1) June 2 -- EPA Takes Action to Empower States, Territories, and Tribes to Protect Water Resources and Support Sustainable Development (news release)
Today, the U.S. Environmental Protection Agency (EPA) announced a proposed rule to update the regulatory requirements for water quality certification under Clean Water Act (CWA) Section 401. This proposed rule would strengthen the authority of states, territories, and Tribes to protect their vital water resources while supporting an efficient, predictable, and common-sense certification process, restoring a long-held right, which was severely limited by the previous administration’s rule.
This proposed rule is a key milestone in the regulatory process announced in May 2021 to revise the 2020 CWA Section 401 Certification Rule. The proposed rule would update the existing regulations to be more consistent with the statutory text of the 1972 CWA and clarify elements of Section 401 certification practice that have evolved over the 50 years since the 1971 regulation was promulgated. EPA conducted pre-proposal engagement to help inform the content of its proposal. . . .
Congress provided authority to states, territories, and Tribes under CWA Section 401 to protect the quality of their waters from adverse impacts resulting from federally licensed or permitted projects. Under Section 401, a federal agency may not issue a license or permit to conduct any activity that may result in any discharge into a water of the United States, unless the state, territory, or authorized Tribe where the discharge would originate either issues a CWA Section 401 water quality certification or waives certification.
The Agency is taking comment on this proposed rule for 60 days beginning on the date it is published in the Federal Register.
2) Proposed Clean Water Act Section 401 Water Quality Certification Improvement Rule https://www.epa.gov/cwa-401/proposed-clean-water-act-section-401-water-quality-certification-improvement-rule
On June 1, 2022, the EPA Administrator signed a proposed rule to improve the CWA section 401 certification process. The proposed rule would replace and update the existing regulations at 40 CFR 121, to be more consistent with the statutory text of the 1972 CWA and clarify elements of section 401 certification practice that has evolved over the 50 years since the 1971 regulation was promulgated. The public comment period will begin when the proposed rule is published in the Federal Register.
The Agency developed this proposed rule after considering feedback and recommendations from a broad array of stakeholders including tribes, state and local governments, project proponents, and non-governmental organizations (NGOs). Pre-proposal recommendations, including summaries from the June 2021 listening sessions and tribal consultation letters, are available in Docket ID No. EPA-HQ-OW-2021-0302.
Fact Sheet on the Proposed Clean Water Act Section 401 Water Quality Certification Improvement Rule (pdf) https://www.epa.gov/system/files/documents/2022-06/Fact%20Sheet_Proposed%20CWA%20Section%20401%20WQC%20Improvement%20Rule_6-1-22_Final_508.pdf
Pre-Publication Version of the Proposed Clean Water Act Section 401 Water Quality Certification Improvement Rule (pdf)
Economic Analysis for the Proposed "Clean Water Act Section 401 Water Quality Certification Improvement" Rule (PDF) https://www.epa.gov/system/files/documents/2022-06/ECONOM~1.PDF