Clean Water Act Section 401: Overview and Recent Developments

Changes from January 12, 2022 to August 24, 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
~~January 12~~August 24, 2022 , 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~~Acting Section Research
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.

Manager 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. 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,~~
~~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 The certifying authority may grant, grant with conditions, deny, or waive certification of proposed federal
licenses or permits. Activities licenses or permits. Activities that require such federal licenses or permits include hydropower projects licensed by the 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 applicants have expressed frustration with conditions must be included in the final license or permit. Some license and permit applicants have expressed frustration with
how some states have exercised their Section 401 authority. Key concerns include timeframes for issuing certifications, the how some states have exercised their Section 401 authority. Key concerns include timeframes for issuing certifications, the
scope of scope of ~~the~~ states’ reviews, and the type of conditions that states can impose when granting a certification. Some 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 changes 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’ Section 401 authority. to the CWA or implementing regulations and guidance to limit states’ Section 401 authority. ~~Other stakeholders~~Others assert that assert that
state implementation is too lenient and may fail to block certain projects that have the potential to degrade water quality. 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 waters within their states, 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 Section 401 authority are contrary to the CWA’s principles of cooperative federalism. and any efforts to limit state Section 401 authority are contrary to the CWA’s principles of cooperative federalism.
The Trump Administration criticized the manner in which some states exercised their Section 401 authority. In The Trump Administration criticized the manner in which some states exercised their Section 401 authority. In ~~April 2019,~~
~~President Trump issued an executive order (E.O.), 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. EPA responded to the E.O. by issuing~~response to an April 2019 executive order, EPA issued updated Section 401 guidance in June 2019 updated Section 401 guidance in June 2019~~, and publishing~~ and published a final rule a final rule
(the 2020 Final Rule) in July 2020 to update Section 401 regulations. The 2020 Final Rule went into effect in September (the 2020 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 2020, rescinding EPA’s 2019 Guidance and replacing its existing implementing regulations for Section 401, which were
promulgated in 1971. The 2020 Final Rule included numerous changes to existing regulation and practice that narrowed the promulgated in 1971. The 2020 Final Rule included numerous changes to existing regulation and practice that narrowed the
authority of certifying authorities when acting on Section 401 certification requests. Several changes addressed two broad authority of certifying authorities when acting on Section 401 certification requests. Several changes addressed two broad
policy issues relevant to implementation of Section 401—certification timeframes and the scope of certifications. In addition, policy issues relevant to implementation of Section 401—certification timeframes and the scope of certifications. In addition,
the 2020 Final Rule included changes regarding federal review of certifications and enforcement. The 2020 Final Rule the 2020 Final Rule included changes regarding federal review of certifications and enforcement. The 2020 Final Rule
garnered interest from stakeholders. Various groups, including those representing certain energy interests, generally garnered interest from stakeholders. Various groups, including those representing certain energy interests, generally
supported the rule. Other groups, including some states and state associations, opposed the changes. Five separate groups of supported the rule. Other groups, including some states and state associations, opposed the changes. Five separate groups of
states, tribes, and environmental organizations filed lawsuits challenging the 2020 Final Rule. 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 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 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. 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.~~
On October 21, 2021, a federal district court vacated the 2020 Final Rule, prompting EPA to announce a temporary return to the 1971 implementing regulations. Various states and stakeholders appealed the district court’s decision, and on April 6, 2022, the Supreme Court temporarily reinstated the 2020 Final Rule for the duration of the appeal. In June 2022, EPA proposed a new rule to update the regulatory requirements for Section 401 certification. EPA estimates that it will issue a final rule by March 2023, according to its Spring 2022 Regulatory Agenda. The 117th Congress continues to show interest in Section 401. Some Members have introduced legislation proposing to 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 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 as the scope of conditions they may impacts that certifying authorities may consider in their certification review, as well as the scope of conditions they may
impose (H.R. 3422/S. 1761). impose (H.R. 3422/S. 1761).
Congressional Research Service Congressional Research Service

~~link to page 29~~ Clean Water Act Section 401: Overview and Recent Developments

Background
Section 401 of the Clean Water Act (CWA) requires that any applicant for a federal license or Section 401 of the Clean Water Act (CWA) requires that any applicant for a federal license or
permit provide a certification that any discharges that may result from the licensed or permitted permit 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 activity will comply with the act, including water quality standard requirements. Disputes have
arisen over the states’ exercise of authority under Section 401. While some stakeholders argue arisen over the states’ exercise of authority under Section 401. While some stakeholders argue
that states are appropriately using their Section 401 authority to manage and protect the quality of 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 their waters, other stakeholders, including some license and permit applicants (hereinafter
referred to as “project proponents”), have expressed frustration with how some states have referred to as “project proponents”), 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 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 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), 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 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 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 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 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 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 and vacating EPA’s 2020 Final Rule.3 In response, EPA ~~EPA has~~ stated that the vacatur stated that the vacatur ~~applies~~applied nationwide nationwide and required~~and~~
~~requires~~ a temporary return to EPA’s 1971 regulations until the agency 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~~
~~CWA, to “restore and maintain the chemical, physical, and biological integrity of the Nation’s~~
~~waters.”5 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 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.6 (See Appendix for the~~
~~full text of CWA Section 401.) The certification, issued by the state (or other certifying authority)~~finalized a new rule.4 Various states and industry groups appealed the district court’s vacatur order. On April 6, 2022, the Supreme Court stayed the district court’s order, temporarily reinstating the 2020 Final Rule while the appeal is pending.5 In June 2022, EPA proposed a new rule to update the regulatory requirements for Section 401 certification.6 EPA estimates that it will issue a final rule by March 2023, according to its Spring 2022 Regulatory Agenda.7 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.

1 EPA, “State Certification of Activities Requiring a Federal Permit or License” (hereinafter “1971 regulations”), 361 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. 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 2 EPA, “Clean Water Act Section 401 Certification Rule” (hereinafter “2020 Final Rule”), 85 Federal Register 42210- 42210-
42287, July 13, 2020. 42287, July 13, 2020.
3 Order, 3 Order, In re Clean Water Act Rulemaking, No. 3:20-cv-04636, Doc. No. 173 (N.D. Cal. Oct. 21. 2021). Clean Water Act Rulemaking, No. 3:20-cv-04636, Doc. No. 173 (N.D. Cal. Oct. 21. 2021).
4 EPA, 4 EPA, 2020 Rule Implementation Materials, https://www.epa.gov/cwa-401/2020-rule-implementation-materials, , https://www.epa.gov/cwa-401/2020-rule-implementation-materials,
accessed Nov. 16, 2021. See also EPA, 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/, 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. questions-and-answers-document-on-the-2020-cwa-section-401-certification-rule-vacatur-12-17-21-508.pdf.
5 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

Order on Application for Stay, Louisiana v. Am. Rivers, No. 21A539 (U.S. Apr. 6, 2022). 6 Environmental Protection Agency, “Clean Water Act Section 401 Water Quality Certification Improvement Rule,” 87 Federal Register 35318, June 9, 2022. 7 Office of Information and Regulatory Affairs, Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions, EPA/Office of Water, Clean Water Act Section 401: Water Quality Certification, RIN No. 2040-AG12. Congressional Research Service 1 link to page 31 Clean Water Act Section 401: Overview and Recent Developments What Is Clean Water Act Section 401? Congress established the Federal Water Pollution Control Act (FWPCA), as amended by the CWA, to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”8 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 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.9 (See Appendix for the full text of CWA Section 401.) The certification, issued by the state (or other certifying authority) ~~Clean Water Act Section 401: Overview and Recent Developments~~

in which the discharge originates, attests that the discharge will comply with applicable 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., 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 302, and 306), water quality standards and implementation plans (Section 303), and toxic
pretreatment effluent standards (Section 307). 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 EPA for approval, Water quality standards, which are developed by the state and submitted to EPA for approval,
contain three core components that specify (1) the designated uses of a waterbody (e.g., contain three core components that specify (1) the designated uses of a waterbody (e.g.,
recreation, public water supply), (2) criteria to protect those uses (i.e., numeric concentrations of recreation, public water supply), (2) criteria to protect those uses (i.e., numeric concentrations of
pollutants or narrative descriptions), and (3) an antidegradation policy.pollutants or narrative descriptions), and (3) an antidegradation policy.710 Pretreatment standards Pretreatment standards
apply to indirect dischargers, who discharge to a publicly owned treatment works prior to apply to indirect dischargers, who discharge to a publicly owned treatment works prior to
discharge into a water of the United States.discharge into a water of the United States.811
Section 401 provides states, certain tribes, and in certain circumstances, Section 401 provides states, certain tribes, and in certain circumstances, ~~EPA9~~EPA12 (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,
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 denies certification, the federal licensing or permitting~~
~~agency cannot issue the license or permit.~~
~~ If a certifying authority waives certification, the certification is not required for~~
~~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~~
~~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,~~
~~the certification requirements of this subsection shall be waived.”10~~

7 8 CWA §101(a); 33 U.S.C. §1251(a). 9 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). 10 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 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. U.S.C. §§1251, 1313(d)(4)(B) for antidegradation. See also 40 C.F.R. Part 131. 40 C.F.R. Part 131.
811 CWA §§301 and 307; 33 U.S.C. §§1311 and 1317. CWA §§301 and 307; 33 U.S.C. §§1311 and 1317.
912 Per CWA §518 (33 U.S.C. §1377), EPA is authorized to treat an Indian tribe as a state for certain sections of the 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 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 on tribal lands where the tribe has not been granted treatment as a state, as well as on federal lands with exclusive
federal jurisdictionfederal jurisdiction.
~~10 CWA §401(a)(1); 33 U.S.C. §1341(a)(1)~~. .
Congressional Research Service Congressional Research Service
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Clean Water Act Section 401: Overview and Recent Developments

 If a certifying authority denies certification, the federal licensing or permitting agency cannot issue the license or permit.  If a certifying authority waives certification, the certification is not required for 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 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, the certification requirements of this subsection shall be waived.”13 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.1114 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 ~~EPA12~~EPA15 (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).1316 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.1417 First, if a certifying authority denies First, if a certifying authority denies
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~~
~~stakeholders have expressed frustration with how some states have implemented this authority.15~~
~~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~~
~~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’~~
~~authority under Section 401.16 Under the Trump Administration, EPA was also critical of some~~

~~11 Ibid.~~
12 13 CWA §401(a)(1); 33 U.S.C. §1341(a)(1). 14 Ibid. 15 EPA administers NPDES permits in Massachusetts, New Hampshire, New Mexico, the District of Columbia, and 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 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. authorized to administer their own NPDES permits, CWA §401 certifications are not required for NPDES permits.
1316 33 U.S.C. §1344; 33 U.S.C. §§401, 403. 33 U.S.C. §1344; 33 U.S.C. §§401, 403.
1417 EPA, EPA, Wetlands and 401 Certification: Opportunities and Guidelines for States and Eligible Indian Tribes, April , April
1989, p. 9, https://www.epa.gov/nscep. Deidre Duncan and Clare Ellis, “Clean Water Act Section 401: Balancing 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/.
~~15 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~~
~~Quality Certification Pre-Proposal Recommendations, Docket No. EPA-HQ-OW-2018-0855.~~
~~16 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/~~
~~02/05/apiny-applauds-second-circuit-court-decision-says-its-good-news-for-pipelines-ac. See also American Gas~~
~~Congressional Research Service~~
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~~Clean Water Act Section 401: Overview and Recent Developments~~

~~states’ denials of Section 401 certifications.17~~Congressional Research Service 3 Clean Water Act Section 401: Overview and Recent Developments 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.18 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 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’ authority under Section 401.19 Under the Trump Administration, EPA was also critical of some states’ denials of Section 401 certifications.20 Other stakeholders have asserted that state Other stakeholders have asserted that state
implementation of Section 401 has been too lenient in some instances and may fail to block or 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.appropriately condition certain projects that may lead to water quality degradation.1821 Many states Many states
assert that Section 401 certification allows them to manage and protect the quality of waters assert that Section 401 certification allows them to manage and protect the quality of waters
within their states.within their states.1922 They argue that any efforts to change the CWA or implementing regulations 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 to limit state authority under Section 401 are contrary to the principles of cooperative federalism
upon which the CWA is based.upon which the CWA is based.2023
Actions Under the Trump Administration
The Trump Administration characterized some states’ uses of Section 401 authority as misusing The Trump Administration characterized some states’ uses of Section 401 authority as misusing
the CWA and directed EPA to update implementing regulations and guidance.the CWA and directed EPA to update implementing regulations and guidance.2124 EPA finalized EPA finalized
updated regulations in 2020 and issued updated guidance in 2019. Prior to these actions, updated regulations in 2020 and issued updated guidance in 2019. Prior to these actions,
regulations promulgated in regulations promulgated in ~~197122~~1971 and interim guidance published in 2010 were in effect. and interim guidance published in 2010 were in effect.2325 The The
1971 regulations implemented the certification provisions included in Section 21(b) of 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~~

18 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 Quality Certification Pre-Proposal Recommendations, Docket No. EPA-HQ-OW-2018-0855. 19 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/2019/02/05/apiny-applauds-second-circuit-court-decision-says-its-good-news-for-pipelines-ac. See also American Gas 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/.
1720 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.
1821 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.
1922 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.
2023 Ibid. Ibid.
2124 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.
~~22 1971 regulations.~~
2325 EPA, EPA, Clean Water Act Section 401 Water Quality Certification: A Water Quality Protection Tool for States and
Tribes, April 2010. Hereinafter, 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~~

Congressional Research Service 4 link to page 11 link to page 11 link to page 15 link to page 9 Clean Water Act Section 401: Overview and Recent Developments Federal Water Pollution Control Act (FWPCA) of 1948.26 The 1972 amendments to the FWPCA created Section 401 and restructured the statutory framework of the statute.27 However, EPA had not updated its 1971 implementing regulations for Section 401 to reflect the changes to the relevant statutory text.28 EPA issued Section 401 guidance in 1989, which it updated in 2010.29 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.”2830 The E.O. stated that “outdated federal guidance and The E.O. stated that “outdated federal guidance and
regulations regarding Section 401” were “causing confusion and uncertainty and are hindering the regulations regarding Section 401” were “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.2931 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
recommendations on Section 401 water quality certificationsrecommendations on Section 401 water quality certifications ~~with regards to~~. In particular, the guidance addressed statutory and 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 reflected different interpretations of key certification review. EPA changes to the 2010 Guidance reflected 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.3032 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.3133 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~~
~~unnecessary.”32~~
~~Updated Regulations/2020 Final Rule~~
~~EPA also responded to E.O. 13868 by proposing a rule updating regulations on water quality~~
~~certification in August 2019.33 In July 2020, EPA issued a final water quality certification rule~~

~~experience.”~~
~~28 84 Federal Register 15495, April 15, 2019.~~
29 26 2020 Final Rule, p. 42211. 27 Since the 1977 amendments to the FWPCA—the Clean Water Act of 1977—the statute has commonly been referred to as the CWA. 28 2020 Final Rule, p. 42211. 29 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.” 30 84 Federal Register 15495, April 15, 2019. 31 EPA, EPA, Clean Water Act Section 401 Guidance for Federal Agencies, States and Authorized Tribes, June 7, 2019, , June 7, 2019,
https://www.epa.gov/https://www.epa.gov/~~cwa-401/clean-water-act-section-401-guidance-federal-agencies-states-and-authorized-tribes.~~
sites/default/files/2019-06/documents/cwa_section_401_guidance.pdf. Hereinafter Hereinafter 2019 Guidance. .
3032 2020 Final Rule, p. 42214. 2020 Final Rule, p. 42214.
3133 Ibid. Congressional Research Service 5 Clean Water Act Section 401: Overview and Recent Developments Guidance to both meet the expectations of the Executive Order and render the 2019 Guidance unnecessary.”34 Updated Regulations/2020 Final Rule EPA also responded to E.O. 13868 by proposing a rule updating regulations on water quality certification in August 2019.35 In July 2020, EPA issued a final water quality certification rule ~~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 (the 2020 Final Rule) that went into effect on September 11, 2020, and replaced the prior
implementing regulations from 1971.implementing regulations from 1971.3436
EPA stated in the preamble to the 2020 Final Rule that the rule was intended to “modernize” the EPA stated in the preamble to the 2020 Final Rule that the rule was 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.”3537 EPA also stated that the 2020 Final Rule provided additional regulatory procedures that EPA also stated that the 2020 Final Rule provided 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.”3638
The 2020 Final Rule included numerous changes to existing regulation and practice that narrowed The 2020 Final Rule included numerous changes to existing regulation and practice that 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
addressed two broad policy issues relevant to the implementation of Section 401—certification addressed 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 timeframes and the scope of certification (including both the scope of review and the scope of
conditions). In addition, the 2020 Final Rule included a new process for federal review of conditions). In addition, the 2020 Final Rule included a new process for federal review of
certifications and newly authorized the federal licensing and permitting agencies as the certifications and newly authorized the federal licensing and permitting agencies as the
enforcement authorities. The following sections discuss these policy issues, how they were enforcement authorities. The following sections discuss these policy issues, how they were
addressed in the 2020 Final Rule, and stakeholder responses and legal challenges to the 2020 addressed in the 2020 Final Rule, and stakeholder responses and legal challenges to the 2020
Final Rule. Final Rule.
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.”3739 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.3840 The 2020 Final Rule addressed several The 2020 Final Rule addressed several
policy issues related to certification timeframes that have prompted interest among stakeholders policy issues related to certification timeframes that have prompted interest among 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.
34 Ibid. 35 EPA, “Updating Regulations on Water Quality Certification,” 84 Federal Register 44080, August 22, 2019. (Hereinafter 2019 Proposed Rule.) 36 2020 Final Rule. 37 2020 Final Rule, p. 42220. 38 Ibid. 39 CWA §401(a)(1); 33 U.S.C. §1341(a)(1). 40 Ibid. Congressional Research Service 6 Clean Water Act Section 401: Overview and Recent Developments “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.”3941 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

~~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~~timeframes do not exceed one year.42 Some federal agencies have done so. For example, EPA’s Some federal agencies have done so. For example, 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 time.”Administrator finds that unusual circumstances require a longer time.”4143 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.”4244 FERC regulations provide a one-year period. FERC regulations provide a one-year period.4345
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.4446 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
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 2019.4547
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.4648 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.”47
~~Reasonable Period of Time in the 2020 Final Rule~~
~~The 2020 Final Rule established that the reasonable period of time for certifying authorities to act~~
~~on certification requests shall not exceed one year from receipt.48 Although the CWA and 1971~~
~~regulations have the same timeframe, EPA noted in the 2020 Final Rule that some states had acted~~
~~beyond the one-year limit.49 While the 1971 regulations provided that federal licensing and~~
~~permitting agencies were authorized to determine the “reasonable period of time” certifying~~
~~authorities had to act, neither the CWA nor the 1971 regulations specified how these agencies~~
~~were to determine the reasonable period of time. The 2020 Final Rule specified 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).~~
4349 41 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). 42 40 C.F.R. §121. 43 40 C.F.R. §124.53(c)(3). 44 33 C.F.R. §325.2(b)(1)(ii). 45 18 C.F.R. §§4.34(b)(5)(iii) and 5.23(b)(2). 18 C.F.R. §§4.34(b)(5)(iii) and 5.23(b)(2).
4446 Department of the Army, Office of the Assistant Secretary, Civil Works, Memorandum for the Chief of Engineers, 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. , December 13, 2018.
4547 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.
4648 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.
4749 Ibid Ibid., p. 9~~, p. 9.~~
~~48 2020 Final Rule, p. 42285.~~
~~49 2020 Final Rule, p. 42243~~. .
Congressional Research Service Congressional Research Service
7 7

Clean Water Act Section 401: Overview and Recent Developments

Reasonable Period of Time in the 2020 Final Rule The 2020 Final Rule established that the reasonable period of time for certifying authorities to act on certification requests shall not exceed one year from receipt.50 Although the CWA and 1971 regulations have the same timeframe, EPA noted in the 2020 Final Rule that some states had acted beyond the one-year limit.51 While the 1971 regulations provided that federal licensing and permitting agencies were authorized to determine the “reasonable period of time” certifying authorities had to act, neither the CWA nor the 1971 regulations specified how these agencies were to determine the reasonable period of time. The 2020 Final Rule specified criteria that federal licensing and permitting agencies should consider in making this determination.federal licensing and permitting agencies should consider in making this determination.5052
Specifically, the 2020 Final Rule required federal agencies, in determining the reasonable period 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) 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 the nature of any potential discharge, and (3) the potential need for additional study or evaluation
of water quality effects from the discharge.of water quality effects from the discharge.5153
Start of the Certification “Clock”
One specific aspect regarding certification timeframes that has been debated among stakeholders 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 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 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 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 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 complete application (i.e., when the state decides the application has sufficient information to
make a decision). make a decision).
EPA’s 2010 Guidance provided that “generally, the state or tribe’s §401 certification review 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, timeframe begins once a request for certification has been made to the certifying agency,
accompanied by a complete application.”accompanied by a complete application.”5254 In 2018, the U.S. Court of Appeals for the Second 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 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 after receipt of a certification request, not when the certifying authority determines that a request
is complete.is complete.5355 EPA’s 2019 Guidance stated that the 2010 Guidance inappropriately indicated that EPA’s 2019 Guidance stated that the 2010 Guidance inappropriately indicated that
the timeline for action begins upon receipt of a “complete application” and asserted that the CWA 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 of a certification request.provides that the timeline for action begins upon receipt of a certification request.5456
Start of the Certification Clock in the 2020 Final Rule
The 2020 Final Rule clarified that the statutory timeline for certification review starts when the The 2020 Final Rule clarified that the statutory timeline for certification review starts when the
certifying authority receives a certifying authority receives a certification request, which was newly defined in the rule., which was newly defined in the rule.5557 Per the 50 2020 Final Rule, p. 42285. 51 2020 Final Rule, p. 42243. 52 2020 Final Rule, p. 42286. 53 Ibid. 54 2010 Guidance, pp. 15-16. 55 ~~Per the~~
~~rule, a certification request is a written, signed, and dated communication that contains nine~~
~~components specified in the rule for individual licenses or permits (or seven components~~
~~specified in the rule for general licenses or permits).56~~
~~Restarting the Certification “Clock”—Withdrawal and Resubmission~~
~~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~~

~~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 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 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 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). applicant to do so. N.Y. State Dep’t of Env’t Conservation v. FERC, 991 F.3d 439, 450 (2d Cir. 2021).
5456 2019 Guidance, p. 3. p. 3.
5557 2020 Final Rule, pp. 42285-42286. Congressional Research Service 8 Clean Water Act Section 401: Overview and Recent Developments rule, a certification request is a written, signed, and dated communication that contains nine components specified in the rule for individual licenses or permits (or seven components specified in the rule for general licenses or permits).58 Restarting the Certification “Clock”—Withdrawal and Resubmission 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 two approaches, as described by EPA.59 ~~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 Some states have denied Section 401 certifications
“without prejudice” when they decided that they did not have enough data or information for their “without 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, analysis. 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 states have 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 restarting the 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 additional 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 decision. 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.5860 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.59
~~At least one court has~~ 61 Parties have disputed which actions constitute acting on a certification request for purposes of avoiding waiver. At least one court has also been critical of the withdrawal and resubmission approach. In January 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.6062 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
PacifiCorp’s proposal to relicense some of the dams comprising the Klamath Hydroelectric PacifiCorp’s proposal to relicense some of the dams comprising the Klamath Hydroelectric
Project in California and Oregon, and to decommission others.Project in California and Oregon, and to decommission others.6163 Under the terms of a 2010 Under the terms of a 2010
settlement agreement, PacifiCorp, California, and Oregon agreed to defer Section 401’s one-year 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 statutory limit by withdrawing and resubmitting PacifiCorp’s water quality certification
application each year.application each year.6264 The Tribe argued that California and Oregon had waived their Section The Tribe argued that California and Oregon had waived their Section
401 certification authority, and that PacifiCorp had therefore failed to diligently prosecute its 401 certification authority, and that PacifiCorp had therefore failed to diligently prosecute its
licensing application.licensing application.6365 The D.C. Circuit held that Section 401 imposed a clear maximum of one 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 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.”mean that the period of review for one request affects that of any other request.”6466 Otherwise, the Otherwise, the
court cautioned, “the withdrawal-and-resubmission scheme could be used to indefinitely delay court cautioned, “the withdrawal-and-resubmission scheme could be used to indefinitely delay
federal licensing proceedings and undermine” federal agencies’ regulatory jurisdiction.federal licensing proceedings and undermine” federal agencies’ regulatory jurisdiction.~~65 Some~~
67 Some 58 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. 59 2010 Guidance, p. 13. 60 2020 Final Rule, pp. 42261-42262. 61 2020 Final Rule, p. 42261. 62 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. 63 Hoopa Valley Tribe, 913 F.3d at 1100. 64 Id. at 1101. 65 Id. at 1103. 66 Id. at 1104. 67 Id. Congressional Research Service 9 Clean Water Act Section 401: Overview and Recent Developments observers asserted that the ruling could lead to an increase in certification denials in instances in 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.which states may consider the information insufficient for making a decision.6668
By contrast, the U.S. Court of Appeals for the Fourth Circuit, in By contrast, the U.S. Court of Appeals for the Fourth Circuit, in North Carolina Department of
Environmental Quality v. FERC, distinguished , distinguished Hoopa Valley as “a very narrow decision flowing as “a very narrow decision flowing
from a fairly egregious set of facts,” and has expressed skepticism regarding FERC’s argument 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 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).~~
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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~~certification request in order to avoid waiver.69 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.70 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.71 The D.C. Circuit later endorsed the Fourth Circuit’s interpretation of Hoopa Valley.72 In Turlock Irrigation District v. FERC, the D.C. Circuit considered whether the California State Water Resources Control Board waived its certification authority in a combined licensing and relicensing proceeding for two hydroelectric facilities in California. The board denied without prejudice the certification requests several times because it could not conclusively determine that certification was warranted in light of ongoing environmental reviews.73 Ultimately, the board granted certification, but with 45 conditions.74 The license applicants argued that the state board waived its certification authority, making the conditions “recommendations” for FERC to consider rather than mandatory terms that must be included in their federal licenses.75 The D.C. Circuit held that the board did not waive its certification authority because it “acted” within the meaning of Section 401(a)(1) when it denied certification and later granted certification with conditions.76 The court distinguished Hoopa Valley as a case where the certifying authority and license applicant entered into an agreement whereby the state agencies repeatedly would take no action on the certification request.77 The U.S. Court of Appeals for the Ninth Circuit has also opined on withdrawal and resubmission following Hoopa Valley. In California State Water Resources Control Board v. FERC, the court held that a certifying authority’s observation that an applicant would likely withdraw and resubmit its certification requests did not constitute coordination in a withdrawal-and-resubmission scheme so as to constitute waiver.78 The court did not rule on the validity of FERC’s position—adopted after Hoopa Valley—that an applicant’s “unilateral” withdrawal and resubmission was distinct from “coordinated” withdrawal-and-resubmission schemes in which a certifying authority sought to avoid the one-year deadline.79 Instead, the court ruled based on its 68 2020 Final Rule, p. 42261. 69 3 F.4th 655, 669 (4th Cir. 2021). 70 Id. at 669-70. 71 Ibid. 72 Turlock Irrigation Dist. v. FERC, 36 F. 4th 1179, 1183 (D.C. Cir. 2022). 73 Id. at 1181. 74 Id. at 1182. 75 Id. 76 Id. at 1183. 77 Id. 78 __ F. 4th __, 2022 WL 3094576 (9th Cir. 2022). 79 Id. at *9. Congressional Research Service 10 Clean Water Act Section 401: Overview and Recent Developments review of emails in the record that the state water resources board simply acquiesced in the applicant’s own decision to withdraw and resubmit its applications, and that the board thus did not waive its certification authority.80 Courts may continue to clarify when a certifying authority has acted on a request for certification and when it has waived its authority. Based on Hoopa Valley and subsequent rulings by the D.C. Circuit and other courts, it appears that withdrawal and resubmission could constitute waiver when it results from an agreement between the certifying authority and the applicant to avoid the one-year deadline. An applicant’s unilateral withdrawal and resubmission may not form the basis of a waiver finding if the certifying authority has taken some kind of action, such as denying an application without prejudice, but courts have not yet defined what would count as action in that scenario. 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.81 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.82
The 2020 Final Rule also established a pre-filing meeting process, which was intended to ensure 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 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.needs with the project proponent before the statutory timeframe for review began.7283 Specifically, Specifically,
project proponents were required to submit a request to the certifying authority for a pre-filing project proponents were required to submit a request to the certifying authority for a pre-filing
meeting at least 30 days prior to submitting a certification request.meeting at least 30 days prior to submitting a certification request.7384 Per the rule, the certifying Per the rule, the certifying
authority had discretion as to whether to grant or respond to the meeting request.authority had discretion as to whether to grant or respond to the meeting request.7485 In the In the
preamble to the 2020 Final Rule, EPA noted that early engagement, including through a pre-filing preamble to the 2020 Final Rule, EPA noted that early engagement, including through a pre-filing
meeting, could help improve the quality of information provided to the certifying authority and meeting, could help improve the quality of information provided to the certifying authority and
could reduce the need to make additional information requests of the project proponent during the could reduce the need to make additional information requests of the project proponent during the
certification timeframe.certification timeframe.7586
The preamble to the 2020 Final Rule also stated that “if a project proponent withdraws a The preamble to the 2020 Final Rule also stated 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
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.”7687
However, the preamble also clarified that the agency “expects that voluntary withdrawal by the However, the preamble also clarified 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.”7788 In such circumstances, if the project proponent In such circumstances, if the project proponent
wanted a certification in the future, they would have to submit a new certification request and wanted 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~~
~~pre-filing meeting request requirement in the rule.78~~

~~67 3 F.4th 655, 669 (4th Cir. 2021).~~
~~68 Ibid. at 669-70.~~
~~69 Ibid.~~
70 80 Id. at *10. 81 2020 Final Rule, p. 42261. 2020 Final Rule, p. 42261.
7182 2020 Final Rule, p. 42286. 2020 Final Rule, p. 42286.
7283 2020 Final Rule, p. 42241. 2020 Final Rule, p. 42241.
7384 2020 Final Rule, p. 42285. 2020 Final Rule, p. 42285.
7485 Ibid. Ibid.
7586 2020 Final Rule, p. 42242. 2020 Final Rule, p. 42242.
7687 2020 Final Rule, pp. 42246-42247. 2020 Final Rule, pp. 42246-42247.
~~77 Ibid.~~
7888 Ibid. Ibid.
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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.89 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 Sections proposed activity will comply with specific enumerated sections of the CWA, including Sections
301, 302, 303, 306, and 307.301, 302, 303, 306, and 307.7990 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.8091
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 certification. The Senate Committee on Environment and Public Works reviewing a request for certification. The Senate Committee on Environment and Public Works
held hearings in the 115th and 116th sessions of Congress that included debate over the scope of held hearings in the 115th and 116th sessions of Congress that included debate over the scope of
considerations during certification.considerations during certification.8192 Some groups have argued that Congress intended for the 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 review to focus on water quality impacts and assert that, in recent years, some states have
overstepped their authority by also considering non-water-quality environmental impacts, such as overstepped their authority by also considering non-water-quality environmental impacts, such as
greenhouse gas emissions.greenhouse gas emissions.8293 Other groups argue that Congress intended for certifying authorities 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 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 that the denials that states have issued have been well-supported and necessary to protect state
water quality.water quality.8394

7989 Ibid. 90 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.
8091 33 U.S.C. §1341(d). 33 U.S.C. §1341(d).
8192 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. U.S. Congress, Senate Committee on Environment and Public Works, 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, , 116th Cong., 2nd sess., November 19, 2019,
S.Hrg. 116-145. S.Hrg. 116-145.
8293 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.
8394 For example, see Letter from Association of State Wetland Managers to Anna Wildeman, Deputy Assistant 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 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~~
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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.8495 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.8596
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.8697 The permit applicant challenged the denials in The permit applicant 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.8798 Additionally, Montana and Wyoming sought Additionally, Montana and Wyoming sought
review of Washington’s denial of the water quality certification directly in the U.S. Supreme review of Washington’s denial of the water quality certification directly in the U.S. Supreme
Court.Court.8899 The parties agreed to move for dismissal of the federal and state lawsuits after the permit 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 applicant filed for bankruptcy and represented that it no longer had funds to continue operation of
the terminal site.the terminal site.89100 The Supreme Court also declined to hear Montana and Wyoming’s The Supreme Court also declined to hear Montana and Wyoming’s
complaint.complaint.90101
The New York State Department of Environmental Conservation (NYSDEC) also denied a series The New York State Department of Environmental Conservation (NYSDEC) also denied a series
of Section 401 water quality certification applications for the construction of a natural gas of Section 401 water quality certification applications for the construction of a natural gas
pipeline in Raritan Bay.pipeline in Raritan Bay.91102 Most recently, the Department denied an application based on the Most recently, the Department denied an application based on the
~~project 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 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. 95 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.
8596 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.
8697 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. March 17, 2020). Terminals-Longview, LLC v. Washington, No. 52215-2-II, 2020 WL 1651475 (Wash. Ct. App. March 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.
8798 See Brief for the United States as Amicus Curiae, Montana v. Washington, No. 22O152, at 4-7 (U.S. May 25, 2021). See Brief for the United States as Amicus Curiae, Montana v. Washington, No. 22O152, at 4-7 (U.S. May 25, 2021).
8899 Montana v. Washington, No. 22O152, Bill of Complaint ¶ 44 (U.S. Jan. 21, 2020). The Supreme Court has original 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. 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). §1251(a).
89100 See Order, Lighthouse Res., Inc. v. Inslee, No. 19-35415, Doc. No. 93 (9th Cir. Mar. 23, 2021); Agreed Order of 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 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 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). (Wash. Super. Ct. May 10, 2021).
90101 Montana v. Washington, Montana v. Washington, motion for leave to file a bill of complaint petition denied, 141 S. Ct. 2848, 141 S. Ct. 2848 (U.S. June 28, (U.S. June 28,
2021) (mem.). 2021) (mem.).
91102 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/~~
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project proponent’s failure to demonstrate that the project would comply with applicable water quality standards.103 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.93104 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.94105 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.”95106 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.96107
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.97108 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.”98109 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
~~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~~

103 Letter from Daniel Whitehead to Joseph Dean, May 15, 2020, pp. 3-13, https://www.dec.ny.gov/docs/permits_ej_operations_pdf/nesewqcdenial05152020.pdf#page=3. permits_ej_operations_pdf/nesewqcdenial05152020.pdf#page=3.
93104 Ibid. Ibid. at, p. 14. 14.
94105 Ibid. Ibid.
95106 Ibid. Ibid. at, p. 16. 16.
96107 2020 Final Rule, pp. 42254-42256. 2020 Final Rule, pp. 42254-42256.
97108 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).
98109 PUD No. 1 of Jefferson County, 511 U.S., 511 U.S. at 711-12. at 711-12.
~~99 Ibid. at 711.~~
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and appropriate state law requirements.110 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.”~~100~~111
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.~~101~~112
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.”~~102~~113 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.”~~103~~114
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).”~~104~~115 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.”~~105~~116 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.”~~106~~117 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.”~~107~~118
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.~~108~~119
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
~~water quality impacts.”109 Also, EPA more narrowly recommended that conditions “be limited to~~

~~100 Ibid~~ 110 Id. at 711. 111 Id. at 712 (quoting 40 C.F.R. §121.2(a)(3) (1993)). . at 712 (quoting 40 C.F.R. §121.2(a)(3) (1993)).
~~101 Ibid~~112 Id. at 712. . at 712.
~~102 Ibid~~113 Id. at 713. . at 713.
~~103 Ibid~~114 Id. at 719. . at 719.
~~104~~115 2010 Guidance, p. 18. , p. 18.
~~105~~116 Ibid Ibid.
~~106~~117 2010 Guidance, p. 23. , p. 23.
~~107~~118 Ibid. Ibid.
~~108~~119 2010 Guidance, p. 21. , p. 21.
~~109 2019 Guidance, p. 4.~~
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water quality impacts.”120 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.”~~110~~121
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.”~~111~~122 The The
2020 Final Rule limited the scope of a Section 401 certification to assuring that a discharge from 2020 Final Rule limited the scope of a Section 401 certification to assuring that a discharge from
a federally licensed or permitted activity would comply with “water quality requirements.”a federally licensed or permitted activity would comply with “water quality requirements.”~~112~~123 The The
rule also newly defined the term rule also newly defined the term water quality requirements in a manner that limited the scope of in a manner that limited the scope of
water quality impacts that states may consider in their certification review, as well as the scope of water quality impacts that states may consider in their certification review, as well as the scope of
conditions the state may impose. Specifically, the rule defined “water quality requirements” as conditions the state may impose. Specifically, the rule defined “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).~~113~~124
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—would comply activity—which encompasses the project as a whole as well as the discharge—would comply
with water quality requirements, which was neither defined explicitly in Section 401 nor the with water quality requirements, which was neither defined explicitly in Section 401 nor the
regulations.regulations.~~114~~125 In addition, as EPA acknowledged in the 2020 Final Rule’s preamble, the agency In addition, as EPA acknowledged 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.”~~115~~126
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.”~~116~~127 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.”~~117~~128 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.
~~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~~ 120 2019 Guidance, p. 4. 121 Ibid. 122 33 U.S.C. §1341. 123 2020 Final Rule, p. 42285. 2020 Final Rule, p. 42285.
~~113~~124 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.
~~114~~125 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.
~~115~~126 2020 Final Rule, pp. 42234-42235. 2020 Final Rule, pp. 42234-42235.
~~116~~127 547 U.S. 370 (2006). 547 U.S. 370 (2006).
~~117 Ibid~~128 Id. at 375-76. . at 375-76.
~~118 2020 Final Rule, p. 42234.~~
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The 2020 Final Rule limited the application of Section 401 to point source discharges into waters of the United States.129 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 of the certifying authority’s review and consideration of conditions. For example, the certifying of the certifying authority’s review and consideration of conditions. For example, the certifying
authority was no longer able to address water quality-related impacts from the project that were authority was no longer able to address water quality-related impacts from the project that were
tangential to the discharge. Stakeholders asserted that such water quality impacts could include tangential to the discharge. Stakeholders asserted 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.~~119~~130
In addition, the changes in the 2020 Final Rule meant that the scope of the certifying authority’s In addition, the changes in the 2020 Final Rule meant that the scope of the certifying authority’s
review and consideration of conditions could not include impacts to nonfederal waters. Some review and consideration of conditions could not include impacts to nonfederal waters. Some
stakeholders expressed particular concern about this change in light of the final rule EPA and stakeholders 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 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.~~120~~131 However, in June 2021, EPA issued a However, in June 2021, EPA issued a
notice of its intention to revise the 2020 Final Rule.notice of its intention to revise the 2020 Final Rule.~~121~~132 Additionally, on October 21, 2021, a Additionally, on October 21, 2021, a
federal district court vacated the 2020 Final Rule.federal district court vacated the 2020 Final Rule.~~122~~133
The changes in the 2020 Final Rule also narrowed the scope of review and conditions to focus on The changes in the 2020 Final Rule also narrowed 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 was “aware of impacts. In the preamble to the 2020 Final Rule, EPA stated that the agency was “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.”~~123~~134 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, which considered among other things FERC’s failure to consider Millennium Pipeline Company, which considered among other things FERC’s failure to consider
or quantify the effects of downstream greenhouse gas emissions in its environmental review of or quantify the effects of downstream greenhouse gas emissions in its environmental review of
the project.the project.~~124~~135 The preamble also stated that the agency is aware that some certifications have The preamble also stated that the agency is aware that some certifications have
included conditions that may be unrelated to water quality, including requirements for included conditions that may be unrelated to water quality, including requirements for
recreational trails, public access for recreation, or one-time and recurring payments to state recreational trails, public access for recreation, or one-time and recurring payments to state
agencies for improvements unrelated to the proposed project.agencies for improvements unrelated to the proposed project.~~125~~136 EPA emphasized that the 2020 EPA emphasized that the 2020
Final Rule clarified that the scope of the certification review and the scope of conditions that were Final Rule clarified that the scope of the certification review and the scope of conditions that were
appropriate for inclusion in a certification were limited to ensuring that the discharge from a appropriate for inclusion in a certification were limited to ensuring that the discharge from a
~~federally licensed or permitted activity would comply with water quality requirements, as newly~~
~~defined in the rule.~~

~~119~~ 129 2020 Final Rule, p. 42234. 130 2020 Final Rule, p. 42252. 2020 Final Rule, p. 42252.
~~120~~131 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 22250, April 21, 2020. For example, the Navigable Waters Protection Rule ~~narrows~~narrowed the definitions of certain 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 response to precipitation events) were sometimes considered WOTUS under prior regulations, but ~~are~~were excluded from 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 WOTUS under prior regulations, the Navigable Waters Protection Rule ~~limits~~limited the definition to include only those 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.
~~121~~132 EPA, “Notice of Intention To Reconsider and Revise the Clean Water Act Section 401 Certification Rule,” 86 EPA, “Notice of Intention To Reconsider and Revise the Clean Water Act Section 401 Certification Rule,” 86
Federal Register 29541, June 2, 2021. 29541, June 2, 2021. See also EPA, “EPA Takes Action to Bolster State and Tribal Authority to 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-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. state-and-tribal-authority-protect-water-resources-0.
~~122~~133 Order, Order, In re Clean Water Act Rulemaking, No. 3:20-cv-04636, Doc. No. 173 (N.D. Cal. Oct. 21, 2021). Clean Water Act Rulemaking, No. 3:20-cv-04636, Doc. No. 173 (N.D. Cal. Oct. 21, 2021).
~~123~~134 2020 Final Rule, p. 42256. 2020 Final Rule, p. 42256.
~~124~~135 Ibid. Ibid.
~~125~~136 2020 Final Rule, p. 42257. 2020 Final Rule, p. 42257.
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federally licensed or permitted activity would comply with water quality requirements, as newly defined in the rule. 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 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 addressing certification timeframes and the scope of certification. Some of these changes
formalized current practice or clarified timelines around specific requirements and practice. formalized current practice or clarified timelines around specific requirements and practice.
Others represented more substantive changes from the 1971 regulations and practice, including a Others represented 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 new federal review process for denials and conditions and a new interpretation of enforcement
roles. roles.
Federal Review Process for Denials and Conditions
The 2020 Final Rule addressed the role of federal licensing and permitting agencies in the The 2020 Final Rule addressed 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.~~126~~137
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.~~127~~138
The 2020 Final Rule required a certifying authority to provide written reasons for the denial or The 2020 Final Rule required 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.~~128~~139 The 2020 Final Rule also newly required the federal permitting or licensing agency to The 2020 Final Rule also newly required the federal permitting or licensing agency to
determine whether the state denial or certification conditions complied with the procedural determine whether the state denial or certification conditions complied 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
determined that a certification denial did not include three elements as required in the rule, the determined that a certification denial did not include three elements as required in the rule, the
federal agency was required to determine that the certifying authority “fail[ed] or refuse[d] to act” federal agency was required to determine that the certifying authority “fail[ed] or refuse[d] to act”
and therefore waived certification.and therefore waived certification.~~129~~140 Similarly, federal licensing and permitting agencies were Similarly, federal licensing and permitting agencies were
required to determine whether certification conditions included the two minimum elements required to determine whether certification conditions included the two minimum elements
required by the 2020 Final Rule.required by the 2020 Final Rule.~~130~~141 If the federal agency determined that certification conditions If the federal agency determined that certification conditions
did not include the two elements, they similarly were required to determine that the certifying did not include the two elements, they similarly were required to determine that the certifying
authority “fail[ed] or refuse[d] to act” and the deficient certification condition would be waived. authority “fail[ed] or refuse[d] to act” and the deficient certification condition would be waived.
~~The preamble to the 2020 Final Rule clarified that the federal agency review “is procedural in~~
~~nature and does not extend to substantive evaluations” of certifications, conditions, and denials.131~~

~~126~~137 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).
~~127~~138 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).
~~128~~139 2020 Final Rule, p. 42286. 2020 Final Rule, p. 42286.
~~129~~140 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.
~~130~~141 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.
~~131 2020 Final Rule, p. 42267. Note that this aspect of the 2020 Final Rule differs from the 2019 Proposed Rule, which~~
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Congressional Research Service 18 Clean Water Act Section 401: Overview and Recent Developments The preamble to the 2020 Final Rule clarified that the federal agency review “is procedural in nature and does not extend to substantive evaluations” of certifications, conditions, and denials.142 Enforcement
The 2020 Final Rule also newly provided that the federal licensing or permitting agency (rather The 2020 Final Rule also newly provided that the federal licensing or permitting agency (rather
than the certifying authority) would be responsible for enforcing certification conditions than the certifying authority) would be responsible for enforcing certification conditions
incorporated into a federal license or permit.incorporated into a federal license or permit.~~132~~143 The preamble to the 2020 Final Rule stated that The preamble to the 2020 Final Rule stated 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.”~~133~~144 Accordingly, it stated that Accordingly, it stated that
EPA “is interpreting the CWA to clarify that this enforcement role is reserved to the federal EPA “is interpreting the CWA to clarify that this enforcement role is reserved to the federal
agency issuing the federal license or permit.”agency issuing the federal license or permit.”~~134~~145 This differs from 1971 regulations and practice, This differs from 1971 regulations and practice,
which did not expressly clarify enforcement roles. According to an EPA webinar and the 2010 which 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 Guidance, depending on the state, both the certifying authorities and the federal agencies played a
role in enforcement under the 1971 regulations and in practice.role in enforcement under the 1971 regulations and in practice.~~135~~146 EPA expressly declined to opine EPA expressly declined to opine
in the 2020 Final Rule on whether the CWA authorizes citizen suits to enforce certification in the 2020 Final Rule on whether the CWA authorizes citizen suits to enforce certification
conditions pursuant to Section 505 of the statute.conditions pursuant to Section 505 of the statute.~~136~~147
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.~~137~~148 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.~~138~~149 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.~~139~~150 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 did not implicate Section not preempted by federal law), and asserted that the rule therefore did not implicate Section
510.510.~~140~~151 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.~~141~~152
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.142~~

142 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, 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 conditions, and denials were within the scope of certification. The final rule does not include the additional substantive
federal review requirement. federal review requirement.
~~132~~143 2020 Final Rule, p. 42275. 2020 Final Rule, p. 42275.
~~133~~144 Ibid. Ibid.
~~134~~145 Ibid. Ibid.
~~135~~146 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.
~~136~~147 2020 Final Rule, p. 42277. 2020 Final Rule, p. 42277.
~~137~~148 2020 Final Rule, p. 42275. 2020 Final Rule, p. 42275.
~~138~~149 Ibid. Ibid.
~~139~~150 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.
~~140~~151 2020 Final Rule, p. 42276. 2020 Final Rule, p. 42276.
~~141 Ibid.~~
~~142~~152 Ibid. Ibid.
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conditions would provide sufficient clarity to enable federal agencies to effectively enforce conditions.153 Stakeholder Views and Legal Challenges
Both the 2019 Proposed Rule and the 2020 Final Rule garnered interest from stakeholder groups. Both the 2019 Proposed Rule and the 2020 Final Rule garnered interest from stakeholder groups.
EPA received more than 125,000 comments on the proposed rule “from a broad spectrum of EPA received more than 125,000 comments on the proposed rule “from a broad spectrum of
interested parties.”interested parties.”~~143~~154 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.~~144~~155 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.~~145~~156
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.~~146~~157 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.~~147~~158 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.”~~148~~159 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.~~149~~160
Various states, tribes, and environmental groups filed five lawsuits challenging the 2020 Final Various states, tribes, and environmental groups filed five lawsuits challenging the 2020 Final
Rule. Three suits—filed by a coalition of environmental groups, a group of 20 states and the 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.150 Other~~

~~143~~ 153 Ibid. 154 2020 Final Rule, p. 42213. 2020 Final Rule, p. 42213.
~~144~~155 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.
~~145~~156 2020 Final Rule, p. 42255. 2020 Final Rule, p. 42255.
~~146~~157 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.
~~147~~158 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.
~~148~~159 33 U.S.C. §1251(b). 33 U.S.C. §1251(b).
~~149~~160 2020 Final Rule, p. 42226. Congressional Research Service 20 Clean Water Act Section 401: Overview and Recent Developments 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.161 Other ~~2020 Final Rule, p. 42226.~~
~~150 Complaint, Am. Rivers v. Wheeler, No. 3:20-cv-04636, Doc. No. 1 (N.D. Cal. July 13, 2020); 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~~
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environmental groups also filed suits in the U.S. District Courts for the Eastern District of environmental groups also filed suits in the U.S. District Courts for the Eastern District of
Pennsylvania and the District of South Carolina.Pennsylvania and the District of South Carolina.~~151~~162 A group of eight states and several energy A group of eight states and several energy
industry associations intervened in the lawsuits in support of EPA.industry associations intervened in the lawsuits in support of EPA.~~152~~163
In general, the plaintiffs alleged that the 2020 Final Rule violated the Administrative Procedure In general, the plaintiffs alleged that the 2020 Final Rule violated the Administrative Procedure
Act (APA), the CWA, and the Tenth Amendment. Among other things, they argued that the rule 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 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 restricting the scope and process for their review of certification applications, and by excluding
certifying authorities from the enforcement of certification conditions.certifying authorities from the enforcement of certification conditions.~~153~~164 The plaintiffs also The plaintiffs also
argued that the rule impermissibly expanded federal authority, including by authorizing federal argued that the rule impermissibly expanded federal authority, including by authorizing federal
permitting and licensing agencies to review and overrule certification decisions.permitting and licensing agencies to review and overrule certification decisions.~~154~~165 With respect to With respect to
the 2020 Final Rule’s limitations on the scope of certification review, some plaintiffs alleged that 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 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 whole on state water quality, and that the narrowed scope of certification review contradicted
both the text of the CWA and Supreme Court precedent.both the text of the CWA and Supreme Court precedent.~~155~~166 Finally, the Suquamish Tribe argued Finally, the Suquamish Tribe argued
that EPA failed to satisfy its tribal consultation obligations during the development of the 2020 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 Final Rule as required by an executive order and EPA policy document governing consultation
and coordination with tribal governments.and coordination with tribal governments.~~156~~167
None of the three courts issued opinions on the merits of the plaintiffs’ claims. As discussed in None of the three courts issued opinions on the merits of the plaintiffs’ claims. As discussed in
further detail below, all three courts 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.~~

remanded the 2020 Final Rule to EPA.168 One court vacated 161 Complaint, Am. Rivers v. Wheeler, No. 3:20-cv-04636, Doc. No. 1 (N.D. Cal. July 13, 2020); 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 Rulemaking, No. 3:20-cv-04636, Doc. No. 36 (N.D. Cal. October 23, 2020). Rulemaking, No. 3:20-cv-04636, Doc. No. 36 (N.D. Cal. October 23, 2020).
~~151~~162 Complaint, Del. Riverkeeper Network v. EPA, No. 2:20-cv-03412, Doc. No. 1 (E.D. Pa. July 13, 2020); Complaint, 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). S.C. Coastal Conservation League v. Wheeler, No. 2:20-cv-03062, Doc. No. 1 (D.S.C. August 26, 2020).
~~152~~163 Order Granting Unopposed Intervention, Order Granting Unopposed Intervention, In re Clean Water Act Rulemaking, 3:20-cv-04636, Doc. No. 39 (N.D. 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, 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-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 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 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. 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). Oct. 7, 2020, Oct. 30, 2020, Jan. 13, 2021).
~~153~~164 E.g., First Amended Complaint, Am. Rivers v. Wheeler, No. 3:20-cv-04636, Doc. No. 75, ¶¶ 90-95 (N.D. Cal. Sept. E.g., First Amended Complaint, Am. Rivers v. Wheeler, No. 3:20-cv-04636, Doc. No. 75, ¶¶ 90-95 (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, 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. 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, 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). 14 (D.S.C. Aug. 26, 2020).
~~154~~165 E.g., First Amended Complaint, Am. Rivers v. Wheeler, ¶¶ 126-32; Complaint, Suquamish Tribe v. Wheeler, No. E.g., First Amended Complaint, Am. Rivers v. Wheeler, ¶¶ 126-32; Complaint, Suquamish Tribe v. Wheeler, No.
3:20-cv-06137, Doc. No. 1, ¶ 4 (N.D. Cal. August 31, 2020); Complaint, Del. Riverkeeper Network v. EPA, ¶¶ 243-59; 3:20-cv-06137, Doc. No. 1, ¶ 4 (N.D. Cal. August 31, 2020); Complaint, Del. Riverkeeper Network v. EPA, ¶¶ 243-59;
Complaint, S.C. Coastal Conservation League v. Wheeler, ¶¶ 197-200. Complaint, S.C. Coastal Conservation League v. Wheeler, ¶¶ 197-200.
~~155~~166 E.g., Complaint, California v. Wheeler, ¶¶ 1.10-11; Complaint, S.C. Coastal Conservation League v. Wheeler, ¶¶ 1, E.g., Complaint, California v. Wheeler, ¶¶ 1.10-11; Complaint, S.C. Coastal Conservation League v. Wheeler, ¶¶ 1,
165. 165.
~~156~~167 Complaint, Suquamish Tribe v. Wheeler, ¶ 9. See also Executive Order 13175, “Consultation and Coordination with Complaint, Suquamish Tribe v. Wheeler, ¶ 9. See also Executive Order 13175, “Consultation and Coordination with
Indian Tribal Governments,” 65Indian 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. , May 4, 2011.
~~157~~168 Order, S.C. Coastal Conservation League v. Wheeler, No. 2:20-cv-03062, Doc. No. 69 (D.S.C. Aug. 2, 2021); 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 Order, Del. Riverkeeper Network v. EPA, No. 2:20-cv-03412, Doc. No. 75 (Aug. 6, 2021); Order re Motion for
Remand Without Vacatur, Remand Without Vacatur, In re Clean Water Act Rulemaking, No. 3:20-cv-04636, Doc. No. 173 (N.D. Cal. Oct. 21, Clean Water Act Rulemaking, No. 3:20-cv-04636, Doc. No. 173 (N.D. Cal. Oct. 21,
~~2021).~~
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the rule, which brought the 1971 implementing regulations into effect until the Supreme Court stayed the vacatur order pending appeal in April 2022, thereby bringing the 2020 Final Rule back into effect.169 Actions Under the Biden Administration
President Biden’s actions immediately upon taking office affected the reconsideration of the 2020 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 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, directed the heads of all agencies to “immediately review all existing regulations, orders,
guidance documents, policies, and any other similar agency actions (agency actions) guidance documents, policies, and any other similar agency actions (agency actions)
promulgated, issued, or adopted” during the Trump Administration “that are or may be 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.inconsistent with, or present obstacles to, the policy set forth” in the order.~~158~~170 The executive order The executive order
further stated “for any such actions identified by the agencies, the heads of agencies shall, as 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 appropriate and consistent with applicable law, consider suspending, revising, or rescinding the
agency actions.”agency actions.”~~159~~171 In conjunction with the executive order, the Biden Administration included 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 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. were to review in accordance with the executive order. ~~160~~172
In June 2021, EPA issued a notice of intention to revise the 2020 Final Rule. In June 2021, EPA issued a notice of intention to revise the 2020 Final Rule.~~161~~173 The agency stated The agency stated
in a related press release that, after determining that the rule “erodes state and Tribal authority,” it 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 “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 balance of state, Tribal, and federal authorities while retaining elements that support efficient and
effective implementation of Section 401.”effective implementation of Section 401.”~~162~~174 EPA hosted virtual listening sessions with EPA hosted virtual listening sessions with
stakeholders in June 2021 to gain input on potential approaches for revisions and also solicited stakeholders in June 2021 to gain input on potential approaches for revisions and also solicited
written pre-proposal input.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~~175 In light of its decision to revise the rule, EPA asked courts to remand the 2020 Final Rule to the agency , EPA asked courts to remand the 2020 Final Rule to the agency
while it developed a new regulation.while it developed a new regulation.~~165~~176 EPA sought remand without vacatur, which would have 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 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~~ 2021). 169 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); Order on Application for Stay, Louisiana v. Am. Rivers, No. 21A539 (U.S. Apr. 6, 2022). 170 Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the
Climate Crisis,” 86Climate Crisis,” 86 Federal Register 7037-7043, January 20, 2021. 7037-7043, January 20, 2021.
~~159~~171 Ibid. Ibid.
~~160~~172 The White House, “Fact Sheet: List of Agency Actions for Review,” press release, January 20, 2021, 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-https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-
review/. review/.
~~161~~173 EPA, “Notice of Intention To Reconsider and Revise the Clean Water Act Section 401 Certification Rule,” 86 EPA, “Notice of Intention To Reconsider and Revise the Clean Water Act Section 401 Certification Rule,” 86
Federal Register 29541, June 2, 2021. 29541, June 2, 2021.
~~162~~174 EPA, “EPA Takes Action to Bolster State and Tribal Authority to Protect Water Resources,” press release, May 27, 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. 2021, https://www.epa.gov/newsreleases/epa-takes-action-bolster-state-and-tribal-authority-protect-water-resources-0.
~~163~~175 EPA, “Upcoming Outreach and Engagement on CWA Section 401 Certification,” https://www.epa.gov/cwa-401/ EPA, “Upcoming Outreach and Engagement on CWA Section 401 Certification,” https://www.epa.gov/cwa-401/
upcoming-outreach-and-engagement-cwa-section-401-certificationupcoming-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~~. The administrative docket for pre-proposal input closed on August 2, 2021. 176 Motion for Remand Without Vacatur, Motion for Remand Without Vacatur, In re Clean Water Act Rulemaking, No. 3:20-cv-04636, Doc. No. 143 (N.D. 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. 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. 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). 2:20-cv-03062, Doc. No. 67 (D.S.C. July 1, 2021).
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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 resources on potentially unnecessary litigation.resources on potentially unnecessary litigation.~~166~~177 Two courts granted EPA’s motion and Two courts granted EPA’s motion and
remanded the rule without vacatur.remanded the rule without vacatur.~~167~~178
On October 21, 2021, the U.S. District Court for the Northern District of California granted 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.EPA’s motion for remand in the three consolidated cases in that court, but also vacated the rule.~~168~~179
While the court did not issue a ruling on the merits of the 2020 Final Rule, it identified 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 problematic aspects of the rule, including “substantial concerns” that EPA itself had raised in its
request for remand.request for remand.~~169~~180 In particular, the court noted that the rule’s revised scope of certification In particular, the court noted that the rule’s revised scope of certification
was “antithetical” to the Supreme Court’s decision in was “antithetical” to the Supreme Court’s decision in PUD No. 1, and found that EPA had not , and found that EPA had not
“adequately explain[ed] in the preamble how it could so radically depart from what the Supreme “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.”Court dubbed the most reasonable interpretation of the statute.”~~170~~181 According to the court, these According to the court, these
and other factors created “significant doubt ... that EPA correctly promulgated the rule.”and other factors created “significant doubt ... that EPA correctly promulgated the rule.”~~171~~182
Additionally, the court found that vacatur would not be unduly disruptive because the rule had not 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 yet engendered institutional reliance, and that remand without vacatur would likely result in
“significant environmental harms.”“significant environmental harms.”~~172~~183
After the California district court remanded and vacated the 2020 Final Rule, EPA updated its 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 website to indicate that the vacatur applied nationwide and required a temporary return to EPA’s
1971 regulations until EPA 1971 regulations until EPA ~~finalizes~~finalized a new certification rule. a new certification rule.~~173 Accordingly, the 1971 regulations~~
~~are now in effect nationwide.~~184 EPA also published a “questions and answers” document in EPA also published a “questions and answers” document in
December 2021 to clarify the applicable requirements and procedures following the vacatur.December 2021 to clarify the applicable requirements and procedures following the vacatur.~~174~~
185 Among other clarifications, EPA indicated that the agency generally Among other clarifications, EPA indicated that the agency generally ~~does~~ did not expect to revisit not expect to revisit
certifications issued while the 2020 Final Rule was effective, and that pending certification certifications issued while the 2020 Final Rule was effective, and that pending certification
requests requests ~~should~~would be processed in accordance with the 1971 regulations. be processed in accordance with the 1971 regulations.~~175~~186
States and industry groups that intervened in the litigation in support of the 2020 Final Rule 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 appealed the remand and vacatur order, and those appeals are now pending in the U.S. Court of
Appeals for the Ninth Circuit.Appeals for the Ninth Circuit.~~176~~187 The district court denied a request to stay the remand and 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 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~~ 177 E.g., Motion for Remand Without Vacatur Memorandum of Points and Authorities, E.g., Motion for Remand Without Vacatur Memorandum of Points and Authorities, In re Clean Water Act Clean Water Act
Rulemaking, at 7-9. Rulemaking, at 7-9.
~~167~~178 Order, S.C. Coastal Conservation League v. Wheeler, No. 2:20-cv-03062, Doc. No. 69 (D.S.C. Aug. 2, 2021); 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, Del. Riverkeeper Network v. EPA, No. 2:20-cv-03412, Doc. No. 75 (Aug. 6, 2021).
~~168~~179 Order re Motion for Remand Without Vacatur, Order re Motion for Remand Without Vacatur, In re Clean Water Act Rulemaking, No. 3:20-cv-04636, Doc. No. Clean Water Act Rulemaking, No. 3:20-cv-04636, Doc. No.
173 (N.D. Cal. Oct. 21, 2021). 173 (N.D. Cal. Oct. 21, 2021).
~~169 Ibid~~180 Id. at 12-14. . at 12-14.
~~170 Ibid~~181 Id. at 12-13. . at 12-13.
~~171 Ibid~~182 Id. at 14-15. . at 14-15.
~~172 Ibid~~183 Id. at 16. . at 16.
~~173~~184 EPA, “2020 Clean Water Act Section 401 Certification Rule,” https://www.epa.gov/cwa-401/2020-clean-water-act- EPA, “2020 Clean Water Act Section 401 Certification Rule,” https://www.epa.gov/cwa-401/2020-clean-water-act-
section-401-certification-rule-0. section-401-certification-rule-0.
~~174~~185 EPA, 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-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. 2020-cwa-section-401-certification-rule-vacatur-12-17-21-508.pdf.
~~175~~186 Ibid. Ibid.
~~176~~187 Am. Rivers v. Am. Petroleum Inst., No. 21-16958 (9th Cir. appeal filed Nov. 22, 2021); Am. Rivers v. Nat’l 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. 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.~~
appeal filed Nov. 22, 2021). Congressional Research Service 23 Clean Water Act Section 401: Overview and Recent Developments not align with the public interest.”188 The Ninth Circuit also denied a stay request, ruling that the appellants had not demonstrated a likelihood of irreparable harm absent a stay.189 On April 6, 2022, the Supreme Court issued an unsigned order granting an application for a stay pending appeal.190 The effect of the Court’s order is to reinstate the 2020 Final Rule until the appeal is resolved and the Supreme Court either denies certiorari (if one or more parties seeks Supreme Court review) or issues a judgment.191 If EPA issues a new final rule before that time, the new rule would supersede the 2020 Final Rule. In June 2022, EPA proposed a new rule to update the regulatory requirements for Section 401 certification.192 The proposed 2022 rule retains some aspects of the 2020 Final Rule; proposes to return to certain elements from the 1971 regulations and practice (informed by relevant court decisions); and proposes to include new changes to the rule to reflect stakeholder (e.g., state and tribal) feedback on certain aspects of the 2020 Final Rule. The comment period for the proposed rule closed on August 8, 2022. EPA estimates that it will issue a final rule by March 2023, according to its Spring 2022 Regulatory Agenda.193 Congressional Interest
Many Members have shown interest in Section 401 implementation in recent sessions of 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 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 a legislative hearing on potential reforms to Section 401, including legislation introduced by the
committee chairman (S. 1087).committee chairman (S. 1087).~~178~~194 In the 116th Congress, S. 1087 and H.R. 2205, identical bills 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 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 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 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 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 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 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 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 issue and introduced similar legislation (identical bills—S. 3303 and H.R. 6889) in the 115th
Congress.Congress.~~179~~195 Also in the 117th Congress, S. 3277, introduced after the California district court’s Also in the 117th Congress, S. 3277, introduced after the California district court’s
remand and vacatur order, would codify the 2020 Final Rule. 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~~ 188 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). 189 Order, In re Clean Water Act Rulemaking, No. 21-16958 (9th Cir. Feb. 24, 2022). 190 Order on Application for Stay, Louisiana v. Am. Rivers, No. 21A539 (U.S. Apr. 6, 2022). Justice Kagan, joined by Chief Justice Roberts and Justices Breyer and Sotomayor, dissented from the order granting a stay. She argued that the appellants had not showed that they would suffer irreparable harm absent a stay, in part because they had not identified any projects that had been or would likely be threatened by the district court’s ruling. Id., slip op. at 2. 191 Id., slip op. at 1. 192 Environmental Protection Agency, “Clean Water Act Section 401 Water Quality Certification Improvement Rule,” 87 Federal Register 35318, June 9, 2022. 193 Office of Information and Regulatory Affairs, Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions, EPA/Office of Water, Clean Water Act Section 401: Water Quality Certification, RIN No. 2040-AG12. 194 U.S. Congress, Senate Committee on Environment and Public Works, 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. , 116th Cong., 2nd sess., November 19, 2019, S.Hrg. 116-145.
~~179~~195 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.~~
~~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~~
Congressional Research Service 24 Clean Water Act Section 401: Overview and Recent Developments 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.196 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.
Senate Hearing on Section 401 Reforms
During the November 19, 2019, hearing on Section 401 reform, Members in the 116th Congress 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 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 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 Section 401 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 provision to block certifications in a responsible way, some are abusing their authority under the provision to block
critical energy infrastructure projects.critical energy infrastructure projects.~~181~~197 Two state witnesses (the governors of Wyoming and Two state witnesses (the governors of Wyoming and
Oklahoma) pointed to examples, such as the Oklahoma) pointed to examples, such as the ~~state~~State of Washington’s certification denial for the of Washington’s certification denial for the
Millennium coal export terminal, of states considering impacts beyond the scope of water quality Millennium coal export terminal, of states considering impacts beyond the scope of water quality
in their certification review.in their certification review.~~182~~198 They indicated support for the proposed Section 401 reforms—in They indicated support for the proposed Section 401 reforms—in
particular, the reforms that would clarify the scope of reviews, clarify timelines, and require that 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.certifying authorities provide a clear basis for any certification denials.~~183~~199
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.~~184~~200 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.~~185~~201 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.~~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~~ 202 August 16, 2018, S.Hrg. 115-344. 196 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. 197 S.Hrg. 116-145, pp. 1, 111-112, 114-115. 198 S.Hrg. 116-145, pp. 6 and 20. 199 S.Hrg. 116-145, pp. 7 and 20. 200 S.Hrg. 116-145, pp. 3, 80, 109-110, 112-113, 200. 201 S.Hrg. 116-145, p. 28. 202 S.Hrg. 116-145, pp. 28-29. Congressional Research Service 25 Clean Water Act Section 401: Overview and Recent Developments Conclusion With the reinstatement of the 2020 Final Rule following its vacatur, and the Biden Administration’s new proposed CWA Section 401 rule, CWA Section 401 rule,
stakeholders continue to debate how CWA Section 401 should be implemented. Much of the 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 “cooperative debate about Section 401 implementation centers on the appropriate balance of “cooperative
federalism” between federal agencies’ and states’ authorities. CWA Section 101(b) provides that 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 responsibilities “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 development and use and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use
(including restoration, preservation, and enhancement) of land and water resources, and to consult (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.” States and others who with the Administrator in the exercise of his authority under this Act.” States and others who
opposed the changes to the Section 401 implementing regulations included in the 2020 Final Rule opposed the changes to the Section 401 implementing regulations included in the 2020 Final Rule
argued that the changes undermined the CWA’s structure of cooperative federalism. Some argued that the changes undermined the CWA’s structure of cooperative federalism. Some
asserted that the rule inappropriately limited certifying authorities’ ability to protect their own asserted that the rule inappropriately limited certifying authorities’ ability to protect their own
water resources. During the Trump Administration, EPA argued that the 2020 Final Rule was water resources. During the Trump Administration, EPA argued that the 2020 Final Rule was
consistent with its role, established by Congress, to administer the CWA, which includes ensuring consistent with its role, established by Congress, to administer the CWA, which includes ensuring
“that there are sufficient authorities and limitations in place for States and Tribes to effectively “that there are sufficient authorities and limitations in place for States and Tribes to effectively
implement CWA implement CWA programs within the scope that Congress established.”203~~programs within the scope that Congress established.”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 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. practice that narrowed the authority of states when acting on Section 401 certification requests.
Other EPA regulatory actions during the Trump Administration might have amplified the impact Other EPA regulatory actions during the Trump Administration might have amplified the impact
of some of those changes. Notably, the Navigable Waters Protection Rule, which EPA of some of those changes. Notably, the Navigable Waters Protection Rule, which EPA
and the Army Corps of Engineers (Corps) promulgated in April 2020, narrowed the definition of “waters of the United States,” thereby promulgated in April 2020, narrowed the definition of “waters of the United States,” thereby
reducing the number of waters and wetlands that fall under the jurisdiction of the CWA. Under reducing the number of waters and wetlands that fall under the jurisdiction of the CWA. Under
the 2020 Final Rule, EPA limited the application of Section 401 to point source discharges into the 2020 Final Rule, EPA limited the application of Section 401 to point source discharges into
waters of the United States. Therefore, taken together, these two regulatory actions could have waters of the United States. Therefore, taken together, these two regulatory actions could have
had a more significant impact, some argue, than they might have when considered in isolation. had a more significant impact, some argue, than they might have when considered in isolation.
Some have been concerned that these actions could leave a regulatory gap and prevent states from Some have been concerned that these actions could leave a regulatory gap and prevent states from
weighing in on activities that may affect waters within their states. For example, activities that 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 no longer considered waters 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 would no longer require a CWA 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 responding to such concerns in the permit, nor would they require a Section 401 certification. In responding to such concerns in the
2020 Final Rule, EPA argued that the rule promoted the overarching goals of the CWA to protect 2020 Final Rule, EPA argued that the rule promoted the overarching goals of the CWA to protect
water quality while preserving states’ major role in implementing the CWA. EPA water quality while preserving states’ major role in implementing the CWA. EPA (and the Corps) also argued, in also argued, in
promulgating the Navigable Waters Protection Rule, that narrowing the scope of the CWA’s promulgating the Navigable Waters Protection Rule, that narrowing the scope of the CWA’s
jurisdiction would not reduce protection of the nation’s waters because state, local, and tribal jurisdiction would not reduce protection of the nation’s waters because state, local, and tribal
regulations and programs also provide protective coverage for water resources. EPA regulations and programs also provide protective coverage for water resources. EPA and the Corps asserted that asserted that
the Navigable Waters Protection Rule would give state, tribal, and local authorities more the Navigable Waters Protection Rule would give state, tribal, and local authorities more
flexibility to determine how best to manage waters within their borders. flexibility to determine how best to manage waters within their borders.
Like the 2020 Final Rule, the Navigable Waters Protection Rule was also vacated by federal Like the 2020 Final Rule, the Navigable Waters Protection Rule was also vacated by federal
district courts, and EPA and district courts, and EPA and ~~USACE~~the Corps have similarly announced their intentions to rescind and have similarly announced their intentions to rescind and
revise the rule.revise the rule. As204 Unlike with the 2020 Final Rule, however, there is no pending appeal of the 203 2020 Final Rule, p. 42226. 204 The Corps and EPA plan to revise the definition of “waters of the United States” (WOTUS) through a two-step process—a foundational rule to restore prior protections and an anticipated second rule to establish a durable definition. See EPA, “EPA, Army Announce Intent to Revise Definition of WOTUS,” press release, June 9, 2021, at Congressional Research Service 26 Clean Water Act Section 401: Overview and Recent Developments vacatur of the Navigable Waters Protection Rule.205 Separately, a pending Supreme Court case could affect the regulatory effort currently under way to revise the definition of “waters of the United States.”206 ~~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~~
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 any potential future new Section 401 rule. In the future, Congress may be interested in of any potential future new Section 401 rule. In the future, Congress may be interested in
overseeing the Administration’s efforts to promulgate new regulations for both Section 401 and overseeing the Administration’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 for the definition of “waters of the United States,” as well as the Administration’s implementation
of the new rules. 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~~ https://www.epa.gov/newsreleases/epa-army-announce-intent-revise-definition-wotus. On December 7, 2021, the agencies published a proposed foundational rule (Corps and EPA, “Revised Definition of ‘Waters of the United States,’” 86 Federal Register 69372, December 7, 2021). 205 Several industry groups initially appealed the vacatur of the Navigable Waters Protection Rule but voluntarily dismissed their appeal. See Order, Pasqua Yaqui Tribe v. EPA, No. 21-16791, Doc. No. 23 (9th Cir. Feb. 3, 2022). 206 For further discussion of the Navigable Waters Protection Rule litigation, see CRS Report R46927, 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; , by Laura Gatz and Kate R. Bowers; ~~and~~ CRS Legal CRS Legal
Sidebar LSB10646, Sidebar LSB10646, What’s Next for WOTUS: Recent Litigation and Next Steps in Redefining “Waters of the United
~~States”, by Kate R. Bowers.~~
States”, by Kate R. Bowers; and CRS Legal Sidebar LSB10707, Supreme Court Revisits Scope of “Waters of the United States” (WOTUS) Under the Clean Water Act, by Kate R. Bowers. Congressional Research Service Congressional Research Service
2527

Clean Water Act Section 401: Overview and Recent Developments

Appendix. CWA Section 401 (33 U.S.C. §1341)
Section 401. (a)(1) Any applicant for a Federal license or permit to conduct any activity Section 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 including, 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 discharge 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, certification from the 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 from the interstate 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 the point where the discharge originates or will originate, that any such discharge will comply
with the applicable provisions of Sections 301, 302, 303, 306, and 307 of this act. In the case of with the applicable provisions of Sections 301, 302, 303, 306, and 307 of this act. In the case of
any such activity for which there is not an applicable effluent limitation or other limitation under any such activity for which there is not an applicable effluent limitation or other limitation under
Sections 301(b) and 302, and there is not an applicable standard under Sections 306 and 307, the Sections 301(b) and 302, and there is not an applicable standard under Sections 306 and 307, the
State shall so certify, except that any such certification shall not be deemed to satisfy Section State shall so certify, except that any such certification shall not be deemed to satisfy Section
511(c) of this act. Such State or interstate agency shall establish procedures for public notice in 511(c) of this act. Such 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, the case of all 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 procedures for public 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 or interstate agency 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 the Administrator. If 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 refuses to act on a 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 exceed one year) 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 shall be waived with 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 until the certification 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 preceding 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. the State, 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 Sections 301, 302, 303, assurance that there will be compliance with the applicable provisions of Sections 301, 302, 303,
306, and 307 of this act because of changes since the construction license or permit certification 306, and 307 of this act 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 Section 301, 302, license or permit has been granted, which changes may result in violation of Section 301, 302,
303, 306, or 307 of this act. 303, 306, or 307 of this 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 Section 301, 302, 303, 306, or 307 of this act. provisions of Section 301, 302, 303, 306, or 307 of this 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 act that such facility or activity has license or permit upon the entering of a judgment under this act that such facility or activity has
been operated in violation of the applicable provisions of Section 301, 302, 303, 306, or 307 of been operated in violation of the applicable provisions of Section 301, 302, 303, 306, or 307 of
this act. this act.
(6) Except with respect to a permit issued under Section 402 of this act, in any case where (6) Except with respect to a permit issued under Section 402 of this act, 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 301 or 302 of this act, standard of performance under Section 306 of this act, or Section 301 or 302 of this act, standard of performance under Section 306 of this act, or
prohibition, effluent standard, or pretreatment standard under Section 307 of this act, and with prohibition, effluent standard, or 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 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~~Acting Section Research Manager

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