2020 Clean Water Act Section 401 Certification Rule Implementation Challenges

The U.S. Environmental Protection Agency (USEPA) and the U.S. Department of the Army (Army) issued a joint memorandum regarding implementation of the 2020 Clean Water Act (CWA) Section 401 Certification Rule associated with U.S. Army Corps of Engineers (Corps) permits. The USEPA and Army are closely coordinating to address challenges and better empower States and Tribes to protect public health and the environment.

The USEPA says CWA Section 401 provides States and Tribes with a powerful tool to protect the quality of their waters from adverse impacts resulting from Federally licensed or permitted projects. Under CWA Section 401, a Federal agency may not issue a license or permit to conduct any discharge into navigable waters, unless the State or Tribe where the discharge would originate either issues a CWA Section 401 water quality certification finding “that any such discharge will comply with the applicable provisions of Section 301, 302, 303, 306, and 307” of the CWA, or certification is waived.

The joint memorandum regarding the implementation of CWA Section 401 comes more than four months after the USEPA announced its intent to revise the CWA Section 401 Certification Rule to strengthen the authority of States and Tribes to protect their vital water resources.

While the rulemaking effort is underway, the joint memorandum directs the Corps to provide the maximum amount of time allowed before finalizing 41 Nationwide Permits (NWPs) that were proposed in September 2020 and have not yet been finalized. The joint memorandum also addresses multiple implementation challenges with the 2020 CWA associated with Corps-issued permits, including by directing the Corps to work collaboratively with States and Tribes to:

  • Identify factors and circumstances that warrant extending the reasonable period of time.
  • Resolve procedural deficiencies within the reasonable period of time.
  • Identify and address circumstances that may appropriately require permit modifications.

There is additional information available on Section 401 of the CWA on the USEPA website.