C.F.R. » Title 40 » CHAPTER I—ENVIRONMENTAL PROTECTION AGENCY › SUBCHAPTER H—OCEAN DUMPING › PART 233—404 STATE PROGRAM REGULATIONS › Subpart F—Federal Oversight

40 C.F.R. § 233.50

Review of and objection to State permits and review of compensatory mitigation instruments

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(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).

[53 FR 20776, June 1, 1988; 53 FR 41649, Oct. 24, 1988, as amended at 89 FR 103505, Dec. 18, 2024]
Notes of Decisions
Cited in 17 cases (3 in the last 5 years), 1992–2026 · leading case: Menominee Indian Tribe of Wis v. EPA, 947 F.3d 1065 (7th Cir. 2020).
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Menominee Indian Tribe of Wis v. EPA, 947 F.3d 1065 (7th Cir. 2020). · cites it 2× “; see also 40 C.F.R. § 233.50 . The EPA originally objected to Michigan’s proposed dredge-and-fill permit for Aquila’s Back Forty project on mul- tiple grounds and sought more information.”
In Re Freshwater Wetlands Prot. Act Rules, 852 A.2d 167 (N.J. 2004). · cites it 2× “Because DEP addressed EPA's concerns in the 1999 reproposal, the Regional Administrator withdrew the Agency's objections to GP23: EPA does not object to the issuance of GP 23, in accordance with the provisions of 40 CFR 233.50, and we have determined that GP23 will have no more…”
Friends of the Crystal River v. U.S. Env't Prot. Agency, 794 F. Supp. 674 (W.D. Mich. 1992). · cites it 8× “On February 10, 1988, pursuant to section 404(j) of the CWA and 40 C.F.R. §§ 233.50 (c) & (d), the EPA sent a letter to the MDNR and its Director asserting grounds for federal review of the proposed permit.”
Carabell v. United States Army Corps of Engineers, 257 F. Supp. 2d 917 (E.D. Mich. 2003). “However, the history and findings of the state proceedings are immaterial to this action, which is entirely based upon the administrative record established after EPA sustained their objections to the issuance of a State permit and Section 404 permit authority was transferred…”
Michigan Peat v. Reg'l Adm'r of Region v of the United States Env't Prot. Agency, 7 F. Supp. 2d 896 (E.D. Mich. 1998). · cites it 2× “§ 1344 (j); 40 C.F.R. § 233.50 . If the State of Michigan does not resolve the EPA’s objections to the permit application, default authority to enforce § 404 of the CWA reposes with the Army Corps of Engineers.”
Friends Of The Crystal River v. United States Env't Prot. Agency, 35 F.3d 1073 (6th Cir. 1994). “Therefore, pursuant to Federal Regulations concerning State Program assumption (40 C.F.R. Part 233.50(j)), we have transferred the processing of this permit to the U.”
Marquette Cnty. Road Comm'n v. United States Env't Prot. Agency, 188 F. Supp. 3d 641 (W.D. Mich. 2016). · cites it 4× “See 40 C.F.R. § 233.50 (h)(2). Between December 4 and December 27, 2012, Plaintiff “repeatedly” contacted the EPA to obtain more specific information about the objections and the conditions necessary to satisfy them.”
Friends of the Crystal River v. United States Env't Prot. Agency, 35 F.3d 1073 (6th Cir. 1994). · cites it 2× “40 C.F.R. § 233.50 (j). The EPA argues that because § 1344© does not specifically preclude the EPA’s withdrawal of its objections after the ninety-day period that the EPA should be allowed to transfer permitting authority back to the state once an objection has been withdrawn.”
Marquette Cty. Road Comm'n v. EPA (6th Cir. 2018). · cites it 11× “§ 1344 (j); 40 C.F.R. § 233.50 (j). Frustrated with the time and expense of the process, the Road Commission declined to continue the permit review process before the Corps and instead No.”
Michigan Peat v. United States Env't Prot. Agency, 175 F.3d 422 (6th Cir. 1999). “In essence, they are partners 2 The EPA's letter to the MIDEQ stated: The State's draft permit effectively addresses concerns previously raised by EPA and, on that basis, I am withdrawing our objection in accordance with provisions of 40 C.F.R. 233.50(j), on condition than the…”
Ctr. for Biological Diversity v. Lee Zeldin (D.C. Cir. 2026). · cites it 3× “See 40 C.F.R. § 233.50 (f). 3 In addition, the FWS could, if it wished, “provide [Florida] with technical information .”
Michigan Peat v. United States Env't Prot. Agency, 175 F.3d 422 (6th Cir. 1999). “The EPA’s letter to the MIDEQ stated: The State's draft permit effectively addresses concerns previously raised by EPA and, on that basis, I am withdrawing our objection in accordance with provisions of 40 C.F.R. 233.50(j), on condition than the final permit not differ…”
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— 40 C.F.R. § 233.50(j) — 5 cases
Friends Of The Crystal River v. United States Env't Prot. Agency, 35 F.3d 1073 (6th Cir. 1994). “Therefore, pursuant to Federal Regulations concerning State Program assumption (40 C.F.R. Part 233.50(j)), we have transferred the processing of this permit to the U.”
Friends of the Crystal River v. U.S. Env't Prot. Agency, 794 F. Supp. 674 (W.D. Mich. 1992). “On February 10, 1988, pursuant to section 404(j) of the CWA and 40 C.F.R. §§ 233.50 (c) & (d), the EPA sent a letter to the MDNR and its Director asserting grounds for federal review of the proposed permit.”
Michigan Peat v. United States Env't Prot. Agency, 175 F.3d 422 (6th Cir. 1999). “In essence, they are partners 2 The EPA's letter to the MIDEQ stated: The State's draft permit effectively addresses concerns previously raised by EPA and, on that basis, I am withdrawing our objection in accordance with provisions of 40 C.F.R. 233.50(j), on condition than the…”
Friends of the Crystal River v. United States Env't Prot. Agency, 35 F.3d 1073 (6th Cir. 1994). “40 C.F.R. § 233.50 (j). The EPA argues that because § 1344© does not specifically preclude the EPA’s withdrawal of its objections after the ninety-day period that the EPA should be allowed to transfer permitting authority back to the state once an objection has been withdrawn.”
Michigan Peat v. United States Env't Prot. Agency, 175 F.3d 422 (6th Cir. 1999). “The EPA’s letter to the MIDEQ stated: The State's draft permit effectively addresses concerns previously raised by EPA and, on that basis, I am withdrawing our objection in accordance with provisions of 40 C.F.R. 233.50(j), on condition than the final permit not differ…”
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