(a) This part specifies the procedures EPA will follow, and the criteria EPA will apply, in approving, reviewing, and withdrawing approval of State programs under section 404 of the Act.

(b) Except as provided in § 232.3, a State program must regulate all discharges of dredged or fill material into waters regulated by the State under section 404(g)-(1). Partial State programs are not approvable under section 404. A State's decision not to assume existing Corps' general permits does not constitute a partial program. The discharges previously authorized by a Corps' general permit will be regulated by State permits. However, in many cases, States other than Indian Tribes will lack authority to regulate activities on Indian lands. This lack of authority does not impair that State's ability to obtain full program approval in accordance with this part, i.e., inability of a State which is not an Indian Tribe to regulate activities on Indian lands does not constitute a partial program. The Secretary of the Army acting through the Corps of Engineers will continue to administer the program on Indian lands if a State which is not an Indian Tribe does not seek and have authority to regulate activities on Indian lands.

(c) Nothing in this part precludes a State from adopting or enforcing requirements which are more stringent or from operating a program with greater scope, than required under this part. Where an approved State program has a greater scope than required by Federal law, the additional coverage is not part of the Federally approved program and is not subject to Federal oversight or enforcement.

(d) State assumption of the section 404 program is limited to certain waters, as provided in section 404(g)(1) and as identified through the process laid out in § 233.11(i). The Federal program operated by the Corps of Engineers continues to apply to the remaining waters in the State even after program approval. However, this does not restrict States from regulating discharges of dredged or fill material into those waters over which the Secretary retains section 404 jurisdiction.

(e) Any approved State Program shall, at all times, be conducted in accordance with the requirements of the Act and of this part. While States may impose more stringent requirements, they may not impose any less stringent requirements for any purpose. States may not make one requirement more lenient than required under these regulations as a tradeoff for making another requirement more stringent than required. Where the 404(b)(1) Guidelines (40 CFR part 230) or other regulations affecting State 404 programs suggest that the District Engineer or Corps of Engineers is responsible for certain decisions or actions (e.g., approving mitigation bank instruments), in an approved State Program the State Director carries out such action or responsibility for purposes of that program, as appropriate.

(f) EPA may facilitate resolution of disputes between Federal agencies, Tribes, and States seeking to assume and/or administer a CWA section 404 program. Where a dispute resolution or elevation process is enumerated in this part or in an agreement approved by EPA at the time of assumption or program revision, such process and procedures shall be followed.

[53 FR 20776, June 1, 1988, as amended at 58 FR 8183, Feb. 11, 1993; 89 FR 103501, Dec. 18, 2024]

The definitions in parts 230 and 232 as well as the following definitions apply to this part.

Act means the Clean Water Act (33 U.S.C. 1251 et seq.).

Corps means the U.S. Army Corps of Engineers.

Federal Indian reservation means all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation.

FWS means the U.S. Fish and Wildlife Service.

Indian lands means “Indian country” as defined under 18 U.S.C. 1151. That section defines Indian country as:

(1) All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation,

(2) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State, and

(3) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

Indian Tribe means any Indian Tribe, band, group, or community recognized by the Secretary of the Interior and exercising governmental authority over a Federal Indian reservation.

Interstate agency means an agency of two or more States established by or under an agreement or compact approved by the Congress, or any other agency of two or more States having substantial powers or duties pertaining to the control of pollution.

NMFS means the National Marine Fisheries Service.

Retained waters description: The subset of waters of the United States over which the Corps retains administrative authority upon program assumption by a State as identified through the process at § 233.11(i). The description shall address, in the case of State assumption, the extent to which waters on Indian lands are retained.

RHA section 10 list: The list of waters determined to be navigable waters of the United States pursuant to section 10 of the Rivers and Harbors Act and 33 CFR part 329 and that are maintained in Corps district offices pursuant to 33 CFR 329.16.

State means any of the 50 States, the District of Columbia, Guam, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, the Commonwealth of the Northern Mariana Islands, the Trust Territory of the Pacific Islands, or an Indian Tribe, as defined in this part, which meet the requirements of § 233.60. For purposes of this part, the word State also includes any interstate agency requesting program approval or administering an approved program.

State Director (Director) means the chief administrative officer of any State or interstate agency operating an approved program, or the delegated representative of the Director. If responsibility is divided among two or more State or interstate agencies, Director means the chief administrative officer of the State or interstate agency authorized to perform the particular procedure or function to which reference is made.

State 404 program or State program means a program which has been approved by EPA under section 404 of the Act to regulate the discharge of dredged or fill material into all waters of the United States except those identified in the retained waters description as defined in § 233.2.

[53 FR 20776, June 1, 1988, as amended at 58 FR 8183, Feb. 11, 1993; 89 FR 103501, Dec. 18, 2024]

(a) Any information submitted to EPA pursuant to these regulations may be claimed as confidential by the submitter at the time of submittal and a final determination as to that claim will be made in accordance with the procedures of 40 CFR part 2 and paragraph (c) of this section.

(b) Any information submitted to the Director may be claimed as confidential in accordance with State law, subject to paragraphs (a) and (c) of this section.

(c) Claims of confidentiality for the following information will be denied:

(1) The name and address of any permit applicant or permittee,

(2) Effluent data,

(3) Permit application, and

(4) Issued permit.

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 shall make known such interest in the official records of the agency and shall refrain from participating in any manner in such decision by the agency or any entity that reviews agency decisions.

[89 FR 103502, Dec. 18, 2024]