Any State that seeks to administer a 404 program under this part shall submit to the Regional Administrator at least three copies of the following:

(a) A letter from the Governor of the State or Tribal leader requesting program approval.

(b) A complete program description, as set forth in § 233.11.

(c) An Attorney General's statement, as set forth in § 233.12.

(d) A Memorandum of Agreement with the Regional Administrator, as set forth in § 233.13.

(e) A Memorandum of Agreement with the Secretary, as set forth in § 233.14.

(f) Copies of all applicable State statutes and regulations, including those governing applicable State administrative procedures.

[53 FR 20776, June 1, 1988, as amended at 89 FR 103502, Dec. 18, 2024]

The program description as required under § 233.10 shall include:

(a) A description of the scope and structure of the State's program. The description must include the extent of the State's jurisdiction, scope of activities regulated, anticipated coordination, scope of permit exemptions if any, permit review criteria, and a description as to how the permit review criteria will be sufficient to carry out the requirements of 40 CFR part 233 subpart C.

(b) A description of the State's permitting, administrative, judicial review, and other applicable procedures.

(c) A description of the basic organization and structure of the State agency (agencies) which will have responsibility for administering the program. If more than one State agency is responsible for the administration of the program, the description shall address the responsibilities and additional budget and funding mechanisms of each agency and how the agencies intend to coordinate administration, funding, compliance, enforcement, and evaluation of the program.

(d) A description of the funding and staffing which will be available for program administration, including staff position descriptions and qualifications as well as program budget and funding mechanisms, sufficient to meet the requirements of 40 CFR part 233, subparts C through E.

(e) A description and schedule of the actions that will be taken following EPA approval for the State to begin administering the program if the State makes a request to assume administration of the program more than 30 days after EPA's approval.

(f) An estimate of the anticipated workload, including but not limited to number of discharges, permit reviews, authorizations and field visits, and decisions regarding jurisdiction.

(g) Copies of permit application forms, permit forms, and reporting forms.

(h) A description of the State's compliance evaluation and enforcement programs, including staff position descriptions and qualifications as well as program budget and funding mechanisms, sufficient to meet the requirements of 40 CFR part 233, subpart E, and an explanation of how the State will coordinate its enforcement strategy with that of the Corps and EPA.

(i) A description of the waters of the United States within a State over which the State assumes jurisdiction under the assumed program; a description of the waters of the United States within a State over which the Secretary retains administrative authority subsequent to program approval; and a comparison of the State and Federal definitions of wetlands.

(1) Before a State provides a program submission to the Regional Administrator, the Governor, Tribal leader, or Director shall submit a request to the Regional Administrator that the Corps identify the subset of waters of the United States that would remain subject to Corps administrative authority to include in its program submission. The request shall also include one of the following elements of required information: a citation or copy of legislation authorizing funding to prepare for assumption, a citation or copy of legislation authorizing assumption, a Governor or Tribal leader directive, a letter from the head of a State agency, or a copy of a letter awarding a grant or other funding allocated to investigate and pursue assumption. If the Regional Administrator determines that the request includes the required information, within seven days of receiving the State's request, the Regional Administrator shall transmit the request for the retained waters description to the Corps. Transmitting the request to the Corps is intended to allow the Corps time to review its RHA section 10 list(s) and prepare a description of retained waters based on that list(s), in accordance with paragraph (i)(4) of this section, if the Corps chooses to do so.

(2) When the Regional Administrator transmits a request for the retained waters description to the Corps, the Regional Administrator shall notify the public of this transmission by posting a notice on its website and circulating notice to those persons known to be interested in such matters of its transmission, inviting public input to the Corps and the State for the subsequent 60 days on the development of the description.

(3) If the Corps does not notify the State and EPA that it intends to provide a retained waters description within 30 days of receiving the State's request transmitted by EPA, or if it does not provide a retained waters description within 180 days of receiving the State's request transmitted by EPA, the State may develop a retained waters description pursuant to the process described in paragraph (i)(4) of this section. Alternatively, the State and the Corps may mutually agree to extend the time period in which the Corps may develop the retained waters description.

(4) The program description in the State's program request to the Regional Administrator shall include a description of those waters of the United States over which the Corps retains administrative authority. The description may be a retained waters description that the Corps provides the State pursuant to paragraph (i)(1) of this section, or, if the Corps did not provide a list to the State, a description that the State prepares pursuant to paragraph (i)(3) of this section. The retained waters description prepared by either the Corps or the State shall be compiled as follows:

(i) Using the relevant RHA section 10 list(s) as a starting point;

(ii) Placing waters of the United States, or reaches of these waters, from the RHA section 10 list 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;

(iii) To the extent feasible and to the extent that information is available, adding other waters or reaches of waters 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; and

(iv) Adding a description of retained wetlands that are adjacent to the foregoing waters. A specific listing of each wetland that is retained is not required.

(5) As a general matter, descriptions of retained waters compiled in accordance with the process in paragraph (i)(4) of this section will satisfy the statutory criteria for retained waters. The Regional Administrator ultimately determines whether to approve a State program submission, however.

(6) The State assumes permitting authority over all waters of the United States not retained by the Corps as described in paragraph (i)(4) of this section. The State does not assume permitting authority over waters of the United States in Indian Country and Lands of Exclusive Federal Jurisdiction, as these are outside of the State's jurisdiction. All discharges of dredged or fill material into waters of the United States must be regulated either by the State or the Corps; at no time shall there be a gap in permitting authority for any water of the United States.

(j) A description of the specific best management practices proposed to be used to satisfy the exemption provisions of section 404(f)(1)(E) of the Act for construction or maintenance of farm roads, forest roads, or temporary roads for moving mining equipment.

(k) 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 40 CFR part 230, subpart J. The 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. For example, a State program may choose to provide for mitigation in the form of banks and permittee-responsible compensatory mitigation but not establish an in-lieu fee program. A State program may not be less stringent than the requirements of subpart J.

[89 FR 103502, Dec. 18, 2024]

(a) Any State that seeks to administer a program under this part shall submit a statement from the State Attorney General (or the attorney for those State or interstate agencies which have independence legal counsel), that the laws and regulations of the State, or an interstate compact, provide adequate authority to carry out the program and meet the applicable requirements of this part. This statement shall cite specific statutes and administrative regulations which are lawfully adopted at the time the statement is signed and which shall be fully effective by the time the program is approved, and, where appropriate, judicial decisions which demonstrate adequate authority. The attorney signing the statement required by this section must have authority to represent the State agency in court on all matters pertaining to the State program.

(b) If a State seeks approval of a program covering activities on Indian lands, the statement shall contain an analysis of the State's authority over such activities.

(c) The State Attorney General's statement shall contain a legal analysis of the effect of State law regarding the prohibition on taking private property without just compensation on the successful implementation of the State's program.

(d) In those States where more than one agency has responsibility for administering the State program, the statement must include certification that each agency has full authority to administer the program within its category of jurisdiction and that the State, as a whole, has full authority to administer a complete State section 404 program.

(a) Any State that seeks to administer a program under this part shall submit a Memorandum of Agreement executed by the Director and the Regional Administrator. The Memorandum of Agreement shall become effective upon approval of the State program. When more than one agency within a State has responsibility for administering the State program, Directors of each of the responsible State agencies shall be parties to the Memorandum of Agreement.

(b) The Memorandum of Agreement shall set out the State and Federal responsibilities for program administration and enforcement. These shall include, but not be limited to:

(1) Provisions specifying classes and categories of permit applications for which EPA will waive Federal review (as specified in § 233.51).

(2) Provisions specifying the frequency and content of reports, documents and other information which the State may be required to submit to EPA in addition to the annual report, as well as a provision establishing the submission date for the annual report. The State shall also allow EPA routinely to review State records, reports and files relevant to the administration and enforcement of the approved program.

(3) Provisions addressing EPA and State roles and coordination with respect to compliance monitoring and enforcement activities.

(4) Provisions addressing modification of the Memorandum of Agreement.

(5) Provisions specifying the date upon which the State shall begin administering its program. This effective date shall be 30 days from the date that notice of the Regional Administrator's decision is published in the Federal Register, except where the Regional Administrator has agreed to a State's request for a later effective date, not to exceed 180 days from the date of publication of the decision in the Federal Register.

[53 FR 20776, June 1, 1988, as amended at 89 FR 103503, Dec. 18, 2024]

(a) Before a State program is approved under this part, the Director shall enter into a Memorandum of Agreement with the Secretary. When more than one agency within a State has responsibility for administering the State program, Directors of each of the responsible agencies shall be parties of the Memorandum of Agreement.

(b) The Memorandum of Agreement shall include:

(1) A description of all navigable waters within the State over which the Corps retains administrative authority. Retained waters shall be identified in accordance with procedures set forth in § 233.11(i).

(2) Procedures whereby the Secretary will, prior to or on the effective date set forth in the Memorandum of Agreement with the Regional Administrator, transfer to the State pending section 404 permit applications for discharges into State regulated waters and other relevant information not already in the possession of the Director.

Note 1 to paragraph (b)(2):

Where a State permit program includes coverage of those navigable waters in which only the Secretary may issue section 404 permits, the State is encouraged to establish in this Memorandum of Agreement procedures for joint processing of Federal and State permits, including joint public notice and public hearings.

(3) An identification of all general permits issued by the Secretary, the terms and conditions of which the State intends to administer and enforce upon receiving approval of its program, and a plan for transferring responsibility for these general permits to the State, including procedures for the prompt transmission from the Secretary to the Director relevant information not already in the possession of the Director. The information to be transferred includes but is not limited to support files for permit issuance, conditions and certifications placed on the Corps general permits, compliance reports, and records of enforcement actions.

(4) Procedures whereby the Secretary would notify the State of changes to its RHA section 10 list that implicate waters 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, and the State would then incorporates these changes into its retained waters description, pursuant to the procedures in § 233.16(d).

[53 FR 20776, June 1, 1988, as amended at 89 FR 103503, Dec. 18, 2024]

(a) The 120 day statutory review period shall commence on the date of receipt of a complete State program submission as set out in § 233.10 of this part. EPA shall determine whether the submission is complete within 30 days of receipt of the submission and shall notify the State of its determination. If EPA finds that a State's submission is incomplete, the statutory review period shall not begin until all the necessary information is received by EPA.

(b) If EPA determines the State significantly changes its submission during the review period, the statutory review period shall begin again upon the receipt of a revised submission.

(c) The State and EPA may extend the statutory review period by agreement.

(d) Within 10 days of receipt of a complete State section 404 program submission, the Regional Administrator shall provide copies of the State's submission to the Corps, FWS, and NMFS (both Headquarters and appropriate Regional organizations.)

(e) After determining that a State program submission is complete, the Regional Administrator shall publish notice of the State's program submission in the Federal Register and in enough of the largest newspapers in the State to attract statewide attention. The Regional Administrator shall also mail notice to persons known to be interested in such matters. Existing State, EPA, Corps, FWS, and NMFS mailing lists shall be used as a basis for this mailing. However, failure to mail all such notices shall not be grounds for invalidating approval (or disapproval) of an otherwise acceptable (or unacceptable) program. This notice shall:

(1) Provide for a comment period of not less than 45 days during which interested members of the public may express their views on the State program.

(2) Provide for a public hearing within the State to be held not less than 30 days after notice of hearing is published in the Federal Register;

(3) Indicate where and when the State's submission may be reviewed by the public;

(4) Indicate whom an interested member of the public with questions should contact; and

(5) Briefly outline the fundamental aspects of the State's proposed program and the process for EPA review and decision.

(f) Within 90 days of EPA's receipt of a complete program submission, the Corps, FWS, and NMFS shall submit to EPA any comments on the State's program.

(g) Within 120 days of receipt of a complete program submission (unless an extension is agreed to by the State), the Regional Administrator shall approve or disapprove the program based on whether the State's program fulfills the requirements of this part and the Act, taking into consideration all comments received. The Regional Administrator shall prepare a responsiveness summary of significant comments received and the Regional Administrator's response to these comments. The Regional Administrator shall respond individually to comments received from the Corps, FWS, and NMFS.

(h) If the Regional Administrator approves the State's section 404 program, the Regional Administrator shall notify the State and the Secretary of the decision, publish notice in the Federal Register, and post notice on EPA's website. The program for State-assumed waters shall transfer to the State on the date established in the Memorandum of Agreement between the State and Regional Administrator. The Secretary shall suspend the issuance by the Corps of section 404 permits in State regulated waters on such effective date.

(i) If the Regional Administrator disapproves the State's program based on the State not meeting the requirements of the Act and this part, the Regional Administrator shall notify the State of the reasons for the disapproval and of any revisions or modifications to the State's program which are necessary to obtain approval. If the State resubmits a program submission remedying the identified problem areas, the approval procedure and statutory review period shall begin upon receipt of the revised submission.

[53 FR 20776, June 1, 1988, as amended at 89 FR 103503, Dec. 18, 2024]

(a) The State shall keep the Regional Administrator fully informed of any proposed or actual changes to the State's statutory or regulatory authority or any other modifications which are significant to administration of the program.

(b) Any approved program which requires revision because of a modification to this part or to any other applicable Federal statute or regulation shall be revised within one year of the date of promulgation of such regulation, except that if a State must amend or enact a statute in order to make the required revision, the revision shall take place within two years.

(c) States with approved programs shall notify the Regional Administrator whenever they propose to transfer all or part of any program from the approved State agency to any other State agency. The new agency is not authorized to administer the program until approved by the Regional Administrator under paragraph (d) of this section.

(d) Approval of revision of a State program shall be accomplished as follows:

(1) The Director shall submit a modified program description or other documents which the Regional Administrator determines to be necessary to evaluate whether the program complies with the requirements of the Act and this part.

(2) Notice of approval of program changes which the Regional Administrator determines are not substantial revisions may be given by letter from the Regional Administrator to the Governor or the Tribal leader and are effective upon the date in the approval letter. The Regional Administrator will notify the Secretary of the approval of any approved program modifications. The Regional Administrator will also notify other Federal agencies of approved program modifications as appropriate. The Regional Administrator shall post any such approval letters on the relevant pages of EPA's website.

(3) Whenever the Regional Administrator determines that the proposed revision is substantial, the Regional Administrator shall publish and circulate notice to those persons known to be interested in such matters, provide opportunity for a public hearing, and consult with the Corps, FWS, and NMFS. The Regional Administrator shall approve or disapprove program revisions based on whether the program fulfills the requirements of the Act and this part, and shall publish notice of the decision in the Federal Register. For purposes of this paragraph, substantial revisions include, but are not limited to, revisions that remove waters from the retained waters description (other than de minimis removals), as well as revisions that affect the scope of activities regulated, criteria for review of permits, public participation, or enforcement capability. Revisions to an Indian Tribe's assumed program that would add a new geographic area to the approved program require that the Regional Administrator determine that the Tribe meets the eligibility criteria in § 233.60 with regard to the new geographic area and constitute substantial revisions.

(4) Substantial program changes shall become effective upon approval by the Regional Administrator and publication of notice in the Federal Register.

(e) Whenever the Regional Administrator has reason to believe that circumstances have changed with respect to a State's program, the Regional Administrator may request and the State shall provide a supplemental Attorney General's statement, program description, or such other documents or information as are necessary to evaluate the program's compliance with the requirements of the Act and this part.

[53 FR 20776, June 1, 1988, as amended at 89 FR 103504, Dec. 18, 2024]