Today, the U.S. Environmental Protection Agency (EPA) announced a proposed rule to update the regulatory requirements for water quality certification under Clean Water Act (CWA) Section 401. This proposed rule would strengthen the authority of states, territories, and Tribes to protect their vital water resources while supporting an efficient, predictable, and common-sense certification process, restoring a long-held right, which was severely limited by the previous administration’s rule.

“For 50 years, the Clean Water Act has protected water resources that are essential to thriving communities, vibrant ecosystems, and sustainable economic growth,” said EPA Administrator Michael S. Regan. “EPA’s proposed rule builds on this foundation by empowering states, territories, and Tribes to use Congressionally granted authority to protect precious water resources while supporting much-needed infrastructure projects that create jobs and bolster our economy.”

This proposed rule is a key milestone in the regulatory process announced in May 2021 to revise the 2020 CWA Section 401 Certification Rule. 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. EPA conducted pre-proposal engagement to help inform the content of its proposal.

Congress provided authority to states, territories, and Tribes under CWA Section 401 to protect the quality of their 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.

The Agency is taking comment on this proposed rule for 60 days beginning on the date it is published in the Federal Register. For more information on submitting written comment on the proposal or to register for the virtual public hearing on the proposed rule, see www.epa.gov/cwa-401.

“The Clean Water Act quite clearly gives states, territories, and Tribes the ability to protect their water quality when projects are permitted or licensed,” said U.S. Senator Tom Carper, Chairman of the Senate Committee on Environment and Public Works. “I commend Administrator Regan and the technical experts at EPA for taking a prudent step to help these governments act to address local water quality.”

“I applaud EPA’s announcement today to restore the rights of states, territories, and Tribes to safeguard their water resources — an essential tool for states to protect their people, local economies, and public health,” said U.S. Representative Peter DeFazio, Chair of the House Committee on Transportation and Infrastructure. “This marks yet another step the Biden Administration has taken to reverse the harmful polices of the Trump era and to uphold the Clean Water Act. The Section 401 process is a prime example of states and the federal government working together to protect clean water while keeping local expertise in the driver’s seat. The proposed rulemaking reinstates our bipartisan commitment to clean water with policies that protect, not pillage, our most precious natural resources.”

“Today’s actions by the EPA will enable states, territories and tribes to uplift their economies by protecting their water resources as they deem appropriate,” said New Mexico Governor Michelle Lujan Grisham. “I applaud Administrator Regan for his collaborative approach to ensuring that our state and federal partnership on this important issue leads to improved water quality for ecosystems, cultural uses, and continued economic growth.”

“The CWA Section 401 certifications serve as the first and sometimes the only line of defense protecting tribal waters from pollutant discharge flowing within and on to our reservation lands. A strengthening of the  401 certification rule serves to protect our tribal nations’ water and cultural values,” said National Tribal Water Council Chairman Ken Norton.

“The Clean Water Act has always been a valuable tool for states to protect their waters,” said Environmental Council of States Executive Director Ben Grumbles. “We appreciate EPA’s engagement to continue pursuing a durable rule that safeguards states’ rights and a clean water future.”

“The Clean Water Act Section 401 Certification rule is a cornerstone part of protecting Connecticut’s waters,” said Commissioner of Connecticut Department of Energy and Environmental Protection Katie S. Dykes. “We are pleased that EPA has proposed a rule that updates the regulatory requirements to ensure an efficient, predictable, and protecting process.”

“We thank EPA for their efforts to strengthen state authority to protect our own water resources,” said New Jersey Department of Environmental Protection Commissioner Shawn M. LaTourette. “Partnership at the state and federal level on issues like water quality is the best way to achieve results. In New Jersey protecting water resources for our residents is a priority and ensuring economic benefits is vital to our state.”

“We applaud EPA for this important proposal to ensure states have a role in protecting clean water and thank Administrator Regan for his commitment to coordination with states on programs like this,” said New York State Department of Environmental Conservation Commissioner Basil Seggos. “We look forward to reviewing the proposal and working with EPA to further create a clear process that enhances this vital Clean Water Act program.”

“The state of Wisconsin is encouraged by EPA’s efforts to update the 2020 CWA Section 401 certification rule and EPA’s commitment  to craft a rule that recognizes the breadth of state review necessary to determine an activity’s impacts on state resources,” said Wisconsin Department of Natural Resources Secretary Preston Cole. “The CWA Section 401 certification process is a critical component of state’s authority to preserve and protect its water resources and is a fundamental part of the Clean Water Act.” 

“We applaud the Biden administration for taking this important step to restore clean water safeguards. Ensuring states and Tribal Nations have the ability to advocate for their rights and interests is essential to protecting and restoring rivers nationwide,” said CEO of American Rivers Tom Kiernan. “The way toward just, equitable solutions is for those most impacted by threats to rivers to play a meaningful role in decision-making. States and Tribal Nations have a vital role to play in creating a future of clean water and healthy rivers everywhere, for everyone."

“The EPA’s proposal would rightly restore power to states and tribes to protect their waters from harm, and signals our nation’s streams, lakes, and wetlands will be better protected by the people who deeply understand their water resources, guided by science and law,” said Director of Federal Water Policy for NRDC (Natural Resources Defense Council) Jon Devine.

Background

Executive Order 13990 on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis directed EPA to review and, as appropriate and consistent with applicable law, take action to revise or replace the 2020 CWA Section 401 Certification Rule (2020 Rule). Prior to the 2020 Rule, EPA promulgated implementing regulations for water quality certification before the 1972 amendments to the Federal Water Pollution Control Act (commonly known as the Clean Water Act), which created Section 401.