EPA Issues CWA 401 Guidance

Today, EPA issued new guidance titled Clean Water Act Section 401 Certification Guidance for Federal Agencies, States, and Authorized Tribes. This guidance clarifies the existing Section 401 regulations and provides recommendations on coordination between federal agencies, states, and authorized tribes. The guidance provides clarification on Section 401 requirements and procedures on a variety of topics including:

    • statutory and regulatory timelines for review and action on a Section 401 certifications;
    • the appropriate scope of CWA Section 401 certification conditions; and
    • information within the scope of a state or authorized tribe’s CWA Section 401 review.

The new guidance also recommends early collaboration and coordination with states and tribes during the 401 certification process.  Under an Executive Order, EPA is clarifying existing certification requirements and permitting processes, and developing new rules for Section 401 implementation.  The goal is to modernize the process to avoid delays that have impacted some energy infrastructure projects.

Section 401 of the Clean Water Act (CWA) requires a water quality certification or waiver from the state or tribe before certain federal permits can be issued for activities that may discharge to waters of the U.S..  Through this process the state certifies that the permitted discharges will comply with the CWA and any state water quality standards.  Most 401 Certifications are issued for Clean Water Act Section 404 Permits issued by the U.S. Army Corps of Engineers authorizing the placing of material, or fill, into waters of the U.S..