As directed by President Trump, the U.S. Environmental Protection Agency (EPA) released guidance on Section 401 of the Clean Water Act (CWA) that provides recommendations to clarify and streamline the 401 certification process and to promote greater investment in and certainty for national infrastructure projects while continuing to protect local water quality.
Under Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth,” EPA was directed to issue guidance for federal permitting agencies and state and authorized tribal authorities to modernize previous guidance and clarify existing CWA Section 401 requirements.
EPA’s “Clean Water Act Section 401 Certification Guidance for Federal Agencies, States, and Authorized Tribes” provides clarification and recommendations on CWA Section 401 certifications in the following specific areas:
- Statutory and regulatory timelines for review and action on a CWA Section 401 certification;
- The appropriate scope of CWA Section 401 certification conditions; and
- Information within the scope of a state or authorized tribe’s CWA Section 401 review.
EPA’s new guidance, which replaces EPA’s prior interim guidance from 2010, also provides additional recommendations to federal agencies, states and authorized tribes to promote early collaboration and coordination through the 401 certification process. Executive Order 13868 also directed EPA to propose new rules modernizing the agency’s CWA Section 401 implementing regulations by August 8, 2019. The agency intends to propose regulations that may help further clarify and streamline CWA Section 401 certifications. Since the Executive Order was issued on April 10, 2019, the agency has initiated formal consultations with its state, local, and tribal partners, as well as outreach with its federal partners on this rulemaking effort and invited written pre-proposal recommendations through a public docket. The agency is carefully reviewing the input received through these engagements and the docket prior to issuing a proposed rule.
Section 401 of the CWA provides states and authorized tribes with an important tool to help protect water quality within their borders in collaboration with federal agencies. The rules governing this authority have not been updated in nearly 50 years. In addition, evolving case law and EPA’s outdated guidance have caused some confusion and resulted in delays in certain infrastructure projects with potentially significant national benefits.