Clean Water Act Section 401: Overview and Recent Developments
Congressional research reportFeb 7, 2025
Ask Donna
What actually matters in this document.
Text
Clean Water Act Section 401: Overview and
Recent Developments
Updated February 7, 2025
Congressional Research Service
https://crsreports.congress.gov
R46615
SUMMARY
Clean Water Act Section 401: Overview and
Recent Developments
R46615
February 7, 2025
Laura Gatz
Specialist in Environmental
Congress established the Clean Water Act (CWA) to “restore and maintain the chemical,
Policy
physical, and biological integrity of the Nation’s Waters.” Under CWA Section 401, any
applicant for a federal license or permit to conduct any activity that may result in any discharge
into navigable waters (i.e., waters of the United States) shall provide the federal licensing or
Kate R. Bowers
permitting agency with a Section 401 certification. The certification, issued by the certifying
Section Research Manager
authority—usually the state in which the discharge originates, but sometimes a tribe or the U.S.
Environmental Protection Agency (EPA)—attests that the discharge will comply with applicable
provisions of certain enumerated sections of the CWA. The certifying authority may grant, grant
with conditions, deny, or waive certification of proposed federal licenses or permits. Activities
that require such federal licenses or permits include hydropower projects licensed by the Federal Energy Regulatory
Commission (FERC) and certain activities involving the discharge of dredged or fill material into waters of the United States
permitted by the U.S. Army Corps of Engineers (USACE) (e.g., pipeline projects, water resource projects, mining projects, or
other development).
Many observe that the certification authority under Section 401 has strong ramifications. If a certifying authority denies
certification, the federal license or permit is denied. If a certifying authority grants a certification with conditions, those
conditions must be included in the final license or permit. Some license and permit applicants have expressed frustration with
how some states have exercised their Section 401 authority. Key concerns include timeframes for issuing certifications, the
scope of states’ reviews, and the type of conditions that states can impose when granting a certification. Some stakeholders
have accused states of misusing Section 401 authority to block certain projects and have advocated for changes to the CWA
or implementing regulations and guidance to limit states’ Section 401 authority. Others assert that state implementation is too
lenient and may fail to block certain projects that have the potential to degrade water quality. Many states assert that Section
401 certification allows them to manage and protect the quality of waters within their states, and any efforts to limit state
Section 401 authority are contrary to the CWA’s principles of cooperative federalism.
The first Trump Administration criticized the manner in which some states exercised their Section 401 authority. In response
to an April 2019 executive order, EPA issued updated Section 401 guidance in June 2019 and published a final rule (the 2020
Rule) in July 2020 to update Section 401 regulations. The 2020 Rule went into effect in September 2020, rescinding EPA’s
2019 Guidance and replacing its existing implementing regulations for Section 401, which EPA promulgated in 1971. The
2020 Rule included numerous changes to existing regulation and practice that narrowed the authority of certifying authorities
when acting on Section 401 certification requests. Several changes addressed two broad policy issues relevant to
implementation of Section 401—certification timeframes and the scope of certifications. In addition, the 2020 Rule included
changes regarding federal review of certifications and enforcement. The 2020 Rule garnered interest from stakeholders.
Various groups, including those representing certain energy interests, generally supported the rule. Other groups, including
some states and state associations, opposed the changes. Five separate groups of states, tribes, and environmental
organizations filed lawsuits challenging the 2020 Rule.
In January 2021, President Biden issued an executive order that directed agencies to review certain agency actions from the
first Trump Administration, including the 2020 Rule. EPA’s review of the rule identified a number of concerns, prompting
the agency to issue in June 2021 a notice of intention to reconsider and revise the rule. In October 2021, a federal district
court vacated the 2020 Rule, prompting EPA to announce a temporary return to the 1971 implementing regulations. Various
states and stakeholders appealed the district court’s decision, and in April 2022, the Supreme Court temporarily reinstated the
2020 Rule. In September 2023, EPA published a new final rule (2023 Rule) to update the regulatory requirements for Section
401 certification. Similar to the 2020 Rule, the 2023 Rule includes changes to address certification timeframes and scope, as
well as enforcement and federal review. The 2023 Rule also garnered interest from a variety of stakeholders—some in
support of and some opposed to the rule—and prompted litigation.
In the 118th Congress, several legislative proposals were introduced that addressed Section 401. Some proposals in the 118th
Congress focused specifically on Section 401, and some incorporated proposed changes into broader permitting reform bills.
Congressional Research Service
Clean Water Act Section 401: Overview and Recent Developments
Contents
Background ..................................................................................................................................... 1
What Is Clean Water Act Section 401? ..................................................................................... 1
What Activities Require a Section 401 Certification?............................................................... 3
Stakeholder Interest in Section 401 ........................................................................................... 3
Actions Under the First Trump Administration ............................................................................... 4
2019 Guidance .......................................................................................................................... 5
2020 Rule .................................................................................................................................. 5
Stakeholder Views and Legal Challenges ................................................................................. 6
Actions Under the Biden Administration ........................................................................................ 8
2023 Rule ................................................................................................................................ 10
Stakeholder Views and Legal Challenges ............................................................................... 10
Policy Issues and the 2020 and 2023 Rules................................................................................... 12
Certification Timeframes ........................................................................................................ 12
“Reasonable Period of Time”............................................................................................ 12
Start of the Certification “Clock” ..................................................................................... 14
Acting on a Certification Request ..................................................................................... 15
Withdrawal and Resubmission—Waiver or Restarting the Certification “Clock”? .......... 16
Scope of 401 Certifications ..................................................................................................... 20
Scope of Section 401 Review ........................................................................................... 20
Scope of Section 401 Conditions ...................................................................................... 23
2010 EPA Guidance on the Scope of Review and Conditions .......................................... 24
Scope of Certifications in the 2020 Rule .......................................................................... 24
Scope of Certifications in the 2020 Rule .......................................................................... 25
Scope of Certifications in the 2023 Rule .......................................................................... 26
Other Selected Changes in the 2020 and 2023 Rules .............................................................. 27
Federal Review Process for Denials and Conditions ........................................................ 27
Enforcement ...................................................................................................................... 28
Treatment as a State for Tribes Under Section 401 ........................................................... 29
Congressional Interest ................................................................................................................... 29
Policy Options ............................................................................................................................... 31
Appendixes
Appendix. CWA Section 401 (33 U.S.C. §1341) .......................................................................... 34
Contacts
Author Information........................................................................................................................ 36
Congressional Research Service
Clean Water Act Section 401: Overview and Recent Developments
Background
Section 401 of the Clean Water Act (CWA) requires that any applicant for a federal license or
permit provide a certification that any discharges that may result from the licensed or permitted
activity will comply with the act, including water quality standard requirements. Disputes have
arisen over the states’ exercise of authority under Section 401. While some stakeholders argue
that states are appropriately using their Section 401 authority to manage and protect the quality of
their waters, other stakeholders, including some license and permit applicants (hereinafter
referred to as “project proponents”), have expressed frustration with how some states have
implemented this authority. Key concerns regarding implementation include the timeframes for
issuing certifications, the scope of review, and the type of conditions that certifying authorities
can impose when granting a certification.
Until 2020, the Section 401 implementing regulations in effect were those that the Environmental
Protection Agency (EPA) promulgated in 1971.1 In July 2020, EPA issued a final water quality
certification rule that went into effect on September 11, 2020 (hereinafter the 2020 Rule),
replacing the 1971 regulations.2 In January 2021, President Biden issued an executive order that
directed agencies to review certain agency actions from the first Trump Administration, including
the 2020 Rule. EPA’s review of the rule identified a number of concerns, prompting the agency to
publish in June 2021 a notice of intention to reconsider and revise the rule. Further, on October
21, 2021, the U.S. District Court for the Northern District of California issued an order remanding
and vacating EPA’s 2020 Rule, resulting in the reinstatement of the 1971 regulations.3 Various
states and industry groups appealed the district court’s vacatur order. On April 6, 2022, the
Supreme Court stayed the district court’s order, temporarily reinstating the 2020 Rule while the
appeal was pending.4 In June 2022, EPA proposed a new rule to update the regulatory
requirements for Section 401 certification, which it finalized on September 27, 2023 (hereinafter
the 2023 Rule).5 The 2023 Rule took effect on November 27, 2023, superseding the 2020 Rule.
This report provides an overview of CWA Section 401, selected policy issues, and how they were
addressed in the 2020 Rule and 2023 Rule.
What Is Clean Water Act Section 401?
Congress established the Federal Water Pollution Control Act (FWPCA), as amended by the
CWA, to “restore and maintain the chemical, physical, and biological integrity of the Nation’s
waters.”6 Under CWA Section 401 (hereinafter Section 401), any applicant for a federal license or
permit to conduct any activity that may result in any discharge into navigable waters—defined in
the statute as “waters of the United States, including the territorial seas”—shall provide the
1 EPA, “State Certification of Activities Requiring a Federal Permit or License” (hereinafter 1971 regulations), 36
Federal Register 22487, November 25, 1971. Codified at 40 C.F.R. §121.
2 EPA, “Clean Water Act Section 401 Certification Rule” (hereinafter 2020 Rule), 85 Federal Register 42210-42287,
July 13, 2020.
3 In re Clean Water Act Rulemaking, 568 F. Supp. 3d 1013 (N.D. Cal. 2021); EPA, “Clean Water Act Section 401
Water Quality Certification Improvement Rule,” 88 Federal Register 66558, 66559, September 27, 2023 (hereinafter
2023 Rule).
4 Order on Application for Stay, Louisiana v. Am. Rivers, No. 21A539 (U.S. April 6, 2022).
5 Environmental Protection Agency (EPA), “Clean Water Act Section 401 Water Quality Certification Improvement
Rule,” 87 Federal Register 35318, June 9, 2022 (hereinafter 2022 Proposed Rule); 2023 Rule.
6 CWA §101(a); 33 U.S.C. §1251(a).
Congressional Research Service
1
Clean Water Act Section 401: Overview and Recent Developments
federal licensing or permitting agency with a Section 401 certification.7 (See Appendix for the
full text of CWA Section 401.) The certification, issued by the state (or other certifying authority)
in which the discharge originates, attests that the discharge will comply with applicable
provisions of certain enumerated sections of the CWA. These include effluent (i.e., discharge)
limitations and standards of performance for new and existing discharge sources (Sections 301,
302, and 306), water quality standards and implementation plans (Section 303), and toxic
pretreatment effluent standards (Section 307).
Effluent limitations establish the levels of specific pollutants that are allowable in a discharger’s
effluent based on either the performance of technologies for a specified level of control required
by the CWA (technology-based effluent limitations) or levels necessary to attain water quality
standards in the waterbody receiving the discharge (water quality-based effluent limitations).
Water quality standards, which are developed by the state and submitted to EPA for approval,
contain three core components that specify (1) the designated uses of a waterbody (e.g.,
recreation, public water supply), (2) criteria to protect those uses (i.e., numeric concentrations of
pollutants or narrative descriptions), and (3) an antidegradation policy.8 Pretreatment standards
apply to indirect dischargers, who discharge to a publicly owned treatment works prior to
discharge into a water of the United States.9
Section 401 provides states, certain tribes, and in certain circumstances, EPA10 (hereinafter
referred to collectively as “certifying authorities”) the authority to grant, grant with conditions,
deny, or waive certification of proposed federal licenses or permits that may result in a discharge
into waters of the United States.
•
•
•
•
If a certifying authority grants the certification, the federal licensing or
permitting agency can proceed and evaluate whether the license or permit should
be issued.
If a certifying authority grants the certification with conditions, the federal
licensing or permitting agency can proceed and evaluate whether the license or
permit should be issued. Section 401 requires any conditions listed in the
certification to become a term of the federal license or permit if one is issued.
If a certifying authority denies certification, the federal licensing or permitting
agency cannot issue the license or permit.
If a certifying authority waives certification, the certification is not required for
the federal licensing or permitting agency to issue the license or permit. A waiver
may either be explicit or implicit. Specifically, the CWA provides that if the
certifying authority “fails or refuses to act on a request for certification, within a
reasonable time (which shall not exceed one year) after receipt of such request,
the certification requirements of this subsection shall be waived.”11
7 33 U.S.C. §1341. The statute defines “navigable waters” at CWA §502(7); 33 U.S.C. §1362(7), and “discharge” as a
discharge of a pollutant or pollutants at CWA §502(16); 33 U.S.C. §1362(16).
8 CWA §303(c)(2)(A), 33 U.S.C. §1313(c)(2)(A) for designated uses and criteria; CWA §§101(a) and 303(d)(4)(B), 33
U.S.C. §§1251, 1313(d)(4)(B) for antidegradation. See also 40 C.F.R. Part 131.
9 CWA §§301 and 307; 33 U.S.C. §§1311 and 1317.
10 Per CWA §518 (33 U.S.C. §1377), EPA is authorized to treat an Indian tribe as a state for certain sections of the
CWA including CWA §401 if the tribe meets certain statutory eligibility criteria. EPA acts as the certifying authority
on tribal lands where the tribe has not been granted treatment as a state, as well as on federal lands with exclusive
federal jurisdiction.
11 CWA §401(a)(1); 33 U.S.C. §1341(a)(1).
Congressional Research Service
2
Clean Water Act Section 401: Overview and Recent Developments
What Activities Require a Section 401 Certification?
Any activity that (1) requires a federal license or permit and (2) may result in a discharge into
waters of the United States requires a Section 401 certification.12 Examples include hydropower
projects requiring Federal Energy Regulatory Commission (FERC) licenses, industrial and
municipal point source discharges requiring National Pollutant Discharge Elimination System
(NPDES) permits that would be issued by EPA13 (CWA Section 402), and certain activities
involving the discharge of dredged or fill material into waters of the United States requiring U.S.
Army Corps of Engineers (USACE) permits (CWA Section 404 and Rivers and Harbors Act
Sections 9 and 10).14 Examples of activities that may require a CWA Section 404 permit include
pipeline projects, infrastructure development, water resource projects, mining projects, or
residential or commercial development. Note that such permits are required only for segments or
portions of the project that involve a discharge of dredged or fill material into federally regulated
waters (i.e., waters of the United States).
Stakeholder Interest in Section 401
Many observe that the certification authority under Section 401—which is a direct grant of
authority by Congress—has strong ramifications.15 First, if a certifying authority denies
certification, the federal license or permit is denied, which may prevent the activity, as proposed,
from taking place or lead to a modification of the activity. Second, if a certifying authority grants
a certification with conditions, those conditions are required to be included in the final federal
license or permit. Such conditions imposed by certifying authorities have, for example, limited
the time of year in which the proposed activity can occur, or required water quality monitoring or
wetland mitigation.
Some license and permit applicants (hereinafter referred to as “project proponents”) and other
stakeholders have expressed frustration with how some states have implemented this authority.16
Key concerns include the timeframes for issuing certifications, the scope of review, and the type
of conditions that certifying authorities can impose when granting a certification. Some
stakeholders have accused states of misusing Section 401 authority to block certain projects and
have advocated for changes to the CWA or implementing regulations and guidance to limit states’
authority under Section 401.17 Other stakeholders have asserted that state implementation of
12 Ibid.
13 EPA administers NPDES permits in Massachusetts, New Hampshire, New Mexico, the District of Columbia, and
certain territories and Indian lands. Because §401 covers only federally issued permits, in the 47 states that are
authorized to administer their own NPDES permits, CWA §401 certifications are not required for NPDES permits.
14 33 U.S.C. §1344; 33 U.S.C. §§401, 403.
15 EPA, Wetlands and 401 Certification: Opportunities and Guidelines for States and Eligible Indian Tribes, April
1989, p. 9, https://www.epa.gov/nscep. Deidre Duncan and Clare Ellis, “Clean Water Act Section 401: Balancing
States’ Rights and the Nation’s Need for Energy Infrastructure,” Hastings Environmental Law Journal, vol. 25, no. 2
(Summer 2019), p. 237. Jeanne Christie, The Compleat Wetlander: 401 Certification - Delivering a Big Payload for
State Rights, Clean Water, and Flood Protection, Association of State Wetland Managers, August 26, 2011.
16 See, e.g., Comments of the Association of American Railroads (May 24, 2019); Comments of the Interstate Natural
Gas Association of America (May 24, 2019). Both letters are available at EPA Clean Water Act Section 401 Water
Quality Certification Pre-Proposal Recommendations, Docket No. EPA-HQ-OW-2018-0855.
17 See, e.g., American Petroleum Institute, “API-NY Applauds Second Circuit Court Decision, Says It’s Good News for
Pipelines Across New York,” press release, February 5, 2019, https://www.api.org/news-policy-and-issues/news/2019/
02/05/apiny-applauds-second-circuit-court-decision-says-its-good-news-for-pipelines-ac. See also American Gas
Association, “EPA Proposes Updates to Certification Process for Natural Gas Infrastructure,” press release, August 9,
2019.
Congressional Research Service
3
Clean Water Act Section 401: Overview and Recent Developments
Section 401 has been too lenient in some instances and may fail to block or appropriately
condition certain projects that may lead to water quality degradation.18 Many states assert that
Section 401 certification allows them to manage and protect the quality of waters within their
states.19 They argue that any efforts to change the CWA or implementing regulations to limit state
authority under Section 401 are contrary to the principles of cooperative federalism upon which
the CWA is based.20
Actions Under the First Trump Administration
The first Trump Administration characterized some states’ uses of Section 401 authority as
misusing the CWA and directed EPA to update implementing regulations and guidance.21 EPA
finalized updated regulations in 2020 and issued updated guidance in 2019. Prior to these actions,
regulations promulgated in 1971 and interim guidance published in 2010 were in effect.22 The
1971 regulations implemented the certification provisions included in Section 21(b) of the
Federal Water Pollution Control Act (FWPCA) of 1948.23 The 1972 amendments to the FWPCA
created Section 401 and restructured the statutory framework of the statute.24 However, EPA had
not updated its 1971 implementing regulations for Section 401 to reflect the changes to the
relevant statutory text.25 EPA issued Section 401 guidance in 1989, which it updated in 2010.26
On April 10, 2019, President Trump issued Executive Order (E.O.) 13868, “Promoting Energy
Infrastructure and Economic Growth.”27 The E.O. stated that “outdated federal guidance and
regulations regarding Section 401” were “causing confusion and uncertainty and are hindering the
development of energy infrastructure.” Among other things, the E.O. directed EPA to review and
issue new guidance to supersede the existing Section 401 guidance and to revise the agency’s
existing Section 401 implementing regulations. The E.O. instructed EPA to focus on the need to
promote timely federal-state cooperation, the appropriate scope of water quality reviews, the
18 Sierra Club, “Environmental Groups Challenge Virginia’s Unlawful Approval of Fracked Gas Pipeline,” press
release, December 8, 2017, https://www.sierraclub.org/press-releases/2017/12/environmental-groups-challengevirginia-s-unlawful-approval-fracked-gas. Sierra Club, “Dereliction of Duty: WVDEP Abandons Water Quality
Review of Fracked Gas Pipeline,” press release, November 1, 2017, https://www.sierraclub.org/press-releases/2017/11/
dereliction-duty-wvdep-abandons-water-quality-review-fracked-gas-pipeline. Chesapeake Bay Foundation, “CBF
Appeals Atlantic Coast Pipeline Certification,” press release, January 22, 2018, https://www.cbf.org/news-media/
newsroom/2018/virginia/cbf-appeals-atlantic-coast-pipeline-certification.html.
19 See, e.g., Letter from Western Governors’ Association et al. to Honorable John Barrasso and Honorable Tom Carper,
November 18, 2019, https://www.acwa-us.org/wp-content/uploads/2019/11/Coalition-Letter-Clean-Water-Act-Section401-Legislation-11-18-19.pdf.
20 Ibid.
21 EPA, “EPA Issues Final Rule that Helps Ensure U.S. Energy Security and Limits Misuse of the Clean Water Act,”
press release, June 1, 2020, https://www.epa.gov/newsreleases/epa-issues-final-rule-helps-ensure-us-energy-securityand-limits-misuse-clean-water-0.
22 EPA, Clean Water Act Section 401 Water Quality Certification: A Water Quality Protection Tool for States and
Tribes, April 2010 (hereinafter 2010 Guidance).
23 2020 Rule, p. 42211.
24 Since the 1977 amendments to the FWPCA—the Clean Water Act of 1977—the statute has commonly been referred
to as the CWA.
25 2020 Rule, p. 42211.
26 EPA, Wetlands and 401 Certification: Opportunities and Guidelines for States and Eligible Indian Tribes, A-104F,
April 1989. See also 2010 Guidance. According to EPA’s 2010 Guidance, the agency “substantially updated its
handbook on CWA §401 water quality certification” reflecting “two decades of case law and state and tribal program
experience.”
27 84 Federal Register 15495, April 15, 2019.
Congressional Research Service
4
Clean Water Act Section 401: Overview and Recent Developments
types of conditions that may be appropriate to include in a certification, expectations for review
times for different types of certification requests, and the nature and scope of information states
may need to act on a certification request.
2019 Guidance
EPA has issued guidance to states to provide information on the applicability and scope of Section
401 and how states may use Section 401 to protect water quality. In accordance with E.O. 13868,
EPA released updated Section 401 guidance on June 7, 2019, and rescinded the previous 2010
Guidance.28 EPA’s stated intent in updating the guidance was to provide clarifications and
recommendations on Section 401 water quality certifications. In particular, the guidance
addressed statutory and regulatory timelines for review and action on a 401 certification, the
appropriate scope of 401 certification conditions, and information that the certifying authority
may consider in its 401 certification review. EPA changes to the 2010 Guidance reflected
different interpretations of key aspects of Section 401 implementation, including certification
review timeframes and the scope of certifications. (See discussion under “Start of the
Certification “Clock” and “Scope of 401 Certifications.”)
In the preamble to the rule EPA published in 2020 updating regulations on water quality
certification (see “2020 Rule”), EPA announced its decision to rescind the 2019 Guidance
coincident with issuing the rule.29 The agency concluded that retaining the 2019 Guidance after
issuing the rule could cause confusion.30 EPA further stated that “the final rule provides sufficient
additional specificity and clarity on the issues discussed in the 2019 Guidance to both meet the
expectations of the Executive Order and render the 2019 Guidance unnecessary.”31
2020 Rule
EPA also responded to E.O. 13868 by proposing a rule updating regulations on water quality
certification in August 2019.32 In July 2020, EPA issued a final water quality certification rule
(the 2020 Rule) that went into effect on September 11, 2020, and replaced the prior implementing
regulations from 1971.33
EPA stated in the preamble to the 2020 Rule that the rule was intended to “modernize” the
Section 401 implementing regulations and “align them with the current text and structure of the
CWA.”34 EPA also stated that the 2020 Rule provided additional regulatory procedures that “will
help promote consistent implementation of CWA section 401 and streamline federal licensing and
permitting processes, consistent with the objectives of the Executive Order.”35
The 2020 Rule included numerous changes to existing regulation and practice that narrowed the
authority of states when acting on Section 401 certification requests. Several changes addressed
28 EPA, Clean Water Act Section 401 Guidance for Federal Agencies, States and Authorized Tribes, June 7, 2019,
https://19january2021snapshot.epa.gov/sites/static/files/2019-06/documents/cwa_section_401_guidance.pdf
(hereinafter 2019 Guidance).
29 2020 Rule, p. 42214.
30 Ibid.
31 Ibid.
32 EPA, “Updating Regulations on Water Quality Certification,” 84 Federal Register 44080, August 22, 2019
(hereinafter 2019 Proposed Rule).
33
2020 Rule.
34 2020 Rule, p. 42220.
35 Ibid.
Congressional Research Service
5
Clean Water Act Section 401: Overview and Recent Developments
two broad policy issues relevant to the implementation of Section 401—certification timeframes
and the scope of certification (including both the scope of review and the scope of conditions). In
addition, the 2020 Rule included a new process for federal review of certifications and newly
authorized the federal licensing and permitting agencies as the enforcement authorities.
Stakeholder Views and Legal Challenges
Both the 2019 Proposed Rule and the 2020 Rule garnered interest from stakeholder groups. EPA
received more than 125,000 comments on the proposed rule “from a broad spectrum of interested
parties.”36 Various groups, including those representing energy interests, generally supported the
2019 Proposed Rule. Some argued, for example, that states have misused their Section 401
authorities and that the proposed changes would improve predictability and clarity, thereby
improving applicants’ ability to obtain permits for energy infrastructure projects.37 Many groups
emphasized the importance of ensuring that Section 401 certification is focused on water quality
impacts rather than non-water-quality impacts such as climate change or air emissions.38
Other groups, including many states and state associations, opposed the proposed changes. They
argued that the proposed changes raised federalism concerns, would narrow the scope of state
authority, and would substantially affect the ability of states to manage and protect their water
resources.39 Central to their concerns was the implication of the rule for the CWA’s cooperative
federalism framework.40 Specifically, they argued that CWA Section 101(b) establishes
Congress’s clear intent in establishing a system of cooperative federalism that protects “the
primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and “to
plan the development and use of land and water resources.”41 Many states view Section 401
authority as a critical tool that has helped ensure that activities associated with federally licensed
and permitted discharges will not impair water quality in their respective state. They viewed the
proposed changes as an infringement upon the authority granted to them by Congress under the
CWA.42
Various states, tribes, and environmental groups filed five lawsuits challenging the 2020 Rule.
Three suits—filed by a coalition of environmental groups, a group of 20 states and the District of
Columbia, and a group of Indian tribes and environmental organizations—were all consolidated
36 2020 Rule, p. 42213.
37 See, for example, Letter from Center for Liquefied Natural Gas to Andrew Wheeler, Administrator, EPA, October
21, 2019. See also Letter from Natural Gas Council to Andrew Wheeler, Administrator, EPA, October 21, 2019. See
also Letter from National Mining Association to Andrew Wheeler, Administrator, EPA, October 21, 2019. All three
letters are available in EPA Docket ID: EPA-HQ-OW-2019-040.
38 2020 Rule, p. 42255.
39 See, for example, Letter from Western Governors’ Association et al. to Andrew Wheeler, Administrator, EPA,
October 16, 2019. See also Letter from Maryland Department of the Environment to Andrew Wheeler, Administrator,
EPA, October 21, 2019. See also Letter from Louisiana Department of Environmental Quality to Andrew Wheeler,
Administrator, EPA, October 19, 2019. All three letters are available in EPA Docket ID: EPA-HQ-OW-2019-040.
40 Under the CWA’s cooperative federalism framework, the federal government and the states jointly administer and
enforce the statute. For example, CWA Section 303(c) requires states, territories, and authorized tribes to adopt water
quality standards for waters of the United States, subject to EPA approval (33 U.S.C. §1313(c)). CWA Section 304(a)
requires EPA to develop and publish criteria that serve as recommendations to states for use in developing their water
quality standards. States are authorized to establish water quality standards that are more stringent than EPA criteria.
Additionally, states may adopt standards for additional surface waters if their own state laws allow them to do so. EPA
and states use these water quality standards, as well as technology-based standards, when establishing permit limits for
point source dischargers under Section 402.
41 33 U.S.C. §1251(b).
42 2020 Rule, p. 42226.
Congressional Research Service
6
Clean Water Act Section 401: Overview and Recent Developments
in the U.S. District Court for the Northern District of California.43 Other environmental groups
also filed suits in the U.S. District Courts for the Eastern District of Pennsylvania and the District
of South Carolina.44 A group of eight states and several energy industry associations intervened in
the lawsuits in support of EPA.45
In general, the plaintiffs alleged that the 2020 Rule violated the Administrative Procedure Act
(APA), the CWA, and the Tenth Amendment. Among other things, they argued that the rule
unlawfully restricted powers preserved for certifying authorities under the CWA, including by
restricting the scope and process for their review of certification applications, and by excluding
certifying authorities from the enforcement of certification conditions.46 The plaintiffs also argued
that the rule impermissibly expanded federal authority, including by authorizing federal
permitting and licensing agencies to review and overrule certification decisions.47 With respect to
the 2020 Rule’s limitations on the scope of certification review, some plaintiffs alleged that the
rule deprived certifying authorities of the opportunity to consider the effects of a project as a
whole on state water quality, and that the narrowed scope of certification review contradicted
both the text of the CWA and Supreme Court precedent.48 Finally, the Suquamish Tribe argued
that EPA failed to satisfy its tribal consultation obligations during the development of the 2020
Rule as required by an executive order and EPA policy document governing consultation and
coordination with tribal governments.49
None of the three courts issued opinions on the merits of the plaintiffs’ claims. As discussed in
further detail below, all three courts remanded the 2020 Rule to EPA.50 One court vacated the
rule, which brought the 1971 implementing regulations back into effect.51 The Supreme Court
43 Complaint, Am. Rivers v. Wheeler, No. 3:20-cv-04636 (N.D. Cal. July 13, 2020), ECF No. 1; Complaint, California
v. Wheeler, No. 4:20-cv-04869 (N.D. Cal. July 21, 2020), ECF No. 1; Complaint, Suquamish Tribe v. Wheeler, No.
3:20-cv-06137 (N.D. Cal. Aug. 31, 2020), ECF No. 1; Case Management Scheduling Order, In re Clean Water Act
Rulemaking, No. 3:20-cv-04636 (N.D. Cal. Oct. 23, 2020), ECF No. 36.
44 Complaint, Del. Riverkeeper Network v. EPA, No. 2:20-cv-03412 (E.D. Pa. July 13, 2020), ECF No. 1; Complaint,
S.C. Coastal Conservation League v. Wheeler, No. 2:20-cv-03062 (D.S.C. Aug. 26, 2020), ECF No. 1.
45 Order Granting Unopposed Intervention, In re Clean Water Act Rulemaking, 3:20-cv-04636 (N.D. Cal. Nov. 23,
2020), ECF No. 39; Orders Granting Motions to Intervene, Am. Rivers v. Wheeler, No. 3:20-cv-04636 (N.D. Cal. Sept.
17 2020; Oct. 9, 2020), ECF Nos. 62, 78; Orders Granting Motions to Intervene, California v. Wheeler, No. 3:20-cv04869 (N.D. Cal. Sept. 17, 2020; Oct. 9, 2020), ECF Nos. 101, 113; Order re Motion to Dismiss and Motions to
Intervene, Del. Riverkeeper Network v. EPA, No. 2:20-cv-03412 (E.D. Pa. Dec. 18, 2020), ECF No. 47; Orders on
Motions to Intervene, S.C. Coastal Conservation League v. Wheeler, No. 2:20-cv-03062 (D.S.C. Oct. 7, 2020; Oct. 30,
2020; Jan. 13, 2021), ECF Nos. 24, 34, 49.
46 E.g., First Amended Complaint, Am. Rivers v. Wheeler, No. 3:20-cv-04636, ¶¶ 90-95 (N.D. Cal. Sept. 29, 2020),
ECF No. 75; Complaint, California v. Wheeler, No. 4:20-cv-04869, ¶¶ 1.1, 1.8-1.11 (N.D. Cal. July 21, 2020), ECF
No. 1; Complaint, Del. Riverkeeper Network v. EPA, No. 2:20-cv-03412, ¶¶ 10, 182-242, 260-63 (E.D. Pa. July 13,
2020), ECF No. 1; Complaint, S.C. Coastal Conservation League v. Wheeler, No. 2:20-cv-03062, ¶¶ 10, 14 (D.S.C.
Aug. 26, 2020), ECF No. 1.
47 E.g., First Amended Complaint, Am. Rivers v. Wheeler, ¶¶ 126-32; Complaint, Suquamish Tribe v. Wheeler, No.
3:20-cv-06137, ¶ 4 (N.D. Cal. Aug. 31, 2020), ECF No. 1; Complaint, Del. Riverkeeper Network v. EPA, ¶¶ 243-59;
Complaint, S.C. Coastal Conservation League v. Wheeler, ¶¶ 197-200.
48 E.g., Complaint, California v. Wheeler, ¶¶ 1.10-11; Complaint, S.C. Coastal Conservation League v. Wheeler, ¶¶ 1,
165.
49 Complaint, Suquamish Tribe v. Wheeler, ¶ 9. See also Executive Order 13175, “Consultation and Coordination with
Indian Tribal Governments,” 65 Federal Register 67249, November 9, 2000; EPA, EPA Policy on Consultation and
Coordination with Indian Tribes, May 4, 2011.
50 Order, S.C. Coastal Conservation League v. Wheeler, No. 2:20-cv-03062 (D.S.C. Aug. 2, 2021), ECF No. 69; Order,
Del. Riverkeeper Network v. EPA, No. 2:20-cv-03412 (E.D. Pa. Aug. 6, 2021), ECF No. 75; In re Clean Water Act
Rulemaking, 568 F. Supp. 3d 1013 (N.D. Cal. 2021).
51 In re Clean Water Act Rulemaking, 568 F. Supp. 3d 1013.
Congressional Research Service
7
Clean Water Act Section 401: Overview and Recent Developments
stayed the vacatur order pending appeal in April 2022, which brought the 2020 Rule back into
effect until it was superseded by the 2023 Rule.52
Actions Under the Biden Administration
President Biden’s actions immediately upon taking office affected the reconsideration of the 2020
Rule. On January 20, 2021, President Biden issued an executive order (E.O. 13990) that directed
the heads of all agencies to “immediately review all existing regulations, orders, guidance
documents, policies, and any other similar agency actions (agency actions) promulgated, issued,
or adopted” during the first Trump Administration “that are or may be inconsistent with, or
present obstacles to, the policy set forth” in the order.53 The executive order further stated “for
any such actions identified by the agencies, the heads of agencies shall, as appropriate and
consistent with applicable law, consider suspending, revising, or rescinding the agency actions.”54
In conjunction with the executive order, the Biden Administration included the 2020 Rule in a
fact sheet listing more than 100 agency actions that heads of agencies were to review in
accordance with the executive order.55
In June 2021, EPA issued a notice of intention to revise the 2020 Rule.56 The agency stated in a
related press release that, after determining that the rule “erodes state and Tribal authority,” it
“intends to reconsider and revise the 2020 CWA Section 401 Certification Rule to restore the
balance of state, Tribal, and federal authorities while retaining elements that support efficient and
effective implementation of Section 401.”57 EPA hosted virtual listening sessions with
stakeholders in June 2021 to gain input on potential approaches for revisions and also solicited
written pre-proposal input.58
In light of its decision to revise the rule, EPA asked courts to remand the 2020 Rule to the agency
while it developed a new regulation.59 EPA sought remand without vacatur, which would have left
the 2020 Rule in effect pending the development of a new rule. Two courts granted EPA’s motion
and remanded the rule without vacatur.60
52 Order on Application for Stay, Louisiana v. Am. Rivers, No. 21A539 (U.S. April 6, 2022).
53 Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate
Crisis,” 86 Federal Register 7037-7043, January 20, 2021.
54 Ibid.
55 The White House, “Fact Sheet: List of Agency Actions for Review,” press release, January 20, 2021,
https://www.regulations.gov/document/EPA-HQ-OPPT-2023-0496-0011.
56 EPA, “Notice of Intention to Reconsider and Revise the Clean Water Act Section 401 Certification Rule,” 86
Federal Register 29541, June 2, 2021.
57 EPA, “EPA Takes Action to Bolster State and Tribal Authority to Protect Water Resources,” press release, May 27,
2021, https://www.epa.gov/newsreleases/epa-takes-action-bolster-state-and-tribal-authority-protect-water-resources-0.
58 EPA, “Upcoming Outreach and Engagement on CWA Section 401 Certification,” https://www.epa.gov/cwa-401/
upcoming-outreach-and-engagement-cwa-section-401-certification. The administrative docket for pre-proposal input
closed on August 2, 2021.
59 Motion for Remand Without Vacatur, In re Clean Water Act Rulemaking, No. 3:20-cv-04636 (N.D. Cal. July 1,
2021), ECF No. 143; Motion for Remand Without Vacatur, Del. Riverkeeper Network v. EPA, No. 2:20-cv-03412
(E.D. Pa. July 1, 2021), ECF No. 67; Motion for Remand Without Vacatur, S.C. Coastal Conservation League v. EPA,
No. 2:20-cv-03062 (D.S.C. July 1, 2021), ECF No. 67.
60 Order, S.C. Coastal Conservation League v. Wheeler, No. 2:20-cv-03062 (D.S.C. Aug. 2, 2021), ECF No. 69; Order,
Del. Riverkeeper Network v. EPA, No. 2:20-cv-03412 (Aug. 6, 2021), ECF No. 75.
Congressional Research Service
8
Clean Water Act Section 401: Overview and Recent Developments
On October 21, 2021, the U.S. District Court for the Northern District of California granted EPA’s
motion for remand in the three consolidated cases in that court, but also vacated the rule.61 While
the court did not issue a ruling on the merits of the 2020 Rule, it identified problematic aspects of
the rule, including “substantial concerns” that EPA itself had raised in its request for remand.62 In
particular, the court noted that the rule’s revised scope of certification was “antithetical” to the
Supreme Court’s decision in PUD No. 1, and found that EPA had not “adequately explain[ed] in
the preamble how it could so radically depart from what the Supreme Court dubbed the most
reasonable interpretation of the statute.”63 According to the court, these and other factors created
“significant doubt ... that EPA correctly promulgated the rule.”64 Additionally, the court found that
vacatur would not be unduly disruptive because the rule had not yet engendered institutional
reliance, and that remand without vacatur would likely result in “significant environmental
harms.”65
After the California district court remanded and vacated the 2020 Rule, EPA updated its website
to indicate that the vacatur applied nationwide and required a temporary return to EPA’s 1971
regulations until EPA finalized a new certification rule.66 EPA also published a “questions and
answers” document in December 2021 to clarify the applicable requirements and procedures
following the vacatur.67 Among other clarifications, EPA indicated that the agency generally did
not expect to revisit certifications issued while the 2020 Rule was effective, and that pending
certification requests would be processed in accordance with the 1971 regulations.68
States and industry groups that intervened in the litigation in support of the 2020 Rule appealed
the remand and vacatur order.69 On April 6, 2022, the Supreme Court issued an unsigned order
granting an application for a stay pending the appeal in the Ninth Circuit, temporarily reinstating
the 2020 Rule. On February 21, 2023, the Ninth Circuit reversed the district court’s order.70
Holding that courts lack authority to vacate an agency’s regulation without first holding it
unlawful, the Ninth Circuit sent the case back to the district court for reconsideration of EPA’s
remand motion.71 On remand, the district court stayed the proceedings in lieu of remanding the
2020 Rule to EPA.72 On January 24, 2024, the district court dismissed the case as moot, ruling
that because the 2020 Rule was no longer in effect and had been superseded by the 2023 Rule,
there was no longer a controversy as to which effective relief could be granted.73
61 In re Clean Water Act Rulemaking, 568 F. Supp. 3d 1013 (N.D. Cal. 2021).
62 Id. at 1026.
63 Id. at 1025.
64 Id. at 1026.
65 Id. at 1027.
66 EPA, “2020 Clean Water Act Section 401 Certification Rule.”
67 EPA, Clean Water Act Section 401 Water Quality Certification Questions and Answers on the 2020 Rule Vacatur,
December 17, 2021.
68 Ibid.
69 Am. Rivers v. Am. Petroleum Inst., No. 21-16958 (9th Cir. appeal filed Nov. 22, 2021); Am. Rivers v. Nat’l
Hydropower Ass’n, No. 21-16960 (9th Cir. appeal filed Nov. 22, 2021); Am. Rivers v. Arkansas, No. 21-16961 (9th Cir.
appeal filed Nov. 22, 2021).
70 In re Clean Water Act Rulemaking, 60 F.4th 583 (9th Cir. 2023).
71 Id. at 596.
72 Order Re Renewed Motion to Remand Without Vacatur, In re Clean Water Act Rulemaking, No. 20-04636 (N.D.
Cal. June 29, 2023), ECF No. 226.
73 Order Dismissing Action as Moot and Without Prejudice, In re Clean Water Act Rulemaking, No. 23-04636 (N.D.
Cal. Jan. 24, 2024), ECF No. 237.
Congressional Research Service
9
Clean Water Act Section 401: Overview and Recent Developments
2023 Rule
In June 2022, EPA proposed a new rule to update the regulatory requirements for Section 401
certification.74 In September 2023, EPA promulgated a final water quality certification rule (the
2023 Rule) revising and replacing the 2020 Rule, which went into effect on November 27,
2023.75
In announcing the 2023 Rule, EPA stated that the rule was intended to “restore the fundamental
authority granted by Congress to states, territories, and Tribes to protect water resources” while
“advancing federally permitted projects in a transparent, timely, and predictable way.”76 The 2023
Rule retains some aspects of the 2020 Rule; returns some elements from the 1971 regulations and
practice (informed by relevant court decisions); and includes new changes to the rule that reflect
stakeholder feedback on certain aspects of the 2020 Rule. Similar to the 2020 Rule, several
aspects of the 2023 Rule focus on two broad policy issues relevant to Section 401
implementation—certification timeframes and the scope of certification (including both the scope
of review and the scope of conditions). The 2023 Rule also includes provisions regarding federal
agency review, neighboring jurisdictions, modifications, tribes applying for treatment in a similar
manner as a state, and enforcement and inspection.77
Stakeholder Views and Legal Challenges
Both the 2022 Proposed Rule and the 2023 Rule garnered interest from stakeholder groups. EPA
reviewed and considered approximately 27,000 comments on the proposed rule “from a broad
spectrum of interested parties.”78 Some stakeholders, including many states, state associations,
and environmental organizations, generally supported the 2023 Rule.79 Some emphasized their
agreement with the changes in the 2023 Rule that restored some of the state authority that had
been narrowed under the 2020 Rule.80 States further argued that their authority under Section 401,
restored by the 2023 Rule, is critical to ensure they can manage and protect their water
resources.81
Other groups, including those representing energy interests, supported some aspects of the rule
while opposing other aspects. Within similar stakeholder groups, views varied on which aspects
of the rule they supported or opposed. For example, some stakeholders supported certain
requirements, including efforts to define the elements of a complete certification request, the
process for determining the “reasonable period of time” (i.e., the timeframe in which a
EPA, “Clean Water Act Section 401 Water Quality Certification Improvement Rule,” 87 Federal Register 35318,
June 9, 2022.
75 2023 Rule.
76 EPA, “EPA Issues Final Rule to Strengthen Water Protections, Support Clear and Timely Reviews of Infrastructure
and Development Projects,” press release, September 14, 2023, https://www.epa.gov/newsreleases/epa-issues-finalrule-strengthen-water-protections-support-clear-and-timely-reviews (hereinafter EPA 2023 Press Release).
77 2023 Rule, pp. 66662-66666.
78 2023 Rule, p. 66566.
79 For example, see EPA 2023 Press Release; Waterkeeper Alliance, “EPA Restores Authority to States, Territories,
and Tribes Under CWA 401 Final Rule,” press release, September 14, 2023, https://waterkeeper.org/news/epa-restoresauthority-to-states-territories-and-tribes-under-cwa-401-final-rule/. See also EPA Docket ID: EPA–HQ–OW–2022–
0128.
80 EPA 2023 Press Release.
81 For example, see Rob Bonta, California Attorney General, “Attorney General Bonta Co-Leads Coalition to Defend
Biden Administration’s Final Rule of the Clean Water Act,” press release, January 12, 2024, https://oag.ca.gov/news/
press-releases/attorney-general-bonta-co-leads-coalition-defend-biden-administration%E2%80%99s-final.
74
Congressional Research Service
10
Clean Water Act Section 401: Overview and Recent Developments
certification decision must be made), and changes regarding pre-filing meetings.82 Other
stakeholders opposed some of those same aspects of the rule, including the approach for defining
the elements of a complete certification request and the process for determining the reasonable
period of time.83 Stakeholders that opposed the 2023 Rule, at least in some aspects, often opposed
the changes that broadened the scope of review and the scope of conditions (in comparison to the
2020 Rule) and expressed concern that certain aspects of the 2023 Rule could lead to uncertainty
or delays.84
As with the 2020 Rule, the 2023 Rule has prompted litigation. Eleven states and several industry
groups filed a lawsuit in the U.S. District Court for the Western District of Louisiana shortly after
the 2023 Rule took effect.85 Eighteen states, the District of Columbia, and several environmental
organizations have intervened in support of EPA.86
The plaintiffs allege, among other things, that the 2023 Rule exceeds the scope of EPA’s authority
under the CWA. Specifically, they argue that the rule improperly broadens the scope of
certification review beyond what is permissible under the CWA by requiring the certifying
authority to review whether the permitted activity as a whole, as opposed to the discharge from
the activity, will comply with water quality requirements.87 They also argue that the rule
improperly imposes an overly expansive definition of “water quality requirements,” broadens the
scope of effects subject to review in the certification process to include both point and nonpoint
sources, and allows for imposition of certification conditions that are unconnected to water
quality or the discharge.88 They also argue that EPA violated the APA by failing to meaningfully
respond to comments on the proposed rule or provide a reasoned explanation for changing its
position in the 2023 Rule.89 According to the plaintiffs, the 2023 Rule will cause delay,
uncertainty, and unpredictability in the certification process by allowing states and Tribes to
require additional materials as part of a certification request.90
The court has not issued a final ruling on the merits of the 2023 Rule. On March 7, 2024, the
court denied the plaintiffs’ motion for preliminary injunction, which sought to bar application of
the 2023 Rule to pending certification requests submitted after the effective date of the 2020 Rule
but before the effective date of the 2023 Rule.91
82 See comment letters in EPA Docket ID: EPA–HQ–OW–2022–0128. For example, see comments from Duke Energy;
the American Municipal Power, Inc. and Ohio Municipal Electric Association. Note these entities do not support all of
the examples provided, but support at least one of the examples mentioned.
83 Ibid.
84 See comment letters in EPA Docket ID: EPA–HQ–OW–2022–0128. For example, see comments from Duke Energy;
the American Municipal Power, Inc. and Ohio Municipal Electric Association; the Interstate Natural Gas Association
of America and the American Gas Association; and the National Association of Home Builders.
85 Louisiana v. EPA, No. 2:23-cv-01714 (W.D. La. filed Dec. 4, 2023).
86 Order Granting States’ Motion to Intervene, Louisiana v. EPA, No. 2:23-cv-01714 (W.D. La. Jan. 23, 2024), ECF
No. 51; Memorandum Order, Louisiana v. EPA, No. 2:23-cv-01714 (W.D. La. June 3, 2024), ECF No. 118.
87 Complaint, Louisiana v. EPA, No. 2:23-cv-01714, ¶¶ 114-118 (W.D. La. Dec. 4, 2023), ECF No. 1.
88 Id. ¶¶ 119-134, 146.
89
Id. ¶¶ 172-179.
90 Id. ¶¶ 105-113.
91 Memorandum Ruling and Order, Louisiana v. EPA, No. 2:23-cv-01714 (W.D. La. Mar. 7, 2024), ECF No. 91.
Congressional Research Service
11
Clean Water Act Section 401: Overview and Recent Developments
Policy Issues and the 2020 and 2023 Rules
The following sections discuss the two broad policy issues relevant to Section 401
implementation—certification timeframes and the scope of certification—as well as other
selected changes in the 2020 and 2023 Rules.
Certification Timeframes
Section 401 requires that certifying authorities act on a certification request “within a reasonable
period of time (which shall not exceed one year) after receipt of such request.”92 If a certifying
authority does not act on a certification request within that timeframe, the statute provides that the
certification requirements are waived, and the certification is not required for the federal licensing
or permitting agency to issue the license or permit.93 The 2020 and 2023 Rules addressed several
policy issues related to certification timeframes that have prompted interest among stakeholders
in recent years. These include what constitutes a “reasonable period of time,” when the
reasonable period of time begins (i.e., when the certification “clock” starts), what constitutes
“acting” on a certification request for the purposes of determining whether the certification
requirements have been waived, and under what circumstances, if any, the certification clock may
restart.
“Reasonable Period of Time”
While a full year is the “absolute maximum” amount of time in which certifying authorities must
act on a certification request, Section 401 “does not preclude a finding of waiver prior to the
passage of a full year.”94 Under the 1971 regulations, federal permitting and licensing agencies
retained the authority and discretion to establish certification timeframes (i.e., the “reasonable
period of time” certifying authorities have to act on a certification request before it is considered
waived) as long as the timeframes did not exceed one year.95 Some federal agencies have done so.
•
•
For example, EPA’s regulations specific to NPDES permits, promulgated in 1983,
established a 60-day period “unless the Regional Administrator finds that unusual
circumstances require a longer time.”96 EPA amended this regulation as a part of
the 2023 Rule to specify that state certification shall be granted or denied “within
the reasonable period of time as required under CWA section 401(a)(1),”
meaning the agency does not specify a shorter reasonable period of time than the
statutory maximum of one year.97
USACE regulations establish a 60-day period “unless the district engineer
determines a shorter or longer period is reasonable for the state to act.”98
92 CWA §401(a)(1); 33 U.S.C. §1341(a)(1).
93 Ibid.
94 Hoopa Valley Tribe v. FERC, 913 F.3d 1099, 1104 (D.C. Cir. 2019), cert. denied sub nom. Cal. Trout v. Hoopa
Valley Tribe, 140 S. Ct. 650 (2020).
95 40 C.F.R. §121.
96 EPA, “Environmental Permit Regulations: RCRA Hazardous Waste; SDWA Underground Injection Control; CWA
National Pollutant Discharge Elimination System; CWA Section 404 Dredge or Fill Programs; and CAA Prevention of
Significant Deterioration,” 48 Federal Register 14274-14275, April 1, 1983.
97 2023 Rule, p. 66666.
98 33 C.F.R. §325.2(b)(1)(ii).
Congressional Research Service
12
Clean Water Act Section 401: Overview and Recent Developments
•
FERC regulations provide a one-year period.99
In December 2018, the Assistant Secretary of the Army for Civil Works issued a regulatory policy
memorandum, which included a directive related to Section 401 certification timeframes.100 In the
memorandum, the Assistant Secretary noted that although it had been standard practice in some
USACE districts to give states an entire year to act on a Section 401 certification request, “such
an approach is inconsistent” with existing USACE regulations. He emphasized that the default
time period would be 60 days, unless the district engineer determines a longer time period is
required, as provided in USACE regulations. Further, he directed USACE to draft guidance
establishing criteria for determining the “reasonable period of time” states would be given to act
on a certification request. According to the memorandum, the reasonableness of the timeframe
could be based on the type of proposed activity or complexity of the site, but not on state
workload, resource issues, or lack of sufficient information. USACE issued the guidance in
August 2019.101
Many states have expressed opposition to any efforts to restrict certification timeframes beyond
what is established in the CWA.102 Some have asserted that such restrictions may prevent states
from complying with their own administrative requirements, preclude public input through state
review, and “intrude on the states’ primary authority to protect their water quality.”103
Reasonable Period of Time in the 2020 Rule
The 2020 Rule established that the reasonable period of time for certifying authorities to act on
certification requests shall not exceed one year from receipt.104 Although the CWA and 1971
regulations have the same timeframe, EPA noted in the 2020 Rule that some states had acted
beyond the one-year limit.105 While the 1971 regulations provided that federal licensing and
permitting agencies were authorized to determine the “reasonable period of time” certifying
authorities had to act, neither the CWA nor the 1971 regulations specified how these agencies
were to determine the reasonable period of time. The 2020 Rule specified three criteria that
federal licensing and permitting agencies should consider in making this determination.106 They
were (1) the complexity of the project, (2) the nature of any potential discharge, and (3) the
potential need for additional study or evaluation of water quality effects from the discharge.107
99 18 C.F.R. §§4.34(b)(5)(iii) and 5.23(b)(2).
100 Department of the Army, Office of the Assistant Secretary, Civil Works, Memorandum for the Chief of Engineers,
USACE Regulatory Policy Directives Memorandum on Duration of Permits and Jurisdictional Determinations,
Timeframes for Clean Water Act Section 401 Water Quality Certifications, and Application of the 404(b)(1)
Guidelines, December 13, 2018.
101 USACE, Regulatory Guidance Letter 19-02: Timeframes for Clean Water Act Section 401 Water Quality
Certifications and Clarification of Waiver Responsibility, August 7, 2019, https://usace.contentdm.oclc.org/utils/getfile/
collection/p16021coll9/id/1547.
102 For example, see Letter from Letitia James, New York Attorney General, et al. to EPA, May 24, 2019,
https://oag.ca.gov/system/files/attachments/press-docs/2019-05-24finaljoint-comments-epa-401signed.pdf.
103 Ibid., p. 9.
104 2020 Rule, p. 42285.
105
2020 Rule, p. 42243.
106 2020 Rule, p. 42286.
107 Ibid.
Congressional Research Service
13
Clean Water Act Section 401: Overview and Recent Developments
Reasonable Period of Time in the 2023 Rule
The 2023 Rule, consistent with the CWA, also provides that the reasonable period of time is not
to exceed one year.108 Departing from both the 1971 regulations and the 2020 Rule, the 2023 Rule
for the first time provides certifying authorities with a role in determining the length of the
reasonable period of time.109 The federal licensing or permitting agencies may jointly agree in
writing to the reasonable period of time under the 2023 Rule, provided that it does not exceed one
year from the date that the request for certification was received.110 If the federal agency and the
certifying authority do not agree on the reasonable period of time, the 2023 Rule establishes a sixmonth default time period.111 The 2023 Rule also includes provisions for extensions or to
accommodate certain public notice procedures or unexpected events, provided the reasonable
period of time does not exceed one year.112
Start of the Certification “Clock”
One aspect regarding certification timeframes that has been debated among stakeholders is when
the certification timeframe begins (i.e., when the “clock” starts on the “reasonable period of time”
established by federal licensing and permitting agencies). Some have argued that the clock starts
when a certifying authority receives a certification request, while others have argued that the
clock should start when it receives a certification request accompanied by a complete application
(i.e., when the state decides the application has sufficient information to make a decision).
EPA’s 2010 Guidance provided that “generally, the state or tribe’s §401 certification review
timeframe begins once a request for certification has been made to the certifying agency,
accompanied by a complete application.”113 In 2018, the U.S. Court of Appeals for the Second
Circuit held that Section 401 creates a “bright-line rule” that the timeline for certification begins
after receipt of a certification request, not when the certifying authority determines that a request
is complete.114 EPA’s 2019 Guidance stated that the 2010 Guidance inappropriately indicated that
the timeline for action begins upon receipt of a “complete application” and asserted that the CWA
provides that the timeline for action begins upon receipt of a certification request.115
Start of the Certification Clock in the 2020 Rule
The 2020 Rule clarified that the statutory timeline for certification review starts when the
certifying authority receives a certification request, which was newly defined in the rule.116 Per
the rule, a certification request is a written, signed, and dated communication that contains nine
108 2023 Rule, p. 66663.
109 Ibid.
110 Ibid.
111 Ibid.
112 Ibid.
113 2010 Guidance, pp. 15-16.
114 N.Y. State Dep’t of Env’t Conservation v. FERC, 884 F.3d 450, 455-56 (2d Cir. 2018). EPA discussed this case in
the 2020 Rule, pp. 42222-42223. The Second Circuit further held in 2021 that a certifying authority may not alter the
beginning of the certification timeline by entering into an agreement or otherwise coordinating with a certification
applicant to do so. N.Y. State Dep’t of Env’t Conservation v. FERC, 991 F.3d 439, 450 (2d Cir. 2021).
115 2019 Guidance, p. 3.
116 2020 Rule, pp. 42285-42286.
Congressional Research Service
14
Clean Water Act Section 401: Overview and Recent Developments
components specified in the rule for individual licenses or permits (or seven components
specified in the rule for general licenses or permits).117
Start of the Certification Clock in the 2023 Rule
The 2023 Rule also clarifies that the statutory timeframe for certification review starts when the
certifying authority receives a request for certification, which it also defines in the rule.118 Per the
2023 Rule, all certification requests must include a copy of the federal license or permit
application submitted to the federal agency (for individual licenses or permits) or a copy of a draft
license or permit (for general licenses or permits) as well as any readily available water qualityrelated materials that informed the development of the application. In addition, the 2023 Rule
provides that certifying authorities may define other contents required for a certification request if
they are water quality-related and identified prior to when the certification request is made. If a
certifying authority chooses not to define other required contents, the request must include the
seven default elements specified in the rule.119
Acting on a Certification Request
Section 401(a)(1) provides that if a certifying authority fails or refuses “to act” within a
reasonable period time—not to exceed one year—after receiving a certification request, the
certification requirements are waived.120 The CWA does not identify what responses constitute
action on a certification request, however. Several lawsuits involving water quality certifications
have raised the question of whether a certifying authority could be considered to have acted on a
certifying request such that the certification requirements were not waived. In particular, some
court decisions have focused on certification actions where an applicant withdrew and
resubmitted its certification request, sometimes in coordination with the certifying authority.121
Both the 2020 and 2023 Rules also set parameters around what actions a certifying authority
could take pursuant to its Section 401 authority. Additionally, as discussed below, some
legislative proposals have sought to add more clarity to the text of Section 401 regarding what
constitutes action on a certification request.
Acting on a Certification Request in the 2020 Rule
The 2020 Rule text did not specifically define what it means “to act” on a certification request.
The preamble did discuss how EPA viewed what it means to act and what it means to fail or
refuse to act.122 The preamble also stated that “consistent with the text of the CWA, under the
final rule a certifying authority may take one of four actions pursuant to its section 401 authority:
grant certification, grant certification with conditions, deny certification, or waive its opportunity
117 These components include, for example, information on the project proponent and point of contact, the applicable
federal license or permit, and the location and nature of any discharge that may result from the proposed project and the
location of receiving waters. See 2020 Rule, p. 42285.
118 2023 Rule, p. 66662.
119 Ibid. Note that if EPA is the certifying authority, the seven default elements are to be included.
120 33 U.S.C. §1341.
121 Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019), cert. denied sub nom. Cal. Trout v. Hoopa Valley
Tribe, 140 S. Ct. 650 (2019); N.C. Dep’t of Env’t Quality v. FERC, 3 F.4th 655, 669 (4th Cir. 2021); Turlock Irrigation
Dist. v. FERC, 36 F. 4th 1179, 1183 (D.C. Cir. 2022); Cal. State Water Res. Ctrl. Bd. v. FERC, 43 F. 4th 920 (9th Cir.
2022).
122 2020 Rule, pp. 42265-42267.
Congressional Research Service
15
Clean Water Act Section 401: Overview and Recent Developments
to provide a certification.”123 However, neither the 2020 Rule nor its preamble were explicit in
stating that those are the only means “to act” for the purposes of determining whether or not
certification requirements are waived.
Acting on a Certification Request in the 2023 Rule
The 2023 Rule clarifies in the rule text that a certifying authority may act on a certification
request in one of four ways: granting certification, granting certification with conditions, denying
certification, or expressly waiving certification.124 In the 2023 Rule preamble, EPA states that
“although the Agency has never explicitly defined ‘to act on a request for certification,’ the
interpretation taken in this final rule is consistent with prior Agency guidance and the 2020 Rule
preamble.”125 EPA also explains that it is providing clarification regarding what it means to act on
a request for certification in light of commenter input and recent case law.126
Withdrawal and Resubmission—Waiver or Restarting the Certification
“Clock”?
In cases where certifying authorities believe that more information or time is needed to review a
license or permit application before making a certification decision, they have generally taken
two approaches, as described by EPA.127 Some states have denied Section 401 certifications
“without prejudice” when they decided that they did not have enough data or information for their
analysis. In such cases, they encouraged applicants to resubmit the application. In other cases,
states have suggested that applicants withdraw and resubmit applications with the intention of
restarting the certification clock. This approach aims to provide the applicant more time to submit
additional information and the state more time to review the information and make a certification
decision. Some observers assert that restarting the clock in this manner is preferable to denying
certification based on data and information gaps.128 Others assert that restarting the clock,
particularly when it is done multiple times, results in delays that are not consistent with
congressional intent to limit the length of the certification process.129
Restarting the Certification Clock in the 2020 Rule
The 2020 Rule clarified that once a certifying authority receives a certification request, the period
of time to act on a certification request would not pause or stop for any reason.130 Specifically, the
certifying authority could not request that license or permit applicants withdraw and resubmit
their certification requests as a means to restart the certification clock.131
The 2020 Rule also established a pre-filing meeting process, which was intended to ensure that
the certifying authority received early notification of projects and could discuss informational
123 2020 Rule, p. 42249.
124 2023 Rule, p. 66663.
125 2023 Rule, p. 66609.
126 2023 Rule, p. 66608.
127 2010 Guidance, p. 13.
128 2020 Rule, pp. 42261-42262.
129
2020 Rule, p. 42261.
130 Ibid.
131 2020 Rule, p. 42286.
Congressional Research Service
16
Clean Water Act Section 401: Overview and Recent Developments
needs with the project proponent before the statutory timeframe for review began.132 Specifically,
project proponents were required to submit a request to the certifying authority for a pre-filing
meeting at least 30 days prior to submitting a certification request.133 Per the rule, the certifying
authority had discretion as to whether to grant or respond to the meeting request.134 In the
preamble to the 2020 Rule, EPA noted that early engagement, including through a pre-filing
meeting, could help improve the quality of information provided to the certifying authority and
could reduce the need to make additional information requests of the project proponent during the
certification timeframe.135
The preamble to the 2020 Rule also stated that “if a project proponent withdraws a certification
request because the project is no longer being planned or if certain elements of the proposed
project materially change from what was originally proposed or from what is described or
analyzed in additional information submitted by the project proponent, it is EPA’s interpretation
that the certifying authority no longer has an obligation to act on that request.”136 However, the
preamble also clarified that the agency “expects that voluntary withdrawal by the project
proponent will be done sparingly and only in response to material modifications to the project or
if the project is no longer planned.”137 In such circumstances, if the project proponent wanted a
certification in the future, they would have to submit a new certification request and would, at a
minimum, have to wait 30 days before resubmitting a certification request due to the pre-filing
meeting request requirement in the rule.138
Restarting the Certification Clock in the 2023 Rule
In the preamble to the 2023 Rule, EPA states that the agency is removing the provision from the
2020 Rule that prohibited the certifying authority from asking the project proponent to withdraw
the certification request to reset the reasonable period of time.139 EPA also states that “the agency
is finalizing as proposed to take no position on the legality of withdrawing and resubmitting a
request for certification.”140
The 2023 Rule retains the 2020 Rule’s requirement for project proponents to request a pre-filing
meeting with the certifying authority at least 30 days prior to submitting a certification request.141
The certifying authority may waive or shorten the requirement under the 2023 Rule.142
EPA also notes in the 2023 Rule preamble that it would not take a position on the legality of
withdrawal and resubmission in light of the difficulty of drawing a bright line on the issue and the
fact that “the law in this area is dynamic.”143 EPA recognized, however, that “there may be
situations where withdrawing and resubmitting a request for certification is appropriate.”144 The
132 2020 Rule, p. 42241.
133 2020 Rule, p. 42285.
134 Ibid.
135 2020 Rule, p. 42242.
136 2020 Rule, pp. 42246-42247.
137 Ibid.
138 Ibid.
139 2023 Rule, p. 66590.
140 Ibid.
141 2023 Rule, p. 66662.
142
Ibid.
143 2023 Rule, p. 66584.
144 Ibid.
Congressional Research Service
17
Clean Water Act Section 401: Overview and Recent Developments
agency states that it intends to allow “certifying authorities, Federal agencies, and/or possibly
project proponents to make case-specific decisions addressing the practice.”145
Implicit and Retroactive Waivers in the Courts
Parties have disputed which actions constitute acting on a certification request for purposes of
avoiding waiver. At least one court has also been critical of the withdrawal and resubmission
approach. In January 2019, the U.S. Court of Appeals for the District of Columbia Circuit (D.C.
Circuit) held in Hoopa Valley Tribe v. FERC that withdrawing and resubmitting the same Section
401 request for the purpose of circumventing the one-year statutory deadline does not restart the
timeframe for the state’s review.146 In that case, the Hoopa Valley Tribe sought review of a FERC
order regarding PacifiCorp’s proposal to relicense some of the dams comprising the Klamath
Hydroelectric Project in California and Oregon, and to decommission others.147 Under the terms
of a 2010 settlement agreement, PacifiCorp, California, and Oregon agreed to defer Section 401’s
one-year statutory limit by withdrawing and resubmitting PacifiCorp’s water quality certification
application each year.148 The Tribe argued that California and Oregon had waived their Section
401 certification authority, and that PacifiCorp had therefore failed to diligently prosecute its
licensing application.149 The D.C. Circuit held that Section 401 imposed a clear maximum of one
year to act on a request for certification, and that the text “cannot be reasonably interpreted to
mean that the period of review for one request affects that of any other request.”150 Otherwise, the
court cautioned, “the withdrawal-and-resubmission scheme could be used to indefinitely delay
federal licensing proceedings and undermine” federal agencies’ regulatory jurisdiction.151 Some
observers asserted that the ruling could lead to an increase in certification denials in instances in
which states may consider the information insufficient for making a decision.152
By contrast, the U.S. Court of Appeals for the Fourth Circuit, in North Carolina Department of
Environmental Quality v. FERC, distinguished Hoopa Valley as “a very narrow decision flowing
from a fairly egregious set of facts,” and has expressed skepticism regarding FERC’s argument
that a certifying authority must either grant or deny certification within one year of the
certification request in order to avoid waiver.153 The Fourth Circuit explained that Section 401
specifically provides that certification is waived if a certifying authority fails or refuses to act on
a request within a year, not if the certifying authority fails or refuses to grant or deny
certification.154 The court thus suggested, but did not hold, that a certifying authority that “takes
significant and meaningful action on a certification request within a year of its filing,” but does
not grant or deny the request, would not waive certification.155
145 Ibid.
146 Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019), cert. denied sub nom. Cal. Trout v. Hoopa Valley
Tribe, 140 S. Ct. 650 (2019). EPA discussed the Hoopa Valley Tribe case in the 2020 Rule, pp. 42210-42223, and the
2023 Rule, p. 66584, 66590.
147 Hoopa Valley Tribe, 913 F.3d at 1100.
148 Id. at 1101.
149 Id. at 1103.
150 Id. at 1104.
151 Id.
152 2020 Rule, p. 42261.
153
3 F.4th 655, 669 (4th Cir. 2021).
154 Id. at 669-70.
155 Id.
Congressional Research Service
18
Clean Water Act Section 401: Overview and Recent Developments
The D.C. Circuit later endorsed the Fourth Circuit’s interpretation of Hoopa Valley.156 In Turlock
Irrigation District v. FERC, the D.C. Circuit considered whether the California State Water
Resources Control Board waived its certification authority in a combined licensing and
relicensing proceeding for two hydroelectric facilities in California. The board denied without
prejudice the certification requests several times because it could not conclusively determine that
certification was warranted in light of ongoing environmental reviews.157 Ultimately, the board
granted certification, but with 45 conditions.158 The license applicants argued that the state board
waived its certification authority, making the conditions “recommendations” for FERC to
consider rather than mandatory terms that must be included in their federal licenses.159 The D.C.
Circuit held that the board did not waive its certification authority because it “acted” within the
meaning of Section 401(a)(1) when it denied certification and later granted certification with
conditions.160 The court distinguished Hoopa Valley as a case where the certifying authority and
license applicant entered into an agreement whereby the state agencies repeatedly would take no
action on the certification request.161
The U.S. Court of Appeals for the Ninth Circuit has also opined on withdrawal and resubmission
following Hoopa Valley. In California State Water Resources Control Board v. FERC, the court
held that a certifying authority’s observation that an applicant would likely withdraw and
resubmit its certification requests did not constitute coordination in a withdrawal-andresubmission scheme so as to constitute waiver.162 The court did not rule on the validity of
FERC’s position—adopted after Hoopa Valley—that an applicant’s “unilateral” withdrawal and
resubmission was distinct from “coordinated” withdrawal-and-resubmission schemes in which a
certifying authority sought to avoid the one-year deadline.163 Instead, the court ruled based on its
review of emails in the record that the state water resources board simply acquiesced in the
applicant’s own decision to withdraw and resubmit its applications, and that the board thus did
not waive its certification authority.164
Courts may continue to clarify when a certifying authority has acted on a request for certification
and when it has waived its authority. Based on Hoopa Valley and subsequent rulings by the D.C.
Circuit and other courts, it appears that withdrawal and resubmission could constitute waiver
when it results from an agreement between the certifying authority and the applicant to avoid the
one-year deadline. An applicant’s unilateral withdrawal and resubmission may not form the basis
of a waiver finding if the certifying authority has taken some kind of action, such as denying an
application without prejudice, but courts have not yet defined what would count as action in that
scenario.
The D.C. Circuit has also held that a certifying authority may only waive certification by failing
or refusing to act, and may not change its position to affirmatively waive certification after
granting it. In Waterkeepers Chesapeake v. FERC, the court considered the Maryland Department
of the Environment’s certification of the Conowingo Dam.165 The state’s initial grant of
156 Turlock Irrigation Dist. v. FERC, 36 F. 4th 1179, 1183 (D.C. Cir. 2022).
157 Id. at 1181.
158 Id. at 1182.
159 Id.
160 Id. at 1183.
161 Id.
162 43 F. 4th 920 (9th Cir. 2022).
163
Id. at 932.
164 Id. at 932-933.
165 56 F.4th 45 (D.C. Cir. 2022).
Congressional Research Service
19
Clean Water Act Section 401: Overview and Recent Developments
certification in 2018 with conditions was challenged by the dam operator, resulting in a settlement
whereby the operator agreed to submit certain articles to be incorporated into FERC’s operating
license and the Maryland Department of the Environment agreed to waive certification.166 FERC
then issued a 50-year license adopting the proposed articles.167 Several environmental groups
challenged FERC’s license, arguing that Maryland could not retroactively waive its certification
authority.168 The D.C. Circuit agreed, holding that Maryland “acted” on the certification request
when it issued the certification with conditions in 2018 and that its subsequent “conditional
waiver” was neither a failure nor a refusal to act for purposes of Section 401.169 Because
Maryland’s action did not qualify as a waiver under Section 401, the court held, FERC was
prohibited from issuing a license for the dam.170
Scope of 401 Certifications
Congress has provided direction regarding the scope of what certifying authorities are to consider
in making a Section 401 certification decision. Specifically, Section 401(a)(1) authorizes
certifying authorities to certify that a discharge to navigable waters that may result from a
proposed activity will comply with specific enumerated sections of the CWA, including Sections
301, 302, 303, 306, and 307.171 Section 401(d) provides direction regarding the scope of what
conditions certifying authorities may impose in granting certifications, and directs that such
certifications
shall set forth any effluent limitations and other limitations, and monitoring requirements
necessary to assure that any applicant for a Federal license or permit will comply with any
applicable effluent limitations and other limitations, under section 301 or 302 of this Act,
standard of performance under section 306 of this Act, or prohibition, effluent standard, or
pretreatment standard under section 307 of this Act, and with any other appropriate
requirement of State law set forth in such certification, and shall become a condition on
any Federal license or permit.172
Scope of Section 401 Review
Stakeholders have debated the scope of what certifying authorities should consider when
reviewing a request for certification. Congress has held hearings during the past few Congresses
that included debate over the scope of considerations during certification.173
166 Id. at 48.
167 Id.
168 Id.
169 Id. at 49 (citing Turlock, 36 F.4th at 1183).
170 Id.
171 33 U.S.C. §1341(a)(1). CWA §§301, 302, and 306 pertain to effluent limitations and standards of performance for
new and existing discharge sources, §303 pertains to water quality standards and implementation plans, and §307
pertains to toxic pretreatment effluent standards.
172 33 U.S.C. §1341(d).
173 For example, see U.S. Congress, Senate Committee on Environment and Public Works, Hearing to Examine
Implementation of Clean Water Act Section 401 and S.3303, the Water Quality Certification Improvement Act of 2018,
115th Cong., 2nd sess., August 16, 2018, S.Hrg. 115-344; U.S. Congress, Senate Committee on Environment and Public
Works, Hearing on S. 1087, the Water Quality Certification Improvement Act of 2019, and Other Potential Reforms to
Improve Implementation of Section 401 of the Clean Water Act: State Perspectives, 116th Cong., 2nd sess., November
19, 2019, S.Hrg. 116-145; and U.S. Congress, House Transportation and Infrastructure Committee, Water Resources
and Environment Subcommittee, The Next Fifty Years of the Clean Water Act: Examining the Law and Infrastructure
Project Completion, 118th Cong., 1st sess., May 16, 2023, H.Hrg. 118-17.
Congressional Research Service
20
Clean Water Act Section 401: Overview and Recent Developments
Water Quality Impacts vs. Other Impacts
Some groups have argued that Congress intended for the review to focus on water quality impacts
and assert that, in recent years, some states have overstepped their authority by also considering
non-water-quality environmental impacts, such as greenhouse gas emissions.174 Other groups
argue that Congress intended for certifying authorities to have a significant role in ensuring that
the water quality in their states is protected, and assert that the denials that states have issued have
been well-supported and necessary to protect state water quality.175
Some states have cited projected environmental impacts other than water quality impacts in
denying certain Section 401 certification requests. In 2017, the Washington Department of
Ecology denied a permit application for a planned coal export terminal along the Columbia
River.176 In addition to finding that the applicant did not provide “reasonable assurance” that the
project would meet applicable water quality standards, the state concluded that the construction
and operation of the terminal would result in significant and unavoidable adverse impacts to
social and community resources, cultural resources, tribal resources, rail transportation, rail
safety, vehicle transportation, vessel transportation, noise and vibration, and air quality.177
Unrelated to the Section 401 certification application, a separate state agency also denied the
applicant’s request for approval of a sublease of state-owned aquatic lands on which the applicant
proposed to construct a portion of the project.178 The permit applicant challenged the denials in
both federal and state court, alleging that Washington improperly denied the permit because of an
anti-coal bias and concerns about greenhouse gas emissions, in violation of the Dormant
Commerce Clause and the foreign affairs doctrine.179 Additionally, Montana and Wyoming sought
review of Washington’s denial of the water quality certification directly in the U.S. Supreme
Court.180 The parties agreed to move for dismissal of the federal and state lawsuits after the
permit applicant filed for bankruptcy and represented that it no longer had funds to continue
174 See, for example, Letter from Interstate Natural Gas Association of America to Andrew Wheeler, Administrator,
EPA, May 24, 2019. See also Letter from Natural Gas Supply Association and Center for Liquefied Natural Gas to
Andrew Wheeler, Administrator, EPA, May 24, 2019. See also Letter from Cross-Cutting Issues Group to Andrew
Wheeler, Administrator, EPA, May 24, 2019. All three letters are available in EPA Docket ID: EPA-HQ-OW-20180855.
175 For example, see Letter from Association of State Wetland Managers to Anna Wildeman, Deputy Assistant
Administrator, EPA Office of Water, May 20, 2019. See also Letter from Western States Water Council to Andrew
Wheeler, Administrator, EPA, May 21, 2019. See also Letter from State of Washington Department of Ecology to
Andrew Wheeler, Administrator, EPA, May 24, 2019. All three letters are available in EPA Docket ID: EPA-HQ-OW2018-0855.
176 Letter from Maia D. Bellon, Director, Washington Department of Ecology, to Kristin Gaines, Millennium Bulk
Terminals-Longview, LLC, September 26, 2017, https://ecology.wa.gov/DOE/files/83/8349469b-a94f-492b-accad8277e1ad237.pdf.
177 Ibid. See also Millennium Bulk Terminals – Longview Final SEPA Environmental Impact Statement S.6 (April
2017), https://apps.ecology.wa.gov/publications/documents/1706013.pdf.
178 See Nw. Alloys, Inc. v. Wash. Dep’t of Nat. Res., 447 P.3d 620, 626-27 (Wash. Ct. App. 2019); Millennium Bulk
Terminals-Longview, LLC v. Washington, No. 52215-2-II, 2020 WL 1651475 (Wash. Ct. App. March 17, 2020).
Cowlitz County, Washington State Department of Ecology, Millennium Bulk Terminals – Longview Final SEPA
Environmental Impact Statement (April 2017), https://apps.ecology.wa.gov/publications/documents/1706013.pdf.
179 See Brief for the United States as Amicus Curiae, Montana v. Washington, No. 22O152, at 4-7 (U.S. May 25,
2021).
180 Montana v. Washington, No. 22O152, Bill of Complaint ¶ 44 (U.S. Jan. 21, 2020). The Supreme Court has original
and exclusive jurisdiction to adjudicate disputes between two or more states. U.S. CONST. art. III, §2, cl. 2; 28 U.S.C.
§1251(a).
Congressional Research Service
21
Clean Water Act Section 401: Overview and Recent Developments
operation of the terminal site.181 The Supreme Court also declined to hear Montana and
Wyoming’s complaint.182
The New York State Department of Environmental Conservation (NYSDEC) also denied a series
of Section 401 water quality certification applications for the construction of a natural gas
pipeline in Raritan Bay.183 Most recently, the Department denied an application based on the
project proponent’s failure to demonstrate that the project would comply with applicable water
quality standards.184 The denial letter also included a qualitative assessment of the greenhouse gas
emissions and climate impacts associated with the project in light of the state’s newly enacted
Climate Leadership and Community Protection Act (Climate Act), which requires a 40%
reduction in statewide greenhouse gas emissions.185 The Department found that the project would
result in greenhouse gas emissions from the full lifecycle of natural gas that would be transported
through the pipeline; could delay the state’s transition away from natural gas and other fossil
fuels; and would be inconsistent with the statewide greenhouse gas emission limits and other
requirements established in the Climate Act.186 While the Department noted that the denial did not
rest solely on the determination that the project was “inconsistent with the energy and climate
policies, laws, and goals” of the state, it noted that “the State should not sacrifice its water quality,
sensitive habitats, and important biological resources for a project that would have adverse
climate impacts and one that runs counter to the State’s policy to significantly reduce GHGs by
transitioning away from the use of natural gas to produce electricity.”187 Unlike in Washington,
the project proponent has not filed a lawsuit challenging the Raritan Bay certification denials.
Impacts from the “Activity” vs. Impacts from the “Discharge”
Stakeholders have also debated whether the scope of a certifying authority’s review should
consider the impacts of the “activity” (i.e., the impacts from the permitted activity as a whole,
including the point source discharge as well as nonpoint source impacts from the activity) or
more narrowly consider the impacts from the point source discharge. For example, permitted or
licensed activities that involved clearing of trees along the shoreline could result in increased
water temperatures or increased sediment runoff. Looking at the impacts of the “activity” would
allow a certifying authority to consider those water quality-related impacts, while looking at the
impacts of the point source discharge would exclude those impacts from the scope. The debate
over whether the activity or the point source discharge is the appropriate scope of review has also
come up in the context of the scope of conditions on certification, discussed below.
181 See Order, Lighthouse Res., Inc. v. Inslee, No. 19-35415 (9th Cir. Mar. 23, 2021), ECF No. 93; Agreed Order of
Dismissal, Lighthouse Res. Inc. v. Inslee, No. 3:18-cv-05005-RJB (W.D. Wash. Apr. 27, 2021), ECF No. 352; Agreed
Order of Dismissal, Millennium Bulk Terminals-Longview, LLC v. Wash. State Dep’t of Ecology, No. 18-2-994-08
(Wash. Super. Ct. May 10, 2021).
182 Montana v. Washington, motion for leave to file a bill of complaint petition denied, 141 S. Ct. 2848 (U.S. June 28,
2021) (mem.).
183 See Letter from Daniel Whitehead, Director, Division of Environmental Permits, to Joseph Dean, May 15, 2019,
https://extapps.dec.ny.gov/docs/administration_pdf/nodtgp.pdf; Letter from Daniel Whitehead to Joseph Dean,
Transcontinental Gas Pipe Line Company, LLC, May 15, 2020, https://extapps.dec.ny.gov/docs/
permits_ej_operations_pdf/nesewqcdenial05152020.pdf.
184 Letter from Daniel Whitehead to Joseph Dean, May 15, 2020, pp. 3-13, https://extapps.dec.ny.gov/docs/
permits_ej_operations_pdf/nesewqcdenial05152020.pdf.
185
Ibid., p. 14.
186 Ibid.
187 Ibid., p. 16.
Congressional Research Service
22
Clean Water Act Section 401: Overview and Recent Developments
Scope of Section 401 Conditions
Stakeholders have also debated the scope of what certifying authorities may impose as conditions
when granting a certification. Some observers assert that conditions should be limited to ensuring
compliance with the enumerated sections listed in Section 401(d) or state requirements that are
water-quality specific. Other observers argue that the phrase “any other appropriate requirement
of State law” provides authority to consider conditions that are broader, as long as they relate to
water quality.188
The Supreme Court weighed in on one aspect of the scope of Section 401 in 1994. In a 7-2
decision in PUD No. 1 of Jefferson County v. Washington Department of Ecology, the Court
upheld a state condition that imposed a minimum stream flow requirement to protect a steelhead
and salmon fishery in a Section 401 certification for a hydroelectric project.189 In rejecting the
petitioner’s claim that the state’s authority to impose conditions under Section 401 should be
limited to addressing only “discharges” that may result from the proposed project, the Court held
that a “reasonable read” of Section 401 authorizes the state to place certification conditions on the
“activity as a whole once the threshold condition, the existence of a discharge, is satisfied.”190 The
Court arrived at this conclusion by analyzing the different terms used in Section 401(a) and
401(d), noting that while Section 401(a) requires certifying authorities to certify that a discharge
will comply with relevant provisions of the CWA, Section 401(d) provides that a certification
may include conditions or limitations “to assure that any applicant” will comply with the CWA
and appropriate state law requirements.191 Additionally, the Court noted that this was consistent
with EPA’s implementing regulations in effect at the time, which interpreted Section 401 as
requiring the certifying authority to find that “there is a reasonable assurance that the activity will
be conducted in a manner which will not violate applicable water quality standards.”192
The Court further cautioned, however, that certifying authorities do not have unlimited authority
to place restrictions on an activity as a whole, but instead may ensure only that a project complies
with the enumerated provisions of the CWA and any other appropriate state law requirement.193
The Court did not reach the issue of “what additional state laws, if any, might be incorporated” by
the reference to “any other appropriate requirement of State law,” but held that, “at a minimum,
limitations pursuant to state water quality standards adopted pursuant to [CWA] § 303 are
‘appropriate’ requirements of state law.”194 The Court ultimately concluded that a certifying
authority may place minimum stream flow requirements in its certification to enforce a
designated use contained in a state water quality standard, reasoning that “[i]n many cases, water
quantity is closely related to water quality; a sufficient lowering of the water quantity in a body of
water could destroy all of its designated uses, be it for drinking water, recreation, navigation or, as
here, as a fishery.”195
188 2020 Rule, pp. 42254-42256.
189 PUD No. 1 of Jefferson County v. Wash. Dep’t of Ecology, 511 U.S. 700 (1994). The parties in that case did not
dispute that state certification was required under Section 401. In a later case, the Supreme Court unanimously held that
the flow of water through a dam constitutes a “discharge” for purposes of triggering Section 401. S.D. Warren Co. v.
Me. Bd. of Env’tl Prot., 547 U.S. 370 (2006).
190 PUD No. 1 of Jefferson County, 511 U.S. at 711-12.
191 Id. at 711.
192 Id. at 712 (quoting 40 C.F.R. §121.2(a)(3) (1993)).
193
Id. at 712.
194 Id. at 713.
195 Id. at 719.
Congressional Research Service
23
Clean Water Act Section 401: Overview and Recent Developments
2010 EPA Guidance on the Scope of Review and Conditions
EPA’s rescinded 2010 Guidance provided that “an applicant must demonstrate that the proposed
activity and discharge will not violate or interfere with the attainment of any limitations or
standards identified in §401(a) and (d).”196 Further, it specified that these CWA subsections
include the enumerated sections of the act and “any other appropriate requirement of State law set
forth in such certification.”197 EPA’s 2010 Guidance also supported interpreting the scope of what
states may impose as conditions in a manner that allowed consideration of concerns relating to
water quality. Specifically, the 2010 Guidance provided that “[u]nder CWA §401(d) the water
quality concerns to consider, and the range of potential conditions available to address those
concerns, extend to any provision of state or tribal law relating to the aquatic resource.”198 It
further provided that “considerations can be quite broad so long as they relate to water quality.”199
Relevant considerations identified in the 2010 Guidance included state and tribal laws protecting
threatened and endangered species, “particularly where the species plays a role in maintaining
water quality or if their presence is an aspect of a designated use”; state and tribal wildlife laws
“addressing habitat characteristics necessary for species identified in a waterbody’s designated
use”; and state and tribal laws protecting the cultural or religious value of waters.200
When EPA updated its guidance in 2019 to respond to E.O. 13868, the agency recommended that
the scope of a certification review and related decision “be limited to an evaluation of potential
water quality impacts.”201 Also, EPA more narrowly recommended that conditions “be limited to
ensuring compliance with the enumerated provisions of the CWA and other appropriate state or
tribal water quality requirements.”202
Scope of Certifications in the 2020 Rule
CWA Section 401 requires that the certifying authority certify that “any such discharge will
comply with the applicable provisions of [CWA] sections 301, 302, 303, 306, and 307.”203 The
2020 Rule limited the scope of a Section 401 certification to assuring that a discharge from a
federally licensed or permitted activity would comply with “water quality requirements.”204 The
rule also newly defined the term water quality requirements in a manner that limited the scope of
water quality impacts that states may consider in their certification review, as well as the scope of
conditions the state may impose. Specifically, the rule defined “water quality requirements” as
“applicable provisions of §§301, 302, 303, 306, and 307 of the Clean Water Act, and state or
tribal regulatory requirements for point source discharges into waters of the United States”
(emphasis added).205
Under 1971 regulations and practice, the scope of certification included assuring that the
activity—which encompasses the project as a whole as well as the discharge—would comply
with water quality requirements, which was neither defined explicitly in Section 401 nor the
196 2010 Guidance, p. 18.
197 Ibid.
198 2010 Guidance, p. 23.
199 Ibid.
200 2010 Guidance, p. 21.
201 2019 Guidance, p. 4.
202 Ibid.
203
33 U.S.C. §1341.
204 2020 Rule, p. 42285.
205 2020 Rule, p. 42285.
Congressional Research Service
24
Clean Water Act Section 401: Overview and Recent Developments
regulations.206 In addition, as EPA acknowledged in the 2020 Rule’s preamble, the agency
“previously suggested that the scope of section 401 may extend to nonpoint source discharges to
non-federal waters” (i.e., waters that are not waters of the United States) “once the requirement
for the section 401 certification is triggered.”207
The Supreme Court addressed one aspect of what activities trigger Section 401 in 2006. In S.D.
Warren Co. v. Maine Board of Environmental Protection, the Court considered the meaning of the
term “discharge” as used in Section 401(a)(1), which establishes the scope of the certification
requirement as applying to any application for a federal license or permit to conduct “any activity
... which may result in any discharge into the navigable waters.”208 Ruling that the flow of water
through a dam constitutes a “discharge” sufficient to trigger Section 401, the Court unanimously
held that the term means a “flowing or issuing out,” and is broader than “discharge of a pollutant”
or “discharge of pollutants.”209 The Court did not discuss, however, whether a discharge must be
from a point source to trigger Section 401, or whether a discharge from a dam is a point source
discharge more specifically.
Scope of Certifications in the 2020 Rule
The 2020 Rule limited the application of Section 401 to point source discharges into waters of the
United States.210 This change meant that any consideration of water quality impacts from the
project as a whole (other than the point source discharge itself) was excluded from the scope of
the certifying authority’s review and consideration of conditions. For example, the certifying
authority was no longer able to address water quality-related impacts from the project that were
tangential to the discharge. Stakeholders asserted that such water quality impacts could include
increased water withdrawals, groundwater pollution, increased erosion and sedimentation,
increases in impervious surfaces (resulting in reduced stormwater infiltration), disconnected
ecosystems, and harm to endangered species.211
In addition, the changes in the 2020 Rule meant that the scope of the certifying authority’s review
and consideration of conditions could not include impacts to nonfederal waters. Some
stakeholders expressed particular concern about this change in light of the final rule EPA and
USACE published under the first Trump Administration on April 21, 2020, which narrowed the
scope of waters that were defined as “waters of the United States” (WOTUS) under the CWA.212
The changes in the 2020 Rule also narrowed the scope of review and conditions to focus on water
quality requirements, specifically excluding consideration of other non-water-quality impacts. In
the preamble to the 2020 Rule, EPA stated that the agency was “aware of circumstances in which
some States have denied certifications on grounds that are unrelated to water quality requirements
206 EPA Office of Water, Clean Water Act Section 401 Certification Rule Public Webinar, June 17, 2020,
https://19january2021snapshot.epa.gov/cwa-401/public-webinar-clean-water-act-section-401-certification-rule_.html.
207 2020 Rule, pp. 42234-42235.
208 547 U.S. 370 (2006).
209 Id. at 375-76.
210 2020 Rule, p. 42234.
211 2020 Rule, p. 42252.
212 USACE and EPA, “The Navigable Waters Protection Rule: Definition of ‘Waters of the United States,’” 85 Federal
Register 22250, April 21, 2020. The definition of WOTUS has changed following the issuance of the Navigable Waters
Protection Rule. The Biden Administration issued a rule redefining WOTUS in January 2023 and a conforming rule
amending it in September 2023 to respond to the Supreme Court’s decision in Sackett v. EPA, 598 U.S. 651 (2023). For
more information, see CRS Report R47408, Waters of the United States (WOTUS): Frequently Asked Questions About
the Scope of the Clean Water Act, by Kate R. Bowers and Laura Gatz.
Congressional Research Service
25
Clean Water Act Section 401: Overview and Recent Developments
and that are beyond the scope of CWA section 401.”213 EPA then referenced, as an example, the
certification denial letter from the state of New York to the Millennium Pipeline Company, which
considered among other things FERC’s failure to consider or quantify the effects of downstream
greenhouse gas emissions in its environmental review of the project.214 The preamble also stated
that the agency is aware that some certifications have included conditions that may be unrelated
to water quality, including requirements for recreational trails, public access for recreation, or
one-time and recurring payments to state agencies for improvements unrelated to the proposed
project.215 EPA emphasized that the 2020 Rule clarified that the scope of the certification review
and the scope of conditions that were appropriate for inclusion in a certification were limited to
ensuring that the discharge from a federally licensed or permitted activity would comply with
water quality requirements, as newly defined in the rule.
Scope of Certifications in the 2023 Rule
The 2023 Rule clarifies that the scope of Section 401 reviews includes evaluating whether the
activity will comply with applicable water quality requirements.216 The 2023 Rule also clarifies
that the certifying authority’s review is limited to the water quality-related impacts from the
federally licensed permit or activity, including the activity’s construction and operation. The rule
also defines water quality requirements to mean “any limitation, standard, or other requirement
under sections 301, 302, 303, 306, and 307” of the CWA and “any Federal and state or Tribal laws
or regulations implementing those sections, and any other water quality-related requirement of
state or Tribal law.”217 Thus, while the 2023 Rule clarifies that the scope of the review may only
consider water quality-related impacts, certifying authorities are able to consider a broader range
of water quality-related impacts than under the 2020 Rule. These include water quality-related
impacts from the activity (e.g., both point source and nonpoint source impacts) as well as impacts
to nonfederal waters. In the preamble to the 2023 Rule, EPA states that “the best reading of
section 401 is that it authorizes a state or Tribe to apply state law or Tribal law to all impacted
state or Tribal waters.”218 EPA also reasons that, while the 401 certification requirement is
triggered by a potential discharge into navigable waters (i.e. WOTUS),
water quality impacts from the activity could occur in state or Tribal waters beyond those
navigable waters. Allowing states or authorized Tribes to apply state or Tribal law to all
potentially affected state or Tribal waters is supported by CWA section 510, which—
“[e]xcept as expressly provided” in the CWA—preserves a state’s or authorized Tribe’s
authority and jurisdiction to protect its waters from pollution.219
The 2023 Rule also clarifies that the scope of conditions is the same as the scope of review.
Certifying authorities are to impose conditions “necessary to assure that the activity will comply
with applicable water quality requirements.220
213 2020 Rule, p. 42256.
214 Ibid.
215 2020 Rule, p. 42257.
216 2023 Rule, p. 66662.
217 Ibid.
218
2023 Rule, p. 66605.
219 Ibid.
220 2023 Rule, pp. 66592, 66662.
Congressional Research Service
26
Clean Water Act Section 401: Overview and Recent Developments
Other Selected Changes in the 2020 and 2023 Rules
The 2020 and 2023 Rules included a number of changes from the 1971 regulations in addition to
those addressing certification timeframes and the scope of certification. Some of these changes
formalized current practice, clarified timelines around specific requirements and practice, or
included more detail and explanation of processes. Others represented more substantive changes
from the 1971 regulations and practice, including a new federal review process for denials and
conditions, a new interpretation of enforcement roles, and a new provision to allow Tribes to
obtain treatment as a state for Section 401-related purposes.
Federal Review Process for Denials and Conditions
The 2020 Rule addressed the role of federal licensing and permitting agencies in the certification
process, including those agencies’ authority to review certification decisions. Courts have held
that federal licensing and permitting agencies may not change or reject conditions imposed by
certifying authorities, including by imposing more stringent alternative conditions.221 Courts have
held, however, that the licensing or permitting agency must determine whether the certifying
authority has met the facial requirements of Section 401 before issuing a license or permit.222
The 2020 Rule required a certifying authority to provide written reasons for the denial or
conditions, along with specified supporting information to the federal licensing or permitting
agency.223 The 2020 Rule also newly required the federal permitting or licensing agency to
determine whether the state denial or certification conditions complied with the procedural
requirements of Section 401 and the 2020 Rule. If the federal permitting or licensing agency
determined that a certification denial did not include three elements as required in the rule, the
federal agency was required to determine that the certifying authority “fail[ed] or refuse[d] to act”
and therefore waived certification.224 Similarly, federal licensing and permitting agencies were
required to determine whether certification conditions included the two minimum elements
required by the 2020 Rule.225 If the federal agency determined that certification conditions did not
include the two elements, they similarly were required to determine that the certifying authority
“fail[ed] or refuse[d] to act” and the deficient certification condition would be waived. The
preamble to the 2020 Rule clarified that the federal agency review was “procedural in nature and
does not extend to substantive evaluations” of certifications, conditions, and denials.226
221 Sierra Club v. U.S. Army Corps of Eng’rs, 909 F.3d 635, 648 (4th Cir. 2018); City of Tacoma v. FERC, 460 F.3d 53,
67 (D.C. Cir. 2006); Am. Rivers, Inc. v. FERC, 129 F.3d 99, 107 (2d Cir. 1997); U.S. Dep’t of Interior v. FERC, 952
F.2d 538, 548 (D.C. Cir. 1992); Roosevelt Campobello Inter. Park v. EPA, 684 F.2d 1041, 1056 (1st Cir. 1982).
222 City of Tacoma, 460 F.3d at 67-68; Am. Rivers, Inc., 129 F.3d at 110-11; Keating v. FERC, 927 F.2d 616, 622-23,
625 (D.C. Cir. 1997).
223 2020 Rule, p. 42286.
224 Ibid. These three elements for denial of an individual license or permit are “(i) the specific water quality
requirements with which the discharge will not comply; (ii) a statement explaining why the discharge will not comply
with the identified water quality requirements; and (iii) if the denial is due to insufficient information, the denial must
describe the specific water quality data or information, if any, that would be needed to assure that the discharge from
the proposed project will comply with water quality requirements.” The rule listed similar elements for denial of a
general license or permit.
225 2020 Rule, p. 42286. These two elements for conditions on an individual license or permit are “(i) a statement
explaining why the condition is necessary to assure that the discharge from the proposed project will comply with water
quality requirements; and (ii) a citation to federal, state, or tribal law that authorizes the condition.” The rule listed
similar elements for conditions on a general license or permit.
226 2020 Rule, p. 42267.
Congressional Research Service
27
Clean Water Act Section 401: Overview and Recent Developments
The 2023 Rule limits federal agency review to verifying whether (1) the appropriate certifying
authority issued the decision; (2) the certifying authority confirmed it complied with its public
notice procedures; and (3) the certifying authority acted on the request for the certification within
the reasonable period of time.227 As discussed above, the 2023 Rule also newly clarifies what it
means “to act” on a request for certification.228 It also specifies information that should be
included in each written decision.229
Enforcement
The 2020 Rule also newly provided that the federal licensing or permitting agency (rather than
the certifying authority) would be responsible for enforcing certification conditions incorporated
into a federal license or permit.230 The preamble to the 2020 Rule stated that “the CWA does not
provide independent authority for certifying authorities to enforce the conditions that are included
in a certification under federal law.”231 Accordingly, it stated that EPA “is interpreting the CWA to
clarify that this enforcement role is reserved to the federal agency issuing the federal license or
permit.”232 This differs from 1971 regulations and practice, which did not expressly clarify
enforcement roles. According to an EPA webinar and the 2010 Guidance, depending on the state,
both the certifying authorities and the federal agencies played a role in enforcement under the
1971 regulations and in practice.233 EPA expressly declined to opine in the 2020 Rule on whether
the CWA authorizes citizen suits to enforce certification conditions pursuant to Section 505 of the
statute.234
In commenting on the proposed rule, some commenters agreed with this enforcement
approach.235 Others asserted that states and tribes should be allowed to independently enforce
their certification conditions.236 Some argued that the restriction on enforcement authority would
run afoul of Section 510 of the CWA, which reserves state and local governments’ authority to
enforce “any standard or limitation respecting discharges of pollutants” and “any requirement
respecting control or abatement of pollution” that is equally or more stringent than required under
the CWA, unless expressly provided for in the statute.237 EPA explained in the 2020 Rule
preamble that states may enforce certification conditions under state law (where state authority is
not preempted by federal law), and asserted that the rule therefore did not implicate Section
510.238 Some also argued that states and tribes, rather than the federal agency, have the technical
knowledge and capacity to conduct inspections and enforce certification conditions; and some
federal agencies noted that it could be challenging to enforce certain certification conditions.239
227 2023 Rule, p. 66663.
228 Ibid.
229 Ibid.
230 2020 Rule, p. 42275.
231 Ibid.
232 Ibid.
233 EPA Office of Water, Clean Water Act Section 401 Certification Rule Public Webinar, June 17, 2020,
https://19january2021snapshot.epa.gov/cwa-401/public-webinar-clean-water-act-section-401-certification-rule_.html.
See also 2010 Guidance, pp. 32-33.
234 2020 Rule, p. 42277.
235 2020 Rule, p. 42275.
236 Ibid.
237
2020 Rule, pp. 42275-42276. See also 33 U.S.C. §1370.
238 2020 Rule, p. 42276.
239 Ibid.
Congressional Research Service
28
Clean Water Act Section 401: Overview and Recent Developments
EPA responded that federal agencies remained free to consult with certifying authorities, and that
the rule’s limitations on the scope of certification and the new requirements for certifications with
conditions would provide sufficient clarity to enable federal agencies to effectively enforce
conditions.240
The 2023 Rule does not include regulatory text on enforcement. In the preamble, EPA states that
it is not finalizing any regulatory text on enforcement and is removing the 2020 Rule’s provision
because the provision “introduced ambiguity into the Agency’s longstanding position that nothing
in section 401 precludes states from enforcing certification conditions when authorized under
state law.”241 EPA also discusses a number of concerns identified by stakeholders regarding 401
enforcement.242 EPA notes in that discussion that stakeholders generally agreed that federal
agencies could enforce certification conditions but expressed concerns that the 2020 Rule
prevented states and Tribes from exercising their independent enforcement authority.243 Some of
these stakeholders raised concerns over federal agencies’ willingness or capacity to enforce
certifications and their conditions.244
Treatment as a State for Tribes Under Section 401
The CWA, like several other federal environmental laws, authorizes federally recognized Tribes
to be treated as states under certain circumstances. The 2023 Rule includes provisions for Tribes
to obtain treatment as a state (TAS) status for purposes of Section 401 certification or to obtain
TAS to act as a neighboring jurisdiction under Section 401(a)(2).245 Prior to this rule, Tribes did
not have this option unless they also applied for TAS for water quality standards under Section
303(c).246
Congressional Interest
Many Members have shown interest in Section 401 implementation in the past few Congresses.
Congress has held hearings that have included a discussion of Section 401, and some Members
have introduced legislation that either focused specifically on Section 401 or would amend
Section 401 within broader permitting reform bills.
In the 116th Congress, the Senate Committee on Environment and Public Works held a legislative
hearing on potential reforms to Section 401, including legislation introduced by the committee
chairman (S. 1087).247 S. 1087 and H.R. 2205, identical bills titled the Water Quality Certification
Improvement Act of 2019, would have amended Section 401. These bills were reintroduced in the
117th Congress (S. 1761, H.R. 3422) as the Water Quality Certification Improvement Act of 2021
240 Ibid.
241 2023 Rule, p. 66634.
242 2023 Rule, p. 66633.
243 Ibid.
244 Ibid.
245 2023 Rule, pp. 66651-66654, 66663-66664.
246 EPA, Clean Water Section 401 Water Quality Certification Improvement Rule Fact Sheet, September 2023, p. 4,
https://www.epa.gov/system/files/documents/2023-09/
Overview%20Fact%20Sheet%20on%20the%20Final%202023%20Rule_508.pdf.
247 U.S. Congress, Senate Committee on Environment and Public Works, Hearing on S. 1087, the Water Quality
Certification Improvement Act of 2019, and Other Potential Reforms to Improve Implementation of Section 401 of the
Clean Water Act: State Perspectives, 116th Cong., 2nd sess., November 19, 2019, S.Hrg. 116-145. The committee also
held a hearing on the same issue and introduced similar legislation (identical bills—S. 3303 and H.R. 6889) in the 115th
Congress.
Congressional Research Service
29
Clean Water Act Section 401: Overview and Recent Developments
and in the 118th Congress (S. 3082) as the Water Quality Certification Improvement Act of 2023.
The proposed changes would have narrowed the scope of water quality impacts that certifying
authorities may consider in their certification review, narrowed the scope of conditions certifying
authorities may impose, established a time limit for certifying authorities to request additional
information, and required certifying authorities to provide a written explanation of their
certification decision.
During the 2019 hearing on Section 401 reform, Members in the 116th Congress debated whether
proposed Section 401 reforms—whether through legislation such as the Water Quality
Certification Improvement Act of 2019 (S. 1087) or the 2019 Proposed Rule—were necessary.
Some Members argued that while the majority of states carry out their Section 401 certifications
in a responsible way, some are abusing their authority under the provision to block critical energy
infrastructure projects.248 Two state witnesses (the governors of Wyoming and Oklahoma) pointed
to examples, such as the state of Washington’s certification denial for the Millennium coal export
terminal, of states considering impacts beyond the scope of water quality in their certification
review.249 They indicated support for the proposed Section 401 reforms—in particular, the
reforms that would clarify the scope of reviews, clarify timelines, and require that certifying
authorities provide a clear basis for any certification denials.250
In contrast, some Members argued that states are appropriately using Section 401 authority to
protect the waters in their states. They criticized the proposed Section 401 reforms as
unnecessary, inappropriately restrictive regarding what activities and impacts a state can review
and the timeframes in which they can review them, and counter to the principle of cooperative
federalism.251 A state witness—a Senior Assistant Attorney General from Washington—similarly
criticized the proposed Section 401 reforms.252 She further argued that states have largely
demonstrated a fair and successful implementation of Section 401, and that efforts to reform
Section 401 appear to be based on disagreement with a few state decisions.253
In the 118th Congress, in addition to the 2023 Water Quality Certification Improvement Act, some
Members of Congress introduced other legislation involving Section 401. Several of these bills
were broader permitting reform bills that included proposed changes to Section 401.
•
•
Lower Energy Costs Act (H.R. 1 and S. 947, related bills) would have addressed
a broad range of changes to permitting and environmental review processes,
including to Section 401 certifications. Among other changes, the bills include a
provision titled “Water Quality Certification and Energy Project Improvement”
that would have narrowed the scope of certification reviews, as discussed below
under H.R. 1152. The House passed H.R. 1.
Promoting Interagency Coordination for Review of Natural Gas Pipelines Act
(H.R. 1115) would have provided that a Section 401 certification is not required
for applicants for gas pipeline projects. Instead, the bill would have required that
FERC incorporate Section 401 certification into its National Environmental
Policy Act (NEPA) review.
248 S.Hrg. 116-145, pp. 1, 111-112, 114-115.
249 S.Hrg. 116-145, pp. 6 and 20.
250 S.Hrg. 116-145, pp. 7 and 20.
251
S.Hrg. 116-145, pp. 3, 80, 109-110, 112-113, 200.
252 S.Hrg. 116-145, p. 28.
253 S.Hrg. 116-145, pp. 28-29.
Congressional Research Service
30
Clean Water Act Section 401: Overview and Recent Developments
•
•
•
•
The Water Quality Certification and Energy Project Improvement Act of 2023
(H.R. 1152) would have narrowed the scope of certification reviews to focus on
the discharge and would have specified that the scope of reviews and conditions
should be based only on the enumerated sections of the CWA and requirements
of state law implementing water quality criteria under Section 303. It also would
have limited “acting on” a request to granting or denying it, required certifying
authorities to identify all materials or information necessary to make a
certification decision within 90 days of receiving a request for certification, and
required that such authorities publish requirements for their certifications.
The Limit, Save, Grow Act of 2023 (H.R. 2811) would have addressed a broad
range of changes to permitting and environmental review processes, including to
Section 401 certifications. The bill included a provision titled “Promoting
Interagency Coordination for Review of Natural Gas Pipelines” that would have
included changes discussed above under H.R. 1115. It also included a provision
titled “Water Quality Certification and Energy Project Improvement” that would
have narrowed the scope of certification reviews, as discussed above under H.R.
1152.The House passed H.R. 2811.
H.Amdt. 579 to the Department of the Interior, Environment, and Related
Agencies Appropriations Act, 2024, would have prohibited funding for the
implementation and enforcement of the 2023 Rule. The amendment was agreed
to by voice vote in the House.
The RESTART Act (S. 1449) would have made a broad range of changes to
permitting and environmental review processes, including amendments to several
CWA provisions. The bill would have amended Section 401 to narrow state
authority with regard to the certification process. For example, it would have
narrowed the scope of review to consideration of certain enumerated sections of
the CWA as well as any applicable state or tribal regulatory requirements for
point source discharges into WOTUS. It would also have provided that licensing
and permitting agencies establish the reasonable period of time, either
categorically or on a case-by-case basis, and would have authorized such
agencies to enforce certification conditions. In addition, the bill would have
provided that a certifying authority’s decision to waive a certification would not
be subject to judicial review and would have set a timeline for further agency
action in instances where a federal court remands or vacates a certification. It
also would have defined what it means for a certifying authority to act.
Policy Options
Stakeholders continue to debate how CWA Section 401 should be implemented. Much of the
debate about Section 401 implementation centers on the appropriate balance of “cooperative
federalism” between federal agencies’ and states’ authorities. CWA Section 101(b) provides that
“it is the policy of the Congress to recognize, preserve, and protect the primary responsibilities
and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use
(including restoration, preservation, and enhancement) of land and water resources, and to consult
with the Administrator in the exercise of his authority under this Act.” States and others who
opposed the changes to the Section 401 implementing regulations included in the 2020 Rule
argued that the changes undermined the CWA’s structure of cooperative federalism. Some
asserted that the rule inappropriately limited certifying authorities’ ability to protect their own
water resources. During the first Trump Administration, EPA argued that the 2020 Rule was
Congressional Research Service
31
Clean Water Act Section 401: Overview and Recent Developments
consistent with its role, established by Congress, to administer the CWA, which includes ensuring
“that there are sufficient authorities and limitations in place for States and Tribes to effectively
implement CWA programs within the scope that Congress established.”254 Many states supported
the broader authority returned to states under the 2023 Rule, and argued that the 2023 Rule
appropriately restored the state role in protecting and managing their own water resources.255
On its own, as discussed, the 2020 Rule included numerous changes to regulation and practice
that narrowed the authority of states when acting on Section 401 certification requests. The 2023
Rule returned some of that authority to states. However, recent legal and regulatory developments
pertaining to the scope of the CWA have also affected and may continue to affect states’ use of
their Section 401 certification authority. Notably, the Navigable Waters Protection Rule, which
EPA and USACE promulgated in April 2020, narrowed the definition of “waters of the United
States,” thereby reducing the number of waters and wetlands that fall under the jurisdiction of the
CWA. Like the 2020 Rule, the Navigable Waters Protection Rule was superseded by a new rule
redefining WOTUS (the 2023 WOTUS Rule).256
In June 2023, the Supreme Court decided Sackett v. EPA, adopting a narrower approach to CWA
jurisdiction and rejecting elements of the jurisdictional test that were present in the 2023 WOTUS
Rule.257 In its ruling, the Court construed the scope of what is considered WOTUS more narrowly
than the existing or previous regulatory interpretations. The USACE and EPA then issued a new
rule amending the 2023 WOTUS Rule to conform the regulatory definition to the Court’s
decision in Sackett.258 The 2023 WOTUS Rule, as amended by the conforming rule, remains
subject to litigation.259 Because Section 401 certifications are triggered by a potential discharge to
WOTUS (from an activity requiring a federal permit or license), a narrower interpretation of
WOTUS implies that Section 401 certifications may be triggered less often. A narrower scope of
WOTUS, if combined with a narrower scope for 401 certification reviews (such as any effort to
limit the scope of reviews to discharges or to limit reviews only to the effects on WOTUS), could
potentially widen the regulatory gap for nonfederal waters in some states and prevent states from
weighing in on some federal activities that may affect waters within their states. Some have
expressed concerns that this may impair states’ ability to protect their water resources.260 Others
assert that while states should have authority to manage and protect their waters, federal agencies
should maintain some authority over projects in the national interest.261
In the 119th Congress, Members may consider introducing legislation to amend Section 401 to
clarify congressional intent regarding some of the policy issues discussed in this report,
particularly regarding the certification timeframes, the scope of certification reviews and
254 2020 Rule, p. 42226.
255 EPA 2023 Press Release.
256 USACE and EPA, “Revised Definition of ‘Waters of the United States,’” 88 Federal Register 3004, January 18,
2023 (hereinafter 2023 WOTUS Rule).
257 598 U.S. 651 (2023).
258 USACE and EPA, “Revised Definition of ‘Waters of the United States’; Conforming,” 88 Federal Register 61964,
September 8, 2023.
259 Texas v. EPA, No. 3:23-cv-00017 (S.D. Tex. filed Jan. 18, 2023); West Virginia v. EPA, No. 3:23-cv-00032
(D.N.D. filed Feb. 16, 2023); Kentucky v. EPA, No. 3:23-cv-00007 (E.D. Ky. filed Feb. 22, 2023).
260 For example, see 2023 Rule, p. 66598. See also Movant-Intervenor States’ Motion to Intervene, p. 5, Louisiana v.
EPA, No. 2:23-cv-01714 (W.D. La. Jan. 12, 2024), ECF No. 40.
261 For example, see H. Hrg 118-69, pp. 1-2. See also American Gas Association, “AGA Joins Comments Aug. 8, 2022
Urging EPA to Clarify Regulations Governing State Clean Water Act 401 Water Quality Certifications,” press release,
August 2022, https://www.aga.org/research-policy/resource-library/aga-joins-comments-aug-8-2022-urging-epa-toclarify-regulations-governing-state-clean-water-act-401-water-quality-certifications/.
Congressional Research Service
32
Clean Water Act Section 401: Overview and Recent Developments
conditions, and the roles of certifying authorities and federal licensing or permitting agencies
(e.g., enforcement roles and roles in establishing the reasonable period of time). As has been
considered in recent sessions of Congress, this legislation could be freestanding or it could be
included as part of broader permitting reform legislation. Alternatively, Congress may consider
overseeing implementation of the 2023 Rule to distinguish between aspects of the rule that may
be working well and any potential areas that might benefit from clarification or other changes. In
selecting policy options, Congress may consider the interaction between recent and any future
changes to the definition of WOTUS and the indirect impact it may have on Section 401
certifications.
Congressional Research Service
33
Clean Water Act Section 401: Overview and Recent Developments
Appendix. CWA Section 401 (33 U.S.C. §1341)
Section 401. (a)(1) Any applicant for a Federal license or permit to conduct any activity
including, but not limited to, the construction or operation of facilities, which may result in any
discharge into the navigable waters, shall provide the licensing or permitting agency a
certification from the State in which the discharge originates or will originate, or, if appropriate,
from the interstate water pollution control agency having jurisdiction over the navigable waters at
the point where the discharge originates or will originate, that any such discharge will comply
with the applicable provisions of Sections 301, 302, 303, 306, and 307 of this act. In the case of
any such activity for which there is not an applicable effluent limitation or other limitation under
Sections 301(b) and 302, and there is not an applicable standard under Sections 306 and 307, the
State shall so certify, except that any such certification shall not be deemed to satisfy Section
511(c) of this act. Such State or interstate agency shall establish procedures for public notice in
the case of all applications for certification by it and, to the extent it deems appropriate,
procedures for public hearings in connection with specific applications. In any case where a State
or interstate agency has no authority to give such a certification, such certification shall be from
the Administrator. If the State, interstate agency, or Administrator, as the case may be, fails or
refuses to act on a request for certification, within a reasonable period of time (which shall not
exceed one year) after receipt of such request, the certification requirements of this subsection
shall be waived with respect to such Federal application. No license or permit shall be granted
until the certification required by this section has been obtained or has been waived as provided in
the preceding sentence. No license or permit shall be granted if certification has been denied by
the State, interstate agency, or the Administrator, as the case may be.
(2) Upon receipt of such application and certification the licensing or permitting agency shall
immediately notify the Administrator of such application and certification. Whenever such a
discharge may affect, as determined by the Administrator, the quality of the waters of any other
State, the Administrator within thirty days of the date of notice of application for such Federal
license or permit shall so notify such other State, the licensing or permitting agency, and the
applicant. If, within sixty days after receipt of such notification, such other State determines that
such discharge will affect the quality of its waters so as to violate any water quality requirement
in such State, and within such sixty-day period notifies the Administrator and the licensing or
permitting agency in writing of its objection to the issuance of such license or permit and requests
a public hearing on such objection, the licensing or permitting agency shall hold such a hearing.
The Administrator shall at such hearing submit his evaluation and recommendations with respect
to any such objection to the licensing or permitting agency. Such agency, based upon the
recommendations of such State, the Administrator, and upon any additional evidence, if any,
presented to the agency at the hearing, shall condition such license or permit in such manner as
may be necessary to insure compliance with applicable water quality requirements. If the
imposition of conditions cannot insure such compliance such agency shall not issue such license
or permit.
(3) The certification obtained pursuant to paragraph (1) of this subsection with respect to the
construction of any facility shall fulfill the requirements of this subsection with respect to
certification in connection with any other Federal license or permit required for the operation of
such facility unless, after notice to the certifying State, agency, or Administrator, as the case may
be, which shall be given by the Federal agency to whom application is made for such operating
license or permit, the State, or if appropriate, the interstate agency or the Administrator, notifies
such agency within sixty days after receipt of such notice that there is no longer reasonable
assurance that there will be compliance with the applicable provisions of Sections 301, 302, 303,
306, and 307 of this act because of changes since the construction license or permit certification
Congressional Research Service
34
Clean Water Act Section 401: Overview and Recent Developments
was issued in (A) the construction or operation of the facility, (B) the characteristics of the waters
into which such discharge is made, (C) the water quality criteria applicable to such waters or (D)
applicable effluent limitations or other requirements. This paragraph shall be inapplicable in any
case where the applicant for such operating license or permit has failed to provide the certifying
State, or, if appropriate, the interstate agency or the Administrator, with notice of any proposed
changes in the construction or operation of the facility with respect to which a construction
license or permit has been granted, which changes may result in violation of Section 301, 302,
303, 306, or 307 of this act.
(4) Prior to the initial operation of any federally licensed or permitted facility or activity which
may result in any discharge into the navigable waters and with respect to which a certification has
been obtained pursuant to paragraph (1) of this subsection, which facility or activity is not subject
to a Federal operating license or permit, the licensee or permittee shall provide an opportunity for
such certifying State, or, if appropriate, the interstate agency or the Administrator to review the
manner in which the facility or activity shall be operated or conducted for the purposes of
assuring that applicable effluent limitations or other limitations or other applicable water quality
requirements will not be violated. Upon notification by the certifying State, or if appropriate, the
interstate agency or the Administrator that the operation of any such federally licensed or
permitted facility or activity will violate applicable effluent limitations or other limitations or
other water quality requirements such Federal agency may, after public hearing, suspend such
license or permit. If such license or permit is suspended, it shall remain suspended until
notification is received from the certifying State, agency, or Administrator, as the case may be,
that there is reasonable assurance that such facility or activity will not violate the applicable
provisions of Section 301, 302, 303, 306, or 307 of this act.
(5) Any Federal license or permit with respect to which a certification has been obtained under
paragraph (1) of this subsection may be suspended or revoked by the Federal agency issuing such
license or permit upon the entering of a judgment under this act that such facility or activity has
been operated in violation of the applicable provisions of Section 301, 302, 303, 306, or 307 of
this act.
(6) Except with respect to a permit issued under Section 402 of this act, in any case where
actual construction of a facility has been lawfully commenced prior to April 3, 1970, no
certification shall be required under this subsection for a license or permit issued after April 3,
1970, to operate such facility, except that any such license or permit issued without certification
shall terminate April 3, 1973, unless prior to such termination date the person having such license
or permit submits to the Federal agency which issued such license or permit a certification and
otherwise meets the requirements of this section.
(b) Nothing in this section shall be construed to limit the authority of any department or agency
pursuant to any other provision of law to require compliance with any applicable water quality
requirements. The Administrator shall, upon the request of any Federal department or agency, or
State or interstate agency, or applicant, provide, for the purpose of this section, any relevant
information on applicable effluent limitations, or other limitations, standards, regulations, or
requirements, or water quality criteria, and shall, when requested by any such department or
agency or State or interstate agency, or applicant, comment on any methods to comply with such
limitations, standards, regulations, requirements, or criteria.
(c) In order to implement the provisions of this section, the Secretary of the Army, acting through
the Chief of Engineers, is authorized, if he deems it to be in the public interest, to permit the use
of spoil disposal areas under his jurisdiction by Federal licensees or permittees, and to make an
appropriate charge for such use. Moneys received from such licensees or permittees shall be
deposited in the Treasury as miscellaneous receipts.
Congressional Research Service
35
Clean Water Act Section 401: Overview and Recent Developments
(d) Any certification provided under this section shall set forth any effluent limitations and other
limitations, and monitoring requirements necessary to assure that any applicant for a Federal
license or permit will comply with any applicable effluent limitations and other limitations, under
Section 301 or 302 of this act, standard of performance under Section 306 of this act, or
prohibition, effluent standard, or pretreatment standard under Section 307 of this act, and with
any other appropriate requirement of State law set forth in such certification, and shall become a
condition on any Federal license or permit subject to the provisions of this section.
Author Information
Laura Gatz
Specialist in Environmental Policy
Kate R. Bowers
Section Research Manager
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
material from a third party, you may need to obtain the permission of the copyright holder if you wish to
copy or otherwise use copyrighted material.
Congressional Research Service
R46615 · VERSION 7 · UPDATED
36
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.