Legal Alerts

EPA Seeks Comment on Clean Water Act Section 401 Certification Rule

Washington, D.C. (June 29, 2021) - The Environmental Protection Agency (EPA) announced that it will revise a 2020 final rule clarifying requirements for water quality certification under the Clean Water Act (CWA). 85 Fed. Reg. 42210 (June 2, 2021). CWA Section 401 requires states and tribes to certify that any discharges associated with a federal permit will comply with applicable state or tribal water quality requirements.

In an effort to eliminate 401 certification being used as a tool for delaying or imposing conditions unrelated to protecting water quality on federal permits, the 2020 rule established limits on the scope and timeline for review and required any conditions on certification to be water-quality related. State and Tribal governments and environmental groups challenged the rule, arguing it constrained state and tribal decision-making authority by limiting the term “other appropriate requirements of State law” in CWA Section 401(d) to “water quality requirements” and “point source discharges.”

With EPA’s decision to revise the rule, many believe these same scope and timing limitations will be targets for change. Clients with experience, positive or negative, under the 2020 rule should consider submitting comments by the August 2, 2021 deadline.

EPA is interested in hearing about the following:

  • Evidence that the rule is working or not working, which will be used as a basis for a proposed rule, including:
    • whether the rule properly considers cooperative federalism principles; and
    • whether certain procedural components improve or impede certification and permitting processes.
  • Experience with pre-filing meetings and whether the 30-day timing is appropriate.
  • Whether the 2020 rule constrains what states and tribes can require in certification requests.
    • e.g., has having a specific list of required certification request components improved or hindered the process?
  • Whether to increase the state and tribal role in setting and extending reasonable period of time.
    • e.g., should stakeholders have a role in defining and extending the reasonable period of time?
  • Whether to expand the scope of review and conditions to include non-water quality requirements.
    • e.g., should EPA revise to include potential impacts from the activity as a whole as opposed to the current scope limited to impacts to water quality from the discharge?
  • Whether to limit federal agency oversight, including:
    • whether a federal agency should be able to deem a certification or condition as waived;
    • whether a federal agency may reject state conditions; and
    • whether there should be specific components for certification conditions and denials.
  • Whether state and tribal governments have independent enforcement and inspection authority:
    • e.g.,does CWA 401 support certifying authority enforcement of certification conditions under federal law?
    • does the CWA citizen suit provision apply to 401?
  • Whether states and tribes should have the ability to reopen or modify certifications.
  • Whether EPA should provide additional guidance on what must occur after a “may affect” determination.
    • e.g., is the agency required to make a determination under 401(a)(2) or is it discretionary?

Lewis Brisbois attorneys are experienced with federal permitting and the implications of the CWA 401 certification process on project budgets and timelines, and are prepared to assist clients with meaningful comment development. For more information on this topic, contact the author of this alert. Visit our Environmental, Land, & Natural Resources Law Practice page for additional alerts in this area of the law.


Karen C. Bennett, Partner

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