EPA Seeks Comments on Notice of Proposed Rulemaking to Revise the Clean Water Act Section 401 Certification Rule

On June 9, 2022, the U.S. Environmental Protection Agency (EPA) issued a notice of proposed rulemaking to revise the Clean Water Act Section 401 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 (Certifying Authority) 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 proposed rule will allow the Certifying Authority to reject a request for a pre-filing meeting by a project proponent. The proposed rule will also require project proponents to include a copy of the draft license or permit and any water quality-related supporting information in its request for certification as well as expands the scope of the certification review. In addition, the proposed rule will remove the prohibition preventing Certifying Authorities from asking a project proponent to withdraw its certification request.

EPA will host three virtual public hearings on July 18, 2022, from 11am-1pm (ET), 2pm-4pm (ET), and 5pm-7pm (ET). Written comments on the notice are due by August 8, 2022.