40 C.F.R. § 233.1

Purpose and scope

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(a) This part specifies the procedures EPA will follow, and the criteria EPA will apply, in approving, reviewing, and withdrawing approval of State programs under section 404 of the Act.

(b) Except as provided in § 232.3, a State program must regulate all discharges of dredged or fill material into waters regulated by the State under section 404(g)-(1). Partial State programs are not approvable under section 404. A State's decision not to assume existing Corps' general permits does not constitute a partial program. The discharges previously authorized by a Corps' general permit will be regulated by State permits. However, in many cases, States other than Indian Tribes will lack authority to regulate activities on Indian lands. This lack of authority does not impair that State's ability to obtain full program approval in accordance with this part, i.e., inability of a State which is not an Indian Tribe to regulate activities on Indian lands does not constitute a partial program. The Secretary of the Army acting through the Corps of Engineers will continue to administer the program on Indian lands if a State which is not an Indian Tribe does not seek and have authority to regulate activities on Indian lands.

(c) Nothing in this part precludes a State from adopting or enforcing requirements which are more stringent or from operating a program with greater scope, than required under this part. Where an approved State program has a greater scope than required by Federal law, the additional coverage is not part of the Federally approved program and is not subject to Federal oversight or enforcement.

(d) State assumption of the section 404 program is limited to certain waters, as provided in section 404(g)(1) and as identified through the process laid out in § 233.11(i). The Federal program operated by the Corps of Engineers continues to apply to the remaining waters in the State even after program approval. However, this does not restrict States from regulating discharges of dredged or fill material into those waters over which the Secretary retains section 404 jurisdiction.

(e) Any approved State Program shall, at all times, be conducted in accordance with the requirements of the Act and of this part. While States may impose more stringent requirements, they may not impose any less stringent requirements for any purpose. States may not make one requirement more lenient than required under these regulations as a tradeoff for making another requirement more stringent than required. Where the 404(b)(1) Guidelines (40 CFR part 230) or other regulations affecting State 404 programs suggest that the District Engineer or Corps of Engineers is responsible for certain decisions or actions (e.g., approving mitigation bank instruments), in an approved State Program the State Director carries out such action or responsibility for purposes of that program, as appropriate.

(f) EPA may facilitate resolution of disputes between Federal agencies, Tribes, and States seeking to assume and/or administer a CWA section 404 program. Where a dispute resolution or elevation process is enumerated in this part or in an agreement approved by EPA at the time of assumption or program revision, such process and procedures shall be followed.

[53 FR 20776, June 1, 1988, as amended at 58 FR 8183, Feb. 11, 1993; 89 FR 103501, Dec. 18, 2024]

Notes of Decisions

Cited in 8 cases (4 in the last 5 years), 1996–2026 · leading case: United States v. John A. Rapanos Judith A. Nelkie Rapanos Prodo, Inc. Rolling Meadows Hunt Club Pine River Bluff Estates, Inc., 376 F.3d 629 (6th Cir. 2004).

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United States v. John A. Rapanos Judith A. Nelkie Rapanos Prodo, Inc. Rolling Meadows Hunt Club Pine River Bluff Estates, Inc., 376 F.3d 629 (6th Cir. 2004). “” 40 C.F.R. § 233.1 (d). Moreover, contrary to the Appellant’s assertions, permitting a state to issue CWA permits does not foreclose all federal issuance of CWA permits.”

Huggett v. Dep't of Nat. Resources, 590 N.W.2d 747 (Mich. Ct. App. 1999). · cites it 2× “See 40 C.F.R. § 233.1 (d). The analogous, similarly worded federal farming exemption statute, 33 U.”

StarLink Logistics, Inc. v. ACC, LLC, 101 F.4th 431 (6th Cir. 2024). “§ 1344 (a), the Secretary may transfer that authority to a state whose proposed permitting program is at least as stringent as the federal scheme, see 40 C.F.R. § 233.1 (c); 33 U.S.C. § 1344 (g).”

Nat'l Wildlife Fed'n v. Adamkus, 936 F. Supp. 435 (W.D. Mich. 1996). “EPA’s regulations implementing the CWA’s state program provisions are found within 40 C.F.R. § 233.1 et seq. In 1984, Michigan became the first state to receive EPA approval of its wetlands dredge- and-fill permitting program.”

Marquette Cnty. Road Comm'n v. United States Env't Prot. Agency, 188 F. Supp. 3d 641 (W.D. Mich. 2016). “” 40 C.F.R. § 233.1 (d). Thus, regardless of whether the state or the Corps issues the CWA permit, Plaintiff is subject to the same legal obligations.”

Ctr. for Biological Diversity v. Andrew Wheeler (D.D.C. 2024). “2, and Secretary means Secretary of the Army, see 40 C.F.R. 233.1(a) (first mention). 80 is therefore “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and must be set aside.”

Ctr. for Biological Diversity v. Lee Zeldin (D.C. Cir. 2026). “See 40 C.F.R. § 233.1 (d)–(e). After soliciting public comments, the EPA “shall approve” the state’s application if it determines that the application complies with the CWA and its regulations.”

— 40 C.F.R. § 233.1(a) — 2 cases

— 40 C.F.R. § 233.1(d) — 1 case

Huggett v. Dep't of Nat. Resources, 590 N.W.2d 747 (Mich. Ct. App. 1999). “See 40 C.F.R. § 233.1 (d). The analogous, similarly worded federal farming exemption statute, 33 U.”

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