“A bill to establish the Waterway Permit Section 404 Assignment program, and for other purposes.”
No CRS summary available for this bill.
This section establishes the Waterway Permit Section 404 Assignment program, to be jointly carried out by the Secretary of the Army (acting through the Chief of Engineers) and the EPA Administrator not later than 60 days after enactment. Under the program, with written agreement from the Secretary, EPA Administrator, and a State, the Secretary may assign to the State—and the State may assume—the Corps' responsibilities under CWA §404 (33 U.S.C. 1344) for permitting discharges of dredged or fill material into navigable waters for covered projects (i.e., highway, railroad, or public transportation projects) in that State. (As background, CWA §404 authorizes the Corps to regulate such discharges to protect aquatic environments, subject to EPA veto.) The section further authorizes assignment to participating States of related federal responsibilities, including (1) environmental reviews under NEPA (42 U.S.C. 4321 et seq.), Endangered Species Act consultations (16 U.S.C. 1531 et seq.), section 106 historic preservation reviews (54 U.S.C. subtitle III, division A), or other federal environmental laws applicable to CWA §404 review or approval of covered projects; and (2) limited responsibilities under Rivers and Harbors Act §10 (33 U.S.C. 403) necessary for permitting covered projects. States assuming such responsibilities must apply the same procedural and substantive requirements as the Corps, including consistency with EPA §404(b)(1) guidelines (33 U.S.C. 1344(b)(1)); no state regulations are required. The federal government retains all unassigned responsibilities, including Corps enforcement authority under CWA §404(s) (33 U.S.C. 1344(s)), and the program does not affect other federal agencies' authorities or require States to forgo permissible project delivery methods. All States are eligible to participate; not later than 270 days after enactment, the Secretary may issue regulations or guidance on State applications, which must specify anticipated covered projects, demonstrate §404(b)(1) consistency, and verify financial resources. States assuming program responsibilities for a covered project may use funds apportioned under 23 U.S.C. §104(b)(2) for directly attributable attorneys' fees, including fees awarded against the United States under the Equal Access to Justice Act (28 U.S.C. §2412). (Thus, States may use federal-aid highway funds to reimburse such EAJA awards, which generally require the United States to pay prevailing parties' attorney fees and expenses unless the government's position was substantially justified.)