Introduction
The Environmental Protection Agency (EPA) has proposed a rule to update regulations implementing Clean Water Act (CWA) Section 401, published in the Federal Register on January 15, 2026. This action targets procedural and substantive aspects of water quality certifications, which states and authorized tribes use to ensure federally licensed or permitted activities comply with water quality standards. The proposal addresses uncertainties from the 2023 rule, informed by stakeholder input and EPA's reevaluation of statutory language. It affects applicants for federal licenses, such as those from the Army Corps of Engineers or Federal Energy Regulatory Commission, by standardizing certification requests and limiting review scope to point-source discharges into waters of the United States. Occurring amid ongoing litigation over prior rules, this development underscores tensions in cooperative federalism under the CWA, potentially accelerating project approvals while constraining state oversight.
Background and Statutory Framework
Section 401 of the CWA grants states and authorized tribes authority to certify that discharges from federally licensed activities comply with water quality requirements, or to deny such certifications. Enacted in 1972, it replaced a pre-1972 framework focused on activities as a whole, shifting emphasis to effluent limitations on discharges, as noted in legislative history (S. Rep. No. 92-414, at 69). EPA's role includes promulgating regulations and acting as certifier in limited cases, such as for tribes without treatment-as-state (TAS) status.
Previous EPA rules evolved from the 1971 regulations, predating the 1972 amendments, to the 2020 rule under Executive Order 13868 (attributed to President Trump), which limited scope to discharges, and the 2023 rule, which broadened it to activities. The Supreme Court's 1994 decision in PUD No. 1 of Jefferson County v. Washington Department of Ecology upheld a broad interpretation under Chevron deference, but recent rulings like Loper Bright Enterprises v. Raimondo (2024) mandate the 'best reading' of statutes, prompting EPA's reevaluation.
Key Proposed Changes
Certification Requests and Timelines
The proposal standardizes certification requests, requiring applicants to submit federal permit applications, water quality materials on potential discharges, and additional project details like discharge descriptions and maps (40 CFR 121.5). This eliminates states' ability to add custom requirements, aiming to prevent delays and ensure the one-year review clock starts uniformly. EPA cites the Second Circuit's ruling in N.Y. State Dep't of Envtl. Conservation v. FERC (2018) to support a 'bright-line' trigger for the reasonable period.
Extensions to the review timeline are limited to joint agreements between federal agencies and certifiers, not exceeding one year, with prohibitions on withdrawal-resubmittal tactics to evade deadlines (40 CFR 121.6). This draws from Hoopa Valley Tribe v. FERC (2019), which invalidated schemes extending reviews indefinitely.
Scope of Review
A core revision narrows certification scope to assuring discharges comply with water quality requirements, rejecting the 2023 'activity as a whole' approach (40 CFR 121.3). EPA argues this aligns with the 1972 amendments' focus on discharges, supported by legislative history emphasizing effluent limitations. The agency reinterprets Section 401(d)'s reference to 'applicant' compliance as not expanding scope beyond discharges, critiquing PUD No. 1's Chevron-based deference to outdated 1971 rules.
'Water quality requirements' are redefined to include CWA Sections 301-307 and state/tribal regulations for discharges, excluding broader state laws (40 CFR 121.1(f)). This limits conditions to discharge impacts on U.S. waters, excluding non-federal waters.
Certification Decisions and Modifications
Certifiers must justify decisions with statements on compliance, explanations for conditions or denials, and citations to requirements (40 CFR 121.7). Modifications require agreement from the certifier, federal agency, and applicant, with applicants approving language (40 CFR 121.10), enhancing applicant input post-certification.
Neighboring Jurisdiction Process
Revisions streamline Section 401(a)(2) reviews, allowing categorical 'may affect' determinations and requiring objections to cite violated requirements (40 CFR 121.13-121.14). Federal agencies must resolve hearings within 90 days, addressing delays noted in stakeholder feedback.
Tribal Provisions
EPA proposes repealing standalone TAS for Section 401, directing tribes to existing water quality standards regulations (40 CFR 131.8), emphasizing integrated program administration.
Implications and Perspectives
Short-term, the rule could expedite certifications for infrastructure like pipelines and hydropower, reducing delays for applicants, as evidenced by Corps data showing over 150,000 annual decisions. Long-term, it may limit state veto power, potentially increasing litigation from environmental groups arguing reduced protections, while industry views it as curbing overreach.
States like California, with broad certification practices, may face constraints, per feedback from the Association of Clean Water Administrators. Tribes emphasize sovereignty, with the proposal maintaining TAS pathways but removing standalone options. Legal precedents, including recent Supreme Court shifts, bolster EPA's narrower scope, though challenges could arise under cooperative federalism principles (CWA Section 101(b)).
