Project 2025 Tracker / What’s done, what’s next

13. Environmental Protection Agency · Notable

Issue a rule clarifying criminal negligence under CWA Sections 402 and 404

Not started

429 13. Environmental Protection Agency

“A rule to clarify the standard for criminal negligence under CWA Sections 402 and 404.”

What has happened

  1. Not started

    EPA did publish on criminal enforcement, and it did not touch what the Quote asks about. Its notice of 31 July 2025, issued under section 7 of Executive Order 14294 on overcriminalization, announces that EPA will report to OMB by 9 May 2026 a list of every criminal regulatory offense it or the Justice Department can enforce, with each one's penalty range and applicable mens rea standard, and it states a general policy of weighing four factors — harm or risk of harm, the defendant's potential gain, whether the defendant held specialized knowledge or a license, and evidence of awareness of unlawfulness — when deciding whether to refer an alleged offense to DOJ. That is a referral policy, and by its own words a restatement: EPA "has historically considered each of these factors as a matter of formal policy", citing its 1994 investigative-discretion guidance, and the notice adds that it creates no right or benefit enforceable by anyone. It is a notice, not a rule; it names neither the Clean Water Act nor section 402 nor section 404; and it does not define negligence. Nothing else in the window does either.

Research log

What was searched, and what didn’t count as evidence

Research notes

  • Negative search (2026-08-27): a Federal Register full-text search restricted to EPA returns no rule or proposal in the window on the criminal negligence standard; the EPA notices we keep and search carry one criminal enforcement document, “Guidance on Referrals for Potential Criminal Enforcement” of 2025-07-31, which is about when a matter is referred rather than what mental state the statute requires.
  • Guidance read 2026-09-06. Status unchanged. The guidance was read in full at https://www.govinfo.gov/content/pkg/FR-2025-07-31/html/2025-14474.htm — two Federal Register pages, 90 FR 36044–45, which is the whole document. It does not touch negligence under §§402 and 404, and it is not a rule. It is attached to the not started event as action next to the ask that satisfies neither limb: this is the administration acting on criminal enforcement standards, on the ask’s own subject, and stopping short of the ask.
  • One thing in it is worth watching rather than leveling: the mens rea inventory EPA owed OMB by 9 May 2026 would, if published, be the closest the record comes to a statement of what negligence means for each criminal regulatory offense. No such report has been published — the notice describes a report to the Director of OMB, not a public one — and nothing in the Federal Register or on epa.gov in the window carries it. That is the place to look, and its absence is a fact about the record and not about this ask.
  • Among the EPA Federal Register notices we keep and search, this is the one criminal-enforcement document.
  • EPA’s full regulatory agenda, read 2026-09-01. The full EPA Unified Agenda was read on reginfo.gov (214 entries across the active, long-term and completed stages), because the Federal Register prints only the entries that need a Regulatory Flexibility analysis and the 2026-08-27 negative search was taken from that abbreviated version. No entry anywhere in the 214 mentions criminal negligence or the Clean Water Act section 402 or 404 liability standard. The negative now reaches the agenda as well as the Federal Register.
Action
issue
Object
criminal negligence standard under CWA Sections 402 and 404
ID
1110