Clean Water Act Section 401: Overview and Recent Developments

Clean Water Act Section 401: Overview and
August 24, 2022
Recent Developments
Laura Gatz
Congress established the Clean Water Act (CWA) to “restore and maintain the chemical,
Analyst in Environmental
physical, and biological integrity of the Nation’s Waters.” Under CWA Section 401, any
Policy
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
Kate R. Bowers
permitting agency with a Section 401 certification. The certification, issued by the certifying
Acting Section Research
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

provisions of certain enumerated sections of the CWA. The certifying authority may grant, grant
with conditions, deny, or waive certification of proposed federal licenses or permits. Activities

that require such federal licenses or permits include hydropower projects licensed by the 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
projects, mining projects, or other development).
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
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
scope of 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 to the CWA
or implementing regulations and guidance to limit states’ Section 401 authority. Others assert that state implementation is too
lenient and may fail to block certain projects that have the potential to degrade water quality. Many states assert that Section
401 certification allows them to manage and protect the quality of waters within their states, 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 response to an
April 2019 executive order, EPA issued updated Section 401 guidance in June 2019 and published a final rule (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 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 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 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 states, tribes, and
environmental organizations filed lawsuits challenging the 2020 Final Rule.
In January 2021, President Biden issued an executive order that directed agencies to review certain Trump Administration
agency actions, including the 2020 Final Rule. EPA’s review of the rule identified a number of concerns, prompting the
agency to issue in June 2021 a notice of intention to reconsider and revise the rule. 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
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
impose (H.R. 3422/S. 1761).
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Contents
Background ..................................................................................................................................... 1
What Is Clean Water Act Section 401? ..................................................................................... 2
What Activities Require a Section 401 Certification? ............................................................... 3
Stakeholder Interest in Section 401 ........................................................................................... 3

Actions Under the Trump Administration ....................................................................................... 4
2019 Guidance .......................................................................................................................... 5
Updated Regulations/2020 Final Rule ...................................................................................... 6
Policy Issues and the 2020 Final Rule ............................................................................................. 6
Certification Timeframes .......................................................................................................... 6
“Reasonable Period of Time” .............................................................................................. 7
Start of the Certification “Clock” ....................................................................................... 8
Restarting the Certification “Clock”—Withdrawal and Resubmission .............................. 9
Scope of 401 Certifications ..................................................................................................... 12
Scope of Section 401 Review ........................................................................................... 12
Scope of Section 401 Conditions ...................................................................................... 14
2010 EPA Guidance on the Scope of Review and Conditions .......................................... 15
Scope of Certifications in the 2020 Final Rule ................................................................. 16
Other Selected Changes in the 2020 Final Rule ...................................................................... 18
Federal Review Process for Denials and Conditions ........................................................ 18
Enforcement ...................................................................................................................... 19
Stakeholder Views and Legal Challenges ............................................................................... 20
Actions Under the Biden Administration ...................................................................................... 22
Congressional Interest ................................................................................................................... 24
Water Quality Certification Improvement Act of 2021 ........................................................... 25
Senate Hearing on Section 401 Reforms ................................................................................. 25

Conclusion ..................................................................................................................................... 26

Appendixes
Appendix. CWA Section 401 (33 U.S.C. §1341) .......................................................................... 28

Contacts
Author Information ........................................................................................................................ 30

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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
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
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
their waters, other stakeholders, including some license and permit applicants (hereinafter
referred to as “project proponents”), have expressed frustration with how some states have
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
can impose when granting a certification.
Until 2020, the Section 401 implementing regulations promulgated by the Environmental
Protection Agency (EPA) in 1971 were in effect.1 In July 2020, EPA issued a final water quality
certification rule that went into effect on September 11, 2020 (hereinafter the 2020 Final Rule),
replacing the 1971 regulations.2 In January 2021, President Biden issued an executive order that
directed agencies to review certain Trump Administration agency actions, including the 2020
Final Rule. EPA’s review of the rule identified a number of concerns, prompting the agency to
publish in June 2021 a notice of intention to reconsider and revise the rule. Further, on October
21, 2021, the U.S. District Court for the Northern District of California issued an order remanding
and vacating EPA’s 2020 Final Rule.3 In response, EPA stated that the vacatur applied nationwide
and required a temporary return to EPA’s 1971 regulations until the agency 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”), 36
Federal Register
22487, November 25, 1971. Codified at 40 C.F.R. §121.
2 EPA, “Clean Water Act Section 401 Certification Rule” (hereinafter “2020 Final Rule”), 85 Federal Register 42210-
42287, July 13, 2020.
3 Order, In re Clean Water Act Rulemaking, No. 3:20-cv-04636, Doc. No. 173 (N.D. Cal. Oct. 21. 2021).
4 EPA, 2020 Rule Implementation Materials, https://www.epa.gov/cwa-401/2020-rule-implementation-materials,
accessed Nov. 16, 2021. See also EPA, Clean Water Act Section 401 Water Quality Certification Questions and
Answers on the 2020 Rule Vacatur
, December 17, 2021, https://www.epa.gov/system/files/documents/2021-12/
questions-and-answers-document-on-the-2020-cwa-section-401-certification-rule-vacatur-12-17-21-508.pdf.
5 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.
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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)
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)
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).
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
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).
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.,
recreation, public water supply), (2) criteria to protect those uses (i.e., numeric concentrations of
pollutants or narrative descriptions), and (3) an antidegradation policy.10 Pretreatment standards
apply to indirect dischargers, who discharge to a publicly owned treatment works prior to
discharge into a water of the United States.11
Section 401 provides states, certain tribes, and in certain circumstances, EPA12 (hereinafter
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
into waters of the United States.
 If a certifying authority grants the certification, the federal licensing or
permitting agency can proceed and evaluate whether the license or permit should
be issued.
 If a certifying authority grants the certification with conditions, the federal
licensing or permitting agency can proceed and evaluate whether the license or
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.

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 U.S.C. §§1251, 1313(d)(4)(B) for antidegradation. See also 40 C.F.R. Part 131.
11 CWA §§301 and 307; 33 U.S.C. §§1311 and 1317.
12 Per CWA §518 (33 U.S.C. §1377), EPA is authorized to treat an Indian tribe as a state for certain sections of the
CWA including CWA §401 if the tribe meets certain statutory eligibility criteria. EPA acts as the certifying authority
on tribal lands where the tribe has not been granted treatment as a state, as well as on federal lands with exclusive
federal jurisdiction.
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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
waters of the United States requires a Section 401 certification.14 Examples include hydropower
projects requiring Federal Energy Regulatory Commission (FERC) licenses, industrial and
municipal point source discharges requiring National Pollutant Discharge Elimination System
(NPDES) permits that would be issued by EPA15 (CWA Section 402), and certain activities
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
Sections 9 and 10).16 Examples of activities that may require a CWA Section 404 permit include
pipeline projects, infrastructure development, water resource projects, mining projects, 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
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
authority by Congress—has strong ramifications.17 First, if a certifying authority denies
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
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
the time of year in which the proposed activity can occur, or required water quality monitoring or
wetland mitigation.

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
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.
16 33 U.S.C. §1344; 33 U.S.C. §§401, 403.
17 EPA, Wetlands and 401 Certification: Opportunities and Guidelines for States and Eligible Indian Tribes, April
1989, p. 9, https://www.epa.gov/nscep. Deidre Duncan and Clare Ellis, “Clean Water Act Section 401: Balancing
States’ Rights and the Nation’s Need for Energy Infrastructure,” Hastings Environmental Law Journal, vol. 25, no. 2
(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,
https://www.aswm.org/wordpress/the-compleat-wetlander-401-certification-delivering-a-big-payload-for-state-rights-
clean-water-and-flood-protection/.
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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
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.21 Many states
assert that Section 401 certification allows them to manage and protect the quality of waters
within their states.22 They argue that any efforts to change the CWA or implementing regulations
to limit state authority under Section 401 are contrary to the principles of cooperative federalism
upon which the CWA is based.23
Actions Under the Trump Administration
The Trump Administration characterized some states’ uses of Section 401 authority as misusing
the CWA and directed EPA to update implementing regulations and guidance.24 EPA finalized
updated regulations in 2020 and issued updated guidance in 2019. Prior to these actions,
regulations promulgated in 1971 and interim guidance published in 2010 were in effect.25 The
1971 regulations implemented the certification provisions included in Section 21(b) of the

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,
2019, https://www.aga.org/news/news-releases/epa-proposes-updates-to-certification-process-for-natural-gas-
infrastructure/.
20 EPA, “EPA Issues Final Rule that Helps Ensure U.S. Energy Security and Limits Misuse of the Clean Water Act,”
press release, June 1, 2020, https://www.epa.gov/newsreleases/epa-issues-final-rule-helps-ensure-us-energy-security-
and-limits-misuse-clean-water-0.
21 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-
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/
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/
newsroom/2018/virginia/cbf-appeals-atlantic-coast-pipeline-certification.html.
22 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,
https://www.acwa-us.org/wp-content/uploads/2019/11/Coalition-Letter-Clean-Water-Act-Section-401-Legislation-11-
18-19.pdf.
23 Ibid.
24 EPA, “EPA Issues Final Rule that Helps Ensure U.S. Energy Security and Limits Misuse of the Clean Water Act,”
press release, June 1, 2020, https://www.epa.gov/newsreleases/epa-issues-final-rule-helps-ensure-us-energy-security-
and-limits-misuse-clean-water-0.
25 EPA, Clean Water Act Section 401 Water Quality Certification: A Water Quality Protection Tool for States and
Tribes
, April 2010. Hereinafter 2010 Guidance.
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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
Infrastructure and Economic Growth.”30 The E.O. stated that “outdated federal guidance and
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
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
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
times for different types of certification requests, and the nature and scope of information states
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
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
Guidance.31 EPA’s stated intent in updating the guidance was to provide clarifications and
recommendations on Section 401 water quality certifications. In particular, the guidance
addressed statutory and 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 review. EPA changes to the 2010 Guidance reflected
different interpretations of key aspects of Section 401 implementation, including certification
review timeframes and the scope of certifications. (See discussion under “Start of the
Certification “Clock””
and “Scope of 401 Certifications.”)
In the preamble to the rule EPA published in 2020 updating regulations on water quality
certification (see “Updated Regulations/2020 Final Rule”), EPA announced its decision to rescind
the 2019 Guidance coincident with issuing the rule.32 The agency concluded that retaining the
2019 Guidance after issuing the rule could cause confusion.33 EPA further stated that “the final
rule provides sufficient additional specificity and clarity on the issues discussed in the 2019

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, Clean Water Act Section 401 Guidance for Federal Agencies, States and Authorized Tribes, June 7, 2019,
https://www.epa.gov/sites/default/files/2019-06/documents/cwa_section_401_guidance.pdf. Hereinafter 2019
Guidance
.
32 2020 Final Rule, p. 42214.
33 Ibid.
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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
(the 2020 Final Rule) that went into effect on September 11, 2020, and replaced the prior
implementing regulations from 1971.36
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
CWA.”37 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
licensing and permitting processes, consistent with the objectives of the Executive Order.”38
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
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
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
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
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
period of time (which shall not exceed one year) after receipt of such request.”39 If a certifying
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
or permitting agency to issue the license or permit.40 The 2020 Final Rule addressed several
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
reasonable period of time begins (i.e., when the certification “clock” starts), and under what
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.
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“Reasonable Period of Time”
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
passage of a full year.”41 Federal permitting and licensing agencies retain the authority and
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
timeframes do not exceed one year.42 Some federal agencies have done so. For example, EPA’s
regulations specific to NPDES permits establish a 60-day period “unless the Regional
Administrator finds that unusual circumstances require a longer time.”43 USACE regulations
establish a 60-day period “unless the district engineer determines a shorter or longer period is
reasonable for the state to act.”44 FERC regulations provide a one-year period.45
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.46 In the
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
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
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
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
workload, resource issues, or lack of sufficient information. USACE issued the guidance in
August 2019.47
Many states have expressed opposition to any efforts to restrict certification timeframes beyond
what is established in the CWA.48 Some assert that such restrictions may prevent states from
complying with their own administrative requirements, preclude public input through state
review, and “intrude on the states’ primary authority to protect their water quality.”49

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).
46 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.
47 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/
collection/p16021coll9/id/1547.
48 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/
attachments/press-docs/2019-05-24finaljoint-comments-epa-401signed.pdf.
49 Ibid., p. 9.
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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.52
Specifically, the 2020 Final Rule required federal agencies, in determining the reasonable period
of time for a certification, to consider three specific criteria: (1) the complexity of the project, (2)
the nature of any potential discharge, and (3) the potential need for additional study or evaluation
of water quality effects from the discharge.53
Start of the Certification “Clock”
One specific aspect regarding certification timeframes that has been debated among stakeholders
is when the certification timeframe begins (i.e., when the “clock” starts on the “reasonable period
of time” established by federal licensing and permitting agencies). Specifically, some have argued
that the clock starts when a certifying authority receives a certification request, while others have
argued that the clock should start when it receives a certification request accompanied by a
complete application (i.e., when the state decides the application has sufficient information to
make a decision).
EPA’s 2010 Guidance provided that “generally, the state or tribe’s §401 certification review
timeframe begins once a request for certification has been made to the certifying agency,
accompanied by a complete application.”54 In 2018, the U.S. Court of Appeals for the Second
Circuit held that Section 401 creates a “bright-line rule” that the timeline for certification begins
after receipt of a certification request, not when the certifying authority determines that a request
is complete.55 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
provides that the timeline for action begins upon receipt of a certification request.56
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
certifying authority receives a certification request, which was newly defined in the rule.57 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 N.Y. State Dep’t of Env’t Conservation v. FERC, 884 F.3d 450, 455-56 (2d Cir. 2018). EPA discussed this case in
the 2020 Final Rule, pp. 42222-42223. The Second Circuit further held in 2021 that a certifying authority may not alter
the beginning of the certification timeline by entering into an agreement or otherwise coordinating with a certification
applicant to do so. N.Y. State Dep’t of Env’t Conservation v. FERC, 991 F.3d 439, 450 (2d Cir. 2021).
56 2019 Guidance, p. 3.
57 2020 Final Rule, pp. 42285-42286.
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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 Some states have denied Section 401 certifications
“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,
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
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
certification based on data and information gaps.60 Others assert that restarting the clock,
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.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 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 purpose of circumventing the one-year statutory deadline does not restart the
timeframe for the state’s review.62 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 Project in California and Oregon, and to decommission others.63 Under the terms of
a 2010 settlement agreement, PacifiCorp, California, and Oregon agreed to defer Section 401’s
one-year statutory limit by withdrawing and resubmitting PacifiCorp’s water quality certification
application each year.64 The Tribe argued that California and Oregon had waived their Section
401 certification authority, and that PacifiCorp had therefore failed to diligently prosecute its
licensing application.65 The D.C. Circuit held that Section 401 imposed a clear maximum of one
year to act on a request for certification, and that the text “cannot be reasonably interpreted to
mean that the period of review for one request affects that of any other request.”66 Otherwise, the
court cautioned, “the withdrawal-and-resubmission scheme could be used to indefinitely delay
federal licensing proceedings and undermine” federal agencies’ regulatory jurisdiction.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.
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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.68
By contrast, the U.S. Court of Appeals for the Fourth Circuit, in North Carolina Department of
Environmental Quality v. FERC
, distinguished Hoopa Valley as “a very narrow decision flowing
from a fairly egregious set of facts,” and has expressed skepticism regarding FERC’s argument
that a certifying authority must either grant or deny certification within one year of the
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.
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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
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.83 Specifically,
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.84 Per the rule, the certifying
authority had discretion as to whether to grant or respond to the meeting request.85 In the
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
could reduce the need to make additional information requests of the project proponent during the
certification timeframe.86
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
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
interpretation that the certifying authority no longer has an obligation to act on that request.”87
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 or if the project is no longer planned.”88 In such circumstances, if the project proponent
wanted a certification in the future, they would have to submit a new certification request and

80 Id. at *10.
81 2020 Final Rule, p. 42261.
82 2020 Final Rule, p. 42286.
83 2020 Final Rule, p. 42241.
84 2020 Final Rule, p. 42285.
85 Ibid.
86 2020 Final Rule, p. 42242.
87 2020 Final Rule, pp. 42246-42247.
88 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
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
proposed activity will comply with specific enumerated sections of the CWA, including Sections
301, 302, 303, 306, and 307.90 Section 401(d) provides direction regarding the scope of what
conditions certifying authorities may impose in granting certifications, and directs that such
certifications
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
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
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
any Federal license or permit.91
Scope of Section 401 Review
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
held hearings in the 115th and 116th sessions of Congress that included debate over the scope of
considerations during certification.92 Some groups have argued that Congress intended for the
review to focus on water quality impacts and assert that, in recent years, some states have
overstepped their authority by also considering non-water-quality environmental impacts, such as
greenhouse gas emissions.93 Other groups argue that Congress intended for certifying authorities
to have a significant role in ensuring that the water quality in their states is protected, and assert
that the denials that states have issued have been well-supported and necessary to protect state
water quality.94

89 Ibid.
90 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
pertains to toxic pretreatment effluent standards.
91 33 U.S.C. §1341(d).
92 U.S. Congress, Senate Committee on Environment and Public Works, Hearing to Examine Implementation of Clean
Water Act Section 401 and S.3303, the Water Quality Certification Improvement Act of 2018
, 115th Cong., 2nd sess.,
August 16, 2018, S.Hrg. 115-344. 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.
93 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
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-
0855.
94 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
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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
Ecology denied a permit application for a planned coal export terminal along the Columbia
River.95 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
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
safety, vehicle transportation, vessel transportation, noise and vibration, and air quality.96
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
proposed to construct a portion of the project.97 The permit applicant challenged the denials in
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
Commerce Clause and the foreign affairs doctrine.98 Additionally, Montana and Wyoming sought
review of Washington’s denial of the water quality certification directly in the U.S. Supreme
Court.99 The parties agreed to move for dismissal of the federal and state lawsuits after the permit
applicant filed for bankruptcy and represented that it no longer had funds to continue operation of
the terminal site.100 The Supreme Court also declined to hear Montana and Wyoming’s
complaint.101
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
pipeline in Raritan Bay.102 Most recently, the Department denied an application based on the

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
Terminals-Longview, LLC, September 26, 2017, https://ecology.wa.gov/DOE/files/83/8349469b-a94f-492b-acca-
d8277e1ad237.pdf.
96 Ibid. See also Millennium Bulk Terminals – Longview Final SEPA Environmental Impact Statement S.6 (April 2017),
https://www.millenniumbulkeiswa.gov/assets/introduction5.17.pdf.
97 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).
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.
98 See Brief for the United States as Amicus Curiae, Montana v. Washington, No. 22O152, at 4-7 (U.S. May 25, 2021).
99 Montana v. Washington, No. 22O152, Bill of Complaint ¶ 44 (U.S. Jan. 21, 2020). The Supreme Court has original
and exclusive jurisdiction to adjudicate disputes between two or more states. U.S. CONST. art. III, §2, cl. 2; 28 U.S.C.
§1251(a).
100 See Order, Lighthouse Res., Inc. v. Inslee, No. 19-35415, Doc. No. 93 (9th Cir. Mar. 23, 2021); Agreed Order of
Dismissal, Lighthouse Res. Inc. v. Inslee, No. 3:18-cv-05005-RJB, Doc. No. 352 (W.D. Wash. Apr. 27, 2021); Agreed
Order of Dismissal, Millennium Bulk Terminals-Longview, LLC v. Wash. State Dep’t of Ecology, No. 18-2-994-08
(Wash. Super. Ct. May 10, 2021).
101 Montana v. Washington, motion for leave to file a bill of complaint petition denied, 141 S. Ct. 2848 (U.S. June 28,
2021) (mem.).
102 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,
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;
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.
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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
Climate Leadership and Community Protection Act (Climate Act), which requires a 40%
reduction in statewide greenhouse gas emissions.104 The Department found that the project would
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
fuels; and would be inconsistent with the statewide greenhouse gas emission limits and other
requirements established in the Climate Act.105 While the Department noted that the denial did not
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,
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
transitioning away from the use of natural gas to produce electricity.”106 Unlike in Washington,
the 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
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
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
water quality.107
The Supreme Court weighed in on one aspect of the scope of Section 401 in 1994. In a 7-2
decision in PUD No. 1 of Jefferson County v. Washington Department of Ecology, the Court
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.108 In rejecting the
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
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.”109 The
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 discharge
will comply with relevant provisions of the CWA, Section 401(d) provides that a certification
may include conditions or limitations “to assure that any applicant” will comply with the CWA

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.
104 Ibid., p. 14.
105 Ibid.
106 Ibid., p. 16.
107 2020 Final Rule, pp. 42254-42256.
108 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
the flow of water through a dam constitutes a “discharge” for purposes of triggering Section 401. S.D. Warren Co. v.
Me. Bd. of Env’tl Prot., 547 U.S. 370 (2006).
109 PUD No. 1 of Jefferson County, 511 U.S. at 711-12.
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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 activity will
be conducted in a manner which will not violate applicable water quality standards.”111
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
with the enumerated provisions of the CWA and any other appropriate state law requirement.112
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,
limitations pursuant to state water quality standards adopted pursuant to [CWA] § 303 are
‘appropriate’ requirements of state law.”113 The Court ultimately concluded that a certifying
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
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
here, as a fishery.”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
activity and discharge will not violate or interfere with the attainment of any limitations or
standards identified in §401(a) and (d).”115 Further, it specified that these CWA subsections
include the enumerated sections of the act and “any other appropriate requirement of State law set
forth in such certification.”116 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
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
concerns, extend to any provision of state or tribal law relating to the aquatic resource.”117 It
further provided that “considerations can be quite broad so long as they relate to water quality.”118
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
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
use”; and state and tribal laws protecting the cultural or religious value of waters.119
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

110 Id. at 711.
111 Id. at 712 (quoting 40 C.F.R. §121.2(a)(3) (1993)).
112 Id. at 712.
113 Id. at 713.
114 Id. at 719.
115 2010 Guidance, p. 18.
116 Ibid.
117 2010 Guidance, p. 23.
118 Ibid.
119 2010 Guidance, p. 21.
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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
tribal water quality requirements.”121
Scope of Certifications in the 2020 Final Rule
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.”122 The
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.”123 The
rule also newly defined the term water quality requirements 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
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
tribal regulatory requirements for point source discharges into waters of the United States
(emphasis added).124
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
with water quality requirements, which was neither defined explicitly in Section 401 nor the
regulations.125 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
non-federal waters” (i.e., waters that are not waters of the United States) “once the requirement
for the section 401 certification is triggered.”126
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
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
... which may result in any discharge into the navigable waters.”127 Ruling that the flow of water
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”
or “discharge of pollutants.”128 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
discharge more specifically.

120 2019 Guidance, p. 4.
121 Ibid.
122 33 U.S.C. §1341.
123 2020 Final Rule, p. 42285.
124 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
States,’” 85 Federal Register 22250, April 21, 2020.
125 EPA Office of Water, Clean Water Act Section 401 Certification Rule Public Webinar, June 17, 2020,
https://www.epa.gov/cwa-401/public-webinar-slides-clean-water-act-section-401-certification-rule.
126 2020 Final Rule, pp. 42234-42235.
127 547 U.S. 370 (2006).
128 Id. at 375-76.
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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
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
increased water withdrawals, groundwater pollution, increased erosion and sedimentation,
increases in impervious surfaces (resulting in reduced stormwater infiltration), disconnected
ecosystems, and harm to endangered species.130
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
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
“waters of the United States” (WOTUS) under the CWA.131 However, in June 2021, EPA issued a
notice of its intention to revise the 2020 Final Rule.132 Additionally, on October 21, 2021, a
federal district court vacated the 2020 Final Rule.133
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
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
water quality requirements and that are beyond the scope of CWA section 401.”134 EPA then
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
or quantify the effects of downstream greenhouse gas emissions in its environmental review of
the project.135 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
recreational trails, public access for recreation, or one-time and recurring payments to state
agencies for improvements unrelated to the proposed project.136 EPA emphasized that the 2020
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

129 2020 Final Rule, p. 42234.
130 2020 Final Rule, p. 42252.
131 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 narrowed the definitions of certain
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 were excluded from
the Navigable Waters Protection Rule’s definition of tributaries. Similarly, although adjacent wetlands were considered
WOTUS under prior regulations, the Navigable Waters Protection Rule limited the definition to include only those
wetlands that abut or otherwise have a direct surface connection to other jurisdictional waters.
132 EPA, “Notice of Intention To Reconsider and Revise the Clean Water Act Section 401 Certification Rule,” 86
Federal Register
29541, June 2, 2021. See also EPA, “EPA Takes Action to Bolster State and Tribal Authority to
Protect Water Resources,” press release, May 27, 2021, at https://www.epa.gov/newsreleases/epa-takes-action-bolster-
state-and-tribal-authority-protect-water-resources-0.
133 Order, In re Clean Water Act Rulemaking, No. 3:20-cv-04636, Doc. No. 173 (N.D. Cal. Oct. 21, 2021).
134 2020 Final Rule, p. 42256.
135 Ibid.
136 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
addressing certification timeframes and the scope of certification. Some of these changes
formalized current practice or clarified timelines around specific requirements and practice.
Others represented more substantive changes from the 1971 regulations and practice, including a
new federal review process for denials and conditions and a new interpretation of enforcement
roles.
Federal Review Process for Denials and Conditions
The 2020 Final Rule addressed the role of federal licensing and permitting agencies in the
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
imposed by certifying authorities, including by imposing more stringent alternative conditions.137
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
permit.138
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
agency.139 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
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
federal agency was required to determine that the certifying authority “fail[ed] or refuse[d] to act”
and therefore waived certification.140 Similarly, federal licensing and permitting agencies were
required to determine whether certification conditions included the two minimum elements
required by the 2020 Final Rule.141 If the federal agency determined that certification conditions
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.

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, 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).
138 City of Tacoma, 460 F.3d at 67-68; Am. Rivers, Inc., 129 F.3d at 110-11; Keating v. FERC, 927 F.2d 616, 622-23,
625 (D.C. Cir. 1997).
139 2020 Final Rule, p. 42286.
140 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
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
discharge from the proposed project will comply with water quality requirements.” The rule lists similar elements for
denial of a general license or permit.
141 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
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.
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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
than the certifying authority) would be responsible for enforcing certification conditions
incorporated into a federal license or permit.143 The preamble to the 2020 Final Rule stated that
“the CWA does not provide independent authority for certifying authorities to enforce the
conditions that are included in a certification under federal law.”144 Accordingly, it stated that
EPA “is interpreting the CWA to clarify that this enforcement role is reserved to the federal
agency issuing the federal license or permit.”145 This differs from 1971 regulations and practice,
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
role in enforcement under the 1971 regulations and in practice.146 EPA expressly declined to opine
in the 2020 Final Rule on whether the CWA authorizes citizen suits to enforce certification
conditions pursuant to Section 505 of the statute.147
In commenting on the proposed rule, some commenters agreed with this enforcement
approach.148 Others asserted that states and tribes should be allowed to independently enforce
their certification conditions.149 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
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
the CWA, unless expressly provided for in the statute.150 EPA explained in the 2020 Final Rule
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
510.151 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
federal agencies noted that it could be challenging to enforce certain certification conditions.152
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

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,
conditions, and denials were within the scope of certification. The final rule does not include the additional substantive
federal review requirement.
143 2020 Final Rule, p. 42275.
144 Ibid.
145 Ibid.
146 EPA Office of Water, Clean Water Act Section 401 Certification Rule Public Webinar, June 17, 2020,
https://www.epa.gov/cwa-401/public-webinar-slides-clean-water-act-section-401-certification-rule. See also 2010
Guidance at 32-33.
147 2020 Final Rule, p. 42277.
148 2020 Final Rule, p. 42275.
149 Ibid.
150 2020 Final Rule, pp. 42275-42276. See also 33 U.S.C. §1370.
151 2020 Final Rule, p. 42276.
152 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.
EPA received more than 125,000 comments on the proposed rule “from a broad spectrum of
interested parties.”154 Various groups, including those representing energy interests, generally
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,
thereby improving applicants’ ability to obtain permits for energy infrastructure projects.155 Many
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.156
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
authority, and would substantially affect the ability of states to manage and protect their water
resources.157 Central to their concerns was the implication of the rule for the CWA’s cooperative
federalism framework.158 Specifically, they argued that CWA Section 101(b) establishes
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
plan the development and use of land and water resources.”159 Many states view Section 401
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
proposed changes as an infringement upon the authority designated to them by Congress under
the CWA.160
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

153 Ibid.
154 2020 Final Rule, p. 42213.
155 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
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.
156 2020 Final Rule, p. 42255.
157 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
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,
2019. All three letters are available in EPA Docket ID: EPA-HQ-OW-2019-040.
158 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
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
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
and states use these water quality standards, as well as technology based standards, when establishing permit limits for
point source dischargers under §402.
159 33 U.S.C. §1251(b).
160 2020 Final Rule, p. 42226.
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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
environmental groups also filed suits in the U.S. District Courts for the Eastern District of
Pennsylvania and the District of South Carolina.162 A group of eight states and several energy
industry associations intervened in the lawsuits in support of EPA.163
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
unlawfully restricted powers preserved for certifying authorities under the CWA, including by
restricting the scope and process for their review of certification applications, and by excluding
certifying authorities from the enforcement of certification conditions.164 The plaintiffs also
argued that the rule impermissibly expanded federal authority, including by authorizing federal
permitting and licensing agencies to review and overrule certification decisions.165 With respect to
the 2020 Final Rule’s limitations on the scope of certification review, some plaintiffs alleged that
the rule deprived certifying authorities of the opportunity to consider the effects of a project as a
whole on state water quality, and that the narrowed scope of certification review contradicted
both the text of the CWA and Supreme Court precedent.166 Finally, the Suquamish Tribe argued
that EPA failed to satisfy its tribal consultation obligations during the development of the 2020
Final Rule as required by an executive order and EPA policy document governing consultation
and coordination with tribal governments.167
None of the three courts issued opinions on the merits of the plaintiffs’ claims. As discussed in
further detail below, all three courts 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).
162 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).
163 Order Granting Unopposed Intervention, In re Clean Water Act Rulemaking, 3:20-cv-04636, Doc. No. 39 (N.D.
Cal. Nov. 23, 2020); Orders Granting Motions to Intervene, Am. Rivers v. Wheeler, No. 3:20-cv-04636, Doc. Nos. 62,
78 (N.D. Cal. Sept. 17 2020, Oct. 9, 2020); Orders Granting Motions to Intervene, California v. Wheeler, No. 3:20-cv-
04869, Doc. Nos. 101, 113 (N.D. Cal. Sept. 17, 2020, Oct. 9, 2020); Order re Motion to Dismiss and Motions to
Intervene, Del. Riverkeeper Network v. EPA, No. 2:20-cv-03412, Doc. No. 47 (E.D. Pa. Dec. 18, 2020); Orders on
Motions to Intervene, S.C. Coastal Conservation League v. Wheeler, No. 2:20-cv-03062, Doc. Nos. 24, 34, 49 (D.S.C.
Oct. 7, 2020, Oct. 30, 2020, Jan. 13, 2021).
164 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,
2020); Complaint, Del. Riverkeeper Network v. EPA, No. 2:20-cv-03412, Doc. No. 1, ¶¶ 10, 182-242, 260-63 (E.D.
Pa. July 13, 2020); Complaint, S.C. Coastal Conservation League v. Wheeler, No. 2:20-cv-03062, Doc. No. 1, ¶¶ 10,
14 (D.S.C. Aug. 26, 2020).
165 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;
Complaint, S.C. Coastal Conservation League v. Wheeler, ¶¶ 197-200.
166 E.g., Complaint, California v. Wheeler, ¶¶ 1.10-11; Complaint, S.C. Coastal Conservation League v. Wheeler, ¶¶ 1,
165.
167 Complaint, Suquamish Tribe v. Wheeler, ¶ 9. See also Executive Order 13175, “Consultation and Coordination with
Indian Tribal Governments,” 65 Federal Register 67249, November 9, 2000; EPA, EPA Policy on Consultation and
Coordination with Indian Tribes
, May 4, 2011.
168 Order, S.C. Coastal Conservation League v. Wheeler, No. 2:20-cv-03062, Doc. No. 69 (D.S.C. Aug. 2, 2021);
Order, Del. Riverkeeper Network v. EPA, No. 2:20-cv-03412, Doc. No. 75 (Aug. 6, 2021); Order re Motion for
Remand Without Vacatur, In re Clean Water Act Rulemaking, No. 3:20-cv-04636, Doc. No. 173 (N.D. Cal. Oct. 21,
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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
Final Rule. On January 20, 2021, President Biden issued an executive order (E.O. 13990) which
directed the heads of all agencies to “immediately review all existing regulations, orders,
guidance documents, policies, and any other similar agency actions (agency actions)
promulgated, issued, or adopted” during the Trump Administration “that are or may be
inconsistent with, or present obstacles to, the policy set forth” in the order.170 The executive order
further stated “for any such actions identified by the agencies, the heads of agencies shall, as
appropriate and consistent with applicable law, consider suspending, revising, or rescinding the
agency actions.”171 In conjunction with the executive order, the Biden Administration included
the 2020 Final Rule in a fact sheet listing more than 100 agency actions that heads of agencies
were to review in accordance with the executive order. 172
In June 2021, EPA issued a notice of intention to revise the 2020 Final Rule.173 The agency stated
in a related press release that, after determining that the rule “erodes state and Tribal authority,” it
“intends to reconsider and revise the 2020 CWA Section 401 Certification Rule to restore the
balance of state, Tribal, and federal authorities while retaining elements that support efficient and
effective implementation of Section 401.”174 EPA hosted virtual listening sessions with
stakeholders in June 2021 to gain input on potential approaches for revisions and also solicited
written pre-proposal input.175
In light of its decision to revise the rule, EPA asked courts to remand the 2020 Final Rule to the
agency while it developed a new regulation.176 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

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
Climate Crisis,” 86 Federal Register 7037-7043, January 20, 2021.
171 Ibid.
172 The White House, “Fact Sheet: List of Agency Actions for Review,” press release, January 20, 2021,
https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-
review/.
173 EPA, “Notice of Intention To Reconsider and Revise the Clean Water Act Section 401 Certification Rule,” 86
Federal Register
29541, June 2, 2021.
174 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.
175 EPA, “Upcoming Outreach and Engagement on CWA Section 401 Certification,” https://www.epa.gov/cwa-401/
upcoming-outreach-and-engagement-cwa-section-401-certification. The administrative docket for pre-proposal input
closed on August 2, 2021.
176 Motion for Remand Without Vacatur, In re Clean Water Act Rulemaking, No. 3:20-cv-04636, Doc. No. 143 (N.D.
Cal. July 1, 2021); Motion for Remand Without Vacatur, Del. Riverkeeper Network v. EPA, No. 2:20-cv-03412, Doc.
No. 67 (E.D. Pa. July 1, 2021); Motion for Remand Without Vacatur, S.C. Coastal Conservation League v. EPA, No.
2:20-cv-03062, Doc. No. 67 (D.S.C. July 1, 2021).
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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.177 Two courts granted EPA’s motion
and remanded the rule without vacatur.178
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.179
While the court did not issue a ruling on the merits of the 2020 Final Rule, it identified
problematic aspects of the rule, including “substantial concerns” that EPA itself had raised in its
request for remand.180 In particular, the court noted that the rule’s revised scope of certification
was “antithetical” to the Supreme Court’s decision in PUD No. 1, and found that EPA had not
“adequately explain[ed] in the preamble how it could so radically depart from what the Supreme
Court dubbed the most reasonable interpretation of the statute.”181 According to the court, these
and other factors created “significant doubt ... that EPA correctly promulgated the rule.”182
Additionally, the court found that vacatur would not be unduly disruptive because the rule had not
yet engendered institutional reliance, and that remand without vacatur would likely result in
“significant environmental harms.”183
After the California district court remanded and vacated the 2020 Final Rule, EPA updated its
website to indicate that the vacatur applied nationwide and required a temporary return to EPA’s
1971 regulations until EPA finalized a new certification rule.184 EPA also published a “questions
and answers” document in December 2021 to clarify the applicable requirements and procedures
following the vacatur.185 Among other clarifications, EPA indicated that the agency generally did
not expect to revisit certifications issued while the 2020 Final Rule was effective, and that
pending certification requests would be processed in accordance with the 1971 regulations.186
States and industry groups that intervened in the litigation in support of the 2020 Final Rule
appealed the remand and vacatur order, and those appeals are now pending in the U.S. Court of
Appeals for the Ninth Circuit.187 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

177 E.g., Motion for Remand Without Vacatur Memorandum of Points and Authorities, In re Clean Water Act
Rulemaking, at 7-9.
178 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).
179 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).
180 Id. at 12-14.
181 Id. at 12-13.
182 Id. at 14-15.
183 Id. at 16.
184 EPA, “2020 Clean Water Act Section 401 Certification Rule,” https://www.epa.gov/cwa-401/2020-clean-water-act-
section-401-certification-rule-0.
185 EPA, Clean Water Act Section 401 Water Quality Certification Questions and Answers on the 2020 Rule Vacatur,
December 17, 2021, https://www.epa.gov/system/files/documents/2021-12/questions-and-answers-document-on-the-
2020-cwa-section-401-certification-rule-vacatur-12-17-21-508.pdf.
186 Ibid.
187 Am. Rivers v. Am. Petroleum Inst., No. 21-16958 (9th Cir. appeal filed Nov. 22, 2021); Am. Rivers v. Nat’l
Hydropower Ass’n, No. 21-16960 (9th Cir. appeal filed Nov. 22, 2021); Am. Rivers v. Arkansas, No. 21-16961 (9th
Cir. appeal filed Nov. 22, 2021).
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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
Congress. On November 19, 2019, the Senate Committee on Environment and Public Works held
a legislative hearing on potential reforms to Section 401, including legislation introduced by the
committee chairman (S. 1087).194 In the 116th Congress, S. 1087 and H.R. 2205, identical bills
titled the Water Quality Certification Improvement Act of 2019, would have amended Section
401. These bills were reintroduced in the 117th Congress (S. 1761, H.R. 3422) as the Water
Quality Certification Improvement Act of 2021. The proposed changes would narrow the scope of
water quality impacts that certifying authorities may consider in their certification review, narrow
the scope of conditions certifying authorities may impose, establish a time limit for certifying
authorities to request additional information, and require certifying authorities to provide a
written explanation of their certification decision. The committee also held a hearing on the same
issue and introduced similar legislation (identical bills—S. 3303 and H.R. 6889) in the 115th
Congress.195 Also in the 117th Congress, S. 3277, introduced after the California district court’s
remand and vacatur order, would codify the 2020 Final Rule.

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, 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.
195 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.,
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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
debated whether proposed Section 401 reforms—whether through legislation such as the Water
Quality Certification Improvement Act of 2019 (S. 1087) or the 2019 Proposed Rule—were
necessary. Some Members argued that while the majority of states carry out their Section 401
certifications in a responsible way, some are abusing their authority under the provision to block
critical energy infrastructure projects.197 Two state witnesses (the governors of Wyoming and
Oklahoma) pointed to examples, such as the State of Washington’s certification denial for the
Millennium coal export terminal, of states considering impacts beyond the scope of water quality
in their certification review.198 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
certifying authorities provide a clear basis for any certification denials.199
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
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
federalism.200 A state witness—a Senior Assistant Attorney General from Washington—similarly
criticized the proposed Section 401 reforms.201 She further argued that states have largely
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.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.
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Conclusion
With the reinstatement of the 2020 Final Rule following its vacatur, and the Biden
Administration’s new proposed CWA Section 401 rule, stakeholders continue to debate how
CWA Section 401 should be implemented. Much of the debate about Section 401 implementation
centers on the appropriate balance of “cooperative federalism” between federal agencies’ and
states’ authorities. CWA Section 101(b) provides that “it is the policy of the Congress to
recognize, preserve, and protect the primary responsibilities 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 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 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 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 “that there are
sufficient authorities and limitations in place for States and Tribes to effectively implement CWA
programs within the scope that Congress established.”203
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.
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 and the
Army Corps of Engineers (Corps) 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 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 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 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 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 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 (and the Corps) also argued, in promulgating the
Navigable Waters Protection Rule, that narrowing the scope of the CWA’s jurisdiction would not
reduce protection of the nation’s waters because state, local, and tribal regulations and programs
also provide protective coverage for water resources. EPA and the Corps asserted that the
Navigable Waters Protection Rule would give state, tribal, and local authorities more 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
district courts, and EPA and the Corps have similarly announced their intentions to rescind and
revise the rule.204 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
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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
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
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
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
of the new rules.

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, Redefining
Waters of the United States (WOTUS): Recent Developments
, by Laura Gatz and Kate R. Bowers; CRS Legal Sidebar
LSB10646, What’s Next for WOTUS: Recent Litigation and Next Steps in Redefining “Waters of the United States”, by
Kate R. Bowers; 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.
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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
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
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
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
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
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
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
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
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
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
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.
(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
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
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
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
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.
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
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
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
or permit.
(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
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
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
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,
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
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
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
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,
303, 306, or 307 of this act.
(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
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
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
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
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
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
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
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
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
been operated in violation of the applicable provisions of Section 301, 302, 303, 306, or 307 of
this act.
(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
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
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
otherwise meets the requirements of this section.
(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
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
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
agency or State or interstate agency, or applicant, comment on any methods to comply with such
limitations, standards, regulations, requirements, or criteria.
(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
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
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
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
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
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.

Author Information

Laura Gatz
Kate R. Bowers
Analyst in Environmental Policy
Acting Section Research Manager




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Congressional Research Service
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