EPA Seeks Comments on Notice of Intent to Revise the Clean Water Act Section 401 Certification Rule
On June 2, 2021 the U.S. Environmental Protection Agency (EPA) issued a notice of intent to revise the Clean Water Act Section 401 Certification Rule (the Certification Rule). Under Section 401 of the Clean Water Act, a federal agency is prohibited from issuing a license or permit that may result in any discharge into navigable waters unless the State or Tribe where the discharge may occur has the opportunity to certify that any such discharge will comply with promulgated water quality standards and effluent limitations. The Certification Rule stripped States and Tribes of their authority to enforce the certification requirements under any issued license or permit. EPA is requesting comments on whether the definitions of certification request and reasonable period of time should be modified as well as whether pre-filing meetings among the applicable federal agency, State and/or Tribe, and potential licensees and permittees should continue to be required before a certification request is issued. EPA will be hosting three public meetings in June for non-State and Tribal stakeholders to discuss potential revisions to the Certification Rule. Written comments on the notice are due by August 2, 2021.