[Federal Register Volume 85, Number 240 (Monday, December 14, 2020)]
[Proposed Rules]
[Pages 80713-80718]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26777]



[[Page 80713]]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 123 and 233

[EPA-HQ-OW-2020-0517; FRL-10017-98-OW]
RIN 2040-AG09


Criminal Negligence Standard for State Clean Water Act 402 and 
404 Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA or Agency) is 
requesting comment on proposed Clean Water Act (CWA or the Act) 
regulations to clarify that state or tribal programs approved pursuant 
to CWA Sections 402 and 404 are not required to include the same 
criminal intent standard that is applicable to the EPA under Section 
309 of the CWA. The proposed regulations will provide clarity to 
states, tribes, regulated entities, and the public.

DATES: Comments must be received on or before January 13, 2021.

ADDRESSES: You may submit comments, identified by Docket ID No. EPA-HQ-
OW-2020-0517, through the Federal eRulemaking Portal at: https://www.regulations.gov/. Follow the online instructions for submitting 
comments. All submissions received must include the Docket ID No. for 
this rulemaking. Comments received may be posted without change to 
https://www.regulations.gov/, including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this document. Out 
of an abundance of caution for members of the public and our staff, the 
EPA Docket Center and Reading Room are closed to the public, with 
limited exceptions, to reduce the risk of transmitting COVID-19.Our 
Docket Center staff will continue to provide remote customer service 
via email, phone, and webform. We encourage the public to submit 
comments via https://www.regulations.gov/ or email, as there may be a 
delay in processing mail. Hand deliveries and couriers may be received 
by scheduled appointment only. For further information on EPA Docket 
Center services and the current status, please visit us online at: 
https://www.epa.gov/dockets.
    EPA is offering one virtual public hearing so that interested 
parties may also provide oral comments on the proposed rulemaking. For 
more information on the virtual public hearing and to register to 
attend, please visit: https://www.epa.gov/npdes/. Refer to the 
SUPPLEMENTARY INFORMATION section below for additional information.

FOR FURTHER INFORMATION CONTACT: Nizanna Bathersfield, Office of 
Wastewater Management, Water Permits Division (Mail Code 4203M), 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, 
DC 20460; telephone number: (202) 564-2258; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: This supplementary information section is 
organized as follows:

I. General Information
    A. Does this action apply to me?
    B. What action is the Agency taking?
    C. What are the incremental costs and benefits of this action?
II. Public Participation
    A. Written Comments
    B. Virtual Public Hearing
III. Background
IV. Request for Comment
V. Statutory and Executive Orders Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use
    J. National Technology Transfer and Advancement Act
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. General Information

A. Does this action apply to me?

    Entities potentially affected by this action include States, U.S. 
territories, and Indian Tribes that are authorized and/or seek 
authorization to administer the Clean Water Act (CWA) Section 402 
National Pollutant Discharge Elimination System (NPDES) permitting 
program or the CWA Section 404 dredged or fill permitting program. This 
table is not intended to be exhaustive; rather, it provides a guide for 
readers regarding entities that this action is likely to affect. If you 
have any questions regarding the applicability of this action to a 
particular entity, consult the person identified in the preceding 
section.
---------------------------------------------------------------------------

    \1\ The phrase, ``State(s) and Tribe(s)'' will be used in this 
document hereafter.

         Table I-1--Entities Potentially Affected by This Action
------------------------------------------------------------------------
           Category            Examples of potentially affected entities
------------------------------------------------------------------------
Federal Government...........  EPA when conducting oversight of programs
                                authorized under CWA Sections 402 and
                                404 in states, tribes, and U.S.
                                territories.
State, Territorial, and        States, Tribes, and U.S. Territories \1\
 Indian Tribal Governments.     that are authorized or that seek
                                authorization to administer the CWA
                                Section 402 NPDES permitting program and/
                                or the CWA Section 404 dredged and fill
                                permitting program.
------------------------------------------------------------------------

B. What action is the Agency taking?

    EPA proposes to amend its requirements in 40 CFR 123.27 and 233.41 
for criminal enforcement authorities to clarify that states and tribes 
that are authorized to or that seek authorization to administer the CWA 
Section 402 NPDES permitting program and/or the CWA Section 404 dredged 
and fill permitting program are not required to establish the same 
negligence standard that the CWA establishes for Federal criminal 
enforcement actions. Rather, EPA may approve state or tribal programs 
that allow for prosecution based on any negligence standard, including 
gross negligence or recklessness, as opposed to requiring that a state 
or tribe be able to establish criminal violations based on

[[Page 80714]]

simple or ordinary negligence. EPA interprets its current regulations 
to allow for this approach and proposes to modify its regulations to 
make its interpretation of the statute clearer. Because the relevant 
CWA Section 402 regulatory provisions are similar \2\ to those in CWA 
Section 404 and raise the same issues, EPA proposes to make similar 
changes to the CWA Sections 402 and 404 permitting program regulations. 
Refer to the BACKGROUND section below for a more detailed description 
of the context and purpose for this action.
---------------------------------------------------------------------------

    \2\ The regulation at 40 CFR 123.27 includes a note that is 
absent from 40 CFR 233.41. This note provides: ``[s]tates which 
provide the criminal remedies based on ``criminal negligence,'' 
``gross negligence'' or strict liability satisfy the requirement of 
paragraph (a)(3)(ii) of this section.'' See 40 CFR 123.27(a)(ii).
---------------------------------------------------------------------------

C. What are the incremental costs and benefits of this action?

    The proposed amendment clarifies EPA's interpretation of the CWA 
enforcement requirements applicable to authorized state and tribal 
programs under CWA Section 402 and CWA Section 404. This action does 
not establish new requirements but instead provides clarity for states 
and tribes that have been approved to administer or are interested in 
obtaining EPA approval to administer their own NPDES or dredged and 
fill permitting program under the CWA. Therefore, the proposed 
rulemaking would impose no incremental change to current requirements 
that EPA measures as compliance costs or monetized benefits.
    EPA anticipates that states that already administer these CWA 
programs will not need to make any changes to their legal authority to 
conform with this regulatory change. Instead, these regulatory 
clarifications will provide assurance to approved states that their 
current criminal intent standards comport with EPA's interpretation of 
the CWA criminal intent standard applicable to authorized state and 
tribal CWA Sections 402 and 404 programs. Additionally, this 
clarification will provide those states and tribes interested in 
seeking approval to administer the CWA Sections 402 and 404 programs, 
respectively, with clarity regarding the legal authorities required for 
approval by EPA.

II. Public Participation

A. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OW-2020-
0517, at https://www.regulations.gov/. Follow the online instructions 
for submitting comments. Once submitted, comments cannot be edited or 
removed from Regulations.gov. EPA may publish any comment received to 
its public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit: http://www2.epa.gov/dockets/commenting-epa-dockets.
    EPA continues to carefully and continuously monitor information 
from the Centers for Disease Control and Prevention (CDC), local area 
health departments, and our Federal partners so that we can respond 
rapidly as conditions change regarding COVID-19.

B. Virtual Public Hearing

    EPA intends to hold a virtual public hearing on the proposed 
rulemaking. EPA is deviating from its typical approach to public 
hearings because the President has declared a national emergency. 
Because of current CDC recommendations, as well as state and local 
orders for social distancing to limit the spread of COVID-19, EPA 
cannot hold in-person public meetings at this time.
    EPA will begin pre-registering speakers for the hearing upon 
publication of this document in the Federal Register. To register to 
speak at the virtual hearing, please use the online registration form 
available at https://www.epa.gov/npdes/ or contact Cortney Itle at 
[email protected]. EPA will make every effort to follow the schedule 
as closely as possible on the day of the hearing; however, please plan 
for the hearings to run either ahead of schedule or behind schedule.
    Each commenter will have three minutes to provide oral testimony. 
Note that the testimony time may be adjusted depending on the number of 
registered speakers. EPA encourages commenters to provide EPA with a 
copy of their oral testimony electronically (via email) by emailing it 
to Cortney Itle. EPA also recommends submitting the text of your oral 
comments as written comments to the rulemaking docket. EPA may ask 
clarifying questions during the oral presentations but will not respond 
to the presentations at that time. Written statements and supporting 
information submitted during the comment period will be considered with 
the same weight as oral comments and supporting information presented 
at the public hearing.
    Please note that any updates made to any aspect of the hearing is 
posted online at https://www.epa.gov/npdes/. While EPA expects the 
hearing to go forward as set forth above, please monitor our website or 
contact Cortney Itle at [email protected] to determine if there are 
any updates. EPA does not intend to publish a document in the Federal 
Register announcing updates. If you require the services of a 
translator or special accommodations such as audio description, please 
pre-register for the hearing with Cortney Itle and describe your needs 
at least two weeks prior to the announced public hearing date. EPA may 
not be able to arrange accommodations without advanced notice.

III. Background

    The CWA provides that states and tribes seeking approval for a 
permitting program under CWA Section 402 and CWA Section 404 must have 
adequate authority ``[t]o abate violations of the permit or the permit 
program, including civil and criminal penalties and other ways and 
means of enforcement.'' 33 U.S.C. 1342(b)(7) and 1344(h)(1)(G). These 
provisions do not establish specific mens rea standards or penalties 
for state and tribal programs and thus do not provide specific criteria 
on which basis EPA could disapprove a program for lack of authority to 
impose criminal sanctions. In contrast, CWA Section 309(c) specifically 
provides EPA with enforcement authority to establish misdemeanor 
criminal liability in Subsection (c)(1) and a range of penalties for 
``[n]egligent violations'' of specified provisions, as well as felony 
liability and a higher range of penalties for ``knowing violations'' of 
the CWA in Subsection (c)(2). Beginning in 1999, three circuit courts 
of appeal determined that criminal negligence under CWA Section 
309(c)(1) is ``ordinary negligence'' rather than gross negligence or 
any other negligence standard. U.S. v. Hanousek, 176 F.3d 1116, 1121 
(9th Cir. 1999); U.S. v. Ortiz, 427 F.3d 1278, 1282 (10th Cir. 2005); 
U.S. v. Pruett, 681 F.3d 232, 242 (5th Cir. 2012). Though courts have 
interpreted EPA's enforcement authority under CWA 309(c)(1) to 
encompass violations committed with ordinary negligence, these courts 
did not address

[[Page 80715]]

whether this provision implicates state or tribal programs implementing 
CWA Sections 402 or 404.
    EPA's regulations currently provide that a state or tribal agency 
administering a program under CWA Section 402 must provide for criminal 
fines to be levied ``against any person who willfully or negligently 
violates any applicable standards or limitations; any NPDES permit 
condition; or any NPDES filing requirement.'' 40 CFR 123.27(a)(3)(ii). 
Similarly, EPA's regulations currently provide that any state or tribal 
agency administering a program under Section 404 of the CWA shall have 
authority to seek criminal fines against any person who ``willfully or 
with criminal negligence discharges dredged or fill material without a 
required permit or violates any permit condition issued under section 
404 . . .'' 40 CFR 233.41(a)(3)(ii). The regulations implementing both 
statutory programs also provide that the ``burden of proof and degree 
of knowledge or intent required under State law for establishing 
violations under paragraph (a)(3) of this section, shall be no greater 
than the burden of proof or degree of knowledge or intent EPA must bear 
when it brings an action under the Act.'' 40 CFR 123.27(b)(2); 40 CFR 
233.41(b)(2). Additionally, the implementing regulations for CWA 
Section 402 include a note, not present in the CWA Section 404 
implementing regulations, that states, ``[f]or example, this 
requirement is not met if State law includes mental state as an element 
of proof for civil violations'' 40 CFR 123.27(b)(2).
    On September 10, 2020, the Ninth Circuit Court of Appeals issued an 
unpublished decision that granted in part and denied in part the Idaho 
Conservation League's petition for review of EPA's approval of Idaho's 
NPDES permitting program. Idaho Conservation League v. US EPA, no. 18-
72684 (September 10, 2020). Relying on the Ninth Circuit case law cited 
above, which holds that EPA enforcement actions are subject to a simple 
negligence standard, the court determined that EPA abused its 
discretion in approving a mens rea standard of gross negligence because 
it is ` ``greater than the burden of proof or degree of knowledge or 
intent EPA must provide when it brings an action . . .' 40 CFR 
123.27(b)(2).'' The court recognized that ``a state program need not 
mirror the burden of proof and degree of knowledge or intent EPA must 
meet to bring an enforcement action,'' citing EPA's Consolidated Permit 
Regulations, 45 FR. 33290, 33382 (May 19, 1980), but held that EPA's 
current regulations at 40 CFR 123.27(b)(2) require a state plan to 
employ a standard ``no greater than'' simple negligence, such as strict 
liability or simple negligence. Slip op. at 3. Because the decision is 
unpublished, it is not precedential except for as the law of the case. 
See Ninth Cir. Rule 36-4.

Overview of This Proposal

    The CWA and its implementing regulations require that in order to 
avoid EPA disapproval, States and tribes must have certain legal 
authorities in place pertaining to permit issuance, and compliance and 
enforcement, including criminal enforcement. EPA does not interpret the 
CWA to require that states and tribes establish the same negligence 
standard that the CWA establishes for Federal enforcement actions. The 
current regulations describing the criminal intent standard applicable 
to state and tribal programs at 40 CFR 233.41(a)(3)(ii) and 40 CFR 
123.27(a)(3)(ii) do not clearly articulate EPA's interpretation of the 
statute that it may approve state or tribal programs that allow for 
prosecution based on any negligence standard, including those 
negligence standards with a gross negligence mens rea requirement. This 
proposal sets forth regulatory revisions that are consistent with this 
interpretation.

Statutory and Regulatory Framework for EPA's Interpretation

    While EPA's own enforcement authority under CWA Section 309(c)(1), 
33 U.S.C. 1319(c)(1), as interpreted by the courts, requires only proof 
of ordinary negligence, that provision does not apply to state or 
tribal programs. As noted above, the CWA requires that EPA ``shall 
approve'' a state's application if it determines that the state has the 
authority to ``abate violations of the permit or the permit program, 
including civil and criminal penalties and other ways and means of 
enforcement.'' 33 U.S.C. 1342(b)(7); 1344(h)(1)(G). EPA has 
consistently maintained that nothing in the text of CWA Sections 402 or 
404 requires identical enforcement authority between states or tribes 
and EPA. See NRDC v. U.S. EPA, 859 F.2d 156, 175, 181 (D.C. Cir. 1988) 
(upholding EPA's decision not to require state or tribal programs to 
incorporate the maximum penalty amounts in CWA Section 309 as a 
``reasonable accommodation'' of ``the competing objectives of 
regulatory uniformity and state autonomy'') (citing Chevron U.S.A. v. 
NRDC, 467 U.S. 837, 865 (1984).
    In addressing the enforcement requirements for state programs, 
Congress did not use the words ``all applicable,'' ``same,'' or any 
phrase specific to any mens rea standard, let alone the Federal 
standard, as it did in other parts of CWA Sections 404(h) or 402(b). 
See 33 U.S.C. 1344(h), 1342(b). Indeed, when ``Congress includes 
particular language in one section of a statute but omits it in another 
section of the same Act, it is generally presumed that Congress acts 
intentionally and purposely in the disparate inclusion or exclusion.'' 
Sebelius v. Cloer, 569 U.S. 369, 378 (2013) (internal quotations 
omitted). In contrast to the broad authority that CWA Sections 
404(h)(1)(G) and 402(b)(7) provide to determine whether states and 
tribes have demonstrated adequate authority to abate violations, other 
aspects of state and tribal programs are explicitly required to have 
authority that is equivalent to or more stringent than EPA's authority. 
For example, states must have the authority ``[t]o inspect, monitor, 
enter, and require reports to at least the same extent as required in 
section 1318 of this chapter,'' 33 U.S.C. 1344(h)(1)(B); 1342(b)(2)(B) 
(emphasis added). Similarly, CWA Section 404(h)(1)(B) requires state-
issued permits to ``apply, and assure compliance with, any applicable 
requirements of this section, including, but not limited to, the 
guidelines established under subsection (b)(1) of this section, and 
sections 1317 and 1343 of this title . . .'' 33 U.S.C. 1344(h)(1)(A)(i) 
(emphasis added); and CWA Section 402(b)(1)(A) requires states to issue 
permits in compliance with ``sections 1311, 1312, 1316, 1317, and 1343 
of this title.'' 33 U.S.C. 1342(b)(1)(A). The more general language 
used to address required state and tribe authorities to abate 
violations, and the absence of any citation to CWA Section 309, 
indicates that Congress allowed for variability between state or tribal 
approaches to certain aspects of enforcement. See 33 U.S.C. 1342 
(b)(7).
    EPA interprets the Agency's implementing regulations for CWA 
Sections 402 and 404 to allow for approved state and tribal programs to 
have different approaches to criminal enforcement than the Federal 
government's approach. As noted above, EPA's interpretation is 
consistent with the D.C. Circuit's decision in NRDC, 859 F.2d at 180-
81. There, the petitioner challenged the validity of 40 CFR 
123.27(a)(3) on the theory that it did not require states to have the 
same maximum criminal penalties as the federal program. NRDC, 859 F.2d 
at 180. The court reasoned that the petitioner's argument involved a 
``logical infirmity''

[[Page 80716]]

because it ``presume[d] an unexpressed congressional intent that state 
requirements must mirror the federal ones,'' which is ``inconsistent 
with the elements of the statutory scheme limiting operation of the 
provisions to enforcement efforts at the national level and explicitly 
empowering the Administrator to set the prerequisites for state 
plans.'' Id. at 180 (discussing 33 U.S.C. 1314(i)(2)(C)). The D.C. 
Circuit recognized EPA's ``broad[ ] discretion to respect state 
autonomy in the criminal sector'' and that the regulations ``reflect 
the balancing of uniformity and state autonomy contemplated by the 
Act.'' Id. at 180-81. The court therefore declined ``to divest the 
Administrator of this authority'' in the face of congressional silence. 
Id.
    EPA's interpretation is also consistent with the Ninth Circuit's 
decision in Akiak Native Community v. EPA, in which the Ninth Circuit 
declined to require that states have authority to impose administrative 
penalties identical to federal authority. See Akiak Native Community, 
625 F.3d 1162, 1171-72 (9th Cir. 2010). In that case, the petitioner 
argued that the State of Alaska did not have adequate authority to 
abate violations because Alaska had to initiate a legal proceeding to 
assess civil penalties, whereas EPA could do so administratively. Id. 
at 1171. The Court held that because ``[t]here is no requirement in the 
CWA . . . that state officials have the authority to impose an 
administrative penalty'' and ``[t]he language of the statute says 
nothing about administrative penalties,'' ``there is no reason to 
conclude that Alaska lacks adequate enforcement authorities.'' Id. 
1171-72.
    Finally, EPA's longstanding interpretation that CWA Sections 402 
and 404 do not require states and tribes to have identical authorities 
to EPA's under CWA Section 309 is consistent with the Ninth Circuit's 
acknowledgement in Idaho Conservation League v. EPA that ``a state 
program need not mirror the burden of proof and degree of knowledge or 
intent EPA must meet to bring an enforcement action.'' Slip op. at 3, 
citing Consolidated Permit Regulations, 45 FR at 33382 (May 19, 1980). 
While EPA does not agree with the Ninth Circuit's unpublished 
interpretation of the Agency's regulations, this proposed rulemaking 
would clarify the criminal intent standards for existing and 
prospective state and tribal enforcement programs under CWA Sections 
402 and 404.
    As discussed above, this proposed rulemaking would codify the 
interpretation of state and tribal criminal intent requirements that 
EPA presented to the Ninth Circuit in the Idaho Conservation League v. 
EPA, which is itself consistent with EPA's longstanding interpretation 
that state and tribal programs are not required to have the identical 
enforcement authority to EPA's under CWA Section 309. To the extent 
this interpretation is viewed as different from any earlier 
interpretations of CWA Sections 402 and 404 and implementing 
regulations, EPA has ample authority to change its interpretation of 
ambiguous statutory language. An ``initial agency interpretation is not 
instantly carved in stone.'' Chevron, 467 U.S. at 863; see also Encino 
Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (``[A]gencies 
are free to change their existing policies as long as they provide a 
reasoned explanation for the change.'') (citations omitted). Rather, a 
revised rulemaking based on a change in interpretation of statutory 
authorities is well within federal agencies' discretion. Nat'l Ass'n of 
Home Builders v. EPA, 682 F.3d 1032, 1038 (D.C. Cir. 2012) (citing FCC 
v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)). The agency 
must simply explain why ``the new policy is permissible under the 
statute, that there are good reasons for it, and that the agency 
believes it to be better,'' Fox Television Stations, 566 U.S. at 515. 
This preamble meets this standard, providing a reasoned explanation for 
EPA's proposal and its consistency with the CWA.
    Though under this proposal EPA is not requiring states or tribes to 
have the same criminal enforcement authority that courts have 
interpreted EPA to have, the state or tribal standard would still be 
based on the term ``negligence'' in the text of CWA Section 309. 
Allowing states or tribes flexibility in the degree of negligence for 
which they are authorized to bring criminal cases balances the CWA's 
priorities of allowing for state and tribal autonomy with adherence to 
the purposes of the Act. As noted above, neither CWA Section 402(b)(7) 
nor CWA Section 404(h)(1)(G) requires states to abate violations in the 
same manner as required under CWA Section 309. The absence of any 
citation to CWA Section 309 in CWA Sections 402(b) and 404(h) indicates 
that variability may be permitted between Federal and state or tribal 
approaches to enforcement.
    The proposed regulatory clarification reflects EPA's experience in 
approving and overseeing CWA state programs for over thirty years. Many 
states administering or seeking to administer the programs do not 
currently have a simple negligence standard, and indeed, may have 
statutory or constitutional barriers to such standards. The absence of 
simple negligence standards has not served as a bar to effective state 
enforcement programs, but the requirement to have such a standard could 
dissuade states and tribes from seeking to administer these programs in 
the future. Clarifying that states and tribes do not need a simple 
negligence standard in their criminal enforcement programs therefore 
advances the purposes of CWA Sections 402(b) and 404(g) to balance the 
need for uniformity with state autonomy. See NRDC, 859 F.2d at 181 
(D.C. Cir. 1988).
    This proposal does not change the standard applicable to EPA's 
criminal enforcement of the CWA. Under CWA Section 309, EPA retains its 
civil and criminal enforcement authority notwithstanding the 
authorization status of a state or tribal permit program.
    Consistent with the CWA's requirement that states and tribes 
administering CWA Sections 402 or 404 permitting programs have the 
authority to abate civil and criminal violations, EPA is proposing to 
include language to clarify in 40 CFR 123.27(a) and 233.41(a)(3) that 
states and tribes must have the authority to ``establish violations.'' 
This new language simply confirms EPA's longstanding interpretation of 
the effect of its regulations. EPA also proposes to remove the term 
``appropriate'' from the current references to the degree of knowledge 
or intent necessary to provide when bringing an action under the 
``appropriate Act'' from the CWA Sections 402 and 404 implementing 
regulations, as these regulations only refer to actions under the CWA 
and no other statute. Therefore, the term ``appropriate'' is 
unnecessary. Finally, in 40 CFR 233.41(a)(3), which currently requires 
states and tribes to have the authority ``[t]o establish the following 
violations and to assess or sue to recover civil penalties and to seek 
criminal remedies,'' EPA proposes to replace the word ``remedies'' with 
``penalties,'' as ``penalties'' is a more precise description of the 
type of relief sought in criminal enforcement actions. None of the 
proposed changes listed in this paragraph are intended to change the 
substantive effect of the regulations, but simply to clarify existing 
requirements.

IV. Request for Comment

    EPA is proposing regulations at 40 CFR 123.27 and 233.41 to clarify 
that authorized state and tribal programs under CWA Sections 402(b) and 
404(g) are not required to establish the same negligence standard for 
criminal enforcement actions that the CWA

[[Page 80717]]

establishes for Federal enforcement actions. The Agency solicits 
comments on the proposed rulemaking. Refer to Section II.A of this 
preamble for instructions on submitting written comments. Comments are 
most helpful when accompanied by specific examples and supporting data.

V. Statutory and Executive Orders Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and therefore 
was not submitted to the Office of Management and Budget (OMB) for 
review.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not expected to be an Executive Order 13771 
regulatory action because this action is not significant under 
Executive Order 12866.

C. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA. This proposal would provide regulatory clarity for approved 
state and tribal CWA Sections 402 and 404 programs as well as for 
states and tribes that seek approval for their own CWA Sections 402 or 
404 programs. This proposal does not create new information collection 
activities.

D. Regulatory Flexibility Act (RFA)

    The Agency certifies that this action will not have a significant 
economic impact on a substantial number of small entities under the 
RFA. This action will not impose any requirements on small entities. 
This action does not impose new requirements on any entities but 
instead provides clarity for states and tribes that have been approved 
to administer or seek approval for their own CWA Sections 402 or 404 
programs.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. The action imposes 
no enforceable duty on any state, local or tribal governments or the 
private sector.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government. This 
action may be of significant interest to states that administer CWA 
Sections 402 and 404 programs as well as for states seeking approval to 
administer CWA Sections 402 or 404 programs because it clarifies the 
appropriate criminal intent standard states must have to enforce these 
programs.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does have tribal implications as specified in Executive 
Order 13175. Although there are no federally recognized tribes that, at 
this time, have been approved to administer the CWA programs under 
either section 402 or section 404, this rulemaking will assist tribes 
in better understanding the applicable criminal intent standard for 
nearby approved state programs. This could assist tribes as they 
participate in state permitting processes. Additionally, this 
rulemaking will also inform tribes about the applicable criminal 
negligence intent standard as they consider whether to pursue approval 
for the NPDES permitting program and/or assumption of the dredged and 
fill permitting program.

H. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is not subject to Executive Order 13045 because it is 
not economically significant as defined in Executive Order 12866, and 
because EPA does not believe that there are environmental health or 
safety risks addressed by this action that present a disproportionate 
risk to children. This proposal does not change the programmatic 
requirements of the CWA Sections 402 and 404 programs and has no direct 
impacts on the environment.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes that this action does not have disproportionately high 
and adverse human health or environmental effects on minority 
populations, low-income populations and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The 
proposed action does not change existing programmatic CWA Sections 402 
and 404 requirements. Instead this proposed rulemaking clarifies the 
current requirements for the criminal intent standard that is 
applicable to state and tribal programs.

List of Subjects

40 CFR Part 123

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous substances, Indians--
lands, Intergovernmental relations, Penalties, Reporting and 
recordkeeping requirements, Water pollution control.

40 CFR Part 233

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous substances, Indian--lands, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements, Water pollution control, Endangered and threatened 
species.

Andrew Wheeler,
Administrator.

    For the reasons set forth in the preamble, EPA proposes to amend 40 
CFR parts 123 and 233 as follows:

PART 123--STATE PROGRAM REQUIREMENTS

0
1. The authority citation for part 123 continues to read as follows:

    Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

Subpart B--State Program Submissions

0
2. Section 123.27 is amended by:
0
a. Revising paragraphs (a) introductory text, (a)(3) introductory text, 
and (a)(3)(ii);
0
b. Removing the note that appears after paragraph (a)(3)(ii); and
0
c. Revising paragraph (b)(2).
    The revisions read as follows:

[[Page 80718]]

Sec.  123.27  Requirements for enforcement authority.

    (a) Any State agency administering a program shall have the 
authority to establish the following violations and have available the 
following remedies and penalties for such violations of State program 
requirements:
* * * * *
    (3) To assess or sue to recover in court civil penalties and to 
seek criminal penalties as follows:
* * * * *
    (ii) Criminal fines shall be recoverable against any person who 
willfully or negligently violates any applicable standards or 
limitations; any NPDES permit condition; or any NPDES filing 
requirement. These fines shall be assessable in at least the amount of 
$10,000 a day for each violation.
* * * * *
    (b) * * *
    (2) The burden of proof and degree of knowledge or intent required 
under State law for establishing violations under paragraph (a)(3) of 
this section, shall be no greater than the burden of proof or degree of 
knowledge or intent EPA must provide when it brings an action under the 
Act, except that a State may establish criminal violations based on any 
form or type of negligence.
* * * * *

PART 233--404 STATE PROGRAM REGULATIONS

0
3. The authority citation for part 233 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.

0
4. Section 233.41 is amended by revising paragraphs (a)(3) introductory 
text, (a)(3)(ii), and (b)(2) to read as follows:


Sec.  233.41  Requirements for enforcement authority.

    (a) * * *
    (3) To establish the following violations and to assess or sue to 
recover civil penalties and to seek criminal penalties, as follows:
* * * * *
    (ii) To seek criminal fines against any person who willfully or 
with criminal negligence discharges dredged or fill material without 
required permits or violates any permit condition issued under section 
404 in the amount of at least $10,000 per day of such violation.
* * * * *
    (b) * * *
    (2) The burden of proof and degree of knowledge or intent required 
under State law for establishing violations under paragraph (a)(3) of 
this section, shall be no greater than the burden of proof or degree of 
knowledge or intent EPA must provide when it brings an action under the 
Act, except that a State may establish criminal violations based on any 
form or type of negligence.
* * * * *
[FR Doc. 2020-26777 Filed 12-11-20; 8:45 am]
BILLING CODE 6560-50-P