The bill declares the Section 404 discharge-of-dredged-or-fill-material permit programs of Michigan, New Jersey, and Florida to be "ratified, approved, and of full force and effect," and bars the EPA Administrator from withdrawing those approvals (including via the process in 33 U.S.C. 1344(i)) unless Congress enacts a law after the bill’s effective date authorizing such a withdrawal. The text explicitly includes successor Federal Register notices as part of the approved programs and incorporates Florida’s Programmatic Biological Opinion and associated Incidental Take Statement into the state program record.
Practically, the bill freezes existing federal approvals, creates a 90-day transition window in Florida during which both the Army Corps and Florida may issue permits, and sets a pathway for other states to assume comparable programs: EPA makes a comparability determination, notifies the Corps and the state, and the Corps then suspends its own permitting for activities the State will administer. The bill also amends the Clean Water Act to state that Section 404 program approvals are not "rules or regulations," a change that will affect administrative process and potential legal challenges.
At a Glance
What It Does
Ratifies three named State Section 404 programs and prevents the EPA Administrator from unilaterally withdrawing those approvals except by a subsequent Act of Congress; adds a 90-day dual-permitting window for Florida and a formal process for EPA to recognize comparable state programs, triggering Corps suspension of federal permitting for those activities. It also amends 404(h) to specify that a program approval is not a rule or regulation.
Who It Affects
Directly affects the State agencies of Michigan, New Jersey, and Florida; the U.S. Army Corps of Engineers (permit issuance and coordination); the EPA (oversight and comparability determinations); permit applicants in those states (developers, dredgers, infrastructure projects); and stakeholders concerned with wetlands, endangered species, and tribal aquatic resources.
Why It Matters
The bill shifts the balance of practical permitting control toward the named states and makes those approvals harder to reverse, increasing regulatory certainty for permittees but reducing the EPA’s unilateral oversight tools. It creates a repeatable mechanism for other states to assume permitting and introduces administrative and legal questions about reviewability and future program changes.
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What This Bill Actually Does
The bill treats three State-run Section 404 permit programs — Michigan’s, New Jersey’s, and Florida’s — as conclusively approved federal programs and blocks the EPA from using its existing withdrawal mechanism under Section 404(i) of the Clean Water Act to revoke those approvals. By tying withdrawal authority to a subsequent Act of Congress, the statute replaces agency discretion with a legislative gate: only Congress can later undo the approvals granted today.
The text expressly folds in successor Federal Register notices describing program updates, so later administrative tweaks that were published as follow-up notices remain part of the approved program record.
For Florida the bill inserts a short operational transition: for 90 days after enactment both the Army Corps and the State may continue to issue permits within Florida’s jurisdiction under the program described in the cited EPA notice. The bill also makes explicit that Florida’s Programmatic Biological Opinion and its Incidental Take Statement are part of the program material the approval covers, which ties endangered-species consultation outputs to the approved State regime.Beyond the three named programs, the bill creates a process for other States to assume similar responsibility.
If EPA finds a submitted State program comparable to one of the three named models, EPA must make the formal comparability determination required under Section 404(h)(2)(A), notify the Army Secretary (via the Chief of Engineers) and the State, and — once the State begins administering the approved program — the Corps must suspend issuance of its own Section 404 permits for the activities the State will cover. That sequence converts an EPA comparability finding into immediate operational change at the Corps.Finally, the bill adds a short sentence to Section 404(h) of the Clean Water Act saying that approval of a State program "shall not be considered to be a rule or regulation." That change alters the statutory characterization of approvals and will affect how agencies and litigants treat the approvals in administrative-process and judicial-review contexts.
The Five Things You Need to Know
The bill bars the EPA Administrator from withdrawing approval of the named State Section 404 programs — including via the 404(i) process — unless Congress enacts a law after the bill’s passage explicitly authorizing withdrawal.
It explicitly ratifies the Michigan (49 Fed. Reg. 38947, 1984) and New Jersey (59 Fed. Reg. 9933, 1994) 404 approvals and the Florida approval cited at 85 Fed. Reg. 83553 (2020), and it incorporates any successor Federal Register notices describing updates.
The Florida program ratification expressly includes the Programmatic Biological Opinion and its Incidental Take Statement as part of the State’s approved 404 program record.
For 90 days after enactment the Army Corps and Florida may both issue Section 404 permits in Florida’s jurisdiction, creating a brief dual-issuance transition period.
The bill amends 33 U.S.C. 1344(h) to add that a State program approval 'shall not be considered to be a rule or regulation,' and it sets a notice-and-suspend mechanism where an EPA comparability finding requires the Corps to suspend federal permitting for activities the State will cover.
Section-by-Section Breakdown
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Short title
Designates the measure as the "Maintaining Cooperative Permitting Act of 2025." This is a standard heading but signals the bill’s policy aim: preserving cooperative federalism around Section 404 permitting.
Ratification and prohibition on withdrawal
Declares the named State Section 404 permit programs (Michigan, New Jersey, Florida) "ratified, approved, and of full force and effect." It prohibits the EPA Administrator from withdrawing those approvals — including through the agency’s statutory withdrawal procedure in 404(i) — unless Congress enacts a law after this Act’s passage that expressly authorizes such a withdrawal. The provision therefore converts administrative approvals into a statutory status that is effectively locked in absent subsequent Congressional action.
Scope of the approved programs
Specifies the exact administrative actions being ratified: Michigan’s 1984 Federal Register approval, New Jersey’s 1994 final rule, and Florida’s 2020 EPA notice. The bill also covers any updates described in successor Federal Register notices, and it explicitly includes Florida’s Programmatic Biological Opinion and Incidental Take Statement. By tying approvals to particular Federal Register entries (and their successor notices), the statute narrows the object of ratification to the documented program materials.
Florida transition period and comparability-to-assumption pathway
Creates a 90-day window after enactment during which both the Secretary of the Army (through the Chief of Engineers) and Florida may issue Section 404 permits in Florida’s waters — a short period of dual authority intended to smooth operational handoffs. Separately, it authorizes EPA to determine that other States’ submitted programs are comparable to any of the named models; once EPA makes the comparability finding and notifies the Secretary and the State, and the State begins administering the program, the Corps must suspend issuing permits under Section 404(a) and (e) for activities the State will administer. That sequence turns EPA’s technical comparability finding into an operational trigger for Corps suspension of federal permitting.
Administrative characterization of approvals
Adds a new paragraph to Section 404(h) of the Clean Water Act stating that an approval of a State permit program "shall not be considered to be a rule or regulation." The change alters how approvals are categorized within the statute, which can influence the procedures agencies must follow and litigants’ arguments about reviewability and whether approval actions must comport with rulemaking procedures under the Administrative Procedure Act.
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Explore Environment in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- State environmental agencies in Michigan, New Jersey, and Florida — the bill locks in their Section 404 authority and reduces the risk that EPA will unilaterally revoke their approvals, giving those agencies sustained control over dredge-and-fill permitting in their jurisdictions.
- Developers, infrastructure sponsors, and dredging operators in those states — by freezing approvals and including successor notices, the bill increases permit predictability and reduces the chance of abrupt federal intervention that could delay projects.
- States seeking assumption — the comparability pathway lets other states seek EPA determinations that trigger Corps suspension of federal permitting, creating a clearer operational route to assume permitting authority modeled on the ratified programs.
- Florida regulatory and resource agencies — the inclusion of the Programmatic Biological Opinion and the 90-day dual-issuance window provide transitional clarity on species-consultation outputs and short-term permitting operations.
Who Bears the Cost
- The Environmental Protection Agency — the bill strips a key administrative withdrawal tool (Section 404(i)) and narrows agency flexibility to respond to changed circumstances in the named programs, potentially constraining EPA’s ability to protect waters under evolving science or policy.
- The U.S. Army Corps of Engineers — the Corps must implement the 90-day transition and later suspend its own permitting when EPA finds comparability, shifting operational responsibilities and potentially increasing coordination overhead with states.
- Environmental NGOs, tribes, and resource agencies concerned with wetlands and listed species — locking in approvals and folding State-level PBOs into program records could make it harder to restore federal oversight if state programs later prove inadequate to protect aquatic resources or tribal treaty rights.
- Congress and federal courts — the bill’s change to the character of approvals and the restriction on withdrawal may induce litigation over reviewability and delegations, increasing judicial and legislative workload to resolve disputes the statute forecloses administratively.
Key Issues
The Core Tension
The central dilemma is between legal and operational certainty for State programs and permittees versus preserving federal oversight as a backstop to protect waters and listed species: the bill secures state-administered permitting and predictability, but at the cost of reducing the EPA’s and Corps’ nimbleness to correct or reverse state permitting decisions when environmental risks or new information arise.
The bill replaces administrative flexibility with statutory permanence. By requiring new legislation for any future withdrawal, it forces policy disputes about program adequacy from an administrative forum into a political one; that matters for rapidly changing environmental conditions or newly discovered harms.
Locking a Programmatic Biological Opinion and an Incidental Take Statement into a State approval raises questions about how future species-protection updates or new listings will be handled if the underlying consultation reflects earlier science.
Another practical tension is the bill’s addition specifying that approvals "shall not be considered to be a rule or regulation." That language appears intended to limit the procedural apparatus and perhaps the applicability of the Administrative Procedure Act’s notice-and-comment requirements to approvals, but it also invites litigation over what legal standards govern EPA’s comparability findings, the scope of judicial review of approvals, and whether that characterization can insulate approvals from challenge. Implementation will also raise coordination headaches: the Corps must quickly parse EPA notifications of comparability, determine which activities to suspend, and manage permit backlogs while States ramp up staffing and enforcement.
Finally, the statute does not fully resolve how successor Federal Register notices will be interpreted if a significant program change is described in such a notice after ratification, leaving open where the line is between an "update" that stays within the ratified program and a material change that could trigger dispute.
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