In May of 2021, the Environmental Protection Agency announced their intent to revise the 2020 Clean Water Act (CWA) Section 401 Certification Rule after determining that it erodes state and tribal authority. Through this process, the EPA intends to strengthen the authority of states and tribal nations to protect their vital water resources.
The 401 program regulates discharges of fill and dredged material to all waters of the state, including waters of the U.S., by requesting every applicant to acquire a federal permit or license for any activity which may result in a discharge to a water body. The State Water Quality Certification guarantees that any proposed discharge will comply with state water quality standards. The new proposed rule would strengthen the authority of states, territories, and tribal nations with the ultimate goal of protecting vital water resources while supporting an efficient, predictable, and common-sense certification process which was severely limited in the previous administration’s rule. This proposed rule is a crucial milestone in the regulatory process of updating existing regulations to be more consistent with the statutory text of the 1972 CWA. The rule clarifies elements of Section 401 certification practice that has evolved over the last 50 years.
On June 9, 2022, the U.S. Environmental Protection Agency (EPA) published the proposed rule to the Federal Register. Congress’s decision provided authority to states, territories, and tribal nations under CWA Section 401 to protect the quality of waters belonging to their territory from adverse impacts. As regulated in Section 401 of the CWA, 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 issues a CWA Section 401 water quality certification or waive certifications where the discharge originates.
Key Changes in Proposed Rule
- The proposed rule aims to make the following changes to bolster states’, territories’, and tribal nations’ authority in the CWA 401 program:
- Scope of state authority*
- Proposed rule allows states to expand protections to all waters, not just federal “navigable waters”.
- Regulatory timing
- Grants authority to the state to define a “reasonable period” to review certification requests.
- Reinstate “activity as a whole” approach
- Considers any impact to water quality at any stage of a proposed dredge/fill project
- 2020 rule only observed impacts related to the specific discharge
- Scope of state authority*
*As the Supreme Court prepares to revisit the “waters of the United States” (WOTUS) definition in the Sackett vs. EPA case, this aspect of the proposed rule could have serious legal repercussions as state protections are expanded beyond the scope of WOTUS.
EPA Seeks Comments
The Environmental Agency is currently accepting comments on the proposed update to the 401 program. They will host three virtual public hearings on July 18, 2022, from 11am-1pm (ET), 2pm-4pm (ET), and 5pm-7pm (ET). Written comments on the rule are due by August 8, 2022.
For additional information on registering for the virtual public hearings, all interested parties can visit EPA’s website: https://www.epa.gov/cwa-401/upcoming-outreach-and-engagement-cwa-section-401-certification
To read the proposed rule and submit comments, the document can be found at the following link in the Federal Register: https://www.federalregister.gov/documents/2022/06/09/2022-12209/clean-water-act-section-401-water-quality-certification-improvement-rule