By STAFF REPORTS
Last week, the U.S. Environmental Protection Agency (EPA) announced a proposed rule revising its regulations implementing Clean Water Act (CWA) Section 401 water quality certification. The rule text was posted on January 15th, and they are soliciting public comments for 30 days.
Section 401 authorizes states, tribes, and territories to certify that federally permitted projects comply with applicable water quality requirements before a federal license or permit is issued.
The proposal would substantially revise the 2023 Section 401 rule, which EPA now characterizes as exceeding the statute’s intended scope and enabling extended review timelines and procedural delays. According to EPA, the new proposal is intended to realign Section 401 implementation with the statutory text, legislative history, and relevant Supreme Court precedent, while improving permitting efficiency and predictability
Key elements of the proposal include narrowing the scope of state review to point source discharges into waters of the United States and their compliance with applicable water quality requirements. EPA also proposes standardizing review requirements, establishing a single, defined set of materials.
The rule would also prohibit states from requesting that federal applicants withdraw and resubmit certification requests, a practice EPA says has been used to extend reviews. Additional provisions would establish defined timelines for resolving neighboring state or tribal objections under Section 401(a)(2).
