The Environmental Protection Agency on Jan.13 issued its proposed rule to revise the 2023 Clean Water Act section 401 Water Quality Certification Improvement Rule.
The proposed rule is posted on EPA's website.
Section 401 provides states and tribes the authority to grant, waive, or deny certification before a federal agency issues a permit or a license that may result in discharge into waters of the United States. EPA said it is committed to maximizing permitting efficiency and avoiding permit delays, while also following the law and supporting states and tribes as co-regulators.
In July, EPA hosted stakeholder listening sessions and invited interested parties to provide feedback on regulatory uncertainty or implementation challenges associated with the CWA section 401 process under the 2023 rule.
The feedback from the listening session and the request-for-information outreach informed the Jan. 13 proposal.
Below are the key elements of the proposed rule:
• Clarify Review Scope: Limit state and tribal review to evaluating whether point source discharges into waters of the United States comply with relevant water quality requirements, aligning with statutory language, legislative history, and Supreme Court precedent.
• Standardize Application Requirements: Create a single, consistent list of required elements for all certification requests, giving applicants, federal agencies, and certifying authorities a clear and predictable starting point for the review period.
• Improve Process Certainty: Prohibit certifying authorities from requesting applicants to withdraw and resubmit certification requests, preventing review timelines from exceeding the one year limit set by statute.
• Increase Transparency: Specify the information that must be included in every certification decision, helping applicants, agencies, and the public understand the basis for decisions and any conditions imposed.
• Strengthen Applicant Engagement: Give applicants an explicit role in any modification to a certification, ensuring any changes are supported by the project proponent responsible for implementation.
• Enhance Predictability in Interjurisdictional Reviews: Establish a defined timeframe for federal agencies to hold public hearings and resolve objections from neighboring jurisdictions under section 401(a)(2), ensuring timely and transparent resolution.
• Reduce Redundancy: Encourage tribes to obtain treatment as state (TAS) status for section 401 by leveraging the existing TAS process under section 303, minimizing regulatory duplication.
The proposal will be published in the Federal Register on Jan. 15, and EPA will accept public comments for 30 days.
APPA said it plans to work with industry partners to develop comments in response to the proposal.
EPA has made available the proposal’s economic analysis and overview presentation on its website.
