EPA issues final rule on Clean Water Act Section 401

The U.S. EPA has announced a final rule on Clean Water Act Section 401, restoring and strengthening the role of states, territories and authorized Tribes in federal agencies’ activities as it affects water quality.

“With EPA’s final Clean Water Act Section 401 rule, we are affirming the authority of states, territories, and Tribes to protect precious water resources while advancing federally permitted projects in a transparent, timely, and predictable way,” said EPA Administrator Michael S. Regan.

Clean Water Act Section 401 enables states, territories, and authorized Tribes to protect their water quality from adverse impacts of construction or operation of federally permitted projects. Under Section 401 of the Act, 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 appropriate state, territory, or authorized Tribe issues a CWA Section 401 water quality certification or waives certification.

EPA says that its 2023 rule restores and strengthens the role of states, territories, and authorized Tribes under Section 401.

The rule enhances certification review and provides regulatory certainty to advance federally permitted projects. For example, the rule establishes a 6-month default timeframe (when the federal agency and certifying authority fail to reach an agreement) and a 1-year maximum timeframe for certification review (the statutory maximum).

The rule emphasizes that states, territories, and Tribes may only consider the adverse water quality-impacts from the activity. To limit delays, the rule also provides a clear approach to defining the required contents in a request for certification.

More information, including a pre-publication version of the Federal Register notice, fact sheets, and information on upcoming trainings on the final rule, is available at EPA’s CWA section 401 website.

“Section 401 of the federal Clean Water Act gives states and Tribes an important role regarding federally licensed or permitted projects. As Attorney General, I stood up to efforts to undermine this and now, as Governor, I'm grateful to see it restored," said Massachusetts Governor Maura Healey. “Massachusetts thanks the U.S. EPA for strengthening the partnership envisioned by the Clean Water Act with today’s rule, helping us fulfill our commitment to protecting waterways across Massachusetts.”

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.

On June 2, 2022, EPA announced the signing of a proposed rule to update the regulatory requirements for water quality certification under Clean Water Act Section 401. EPA conducted pre-proposal engagement and provided a 60-day public comment period on the proposed rule to help inform the content of the final rule.