Clean Water Act Section 401: Overview and Recent Developments

Changes from November 23, 2020 to January 12, 2022

This page shows textual changes in the document between the two versions indicated in the dates above. Textual matter removed in the later version is indicated with ~~red strikethrough~~ and textual matter added in the later version is indicated with blue.

Clean Water Act Section 401: Overview and
~~November 23, 2020~~January 12, 2022
Recent Developments
Laura Gatz
Congress established the Clean Water Act (CWA) to “restore and maintain the chemical, Congress established the Clean Water Act (CWA) to “restore and maintain the chemical,
Analyst in Environmental Analyst in Environmental
physical, and biological integrity of the Nation’s Waters.” Under CWA Section 401, any physical, and biological integrity of the Nation’s Waters.” Under CWA Section 401, any
Policy Policy
applicant for a federal license or permit to conduct any activity that may result in any discharge applicant for a federal license or permit to conduct any activity that may result in any discharge

into navigable waters (i.e., waters of the United States) shall provide the federal licensing or into navigable waters (i.e., waters of the United States) shall provide the federal licensing or
Kate R. Bowers
permitting agency with a Section 401 certification. The certification, issued by the certifying permitting agency with a Section 401 certification. The certification, issued by the certifying
Legislative Attorney Legislative Attorney
authority—usually the state in which the discharge originates, but sometimes a tribe or the U.S. authority—usually the state in which the discharge originates, but sometimes a tribe or the U.S.

Environmental Protection Agency (EPA)—attests that the discharge will comply with applicable Environmental Protection Agency (EPA)—attests that the discharge will comply with applicable
provisions of certain enumerated sections of the CWA. These include effluent (i.e., discharge) provisions of certain enumerated sections of the CWA. These include effluent (i.e., discharge)

limitations and standards of performance for new and existing discharge sources (Sections 301, limitations and standards of performance for new and existing discharge sources (Sections 301,
302, and 306), water quality standards and implementation plans (Section 303), and toxic pretreatment effluent standards 302, and 306), water quality standards and implementation plans (Section 303), and toxic pretreatment effluent standards
(Section 307). The certifying authority may grant, grant with conditions, deny, or waive certification of proposed federal (Section 307). The certifying authority may grant, grant with conditions, deny, or waive certification of proposed federal
licenses or permits. Activities that require such federal licenses or permits include hydropower projects licensed by the licenses or permits. Activities that require such federal licenses or permits include hydropower projects licensed by the
Federal Energy Regulatory Commission (FERC) and certain activities involving the discharge of dredged or fill material into Federal Energy Regulatory Commission (FERC) and certain activities involving the discharge of dredged or fill material into
waters of the United States permitted by the U.S. Army Corps of Engineers (USACE) (e.g., pipeline projects, water resource waters of the United States permitted by the U.S. Army Corps of Engineers (USACE) (e.g., pipeline projects, water resource
projects, mining projects, or other development). projects, mining projects, or other development).
Many observe that the certification authority under Section 401 has strong ramifications. If a certifying authority denies Many observe that the certification authority under Section 401 has strong ramifications. If a certifying authority denies
certification, the federal license or permit is denied. If a certifying authority grants a certification with conditions, those certification, the federal license or permit is denied. If a certifying authority grants a certification with conditions, those
conditions must be included in the final license or permit. Some license and permit applicantsconditions must be included in the final license or permit. Some license and permit applicants~~, in recent years,~~ have expressed have expressed
frustration with how some states have exercised their Section 401 authority. Key concerns include timeframes for issuing frustration with how some states have exercised their Section 401 authority. Key concerns include timeframes for issuing
certifications, the scope of the states’ reviews, and the type of conditions that states can impose when granting a certification. certifications, the scope of the states’ reviews, and the type of conditions that states can impose when granting a certification.
Some stakeholders have accused states of misusing Section 401 authority to block certain projects and have advocated for Some stakeholders have accused states of misusing Section 401 authority to block certain projects and have advocated for
changes to the CWA or implementing regulations and guidance to limit states’ changes to the CWA or implementing regulations and guidance to limit states’ ~~authority under~~ Section 401Section 401 authority. Other . Other
stakeholders assert that state implementation is too lenient and may fail to block certain projects that have the potential to stakeholders assert that state implementation is too lenient and may fail to block certain projects that have the potential to
degrade water quality. Many states assert that Section 401 certification allows them to manage and protect the quality of degrade water quality. Many states assert that Section 401 certification allows them to manage and protect the quality of
waters within their states, and any efforts to limit state waters within their states, and any efforts to limit state ~~authority under~~ Section 401 Section 401 authority are contrary to the are contrary to the CWA’s principles of principles of
cooperative federalismcooperative federalism ~~upon which the CWA is based~~. .
The Trump Administration The Trump Administration ~~has~~ criticized the manner in which some states criticized the manner in which some states ~~have~~ exercised their Section 401 authorityexercised their Section 401 authority ~~and has~~
~~taken steps to update EPA’s implementing regulations and guidance. On~~. In April April ~~10,~~ 2019, President Trump issued 2019, President Trump issued ~~Executive~~
~~Order (E.O.) 13868~~an executive order (E.O.), which, among other things, directed EPA to review Section 401 and EPA’s related regulations and , which, among other things, directed EPA to review Section 401 and EPA’s related regulations and
guidance; issue new guidance; and propose and finalize new regulations within specific timeframes. guidance; issue new guidance; and propose and finalize new regulations within specific timeframes.
EPA responded to the E.O. by issuing updated Section 401 guidance EPA responded to the E.O. by issuing updated Section 401 guidance onin June June 7, 2019, and publishing a final rule (the 2020 2019, and publishing a final rule (the 2020
~~Final Rule) to update regulations on water quality certification on July 13, 2020. The 2020 Final Rule became effective on~~
~~September 11, 2020, replacing EPA’s~~ Final Rule) in July 2020 to update Section 401 regulations. The 2020 Final Rule went into effect in September 2020, rescinding EPA’s 2019 Guidance and replacing its existing implementing regulations for Section 401, which were existing implementing regulations for Section 401, which were promulgated in 1971. The 2020 Final Rule included ~~promulgated in 1971.~~
~~EPA also rescinded its 2019 Guidance coincident with the 2020 Final Rule’s effective date. The 2020 Final Rule includes~~
numerous changes to existing regulation and practice that numerous changes to existing regulation and practice that ~~narrow~~narrowed the authority of certifying authorities when acting on the authority of certifying authorities when acting on
Section 401 certification requests. Several changes Section 401 certification requests. Several changes ~~address~~addressed two broad policy issues relevant to two broad policy issues relevant to ~~the~~ implementation of Section implementation of Section
401—certification timeframes and the scope of certifications. In addition, the 2020 Final Rule 401—certification timeframes and the scope of certifications. In addition, the 2020 Final Rule ~~includes~~included changes regarding changes regarding
federal review of certifications and enforcement. federal review of certifications and enforcement.
The 2020 Final Rule The 2020 Final Rule ~~has~~ garnered interest from garnered interest from ~~stakeholder groups~~stakeholders. Various groups, including those representing certain . Various groups, including those representing certain
energy interests, generally energy interests, generally ~~are in support of~~supported the rule. Other groups, including some states and state associations, the rule. Other groups, including some states and state associations, ~~oppose~~opposed the the
~~changes. Five separate groups of parties have filed lawsuits in three federal district courts challenging the 2020 Final Rule. In~~
~~general, the parties argue that the rule unlawfully limits the scope of certifying authorities in reviewing proposed projects,~~
~~and unlawfully expands the role of federal licensing and permitting agencies in the Section 401 certification process.~~
~~The 116th Congress has engaged with CWA issues. The Senate Environment and Public Works Committee held an oversight~~
~~hearing in November 2019. Legislation has been introduced in the House and Senate (H.R. 2205/S. 1087) to amend Section~~
changes. Five separate groups of states, tribes, and environmental organizations filed lawsuits challenging the 2020 Final Rule. In January 2021, President Biden issued an executive order that directed agencies to review certain Trump Administration agency actions, including the 2020 Final Rule. EPA’s review of the rule identified a number of concerns, prompting the agency to issue in June 2021 a notice of intention to reconsider and revise the rule. EPA’s Fall 2021 regulatory agenda estimates the agency will publish a proposed rule in March 2022. On October 21, 2021, a federal district court vacated the rule, prompting EPA to announce a temporary return to the 1971 implementing regulations. The 117th Congress continues to show interest in Section 401. Some Members have introduced legislation proposing to codify the 2020 Final Rule (S. 3277). Others have proposed amending Section 401 regarding the scope of water quality impacts that certifying authorities may consider in their certification review, as well 401 regarding the scope of water quality impacts that certifying authorities may consider in their certification review, as well
as the scope of conditions they may as the scope of conditions they may ~~impose~~impose (H.R. 3422/S. 1761). .
Congressional Research Service Congressional Research Service

link to page link to page 2729 Clean Water Act Section 401: Overview and Recent Developments

Background
Section 401 of the Clean Water Act Section 401 of the Clean Water Act (CWA) requires that any applicant for a federal license or permit requires that any applicant for a federal license or permit
provide a certification that any discharges that may result from the licensed or permitted activity provide a certification that any discharges that may result from the licensed or permitted activity
will comply with the act, including water quality standard requirements. Disputes have arisen will comply with the act, including water quality standard requirements. Disputes have arisen
over the states’ exercise of authority under Section 401over the states’ exercise of authority under Section 401~~, particularly the extent to which some~~
~~states’ use of Section 401 aligns with implementing regulations and EPA guidance issued by the~~
~~Trump Administration. Some~~. While some stakeholders argue that states are appropriately using their Section 401 authority to manage and protect the quality of their waters, other stakeholders, including some license and permit applicants (hereinafter referred to as “project license and permit applicants (hereinafter referred to as “project
proponents”)proponents”) ~~and other stakeholders~~, have expressed frustration with how some states have have expressed frustration with how some states have
implemented this authority. Key concerns regarding implementation include the timeframes for implemented this authority. Key concerns regarding implementation include the timeframes for
issuing certifications, the scope of review, and the type of conditions that certifying authorities issuing certifications, the scope of review, and the type of conditions that certifying authorities
can impose when granting a certification. can impose when granting a certification.
Until 2020, the Section 401 implementing regulations promulgated by the Environmental Protection Agency (EPA) in 1971 were in effect.1 In July 2020, EPA issued a final water quality certification rule that went into effect on September 11, 2020 (hereinafter the 2020 Final Rule), replacing the 1971 regulations.2 In January 2021, President Biden issued an executive order that directed agencies to review certain Trump Administration agency actions, including the 2020 Final Rule. EPA’s review of the rule identified a number of concerns, prompting the agency to publish in June 2021 a notice of intention to reconsider and revise the rule. Further, on October 21, 2021, the U.S. District Court for the Northern District of California issued an order remanding and vacating EPA’s 2020 Final Rule.3 EPA has stated that the vacatur applies nationwide and requires a temporary return to EPA’s 1971 regulations until the agency finalizes a new rule.4 This report provides an overview of CWA Section 401, selected policy issues and how they were addressed in the 2020 Final Rule, and actions taken by the Biden Administration to reconsider and revise the rule. What Is Clean Water Act Section 401?
Congress established the Federal Water Pollution Control Act (FWPCA), as amended by the Congress established the Federal Water Pollution Control Act (FWPCA), as amended by the
~~Clean Water Act (CWA)~~CWA, to “restore and maintain the chemical, physical, and biological integrity , to “restore and maintain the chemical, physical, and biological integrity
of the Nation’s waters.”of the Nation’s waters.”15 Under CWA Section 401 (hereinafter Section 401), any applicant for a Under CWA Section 401 (hereinafter Section 401), any applicant for a
federal license or permit to conduct any activity that may result in any discharge into navigable federal license or permit to conduct any activity that may result in any discharge into navigable
waters—defined in the statute as “waters of the United States, including the territorial seas”—waters—defined in the statute as “waters of the United States, including the territorial seas”—
shall provide the federal licensing or permitting agency with a Section 401 certification.shall provide the federal licensing or permitting agency with a Section 401 certification.~~2 (~~6 (See See
Appendix for the full text of CWA Section 401.) The certification, issued by the state (or other for the full text of CWA Section 401.) The certification, issued by the state (or other
~~certifying authority)~~ certifying authority) 1 EPA, “State Certification of Activities Requiring a Federal Permit or License” (hereinafter “1971 regulations”), 36 Federal Register 22487, November 25, 1971. Codified at 40 C.F.R. §121. 2 EPA, “Clean Water Act Section 401 Certification Rule” (hereinafter “2020 Final Rule”), 85 Federal Register 42210-42287, July 13, 2020. 3 Order, In re Clean Water Act Rulemaking, No. 3:20-cv-04636, Doc. No. 173 (N.D. Cal. Oct. 21. 2021). 4 EPA, 2020 Rule Implementation Materials, https://www.epa.gov/cwa-401/2020-rule-implementation-materials, accessed Nov. 16, 2021. See also EPA, Clean Water Act Section 401 Water Quality Certification Questions and Answers on the 2020 Rule Vacatur, December 17, 2021, https://www.epa.gov/system/files/documents/2021-12/questions-and-answers-document-on-the-2020-cwa-section-401-certification-rule-vacatur-12-17-21-508.pdf. 5 CWA §101(a); 33 U.S.C. §1251(a). 6 33 U.S.C. §1341. The statute defines “navigable waters” at CWA §502(7); 33 U.S.C. §1362(7), and “discharge” as a discharge of a pollutant or pollutants at CWA §502(16); 33 U.S.C. §1362(16). Congressional Research Service 1 Clean Water Act Section 401: Overview and Recent Developments in which the discharge originates, attests that the discharge will comply with in which the discharge originates, attests that the discharge will comply with
applicable provisions of certain enumerated sections of the CWA. These include effluent (i.e., applicable provisions of certain enumerated sections of the CWA. These include effluent (i.e.,
discharge) limitations and standards of performance for new and existing discharge sources discharge) limitations and standards of performance for new and existing discharge sources
(Sections 301, 302, and 306), water quality standards and implementation plans (Section 303), (Sections 301, 302, and 306), water quality standards and implementation plans (Section 303),
and toxic pretreatment effluent standards (Section 307). and toxic pretreatment effluent standards (Section 307).
Effluent limitations establish the levels of specific pollutants that are allowable in a discharger’s Effluent limitations establish the levels of specific pollutants that are allowable in a discharger’s
effluent based on either the performance of technologies for a specified level of control required effluent based on either the performance of technologies for a specified level of control required
by the CWA (technology-based effluent limitations) or levels necessary to attain water quality by the CWA (technology-based effluent limitations) or levels necessary to attain water quality
standards in the waterbody receiving the discharge (water quality-based effluent limitations). standards in the waterbody receiving the discharge (water quality-based effluent limitations).
Water quality standards, which are developed by the state and submitted to Water quality standards, which are developed by the state and submitted to ~~the U.S.~~
~~Environmental Protection Agency (EPA)~~EPA for approval, contain three core components that specify for approval, contain three core components that specify
(1) the designated uses of a waterbody (e.g., recreation, public water supply), (2) criteria to (1) the designated uses of a waterbody (e.g., recreation, public water supply), (2) criteria to
protect those uses (i.e., numeric concentrations of pollutants or narrative descriptions), and (3) an protect those uses (i.e., numeric concentrations of pollutants or narrative descriptions), and (3) an
antidegradation policy.antidegradation policy.37 Pretreatment standards apply to indirect dischargers, who discharge to a Pretreatment standards apply to indirect dischargers, who discharge to a
publicly owned treatment works prior to discharge into a water of the United States.publicly owned treatment works prior to discharge into a water of the United States.48
Section 401 provides states, certain tribes, and in certain circumstances, Section 401 provides states, certain tribes, and in certain circumstances, ~~EPA5~~EPA9 (hereinafter (hereinafter
referred to collectively as “certifying authorities”) the authority to grant, grant with conditions, referred to collectively as “certifying authorities”) the authority to grant, grant with conditions,

~~1 CWA §101(a); 33 U.S.C. §1251(a).~~
~~2 33 U.S.C. §1341. The statute defines “navigable waters” at CWA §502(7); 33 U.S.C. §1362(7), and “discharge” as a~~
~~discharge of a pollutant or pollutants at CWA §502(16); 33 U.S.C. §1362(16).~~
~~3 CWA §303(c)(2)(A), 33 U.S.C. §1313(c)(2)(A) for designated uses and criteria; CWA §§101(a) and 303(d)(4)(B), 33~~
~~U.S.C. §§1251, 1313(d)(4)(B) for antidegradation. See also 40 C.F.R. Part 131.~~
~~4 CWA §§301 and 307; 33 U.S.C. §§1311 and 1317.~~
~~5 Per CWA §518 (33 U.S.C. §1377), EPA is authorized to treat an Indian tribe as a state for certain sections of the~~
~~CWA including CWA §401 if the tribe meets certain statutory eligibility criteria. EPA acts as the certifying authority~~
~~Congressional Research Service~~
1

~~Clean Water Act Section 401: Overview and Recent Developments~~

deny, or waive certification of proposed federal licenses or permits that may result in a discharge deny, or waive certification of proposed federal licenses or permits that may result in a discharge
into waters of the United States. into waters of the United States.
 If a certifying authority  If a certifying authority grants the certification, the federal licensing or the certification, the federal licensing or
permitting agency can proceed and evaluate whether the license or permit should permitting agency can proceed and evaluate whether the license or permit should
be issued. be issued.
 If a certifying authority  If a certifying authority grants the certification with conditions, the federal , the federal
licensing or permitting agency can proceed and evaluate whether the license or licensing or permitting agency can proceed and evaluate whether the license or
permit should be issued. Section 401 requires any conditions listed in the permit should be issued. Section 401 requires any conditions listed in the
certification to become a term of the federal license or permit if one is issued. certification to become a term of the federal license or permit if one is issued.
 If a certifying authority  If a certifying authority denies certification, the federal licensing or permitting certification, the federal licensing or permitting
agency cannot issue the license or permit. agency cannot issue the license or permit.
 If a certifying authority  If a certifying authority waives certification, the certification is not required for certification, the certification is not required for
the federal licensing or permitting agency to issue the license or permit. A waiver the federal licensing or permitting agency to issue the license or permit. A waiver
may either be explicit or implicit. Specifically, the CWA provides that if the may either be explicit or implicit. Specifically, the CWA provides that if the
certifying authority “fails or refuses to act on a request for certification, within a certifying authority “fails or refuses to act on a request for certification, within a
reasonable time (which shall not exceed one year) after receipt of such request, reasonable time (which shall not exceed one year) after receipt of such request,
the certification requirements of this subsection shall be waived.”the certification requirements of this subsection shall be waived.”610 7 CWA §303(c)(2)(A), 33 U.S.C. §1313(c)(2)(A) for designated uses and criteria; CWA §§101(a) and 303(d)(4)(B), 33 U.S.C. §§1251, 1313(d)(4)(B) for antidegradation. See also 40 C.F.R. Part 131. 8 CWA §§301 and 307; 33 U.S.C. §§1311 and 1317. 9 Per CWA §518 (33 U.S.C. §1377), EPA is authorized to treat an Indian tribe as a state for certain sections of the CWA including CWA §401 if the tribe meets certain statutory eligibility criteria. EPA acts as the certifying authority on tribal lands where the tribe has not been granted treatment as a state, as well as on federal lands with exclusive federal jurisdiction. 10 CWA §401(a)(1); 33 U.S.C. §1341(a)(1). Congressional Research Service 2 Clean Water Act Section 401: Overview and Recent Developments
What Activities Require a Section 401 Certification?
Any activity that (1) requires a federal license or permit and (2) may result in a discharge into Any activity that (1) requires a federal license or permit and (2) may result in a discharge into
waters of the United States requires a Section 401 certification.waters of the United States requires a Section 401 certification.711 Examples include hydropower Examples include hydropower
projects requiring Federal Energy Regulatory Commission (FERC) licenses, industrial and projects requiring Federal Energy Regulatory Commission (FERC) licenses, industrial and
municipal point source discharges requiring National Pollutant Discharge Elimination System municipal point source discharges requiring National Pollutant Discharge Elimination System
(NPDES) permits that would be issued by (NPDES) permits that would be issued by ~~EPA8~~EPA12 (CWA Section 402), and certain activities (CWA Section 402), and certain activities
involving the discharge of dredged or fill material into waters of the United States requiring U.S. involving the discharge of dredged or fill material into waters of the United States requiring U.S.
Army Corps of Engineers (USACE) permits (CWA Section 404 and Rivers and Harbors Act Army Corps of Engineers (USACE) permits (CWA Section 404 and Rivers and Harbors Act
Sections 9 and 10).Sections 9 and 10).913 Examples of activities that may require a CWA Section 404 permit include Examples of activities that may require a CWA Section 404 permit include
pipeline projects, infrastructure development, water resource projects, mining projects, or pipeline projects, infrastructure development, water resource projects, mining projects, or
residential or commercial development. Note that such permits are required only for segments or residential or commercial development. Note that such permits are required only for segments or
portions of the project that involve a discharge of dredged or fill material into federally regulated portions of the project that involve a discharge of dredged or fill material into federally regulated
waters (i.e., waters of the United States). waters (i.e., waters of the United States).
Stakeholder Interest in Section 401
Many observe that the certification authority under Section 401—which is a direct grant of Many observe that the certification authority under Section 401—which is a direct grant of
authority by Congress—has strong ramifications.authority by Congress—has strong ramifications.1014 First, if a certifying authority denies ~~First, if a certifying authority denies~~

~~on tribal lands where the tribe has not been granted treatment as a state, as well as on federal lands with exclusive~~
~~federal jurisdiction.~~
~~6 CWA §401(a)(1); 33 U.S.C. §1341(a)(1).~~
~~7 Ibid.~~
~~8 EPA administers NPDES permits in Massachusetts, New Hampshire, New Mexico, the District of Columbia, and~~
~~certain territories and Indian lands. Because §401 covers only federally issued permits, in the 47 states that are~~
~~authorized to administer their own NPDES permits, CWA §401 certifications are not required for NPDES permits.~~
~~9 33 U.S.C. §1344; 33 U.S.C. §§401, 403.~~
~~10 EPA, Wetlands and 401 Certification: Opportunities and Guidelines for States and Eligible Indian Tribes, April~~
~~1989, p. 9, https://www.epa.gov/nscep. Deidre Duncan and Clare Ellis, “Clean Water Act Section 401: Balancing~~
~~Congressional Research Service~~
2

~~Clean Water Act Section 401: Overview and Recent Developments~~

certification, the federal license or permit is denied, which may prevent the activity, as proposed, certification, the federal license or permit is denied, which may prevent the activity, as proposed,
from taking place or lead to a modification of the activity. Second, if a certifying authority grants from taking place or lead to a modification of the activity. Second, if a certifying authority grants
a certification with conditions, those conditions are required to be included in the final federal a certification with conditions, those conditions are required to be included in the final federal
license or permit. Such conditions imposed by certifying authorities have, for example, limited license or permit. Such conditions imposed by certifying authorities have, for example, limited
the time of year in which the proposed activity can occur, or required water quality monitoring or the time of year in which the proposed activity can occur, or required water quality monitoring or
wetland mitigation. wetland mitigation.
Some license and permit applicants (hereinafter referred to as “project proponents”) and other Some license and permit applicants (hereinafter referred to as “project proponents”) and other
stakeholders have expressed frustration with how some states have implemented this authority.stakeholders have expressed frustration with how some states have implemented this authority.1115
Key concerns include the timeframes for issuing certifications, the scope of review, and the type Key concerns include the timeframes for issuing certifications, the scope of review, and the type
of conditions that certifying authorities can impose when granting a certification. Some of conditions that certifying authorities can impose when granting a certification. Some
stakeholders have accused states of misusing Section 401 authority to block certain projects and stakeholders have accused states of misusing Section 401 authority to block certain projects and
have advocated for changes to the CWA or implementing regulations and guidance to limit states’ have advocated for changes to the CWA or implementing regulations and guidance to limit states’
authority under Section 401.authority under Section 401.1216 Under the Trump Administration, EPA Under the Trump Administration, EPA ~~has~~was also also ~~been~~ critical of critical of
~~some states’ denials of Section 401 certifications.13 Other stakeholders have asserted that state~~
~~implementation of Section 401 has been too lenient in some instances and may fail to block or~~
~~appropriately condition certain projects that may lead to water quality degradation.14 Many states~~
~~assert that Section 401 certification allows them to manage and protect the quality of waters~~
~~within their states.15 They argue that any efforts to change the CWA or implementing regulations~~
~~to limit state authority under Section 401 are contrary to the principles of cooperative federalism~~
~~upon which the CWA is based.16~~

some 11 Ibid. 12 EPA administers NPDES permits in Massachusetts, New Hampshire, New Mexico, the District of Columbia, and certain territories and Indian lands. Because §401 covers only federally issued permits, in the 47 states that are authorized to administer their own NPDES permits, CWA §401 certifications are not required for NPDES permits. 13 33 U.S.C. §1344; 33 U.S.C. §§401, 403. 14 EPA, Wetlands and 401 Certification: Opportunities and Guidelines for States and Eligible Indian Tribes, April 1989, p. 9, https://www.epa.gov/nscep. Deidre Duncan and Clare Ellis, “Clean Water Act Section 401: Balancing States’ Rights and the Nation’s Need for Energy Infrastructure,” States’ Rights and the Nation’s Need for Energy Infrastructure,” Hastings Environmental Law Journal, vol. 25, no. 2 , vol. 25, no. 2
(Summer 2019), p. 237. Jeanne Christie, (Summer 2019), p. 237. Jeanne Christie, The Compleat Wetlander: 401 Certification - Delivering a Big Payload for
State Rights, Clean Water, and Flood Protection, Association of State Wetland Managers, August 26, 2011, , Association of State Wetland Managers, August 26, 2011,
https://www.aswm.org/wordpress/the-compleat-wetlander-401-certification-delivering-a-big-payload-for-state-rights-https://www.aswm.org/wordpress/the-compleat-wetlander-401-certification-delivering-a-big-payload-for-state-rights-
clean-water-and-flood-protection/. clean-water-and-flood-protection/.
1115 See, e.g., Comments of the Association of American Railroads (May 24, 2019); Comments of the Interstate Natural See, e.g., Comments of the Association of American Railroads (May 24, 2019); Comments of the Interstate Natural
Gas Association of America (May 24, 2019). Both letters are available at EPA Clean Water Act Section 401 Water Gas Association of America (May 24, 2019). Both letters are available at EPA Clean Water Act Section 401 Water
Quality Certification Pre-Proposal Recommendations, Docket No. EPA-HQ-OW-2018-0855. Quality Certification Pre-Proposal Recommendations, Docket No. EPA-HQ-OW-2018-0855.
1216 See, e.g., American Petroleum Institute, “API-NY Applauds Second Circuit Court Decision, Says It’s Good News for See, e.g., American Petroleum Institute, “API-NY Applauds Second Circuit Court Decision, Says It’s Good News for
Pipelines Across New York,” press release, February 5, 2019, https://www.api.org/news-policy-and-issues/news/2019/Pipelines Across New York,” press release, February 5, 2019, https://www.api.org/news-policy-and-issues/news/2019/
02/05/apiny-applauds-second-circuit-court-decision-says-its-good-news-for-pipelines-ac. 02/05/apiny-applauds-second-circuit-court-decision-says-its-good-news-for-pipelines-ac. See also American Gas American Gas
Congressional Research Service 3 Clean Water Act Section 401: Overview and Recent Developments states’ denials of Section 401 certifications.17 Other stakeholders have asserted that state implementation of Section 401 has been too lenient in some instances and may fail to block or appropriately condition certain projects that may lead to water quality degradation.18 Many states assert that Section 401 certification allows them to manage and protect the quality of waters within their states.19 They argue that any efforts to change the CWA or implementing regulations to limit state authority under Section 401 are contrary to the principles of cooperative federalism upon which the CWA is based.20 Actions Under the Trump Administration The Trump Administration characterized some states’ uses of Section 401 authority as misusing the CWA and directed EPA to update implementing regulations and guidance.21 EPA finalized updated regulations in 2020 and issued updated guidance in 2019. Prior to these actions, regulations promulgated in 197122 and interim guidance published in 2010 were in effect.23 The 1971 regulations implemented the certification provisions included in Section 21(b) of the Federal Water Pollution Control Act (FWPCA) of 1948.24 The 1972 amendments to the FWPCA created Section 401 and restructured the statutory framework of the statute.25 However, EPA had not updated its 1971 implementing regulations for Section 401 to reflect the changes to the relevant statutory text.26 EPA issued Section 401 guidance in 1989, which it updated in 2010.27 Association, “EPA Proposes Updates to Certification Process for Natural Gas Infrastructure,” press release, August 9, Association, “EPA Proposes Updates to Certification Process for Natural Gas Infrastructure,” press release, August 9,
2019, https://www.aga.org/news/news-releases/epa-proposes-updates-to-certification-process-for-natural-gas-2019, https://www.aga.org/news/news-releases/epa-proposes-updates-to-certification-process-for-natural-gas-
infrastructure/. infrastructure/.
1317 EPA, “EPA Issues Final Rule that Helps Ensure U.S. Energy Security and Limits Misuse of the Clean Water Act,” EPA, “EPA Issues Final Rule that Helps Ensure U.S. Energy Security and Limits Misuse of the Clean Water Act,”
press release, June 1, 2020, https://www.epa.gov/newsreleases/epa-issues-final-rule-helps-ensure-us-energy-security-press release, June 1, 2020, https://www.epa.gov/newsreleases/epa-issues-final-rule-helps-ensure-us-energy-security-
and-limits-misuse-clean-water-0. and-limits-misuse-clean-water-0.
1418 Sierra Club, “Environmental Groups Challenge Virginia’s Unlawful Approval of Fracked Gas Pipeline,” press Sierra Club, “Environmental Groups Challenge Virginia’s Unlawful Approval of Fracked Gas Pipeline,” press
release, December 8, 2017, https://www.sierraclub.org/press-releases/2017/12/environmental-groups-challenge-release, December 8, 2017, https://www.sierraclub.org/press-releases/2017/12/environmental-groups-challenge-
virginia-s-unlawful-approval-fracked-gas. Sierra Club, “Dereliction of Duty: WVDEP Abandons Water Quality virginia-s-unlawful-approval-fracked-gas. Sierra Club, “Dereliction of Duty: WVDEP Abandons Water Quality
Review of Fracked Gas Pipeline,” press release, November 1, 2017, https://www.sierraclub.org/press-releases/2017/11/Review of Fracked Gas Pipeline,” press release, November 1, 2017, https://www.sierraclub.org/press-releases/2017/11/
dereliction-duty-wvdep-abandons-water-quality-review-fracked-gas-pipeline. Chesapeake Bay Foundation, “CBF dereliction-duty-wvdep-abandons-water-quality-review-fracked-gas-pipeline. Chesapeake Bay Foundation, “CBF
Appeals Atlantic Coast Pipeline Certification,” press release, January 22, 2018, https://www.cbf.org/news-media/Appeals Atlantic Coast Pipeline Certification,” press release, January 22, 2018, https://www.cbf.org/news-media/
newsroom/2018/virginia/cbf-appeals-atlantic-coast-pipeline-certification.html. newsroom/2018/virginia/cbf-appeals-atlantic-coast-pipeline-certification.html.
1519 See, e.g., Letter from Western Governors’ Association, National Conference of State Legislatures, and National See, e.g., Letter from Western Governors’ Association, National Conference of State Legislatures, and National
Association of Counties, et al. to Honorable John Barrasso and Honorable Tom Carper, November 18, 2019, Association of Counties, et al. to Honorable John Barrasso and Honorable Tom Carper, November 18, 2019,
https://www.acwa-us.org/wp-content/uploads/2019/11/Coalition-Letter-Clean-Water-Act-Section-401-Legislation-11-https://www.acwa-us.org/wp-content/uploads/2019/11/Coalition-Letter-Clean-Water-Act-Section-401-Legislation-11-
18-19.pdf. 18-19.pdf.
~~16 Ibid.~~
~~Congressional Research Service~~
3

~~Clean Water Act Section 401: Overview and Recent Developments~~

~~Recent Administrative Actions~~
~~The Trump Administration has characterized some states’ uses of Section 401 authority as~~
~~misusing the CWA and directed EPA to update implementing regulations and guidance.17 EPA~~
~~finalized updated regulations in 2020 and issued updated guidance in 2019. Prior to these actions,~~
~~regulations promulgated in 197118 and interim guidance published in 2010 were in effect.19 The~~
~~1971 regulations implemented the certification provisions included in Section 21(b) of the~~
~~Federal Water Pollution Control Act (FWPCA) of 1948.20 The 1972 amendments to the FWPCA~~
~~created Section 401 and restructured the statutory framework of the statute.21 However, until~~
~~recently, EPA had not updated its 1971 implementing regulations for Section 401 to reflect the~~
~~changes to the relevant statutory text.22 EPA issued Section 401 guidance in 1989, which it~~
~~updated in 2010.23~~
20 Ibid. 21 EPA, “EPA Issues Final Rule that Helps Ensure U.S. Energy Security and Limits Misuse of the Clean Water Act,” press release, June 1, 2020, https://www.epa.gov/newsreleases/epa-issues-final-rule-helps-ensure-us-energy-security-and-limits-misuse-clean-water-0. 22 1971 regulations. 23 EPA, Clean Water Act Section 401 Water Quality Certification: A Water Quality Protection Tool for States and Tribes, April 2010. Hereinafter 2010 Guidance. 24 2020 Final Rule, p. 42211. 25 Since the 1977 amendments to the FWPCA—the Clean Water Act of 1977—the statute has commonly been referred to as the CWA. 26 2020 Final Rule, p. 42211. 27 EPA, Wetlands and 401 Certification: Opportunities and Guidelines for States and Eligible Indian Tribes, A-104F, April 1989. See also 2010 Guidance. According to EPA’s 2010 Guidance, the agency “substantially updated its handbook on CWA §401 water quality certification” reflecting “two decades of case law and state and tribal program Congressional Research Service 4 link to page 11 link to page 14 link to page 14 link to page 8 Clean Water Act Section 401: Overview and Recent Developments On April 10, 2019, President Trump issued Executive Order (E.O.) 13868, “Promoting Energy On April 10, 2019, President Trump issued Executive Order (E.O.) 13868, “Promoting Energy
Infrastructure and Economic Growth.”Infrastructure and Economic Growth.”2428 The E.O. stated that “outdated federal guidance and The E.O. stated that “outdated federal guidance and
regulations regarding Section 401” regulations regarding Section 401” ~~are~~were “causing confusion and uncertainty and are hindering the “causing confusion and uncertainty and are hindering the
development of energy infrastructure.” Among other things, the E.O. directed EPA to review and development of energy infrastructure.” Among other things, the E.O. directed EPA to review and
issue new guidance to supersede the existing Section 401 guidance and to revise the agency’s issue new guidance to supersede the existing Section 401 guidance and to revise the agency’s
existing Section 401 implementing regulations. The E.O. instructed EPA to focus on the need to existing Section 401 implementing regulations. The E.O. instructed EPA to focus on the need to
promote timely federal-state cooperation, the appropriate scope of water quality reviews, the promote timely federal-state cooperation, the appropriate scope of water quality reviews, the
types of conditions that may be appropriate to include in a certification, expectations for review types of conditions that may be appropriate to include in a certification, expectations for review
times for different types of certification requests, and the nature and scope of information states times for different types of certification requests, and the nature and scope of information states
may need to act on a certification request. may need to act on a certification request.
2019 Guidance
EPA has issued guidance to states to provide information on the applicability and scope of Section EPA has issued guidance to states to provide information on the applicability and scope of Section
401 and how states may use Section 401 to protect water quality. In accordance with E.O. 13868, 401 and how states may use Section 401 to protect water quality. In accordance with E.O. 13868,
EPA released updated Section 401 guidance on June 7, 2019, and rescinded the previous 2010 EPA released updated Section 401 guidance on June 7, 2019, and rescinded the previous 2010
Guidance.Guidance.2529 EPA’s stated intent in updating the guidance was to provide clarifications and ~~EPA’s stated intent in updating the guidance was to provide clarifications and~~

~~17 EPA, “EPA Issues Final Rule that Helps Ensure U.S. Energy Security and Limits Misuse of the Clean Water Act,”~~
~~press release, June 1, 2020, https://www.epa.gov/newsreleases/epa-issues-final-rule-helps-ensure-us-energy-security-~~
~~and-limits-misuse-clean-water-0.~~
~~18 EPA, “State Certification of Activities Requiring a Federal Permit or License,” 36 Federal Register 22487,~~
~~November 25, 1971. Codified at 40 C.F.R. §121.~~
~~19 EPA,~~ ~~Clean Water Act Section 401 Water Quality Certification: A Water Quality Protection Tool for States and~~
~~Tribes, April 2010. Hereinafter 2010 Guidance.~~
~~20 EPA, “Clean Water Act Section 401 Certification Rule” (hereinafter “2020 Final Rule”), 85 Federal Register 42210-~~
~~42287, July 13, 2020.~~
~~21 Since the 1977 amendments to the FWPCA—the Clean Water Act of 1977—the statute has commonly been referred~~
~~to as the CWA.~~
~~22 2020 Final Rule, p. 42211.~~
~~23 EPA, Wetlands and 401 Certification: Opportunities and Guidelines for States and Eligible Indian Tribes, A-104F,~~
~~April 1989. See also 2010 Guidance. According to EPA’s 2010 Guidance, the agency “substantially updated its~~
~~handbook on CWA §401 water quality certification” reflecting “two decades of case law and state and tribal program~~
~~experience.”~~
~~24 84 Federal Register 15495, April 15, 2019.~~
~~25 EPA, Clean Water Act Section 401 Guidance for Federal Agencies, States and Authorized Tribes, June 7, 2019,~~
~~https://www.epa.gov/cwa-401/clean-water-act-section-401-guidance-federal-agencies-states-and-authorized-tribes.~~
~~Hereinafter 2019 Guidance.~~
~~Congressional Research Service~~
4

~~link to page 10 link to page 13 link to page 13 link to page 8~~ ~~Clean Water Act Section 401: Overview and Recent Developments~~

recommendations on Section 401 water quality certifications with regards to statutory and recommendations on Section 401 water quality certifications with regards to statutory and
regulatory timelines for review and action on a 401 certification, the appropriate scope of 401 regulatory timelines for review and action on a 401 certification, the appropriate scope of 401
certification conditions, and information that the certifying authority may consider in its 401 certification conditions, and information that the certifying authority may consider in its 401
certification review. EPA changes to the 2010 Guidance certification review. EPA changes to the 2010 Guidance ~~reflect~~reflected different interpretations of key different interpretations of key
aspects of Section 401 implementation, including certification review timeframes and the scope aspects of Section 401 implementation, including certification review timeframes and the scope
of certifications. (See discussion under of certifications. (See discussion under “Start of the Certification “Clock”” and and “Scope of 401
Certifications.”) )
In the preamble to the rule EPA published in 2020 updating regulations on water quality In the preamble to the rule EPA published in 2020 updating regulations on water quality
certification (see certification (see “Updated Regulations/2020 Final Rule”), EPA announced its decision to rescind ), EPA announced its decision to rescind
the 2019 Guidance coincident with issuing the rule.the 2019 Guidance coincident with issuing the rule.2630 The agency concluded that retaining the The agency concluded that retaining the
2019 Guidance after issuing the rule could cause confusion.2019 Guidance after issuing the rule could cause confusion.2731 EPA further stated that “the final EPA further stated that “the final
rule provides sufficient additional specificity and clarity on the issues discussed in the 2019 rule provides sufficient additional specificity and clarity on the issues discussed in the 2019
Guidance to both meet the expectations of the Executive Order and render the 2019 Guidance Guidance to both meet the expectations of the Executive Order and render the 2019 Guidance
unnecessary.”unnecessary.”2832
Updated Regulations/2020 Final Rule
EPA also responded to E.O. 13868 by proposing a rule updating regulations on water quality EPA also responded to E.O. 13868 by proposing a rule updating regulations on water quality
certification in August 2019.certification in August 2019.2933 In July 2020, EPA issued a final water quality certification rule In July 2020, EPA issued a final water quality certification rule
~~(hereinafter~~ experience.” 28 84 Federal Register 15495, April 15, 2019. 29 EPA, Clean Water Act Section 401 Guidance for Federal Agencies, States and Authorized Tribes, June 7, 2019, https://www.epa.gov/cwa-401/clean-water-act-section-401-guidance-federal-agencies-states-and-authorized-tribes. Hereinafter 2019 Guidance. 30 2020 Final Rule, p. 42214. 31 Ibid. 32 Ibid. 33 EPA, “Updating Regulations on Water Quality Certification,” 84 Federal Register 44080, August 22, 2019. (Hereinafter 2019 Proposed Rule.) Congressional Research Service 5 Clean Water Act Section 401: Overview and Recent Developments (the 2020 Final Rule) that went into effect on September 11, 2020, and replaced the prior 2020 Final Rule) that went into effect on September 11, 2020, and replaced the prior
implementing regulations from 1971.implementing regulations from 1971.3034
EPA stated in the preamble to the 2020 Final Rule that the rule EPA stated in the preamble to the 2020 Final Rule that the rule iswas intended to “modernize” the intended to “modernize” the
Section 401 implementing regulations and “align them with the current text and structure of the Section 401 implementing regulations and “align them with the current text and structure of the
CWA.”CWA.”3135 EPA also stated that the 2020 Final Rule EPA also stated that the 2020 Final Rule ~~provides~~provided additional regulatory procedures that additional regulatory procedures that
“will help promote consistent implementation of CWA section 401 and streamline federal “will help promote consistent implementation of CWA section 401 and streamline federal
licensing and permitting processes, consistent with the objectives of the Executive Order.”licensing and permitting processes, consistent with the objectives of the Executive Order.”3236
The 2020 Final Rule The 2020 Final Rule ~~includes~~included numerous changes to existing regulation and practice that numerous changes to existing regulation and practice that ~~narrow~~narrowed
the authority of states when acting on Section 401 certification requests. Several changes the authority of states when acting on Section 401 certification requests. Several changes ~~address~~
addressed two broad policy issues relevant to the implementation of Section 401—certification timeframes two broad policy issues relevant to the implementation of Section 401—certification timeframes
and the scope of certification (including both the scope of review and the scope of conditions). In and the scope of certification (including both the scope of review and the scope of conditions). In
addition, the 2020 Final Rule addition, the 2020 Final Rule ~~includes~~included a new process for federal review of certifications and a new process for federal review of certifications and
newly newly ~~authorizes~~authorized the federal licensing and permitting agencies as the enforcement authorities. The the federal licensing and permitting agencies as the enforcement authorities. The
following sections discuss these policy issues, how they following sections discuss these policy issues, how they ~~are~~ were addressed in the 2020 Final Rule, and addressed in the 2020 Final Rule, and
stakeholder responses and legal challenges to the 2020 stakeholder responses and legal challenges to the 2020 Final Rule. ~~Final Rule.~~

~~26 2020 Final Rule, p. 42214.~~
~~27 Ibid.~~
~~28 Ibid.~~
~~29 EPA, “Updating Regulations on Water Quality Certification,” 84 Federal Register 44080, August 22, 2019.~~
~~(Hereinafter 2019 Proposed Rule.)~~
~~30 2020 Final Rule.~~
~~31 2020 Final Rule, p. 42220.~~
~~32 Ibid.~~
~~Congressional Research Service~~
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~~Clean Water Act Section 401: Overview and Recent Developments~~

Policy Issues and the 2020 Final Rule
Certification Timeframes
Section 401 requires that certifying authorities act on a certification request “within a reasonable Section 401 requires that certifying authorities act on a certification request “within a reasonable
period of time (which shall not exceed one year) after receipt of such request.”period of time (which shall not exceed one year) after receipt of such request.”3337 If a certifying If a certifying
authority does not act on a certification request within that timeframe, the statute provides that the authority does not act on a certification request within that timeframe, the statute provides that the
certification requirements are waived, and the certification is not required for the federal licensing certification requirements are waived, and the certification is not required for the federal licensing
or permitting agency to issue the license or permit.or permitting agency to issue the license or permit.3438 The 2020 Final Rule The 2020 Final Rule ~~addresses~~addressed several several
policy issues related to certification timeframes that have prompted interest policy issues related to certification timeframes that have prompted interest ~~amongst~~among stakeholders stakeholders
in recent years. These include what constitutes a “reasonable period of time,” when the in recent years. These include what constitutes a “reasonable period of time,” when the
reasonable period of time begins (i.e., when the certification “clock” starts), and under what reasonable period of time begins (i.e., when the certification “clock” starts), and under what
circumstances, if any, the certification clock may restart. circumstances, if any, the certification clock may restart.
“Reasonable Period of Time”
While a full year is the “absolute maximum” amount of time in which certifying authorities must While a full year is the “absolute maximum” amount of time in which certifying authorities must
act on a certification request, Section 401 “does not preclude a finding of waiver prior to the act on a certification request, Section 401 “does not preclude a finding of waiver prior to the
passage of a full year.”passage of a full year.”3539 Federal permitting and licensing agencies retain the authority and Federal permitting and licensing agencies retain the authority and
discretion to establish certification timeframes (i.e., the “reasonable period of time” certifying discretion to establish certification timeframes (i.e., the “reasonable period of time” certifying
authorities have to act on a certification request before it is considered waived) as long as the authorities have to act on a certification request before it is considered waived) as long as the
~~timeframes are reasonable and do not exceed one year.36 Some federal agencies have done so. For~~
~~example, EPA’s 1971 Section 401 certification regulations provided for a period which “shall~~
~~generally be considered to be 6 months, but in any event shall not exceed 1 year”;37~~ 34 2020 Final Rule. 35 2020 Final Rule, p. 42220. 36 Ibid. 37 CWA §401(a)(1); 33 U.S.C. §1341(a)(1). 38 Ibid. 39 Hoopa Valley Tribe v. FERC, 913 F.3d 1099, 1104 (D.C. Cir. 2019), cert. denied sub nom. Cal. Trout v. Hoopa Valley Tribe, 140 S. Ct. 650 (2020). Congressional Research Service 6 Clean Water Act Section 401: Overview and Recent Developments timeframes do not exceed one year.40 Some federal agencies have done so. For example, EPA’s EPA’s
regulations specific to NPDES permits establish a 60-day period “unless the Regional regulations specific to NPDES permits establish a 60-day period “unless the Regional
Administrator finds that unusual circumstances require a longer timeAdministrator finds that unusual circumstances require a longer time~~”;38~~.”41 USACE regulations USACE regulations
establish a 60-day period “unless the district engineer determines a shorter or longer period is establish a 60-day period “unless the district engineer determines a shorter or longer period is
reasonable for the state to act.”reasonable for the state to act.”3942 FERC regulations provide a one-year period. FERC regulations provide a one-year period.4043
In December 2018, the Assistant Secretary of the Army for Civil Works issued a regulatory policy In December 2018, the Assistant Secretary of the Army for Civil Works issued a regulatory policy
memorandum, which included a directive related to Section 401 certification timeframes.memorandum, which included a directive related to Section 401 certification timeframes.4144 In the In the
memorandum, the Assistant Secretary noted that although it has been standard practice in some memorandum, the Assistant Secretary noted that although it has been standard practice in some
USACE districts to give states an entire year to act on a Section 401 certification request, “such USACE districts to give states an entire year to act on a Section 401 certification request, “such
an approach is inconsistent” with existing USACE regulations. He emphasized that the default an approach is inconsistent” with existing USACE regulations. He emphasized that the default
time period will be 60 days, unless the district engineer determines a longer time period is time period will be 60 days, unless the district engineer determines a longer time period is

~~33 CWA §401(a)(1); 33 U.S.C. §1341(a)(1).~~
~~34 Ibid.~~
~~35 Hoopa Valley Tribe v. FERC, 913 F.3d 1099, 1104 (D.C. Cir. 2019), cert. denied sub nom. Cal. Trout v. Hoopa~~
~~Valley Tribe, 140 S. Ct. 650 (2020).~~
~~36 40 C.F.R. §121.16(b).~~
~~37 Ibid.~~
~~38 40 C.F.R. §124.53(c)(3).~~
~~39 33 C.F.R. §325.2(b)(1)(ii).~~
~~40 18 C.F.R. §§4.34(b)(5)(iii) and 5.23(b)(iii).~~
~~41 Department of the Army, Office of the Assistant Secretary, Civil Works, Memorandum for the Chief of Engineers,~~
~~USACE Regulatory Policy Directives Memorandum on Duration of Permits and Jurisdictional Determinations,~~
~~Timeframes for Clean Water Act Section 401 Water Quality Certifications, and Application of the 404(b)(1)~~
~~Guidelines, December 13, 2013.~~
~~Congressional Research Service~~
6

~~Clean Water Act Section 401: Overview and Recent Developments~~

required, as provided in USACE regulations. Further, he directed USACE to draft guidance required, as provided in USACE regulations. Further, he directed USACE to draft guidance
establishing criteria for determining the “reasonable period of time” states would be given to act establishing criteria for determining the “reasonable period of time” states would be given to act
on a certification request. According to the memorandum, the reasonableness of the timeframe on a certification request. According to the memorandum, the reasonableness of the timeframe
may be based on the type of proposed activity or complexity of the site, but not on state may be based on the type of proposed activity or complexity of the site, but not on state
workload, resource issues, or lack of sufficient information. USACE issued the guidance in workload, resource issues, or lack of sufficient information. USACE issued the guidance in
August 2019.August 2019.4245
Many states have expressed opposition to any efforts to restrict certification timeframes beyond Many states have expressed opposition to any efforts to restrict certification timeframes beyond
what is established in the CWA.what is established in the CWA.4346 Some assert that such restrictions may prevent states from Some assert that such restrictions may prevent states from
complying with their own administrative requirements, preclude public input through state complying with their own administrative requirements, preclude public input through state
review, and “intrude on the states’ primary authority to protect their water quality.”review, and “intrude on the states’ primary authority to protect their water quality.”4447
Reasonable Period of Time in the 2020 Final Rule
The 2020 Final Rule The 2020 Final Rule ~~establishes~~established that the reasonable period of time for certifying authorities to act that the reasonable period of time for certifying authorities to act
on certification requests shall not exceed one year from receipt.on certification requests shall not exceed one year from receipt.4548 Although the CWA and 1971 Although the CWA and 1971
~~rule~~regulations have the same timeframe, EPA noted have the same timeframe, EPA noted in the 2020 Final Rule that some states that some states ~~have~~had acted beyond the one-year limit. acted beyond the one-year limit.46
49 While the 1971 regulations While the 1971 regulations ~~provide~~provided that federal licensing and permitting agencies that federal licensing and permitting agencies ~~are~~were authorized authorized
to determine the “reasonable period of time” certifying authorities to determine the “reasonable period of time” certifying authorities ~~have~~had to act, neither the CWA to act, neither the CWA
nor the 1971 regulations nor the 1971 regulations ~~specify~~specified how these agencies how these agencies ~~are~~were to determine the reasonable period of to determine the reasonable period of
time. The 2020 Final Rule time. The 2020 Final Rule ~~specifies criteria that federal licensing and permitting agencies should~~
~~consider in making this determination.47 Specifically, the 2020 Final Rule requires federal~~
~~agencies, in determining the reasonable period of time for a certification, to consider three~~
~~specific criteria: (1) the complexity of the project, (2) the nature of any potential discharge, and~~
~~(3) the potential need for additional study or evaluation of water quality effects from the~~
~~discharge.48~~
~~Start of the Certification “Clock”~~
~~One specific aspect regarding certification timeframes that has been debated among stakeholders~~
~~is when the certification timeframe begins (i.e., when the “clock” starts on the “reasonable period~~
~~of time” established by federal licensing and permitting agencies). Specifically, some have argued~~
~~that the clock starts when a certifying authority receives a certification request, while others have~~
~~argued that the clock should start when it receives a certification request accompanied by a~~
~~complete application (i.e., when the state decides the application has sufficient information to~~
~~make a decision). In 2018, the U.S. Court of Appeals for the Second Circuit held that Section 401~~

42specified criteria that 40 40 C.F.R. §121. 41 40 C.F.R. §124.53(c)(3). 42 33 C.F.R. §325.2(b)(1)(ii). 43 18 C.F.R. §§4.34(b)(5)(iii) and 5.23(b)(2). 44 Department of the Army, Office of the Assistant Secretary, Civil Works, Memorandum for the Chief of Engineers, USACE Regulatory Policy Directives Memorandum on Duration of Permits and Jurisdictional Determinations, Timeframes for Clean Water Act Section 401 Water Quality Certifications, and Application of the 404(b)(1) Guidelines, December 13, 2018. 45 USACE, USACE, Regulatory Guidance Letter 19-02: Timeframes for Clean Water Act Section 401 Water Quality
Certifications and Clarification of Waiver Responsibility, August 7, 2019, https://usace.contentdm.oclc.org/utils/getfile/, August 7, 2019, https://usace.contentdm.oclc.org/utils/getfile/
collection/p16021coll9/id/1547. collection/p16021coll9/id/1547.
4346 For example, see Letter from Letitia James, New York Attorney General, Xavier Becerra, California Attorney For example, see Letter from Letitia James, New York Attorney General, Xavier Becerra, California Attorney
General, and Philip J. Weiser, Colorado Attorney General, et al. to EPA, May 24, 2019, https://oag.ca.gov/system/files/General, and Philip J. Weiser, Colorado Attorney General, et al. to EPA, May 24, 2019, https://oag.ca.gov/system/files/
attachments/press-docs/2019-05-24finaljoint-comments-epa-401signed.pdf. attachments/press-docs/2019-05-24finaljoint-comments-epa-401signed.pdf.
4447 Ibid, p. 9. Ibid, p. 9.
4548 2020 Final Rule, p. 42285. 2020 Final Rule, p. 42285.
4649 2020 Final Rule, p. 42243 2020 Final Rule, p. 42243.
~~47 2020 Final Rule, p. 42286.~~
~~48 Ibid~~. .
Congressional Research Service Congressional Research Service
7 7

Clean Water Act Section 401: Overview and Recent Developments

~~creates a “bright-line rule” that the timeline for certification begins after receipt of~~federal licensing and permitting agencies should consider in making this determination.50 Specifically, the 2020 Final Rule required federal agencies, in determining the reasonable period of time for a certification, to consider three specific criteria: (1) the complexity of the project, (2) the nature of any potential discharge, and (3) the potential need for additional study or evaluation of water quality effects from the discharge.51 Start of the Certification “Clock” One specific aspect regarding certification timeframes that has been debated among stakeholders is when the certification timeframe begins (i.e., when the “clock” starts on the “reasonable period of time” established by federal licensing and permitting agencies). Specifically, some have argued that the clock starts when a certifying authority receives a certification a certification
~~request, not when the certifying authority determines that a request is complete.49~~
~~EPA’s 2010 Guidance provided that “generally, the state or tribe’s §401 certification review~~
~~timeframe begins once a request for certification has been made to the certifying agency,~~
~~accompanied by a complete application.”50 However,~~request, while others have argued that the clock should start when it receives a certification request accompanied by a complete application (i.e., when the state decides the application has sufficient information to make a decision). EPA’s 2010 Guidance provided that “generally, the state or tribe’s §401 certification review timeframe begins once a request for certification has been made to the certifying agency, accompanied by a complete application.”52 In 2018, the U.S. Court of Appeals for the Second Circuit held that Section 401 creates a “bright-line rule” that the timeline for certification begins after receipt of a certification request, not when the certifying authority determines that a request is complete.53 EPA’s 2019 Guidance stated that the 2010 EPA’s 2019 Guidance stated that the 2010
Guidance inappropriately indicated that the timeline for action begins upon receipt of a “complete Guidance inappropriately indicated that the timeline for action begins upon receipt of a “complete
application” and asserted that the CWA provides that the timeline for action begins upon receipt application” and asserted that the CWA provides that the timeline for action begins upon receipt
of a certification request.of a certification request.51
54 Start of the Certification Clock in the 2020 Final Rule
The 2020 Final Rule The 2020 Final Rule ~~clarifies~~clarified that the statutory timeline for certification review starts when the that the statutory timeline for certification review starts when the
certifying authority receives a certifying authority receives a certification request,, which which iswas newly defined in the rule. newly defined in the rule.5255 Per the Per the
rule, a rule, a certification request is a written, signed, and dated communication that contains nine is a written, signed, and dated communication that contains nine
components specified in the rule for individual licenses or permits (or seven components components specified in the rule for individual licenses or permits (or seven components
specified in the rule for general licenses or permits).specified in the rule for general licenses or permits).5356
Restarting the Certification “Clock”—Withdrawal and Resubmission
In cases where certifying authorities believe that more information or time is needed to review a In cases where certifying authorities believe that more information or time is needed to review a
license or permit application before making a certification decision, they have generally taken license or permit application before making a certification decision, they have generally taken
~~two approaches, according to EPA.54~~ 50 2020 Final Rule, p. 42286. 51 Ibid. 52 2010 Guidance, pp. 15-16. 53 N.Y. State Dep’t of Env’t Conservation v. FERC, 884 F.3d 450, 455-56 (2d Cir. 2018). EPA discussed this case in the 2020 Final Rule, pp. 42222-42223. The Second Circuit further held in 2021 that a certifying authority may not alter the beginning of the certification timeline by entering into an agreement or otherwise coordinating with a certification applicant to do so. N.Y. State Dep’t of Env’t Conservation v. FERC, 991 F.3d 439, 450 (2d Cir. 2021). 54 2019 Guidance, p. 3. 55 2020 Final Rule, pp. 42285-42286. 56 These components include, for example, information on the project proponent and point of contact, the applicable federal license or permit, and the location and nature of any discharge that may result from the proposed project and the location of receiving waters. See 2020 Final Rule, p. 42285. Congressional Research Service 8 Clean Water Act Section 401: Overview and Recent Developments two approaches, as described by EPA.57 Some states have denied Section 401 certifications “without Some states have denied Section 401 certifications “without
prejudice” when they decided that they did not have enough data or information for their analysis. prejudice” when they decided that they did not have enough data or information for their analysis.
In such cases, they encouraged applicants to resubmit the application. In other cases, states have In such cases, they encouraged applicants to resubmit the application. In other cases, states have
suggested that applicants withdraw and resubmit applications with the intention of restarting the suggested that applicants withdraw and resubmit applications with the intention of restarting the
certification clock. This approach aims to provide the applicant more time to submit additional certification clock. This approach aims to provide the applicant more time to submit additional
information and the state more time to review the information and make a certification decision. information and the state more time to review the information and make a certification decision.
Some observers assert that restarting the clock in this manner is preferable to denying Some observers assert that restarting the clock in this manner is preferable to denying
certification based on data and information gaps.certification based on data and information gaps.5558 Others assert that restarting the clock, Others assert that restarting the clock,
particularly when it is done multiple times, results in delays that are not consistent with particularly when it is done multiple times, results in delays that are not consistent with
congressional intent to limit the length of the certification process.congressional intent to limit the length of the certification process.5659
At least one court has been critical of the withdrawal and resubmission approach. In January At least one court has been critical of the withdrawal and resubmission approach. In January
2019, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) held in 2019, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) held in Hoopa
Valley Tribe v. FERC that withdrawing and resubmitting the same Section 401 request for the that withdrawing and resubmitting the same Section 401 request for the
purpose of circumventing the one-year statutory deadline does not restart the timeframe for the purpose of circumventing the one-year statutory deadline does not restart the timeframe for the
state’s review.state’s review.5760 In that case, the Hoopa Valley Tribe sought review of a FERC order regarding In that case, the Hoopa Valley Tribe sought review of a FERC order regarding

~~49 N.Y. State Dep’t of Envtl. Conservation v. FERC, 884 F.3d 450, 455-56 (2d Cir. 2018). EPA discusses this case in~~
~~the 2020 Final Rule, pp. 42222-42223.~~
~~50 2010 Guidance, pp. 15-16.~~
~~51 2019 Guidance, p. 3.~~
~~52 2020 Final Rule, pp. 42285-42286.~~
~~53 These components include, for example, information on the project proponent and point of contact, the applicable~~
~~federal license or permit, and the location and nature of any discharge that may result from the proposed project and the~~
~~location of receiving waters. See 2020 Final Rule, p. 42285.~~
~~54 2010 Guidance, p. 13.~~
~~55 2020 Final Rule, pp. 42261-42262.~~
~~56 2020 Final Rule, p. 42261.~~
~~57 Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019), cert. denied sub nom. Cal. Trout v. Hoopa Valley~~
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~~Clean Water Act Section 401: Overview and Recent Developments~~

~~PacifiCorp’s proposal to relicense some of the dams comprising the Klamath Hydroelectric~~
~~Project in California and Oregon, and to decommission others.58 Under the terms of a 2010~~
~~settlement agreement, Pacificorp, California, and Oregon agreed to defer Section 401’s one-year~~
~~statutory limit by withdrawing and resubmitting Pacificorp’s water quality certification~~
~~application each year.59 The Tribe argued that California and Oregon had waived their Section~~
~~401 certification authority, and that PacifiCorp had therefore failed to diligently prosecute its~~
~~licensing application.60 The D.C. Circuit held that Section 401 imposed a clear maximum of one~~
~~year to act on a request for certification, and that the text “cannot be reasonably interpreted to~~
~~mean that the period of review for one request affects that of any other request.”61 Otherwise, the~~
~~court cautioned, “the withdrawal-and-resubmission scheme could be used to indefinitely delay~~
~~federal licensing proceedings and undermine” federal agencies’ regulatory jurisdiction.62 Some~~
~~observers assert that the ruling may lead to an increase in certification denials in instances in~~
~~which states may consider the information insufficient for making a decision.63~~
~~Restarting the Certification Clock in the 2020 Final Rule~~
~~The 2020 Final Rule clarifies that once a certifying authority receives a certification request, the~~
~~period of time to act on a certification request does not pause or stop for any reason.64~~
~~Specifically, the certifying authority may not request that license or permit applicants withdraw~~
~~and resubmit their certification requests as a means to restart the certification clock.65~~
~~The 2020 Final Rule also establishes a pre-filing meeting process, which is intended to ensure~~
~~that the certifying authority receives early notification of projects and can discuss informational~~
~~needs with the project proponent before the statutory timeframe for review begins.66 Specifically,~~
~~project proponents must~~PacifiCorp’s proposal to relicense some of the dams comprising the Klamath Hydroelectric Project in California and Oregon, and to decommission others.61 Under the terms of a 2010 settlement agreement, PacifiCorp, California, and Oregon agreed to defer Section 401’s one-year statutory limit by withdrawing and resubmitting PacifiCorp’s water quality certification application each year.62 The Tribe argued that California and Oregon had waived their Section 401 certification authority, and that PacifiCorp had therefore failed to diligently prosecute its licensing application.63 The D.C. Circuit held that Section 401 imposed a clear maximum of one year to act on a request for certification, and that the text “cannot be reasonably interpreted to mean that the period of review for one request affects that of any other request.”64 Otherwise, the court cautioned, “the withdrawal-and-resubmission scheme could be used to indefinitely delay federal licensing proceedings and undermine” federal agencies’ regulatory jurisdiction.65 Some observers asserted that the ruling could lead to an increase in certification denials in instances in which states may consider the information insufficient for making a decision.66 By contrast, the U.S. Court of Appeals for the Fourth Circuit, in North Carolina Department of Environmental Quality v. FERC, distinguished Hoopa Valley as “a very narrow decision flowing from a fairly egregious set of facts,” and has expressed skepticism regarding FERC’s argument that a certifying authority must either grant or deny certification within one year of the 57 2010 Guidance, p. 13. 58 2020 Final Rule, pp. 42261-42262. 59 2020 Final Rule, p. 42261. 60 Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019), cert. denied sub nom. Cal. Trout v. Hoopa Valley Tribe, 140 S. Ct. 650 (2019). EPA discussed the Hoopa Valley Tribe case in the 2020 Final Rule, pp. 42210-42223. 61 Hoopa Valley Tribe, 913 F.3d at 1100. 62 Ibid. at 1101. 63 Ibid. at 1103. 64 Ibid. at 1104. 65 Ibid. 66 2020 Final Rule, p. 42261. In a pending case that could clarify Hoopa Valley, the D.C. Circuit has been asked to consider whether California waived its certification authority by denying certification where it could not conclusively determine that certification was warranted in light of ongoing environmental reviews. See Brief of Petitioners Turlock Irrigation and Modesto Irrigation District, Turlock Irrigation Dist. v. FERC, Nos. 21-1120, 21-1121 (D.C. Cir. Oct. 8, 2021). Congressional Research Service 9 Clean Water Act Section 401: Overview and Recent Developments certification request in order to avoid waiver.67 The Fourth Circuit explained that Section 401 specifically provides that certification is waived if a certifying authority fails or refuses to act on a request within a year, not if the certifying authority fails or refuses to grant or deny certification.68 The court thus suggested, but did not hold, that a certifying authority that “takes significant and meaningful action on a certification request within a year of its filing,” but does not grant or deny the request, would not waive certification.69 Restarting the Certification Clock in the 2020 Final Rule The 2020 Final Rule clarified that once a certifying authority receives a certification request, the period of time to act on a certification request would not pause or stop for any reason.70 Specifically, the certifying authority could not request that license or permit applicants withdraw and resubmit their certification requests as a means to restart the certification clock.71 The 2020 Final Rule also established a pre-filing meeting process, which was intended to ensure that the certifying authority received early notification of projects and could discuss informational needs with the project proponent before the statutory timeframe for review began.72 Specifically, project proponents were required to submit a request to the certifying authority for a pre-filing meeting at submit a request to the certifying authority for a pre-filing meeting at
least 30 days prior to submitting a certification request.least 30 days prior to submitting a certification request.6773 Per the rule, the certifying authority Per the rule, the certifying authority ~~has~~
had discretion as to whether to grant or respond to the meeting request.discretion as to whether to grant or respond to the meeting request.6874 In the preamble to the 2020 In the preamble to the 2020
Final Rule, EPA noted that early engagement, including through a pre-filing meeting, Final Rule, EPA noted that early engagement, including through a pre-filing meeting, ~~may~~could help help
improve the quality of information provided to the certifying authority and improve the quality of information provided to the certifying authority and ~~may~~could reduce the need reduce the need
to make additional information requests of the project proponent during the certification to make additional information requests of the project proponent during the certification
timeframe.timeframe.6975
The preamble to the 2020 Final Rule also The preamble to the 2020 Final Rule also ~~states~~stated that “if a project proponent withdraws a that “if a project proponent withdraws a
certification request because the project is no longer being planned or if certain elements of the certification request because the project is no longer being planned or if certain elements of the
proposed project materially change from what was originally proposed or from what is described proposed project materially change from what was originally proposed or from what is described

~~Tribe, 140 S. Ct. 650 (2019). EPA discusses the Hoopa Valley Tribe case in the 2020 Final Rule, pp. 42210-42223.~~
~~58 Hoopa Valley Tribe, 913 F.3d at 1100.~~
~~59 Ibid. at 1101.~~
~~60 Ibid. at 1103.~~
~~61 Ibid. at 1104.~~
~~62 Ibid.~~
~~63 2020 Final Rule, p. 42261.~~
~~64 Ibid.~~
~~65 2020 Final Rule, p. 42286.~~
~~66 2020 Final Rule, p. 42241.~~
~~67 2020 Final Rule, p. 42285.~~
~~68 Ibid.~~
~~69 2020 Final Rule, p. 42242.~~
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~~Clean Water Act Section 401: Overview and Recent Developments~~

or analyzed in additional information submitted by the project proponent, it is EPA’s or analyzed in additional information submitted by the project proponent, it is EPA’s
interpretation that the certifying authority no longer has an obligation to act on that request.”interpretation that the certifying authority no longer has an obligation to act on that request.”7076
However, the preamble also However, the preamble also ~~clarifies~~clarified that the agency “expects that voluntary withdrawal by the that the agency “expects that voluntary withdrawal by the
project proponent will be done sparingly and only in response to material modifications to the project proponent will be done sparingly and only in response to material modifications to the
project or if the project is no longer planned.”project or if the project is no longer planned.”7177 In such circumstances, if the project proponent In such circumstances, if the project proponent
~~wants~~wanted a certification in the future, they would have to submit a new certification request and a certification in the future, they would have to submit a new certification request and
would, at a minimum, have to wait 30 days before resubmitting a certification request due to the would, at a minimum, have to wait 30 days before resubmitting a certification request due to the
pre-filing meeting request requirement in the rule.pre-filing meeting request requirement in the rule.7278 67 3 F.4th 655, 669 (4th Cir. 2021). 68 Ibid. at 669-70. 69 Ibid. 70 2020 Final Rule, p. 42261. 71 2020 Final Rule, p. 42286. 72 2020 Final Rule, p. 42241. 73 2020 Final Rule, p. 42285. 74 Ibid. 75 2020 Final Rule, p. 42242. 76 2020 Final Rule, pp. 42246-42247. 77 Ibid. 78 Ibid. Congressional Research Service 10 Clean Water Act Section 401: Overview and Recent Developments
Scope of 401 Certifications
Congress has provided direction regarding the scope of what certifying authorities are to consider Congress has provided direction regarding the scope of what certifying authorities are to consider
in making a Section 401 certification decision. Specifically, Section 401(a)(1) authorizes in making a Section 401 certification decision. Specifically, Section 401(a)(1) authorizes
certifying authorities to certify that a discharge to navigable waters that may result from a certifying authorities to certify that a discharge to navigable waters that may result from a
proposed activity will comply with specific enumerated sections of the CWA, including proposed activity will comply with specific enumerated sections of the CWA, including ~~sections~~Sections
301, 302, 303, 306, and 307.301, 302, 303, 306, and 307.7379 Section 401(d) provides direction regarding the scope of what Section 401(d) provides direction regarding the scope of what
conditions certifying authorities may impose in granting certifications, and directs that such conditions certifying authorities may impose in granting certifications, and directs that such
certifications certifications
shall set forth any effluent limitations and other limitations, and monitoring requirements shall set forth any effluent limitations and other limitations, and monitoring requirements
necessary to assure that any applicant for a Federal license or permit will comply with any necessary to assure that any applicant for a Federal license or permit will comply with any
applicable effluent limitations and other limitations, under section 301 or 302 of this Act, applicable effluent limitations and other limitations, under section 301 or 302 of this Act,
standard of performance under section 306 of this Act, or prohibition, effluent standard, or standard of performance under section 306 of this Act, or prohibition, effluent standard, or
pretreatment standard under section 307 of this Act, and with any other appropriate pretreatment standard under section 307 of this Act, and with any other appropriate
requirement of State law set forth in such certification, and shall become a condition on requirement of State law set forth in such certification, and shall become a condition on
any Federal license or permit.any Federal license or permit.7480
Scope of Section 401 Review
Stakeholders have debated the scope of what certifying authorities should consider when Stakeholders have debated the scope of what certifying authorities should consider when
reviewing a request for certificationreviewing a request for certification~~, and in August 2018, the~~. The Senate Committee on Environment Senate Committee on Environment
and Public Works and Public Works held hearings in the 115th and 116th sessions of Congress~~held a hearing~~ that included debate over the scope of considerations during that included debate over the scope of considerations during
certification.certification.7581 Some groups have argued that Congress intended for the review to focus on water Some groups have argued that Congress intended for the review to focus on water
quality impacts and assert that, in recent years, some states have overstepped their authority by quality impacts and assert that, in recent years, some states have overstepped their authority by
also considering non-water-quality environmental impacts, such as greenhouse gas emissions.also considering non-water-quality environmental impacts, such as greenhouse gas emissions.76

~~70 2020 Final Rule, pp. 42246-42247.~~
~~71 Ibid.~~
~~72 Ibid.~~
7382 Other groups argue that Congress intended for certifying authorities to have a significant role in ensuring that the water quality in their states is protected, and assert that the denials that states have issued have been well-supported and necessary to protect state water quality.83 79 33 U.S.C. §1341(a)(1). CWA §§301, 302, and 306 pertain to effluent limitations and standards of performance for 33 U.S.C. §1341(a)(1). CWA §§301, 302, and 306 pertain to effluent limitations and standards of performance for
new and existing discharge sources, §303 pertains to water quality standards and implementation plans, and §307 new and existing discharge sources, §303 pertains to water quality standards and implementation plans, and §307
pertains to toxic pretreatment effluent standards. pertains to toxic pretreatment effluent standards.
7480 33 U.S.C. §1341(d). 33 U.S.C. §1341(d).
7581 U.S. Congress, Senate Committee on Environment and Public Works, U.S. Congress, Senate Committee on Environment and Public Works, Hearing to Examine Implementation of Clean
Water Act Section 401 and S.3303, the Water Quality Certification Improvement Act of 2018, 115th Cong., 2nd sess., , 115th Cong., 2nd sess.,
August 16, 2018, S.Hrg. 115-344. August 16, 2018, S.Hrg. 115-344.
U.S. Congress, Senate Committee on Environment and Public Works, Hearing on S. 1087, the Water Quality Certification Improvement Act of 2019, and Other Potential Reforms to Improve Implementation of Section 401 of the Clean Water Act: State Perspectives, 116th Cong., 2nd sess., November 19, 2019, S.Hrg. 116-145. 82 76 See, for example, Letter from Interstate Natural Gas Association of America to Andrew Wheeler, Administrator, See, for example, Letter from Interstate Natural Gas Association of America to Andrew Wheeler, Administrator,
EPA, May 24, 2019. See also Letter from Natural Gas Supply Association and Center for Liquefied Natural Gas to EPA, May 24, 2019. See also Letter from Natural Gas Supply Association and Center for Liquefied Natural Gas to
Andrew Wheeler, Administrator, EPA, May 24, 2019. See also Letter from Cross-Cutting Issues Group to Andrew Andrew Wheeler, Administrator, EPA, May 24, 2019. See also Letter from Cross-Cutting Issues Group to Andrew
Wheeler, Administrator, EPA, May 24, 2019. All three letters are available in EPA Docket ID: EPA-HQ-OW-2018-Wheeler, Administrator, EPA, May 24, 2019. All three letters are available in EPA Docket ID: EPA-HQ-OW-2018-
0855. 0855.
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~~Clean Water Act Section 401: Overview and Recent Developments~~

~~Other groups argue that Congress intended for certifying authorities to have a significant role in~~
~~ensuring that the water quality in their states is protected, and assert that the denials that states~~
~~have issued have been well-supported and necessary to protect state water quality.77~~83 For example, see Letter from Association of State Wetland Managers to Anna Wildeman, Deputy Assistant Administrator, EPA Office of Water, May 20, 2019. See also Letter from Western States Water Council to Andrew Wheeler, Administrator, EPA, May 21, 2019. See also Letter from State of Washington Department of Ecology to Andrew Wheeler, Administrator, EPA, May 24, 2019. All three letters are available in EPA Docket ID: EPA-HQ-OW-2018-0855. Congressional Research Service 11 Clean Water Act Section 401: Overview and Recent Developments
Some states have cited projected environmental impacts other than water quality impacts in Some states have cited projected environmental impacts other than water quality impacts in
denying certain Section 401 certification requests. In 2017, the Washington Department of denying certain Section 401 certification requests. In 2017, the Washington Department of
Ecology denied a permit application for a planned coal export terminal along the Columbia Ecology denied a permit application for a planned coal export terminal along the Columbia
River.River.7884 In addition to finding that the applicant did not provide “reasonable assurance” that the In addition to finding that the applicant did not provide “reasonable assurance” that the
project would meet applicable water quality standards, the state concluded that the construction project would meet applicable water quality standards, the state concluded that the construction
and operation of the terminal would result in significant and unavoidable adverse impacts to and operation of the terminal would result in significant and unavoidable adverse impacts to
social and community resources, cultural resources, tribal resources, rail transportation, rail social and community resources, cultural resources, tribal resources, rail transportation, rail
safety, vehicle transportation, vessel transportation, noise and vibration, and air quality.safety, vehicle transportation, vessel transportation, noise and vibration, and air quality.7985
Unrelated to the Section 401 certification application, a separate state agency also denied the Unrelated to the Section 401 certification application, a separate state agency also denied the
applicant’s request for approval of a sublease of state-owned aquatic lands on which the applicant applicant’s request for approval of a sublease of state-owned aquatic lands on which the applicant
proposed to construct a portion of the project.proposed to construct a portion of the project.8086 The permit applicant The permit applicant ~~has~~ challenged the denials in challenged the denials in
both federal and state court, alleging that Washington improperly denied the permit because of an both federal and state court, alleging that Washington improperly denied the permit because of an
anti-coal bias and concerns about greenhouse gas emissions, in violation of the Dormant anti-coal bias and concerns about greenhouse gas emissions, in violation of the Dormant
Commerce Clause and the foreign affairs doctrine.Commerce Clause and the foreign affairs doctrine. ~~The federal litigation was dismissed in part,~~
~~and all of the remaining claims are currently stayed to allow the state court litigation to proceed.81~~
~~Additionally, Montana and Wyoming are seeking review of Washington’s denial of the water~~
~~quality certification directly in the U.S. Supreme Court.82~~
~~The New York Department of Environmental Conservation (NYSDEC) has~~ 87 Additionally, Montana and Wyoming sought review of Washington’s denial of the water quality certification directly in the U.S. Supreme Court.88 The parties agreed to move for dismissal of the federal and state lawsuits after the permit applicant filed for bankruptcy and represented that it no longer had funds to continue operation of the terminal site.89 The Supreme Court also declined to hear Montana and Wyoming’s complaint.90 The New York State Department of Environmental Conservation (NYSDEC) also denied a series of also denied a series of
Section 401 water quality certification applications for the construction of a natural gas pipeline Section 401 water quality certification applications for the construction of a natural gas pipeline
in Raritan Bay.in Raritan Bay.8391 Most recently, the Department denied an application based on the Most recently, the Department denied an application based on the ~~project~~

~~77 For example, see Letter from Association of State Wetland Managers to Anna Wildeman, Deputy Assistant~~
~~Administrator, EPA Office of Water, May 20, 2019. See also Letter from Western States Water Council to Andrew~~
~~Wheeler, Administrator, EPA, May 21, 2019. See also Letter from State of Washington Department of Ecology to~~
~~Andrew Wheeler, Administrator, EPA, May 24, 2019. All three letters are available in EPA Docket ID: EPA-HQ-OW-~~
~~2018-0855.~~
78project proponent’s failure to demonstrate that the project would comply with applicable water quality standards.92 The denial letter also included a qualitative assessment of the greenhouse gas 84 Letter from Maia D. Bellon, Director, Washington Department of Ecology, to Kristin Gaines, Millennium Bulk Letter from Maia D. Bellon, Director, Washington Department of Ecology, to Kristin Gaines, Millennium Bulk
Terminals-Longview, LLC, September 26, 2017, https://ecology.wa.gov/DOE/files/83/8349469b-a94f-492b-acca-Terminals-Longview, LLC, September 26, 2017, https://ecology.wa.gov/DOE/files/83/8349469b-a94f-492b-acca-
d8277e1ad237.pdf. d8277e1ad237.pdf.
7985 Ibid. Ibid. See also Millennium Bulk Terminals – Longview Final SEPA Environmental Impact Statement S.6 (April 2017), S.6 (April 2017),
https://www.millenniumbulkeiswa.gov/assets/introduction5.17.pdf. https://www.millenniumbulkeiswa.gov/assets/introduction5.17.pdf.
8086 See Nw. Alloys, Inc. v. Wash. Dep’t of Nat. Res., 447 P.3d 620, 626-27 (Wash. Ct. App. 2019); Millennium Bulk See Nw. Alloys, Inc. v. Wash. Dep’t of Nat. Res., 447 P.3d 620, 626-27 (Wash. Ct. App. 2019); Millennium Bulk
Terminals-Longview, LLC v. Washington, No. 52215-2-II, 2020 WL 1651475 (Wash. Ct. App. Terminals-Longview, LLC v. Washington, No. 52215-2-II, 2020 WL 1651475 (Wash. Ct. App. ~~Mar.~~March 17, 2020). 17, 2020).
Cowlitz County, Washington State Department of Ecology, Cowlitz County, Washington State Department of Ecology, Millennium Bulk Terminals – Longview Final SEPA
Environmental Impact Statement (April 2017), https://www.millenniumbulkeiswa.gov/assets/introduction5.17.pdf. (April 2017), https://www.millenniumbulkeiswa.gov/assets/introduction5.17.pdf.
~~81 Lighthouse Res. Inc. v. Inslee, 429 F. Supp. 3d 736 (W.D. Wash. 2019); Order Staying Case,~~ ~~Lighthouse Res. Inc. v.~~
~~Inslee, No. 3:18-cv-05005-RJB, 2019 WL 1572605, at *1-2 (W.D. Wash. Apr. 11, 2019). The permit applicant has~~
~~appealed the stay order in the Ninth Circuit Court of Appeals. Lighthouse Res., Inc. v. Inslee, No. 19-35415 (9th Cir.~~
~~filed May 10, 2019).~~
~~82 State of Montana and State of Wyoming v. State of Washington, No. 22O152, Bill of Complaint ¶ 44 (U.S. filed Jan.~~
~~21, 2020). The Supreme Court has original and exclusive jurisdiction to adjudicate disputes between two or more~~
~~states. U.S. CONST. art. III, §2, cl. 2; 28 U.S.C. §1251(a).~~
8387 See Brief for the United States as Amicus Curiae, Montana v. Washington, No. 22O152, at 4-7 (U.S. May 25, 2021). 88 Montana v. Washington, No. 22O152, Bill of Complaint ¶ 44 (U.S. Jan. 21, 2020). The Supreme Court has original and exclusive jurisdiction to adjudicate disputes between two or more states. U.S. CONST. art. III, §2, cl. 2; 28 U.S.C. §1251(a). 89 See Order, Lighthouse Res., Inc. v. Inslee, No. 19-35415, Doc. No. 93 (9th Cir. Mar. 23, 2021); Agreed Order of Dismissal, Lighthouse Res. Inc. v. Inslee, No. 3:18-cv-05005-RJB, Doc. No. 352 (W.D. Wash. Apr. 27, 2021); Agreed Order of Dismissal, Millennium Bulk Terminals-Longview, LLC v. Wash. State Dep’t of Ecology, No. 18-2-994-08 (Wash. Super. Ct. May 10, 2021). 90 Montana v. Washington, motion for leave to file a bill of complaint petition denied, 141 S. Ct. 2848 (U.S. June 28, 2021) (mem.). 91 See Letter from Thomas S. Berkman, Deputy Commissioner and General Counsel, New York State Department of See Letter from Thomas S. Berkman, Deputy Commissioner and General Counsel, New York State Department of
Environmental Conservation, to Joseph Dean, Transcontinental Gas Pipe Line Company, LLC, April 20, 2018, Environmental Conservation, to Joseph Dean, Transcontinental Gas Pipe Line Company, LLC, April 20, 2018,
https://www.dec.ny.gov/docs/water_pdf/transcodenial42018.pdf. Letter from Daniel Whitehead, Director, Division of https://www.dec.ny.gov/docs/water_pdf/transcodenial42018.pdf. Letter from Daniel Whitehead, Director, Division of
Environmental Permits, to Joseph Dean, May 15, 2019, https://www.dec.ny.gov/docs/administration_pdf/nodtgp.pdf; Environmental Permits, to Joseph Dean, May 15, 2019, https://www.dec.ny.gov/docs/administration_pdf/nodtgp.pdf;
Letter from Daniel Whitehead to Joseph Dean, Transcontinental Gas Pipe Line Company, LLC, May 15, 2020, Letter from Daniel Whitehead to Joseph Dean, Transcontinental Gas Pipe Line Company, LLC, May 15, 2020,
https://www.dec.ny.gov/docs/permits_ej_operations_pdf/nesewqcdenial05152020.pdf. https://www.dec.ny.gov/docs/permits_ej_operations_pdf/nesewqcdenial05152020.pdf.
92 Letter from Daniel Whitehead to Joseph Dean, May 15, 2020, pp. 3-13, https://www.dec.ny.gov/docs/ Congressional Research Service Congressional Research Service
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~~proponent’s failure to demonstrate that the project would comply with applicable water quality~~
~~standards.84 The denial letter also included a qualitative assessment of the greenhouse gas~~
emissions and climate impacts associated with the project in light of the state’s newly enacted emissions and climate impacts associated with the project in light of the state’s newly enacted
Climate Leadership and Community Protection Act (Climate Act), which requires a 40% Climate Leadership and Community Protection Act (Climate Act), which requires a 40%
reduction in statewide greenhouse gas emissions.reduction in statewide greenhouse gas emissions.8593 The Department found that the project would The Department found that the project would
result in greenhouse gas emissions from the full lifecycle of natural gas that would be transported result in greenhouse gas emissions from the full lifecycle of natural gas that would be transported
through the pipeline; could delay the state’s transition away from natural gas and other fossil through the pipeline; could delay the state’s transition away from natural gas and other fossil
fuels; and would be inconsistent with the statewide greenhouse gas emission limits and other fuels; and would be inconsistent with the statewide greenhouse gas emission limits and other
requirements established in the Climate Act.requirements established in the Climate Act.8694 While the Department noted that the denial did not While the Department noted that the denial did not
rest solely on the determination that the project was “inconsistent with the energy and climate rest solely on the determination that the project was “inconsistent with the energy and climate
policies, laws, and goals” of the state, it noted that “the State should not sacrifice its water quality, policies, laws, and goals” of the state, it noted that “the State should not sacrifice its water quality,
sensitive habitats, and important biological resources for a project that would have adverse sensitive habitats, and important biological resources for a project that would have adverse
climate impacts and one that runs counter to the State’s policy to significantly reduce GHGs by climate impacts and one that runs counter to the State’s policy to significantly reduce GHGs by
transitioning away from the use of natural gas to produce electricity.”transitioning away from the use of natural gas to produce electricity.”8795 Unlike in Washington, the Unlike in Washington, the
project proponent has not filed a lawsuit challenging the Raritan Bay certification denials. project proponent has not filed a lawsuit challenging the Raritan Bay certification denials.
Scope of Section 401 Conditions
Stakeholders have also debated the scope of what certifying authorities may impose as conditions Stakeholders have also debated the scope of what certifying authorities may impose as conditions
when granting a certification. Some observers assert that conditions should be limited to ensuring when granting a certification. Some observers assert that conditions should be limited to ensuring
compliance with the enumerated sections listed in Section 401(d) or state requirements that are compliance with the enumerated sections listed in Section 401(d) or state requirements that are
water-quality specific. Other observers argue that the phrase “any other appropriate requirement water-quality specific. Other observers argue that the phrase “any other appropriate requirement
of State law” provides authority to consider conditions that are broader, as long as they relate to of State law” provides authority to consider conditions that are broader, as long as they relate to
water quality.water quality.8896
The Supreme Court weighed in on one aspect of the scope of Section 401 in 1994. In a 7-2 The Supreme Court weighed in on one aspect of the scope of Section 401 in 1994. In a 7-2
decision in decision in PUD No. 1 of Jefferson County v. Washington Department of Ecology, the Court , the Court
upheld a state condition that imposed a minimum stream flow requirement to protect a steelhead upheld a state condition that imposed a minimum stream flow requirement to protect a steelhead
and salmon fishery in a Section 401 certification for a hydroelectric project.and salmon fishery in a Section 401 certification for a hydroelectric project.8997 In rejecting the In rejecting the
petitioner’s claim that the state’s authority to impose conditions under Section 401 should be petitioner’s claim that the state’s authority to impose conditions under Section 401 should be
limited to addressing only “discharges” that may result from the proposed project, the Court held limited to addressing only “discharges” that may result from the proposed project, the Court held
that a “reasonable read” of Section 401 authorizes the state to place certification conditions on the that a “reasonable read” of Section 401 authorizes the state to place certification conditions on the
“activity as a whole once the threshold condition, the existence of a discharge, is satisfied.”“activity as a whole once the threshold condition, the existence of a discharge, is satisfied.”9098 The The
Court arrived at this conclusion by analyzing the different terms used in Section 401(a) and Court arrived at this conclusion by analyzing the different terms used in Section 401(a) and
401(d), noting that while Section 401(a) requires certifying authorities to certify that a 401(d), noting that while Section 401(a) requires certifying authorities to certify that a discharge
will comply with relevant provisions of the CWA, Section 401(d) provides that a certification will comply with relevant provisions of the CWA, Section 401(d) provides that a certification
may include conditions or limitations “to assure that may include conditions or limitations “to assure that any applicant” will comply with the CWA ” will comply with the CWA

~~84 Letter from Daniel Whitehead to Joseph Dean, May 15, 2020, pp. 3-13, https://www.dec.ny.gov/docs/~~
and appropriate state law requirements.99 Additionally, the Court noted that this was consistent with EPA’s implementing regulations in effect at the time, which interpreted Section 401 as permits_ej_operations_pdf/nesewqcdenial05152020.pdf#page=3. permits_ej_operations_pdf/nesewqcdenial05152020.pdf#page=3.
8593 Ibid. at 14. Ibid. at 14.
8694 Ibid. Ibid.
8795 Ibid. at 16. Ibid. at 16.
8896 2020 Final Rule, pp. 42254-42256. 2020 Final Rule, pp. 42254-42256.
8997 PUD No. 1 of Jefferson County v. Wash. Dep’t of Ecology, 511 U.S. 700 (1994). The parties in that case did not PUD No. 1 of Jefferson County v. Wash. Dep’t of Ecology, 511 U.S. 700 (1994). The parties in that case did not
dispute that state certification was required under Section 401. In a later case, the Supreme Court unanimously held that dispute that state certification was required under Section 401. In a later case, the Supreme Court unanimously held that
the flow of water through a dam constitutes a “discharge” for purposes of triggering Section 401. S.D.the flow of water through a dam constitutes a “discharge” for purposes of triggering Section 401. S.D. Warren Co. v. Warren Co. v.
Me. Bd. of Env’tl Prot., 547 U.S. 370 (2006). Me. Bd. of Env’tl Prot., 547 U.S. 370 (2006).
9098 PUD No. 1 of Jefferson County ~~at 711-12.~~
, 511 U.S. at 711-12. 99 Ibid. at 711. Congressional Research Service Congressional Research Service
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~~and appropriate state law requirements.91 Additionally, the Court noted that this was consistent~~
~~with EPA’s implementing regulations in effect at the time, which interpreted Section 401 as~~
requiring the certifying authority to find that “there is a reasonable assurance that the requiring the certifying authority to find that “there is a reasonable assurance that the activity will will
be conducted in a manner which will not violate applicable water quality standards.”be conducted in a manner which will not violate applicable water quality standards.”92100
The Court further cautioned, however, that certifying authorities do not have unlimited authority The Court further cautioned, however, that certifying authorities do not have unlimited authority
to place restrictions on an activity as a whole, but instead may ensure only that a project complies to place restrictions on an activity as a whole, but instead may ensure only that a project complies
with the enumerated provisions of the CWA and any other appropriate state law requirement.with the enumerated provisions of the CWA and any other appropriate state law requirement.93101
The Court did not reach the issue of “what additional state laws, if any, might be incorporated” by The Court did not reach the issue of “what additional state laws, if any, might be incorporated” by
the reference to “any other appropriate requirement of State law,” but held that, “at a minimum, the reference to “any other appropriate requirement of State law,” but held that, “at a minimum,
limitations pursuant to state water quality standards adopted pursuant to [CWA] § 303 are limitations pursuant to state water quality standards adopted pursuant to [CWA] § 303 are
‘appropriate’ requirements of state law.”‘appropriate’ requirements of state law.”94102 The Court ultimately concluded that a certifying The Court ultimately concluded that a certifying
authority may place minimum stream flow requirements in its certification to enforce a authority may place minimum stream flow requirements in its certification to enforce a
designated use contained in a state water quality standard, reasoning that “[i]n many cases, water designated use contained in a state water quality standard, reasoning that “[i]n many cases, water
quantity is closely related to water quality; a sufficient lowering of the water quantity in a body of quantity is closely related to water quality; a sufficient lowering of the water quantity in a body of
water could destroy all of its designated uses, be it for drinking water, recreation, navigation or, as water could destroy all of its designated uses, be it for drinking water, recreation, navigation or, as
here, as a fishery.”here, as a fishery.”95103
2010 EPA Guidance on the Scope of Review and Conditions
EPA’s rescinded 2010 Guidance provided that “an applicant must demonstrate that the proposed EPA’s rescinded 2010 Guidance provided that “an applicant must demonstrate that the proposed
activity and discharge will not violate or interfere with the attainment of any limitations or activity and discharge will not violate or interfere with the attainment of any limitations or
standards identified in §401(a) and (d).”standards identified in §401(a) and (d).”96104 Further, it specified that these CWA subsections Further, it specified that these CWA subsections
include the enumerated sections of the act and “any other appropriate requirement of State law set include the enumerated sections of the act and “any other appropriate requirement of State law set
forth in such certification.”forth in such certification.”97105 EPA’s 2010 Guidance also supported interpreting the scope of what EPA’s 2010 Guidance also supported interpreting the scope of what
states may impose as conditions in a manner that allowed consideration of concerns relating to states may impose as conditions in a manner that allowed consideration of concerns relating to
water quality. Specifically, the 2010 Guidance provided that “[u]nder CWA §401(d) the water water quality. Specifically, the 2010 Guidance provided that “[u]nder CWA §401(d) the water
quality concerns to consider, and the range of potential conditions available to address those quality concerns to consider, and the range of potential conditions available to address those
concerns, extend to any provision of state or tribal law relating to the aquatic resource.”concerns, extend to any provision of state or tribal law relating to the aquatic resource.”98106 It It
further provided that “considerations can be quite broad so long as they relate to water quality.”further provided that “considerations can be quite broad so long as they relate to water quality.”99107
Relevant considerations identified in the 2010 Guidance included state and tribal laws protecting Relevant considerations identified in the 2010 Guidance included state and tribal laws protecting
threatened and endangered species, “particularly where the species plays a role in maintaining threatened and endangered species, “particularly where the species plays a role in maintaining
water quality or if their presence is an aspect of a designated use”; state and tribal wildlife laws water quality or if their presence is an aspect of a designated use”; state and tribal wildlife laws
“addressing habitat characteristics necessary for species identified in a waterbody’s designated “addressing habitat characteristics necessary for species identified in a waterbody’s designated
use”; and state and tribal laws protecting the cultural or religious value of waters.use”; and state and tribal laws protecting the cultural or religious value of waters.~~100~~108
When EPA updated its guidance in 2019 to respond to E.O. 13868, the agency recommended that When EPA updated its guidance in 2019 to respond to E.O. 13868, the agency recommended that
the scope of a certification review and related decision “be limited to an evaluation of potential the scope of a certification review and related decision “be limited to an evaluation of potential

~~91 Ibid. at 711.~~
92water quality impacts.”109 Also, EPA more narrowly recommended that conditions “be limited to 100 Ibid. at 712 (quoting 40 C.F.R. §121.2(a)(3) (1993)). Ibid. at 712 (quoting 40 C.F.R. §121.2(a)(3) (1993)).
93101 Ibid. at 712. Ibid. at 712.
94102 Ibid. at 713. Ibid. at 713.
95103 Ibid. at 719. Ibid. at 719.
96104 2010 Guidance, p. 18. , p. 18.
97105 Ibid Ibid.
98106 2010 Guidance, p. 23. , p. 23.
99107 Ibid. Ibid.
~~100~~108 2010 Guidance, p. 21. , p. 21.
109 2019 Guidance, p. 4. Congressional Research Service Congressional Research Service
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~~water quality impacts.”101 Also, EPA more narrowly recommended that conditions “be limited to~~
ensuring compliance with the enumerated provisions of the CWA and other appropriate state or ensuring compliance with the enumerated provisions of the CWA and other appropriate state or
tribal water quality requirements.”tribal water quality requirements.”~~102~~110
Scope of Certifications in the 2020 Final Rule
CWA Section 401 requires that the certifying authority certify that “any such discharge will CWA Section 401 requires that the certifying authority certify that “any such discharge will
comply with the applicable provisions of [CWA] sections 301, 302, 303, 306, and 307.”comply with the applicable provisions of [CWA] sections 301, 302, 303, 306, and 307.”~~103~~111 The The
2020 Final Rule 2020 Final Rule ~~limits~~limited the scope of a Section 401 certification to assuring that a discharge from the scope of a Section 401 certification to assuring that a discharge from a a
federally licensed or permitted activity federally licensed or permitted activity ~~will~~would comply with “water quality requirements.” comply with “water quality requirements.”~~104~~112 The rule The rule
also newly also newly ~~defines~~defined the term the term water quality requirements in a manner that in a manner that ~~limits~~limited the scope of water the scope of water
quality impacts that states may consider in their certification review, as well as the scope of quality impacts that states may consider in their certification review, as well as the scope of
conditions the state may impose. Specifically, the rule conditions the state may impose. Specifically, the rule ~~defines~~defined “water quality requirements” as “water quality requirements” as
“applicable provisions of §§301, 302, 303, 306, and 307 of the Clean Water Act, and state or “applicable provisions of §§301, 302, 303, 306, and 307 of the Clean Water Act, and state or
tribal regulatory requirements for tribal regulatory requirements for point source discharges into into waters of the United States””
(emphasis added).(emphasis added).~~105~~113
Under 1971 regulations and practice, the scope of certification included assuring that the Under 1971 regulations and practice, the scope of certification included assuring that the
activity—which encompasses the project as a whole as well as the discharge—activity—which encompasses the project as a whole as well as the discharge—~~will~~would comply with comply with
water quality requirements, which was neither defined explicitly in Section 401 nor the water quality requirements, which was neither defined explicitly in Section 401 nor the
regulations.regulations.~~106~~114 In addition, as EPA In addition, as EPA ~~acknowledges~~acknowledged in the 2020 Final Rule’s preamble, the agency in the 2020 Final Rule’s preamble, the agency
“previously suggested that the scope of section 401 may extend to nonpoint source discharges to “previously suggested that the scope of section 401 may extend to nonpoint source discharges to
non-federal waters” (i.e., waters that are not waters of the United States) “once the requirement non-federal waters” (i.e., waters that are not waters of the United States) “once the requirement
for the section 401 certification is triggered.”for the section 401 certification is triggered.”~~107~~115
The Supreme Court addressed one aspect of what activities trigger Section 401 in 2006. In The Supreme Court addressed one aspect of what activities trigger Section 401 in 2006. In S.D.
Warren Co. v. Maine Board of Environmental Protection, the Court considered the meaning of the , the Court considered the meaning of the
term “discharge” as used in Section 401(a)(1), which establishes the scope of the certification term “discharge” as used in Section 401(a)(1), which establishes the scope of the certification
requirement as applying to any application for a federal license or permit to conduct “any activity requirement as applying to any application for a federal license or permit to conduct “any activity
... which may result in any discharge into the navigable waters.”... which may result in any discharge into the navigable waters.”~~108~~116 Ruling that the flow of water Ruling that the flow of water
through a dam constitutes a “discharge” sufficient to trigger Section 401, the Court unanimously through a dam constitutes a “discharge” sufficient to trigger Section 401, the Court unanimously
held that the term means a “flowing or issuing out,” and is broader than “discharge of a pollutant” held that the term means a “flowing or issuing out,” and is broader than “discharge of a pollutant”
or “discharge of pollutants.”or “discharge of pollutants.”~~109~~117 The Court did not discuss, however, whether a discharge must be The Court did not discuss, however, whether a discharge must be
from a point source to trigger Section 401, or whether a discharge from a dam is a point source from a point source to trigger Section 401, or whether a discharge from a dam is a point source
discharge more specifically.discharge more specifically. ~~That question is likely to be the subject of future litigation in light of~~
~~the 2020 Final Rule’s limitations on the scope of Section 401.~~

~~101 2019 Guidance, p. 4.~~
~~102 Ibid.~~
~~103 33 U.S.C. §1341.~~
~~104 2020 Final Rule, p. 42285.~~
~~105~~ The 2020 Final Rule limited the application of Section 401 to point source discharges into waters of the United States.118 This change meant that any consideration of water quality impacts from the project as a whole (other than the point source discharge itself) was excluded from the scope 110 Ibid. 111 33 U.S.C. §1341. 112 2020 Final Rule, p. 42285. 113 2020 Final Rule, p. 42285. EPA recently narrowed the definition of “waters of the United States” in a separate 2020 Final Rule, p. 42285. EPA recently narrowed the definition of “waters of the United States” in a separate
rulemaking. See USACE and EPA, “The Navigable Waters Protection Rule: Definition of ‘Waters of the United rulemaking. See USACE and EPA, “The Navigable Waters Protection Rule: Definition of ‘Waters of the United
States,’” 85States,’” 85 Federal Register 22250, April 21, 2020. 22250, April 21, 2020.
~~106~~114 EPA Office of Water, EPA Office of Water, Clean Water Act Section 401 Certification Rule Public Webinar, June 17, 2020, , June 17, 2020,
https://www.epa.gov/cwa-401/public-webinar-slides-clean-water-act-section-401-certification-rule. https://www.epa.gov/cwa-401/public-webinar-slides-clean-water-act-section-401-certification-rule.
~~107~~115 2020 Final Rule, pp. 42234-42235. 2020 Final Rule, pp. 42234-42235.
~~108~~116 547 U.S. 370 (2006). 547 U.S. 370 (2006).
~~109~~117 Ibid. at 375-76 Ibid. at 375-76. 118 2020 Final Rule, p. 42234. .
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~~The 2020 Final Rule limits the application of Section 401 to point source discharges into waters~~
~~of the United States.110 This change means that any consideration of water quality impacts from~~
~~the project as a whole (other than the point source discharge itself) is excluded from the scope of~~
of the certifying authority’s review and consideration of conditions. For example, the certifying the certifying authority’s review and consideration of conditions. For example, the certifying
authority authority iswas no longer able to address water quality-related impacts from the project that no longer able to address water quality-related impacts from the project that ~~are~~were
tangential to the discharge. Stakeholders tangential to the discharge. Stakeholders ~~assert~~asserted that such water quality impacts could include that such water quality impacts could include
increased water withdrawals, groundwater pollution, increased erosion and sedimentation, increased water withdrawals, groundwater pollution, increased erosion and sedimentation,
increases in impervious surfaces (resulting in reduced stormwater infiltration), disconnected increases in impervious surfaces (resulting in reduced stormwater infiltration), disconnected
ecosystems, and harm to endangered species.ecosystems, and harm to endangered species.~~111~~119
In addition, the changes in the 2020 Final Rule In addition, the changes in the 2020 Final Rule ~~mean~~meant that the scope of the certifying authority’s that the scope of the certifying authority’s
review and consideration of conditions review and consideration of conditions ~~cannot~~could not include impacts to nonfederal waters. Some include impacts to nonfederal waters. Some
stakeholders stakeholders ~~have~~ expressed particular concern about this change in light of the final rule EPA expressed particular concern about this change in light of the final rule EPA
and USACE published on April 21, 2020, which narrowed the scope of waters that are defined as and USACE published on April 21, 2020, which narrowed the scope of waters that are defined as
“waters of the United States” (WOTUS) under the CWA.“waters of the United States” (WOTUS) under the CWA.~~112~~
120 However, in June 2021, EPA issued a notice of its intention to revise the 2020 Final Rule.121 Additionally, on October 21, 2021, a federal district court vacated the 2020 Final Rule.122 The changes in the 2020 Final Rule also The changes in the 2020 Final Rule also ~~narrow~~narrowed the scope of review and conditions to focus on the scope of review and conditions to focus on
water quality requirements, specifically excluding consideration of other non-water-quality water quality requirements, specifically excluding consideration of other non-water-quality
impacts. In the preamble to the 2020 Final Rule, EPA stated that the agency impacts. In the preamble to the 2020 Final Rule, EPA stated that the agency iswas “aware of “aware of
circumstances in which some States have denied certifications on grounds that are unrelated to circumstances in which some States have denied certifications on grounds that are unrelated to
water quality requirements and that are beyond the scope of CWA section 401.”water quality requirements and that are beyond the scope of CWA section 401.”~~113~~123 EPA then EPA then
referenced, as an example, the certification denial letter from the state of New York to the referenced, as an example, the certification denial letter from the state of New York to the
Millennium Pipeline Company, whichMillennium Pipeline Company, which~~, as described above,~~ considered among other things considered among other things
FERC’s failure to consider or quantify the effects of downstream greenhouse gas emissions in its FERC’s failure to consider or quantify the effects of downstream greenhouse gas emissions in its
environmental review of the project.environmental review of the project.~~114~~124 The preamble also The preamble also ~~states~~stated that the agency is aware that that the agency is aware that
some certifications have included conditions that may be unrelated to water quality, including some certifications have included conditions that may be unrelated to water quality, including
requirements for recreational trails, public access for recreation, or one-time and recurring requirements for recreational trails, public access for recreation, or one-time and recurring
payments to state agencies for improvements unrelated to the proposed project.payments to state agencies for improvements unrelated to the proposed project.~~115~~125 EPA EPA
emphasized that the 2020 Final Rule emphasized that the 2020 Final Rule ~~clarifies~~clarified that the scope of the certification review and the that the scope of the certification review and the
scope of conditions that scope of conditions that ~~are~~ were appropriate for inclusion in a certification appropriate for inclusion in a certification ~~are~~were limited to ensuring that limited to ensuring that
the discharge from a federally licensed or permitted activity the discharge from a federally licensed or permitted activity ~~will~~would comply with water quality comply with water quality
requirements, as newly requirements, as newly defined in the rule. 119 2020 Final Rule, p. 42252. 120~~defined in the rule.~~
~~Other Selected Changes in the 2020 Final Rule~~
~~The 2020 Final Rule includes a number of changes from the 1971 regulations in addition to those~~
~~addressing certification timeframes and the scope of certification. Some of these changes~~
~~formalize current practice or clarify timelines around specific requirements and practice. Others~~

~~110 2020 Final Rule, p. 42234.~~
~~111 2020 Final Rule, p. 42252.~~
~~112~~ USACE and EPA, “The Navigable Waters Protection Rule: Definition of ‘Waters of the United States,’” 85 USACE and EPA, “The Navigable Waters Protection Rule: Definition of ‘Waters of the United States,’” 85 Federal
Register 22250, April 21, 2020. For example, the Navigable Waters Protection Rule narrows the definitions of certain 22250, April 21, 2020. For example, the Navigable Waters Protection Rule narrows the definitions of certain
categories of WOTUS, including the definition of tributaries and adjacent wetlands. Ephemeral tributaries (i.e., flow in categories of WOTUS, including the definition of tributaries and adjacent wetlands. Ephemeral tributaries (i.e., flow in
response to precipitation events) were sometimes considered WOTUS under prior regulations, but are excluded from response to precipitation events) were sometimes considered WOTUS under prior regulations, but are excluded from
the Navigable Waters Protection Rule’s definition of tributaries. Similarly, although adjacent wetlands were considered the Navigable Waters Protection Rule’s definition of tributaries. Similarly, although adjacent wetlands were considered
WOTUS under prior regulations, the Navigable Waters Protection Rule limits the definition to include only those WOTUS under prior regulations, the Navigable Waters Protection Rule limits the definition to include only those
wetlands that abut or otherwise have a direct surface connection to other jurisdictional waters. wetlands that abut or otherwise have a direct surface connection to other jurisdictional waters.
~~113 2020 Final Rule, p. 42256.~~
~~114 Ibid.~~
~~115 2020 Final Rule, p. 42257.~~
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~~Clean Water Act Section 401: Overview and Recent Developments~~

~~represent~~121 EPA, “Notice of Intention To Reconsider and Revise the Clean Water Act Section 401 Certification Rule,” 86 Federal Register 29541, June 2, 2021. See also EPA, “EPA Takes Action to Bolster State and Tribal Authority to Protect Water Resources,” press release, May 27, 2021, at https://www.epa.gov/newsreleases/epa-takes-action-bolster-state-and-tribal-authority-protect-water-resources-0. 122 Order, In re Clean Water Act Rulemaking, No. 3:20-cv-04636, Doc. No. 173 (N.D. Cal. Oct. 21, 2021). 123 2020 Final Rule, p. 42256. 124 Ibid. 125 2020 Final Rule, p. 42257. Congressional Research Service 16 Clean Water Act Section 401: Overview and Recent Developments Other Selected Changes in the 2020 Final Rule The 2020 Final Rule included a number of changes from the 1971 regulations in addition to those addressing certification timeframes and the scope of certification. Some of these changes formalized current practice or clarified timelines around specific requirements and practice. Others represented more substantive changes from the 1971 regulations and practice, including a new more substantive changes from the 1971 regulations and practice, including a new
federal review process for denials and conditions and a new interpretation of enforcement roles. federal review process for denials and conditions and a new interpretation of enforcement roles.
Federal Review Process for Denials and Conditions
The 2020 Final Rule The 2020 Final Rule ~~addresses~~addressed the role of federal licensing and permitting agencies in the the role of federal licensing and permitting agencies in the
certification process, including those agencies’ authority to review certification decisions. Courts certification process, including those agencies’ authority to review certification decisions. Courts
have held that federal licensing and permitting agencies may not change or reject conditions have held that federal licensing and permitting agencies may not change or reject conditions
imposed by certifying authorities, including by imposing more stringent alternative conditions.imposed by certifying authorities, including by imposing more stringent alternative conditions.~~116~~126
Courts have held, however, that the licensing or permitting agency must determine whether the Courts have held, however, that the licensing or permitting agency must determine whether the
certifying authority has met the facial requirements of Section 401 before issuing a license or certifying authority has met the facial requirements of Section 401 before issuing a license or
permit.permit.~~117~~127
The 2020 Final Rule The 2020 Final Rule ~~requires~~required a certifying authority to provide written reasons for the denial or a certifying authority to provide written reasons for the denial or
conditions, along with specified supporting information to the federal licensing or permitting conditions, along with specified supporting information to the federal licensing or permitting
agency.agency.~~118~~128 The 2020 Final Rule also newly The 2020 Final Rule also newly ~~requires~~required the federal permitting or licensing agency to the federal permitting or licensing agency to
determine whether the state denial or certification conditions determine whether the state denial or certification conditions ~~comply~~complied with the procedural with the procedural
requirements of Section 401 and the 2020 Final Rule. If the federal permitting or licensing agency requirements of Section 401 and the 2020 Final Rule. If the federal permitting or licensing agency
~~determines~~determined that a certification denial that a certification denial ~~does~~did not include three elements as required in the rule, the not include three elements as required in the rule, the
federal agency federal agency iswas required to determine that required to determine that the certifying authority “fail[ed] or refuse[d] to act” and certifying authority “fail[ed] or refuse[d] to act” and
therefore waived certification.therefore waived certification.~~119~~129 Similarly, federal licensing and permitting agencies Similarly, federal licensing and permitting agencies ~~are~~ were required required
to determine whether certification conditions to determine whether certification conditions ~~include~~included the two minimum elements required by the the two minimum elements required by the
2020 Final Rule.2020 Final Rule.~~120~~130 If the federal agency If the federal agency ~~determines~~determined that certification conditions that certification conditions dodid not include not include
the two elements, they similarly the two elements, they similarly ~~are~~were required to determine that the certifying authority “fail[ed] or required to determine that the certifying authority “fail[ed] or
refuse[d] to act” and the deficient certification condition refuse[d] to act” and the deficient certification condition ~~will~~would be waived. The preamble to the be waived. The preamble to the
2020 Final Rule 2020 Final Rule ~~clarifies~~clarified that the federal agency review “is procedural in nature and does not that the federal agency review “is procedural in nature and does not
extend to substantive evaluations” of certifications, conditions, and denials.extend to substantive evaluations” of certifications, conditions, and denials.~~121~~131

~~116~~126 Sierra Club v. U.S. Army Corps of Eng’rs, 909 F.3d 635, 648 (4th Cir. 2018); City of Tacoma v. FERC, 460 F.3d 53, Sierra Club v. U.S. Army Corps of Eng’rs, 909 F.3d 635, 648 (4th Cir. 2018); City of Tacoma v. FERC, 460 F.3d 53,
67 (D.C. Cir. 2006); Am. Rivers, Inc. v. FERC, 129 F.3d 99, 107 (2d Cir. 1997); U.S. Dep’t of Interior v. FERC, 952 67 (D.C. Cir. 2006); Am. Rivers, Inc. v. FERC, 129 F.3d 99, 107 (2d Cir. 1997); U.S. Dep’t of Interior v. FERC, 952
F.2d 538, 548 (D.C. Cir. 1992); Roosevelt Campobello Inter. Park v. EPA, 684 F.2d 1041, 1056 (1st Cir. 1982). F.2d 538, 548 (D.C. Cir. 1992); Roosevelt Campobello Inter. Park v. EPA, 684 F.2d 1041, 1056 (1st Cir. 1982).
~~117~~127 City of Tacoma, 460 F.3d at 67-68; , 460 F.3d at 67-68; Am. Rivers, Inc., 129 F.3d at 110-11; Keating v. FERC, 927 F.2d 616, 622-23, , 129 F.3d at 110-11; Keating v. FERC, 927 F.2d 616, 622-23,
625 (D.C. Cir. 1997). 625 (D.C. Cir. 1997).
~~118~~128 2020 Final Rule, p. 42286. 2020 Final Rule, p. 42286.
~~119~~129 2020 Final Rule, p. 42286. These three elements for denial of an individual license or permit are “(i) the specific 2020 Final Rule, p. 42286. These three elements for denial of an individual license or permit are “(i) the specific
water quality requirements with which the discharge will not comply; (ii) a statement explaining why the discharge will water quality requirements with which the discharge will not comply; (ii) a statement explaining why the discharge will
not comply with the identified water quality requirements; and (iii) if the denial is due to insufficient information, the not comply with the identified water quality requirements; and (iii) if the denial is due to insufficient information, the
denial must describe the specific water quality data or information, if any, that would be needed to assure that the denial must describe the specific water quality data or information, if any, that would be needed to assure that the
discharge from the proposed project will comply with water quality requirements.” The rule lists similar elements for discharge from the proposed project will comply with water quality requirements.” The rule lists similar elements for
denial of a general license or permit. denial of a general license or permit.
~~120~~130 2020 Final Rule, p. 42286. These two elements for conditions on an individual license or permit are “(i) a statement 2020 Final Rule, p. 42286. These two elements for conditions on an individual license or permit are “(i) a statement
explaining why the condition is necessary to assure that the discharge from the proposed project with comply with explaining why the condition is necessary to assure that the discharge from the proposed project with comply with
water quality requirements; and (ii) a citation to federal, state, or tribal law that authorizes the condition.” The rule lists water quality requirements; and (ii) a citation to federal, state, or tribal law that authorizes the condition.” The rule lists
similar elements for conditions on a general license or permit. similar elements for conditions on a general license or permit.
~~121~~131 2020 Final Rule, p. 42267. Note that this aspect of the 2020 Final Rule differs from the 2019 Proposed Rule, which 2020 Final Rule, p. 42267. Note that this aspect of the 2020 Final Rule differs from the 2019 Proposed Rule, which
~~would have required federal licensing and permitting agencies to review and determine whether certifications,~~
~~conditions, and denials were within the scope of certification. The final rule does not include the additional substantive~~
~~federal review requirement.~~
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Enforcement
The 2020 Final Rule also newly The 2020 Final Rule also newly ~~provides~~provided that the federal licensing or permitting agency (rather that the federal licensing or permitting agency (rather
than the certifying authority) than the certifying authority) ~~shall~~would be responsible for enforcing certification conditions be responsible for enforcing certification conditions
incorporated into a federal license or permit.incorporated into a federal license or permit.~~122~~132 The preamble to the 2020 Final Rule The preamble to the 2020 Final Rule ~~states~~stated that that
“the CWA does not provide independent authority for certifying authorities to enforce the “the CWA does not provide independent authority for certifying authorities to enforce the
conditions that are included in a certification under federal law.”conditions that are included in a certification under federal law.”~~123~~133 Accordingly, it Accordingly, it ~~states~~stated that EPA that EPA
“is interpreting the CWA to clarify that this enforcement role is reserved to the federal agency “is interpreting the CWA to clarify that this enforcement role is reserved to the federal agency
issuing the federal license or permit.”issuing the federal license or permit.”~~124~~134 This differs from 1971 regulations and practice, which This differs from 1971 regulations and practice, which
did not expressly clarify enforcement roles. According to an EPA webinar and the 2010 Guidance, did not expressly clarify enforcement roles. According to an EPA webinar and the 2010 Guidance,
depending on the state, both the certifying authorities and the federal agencies played a role in depending on the state, both the certifying authorities and the federal agencies played a role in
enforcement under the 1971 regulations and in practice.enforcement under the 1971 regulations and in practice.~~125~~135 EPA expressly declined to opine in the EPA expressly declined to opine in the
2020 Final Rule on whether the CWA authorizes citizen suits to enforce certification conditions 2020 Final Rule on whether the CWA authorizes citizen suits to enforce certification conditions
pursuant to Section 505 of the statute.pursuant to Section 505 of the statute.~~126~~136
In commenting on the proposed rule, some commenters agreed with this enforcement In commenting on the proposed rule, some commenters agreed with this enforcement
approach.approach.~~127~~137 Others asserted that states and tribes should be allowed to independently enforce Others asserted that states and tribes should be allowed to independently enforce
their certification conditions.their certification conditions.~~128~~138 Some argued that the restriction on enforcement authority would Some argued that the restriction on enforcement authority would
run afoul of Section 510 of the CWA, which reserves state and local governments’ authority to run afoul of Section 510 of the CWA, which reserves state and local governments’ authority to
enforce “any standard or limitation respecting discharges of pollutants” and “any requirement enforce “any standard or limitation respecting discharges of pollutants” and “any requirement
respecting control or abatement of pollution” that is equally or more stringent than required under respecting control or abatement of pollution” that is equally or more stringent than required under
the CWA, unless expressly provided for in the statute.the CWA, unless expressly provided for in the statute.~~129~~139 EPA explained in the 2020 Final Rule EPA explained in the 2020 Final Rule
preamble that states may enforce certification conditions under state law (where state authority is preamble that states may enforce certification conditions under state law (where state authority is
not preempted by federal law), and asserted that the rule therefore not preempted by federal law), and asserted that the rule therefore ~~does~~did not implicate Section not implicate Section
510.510.~~130~~140 Some also argued that states and tribes, rather than the federal agency, have the technical Some also argued that states and tribes, rather than the federal agency, have the technical
knowledge and capacity to conduct inspections and enforce certification conditions; and some knowledge and capacity to conduct inspections and enforce certification conditions; and some
federal agencies noted that it could be challenging to enforce certain certification conditions.federal agencies noted that it could be challenging to enforce certain certification conditions.~~131~~141
EPA responded that federal agencies remained free to consult with certifying authorities, and that EPA responded that federal agencies remained free to consult with certifying authorities, and that
the rule’s limitations on the scope of certification and the new requirements for certifications with the rule’s limitations on the scope of certification and the new requirements for certifications with
conditions would provide sufficient clarity to enable federal agencies to effectively enforce conditions would provide sufficient clarity to enable federal agencies to effectively enforce
conditions.conditions.~~132~~142

~~122 2020 Final Rule, p. 42275.~~
~~123 Ibid.~~
~~124 Ibid.~~
~~125~~would have required federal licensing and permitting agencies to review and determine whether certifications, conditions, and denials were within the scope of certification. The final rule does not include the additional substantive federal review requirement. 132 2020 Final Rule, p. 42275. 133 Ibid. 134 Ibid. 135 EPA Office of Water, EPA Office of Water, Clean Water Act Section 401 Certification Rule Public Webinar, June 17, 2020, , June 17, 2020,
https://www.epa.gov/cwa-401/public-webinar-slides-clean-water-act-section-401-certification-rule. See also 2010 https://www.epa.gov/cwa-401/public-webinar-slides-clean-water-act-section-401-certification-rule. See also 2010
Guidance at 32-33. Guidance at 32-33.
~~126~~136 2020 Final Rule, p. 42277. 2020 Final Rule, p. 42277.
~~127~~137 2020 Final Rule, p. 42275. 2020 Final Rule, p. 42275.
~~128~~138 Ibid. Ibid.
~~129~~139 2020 Final Rule, pp. 42275-42276. See also 33 U.S.C. §1370. 2020 Final Rule, pp. 42275-42276. See also 33 U.S.C. §1370.
~~130~~140 2020 Final Rule, p. 42276. 2020 Final Rule, p. 42276.
~~131~~141 Ibid. Ibid.
~~132~~142 Ibid. Ibid.
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Clean Water Act Section 401: Overview and Recent Developments

Stakeholder Views and Legal Challenges
Both the 2019 Proposed Rule and the 2020 Final Rule Both the 2019 Proposed Rule and the 2020 Final Rule ~~have~~ garnered interest from stakeholder garnered interest from stakeholder
groups. EPA received more than 125,000 comments on the proposed rule “from a broad spectrum groups. EPA received more than 125,000 comments on the proposed rule “from a broad spectrum
of interested parties.”of interested parties.”~~133~~143 Various groups, including those representing energy interests, generally Various groups, including those representing energy interests, generally
supported the 2019 Proposed Rule. Some argued, for example, that states have misused their supported the 2019 Proposed Rule. Some argued, for example, that states have misused their
Section 401 authorities, and that the proposed changes would improve predictability and clarity, Section 401 authorities, and that the proposed changes would improve predictability and clarity,
thereby improving applicants’ ability to obtain permits for energy infrastructure projects.thereby improving applicants’ ability to obtain permits for energy infrastructure projects.~~134~~144 Many Many
groups emphasized the importance of ensuring that Section 401 certification is focused on water groups emphasized the importance of ensuring that Section 401 certification is focused on water
quality impacts, rather than non-water-quality impacts such as climate change or air emissions.quality impacts, rather than non-water-quality impacts such as climate change or air emissions.~~135~~145
Other groups, including many states and state associations, opposed the proposed changes. They Other groups, including many states and state associations, opposed the proposed changes. They
argued that the proposed changes raised federalism concerns, would narrow the scope of state argued that the proposed changes raised federalism concerns, would narrow the scope of state
authority, and would substantially affect the ability of states to manage and protect their water authority, and would substantially affect the ability of states to manage and protect their water
resources.resources.~~136~~146 Central to their concerns was the implication of the rule for the CWA’s cooperative Central to their concerns was the implication of the rule for the CWA’s cooperative
federalism framework.federalism framework.~~137~~147 Specifically, they argued that CWA Section 101(b) establishes Specifically, they argued that CWA Section 101(b) establishes
Congress’s clear intent in establishing a system of cooperative federalism that protects “the Congress’s clear intent in establishing a system of cooperative federalism that protects “the
primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and to primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and to
plan the development and use of land and water resources.”plan the development and use of land and water resources.”~~138~~148 Many states view Section 401 Many states view Section 401
authority as a critical tool that has helped ensure that activities associated with federally licensed authority as a critical tool that has helped ensure that activities associated with federally licensed
and permitted discharges will not impair water quality in their respective state. They viewed the and permitted discharges will not impair water quality in their respective state. They viewed the
proposed changes as an infringement upon the authority designated to them by Congress under proposed changes as an infringement upon the authority designated to them by Congress under
the CWA.the CWA.~~139~~
~~Pending lawsuits filed by various~~149 Various states, tribes, and environmental groups states, tribes, and environmental groups ~~challenge the rule. A~~
~~group of eight states and several energy industry associations have intervened in support of EPA~~
~~in some of the lawsuits.~~
~~First, on July 13, 2020, a coalition of four environmental groups led by American Rivers filed a~~
~~complaint~~filed five lawsuits challenging the 2020 Final Rule. Three suits—filed by a coalition of environmental groups, a group of 20 states and the District of Columbia, and a group of Indian tribes and environmental organizations—were all consolidated in the U.S. District Court for the Northern District of California. in the U.S. District Court for the Northern District of California.~~140 The plaintiffs~~150 Other

~~133~~143 2020 Final Rule, p. 42213. 2020 Final Rule, p. 42213.
~~134~~144 See, for example, Letter from Center for Liquefied Natural Gas to Andrew Wheeler, Administrator, EPA, October See, for example, Letter from Center for Liquefied Natural Gas to Andrew Wheeler, Administrator, EPA, October
21, 2019. See also Letter from Natural Gas Council to Andrew Wheeler, Administrator, EPA, October 21, 2019. See 21, 2019. See also Letter from Natural Gas Council to Andrew Wheeler, Administrator, EPA, October 21, 2019. See
also Letter from National Mining Association to Andrew Wheeler, Administrator, EPA, October 21, 2019. All three also Letter from National Mining Association to Andrew Wheeler, Administrator, EPA, October 21, 2019. All three
letters are available in EPA Docket ID: EPA-HQ-OW-2019-040. letters are available in EPA Docket ID: EPA-HQ-OW-2019-040.
~~135~~145 2020 Final Rule, p. 42255. 2020 Final Rule, p. 42255.
~~136~~146 See, for example, Letter from Western Governors’ Association, National Conference of State Legislatures, and See, for example, Letter from Western Governors’ Association, National Conference of State Legislatures, and
National Association of Counties, et al. to Andrew Wheeler, Administrator, EPA, October 16, 2019. See also Letter National Association of Counties, et al. to Andrew Wheeler, Administrator, EPA, October 16, 2019. See also Letter
from Maryland Department of the Environment to Andrew Wheeler, Administrator, EPA, October 21, 2019. See also from Maryland Department of the Environment to Andrew Wheeler, Administrator, EPA, October 21, 2019. See also
Letter from Louisiana Department of Environmental Quality to Andrew Wheeler, Administrator, EPA, October 19, Letter from Louisiana Department of Environmental Quality to Andrew Wheeler, Administrator, EPA, October 19,
2019. All three letters are available in EPA Docket ID: EPA-HQ-OW-2019-040. 2019. All three letters are available in EPA Docket ID: EPA-HQ-OW-2019-040.
~~137~~147 Under the CWA’s cooperative federalism framework, the federal government and the states jointly administer and Under the CWA’s cooperative federalism framework, the federal government and the states jointly administer and
enforce the statute. For example, CWA §303(c) requires states, territories, and authorized tribes to adopt water quality enforce the statute. For example, CWA §303(c) requires states, territories, and authorized tribes to adopt water quality
standards for waters of the United States, subject to EPA approval (33 U.S.C. §1313(c)). CWA §304(a) requires EPA standards for waters of the United States, subject to EPA approval (33 U.S.C. §1313(c)). CWA §304(a) requires EPA
to develop and publish criteria that serve as recommendations to states for use in developing their water quality to develop and publish criteria that serve as recommendations to states for use in developing their water quality
standards. States are authorized to establish water quality standards that are more stringent than EPA criteria. standards. States are authorized to establish water quality standards that are more stringent than EPA criteria.
Additionally, states may adopt standards for additional surface waters if their own state laws allow them to do so. EPA Additionally, states may adopt standards for additional surface waters if their own state laws allow them to do so. EPA
and states use these water quality standards, as well as technology based standards, when establishing permit limits for and states use these water quality standards, as well as technology based standards, when establishing permit limits for
point source dischargers under §402. point source dischargers under §402.
~~138~~148 33 U.S.C. §1251(b). 33 U.S.C. §1251(b).
~~139~~149 2020 Final Rule, p. 42226. 2020 Final Rule, p. 42226.
~~140~~150 Complaint, Am. Rivers v. Wheeler, No. 3:20-cv-04636 Complaint, Am. Rivers v. Wheeler, No. 3:20-cv-04636, Doc. No. 1 (N.D. Cal. (N.D. Cal. ~~filed~~ July 13, 2020)July 13, 2020).
~~Congressional Research Service~~
18; Complaint, California v. Wheeler, No. 4:20-cv-04869, Doc. No. 1 (N.D. Cal. July 21, 2020); Complaint, Suquamish Tribe v. Wheeler, No. 3:20-cv-06137, Doc. No. 1 (N.D. Cal. August 31, 2020); Case Management Scheduling Order, In re Clean Water Act Congressional Research Service 19

Clean Water Act Section 401: Overview and Recent Developments

~~subsequently amended their complaint to identify projects in areas where they work that require~~
~~federal permits and which are potentially affected by the 2020 Final Rule.141 The plaintiffs allege~~
~~that the 2020 Final Rule violates the CWA and~~ environmental groups also filed suits in the U.S. District Courts for the Eastern District of Pennsylvania and the District of South Carolina.151 A group of eight states and several energy industry associations intervened in the lawsuits in support of EPA.152 In general, the plaintiffs alleged that the 2020 Final Rule violated the Administrative Procedure Administrative Procedure Act (APA), the CWA, and the Tenth Amendment. Among other things, they argued that the rule unlawfully restricted powers preserved for certifying authorities under the CWA, including by restricting the scope and process for their review of certification applications, and by excluding certifying authorities from the enforcement of certification conditions.153 The plaintiffs also argued that the rule impermissibly expanded federal authority, including by authorizing federal ~~Act (APA) by~~
~~unlawfully restricting powers Congress preserved for states and authorized tribes under the~~
~~CWA.142 They challenge the 2020 Final Rule’s limitations regarding the certification process and~~
~~timeline, Section 401’s applicability to activities that may result in point source discharges, the~~
~~scope of and permissible conditions on certification, and the consideration of or reliance on state~~
~~law in making certifications.143 They also argue that the 2020 Final Rule unlawfully authorizes~~
~~federal permitting and licensing agencies to review and overrule certification decisions.144~~
~~Two additional lawsuits are pending before the same judge in the U.S. District Court for the~~
~~Northern District of California. On July 21, 2020, a group of 20 states and the District of~~
~~Columbia filed a separate challenge to the 2020 Final Rule.145 Asserting that the 2020 Final Rule~~
~~“upends fifty years of cooperative federalism,” the states argue that the rule’s restriction of the~~
~~scope of their consideration unlawfully limits their review and decisionmaking authority under~~
~~the CWA.146 The states also argue that the 2020 Final Rule’s restriction of consideration to point~~
~~source discharges into waters of the United States deprives them of the opportunity to consider~~
~~how a project as a whole will affect state water quality; and that the rule interferes with states’~~
~~ability to apply their own administrative procedures to the review of certification applications.147~~
~~On August 31, 2020, a group of Indian tribes and environmental organizations challenged the~~
~~2020 Final Rule in the U.S. District Court for the Northern District of California.148 Among other~~
~~things, the plaintiffs allege that the rule impermissibly expands federal authority and limits~~
~~certifying authorities’ role in reviewing projects and denying, or imposing conditions on~~
~~certification.149 The plaintiffs also allege that EPA failed to satisfy its tribal consultation~~
~~obligations during the development of the 2020 Final Rule as required by an executive order and~~
~~EPA policy document governing consultation and coordination with tribal governments.150~~
~~Two lawsuits are also pending in other courts. On July 13, 2020, the Delaware Riverkeeper~~
~~Network (DRN) filed a complaint in the U.S. District Court for the Eastern District of~~
~~Pennsylvania, alleging violations of the APA, the CWA, and the Tenth Amendment.151 Among~~
~~other things, DRN argues that the 2020 Final Rule improperly limits the role of states in the~~
~~Section 401 certification process and narrows the scope of certification; exceeds the scope of~~
~~EPA’s regulatory authority under Section 401; fails to consider its effect on water quality;~~
~~wrongly excludes certifying authorities from the enforcement of certification conditions; and~~

~~141 First Amended Complaint, Am. Rivers v. Wheeler, No. 3:20-cv-04636, ¶ 12~~permitting and licensing agencies to review and overrule certification decisions.154 With respect to the 2020 Final Rule’s limitations on the scope of certification review, some plaintiffs alleged that the rule deprived certifying authorities of the opportunity to consider the effects of a project as a whole on state water quality, and that the narrowed scope of certification review contradicted both the text of the CWA and Supreme Court precedent.155 Finally, the Suquamish Tribe argued that EPA failed to satisfy its tribal consultation obligations during the development of the 2020 Final Rule as required by an executive order and EPA policy document governing consultation and coordination with tribal governments.156 None of the three courts issued opinions on the merits of the plaintiffs’ claims. As discussed in further detail below, all three courts have remanded the 2020 Final Rule to EPA, and one court vacated the rule.157 Although that decision has been appealed, the 2020 Final Rule currently is not being applied anywhere in the country. Rulemaking, No. 3:20-cv-04636, Doc. No. 36 (N.D. Cal. October 23, 2020). 151 Complaint, Del. Riverkeeper Network v. EPA, No. 2:20-cv-03412, Doc. No. 1 (E.D. Pa. July 13, 2020); Complaint, S.C. Coastal Conservation League v. Wheeler, No. 2:20-cv-03062, Doc. No. 1 (D.S.C. August 26, 2020). 152 Order Granting Unopposed Intervention, In re Clean Water Act Rulemaking, 3:20-cv-04636, Doc. No. 39 (N.D. Cal. Nov. 23, 2020); Orders Granting Motions to Intervene, Am. Rivers v. Wheeler, No. 3:20-cv-04636, Doc. Nos. 62, 78 (N.D. Cal. Sept. 17 2020, Oct. 9, 2020); Orders Granting Motions to Intervene, California v. Wheeler, No. 3:20-cv-04869, Doc. Nos. 101, 113 (N.D. Cal. Sept. 17, 2020, Oct. 9, 2020); Order re Motion to Dismiss and Motions to Intervene, Del. Riverkeeper Network v. EPA, No. 2:20-cv-03412, Doc. No. 47 (E.D. Pa. Dec. 18, 2020); Orders on Motions to Intervene, S.C. Coastal Conservation League v. Wheeler, No. 2:20-cv-03062, Doc. Nos. 24, 34, 49 (D.S.C. Oct. 7, 2020, Oct. 30, 2020, Jan. 13, 2021). 153 E.g., First Amended Complaint, Am. Rivers v. Wheeler, No. 3:20-cv-04636, Doc. No. 75, ¶¶ 90-95 (N.D. Cal. Sept. (N.D. Cal. Sept. 29, 2020); Complaint, California v. Wheeler, No. 4:20-cv-04869, Doc. No. 1, ¶¶ 1.1, 1.8-1.11 (N.D. Cal. July 21, 2020); Complaint, Del. Riverkeeper Network v. EPA, No. 2:20-cv-03412, Doc. No. 1, ¶¶ 10, 182-242, 260-63 (E.D. Pa. July 13, 2020); Complaint, S.C. Coastal Conservation League v. Wheeler, No. 2:20-cv-03062, Doc. No. 1, ¶¶ 10, 14 (D.S.C. Aug. 26, 2020). 154 E.g., First Amended Complaint, Am. Rivers v. Wheeler, ¶¶ 126-32; Complaint, Suquamish Tribe~~29, 2020), ECF No.~~
~~75.~~
~~142 Ibid. ¶¶ 90-95.~~
~~143 Ibid. ¶¶ 96-125.~~
~~144 Ibid. ¶¶ 126-32.~~
~~145 Complaint, California v. Wheeler, No. 4:20-cv-04869 (N.D. Cal. filed July 21, 2020).~~
~~146 Complaint, California v. Wheeler, No. 4:20-cv-04869 ¶¶ 1.1, 1.8-1.9 (N.D. Cal. July 21, 2020), ECF No. 1.~~
~~147 Ibid. ¶¶ 1.10-1.11.~~
~~148 Complaint, Suquamish Tribe, et al.~~ v. Wheeler, No. 3:20-cv-06137 v. Wheeler, No. 3:20-cv-06137, Doc. No. 1, ¶ 4 (N.D. Cal. (N.D. Cal. ~~Aug.~~August 31, 2020); Complaint, Del. Riverkeeper Network v. EPA, ¶¶ 243-59; Complaint, S.C. Coastal Conservation League v. Wheeler, ¶¶ 197-200. 155 E.g., Complaint, California v. Wheeler, ¶¶ 1.10-11; Complaint, S.C. Coastal Conservation League v. Wheeler, ¶¶ 1, 165. 156 Complaint, Suquamish Tribe v. Wheeler, ~~31, 2020).~~
~~149 Ibid. ¶ 4.~~
~~150 Ibid.~~ ¶ 9. See also Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” 65 ¶ 9. See also Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” 65
Federal Register 67249, November 9, 2000; EPA, 67249, November 9, 2000; EPA, EPA Policy on Consultation and Coordination with Indian Tribes, ,
~~May 4, 2011.~~
~~151 Del. Riverkeeper Network v. EPA, No. 2:20-cv-03412 (E.D. Pa. filed July 13, 2020).~~
~~Congressional Research Service~~
19May 4, 2011. 157 Order, S.C. Coastal Conservation League v. Wheeler, No. 2:20-cv-03062, Doc. No. 69 (D.S.C. Aug. 2, 2021); Order, Del. Riverkeeper Network v. EPA, No. 2:20-cv-03412, Doc. No. 75 (Aug. 6, 2021); Order re Motion for Remand Without Vacatur, In re Clean Water Act Rulemaking, No. 3:20-cv-04636, Doc. No. 173 (N.D. Cal. Oct. 21, 2021). Congressional Research Service 20

Clean Water Act Section 401: Overview and Recent Developments

~~converts the requirement that the Administrator determine whether a discharge may affect water~~
~~quality in neighboring jurisdictions to a discretionary action.~~
~~Finally, on August 26, 2020, a group of environmental organizations led by the South Carolina~~
~~Coastal Conservation League filed a complaint in the U.S. District Court for the District of South~~
~~Carolina.152 Their complaint alleges that the 2020 Final Rule contradicts both the CWA text and~~
~~the Supreme Court’s ruling that certifying authorities may consider impacts of the proposed~~
~~project as a whole, not just from a specific discharge.153 They also allege that the rule’s narrowed~~
~~scope of certification conditions to point source discharges into waters of the United States is~~
~~contrary to the CWA, which contains no such limitations.154 They further allege that the rule~~
~~unlawfully restricts public participation, restricts certification procedures, and provides a federal~~
~~agency veto of certification decisions.155~~
~~The courts have not yet issued any opinions on the merits of the plaintiffs’ claims. The Northern~~
~~District of California has consolidated the three suits filed in that court.156 EPA moved to dismiss~~
~~DRN’s lawsuit on September 14, 2020, arguing that the plaintiffs in that case lack standing and~~
~~that their claims are not ripe because EPA has not yet applied the 2020 Final Rule to a specific~~
~~project.157~~
~~Congressional Interest~~
~~Congress has shown interest in Section 401 implementation in the 116th Congress. On November~~
~~19, 2019, the Senate Committee on Environment and Public Works held a legislative hearing on~~
~~potential reforms to Section 401, including legislation introduced by the Committee Chairman (S.~~
~~1087).158 S. 1087 and H.R. 2205, identical bills titled the “Water Quality Certification~~
~~Improvement Act of 2019,” would amend Section 401. The proposed changes would narrow the~~
~~scope of water quality impacts that certifying authorities may consider in their certification~~
~~review, narrow the scope of conditions certifying authorities may impose, establish a time limit~~
~~for certifying authorities to request additional information, and require certifying authorities to~~
~~provide a written explanation of their certification decision. The Committee also held a hearing~~
~~on the same issue and similar legislation (identical bills—S. 3303 and H.R. 6889) in the 115th~~
~~Congress.159~~

~~152 Complaint, S.C. Coastal Conservation League, et al. v. Wheeler, No. 2:20-cv-03062 (D.S.C. filed Aug. 26, 2020).~~
~~153 Ibid. ¶ 1.~~
~~154 Ibid. ¶ 165.~~
~~155 Ibid. ¶¶ 183-84, 190-92, 197-200.~~
~~156 Case Management Scheduling Order, In re Clean Water Act Rulemaking, No. 3:20-cv-04636 and consolidated cases~~
~~(N.D. Cal. Oct. 23, 2020), ECF No. 36.~~
~~157 Defendants’ Motion to Dismiss, Del. Riverkeeper Network v. EPA, No. 2:20-cv-03412, at 13-17 (E.D. Pa. Sept. 14,~~
~~2020), ECF No. 16.~~
~~158 U.S. Congress, Senate Committee on Environment and Public Works, Hearing on S. 1087~~~~, the Water Quality~~
~~Certification Improvement Act of 2019, and Other Potential Reforms to Improve Implementation of Section 401 of the~~
~~Clean Water Act: State Perspectives, 116th Cong., 2nd sess., November 19, 2019, S.Hrg. 116-145.~~
~~159 U.S. Congress, Senate Committee on Environment and Public Works,~~ ~~Hearing to Examine Implementation of Clean~~
~~Water Act Section 401 and S.3303, the Water Quality Certification Improvement Act of 2018, 115th Cong., 2nd sess.,~~
~~August 16, 2018, S.Hrg. 115-344.~~
~~Congressional Research Service~~
20

~~Clean Water Act Section 401: Overview and Recent Developments~~

~~Water Quality Certification Improvement Act of 2019~~
~~S. 1087 and H.R. 2205, if enacted, would limit what certifying authorities may consider in their~~
~~certification review to whether the discharge into navigable waters by the applicant as a result of~~
~~the federally licensed or permitted activity would comply with the applicable provisions of CWA~~
~~Sections 301, 302, 303, 306, and 307. S. 1087 and H.R. 2205 would also limit the scope of~~
~~conditions certifying authorities may impose to limitations and monitoring requirements~~
~~necessary to ensure that a discharge into navigable waters complies with the applicable provisions~~
~~of CWA Sections 301, 302, 303, 306, and 307.~~
~~In addition, S. 1087 and H.R. 2205 would establish a 90-day limit, after receipt of a request for~~
~~certification, during which the certifying authority may identify in writing any additional~~
~~information necessary to make a certification decision. S. 1087 and H.R. 2205 would also require~~
~~the certifying authority to provide a written explanation of the certification decision.~~
~~Senate Hearing on Section 401 Reforms~~
~~During the November 19, 2019, hearing on Section 401 reform, Members debated whether~~
~~proposed Section 401 reforms—whether through legislation such as S. 1087 or the 2019 Proposed~~
~~Rule—were~~ Actions Under the Biden Administration President Biden’s actions immediately upon taking office affected the reconsideration of the 2020 Final Rule. On January 20, 2021, President Biden issued an executive order (E.O. 13990) which directed the heads of all agencies to “immediately review all existing regulations, orders, guidance documents, policies, and any other similar agency actions (agency actions) promulgated, issued, or adopted” during the Trump Administration “that are or may be inconsistent with, or present obstacles to, the policy set forth” in the order.158 The executive order further stated “for any such actions identified by the agencies, the heads of agencies shall, as appropriate and consistent with applicable law, consider suspending, revising, or rescinding the agency actions.”159 In conjunction with the executive order, the Biden Administration included the 2020 Final Rule in a fact sheet listing more than 100 agency actions that heads of agencies were to review in accordance with the executive order. 160 In June 2021, EPA issued a notice of intention to revise the 2020 Final Rule.161 The agency stated in a related press release that, after determining that the rule “erodes state and Tribal authority,” it “intends to reconsider and revise the 2020 CWA Section 401 Certification Rule to restore the balance of state, Tribal, and federal authorities while retaining elements that support efficient and effective implementation of Section 401.”162 EPA hosted virtual listening sessions with stakeholders in June 2021 to gain input on potential approaches for revisions and also solicited written pre-proposal input.163 In EPA’s Fall 2021 Unified Regulatory Agenda, the agency estimated that it would publish a notice of proposed rulemaking by March 2022.164 In light of this announcement, EPA asked courts to remand the 2020 Final Rule to the agency while it developed a new regulation.165 EPA sought remand without vacatur, which would have left the 2020 Final Rule in effect pending the development of a new rule. EPA argued that remand was appropriate in light of the concerns identified with the 2020 Final Rule, and would allow the agency to carry out its stated intent of reconsidering and revising the rule without expending 158 Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” 86 Federal Register 7037-7043, January 20, 2021. 159 Ibid. 160 The White House, “Fact Sheet: List of Agency Actions for Review,” press release, January 20, 2021, https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/. 161 EPA, “Notice of Intention To Reconsider and Revise the Clean Water Act Section 401 Certification Rule,” 86 Federal Register 29541, June 2, 2021. 162 EPA, “EPA Takes Action to Bolster State and Tribal Authority to Protect Water Resources,” press release, May 27, 2021, https://www.epa.gov/newsreleases/epa-takes-action-bolster-state-and-tribal-authority-protect-water-resources-0. 163 EPA, “Upcoming Outreach and Engagement on CWA Section 401 Certification,” https://www.epa.gov/cwa-401/upcoming-outreach-and-engagement-cwa-section-401-certification, accessed November 17, 2021. 164 Office of Information and Regulatory Affairs, Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, EPA/Office of Water, Clean Water Act Section 401: Water Quality Certification, RIN No. 2040-AG12. 165 Motion for Remand Without Vacatur, In re Clean Water Act Rulemaking, No. 3:20-cv-04636, Doc. No. 143 (N.D. Cal. July 1, 2021); Motion for Remand Without Vacatur, Del. Riverkeeper Network v. EPA, No. 2:20-cv-03412, Doc. No. 67 (E.D. Pa. July 1, 2021); Motion for Remand Without Vacatur, S.C. Coastal Conservation League v. EPA, No. 2:20-cv-03062, Doc. No. 67 (D.S.C. July 1, 2021). Congressional Research Service 21 Clean Water Act Section 401: Overview and Recent Developments resources on potentially unnecessary litigation.166 Two courts granted EPA’s motion and remanded the rule without vacatur.167 On October 21, 2021, the U.S. District Court for the Northern District of California granted EPA’s motion for remand in the three consolidated cases in that court, but also vacated the rule.168 While the court did not issue a ruling on the merits of the 2020 Final Rule, it identified problematic aspects of the rule, including “substantial concerns” that EPA itself had raised in its request for remand.169 In particular, the court noted that the rule’s revised scope of certification was “antithetical” to the Supreme Court’s decision in PUD No. 1, and found that EPA had not “adequately explain[ed] in the preamble how it could so radically depart from what the Supreme Court dubbed the most reasonable interpretation of the statute.”170 According to the court, these and other factors created “significant doubt ... that EPA correctly promulgated the rule.”171 Additionally, the court found that vacatur would not be unduly disruptive because the rule had not yet engendered institutional reliance, and that remand without vacatur would likely result in “significant environmental harms.”172 After the California district court remanded and vacated the 2020 Final Rule, EPA updated its website to indicate that the vacatur applied nationwide and required a temporary return to EPA’s 1971 regulations until EPA finalizes a new certification rule.173 Accordingly, the 1971 regulations are now in effect nationwide. EPA also published a “questions and answers” document in December 2021 to clarify the applicable requirements and procedures following the vacatur.174 Among other clarifications, EPA indicated that the agency generally does not expect to revisit certifications issued while the 2020 Final Rule was effective, and that pending certification requests should be processed in accordance with the 1971 regulations.175 States and industry groups that intervened in the litigation in support of the 2020 Final Rule have appealed the remand and vacatur order, and those appeals are now pending in the U.S. Court of Appeals for the Ninth Circuit.176 The district court denied a request to stay the remand and vacatur order pending appeal, finding that a stay “would substantially injure plaintiffs and does not align with the public interest.”177 A Ninth Circuit order staying the district court’s decision 166 E.g., Motion for Remand Without Vacatur Memorandum of Points and Authorities, In re Clean Water Act Rulemaking, at 7-9. 167 Order, S.C. Coastal Conservation League v. Wheeler, No. 2:20-cv-03062, Doc. No. 69 (D.S.C. Aug. 2, 2021); Order, Del. Riverkeeper Network v. EPA, No. 2:20-cv-03412, Doc. No. 75 (Aug. 6, 2021). 168 Order re Motion for Remand Without Vacatur, In re Clean Water Act Rulemaking, No. 3:20-cv-04636, Doc. No. 173 (N.D. Cal. Oct. 21, 2021). 169 Ibid. at 12-14. 170 Ibid. at 12-13. 171 Ibid. at 14-15. 172 Ibid. at 16. 173 EPA, “2020 Clean Water Act Section 401 Certification Rule,” https://www.epa.gov/cwa-401/2020-clean-water-act-section-401-certification-rule-0. 174 EPA, Clean Water Act Section 401 Water Quality Certification Questions and Answers on the 2020 Rule Vacatur, December 17, 2021, https://www.epa.gov/system/files/documents/2021-12/questions-and-answers-document-on-the-2020-cwa-section-401-certification-rule-vacatur-12-17-21-508.pdf. 175 Ibid. 176 Am. Rivers v. Am. Petroleum Inst., No. 21-16958 (9th Cir. appeal filed Nov. 22, 2021); Am. Rivers v. Nat’l Hydropower Ass’n, No. 21-16960 (9th Cir. appeal filed Nov. 22, 2021); Am. Rivers v. Arkansas, No. 21-16961 (9th Cir. appeal filed Nov. 22, 2021). 177 Order Denying Motion for Stay Pending Appeal, In re Clean Water Act Rulemaking, No. 3:20-cv-04636, Doc. No. 191, at 1 (N.D. Cal. Dec. 7, 2021). The intervenor-appellants have also asked the Ninth Circuit to stay the district Congressional Research Service 22 Clean Water Act Section 401: Overview and Recent Developments pending appeal, or reversing the vacatur in its entirety, could result in the 2020 Final Rule going back into effect until the Biden Administration completes the regulatory process for revising the rule. Congressional Interest Many Members have shown interest in Section 401 implementation in recent sessions of Congress. On November 19, 2019, the Senate Committee on Environment and Public Works held a legislative hearing on potential reforms to Section 401, including legislation introduced by the committee chairman (S. 1087).178 In the 116th Congress, S. 1087 and H.R. 2205, identical bills titled the Water Quality Certification Improvement Act of 2019, would have amended Section 401. These bills were reintroduced in the 117th Congress (S. 1761, H.R. 3422) as the Water Quality Certification Improvement Act of 2021. The proposed changes would narrow the scope of water quality impacts that certifying authorities may consider in their certification review, narrow the scope of conditions certifying authorities may impose, establish a time limit for certifying authorities to request additional information, and require certifying authorities to provide a written explanation of their certification decision. The committee also held a hearing on the same issue and introduced similar legislation (identical bills—S. 3303 and H.R. 6889) in the 115th Congress.179 Also in the 117th Congress, S. 3277, introduced after the California district court’s remand and vacatur order, would codify the 2020 Final Rule. Water Quality Certification Improvement Act of 2021 In the 117th Congress, some Members introduced legislation previously introduced in both the 115th and 116th sessions of Congress, titled the Water Quality Certification Improvement Act.180 S. 1761 and H.R. 3422, if enacted, would limit what certifying authorities may consider in their certification review to whether the discharge into navigable waters by the applicant as a result of the federally licensed or permitted activity would comply with the applicable provisions of CWA Sections 301, 302, 303, 306, and 307. S. 1761 and H.R. 3422 would also limit the scope of conditions certifying authorities may impose to limitations and monitoring requirements necessary to ensure that a discharge into navigable waters complies with the applicable provisions of CWA Sections 301, 302, 303, 306, and 307. In addition, S. 1761 and H.R. 3422 would establish a 90-day limit, after receipt of a request for certification, during which the certifying authority may identify in writing any additional information necessary to make a certification decision. S. 1761 and H.R. 3422 would also require the certifying authority to provide a written explanation of the certification decision. court’s remand and vacatur order. See Intervenor-Defendants-Appellants’ and Intervenors-Appellants’ Motion for Stay Pending Appeal, In re Clean Water Act Rulemaking, No. 21-16958 (9th Cir. Dec. 15, 2021). 178 U.S. Congress, Senate Committee on Environment and Public Works, Hearing on S. 1087, the Water Quality Certification Improvement Act of 2019, and Other Potential Reforms to Improve Implementation of Section 401 of the Clean Water Act: State Perspectives, 116th Cong., 2nd sess., November 19, 2019, S.Hrg. 116-145. 179 U.S. Congress, Senate Committee on Environment and Public Works, Hearing to Examine Implementation of Clean Water Act Section 401 and S.3303, the Water Quality Certification Improvement Act of 2018, 115th Cong., 2nd sess., August 16, 2018, S.Hrg. 115-344. 180 The Water Quality Certification Improvement Act of 2021 (S. 1761 and H.R. 3422), the Water Quality Certification Improvement Act of 2019 (S. 1087 and H.R. 2205), and the Water Quality Certification Improvement Act of 2018 (S. 3303 and H.R. 6889) are all identical bills. Congressional Research Service 23 Clean Water Act Section 401: Overview and Recent Developments Senate Hearing on Section 401 Reforms During the November 19, 2019, hearing on Section 401 reform, Members in the 116th Congress debated whether proposed Section 401 reforms—whether through legislation such as the Water Quality Certification Improvement Act of 2019 (S. 1087) or the 2019 Proposed Rule—were necessary. Some Members argued that while the majority of states carry out their necessary. Some Members argued that while the majority of states carry out their
Section 401 certifications in a responsible way, some are abusing their authority under the Section 401 certifications in a responsible way, some are abusing their authority under the
provision to block critical energy infrastructure projects.provision to block critical energy infrastructure projects.~~160~~181 Two state witnesses (the governors of Two state witnesses (the governors of
Wyoming and Oklahoma) pointed to examples, such as the Wyoming and Oklahoma) pointed to examples, such as the ~~State~~state of Washington’s certification of Washington’s certification
denial for the Millennium coal export terminal, of states considering impacts beyond the scope of denial for the Millennium coal export terminal, of states considering impacts beyond the scope of
water quality in their certification review.water quality in their certification review.~~161~~182 They indicated support for the proposed Section 401 They indicated support for the proposed Section 401
reforms—in particular, the reforms that would clarify the scope of reviews, clarify timelines, and reforms—in particular, the reforms that would clarify the scope of reviews, clarify timelines, and
require that certifying authorities provide a clear basis for any certification denials.require that certifying authorities provide a clear basis for any certification denials.~~162~~183
In contrast, some Members argued that states are appropriately using Section 401 authority to In contrast, some Members argued that states are appropriately using Section 401 authority to
protect the waters in their states. They criticized the proposed Section 401 reforms as protect the waters in their states. They criticized the proposed Section 401 reforms as
unnecessary, inappropriately restrictive regarding what activities and impacts a state can review unnecessary, inappropriately restrictive regarding what activities and impacts a state can review
and the timeframes in which they can review them, and counter to the principle of cooperative and the timeframes in which they can review them, and counter to the principle of cooperative
federalism.federalism.~~163~~184 A state witness—a Senior Assistant Attorney General from Washington—similarly A state witness—a Senior Assistant Attorney General from Washington—similarly
criticized the proposed Section 401 reforms.criticized the proposed Section 401 reforms.~~164~~185 She further argued that states have largely She further argued that states have largely
demonstrated a fair and successful implementation of Section 401, and that efforts to reform demonstrated a fair and successful implementation of Section 401, and that efforts to reform
Section 401 appear to be based on disagreement with a few state decisions.Section 401 appear to be based on disagreement with a few state decisions.~~165~~
~~Conclusion~~
186 Conclusion With the vacatur of the 2020 Final Rule, the temporary return to the 1971 rule, and the Biden Administration’s announcement that it intends to develop a new CWA Section 401 rule, stakeholders continue to debate how CWA Section 401 should be implemented. Much of the debate about Section 401 implementation centers on the appropriate balance of Much of the debate about Section 401 implementation centers on the appropriate balance of
“cooperative federalism” between federal agencies’ and states’ authorities. CWA Section 101(b) “cooperative federalism” between federal agencies’ and states’ authorities. CWA Section 101(b)
provides that “it is the policy of the Congress to recognize, preserve, and protect the primary provides that “it is the policy of the Congress to recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the

~~160 S.Hrg. 116-145, pp. 1, 111-112, 114-115.~~
~~161 S.Hrg. 116-145, pp. 6 and 20.~~
~~162 S.Hrg. 116-145, pp. 7 and 20.~~
~~163 S.Hrg. 116-145, pp. 3, 80, 109-110, 112-113, 200.~~
~~164 S.Hrg. 116-145, pp. 28.~~
~~165 S.Hrg. 116-145, pp. 28-29.~~
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development and use (including restoration, preservation, and enhancement) of land and water development and use (including restoration, preservation, and enhancement) of land and water
resources, and to consult with the Administrator in the exercise of his authority under this Act.” resources, and to consult with the Administrator in the exercise of his authority under this Act.”
States and others who States and others who ~~oppose~~opposed the changes to the Section 401 implementing regulations the changes to the Section 401 implementing regulations ~~argue that~~
~~the changes undermine~~included in the 2020 Final Rule argued that the changes undermined the CWA’s structure of cooperative federalism. Some the CWA’s structure of cooperative federalism. Some ~~assert~~asserted that the rule that the rule
inappropriately inappropriately ~~limits~~limited certifying authorities’ ability to protect their own water resources. certifying authorities’ ability to protect their own water resources.
~~However, EPA argues~~During the Trump Administration, EPA argued that the 2020 Final Rule that the 2020 Final Rule is was consistent with its role, established by Congress, consistent with its role, established by Congress,
to administer the CWA, which includes ensuring “that there are sufficient authorities and to administer the CWA, which includes ensuring “that there are sufficient authorities and
limitations in place for States and Tribes to effectively implement CWA programs within the limitations in place for States and Tribes to effectively implement CWA programs within the
scope that Congress established.”scope that Congress established.”~~166~~
~~On its own, as discussed, the 2020 Final Rule includes numerous changes to regulation and~~
~~practice that narrow~~187 181 S.Hrg. 116-145, pp. 1, 111-112, 114-115. 182 S.Hrg. 116-145, pp. 6 and 20. 183 S.Hrg. 116-145, pp. 7 and 20. 184 S.Hrg. 116-145, pp. 3, 80, 109-110, 112-113, 200. 185 S.Hrg. 116-145, p. 28. 186 S.Hrg. 116-145, pp. 28-29. 187 2020 Final Rule, p. 42226. Congressional Research Service 24 Clean Water Act Section 401: Overview and Recent Developments On its own, as discussed, the 2020 Final Rule included numerous changes to regulation and practice that narrowed the authority of states when acting on Section 401 certification requests. the authority of states when acting on Section 401 certification requests.
Other Other ~~recent~~ EPA regulatory actions EPA regulatory actions ~~may amplify~~during the Trump Administration might have amplified the impact of some of those changes. Notably, the impact of some of those changes. Notably,
the Navigable Waters Protection Rule, which EPA promulgated in April 2020, narrowed the the Navigable Waters Protection Rule, which EPA promulgated in April 2020, narrowed the
definition of “waters of the United States,” thereby reducing the number of waters and wetlands definition of “waters of the United States,” thereby reducing the number of waters and wetlands
that fall under the jurisdiction of the CWA. Under the 2020 Final Rule, EPA that fall under the jurisdiction of the CWA. Under the 2020 Final Rule, EPA ~~is limiting~~limited the the
application of Section 401 to point source discharges into waters of the United States. Therefore, application of Section 401 to point source discharges into waters of the United States. Therefore,
taken together, these two regulatory actions taken together, these two regulatory actions could have had ~~have~~ a more significant impact, some argue, than they a more significant impact, some argue, than they
domight have when considered in isolation. Some when considered in isolation. Some ~~are~~have been concerned that these concerned that these ~~recent actions~~actions could leave a regulatory leave a regulatory
gap and prevent states from weighing in on activities that may affect waters within their states. gap and prevent states from weighing in on activities that may affect waters within their states.
For example, activities that result in a discharge to headwaters and other water resources that are For example, activities that result in a discharge to headwaters and other water resources that are
no longer considered waters of the United States under the Navigable Waters Protection Rule no longer considered waters of the United States under the Navigable Waters Protection Rule
would no longer require a CWA permit, nor would they require a Section 401 certification. In would no longer require a CWA permit, nor would they require a Section 401 certification. In
responding to such concerns in the 2020 Final Rule, EPA argued that the rule responding to such concerns in the 2020 Final Rule, EPA argued that the rule ~~promotes~~promoted the the
overarching goals of the CWA to protect water quality while preserving states’ major role in overarching goals of the CWA to protect water quality while preserving states’ major role in
implementing the CWA. EPA also argued, in promulgating the Navigable Waters Protection Ruleimplementing the CWA. EPA also argued, in promulgating the Navigable Waters Protection Rule,
that narrowing the scope of the CWA’s jurisdiction would not reduce protection of the nation’s that narrowing the scope of the CWA’s jurisdiction would not reduce protection of the nation’s
waters because state, local, and tribal regulations and programs also provide protective coverage waters because state, local, and tribal regulations and programs also provide protective coverage
for water resources. EPA asserted that the Navigable Waters Protection Rule for water resources. EPA asserted that the Navigable Waters Protection Rule ~~gives~~would give state, tribal, state, tribal,
and local authorities more flexibility to determine how best to manage waters within their and local authorities more flexibility to determine how best to manage waters within their
borders. borders.
~~The litigation over~~Like the 2020 Final Rule, the Navigable Waters Protection Rule was also vacated by federal district courts, and EPA and USACE have similarly announced their intentions to rescind and revise the rule. As with the 2020 Final Rule, however, some parties have appealed the vacatur of the Navigable Waters Protection Rule.188 Those appeals could result in the 2020 Final Rule, the Navigable Waters Protection Rule, or both rules going back into effect until the Biden Administration completes the regulatory process for rescinding them.189 ~~the 2020 Final Rule could result in one or more rulings addressing the~~
~~respective roles of certifying authorities and federal agencies under Section 401. Because the~~
~~lawsuits are proceeding in three separate courts,167 there is the potential for those courts to issue~~
~~conflicting rulings on the merits of the 2020 Final Rule. Vacatur of the 2020 Final Rule would~~
~~also raise complicated questions about the possible reinstatement of the 1971 implementing~~
~~regulations, the 2010 Guidance, and the 2019 Guidance. If one or more courts vacates the 2020~~
~~Final Rule, there may be additional proceedings to resolve the scope of any such ruling.~~
Congress has shown interest in the role of states in implementing the CWA, including recent Congress has shown interest in the role of states in implementing the CWA, including recent
interest in certifying authorities’ implementation of Section 401 and long-standing interest in the interest in certifying authorities’ implementation of Section 401 and long-standing interest in the
scope of the definition of “waters of the United States,” which would indirectly affect the scope scope of the definition of “waters of the United States,” which would indirectly affect the scope
of of ~~the 2020 Final Rule. Moving forward~~any potential future new Section 401 rule. In the future, Congress may be interested in overseeing the , Congress may be interested in overseeing the
~~Administration’s implementation of the new 2020 Final Rule, including any challenges certifying~~

~~166 2020 Final Rule, p. 42226.~~
~~167 The three cases in the Northern District of California have all been assigned to the same judge, and the parties intend~~
~~to seek consolidation, which would result in a single opinion concurrently resolving all three suits. See Joint Case~~
~~Management Statement, California v. Wheeler, No. 3:20-cv-04869, at 5-6 (N.D. Cal. Oct. 15, 2020), ECF No. 116.~~
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~~Clean Water Act Section 401: Overview and Recent Developments~~

~~authorities may or may not face as they implement the rule in concert with their implementation~~
~~of the Navigable Waters Protection Rule.~~

~~Congressional Research Service~~
23Administration’s efforts to promulgate new regulations for both Section 401 and for the definition of “waters of the United States,” as well as the Administration’s implementation of the new rules. 188 See Pasqua Yaqui Tribe v. Ariz. Rock Prods. Ass’n, No. 21-16791 (9th Cir. appeal filed Oct. 26, 2021). 189 For further discussion of the Navigable Waters Protection Rule litigation, see CRS Report R46927, Redefining Waters of the United States (WOTUS): Recent Developments, by Laura Gatz and Kate R. Bowers; and CRS Legal Sidebar LSB10646, What’s Next for WOTUS: Recent Litigation and Next Steps in Redefining “Waters of the United States”, by Kate R. Bowers. Congressional Research Service 25

Clean Water Act Section 401: Overview and Recent Developments

Appendix. CWA Section 401 (33 U.S.C. §1341)
~~SEC.~~Section 401. (a)(1) Any applicant for a Federal license or permit to conduct any activity including, 401. (a)(1) Any applicant for a Federal license or permit to conduct any activity including,
but not limited to, the construction or operation of facilities, which may result in any discharge but not limited to, the construction or operation of facilities, which may result in any discharge
into the navigable waters, shall provide the licensing or permitting agency a certification from the into the navigable waters, shall provide the licensing or permitting agency a certification from the
State in which the discharge originates or will originate, or, if appropriate, from the interstate State in which the discharge originates or will originate, or, if appropriate, from the interstate
water pollution control agency having jurisdiction over the navigable waters at the point where water pollution control agency having jurisdiction over the navigable waters at the point where
the discharge originates or will originate, that any such discharge will comply with the applicable the discharge originates or will originate, that any such discharge will comply with the applicable
provisions of provisions of ~~sections~~Sections 301, 302, 303, 306, and 307 of this 301, 302, 303, 306, and 307 of this ~~Act~~act. In the case of any such activity for . In the case of any such activity for
which there is not an applicable effluent limitation or other limitation under which there is not an applicable effluent limitation or other limitation under ~~sections~~Sections 301(b) and 301(b) and
302, and there is not an applicable standard under 302, and there is not an applicable standard under ~~sections~~Sections 306 and 307, the State shall so certify, 306 and 307, the State shall so certify,
except that any such certification shall not be deemed to satisfy except that any such certification shall not be deemed to satisfy ~~section~~ Section 511(c) of this 511(c) of this ~~Act~~act. Such . Such
State or interstate agency shall establish procedures for public notice in the case of all State or interstate agency shall establish procedures for public notice in the case of all
applications for certification by it and, to the extent it deems appropriate, procedures for public applications for certification by it and, to the extent it deems appropriate, procedures for public
hearings in connection with specific applications. In any case where a State or interstate agency hearings in connection with specific applications. In any case where a State or interstate agency
has no authority to give such a certification, such certification shall be from the Administrator. If has no authority to give such a certification, such certification shall be from the Administrator. If
the State, interstate agency, or Administrator, as the case may be, fails or refuses to act on a the State, interstate agency, or Administrator, as the case may be, fails or refuses to act on a
request for certification, within a reasonable period of time (which shall not exceed one year) request for certification, within a reasonable period of time (which shall not exceed one year)
after receipt of such request, the certification requirements of this subsection shall be waived with after receipt of such request, the certification requirements of this subsection shall be waived with
respect to such Federal application. No license or permit shall be granted until the certification respect to such Federal application. No license or permit shall be granted until the certification
required by this section has been obtained or has been waived as provided in the preceding required by this section has been obtained or has been waived as provided in the preceding
sentence. No license or permit shall be granted if certification has been denied by the State, sentence. No license or permit shall be granted if certification has been denied by the State,
interstate agency, or the Administrator, as the case may be. interstate agency, or the Administrator, as the case may be.
(2) Upon receipt of such application and certification the licensing or permitting agency shall (2) Upon receipt of such application and certification the licensing or permitting agency shall
immediately notify the Administrator of such application and certification. Whenever such a immediately notify the Administrator of such application and certification. Whenever such a
discharge may affect, as determined by the Administrator, the quality of the waters of any other discharge may affect, as determined by the Administrator, the quality of the waters of any other
State, the Administrator within thirty days of the date of notice of application for such Federal State, the Administrator within thirty days of the date of notice of application for such Federal
license or permit shall so notify such other State, the licensing or permitting agency, and the license or permit shall so notify such other State, the licensing or permitting agency, and the
applicant. If, within sixty days after receipt of such notification, such other State determines that applicant. If, within sixty days after receipt of such notification, such other State determines that
such discharge will affect the quality of its waters so as to violate any water quality requirement such discharge will affect the quality of its waters so as to violate any water quality requirement
in such State, and within such sixty-day period notifies the Administrator and the licensing or in such State, and within such sixty-day period notifies the Administrator and the licensing or
permitting agency in writing of its objection to the issuance of such license or permit and requests permitting agency in writing of its objection to the issuance of such license or permit and requests
a public hearing on such objection, the licensing or permitting agency shall hold such a hearing. a public hearing on such objection, the licensing or permitting agency shall hold such a hearing.
The Administrator shall at such hearing submit his evaluation and recommendations with respect The Administrator shall at such hearing submit his evaluation and recommendations with respect
to any such objection to the licensing or permitting agency. Such agency, based upon the to any such objection to the licensing or permitting agency. Such agency, based upon the
recommendations of such State, the Administrator, and upon any additional evidence, if any, recommendations of such State, the Administrator, and upon any additional evidence, if any,
presented to the agency at the hearing, shall condition such license or permit in such manner as presented to the agency at the hearing, shall condition such license or permit in such manner as
may be necessary to insure compliance with applicable water quality requirements. If the may be necessary to insure compliance with applicable water quality requirements. If the
imposition of conditions cannot insure such compliance such agency shall not issue such license imposition of conditions cannot insure such compliance such agency shall not issue such license
or permit. or permit.
(3) The certification obtained pursuant to paragraph (1) of this subsection with respect to the (3) The certification obtained pursuant to paragraph (1) of this subsection with respect to the
construction of any facility shall fulfill the requirements of this subsection with respect to construction of any facility shall fulfill the requirements of this subsection with respect to
certification in connection with any other Federal license or permit required for the operation of certification in connection with any other Federal license or permit required for the operation of
such facility unless, after notice to the certifying State, agency, or Administrator, as the case may such facility unless, after notice to the certifying State, agency, or Administrator, as the case may
be, which shall be given by the Federal agency to whom application is made for such operating be, which shall be given by the Federal agency to whom application is made for such operating
license or permit, the State, or if appropriate, the interstate agency or the Administrator, notifies license or permit, the State, or if appropriate, the interstate agency or the Administrator, notifies
such agency within sixty days after receipt of such notice that there is no longer reasonable such agency within sixty days after receipt of such notice that there is no longer reasonable
assurance that there will be compliance with the applicable provisions of assurance that there will be compliance with the applicable provisions of ~~sections~~Sections 301, 302, 303, 301, 302, 303,
306, and 307 of this 306, and 307 of this ~~Act~~act because of changes since the construction license or permit certification because of changes since the construction license or permit certification
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was issued in (A) the construction or operation of the facility, (B) the characteristics of the waters was issued in (A) the construction or operation of the facility, (B) the characteristics of the waters
into which such discharge is made, (C) the water quality criteria applicable to such waters or (D) into which such discharge is made, (C) the water quality criteria applicable to such waters or (D)
applicable effluent limitations or other requirements. This paragraph shall be inapplicable in any applicable effluent limitations or other requirements. This paragraph shall be inapplicable in any
case where the applicant for such operating license or permit has failed to provide the certifying case where the applicant for such operating license or permit has failed to provide the certifying
State, or, if appropriate, the interstate agency or the Administrator, with notice of any proposed State, or, if appropriate, the interstate agency or the Administrator, with notice of any proposed
changes in the construction or operation of the facility with respect to which a construction changes in the construction or operation of the facility with respect to which a construction
license or permit has been granted, which changes may result in violation of license or permit has been granted, which changes may result in violation of ~~section~~Section 301, 302, 301, 302,
303, 306, or 307 of this 303, 306, or 307 of this ~~Act~~act. .
(4) Prior to the initial operation of any federally licensed or permitted facility or activity which (4) Prior to the initial operation of any federally licensed or permitted facility or activity which
may result in any discharge into the navigable waters and with respect to which a certification has may result in any discharge into the navigable waters and with respect to which a certification has
been obtained pursuant to paragraph (1) of this subsection, which facility or activity is not subject been obtained pursuant to paragraph (1) of this subsection, which facility or activity is not subject
to a Federal operating license or permit, the licensee or permittee shall provide an opportunity for to a Federal operating license or permit, the licensee or permittee shall provide an opportunity for
such certifying State, or, if appropriate, the interstate agency or the Administrator to review the such certifying State, or, if appropriate, the interstate agency or the Administrator to review the
manner in which the facility or activity shall be operated or conducted for the purposes of manner in which the facility or activity shall be operated or conducted for the purposes of
assuring that applicable effluent limitations or other limitations or other applicable water quality assuring that applicable effluent limitations or other limitations or other applicable water quality
requirements will not be violated. Upon notification by the certifying State, or if appropriate, the requirements will not be violated. Upon notification by the certifying State, or if appropriate, the
interstate agency or the Administrator that the operation of any such federally licensed or interstate agency or the Administrator that the operation of any such federally licensed or
permitted facility or activity will violate applicable effluent limitations or other limitations or permitted facility or activity will violate applicable effluent limitations or other limitations or
other water quality requirements such Federal agency may, after public hearing, suspend such other water quality requirements such Federal agency may, after public hearing, suspend such
license or permit. If such license or permit is suspended, it shall remain suspended until license or permit. If such license or permit is suspended, it shall remain suspended until
notification is received from the certifying State, agency, or Administrator, as the case may be, notification is received from the certifying State, agency, or Administrator, as the case may be,
that there is reasonable assurance that such facility or activity will not violate the applicable that there is reasonable assurance that such facility or activity will not violate the applicable
provisions of provisions of ~~section~~Section 301, 302, 303, 306, or 307 of this 301, 302, 303, 306, or 307 of this ~~Act~~act. .
(5) Any Federal license or permit with respect to which a certification has been obtained under (5) Any Federal license or permit with respect to which a certification has been obtained under
paragraph (1) of this subsection may be suspended or revoked by the Federal agency issuing such paragraph (1) of this subsection may be suspended or revoked by the Federal agency issuing such
license or permit upon the entering of a judgment under this license or permit upon the entering of a judgment under this ~~Act~~act that such facility or activity has that such facility or activity has
been operated in violation of the applicable provisions of been operated in violation of the applicable provisions of ~~section~~Section 301, 302, 303, 306, or 307 of 301, 302, 303, 306, or 307 of
this this ~~Act~~act. .
(6) Except with respect to a permit issued under (6) Except with respect to a permit issued under ~~section~~Section 402 of this 402 of this ~~Act~~act, in any case where , in any case where
actual construction of a facility has been lawfully commenced prior to April 3, 1970, no actual construction of a facility has been lawfully commenced prior to April 3, 1970, no
certification shall be required under this subsection for a license or permit issued after April 3, certification shall be required under this subsection for a license or permit issued after April 3,
1970, to operate such facility, except that any such license or permit issued without certification 1970, to operate such facility, except that any such license or permit issued without certification
shall terminate April 3, 1973, unless prior to such termination date the person having such license shall terminate April 3, 1973, unless prior to such termination date the person having such license
or permit submits to the Federal agency which issued such license or permit a certification and or permit submits to the Federal agency which issued such license or permit a certification and
otherwise meets the requirements of this section. otherwise meets the requirements of this section.
(b) Nothing in this section shall be construed to limit the authority of any department or agency (b) Nothing in this section shall be construed to limit the authority of any department or agency
pursuant to any other provision of law to require compliance with any applicable water quality pursuant to any other provision of law to require compliance with any applicable water quality
requirements. The Administrator shall, upon the request of any Federal department or agency, or requirements. The Administrator shall, upon the request of any Federal department or agency, or
State or interstate agency, or applicant, provide, for the purpose of this section, any relevant State or interstate agency, or applicant, provide, for the purpose of this section, any relevant
information on applicable effluent limitations, or other limitations, standards, regulations, or information on applicable effluent limitations, or other limitations, standards, regulations, or
requirements, or water quality criteria, and shall, when requested by any such department or requirements, or water quality criteria, and shall, when requested by any such department or
agency or State or interstate agency, or applicant, comment on any methods to comply with such agency or State or interstate agency, or applicant, comment on any methods to comply with such
limitations, standards, regulations, requirements, or criteria. limitations, standards, regulations, requirements, or criteria.
(c) In order to implement the provisions of this section, the Secretary of the Army, acting through (c) In order to implement the provisions of this section, the Secretary of the Army, acting through
the Chief of Engineers, is authorized, if he deems it to be in the public interest, to permit the use the Chief of Engineers, is authorized, if he deems it to be in the public interest, to permit the use
of spoil disposal areas under his jurisdiction by Federal licensees or permittees, and to make an of spoil disposal areas under his jurisdiction by Federal licensees or permittees, and to make an
appropriate charge for such use. Moneys received from such licensees or permittees shall be appropriate charge for such use. Moneys received from such licensees or permittees shall be
deposited in the Treasury as miscellaneous receipts. deposited in the Treasury as miscellaneous receipts.
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(d) Any certification provided under this section shall set forth any effluent limitations and other (d) Any certification provided under this section shall set forth any effluent limitations and other
limitations, and monitoring requirements necessary to assure that any applicant for a Federal limitations, and monitoring requirements necessary to assure that any applicant for a Federal
license or permit will comply with any applicable effluent limitations and other limitations, under license or permit will comply with any applicable effluent limitations and other limitations, under
~~section~~Section 301 or 302 of this 301 or 302 of this ~~Act~~act, standard of performance under , standard of performance under ~~section~~Section 306 of this 306 of this ~~Act~~act, or , or
prohibition, effluent standard, or pretreatment standard under prohibition, effluent standard, or pretreatment standard under ~~section~~Section 307 of this 307 of this ~~Act~~act, and with , and with
any other appropriate requirement of State law set forth in such certification, and shall become a any other appropriate requirement of State law set forth in such certification, and shall become a
condition on any Federal license or permit subject to the provisions of this section. condition on any Federal license or permit subject to the provisions of this section.

Author Information

Laura Gatz Laura Gatz
Kate R. Bowers Kate R. Bowers
Analyst in Environmental Policy Analyst in Environmental Policy
Legislative Attorney Legislative Attorney

Disclaimer
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Congressional Research Service Congressional Research Service
R46615 R46615 · VERSION ~~1 · NEW~~
264 · UPDATED 28