EPA To Open Public Docket And Host Listening Sessions On Clean Water Act Section 401 Implementation Challenges

The U.S. Environmental Protection Agency (EPA) invites public input on implementation challenges associated with Clean Water Act (CWA) Section 401. The agency will use input received to determine next steps to address identified areas of regulatory uncertainty or implementation challenges regarding the scope of certification.

“Central to the Powering the Great American Comeback is rejecting the false, binary choice between environmental protection and economic and energy development. It is critical that EPA meets its statutory requirements without weaponizing them against beneficial infrastructure projects,” said Senior Advisor for Water Jessica Kramer. “It is our responsibility to guarantee Clean Water Act Section 401 is only being used for its statutory purpose – to ensure permitted projects protect water quality while delivering real prosperity for all Americans.”

Once the notice is published in the Federal Register, the public will have 30 days to provide input on implementation challenges and regulatory uncertainty related to the 2023 rule. EPA will host two virtual listening sessions for the public. Information on the Federal Register notice, listening session dates, times, and registration instructions, and how to provide written input will be made available at a later date on EPA’s CWA-401 website.

Background
The agency first announced this effort in its May 21 memorandum, clarifying the specific and limited role that state and Tribes play in the federal licensing and permitting process under Clean Water Act Section 401. Recently, questions have been raised about potential applications of the 2023 Rule’s scope of certification.

Clean Water Act Section 401 protects water quality by giving states and authorized Tribes the authority to grant, deny, or waive certification of proposed federal licenses or permits that may discharge into waters of the United States.