R46615 — Clean Water Act Section 401: Overview and Recent Developments

Congress established the Clean Water Act (CWA) to “restore and maintain the chemical, 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 permitting agency with a Section 401 certification. The certification, issued by the certifying 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.

Curated by CRS — every bill listed in this report's relatedMaterials. Edge type cited_in_report, gold confidence.

• S 3082 — Water Quality Certification Improvement Act of 2023 · 118th Cong
• HR 2811 — Limit, Save, Grow Act of 2023 · 118th Cong
• S 1449 — RESTART Act · 118th Cong
• HR 1152 — Water Quality Certification and Energy Project Improvement Act of 2023 · 118th Cong
• HR 1115 — Promoting Interagency Coordination for Review of Natural Gas Pipelines Act · 118th Cong
• S 947 — Lower Energy Costs Act · 118th Cong
• HR 1 — Lower Energy Costs Act · 118th Cong