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]