Regulation Concerning Water Quality under the Clean Water Act (Section 401)
In the realm of environmental regulations, Section 401 of the Clean Water Act plays a significant role. This act empowers states and recognized tribes to make decisions on granting, denying, or waiving certifications for proposed federal permits or licenses that may discharge into U.S. waters.
Memorandum on Scope of Certification
On May 21, 2025, the Environmental Protection Agency (EPA) issued a clarifying memorandum emphasizing the role of states and tribes in federal licensing and permitting processes. This memorandum underscores the existing requirements set by the EPA's Clean Water Act Section 401 certification rule, which was issued in 2023.
Federal Agency Notifications Form
Attention federal agency partners! The EPA has made the Federal Agency Notifications form for Clean Water Act Section 401(a)(2) notifications available online.
Listening Sessions and Engagement
The agency is hosting listening sessions to gather public input on the challenges and uncertainties associated with the 2023 rule's scope of certification. These sessions aim to address these issues through additional guidance or rulemaking in the future.
Section 401 Certification: A Brief Background
Clean Water Act Section 401 mandates certification before a federal agency grants a permit or license that could result in discharge into U.S. waters.
The Role of EPA in Section 401
EPA engages in outreach and collaboration efforts to ensure effective implementation of Clean Water Act Section 401. The agency provides technical assistance upon request from federal agencies, certifying authorities, or applicants. In cases where states don't have certification authority, EPA may step in as a certifying authority.
Neighboring Jurisdiction's Role
Clean Water Act Section 401(a)(2) permits neighboring jurisdictions the opportunity to assess and object to the issuance of a federal license or permit if a discharge originating in another jurisdiction would violate its water quality requirements.
Protecting Water Quality
It's essential to note that Section 401 certification is designed solely for water quality protection, excluding concerns like air emissions, traffic congestion, noise, economic preferences, or general project opposition. Certification decisions must be directly linked to compliance with water quality standards. States or recognized tribes can impose conditions or deny certification if a discharge violates their water quality standards. In cases where a state fails to act within a reasonable period, it waives its certification authority. However, states often have mechanisms to extend review periods.
EPA's current regulations at 40 CFR 121 address Section 401 certification, and the final Clean Water Act Section 401 Water Quality Certification Improvement Rule went into effect on November 27, 2023. The May 2025 memorandum doesn't propose regulatory changes but clarifies the agency's position on the use of Section 401.
[1] More about Section 401 certification: [Link]
[2] More about the requirements: [Link]
[3] More about EPA's engagement: [Link]
[4] More about Technical Assistance Resources: [Link]
[5] More about EPA as a Certifying Authority Resources: [Link]
[6] More about Neighboring Jurisdiction Resources: [Link]
[7] More about the regulatory framework: [Link]
- In the field of environmental science, the role of Section 401 of the Clean Water Act is significant, especially in relation to the discharge of pollutants into U.S. waters, as it concerns the industry's energy production and potential environmental impacts.
- The Environmental Protection Agency (EPA) has emphasized the importance of states and tribes in federal licensing and permitting processes, particularly in the area of energy production, through a clarifying memorandum issued on May 21, 2025.
- It's crucial for the finance sector to understand the implications of Section 401 certification on energy projects, as failure to comply with water quality standards can potentially lead to project delays or cancellations, resulting in financial losses.
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