- § 233.50 - Review of and objection to State permits and review of compensatory mitigation instruments.
- § 233.51 - Waiver of review.
- § 233.52 - Program reporting.
- § 233.53 - Withdrawal of program approval.
§ 233.50 - Review of and objection to State permits and review of compensatory mitigation instruments.
(a) The Director shall promptly transmit to the Regional Administrator:
(1) A copy of the public notice for any complete permit applications received by the Director, except those for which permit review has been waived under § 233.51. The State shall supply the Regional Administrator with copies of public notices for permit applications for which permit review has been waived whenever requested by EPA.
(2) A copy of a draft general permit whenever the State intends to issue a general permit.
(3) Notice of every significant action taken by the State agency related to the consideration of any permit application except those for which Federal review has been waived or draft general permit.
(4) A copy of every issued permit.
(5) A copy of the Director's response to another State's comments/recommendations, if the Director does not accept these recommendations (§ 233.32(a)).
(b) Unless review has been waived under § 233.51, the Regional Administrator shall provide a copy of each public notice, each draft general permit, and other information needed for review of the application to the Corps, FWS, and NMFS, within 10 days of receipt. These agencies shall notify the Regional Administrator within 15 days of their receipt if they wish to comment on the public notice or draft general permit. Such agencies should submit their evaluation and comments to the Regional Administrator within 50 days of such receipt. The final decision to comment, object or to require permit conditions shall be made by the Regional Administrator. (These times may be shortened by mutual agreement of the affected Federal agencies and the State.)
(c) If the information provided is inadequate to determine whether the permit application or draft general permit meets the requirements of the Act, these regulations, and the 404(b)(1) Guidelines, the Regional Administrator may, within 30 days of receipt, request the Director to transmit to the Regional Administrator the complete record of the permit proceedings before the State, or any portions of the record, or other information, including a supplemental application, that the Regional Administrator determines necessary for review.
(d) If the Regional Administrator intends to comment upon, object to, or make recommendations with respect to a permit application, draft general permit, or the Director's failure to accept the recommendations of an affected State submitted pursuant to § 233.31(a), the Regional Administrator shall notify the Director of the Regional Administrator's intent within 30 days of receipt. If the Director has been so notified, the permit shall not be issued until after the receipt of such comments or 90 days of the Regional Administrator's receipt of the public notice, draft general permit, or Director's response (§ 233.31(a)), whichever comes first. The Regional Administrator may notify the Director within 30 days of receipt that there is no comment but that the Regional Administrator reserves the right to object within 90 days of receipt, based on any new information brought out by the public during the comment period or at a hearing.
(e) If the Regional Administrator has given notice to the Director under paragraph (d) of this section, the Regional Administrator shall submit to the Director, within 90 days of receipt of the public notice, draft general permit, or Director's response (§ 233.31(a)), a written statement of the Regional Administrator's comments, objections, or recommendations; the reasons for the comments, objections, or recommendations; and the actions that must be taken by the Director in order to eliminate any objections. Any such objection shall be based on the Regional Administrator's determination that the proposed permit is:
(1) The subject of an interstate dispute under § 233.31(a); and/or
(2) Outside requirements of the Act, these regulations, or the 404(b)(1) Guidelines. The Regional Administrator shall make available upon request a copy of any comment, objection, or recommendation on a permit application or draft general permit to the permit applicant or to the public.
(f) When the Director has received an EPA objection or requirement for a permit condition to a permit application or draft general permit under this section, the Director shall not issue the permit unless the Director has taken the steps required by the Regional Administrator to eliminate the objection.
(g) Within 90 days of receipt by the Director of an objection or requirement for a permit condition by the Regional Administrator, the State or any interested person may request that the Regional Administrator hold a public hearing on the objection or requirement. The Regional Administrator shall conduct a public hearing whenever requested by the State proposing to issue the permit, or if warranted by significant public interest based on requests received.
(h) If a public hearing is held under paragraph (g) of this section, the Regional Administrator shall, following that hearing, reaffirm, modify or withdraw the objection or requirement for a permit condition, and notify the Director of this decision.
(1) If the Regional Administrator withdraws the objection or requirement for a permit condition, the Director may issue the permit.
(2) If the Regional Administrator does not withdraw the objection or requirement for a permit condition, the Director must issue a permit revised to satisfy the Regional Administrator's objection or requirement for a permit condition or notify EPA of its intent to deny the permit within 30 days of receipt of the Regional Administrator's notification.
(i) If no public hearing is held under paragraph (g) of this section, the Director within 90 days of receipt of the objection or requirement for a permit condition shall either issue the permit revised to satisfy EPA's objections or notify EPA of its intent to deny the permit.
(j) In the event that the Director neither satisfies EPA's objections or requirement for a permit condition nor denies the permit, the Secretary shall process the permit application.
(k) If the State establishes third-party compensation mechanisms as part of its section 404 program (e.g., banks or in-lieu fee programs), the Director must transmit a copy of instruments associated with these compensatory mitigation approaches to the Regional Administrator, the Corps, FWS, and NMFS for review prior to issuance, as well as to any other State agencies to the extent the State committed to do so in the program description pursuant to § 233.11(k). To the extent the State deems appropriate, the Director may also send these draft instruments to other relevant State agencies for review. This transmission and review requirement does not apply to permittee-responsible compensatory mitigation. If the Regional Administrator, the Corps, FWS, or NMFS intend to comment upon such instruments they must notify the Director of their intent within 30 days of receipt. If the Director has been so notified, the instrument must not be issued until after the receipt of such comments or after 90 days of receipt of the proposed instrument by the Regional Administrator, the Corps, the FWS, or NMFS. The Director must respond to any comments received within 90 days from the Regional Administrator, the Corps, FWS, NMFS, or State agencies that received the draft instruments pursuant to the State program description and inform the commenting agency of any comments or recommendations not accepted prior to approving the final compensatory mitigation instrument. In the event that the Regional Administrator has commented that the instrument fails to apply or ensure compliance with the requirements of § 233.11(k), the Director must not approve the final compensatory mitigation instrument until the Regional Administrator notifies the Director that the final instrument ensures compliance with § 233.11(k).
§ 233.51 - Waiver of review.
(a) The MOA with the Regional Administrator shall specify the categories of discharge for which EPA will waive Federal review of State permit applications. After program approval, the MOA may be modified to reflect any additions or deletions of categories of discharge for which EPA will waive review. The Regional Administrator shall consult with the Corps, FWS, and NMFS prior to specifying or modifying such categories.
(b) With the following exceptions, any category of discharge is eligible for consideration for waiver:
(1) Draft general permits;
(2) Discharges with reasonable potential for affecting endangered or threatened species as determined by FWS;
(3) Discharges with reasonable potential for adverse impacts on waters of another State;
(4) Discharges known or suspected to contain toxic pollutants in toxic amounts (section 101(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.
(c) The Regional Administrator retains the right to terminate a waiver as to future permit actions at any time by sending the Director written notice of termination.
(d) If within 20 days of public notice of a permit application, pursuant to § 233.32, a Tribe notifies EPA that the application potentially affects Tribal rights or interests, including those beyond reservation boundaries, EPA will request a copy of the public notice for the permit application, even if Federal review of the relevant category of discharge has been waived, and the Regional Administrator and the Director shall then proceed in accordance with § 233.50.
§ 233.52 - Program reporting.
(a) The starting date for the annual period to be covered by reports shall be established in the Memorandum of Agreement with the Regional Administrator (§ 233.13.)
(b) The Director shall submit to the Regional Administrator within 90 days after completion of the annual period, a draft annual report evaluating the State's administration of its program identifying problems the State has encountered in the administration of its program, steps taken to resolve these problems, and recommendations for resolving any outstanding problems along with a timeline for resolution. Items that shall be addressed in the annual report include an assessment of the cumulative impacts of the State's permitting program on the integrity of the State regulated waters; identification of areas of particular concern or interest within the State; the number and nature of individual and general permits issued, modified, and denied; the number of violations identified and number and nature of enforcement actions taken; the number of suspected unauthorized activities reported and nature of action taken; an estimate of the extent of activities regulated by general permits; the number of permit applications received but not yet processed; and an assessment of avoidance, minimization, and compensation required for permits issued, including the type and quantity of resources impacted, type and quantity of compensation required (including quantification and rationale for out-of-kind or compensation provided outside the watershed), and a description of why compensation was not required, if applicable. The Annual Report shall briefly summarize resolution of issues identified in the previous Annual Report. Additionally, to the extent appropriate, the Annual Report should analyze program resources and staffing, including staffing changes, training, and vacancy rate since approval or the previous Annual Report.
(c) The State shall make the draft annual report available for public inspection.
(d) Within 60 days of receipt of the draft annual report, the Regional Administrator will complete review of the draft report and transmit comments, questions, and/or requests for additional evaluation and/or information to the Director.
(e) Within 30 days of receipt of the Regional Administrator's final comments, the Director will finalize the annual report, incorporating and/or responding to the Regional Administrator's comments, and transmit the final report to the Regional Administrator. The Director shall make a copy of the final annual report, accepted by the Regional Administrator, publicly available.
(f) Upon acceptance of the annual report, the Regional Administrator shall publish notice of availability of the final annual report.
§ 233.53 - Withdrawal of program approval.
(a) A State with a program approved under this part may voluntarily transfer program responsibilities required by Federal law to the Secretary by taking the following actions, or in such other manner as may be agreed upon with the Administrator.
(1) The State shall give the Administrator and the Secretary no less than 180 days' notice of the proposed transfer. With the notice, the State shall submit a plan for the orderly transfer of all relevant program information not in the possession of the Secretary (such as permits, permit files, reports, permit applications, as well as files regarding ongoing investigations, compliance orders, and enforcement actions) which are necessary for the Secretary to administer the program. The notice shall include the proposed transfer date.
(2) Within 60 days of receiving the notice and transfer plan, the Administrator and the Secretary shall evaluate the State's transfer plan and shall identify for the State any additional information needed by the Federal government for program administration.
(3) At least 30 days before the transfer is to occur the Administrator shall publish notice of transfer in the
(b) The Administrator may withdraw program approval when a State program no longer complies with the requirements of this part, and the State fails to take corrective action. Such circumstances include the following:
(1) When the State's legal authority no longer meets the requirements of this part, including:
(i) Failure of the State to promulgate or enact new authorities when necessary; or
(ii) Action by a State legislature or court striking down or limiting State authorities.
(2) When the operation of the State program fails to comply with the requirements of this part, including:
(i) Failure to exercise control over activities required to be regulated under this part, including failure to issue permits;
(ii) Issuance of permits which do not conform to the requirements of this part; or
(iii) Failure to comply with the public participation requirements of this part.
(3) When the State's enforcement program fails to comply with the requirements of this part, including:
(i) Failure to act on violations of permits or other program requirements;
(ii) Failure to seek adequate enforcement penalties or to collect administrative fines when imposed, or to implement alternative enforcement methods approved by the Administrator; or
(iii) Failure to inspect and monitor activities subject to regulation.
(4) When the State program fails to comply with the terms of the Memorandum of Agreement required under § 233.13.
(c) The following procedures apply when the Administrator orders the commencement of proceedings to determine whether to withdraw approval of a State program:
(1) Notice to State. If the Regional Administrator has cause to believe that a State is not administering or enforcing its assumed program in compliance with the requirements of the CWA and this part, the Regional Administrator shall inform the Director in writing of the specific areas of alleged noncompliance. If the State demonstrates to the Regional Administrator within 30 days of such notification that the State program is in compliance, the Regional Administrator shall take no further action toward withdrawal, and shall so notify the State in writing.
(2) Public hearing. If the State has not demonstrated its compliance to the satisfaction of the Regional Administrator within 30 days of notification, the Regional Administrator shall inform the Director of that finding. The Administrator shall then schedule a public hearing to solicit comments on the administration of the State program and its compliance with the Act and this part. Notice of such public hearing shall be published in the
(3) Notice to State of findings. If the Administrator finds, after the public hearing, that the State is not in compliance, within 90 days of the public hearing the Administrator shall notify the State via letter of the specific deficiencies in the State program, including administration and enforcement, and of necessary remedial actions. Within 90 days of receipt of the above letter, the State shall either carry out the required remedial action(s) or the Administrator shall withdraw program approval. If the State performs all required remedial action(s) in the allotted time or, if the Administrator determines as a result of the hearing that the State is in compliance, the Administrator shall so notify the State in writing and conclude the withdrawal proceedings. If the Administrator makes the determination that the assumed program should be withdrawn, then such determination will be published in the
(4) Determination to withdraw. The Administrator's determination to withdraw program approval shall constitute final Agency action within the meaning of 5 U.S.C. 704.
(d) Withdrawal of authorization under this section and the Act does not relieve any person from complying with the requirements of State law, nor does it affect the validity of actions taken by the State prior to withdrawal.