EPA Proposal Could Redefine How States Review Federal Water Permits
The U.S. EPA has proposed a revision to Section 401 of the Clean Water Act, a move that could significantly reshape how states exercise authority over infrastructure projects that may affect water quality.
Section 401 gives states and tribes the power to confirm or deny whether an infrastructure project will comply with applicable water quality standards before any licensing or permits can be issued.
The proposed rule would revise both the timing and scope of Section 401 water quality certifications. It reinforces a maximum one-year deadline for states and authorized tribes to act on a certification request, and eliminates the practice of withdrawing and resubmitting requests to extend review timelines. The proposal also narrows the definition of “water quality requirements” to specific provisions of the Clean Water Act, such as effluent limits, water quality standards, and toxic pollutant controls.
The rule’s intent is to return Section 401 “to its clear statutory boundaries,” said Administrator Lee Zeldin.
While the EPA and many other industry groups maintain that the proposal will reduce permitting delays and help critical infrastructure projects move forward more predictably, some environmental organizations and state officials strongly oppose the rule.
“This latest proposal would strip states and Tribes of their right to protect their waterways from health harming pollution,” the League of Conservation Voters wrote. “It will make our waters dirtier and our families sicker at a time when healthcare costs are already going up for millions.”
In contrast, many manufacturing groups celebrate the proposal. “Too often, the vaguely worded Section 401 has been used as an excuse to block critical infrastructure and trade projects,” said Jay Timmons, president of the National Association of Manufacturers.
The public comment period is now open, giving stakeholders 30 days to weigh in before the EPA finalizes the rule, expected later this spring.