Proposed Rule to Restore Section 401 Authority Under Clean Water Act

The U.S. Environmental Protection Agency (USEPA) announced a proposed rule to update the regulatory requirements for water quality certification under Clean Water Act (CWA) Section 401. The USEPA says the proposed rule would strengthen the authority of States, territories, and Tribes to protect vital water resources while supporting an efficient, predictable, and common-sense certification process.

The Federal decision was made to revise the 2020 Clean Water Act (CWA) Section 401 Certification Rule after determining that it erodes State and Tribal authority. The proposed rule would update the existing regulations to be more consistent with the statutory text of the 1972 CWA and clarify elements of Section 401 certification practice that have evolved over the 50 years since the 1971 regulation was promulgated.

Congress provided authority to States, territories, and Tribes under CWA Section 401 to protect the quality of their respective waters from adverse impacts resulting from federally licensed or permitted projects. Under Section 401, a Federal agency may not issue a license or permit to conduct any activity that may result in any discharge into a water of the United States, unless the State, territory, or authorized Tribe where the discharge would originate either issues a CWA Section 401 water quality certification or waives certification.

USEPA is accepting public comments under Docket ID No. EPA-HQ-OW-2022-0128 on Comments will be accepted through August 8, 2022. Three virtual public hearing sessions will be held on Monday, July 18, 2022. Click here to view the times and register to attend a virtual public hearing.