act with Clean Water Act requirements. In
litigation over Michigan's issuance of a permit under its assumed 404 permitting program,
an Administrative Law Judge found that he had no jurisdiction or obligation to review and
apply federal regulatory or statutory requirements under either the Section 404 Guidelines
or the Clean Water Act and that those Guidelines and the Clean Water Act simply did not
apply to Michigan permitting once Michigan assumed the program. See, Orders Denying
Stay and Denying Summary Judgment, In the Matter of Tom Boerner, Menominee Indian
Tribe of Wisconsin, and Coalition to Save the Menominee River on the Permit issued to
Aquila Resources, Inc., Docket No. 18-013058 (Michigan Office of Administrative
Hearings), issued February 6, 2019 and May 19, 2019, respectively. This is, of course,
wholly incorrect, but it highlights the obligation of EPA both at the time a state assumes a
program and then from time to time as the state applies the program, to oversee and make
clear that a state must adopt and apply (in their regulatory, judicial, and administrative
review capacities) the Section 404 Guidelines and all Clean Water Act requirements.
EPA must make clear that the 404 guidelines must either be fully adopted into the state's
regulations and/or make clear through rulemaking that the 404 guidelines fully apply to a
state permitting program in the same way that EPA's NPDES permitting regulations in 40
C.F.R. ch. 122 apply to all state NPDES permitting programs. EPA should further make
clear that the only deviation is if a state chooses to impose requirements that are more
protective of the environment than the Section 404 guidelines.
EPA must also implement internal controls sufficient to fully review a state's program for
this and other compliance with guidelines on a not less than five-year schedule. This should
include reviews of state budgets to ensure a permit program is not underfunded and thereby
underprotective.

Agency Response: See Section IV.A.2 of the final rule preamble for a description of
how Tribal and State programs may meet the requirements of the CWA section
404(b)(1) Guidelines and Section IV.E.3 of the final rule preamble for a description
of annual reporting requirements.

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EPA agrees with the commenter that States must adhere to CWA requirements and
the section 404(b)(1) Guidelines following assumption. EPA declines to adopt a
comprehensive 5-year review requirement for Tribal or State programs, which may
be extremely resource-intensive and not necessarily warranted. The many oversight
tools at EPA's disposal, including annual report reviews, permit review and objection
authorities, and the authority to request information and approve program revisions
in 40 CFR 233.16 provide sufficient tools for EPA to monitor Tribal and State
compliance with CWA requirements.

F. Subpart G - Eligible Indian Tribes

1. Legal issues regarding tribal opportunities

State of Alaska Department of Environmental Conservation (EPA-HO-QW-2020-0276-0079-

0016^)

The revisions proposed in this section are legally indefensible. Potentially creating new,
substantive rights for Tribes is inconsistent with the scope of this rulemaking, which is
billed as one of clarifying and facilitating State assumption. Additionally, the uncertainty
injected into the assumption process by these proposed changes are likely sufficient to
defeat many States' bids for assumption. Alaska suggests removing them from this
rulemaking, and retraining focus on the intended goals of clarifying and facilitating State
assumption.

Agency Response: See Section IV.F of the final rule preamble for EPA's rationale
regarding these changes. This rulemaking is intended, among other things, to
clarify minimum requirements for Tribal and State assumption, and that includes
clarifying requirements for stakeholder participation in the permitting process,
consistent with CWA sections 101(e) and 404(h)(1)(C), (E).

2. Comments on tribal opportunities for engagement

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0044)

EPA has proposed that tribes that have been approved for treatment as a state (TAS)
under any section of CWA, not just Section 404, would have the opportunity to suggest
permit conditions for Section 404 permits that would impact on-reservation waters. Id. at
55303. EPA also has proposed that tribes would be able to apply for a limited TAS solely
for the purpose of commenting on a state- issued Section 404 permit if it would impact
on-reservation waters. Finally, EPA proposes that tribes may request that EPA review
permits, presumably if a tribe has not been approved for TAS under the CWA or if a
Section 404 permit would impact tribal rights and resources but not reservation waters.

We are concerned with how these provisions will apply to Alaska Native tribes. Most
tribes in Alaska do not have reservation lands. Tribes without jurisdiction over their
waters have not been offered the opportunity to apply for TAS. 40 C.F.R. § 131.8. Many
tribes, particularly small tribes, do not have significant resources to commit to funding
water resources staff. Accordingly, it seems unlikely that tribes in Alaska will be made

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aware of permits potentially impacting our rights, or that we will have the time or
resources to comment and propose conditions on those permits for which we do receive
notification.

Agency Response: EPA recognizes the unique status of Alaska Native Tribes and
Villages. Comments addressing assumption of any particular Tribal or State
program are outside of the scope of this rulemaking. EPA recognizes the critical
importance of ensuring that all stakeholders, including Alaska Tribes and Native
Villages, receive notice as well as the opportunity to meaningfully comment on
proposed permits following Tribal or State assumption, and views facilitating such
notice and opportunity for comment as part of EPA's role. The Agency recognizes
that limited financial resources are a concern for many Tribes in Alaska and
elsewhere. EPA is able to exercise oversight authority to ensure that permits issued
by approved Tribal and State section 404 programs are consistent with the CWA
404(b)(1) Guidelines.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q39N)

EPA has proposed that Tribes that have been approved for treatment as a state (TAS)
under any section of CWA, not just Section 404, would have the opportunity to suggest
permit conditions for Section 404 permits that would impact on-reservation waters. Id. at
55303. EPA also has proposed that Tribes would be able to apply for a limited TAS
solely for the purpose of commenting on a state-issued Section 404 permit if it would
impact on-reservation waters. Finally, EPA proposes that Tribes may request that EPA
review permits, presumably if a Tribe has not been approved for TAS under the CWA or
if a Section 404 permit would impact Tribal rights and resources but not reservation
waters.

We are concerned with how these provisions will apply to Alaska Native Tribes. Most
Tribes in Alaska do not have reservation lands. Tribes without jurisdiction over their
waters have not been offered the opportunity to apply for TAS. 40 C.F.R. § 131.8. Many
Tribes, particularly small Tribes, do not have significant resources to commit to funding
water resources staff. Accordingly, it seems unlikely that Tribes in Alaska will be made
aware of permits potentially impacting our rights, or that we will have the time or
resources to comment and propose conditions on those permits for which we do receive
notification.

Agency Response: EPA recognizes the unique status of Alaska Native Tribes. See the
Agency's Response to Comment EPA-HQ-OW-2020-0276-0063-0044.

State of Alaska Department of Environmental Conservation (EPA-HQ-QW-2020-0276-0079-

0013")

The Proposed Rule includes three changes to "afford protection to Tribal resources,"
specifically Tribal resources and interests that are "off reservations" that "may be
affected by activities permitted under assumed 404 programs." [Footnote 31: 88 Fed.
Reg. at 55305.]. These changes would: (1) enable Tribes who have TAS status for any
CWA provision to comment on State 404 permits as an Affected State; [Footnote 32: 88

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Fed. Reg. 35303. Currently, only States, and Tribes with TAS to assume the 404
program, have this comment opportunity. 88 Fed. Reg. 35303.] (2) create a new TAS
option, specifically for the ability to comment on State 404 permits as an Affected State;
and (3) codify an opportunity for Tribes to request EPA review of permits that may
affect Tribal rights or interests. If EPA objects to the draft permit, a State may not issue
the permit until the State has taken "steps required by EPA to eliminate an objection."
[Footnote 33: 88 Fed. Reg. 55305.]. EPA justifies these additional requirements as
"[consistent with the Federal trust responsibility and the policies underlying CWA
section 518." [Footnote 34: 88 Fed. Reg. 55304.].

Under existing law, when a TAS Tribe is notified of an upstream project, and objects,
additional requirements are imposed on the permitting State that are not imposed when
similar objections/comments are made by a non-TAS Tribe. Namely, the State must
notify the TAS and the EPA Regional Administrator of its decision not to accept the
recommendations of the TAS Tribes and its reasons for doing so [Footnote 35: 88 Fed.
Reg. 55304; see 33 U.S.C. 1341(l)(e).]. The Regional Administrator then has time to
comment on, object to, or make recommendations regarding the Tribal concerns set forth
[Footnote 36: 88 Fed. Reg. 55304.]. This, of course, applies only to those Tribes who
have applied for and attained TAS status - it does not presently include all Tribes.
Notably, States already must public notice permits - giving Tribal stakeholders an
opportunity for comment and input on every permit. States must provide EPA with a
copy of every permit application [Footnote 37: Clean Water Act § 404(j).] - giving
Tribal stakeholders additional opportunity to provide comment through EPA.

Alaska values input from our Tribal stakeholders, and is not seeking in any way to
diminish or preclude their participation in the 404 permitting process. EPA's proposed
changes to the current process, however, are problematic for several reasons.

First, proposed changes (1) and (2) allow any Tribe to be treated as TAS irrespective of
whether they have met Congress's requirements for TAS status. This is unlawful: EPA
may not rewrite statutory text to short circuit the process for attaining TAS status.
Broadening the scope of which Tribes are considered TAS Tribes may only be
effectuated by statutory change.

Second, these provisions do not apply to permits issued under a federal 404 program, so
EPA has no basis for imposing these requirements here.

Agency Response: See Section IV.F of the preamble to the final rule. EPA disagrees
that this final rule would allow any Tribe to be treated as an "affected State"
whether or not they have met requirements for TAS. EPA is not broadening the
scope of TAS; EPA is simply stating when and how Tribes are considered to be an
"affected State" for the purposes of the coordination requirements found in 40 CFR
233.31. These provisions leverage existing TAS approvals for Tribes and articulate
how Tribes may seek and receive TAS for the sole purpose of commenting as an
"affected State."

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The final rule provides that an Indian Tribe may apply to the Regional
Administrator for a determination that it meets the statutory criteria of section 518
of the CWA, 33 U.S.C. 1377, for the sole purposes of public participation as an
"affected State" on Tribal or State issued CWA section 404 permits. See Section
IV.F of the final rule preamble for EPA's rationale and 40 CFR 233.31(d) for the
criteria to be met. Nothing in the CWA prohibits EPA from offering this
opportunity. CWA sections 101(e) and 404(h) emphasize the importance of
maximizing public participation in the permitting process, and the CWA does not
preclude any streamlining of TAS application requirements.

EPA disagrees that opportunities for Tribes to meaningfully engage and provide
recommendations on the Corps CWA section 404 permits do not exist. There are
mechanisms for Tribes to meaningfully engage on permits that may affect their
waters or interests when the Corps is the permitting agency. For example, the Corps
does not permit activity under section 404 until it ensures compliance with Section
106 of the National Historic Preservation Act (NHPA). For projects that may result
in impacts to cultural resources listed on, or eligible for listing on the National
Register of Historic Places, the Corps consults with the State or Tribal Historic
Preservation Officer, as appropriate. As a part of the cultural resources
investigation, the Corps may also consult with Federally recognized Indian Tribes,
in accordance with Executive Order 13175. For more information, see
Mtm://www. ml usace. army. mil/Missions/Reeulaiory/Permit-Process/Secikm-106/.

EPA also disagrees with the statement that EPA lacks a basis for imposing
requirements on the permitting process when a Tribe or State is the permitting
authority. The CWA authorizes EPA to oversee Tribal and State programs,
including ensuring adequate public participation and coordination with Tribes and
States that may be affected by the issuance of a permit. See 33 U.S.C. 1344(h)(1)(B)-
(C). The final rule's clarifications and opportunities provide more Tribes access to
TAS, consistent with the Act. These provisions of this rulemaking do not create new,
substantive rights for Tribes, other than notification and public comment
opportunities.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q22N)

EPA has proposed that Tribes that have been approved for treatment as a state (TAS)
under any section of the Clean Water Act, not just Section 404, would have the
opportunity to suggest permit conditions for Section 404 permits that would effect on-
reservation waters.[Footnote 29: 88 Fed. Reg. at 55,303.] EPA also has proposed that
Tribes would be able to apply for a limited TAS solely for the purpose of commenting on
a state-issued Section 404 permit if it would impact on-reservation waters. Finally, EPA
proposes that Tribes may request that EPA review permits, presumably if a Tribe has not
been approved for TAS under the Clean Water Act or if a Section 404 permit would
impact Tribal rights and resources but not reservation waters.

We are concerned with how these provisions will apply to Alaska Native Tribes. Most
Tribes in Alaska do not have reservation lands. Tribes without jurisdiction over their

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waters have not been offered the opportunity to apply for TAS.[Footnote 30: 40 C.F.R. §
131.8.] Many Tribes, particularly small Tribes, do not have significant resources to
commit to funding water resources staff. Accordingly, it seems unlikely that Tribes in
Alaska will be made aware of permits potentially affecting their rights, or that they will
have the time or resources to comment and propose conditions on those permits for
which they do receive notification.

Agency Response: EPA recognizes the unique status of Alaska Native Tribes. See the
Agency's Response to Comment EPA-HQ-OW-2020-0276-0063-0044.

Environmental Protection Network (EPN) (EPA-HO-OW-2020-0276-0057-00Q1)

Tribes as Affected Downstream States and Application of Treatment as States (TAS)
EPN supports the proposed modifications that address the role of affected Tribes in
reviewing proposed permits issued by authorized states or Tribes. However, EPN does
have a specific comment on the terminology used in this provision regarding
"downstream" states and Tribes. The term "downstream" in this section and elsewhere
appears to be a shorthand expression for the broader phrase "...any state (other than the
permitting state) whose waters may be affected by the issuance of a permit..found in
CWA section 404(h)(1)(E). Since some affected waters may not be "downstream" of the
permit (e.g., upstream waters for which impacts downstream affect migratory aquatic
species upstream), the use of the term downstream can lead to confusion interpreting this
term. We suggest referring to "affected states and Tribes."

The proposal provides three important paths for Tribes to engage on such permits. First,
any Tribe that has been approved for TAS for any portion of the CWA can submit
comments that must be addressed by the permitting state or Tribe. This covers
approximately half of federally recognized Tribes with reservations. Second, a Tribe that
does not have TAS status for any part of the CWA can request TAS specifically for the
purpose of commenting on a proposed section 404 permit. This narrow TAS approval
can be a very streamlined process. Again, Tribal comments would have to be addressed
by the permitting state or Tribe. Third, a Tribe can request that EPA review any permit
that affects Tribal rights or interests. EPA would consider interests such as treaty rights
that occur outside of Tribal boundaries. Taken together, these provisions substantially
improve the ability of Tribes to address the potential impacts of Section 404 permit
actions taken by states or Tribes authorized to implement the permitting program.

Agency Response: EPA has replaced "downstream" with the term "affected." EPA
is not adding the word "Tribes" to this provision as the regulations define "State" to
include eligible Tribes.

Nebraska Department of Environment and Energy (EPA-HQ-OW-2020-0276-0073-0002)

Under the proposed rule, any downstream tribe that has been approved for TAS for any
CWA provision would have an opportunity to suggest permit conditions for section 404
permits issued by upstream States, and tribes would be allowed to apply for TAS solely
for the purpose of commenting on 404 permits.

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• The coordination requirements of 40 C.F.R. § 233.31 should be limited to tribes
which have received TAS for section 303 of the CWA and have federally
approved water quality standards (WQS). Permit conditions requested by tribes
under § 233.31 should be protective of the biological, chemical, or physical
integrity of the waters as expressed by tribal WQS. The relationship between the
federal government and tribes is that of sovereign to sovereign. There is the
potential for unnecessary conflict if States are tasked with evaluating requested
permit conditions which are based on rights or interest derived through treaties
and trust relationships between tribes and the federal government. States have the
ability to work with tribes who have not received TAS for section 303 throughout
the permitting process to ensure that the tribes are well informed and given the
opportunity to provide feedback.

o The Department suggests conditions formally requested by tribes should
be limited to requests made by tribes which have been approved for TAS
for section 303 of the CWA and promulgated their own WQS. Any
request for conditions to protect tribal rights or interests which are derived
through treaty between tribes, the federal government, or because lands
are being held in trust on behalf of the tribe by the federal government
should go through EPA.

Agency Response: See Section IV.F of the final rule preamble. EPA agrees that any
permit issued shall comply with the 404(b)(1) Guidelines.

EPA declines to accept the commenter's recommendation that the coordination
requirements of 40 CFR 233.31 should be limited to Tribes which have received TAS
for section 303 of the CWA and have federally approved water quality standards.
The recommended language would place unnecessary barriers on Tribes seeking to
meaningfully engage on permits that may affect their waters and interests. Adopting
the commenter's recommendation would require Tribes to seek TAS for multiple
CWA programs before having access to the statutory coordination requirements
found in 40 CFR 233.31. The commenter has not provided any reason why Tribes
should not be permitted to comment on permits for dredging and filling activities
that could affect Tribal interests if they do not have the resources to promulgate their
own water quality standards. Moreover, early coordination and the opportunity to
provide recommendations will facilitate permitting by reducing the need for Tribes
to request EPA review of permits. EPA's review can delay permit issuance, as the
CWA provides EPA with up to 90 days to review and coordinate with other federal
agencies on permits for which it requests review.

Port Gamble S'Klallam Tribe (PGST^) (EPA-HO-OW-2020-0276-0078-0Q18N)

EPA has proposed that tribes, like the Port Gamble S'Klallam Tribe, that have been
approved for treatment as a state (TAS) under any section of CWA, not just Section 404,
would have the opportunity to suggest permit conditions for Section 404 permits that
would impact on-reservation waters. Id. at 55303. EPA also has proposed that tribes
would be able to apply for a limited TAS solely for the purpose of commenting on a
state-issued Section 404 permit if it would impact on-reservation waters. We generally

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support these proposals but are concerned that they again increase burdens upon tribes
with interests in states that may assume Section 404 permitting authority. Although we
support the increased opportunity to comment and propose permit conditions, each
instance will require investment of time and resources by an impacted tribe. The current
Section 404 permitting program is carried out and funded by the Army Corps, but states
are likely to have fewer resources to commit to implementing a Section 404 permitting
program and have limited incentive to ensure tribal rights and resources are not impacted
by its permitting decisions. This is particularly true if a permit is for a project that may
generate revenue for the state or if there is political pressure to approve the project.

Agency Response: See Section IV.F of the final rule preamble, addressing EPA's
efforts to facilitate Tribal engagement in State or Tribal section 404 permitting
programs, particularly with respect to permits that may adversely affect Tribal
resources or interests. CWA section 404 permits, whether issued by the Corps, a State
or a Tribe, must be consistent with the CWA section 404(b)(1) Guidelines, which
ensure that all permits meet the same minimum requirements and protections for
aquatic resources. See Section IV.B.3 of the final rule preamble for a discussion about
the importance of ensuring that Tribes and States that assume the section 404
program have the capacity to implement it.

American Exploration & Mining Association (AEWA) (EPA-HO-OW-2020-0276-0076-00Q1)
As described in Section C.2 of the Preamble, EPA is proposing three changes to certain
comment and review provisions as they relate to Tribal interests. First, any downstream
Tribe that has been approved by EPA for treatment in a similar manner as a State (TAS)
for any CWA provision would have an opportunity to suggest permit conditions for
CWA Section 404 permits issued by upstream States and authorized Tribes that may
affect the biological, chemical, or physical integrity of their reservation waters. Second,
EPA proposes to enable Tribes that have not yet been approved for TAS for any CWA
provision to apply for TAS solely for the purpose of commenting as a downstream Tribe
on CWA Section 404 permits proposed by States or other authorized Tribes. Third, and
most problematic in our view, EPA proposes to provide an opportunity for Tribes to
request EPA review of permits that may affect [Underlined: Tribal rights or interests.]

We are not necessarily opposed to the first two changes in that we support ensuring
meaningful opportunities for Tribes to participate in CWA Section 404 permitting
processes. We simply point out that these provisions make virtually every Tribe in the
U.S. eligible to provide comments on permitting actions and request EPA review.

Agency Response: EPA disagrees that the final rule means that "virtually every Tribe
in the U.S. will be eligible" to provide comments on [all] permitting actions and
request EPA review of all permits. This provision applies to affected Tribes with TAS
for a CWA program. Additionally, under the current regime anyone, not just Tribes,
may already request EPA review of any permit. The third provision the commenter
identifies simply clarifies an existing opportunity. See Section IV.F of the final rule
preamble for EPA's rationale regarding these provisions and the Agency's response
to comment EPA-HQ-OW-2020-0276-0079-0013.

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3. ( onlineill opportunity lor Tribes with I AS lor any ( \\ \ provision

Buena Vista Rancheria of Me-Wuk Indians (EPA-HO-OW-2020-0276-0053-0Q0n
Buena Vista Rancheria of Me-Wuk Indians (BVR) supports, with suggested
modifications and clarification, the Environmental Protection Agency's (EPA) proposed
changes related to Tribes as Affected Downstream States in relation to Section 404.
Allowing any Tribe with Treatment in a Similar Manner as a State (TAS) under any
CWA provision to comment on 404 permits will make it easier for federally recognized
Tribes to provide input on 404 permits.

Agency Response: The Agency acknowledges the commenter's support.

Buena Vista Rancheria of Me-Wuk Indians (EPA-HO-OW-2020-0276-0053-00Q3N)

In addition, BVR requests funding be made available for Tribes pursuing TAS.

Agency Response: Funding is outside the scope of this rulemaking.

Idaho Department of Environmental Quality (TDEQ) (EPA-HO-OW-2020-0276-0059-00Q3)
III. Tribes as Affected Downstream States

EPA proposes any downstream Tribe that has been approved for treatment in a similar
manner as a State (TAS) for any CWA provision would have an opportunity to suggest
permit conditions for section 404 permits issued by upstream States and authorized
Tribes that may affect the biological, chemical, or physical integrity of their reservation
waters. The proposed Rule requires the Tribe receive notice and an explanation if the
permit does not address their comments and EPA must be notified. This would also
cause additional regulatory delays. IDEQ supports Tribes having the ability to work
collaboratively with States. Though it is important for Tribes that have not been
approved for TAS to engage and participate in the public comment process, suggesting
permit conditions may extend their authority beyond the CWA and the requirement to
provide notification if conditions are not accepted is burdensome.

Agency Response: The Agency disagrees that these provisions will delay permitting.
The timelines in this provision are the same as those articulated in the statute and
prior regulations for EPA permit review and oversight.

The requirement to provide potentially affected Tribes and States the opportunity
to comment on a State or Tribe-issued CWA section 404 permit is a statutory
requirement. The statute requires that "[t]o assure that any state (other than the
permitting State), whose waters may be affected by the issuance of a permit may
submit written recommendations to the permitting State ...if any part of such
written recommendations are not accepted...the permitting State will notify such
affected State (and the Administrator)..." See 33 U.S.C. 1344(h)(1)(E).

The regulations at 40 CFR 233.31 provide that the opportunity for the affected
State or Tribe to provide comment is within the public comment period, which is
generally no less than 30 days. Additionally, permitting agencies typically work

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with affected Tribes prior to permit proposal, a practice EPA encourages to reduce
the likelihood of delays.

National Association of Wetland Managers (NAWM) (EPA-HO-QW-2020-0276-0072-0017)
NAWM supports a robust dialogue between permitting authorities and neighboring
jurisdictions, including tribal lands and interests. Permits issued by States or Tribes who
have assumed the Section 404 program do not trigger Section 401 due to the lack of a
permit issued by a federal agency. As a result, Section 401 (a)(2)'s opportunity for
neighboring jurisdictions to comment on implications of a proposed permit do not apply.
The proposed process would help fill that gap.

The proposal preamble does not explicitly explain why the proposed process is necessary
for downstream Tribes to have an opportunity to raise implications of a permit from an
assumed program. This omission is likely to result in many comments asserting that the
proposed neighboring jurisdiction process is duplicative of Section 401 and is
unnecessary. The preamble draws an analogy to the Clean Air Act. NAWM strongly
recommends the final rule preamble go beyond the Clean Air Act to CWA Section 401
water quality certification, and in so doing explicitly explain why Section 401's
neighboring jurisdiction provisions would not apply to permits issued by assumed
programs.

Agency Response: See Section IV.F of the final rule preamble for discussion of these
provisions. EPA has not provided additional language in the preamble as Tribal-
and State- issued permits are not federal actions triggering CWA section 401
certification. The CWA requires that "affected States" be notified and given the
opportunity to provide recommendations if the proposed discharge may affect their
resources. See 33 U.S.C. 1344(h)(1)(E). To add additional discussion on other
provisions of the Act which are not a part of this rulemaking will likely create
confusion rather than provide clarity.

4. Applying for TAS solely to comment on proposed section 404 permits

Buena Vista Rancheria of Me-Wuk Indians (EPA-HO-OW-2020-0276-0053-00Q2N)

BVR also supports allowing Tribes to apply for TAS for the sole purpose of commenting
on 404 permits. Tribes should be able to request an area of interest or define the
geographic scope of the TAS for 404 permit review to the scope that is relevant to the
Tribe even if the permits under review are not on reservation land. This would increase
the Tribes ability to ensure that permits affecting waters within its ancestral area can be
reviewed in order to protect cultural and ecologically significant areas.

Additionally, BVR asks the EPA to conduct outreach programs to inform Tribes about
this proposed change (applying for TAS for the sole purpose of commenting on 404
permits).

Agency Response: EPA encourages Tribes to work with a Tribe or State that
assumes the CWA section 404 program to identify areas of interest to the affected

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Tribe (within and beyond reservation lands) and to develop mechanisms to ensure
these interests are considered during the permitting process. See Section IV.F of the
final rule preamble for further discussion and rationale for these provisions. EPA
plans to conduct outreach on the final rule, including the opportunity to apply for
TAS for the purpose of commenting as an "affected State" on Tribal- or State-
issued 404 permits.

Region 10 Tribal Operations Committee (RTOC) and National Tribal Water Council (NTWC)

(EPA-HO-OW-2020-0276-0070-00Q9N)

V. We strongly support the enabling of Tribes to suggest permit conditions with only a
minimal TAS application burden.

The ability of Tribes to provide suggestions for permit conditions for upstream 404
permit programs is incredibly beneficial to the Tribes and is conducive to cooperative
resource management. The goals of maximizing the economic gains from natural
resources and of sustaining healthy ecosystems are both dependent on collaborative
management between all interested parties. This collaborative management can only
occur when the barriers to participation are removed. The development of a relatively
low-cost method for Tribes to suggest permit conditions for upstream waters is a
significant step towards useful collaborative management.

However, the sovereignty of Tribes and the safeguarding of their interests should not
depend on their ability to meet a threshold administrative application burden, however
"minimal." Any gatekeeping regulation accomplished by the limited TAS application
will be accomplished through the inherent costs of developing, drafting, and submitting
suggested permit conditions anyway. Therefore, simply being a federally recognized
Tribe should be sufficient to enable the submission of permit conditions.

We anticipate that this empowerment will be reinforced by the pending EPA rule
establishing baseline water quality standards for Tribes. It is hoped that the baseline
standards, incorporating Tribal uses and desires, will be used as permit conditions for
upstream 404 programs. Should downstream Tribes not be considered downstream states
despite these EPA-approved standards, then a different provision should be added to
secure the same protections.

Agency Response: This rulemaking enhances Tribal access to the notification and
commenting procedures found at 40 CFR 233.31 which are reserved for "affected
States." See 33 U.S.C. 1344(h)(1)(C) and (E). Section 518 of the CWA authorizes
EPA to treat eligible federally recognized Tribes in a similar manner as a State for
purposes of implementing and managing various environmental functions under
the statute. See 33 U.SC. 1377(e). Tribes may seek TAS for the sole purpose of
providing recommendations on Tribe- or State-issued permits that may affect their
interests which is consistent with the CWA and Congressional intent. Additionally,
any Tribe, or Tribal member, may comment on a proposed Tribal- or State- issued
permit during the public comment period. See Section IV.F of the final rule
preamble for further discussion on these provisions.

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The Tribal water quality standards rulemaking is outside of the scope of this
rulemaking.

National Association of Wetland Managers (NAWM) (EPA-HO-QW-2020-0276-0072-0018)

The proposal outlines the Agencies role in review of federal actions and the coordination
with neighboring jurisdictions on potential impacts to the water quality of resources
under their control. The rule also sets out a process for Tribes to receive treatment in a
similar manner as a State (TAS) specifically for this purpose. EPA, in its oversight
authority of an authorized 404 program, must assure that all potential impacts to
neighboring jurisdictional interests are addressed and coordinated by the authorized
program. We suggest that the coordination procedures with neighboring jurisdictions and
Tribal lands and interests be outlined in the authorization MOA with the authorized State
or Tribe and should clearly identify roles and responsibilities.

Agency Response: The regulations articulate coordination procedures with affected
Tribes and States, including requirements for notification of the opportunity to
comment, the time frame within which to provide comment, and next steps if
permit recommendations from an affected Tribe or State are not accepted. As the
regulations already identify roles and responsibilities, EPA is not imposing
additional requirements for addressing them in the MOA, but EPA may provide
future guidance if it is determined to be helpful.

In addition, preferred methods of communication may differ for each Tribe and
State, though if a Tribe or State believes coordination procedures should be further
identified through the MOA, EPA encourages such coordination.

Great Lakes Indian Fish and Wildlife Commission (EPA-HO-OW-2020-0276-0080-0009)
III. Expanded TAS to Enable Comments as a Downstream Affected State. The EPA
proposes to expand treatment as a state (TAS) for the purpose of allowing downstream
tribes without TAS to comment on upstream 404 permits. The agency also proposes to
"provide an opportunity" for any tribe to request review of permits that may affect tribal
rights or interests. Rather than creating a separate process, EPA should consider
providing the same limited TAS status (as is proposed for a downstream tribe without
TAS) for tribes when states issue 404 permits anywhere within treaty ceded territories.
This would provide additional weight to tribal comments and would further the EPA's
separate initiative to require that water quality standards under the CWA protect tribal
interests in aquatic-dependent resources. Since many of these resources are found in
wetland ecosystems, the TAS option would enable a more robust comment opportunity
for affected tribes.

Agency Response: The Agency appreciates commenter input with respect to
opportunities regarding which Tribes are considered and may provide input as an
"affected State." EPA is not amending the final rule to establish the same process
for commenting as an "affected State" as when a Tribe indicates its rights or
interests in ceded territories may be affected by a permit. 40 CFR 233.31 addresses
potential impacts to Tribal or State waters, not ceded territories. See 33 U.S.C.

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1344(h)(1)(E). EPA is not adding any regulatory revisions on this point as such
requests are most efficiently addressed on a case-by-case basis. Under the final
rule's approach, Tribes can focus their attention and resources, and EPA's,
appropriately on permits of concern and not on all permits within a potentially
large geographic area of ceded territory.

5. Opportunity to request EPA review of permits affecting Tribal rights and interests

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0047)

YRITWC supports EPA's proposal to add a provision for tribes to notify EPA of permit
applications that potentially affect tribal rights or interests, "even if Federal review has
been waived." Id. at 55305. This provision must stay in the final rule as a tool that tribes
can use to protect tribal resources in the event of state assumption. In order for EPA to be
accountable to tribes that utilize this avenue for EPA review, EPA must add a
corresponding provision to §233.50, that if the Regional Administrator withdraws an
objection that is based on the potential impacts to tribal rights or interests, that EPA must
provide a written explanation as to why EPA is withdrawing its objections or why EPA's
objections have been satisfied. Because this provision gives EPA the ability to act on
behalf of tribes, even if EPA has waived that category of review, EPA must explain how
or why those tribal interests have been protected as part of the permit process.

Agency Response: As discussed in Section IV.F of the final rule preamble, EPA may
send a copy of the letter removing EPA's objections to a permit at a Tribe's request
or pursuant to a prior agreement.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q68N)

- EPA should ensure the final rules add a provision for Tribes to notify EPA of permit
applications that potentially affect Tribal rights or interests, even if Federal review has
been waived. If EPA withdraws an objection that is based on the potential impacts to
Tribal rights or interests, EPA must provide a written explanation as to why EPA is
withdrawing its objections or why EPA's objections have been satisfied.

Agency Response: See Section IV.F of the final rule preamble addressing EPA's
efforts to facilitate Tribal engagement in State or Tribal section 404 permitting
programs, particularly with respect to permits that may affect Tribal rights or
interests. See also the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0063-0047 for further discussion of notification when EPA withdraws an objection.

Region 10 Tribal Operations Committee (RTOC) and National Tribal Water Council (NTWC)

(EPA-HQ-OW-2020-0276-0070-0010)

VI. We strongly support the ability of Tribes to request EPA review for permits that
threaten off-reservation resources, but there should be an affirmative duty to inform
Tribes of pending permits.

We hope that allowing Tribes to request EPA review of permits that may threaten on-
and off- reservation water resources will ensure that no significant water resource will

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receive less consideration due to State assumption of a 404 program. The ability to
request this review is a valuable reaffirmation of the EPA's trust obligation.

However, there is no mechanism within the proposed rule to ensure that Tribes will be
informed of pending State-issued permits affecting off-reservation waters. For Tribes to
have an effective means of providing input, or instigating EPA review, they first must
know of the pending permit. Therefore, we suggest that the rule include a duty to inform
Tribes of pending 404 permits. Waters significant to Tribes could be articulated in the
MOA detailing assumed waters, provided that Tribes are allowed participation in the
drafting.

In effect, State adoption of a 404 program should not lessen a Tribe's engagement with
permit decisions. State obligations as a result of adoption should be at least as stringent
as the Federal program's consultation requirements.

Agency Response: See Sections IV.F of the final rule preamble regarding
notification requirements. In addition to the public notice and the affected State
notification requirements, Tribes may work with Tribes and States issuing CWA
section 404 permits to identify any additional mechanisms for notifying the affected
Tribe of permitting actions. See 40 CFR 233.31, 233.32; see 33 U.S.C. 1344(h)(1)(C),
(E). EPA has not required an additional notification process as each Tribe may
wish to be notified through a different mechanism or rely on the existing
notification requirements in the regulations. Any such coordination procedures
should be part of a program description and as appropriate, articulated in MOAs.

National Association of Wetland Managers (NAWM) (EPA-HO-QW-2020-0276-0072-0019)
It is also suggested that the coordination process occur prior to the issuance of a Public
Notice allowing neighboring jurisdictions to elevate concerns prior to draft permit
development so conditions could be implemented to mitigate the issues raised. Having
Tribes need to request EPA to intervene on their behalf would appear to be an additional
procedural process than is currently the practice with the Corps as the permitting
authority.

Agency Response: EPA encourages States and Tribes to work together prior to
proposal of a permit. Such efforts will improve permitting, protect interests and
build relationships. To maintain flexibility and allow for the design of mechanisms
that work best for the individual Tribal-State relationships, EPA has not mandated
a specific process or timeline. See the Agency's Response to Comment EPA-HQ-
OW-2020-0276-0072-0019.

American Exploration & Mining Association (AEWA) (EPA-HO-OW-2020-0276-0076-00Q2)
Our concern is the burden and uncertainty that could be created by the request for EPA
review provision. AEMA members have at times been frustrated by delays in permitting
actions by the U.S. Army Corps of Engineers (Corps). This is why we believe
encouraging State program assumption is appropriate especially in protecting water
resources under State jurisdiction. However, the Corps permitting process is well

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established, with EPA generally having a well-defined and typically very selective
oversight role. As a result, very few Corps CWA Section 404 permit actions have been
subject to EPA objection.

In the interest of maintaining an effective and timely permitting program, we assume that
all States will seek to avoid potential EPA objections to permit actions. As such, they
will be required to anticipate what Tribal rights and interests could be and address them
both at the programmatic and individual permit action levels. The Proposed Rule implies
that the EPA review would address both on- and off-reservation effects. It further
indicates that the "proposed revisions to Section 233.51 would enable Tribes to request
EPA's review of permits that may affect both rights reserved through treaties, statutes,
executive orders, or other sources of Federal law, as well as Tribal interests in resources
that may not be reflected in Federal law but are nonetheless of significance—e.g., of
cultural significance—to Tribes." We believe this provision places a potentially
unreasonable burden on States in interpreting Tribal reserved rights and interests.

Specifically, to ascertain whether reserved rights could be impacted by any type of CWA
Section 404 permit action, agencies must identify such rights. That would require
agencies to interpret legal agreements that even courts find challenging.

In the first place, agencies have not been delegated the authority to interpret treaties or
other instruments. See Maine v. Johnson, 498 F.3d 37, 45 (1st Cir. 2007) (interpretation
of 1979 and 1980 settlement acts resolving State/Tribal jurisdiction issues in Maine a
matter of Federal law not within the purview of the U.S. Environmental Protection
Agency [EPA]). To the contrary, the Federal courts have original jurisdiction over
questions of treaty-guaranteed rights. See 28 U.S.C. Section 1362. In the case of some
reserved Tribal rights, however, the States may have jurisdiction to resolve such claims.
Confederated Salish Kootenai v. Flat., 616 F. Supp. 1292, 1295 (D. Mont. 1985);
(Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976);
Arizona v. San Carlos Apache Tribe, 463 U.S. 545, (1983).

Second, in addition to lack of legal authority, agencies fundamentally do not have the
expertise to interpret agreements between Tribal Nations and the Federal government.
There is a significant and extremely complex body of constitutional law that governs the
interpretation of treaties and other instruments, such that even Federal courts struggle
with these questions. Where courts have not already definitively established such rights,
significant historical research is required to identify what instruments might establish
Tribal reserved rights. Even finding out what treaties apply, much less what they mean,
is a difficult and uncertain task. Many treaties apply to more than one Tribal Nation.
Many have been specifically abrogated by Congress, others implicitly so. There is no
single repository of such legal documents, much less any resource that could point
agencies to a definitive list of reserved rights established, identified, or quantified under
such documents.

Furthermore, the expansive language in the Proposed Rule goes beyond just reserved
rights subject to legal interpretation, but rather suggests that any type of tribal interest

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could be used to trigger EPA review and possible EPA objection to a permit action. This
has the potential to extend far beyond the framework of effects on the aquatic
environment typically addressed under CWA Section 404 to any type of environmental,
social, or cultural concern that a Tribe may have about a project. Moreover, the reference
to potential off-reservation effects puts no proximity-related boundaries on what could be
considered.

As a result, we see potentially significant challenges for States to incorporate these
requirements into their program development, including whether EPA would require
specific provisions to interpret them in their regulations. We see this as a major
disincentive to pursuing program primacy. Moreover, once a program is approved, the
requirements could cause long delays as State agency staff that are not qualified to
interpret Tribal rights and interests struggle to apply the requirements in individual and
general permit actions. We further see this as a disincentive for industries such as ours to
support State primacy applications. Finally, if primacy is granted, we see the potential
for the program requirements to delay and, in some cases, prevent development of
critical and essential mineral projects, as well as virtually every other type of critical
infrastructure project that needs a CWA Section 404 permit.

As noted above, EPA Regional offices also do not have the internal legal and policy
capabilities to interpret what constitutes appropriate rights and interests, and they will
struggle to determine how they should be applied in reviewing primacy applications and
for specific permit actions. The Proposed Rule makes no acknowledgement of these
potential issues. Like several other actions this administration has proposed, [Footnote 1:
See CEQ's National Environmental Policy Act Implementing Regulations Revisions
Phase 2, Docket Number CEQ-2023-0003 and EPA's Water Quality Standards
Regulatory Revisions to Protect Tribal Reserved Rights, Docket Number EPA-HQ-OW-
2021-0791, AEMA submitted comments on these issues for both these rulemakings.] the
Tribal review requirements seem at a broad level to be good ideas to address Tribal
concerns over State CWA Section 404 programs. However, they have been proposed
with no regard to the implementation challenges they could raise for States and EPA
Regional offices.

Agency Response: EPA agrees that Tribes and States interested in assuming CWA
section 404 programs are interested in developing programs that are effective and
review permit request in a timely fashion. To develop such a program, EPA
encourages the issuing Tribe or State to work with all affected Tribes and States to
identify and resolve potential adverse impacts to the affected Tribe or State's
resources and interests. Additionally, the program should ensure issued permits are
consistent with and no less stringent than the CWA section 404(b)(1) Guidelines.
Developing programs that ensure consistency with the requirements of the Act and
resolve affected Tribal and State concerns will minimize EPA objections to Tribe or
State-issued permits. For reference, EPA has maintained an objection to a tiny
fraction of permits in the 40 years that Michigan has administered the program and
has not maintained an objection to any permits in New Jersey's 30 years
administering the program.

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Nothing in this rule requires States or Tribes to determine whether reserved rights
could be impacted by any type of CWA section 404 permit action, and certainly not
to interpret Treaties or reserved rights between individual Tribal nations and the
Federal Government. This rule simply clarifies opportunities for Tribes to seek
EPA review of draft permits that the Tribe views as affecting its rights and
interests. When Tribes seek EPA review of such draft permits, EPA will review to
ensure the permits are consistent with the section 404(b)(1) Guidelines. This tool
simply enhances communication opportunities within the guardrails of the CWA to
help ensure that Tribal resources and rights are protected consistent with the
requirements of the CWA.

EPA is not placing distance limitations on which Tribes may request EPA review of
a permit that may affect their treaty rights or interests. Different Tribal Nations
have been displaced at various distances from their ancestral lands and may retain
rights to lands at various distances. To place a limitation based on distance could be
contrary to Treaties retaining such rights. Moreover, as noted above, this rule does
not create any new rights; it simply facilitates EPA review of draft permits
consistent with EPA's authority under the statute.

American Exploration & Mining Association (AEWA) (EPA-HO-OW-2020-0276-0076-0003)
We are, therefore, concerned that the broad language in the Proposed Rule could lead
State agencies and/or EPA to completely defer to Tribes' assertion of reserved rights or
interests and blind acceptance over their concerns about a permit, and create a de facto
Tribal veto/consent process for permit actions. This is especially the case where EPA
must act according to strict review and objection deadlines under Section 233.50.

The Preamble states that "EPA anticipates that Tribes will use this opportunity in limited
circumstances and that this will not be used for every permit application under public
notice." However, we see no documentation for this assumption. Our experience is that
Tribes can sometimes assert that entire regions or States, or major watersheds, are
subject to their rights and interests, and that an individual permit action might broadly
degrade those resources. Moreover, the expansive and inclusive nature of Tribal
participation described in the Proposed rule suggests that many Tribes could express
their rights or interests over a specific project. For example, Alaska has more than 230
Federally recognized Tribes. As we have seen, almost always one or more Tribes has
opposed our members' projects from the exploration stage all the way through to project
construction and operations. We respect these views, but EPA also needs to acknowledge
the broader local, regional, state-wide, national, and global benefits our projects can
bring, including sourcing critical and essential minerals from a secure and
environmentally and socially responsible jurisdiction.

We, therefore, urge that EPA re-consider the proposed change for Tribes to request EPA
review. This can be better accomplished through individual State program development
tailored to their specific conditions. Otherwise, at a minimum EPA should acknowledge
the issues that we have raised and better define how these requirements would be
implemented, either in the Final Rule and/or follow- up guidance.

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Agency Response: EPA appreciates the concern raised by the commenter. However
as described in Section IV.F, this rule simply facilitates EPA's review within the
existing framework of CWA section 404(j) and 40 CFR 233.50 to ensure permit
compliance with the section 404(b)(1) Guidelines; it does not create any other new
substantive review requirements for State permits. Facilitating public participation
in the permitting process carries out the intent of CWA sections 101(e) and
404(h)(l)(C)-(E). Nothing in this rule would authorize EPA's "blind acceptance" of
Tribal concerns, or the concerns of any other stakeholder. This rule simply allows
certain permits to be highlighted for EPA's review; once EPA is sent these permits,
it would review them for compliance with CWA requirements just as it would
review any other draft permit. Furthermore, given the TAS provisions discussed in
Section IV.F of the final rule preamble, EPA anticipates that Tribes will use this
opportunity in limited circumstances. EPA encourages Tribes and States to work to
identify areas within which Tribes may wish to receive notice of pending permits so
that they may review and consider if they have any concerns to raise to the
permitting agency.

Port Gamble S'Klallam Tribe (PGSTI (EPA-HO-OW-2020-0276-0078-0Q17N)

To the extent that the Corps does not maintain 404 authority over all areas in which
Tribes have reserved rights (including all off-reservation areas), the Port Gamble
S'Klallam Tribe generally supports EPA's proposal to add a provision to section 233.51
to codify Tribes' opportunity to request EPA review of permits that Tribes view as
potentially affecting Tribal rights or interests, but encourages EPA to adopt a more
robust version of this provision in the final rule as a tool that tribes can use to protect
tribal resources in the event of state assumption. While this provision provides for tribes
to notify EPA of permit applications that potentially affect tribal rights or interests, "even
if Federal review has been waived," the practicalities of tribes' ability to utilize this
provision must be accounted for. Id. at 55305. And the proposed provision does not go
far enough to address this concern.

The tribes who provided feedback to EPA during pre-proposal outreach that there is "no
reliable instrument for coordination with States assuming the section 404 program
regarding potential impacts on historical and cultural sites or Tribal natural resource
rights located outside of reservation lands" were correct. Id. However, the rule, as
drafted, seems to place the burden of this lack of reliable process on tribes to track every
public notice in the state's jurisdiction, as though it were a member of the general public,
to determine whether it should get in touch with EPA to let the Federal trustee know that
its reserved rights are in need of protection. The language of the rule does not seem to
require anything from the state assuming 404 jurisdiction to ensure that tribes with off-
reservation rights are specifically notified of permit applications that may affect their
rights. The rule should require states taking over a 404 program to ensure that tribes with
reserved rights and other tribal interests within the scope of the state's jurisdiction are
specifically notified of such applications (i.e., not have to follow general public notice
emails and websites as though they were an ordinary member of the public), that current
contact information for person(s) at the tribe responsible for review of such notices is
updated regularly and used, and that enough information has been included in the public

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notice and project application for tribes to be able to assess the potential impacts, if any,
on their rights and resources.

Another problem with the proposed provision is that it would require tribes to notify
EPA of a permit application that potentially affects Tribal rights or interests within just
20 days of public notice. Given the workloads of most tribal staff, as well as the large
geographic area covered by many tribes' U&A and other areas in which they may have
reserved rights, 20 days is an extremely short time for tribes to be able to assess a public
notice and notify EPA that a permit may affect their reserved rights or other important
tribal interests. That time for notification should be extended to at least 45 days,
especially in the absence of the special notification requirements described above.

Finally, in order for EPA to be accountable to tribes that utilize this avenue for EPA
review, EPA must add a corresponding provision to § 233.50, that if the Regional
Administrator withdraws an objection that is based on the potential impacts to tribal
rights or interests, that EPA must provide a written explanation as to why EPA is
withdrawing its objections or why EPA's objections have been satisfied. Because this
provision gives EPA the ability to act on behalf of tribes, even if EPA has waived that
category of review, EPA must explain how or why those tribal interests have been
protected as part of the permit process.

EPA anticipates its review of state-proposed Section 404 permits under this provision
will be limited. Id. at 55305. EPA should revisit this assumption given the extent of off-
reservation reserved rights that tribes hold throughout many regions of the country. A
state assuming authority to implement a Section 404 permitting program will have little
incentive to protect impacted tribes (unless EPA requires it), particularly if a project will
not impact on-reservation waters but may impact off-reservation tribal or treaty
resources. The Army Corps and EPA cannot sidestep their legal and trust responsibilities
to protect tribal resources by shifting the burden of protecting off-reservation resources
from degradation by state governments to the tribes. A clear and ready avenue for federal
oversight and involvement must remain available, and PGST anticipates that it will be
used often in states where tribes hold off-reservation reserved rights. Appropriate levels
of Federal resources and staffing should therefore be anticipated and provided for.

Agency Response: See Section IV.F of the final rule preamble. EPA recognizes that
tracking every public notice issued by an assumed Tribe or State would be a burden
on Tribal resources. EPA also recognizes, however, that Tribes may be in the best
position to identify permits that address Tribal rights and interests. EPA therefore
did not impose the burden of identifying such permits on the assuming Tribal or
State agency. EPA encourages Tribes to work with assuming Tribes and States to
identify regions for which they may wish to be notified of permits to help reduce the
number of permits for which the Tribe receives notice.

EPA understands that the timeframe within which a Tribe must request EPA
review of a permit is limited. However, the statute requires EPA notify the Tribe or
State agency issuing the permit within 30 days of receiving the proposed permit if
EPA intends to comment on the permit. In order for EPA to reserve this right to

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comment on the permit, EPA must be made aware of the Tribe's request prior to
the expiration of the 30 calendar days to allow time for EPA to prepare a notice
informing the permitting agency of EPA's intent to review and provide comment.

See the Agency's Response to Comment EPA-HQ-OW-2020-0276-0063-0047 for
further discussion of notification when EPA withdraws an objection.

State of Alaska Department of Environmental Conservation (EPA-HO-QW-2020-0276-0079-

0015")

Fifth, EPA includes no criteria against which to assess the validity of a Tribe's asserted
off-reservation interest. So far as the Proposed Rule goes, a Tribe need only select a
permit application and "have identified [it] as having a potential impact on Tribal
resources." [Footnote 41: 88 Fed. Reg. 55305.] Doing so imposes additional
requirements, and political pressure, on States. Without discussion or evaluation, this
rulemaking appears premised on the existence of Tribal rights to resources existing off-
reservation. Before purporting to impose legally binding requirements to protect these
rights, EPA must first indicate what it believes these rights to be.

Agency Response: This rule does not address what, if any rights particular Tribes
may have to resources off-reservation. This rule simply facilitates Tribal
notification to EPA of draft permits that may impact the Tribes' rights or interests
within or beyond reservation boundaries. EPA may then, in turn, assess whether
the permit complies with the requirements of the section 404(b)(1) Guidelines, as
required by the CWA.

Great Lakes Indian Fish and Wildlife Commission (EPA-HO-OW-2020-0276-0080-001Q)
IV.EPA Review of Permits. GLIFWC staff support the proposal to codify tribes'
opportunities to request EPA review of proposals that have the potential to affect their
treaty rights. In order for EPA to be accountable to tribes that utilize this avenue for EPA
review, EPA must add a corresponding provision to § 233.50, that if the Regional
Administrator withdraws an objection that is based on the potential impacts to tribal
rights or interests, that EPA must provide a written explanation as to why EPA is
withdrawing its objections or why EPA's objections have been satisfied. Because this
provision gives EPA the ability to act on behalf of tribes, even if EPA has waived that
category of review, EPA must explain how or why those tribal interests have been
protected as part of the permit process.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0047 for further discussion of notification when EPA withdraws an
objection.

Tulalip Tribes of Washington (EPA-HO-OW-2020-0276-0082-00Q7N)

Tulalip supports tribes having the ability to notify the EPA when state permitting
applications may affect tribal rights or interests but requests that the EPA be required to
explain, in writing, the underlying reasons for any withdrawing of EPA's objections that
were based on potential impacts to tribal rights or resources.

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Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0047 for further discussion of notification when EPA withdraws an
objection.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q42N)

Chickaloon Native Village supports EPA's proposal to add a provision for Tribes to
notify EPA of permit applications that potentially affect Tribal rights or interests, "even
if Federal review has been waived." Id. at 55305. This provision must stay in the final
rule as a tool that Tribes can use to protect Tribal resources in the event of state
assumption. In order for EPA to be accountable to Tribes that utilize this avenue for EPA
review, EPA must add a corresponding provision to § 233.50, that if the Regional
Administrator withdraws an objection that is based on the potential impacts to Tribal
rights or interests, that EPA must provide a written explanation as to why EPA is
withdrawing its objections or why EPA's objections have been satisfied. Because this
provision gives EPA the ability to act on behalf of Tribes, even if EPA has waived that
category of review, EPA must explain how or why those Tribal interests have been
protected as part of the permit process.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0047 for further discussion of notification when EPA withdraws an
objection.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-002QN)

EPA must afford all potentially affected Tribes the ability to request EPA review of state-
issued Section 404 permits.

Agency Response: EPA is also revising section 233.51 to codify an opportunity for
Tribes to request EPA review of permits potentially affecting Tribal rights or
interests. See Section IV.F of the final rule preamble for further discussion.

6. Comments regarding EPA's Trust responsibilities

Alaska Mining Impacts Network (EPA-HO-OW-2020-0276-0045-00Q2)

AKMIN expresses profound concern regarding Alaska's current initiatives to assume the
404 permitting process. We ask that the EPA not consider any request to assume 404
permitting until after this rulemaking is complete and that any request to assume must
conform to the rules. The EPA must immediately inform Alaska that any assumption
process must be on hold until the completion of this rulemaking.

The federal government has an obligation to consult with tribes before acting in a way
that may affect a tribe's right. States do not have the same obligation. A state that is
reluctant to address specific project-related concerns with a tribe may find it easier to
dismiss their significance. Alaska didn't officially acknowledge tribes as governments
until July 2022. Even then, the measure itself doesn't change the current legal status of
Alaska Tribes or the State's responsibility or authority. Additionally, the Alaska
Department of Environmental Conservation has routinely failed to consult with Alaska

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tribes. EPA cannot consider state consultation on 404 permits to be a substitute for the
federal government's primary trust responsibility to tribes.

Agency Response: A Tribal or State request to assume the section 404 program is
beyond the scope of this rulemaking. To the extent the commenter is concerned
about opportunities to provide recommendations on permits issued by Tribal or
State section 404 programs, the final rule articulates how Tribes may meaningfully
engage in the permitting process. If Alaska requests to assume the program, the
program will need to comply with all provisions of CWA section 404 and these final
regulations. See Sections IV.A, IV.B, and IV.F of the final rule preamble for more
discussion of these opportunities and requirements.

Yukon River Inter-Tribal Watershed Council (EPA-HQ-OW-2020-0276-0063-000n

As an initial matter, federal agencies such as EPA and the Army Corps of Engineers
(Army Corps or Corps) cannot abdicate the federal trust responsibility they hold to tribal
nations. Any iteration of these regulations must ensure that tribal rights and resources,
including cultural and subsistence resources, remain protected at the same level as they
are currently protected under federal law.

Agency Response: This rulemaking does not alter or in any way affect the federal
government's trust responsibilities with Tribal nations. See Sections IV.A.2 and
IV.F of the final rule preamble for discussion of requirements and mechanisms to
ensure Tribal rights and resources are considered during the permitting process.

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0013)

EPA must clarify how other critical protections for tribal resources associated with
federal Section 404 permitting will continue under a state-assumed Section 404 program.
State assumption of Section 404 permitting will remove other federal protections that
accompany a Corps-issued permit, including NEPA, the MSA and the ESA. As stated
above, these federal protections are also a critical avenue for tribal involvement. Federal
agencies should, as part of their trust responsibility, consult with tribes in conducting
NEPA review and analyzing ESA impacts and impacts to fisheries. Environmental
reviews under NEPA, MSA and the ESA must also consider impacts to tribal rights and
resources, including subsistence resources. EPA's proposed rule has not clarified how
those responsibilities will translate to state-assumed programs, especially when the state
does not have a trust responsibility to tribes. EPA must remain involved in state
permitting programs and ensure that state programs are meeting federal environmental
review requirements with respect to tribal rights and resources.

Agency Response: This rulemaking does not alter or in any way affect the federal
government's trust responsibilities with Tribal nations. All permits issued by a
Tribe or State must comply with the environmental review criteria found at 40
CFR 230. See Section IV.A.2 and IV.A.3 of the final rule preamble. The annual
report requirements and EPA oversight of the program are sufficient to ensure
permits comply with the requirements of the Act. See Section IV.E of final rule
preamble.

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Tribal and State permits are Tribal and State actions subject to Tribal and State
law. H.R. Rep. No. 95-830 at 104 (1977) ("The conferees wish to emphasize that
such a State program is one which is established under State law and which
functions in lieu of the Federal program"). See Chesapeake Bay Foundation v. Va.
State Water Control Bd., 453 F. Supp. 122 (E.D. Va 1978) (no NEPA review required
for NPDES permit issued by State because the State permit is not a federal action).
As Tribal and State decisions are not federal actions, the federal consultation
requirements under Section 7 of the ESA, NEPA, and MSA are not triggered.

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0002)

EPA must ensure that the duty to consult and the duty to carry out federal trust
responsibilities owed to federally recognized tribes do not fall by the wayside if a state
assumes authority to issue permits under CWA Section 404. When the Army Corps
issues a permit to discharge dredged or fill material into waters of the United States
under CWA Section 404, it constitutes a federal action that affords the right to
consultation to federally recognized tribes that may be impacted by the permit in
accordance with Executive Order 13175 (Nov. 6, 2000).

Agency Response: This rulemaking does not alter or in any way affect the federal
government's trust responsibilities with Tribal nations. See the Agency's Response
to Comment EPA-HQ-OW-2020-0276-0063-0013.

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0005)

The trust responsibility owed to tribes by the federal government dictates that tribal
rights and resources not be negatively impacted by federal actions. States assuming the
Section 404 permitting program will be under no equivalent obligation under this
proposed rule. Accordingly, upon state assumption of the Section 404 permitting
program, an Alaska Native tribe with rights or resources in the assuming state stands to
lose significant and longstanding procedural and substantive legal rights that were put in
place to protect tribal interests in cultural, historic and subsistence resources.

Agency Response: See the Agency's Responses to Comments EPA-HQ-OW-2020-
0276-0045-0002, EPA-HQ-OW-2020-0276-0063-0013, and EPA-HQ-OW-2020-
0276-0085-0039 as well as Section IV.A.2 regarding federal trust responsibilities
and Section IV.F for a discussion of opportunities for Tribal engagement in the
permitting process.

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0006)

If a state assumes Section 404 permitting authority, EPA may object to a proposed permit
that is inconsistent with the CWA Section 404(b)(1) Guidelines. 33 U.S.C. § 1344(j).
However, EPA currently only reviews approximately 2-5% of the total permit
applications received by the states that are administering Section 404 programs. Further,
a state can overcome EPA's objections by adding permit conditions - a process in which
tribes have no meaningful right to engage. And EPA has discretion to withdraw its
objection to a permit at any time and without justification - a decision that is not subject
to judicial review. Menominee v. EPA, 947 F.3d at 1073. These discretionary and rarely

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used oversight measures are not equivalent to the legal avenues available to tribes for a
federally issued Section 404 permit, and are certainly no substitute for the trust
responsibility owed to tribes by the federal government. Absent additional oversight, the
process as proposed is an insufficient safeguard against the potential for increased
negative impacts to tribal rights and resources in states assuming Section 404 permitting
authority.

Agency Response: Under the final rule, the Agency retains its oversight authority
over permits issued by Tribal and State section 404 programs. See 40 CFR 233.50-
53. For a discussion of how the final rule proposes to clarify certain aspects of
EPA's oversight, see Section IV.E of the final rule preamble. Except where review
has not been waived, the manner in which the Agency implements its oversight
authority on a permit-by-permit basis is beyond the scope of this rulemaking.

EPA disagrees that the oversight measures in the regulations are insufficient to
protect Tribal rights and resources. The final rule provides a number of ways in
which Tribes can meaningfully engage with Tribal and State section 404 programs.
The final rule directs that assuming Tribes and States provide for judicial review of
state- or Tribe-issued permits. See Section IV.C.2 of the preamble to the final rule
for further discussion on judicial review. In addition, under the final rule, Tribes
may request that EPA review permits that may affect Tribal rights or interests
within or beyond reservation boundaries. See also the Agency's Response to
Comment EPA-HQ-OW-2020-0276-0063-0047 for further discussion of notification
when EPA withdraws an objection. Tribes also may receive notice and an
opportunity to provide recommendations as an "affected State" for purposes of 40
CFR 233.31 either by already having status of treatment similar to a state (TAS) for
any provision of the CWA or by specifically seeking TAS for the purpose of
commenting on proposed permits to be issued by a state. See Section IV.F of the
preamble to the final rule.

See also the Agency's Response to Comment EPA-HQ-OW-2020-0276-0063-0013.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-006QN)

- EPA and the Corps cannot abdicate the federal trust responsibility they hold to Tribal
nations.

Agency Response: This final rule does not affect or alter the federal government's
trust responsibilities.

Region 10 Tribal Operations Committee (RTOC) and National Tribal Water Council (NTWC)

(EPA-HO-OW-2020-0276-0070-00Q6N)

III. The 300-foot default administrative boundary is arbitrary and may result in a
dereliction of the Federal trust responsibility.

The Federal trust responsibility implicates "moral obligations of the highest
responsibility and trust,"[Footnote 4: Seminole Nation v. United States, 316 U.S. 286,

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297 (1942).] and these obligations are not met by arbitrarily limiting the geographic
areas where Tribal interests must be considered.

Agency Response: EPA has not finalized a default 300-foot default administrative
boundary for retained wetlands. See Section IV.B.2 of the final rule preamble.

See the Agency's Responses to Comment EPA-HQ-OW-2020-0276-0076-0002 and
Section IV.F of the final rule preamble for discussion of Tribal opportunities to
request EPA review of a Tribe- or State-issued permit that may affect Tribal rights
or interests.

National Tribal Water Council (NTWC) (EPA-HO-QW-2020-0276-0074-0003)

The current administration's emphasis on improving tribal relations, honoring tribal
sovereignty and fulfilling trust responsibility should be reflected in clear and
unambiguous expectations for states who seek to implement §404 programs to consult
with potentially affected tribes, fully consider tribal impacts of these regulated activities,
and then to avoid, minimize or mitigate those impacts.

Agency Response: This final rule does not affect or alter the federal government's
trust responsibilities. See Section IV.F of the final rule preamble, addressing EPA's
efforts to facilitate Tribal engagement in State or Tribal section 404 permitting
programs, particularly with respect to permits that may affect Tribal rights or
interests.

National Tribal Water Council (NTWC) (EPA-HO-OW-2020-0276-0074-SD-00Q4N)

1. States do not have the same trust responsibility as the federal government to consider
tribal interests.

If states take over the CWA § 404 program from EPA and the Army Corp of Engineers
(ACE), ideally states would interact with tribes regarding impacts from state permits on
downstream tribal waters, the way EPA and ACE should do. States are not subject to the
same trust responsibility to tribes as the federal government, however, and may not
accord the same weight to tribal concerns as the federal government would.

As EPA knows, the federal government owes a trust responsibility to tribes that requires
the federal government to recognize and protect tribal interests. Tribal rights to
consultation stem from this responsibility. Tribes also have a unique government-to-
government relationship with the federal government. Although, more often than not,
tribes would prefer managing their own affairs, including with regard to natural
resources, when tribes lack the capacity to do so it is the federal government's
responsibility to protect tribal interests.

In contrast, when federal authority is delegated to a state, tribes are not always consulted
and tribal interests tend to be summarily dismissed in the face of conflicting state
interests. This situation is of particular concern in the context of CWA § 404(g), since it
is much more likely that states will assume authority for the wetlands permit program
than tribes, for all the reasons discussed above. The end result puts tribes at a great

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disadvantage, since it leaves tribes to deal directly with their state counterparts, without
the federal safeguards for tribal interests.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0074-0003.

National Tribal Water Council (NTWC) (EPA-HO-OW-2020-0276-0074-SD-00Q5)

2. States are not required to comply with NHPA or ESA when issuing permits.

The consultation requirements of the National Historic Preservation Act (NHPA) and
Endangered Species Act (ESA) are triggered by "federal action." If states take over the
issuance of CWA § 404 permits, the federal action requirement is not triggered by the
permit issuance itself. Yet the permitted discharges may nevertheless impact tribal
waters, and tribal natural and cultural resources are still at risk of being degraded or
destroyed. Recently EPA representatives assured the NTWC that EPA will continue to
exercise its responsibilities under these statutes. The NTWC strongly supports this
position. In fact, for example, on beds and banks, held in trust by the United States for
the Coeur d'Alene Tribe, the United States Supreme Court held that the State of Idaho
has no right title or interest in the Tribe's waters. This is illustrative of how the federal
government must maintain authority of this program on tribal waters, if tribes do not
assume this role.

Agency Response: See Section IV.A.2 of the final rule preamble addressing
compliance with Section 106 of the NHPA and Section 7 of the ESA. See also the
Agency's Response to Comment EPA-HQ-OW-2020-0276-0063-0013.

Port Gamble S'Klallam Tribe (PGST) (EPA-HQ-OW-2020-0276-0078-0019)

Army Corps issuance of a permit to discharge dredged or fill material into waters of the
United States under CWA Section 404 is a federal action that affords the right to
consultation to federally recognized tribes that may be impacted by the permit in
accordance with Executive Order 13175 (Nov. 6, 2000). The Corps must also assess the
effects of proposed 404 permits on Treaty-protected fishing rights in tribal U&A. Treaty
Rights MOU, available at https://www.doi.gov/sites/doi.gov/files/interagency-mou-
protecting-tribal-treaty-and-reserved-rights-ll-15-2021.pdf; see generally Section! In
addition, a Corps-issued Section 404 permit includes substantive and procedural
protections under the National Environmental Policy Act (NEPA), the Endangered
Species Act (ESA) and the National Historic Preservation Act (NHPA). These are
important safeguards to ensure meaningful protection of natural and cultural resources,
as well as to incorporate tribal feedback and to preclude interference with tribal rights
and resources. One way or another, each of these protections must be preserved as more
states seek to assume authority over the 404 program.

When a state assumes the responsibility to approve or deny dredge and fill permits, at
least one Circuit Court of Appeals has held that there is no federal action to trigger some
of these federal regulatory processes. See Menominee Indian Tribe of Wisconsin v. EPA,
947 F.3d 1065, 1068 (7th Cir. 2020). And unless EPA requires it in these regulations, a

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state agency reviewing a Section 404 permit application is not obligated to act in the best
interests of an affected tribe or required to identify tribes whose interests may be
affected. While many states have adopted tribal consultation policies, the actual
implementation of those policies, as well as the extent of the consultation, varies by state.
The trust responsibility owed to tribes by the federal government dictates that tribal
rights and resources not be negatively impacted by federal actions. EPA must ensure that
States assuming the Section 404 permitting program under this proposed rule satisfy the
same obligations. Accordingly, upon state assumption of the Section 404 permitting
program, EPA must ensure that no Indian tribe with rights or resources in the assuming
state stands to lose significant and longstanding procedural and substantive legal rights
that were put in place to protect tribal interests in cultural, historic and treaty-protected
resources. EPA must therefore explicitly explain, and take whatever measures are
necessary to ensure, that each of the aforementioned protections is preserved.

Agency Response: See the Agency's Responses to Comments EPA-HQ-OW-2020-
0276-0074-0003 and EPA-HQ-OW-2020-0276-0063-0013.

Port Gamble S'Klallam Tribe (PGSTI (EPA-HO-OW-2020-0276-0078-0Q2n

Further, a state can overcome EPA's objections by adding permit conditions - a process
in which tribes have no meaningful right to engage. And, under the current version of the
regulations, EPA has discretion to withdraw its objection to a permit at any time and
without justification - a decision that is not subject to judicial review. Menominee, 947
F.3d at 1073. These discretionary and rarely used oversight measures are not equivalent
to the legal avenues available to tribes for a federally issued Section 404 permit and are
certainly no substitute for the trust responsibility owed to tribes by the federal
government. Absent additional oversight, the process as proposed is an insufficient
safeguard against the potential for increased negative impacts to tribal rights and
resources in states assuming Section 404 permitting authority.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0006.

State of Alaska Department of Environmental Conservation (EPA-HO-OW-2020-0276-0Q79-

0029")

Third, EPA's reliance on a "Federal trust responsibility" disregards the Supreme Court's
June 2023 holding in Arizona v. Navajo Nation that "[t]he Federal Government owes
judicially enforceable duties to a Tribe 'only to the extent it expressly accepts those
responsibilities.' " [Footnote 38: Arizona v. Navajo Nation, 599 U.S. 555, 564 (2023)
(quoting United States v. Jicarilla Apache Nation, 564 U.S. 162, 177 (2011)).]"Whether
the Government has expressly accepted such obligations," the Court continued, " 'must
train on specific rights-creating or duty-imposing' language in a treaty, statute, or
regulation." [Footnote 39: Id] This requirement "follows from separation of powers
principles." [Footnote 40: Id], Following the Court's decision in Arizona v. Navajo
Nation, then, the federal government - which includes EPA - must identify with
specificity the "rights-creating or duty-imposing" language in a treaty, statute, or
regulation which creates, and delineates, the scope of a specific federal trust
responsibility. In a nationally applicable rulemaking like this, EPA must identify and

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delineate this trust responsibility for each federally recognized Tribe it seeks to act on
behalf of. And to the extent EPA relies on CWA §518, §518 is not an independent grant
of power and cannot be relied upon for these revisions.

Agency Response: This final rule does not affect or amend the federal government's
existing trust responsibilities. The extent of those responsibilities, and the
commenter's recommendation to "identify and delineate this trust responsibility for
each federally recognized Tribe" is beyond the scope of this rulemaking. When a
Tribe or State seeks to assume and administer a section 404 program, EPA will
work with potentially affected Tribes to identify their trust responsibilities.

Great Lakes Indian Fish and Wildlife Commission (EPA-HO-OW-2020-0276-0080-0002)

As an initial matter, the federal court cases that reaffirmed GLIFWC's member tribes'
treaty- reserved rights have made it clear that state management actions are constrained
by the existence of the tribes' rights, and that states are not free to do whatever they wish
without taking those rights into account. It is also true that the federal government is not
relieved of its treaty obligations and trust responsibilities when it delegates programs to
the states. Any iteration of these regulations must ensure that tribal rights and resources,
including treaty rights and resources, are protected and are not subject to state control.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0074-0003.

Great Lakes Indian Fish and Wildlife Commission (EPA-HO-OW-2020-0276-0080-0004)
The trust responsibility owed to tribes by the federal government dictates that tribal
rights and resources are not negatively impacted by federal actions. States assuming the
Section 404 permitting program will be under no equivalent obligation under this
proposed rule. Accordingly, upon state assumption of the Section 404 permitting
program, tribes with rights and resources in the assuming state stand to lose significant
and longstanding procedural and substantive legal rights that were put in place to protect
tribal interests in cultural, historic and treaty-protected resources.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0074-0003.

Great Lakes Indian Fish and Wildlife Commission (EPA-HO-OW-2020-0276-0080-00Q5)

If a state assumes Section 404 permitting authority, EPA may object to a proposed permit
that is inconsistent with the CWA Section 404(b)(1) Guidelines. 33 U.S.C. § 1344(j).
However, EPA currently only reviews approximately 2-5% of the total permit
applications received by the states that are administering Section 404 programs. Further,
a state can overcome EPA's objections by adding permit conditions - a process in which
tribes often have no meaningful opportunity to engage. And, under the current version of
the regulations, EPA has discretion to withdraw its objection to a permit at any time and
without justification - a decision that is not subject to judicial review. Menominee, 947
F.3d at 1073. These discretionary and rarely used oversight measures are not equivalent
to the legal avenues available to tribes for a federally issued Section 404 permit and are
certainly no substitute for the trust responsibility owed to tribes by the federal

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government. Absent additional oversight, the process as proposed is an insufficient
safeguard against the potential for increased negative impacts to tribal rights and
resources in states assuming Section 404 permitting authority.

Agency Response: See the Agency's Responses to Comments EPA-HQ-OW-2020-
0276-0063-0006.

Tulalip Tribes of Washington (EPA-HO-OW-2020-0276-0082-0Q0n

Unlike the Corps and EPA, states are not bound by a legally enforceable fiduciary
obligation to protect tribal rights, lands, resources, and federal mandates. Indeed,
Washington has taken many actions that directly contravene Tulalip's rights and
resources. Without enforceable federal mandates, such as the aforementioned fiduciary
obligation, the National Environmental Policy Act ("NEPA"), the Endangered Species
Act ("ESA"), and the National Historic Preservation Act ("NHPA"), Washington may
continue to take actions against tribal rights and resources via the Section 404 permitting
program.

While the Proposed Rule allows for the EPA to object to permitting actions, this limited,
discretionary, oversight is cold comfort to tribes and pales in comparison to legally
enforceable fiduciary obligation under the current Section 404 permitting regime in
Washington. Accordingly, Tulalip insists that federal consultation regarding any
permitting action that may impact tribal rights and resources must be imposed as a
condition for any state assumption of Section 404 permitting authority. Such consultation
should ensure that tribes maintain the equivalent procedural and substantive protection
that is afforded to them by federal law under the permitting regime currently
implemented by the Corps.

Agency Response: EPA declines to incorporate the recommendation that EPA must
engage in formal consultation with Tribes on all Tribally- or State-issued permits
that may impact the Tribe's rights as this requirement is unnecessary and overly
burdensome for the affected Tribe, the federal agencies, the Tribe or State
processing the permit, and permit applicants. See Section IV.F of the final rule
preamble for opportunities to ensure Tribal interests are considered in Tribal- or
State-issued permits, including the opportunity for Tribes to request EPA review of
a permit. See the Agency's Response to Comment EPA-HQ-OW-2020-0276-0063-
0013.

Chickaloon Native Village (CNV) (EPA-HQ-OW-2020-0276-0085-000n

As an initial matter, federal agencies such as EPA and the Army Corps of Engineers
(Army Corps or Corps) cannot abdicate the federal trust responsibility they hold to Tribal
nations. Any iteration of these regulations must ensure that Tribal rights and resources,
including cultural and subsistence resources, remain protected at the same level as they
are currently protected under federal law.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0074-0003.

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Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q12N)

And while many states have adopted Tribal consultation policies, the Alaska legislature
only recognized Tribes as governments last year and typically fails to engage in
government-to-government consultation with Tribes. The trust responsibility owed to
Tribes by the federal government dictates that Tribal rights and resources not be
negatively impacted by federal actions. States assuming the Section 404 permitting
program will be under no equivalent obligation under this proposed rule. Accordingly,
upon state assumption of the Section 404 permitting program, an Alaska Native Tribe
with rights or resources in the assuming state stands to lose significant and longstanding
procedural and substantive legal rights that were put in place to protect Tribal interests in
cultural, historic and subsistence resources.

Agency Response: See the Agency's Responses to Comments EPA-HQ-OW-2020-
0276-0074-0003 and EPA-HQ-OW-2020-0276-0063-0044.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-00Q3N)

EPA must ensure that the duty to consult and the duty to carry out federal trust
responsibilities owed to federally recognized Tribes do not fall by the wayside if a state
assumes authority to issue permits under CWA Section 404. When the Army Corps
issues a permit to discharge dredged or fill material into waters of the United States
under CWA Section 404, it constitutes a federal action that affords the right to
consultation to federally recognized Tribes that may be impacted by the permit in
accordance with Executive Order 13175 (Nov. 6, 2000).

Agency Response: See the Agency's Responses to Comments EPA-HQ-OW-2020-
0276-0063-0044 and EPA-HQ-OW-2020-0276-0063-0013.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-00Q4N)

Further, a state can overcome EPA's objections by adding permit conditions - a process
in which Tribes have no meaningful right to engage. And EPA has discretion to
withdraw its objection to a permit at any time and without justification - a decision that
is not subject to judicial review. Menominee v. EPA, 947 F.3d at 1073. These
discretionary and rarely used oversight measures are not equivalent to the legal avenues
available to Tribes for a federally issued Section 404 permit, and are certainly no
substitute for the trust responsibility owed to Tribes by the federal government. Absent
additional oversight, the process as proposed is an insufficient safeguard against the
potential for increased negative impacts to Tribal rights and resources in states assuming
Section 404 permitting authority.

Federal consultation should be required for projects or permits impacting Tribal rights
and resources, and federally recognized Tribes should be afforded appropriate and timely
notification so that they may request federal oversight when a state-issued 404 permit
may impact Tribal rights and resources.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0006.

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Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-00Q8N)

EPA must clarify how other critical protections for Tribal resources associated with
federal Section 404 permitting will continue under a state-assumed Section 404 program.
State assumption of Section 404 permitting will remove other federal protections that
accompany a Corps-issued permit, including NEPA, the MSA and the ESA. As stated
above, these federal protections are also a critical avenue for Tribal involvement. Federal
agencies should, as part of their trust responsibility, consult with Tribes in conducting
NEPA review and analyzing ESA impacts and impacts to fisheries. Environmental
reviews under NEPA, MSA and the ESA must also consider impacts to Tribal rights and
resources, including subsistence resources. EPA's proposed rule has not clarified how
those responsibilities will translate to state-assumed programs, especially when the state
does not have a trust responsibility to Tribes. EPA must remain involved in state
permitting programs and ensure that state programs are meeting federal environmental
review requirements with respect to Tribal rights and resources.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0013.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q15N)

EPA must take into account Tribal governments and the United States' trust obligations.
Alaska hosts more than 230 of the 574 federally recognized Tribal governments of the
United States. Thus, in Alaska, state assumption of Clean Water Act Section 404
permitting would have even more significant consequences for Tribes and Indigenous
peoples than in other parts of the country. Among other protections, Tribes would
no longer be guaranteed their right to government-to-government consultation on 404
permits. Nor would they be guaranteed the opportunity to participate in processes under
federal statutes such as NEPA and the NHPA. EPA's proposed revisions to protect Tribal
interests are burdensome and weak, and are no substitute for government-to-government
consultation.

Agency Response: See the Agency's Responses to Comment EPA-HQ-OW-2020-
0276-0063-0044 and EPA-HQ-OW-2020-0276-0063-0013.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q16N)

EPA must ensure that the duty to consult and the duty to carry out federal trust
responsibilities owed to federally recognized Tribes do not fall by the wayside if a state
such as Alaska assumes authority to issue permits under Section 404. When the Corps
issues a permit to discharge dredged or fill material into waters of the United States
under Section 404, it constitutes a federal action that affords the right to consultation to
federally recognized Tribes that may be affected by the permit, in accordance with
Executive Order 13175.[Footnote 25: 65 Fed. Reg. 67,249 (Nov. 6, 2000).] In addition, a
Corps-issued Section 404 permit includes substantive and procedural protections under
NEPA, the ESA, the Magnuson-Stevens Fishery Conservation and Management Act, and
the NHPA. And while we believe the same standards should apply when a state assumes
the responsibility to approve or deny dredge and fill permits, because there is no federal
action to trigger these federal laws and their implementing regulations, part of the direct

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protections may be lost. [Footnote 26: See Menominee Indian Tribe of Wisconsin v.
EPA, 947 F.3d 1065, 1068 (7th Cir. 2020).]

Agency Response: See the Agency's Responses to Comments EPA-HQ-OW-2020-
0276-0063-0044 and EPA-HQ-OW-2020-0276-0063-0013.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q17N)

Beyond government-to-government consultation, federal issuance of 404 permits
includes a host of other procedures for the public and Tribes to engage with
decisionmakers. Currently, Tribes serve as cooperating agencies in the NEPA process
and regularly participate in consultation, hearings, and other processes under the NHPA
and the Alaska National Interest Lands Conservation Act (ANILCA). In these capacities,
Tribes have provided critical information and insights to decisionmakers. Additionally,
NEPA provides an opportunity for the public and Tribes to receive notice, provide
comments, and otherwise participate in the NEPA process. Without a federal
requirement to be as stringent as the federal government, State 404 assumption would
eliminate these participation opportunities for the public and for Tribes. Alaska has no
analogue for NEPA or the NHPA. And it is unclear how the State will coordinate with
federal land managers to ensure subsistence protections under ANILCA remain.

A state agency reviewing a Section 404 permit application need not act in the best
interests of an affected Tribe, or even identify Tribes whose interests may be affected.
And while many states have adopted Tribal consultation policies, Alaska only just
formally recognized Tribes in 2022, and typically fails to engage in government-to-
government consultation with Tribes. The trust responsibility owed to Tribes by the
federal government dictates that Tribal rights and resources are not negatively impacted
by federal actions. States assuming the Section 404 permitting program will be under no
equivalent obligation under this proposed rule. Accordingly, upon state assumption of
the Section 404 permitting program, an Alaska Native Tribe with rights or resources at
issue stands to lose significant and longstanding procedural and substantive legal rights
that were put in place to protect Tribal interests in cultural, historic and subsistence
resources.

Agency Response: See Section IV.A.2 of the final rule preamble for discussion of
section 404(b)(1) Guidelines protections, which take into account human use of the
resources such as subsistence fisheries. See the Agency's Responses to Comments
EPA-HQ-OW-2020-0276-0063-0044 and EPA-HQ-OW-2020-0276-0063-0013.

Alaska Clean Water Advocacy et al. (EPA-HQ-OW-2020-0276-0086-0019)

Further, a state can overcome EPA's objections by adding permit conditions—a process
in which tribes have no meaningful right to engage. And EPA has discretion to withdraw
its objection to a permit at any time and without justification—a decision that is not
subject to judicial review.[Footnote 28: Menominee v. EPA, 947 F.3d at 1073.] These
discretionary and rarely used oversight measures are not equivalent to the legal avenues
available to Tribes for a federally issued Section 404 permit, and are certainly no
substitute for the trust responsibility owed to Tribes by the federal government. Absent

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additional oversight, the process as proposed is an insufficient safeguard against the
potential for increased negative impacts to Tribal rights and resources in states assuming
Section 404 permitting authority.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0006.

Gaa-Miskwaabikaang(EPA-HO-OW-2020-0276-TRANS-081523-001-00Q3N)

Comment 1

The attendee said he had a question specific to experiences in territories that overlap with
jurisdiction from EPA Region 5, indicating that there were well documented instances
and frustrations with experiences with a state that has 404 authority. He asked EPA how
have they considered such experiences when drafting the proposed rule.

Comment 2

The attendee replied suggesting that EPA staff on the call were unable to share how
specific tribal concerns related to section 404 in the State of Michigan were considered in
the proposed rulemaking.

Comment 3

The attendee said that there have been various activities proposed and currently operating
that have gone through regulatory processes (some that are complete, some that are
ongoing) and the state of Michigan at times had been resistant or unwilling to engage
with tribes, as the sovereigns that they are, and when the issues were raised to EPA they
often hear that it has delegated authority to the state, and EPA affirmed that trust
responsibility has not been handed off with delegated authority. However, he said that
EPA thus far has not necessarily engaged with the state of Michigan or done anything to
uphold this trust responsibility of these instances. Therefore, this has been brought up by
EPA Region 5 and respective tribes in their monthly calls related to some of these
projects. The attendee said that to the best of his knowledge, they have not received a
reassuring answer. Consequently, he reached out to EPA Region 5 staff who have also
connected him with the 404 email about this issue, but has not heard how these tribal
concerns were incorporated into the proposed rule.

Comment 4

The attendee said he believed Ms. Hurld understood him appropriately and that he
understood she could not have specific details on how the concerns from the specific
tribes he referred to were implemented in the rulemaking during the input meeting. He
said that the discussion would likely continue in Region 5 calls and that they may submit
a comment for the rulemaking.

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Agency Response: EPA considered all comments and input provided during the
public comment period and during early engagement with States as well as early
engagement and consultation with Tribes. Copies of public outreach and
engagement summaries are available in the docket to this final rule (EPA-HQ-OW-
2020-0276). See also the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0074-0003.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-3-00Q6N)

B. EPA Cannot Delegate Its Trust Responsibility to States.

In addition to the protections afforded tribal interests through application of various
federal statutes, federal agencies have a trust responsibility to tribes for the protection of
tribal interests in government decisions that cannot be waived or delegated. The federal
government thus has an obligation to consult with tribes before acting in a way that may
affect a tribe's rights, such as by granting a Clean Water Act permit that would impair,
degrade, or eliminate waters in which a tribe has reserved rights. Those trust obligations
and the attendant obligations to consult with tribes regarding permitting decisions rest
with the federal government, not states. While some states voluntarily consult with
tribes, the meaning of consultation and the willingness of states to do so varies widely.
Even states that have statutory directives to consult apply it inconsistently and that duty
is a creature of legislation, not a treaty or trust obligation.

As such, it is more readily jettisoned by a state unwilling to engage with a tribe on
concerns about particular projects. For example, it has taken until July 2022 for the
Alaska legislature to recognize tribes as governments and the Alaska Department of
Environmental Conservation routinely does not consult with Alaska tribes. EPA cannot
consider state consultation on 404 permits to be a substitute for the federal government's
primary trust responsibility to tribes.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0074-0003.

Earthiustice (EPA-HO-QW-2020-0276-0068-SD-4-0001N)

We are writing to express increasing concern from environmental advocates and tribes
across the country about state efforts to take over Section 404 Clean Water Act
permitting. Our concerns fall into two significant categories:

(2) that state assumption has an extremely adverse impact on tribes due to the resulting
abdication of the federal government's trust responsibility to tribes. When states issue
permits for projects impacting tribal lands, waters or resources, there is no requirement
for government-to-government consultation, making it highly likely that the lands,
waters, and ways of life of tribes and tribal communities, will suffer irreparable harms.

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This is contrary to the current administration's commitment to environmental justice and
support of tribal communities.

Agency Response: EPA has considered the concerns raised by the commenter and
concludes that the final rule complies with the requirements of the CWA by
providing more detail and clarification regarding the requirements Tribes and
States must meet to assume administration of the section 404 program. The statute
requires that Tribes or States administering a CWA 404 program must ensure
permits issued by approved Tribe and State section 404 programs are consistent
with the CWA 404(b)(1) Guidelines. See Sections IV.A.2, IV.A.3, IV.B.1-4, IV.C,
IV.E, IV.F of the final rule preamble for discussion of provisions which clarify the
standards and processes to ensure that permits issued by Tribal or State programs
are consistent with and no less stringent than the CWA and implementing
regulations.

National Tribal Water Council (NTWC) (EPA-HO-OW-2020-0276-0074-SD-00Q4N)

1. States do not have the same trust responsibility as the federal government to consider
tribal interests.

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Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0074-0003.

National Tribal Water Council (NTWC) (EPA-HO-OW-2020-0276-0074-SD-00Q5)

2. States are not required to comply with NHPA or ESA when issuing permits.

Agency Response: See Section IV.A.2 of the final rule preamble addressing Section
106 of the NHPA and Section 7 of the ESA compliance. See also the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0063-0013.

7. Other approaches for Tribal involvement

Individual commenter (EPA-HO-OW-2020-0276-0050-001QN)

Ways for Tribes to comment on State action that will affect their waters is always
beneficial. Opening these comment avenues to Tribes that do not meet TAS status is an
avenue that EPA should consider.

Agency Response: See Section IV.F of the final rule preamble.

Individual commenter (EPA-HO-OW-2020-0276-0050-00Q5N)

I must express some concern over waters on tribal lands being retained by the US ACE
when States assume the 404 program. This should be the default, but not the only option.
I believe that a Memorandum of Agreement on this matter between the State, Tribe, and
US ACE should be required. Tribes should have a say in which entity they think should
oversee permitting on their lands. Tribes have expressed less interest in States over
assuming the section 404 program, due to confusion and lack of resources. Many Tribes
do not qualify for Tribes Approved for Treatment as a State (TAS) and thus cannot
assume the program, but this should not bar them from the conversation. Even if Tribes
do not assume the program, they should still be allowed a say on who oversees their
lands.

Agency Response: EPA welcomes input from Tribes on a case-by-case basis before
and during EPA's consultation on a State program submission to discuss options
for program administration on Tribal land.

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Buena Vista Rancheria of Me-Wuk Indians (EPA-HO-OW-2020-0276-0053-00Q4N)

While BVR is in full support of these proposed changes, BVR also recognizes that the
proposed changes only apply to federally recognized Tribes and encourages EPA to find
ways to include non-federally recognized Tribes in the 404 permit consultation process.

Agency Response: EPA appreciates the concern raised by the commenter. Non-
federally recognized Tribes may comment on Tribe- or State-issued 404 permits
during the public comment period and they may request EPA review of a permit.
See Section IV.F of the final rule and 40 CFR 233.32 and 233.51(d).

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0046)

EPA anticipates its own review of state-proposed Section 404 permits will be limited. Id.
at 55305. As discussed above, it would be appropriate for EPA to assign a tribal liaison
to ensure there are resources available for tribes - particularly under-resourced tribes - to
seek federal oversight of a project. A state assuming authority to implement a Section
404 permitting program will have little incentive or legal responsibility to protect
impacted tribes, particularly if a project will not impact tribal waters but may impact
tribal rights, resources or subsistence practices. The Army Corps and EPA cannot
abdicate their legal and trust responsibilities to protect tribal resources, or delegate them
to the states. A clear and ready avenue for federal oversight and involvement must
remain available, particularly given the unique considerations applicable to Alaska
Native tribes.

Agency Response: While this rule does not explicitly require designation of a
specific EPA-Tribal liaison for each State that assumes a CWA section 404
program, EPA currently has staff dedicated to collaborating and supporting our
Tribal partners. Furthermore, when a Tribe or State is approved to administer a
section 404 program, EPA allocates additional staff to oversee the approved
program. The responsibilities of that staff include Tribal coordination. EPA may
choose to designate a Tribal liaison for issues related to particular Tribal or State
programs on a case-by-case basis. See also Section IV.F of the final rule preamble
for additional ways Tribes and Native Villages may meaningfully engage in the
permitting process in Tribal or State programs. See also the Agency's Response to
Comment EPA-HQ-OW-2020-0276-0078-0017.

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0050)

EPA must afford all potentially affected tribes the ability to request EPA review of state-
issued Section 404 permits. Additionally, we again recommend EPA assign/establish a
tribal liaison to ensure affected tribes in Alaska can seek government-to-government
consultation and federal review of state-issued 404 permits that impact their rights and
resources.

Agency Response: See the Agency's Response to Comments EPA-HQ-OW-2020-
0276-0053-0004 and EPA-HQ-OW-2020-0276-0063-0046.

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Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0009)

Federal consultation should be required for projects or permits impacting tribal rights and
resources, and federally recognized tribes should be afforded appropriate and timely
notification so that they may request federal oversight when a state-issued 404 permit
may impact tribal rights and resources. One way to ensure adequate consultation would
be to designate a tribal

liaison from EPA as a condition of state assumption of the Section 404 program to
ensure that there will be an appropriate avenue for impacted tribes to seek federal
consultation, involvement and oversight as appropriate.

Agency Response: See Section IV.F of the final rule preamble and the Agency's
Response to Comments EPA-HQ-OW-2020-0276-0082-0001 and EPA-HQ-OW-
2020-0276-0063-0046.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q6n

- Federal consultation should be required for projects or permits impacting Tribal rights
and resources, and federally recognized Tribes should be afforded appropriate and timely
notification so that they may request federal oversight when a state-issued 404 permit
may impact Tribal rights and resources. It would be appropriate for EPA to assign a
Tribal liaison to ensure there are resources available for Tribes—particularly under-
resourced Tribes—to seek federal oversight of a project.

Agency Response: See Section IV.F of the final rule preamble and the Agency's
Response to Comments EPA-HQ-OW-2020-0276-0082-0001, EPA-HQ-OW-2020-
0276-0053-0004, and EPA-HQ-OW-2020-0276-0063-0046.

Choctaw Nation of Oklahoma (EPA-HO-OW-2020-0276-0069-00Q4N)

If EPA does choose to delegate 404 permitting to states, one way to ensure that the
government-to-government relationship with tribes remains intact would be for the EPA
to provide a state Tribal liaison as a condition of state assumption of the Section 404
program. This liaison would be a federal employee, and would consult with tribes on
state 404 permits. Such a position would ensure that there will be an appropriate avenue
for impacted tribes to seek federal consultation, involvement and oversight as
appropriate. Our office works with two states where the Federal Highway Administration
has such a liaison that consults with tribes on federally funded projects that are carried
out by state DOTs. This setup has been quite effective at maintaining beneficial working
relationships and efficient projects reviews.

Agency Response: See Section IV.F of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0063-0046.

National Association of Wetland Managers (NAWM) (EPA-HO-QW-2020-0276-0072-0020)
Some States and Tribes have expressed concerns with the procedures outlined in the
proposed rule for tribal coordination and will be providing specific concerns with their
comments. The Corps Districts provide notice and engage directly with Tribes on
potential project impacts to Tribal lands and interests; the expectation should be the same
for any authorized 404 permit program.

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Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0074-0003.

Port Gamble S'Klallam Tribe (PGSTI (EPA-HO-OW-2020-0276-0078-0Q22N)

Federal consultation should be required for projects or permits impacting tribal rights and
resources, and federally recognized tribes should be afforded appropriate and timely
notification so that they may request federal oversight when a state-issued 404 permit
may impact tribal rights and resources. One way to ensure adequate consultation would
be to designate a tribal liaison from EPA as a condition of state assumption of the
Section 404 program to ensure that there will be an appropriate avenue for impacted
tribes to seek federal consultation, involvement, and oversight as appropriate. In short,
EPA must remain involved in state permitting programs and ensure that state programs
are meeting federal environmental review requirements with respect to tribal rights and
resources.

Agency Response: See Section IV.F of the final rule preamble and the Agency's
Response to Comments EPA-HQ-OW-2020-0276-0082-0001 and EPA-HQ-OW-
2020-0276-0063-0046.

Great Lakes Indian Fish and Wildlife Commission (EPA-HO-OW-2020-0276-0080-00Q6)
To help remedy this problems, federal consultation should be required for projects or
permits impacting tribal rights and resources, and federally recognized tribes and
properly delegated intertribal agencies should be afforded appropriate and timely
notification so that they may request federal oversight when a state-issued 404 permit
may impact tribal rights and resources. One way to ensure adequate consultation would
be to require, as a condition of state assumption of the Section 404 program, the
designation within the MOA (discussed below) of a tribal liaison within EPA to ensure
that there will be an appropriate avenue for impacted tribes to seek federal consultation,
involvement, and oversight as appropriate.

Agency Response: See Section IV.F of the final rule preamble and the Agency's
Response to Comments EPA-HQ-OW-2020-0276-0082-0001 and EPA-HQ-OW-
2020-0276-0063-0046.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q4n

EPA anticipates its own review of state-proposed Section 404 permits will be limited. Id.
at 55305. As discussed above, it would be appropriate for EPA to assign a Tribal liaison
to ensure there are resources available for Tribes - particularly under- resourced Tribes -
to seek federal oversight of a project. A state assuming authority to implement a Section
404 permitting program will have little incentive or legal responsibility to protect
impacted Tribes, particularly if a project will not impact Tribal waters but may impact
Tribal rights, resources or subsistence practices. The Army Corps and EPA cannot
abdicate their legal and trust responsibilities to protect Tribal resources, or delegate them
to the states. A clear and ready avenue for federal oversight and involvement must
remain available, particularly given the unique considerations applicable to Alaska
Native Tribes.

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Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0046. See also Section IV.F of the final preamble for a discussion of ways
Tribes and Native Villages may meaningfully engage in the permitting process in
Tribal or State programs.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q46N)

EPA must afford all potentially affected Tribes the ability to request EPA review of state-
issued Section 404 permits. Additionally, we again recommend EPA assign/establish a
Tribal liaison to ensure affected Tribes in Alaska can seek government- to-government
consultation and federal review of state-issued 404 permits that impact their rights and
resources.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0046.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-00Q5N)

One way to ensure adequate consultation would be to designate a Tribal liaison from
EPA as a condition of state assumption of the Section 404 program to ensure that there
will be an appropriate avenue for impacted Tribes to seek federal consultation,
involvement and oversight as appropriate.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0046.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q2n

Additionally, we recommend EPA assign and establish a Tribal liaison to ensure affected
Tribes in Alaska can seek government-to-government consultation and federal review of
state-issued 404 permits that affect their rights and resources.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0046.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q23N)

EPA anticipates its own review of state-proposed Section 404 permits will be
limited.[Footnote 31: 88 Fed. Reg. at 55,305.] As discussed above, it would be
appropriate for EPA to assign a Tribal liaison to ensure there are resources available for
Tribes—particularly under-resourced Tribes—to seek federal oversight of a project. A
state assuming authority to implement a Section 404 permitting program will have little
incentive or legal responsibility to protect affected Tribes, particularly if a project will
not affect Tribal waters but may affect Tribal rights, resources or subsistence practices.
The Corps and EPA cannot abdicate their legal and trust responsibilities to protect Tribal
resources, or delegate them to the states. A clear and ready avenue for federal oversight
and involvement must remain available, particularly given the unique considerations
applicable to Alaska Native Tribes.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0046. See Section IV.B.3 of the final preamble and rule for further

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discussion of the requirements to staff and fund a Tribal or State section 404
program.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q24N)

Federal consultation should be required for projects or permits affecting Tribal rights and
resources, and federally recognized Tribes should be afforded appropriate and timely
notification so that they may request federal oversight when a state-issued 404 permit
may affect Tribal rights and resources. Again, one way to ensure adequate consultation
would be to designate a Tribal liaison from EPA as a condition of state assumption of the
Section 404 program to ensure that there will be an appropriate avenue for affected
Tribes to seek federal consultation, involvement, and oversight as appropriate.

As currently written, EPA's draft rule does not protect Tribal interests in Alaska. Its
provisions for Tribal engagement are overly burdensome and inadequate. EPA must
ensure that Tribes receive equal protection and voice when a state assumes 404
permitting, including by requiring government-to-government consultation.

Agency Response: See the Agency's Responses to Comments EPA-HQ-OW-2020-
0276-0053-0004 and EPA-HQ-OW-2020-0276-0063-0046.

8. Other comments on tribal opportunities for engagement

Maryland Department of the Environment (MDE) (EPA-HQ-QW-2020-0276-0061 -0003)
3) Effects to Other States/Tribes

a) Section 233.31(a) allows a state or tribe with an assumed program to consider
effects and comments on the proposed impacts from an adjacent state/tribe and make the
decision whether to accept comments or recommendations to protect the water quality of
the affected state/tribe. There are provisions for the affected state or tribe to raise
objections with the Regional Administrator, and for the Regional Administrator to
resolve the comments. The effect notification to the adjacent jurisdiction would occur
later in the process, only during the public comment period. The timing of the adjacent
effect notification potentially reduces opportunities for avoidance and minimization of
adverse impacts to water quality of the adjacent jurisdiction. Procedures should be
required to pre-identify interstate watersheds or waters, project types and/or impact
extents for which the adjacent jurisdiction would receive notification that an application
has been received that meets the effects criterion outside the public notice comment
period. No permit may be issued when EPA or the adjacent downstream jurisdictions
object until the objection is eliminated that the discharge may violate the adjacent
jurisdictions water quality standards. This early identification process for a project will
ensure timely coordination and eliminate unnecessary delay of project decisions.

b) MDE recommends that there be an opportunity that allows for interstate wetlands
and waters, as identified by the state, be retained by federal agencies for permitting This
will ensure that a federal agency may act as a mediator in making decisions on
discharges which may affect water quality of a neighboring jurisdiction.

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Agency Response: EPA encourages the permitting agency to engage with
potentially affected Tribes and States early in the permitting process to ensure
permits do not adversely affect the waters of another Tribe or State. Except as
provided in section 233.31 of the final rule, EPA has not provided further
regulatory language on how or when such coordination shall occur to retain
flexibility in meeting the individual needs of the permitting agency and to not
overburden the affected Tribe or State.

Pursuant to the CWA, the Corps may only retain interstate wetlands or waters to
the extent they are 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, and including
wetlands adjacent thereto.

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0045)

For federally issued permits, any impacted tribe has the right to federal consultation and
input, not just those with TAS. The current Section 404 permitting program is carried out
and funded by the Army Corps, but states are likely to have fewer resources to commit to
implementing a Section 404 permitting program and have limited incentive to ensure
tribal rights and resources are not impacted by its permitting decisions. This is
particularly true if a permit is for a project that may generate revenue for the state.

Agency Response: See the Agency's Response to Comments EPA-HQ-OW-2020-
0276-0074-0003 and EPA-HQ-OW-2020-0276-0082-0001.

Alaska Miners Association (AMA) (EPA-HO-OW-2020-0276-0067-0Q0n

AMA wishes to address the treatment of tribes as regulatory agencies as proposed in the
rule. We strongly support ADEC's efforts to extensively engage with tribes. From their
website:

"Government-to-government consultation" is a term of art created by federal law and
executive order that requires the federal government to engage in certain processes in
relation to sovereign tribes. Since this is a legal creation of federal law, it does not exist
under state law. However, nothing precludes states from forming intergovernmental
agreements and state-tribal compacts to promote positive state-tribal relationships and
foster collaborative policy development.

DEC has a Tribal Government Liaison position that coordinates with divisions and other
State agencies and works closely on tribal concerns. Additionally, DEC maintains a
tribal relations website at that includes a 2002 policy statement describing the DEC's
tribal engagement process.

The Division of Water also has a Local and Tribal Government Liaison that implements
the Division's communication and engagement processes established in the Program
Description for implementing the CWA Section 402 Permitting Program, outlining the

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Department's public participation guidance and strategies. Several paragraphs of the
document discuss engagement efforts, including section 4.0 - Supplemental
Communication Tools, which outlines a consultation process led by the Division of
Water's Local and Tribal Government Liaison. [Bold: This consultation and process is in
addition to the routine public participation process available to the general public and
takes place prior to issuance of a public notice of a draft permit.] Additionally, the
Division of Water maintains a helpful document on our website titled APDES Guidance
for Local and Tribal Governments. As we develop the 404 Program for approval and
prepare the Program Description, we anticipate a similarly structured engagement
process for tribal organizations, which DEC will work to refine in communication and
collaboration with Local and Tribal Governments.

The APDES process for Local and Tribal government engagement was outlined in
Appendix H Public Participation in the APDES Process, in the Departments application
to EPA for APDES Program primacy. Under the subsection Local and Tribal
government consultation (page 8), it states:

"Consultation with local State-chartered and federally recognized Tribal governments,
and RCACs is typically organized and led by a project liaison and can be organized as a
single discussion with representatives of the local or Tribal government or a series of
discussions prior to providing formal public notice of a draft permit. Consultation may
be either face-to-face or by telephone depending on cost, staff availability, and other
practical considerations. The consultation process is intended to provide for a meaningful
and timely dialog with local and Tribal officials with open sharing of information, the
full expression of local and state views, a commitment to consider local views in
decision-making, and respect for local authority and knowledge. If necessary and
requested by the Tribe, DEC will use a translator or facilitator to assist with this effort.
Summaries of consultations will be entered into the permit record including DEC
responses to substantive concerns."

Lastly, DEC recently established ongoing quarterly meetings with the goal of improving
DEC's partnership and communication with Alaska's Indigenous People. Our goal with
these meetings is to establish a line of communication between DEC and the tribes and
regional and village corporations; share and receive information; identify the efforts,
activities, and permits that DEC is working on; and learn if there are areas of interest or
concern that we can work together to address. The meetings are announced in an email to
tribal organizations, shared on DEC's website and social media, and are open to all
tribes, regional and village corporations, and all others who are interested.

Agency Response: EPA appreciates the commenter's input regarding Alaska's
efforts to actively engage Alaska's Tribes and Native Villages in permitting
decisions that may affect them, their resources or interests. Implementation of any
existing or future Tribal or State section 404 program is outside of the scope of this
rulemaking. See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0063-0046.

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Alaska Miners Association (AMA) (EPA-HO-OW-2020-0276-0067-00Q2N)

From an industry perspective, with close coordination between the State of Alaska,
Alaska Native Corporations, and tribes, the process to regulate waters in Alaska is
stringent, thorough, and robust. The additional concept in the Proposed Rule to treat
tribes as a regulatory agency brings uncertainty to the process. Project applicants deserve
to know who the regulators are and a predictable process by government agencies
with dedicated missions and mandates. Establishing tribes as regulatory agencies should
be addressed in an across-the- board process for all aspects of the regulatory process and
not just in this specific Proposed Rule.

Agency Response: In the 1987 revisions to the CWA, Congress provided that
eligible Tribes may assume the CWA section 404 program if EPA approves their
dredged and fill permitting program as consistent with the CWA and its
implementing regulations. See 33 U.S.C. 1377(e). The CWA further requires that
Tribes and States assuming the CWA section 404 program notify and provide
opportunity for affected States (including eligible Tribes) to provide permit
recommendations and that if such recommendations are not accepted by the issuing
Tribe or State, the affected State and EPA are to be notified along with the reasons
why the recommendations were not accepted. 33 U.S.C. 1344(h)(1)(E).

State of Alaska Department of Environmental Conservation (EPA-HO-OW-2020-0276-0079-

0014^)

Fourth, to the extent EPA seeks to graft federal consultation requirements onto States,
EPA may not do this. It is up to States and Tribes to manage their relations with each
other, not EPA.

Agency Response: The CWA requires that Tribes and States assuming the CWA
section 404 program notify and provide opportunity for affected States (including
eligible Tribes) to provide permit recommendations and that if such
recommendations are not accepted by the issuing Tribe or State, the affected State
and EPA are to be notified along with the reasons why the recommendations were
not accepted. 33 U.S.C. 1344(h)(1)(E). The specific procedures for such notifications
may be established by the issuing State or Tribe and the "affected Tribe or State."
EPA encourages arrangements for such coordination to be clearly articulated in
Tribal or State regulations or MOUs between these entities.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-004QN)

For federally issued permits, any impacted Tribe has the right to federal consultation and
input, not just those with TAS. The current Section 404 permitting program is carried out
and funded by the Army Corps, but states are likely to have fewer resources to commit to
implementing a Section 404 permitting program and have limited incentive to ensure
Tribal rights and resources are not impacted by its permitting decisions. This is
particularly true if a permit is for a project that may generate revenue for the state.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0045.

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Alaska Clean Water Advocacy et al. (EPA-HO-QW-2020-0276-0086-005 n

For federally issued permits, any affected Tribe has the right to federal consultation and
input, not just those with TAS. The current Section 404 permitting program is carried out
and funded by the Corps, but states are likely to have fewer resources to commit to
implementing a Section 404 permitting program and have limited incentive to ensure
Tribal rights and resources are not impacted by its permitting decisions. This is
particularly true if a permit is for a project that may generate revenue for the state.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0045.

Region 10 Tribal Operations Committee (RTOC) and National Tribal Water Council (NTWC)

(EPA-HO-OW-2020-0276-0070-00Q2N)

Given the proposed rule's focus on maintaining standards at least as stringent as
404(b)(1) guidelines, we believe that the ability of Tribes to provide input, suggest
permit conditions, and use Federal regulations should be similarly upheld when States
adopt 404 programs.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0063-0045. See Section IV.A.3 of the preamble for discussion of a Tribe or
State's obligation to issue permits that are no less stringent than the requirements
of the Act and regulations at 40 CFR 233 and that assure compliance with the
regulations at 40 CFR 230.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-4-00Q3)

And in all these examples and throughout this process, tribes' concerns have not been
adequately heard, considered, or addressed, in stark contrast to this Administration's
pledge to strengthen relationships with tribal nations and to prioritize environmental
justice.

Agency Response: EPA respectfully disagrees with this comment. See Section IV.F
of the final rule preamble, addressing EPA's efforts to facilitate Tribal engagement
in State or Tribal section 404 permitting programs, particularly with respect to
permits that may adversely affect Tribal resources or interests. See also the
Agency's Response to Comment EPA-HQ-OW-2020-0276-TRANS-081523-001-
0003.

Buena Vista Rancheria of Me-Wuk Indians EPA-HQ-OW-2020-0276-0053-0008

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Agency Response: EPA is not currently aware of situations in which it could
authorize a State to assume waters that are assumable by Tribes. This rulemaking,
therefore, does not address mechanisms for Tribes to assume permitting authority
from States.

G.Technical edits

Florida Department of Environmental Protection (FDEP) (EPA-HQ-QW-2020-0276-0066-0022)
Part 233, subpart H lists approved state 404 programs. EPA is proposing to update this
subpart to include updated Michigan laws (as the state codes have changed since this
section was added in 1984). EPA is also requesting comment "on whether the Agency
has identified all changes to state laws and regulations incorporated by reference in 40
CFR233 subpart H."

During the process of amending and updating the regulations related to approved state
programs, EPA should move ahead with including the Florida 404 program and cross-
references to the relevant Florida statutes as previously approved by EPA. EPA's
codification of a state's 404 program in the Code of Federal Regulations is not required
for assumption to be effective under Section 404 [Footnote 22: See Center for Biological
Diversity v. Regan, Case No. l:21-cv-00119-RDM, Docket No. 73 (Memorandum and
Order) (D.D.C. Mar. 20, 2022).]. EPA's failure to propose inclusion of Florida's State
404 Program in Part 233, Subpart H appears to be an administrative oversight given its
previous expressed written intention to do so [Footnote 23: See
https://www.epa.gov/cwa404g/pre-publication-notice-codifying-epas-adjudicatory-
decision-floridas-clean- water-act (last visited 10/8/2023).].

Agency Response: Florida obtained EPA's approval to assume the CWA section
404 program on December 17, 2020. On February 15, 2024, the U.S. District Court
for the District of Columbia vacated EPA's approval of Florida's program. Center
for Biological Diversity v. Regan, No. 21-119, 2024 WL 655368 (D.D.C.). (An appeal
of the district court's decision is pending. See No. 24-5101 (D.C. Cir.).) Accordingly,
EPA declines to codify Florida's program in Part 233, Subpart H as part of this
rulemaking effort.

Florida Department of Environmental Protection (FDEP) (EPA-HQ-QW-2020-0276-0066-0023)
EPA is proposing to codify the definition of "Indian lands." Florida supports EPA
codifying the definition. This is consistent with EPA's longstanding practice and sets a
reasonably clear delineation for States seeking to define the scope of its 404 program
[Footnote 24: See Wash. Dep't of Ecology v. EPA, 752 F.2d 1465, 1469-71 n. 1 (9th
Cir. 1985) ("EPA has regarded [the term 'Indian lands'] as synonymous with 'Indian
country,' which is defined at 18 U.S.C. § 1151 to include all lands (including fee lands)
within Indian reservations, dependent Indian communities, and Indian allotments to
which Indians hold title. We accept this definition as a reasonable marker of the
geographic boundary between state authority and federal authority."); See also
Narragansett Indian Tribe v. Narragansett Elec. Co., 89 F.3d 908, 915 (1st Cir. 1996)
("[W]e recognize that... section 1151 on its face is concerned only with criminal

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jurisdiction. Nonetheless, the Supreme Court has repeatedly stated that the definition
provided in section 1151 'applies to questions of both criminal and civil jurisdiction.' ...
Elsewhere, the Court has simply defined 'Indian country' in civil cases in terms closely
paralleling those of section 1151, while citing to that statute.").]. Providing a regulatory
definition for "Indian lands" will allow greater certainty and uniformity among States
that assume the 404 program.

Agency Response: The Agency appreciates commenter support regarding
codification of the definition for "Indian lands." As discussed in Section IV.H of the
final rule preamble, the Agency is finalizing codification of "Indian lands" as
proposed. See Section IV.H of the final rule preamble for further discussion of the
Agency's rationale for finalizing this provision.

National Association of Wetland Managers (NAWM) (EPA-HO-QW-2020-0276-0072-0030)
NAWM does not have any specific comments or concerns with the proposed technical
and minor updates. We will note however that those items which are specifically
identified in the "Request for Comment" Section are not listed as specific changes in the
"What is the Agency proposing?" Section. Therefore, it is difficult to comment on what
EPA is specifically proposing to change. Regarding "notice" procedures we concur that
the rule should reflect current notification practices. We also believe that any edits and/or
updates to notification processes should include language on expectations for reaching
out to Tribes and underserved communities which may be affected by authorization
and/or potential permit decisions; this may be outside the "normal" electronic media
methods identified and could include presentations at community centers or places of
worship and pamphlet development and distribution.

Agency Response: The Agency appreciates commenter input regarding the notice
procedures. As discussed in Section IV.H of the final rule preamble, the Agency is
clarifying in the preamble that both electronic mail and mail are acceptable
methods of transmitting public notices or documents.

In addition to electronic mail or mail, the Agency encourages assumed Tribes or
States to consider other methods to notify potentially interested stakeholders,
including communities with environmental justice concerns, of potential permit
decisions (e.g., other appropriate communication and outreach means and methods,
such as local newspapers or newsletters and phone calls to community leaders).

State of Alaska Department of Environmental Conservation (EPA-HQ-QW-2020-0276-0079-

0024")

EPA proposes to define "Indian lands" to mean "Indian country" as defined in the
criminal code (15 U.S.C. § 1151) [Footnote 55: 88 Fed. Reg. 55316.].

Alaska supports the incorporation of 15 U.S.C. § 1151. For utmost clarity, EPA should
incorporate 15 U.S.C. § 1151 by including an explicit reference to the provision in the
text of the final rule.

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Agency Response: The Agency appreciates commenter input regarding codification
of the definition for "Indian lands." As discussed in Section IV.H of the final rule
preamble, the Agency is finalizing codification of "Indian lands" as proposed,
which includes a reference to 18 U.S.C. 1151. See 40 CFR 233.2 and Section IV.H of
the final rule preamble for further discussion of the Agency's rationale for
finalizing this provision.

H.	Statutory and Executive Order Reviews

I.	Executive Order 13132: Federalism

Association of Clean Water Administrators (ACWA) (EPA-HO-OW-2020-0276-0060-00Q1)

Federalism Implications: In the preamble of the Proposed Rule, EPA recognizes that the
Proposed Rule "will potentially affect Tribes and States that have assumed or will in the
future request to assume administration of the CWA section 404 program." However, EPA
goes on to conclude that the rulemaking "does not have federalism implications and will
not have substantial direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and responsibilities among the
various levels of government." ACWA disagrees with this conclusion.

Executive Order 13132, Federalism, defines policies that have "federalism implications"
to include "regulations that have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution of power and
responsibilities among the various levels of government." Numerous provisions of the
Proposed Rule - including but not limited to provisions addressing (i) the scope of
assumable waters; and (ii) new requirements for states seeking approval of program
assumption - unambiguously implicate the distribution of power over assumable waters
and state responsibilities in assuming section 404 authority. Therefore, we respectfully
request that EPA reconsider its determination that the Proposed Rule does not have
federalism implications or, in the alternative, provide states with supported reasoning for
this assertion.

Agency Response: The final rule clarifies and facilitates the process of State
assumption of the section 404 program. The Agency maintains that this rule does not
impose new costs or other requirements on States, preempt State law, or limit State's
policy discretion. No State is required to request to assume the section 404 program.
Consistent with EPA's policy to promote communication between EPA and State
governments, EPA conducted outreach and engagement with state government
officials prior to the finalization of this rule to permit them to have meaningful and
timely input into its development. See Section V.E. of the final rule preamble for
further discussion.

State of Alaska Department of Environmental Conservation (EPA-HQ-OW-2020-0276-0079-

0025")

1. EO 13132 Federalism analysis:

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The Proposed Rule indicates that EPA "has concluded that compared to the status quo, this
rule does not impose any new costs or other requirements on States, preempt State law, or
limit States' policy discretion; rather, it helps to clarify and facilitate the process of State
assumption of the section 404 program." [Footnote 56: 88 Fed. Reg. 55319-55320.]. EPA
further indicates that "EPA engaged with State officials early in the process of developing
the proposed rule . . . [citing Trump EPA's engagement from 2018]." [Footnote 57: 88
Fed. Reg. 55320.] EPA's (2023) State Engagement Summary Report, posted as a
supporting document on regulations.gov, indicates that the extent of the Biden EPA's
engagement with States was two presentations - both "informational webinars" in which
"EPA did not seek additional input." [Footnote 58: 88 Fed. Reg. 55283.].

Had the Biden EPA reached out to Alaska during their evaluation, and revision, of the
Trump EPA's draft of this rulemaking, Alaska could have provided valuable input, and
given EPA a realistic sense of which provisions are likely to facilitate, and which are likely
to hinder, State assumption for political or practical reasons. Further, the input requested
by Trump's EPA did not cover key issues now covered in this Proposed Rulemaking. In
particular, the Trump EPA's outreach was not focused, as this one is, on "mak[ing]
permitting more equitable" and including provisions increasing tribal involvement in State
programs [Footnote 59: 88 Fed. Reg. 55277.]. Alaska requests that EPA listen to our
repeated calls for early, and meaningful, engagement in rulemakings such as this that have
significant impacts on our State. EPA's continued failure to do so reflects a disregard of
cooperative federalism and a disrespect for States.

Agency Response: Consistent with EPA's policy to promote communications between
EPA and State and local governments, EPA engaged with State officials early in the
process of developing the proposed rule to permit them to have meaningful and
timely input into its development as well as opportunities during the rulemaking
process. See Sections III.B and V.E. of the final rule preamble and the State
Engagement Summary Report and the Summary Report of the Input Meetings on the
Proposed Mule Changes for the Clean Water Act Section 404(g), both of which can be
found in the docket associated with this final rule for further discussion of this
engagement

2. Environmental Justice

State of Alaska Department of Environmental Conservation (EPA-HO-OW-2020-0276-0Q79-

0026)

2. EO 12898 Environmental Justice

Buried at the end of this rulemaking is the statement that "[t]he proposed rule would enable
Tribes to have a more significant role in the permit decision-making process than under
current practice." [Footnote 60: 88 Fed. Reg. 55320.].

Alaska respectfully requests that all proposed revisions serving this end be excised from
this rule and re-introduced in a separate rulemaking explicitly aimed at pursuing this goal.
Bootstrapping these types of provisions into a rulemaking purportedly aimed at

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"clarifying" and "facilitating" State assumption risks convoluting the effort, and increases
the chances that EPA's final rule will, ultimately, backfire on EPA and deter State
assumption. Deterring State assumption, of course, is not in EPA's best interests - nor is
it consistent with Congress's intent that States assume.

Agency Response: EPA disagrees that clarifying opportunities for Tribal
involvement in Tribal and State permitting procedures will deter State assumption.
These opportunities provide clear mechanisms and timelines and are consistent with
the CWA's emphasis on the importance of ensuring public involvement in permitting
decisions.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q25N)

The proposed rule fails to recognize environmental justice implications of assumption of
the 404 program. Environmental justice concerns are at the forefront of many Alaskans
minds as it pertains to assumption of the Clean Water Act's 404 program. As EPA's
process for drafting the revised rule involved primarily state engagement with little to none
from affected Tribes and communities, and there is little mention of environmental justice
concerns in the proposed regulations, we are concerned that EPA has little regard for the
environmental justice effects of its revisions to rules that have been in effect for decades.
The EPA must not finalize a rule that lowers the bar for assumption at the expense of
important and required statutory protections.

Environmental justice as defined by EPA is "the fair treatment and meaningful
involvement of all people regardless of race, color, national origin, or income, with respect
to the development, implementation, and enforcement of environmental laws, regulations,
and policies."[Footnote 32: EPA, Environmental Justice.] Further, EPA states that
achieving environmental justice requires all people to have "the same degree of protection
from environmental and health hazards, and [ejqual access to the decision-making process
to have a healthy environment in which to live, learn, and work."[Footnote 33: Id.]

Agency Response: See Section V.J of the final rule preamble for discussion as to how
this rule complies with Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing Our Nation's Commitment to Environmental
Justice for All. See also Section V of the Economic Analysis for further discussion
about environmental justice considerations in the rulemaking.

I. Economic Analysis

The Petroleum Alliance of Oklahoma (EPA-HO-OW-2020-0276-0055-0Q1 n

Fourth, it appears that EPA has not acknowledged the situation where an upstream state in
considering a permit that numerous downstream entities assert would impair their water-
related interests. Such a situation is likely to occur eventually, and it could implicate not
only the State of Oklahoma but also potentially numerous tribes. Resolution of disputes
initiated by numerous entities could be time consuming and challenging. The State of
Oklahoma is likely to be the entity left to seek a resolution, potentially at significant cost,

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yet the Economic Analysis does not address those potential costs, either [Footnote 10: As
noted above, EPA's proposed solution would require EPA to serve as a dispute resolution
facilitator, yet EPA would have no authority to impose a resolution. The state would be
left to work through the permitting maze.].

Agency Response: The Agency appreciates the commenter's concerns regarding the
complexities with addressing multiple water quality standards. The scenario
described, of a Tribe or States considering a permit that may affect the interests of
another Tribe or State, exists whether the Corps or a Tribe or State is the permitting
authority. When reviewing and potentially issuing a permit that the permitting
agency must ensure such considerations are taken into account. See 40 CFR
233.32(a). EPA disagrees that the provision provides for no final authority for EPA
to resolve disputes. The purpose of this provision is to clarify EPA does have such
authority - through its oversight role and responsibilities. For example, EPA can
facilitate disputes that implicate CWA requirements or whether or not a waterbody
is a water of the United States; the statute and case law make clear that EPA is
responsible for determining the scope of the CWA. See Section IV.E.l of the final
rule preamble and Section III.A.3 of the Economic Analysis for further discussion of
the rule's dispute resolution provision.

The Petroleum Alliance of Oklahoma (EPA-HO-OW-2020-0276-0055-Q0m

Fifth, if both the state and multiple tribes seek to exercise section 404 authority over a
length of stream or river - an entirely plausible situation - the regulated community could
simultaneously have to deal with the Corps of Engineers, the State of Oklahoma, and
numerous tribes. Each would have different processes, fees, requirements, permit timing,
and terms for cross-boundary consultation. The economic analysis does not address issues
such as this but a project applicant's cost of permitting a project caught in this permitting
maze would be significant. At the same time, the affected governments would have to
absorb significant personnel and financial costs in developing a process for somehow
mediating multiple different 404 jurisdictions.

Agency Response: The Agency appreciates commenter input on the Tribal and State
assumption of the section 404 permit program. The scenario the commenter lays out
currently exists when the Corps of Engineers is the permitting agency, and a Tribe
or State also has regulations or permitting requirements for the same waters. This
scenario also exists under the prior Tribal and State section 404 regulations where
Tribes or States have or anticipate assuming the program. This final rule does not
add any new authorities; instead, it clarifies who the permitting authority shall be,
how coordination shall occur, and how comments by affected Tribes and States shall
be considered if a Tribe or State is the permitting agency. Additionally, EPA has
clarified EPA's role in facilitating disputes - if they arise. For the reasons listed above,
the Agency estimates there is no increased burden to project applicants, but that
there may be cost savings to permit applicants. Potential cost savings occur when a
Tribe or State which is currently regulating discharges of dredged and fill material
into waters of the United States, assumes the program. In such a scenario, the
applicant no longer submits an application to the Corps of Engineers and needs to

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submit a single permit request to the Tribal or State permit program to meet both
the Tribal or State permitting requirements and the section 404 permitting
requirements. EPA is unaware of situations where State administration of the CWA
section 404 program has created confusion or additional burden on permit
applicants.

The Petroleum Alliance of Oklahoma (EPA-HO-OW-2020-0276-0055-0Q(m

Beyond the legal issues outlined above, implementation of EPA's proposed rule would
create significant confusion and challenges in Oklahoma. Set out below are examples of
how allowing assumption of section 404 authority by entities other than the State of
Oklahoma would confuse and delay permitting and impose significant costs not captured
by EPA's Economic Analysis [Footnote 9: Environmental Protection Agency, Economic
Analysis for the Proposed Clean Water Act Section 404 Tribal and State Program Rule,
June 2023 (hereinafter the "Economic Analysis").].

Agency Response: The Agency appreciates commenter input on State and Tribal
assumption of the 404 program and the potential challenges and costs arising from
possible disputes among different entities. The Agency recognizes that Tribes or
States seeking to assume administration of the section 404 permitting program may
encounter disputes or disagreements when developing a program or administering
an approved section 404 program. Section IV.E.l of the preamble to this final rule
discusses the procedures and rationale for finalizing the new provision at 40 CFR
233.1(f) The costs and benefits associated with this provision are qualitatively
discussed in the Economic Analysis for the Final Rule. See Section III.A.3 of the
Economic Analysis for further discussion regarding the costs associated with this
rulemaking. See also the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0055-0012 regarding the commenter's concerns that this rulemaking will create
significant confusion for permittees.

J. General Comments

1. Pre-proposal Tribal and State outreach

Association of Clean Water Administrators (ACWA) (EPA-HO-OW-2020-0276-0060-00Q2)

State Consultation in the Continuing Development of the Proposed Rule: ACWA
recognizes EPA's indication of early state outreach in its development of the Proposed
Rule. However, EPA's 2023 State Engagement Summary Report (posted as a supporting
document on regulations.gov) indicates the extent of EPA's engagement with states was
limited to two presentations - both pre-scripted "informational webinars" in which "EPA
did not seek additional input." When EPA and the states engage in robust conversation and
collaboration, smarter, more effective, and more efficient regulations are crafted that
further environmental protection while simultaneously encouraging economic
development. We request that EPA provides states - as co-regulators of the CWA - with
opportunities for meaningful and ongoing consultation in the continued development and
finalization of the Proposed Rule outside of (and in addition to) the public comment
process.

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Agency Response: EPA acknowledges the comment. EPA engaged States and Tribes
in robust discussions regarding this rulemaking in 2018 and provided several
opportunities for input on this rulemaking. See Section III.B of the final rule
preamble and The Summary Report of the Input Meetings on the Proposed Rule
Changes for the Clean Water Act Section 404(g) in the docket associated with this final
rule.

National Association of Wetland Managers (NAWM) (EPA-HO-QW-2020-0276-0072-0004)

NAWM is also concerned with the rule making process undertaken by the Agency. Given
the breadth of inquiries which EPA is requesting comment on, NAWM suggests that it
would have been more appropriate for the EPA to have issued a Federal Register notice
for proposed rulemaking and requested input from Tribes, States, and the regulated
community on the suite of options prior to issuing the draft rulemaking. In its current
format it is difficult to comment on EPA's reasoning for selecting one alternative over
another and allows for final rule development without additional public involvement and
explanation. While the EPA expresses its belief that a rigorous involvement of States and
Tribes has occurred prior to the issuance of this Federal Register notice, many States and
Tribes have expressed their concern with the pre-rulemaking engagement process and the
lack of substantive involvement outside of the Assumable Waters Subcommittee under the
auspices of the National Advisory Council for Environmental Policy and Technology
(NACEPT). NAWM has heard from some of our States which expressed interest in
assuming the 404 program that they would have appreciated additional coordination efforts
from EPA prior to the proposed rule publication. EPA also indicated that pre-rule
involvement occurred at various regional meetings. However, draft rule language and
specific areas for comment were not specifically outlined at those engagements nor was
any formal pre-rule notice of intent and request for comment issued.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0060-0002.

2. General comments on the proposed rule

2.1 General support for the proposed rule

Anonymous (EPA-HO-OW-2020-0276-0046-00Q2N)

I fully support such measures that will enhance cooperative federalism with such states.
By streamlining and clarifying the process by which states can apply for § 404 jurisdiction
over WOTUS in their state, we may see an increase in the number of states who assume
control of this permitting process. Because there are now far fewer federally-protected
wetlands, state control has become increasingly necessary. Under an assumption program,
states would then have jurisdiction over § 404 permitting in federally-recognized
wetlands, as well as wetlands covered under state law. This may facilitate greater
efficiency and regulatory specificity by allowing one state's agency to oversee all
wetlands, regardless of whether they are protected by the federal CWA. So, in states with
already-robust water protections, this scheme of cooperative federalism may result in
better environmental outcomes. In states that lack laws exceeding the federal CWA, this
regulation will not likely have a deleterious outcome, as their programs will still be subject

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to federal law. So, I see this regulation as a net positive, encouraging more
environmentally-inclined states to take charge of regulating their own wetlands to suit the
environmental and economic particularities of the region.

Agency Response: EPA acknowledges this expression of support.

Individual commenter (EPA-HQ-OW-2020-0276-0050-0002)

The legislative history suggests that Congress anticipated that many Tribes and States
would assume the program, so the purpose of this proposed rule should be to encourage
Tribes and States to assume the section 404 program by decreasing the amount of
confusion in the application process. The main reason that assumptions are permitted is to
maintain Tribal and State sovereignty. Overall, I agree with the proposed rule as it
addresses the specific issues that Tribes and States have expressed with the assumption
process. I believe that this rule will clear up much confusion surrounding the process and
will provide Tribes and States with guidelines for going about the assumption process. My
main concerns are issues regarding Tribal sovereignty and how the proposed rule could
further enforce that.

Agency Response: EPA acknowledges this expression of support.

State of Utah. Public Lands Policy Coordinating Office (EPA-HO-OW-2020-0276-0056-0003)
Currently, only three states have been approved by EPA to administer CWA 404
permitting programs. No Tribes have been approved by EPA to administer a CWA 404
permitting program [Footnote 2: Id.at 55278.]. Change is necessary to encourage states
and Tribes to take an active role in managing resources within their borders.

Agency Response: EPA has clarified and revised provisions of the regulations to
facilitate State and Tribal assumption of the section 404 program.

Anonymous (EPA-HO-QW-2020-0276-0064-0001)

Seeing as the EPA has not amended the Clean Water Act Tribal and State Program in over
35 years, this revision is very much overdue. This proposed revision is very timely, seeing
as the Senate Committee on Environment and Public Works just held a hearing on
September 20th about drinking water in tribal communities, bringing increased attention
to this critical issue. Ecosystems, especially those that are underwater, are very fragile to
any disruptions that may occur. Removing sediment from the bottom of a body of water
(referred to as "dredged or fill material" here) will always have consequences for a given
ecosystem, and therefore this proposed rule is much needed as it will clarify the state's
role in monitoring any discharges of fill material into water sources. If this update is not
enacted, state legislatures may claim that due to the unclear language of CWA section 404,
their responsibility in this sector is limited. Additionally, the attention that is given towards
equity and environmental justice is very appreciated, as tribes will now have greater access
to participation in the permitting process in regards to projects from another state if the
CWA is updated.

Agency Response: EPA appreciates the commenter's support for the revisions.

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Florida Department of Environmental Protection (FDEP) (EPA-HO-OW-2020-0276-0066-0004)
Florida is generally supportive of the provisions in the Proposed Rule that eliminate or
reduce barriers to assumption and that streamline and improve the Section 404 regulations
to facilitate state assumption. Florida is also supportive of increased flexibility for States
seeking 404 assumption and encourages EPA to address state assumption on a case-by-
case basis, acknowledging that each State has unique geographical, biological,
programmatic, and legal features, which the 404 assumption approved process should be
tailored to address.

Agency Response: EPA appreciates the commenter's support for the revisions. EPA
agrees with the commenter about the importance of approaching Tribal or State
assumption on a case-by-case basis, given each the unique geographical, biological,
programmatic, and legal features of each Tribe and State.

National Association of Wetland Managers (NAWM) CEPA-HO-OW-2020-0276-0072-0001)

NAWM supports the U.S. Environmental Protection Agency's (EPA) efforts to update and
clarify the regulations pertaining to Tribal and State assumption and administration of the
CWA Section 404 permitting program for discharges of dredged or fill material. Aquatic
resource protection can only be accomplished by a unified effort of Tribal, State and
Federal programs. A holistic regulatory structure managed by a single governing program
will result in clarity to the regulated community and provide consistency in resource
management and mitigatory goals. It is also important to continue the protections for
aquatic resources which maintain the quality of traditionally navigable waters, assure that
the quality of aquatic resources of neighboring Tribes and States are maintained, and
that EPA provides sufficient oversight to authorized programs to provide national
consistency and assure that the goals of the CWA are achieved.

Agency Response: EPA appreciates the commenter's support for the revisions.

National Association of Home Builders (NAHm (EPA-HO-OW-2020-0276-0077-0Q0n

Because our members routinely conduct activities that may impact federal and/or state-
regulated waters and wetlands and are often required to obtain both federally-issued and
state-issued permits and authorizations, NAHB has long supported states assumption of
the CWA's permitting programs, including Section 402 National Pollutant Discharge
Elimination System (NPDES) and Section 404 dredge and fill permitting processes. State-
assumed programs are a proven way to streamline and bring more certainty to an often
cumbersome, lengthy, and unwieldy process. As a result, NAHB strongly supports states
and Tribes requesting and obtaining delegation of the CWA 404 program.

Agency Response: EPA acknowledges the comment.

National Association of Home Builders (NAHB^ (EPA-HO-OW-2020-0276-0077-00Q3N)

Despite these advantages, only three states have assumed the 404 program - Michigan,
New Jersey, and Florida. Michigan assumed the program in 1984, New Jersey in 1994,
and Florida in 2020 [Footnote 6: 88 Fed. Reg. 55280 (August 14, 2023).]. This is not due
to a lack of effort? many states including Alaska, Arizona, Indiana, Kentucky, Nebraska,
Maryland, Minnesota, North Dakota, Oregon, and Virginia have explored or pursued

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CWA Section 404 assumption over the years, but those efforts have been stymied by
various stumbling blocks. To date, the assumption process has been wrought with
challenges and confusion arising from uncertainty over the extent of waters subject to
CWA jurisdiction, which waters remain under federal oversight, and the costs and
administrative burdens of establishing, implementing, and maintaining wetland permitting
programs that meet federal requirements, among others. Further, the EPA acknowledges
that no Tribes currently administer the program or have expressed interest in doing so
[Footnote 7: Ibid.]. Clearly, the program needs to change if it is to operate as Congress
intended.

Agency Response: EPA acknowledges the comment.

2.2 General opposition to the proposed ride

Individual commenter (EPA-HQ-OW-2020-0276-0052-000n

The implementation of these regulations could have widespread negative impacts on the
protection of the nation's waters and wetlands. For instance, the process of taking over
such a program is costly and intensive, as some officials have learned the hard way. States
like Arizona, Indiana, and Oregon have backed away from their own attempts when
confronted with financial realities and other hurdles (Crunden 2023). Additionally, states
like Alaska, Nebraska, and Minnesota are seeking to influence the dredge-and-fill
permitting program, which has implications for federally protected waters. Currently, for
most of the country's waters, the Army Corps of Engineers retains authority, while the
EPA has veto power over CWA Section 404 permits.

Agency Response: EPA acknowledges the challenges faced by Tribes and States
seeking to assume the program. EPA disagrees that implementation of these
regulations could have widespread negative impacts on the nation's waters and
wetlands. See the Economic Analysis associated with this rulemaking for further
discussion of the environmental costs and benefits of this action.

Individual commenter (EPA-HO-OW-2020-0276-0052-00Q3N)

This push from these states for new comprehensive regulations aligns with a Trump-era
rule revising Clean Water Act requirements, which could empower deregulation from
supporters of the new legislation. Elise Bennett, a senior attorney with the Center for
Biological Diversity (CBD), has been aware of the potential plans from the EPA since the
Trump Administration and the negative implications this move could have on federally
protected waters. According to Bennett, "We believe it does not set the proper
environmental guardrails to ensure states can actually meet the Clean Water Act's
requirements, as well as other significant federal laws like the Endangered Species Act,
which are in place to ensure these permits do not drive species declines and extinctions"
(Crunden 2023). For example, Florida was granted authority by the EPA to oversee Section
404 permitting, causing further concern due to being home to significant and fragile
wetland ecosystems. An initial analysis from Bloomberg indicates that permit approvals
in Florida have faced significant criticism due to the lack of understanding and familiarity
with Section 404 permitting. Moreover, the implications of Florida or any other states
having authority over 404 permitting could lead to project approvals that threaten

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ecosystems by causing irreversible damage to threatened and endangered species
populations, drinking water, water quality, and wetlands.

Agency Response: EPA disagrees that this rulemaking aligns with an individual
administration. Nothing in this rule facilitates project approvals that would threaten
ecosystems or cause irreversible damage to threatened and endangered species
populations, sources of drinking water, or wetlands. Tribes and States have
requested EPA provide clarity and remove barriers to assumption for many years.
The Agency's efforts to review and revise the existing regulations began in earnest in
2015, with the convening of the Assumable Waters Subcommittee. See Section III of
the final rule preamble for further discussion on efforts leading up to the finalization
of this rulemaking.

Florida Department of Environmental Protection (FDEP) (EPA-HO-OW-2020-0276-0066-0005)
Florida urges EPA not to implement any proposed changes that would serve to add
additional hurdles or otherwise limit state assumption in a manner contrary to the CWA's
text and cooperative federalism purposes.

Agency Response: This rulemaking is consistent with the CWA and in particular its
cooperative federalism principles, and the revisions as a result of this rulemaking are
intended to clarify procedures to facilitate Tribal and State assumption.

Earthiustice et al. (EPA-HQ-OW-2020-0276-0068-000n

In general, the Conservation Organizations are opposed to many provisions of EPA's
proposed rule as set forth in detail below. EPA's proposed rule codifies some unlawful
positions the agency took when approving Florida's program, including positions
regarding assumable waters and criminal enforcement. These are currently being litigated.
As to other issues, EPA's proposal weakens the requirements for states to assume 404
permitting with the clear goal of facilitating assumption without regard to the potential
impact on the resources.

Although some of EPA's proposed changes would be an improvement from the current
rules, the agency does not go far enough to (1) require state programs to be at least as
stringent as federal law requires; (2) ensure that states have the resources and funding to
operate a state 404 program; (3) mandate that affected members of the public are able to
challenge permits and enforce environmental laws; and (4) improve the timing and process
for both approving state assumption applications and withdrawing or revising inadequate
state programs.

Agency Response: EPA does not comment on ongoing litigation. Additionally, the
approval of any individual section 404 program is beyond the scope of this
rulemaking.

See Sections IV.A through IV.E of the final rule preamble for discussion on the
provisions added to ensure programs are administered consistent with, and no less
stringent than, the requirements of the CWA section 404 and its implementing
regulations.

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National Association of Wetland Managers (NAWM) (EPA-HO-QW-2020-0276-0072-0003)

We understand that one of the goals of this notice is to receive input from the regulated
community on how best to construct elements of an authorized program to assure aquatic
resource protection. To this end, EPA has proposed options and/or methods for the
authorized program to coordinate issues ranging from historic preservation, endangered
species, water quality of neighboring jurisdictions, and traditionally navigable waters.
While we understand and support EPA's goal to provide flexibility to those Tribes and
States seeking to assume the 404 program, it is also important to assure that the resulting
program construct is scientifically sound and comports with the intent of Congress. It is
also important that these proposed rule revisions do not create any unnecessary procedures
which may affect rights which Tribes and States inherently have or ones which limit
federal agencies from implementing their congressionally mandated responsibilities.

Agency Response: EPA agrees with the commenter and believes the final rule is
consistent with Congressional intent for Tribes and States to take primary
responsibility for managing their aquatic resources.

State of Alaska Department of Environmental Conservation (EPA-HQ-QW-2020-0276-0079-

ooon

As detailed below, on balance, we do not believe that EPA's proposed revisions, if
finalized, will achieve its stated goals. Indeed, some aspects are likely to deter State
assumption. And some do not give effect to Congress's recognition in § 101(b) that "it is
the policy of Congress to recognize, preserve, and protect the primary responsibilities and
rights of States to prevent, reduce, and eliminate pollution" as well as "to plan the
development and use .. . of land and water resources." This foundational policy statement,
which aminates the entire Clean Water Act, is undermined by micromanagement of State
programs. Consistent with Congress's intent, EPA must leave States with maximum
responsibility and flexibility in assumed programs.

Agency Response: EPA disagrees with the commenter. This rule gives effect to CWA
section 101(b) while providing flexibility in the way Tribes and States design and
administer their programs. The rule's program oversight and coordination
provisions are necessary to ensure EPA has the information necessary to ensure
Tribal and State programs comply with the CWA.

Great Lakes Indian Fish and Wildlife Commission (EPA-HO-OW-2020-0276-0080-0Q11)

From an off-reservation perspective, tribes that hold reserved rights to hunt, fish and gather
within ceded territories are not the regulatory authority with control over the issuance of
404 permits, nor can they assume that authority under the Clean Water Act as currently
written. The tribes rely on other governments to exercise their authorities in ways that
preserve and enhance the habitats that support healthy and abundant natural resources.
Unfortunately, states are not always as diligent about working with tribes to ensure tribal
interests are appropriately considered as are federal agencies. The EPA and Army Corps
must ensure that federal obligations are not abrogated through state action.

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While the goal of clarifying the procedures for assumption of Section 404 permitting is a
good one, the proposed regulations must protect tribal rights and resources, and must
provide mechanisms for the federal government to uphold its treaty obligations and trust
responsibilities in both an on- reservation and off-reservation context.

Agency Response: The final rule provides a number of ways in which Tribes can
meaningfully engage with Tribal and State section 404 programs. See Section IV.F
of the preamble to the final rule for further discussion.

Center for Biological Diversity (EPA-HO-OW-2020-0276-0083-0Q0n

EPA's poorly articulated proposal streamlines a program meant to fast-track dredge and
fill operations even as wetland loss accelerates nationwide.[Footnote 1: U.S. Coastal
Wetlands are Rapidly Disappearing. Her's What it'll Take to Save Them CLIMATE
CENTRAL (Mar. 1, 2023) https://www.climatecentral.org/partnership-journalism/us-
coastal-wetlands-are-rapidlv-disappearing-heres-what-itll-take-to-savel This proposal is
offered without any environmental safeguards or protections for imperiled wildlife and in
written without important context that makes it near impossible to meaningfully comment.
Allowing states to assume authority for wetlands permitting yields no environmental
benefit and has historically complicated nationwide protection of wetlands. While some
underleveraged States may struggle with implementation from a capacity standpoint,
others have actively resisted meaningfully implementation of the Clean Water Act
("CWA"). For example, the State of Florida consistently applied a court-invalidated
definition of "Waters of the United States" when identifying jurisdictional waters in
Florida, with no meaningful recourse. Out of due diligence, we must note our opposition
to every aspect of this pointless proposal and request that it be withdrawn immediately.

Agency Response: This rule carries out Congress' charge to enable Tribal and State
assumption, pursuant to CWA section 404(g). The CWA also provides that Tribes
and States that assume administration of section 404 permitting must be consistent
with and no less stringent than the federal program. Implementation of particular
existing State 404 programs is outside the scope of this rulemaking.

2.3 Requests for extension of the comment period

Alaska Mining Impacts Network (EPA-HQ-QW-2020-0276-0045-0005)

Finally, The current comment deadline is too short, and it should be extended. It took the
EPA years of working closely with states to draft the rule. Sixty days are inadequate for
organizations and concerned citizens to comment on 211 pages of dense regulatory text,
legal analysis, and technical information. Rather than pushing forward with incomplete
public engagement, EPA should take the time to ensure it has received input from all
sectors to get these regulations right.

Agency Response: The APA requires agencies to "give interested persons an
opportunity to participate in the rule making through submission of written data,
views, or arguments with or without opportunity for oral presentation." 5 U.S.C.
553(c). The APA does not specify a minimum number of days for accepting comments

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on a proposed rule. The Agency complied with its obligation under the APA to
provide a reasonable length of time for interested parties to comment on the
proposed rule. EPA did not extend the original 60-day comment period, as EPA has
provided ample opportunity for members of the public to consider and respond to
the proposed rule. See Section III.B of the final rule preamble for further discussion
on the rulemaking development process, including opportunities for public
engagement and input. Moreover, a pre-publication version of the proposed rule was
posted on the	ebsite, on July 19, 2023, which was 27 days prior to its

publication in the Federal Register and opening of the public comment period.

Conservancy of Southwest Florida (EPA-HO-OW-2020-0276-0047-00Q1)

On behalf of the Conservancy of Southwest Florida and our over 6,500 supporting families,
we ask that the Environmental Protection Agency (EPA) extend the public comment
period on the Proposed Clean Water Act Section 404 Program Regulations (EPA-HQ-
OW-2020-0276). We support Earthjustice and the other organizations that made a request
for an extension on August 18, 2023.

We agree with Earthjustice that it is in EPA's best interest to seek out as many comments
as possible and ensure that the public has sufficient time to fully develop meaningful
comments on all aspects of the proposed rule to ensure it adequately protects our nation's
waters and wetlands. Additional time would mean that we and our partners could address
any opportunities to improve how State assumed programs operate now and in the future.

These regulations would have widespread impacts on the protection of our nation's waters
and wetlands. For the first time in thirty-five years, EPA is proposing new regulations that
identify the procedures for State assumption of the Clean Water Act 404 program and set
the minimum standards that States must meet to assume the 404 program.

In addition to this rulemaking, the public will also need to assess EPA's rule on the
definition of waters of the United States ("WOTUS") during the same time period. Without
an extension, the public will be tasked with analyzing two separate technical rulemakings
under a limited period.

Wetlands and waters are vital habitat for threatened and endangered species, drinking
water, water quality, natural floodwater attenuation, and so much more.

Please extend the comment period by thirty days. Thank you for considering our request.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0045-0005.

Earthjustice et al. (EPA-HO-OW-2020-0276-0048-0Q0n

On behalf of the undersigned organizations, Earthjustice respectfully requests that the U.S.
Environmental Protection Agency ("EPA") extend by thirty days the public comment
period on the agency's Proposed Clean Water Act Section 404 Tribal and State Program
Regulations (EPA-HQ-OW-2020-0276), 88 Fed. Reg. 55,276 (Aug. 13, 2023).

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Earthjustice and the undersigned organizations request that EPA extend the comment
period to allow the public time to provide more detailed comments on these regulations
which would have widespread impacts on the protection of our nation's waters and
wetlands.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0045-0005.

Earthjustice et al. (EPA-HQ-QW-2020-0276-0048-0002)

The regulations and preamble span fifty-five pages in the Federal Register representing
211 pages of dense regulatory text, legal analysis, and technical information, accompanied
by thirty-eight separate supporting documents. It takes a substantial amount of time to
review such a large amount of material and provide meaningful comments. Point in fact,
it took EPA over five years to develop the proposed rule. To assume that the public will
be able to read, interpret, understand, and fully respond to such an intricate and technical
proposal in sixty days is unrealistic and chills public participation.

In addition to processing EPA's 404 rulemaking, the public will also need to assess the
import of EPA's updated final rule on the definition of waters of the United States
("WOTUS"), which EPA intends to issue by September 1, 2023, [Footnote 1:
Amendments to the 2023 Rule, EPA, https://www.epa.gov/wotus/amendments-2023-rule
(last updated June 26, 2023).] well into the comment period for these regulations. The
WOTUS rule has profound implications for the manner by which EPA proposes to define
retained and assumable waters here. Without an extension, the public will be tasked with
analyzing two separate technical rulemakings under a limited period.

It is in EPA's best interest to seek out as many comments as possible and ensure that the
public has adequate time to fully develop meaningful comments. EPA has been working
hand in glove with States on these proposed rules for five years. It has not provided the
public with the same opportunity to engage with the agency. However, the public has the
best perspective on the issues they have faced in States that have assumed the 404 program
and in States with other delegated Clean Water Act programs. Earthjustice, for example,
has extensive experience from extensive work over many years and cases representing
tribes, environmental advocates, and environmental justice organizations, and is eager to
provide thorough comments on all aspects of the proposed rule to ensure it adequately
protects our nation's waters and wetlands. More time is necessary for us to ensure that we
fully respond to all questions the agency poses and to address any opportunities to improve
how State assumed programs operate now and in the future.

Further, extending the comment period by thirty days is unlikely to significantly affect
EPA's ability to finalize these regulations in a timely manner. EPA is not under any
deadline to act and has waited thirty-five years to propose the updates at hand. Rather than
pushing forward with incomplete public engagement, EPA should take the time to get
these regulations right.

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Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0045-0005.

South Florida Wildlands Association (EPA-HO-OW-2020-0276-0049-0Q0n
Unfortunately, the deadline for comments is mid-October.

I have to assume the recording will not be available until the comment period is over or
nearly over. Is there a way for you folks to expedite the process so the full public can listen
to the session during the comment period?

In light of this timeline, I request that the deadline be extended a month from the date the
recording of the public session becomes available. Important information was shared from
stakeholders during that session and the general public should be able to avail themselves
of that information before submitting comments of their own. The comments provided
information about the 404g process and its impacts that was not available in the documents
shared by EPA.

Please let me know this this request is approved.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0045-0005.

Individual commenter (EPA-HO-OW-2020-0276-0052-00Q2N)

Finally, it is in the EPA's interest to reconsider extending the public comment period by an
additional thirty days to ensure the public has adequate time to revisit the Federal Register
and provide meaningful comments. Such actions are necessary due to the dense regulatory
text and legal analysis that will take a substantial amount of time to comprehend. For
instance, there are only six comments on such an important and comprehensive revision
of the CWA Section 404 permitting program, and the comment period ends on October
13, 2023. In retrospect, I object to the EPA moving forward with the proposed rule due to
incomplete public engagement and the need for more time to propose better regulations in
line with environmental conservation.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0045-0005.

Buena Vista Rancheria of Me-Wuk Indians (EPA-HO-OW-2020-0276-0053-001QN)

BVR asks the EPA to extend the comment period and, during that extension, provide
clarification via workshops and webinars to Tribes about how the new WOTUS definition
is applied in this proposed rulemaking.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0045-0005.

Anonymous (EPA-HO-OW-2020-0276-0075-0Q0n

I request that the EPA extend comment period for EPA-HQ-OW-2020-0276 by thirty days.
It is in EPA's best interest to seek out as many comments as possible and ensure that the

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public has sufficient time to fully develop meaningful comments on all aspects of the
proposed rule to ensure it adequately protects our nation's waters and wetlands. It will also
provide for additional time to assess how State assumed programs now operate or may
operate in the future.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0045-0005.

South Carolina Environmental Law Project (SCELP) (EPA-HQ-QW-2020-0276-0081-0001)

The South Carolina Environmental Law Project (SCELP) respectfully requests that the
Environmental Protection Agency (EPA) extend the public comment period for the
proposed Clean Water Act Section 404 Tribal and State Program Regulation (Docket ID
No. EPA-HQ- OW-2020-0276). Our reasoning for this request is largely the same as
Earthjustice, the Conservancy of South Florida, and the other organizations that published
comments seeking an extension of the comment period.

EPA's regulations regarding state and tribal assumption of administration of the section
404 program have not been comprehensively updated for nearly forty years. In EPA's
public hearing presentation, the agency recognized that the current regulations are out of
date and ill- equipped to address the requirements and procedures for assuming and
administering a 404(g) program today. Accordingly, for the last five years, EPA has been
working with states and tribes to determine where the 404(g) regulations (1) lack clarity,
(2) create barriers for assuming and administering a program, and (3) fall short of fulfilling
the statutory purposes behind the Clean Water Act. Coordinated efforts between EPA, the
states, and tribes have made these updates to the section 404 program possible.

While the coordination between EPA, states, and tribes is recognized and appreciated, this
process of updating the 404(g) regulations has been largely closed off to the public. This
means that many stakeholders were not given an opportunity to share their perspectives,
knowledge, or expertise on these new regulations until the public comment period opened
on August 14, 2023. Unfortunately, a 60-day comment period is simply not long enough
for the public to read, understand, and comment upon a legally and scientifically dense
regulation program change. Not only do members of the public need to read the extensive
proposed rule to understand the program change, but the public must also conceptualize
these changes in the context of 43 supporting documents posted by EPA in the rulemaking
docket. To do so effectively, more time in the comment period is needed.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0045-0005.

South Carolina Environmental Law Project (SCELP) (EPA-HQ-OW-2020-0276-0081-0002)

While this comprehensive update to the section 404 program is significant in its own right,
this proposed regulation is all the more important given the Supreme Court's opinion in
Sackett v. EPA issued earlier this year. In this decision, the Supreme Court redefined which
water bodies and wetlands are entitled to protection under the Clean Water Act. In so
doing, the Court "departed] from the statutory text, from 45 years of consistent agency

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practice, and from this Court's precedents." Sackett v. Envtl. Prot. Agency, 598 U.S., No.
21-454, slip op. at 69 (2023) (Kavanaugh, J., concurring in the judgment).

The result of this abrupt change in federal practice is that states and tribes will now have
responsibility to protect the wetlands no longer covered by the Clean Water Act. This
means that the section 404 program is going to be in higher demand by states than it ever
has been before, so clear, comprehensive, and effective 404(g) regulations are also needed
now more than ever before. EPA must receive input from the widest range of stakeholders
and members of the public as possible in order to ensure that the new 404(g) regulatory
scheme strikes the proper balance between assumption and oversight. The best way to
ensure that most comments possible are received is to extend the comment period—which
is especially appropriate in light of the stakes of this proposed rulemaking.

In sum, we hope that EPA will extend the comment period for this rule to allow more
stakeholders and members of the public to have their voice heard at such a crucial time as
this. Thank you for considering our request.

Agency Response: See Section IV.A.2 and IV.A.3 of the final rule preamble regarding
requirements to be consistent than and no less stringent than the requirements of the
Act. The scope of a CWA section 404 program is limited to "waters of the United
States" and while a Tribal or State program may have a broader scope, the Agency's
oversight is limited to assumed waters consistent with CWA section 404(g)(1).
Regulatory actions associated with the scope of waters of the United States is outside
the scope of this rulemaking.

See the Agency's Response to Comment EPA-HQ-OW-2020-0276-0045-0005.

Region 10 Tribal Operations Committee (RTOQ (EPA-HQ-OW-2020-0276-0084-000n

Given the significance of wetlands and water resources generally for Tribes in Alaska,
Washington, Idaho, and Oregon, we are very concerned about maintaining and improving
the protections and oversight that Section 404 provides. We are particularly cognizant of
the risk that State assumption of these programs may pose for Tribal sovereignty and input
in permitting decisions. Given the significance of the matter relative to the length of the
comment period, we request that EPA consider an extension of the comment period for
90-days, that EPA provide additional opportunities for Tribes to consult on the proposed
rule, and that an additional webinar be conducted for tribal staff and consortia (such as the
RTOC) specifically addressing the effect of State assumption on Tribal interests.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0045-0005.

Region 10 Tribal Operations Committee (RTOQ (EPA-HO-OW-2020-0276-0084-00Q2N)

The factsheet distributed by EPA, as well as the proposed rule's supplementary
information, provides plenty of detail regarding the prospects for State or Tribal
assumption of 404 programs, but these resources are much quieter about the effects that
State assumption would have on Tribes. For nearly all Tribes, 404 program assumption
will remain financially and administratively impractical, despite the proposed rule's

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clarifications. However, additional States assuming 404 programs will have substantial
effects on Tribes. Among the more significant issues that Tribes would not be made aware
of through the factsheet and supplementary information alone is the loss of certain Federal
environmental and cultural protections that rely on a federal nexus for their authority
[Footnote 1: See Menominee Indian Tribe of Wise. v. Environmental Protection Agency,
947 F.3d 1065, 1073 (7th Cir. 2020); 54 U.S.C. § 306108 (requiring Federal agency
undertaking or issuance of any Federal license); 42 U.S.C. § 4332 (requiring "major
Federal actions"); 16 U.S.C. § 1531 (limited to "all Federal departments and agencies,"
which can only "cooperate" with State and local agencies).]. This is particularly relevant
for Alaska Natives, who cannot rely on the sovereignty protections inherent to reservation
lands. The proposed rule leaves ambiguous whether Alaska Native Villages could qualify
for the limited Treatment-as-a-State provision and such information would be necessary
to informed Tribal input.

We believe that the extent and significance of the impacts from increased State assumption
of 404 programs relative to the material discussed in EPA's materials for the proposed rule
merits additional time for review and comment. It would also be useful for EPA to host a
webinar specifically on the impacts of State assumption on Tribes and the Federal
protections which might be threatened.

Agency Response: The final rule provides a number of ways Tribes can meaningfully
engage with Tribal and State section 404 programs. The final rule directs that
assuming States provide for judicial review of State-issued permits and that Tribes
provide for a commensurate form of review. See Section IV.C.2 of the final rule
preamble for further discussion. In addition, under the final rule, Tribes may request
that EPA review permits that may affect Tribal rights or interests within or beyond
reservation boundaries. Tribes also may receive notice and an opportunity to provide
recommendations as an "affected State" for purposes of 40 CFR 233.31 either by
already having status of treatment in a similar manner as a state (TAS) for any
provision of the CWA or by specifically seeking TAS for the purpose of commenting
on proposed permits to be issued by a state. See Section IV.F of the final rule
preamble.

See the Agency's Response to Comment EPA-HQ-OW-2020-0276-0045-0005
regarding the request for an extension to the public comment period.

Region 10 Tribal Operations Committee (RTOQ (EPA-HO-OW-2020-0276-0084-00Q3N)

Another impediment to the consultation and coordination with Tribes regarding this
proposed rule is the degree of maintenance of the Tribal Consultation Opportunities
Tracking System ("TCOTS") page. Although the system is designed to keep Tribes
informed of significant pending matters, the posted deadlines are often different from the
actual deadlines. The TCOTS page for this issue stated the deadline for comment as
September 17th. After that date, the page for this proposed rule was taken down. TCOTS
has not informed Tribes of the current deadline for comments, nor is it informing Tribes
of the issue at all since September 17th. An extension will allow more Tribes to become
aware of the deadline, and to get better informed about the actual matter.

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Wetlands, and water resources generally, are essential to many Tribes for cultural,
economic, and spiritual reasons. Almost no activity has more potential for significantly
affecting the economic and political integrity and the health and welfare of all Tribal
people than water use, quality, and regulation.

Given the importance of the proposed rule and the issue of wetlands conservation to the
health and welfare of Tribes, we believe the request for extension is reasonable.

Agency Response: EPA appreciates the feedback and regrets any miscommunication
regarding tribal consultation opportunities on this rule and will seek to address this
issue for future rulemakings. EPA posted and maintained information regarding this
rule and the opportunity to provide public input on EPA's website and in the Federal
Register throughout the public comment period. EPA communicated the
opportunities and deadlines for public comment and Tribal consultation in letters to
the Tribes, during the Tribal listening sessions, and the public hearing.

See the Agency's Response to Comment EPA-HQ-OW-2020-0276-0045-0005
regarding the request for an extension to the public comment period.

California State Water Resources Control Board (EPA-HO-OW-2020-0276-TRANS-Q82423-
003-0004")

Comment 4

One last follow up (suggestion, not question). Given any decisions about state assumption
would be greatly affected about how EPA and the Corps will implement the Sackett
Decision, I recommend EPA consider postponing end of the comment period until after
greater clarity has been provided on Sackett.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0045-0005 regarding the request for an extension to the public comment period.

On August 29, 2023, EPA and the U.S. Army Corps of Engineers issued a final rule
that amends the "Revised Definition of 'Waters of the United States'" to conform key
aspects of the regulatory text to the Supreme Court's May 25, 2023 Sackett decision.
This rule was published in the Federal Register on September 8, 2023. 88FR 61964.

Earthi ustice (EPA-HO-OW-2020-0276-TRANS-Q92923 -001 -000 n

First, EPA does not engage with communities and advocates in developing this rule.
Instead, they have focused primarily on how to make state assumption easier. The EPA
spent years talking to states about 404 assumption and hearing what states are likely to be
changed, they haven't done that with environmental groups and communities. They must
hear from them now, but the current comment period is inadequate considering the
hundreds of pages of dense regulatory checks, legal analysis, and supporting
documentation in the record. Rather than pushing forward with incomplete public
engagement, EPA must extend the comment period and make sure it gets this rule right.

Agency Response: This rulemaking is an update to, and clarification of the
requirements Tribes and States must meet to assume and administer a CWA section

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404 program. EPA appropriately sought Tribal and State input on the provisions
which could benefit from additional clarity. See Section III of the final rule preamble
for further discussion public engagement and outreach during this rulemaking
effort.

See the Agency's Response to Comment EPA-HQ-OW-2020-0276-0045-0005
regarding the request for an extension to the public comment period.

Responsible Growth Management Coalition (EPA-HO-OW-2020-0276-TRANS-092923-007-

0008")

Number one, please extend the public comment period. There is a large amount of
elaborate government policy information to wade through for the public to be able to
adequately and cogently absorb and address, and the time allotted is woefully inadequate
at present.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0045-0005.

Conservancy of Southwest Florida (EPA-HO-QW-2020-0276-TRANS-092923-012-000 n

"Hello, my name is Amber Crooks, with the Conservancy of Southwest Florida. We have
a significant interest in this issue, and we'll be making our comments in writing. We would
like to reiterate our recent request via letter to extend the comment period to allow for
adequate time to comment. Thank you."

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0045-0005.

2.4 Potential impacts on proposed changes on existing State section 404 programs

Yukon River Inter-Tribal Watershed Council (EPA-HO-OW-2020-0276-0063-0Q1 n

Recently, Florida assumed Section 404 permitting authority. 85 Fed. Reg. 83553-83554
(Dec. 22, 2020). While Florida did enter into a programmatic agreement regarding impacts
to cultural and historic properties with EPA and the Advisory Council on Historic
Preservation (ACHP), no tribes were party to the programmatic agreement [Footnote 1:
See https://floridadep.gov/sites/default/files/Programmatic_Agreement_-_12-16-20.pdf.].
Potentially impacted tribes with cultural resources in Florida voiced numerous concerns
about state assumption, including: abdication of the federal trust and consultation
responsibilities; lack of notification from the state on individual permits that may impact
tribal resources; lack of clarity and notice with regard to procedures for protecting cultural
or historic properties impacted by the issuance of general permits; lack of time for tribes
to coordinate with and respond to state agencies throughout the permitting process;
impacts to lands and waters over which there may be unresolved legal disputes; lack of
state resources to adequately manage a Section 404 program; impacts to and implications
for tribal traditional, cultural and statutory use rights; and concerns about all tribes being
lumped together under the state's program, when tribes as individual sovereign
governments have different legal rights and interests [Footnote 2: See, generally
https://www.reeiilations.eov/dociiment/EPA-HQ-OW-2018-0640-0606.1.

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Agency Response: As the commenter notes, generally States lack authority to regulate
activities on Indian lands and thus the Corps will continue to permit dredged and fill
activities in Indian Country until such time as the Tribe assumes administration of
the program. See Sections IV.B.l and IV.B.2 of the final rule preamble for further
discussion.

Florida Department of Environmental Protection (FDEP) (EPA-HQ-QW-2020-0276-0066-0017)
Florida's program follows the federal mitigation hierarchy, ensures that its program is "at
least as stringent as the federal program, and [it] meet[s] or exceed[s] the requirements in
the 404(b) 1 guidelines" and took compensatory mitigation requirements under Subpart J
into account throughout its assumption process [Footnote 13: See e.g.,
https://floridadep.gov/water/submerged-lands-environmental-resources-
coordination/content/state-404- program-frequently.]. Accordingly, Florida questions any
suggestion that "[subsequent to a review of the final rule, Michigan, New Jersey, or
Florida may determine a program revision is necessary to ensure that any permits they
issue will apply and ensure compliance with the substantive criteria for compensatory
mitigation in subpart J." [Footnote 14: 88 Fed. Reg. 55,316.] If there are any specific issues
that EPA may be considering, this should be raised with Florida as part of the 404 oversight
process. Indeed, in its Economic Analysis, EPA even notes that mitigation is already
considered and addressed during assumption approvals, and this codification would only
have de minimis impacts on States as they develop their assumption request. [Footnote 15:
EPA, Economic Assessment at 32, https://www.epa.gov/system/files/documents/2023-
07/SAN%206682%20404g%20Proposal%20Economic%20Analysis_20230621_508c_Q
C4_l .pdf] Again, the critical point is that EPA should protect flexibility for state programs
within the bounds of the CWA.

Agency Response: When this final rule goes into effect, EPA will work with States
implementing section 404 programs to ensure that those programs comply with
regulatory requirements, pursuant to the existing regulatory process for program
revisions. States will not need to revise their programs if they already comply with
the rulemaking.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q28N)

Contrary to EPA's representation, existing state programs do conflict with some of the
agency's proposals here as to retained waters (including the process for modifying retained
waters lists) and also conflict with federal law (the definition of retained waters). Once the
agency finalizes a lawful rule on assumption, EPA must require that approved states
modify their programs to come into compliance with federal law, and must evaluate those
modifications through rulemaking, subject to notice and comment, under the
Administrative Procedure Act and Clean Water Act.

Agency Response: EPA agrees that where an approved section 404 program is
inconsistent with the provisions of this final rule, the State must amend their program
to be consistent with the final rule and seek EPA approval of the amended program.

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Earthiustice et al. (EPA-HO-OW-2020-0276-0068-00Q6N)

Florida's unlawful 404 dredge and fill permitting program is a prime example of why
Congress enacted the Clean Water Act as a federal backstop and the harm that can occur
if EPA abdicates its responsibility to ensure that state programs comply with the Act's
requirements before approving assumption. Several environmental organizations filed suit
challenging EPA's approval, and the underlying actions by USFWS and the Corps, as
unlawful [Footnote 50: Am. Complaint, Ctr. for Biological Diversity v. Regan, No. 21-
CV-119 (RDM), ECF No. 77; Pis. M. Summary Judgment, Ctr. for Biological Diversity
v. Regan, No. 21-CV-119 (RDM), ECF No. 98; Pis. Reply for M. Summary Judgment,
Ctr. for Biological Diversity v. Regan, No. 21-CV-l 19 (RDM), ECF No. 104. See also Pis.
M. Partial Summary Judgment, Ctr. for Biological Diversity v. Regan, No. 21-CV-l 19
(RDM), ECF No. 31; Pis. Reply for M. Partial Summary Judgment, Ctr. for Biological
Diversity v. Regan, No. 21-CV-l 19 (RDM), ECF No. 43; Pis. Notice of Supp. Authority,
Ctr. for Biological Diversity v. Regan, No. 21-CV-l 19 (RDM), ECF No. 59; Pis. Sur-
Reply for M. Partial Summary Judgment, Ctr. for Biological Diversity v. Regan, No. 21-
CV-l 19 (RDM), ECF No. 69; Ctr. for Biological Diversity v. Regan, 597 F. Supp. 3d 173
(D.D.C. 2022); Ctr. for Biological Diversity v. Regan, No. 21-119, 2023 WL 5437496
(D.D.C. Aug. 23, 2023). The Miccosukee Tribe of Indians of Florida also brought suit in
the Southern District of Florida. See PI. M. for Summary Judgment, Miccosukee Tribe of
Indians of Fla. v. EPA, No. l:22-CV-22459 (KMM), ECF No. 32.]

Agency Response: Litigation over EPA's approval of any specific State section 404
program is outside of the scope of this rulemaking.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-00Q7N)

While in litigation, Florida for more than a year and a half continued to apply the vacated
and illegal Navigable Waters Protection Rule (NWPR) definition of waters of the United
States to its 404 program, unlawfully limiting the scope of Clean Water Act permitting
jurisdiction in Florida [Footnote 51: See Letter from Tania Galloni, Earthjustice, to Shawn
Hamilton et al., Florida Department of Environmental Protection (FDEP) et al., Sept. 1,
2021; Letter from Tania Galloni Earthjustice, to Mark Wilson et al., Florida Chamber of
Commerce et al., Feb. 16, 2022; Letter from Christina I. Reichert, Earthjustice, to Radhika
Fox, EPA, Jan. 30, 2022; Letter from Daniel Blackman, EPA, to Emile D. Hamilton,
FDEP, Dec. 9, 2021; see also Letter from Jeanneanne Gettle, EPA, to John Truitt, FDEP,
Jan. 31, 2022; Letter from John Blevins, EPA, to Emile D. Hamilton, FDEP, Nov. 12,
2021; Letter from Jeanneanne Gettle, EPA, to Emile Hamilton, FDEP, Apr. 6, 2023; EPA
Objection Letters Compilation.]. Vacatur of the illegal and under-protective NWPR
restored the broader coverage of waterways under the Clean Water Act dictated by the pre-
2015 jurisdictional rules, but Florida refused to follow federal law with considerable
negative impacts for Florida's waterways and wetlands. This is precisely why EPA should
not rush to facilitate state assumption without ensuring that state assumed programs will
comply with the law.

Agency Response: Implementation of any specific State section 404 program is
outside of the scope of this rulemaking. This rulemaking is intended to clarify
assumption requirements to ensure that Tribal or State programs comply with the
CWA.

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Earthiustice et al. (EPA-HO-OW-2020-0276-0068-00Q8N)

EPA's approval of Florida's program sanctioned other deficiencies as well. For example,
Florida claimed it could administer the program without any additional funding and failed
to demonstrate adequate staffing or the requisite expertise to administer it [Footnote 52:
See Pis. M. Summary Judgment, Ctr. for Biological Diversity v. Regan, No. 21-CV-119
(RDM), ECF No. 98.]. While the State has since recognized that administering 404
permitting is and must be resource-intensive, the State has continued to understaff and
underfund the program, relying in many ways on entry-level staff who lack the training
and expertise necessary to adequate administration [Footnote 53: Letter from Jeanneanne
Gettle, EPA, to Emile Hamilton, FDEP, Apr. 6, 2023; Letter from Jeanneanne Gettle, EPA,
to Emile Hamilton, FDEP, Apr. 6, 2023.]. The State has also failed to require the necessary
supporting documentation for its decisions on whether a permit is required, hamstringing
EPA's oversight, as well as documentation on compensatory mitigation and cumulative
losses [Footnote 54: Id], These concerns were brought to EPA's attention during public
comment, but the agency approved Florida's program anyway.

Agency Response: Implementation of any specific State section 404 program is
outside of the scope of this rulemaking. See Section IV.B.3 of the final rule for
discussion on resource and staffing requirements for Tribal and State section 404
programs.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-4-0002N)

Congress enacted stringent 404 assumption requirements to ensure that federal protections
are not undermined by states that lack the capacity, expertise, rigor, and/or stringency to
administer 404 in compliance with federal standards. Congress further excluded waters
used or capable of being used in interstate commerce, recognizing that a state may act
adversely to the interests of communities in other states or the nation as a whole. Finally,
to protect these important considerations, Congress granted EPA the authority to apply
these protective measures and to decide whether to approve a state program, including
after taking into account comments from other affected agencies.

Under the Trump administration, EPA actively created considerable workarounds and
ignored requirements for state assumption in order to facilitate Florida's assumption of the
404 program. Those actions have undermined the Clean Water Act in that state, with
tremendous negative consequences for the environment that will only compound over
time. Further, Florida has proven itself unwilling to administer the program in accordance
with the law.

This administration must not only rectify those errors in Florida, but also ensure that EPA's
review of any state proposals to assume 404 jurisdiction reflects the high level of rigor and
protection Congress intended. EPA cannot abdicate responsibilities to communities and
ecosystems around the country in the name of "federalism", and should not be complicit
in ill-advised state efforts to assume 404 jurisdiction.

Allowing other states to replicate the Florida model (or even the model that led to Michigan
assuming the program given what is currently known about that state's administration of

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it) would further undermine the Clean Water Act, to the detriment of the nation's
waterways, including essential wetlands, and the tribes and tribal communities, along with
protected species, that rely on them.

Agency Response: See Sections IV.A through IV.E of the final rule preamble for
discussion of the clarifications and provisions added to ensure programs are
administered consistent with, and no less stringent than, the requirements of the
CWA section 404 and its implementing regulations. Sections IV.A.2 and IV.A.3 of the
final rule preamble, in particular, discuss the requirement that Tribal and State
section 404 programs must be consistent than and no less stringent than the
requirements of the Act and its implementing regulations. Implementation of any
particular State section 404 program is outside of the scope of this rulemaking.

National Association of Wetland Managers (NAWM) (EPA-HO-QW-2020-0276-0072-0028)

G. Potential Impacts of the Proposed Regulatory Changes on Existing State Section 404
Programs

NAWM is not aware of any significant burdens that the proposed rule changes will have
on existing State 404 Programs. However, we will defer to those States to identify any
impacts which the proposal may have on their programs and resources.

Agency Response: EPA acknowledges the comment.

National Tribal Water Council (NTWC) (EP A-HO-QW-2020-0276-0074-0001)

Furthermore, at the time that we submitted these early-input comments, Kathie Brosemer
(former NTWC at-large representative from the Sault Ste. Marie Tribe in Michigan) helped
draft a section (starts on p. 4) that specifically called out the fundamental flaws in
Michigan's assumption process that EPA is promoting, in one of the few (3) states that
have §404 authority, and there is an actual track record of how that has impacted tribes. It
does not appear that EPA's current "modification of procedures" does anything to
meaningfully address or correct the very real problems experienced by the Michigan tribes
we specifically flagged for EPA to consider. The Michigan tribes have seen degradation
of tribally important resources and constraints around their abilities to address obvious
adverse impacts from a poorly implemented state wetland regulatory program.

Agency Response: See Section IV.F of the final rule preamble regarding opportunities
for Tribes to raise concerns on permits that may adversely affect their waters or
interests. Implementation of EPA's approval of any specific State section 404
program is outside of the scope of this rulemaking. EPA notes that States with
assumed section 404 programs may implement additional State water quality
protection programs that are not part of the approved section 404 program.

National Tribal Water Council (NTWC) (EPA-HO-OW-2020-0276-0074-SD-00Q6)

Michigan assumed responsibility for wetland dredge and fill permitting in 1984, the first
of only two states to do so. A Memorandum of Agreement (MoA) between Michigan and
EPA set out the responsibilities of the state and the federal government. The MoA was

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revised in 2011, and at that time language was inserted that the state would consult affected
tribes as well as neighboring states when making CWA § 404 permitting decisions.

Michigan has had issues with the No Less Stringent requirement, due to providing various
exemptions from wetland permitting (for example for agricultural uses, agricultural drains,
and road maintenance) that were not allowed under the federal rules. A detailed timeline
of the development of Michigan's program and its struggles with compliance with federal
law is found at http://www.fraserlawfirm.eom/blog/2013/08/2013-public-act-98-
significantly-changes- michigans-wetlands-protection-program/. The state has faced
public scrutiny, internal investigation, and EPA communication about these issues since
at least 1997. PA 98, passed into law in summer 2013, was an attempt to rectify these
issues; however, it introduced 22 new inconsistencies with federal law (listed at the above
website). To date there is no certainty in the regulated community about which wetlands
fall under the provisions of the law, especially when farming activities are involved.

Most recently, State Rep. Tom Casperson introduced SB 1211 during the lame duck
session of November 2018. If enacted it would gut wetlands protections by redefining what
constitutes a protected wetland, excluding wetlands smaller than 10 acres and wetlands not
adjacent to a navigable water. About half of the wetlands of Michigan, or about a half
million acres, would suddenly not be protected if this bill becomes law. It seems certain
that if this bill becomes law, that would be the "last straw" after more than 20 years of
Michigan's noncompliance, and environmental organizations will petition EPA to
withdraw Michigan's assumption of wetland regulation. The uncertainties created by
Michigan's failure to comply with the law, its efforts to change the law outside of the
regulatory process, and the likely ensuing litigation will only result in more delays for
developers in the state.

Given the lengthy and protracted attempts by Michigan lawmakers (and in some cases state
agency staff) to thwart the intent of CWA § 404, it is unclear why the EPA is looking to
encourage other states to take on this authority. If other states follow Michigan's lead and
behave in a similar manner, it would require significant staff and legal resources for EPA
to monitor and manage this obstruction and live up to its duty to faithfully implement the
law.

Agency Response: See Sections IV.E.l and IV.E.3 of the final rule preamble.
Implementation of EPA's approval of any specific State section 404 program is
outside of the scope of this rulemaking. EPA notes that States with assumed section
404 programs may implement additional State water quality protection programs
that are not part of the approved section 404 program.

National Tribal Water Council (NTWC) (EPA-HO-OW-2020-0276-0074-SD-00Q7N)

To provide more detail from a tribal perspective on Michigan's assumption of the CWA §
404 program, the experiences of eight Michigan tribes with state wetland permitting
actions were collected through phone or in-person interviews. Tribes in both peninsulas
are represented in the stories collected. All respondents were interested in providing this
information and willing to share their tribe's experiences. Some referred to others within

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the tribal government who knew more about the incident(s), but due to time limitations
those others were not contacted.

Several recurring themes emerged. One recurring issue was surprising, and that is that
Michigan routinely overstepped its authority by issuing permitting decisions on tribal trust
lands and reservations. On these lands, state laws simply do not apply; rather, the Army
Corps of Engineers (ACE) is the wetland dredge/fill permitting authority. Unfortunately,
in some cases the tribal staff were unaware of this division in jurisdictional authority, and
conceded to state permits because of the joint permitting process the Michigan Department
of Environmental Quality (MDEQ) has in place with ACE.

The MDEQ/ACE joint permit process provides for a single application form for multiple
purposes, including dredge/fill, installations of pilings, and similar activities. MDEQ and
ACE share a single application and the attachments filed with it, and this procedure, when
applied routinely and regularly for hundreds of applicants from across the state, creates a
process flow routine that is difficult to modify for the few permit applications for which
ACE retains authority, such as on tribal lands. Examples of the jurisdictional problem that
has arisen, perhaps as a result of this process, include:

-	An exploration geologist built a road through a wetland on tribal trust land, in the mid-
2000s, which MDEQ approved.

-	Restoration work on the Lake Superior shoreline required a "joint permit" which involved
MDEQ and ACE discussions of where each has jurisdiction, around a high water mark,
but this was on reservation land.

-	A recent letter from ACE to MDEQ, informing them of federal jurisdiction for
environmental law on tribal trust land, surprised tribal staff because of the implication that
MDEQ did not already know this.

Other experiences included cases of MDEQ asserting authority over permitting in wetlands
immediately adjacent to a Great Lake, which is also subject to ACE jurisdiction.

-	A tribal fee land proposal to redevelop a fishing harbor faced a year's delay over MDEQ's
asserted permitting of minor wetland fill (to slightly widen an access road) in coastal
wetland adjacent to Lake Michigan.

-	A proposal from a pipeline company to lay mats in a wetland adjacent to Lake Michigan
to stage its geotechnical studies at the Straits, has been permitted by MDEQ.

Agency Response: EPA acknowledges this comment and refers the commenter to
Sections IV.B.l, IV.B.2, and IV.F of the final rule preamble for further discussion
regarding CWA section 404 permitting in Indian country, waters to be retained by
the Corps for purposes of CWA section 404 permits, and coordination and
commenting procedures for permits that may affect Tribal waters or interests.

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Implementation of any specific State section 404 program is outside of the scope of
this rulemaking.

National Tribal Water Council (NTWC) (EPA-HO-OW-2020-0276-0074-SD-00Q8)

Several tribes related numerous instances of MDEQ permitting wetland destruction in
ceded territories without consideration of impacts on treaty-retained rights to hunt, fish,
and gather in those areas. Wetlands are a significant ecotype with great importance for
tribal lifeways, including being one of the most important sources for medicinal plants and
the only source of wild rice. Destruction of wetlands within ceded territories harms tribes'
access to these plants, is in violation of treaties with the United States, and is in essence a
form of genocide. Treaty-retained rights are part and parcel of the treaty terms with the
federal government, and state law does not supersede them.

Finally, tribes reported several instances when MDEQ wetland permitting processes
prevented a tribe from carrying out important conservation initiatives.

- A wild rice lake in ceded territory had nontribal lakeshore residents wanting to treat wild
rice with herbicides to remove an impediment to motor boating. The state approved this
herbicide treatment. The tribe offered to relocate the wild rice to another appropriate
waterway before the herbicide was applied, but the wetland permit process that MDEQ
required of them was so onerous it introduced significant delays, and the herbicide
treatment was carried out in the meantime. Wild rice is a culturally significant traditional
and subsistence resource that is dramatically diminished from its historic range, and its
restoration is a critical conservation initiative for many tribes. To have a state
environmental law impede a tribal conservation initiative that was made necessary by the
approvals given under a different state environmental law is outrageous. This violates the
spirit of every conservation rule ever enacted.

- A brownfield restoration within a wetland in ceded territory resulted in removal of
contaminated soil and subsequent fencing to protect a portion of the wetland. Subsequent
efforts to control invasive species in the area were thwarted by lack of access to the fenced-
in area due to institutional controls placed on the site. That area became a continuous
vector of seed and rhizomes from invasive plants to the region, as MDEQ would not allow
tribal staff to enter and control those plants.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0074-SD-0007.

State of Alaska Department of Environmental Conservation (EPA-HQ-QW-2020-0276-0079-
0023")

G. Comments Related to Potential Impacts of the Proposed Regulatory Changes on
Existing State Section 404 Programs (Judicial Review, Compensatory Mitigation, Five-
Year Permits and Long-Term Projects, Program Scope, Conflict of Interest)

This section is likely impactful to the States that have already assumed, and may jeopardize
retention of their programs. Alaska urges EPA to pay particular attention to comments on

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this section from the States who have already assumed the program (New Jersey,
Michigan, and Florida), and to any comments or input from Nebraska and other States
actively seeking assumption. They are in a unique position to opine on this section and
their comments should receive extra weight.

Agency Response: EPA has considered all comments received.

Center for Biological Diversity (EPA-HO-OW-2020-0276-0083-0Q16N)

EPA is proposing a variety of provisions related to judicial review and fee-shifting aimed
at increasing court access and ensuring proper participation. EPA notes that its proposal -
if finalized - may affect existing State-assumed programs and require modifications of
permitting procedures. EPA specifically notes that a state requiring revisions would need
to submit a program revision in accordance with 40 CFR 233.16. EPA also provides
specific time periods for out-of-compliance states to make such revisions, including a two-
year period if the changes require legislation.

Only three states - Florida, Michigan, and New Jersey - have assumed authority over 404
programs. EPA notes that states should anticipate a need to revise their programs, but
statements indicate that the agency itself has not decided whether either of the three states
are out-of-sync with its proposed guidelines. However, it is abundantly clear that Florida
does not meet these guidelines. At a minimum, Florida's provisions on fee-shifting and
standing differ from what EPA proposes, which presumably would require revocation.

Under EPA's proposal, a state does not "provide for, encourage, and assist" public
participation in the permitting process if State law or regulation requires that attorneys'
fees must be imposed in favor of any prevailing party and against the losing party,
notwithstanding the good faith or merit of the litigant's position.[Footnote 51: Id. at 82]
This fee-shifting provision forms a barrier to court access for litigants unable to risk an
adverse fee award, no matter the strength of their case.

Florida's state program conflicts with federal law and this proposal by incorporating a
mandatory fee-shifting provision that has no analog under the Clean Water Act and
discourages or precludes under-resourced individuals and organizations from seeking to
vindicate their rights.

Agency Response: See Section IV.C.2 of the final rule preamble for discussion
regarding judicial review requirements. Implementation of any specific State section
404 program is outside of the scope of this rulemaking.

Center for Biological Diversity (EPA-HO-OW-2020-0276-0083-0Q17N)

EPA also notes that "narrow standing restrictions" are an additional deficiency that
would presumably require program revocation. A state does not "provide for, encourage,
and assist" public participation if it narrowly restricts the class of persons who may
challenge a permit. EPA also requests specific comment on whether to explicitly state that
limits to associational standing would run afoul of the proposed provisions. [Footnote 52:
Id. at 85]

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Florida's state program conflicts with federal law and this proposal by imposing barriers
for prospective plaintiffs who seek to enforce water protection laws via a heightened
burden to prove standing in state court. For example, under Florida's program, only a
"citizen of the state" could maintain an enforcement action, and at least one Florida court
has found that a foreign corporation would not quality as a citizen of the State, even when
they hold a valid certificate of authority to operate in the State. [Footnote 53: Fla. Stat. §
403.412; Legal Env't As si stance Found, v. FDEP, 702 So.2d 1352, 1353 (Fla. IstDist. Ct.
App. 1997). See Mcclash v. Manasota-88, Inc., No. 14-4735, 2015 WL 3966050, at *8
(Fla. Div. Admin. Hearings June 25, 2015) ("Sierra Club is not a citizen of the state; it is
a foreign nonprofit corporation.")] Federal law, by contrast, authorizes citizen suits under
the Clean Water Act by "any citizen" (i.e., "a person or persons having an interest which
is or may be adversely affected").[Footnote 54: 33 U.S.C. § 1365(a), (g).]

It is clear that Florida's administration of the 404 programs violate the EPA's proposed
guidance, and if finalized, the EPA must work to revoke delegation if changes are not
made.

Earthiustice (EPA-HO-OW-2020-0276-TRANS-092923-0Q1-0002")

Under the Trump Administration, EPA green lit considerable workarounds to federal laws
to facilitate Florida's assumption of the 404 program. The EPA is proposing to adopt many
of these workarounds, including reversing the Corps' position on retained waters,
undermining the requirements for state criminal enforcement standards, and putting
threatened and endangered species at risk. Those actions have undermined the Clean Water
Act in Florida, as well as public confidence in the process. This has led to tremendous
environmental damage, which will only compound in the future. And Florida has proven
itself unwilling to administer the program in accordance with the law, it has also
highlighted the fact that EPA oversight does not remedy an inadequate state program.
Rather than focusing solely on allowing more states to assume the goal for program, EPA
should be taking this opportunity to fix the problems so that waters, wetlands, and
protected species receive the protections required by law.

Agency Response: This final rule clarifies the requirements to assume and administer
a Tribal or State CWA section 404 program. Implementation of EPA's approval of
any specific State section 404 program is outside of the scope of this rulemaking.

Sierra Club (EPA-HQ-OW-2020-0276-TRANS-092923-003-000n

You may have heard about Hurricane Ian, and recently, to the credit of our county
commissioners in Lee, a project was denied which would have otherwise gone forward
even under 404 regulations in the state because people realized how the coastal wetlands
protected their homes and properties. We've got a lot of competing factors going on right
now regarding sea level rise, storm surge, atmospheric rivers, very slow-moving
hurricanes, wetlands have never been more important. I do appreciate the extent to which
EPA is firming up some of the rules for the state and Tribal assumption of the 404

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programs, and I hope it will accomplish the goals that speakers Christina and Becky before
me mentioned were often overlooked when states assume, especially the State of Florida.
We have seen some, some horrible moments of Florida not being able to manage the
program. A lot of rubber stamping of projects going through without EPA and Corps
guidance. So, I'm just speaking at a very high level. Hoping that EPA will maintain control
to the extent that the state would otherwise refuse not to, to protect these wetlands, protect
these cushions, these sponges for nutrients and other pollutants, for controlling coastal
water quality. As many years as the Everglades Restoration Program has been going on,
we haven't seen improved coastal water quality. Our coral reefs are dying. We've got algae
instead of sea grass. Even our springs at this point are suffering from nutrient overloads.
Wetlands could never be more important, and I do appreciate EPA's intent to help us to
protect them in perpetuity.

Agency Response: This final rule clarifies the requirements to assume and administer
a Tribal or State CWA section 404 program and to ensure that permits issued comply
with the CWA and the environmental review criteria in the 404(b)(1) Guidelines.

Sierra Club (EPA-HO-OW-2020-0276-TRANS-Q92923-004-000 n

EPA's proposed rules do not go nearly far enough to fix the huge, and wetland-killing
problems with Florida's 404 state assumption. What is being proposed does in fact
eliminate the so-called barriers, I mean protections, in order to facilitate assumptions by
irresponsible states at the expense of our diminishing wetlands, our suffering waters. We
are beyond disappointed the EPA has not engaged with the most impacted, marginalized
communities, and their advocates. While it may appease concerns of high-level state
government officials, you know, some of which are appointed by industry-friendly
politicians, it utterly fails in addressing many of the concerns of marginalized and front-
line communities that are hardly ever the concern of for-profit, big corporations. There is
no environmental justice to those in our communities that have been promised so much by
this current EPA administration. We have severe wetlands and water problems in Florida,
and some of them can be seen in the tears that run down our cheeks, in the carcass of dead
fish, in the orphaned manatees starving to death.

Agency Response: See Sections III.B and IV.A.2 of the final rule preamble.
Implementation of any specific State section 404 program is outside of the scope of
this rulemaking.

Sierra Club (EPA-HO-OW-2020-0276-TRANS-092923-004-00Q2N)

We're so disheartened that EPA will propose to weaken protections for wetlands and
waters in the name of so-called facilitating processes for the states, including EPA's
proposal on what's retained and assumed in on state's criminal enforcement standards.
Given the latest Supreme Court decision in EPA's associated, you know waters ruling, it
is even more important. Factoring that during the Trump Administration we were
gaslighted. Water advocates were gaslighted with considerable workarounds that were
done by EPA to facilitate the assumption. The proposed changes, honestly, feel like a spit
to the efforts to restore the Everglades. Our wetlands are our first line of defense against
flooding nutrient pollution.

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Agency Response: This final rule clarifies the requirements to assume and administer
a Tribal or State CWA section 404 program and to ensure that permits issued comply
with the CWA and the environmental review criteria in the 404(b)(1) Guidelines.

Sierra Club (EPA-HO-OW-2020-0276-TRANS-092923-004-00Q3N)

And we are very tired of running out of our precious waters, of the tears running down our
cheeks, for tons of dead fish, dolphins, birds, turtles, and even manatees, our gentle
mermaids. In Florida, we're in a race against time to defend and restore our wetlands and
water. There's absolutely no reason for an EPA that cares and made so many promises. Do
not make such further changes and improve this program.

Responsible Growth Management Coalition (EPA-HO-OW-2020-0276-TRANS-092923-007-

0005)

You know, we are just desecrating and decimating wetlands right and left because this
particular state administration, both at the gubernatorial level and at the legislative level,
are business and developer centric.

Agency Response: Implementation of any specific State section 404 program is
outside of the scope of this rulemaking.

Responsible Growth Management Coalition (EPA-HO-OW-2020-0276-TRANS-092923-007-

0006)

So, we now more than ever, we need a really strong state assumption rules, especially with
regard to protection of endangered species and especially with regard to protection of
intermittent wetlands and wetlands that don't fall under the Sackett ruling. I mean, we are
a state full of wetlands like that, because you know, our wetlands have been ditched, diked,
dammed, and diverted. So, wetlands that used to be connected to navigable waters or
waters that you know, that ran into larger bodies of water, that doesn't exist anymore, but
these wetlands are still vital to cleaning our water and maintaining habitat.

South Florida Wildlands Association (EPA-HO-OW-2020-0276-TRANS-Q92923-010-000 n

I'm going to go right into some of the problems we've seen because, as people know, the
transfer happened in Florida in 2020. I would say in a nutshell it's been a horrible
experience and an unmitigated disaster, even before the Sackett decision came up, and
we're still kind of waiting to see how that exactly plays out, we had already lost lots of
protection due to the transfer.

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Agency Response: Implementation of any specific State section 404 program is
outside of the scope of this rulemaking.

South Florida Wildlands Association (EPA-HO-OW-2020-0276-TRANS-092923-010-00Q2N)

In 2022, we obtained some of the records of applications that had come into two of the
Florida counties, Collier and Lee counties. Just since 2020, we've got 733 wetland
applications that came into Collier, 631 came into Lee County, and 333 in Collier, 174 in
Lee had already been approved. Hundreds received exemptions, or what was called no
permit required letters. These things were just sailing through. I kind of described this as
candy canes in Christmas for the developers. The developers specifically said they wanted
a streamlined procedure, and that's what they got. They got a streamlined procedure. It was
cheaper for them. It was easier for them. It was faster for them, and they could go right
into construction. And that was the purpose of that transfer, that the EPA gave into that
was sort of unbelievable to us and I remember being at one of these meetings before the
transfer took place saying the same things I'm going to say today. Aside from the publicly
owned lands, the federal lands and state lands, which are a big chunk of South Florida, the
big bulk of the lands that support the wildlife in South Florida predominantly, southwest
Florida, the western Everglades, what we also call the Amazon of North America, are
privately owned lands, they're ranches, farms, rural properties.

Agency Response: Implementation of any specific State section 404 program is
outside of the scope of this rulemaking.

2.5 Other general comments on the proposed rule

Individual commenter (EPA-HO-OW-2020-0276-0058-00Q2N)

Any changes to the regulations must account for a State's or Tribe's financial ability to run
the 404 program, will continue to consult the public and tribes, have similar transparency
to the EPA and ACoE, and ensure all obligations and laws will be followed.

Agency Response: See Section IV.B.3 of the final rule preamble for discussion of the
requirements regarding funding and staffing for assumption and administration of a
Tribal or State 404 program. See also Section IV.B.3 of the final rule preamble for
discussion of Tribal and State section 404 program compliance with the section
404(b)(1) Guidelines.

Tulalip Tribes at Ouil Ceda Village (EPA-HQ-OW-2020-0276-TRANS-083023-002-000n
Comment 1

A fourth attendee requested through the chat the full title of the proposed rule and a link
to it. She also sent through the chat the link to the main cwa404g website.

Agency Response: The following link to the main \ \l \ * -turn 404 State and Tribal
Programs web page was provided.

Tulalip Tribes at Ouil Ceda Village (EPA-HO-OW-2020-0276-TRANS-083023-002-00Q3N)
COMMENT 3

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The attendee said that a written comment may better illustrate the problem as she sees it.

Agency Response: EPA encouraged submittal of written comments to the docket for
this rulemaking.

2.6 Other comments on permit requirements

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-3-0Q15N)

- EPA Rules Must Ensure Advance Public Information, Notice, and Comment Equivalent
to NEPA.

Sixth, an important guarantee for tribes and all citizens in the 404 permitting by the
Corps is that NEPA requires full public disclosure of information about environmental
impacts and a full discussion of less-environmentally damaging alternatives, mitigation
options, and environmental justice and tribal resources impacts, with an opportunity for
the public to submit comments and information, prior to issuance of a proposed permit.
This allows the permitting agency and public to fully understand a project's implications
and ways to avoid environmental and tribal resource harms. Those important public,
community, and environmental protections should not be lost or degraded simply
because a state, as opposed the Corps, is issuing the 404 permit. Many states have a
state-based version of NEPA, but other states do not (e.g. Oregon and Alaska). Even
when a state has a version of NEPA protections, those protections and implementation of
the statute can vary widely state by state.

EPA's rules should provide that for states without their own NEPA-equivalent
environmental review protections, the state assumption application package submitted to
EPA must provide for NEPA-equivalent protections (or better) within 404 permitting, for
full disclosure of information regarding all environmental impacts and alternatives,
mitigation analysis, and environmental justice and tribal resources impacts with full
advance opportunity for public comment, before a proposed permit is issued. Without
these equivalent protections, a state's permitting program will not provide the same level
of environmental and public process protection as the Clean Water Act and therefore the
state's assumption of the permitting program should be denied.

Agency Response: This rule is intended to implement CWA requirements for
program assumption. Establishing a NEPA-like process at the Tribal or State level
is outside of the scope of this rulemaking, but EPA recognizes that some Tribes and
States may have similar processes. Additionally, while the processes in NEPA only
apply to federal actions, the 404(b)(1) Guidelines ensure a comprehensive
consideration of impacts to aquatic features, and of alternatives. By ensuring that
Tribes and States are able to comply with these Guidelines, EPA can achieve many
of the goals of disclosure and analysis of environmental impacts and alternatives
that the commenter identifies. See Section IV.A.2 of the final rule preamble for a
discussion of Tribal and State section 404 program compliance with the 404(b)(1)
Guidelines and the Agency's Response to Comment EPA-HQ-OW-2020-0276-0068-
0002.

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Earthiustice (EPA-HO-OW-2020-0276-0068-SD-3-00Q5N)

For NEPA protections, as EPA is aware, not all states have their own version of NEPA
(and even where a state does have a state-level NEPA statute, state application and
enforcement of its requirements is inconsistent) [Footnote 3: According to the Council on
Environmental Quality, only 16 states (plus District of Columbia and Puerto Rico) have
their own NEPA-type statutes: https://ceq.doe.gov/laws- regulations/states.html.]. An
important tool for tribes (and all citizens) to protect their interests and concerns is
through the public notice, comment, and full information and analysis under NEPA.
Where a state does not have equivalent NEPA public engagement and information
protections (as in Florida, Oregon, Nebraska, or Alaska), delegation of section 404
permitting to that state will degrade the rights of tribes and others to obtain full notice,
information, and ability to participate in the process of shaping a project such that a
state's decisions protect tribes' rights and minimizes harm to the environment. The
inconsistent state laws and implementation will also, absent EPA regulation as proposed
below, create a patchwork of protections and inconsistencies in permitting across the
U.S., depending upon which state a tribe or citizen is lucky (or unlucky) enough to be in.
A consistent set of requirements from EPA regarding assumption will help alleviate
those inconsistencies and increase protections.

Agency Response: This rule is intended to implement CWA requirements for
program assumption. See the Agency's Response to Comment EPA-HQ-OW-2020-
0276-0068-SD-3-0015.

National Tribal Water Council (NTWC) (EPA-HO-OW-2020-0276-0074-SD-0Q13)

- "Joint" permitting processes such as the MDEQ/ACE process muddy the waters
regarding proper jurisdiction. The officials involved become accustomed to their
customary practices and neglect to adjust them for different circumstances. In future
assumptions of authority, tribes strongly recommend against such joint permitting
processes to avoid inappropriate treatment of tribal lands and waters.

Agency Response: See Section IV.A.2 of the final rule preamble for a discussion of
ensuring Tribal engagement in the section 404 permitting process.

3. General comments on Tribal or State assumption

3.1 General support for Tribal or State assumption

State of Utah. Public Lands Policy Coordinating Office (EPA-HO-OW-2020-0276-0056-0002)
Assuming adequate staffing and funding, state agencies are in the best position to make
management decisions as it relates to waters within the state. This is due to the state
agencies' proximity to and persistent work in the waters within the state's borders. Nobody
understands the water situation in Utah better than our state employees tasked with
managing the resource. Utah's Division of Water Quality does an excellent job of
safeguarding and improving Utah's water through balanced regulation.

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Agency Response: EPA acknowledges this comment and believes the final rule
provides flexibility for Tribes or States to administer a program consistent with the
Act while meeting their individual resource needs.

Florida Department of Environmental Protection (FDEP) (EPA-HQ-QW-2020-0276-0066-0001)
Reflecting the Constitution's recognition of the preeminent role of state governments in
most areas of law and policy, [Footnote 1: "The powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people." U.S. CONST, amend. X.] Congress expressly preserved
for States the "primary responsibilities and rights" to address water resources pollution,
stating: "It is the policy of Congress that the States . . . implement the permit programs
under section [404 of the CWA]" 33

U.S.C. § 1251(b). To that end, Section 404 invites States to seek EPA's approval to
administer state-level permit programs in place of the federal permit program. Id. §§
1342(b), 1344(g). Over 40 States have obtained approval to administer state programs
under Section 402 of the CWA, while only three States—Michigan, New Jersey, and most
recently, Florida—have assumed responsibility for administering their own Section 404
programs. Clearly, there is a need to better facilitate and support state 404 assumption.

While Section 404 assumption reflects the CWA's cooperative federalism framework and
promotes the shared responsibility of state and federal agencies in conservation of water
resources, the implementation of the 404 program has not yet achieved Congress's original
vision for how this program would operate. More can and should be done to help facilitate
state 404 assumption in a manner consistent with the plain text of the Act. For that reason,
Florida appreciates EPA's attention to this important issue.

Agency Response: EPA acknowledges the commenter's support for aspects of this
rulemaking.

Florida Department of Environmental Protection (FDEP) (EPA-HQ-OW-2020-0276-0066-0002)
Accordingly, Florida supports efforts to streamline assumption of the 404 program and
promote cooperative federalism. As demonstrated by Florida's successful implementation
of the 404 program, state assumed programs can streamline the 404 permitting procedures
and offer opportunities for faster permit processing time, development of state-specific
general permits, reduced duplication of application materials, increased consistency in
permit decisions, application of local knowledge, and a single point of contact for
permitting decisions.

Agency Response: EPA acknowledges the commenter's support for aspects of this
rulemaking.

National Tribal Water Council (NTWC) (EPA-HO-OW-2020-0276-0074-SD-00Q1)

The NTWC embraces Congress' delegation to tribes to develop and implement CWA
programs for their reservations. CWA § 518(e), 33 U.S.C. § 1377(e); 81 Fed. Reg. 30183
(2016) (EPA Revised Interpretation of Clean Water Act Tribal Provision). There is no
doubt that tribes, the aboriginal managers of their waters, are the ones most familiar with
their aquatic resources, issues and needs. EPA's support for tribal assumption of the CWA

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§ 404 dredge and fill permit program addresses one aspect of this congressional delegation
and is welcomed by NTWC.

Agency Response: EPA acknowledges the commenter's support for aspects of this
rulemaking.

National Tribal Water Council (NTWC) (EPA-HO-OW-2020-0276-0074-SD-00Q2)

A tribally run CWA § 404 program can reduce delays and save money for permit
applicants. It can allow the tribe to streamline the process, reduce unnecessary paperwork
and, by providing opportunities for early input and discussion, avoid potential conflicts
between tribes, states and the federal government regarding permit decisions. More
importantly, it puts the tribe in charge of protecting its own valued aquatic ecosystems as
well as the traditional services that those systems provide. Tribes also having the most
knowledge about their own water resources, are better able than the federal government to
foresee potential adverse effects from a proposed dredge and fill project and to propose
mitigation measures. The current permit process does not afford tribes adequate review
and does not provide compensation adequate for loss or for mitigation efforts. It also often
does nothing more than identify concerns with a proposed permit, without actually
resolving them. For these reasons, if the need for resources were not a consideration, many
tribes would be interested in developing their own CWA § 404 programs.

Agency Response: EPA acknowledges the comment and the resource limitations
faced by many Tribes.

National Association of Home Builders (NAHm (EPA-HO-OW-2020-0276-0077-00Q2N)

State assumption can provide many benefits, including increased program efficiency,
improved integration with other state resources programs and increased regulatory
program stability [Footnote 5: Association of State Wetland Managers. Nov. 2010. "Clean
Water Act Section 404 State Assumption." Available at
https://www.aswm.org/pdf_lib/cwa_section_404_state_assumption_factsheets.pdf
(October 19, 2020).].

Agency Response: EPA acknowledges the comment.

Great Lakes Indian Fish and Wildlife Commission (EPA-HO-OW-2020-0276-0080-00Q1)

GLIFWC's governing Board of Commissioners (Board) consistently supports laws and
policies that provide for the protection and restoration of water resources. The Board also
supports tribal assertions of regulatory authority over reservation lands and waters,
including assumption of various programs under the Clean Water Act, including Section
404. A number of GLIFWC's member tribes have assumed "treatment as a state" status
under the Clean Water Act, have adopted water quality standards, and issue certifications
pursuant to Section 401.

Agency Response: EPA acknowledges the comment.

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National Tribal Water Council (NTWC) (EPA-HO-OW-2020-0276-0074-SD-00Q1)

Agency Response: EPA acknowledges the commenter's support for this rulemaking.

National Tribal Water Council (NTWC) (EPA-HO-OW-2020-0276-0074-SD-00Q2)

A tribally run CWA § 404 program can reduce delays and save money for permit
applicants. It can allow the tribe to streamline the process, reduce unnecessary paperwork
and, by providing opportunities for early input and discussion, avoid potential conflicts
between tribes, states and the federal government regarding permit decisions. More
importantly it puts the tribe in charge of protecting its own valued aquatic ecosystems as
well as the traditional services that those systems provide. Tribes also having the most
knowledge about their own water resources, are better able than the federal government to
foresee potential adverse effects from a proposed dredge and fill project and to propose
mitigation measures. The current permit process does not afford tribes adequate review
and does not provide compensation adequate for loss or for mitigation efforts. It also often
does nothing more than identify concerns with a proposed permit, without actually
resolving them. For these reasons, if the need for resources were not a consideration, many
tribes would be interested in developing their own CWA § 404 programs.

Agency Response: EPA acknowledges this comment.

3.2 General opposition for Tribal or State assumption

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0003)

In addition, a Corps-issued Section 404 permit includes substantive and procedural
protections under the National Environmental Policy Act (NEPA), the Endangered Species
Act (ESA), the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and
the National Historic Preservation Act (NHPA). When a state assumes the responsibility
to approve or deny dredge and fill permits then there is no federal action to trigger these
federal laws and their implementing regulations. See Menominee Indian Tribe of
Wisconsin v. EPA, 947 F.3d 1065, 1068 (7th Cir. 2020).

Agency Response: EPA acknowledges this comment.

Yukon River Inter-Tribal Watershed Council (EPA-HO-QW-2020-0276-0063-0004)

A state agency reviewing a Section 404 permit application need not act in the best interests
of an affected tribe, or even to identify tribes whose interests may be affected. And while
many states have adopted tribal consultation policies, the Alaska legislature only
recognized tribes as governments last year and typically fails to engage in government-to-
government consultation with tribes.

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Agency Response: EPA acknowledges this comment. See Section IV.F of the final rule
preamble for discussion regarding opportunities for Tribes to engage in section 404
permits issued by Tribes and States.

Region 10 Tribal Operations Committee (RTOC) and National Tribal Water Council (NTWC)

(EPA-HO-OW-2020-0276-0070-00Q1 )

The RTOC and NTWC are primarily concerned about the level of protections for Tribal
water resources being compromised through State adoption of CWA section 404
programs. Because State adoption may exempt the administering agency from Federal
obligations, such as consultation with Tribes, the National Historic Preservation Act, or
the National Environmental Policy Act, facilitating more State 404 programs could
compromise Tribal protections.

Agency Response: See Sections IV.A.2, IV.A.3 and IV.F of the final rule preamble for
discussion regarding statutory consultation requirements and opportunities for
Tribes to engage in the section 404 permitting process following Tribal or State
assumption.

Great Lakes Indian Fish and Wildlife Commission (EPA-HO-OW-2020-0276-0080-00Q3)

The Army Corps' issuance of a permit to discharge dredged or fill material into waters of
the United States under CWA Section 404 is a federal action that affords potentially
affected tribes the right to consultation. In addition, a Corps-issued Section 404 permit
includes substantive and procedural protections under the National Environmental Policy
Act (NEPA), the Endangered Species Act (ESA), and the National Historic Preservation
Act (NHPA). When a state assumes the responsibility to approve or deny dredge and fill
permits then there is no federal action to trigger these federal regulatory processes. See
Menominee Indian Tribe of Wisconsin v. EPA, 947 F.3d 1065, 1068 (7th Cir. 2020).

More specifically, a state agency reviewing a Section 404 permit application is not
obligated to act in the best interests of an affected tribe. While its actions may be
constrained by the existence of a court-affirmed treaty right, it is not the treaty signatory
and does not hold tribal trust responsibilities. While the states in which GLIFWC operates
have adopted tribal consultation policies, consultation does not guarantee that the outcome
of that process will protect treaty resources.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0070-0001. Nothing in this rulemaking affects EPA's obligations to protect Tribal
treaty rights.

Chickaloon Native Village (CNV) (EPA-HO-QW-2020-0276-0085-0011)

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federal laws and their implementing regulations. See Menominee Indian Tribe of
Wisconsin v. EPA, 947 F.3d 1065, 1068 (7th Cir. 2020).

A state agency reviewing a Section 404 permit application need not act in the best interests
of an affected Tribe, or even to identify Tribes whose interests may be affected.

Agency Response: See Sections IV.A.2 and IV.A.3 of the final rule preamble for
discussion regarding consistency with other Acts.

Alaska Clean Water Advocacy et al. (EPA-HQ-OW-2020-0276-0086-0003)

States have struggled to implement (and there are those like Alaska that actively resist)
their Clean Water Act responsibilities to set standards, assess water quality, and issue and
enforce permits to limit pollutants. These struggles are only compounded when programs
such as Section 402 and 404 are assumed by states. With the federal government, the public
has the opportunity to comment and participate in the process of promulgating regulations
and rules, being able to raise concerns about what may be an oversight in the process.
Those opportunities are largely lost with a state like Alaska, which, for example, lacks a
parallel state environmental policy act.

Agency Response: See Sections IV.B.2, IV.C.l, IV.C.2, IV.E.2, and IV.F of the final
rule preamble and 40 CFR 233 subparts C through E of the regulations regarding
opportunities for public comment regarding Tribal and State section 404 permits.

Earthiustice (EPA-HO-OW-2020-0276-TRANS-Q92923-001-0003)

EPA must ensure that it holds the line and protects our Nation's waters and wetlands. The
act exists because states were not properly protecting their waterways. Congress enacted
stringent workforce assumption requirements to make sure that federal protections were
not undermined by states that lack the capacity, the expertise, and the rigor to administer
404 and compliance of federal standards. An inadequate 404 Assumption rule will take us
backward. EPA cannot abdicate its responsibilities to communities and ecosystems around
the country in the name of federalism. It should not be complicit in ill-advised state efforts
to assume the 404 program.

Agency Response: EPA acknowledges the comment and agrees Tribes and States
must meet and maintain the minimum requirements set out by the Act and
regulations to assume and administer a section 404 program. See Section IV.A.3 of
the final rule preamble for further discussion.

Responsible Growth Management Coalition (EPA-HO-OW-2020-0276-TRANS-092923-0Q7-
0009)

Number two, hopefully you can find it in your budget to visit states like Florida and Alaska
that have critical issues centering on wetlands protections, or lack thereof, and endangered
species protections and lack thereof.

Agency Response: EPA acknowledges the comment. Approval and implementation
of any particular Tribal or State program is outside of the scope of this rulemaking.

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EPA acknowledges the value of understanding a State's particular circumstances
when approving and overseeing Tribal and State programs, however.

Natural Resources Defense Council (EPA-HO-OW-2020-0276-TRANS-092923-008-00Q3N)

First, it's important that the Federal Government not forgo protection of those waters the
Clean Water Act directs and the Army Corps of Engineers to retain jurisdiction over.

Agency Response: The final rule is consistent with the CWA and the Corps retains
permitting over certain waters as described in the Act.

Chickaloon Native Village (EPA-HO-OW-2020-0276-TRANS-092923-009-00Q2N)

We are particularly concerned about the potential for state primacy to reduce the
protections of the Endangered Species Act, the National Environmental Protection Policy
Act, and the National Historic Preservation Act.

Agency Response: Nothing in this rulemaking affects EPA's obligations to protect
Tribal treaty rights.

South Florida Wildlands Association (EPA-HO-OW-2020-0276-TRANS-092923-010-00Q3N)

There is no federal connection with those lands, therefore all of the federal laws that used
to come into play when we needed a federal permit, meaning a permit issued by the Army
Corps of Engineers, don't apply to these Florida DEP state permits. That's a state permit,
it doesn't trigger the Endangered Species Act in the same way. It definitely doesn't trigger
the National Environmental Policy Act, or NEPA. It doesn't trigger the National Historic
Preservation Act, which also applies to Native Tribal resources which are extensive in
Florida, and it doesn't apply to the Administrative Procedures Act. These acts that were
created years and years ago that have gone through decades of federal litigation to clarify
their meaning and application were tossed. So, as we're discussing how to make this better,
how do you make it better? How do you maintain what you're referring to the same level
of federal protection when you've tossed out the federal laws, essentially the federal laws
that provide that protection. Do you expect Florida to come up with its own version of
NEPA? This Florida Legislature is going to do that?

Agency Response: EPA acknowledges the comment. See Section IV.A.2 of the final
rule preamble.

South Florida Wildlands Association (EPA-HO-OW-2020-0276-TRANS-092923-010-00Q4N)

I would suggest, I'm not sure how much time I have because I'm looking at my notes, but
I would suggest that as part of your review process you come down to Florida and view
what some of the people from the state who are experiencing this 404 transfer are going
through. Drive along Oil Well Road, Alico Road, and Mckinley Road. See the devastation
happening to one of the most biodiverse parts of our country. It's amazing how similar, I
was listening to the speaker from Alaska, and you couldn't find two states further apart
than Florida and Alaska, but I can't help but say, I lived in Alaska for three years, and I
know what that state government is like, and I know how similar it is to Florida state
government. You're transferring authority for wetlands and wildlife protection to states
that have no interest in that topic. They're interested in development as fast as possible,

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and we've seen a great deal of that. So, as you're going through how to improve this
process, really, I don't see how you do it. I think that this process should be tossed. I think
that anybody on this meeting who is not living in one of the states where the authority has
already been assumed by the state, fight it tooth and nail. Fight for those federal protections
that you have right now because you're never going to be able to equal that by the state.
We need to strengthen the federal protections that are there.

Agency Response: See Section IV.A.3 regarding the requirement for Tribal and State
section 404 programs to be no less stringent than the CWA and implementing
regulations. Approval and implementation of any particular Tribal or State program
is outside of the scope of this rulemaking. EPA acknowledges the value of
understanding a State's particular circumstances when approving and overseeing
Tribal and State programs, however.

South Florida Wildlands Association (EPA-HO-OW-lOlO-OlTe-TRANS-OgigiS-OlO-OOOe^)

So, we can't afford this program. I think many states are reeling under the same kinds of
problems, and I think how you fix it, I think you toss it. You toss it, and you don't expect
states to take on the role of a federal process that has been in place for decades, that's been
reviewed by federal courts, and I think there's no way to reproduce it on the state level. I
would say just toss the program, pull the plug on it.

Agency Response: Approval and implementation of any particular Tribal or State
program is outside of the scope of this rulemaking. EPA acknowledges the value of
understanding a State's particular circumstances when approving and overseeing
Tribal and State programs, however.

EarthiusticefEPA-HO-OW-lOlO-OlTe-OOeS-SD-S-OOOl^)

In many instances, state assumption of 404 programs will be outright harmful to tribal and
environmental interests because of a lack of equivalent state protections for various federal
statutes that currently apply. As a result, Earthjustice generally opposes state assumption
of 404 permitting as likely a degradation of rights and protections for many interests
[Footnote 1: Please note that this letter is specific to assumption of404 permitting by states,
not tribes, although it does concern impacts to tribes from a state assuming the program.
Nothing in this letter concerns a tribe assuming 404 permitting for tribal lands.].

Agency Response: EPA acknowledges this comment.

3.3 (\>mments regarding Stales and Tribes not currently administering a 404 program

The Petroleum Alliance of Oklahoma (EPA-HO-OW-2020-0276-0055-0Q0n

Key among them is that provisions of federal law preclude EPA from authorizing
Oklahoma tribes to assume regulatory authority over section 404 programs absent
agreement by the State of Oklahoma.

Agency Response: The scope of an individual Tribal or State program is outside the
scope of this rulemaking. EPA will work with any requesting Tribe or State to ensure
the approved program scope is within their jurisdiction.

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The Petroleum Alliance of Oklahoma (EPA-HO-OW-2020-0276-0055-00Q4N)

I. SAFETEA OF 2005 LIMITS EPA AUTHORITY

It appears that EPA has failed to take into account the unique and complex landscape that
exists in Oklahoma. Section 10211 of SAFETEA [Footnote 2: Pub. L. 109-59, 199 Stat.
1144, 1937 (Aug. 10, 2005).] clarified and streamlined the State of Oklahoma's role in
managing virtually all environmental media within the state's exterior borders. In so doing,
Congress created a regulatory framework that is unique to Oklahoma that EPA is not free
to disregard.

Subsection (a) of Section 10211 provides that if the EPA Administrator has approved
regulatory programs submitted by the State of Oklahoma for implementation of federal
environmental programs in non-Indian country, then upon request of the state, the
Administrator shall approve the State to administer the State programs within certain areas
of Indian country. Significantly, SAFETEA does not provide EPA Administrator
discretion to consider the merits or circumstances of the State request or to impose
conditions on approval; if the state's request falls within the statute's parameters, then the
Administrator must grant the state's request. It is virtually a ministerial task on the
Administrator's part.

On July 22, 2020, the Governor of Oklahoma duly requested approval under Section
10211(a) of SAFETEA to administer in Indian country those environmental programs that
had previously been approved by EPA for application outside Indian country [Footnote 3:
The state did not seek authority over certain excepted lands, including Indian allotments,
lands held in trust by the United States on behalf of individual Indians or a tribe, or certain
lands owned in fee by a tribe.]. In a letter to the Governor dated October 1, 2020, the
Administrator acknowledged that despite its general practice with respect to Indian
country, EPA must apply the statutory mandate embodied by SAFETEA [Footnote 4: The
Administrator's letter to the Governor noted that "to the extent EPA's prior approvals of
these State programs excluded Indian country, any such exceptions are superseded for the
geographic areas of Indian country covered by this approval under SAFETEA."] and grant
the Governor's request. The EPA Administrator's approval applied to all of the State of
Oklahoma's existing EPA-approved regulatory programs, including, but not limited to,
water quality standards and implementation plans [Footnote 5: Section 303, 33 U.S.C. §
1313.] and national pollutant discharge elimination system programs [Footnote 6: Section
402, 33 U.S.C. § 1342.] of the CWA implemented by a range of state agencies.

Agency Response: EPA acknowledges the comment. See the Agency's Response to
Comment EPA-HQ-OW-2020-0276-0055-0001.

The Petroleum Alliance of Oklahoma (EPA-HO-OW-2020-0276-0055-00Q5N)

Subsection (b) of Section 10211 of SAFETEA is even more relevant to understanding the
significant limits on EPA's ability to authorize a tribe or tribes to exercise section 404
authority within the exterior boundaries of the State of Oklahoma. Subsection (b) specifies
that EPA may extend treatment as a state status for purposes of administering
environmental programs to an Oklahoma tribe only if the state voluntarily enters into a

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cooperative agreement with the tribe for treatment as a state and concurrently agrees to
joint administration of an environmental program's requirements. Thus, a Tribe must first
seek treatment as a state before seeking to implement section 404 authority over waters of
the United States in Oklahoma or any other state [Footnote 7: The Tribe also must be
federally recognized.].

Agency Response: EPA acknowledges the comment. See the Agency's Response to
Comment EPA-HQ-OW-2020-0276-0055-0001.

The Petroleum Alliance of Oklahoma (EPA-HO-OW-2020-0276-0055-00Q6N)

Congress clearly articulated its intent in the SAFETEA provision regarding Oklahoma and
EPA may not disregard this law. EPA may not authorize an Oklahoma Tribe to implement
the provisions of section 404 of the Clean Water Act absent the state's assent to such an
authorization [Footnote 8: On December 22, 2021, EPA proposed to withdraw and
reconsider its earlier decision approving the Governor of Oklahoma's request to extend
approval of the state's EPA-approved environmental regulatory programs to certain areas
of Indian country within the State of Oklahoma, https://www.epa.gov/ok/proposed-
withdrawal-and-reconsideration- and-supporting-information (last visited September 7,
2023). EPA acknowledged the State's request was made pursuant to Section 10211(a) of
SAFETEA. EPA stated it sought greater consultation with affected tribes and the need to
review implementation of EPA programs by the State of Oklahoma.
https://www.epa.gov/system/files/documents/2021-12/notice-of-proposed-withdrawal-
and-reconsideration_0.pdf (last visited July 19, 2022). In a comment letter dated January
31, 2022, the State of Oklahoma forcefully rebutted the EPA's authority to reconsider or
withdraw the Administrator's earlier decision to approve the state's request to extend
approval of the state's EPA-approved environmental regulatory programs into certain
areas of Indian country within the state. See
https://www.epa.gov/system/files/documents/2022-02/state-of-oklahoma-comment.pdf.
EPA has taken no action since announcing its intent to reconsider the decision extending
approval of the state's EPA-approved regulatory programs to certain areas of Indian
country within the State of Oklahoma.]. EPA should revise its proposal to take into account
the limits on its statutory authority to empower an Oklahoma Tribe to assume
responsibility for implementing section 404 of the Clean Water Act.

Agency Response: EPA acknowledges the comment. See the Agency's Response to
Comment EPA-HQ-OW-2020-0276-0055-0001.

The Petroleum Alliance of Oklahoma (EPA-HO-OW-2020-0276-0055-00Q9N)

Second, it is important for EPA to acknowledge there are 39 tribes, including 38 federally
recognized tribes, in Oklahoma. Some tribes are situated upstream of others, while of
course other tribes are situated downstream from both other states and other Tribes. It is
possible, even likely, that different entities would reach different conclusions about
whether a permit should be granted and under what conditions. The Alliance is very
concerned that such a situation is likely to arise if EPA were to grant numerous entities
404 authority. Our concern is amplified by the number of potential applicants to assume
administration of the section 404 program.

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Agency Response: EPA acknowledges the comment and seeks to work with all Tribes
and States interested in assuming the program. See EPA Policy on Consultation with
Indian Tribes and 40 CFR 233.60.

Yukon River Inter-Tribal Watershed Council (EPA-HO-OW-2020-0276-0063-0Q14>)

In addition, EPA's proposed rule does not address how the state of Alaska would
coordinate with federal land managers on subsistence issues under the Alaska National
Interest Lands Conservation Act (ANILCA). More than in any other state, tribes in Alaska
rely heavily on subsistence resources, including on federal public lands [Footnote 3: U.S.
Congressional Research Service. Subsistence Uses of Resources in Alaska: An Overview
of Federal Management (R47511; April 20, 2023), by Mark K. DeSantis and Erin H. Ward,
https://crsreports.congress.gOv/product/pdf/R/R47511/3.]. The state of Alaska has
consistently taken positions hostile to Alaska Native subsistence uses and resources under
ANILCA. Issues related to subsistence hunting, fishing and gathering in Alaska have long
been complex and contentious. Adding further jurisdictional and regulatory uncertainty
with regard to wetland regulation is sure to cause additional issues, particularly at the
expense of Alaska Native tribes and citizens.

Finally, Alaska's Public Records Act is not comparable to the federal Freedom of
Information Act (FOIA). Alaska's Public Records act deviates from FOIA in fundamental
ways that put the public at a significantly greater disadvantage than FOIA. For example,
under the Alaska public Records Act, there are greater costs involved because fee waivers
are limited to $500 per year per requester; agencies are allowed to demand advance
payment with no limitation; there is no provision for expediting requests; there are no
consequences for an agency's failure to timely provide information; there are no
consequences for a public official who obstructs the disclosure of public records; and a
prevailing litigant under Alaska's Public Records Act would not be able to fully recover
attorneys' fees incurred. In short, obtaining information related to a proposed dredge and
fill permit under Alaska's state requirements will be much more difficult and costly than
it would be under FOIA, and there will be limited recourse if Alaska state officials fail to
comply with public disclosure requirements.

Agency Response: EPA acknowledges the commenter's concerns regarding
consistency with the CWA impacts on compliance with other Acts. The consistency
of particular Tribe or State programs with the requirements of the CWA or the final
rule is outside the scope of this rule. EPA is willing to work with any prospective
Tribal or State CWA section 404 program to ensure it complies with the CWA and
this rule. In addition, following receipt of a proposed section 404 program, EPA will
seek public comment and input from federal agencies and work with Tribes and
States to ensure any approved program is consistent with the CWA.

Yukon River Inter-Tribal Watershed Council (EPA-HO-OW-2020-0276-0063-0Q26)

EPA's proposed regulations specifically state that "the Corps will continue to administer
the [Section 404] program in Indian country unless EPA determines that a state has
authority to regulate discharges into waters in Indian country and approves the State to
assume the section 404 program over such discharges." Id. at 55285.

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This year, Alaska filed suit against the Bureau of Indian Affairs for granting a tribal land-
into-trust application in Alaska. In its complaint, Alaska alleges that the Alaska Native
Claims Settlement Act prevents the Department of Interior from taking land into trust on
behalf of Alaska Native tribes, and that tribal trust land in Alaska, other than the lands
reserved to the Metlakatla Indian Community, threatens Alaska's sovereignty [Footnote 4:
Complaint at 1-2, Alaska v. Newland, Case No. 3:23-cv-00007, (D. Alaska filed Jan. 17,
2023), https://law.alaska.gOv/pdf/press/230117-Complaint.pdf.J.4 The litigation will take
some time to resolve, and leaves open significant questions and uncertainties about federal,
state and tribal jurisdiction in Alaska. If Alaska seeks to assume authority to implement a
Section 404 permitting authority, the issue of whether, where and to what extent the state
may seek regulatory authority over tribal trust lands and waters must be addressed and
resolved in coordination and consultation with Alaska Native tribes.

Agency Response: As recognized in EPA's regulations, in many cases, States lack
authority under the CWA to regulate activities covered by the section 404 program
in Indian country. See 40 CFR 233.1(b). Thus, the Corps will continue to administer
the program in Indian country unless it is determined that a State has authority to
regulate discharges into waters in Indian country and EPA approves the State to
assume the section 404 program discharges into such waters. When reviewing
requests to assume the section 404 program, the EPA seeks public input and will work
affected States or Tribes, including engaging in Tribal consultation on the Agency's
decision to approve or deny the request. See the Agency's Response to Comment
EPA-HQ-OW-2020-0276-0063-0014.

Yukon River Inter-Tribal Watershed Council (EPA-HQ-OW-2020-0276-0063-0029)

The YRITWC have concerns about Alaska's ability to assume permitting authority due to
possible funding constraints. We understand that the implementation of Section 404
permitting programs can be an expensive endeavor if done correctly. A permitting program
that complies with the CWA requires staff to review permit applications holistically, as
well as staff to review technical details, and to understand topics like wetland delineation
and impacts. Staff must also comply with the Section 404(b)(1) Guidelines and other
federal requirements. Earlier this year, Alaska Department of Environmental Conservation
(DEC) sought five million dollars for annual funding for assumption of the Section 404
permitting program. This is significantly less than the approximately eight million dollars
the Corps currently spends to administer its wetlands permitting program in Alaska, and
less than half of what Michigan, Florida and New Jersey each spend to administer their
Section 404 programs [Footnote 5: See Jade North, LLC, Clean Water Act Section 404
Dredge and Fill Program Assumption: Feasibility report at 5 (Jan. 25, 2023) ("Michigan's
budget for its 404 Program is $12.3 million and includes 82 staff in 10 offices."); id. ("New
Jersey's budget for its 404 Program is $14.5 million and includes 176 staff"); id.
("Florida's budget for its 404 Program is $11.3 million and includes 170 staff").].

Agency Response: Funding for section 404 programs is outside the scope of this final
rule. See Section IV.B.3 of the final rule preamble for discussion regarding what must
be included in a program description.

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Earthiustice et al. (EPA-HO-OW-2020-0276-0068-001QN)

Alaska's approach to the Clean Water Act is just one of many reasons why allowing the
State to assume the 404 program would be disastrous for the state's waters and the people
who rely on them. Alaska still has yet to successfully implement the Clean Water Act
Section 402 permitting program that EPA delegated to the state fifteen years ago [Footnote
59: EPA News Release, EPA Authorizes the State of Alaska to Assume Water Quality
Permitting Authority (Oct. 31, 2008).] Even though Alaska's wetlands are largely pristine
and high quality, the State still has no process for designating Tier 3 outstanding national
resource waters [Footnote 60: See, e.g., ADEC, Division of Water, Outstanding National
Resource Water Fact Sheet (Apr. 1, 2017) ("The State is in the process of developing
implementation methods, and these methods once developed, will specify who will
designate Tier 3 waters.").] Alaska has no environmental review law similar to NEPA, and
no wetlands permitting program. Its public records act is more costly to utilize and more
difficult to enforce than the federal Freedom of Information Act. Alaska chills public
participation in state permitting processes by applying a "loser pays" rule in state court
that has no exception for public interest litigants. And, Alaska does not engage in anything
like government-to-government consultation with Tribal governments, treating them
instead as mere members of the public during permitting processes. Combined, these facts
about Alaska law and its government paint a bleak picture for wetland protection should
the State ever succeed in assuming the 404 program.

EPA should carefully consider the various ways that Alaska's assumption of the 404
program would jeopardize Clean Water Act protections for the majority of the Nation's
wetlands, and should specifically prohibit them in the final rule.

Agency Response: See Sections IV.A through IV.E in the final rule preamble for
discussion on the clarifications and provisions of the final rule added to ensure
programs are administered consistent with, and no less stringent than, the
requirements of the CWA section 404 and its implementing regulations. The scope of
any particular prospective Tribal or State program is outside the scope of this
rulemaking. Consistency of an individual Tribal or State program will be reviewed
for consistency with the CWA at the time the request is submitted to EPA.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-00Q9N)

Although the initiative lacks funding at this time, Alaska has taken several steps toward
attempting to assume the 404 program, [Footnote 55: See AS 46.03.020(14) (authorizing
the Department of Environmental Conservation to "notwithstanding any other provision
of law, take all actions necessary to receive federal authorization of a state program ... to
administer and enforce a dredge and fill permitting program allowed under [Clean Water
Act Section 404] and to implement the program, if authorized"); Alaska Department of
Environmental Conservation (ADEC), Section 404 Dredge and Fill Program: Frequently
Asked Questions at 5 (Apr. 18, 2023) ("[AS 46.03.020(14)] has been in place since 2013
and it is beyond time to fund that effort and move the application and approval process
along."); ADEC, 404 Assumption Cheat Sheet at 2 (Jan. 1, 2023) (noting that in the FY
2023 budget, the Alaska legislature appropriated $1 million for a feasibility study on 404
program assumption); Jade North, LLC, Clean Water Act Section 404 Dredge and Fill

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Program Assumption: Feasibility Report (Jan. 25, 2023).] and its environmental agency
continues to advocate for funding with the state's legislature [Footnote 56: ADEC, 2023
Dredge and Fill Permitting Program Legislative Engagement.]. This is concerning because
Alaska is home to the majority of the nation's wetlands—more than all other states
combined—and its views on the Clean Water Act are openly hostile. In its recent motion
before the United States Supreme Court, for example, Alaska seeks to vacate EPA's action
to prohibit the Pebble mine under Clean Water Act Section 404(c) [Footnote 57: Mot. for
Leave to File Bill of Compl., State of Alaska v. US, No. 220175, at 40 (U.S. July 28,
2023)]. It argues among other things that even if EPA's action is a valid application of the
Clean Water Act, it is an unconstitutional taking of the state's property [Footnote 58: Id.
at 33,1J155.]. In other words, Alaska's position is that even if a discharge within the state's
borders would violate the Clean Water Act and cause unacceptable adverse effects on
waters of the United States, EPA cannot prohibit that discharge.

Agency Response: EPA acknowledges the comment. The scope of any particular
prospective Tribal or State program is outside the scope of this rulemaking.
Consistency of a Tribal or State program with the CWA will be reviewed at the time
the request is submitted to EPA.

Port Gamble S'Klallam Tribe (PGSTI (EPA-HQ-OW-2020-0276-0078-000n

I.The waters and wetlands within the Port Gamble S'Klallam Tribe's Usual and
Accustomed areas and other areas in which it reserved rights by Treaty are of exceptional
importance to the Tribe, Section 404 permitted- activities are prohibited from interfering
with the Tribe's treaty rights in these areas, and Section 404 permitting in them should
continue to be regulated by the Federal trustee rather than a state agency.

The Port Gamble S'Klallam Tribe is a fishing tribe. Since time immemorial, fishing has
been the foundation on which the Port Gamble S'Klallam Tribe's culture, economy, and
ceremonial life was based. In 1855, when the Port Gamble S'Klallam Tribe entered the
Treaty of Point No Point, 12 Stat. 933, with the United States, sacred promises were made
between sovereign nations. The Port Gamble S'Klallam Tribe and others ceded hundreds
of thousands of acres of their homelands, while reserving certain rights to themselves.
Chief among the rights reserved—and persistently defended by the Tribe—is the right to
continue taking fish and shellfish as they always had throughout their usual and
accustomed fishing grounds (U&A) and to continue to hunt and gather on open and
unclaimed lands. Article 4 of the Treaty of Point No Point states:

The right of taking fish at usual and accustomed grounds and stations is further secured to
said Indians, in common with all citizens of the United States; and of erecting temporary
houses for the purpose of curing; together with the privilege of hunting and gathering roots
and berries on open and unclaimed lands.

Agency Response: Nothing in this rule affects a Tribes' treaty or reserved rights. This
rule clarifies opportunities for Tribes to provide input on permits and seek EPA
review of draft permits that the Tribe views as affecting their rights and interests.
When Tribes seek EPA review of such draft permits, EPA will review to ensure the

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permits are consistent with the section 404(b)(1) Guidelines which includes
consideration of human use. See Section IV.B of the final rule preamble regarding
compliance with the CWA section 404(b)(1) Guidelines. See also Section IV.F of the
final rule preamble for further discussion on Tribal opportunities to meaningfully
engage in the permitting process of Tribes and States that have assumed the section
404 program.

Port Gamble S'Klallam Tribe (PGSTI (EPA-HO-OW-2020-0276-0078-00Q2N)

With this treaty language, the Port Gamble S'Klallam Tribe, like other Treaty Tribes in
Western Washington, reserved fundamental rights that they had exercised since time
immemorial. The Treaty was intended to allow the Tribe and its citizens to continue their
way of life in the face of white settlement, both at that time and in perpetuity, in large part
by continuing robust tribal harvest of fish in off-reservation marine waters and freshwater
rivers and lakes and hunting and gathering on open and unclaimed lands. And in addition
to extinguishing tribal land claims to pave the way for orderly non-native settlement, the
treaty-makers' recognition of these reserved rights secured for the United States, as
instructed by their superiors in Washington, D.C., the crucial practical benefit of not
having to pay for the Indians' perpetual subsistence.

To this day, fish remain of central importance to the Port Gamble S'Klallam Tribe's
culture, economy, ceremonies, and diets. More than 150 Port Gamble tribal members
continue to earn all or a portion of their livelihood working as commercial salmon and
shellfish fishers, and a 2020 survey shows 300 subsistence tribal fishers continuing to
provide food for themselves and their families. In addition, the Tribe conducts fisheries
throughout the shared U&A to obtain fish for ceremonial use (including funerals,
weddings, and honoring and gifting observances, as well as other ceremonies and
practices), and subsistence harvests from the U&A are a key element of the diet of many
tribal members. See United States v. Washington, 459 F. Supp. 1020, 1039 (W.D. Wash.
1978); United States v. Washington, 626 F. Supp. 1405, 1434,1442, 1486 (W.D. Wash.
1985) (describing the usual and accustomed fishing grounds of the Port Gamble Klallam
Tribe). Likewise, hunting and gathering continues to be a critical aspect of the tribal
economy and culture.

However, despite the promises made by Treaty, the Tribe's way of life is now severely
threatened. Rivers, streams, bays, straits, lakes, and wetlands throughout the Tribe's off-
reservation usual and accustomed fishing grounds and the open and unclaimed lands in
which they reserved these fundamental rights have been modified in manners detrimental
to the fish, shellfish, game, and plant species upon which the Tribe depends, including
through bank armoring and other stabilization projects, the fill of wetlands, and many other
dredge and fill activities. Salmon populations are in a precarious position and forage fish
are consistently declining due to widespread habitat modification. Tribal members
likewise face significant hurdles to access, including physical access and the ability to use
traditional fishing methods, as a result of in-water structures, such as piers, docks, and
mooring buoys. Each of these impediments to fishing, or at least those constructed or
repaired since the Clean Water Act's Section 404 program came into being, requires a 404
permit. But in waters in which the Tribe reserved, through Treaty, the right to continue

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fishing as they had since time immemorial, tribal members should not be—and never
should have been—subjected to such fish shortages or access challenges.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0078-0001.

Port Gamble S'Klallam Tribe (PGSTI (EPA-HO-OW-2020-0276-0078-00Q5N)

Integrating consideration of tribal treaty and reserved rights into agency decision-making
and regulatory processes is consistent with the federal government's trust responsibility to
federally recognized tribes and to fundamental principles of good government. Treaties
themselves are the source of legal authority to ensure that agency processes account for
reserved treaty rights.

Treaty Rights MOU, available at https://www.doi.gov/sites/doi.gov/files/interagency-
mou- protecting-tribal-treaty-and-reserved-rights-11 -15-2021 .pdf.

The United States and its agencies must keep these bedrock principles in mind while
administering statutes affecting the Treaty-protected resource, including the Clean Water
Act. In recent years, it has done a better job of this in many Section 404 permitting
processes in the Puget Sound area. However, this rulemaking threatens to rollback that
progress if it would surrender federal Section 404 permitting to the State of Washington
in any tribal U&A or other areas in which the Tribe reserved usufructuary rights by Treaty.
The Treaty Tribes—along with the United States—have had to sue the State of Washington
on many occasions to protect their Treaty rights from State action. That same State—while
its leadership may be well-intentioned towards Tribes and their rights at times—should
not be afforded Section 404 permitting authority in waters critical to Treaty rights.
Consequently, EPA and the Corps should retain full Federal control over the Section 404
program throughout waters within the Treaty Tribes' Usual and Accustomed areas and
open and unclaimed lands in western Washington.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0078-0001.

Center for Biological Diversity (EPA-HO-OW-2020-0276-0083-0Q18N)

Additionally, states that have expressed interest in assumption do not comply with the
EPA's proposed guidance. Alaska's fee-shifting rules similarly require payment of
attorney's fees to the prevailing party, regardless of whether the case is frivolous or not,
effectively chilling any meaningful access to challenging a proposed permit.[Footnote 55:
Alaska R. Civ. P. 82 (2023)]

Agency Response: See Section IV.C.2 of the final rule preamble. Consistency of a
Tribal or State program with the CWA will be reviewed at the time the request is
submitted to EPA.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-001QN)

Finally, Alaska's Public Records Act is not comparable to the federal Freedom of
Information Act (FOIA). Alaska's Public Records act deviates from FOIA in fundamental

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ways that put the public at a significantly greater disadvantage than FOIA. For example,
under the Alaska Public Records Act, there are greater costs involved because fee waivers
are limited to $500 per year per requester; agencies are allowed to demand advance
payment with no limitation; there is no provision for expediting requests; there are no
consequences for an agency's failure to timely provide information; there are no
consequences for a public official who obstructs the disclosure of public records; and a
prevailing litigant under Alaska's Public Records Act would not be able to fully recover
attorneys' fees incurred. In short, obtaining information related to a proposed dredge and
fill permit under Alaska's state requirements will be much more difficult and costly than
it would be under FOIA, and there will be limited recourse if Alaska state officials fail to
comply with public disclosure requirements

Agency Response: CWA section 404 requires public notice and opportunity for
participation in the permitting process. Additionally, see Section IV.C.2 of the final
rule preamble and response to comment regarding judicial review of permits.
Consistency of a Tribal or State program with the CWA will be reviewed at the time
the request is submitted to EPA.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-00Q2N)

CNV is strongly opposed to having the State of Alaska assume the Clean Water Act
Section 404 Program.

Agency Response: EPA acknowledges this comment. Approval of any particular
Tribal or State section 404 program is outside of the scope of this rule.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-0Q23N)

EPA's proposed regulations specifically state that "the Corps will continue to administer
the [Section 404] program in Indian country unless EPA determines that a state has
authority to regulate discharges into waters in Indian country and approves the State to
assume the section 404 program over such discharges." Id. at 55285.

This year, Alaska filed suit against the Bureau of Indian Affairs for granting a Tribal land-
into-trust application in Alaska. In its complaint, Alaska alleges that the Alaska Native
Claims Settlement Act prevents the Department of Interior from taking land into trust on
behalf of Alaska Native Tribes, and that Tribal trust land in Alaska, other than the lands
reserved to the Metlakatla Indian Community, threatens Alaska's sovereignty [Footnote 4:
Complaint at 1-2, Alaska v. Newland, Case No. 3:23-cv-00007, (D. Alaska filed Jan. 17,
2023), https://law.alaska.gov/pdf/press/230117-Complaint.pdf.]. The litigation will take
some time to resolve, and leaves open significant questions and uncertainties about federal,
state and Tribal jurisdiction in Alaska. If Alaska seeks to assume authority to implement a
Section 404 permitting authority, the issue of whether, where and to what extent the state
may seek regulatory authority over Tribal trust lands and waters must be addressed and
resolved in coordination and consultation with Alaska Native Tribes.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0078-0001. The scope of any particular prospective Tribal or State program is outside

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the scope of this rulemaking. Consistency of a Tribal or State program with the CWA
will be reviewed at the time the request is submitted to EPA.

Chickaloon Native Village (CNV) (EPA-HO-OW-2020-0276-0085-00Q9N)

In addition, EPA's proposed rule does not address how the state of Alaska would
coordinate with federal land managers on subsistence issues under the Alaska National
Interest Lands Conservation Act (ANILCA). More than in any other state, Tribes in Alaska
rely heavily on subsistence resources, including on federal public lands [Footnote 3: U.S.
Congressional Research Service. Subsistence Uses of Resources in Alaska: An Overview
of Federal Management (R47511; April 20, 2023), by Mark K. DeSantis and Erin H. Ward,
https://crsreports.congress.gOv/product/pdf/R/R47511/3.] The State of Alaska has
consistently taken positions hostile to Alaska Native subsistence uses and resources under
ANILCA. Issues related to subsistence hunting, fishing and gathering in Alaska have long
been complex and contentious. Adding further jurisdictional and regulatory uncertainty
with regard to wetland regulation is sure to cause additional issues, particularly at the
expense of Alaska Native Tribes and citizens.

Agency Response: EPA acknowledges the comment. EPA will review the
coordination processes associated with any individual program for consistency with
CWA section 404 and the requirements set out in the regulations at 40 CFR 233.

Alaska Clean Water Advocacy et al. (EPA-HQ-OW-2020-0276-0086-000n

We ask that EPA make the changes proposed in these comments to ensure that the federal
floor is as stringent as required by the Clean Water Act. The Act exists because states were
not properly protecting their waterways, which led to rivers so polluted that not only could
people not drink the water, but they could not swim, fish, or recreate. [Footnote 1: One
example among many (e.g., Buffalo River, Buffalo, New York; Schuylkill, Philadelphia,
Pennsylvania; and the Rouge River, Detroit, Michigan) is the 1969 fire on the Cuyahoga
River in Cleveland, Ohio, which is attributed as one of the main factors leading to the
creation of the Environmental Protection Agency and the passage of the Clean Water Act.
See EPA, History of the Clean Water Act (CWA), Section 2: Cuyahoga River fire
aftermath: June, 1969.] As a result, Congress passed the Clean Water Act to set the
minimum standards for protecting our Nation's waters and wetlands. As Alaskans, we
have benefited from those protections, successfully avoiding the gross mistakes committed
by some of the contiguous states because of a combination of our small population and the
restrictions imposed by the Act. Without EPA's assurance that those minimum standards
are met and maintained by any state assuming the 404 program, we fear that will not soon
be the case. [Footnote 2: These comments address state assumption of the 404 program
only, not assumption of the 404 program by Tribes.]

Agency Response: See Sections IV.A.2 and IV.A.3 of the final rule preamble
regarding the requirement that all approved Tribal and State section 404 programs
remain consistent with and no less stringent than the requirements of the Act and
implementing regulations and that permits issued comply with the section 404(b)(1)
guidelines.

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Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q26N)

Projects that have gone through the 404-permitting process in Alaska have presented
significant environmental and health hazards that disparately impact rural and Indigenous
communities. Additionally, rural and Indigenous communities have not been granted equal
access to the decision-making process for various projects subject to 404 permitting. When
environmental justice concerns like these arise in a federal process, the federal government
has programs and procedures to address and correct the issues that the state government
does not have. EPA itself has an environmental justice office with regional staff and a
hotline available to the public.[Footnote 34: EPA, Contact Us About Environmental
Justice.] Unlike the federal government, Alaska is unprepared to prevent and address
environmental justice issues like those presented by the following projects that have gone
through 404 permitting.

Agency Response: See Section IV.A.3 of the final rule preamble regarding the
requirement that all approved Tribal and State section 404 programs remain
consistent with and no less stringent than the requirements of the Act and
implementing regulations. See Section IV.A.2 of the final rule preamble discussing
the environmental review criteria and other factors that must be considered prior to
issuance of a permit. This section makes clear that no permit shall be issued unless it
complies with the section 404(b)(1) guidelines. The scope of any particular
prospective Tribal or State program is outside the scope of this rulemaking.
Consistency of a Tribal or State program with the CWA will be reviewed at the time
the request is submitted to EPA.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q27N)

Red Dog Mine, located in northwest Alaska, has been subject to 404 permitting multiple
times throughout its long-lasting operation: first in the 1980s before initial operation
began [Footnote 35: U.S. Department of the Interior, Regulatory Processes Associated with
Metal?Mine Development in Alaska: A Case Study of the Red Dog Mine at 11 (Sept.
1992).], and then in relation to additional deposit development.[Footnote 36: EPA, Red
Dog Mine Extension Aqqaluk Project Final Supplemental Environmental Impact
Statement at 9 (Oct. 2009).] In 2021, Red Dog Mine reported releasing a total of
601,844,108 pounds of toxic waste, including cadmium, copper, lead, mercury, nickel, and
zinc.[Footnote 37: EPA TRI Explorer, Facility Profile Report: Red Dog Operations.] The
health risks associated with these metals are significant. At low levels of exposure in
adults, lead may impact various organs and cause irreversible brain damage.[Footnote 38:
Alaska Community Action on Toxics, Red Dog and Subsistence: Analysis of Reports on
Elevated Levels of Heavy Metals in Plants Used for Subsistence Near Red Dog Mine,
Alaska at 15 (May 2004) (ACAT 2004).] As the Centers for Disease Control and
Prevention has found though, there is no safe level of exposure for lead for developing
children.[Footnote 39: Unequivocal evidence demonstrates that there is no safe level of
lead exposure for developing children, as confirmed by authoritative bodies including the
Centers for Disease Control and Prevention, the U.S. Agency for Toxic Substances and
Disease Registry, and the U.S. Food and Drug Administration. See U.S. Centers for
Disease Control and Prevention, Low Level Lead Exposure Harms Children: A Renewed
Call for Primary Prevention, Report of the Advisory Committee on Childhood Lead

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Poisoning Prevention (Jan. 4, 2004); U.S. Department of Health and Social Services,
Agency for Toxic Substances and Disease Registry, Toxicological Profile for Lead
(Aug.2020); U.S. Food and Drug Administration, Action Levels for Lead in Food Intended
for Babies and Young Children: Draft Guidance for Industry (Jan. 2023).] Similarly,
cadmium exposure may result in renal failure, lung damage, liver damage, reduced verbal
and IQ development in children, and more.[Footnote 40: ACAT 2004at 15.] The nearby
village of Kivalina, which is 98% Inupiat[Footnote 41: R. Gregg, Relocating the Village
of Kivalina, Alaska Due to Coastal Erosion, Climate Adaptation Knowledge Exchange
(2021).], as well as Kotzebue, which is over 70% Inupiat,[Footnote 42: City of Kotzebue,
About Us.] have raised concerns about toxic tailings from these metals impacting their
health directly as well as indirectly through metal build up in subsistence foods.[Footnote
43: Environmental Justice Atlas, Red Dog mine toxic tailings to Kotzebue and Kivalina,
Alaska, USA.] Culturally and physically essential plants, animals, and fish all absorb both
lead and cadmium easily from their environment.[Footnote 44: ACAT 2004 at 15-16.]
Environmental health hazards facing a primarily Indigenous population raise issues of
environmental justice, and communities involved must have access to federal resources to
respond.

Agency Response: See Section IV.A.2 of the final rule preamble and response to
comments which discusses the environmental review criteria, including that
discharges not violate water quality standards and that permits consider human uses
of the waters, prior to issuance of a permit. This section also makes clear that no
permit shall be issued unless it complies with the section 404(b)(1) Guidelines. See
Section IV.A.3 of the final rule preamble and response to comments regarding the
requirement that all approved Tribal and State section 404 programs remain
consistent with and no less stringent than the requirements of the Act and
implementing regulations.

In addition, any permit that "...(4) Discharges known or suspected to contain toxic
pollutants in toxic amounts (section 101(a)(3) of the Act) or hazardous substances in
reportable 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 law, 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."
must be sent to EPA for review. See 40 CFR 233.51.

Lastly, Section IV.F of the final rule preamble articulates opportunities for Tribes to
raise concerns and provide input on permits that may affect their waters or interests.
The scope of any particular prospective Tribal or State program, however, is outside
the scope of this rulemaking. Consistency of a Tribal or State program with the CWA
will be reviewed at the time the request is submitted to EPA.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q28N)

In southeast Alaska, Greens Creek Mine was initially granted a 404 permit in
1988.[Footnote 45: SRK Consulting 2009 at 155.] Since then, it has become the largest

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silver mine in the United States, and recently proposed an extension of its operation despite
opposition from local residents.[Footnote 46: C. Larson, Angoon residents speak out
against Greens Creek Mine expansion, JUNEAU EMPIRE (May 15, 2023) (Larson
2023).] The population of Angoon, the only settlement on the island where the mine is
located, is over 80% Indigenous.[Footnote 47: U.S. Census Bureau, Profile of General
Population and Housing Characteristics (2020).] This community has raised concerns
about health hazards related to lead tailings and their impact on the people, plants, and
animals of the region.[Footnote 48: Larson 2023.] Further, community members have
expressed frustration at the decision-making process and their lack of input. Angoon city
council member Peter Duncan said at a public meeting, "We have no real power to stop
what's going on—even if we fight it seems to happen any ways. "[Footnote 49: Id.] Whether
public input is actually considered and how accessible are the opportunities to participate
are questions of environmental justice.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0086-0027.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-0Q29N)

Donlin Gold Mine, a proposed project that would be the largest pure gold mine in the
world, was issued a 404 permit that has been challenged by local communities for failing
to take full consideration of the environmental impacts of the project.[Footnote 50:
Earthjustice, Southwest Alaska Tribes Fight the World's Largest Pure Gold Mine (April
6, 2023) (Earthjustice 2023).] Donlin Gold Mine would, according to EPA itself, have
"potentially serious impacts on human health and environment."[Footnote 51: No Donlin
Gold, What's at Stake.] Hazards from development may include degradation of
subsistence resources, large scale climate effects, health issues related to tailings or failure
of treatment, and containment of a pit lake. [Footnote 52: Id.] The region closest to where
the mine would be developed is primarily made up of Yupik, Cup'ik, and Athabascan
people who rely on local fish, plants, and other animals for subsistence. [Footnote 53:
Earthjustice 2023.] More than a dozen tribes—the majority in the region—have passed
resolutions opposing the mine, as well as various tribal organizations like the Association
of Village Council Presidents and the Yukon Kuskokwim Health Corporation. [Footnote
54: No Donlin Gold, Tribal Opposition to Donlin.] The disparate impact on Indigenous
peoples of the region, and their vocal opposition to the project, are environmental justice
issues that federal environmental justice offices are better able to help navigate than a state
with little to no environmental justice resources. As EPA finalizes the regulations
governing state assumption, it must ensure that state programs are at least as stringent as
the federal government when it comes to addressing environmental justice concerns.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0086-0027.

Alaska Clean Water Advocacy et al. (EPA-HQ-OW-2020-0276-0086-0030)

Projects subject to 404 permitting in Alaska present direct and indirect environmental
health impacts to areas that are home to majority Indigenous populations, resulting in
disproportionate environmental harms based on race. Further, these projects often lack
meaningful involvement of the public in decision-making processes. Communities

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impacted by these environmental justice issues would not have access to appropriate
recourse if 404 permitting were assumed by Alaska without further safeguards which have
not been included in the current draft rule. In considering whether to approve state 404
assumption, EPA must consider the widespread environmental justice implications and in
so doing ensure that the final version of this rule reflects the concerns of affected
communities, which have been fighting attacks on the Clean Water Act, and who have not
been consulted on this issue at all. As the federal government, even with its environmental
justice protections, has found it challenging to address the concerns of disproportionately
affected communities, it will be significantly more challenging without clear safeguards
outlined in a final rule. A weak framework for 404 assumptions will only serve to further
embolden a deregulatory agenda that will destroy wetlands and pollute our waters in the
name of profit over healthy waters and communities.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0086-0027.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-00Q4N)

On October 31, 2012, the Alaska Department of Environmental Conservation (ADEC)
assumed full authority to administer the Clean Water Act Section 402 wastewater
discharge permitting and compliance program in Alaska. Since ADEC assumed
responsibility of the program, National Pollutant Discharge Elimination System (NPDES)
permits have been managed by the agency and are called Alaska Pollutant Discharge
Elimination System (APDES) permits. ADEC is typically understaffed and
underfunded.[Footnote 3: See EPA Region 10, State Review Framework, Alaska, Clean
Air Act and Clean Water Act Implementation in Federal Fiscal Year2017, Final Report at
5-6, 29-30, 33, 36, 56 (2019) (citing frequent staff turnover and continuing inadequate
staffing) (EPA 2019 Final Report).] APDES permits are issued on five-year cycles.
However, very few are renewed in a timely manner, and most are administratively
extended for a minimum of one year, sometimes several years. Recent examples include
APDES permits for Kensington and Greens Creek mining operations near Juneau, and the
Niblack exploratory mining operation on Prince of Wales Island.

Kensington Mine's previous APDES permit was issued in 2015. A renewal is expected in
October 2023, according to ADEC's website.[Footnote 4: ADEC, Alaska Pollutant
Discharge Elimination System Individual Permit, Permit No: AK0050571 - Coeur Alaska
Inc. (Apr. 28, 2017).] Multiple "minor modifications" to the permit have occurred since
2017. Greens Creek Mine's APDES permit was also issued in 2015, expired in 2020, and
was just renewed in August of 2023.[Footnote 5: ADEC, Alaska Pollutant Discharge
Elimination System Individual Permit, Permit No: AK0043206 - Hecla Greens Creek
Mining Company (Aug. 16, 2023).] Niblack Mine's ADPES permit, also issued in 2015,
was renewed in 2022 after an objection remanded the first draft renewal permit back to
ADEC—there were numerous significant errors with regard to the mixing zone dilution
ratio and discharge components.

Additionally, ADEC compliance inspections occur infrequently, as one mine audit in 2009
stated: "A significant imbalance between the frequency of U.S. Forest Service and ADEC
site compliance inspections exists. Representatives of ADEC should increase the

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frequency of compliance inspections . . . ."[Footnote 6: SRK Consulting, Environmental
Audit of the Greens Creek Mine, Final Report (Mar. 2009) (SRK Consulting 2009).] Mine
audits are supposedly completed every five years; however, only two audits exist on file
for Greens Creek, ten years apart. EPA's Region 10 verified this during its State Review
Framework Final Report in 2019. As the report stated, the "2019 Report demonstrates
continuing EPA concerns related to the timely completion of formal enforcement actions
and the ongoing inability of the DE [compliance and enforcement (i.e., inspection)]
program to meet EPA compliance monitoring strategy goals and DEC's [compliance and
enforcement] program commitments."[Footnote 7: EPA 2019 Final Report at 6.]

Failures in ADEC's 402 and Clean Air Act compliance and enforcement programs detailed
in EPA's 2019 Report are unfortunately not its only deficiencies. A critically important
factor related to Human Health Criteria, the Fish Consumption Rate in Alaska has not been
updated for decades, even though current EPA guidance is at a much higher rate. The
current Fish Consumption Rate value that ADEC is using is 6.5 grams per day per person
(g/d/p),[Footnote 8: ADEC, Division of Water, Proposed Updates to Human Health
Criteria (Feb. 10, 2023) (ADEC HHC Proposed Updates); see also ADEC, Human Health
Criteria and Water Quality Standards.] which is about the volume of a teaspoon of salt.
ADEC has been scoping this issue for years with no action, even though in 2015, EPA
updated national Fish Consumption Rate recommendations to 22g/d for general
populations and 142.4g/d for subsistence populations.[Footnote 9: ADEC HHC Proposed
Updates.] Studies completed by Alaska Native Tribes show that the state's fish
consumption is closer to 25Og/d/p.[Footnote 10: Sun'aq Tribe of Kodiak, Kodiak Tribes
Seafood Consumption Assessment: Draft Final Report at 90, Tib. 43 (Feb. 2019) (Listing
a mean figure of 232.8g/p/d for Kodiak Tribes for seafood consumption).] In February
2023, ADEC initiated more public scoping.[Footnote 11: ADEC, Division of Water,
Human Health Criteria and Water Quality Standards.] This despite a previous Alaska work
group making well-studied recommendations about this issue in 2018.[Footnote 12:
ADEC, Divisesion of Water, Evaluation of Key Elements and Options for Development
of Human Hseealth Criteria, Technical Workgroup Report (Nov. 13, 2018)).] Alaska lags
far behind other states in updating its Fish Consumption Rate, despite having the highest
per capita consumption of fish in the nation.

Alaska has routinely failed under its obligations to ensure enforcement and compliance as
required by its implementation of the Clean Air Act stationary sources and APDES
program.[Footnote 13: See EPA 2019 Final Report.] Yet the State now seeks assumption
of the Clean Water Act's 404 program with little regard to the full weight of the
responsibility. Alaska includes approximately 63% of the nation's wetland
ecosystems.[Footnote 14: Jonathan V. Hall et al., Status of Alaska Wetlands, USFWS
(1994).] Estimates place the total acreage at approximately 174 million acres or about 43%
of the state. The adoption of the proposed 404 regulations as currently drafted would only
make it easier for a state such as Alaska, which is unable to fulfill its current duties, to
assume additional work that it has no hope of being able to perform adequately,
endangering not only Alaska's waters and communities who depend on them but a
majority of this nation's wetlands.

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Agency Response: Alaska's APDES program is outside the scope of this rulemaking.

See the Agency's Response to Comment EPA-HQ-OW-2020-0276-0086-0027
regarding requirements to ensure permits issued by a Tribe or State are no less
stringent than the CWA requirements and that they comply with the section 404(b)(1)
Guidelines.

Alaska Clean Water Advocacy et al. (EPA-HO-OW-2020-0276-0086-00Q5N)

EPA must not approve Alaska's 404 state assumption application until the conclusion of
this rulemaking.

Agency Response: Review and potential approval of an individual program request
is outside the scope of this rulemaking; however, EPA notes that no request to assume
the program has been received while the Agency was finalizing this rule.

Chickaloon Native Village (EPA-HO-OW-2020-0276-TRANS-Q92923-009-000 n

I work for the Chickaloon Native Village in Alaska. Our particular Native village and other
Tribes in Alaska do not have the option of taking over wetland primacy, because we do
not have reservations or reservation boundaries. Instead, the state of Alaska would take
primacy including over lands owned by Tribes. Consultation at the federal level is far from
perfect with Tribes. However, we would much rather work within an imperfect Federal
Government-to-government consultation process than have no consultation at all, which
is the option left by the state 404 primacy. State agencies have done an exceptionally bad
job at recognizing the sovereignty of Tribes or involving Tribes on a government-to-
government basis.

Agency Response: EPA acknowledges this comment and the unique status of Alaskan
Native Villages. See Section IV.F of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0063-0044 for further discussion.

Chickaloon Native Village (EPA-HQ-OW-2020-0276-TRANS-092923-009-0004)

Alaska state primacy would disproportionately harm Tribes, sacred sites, and traditional
ancestral lands which are located adjacent to waters and wetlands. We continue to be
concerned that Alaska will not ensure Tribes have the right to participate in natural
resource decisions, including as a cooperating agency. Are there laws and regulations that
would need to be changed to comply with federal law and ensure Tribal rights are
protected? We continue to be concerned that the state ensures Tribal sovereignty in
permitting decisions is maintained, and that the state will not ensure that Agency personnel
across different permitting regimes account for all cumulative impacts under air, water and
wetlands permits and disclose these potential impacts to Tribes in the public. We are
concerned that the state will not ensure transparency and disclosure of all potential project
impacts to Tribes and the public, so they may engage, comment, and otherwise participate.

Agency Response: Any Tribe or State approved to assume and administer a CWA
section 404 program must have the authorities to administer the program consistent
with the Act, including the coordination and public notice and participation
requirements which can be found at 40 CFR 233.31, 233.32 and 233.33. See also the

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Agency's Response to Comment EPA-HQ-OW-2020-0276-0063-0044 for further
discussion.

The scope of any particular prospective Tribal or State program is outside the scope
of this rulemaking. Consistency of a Tribal or State program with the CWA will be
reviewed at the time the request is submitted to EPA.

Orutsararmiut Traditional Native Council (EPA-HQ-OW-2020-0276-TR.ANS-092923-01 1 -

ooon

Having the 404 state assumption is one of the biggest concerns that I see for Alaska
Natives. As a collective, we have the most amount of Tribes within our state than any other
state within the United States of America, and as it already is, the state does not have the
respect for Tribes and their concerns and the indigenous traditional ecological knowledge
that they hold when it comes to these 404 permits. We've gone through state litigation on
one of the mining projects and even when the Alaska Superior Court judge decides on the
Tribe's behalf, the Department of Environmental Conservation sticks with their decision,
regardless of any evidence and they completely function in a way that is not conserving
the environment within the state, and with the complexities that lie within being sovereign
Tribal governments, we have also for-profit Native corporations that hold all of the land
and mineral rights.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
TRAN S-092923-009-0004.

Orutsararmiut Traditional Native Council (EPA-HO-OW-2020-0276-TRANS-092923-Q11-

0002")

So, I think that as the guidance's that have come from the office, the Executive Office of
the President, to have this good, clear, robust consultation we need to keep the Tribes in
mind, especially in the state of Alaska. Because too often they are not taken into
consideration, and the state is always looking for a way to economically prosper, while all
of us here in Southwest Alaska, in the Yukon-Kuskokwim Delta, we have fifty-five
thousand square miles. There's fifty-six villages that all have their own governments. Here,
on the Kuskokwim ninety percent of the meat that we consume is fish, and when the state
is deciding to pursue projects for their economic prosperity, we're going to be suffering in
our access to food. And I already know, with sitting on the City Council, that the
Department of Environmental Conservation wants to get rid of the NEPA process so it will
be a more streamlined process, and as the person I am, looking out for our future
generations, that is such a big disrespect to the indigenous populations. So, I highly
recommend that the EPA do not move forward with the 404 state assumptions. Thank you
so much for your time.

Agency Response: See Section V of the final rule preamble and response to comments
for discussion as to how this final rule is consistent with all applicable Executive
Orders. See also the Agency's Response to Comment EPA-HQ-OW-2020-0276-0063-
0044.

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Wetlands Coordinator for Confederated Salish and Kootenai Tribes (CSKT) (EPA-HQ-OW-
2020-d0276-TRANS-083023-001-000n
Comment 1

A third attendee inquired through the chat about additional funding availability if CSKT
were to apply for a section of 404g.

Agency Response: Funding for Tribal or State programs is outside the scope of this
rulemaking.

4. (ieneral comments 011 authority to administer a section 404 program

Region 10 Tribal Operations Committee (RTOC) and National Tribal Water Council (NTWC)
(EPA-HO-OW-2020-0276-0070-00Q8N)

IV. Jurisdiction over Indian country is not a matter for EPA determination.

Tribes possess inherent sovereignty. Conventionally, Federal ability to regulate Tribal
affairs and Tribal lands comes from affirmative Congressional action. Congress has not
delegated to EPA the power to determine whether States have authority over Tribal lands.
Therefore, by making elements of the proposed rule contingent upon "EPA determin[ing]
that a State has authority to regulate discharges into waters in Indian country," the rule
misunderstands Federal Indian law to the potential detriment of Tribes. The procedure for
these determinations matters, and Tribal sovereignty should not be undermined by
administrative overreach.

Agency Response: As recognized in EPA's regulations, in many cases, States lack
authority under the CWA to regulate activities covered by the section 404 program
in Indian country. See 40 CFR 233.1(b). Thus, the Corps will continue to administer
the program in Indian country unless EPA determines that a State has authority to
regulate discharges into waters in Indian country and approves the State to assume
the section 404 program over such discharges. When a Tribe or State is preparing to
submit a section 404 program request, EPA will work with the appropriate Tribal,
Federal, and State entities to ensure the scope of the program is consistent with
governing law.

National Tribal Water Council (NTWC) fEPA-HO-OW-2020-0276-0074-SD-0Q12)

- EPA must make clear to each state that its assumption of authority does not extend to
Indian country. Tribes themselves, or the federal government by way of ACE, determine
what activities may take place on trust or reservation lands or other areas of Indian country,
and state laws do not apply there.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0070-0008.

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Port Gamble S'Klallam Tribe (PGST^) (EPA-HO-OW-2020-0276-0078-0Q26N)

EPA's proposed regulations specifically state that "the Corps will continue to administer
the [Section 404] program in Indian country unless EPA determines that a state has
authority to regulate discharges into waters in Indian country and approves the State to
assume the section 404 program over such discharges." Id. at 55285. As an initial matter,
it is not up to EPA to determine whether a state has jurisdiction in Indian Country.
Questions or uncertainties about state jurisdiction in Indian Country must be first
addressed with the affected tribe, and EPA must maintain a presumption that there is no
state jurisdiction in Indian Country. If there is still a dispute, then the proper avenue is for
a federal judiciary or Congress, not EPA, to determine.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0070-0008.

EPA's approval of any Tribal or State section 404 program is a final agency action
subject to judicial review.

Port Gamble S'Klallam Tribe (PGSTI (EPA-HO-OW-2020-0276-0078-00Q3N)

The United States Supreme Court has recognized the central importance of fishing for
tribes: it is "not much less necessary to the existence of the Indians than the air they
breathed." United States v Winans, 198 U.S. 371, 381 (1905). And the reserved right to
take fish impliedly reserved both the access required to exercise the right and the habitat
necessary to fulfill its purpose, that is, sufficient to keep waterways and wetlands suitable
for fish reproduction and tribal harvest. E.g., id. at 381-82; United States v. Washington
("Culverts"), 853 F.3d 946, 966 (9th Cir. 2017), aff d, 138 S.Ct. 1832 (per curiam); Kittitas
Reclamation Dist. v. Sunnyside Valley Irr. Dist., 763 F.2d 1032 (9th Cir. 1985).

Structures and activities that will physically obstruct the waters where tribal citizens have
a treaty right to fish and, in doing so, will "eliminate a part of the Tribes' usual and
accustomed fishing ground (and their right of access to that ground)" are prohibited. See,
e.g., Muckleshoot Indian Tribe v. Hall, 698 F. Supp. 1504, 1510 (W.D. Wash. 1988)
(granting injunction against the construction of marina that would eliminate access to
Muckleshoot Tribe's and Suquamish Tribe's U&A fishing area and deny the tribes the
ability to exercise treaty rights at the site). And the Corps has no authority to permit an
interference with the Tribes' ability to exercise their treaty fishing rights in their U&A.
See, e.g., Northwest SeaFarms, Inc. v. U.S. Army Corps ofEngineers, 931 F. Supp. 1515,
1520-22 (W.D. Wash. 1996) (affirming Corps' denial of permit for salmon net pens
because of project's interference with Lummi Nation's treaty fishing rights, including
elimination of access to U&A fishing area); Confederated Tribes of Umatilla Indian
Reservation v. Alexander, 440 F. Supp. 553 (D. Or. 1977) (Army cannot build dam and
flood tribal fishing places, where Congressional authorization does not expressly provide
for taking of treaty fishing rights).

The Treaty Tribes have the right to take fish in all of the waters and shorelines within their
U&A. E.g., Winans, 198 U.S. at 381-82 (finding that the off-reservation fishing rights
reserved by the Tribes "imposed a servitude upon every piece of land as though described
therein"); Muckleshoot Indian Tribe, 698 F. Supp. at 1511 ("Further, this right of taking

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fish is reserved at all usual and accustomed grounds"); Northwest Sea Farms, 931 F. Supp.
at 1521 ("The site in question need not be the primary or most productive one for
fishing."). And the Tribe's members have the right to follow the fish wherever they might
swim in our U&A, now and in the future, regardless of where tribal members may fish
today or may have fished in the past. E.g., United States v. Washington, 384 F. Supp. 312,
351-52 (W.D. Wash. 1974) (finding that local fish supplies varied and that tribes
traditionally shifted fishery locations in response to relative abundance).

The Corps may not authorize an activity that would eliminate access to any portion of the
Treaty Tribes' U&A fishing areas. See, e.g., Muckleshoot Indian Tribe, 698 F. Supp. at
1515 ("No case has been presented to this Court holding that it is permissible to take a
small portion of a tribal usual and accustomed fishing ground, as opposed to a large
portion, without an act of Congress, or to permit limitation of access to a tribal fishing
place for a purpose other than conservation."); id. at 1514 ("The federal, City and private
defendants here do not have the ability to qualify or limit the Tribes' geographical treaty
fishing right (or to allow this to occur through permits) by eliminating a portion of an
Indian fishing ground for a purpose other than conservation.").

Agency Response: Nothing in this final rule affects Tribal treaty rights.

Port Gamble S'Klallam Tribe (PGST^) (EPA-HO-OW-2020-0276-0078-00Q4N)

Both EPA and the Corps are required to and have committed to uphold Port Gamble
S'Klallam treaty rights. EPA, in August 2021, and the U.S. Department of Defense, in
October 2021, signed the Memorandum of Understanding Regarding Interagency
Coordination and Collaboration for the Protection of Tribal Treaty Rights and Reserved
Rights (Treaty Rights MOU), which provides that:

Treaty-protected rights to use of and access to natural and cultural resources are an intrinsic
part of tribal life and are of deep cultural, economic, and subsistence importance to tribes.
Many treaties protect not only the right to access natural resources, such as fisheries, but
also protect the resource itself from significant degradation. Under the U.S. Constitution,
treaties are part of the supreme law of the land, with the same legal force and effect as
federal statutes. Pursuant to this principle, and its trust relationship with federally
recognized tribes, the United States has an obligation to honor the rights reserved through
treaties, including rights to both on and, where applicable, off-reservation resources, and
to ensure that its actions are consistent with those rights and their attendant protections.

Accordingly, the Parties recognize the need to consider and account for the effects of their
actions on the habitats that support treaty-protected rights, including how those habitats
will be impacted by climate change....

The Supreme Court has explained that Indian treaties are to be interpreted liberally in favor
of tribes, giving effect to the treaty terms as tribes would have understood them, with
ambiguous provisions interpreted for their benefit. Treaties are to be interpreted in
accordance with the federal Indian canons of construction, a set of longstanding principles
developed by courts to guide the interpretation of treaties between the U.S. government

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and Indian tribes. This means that federal agencies must give effect to treaty language and
ensure that federal agency actions do not conflict with tribal treaty and reserved rights.

Agency Response: Nothing in this final rule affects Tribal treaty rights.

Tulalip Tribes of Washington (EPA-HO-OW-2020-0276-0082-00Q3N)

While Tulalip agrees with the EPA's recognition that states lack the authority to assume
Section 404 permitting within Indian Country, Tulalip strongly disagrees with EPA's
insinuation of its own authority to approve state assumption of Section 404 within Indian
Country.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0070-0008.

5. (ieneral comments on stakeholder engagement

Buena Vista Rancheria of Me-Wuk Indians (EPA-HO-QW-2020-0276-0053-001 n

Lastly, Buena Vista Rancheria requests that maps of Section 10 waters and their retained
adjacent wetlands be made available for the public.

Agency Response: EPA is not requiring Tribes and States to create maps of section
10 waters and retained adjacent wetlands that would be available to the public, as
there may be other ways to present this information that are similarly informative
and that are consistent with CWA requirements. EPA encourages Tribes and States
that assume the program to provide as much transparency as possible on the extent
of assumed and retained waters. Maps are a potential useful tool, though final
determinations regarding jurisdiction need to be made on case-by-case bases as maps
are static while aquatic resources may be altered over time.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-00Q4N)

Additionally, the Conservation Organizations remain very disappointed and object to the
fact that EPA has proposed these rules while failing to engage with communities and
advocates on the matter. EPA documents show that the agency has spent years soliciting
input from states about 404 assumption and hearing from them as to what states would like
to see changed and what standards for assumption states would prefer to see eased. EPA
has not engaged with communities and advocates in developing these regulations, and its
engagement with Tribes has been minimal to the point of nonexistence. EPA's lopsided
failure to engage with communities, advocates, and affected Tribes has occurred even
though these rules concern public resources that will be affected for decades if not all time.
Continuing in that vein, EPA's sixty-day comment period, and its summary denial of
several requests for an extension, unreasonably requires members of the public to analyze
and draft comments on hundreds of pages of regulatory text, legal analysis, and supporting
documentation. As a result, the proposed rule fails to address many of the public's
concerns.

Agency Response: The regulations located at 40 CFR 233 articulate the process and
requirements for Tribes and States to assume and administer a section 404

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permitting program, As Tribes and States cannot impose less stringent requirements
than the federal program, EPA does not think this rulemaking will adversely affect
public resources. EPA sought input from the public during a Federal Advisory
Committee (2015-2017) and during the public comment period. For a more robust
discussion of engagement of Tribes and States and EPA's public outreach efforts
generally, see Section III.B of the final rule preamble and the Agency's Response to
Comment EPA-HQ-OW-2020-0276-TRANS-082423-001-0001.

Earthiustice et al. fEPA-HO-QW-2020-0276-0068-0057^

EPA has claimed that because biological opinions are not ordinarily subject to notice and
comment, the public has no right to review and comment on a programmatic biological
opinion that articulates processes on which a state relies to claim that its program, and
permits issued under the program, will not jeopardize ESA species or adversely modify
critical habitat. EPA has said this is true even where the biological opinion contains the
permit-level process used to demonstrate that a state program satisfies the 404(b)(1)
Guideline	to	ensure	no	jeopardy.

However, EPA must ensure that the public has an opportunity to comment on all program
components that are relied upon to demonstrate a state program meets the minimum
requirements of the Clean Water Act, even when those components are contained in a
biological opinion.

EPA should take this rulemaking opportunity to ensure that all materials on which a state
relies to claim that it meets the requirements for assumption are made available to the
public for comment. An application should therefore not be deemed complete (for
purposes of notice and comment as well as EPA's statutory deadline to act on an
assumption request) until all components have been submitted to EPA and made available
to the public. To the extent those components may appear in a document that would not
ordinarily be subject to notice and comment is beside the point. EPA should ensure that
the public is given an opportunity to comment on all components of a state's proposed
program, regardless of where that information appears.

Agency Response: See Section IV.A.2 of the final rule preamble addressing
Endangered Species Act compliance. See also the Agency's Response to Comment
EPA-HQ-OW-2020-0276-0063-0013.

National Tribal Water Council (NTWC) (EPA-HO-QW-2020-0276-0074-0002)

The NTWC has always valued our opportunities to provide early input and tribal
perspectives to EPA on rulemaking and implementation of the CWA, through informal Q
& A at our monthly meetings, and in formal submitted comments. But when clearly
articulated concerns for the protection of tribally significant resources and specific
recommendations for improved policy do not result in demonstrable changes from draft to
proposed rule, it is discouraging.

Agency Response: EPA acknowledges this comment. The final rule addresses many
concerns raised by Tribes during early engagement efforts, including ways in which
Tribes can meaningfully engage with Tribal and State section 404 programs. See

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Sections IV.C.2 and IV.F of the final rule preamble for discussion of provisions that
will facilitate Tribal engagement in the permitting process.

Alaska Department of Environmental Conservation (DEC) (EPA-HQ-OW-2020-0276-TR.ANS-
082423-001-0001)

Did EPA share a draft of this proposed rule with any State or Tribe prior to publishing the
proposed rule in the federal register?

Agency Response: EPA did not share drafts of the proposed rule to any individual
entities prior to publishing the proposal.

Fort. Berthold/Three Affiliated Tribes (EPA-HO-OW-2020-0276-TRANS-Q83023-003-0001)
Comment 1

A fifth attendee asked if the slides would be emailed to participants on the call.

Agency Response: Slides are posted on EPA's website as well as in the docket
associated with this rulemaking.

Fort. Berthold/Three Affiliated Tribes (EPA-HQ-OW-2020-0276-TRANS-083023-003-0002)
Comment 2

The attendee said to expect MHA Nation'sa response from her organization's leadership
in regard to the presentation provided during the input meeting.

Agency Response: EPA appreciates all comments provided during these input
sessions.

Environmental Confederation of Southwest Florida (EPA-HQ-OW-2020-0276-TR.ANS-092923-
002-0004)

one of the questions you asked about is more community involvement. And I echo
everything that [speaker number six; Christine Reichert] Earthjustice said. And when you
have this much information and you tell the public they get three minutes to comment on
what probably took you an hour, which was a great presentation, that really isn't engaging
the public, so I would consider, even my county commissioners let us have five minutes.

Agency Response: EPA acknowledges the comment. EPA limited speaker comments
to three minutes to ensure everyone had an opportunity to speak. At the public
hearing, once those registered to speak had spoken, others at the meeting were
provided the opportunity to speak and the previous speakers were provided
additional time to provide comments.

Sierra Club (EPA-HO-OW-2020-0276-TRANS-Q92923-004-0006)

These rules need to improve the timing, the processes for the public to find, to track, to
comment. For government officials to evaluate, to approve, to withdraw, to revisit, for our
applications, including the inadequate state assumption, so devastating here in Florida.

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Agency Response: The final rule makes clarifications and revisions to the regulations
with respect to timing and opportunities to comment on assumption requests and
permit applications. See Sections IV.B.2, IV.B.3, IV.B.4, IV.C, and IV.F of the final
rule preamble for discussion on these revisions. See also Section IV.E.2 of the final
rule preamble for revisions to the withdrawal procedures. EPA notes that on
February 15, 2024, the U.S. District Court for the District of Columbia issued an
order vacating the EPA's approval of the Florida's CWA section 404 assumption
request. The U.S. Army Corps of Engineers is the section 404 permitting authority
within Florida at this time.

Responsible Growth Management Coalition (EPA-HO-OW-2020-0276-TRANS-092923-0Q7-

0007")

"Will we be able to find a recording of this Zoom to review and share with others and/or
will there be a transcript available? If so, where will we find the link for the Zoom
recording or transcript?"

Agency Response: The public meeting recording can be viewed on YouTube or from
EPA's website.

K.Out of scope

1. Request to expand or exercise authority

State of Utah, Public Lands Policy Coordinating Office (EPA-HQ-OW-2020-0276-0056-0001)
The State appreciates the opportunity to submit comments on this Proposed Rule. Utah
generally supports the Proposed Rule and encourages the Environmental Protection
Agency ("EPA") to explore additional avenues allowing states to assume more
management authority over natural resources within their borders.

Agency Response: EPA acknowledges this comment. State management of natural
resources aside from assumption of the CWA section 404 program is outside the
scope of this rulemaking.

South Florida Wildlands Association (EPA-HO-OW-2020-0276-TRANS-092923-010-00Q7N)

I request the EPA to use its authority, after a careful review of how Florida's assumption
on 404 permitting is actually playing out with regard to the federal protections Congress
put in place decades ago, to rescind Florida's authority to issue 404 permits. We will
provide more data on the permits that have been issued, and those still coming up for
review in our written comments to your office. EPA has that authority under the
regulations for this program, and all the agreements signed between EPA, FDEP, USFWS,
and the Florida FWC. Thank you.

Agency Response: Implementation and oversight of individual State CWA section
404 programs is outside the scope of this rulemaking. See Sections IV.A.3, IV.B.2 and
IV.B.3 of the final rule preamble regarding the requirement that Tribal and State
programs cover all "waters of the United States" not retained by the Corps of
Engineers. EPA notes that on February 15, 2024, the U.S. District Court for the

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District of Columbia issued an order vacating the EPA's approval of the Florida's
CWA section 404 assumption request. An appeal of this decision is pending. The U.S.
Army Corps of Engineers is currently the section 404 permitting authority within
Florida.

2. Definitions of "waters of the I niled Stales"

Anonymous (EPA-HO-QW-2020-0276-0046-0001 ^

In response to the recent Sackett Supreme Court decision, the EPA appears to be shifting
the regulatory responsibility of wetlands to individual states. Sackett has drastically
reduced the extent of wetland protection under federal law, so federal programs that allow
states to regulate wetlands themselves are crucial. Now, the main realm of wetland
regulation will be state law, in states such as California and Florida that define "waters of
the state" more broadly than the federal CWA.

Agency Response: Section 404 of the Clean Water Act (CWA) establishes a program
to regulate the discharge of dredged or fill material into navigable waters, defined as
"waters of the United States," and section 404(g) gives States and Tribes the option
of assuming the permitting responsibility and administration of the section 404
permit program for certain waters. Therefore, any changes in the scope of waters of
the United States will impact the scope of waters subject to the section 404 permit
program. Comments regarding the definition of "waters of the United States,"
however, are outside the scope of this rulemaking.

Buena Vista Rancheria of Me-Wuk Indians (EPA-HO-OW-2020-0276-0053-00Q9N)

While BVR has read the proposed rulemaking and has provided comments, there is still a
lack of understanding about how the recent changes to the definition of Waters of the
United States ("WOTUS"), caused by the May 25,2023 Sackett decision, fit into and affect
this proposed rulemaking. Additionally, EPA published on August 29, 2023 a final rules
to amend the final "Revised Definition of 'Waters of the United States'" rule. EPA and
Army Corps have not done enough outreach to Tribes to articulate the implications of the
Sackett decision, its new revised rule, and how these relate to the CWA 404(g) program.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0046-0001 and Section III.A of the final rule preamble regarding the scope of this
rulemaking.

The Petroleum Alliance of Oklahoma (EPA-HO-OW-2020-0276-0055-0Q13N)

III. JUDICIAL DECISION REQUIRES THE PROPOSAL BE REVISITED

On May 25, 2023, the United States Supreme Court released its decision in Sackett v. EPA
[Footnote 11: U.S. (2023), 143 S. Ct 1322 (May 2023).]. The Court held that the Clean
Water Act's use of the term "waters" refers only to geographic features commonly
understood as "streams, oceans, rivers, and lakes and to adjacent wetlands that are
indistinguishable from those bodies of water due to a continuous surface connection." In

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doing so, the Court borrowed heavily from the plurality opinion in Rapanos v. United
States [Footnote 12: 547 U.S. 715, 126, S. Ct. 2208 (2006).].

The Sackett decision represents a clarification of the definition of waters of the United
States and necessarily affects the scope of any assumption of section 404 authority.
However, the preamble to the proposed rule does not include an analysis of how the
Court's decision may affect section 404 authority. The Sackett decision preceded this
proposed rule by only a few months and EPA and the Corps of Engineers only published
their revised definition of "Waters of the United States" on September 8, 2023 (88 Fed.
Reg, 61964.) In the absence of that guidance on the revised definition of Waters of the
United States, the agency could not have fully evaluated the ramifications of the Sackett
decision for purposes of section 404 authority when this proposed rule was issued. The
Alliance submits that it may be wise to pause consideration of the proposed rule while the
agency considers how the Court's decision, and the resulting guidance may affect
assumption of section 404 authority [Footnote 13: In the preamble, EPA emphasized that
the program description of the waters of the United States assumed by the state or tribe
must encompass all waters of the United States not retained by the Corps. All discharges
of dredged or fill material into waters of the United States must be regulated either by the
state or tribe or by the Corps. 88 Fed. Reg at 55291. Given this mandate it may be wise to
re-examine what a program description should include and how waters of the United States
would be identified.].

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0046-0001 and Section III.A of the final rule preamble regarding the scope of this
rulemaking.

Environmental Protection Network (EPN) (EPA-HQ-QW-2020-0276-005 7-0002)

Impact of Waters of the U.S. Definitions on 404 Assumption
EPN supports the recognition that the definition of waters of the U.S. (WOTUS) is likely
to change over time. In the Federal Register Notice on Page 55309, EPA discusses how
changes in the scope of WOTUS need to be addressed by states and Tribes that have
assumed the Section 404 program. Given the recent changes in the WOTUS definition and
ongoing litigation, EPN supports identifying this issue as an important aspect of program
assumption. The final rule should explain how this will be addressed, both for expansion
of the scope of waters and the contraction of scope, as has occurred as a result of the recent
Sackett decision. In addition, the final rule needs to explain how Section 404
implementation by a state or Tribe will be affected by the definition of WOTUS in that
specific geographical area. Until a nationally consistent definition is established, 27 states
are implementing the pre-2015 definition along with the Sackett decision, while 23 states
are implementing the 2023 definition. States, Tribes, and the public need to understand
how these varying definitions will be implemented by the Section 404 authority. The final
rule also needs to explain what will happen to state and Tribal 404 programs when a
nationally consistent WOTUS definition is established. How will those programs be
required to respond to the new definition?

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EPN also recommends that EPA and the COE consider issuing guidance on how the
WOTUS definition will apply in the different geographical regions of the U.S. that have
very different hydrologic features. This approach has been done in the past, and EPN
encourages consideration of this approach moving forward.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0046-0001 and Section III.A of the final rule preamble regarding the scope of this
rulemaking.

See Section IV.B.2 for of the final rule preamble for discussion regarding changes to
the geographic scope of a Tribal or State section 404 program.

Comments regarding the definition of "waters of the United States," or guidance
associated with the implementation of the definition of "waters of the United States"
are outside the scope of this rulemaking.

Charles River Watershed Association (CRWA^) (EPA-HO-OW-2020-0276-0062-00Q2N)

The decision in Sackett v. EPA demonstrably decreases protections for water bodies
throughout the United States; allowing states to implement less protective enforcement
programs could result in still weaker protections for remaining jurisdictional waters

CRWA is seriously concerned that this proposed rule could have the unintended result of
severely curtailing our country's ability to effectively protect our waters and
wetlands. [Footnote 2: Porter, Jeff, Surprising to see EPA now taking steps to make it easier
for states to take over the Federal Government's dredge and fill permit responsibilities,
Mintz (July 20, 2023), https://insights.mintz.com/post/102ijxn/surprising-to-see-epa-now-
taking-steps-to-make-it-easier-for-states-to-take-o ver.] Recent legal developments, and in
particular the May 25th ruling in Sackett v. EPA, have stripped many previously
jurisdictional waters of their protections under the CWA. In May 2013, the Environmental
Law Institute first published the results of a 50-state study that found that at that time, 19
states had laws that constrained, or in some cases, entirely eliminated "the ability of state
regulators to protect waters no longer covered by the federal Clean Water Act, or whose
federal protection has become uncertain."[Footnote 3: State Constraints: State-Imposed
Limitations on the Authority of Agencies to Regulate Waters Beyond the Scope of the
Federal Clean Water Act. Environmental Law Institute, Project No. 0931-01 (May, 2013),
https://www.eli.org/sites/default/files/eli-pubs/d23-04.pdf1 The report concluded that
states were simply not "filling in the gap," in the way that Congress likely
intended.[Footnote 4: Id.] A narrowed jurisdictional scope for qualifying wetlands and
waterways under the Clean Water Act could also potentially lead to pressure to reduce
state wetland jurisdiction to coincide with the Federal definition, a step that Massachusetts'
regulated community has already considered in the past. More than ever, EPA should be
considering how to strengthen protections and provide states with a strong federal
regulatory floor or framework to utilize in the wake of destabilizing rulings such as the
Sackett decision.

At the very least, current uncertainty around the protections of many waterbodies,
wetlands, and waterways would appear to litigate against further efforts to delegate

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regulatory responsibilities at this time, especially given "[t]he fact that EPA and several
State Attorneys General disagree over Sackett's impact, as evidenced by three currently
stayed litigations in Kentucky, Texas, and North Dakota."[Footnote 5: Supra note 2.]
Instead, with this rulemaking, EPA aims to actively increase the ease of delegating § 404
permitting. CRWA is disturbed by the very real possibility that a future deregulatory
administration, coupled with states uninterested - or unable - to protect previously
jurisdictional waters could weaken protections for our nation's hydrological system.

Agency Response: EPA disagrees with the comment stating that this rule could
severely curtail our country's ability to effectively protect our waters and wetlands.
This rule both facilitates the assumption process and clarifies minimum
requirements for Tribes and States to ensure the program is administered consistent
with the CWA. The scope of "waters of the United States" and a Tribe or State's
management of waters beyond the scope of the CWA is outside the scope of this
rulemaking. See Section IV.D of the final rule preamble for discussion of the
Agency's rationale regarding criminal enforcement standards applicable to Tribal
and State section 404 programs.

Anonymous (EPA-HO-OW-2020-0276-0065-00Q1)

The CWA only covers certain waters in the US. These waters are defined as "navigable
waters, defined as 'waters of the United States'" listed in the Background section 2. CWA
Section 404 paragraph. The definition of navigable water of the US only includes water
routes that are or have been used to transport commerce. This does not include the wetlands
and marsh areas that have fragile environments.

Does the EPA plan to extend protection of dredged and fill materials over the wetland and
marsh areas?

Agency Response: The scope of "waters of the United States" is outside the scope of
this rulemaking. The current definition of navigable waters under the CWA is
addressed in the Revised Definition of "Waters of the United States"; Conforming. To
track current implementation nationally please visit the EPA's "waters of the United

States" website.

Florida Department of Environmental Protection (FDEP) (EPA-HO-OW-2020-0276-0066-00Q3)
State programs like Florida's can also provide additional protection to waters beyond the
scope of EPA's authority. For example, Florida law defines "waters of the state" to mean
"any and all water on or beneath the surface of the ground or in the atmosphere, including
natural or artificial watercourses, lakes, ponds, or diffused surface water and water
percolating, standing, or flowing beneath the surface of the ground, as well as all coastal
waters within the jurisdiction of the state." § 373.09, Fla. Stat. Following the Supreme
Court's decision in Sackett v. EPA, 598 U.S. 651 (2023), which correctly determined that
EPA's CWA authority over Waters of the United States ("WOTUS") extends only to
geographical features described in ordinary parlance as "streams, oceans, rivers and lakes"
and to adjacent wetlands that are "indistinguishable" from those bodies

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of water due to a "continuous surface connection," state programs (such as Florida's ERP
Program) can provide additional regulatory protection for non-WOTUS waters.

Agency Response: EPA agrees that Tribal and State programs can protect waters
other than "waters of the United States." The extent of "waters of the United States"
is beyond the scope of the scope of this rulemaking.

Earthiustice et al. (EPA-HO-OW-2020-0276-0068-0Q27N)

As EPA is aware, for nearly two years Florida flouted a federal court's vacatur of the
Navigable Waters Protection Rule and EPA's directives to follow the law on the definition
of waters of the United States. See supra pp. 11-12. In light of Florida's failure to regulate
waters of the United States, EPA must plainly require that states at all times follow EPA
and Corps guidance on the applicable definition of waters of the United States. EPA must
also provide that failure to do so will result in the initiation of withdrawal of approval
proceedings. The Florida experience teaches that a state willing to flout federal law will
exploit a federal agency's trepidation. EPA's regulation must make clear that failure to
follow federal law will lead to withdrawal of approval.

Agency Response: The implementation of any particular State program is outside the
scope of this rulemaking. EPA notes that on February 15, 2024, the U.S. District
Court for the District of Columbia issued an order vacating the EPA's approval of
the Florida's CWA section 404 assumption request. An appeal of this decision is
pending. The U.S. Army Corps of Engineers is currently the section 404 permitting
authority within Florida.

Center for Biological Diversity (EPA-HO-OW-2020-0276-0083-00Q2N)

However, the proposed rule provides virtually no context on the interplay between program
assumption and the recent Supreme Court decision in Sackett v. EPA, instead minimizing
this complex inquiry into arbitrary default rules that have no basis in fact or law. [Footnote
2: Sackett v. EPA, No. 21-454 (U.S. May 25, 2023).] This rule consequently does not
fairly apprise interested parties of all significant subjects and issues involved in the
Assumption Rule in clear violation of the Administrative Procedures Act.[Footnote 3: 5
U.S.C. § 553(b)(3); Am. Iron & Steel Inst. v. Envtl. Prot. Agency, 568 F.2d 284 (3d Cir.
1977); Chocolate Mfrs. Asso. v. Block, 755 F.2d 1098 (4th Cir. 1985)]

Agency Response: See Section III.A of the final rule preamble and the Agency's
Response to Comment EPA-HQ-OW-2020-0276-0046-0001 regarding the scope of
this rulemaking.

Center for Biological Diversity (EPA-HO-OW-2020-0276-0083-00Q3N)

While EPA's proposed Assumption Rule is nearly 200 pages and purports to offer
substantive information on a host of programmatic changes, it is completely bereft of any
information on the most important and substantial issue in relation to the wetlands program
- the context of this rule in a post-Sackett world. EPA's failure to provide any context on
Sackett - sans two brief footnotes - bars the public from meaningfully commenting on
perhaps the most significant subject related to the Assumption Rule, leaving the entire
proposal in violation of the Administrative Procedures Act.

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Agency Response: This rulemaking does not affect the scope of "waters of the United
States." While a Tribe or State dredged or fill permitting program may be broader
than the scope of the CWA, the geographic scope of an approved Tribal or State
CWA section 404 programs is limited to certain "waters of the United States." As
such, the rulemaking appropriately does not discuss the Sackett decision. See Section
III.A of the final rule preamble and the Agency's Response to Comment EPA-HQ-
OW-2020-0276-0046-0001.

Center for Biological Diversity (EPA-HO-OW-2020-0276-0083-00Q4)

The Administrative Procedure Act ("APA") requires a notice of proposed rulemaking to
include detailed description of the significant subjects and issues involved." [Footnote 4: 5
U.S.C. § 553(b)(3).] Notice that is too vague or incomplete in describing the subject and
issues involved is generally deemed inadequate, as it fails to apprise parties of the rule's
complete subject matter and denies a fair opportunity to comment and
participate.[Footnote 5: Small Refiner Lead Phase-Down Task Force v. U.S. EPA, 705
F.2d 506, 549 (D.C.Cir. 1983)] Notice must instead be "sufficiently descriptive" on the
substance and issues of the proposed rule to enable interested to present their views on the
entire contents of the rule.[Footnote 6: Kennecott v. EPA, 780 F.2d 445, 452 (4th Cir.
1985); NRDC. v. United States EPA, 824 F.2d 1258, 1284 (1st Cir. 1987)] These
requirements are "basic to administrative law" and crucial to ensuring that EPA makes an
informed decision, taking into account public expertise. [Footnote 7: Chocolate Mfrs. Ass'n
755 F.2d at 1102 (4th Cir. 1985); Spartan Radiocasting Co. v. FCC, 619 F.2d 314, 321
(4th Cir. 1980).]

The jurisdictional definition of wetlands is clearly "of the subject and issues involved" in
the proposed rulemaking as contemplated by the APA. Without meaningful discussion of
this rule's impact, the notice provides no opportunity for the public to meaningfully
comment. The only substantive reference to Sackett is in a single footnote in reference to
the EPA's illegal attempt to set an arbitrary "administrative boundary" default of for
adjacent wetlands at approximately 300- feet.[Footnote 8: Clean Water Act Section 404
Tribal and State Program Regulation, RIN 2040-AF83 at 32 (2023)] The notice does not
further discuss how this administrative boundary functions in relation to the definition of
adjacent wetlands. More important, the notice reduces what must be a fact- based inquiry
into defining adjacent to an arbitrary line that violates the Clean Water Act and denies
reality. Adjacent wetlands do not end at 300 feet. In fact, EPA acknowledges that "large
wetland complexes can extend tens or even hundreds of miles" in connection with the main
river.

Agency Response: See Section IV.B.2 of the final rule preamble. EPA did not finalize
its proposed approach to administrative boundaries. The default understanding is
that the Corps would retain administrative authority over all jurisdictional wetlands
"adjacent" to retained waters, as that term is defined in 40 CFR 120.2. The
definitions in 40 CFR 120.2 are outside of the scope of this rulemaking. See also
Section III.A of the final rule preamble and the Agency's Response to Comment
EPA-HQ-OW-2020-0276-0046-0001.

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Center for Biological Diversity (EPA-HO-OW-2020-0276-0083-00Q5N)

The resulting confusion and absence of meaningful discussion makes it nearly impossible
for a person to be fairly apprised of the issues. For example, the Sackett opinion raises
serious questions about which waters are even assumable by states under the Clean Water
Act. EPA must analyze this issue and describe its interpretation of Sackett in this context
so that the public has meaningful notice regarding which waters may be affected by the
proposed regulations.

Then, given a new opportunity to comment that meaningfully integrated Sackett into the
decision, commentors would "have their first occasion to offer new and different criticisms
which the Agency might find convincing" and relevant to the Assumption Rule. [Footnote
9: NRDC, 824 F.2d at 1284.] An illegal default rule is not a substitute for a meaningful
discussion or application of Sackett. Absent this information, this notice violates the APA
and provides not meaningful opportunity to comment.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0083-0004. The effect of the Sackett decision is not the focus of this rule and are not
within its purview.

California State Water Resources Control Board (EPA-HO-OW-2020-0276-TRANS-Q82423-

003-000n

Comment 1

Sackett Decision has left a lot of uncertainty about how the Corps will implement its new
jurisdictional boundary, but it seems clear that the gap between non-assumable waters and
waters outside of Corps jurisdiction has been greatly reduced. Does EPA have any
information about what kinds of waters would still be assumable post-sackett[?]

Agency Response: Section IV.B.2 of the final rule preamble sets out clear time frames
and procedures for determining which "waters of the United States" are to be
retained by the Corps when a Tribe or State assumes administration of a section 404
program. Precisely which waters are to be assumed and which will be retained will
be determined on an individual Tribal or State basis as part of the assumption
process. See the Agency's Response to Comment EPA-HQ-OW-2020-0276-0083-
0004. The Sackett decision does not affect this final rule's procedures for
distinguishing between retained and assumed waters.

Earthiustice(EPA-HO-OW-2020-0276-0068-SD-l-000n

After more than a year ignoring federal law, it is time for EPA to require Florida to stop
applying the long-vacated 2020 Navigable Waters Protection Rule ("NWPR"). Florida's
refusal to comply with federal law threatens national waters and wetlands, as well as the
wildlife and communities that depend on them.

As you know, Florida assumed jurisdiction over the Clean Water Act's Section 404 dredge
and fill permitting program on or about December 22, 2020. Since that time, the state has
applied the NWPR definition of "waters of the United States" to determine the scope of
its 404 jurisdiction. On August 30, 2021, a federal court vacated the NWPR as unlawful at

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the time of its adoption. Pasqua Yaqui Tribe, et al. v. U.S. Env't Prot. Agency, et al., No.
CV-20-00266- TUC-RM, 2021 WL 3855977 (D. Ariz. Aug. 30, 2021). Accord Navajo
Nation v. Regan, No. 2:20-CV-00602, 2021 WL 4430466 (D.N.M. Sept. 27, 2021). As the
Court observed, the NWPR substantially reduced the number of waterways, including
wetlands, protected under the Clean Water Act as compared to prior rules and practices.
Pasqua Yaqui Tribe, 2021 WL 3855977, at *5.

On September 1, 2021, we notified the Florida Department of Environmental Protection
("DEP") of its obligation to abide by the vacatur of the NWPR. Letter from Tania Galloni,
Earthjustice, to Shawn Hamilton, Fla. Dep't Env't. Prot., Sept. 1, 2021 (Attachment 1). As
we explained, it was critical that Florida act immediately to ensure protection of all
waterways covered by the Clean Water Act. DEP did not respond.

Agency Response: Implementation and oversight of an individual State CWA section
404 program is outside the scope of this rulemaking. See Sections IV.A.3, IV.B.2 and
IV.B.3 of the final rule preamble regarding the requirement that Tribal and State
cover at least all "waters of the United States" not retained by the Corps of Engineers.
EPA notes that on February 15, 2024, the U.S. District Court for the District of
Columbia issued an order vacating the EPA's approval of the Florida's CWA section
404 assumption request. An appeal of this decision is pending. The U.S. Army Corps
of Engineers is currently the section 404 permitting authority within Florida.

Earthjustice (EPA-HO-OW-2020-0276-0068-SD-1-0002N)

Also in September 2021, the U.S. Army Corps of Engineers ("Corps") and U.S.
Environmental Protection Agency ("EPA") announced that they had halted
implementation of the NWPR nationwide and returned to the pre-2015 regulatory regime
to define waters of the United States. Current Implementation of Waters of the United
States, U.S. Env't Prot. Agency, https://www.epa.gov/wotus/current-implementation-
waters-united-states (updated Dec. 20, 2021) (Attachment 2). But still DEP continued to
apply NWPR.

By letter to DEP dated December 9, 2021, EPA affirmed that the Clean Water Act and its
implementing regulations require Florida to administer its 404 program consistent with the
definition of "waters of the United States" under the pre-2015 regulatory regime. Letter
from Daniel Blackman, U.S. Env't Prot. Agency, to Emile Hamilton, Fla. Dep't Env't
Prot., Dec. 9, 2021 (Attachment 3). EPA then reiterated Florida's obligation to apply the
pre-2015 regulatory regime in its January 31, 2022, letter. Letter from Jeaneanne Gettle,
U.S. Env't Prot. Agency, to John Truitt, Fla. Dep't Env't Prot., Jan. 31, 2022 (Attachment
4). Still, DEP refused to conform to the law.

Now for more than a year, Florida has continued to apply the unlawful, vacated NWPR to
404 actions, including determinations that no permit is required, enforcement and
compliance decisions, and the issuance of general permits. We understand that DEP has
been continuing to use the vacated portions of the Code of Federal Regulations containing
the NWPR's definition of waters of the United States for making jurisdictional
determinations, and the agency is publicly directing the regulated community to the

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vacated definition. WOTUS Determinations, Fla. Dep't Env't Prot.,
https://floridadep.gov/water/submerged-lands-environmental-resources-
coordination/content/wotus-determinations (last visited January 17, 2022) (using the
"waters of the United States" definition in 40 C.F.R. 120—NWPR at the time—in option
three for performing jurisdictional determinations) (Attachment 5). Florida is flouting
federal law, and EPA is failing to step in.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0068-SD-1-0001.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-1-0003N)

DEP has attempted to justify this flagrant violation in a number of ways, including saying
the state was waiting for EPA's clarification, then that the state had a year to comply with
the change in federal law, and finally that a new rule would add another one-year period
for the state to come into compliance. See, e.g., House Environment, Agriculture and
Flooding Subcommittee Hearing, at 21:10-24:15, https://www.myfloridahouse.gov/
VideoPlayer. aspx?eventID=7473. None of those rationalizations hold water. Rather, they
reveal that Florida's actions are nothing more than the willful failure to regulate waters of
the United States in Florida.

EPA has allowed Florida to violate the law for too long. More than one year has passed
since the court issued its decision in Pasqua Yaqui Tribe, and more than one year has
passed since EPA notified DEP that it must apply the pre-2015 regulatory regime. And
EPA has codified a new definition of waters of the United States, which Florida will no
doubt delay in implementing for as long as possible. In the meantime, wetlands properly
protected as waters of the United States are being destroyed across the state.

EPA must ensure that DEP comes into compliance and stops applying NWPR to the
detriment of Florida's precious wetlands. Continued inaction is a de facto acceptance of
DEP's flagrant disregard of the law, and EPA cannot turn a blind eye while Florida's
critical wetlands are degraded and developed. We formally request a meeting with EPA to
discuss this ongoing issue to ensure that DEP follows the law.

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0068-SD-1-0001.

Earthiustice (EPA-HO-OW-2020-0276-0068-SD-3-0Q1 n

And EPA must ensure that states assuming the program regulate all waters of the United
States, especially when there are changes to that definition. Florida's assumed program,
for example, is still illegally applying the vacated Trump rule for defining waters of the
United States, despite vacatur of that rule by two federal district courts and despite being
directed by EPA to apply the pre-2016 regulatory regime [Footnote 5: Letter from
Frederick Thompson, Acting Deputy Regional Administrator, EPA, to Emile D. Hamilton,
Fla. Dep't of Env't Prot., May 23, 2022.].

Agency Response: See the Agency's Response to Comment EPA-HQ-OW-2020-0276-
0068-SD-1-0001.

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