EPA Issues Final Rule to Strengthen Water Protections, Support Clear and Timely Reviews of Infrastructure and Development Projects
EPA announced a final rule to restore the fundamental authority granted by Congress to states, territories, and Tribes to protect water resources that are essential to healthy people and thriving communities. The agency's final CWA Section 401 Water Quality Certification Improvement Rule will support clear, efficient, and focused water quality reviews of infrastructure and development projects that are key to economic growth. Clean Water Act Section 401 enables states, territories, and authorized Tribes to protect their water quality from adverse impacts of construction or operation of federally permitted projects. Under Section 401 of the Act, a federal agency may not issue a license or permit to conduct any activity that may result in any discharge into a water of the US, unless the appropriate state, territory, or authorized Tribe issues a CWA Section 401 water quality certification or waives certification. EPA's 2023 rule realigns the scope of Section 401 certification with decades of established practice and restores and strengthens the role of states, territories, and authorized Tribes. The rule enhances certification review and provides regulatory certainty to advance federally permitted projects. The rule emphasizes that states, territories, and Tribes may only consider the adverse water quality-impacts from the activity. The rule also provides a clear approach to defining the required contents in a request for certification.