Contents

• Introduction
• Scope of CWA Permitting
• National Pollutant Discharge Elimination System (NPDES) Permits
• Who Needs an NPDES Permit?
• Who Administers NPDES Permits?
• How Are Permit Limitations Established?
• Technology-Based Effluent Limitations (TBELs)
• Water-Quality-Based Effluent Limitations
• Types of NPDES Permits and Term Lengths
• Individual Permits
• General Permits
• Permitting Timeframes and the NPDES Permit Backlog
• Monitoring, Reporting, Inspections, and Enforcement
• Permittee Monitoring and Reporting
• Inspections
• Enforcement
• Section 404 Dredge and Fill Permits
• Who Needs a Section 404 Permit?
• Who Administers Section 404 Permits?
• Types of Section 404 Permits, Term Lengths, and Permit Processes
• Individual Permits
• General Permits
• Permitting Timeframes
• Monitoring, Reporting, and Inspections
• Enforcement
• Clean Water Act Section 401
• Congressional Interest – Hearings and Legislation in the 119^th Congress
• Hearings
• Legislation
• WOTUS-Related Legislation
• Section 401-Related Legislation
• Section 402-Related Legislation
• Section 404-Related Legislation
• Policy Issues and Options for Congress
• Federal Versus State Authority
• Regulatory Certainty
• Permit Term Length
• Permit Compliance Clarification
• Timing of EPA's 404(c) "Veto" Authority
• Permit Issuance Timelines

Summary

The Federal Water Pollution Control Act, commonly referred to as the Clean Water Act (CWA), is the principal federal law in the United States governing water pollution. To help achieve its goals, the statute prohibits the discharge of pollutants from any point source (e.g., a discrete conveyance such as a pipe) to waters of the United States (WOTUS) without a permit. The CWA also establishes two permitting programs that may be used to authorize certain discharges. These include the Section 402 National Pollutant Discharge Elimination System (NPDES) permitting program and the Section 404 permitting program for dredged or fill material.

NPDES permits are issued by states and the U.S. Environmental Protection Agency (EPA) for discharges of pollutants from point sources, such as municipal and industrial sources. These sources include wastewater treatment facilities, municipal stormwater collection systems, and a wide variety of industrial dischargers. Section 404 permits are issued primarily by the U.S. Army Corps of Engineers (USACE) and two states (Michigan and New Jersey) for discharges of dredged or fill material. Activities that may require a Section 404 permit include pipeline projects, water resource projects, mining projects, transmission line projects, or other development projects. Separate from, but related to permitting, CWA Section 401 requires a type of approval, called a water quality certification, for any federal permit or license that may result in a discharge to WOTUS. Although Section 401 water quality certifications are not permits, they are a type of approval required for some projects to move forward and have implications for issuance of some federal permits and licenses. Examples of activities that may require a CWA Section 401 water quality certification include activities requiring a USACE-issued CWA Section 404 permit, projects requiring USACE Rivers and Harbors Act permits, hydropower projects licensed by the Federal Energy Regulatory Commission (FERC), and certificates of public convenience and necessity issued by FERC.

The second Trump Administration has issued proposed regulations that, if finalized, would affect some aspects of CWA permitting and 401 certifications. EPA and USACE have issued a proposed rule and a proposed supplemental rule to update the definition of WOTUS. If finalized, the rule would likely narrow the scope of waters and wetlands considered WOTUS, and therefore subject to the CWA's permitting programs and water quality certification requirements. EPA has also issued a proposed rule to update the Section 401 implementing regulations, which, if finalized, would likely narrow the scope of what states may consider in issuing water quality certifications, among other changes. These changes could have implications for the issuance of certain federal licenses and permits, including Section 404 permits.

Many Members have shown interest in policy issues pertaining to CWA permitting—especially permitting reform—in recent Congresses. Congressional committees have held hearings that have included discussions of CWA permitting, and some Members have introduced legislation that either focuses specifically on CWA permitting or would amend CWA permitting within broader permitting reform bills. Of the over 50 bills introduced during the 119^th Congress that propose to address some aspect of CWA permitting, more than half include changes to NPDES permitting, more than half include changes to Section 404 permitting, and over a quarter would make changes to Section 401 certification. A few of these bills propose changes to the scope of WOTUS.

Congress's interest in CWA permitting, as demonstrated through hearings and legislative efforts, can be grouped under a few broader policy areas: the balance of federal versus state authority for permitting-related programs and decisions; regulatory certainty; and timelines for permit issuance, particularly for certain energy, mineral, and other projects identified as being of national importance. Congress may consider proposing or supporting legislation that addresses these issues, may consider overseeing the Administration's ongoing regulatory efforts; may consider oversight of existing permitting processes generally, or specific to certain industries or project types; or may opt not to act and leave implementation of these issues to EPA, USACE, and states.

Introduction

The Federal Water Pollution Control Act, commonly referred to as the Clean Water Act (CWA), is the principal federal law in the United States governing water pollution.¹ Congress passed major amendments to the statute in 1972, which significantly reorganized and expanded it to establish a new framework for controlling water pollution.² Among the many revisions, the amendments set ambitious goals for water quality and established the basic structure for regulating pollutant discharges into the nation's surface waters.

The CWA's objective, as stated in the 1972 amendments, is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."³ The CWA also established two goals: to eliminate the discharge of pollutants into navigable waters by 1985; and as an interim goal, wherever attainable, to achieve water quality that is "fishable" and "swimmable" by July 1, 1983.⁴ Although much progress has been made, those goals have not been met fully in many places. While those dates have long passed, the goals remain, and efforts to attain them continue.

To help achieve the CWA's objective and goals, the statute prohibits the discharge of pollutants from any point source (e.g., a discrete conveyance such as a pipe) to waters of the United States (WOTUS) without a permit.⁵ The CWA also establishes two permitting programs that may be used to authorize certain discharges. These are the Section 402 National Pollutant Discharge Elimination System (NPDES) permitting program and the Section 404 permitting program for dredged or fill material.⁶ NPDES permits are issued by 47 states and the U.S. Environmental Protection Agency (EPA) for discharges of pollutants from point sources, such as municipal and industrial sources. These sources include wastewater treatment facilities, municipal stormwater collection systems, and a wide variety of industrial dischargers. Section 404 permits are issued primarily by the U.S. Army Corps of Engineers (USACE) and two states (Michigan and New Jersey) for discharges of dredged or fill material. Activities that may require a Section 404 permit include pipeline projects, water resource projects, mining projects, transmission line projects, or other development projects.

In recent Congresses, some Members have shown interest in a wide range of policy issues pertaining to CWA permitting and reform. One issue of interest has been the definition of waters of the United States (WOTUS), which determines the scope of waters subject to the CWA's permitting provisions. Some Members have also sought to find ways to streamline the CWA permitting process to help expedite the approval of certain projects—including linear infrastructure and other projects that they assert are critical to national interests. Other policy topics related to CWA permitting that some Members have sought to address include permit term lengths; permit requirements for emerging contaminants such as per- and polyfluoroalkyl substances (PFAS); permit requirements for aerial discharges including pesticides and fire suppressants; EPA's authority to "veto" Section 404 permits approved by USACE; and state authority under CWA Section 401 to issue water quality certifications, which has implications for the issuance of some CWA permits.⁷ The Senate Environment and Public Works Committee and the House Transportation and Infrastructure Committee, Water Resources and Environment Subcommittee, each held hearings at the start of the 119^th Congress that focused on permitting, including CWA permitting.⁸

This report provides an overview of CWA permitting, including the scope of CWA permitting and a summary of each of the CWA permitting programs. The report also summarizes congressional interest in CWA permitting, including a summary of the hearings and legislation in recent Congresses on this topic, and discusses policy options in this area.

Scope of CWA Permitting

Several CWA provisions and definitions establish the scope of discharges that require a permit under the statute. Broadly, CWA Section 301 specifies that the discharge of any pollutant by any person is unlawful without a permit.⁹ CWA Section 502, the statute's definitions provision, defines several terms pertinent to the scope of this prohibition:

• Discharge of a pollutant means "any addition of any pollutant to navigable waters from any point source," or "any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft."¹⁰
• Pollutant broadly includes "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water."¹¹
• Point source means "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged."¹² The CWA explicitly excludes agricultural stormwater discharges and return flows from irrigated agriculture from the definition of point source.¹³
• Navigable waters means "the waters of the United States, including the territorial seas."¹⁴ The CWA does not further define the term waters of the United States (WOTUS). As discussed below, Congress's intent as to the meaning of WOTUS has been debated and litigated for more than four decades.
• Territorial seas, for the purposes of the CWA, include the belt of seas extending three miles seaward of the ordinary low water mark.¹⁵
• Contiguous zone, for the purposes of the CWA, means the zone extending 9 miles seaward beyond the 3-mile territorial sea boundary.¹⁶
• Ocean broadly means "any portion of the high seas beyond the contiguous zone."¹⁷

Taken together, the scope of the prohibition on discharges without a permit pertains to discharges of pollutants (defined broadly) from point sources (i.e., discrete conveyances) to WOTUS. The prohibition extends to the contiguous zone and the ocean for point sources other than vessels or other floating craft. Examples of such point sources include wastewater facilities with deep ocean outfalls, certain aquaculture operations, and certain offshore oil- and gas-development-related facilities.

As introduced above, the CWA establishes two permitting programs that may be used to authorize discharges. These are the Section 402 NPDES permitting program and the Section 404 permitting program for dredged or fill material. Each of these programs has their own specific scope of applicability.

• The CWA authorizes both EPA and states to issue NPDES permits.¹⁸ However, the CWA provision authorizing state NPDES permits applies only to WOTUS.¹⁹ The CWA authorizes EPA to issue NPDES permits in WOTUS as well as the contiguous zone and ocean.²⁰
• The Section 404 permitting program specifically authorizes USACE or states to issue permits for the discharge of dredged or fill material in WOTUS.²¹ The scope of the Section 404 permitting program does not extend to the contiguous zone or ocean.

The scope of waters included in the definition of WOTUS has been, and continues to be, a matter of debate. Because the CWA does not define WOTUS, USACE and EPA—the two agencies that administer the statute—have defined the term in regulations. For much of the past several decades, regulations promulgated by USACE and EPA in the 1980s have been in effect. However, Supreme Court rulings, stakeholder interest, and congressional interest prompted the last three presidential Administrations (the Obama Administration, the first Trump Administration, and the Biden Administration) to promulgate revised definitions of WOTUS. Each of these regulatory efforts prompted reactions from a variety of stakeholders with numerous groups filing lawsuits to challenge the rules. In addition, in 2023, the Supreme Court issued a decision construing WOTUS more narrowly than previous regulatory interpretations.²² EPA and USACE have since attempted to align the regulatory definition of WOTUS with the Court's ruling.

In March 2025, the Trump Administration announced its intent to revise the definition of WOTUS again through new rulemaking.²³ On November 20, 2025, EPA and USACE published a proposed rule to revise the definition of WOTUS for public comment.²⁴ On September 9, 2026, EPA and USACE issued a supplemental proposed rule, which supplements the initial proposed rule with additional regulatory options on certain aspects of the proposed rule.²⁵ If finalized, the updated regulations would likely result in a narrower scope for WOTUS compared to the existing regulations, meaning that fewer waters and wetlands would be subject to CWA permitting requirements.²⁶

Given that the scope of WOTUS determines which waters are subject to CWA permitting requirements, the definition continues to be a key policy issue in the CWA permitting space. For more information on this issue, see CRS Report R47408, Waters of the United States (WOTUS): Frequently Asked Questions About the Scope of the Clean Water Act, by Kate R. Bowers and Laura Gatz.

National Pollutant Discharge Elimination System (NPDES) Permits

One of the two permitting programs authorized by the CWA is the NPDES permitting program. Under the CWA, one of the primary mechanisms to protect or improve surface water quality is to limit or prohibit discharges of pollutants in NPDES permits.²⁷ The following sections detail who needs an NPDES permit, who administers NPDES permits, how pollutant limitations in the permits are established, the types of NPDES permits and term lengths, permitting time frames, and information on monitoring and enforcement.

Who Needs an NPDES Permit?

Any person who discharges a pollutant from a point source to WOTUS needs an NPDES permit unless the activity is specifically exempt under Section 402.²⁸ This includes a wide range of potential dischargers—typically the owners or operators of a facility or activity subject to regulation under the NPDES program.²⁹ These facilities/activities include publicly owned treatment works (i.e., municipal wastewater treatment facilities), municipal separate storm sewer collection systems (MS4s), a wide range of industrial facilities that discharge wastewater and/or stormwater, construction activities that discharge stormwater, certain pesticide applications, and certain fire-retardant applications.³⁰ Any owner or operator of a point source other than a vessel or floating craft that discharges a pollutant into the contiguous zone or the ocean also needs an NPDES permit. The CWA identifies specific activities that do not require NPDES permits in Section 402(l).³¹

Who Administers NPDES Permits?

The CWA authorizes both EPA and delegated states to administer NPDES permits.³² States, territories, and tribes may administer their own NPDES permits if they seek and receive approval from EPA to assume the program.³³ Most states (47 states) and one territory (the U.S. Virgin Islands) are authorized to administer their own NPDES permits.³⁴ EPA administers NPDES permits in Massachusetts, New Hampshire, New Mexico, the District of Columbia, the remaining territories, on Indian lands, and on Lands of Exclusive Federal Jurisdiction.³⁵ EPA may also issue some NPDES permits in states that are authorized to administer NPDES permits, but do not have authorization for all NPDES program components. For example, some states do not have authorization to regulate federal facilities (e.g., military bases, national parks, federal lands) or do not have an authorized biosolids (e.g., sewage sludge) program.³⁶ In such cases, EPA retains NPDES permitting authority for those program components.

As discussed above, delegated states issue NPDES permits for discharges to WOTUS in their states (including the territorial seas for coastal states). EPA may issue NPDES permits for discharges to WOTUS, as well as for certain discharges to the contiguous zone and the ocean.

Once a state assumes administration of its NPDES permitting program, the state is responsible for issuing permits as well as for monitoring and enforcement, although EPA also retains an oversight and enforcement role.³⁷ These aspects are discussed in more detail below.

How Are Permit Limitations Established?

When a state or EPA establishes effluent (i.e., discharge) limitations in a permit, it must consider limitations based on both the technology available to control the pollutants (i.e., technology-based effluent limitations) and what is needed to attain or maintain the water quality standards of the receiving waterbody (i.e., water-quality-based effluent limitations). The permitting authority must also consider antibacksliding requirements that aim to prohibit the renewal, reissuance, or modification of an existing NPDES permit that contains effluent limitations, permit conditions, or standards less stringent than those established in the previous permit.³⁸

Technology-Based Effluent Limitations (TBELs)

TBELs are specific numerical limits (i.e., maximum allowable levels of specific pollutants), or in some cases, best management practices, that represent the minimum level of control that must be established in a permit.³⁹ The CWA requires EPA to establish TBELs for various categories of point sources/dischargers.⁴⁰ Technology-based requirements consider the performance of specific technologies as well as economic achievability. These limits do not specify what technologies must be employed; rather, they establish the levels of specific pollutants that are allowable in the discharge based on the performance of technologies identified as representing specified levels of control (e.g., best available technology economically achievable, best conventional pollutant control technology). The CWA prescribes levels of control for various dischargers, as described below.

EPA broadly classifies NPDES permittees as either (1) publicly owned treatment works (POTWs)⁴¹ or (2) non-POTWs, which include all other point sources and are also often called nonmunicipal facilities or industrial facilities.⁴²

The CWA requires POTWs to meet secondary treatment standards as determined by EPA.⁴³ Secondary treatment standards are based on performance data for POTWs that use physical and biological treatment to remove or control conventional pollutants.⁴⁴

As shown in Figure 1, the CWA requires industrial dischargers to achieve specified levels of control based on (1) whether a discharger directly or indirectly discharges into WOTUS (an indirect discharger discharges to a POTW for treatment prior to discharge into WOTUS), (2) whether the discharger is a new or existing source, and (3) the category of pollutant (conventional, toxic,⁴⁵ or nonconventional⁴⁶).⁴⁷

Figure 1. Clean Water Act Technology Levels of Control Required for Industrial Dischargers by Pollutant Category

Source: CRS, based on CWA §§301, 304, 306, and 307. Notes: EPA regulations define a new source as "any building, structure, facility, or installation from which there is or may be a 'discharge of pollutants,' the construction of which commenced: (a) after promulgation of standards of performance under CWA section 306 which are applicable to such source, or (b) after proposal of standards of performance in accordance with section 306 of CWA which are applicable to such source, but only if the standards are promulgated in accordance with section 306 within 120 days of their proposal" (40 C.F.R. §122.2). An existing source is any source that is not a new source or a new discharger (40 C.F.R. §122.29 (a)(3)).

The CWA requires EPA to publish national regulations for industrial dischargers—called Effluent Limitation Guidelines and Standards (ELGs)—which set minimum standards for specific pollutants in industrial wastewater discharges based on the specified levels of control.⁴⁸ Since 1972, EPA has developed ELGs for 59 industrial categories.⁴⁹ For direct dischargers, states or EPA incorporate the limits established in ELGs into the NPDES permits they issue. For indirect dischargers, pretreatment standards established in ELGs to prevent pass through and interference at the POTW apply.⁵⁰

Water-Quality-Based Effluent Limitations

In cases where technology-based effluent limitations are not adequate to meet applicable water quality standards, permits also incorporate water-quality-based effluent limitations.⁵¹ Water-quality-based effluent limitations are specific limits established in a permit (numeric or narrative) that, if not exceeded in the discharge, allow for attainment of water quality standards in the receiving water.⁵² Water quality standards—established by states, territories, tribes, and EPA—define the desired condition or level of protection of a water body and what is needed to achieve or protect that condition.⁵³

A 2025 Supreme Court decision—City and County of San Francisco, California v. EPA—ruled that the CWA does not authorize EPA (or states) to impose what the Court called "end-result" provisions in NPDES permits.⁵⁴ Such "end-result" requirements condition a permittee's compliance on the quality of the receiving water rather than on adherence to specific effluent limitations. Examples include certain narrative conditions added to permits to prohibit the permittee from creating nuisance conditions or causing or contributing to a violation of water quality standards in the receiving water body. Prior to the Supreme Court ruling, such provisions were commonly used by permit writers.⁵⁵ As a result of the ruling, permit writers will need to specify specific, measurable discharge limits, or will need to include specific actions a permittee must take to comply with its permit.

Types of NPDES Permits and Term Lengths

There are two main types of NPDES permits: individual permits and general permits. While both types include the same minimum components, these permits are used under different circumstances.⁵⁶ The CWA identifies some of the elements that must be included in NPDES permits and directed EPA to promulgate regulations establishing the minimum procedural requirements and elements of state NPDES programs.⁵⁷ EPA's regulations outlining the NPDES permitting processes are codified at 40 C.F.R. Part 122. State-issued laws and regulations also identify the process and requirements for NPDES permits issued by each state.

The processes for developing and issuing individual permits and general permits are similar, but there are some differences, as shown in Figure 2. The CWA limits NPDES permit terms for both individual and general permits to five years.⁵⁸

Individual Permits

EPA or states issue individual permits for a single discharger (or in rare cases to multiple co-permittees) to reflect site-specific conditions based on the discharger's operations and unique information provided in the permit application.⁵⁹ These individual permits are specifically tailored to an individual facility.⁶⁰

General Permits

EPA or states issue general permits for one or more categories or subcategories of dischargers with similar operations and types of discharges that can provide coverage to multiple dischargers.⁶¹ According to EPA, "when a large number of similar facilities require permits, a general permit allows the permitting authority to allocate resources in a more efficient manner and to provide more timely permit coverage than issuing an individual permit to each facility. In addition, using a general permit ensures consistent permit conditions for comparable facilities."⁶² Once a general permit is issued, a discharger typically submits a Notice of Intent (NOI) to request coverage under the permit.⁶³ Some general permits, however, automatically cover some discharges without submission of a NOI.

Figure 2. Key Steps in Developing and Issuing Clean Water Act (CWA) National Pollutant Discharge Elimination System Individual and General Permits

Source: CRS, based on EPA, NPDES Permit Writers' Manual, EPA-833-K-10-001, September 2010, pp. 3-3 through 3-6, https://www.epa.gov/sites/default/files/2015-09/documents/pwm_2010.pdf. Notes: If there is significant public interest during the public comment period, the permitting authority can hold a public hearing. For more information on the state certification process under CWA Section 401, see CRS Report R46615, Clean Water Act Section 401: Overview and Recent Developments, by Laura Gatz and Kate R. Bowers. While general permits typically require a discharger to submit a NOI to request coverage under the permit, some general permits do not require a NOI to obtain coverage.

Permitting Time Frames and the NPDES Permit Backlog

EPA recognizes the importance of timely issuance and reissuance of NPDES permits, noting that timeliness provides greater regulatory certainty to the business community and ensures that permits improve environmental protection by reflecting the most recent scientific information.⁶⁴ However, EPA and some states have permitting "backlogs" for both individual and general permits. EPA notes that it "continuously works to increase efficiencies in permitting processes to decrease the NPDES permit backlog and encourages authorized NPDES permit programs to do the same."⁶⁵

EPA regulations require any person proposing a new discharge to apply for a permit at least 180 days before the discharge is to commence.⁶⁶ EPA considers applications for new EPA-issued permits that are not issued or denied within 365 days of receipt of the application to be backlogged.⁶⁷

Permittees that want to renew their permit must submit a complete application for permit renewal at least 180 days prior to their permit expiration date.⁶⁸ If the permitting authority receives the complete application but fails to reissue the permit prior to the expiration date, the permit is "administratively continued" and operates under the same terms and conditions until the new permit is issued.⁶⁹ EPA considers permits that are administratively continued for 180 days or more to be backlogged.⁷⁰

EPA tracks the NPDES permit backlog for both EPA-issued and state-issued permits, including individual and general permits.⁷¹ Table 1 provides a summary of the NPDES permit backlog for individual existing permits as of October 1, 2025.⁷² EPA data also indicate that as of the same date, EPA had a backlog for new individual permits—10 for permits on Tribal land and 14 for other EPA-issued permits.⁷³ EPA's NPDES backlog data do not provide information on the backlog for new state-issued individual permits. Table 2 provides a summary of the NPDES permit backlog for general permits as of October 1, 2025, including data on the estimated number of facilities covered by the backlogged permits.

Monitoring, Reporting, Inspections, and Enforcement

States, permitted entities, and EPA have roles in ensuring NPDES permit compliance. Monitoring to ensure compliance with NPDES permits includes both monitoring performed by the permittee as well as monitoring performed by the permitting authority (either the state or EPA) during inspections. Authorized states and EPA also cooperatively enforce NPDES permitting requirements.

Permittee Monitoring and Reporting

NPDES permits specify the monitoring requirements the permittee must conduct to demonstrate compliance with permit limitations.⁷⁴ EPA's regulations require that NPDES permits specify the required monitoring including the type, intervals, and frequency sufficient to yield data representative of the monitored activity, and may include continuous monitoring when appropriate.⁷⁵ EPA regulations also require NPDES permits to specify reporting requirements, which are established on a case-by-case basis with a frequency dependent upon the nature and effect of the discharge. In most cases, permittees must report their monitoring results at least annually.⁷⁶ NPDES permits also include standard conditions that require the permittee to notify the permitting authority regarding any instances of noncompliance.⁷⁷ In 2015, EPA promulgated a regulation to require electronic reporting and sharing of NPDES information.⁷⁸ Since that time, EPA has worked with states to phase-in electronic reporting.⁷⁹

Inspections

The CWA also authorizes EPA or states to enter premises with permitted effluents, access records, inspect monitoring equipment, and sample effluents subject to CWA monitoring requirements.⁸⁰ EPA inspects NPDES-permitted facilities in states where the agency is the permitting authority as well as on Tribal lands.⁸¹ In states that administer their own NPDES permitting programs, the states take the lead on inspections. EPA retains inspection authority in states with NPDES program authorization and sometimes conducts inspections at the request of states (to support the state's own inspection efforts) and to respond to tips or complaints.⁸²

Enforcement⁸³

The CWA authorizes EPA and delegated states to use a range of enforcement tools—administrative, civil judicial, and criminal actions—to address noncompliance with NPDES requirements.⁸⁴ EPA retains enforcement authority in delegated states, although such states generally take the lead on enforcement.⁸⁵ EPA and states will sometimes undertake joint enforcement proceedings where violations of both federal and state law are alleged. EPA and states may seek voluntary compliance with violations or may use a range of tools authorized under CWA Sections 309 and 402. The CWA authorizes EPA and states to issue administrative compliance orders (e.g., to correct violations, comply with permit conditions or limitations) and assess administrative penalties.⁸⁶ The statute also provides judicial enforcement tools. EPA and states may seek civil judicial enforcement actions and penalties, as well as criminal judicial enforcement actions (e.g., fines, imprisonment, or both) for knowing or negligent violations.⁸⁷

Section 404 Dredge and Fill Permits

The other permitting program authorized under the CWA is the CWA Section 404 permitting program for the discharge of dredged or fill material into WOTUS.⁸⁸ Dredged material includes material dredged or excavated from waterbodies, such as coastal waters, lakes, rivers, and stream beds.⁸⁹ These materials can contain pollutants that may affect water quality when discharged into receiving waters or wetlands. Regardless of the presence of pollutants in the dredged material, when it is used to fill wetlands or other receiving waters for purposes of development, the discharge can negatively affect aquatic ecosystems and the functionality of wetlands, among other outcomes. Fill material—including rock, sand, soil, construction debris—may have similar consequences when used to fill wetlands or other receiving waters.⁹⁰

The following sections detail who needs a Section 404 permit, who administers Section 404 permits, the types of Section 404 permits and term lengths, the 404 permitting process, permitting time frames, and monitoring and enforcement.

Who Needs a Section 404 Permit?

Any person who discharges dredged or fill material into WOTUS needs a Section 404 permit, unless the activity is specifically exempt under Section 404(f).⁹¹ Examples of activities that may require a Section 404 permit include infrastructure development (e.g., highways, pipelines, utility lines), water resource projects (e.g., dams and levees), mining projects, or residential or commercial development.

Who Administers Section 404 Permits?

The CWA authorizes both the U.S. Army Corps of Engineers (USACE) and states to administer Section 404 permits.⁹² States, territories, and tribes may administer their own Section 404 permits if they seek and receive approval from EPA to assume the program.⁹³ In states that assume administration of their Section 404 permits, USACE retains authority over certain waters—generally those that are currently used, or capable of being used, for interstate or foreign commerce, as well as those subject to tidal ebb and flow and their adjacent wetlands.⁹⁴ Currently, two states—Michigan and New Jersey—are authorized to administer their own Section 404 permits.⁹⁵ Florida also previously had authority to administer its own program, which EPA approved in 2020.⁹⁶ However, a U.S. District Court vacated the approval in February 2024 on Endangered Species Act grounds.⁹⁷ A U.S. Court of Appeals upheld the vacatur in March 2026.⁹⁸ USACE administers Section 404 permits in the remaining states and territories and on Indian lands, as well as for activities in retained waters in Michigan and New Jersey.⁹⁹

The CWA also establishes distinct responsibilities for EPA in implementing Section 404. EPA is responsible for developing and interpreting policy, guidance, and environmental criteria to be used in evaluating permit applications.¹⁰⁰ Section 404(b) requires USACE to evaluate permit applications using guidelines developed by EPA, in conjunction with the USACE—commonly referred to as 404(b)(1) guidelines.¹⁰¹ EPA also reviews and comments on individual permits and can elevate specific cases (i.e., request a higher level of review) using authority under Section 404(q) when the agencies do not agree.¹⁰² In addition, EPA has authority under Section 404(c) to prohibit, deny, restrict, or withdraw the use of a specified area as a disposal site for dredged or fill material whenever the Administrator determines that the discharge will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas.¹⁰³ This authority is commonly referred to as EPA "veto" authority. To date, EPA has issued final determinations under its 404(c) authority 14 times.¹⁰⁴

Types of Section 404 Permits, Term Lengths, and Permit Processes

Similar to NPDES permits, there are two main types of Section 404 permits: individual permits and general permits. However, in contrast to NPDES permits, there are multiple types of individual and general permits under Section 404, which have different permit terms. Section 404 establishes requirements for some aspects of the permits, and USACE and EPA have promulgated regulations to implement these requirements.¹⁰⁵ States with delegated authority also have their own state laws and regulations that apply to the permits they issue.¹⁰⁶

Individual Permits

USACE or states issue individual permits for individual projects or applicants, typically when the project's discharge may cause more than minimal individual or cumulative impacts.¹⁰⁷ There are two types of individual permits: standard individual permits and letters of permission (LOPs). The term lengths for individual permits issued by USACE vary based on the project. If the discharge is of a more permanent nature, the permit may include timelines for completing the work or activity or may specify a date by which the work must be started.¹⁰⁸ If the discharge is of a temporary nature, the permit would include an expiration date.¹⁰⁹ The CWA limits permit terms for state-issued individual permits to five years.¹¹⁰

Standard Individual Permits

Standard individual permits authorize discharges following a comprehensive case-specific review, including a public notice period, public interest review, an option for a public hearing, activity-specific environmental documentation, and a 404(b)(1) guidelines analysis.¹¹¹ See Figure 3 for a general overview of the procedure USACE uses to evaluate a standard individual permit application.

Figure 3. Overview of the U.S. Army Corps of Engineers (USACE) Section 404 Permitting Process for Standard Individual Permits

Source: CRS analysis of USACE permitting process information at https://rrs.usace.army.mil/rrs/home/permitting and 33 C.F.R. Part 325.

If USACE is the permitting authority, the district engineer must comply with environmental procedures and documentation required under the National Environmental Policy Act (NEPA).¹¹² A decision on the permit application requires either an environmental assessment or an environmental impact statement unless the permitted activity is included within a categorical exclusion.¹¹³

Public interest reviews evaluate the probable impacts of the proposed activity to determine whether the activity is in the public interest. The review includes a careful weighing of a wide range of factors relevant to a particular permit application. These potential factors include conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership, and the needs and welfare of people.¹¹⁴

USACE and states also conduct 404(b)(1) guidelines evaluations when considering whether to issue a standard individual permit. The fundamental principle of the criteria within the guidelines is that dredged or fill material should not be discharged into WOTUS unless it can be demonstrated that the discharge will not have unacceptable adverse impacts on those waters. The 404(b)(1) guidelines require the following determinations for permit issuance: (1) the project is the least environmentally damaging practicable alternative; (2) the project will not cause or contribute to the violation of applicable state or federal laws, such as water quality standards or the Endangered Species Act; (3) the project will not cause or contribute to significant degradation of WOTUS; and (4) any appropriate and practicable steps have been taken to minimize the adverse impacts of the project on wetlands and other waters.¹¹⁵

The 404(b)(1) guidelines aim to ensure that all appropriate and practicable steps are taken to avoid and minimize impacts to aquatic resources. For unavoidable impacts, the guidelines require compensatory mitigation to replace the loss of wetland, stream, and/or other aquatic resource functions.¹¹⁶ USACE (or the approved state authority) is responsible for determining the appropriate form and amount of required compensatory mitigation. Mitigation may include aquatic resource restoration, enhancement, establishment, and in certain circumstances, preservation.¹¹⁷ The 404(b)(1) guidelines specify what the USACE district engineer (or state authority) should consider when determining the required compensatory mitigation as well as the general requirements for compensatory mitigation.¹¹⁸

Letters of Permission

LOPs are a type of individual permit issued by USACE under a more expedited process when a USACE district determines that the proposed work is minor, would not have significant individual or cumulative impacts on the environment, and is unlikely to face substantial opposition.¹¹⁹ Applications that qualify for authorization under a letter of permission do not require USACE to publish an individual public notice and are categorically excluded from NEPA (so do not require an environmental assessment or environmental impact statement).¹²⁰ However, USACE still must conduct a public interest evaluation and comply with other laws. USACE issues LOPs in the form of a letter, which includes details such as the permittee's information, project location, authorized work, time limits, general conditions, and any specific limitations or conditions applicable to the project.¹²¹

General Permits

USACE (and authorized states) may issue general permits for proposed activities that are similar in nature and will result in only minimal individual and cumulative adverse environmental effects.¹²² These permits, authorized under CWA Section 404(e), are issued on a nationwide, regional, or state basis for particular categories of activities.¹²³ The CWA limits general permit terms to no more than five years.¹²⁴

General permits are a key means by which USACE streamlines the requirements of its permitting process: they essentially preauthorize categories of activities USACE has identified as being similar in nature and causing only minimal environmental impacts. The issuance process for a general permit closely parallels the issuance process for individual permits, with a public notice, opportunity for a public hearing, and detailed decision documentation.¹²⁵ Once a general permit is issued, activities that qualify for the general permit may proceed, provided the terms and conditions of the general permit are met, without the project proponent having to obtain an individual, site-specific permit.

Many general permits require a NOI to seek coverage under the general permit (sometimes called a preconstruction notification, or PCN), USACE review of the proposed work, and USACE's written verification of compliance with the general permit before the project can commence.¹²⁶ However, in some cases, activities that qualify for a general permit can proceed without USACE's written confirmation if the permit applicants adhere to the terms and conditions of the permit.¹²⁷

Nationwide Permits

Nationwide permits (NWPs) are general permits that authorize categories of similar activities on a nationwide basis.¹²⁸ USACE issues NWPs (along with general conditions and definitions for the NWPs) through rulemaking, typically every five years. In January 2026, USACE reissued 56 existing NWPs (with some modifications) and issued one new NWP.¹²⁹ These NWPs went into effect on March 15, 2026. Examples of activities covered under NWPs, if they meet terms and conditions of the permit, are oil and natural gas pipeline activities, linear transportation projects, utility line activities, residential developments, commercial and institutional developments, agricultural activities, mining activities, and wetland and stream restoration activities.¹³⁰

To qualify for a NWP, a proposed activity must satisfy its terms and conditions.¹³¹ These aim to ensure the activity will not result in greater than minimal individual or cumulative adverse impacts. Some NWPs limit the acreage of WOTUS that may be impacted (e.g., no greater than ½ acre of impacts) or may limit discharges to only certain types of wetlands (e.g., allowing discharges only to nontidal wetlands).¹³² USACE has established 32 general conditions that apply to the NWPs. These conditions address a wide range of issues, including endangered species, water supply intakes, historic properties, tribal rights, coastal zone management, and navigation.¹³³

Regional General Permits

USACE district offices may issue regional general permits (RGPs) for their geographic area of regulatory jurisdiction. RGPs authorize specific activities within WOTUS that are typically common for that geographic area, are more minor in scope, and result in no more than minimal individual and cumulative impacts to WOTUS.¹³⁴

Programmatic General Permits

USACE may issue programmatic general permits (PGPs) to avoid duplication between existing state, local, or other federal agency programs that provide comparable aquatic resource protection.¹³⁵ State programmatic general permits (SPGPs) are a type of PGP that USACE districts may issue to a state for activities that are similar in nature and cause no more than minimal individual or cumulative impact and reduce regulatory duplication. While USACE remains the permitting authority, an SPGP allows the state to verify that an applicant qualifies for the federally issued permit.¹³⁶

Permitting Time Frames

According to USACE data, in FY2024, the agency issued 42,269 written authorizations (i.e., individual permits and general permit verifications).¹³⁷ Of these, 98% were authorized by more expedited forms of permits—either letters of permission or general permits (see Table 3).¹³⁸ USACE data for written authorizations do not account for all activities authorized by general permits; some authorized activities do not require notification to USACE prior to conducting the activity.¹³⁹

USACE data also indicate how long, on average, it takes the agency to evaluate the various permit types and issue a decision. Table 4 summarizes USACE data showing the mean evaluation days and the mean total application days for each permit type. The mean evaluation days reflects the mean number of days it takes USACE to reach a permit decision after it receives a complete individual permit application, a complete NWP PCN, or a complete general permit verification request. The mean total application days reflects the mean number of days it takes USACE to reach a permit decision from the date the agency receives a permit application, NWP PCN, or general permit verification request (which may not be complete).

Monitoring, Reporting, and Inspections

CWA Section 404 permits may include special conditions when necessary to satisfy legal requirements or ensure compliance with permit terms and conditions.¹⁴⁰ Such conditions may include monitoring, reporting, and inspection requirements. The specific monitoring that may be required depends upon the site-specific activity, but may include, for example, monitoring of wetlands, streams, or other aquatic resources to assess impacts from the discharge, monitoring to ensure that any compensatory mitigation measures are meeting performance standards, or water quality monitoring to assess effects on receiving waters.¹⁴¹ The permit may also require the permittee to submit periodic reports to USACE, which may detail the project's progress, compliance status, or any monitoring results.¹⁴² USACE permits also require that the permittee must allow USACE representatives to inspect the authorized activity at any time to ensure it is in compliance with the permit terms and conditions.¹⁴³

Enforcement¹⁴⁴

When USACE is the permitting authority, EPA and USACE share enforcement authority for Section 404.¹⁴⁵ The two broad categories of Section 404 violations are (1) failure to comply with a Section 404 permit's terms and conditions and (2) discharging dredged or fill material into WOTUS without a permit. EPA and USACE entered into a memorandum of agreement (MOA) regarding Section 404 enforcement roles in 1989.¹⁴⁶ Per this MOA, USACE has the lead on USACE-issued permit violation cases. For unpermitted discharges, EPA and USACE determine the appropriate lead based on criteria in the MOA.

EPA and USACE may seek voluntary compliance with violations or may use a range of enforcement tools authorized under CWA Sections 309 and 404.¹⁴⁷ The CWA authorizes EPA and USACE to issue administrative compliance orders (e.g., to stop ongoing illegal discharges, remove illegal discharges, comply with permit conditions or limitations, and/or restore the site) and assess administrative civil penalties.¹⁴⁸ The statute also provides judicial enforcement tools. EPA and USACE may seek civil judicial enforcement actions and penalties, as well as criminal judicial enforcement actions (e.g., fines, imprisonment, or both) for knowing or negligent violations.¹⁴⁹

Clean Water Act Section 401

Separate from, but related to permitting, CWA Section 401 requires a type of approval, called a water quality certification, for any federal permit or license that may result in a discharge to WOTUS.¹⁵⁰ A water quality certification, issued by the state (or other certifying authority)¹⁵¹ in which the discharge originates, attests that the discharge will comply with applicable provisions of certain enumerated sections of the CWA (301, 302, 303, 306, 307) and may include consideration of other water quality requirements.¹⁵² Examples of activities that may require a CWA Section 401 water quality certification include activities requiring a USACE-issued CWA Section 404 permit, projects requiring USACE Rivers and Harbors Act permits, hydropower projects licensed by the Federal Energy Regulatory Commission (FERC), and certificates of public convenience and necessity issued by FERC.

A certifying authority may grant, grant with conditions, deny, or waive certification of proposed federal licenses or permits.¹⁵³ If a certifying authority grants a certification with conditions, those conditions must be included in the final license or permit.¹⁵⁴ If a certifying authority denies certification, the federal license or permit may not be granted.¹⁵⁵ If a certifying authority does not act on a certification request in a reasonable period of time (which per the statute is not to exceed one year), the certification is waived.¹⁵⁶

Although CWA Section 401 water quality certifications are not permits, their role in and effect on issuance of federal permits and licenses has attracted attention in permitting reform debates. Key areas of policy interest include time frames for issuing certifications, the scope of states' certification reviews, the scope of conditions states can impose when granting a certification, and enforcement roles for those conditions.

On January 15, 2026, EPA published a proposed rule to update the Section 401 implementing regulations.¹⁵⁷ If finalized, the rule would narrow the scope of what states may consider in their reviews and the scope of conditions they may attach to their certifications, among other changes.

For more information on CWA Section 401 and related policy issues, see CRS Report R46615, Clean Water Act Section 401: Overview and Recent Developments, by Laura Gatz and Kate R. Bowers

Congressional Interest—Hearings and Legislation in the 119^th Congress

Many Members have shown interest in policy issues pertaining to CWA permitting—especially permitting reform—in recent Congresses. Congress has held hearings that have included discussion of CWA permitting, and some Members have introduced legislation that either focuses specifically on CWA permitting or would amend CWA permitting within broader permitting reform bills.

Hearings

In the beginning of the 119^th Congress, the House Committee on Transportation and Infrastructure, Subcommittee on Water Resources and Environment, held a legislative hearing on CWA permitting—specifically to examine how Congress can ensure that the CWA "balances the goals of protecting water quality and ensuring project completion, reducing supply chain challenges, and promoting commerce."¹⁵⁸ The Senate Environment and Public Works Committee also held a hearing early in the 119^th Congress focused on examining ways to improve federal environmental review and permitting processes. While broader in scope, it included discussion of CWA permitting and proposed reforms.¹⁵⁹ Other hearings that included discussion of CWA permitting and proposed reforms were held by the House Committee on Energy and Commerce, Subcommittee on Energy, and the House Committee on Natural Resources, Subcommittee on Energy and Mineral Resources.¹⁶⁰

Legislation

Some Members of Congress have also introduced legislation that proposes changes to different aspects of CWA permitting. As of October 14, 2026, Members introduced approximately 55 bills (including amendments) in the 119^th Congress that would amend some aspect of CWA permitting (see Table 5). Some of these bills focus on one particular issue, such as permit terms or exemptions for specific activities from CWA permitting requirements. Other bills address multiple aspects of CWA permitting and/or propose broad-ranging reforms to federal permitting and reviews, with provisions targeting CWA permitting or reviews. Table 5 summarizes CRS analysis of the CWA permitting-related legislation introduced in the 119^th Congress. It lists each bill and identifies whether the bill includes provisions that would amend the term WOTUS (and therefore the scope of CWA permitting), Section 401 water quality certification, Section 402 NPDES permitting, and/or Section 404 permitting.

Although Section 401 water quality certifications are not permits, they are a type of approval required for some projects to move forward and have implications for issuance of some federal permits and licenses. Some Members of Congress and other stakeholders have discussed and targeted Section 401 water quality certifications in permitting reform debates—both CWA-specific debates and in the context of broader federal permitting reform. Accordingly, CRS analysis of CWA-related permitting reform bills includes discussion of Section 401.

WOTUS-Related Legislation

Three of the bills introduced during the 119^th Congress (S. 795, H.R. 3898, and S. 5262) would amend the statutory definition of navigable waters to provide a new definition of the term or specify and/or clarify certain exclusions from the scope of WOTUS. One bill (S. 5653) would specify the judicial review provision applicable to regulations defining the scope of WOTUS.

Section 401-Related Legislation

Over a quarter of the bills introduced during the 119^th Congress that propose to address some aspect of CWA permitting would make changes to some aspect of CWA Section 401 and/or the CWA Section 401 water quality certification process.

Some of these bills would amend Section 401 directly to address policy issues such as the scope of what states may consider in making certification determinations; the scope of what conditions they may include when granting certifications with conditions; the enforcement roles of federal agencies versus states; the timelines associated with certifications; and/or judicial review for 401 certifications (e.g., H.R. 3928, H.R. 3898, S. 4475, S. 4755, S. 4944, H.R. 9855, S. 5653).

Some bills (e.g., H.R. 3668, S. 4300, S. 4944, S.Amdt. 5945) would exempt certain projects (i.e., certain pipeline projects requiring authorizations under the Natural Gas Act) from 401 certification requirements. These bills would instead designate the state that would have been the 401-certifying authority as a participating agency in any FERC-led National Environmental Policy Act review process.

Section 402-Related Legislation

More than half of the bills introduced during the 119^th Congress that propose to address some aspect of CWA permitting would make changes to CWA Section 402 NPDES permitting. Some of these bills would extend permit term limits from 5 years to 10 years (e.g., H.R. 2093, H.R. 3898, S. 4944, S.Amdt. 5945, S. 5653). Some would formally authorize the use of general permits under CWA Section 402 (which EPA and states already use in practice) and/or would specify requirements for instances when either a general permit expires before a new one is issued or if EPA decides not to issue a new one (e.g., H.R. 3041, H.R. 3898, H.R. 3899, S. 4944, S.Amdt. 5945).

Several bills would exempt certain activities from Section 402 permitting requirements. Examples include exemptions for certain pesticide discharges (e.g., H.R. 3824, H.R. 3898); aerial discharges of products used for fire control and suppression (e.g., H.R. 3300, H.R. 3898, S. 1672, H.R. 7567); and discharges from portable water treatment and filtration facilities following certain disaster or emergency declarations (H.R. 4879). One bill would remove an existing Section 402 permitting exemption for certain discharges of stormwater runoff from oil, gas, and mining operations (H.R. 6090).¹⁶¹

Two bills (H.R. 3897 and H.R. 3898) would specify what it means to be in compliance with a Section 402 permit with respect to a discharge for which an effluent limitation is not included in the permit. These proposed changes may help clarify whether a permittee is in compliance with a permit when emerging contaminants, such as per- and polyfluoroalkyl substances (PFAS), might be present in the discharge, but no effluent limits are specified in the permit. Both bills would also require that if permitting authorities include water-quality-based effluent limitations in permits, they must specify the pollutant subject to the limitation and clearly describe how the limitation may be achieved.

A few bills would make changes to how state water quality standards (H.R. 3934, H.R. 3898) water quality criteria (H.R. 3898, S. 5653), and/or technology-based effluent limits (H.R. 3898) are established, which all have implications for limitations that may be included in NPDES permits. Two other bills (H.R. 7543 and S. 4181) would require EPA to establish ELGs for certain industrial categories associated with plastic manufacturing, prohibit the discharge of plastic pellets or other preproduction plastic materials, and require that NPDES permits reflect the prohibition.

A few bills would address aspects of judicial review with relation to NPDES permitting (e.g., H.R. 8037, S. 1355, S. 2226).

Section 404-Related Legislation

More than half of the bills introduced during the 119^th Congress that propose to address some aspect of CWA permitting would make changes to CWA Section 404 permitting. Several of these bills would address aspects of judicial review with relation to CWA Section 404 permitting (e.g., H.R. 2783, H.R. 3898, H.R. 3902, H.R. 3905, H.R. 7329, H.R. 8037, S. 1355, S. 2226, S. 4475, S. 4944, S.Amdt. 5945, S. 5653).

Several bills would make a variety of changes to USACE's NWPs. For example, some bills would amend the CWA to require that USACE maintain certain NWPs; maintain certain definitions and conditions related to those NWPs; and/or specify what acreage of impacts to WOTUS is considered a minimal adverse impact (H.R. 3898, H.R. 3927, S. 4475, S. 4944, S.Amdt. 5945, S. 5653). Other bills require USACE to establish new NWPs for certain activities (e.g., H.R. 3479, S. 4755).

Several bills would amend CWA Section 404(c) to narrow the time frame during which EPA may use its 404(c) "veto" authority (e.g., H.R. 3898, H.R. 3935, S. 4475, S. 4944, S.Amdt. 5945, S. 5653) or remove EPA's "veto" authority for certain permits (e.g., S. 4755).

Several bills would address aspects of the state assumption process for CWA Section 404 permitting programs. Some would require the Administrator to review EPA regulations applicable to the approval of state permit programs under Section 404 to identify opportunities to streamline the process and reduce administrative burdens and/or add a new timeline for the assumption process (e.g., H.R. 3898, H.R. 3902). Some would ratify and approve the two existing Section 404 state permitting programs for Michigan and New Jersey as well as the Florida program (which was vacated); require an act of Congress to withdraw them; and require the EPA Administrator to approve "comparable" state programs (e.g., H.R. 2030, H.R. 3898, S. 1014). Other bills would more narrowly make changes to approve Florida's program (H.R. 9017, H.R. 9171).

Several bills would extend permit term limits from 5 years to 10 years for general permits issued under Section 404 (e.g., H.R. 3898, H.R. 3927, S. 4475, S. 4944, S.Amdt. 5945, S. 5653). S. 4755 would extend the permit term limit to 10 years for a new NWP the bill requires for certain dredging projects.

Some bills would establish certain permitting deadlines for Section 404 permits (e.g., H.R. 7329, H.R. 8308, S. 4795) or require USACE to expedite procedures and reallocate or augment personnel and resources needed to eliminate backlogs of 404 permit applications and jurisdictional determination requests (e.g., H.R. 3898).¹⁶² Other bills would exempt certain activities from Section 404 permitting requirements (e.g., H.R. 2783, S. 1254, S. 2226) or authorize the President to waive compliance with CWA permitting requirements, including Section 404, for certain pipeline projects (H.R. 9838).

Policy Issues and Options for Congress

Congress's interest in CWA permitting, as demonstrated through hearing discussions and legislative efforts, can be grouped under a few broader policy areas: the balance of federal versus state authority for permitting-related programs and decisions; regulatory certainty; and timelines for permit issuance, particularly for certain energy, mineral, and other projects identified as being of national importance.

Federal Versus State Authority

Cooperative federalism—a model in which federal and state governments collaborate and share responsibilities in governing—is a core principle of the CWA. Section 101(b) states 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 chapter."¹⁶³ The statute aims to balance the goals of preserving states' sovereignty over their waters with the need for national consistency in regulations. Section 510 provides that the CWA's requirements generally set a floor above which individual states may impose more stringent requirements.¹⁶⁴ Stakeholders, as well as some Members of Congress, have often debated the appropriate balance between federal and state authority on certain elements of the CWA. Two such elements include the scope of waters subject to federal jurisdiction under the CWA (i.e., which waters are considered WOTUS) and the scope of states' water quality certification authority under Section 401.

With respect to WOTUS, some Members of Congress and stakeholders (including industry groups, agricultural stakeholders, and some states) argue for a narrower definition of WOTUS, under which a narrower scope of waters would be subject to the CWA's federal regulations and permitting programs. Some of these stakeholders point to the CWA Section 101(b) goal and its aim to ensure that states have primary responsibilities and rights to manage their water resources.¹⁶⁵ Some of these stakeholders also reason that states are able to regulate nonjurisdictional waters through their own state laws, noting that some states have already done so.¹⁶⁶ Other stakeholders (including environmental groups and some states) and Members of Congress argue for a broader definition of WOTUS, under which a broader scope of waters would be subject to the CWA's federal regulations and permitting programs. Some of these stakeholders contend that a more inclusive definition of WOTUS would ensure more consistent federal protections and argue that the interconnected nature of water necessitates a minimum federal standard for most waters.¹⁶⁷ Some stakeholders also argue the broader scope is needed because some states have laws restricting their ability to be more stringent than federal regulations and/or may not have the resources needed to effectuate a program to regulate nonjurisdictional waters.¹⁶⁸

Regarding Section 401, stakeholders and some Members of Congress continue to debate the appropriate balance of cooperative federalism in the state water quality certification process. Some stakeholders (including industry groups and some states) and some Members of Congress argue for a narrower scope of what states can consider in their certification reviews and a narrower scope of what conditions may be included in a grant of certification. Stakeholders arguing for a narrower scope often contend that states are sometimes considering impacts beyond the intent of the CWA and are leading to delays in projects, some of which they contend are nationally important projects.¹⁶⁹ As discussed above, some stakeholders and Members of Congress have additionally proposed eliminating the CWA Section 401 water quality certification requirements for certain authorizations under the Natural Gas Act and further narrowing the state role in reviewing the water quality impacts of such projects to a participating agency in a federally led process.¹⁷⁰ The proposal under the Bipartisan American Affordability and Jobs Act (BAAJA; S. 5653) would narrow the scope of what states can consider in their certification reviews and what conditions may be included in a grant of certification generally, and would further narrow the scope of certification reviews and conditions for certain project types—interstate transmission line projects and interstate infrastructure projects that require a certificate of public convenience and necessity under Section 7 of the Natural Gas Act.

Other stakeholders (including environmental groups and some states) and Members of Congress argue for maintaining the current scope of what states can consider in their certification reviews and the scope of what conditions a state may add to a grant of certification. Stakeholders arguing for maintaining the current scope point to the cooperative federalism framework of the CWA and the need to ensure that states can safeguard their water resources from any potential water quality impacts from federally licensed or permitted projects.¹⁷¹ Some stakeholders also argue that current CWA regulations for Section 401 require the scope of certification reviews and conditions to pertain to water quality requirements.¹⁷² A survey conducted by the Association of Clean Water Administrators (ACWA)—a national, nonpartisan professional organization with membership comprising the state, interstate, and territorial officials who are responsible for the implementation of surface water protection programs—found that their survey data do not support that states are misusing their 401 authority. ACWA stated that their findings suggest targeted administrative improvements may better address documented causes of delay rather than statutory restrictions on state Section 401 authority.¹⁷³

Congress may consider legislation related to WOTUS or Section 401. Congress may consider whether to clarify the definition of WOTUS or provide more specific instruction to the agencies as to their interpretation of the CWA. Congress may also consider amending Section 401 to clarify congressional intent regarding policy issues, such as the scope of certification reviews and conditions and certification timelines. As has been considered in recent sessions of Congress, including the 119^th, this legislation could be freestanding or it could be included as part of broader permitting reform legislation. Alternatively, Congress may consider overseeing the Administration's regulatory efforts on both topics and/or implementation of existing regulations or any new final regulations.¹⁷⁴ Congress may also opt not to act and to leave implementation of these issues to EPA, USACE, and states. In selecting policy options, Congress may consider the interaction between these two issues and how any legislative or regulatory reforms would affect their intended aims regarding cooperative federalism.

Regulatory Certainty

Another policy issue central to CWA-permitting reform discussions is regulatory certainty (i.e., the aim to establish a more stable and predictable legal and regulatory environment). Some Members have introduced legislation intended to improve regulatory certainty. Examples include bills related to permit terms, bills to clarify what it means to be in compliance with a permit, and bills to establish limits for the time period during which EPA may "veto" a Section 404 permit.

Permit Term Length

Several bills introduced in the 119^th Congress include changes to permit term limits. Most permit terms under the CWA currently have 5-year term limits, as established in statute. Some Members have introduced bills that would extend some permit term limits to 10-year terms. Some bills focus on NPDES permit term limits, some focus on certain Section 404 permit term limits, and some would extend both. Both the House-passed PERMIT Act (H.R. 3898) and BAAJA (S. 5653) would extend permit term limits for both NPDES and Section 404 permits.

NPDES Permit Terms

Some stakeholders (including some states and industry groups) point to administrative backlogs in issuing and renewing NPDES permits as a reason to lengthen terms to reduce administrative burdens for EPA and states.¹⁷⁵ Some also contend that 10-year terms allow for more regulatory certainty for regulated entities undertaking longer-term infrastructure projects (such as wastewater treatment plant upgrades, stormwater collection and treatment system upgrades, industrial development, and energy-related infrastructure projects) and avoid the need for application renewals or reviews mid-construction.¹⁷⁶ Along these lines, some reason that longer permit terms would provide states and regulated entities more time to implement new technologies and integrated watershed-based management approaches.¹⁷⁷

A survey conducted by ACWA in 2024 found that "a significant majority" of the 41 ACWA member states that responded to the survey generally supported updating the CWA to allow for up to 10-year NPDES permit terms.¹⁷⁸ Two states strongly opposed any permit term change, and at least three states would support a 10-year term if the flexibility applied only to a subset of NPDES permit holders, such as minor sources with good compliance histories.¹⁷⁹ ACWA emphasized that all states responding to the survey indicated opposition to requiring 10-year permits.¹⁸⁰ Some suggested criteria would help specify when a 10-year permit would be appropriate.

Stakeholders that oppose extending NPDES permit term limits (including some states and environmental groups) contend that longer terms could reduce regulatory oversight over time, would provide fewer opportunities to update permits to reflect the best available science and technology and any updated standards, and would reduce opportunities to engage with tribes, the public, and neighboring states.¹⁸¹ Some stakeholders also note that longer permit terms could reduce state revenues from permit fees, which help fund NPDES permitting programs in some states.¹⁸² Some stakeholders contend that improving federal funding for state programs would resolve the concerns driving the interest in extending permit terms.¹⁸³

Section 404 Permit Terms

Some stakeholders also support extending permit term limits for general permits under Section 404—including NWPs. Supporters of extending permit terms under Section 404 assert that the extension could help streamline permitting, provide certainty for developers, and help minimize disruptions in project planning and implementation.¹⁸⁴ However, other stakeholders oppose the extension, arguing that a 10-year timeline would reduce opportunities to incorporate new data or science into NWPs.¹⁸⁵ Participants in a roundtable conducted by the Bipartisan Policy Center, which asked about views on extending certain Section 404 permit terms, "generally supported extending the timeframe but recognized the trade-off between improving permitting efficiency and ensuring permits remain responsive to the changing environment."¹⁸⁶ Additionally, the Bipartisan Policy Center noted that "there was consensus among participants that [NWPs] generally work well and should be preserved, with the bigger problems lying in individual permits."¹⁸⁷

Congress may consider legislation to extend permit term limits or may opt to keep the existing permit term limits. If Congress opts to extend permit term limits, it may consider whether to provide flexibility to EPA, USACE, and states in setting permit terms and whether to identify criteria regarding when longer permit terms are appropriate or instances in which shorter terms might be needed. Alternatively, if Congress opts to extend permit term limits, it may consider specifying circumstances under which a permit may be modified during the term of the permit. For example, BAAJA (S. 5653) would extend the permit term limit for both NPDES and Section 404 permits from 5 years to 10 years and specify that the Secretary of the Army may modify a general permit under Section 404 either during the term of the general permit or during renewal. As another option, Congress may opt to maintain existing permit term limits and consider oversight of efforts to reduce NPDES backlogs or may examine whether federal resources provided to states to implement their permitting programs are sufficient to help support efforts to reduce any backlogs.

Permit Compliance Clarification

Some Members have also introduced bills aimed at clarifying what it means to be in compliance with a CWA permit. In recent years, there has been some uncertainty about what it means to be in compliance with a permit if a permittee is discharging pollutants for which effluent limitations are not specifically included in the permit. This uncertainty has specifically arisen in the context of contaminants of emerging concern, such as PFAS.¹⁸⁸ Members have introduced two bills aimed at clarifying permit compliance with respect to discharges of pollutants for which effluent limitations are not specifically included in the permit. These bills would amend the CWA's "permit shield," to include discharges of pollutants not expressly listed in a permit or permit application, as long as the permit holder identifies the relevant waste streams during the permitting process. These bills could also affect the scope of liability for discharges under other federal laws.¹⁸⁹ Some stakeholders (including some industry groups and public entities that provide wastewater and stormwater services) support these efforts and assert that they would "ensure good-faith permit holders are not held to be unlawfully discharging pollutants that were not addressed by their permit writer, such as emerging contaminants not yet subject to water quality standards."¹⁹⁰ Other entities (including environmental groups) oppose these efforts, noting that these bills would allow industries to discharge PFAS and other emerging contaminants without accountability.¹⁹¹

In addition, as discussed previously, there has been some uncertainty about compliance when permit writers have included narrative water-quality-based effluent limits in permits that require an "end-result" for the receiving water body rather than a specific discharge limit or condition. The two bills noted above would also specify the form that such limitations must take, with the aim of clarifying for a permittee what steps they must take to be in compliance with their permit. Some observers note that these bills codify the Supreme Court's 2025 decision in City and County of San Francisco, California v. EPA.¹⁹²

Congress may consider legislation to clarify what it means to be in compliance with a permit. Alternatively, Congress may oversee EPA's efforts to clarify these issues through regulations or guidance. Congress also may opt not to act and leave EPA and states to implement their permitting programs and address any uncertainty through best professional judgement.

Timing of EPA's 404(c) "Veto" Authority

As discussed above, EPA has authority, under Section 404(c) to prohibit, deny, restrict, or withdraw the use of a specified area as a disposal site for dredged or fill material whenever the Administrator determines that the discharge will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas. This authority is commonly referred to as EPA "veto" authority. To date, EPA has issued final determinations under its Section 404(c) authority 14 times.

Two of EPA's most recent uses of Section 404(c) authority drew attention from stakeholders for the timing of the decisions. In one instance, EPA first initiated the Section 404(c) process for the Pebble Deposit area in Alaska prior to the permittee submitting a Section 404 permit application.¹⁹³ In the other instance, EPA issued its 404(c) "veto" years after USACE issued a Section 404 permit for the Spruce No. 1 Mine Project in West Virginia.¹⁹⁴ These EPA actions prompted discussion about the timing of EPA's 404(c) determinations. Some stakeholders, including those in the regulated community, have expressed concern that EPA's 404(c) authority, without any limitation in the timing of its use, creates uncertainty for permittees.¹⁹⁵ Other stakeholders argue that the 404(c) authority is rarely used, is used for projects with significant impacts, and that limiting the time in which EPA may exercise its authority would limit the agency's ability to protect valuable water resources.¹⁹⁶

Congress may consider legislation to specify any timing parameters within which EPA may exercise its 404(c) authority. Several bills in the 119^th would amend CWA Section 404(c) to narrow the time frame during which EPA may use its 404(c) authority, including the House-passed PERMIT Act and BAAJA (S. 5653). One additional bill would remove EPA's "veto" authority for certain permits (e.g., S. 4755). Congress may also opt to maintain the current statutory authority, given the infrequency with which EPA has used the authority.

Permit Issuance Timelines

Congress also continues to be interested in CWA permit issuance timelines, particularly for certain energy, mineral, and other projects identified as being of national importance. Some Members of Congress and stakeholders continue to debate the balance between streamlining permitting processes and timelines to facilitate projects of national importance and protecting water quality and aquatic resources.

Several bills introduced in the 119^th Congress aim to shorten permitting timelines or streamline permit issuance. For example, some bills, including the House-passed PERMIT Act and BAAJA (S. 5653), would make it easier for certain projects to be eligible for NWPs by, for example, increasing the threshold for allowable impacts to wetlands or other waters. Other bills would add permitting exemptions, and still others would add permitting deadlines for certain project types.

Some stakeholders and Members of Congress support efforts to expedite or streamline permitting processes and assert these changes would help improve efficiency and predictability.¹⁹⁷ They argue that some projects that are critical to national security or economic competitiveness need to be expedited. Some also argue that long permitting times can lead to delays in project implementation or decisions to cancel projects.¹⁹⁸

Some other stakeholders and Members of Congress oppose some of these proposed changes, asserting that shorter or more limited reviews may weaken water quality protections and may reduce public input or transparency.¹⁹⁹ They argue that some of the proposed reforms prioritize expedited permit issuance over water quality protections the permits are intended to provide.

Some observers point to existing data on permitting time frames and argue for targeted, rather than broader, changes. For example, specific to Section 404, USACE authorization data, discussed under "Permitting Time Frames," show that approximately 98% of USACE's written authorizations in FY2024 were authorized by expedited forms of permits. The data also show that the majority of these approvals were issued within four months of receipt of an application and within two months of receipt of a complete application. Some argue that rather than adopting sweeping changes to the CWA's Section 404 permitting program, efforts targeted to specific projects requiring individual permits may more appropriately address timeliness.²⁰⁰ Some observe that the projects requiring longer time frames often involve multiple approvals at the federal, state, and local levels, and involve a wide range of potential resource impacts that warrant longer evaluation times.

Congress may consider legislation to address CWA permit issuance timelines. Congress may consider making broad changes to the CWA's permitting programs, targeted changes to certain industries or permit types, or both. BAAJA (S. 5653), for example, utilizes both approaches. BAAJA (S. 5653) proposes to make broad changes to both the NWP program and the CWA Section 401 certification process that aim to shorten timelines, and would make additional changes specific to certain project types, including certain interstate linear infrastructure projects. Alternatively, Congress may consider oversight of EPA, USACE, and state efforts to implement the CWA permitting programs with a focus on issues of timeliness and may examine whether agency staffing and resources are sufficient to support the desired timelines. Congress may also opt not to act and leave decisions about implementing the programs and efforts to address any permitting backlogs or delays to the agencies and states.

Footnotes