EPA Notice of Intention to Reconsider Clean Water Act Section 401 Certification Rule

On June 2nd, the United States Environmental Protection Agency (EPA) published its Notice of Intent to Reconsider and Revise the Section 401 Certification Rule under the Clean Water Act (CWA). The Section 401 Certification Rule was designed to give states and authorized tribes the authority to grant, deny, or waive certification of proposed federal licenses or permits that may discharge into waters of the United States if they determined that a project would have an adverse impact on their waters.

In 2020, the EPA issued a revision to the Certification Rule which EPA described as establishing procedures that promote:

• Consistent implementation of Section 401 of the Clean Water Act; and
• Regulatory certainty in the federal licensing and permitting process.

However, many states and tribes feel that the rule changes issued by the EPA in 2020 limit states’ authority to protect their waters because the 2020 Rule changes made it impossible for a state to block a water permit for a project for any reason other than direct pollution into state waters. It also sets a one-year deadline for states to approve projects. This could lead to adverse environmental impacts and erode potential state, federal and tribal collaboration on projects.

In the June 2nd Federal Register, the EPA published its Notice of Intent to Reconsider and Revise the CWA Section 401 Certification Rule. The EPA states that the purpose of revising the 2020 Certification Rule is to strengthen the authority of states and tribes to protect water resources. EPA plans to conduct public and stakeholder outreach prior to proposing a new rule. However, until the revision takes place, the 2020 CWA Section 401 Certification Rule will remain in place. A copy of the Federal Register Notice can be downloaded here.