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Section 401 of the Clean Water Act requires that any applicant for a Federal license or permit to conduct an activity which may result in a discharge to navigable waters obtain, from the state in which the discharge would originate, certification that the discharge will comply with the state's applicable water quality requirements, including effluent limitations, water quality standards and toxic and pretreatment effluent standards. The current regulations were promulgated in May 1971. They pre-date the passage of the Clean Water Act (CWA) in 1972 and were based on section 401's predecessor, section 21(b) of the Water Quality Improvement Acts of 1970. In accordance with Executive Order 13868, "Promoting Energy Infrastructure and Economic Growth," the Environmental Protection Agency (EPA) updated its CWA 401 guidance in June 2019 and issued a proposed rule in August 2019 seeking to clarify and update its current water quality certification regulations to improve the efficiency of the CWA section 401 certification process and increase regulatory certainty.

Statement of Need:

Section 401 of the Clean Water Act gives states and authorized tribes the authority to grant, deny, or waive certification of proposed federal licenses or permits that may discharge into waters of the United States. Executive Order 13868, Promoting Energy Infrastructure and Economic Growth, directed the EPA to review and revise existing guidance and regulations to clarify and streamline the section 401 certification process and to promote greater investment in, and certainty for, national energy infrastructure projects. The EPA’s current water quality certification regulations were promulgated in 1971, prior to the 1972 Clean Water Act amendments and the establishment of section 401. The proposed update to the EPA’s certification regulations will modernize the regulations to be consistent with the Clean Water Act, and will provide clarity and certainty for states, tribes, federal agencies, and project proponents. Consistent with the Executive Order’s timelines, the Agency published a notice of proposed rulemaking in August 2019 for a 45-day public comment period. The Agency will review and consider public comments before taking a final action.

Summary of the Legal Basis:

The EPA is publishing these proposed regulations to implement the Clean Water Act section 401 under the authority of sections 101(d), 401, and 501(a). 42 U.S.C. 1251(d), 1341, 1361(a).

Alternatives:

Alternatives were considered in the proposed rule.

Anticipated Costs and Benefits:

EPA prepared an economic analysis titled Economic Analysis for the Proposed Clean Water Act Section 401 Rulemaking. The Economic Analysis provides a qualitative analysis of the current and proposed water quality certification process to make the best use of limited information to assess the potential impact of the proposed rule on project proponents and certifying authorities. The proposal will help certifying authorities, federal agencies, and project proponents understand what is required and expected during the section 401 certification process, thereby reducing regulatory uncertainty. The Economic Analysis concludes that improved clarity on the scope of review and the reasonable period of time for certification review may make the certification process more efficient for project proponents and certifying authorities.

Risks:

There are no known environmental or health risks associated with this effort.