EPA Reinforces Alignment of Clean Water Act Section 401
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The U.S. Environmental Protection Agency (EPA) has issued a memorandum clarifying the specific and limited role that states and tribes play in the federal licensing and permitting processes under Clean Water Act (CWA) section 401. Through the memorandum, the agency is reiterating its longstanding position that states and Tribes must utilize section 401 only for its statutory purpose – to protect water quality.
“Under the last Administration, certain states attempted to leverage the Clean Water Act to undercut projects that would boost national and regional development and unleash American energy resources. With this memorandum, EPA is reinforcing the limits on Clean Water Act section 401 certification to support energy, critical mineral, and infrastructure projects that are key to economic growth and power the great American comeback,” said EPA Administrator Lee Zeldin.
The memorandum clarifies that a state’s or Tribe’s evaluation is limited to considering negative impacts to water quality, and only such impacts that prevent compliance with applicable water quality requirements. This direction is consistent with all prior regulations and guidance documents for section 401 certification.
The memorandum also outlined EPA’s intent to issue a forthcoming Federal Register notice and docket to obtain public input on implementation challenges and regulatory uncertainty related to the 2023 rule’s scope of certification. The agency will address such challenges and uncertainty through additional future guidance or rulemaking.
BACKGROUND
Under CWA section 401, states and authorized Tribes review water quality impacts that could result from federally licensed or permitted projects. As the lead federal agency, EPA is responsible for developing regulations and guidance to ensure effective implementation of CWA programs, including for Section 401.
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