On July 19, 2023, the United States Environmental Protection Agency (EPA) announced a Proposed Rule updating its regulations governing the state and tribal assumption of permitting authority under Section 404(g) of the Clean Water Act.

Tribal governments may be particularly interested in provisions of the Proposed Rule clarifying requirements for seeking wetlands program authority.  In addition to requiring details about the structure and operation of the proposed tribal program, the Proposed Rule would require tribes to seek a jurisdictional determination to identify the waters over which tribal authority may be established.  A description of proposed approaches to comply with compensatory mitigation criteria (including instruments like mitigation banks or in-lieu-fee programs) would also be required.   

The Proposed Rule also includes streamlining provisions for projects expected to exceed the five-year limit on Section 404 permits. Tribes with long-term projects would be able to include, with initial permit submissions, information demonstrating that new environmental analysis is not necessary for subsequent renewals (absent changed circumstances).

In addition, the Proposed Rule would give Tribes approved for “treatment as a state” (TAS) important tools to address upstream projects and permits with the potential to impact the integrity of tribal waters – including the ability to request special permit conditions and/or EPA review.

Matthew Adams and William Mumby would be pleased to answer any questions about the challenges and opportunities posed by the Proposed Rule.  EPA will accept comments supporting, opposing, or suggesting revisions through early-October.