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Under Clean Water Act section 401, a federal agency may not issue a license or permit to conduct any activity that may result in a discharge into a water of the United States unless a section 401 water quality certification is issued, or certification is waived by a state or authorized Tribe. The EPA last promulgated regulations on CWA section 401 in 2023, including regulatory text addressing the scope of certification. This action will address implementation challenges and clarify regulatory uncertainty associated with the 2023 Rule, including the scope of certification. This action will increase transparency, efficiency, and predictability for co-regulators and the regulated community.

Statement of Need:

The EPA is proposing revisions to the 2023 Rule to reflect the best reading of the CWA’s statutory text and the legislative history regarding section 401, to support an efficient and transparent certification process, and to address stakeholder feedback gathered in its preliminary engagement and outreach. 

Summary of the Legal Basis:

The Clean Water Act (33 U.S.C. 1251 et seq.).

Alternatives:

The EPA is evaluating alternatives for this action.

Anticipated Costs and Benefits:

The EPA is evaluating the anticipated costs and benefits of this action.

Risks:

The EPA is evaluating the risks associated with this action.