EPA Finalized Modifications to CWA Section 401 Certification Requirements

In the September 27, 2023 edition of the Federal Register EPA finalized its modifications to its rules related to Clean Water Act (CWA) Section 401 Certification, which requires that states and tribes have the opportunity to certify their acceptance of activities that may result in “discharge” into a “Water of the United States” before the Federal government issues a permit or license authorizing those activities.

In 2020 EPA during the Trump Administration issued an update to these rules that made it harder for States and Tribes withhold their certification. This final rule removes many of those updates and includes new requirements in an attempt to make it easier for states and tribes to have the opportunity to certify applicable permits. The most significant change is EPA’s restoration of the activity approach as opposed to the discharge only approach that was a feature of the 2020 final rule – meaning that certification is required for any activity that may result in a discharge to a water of the United States as opposed to just requiring certification for a discharge into a water of the United States. The changes go into effect on November 27, 2023.