What: On January 15, 2026, the U.S. Environmental Protection Agency (EPA) published a proposed rule to update several requirements for water quality certification under the Clean Water Act (CWA) section 401.
Why: CWA section 401 grants authority to states (and some tribes) to review any discharge into a water of the United States (WOTUS) within their borders that may result from a proposed activity requiring a federal license or permit. A federal agency may not issue a license or permit to conduct any activity that may result in any discharge into a WOTUS, unless the affected State issues a section 401 certification or the certification is waived.
The small entities subject to the requirements of this proposal are small businesses applying for federal licenses or permits subject to section 401 certification, which includes construction, manufacturing, mining, and utility businesses. Section 401 requires applicants to obtain a water quality certification from the state or tribal certifying authority where the potential discharge originates before they may obtain a federal license or permit.
In 2023, the EPA revised the section 401 regulations and made several changes to the certification process, including the scope of certification, the contents of a request for certification, certification decisions, and modifications to certification decisions. In 2025, EPA sought comment on regulatory uncertainty resulting from the 2023 changes.
In response to the input received, EPA is now proposing revisions to the following aspects of the section 401 certification process:
- The contents of a request for certification.
- The scope of certification.
- The contents of a certification decision.
- The modification process.
- Withdrawal and resubmittal of requests for certification.
- The automatic extension process to the reasonable period of time.
- “Treatment in a similar manner as a State” (TAS) for tribes.
EPA is hosting a virtual public meeting on the proposal on January 28, 2026. The first session will take place from 10:00 AM to 1:00 PM ET. The second session will take place from 2:00 PM – 5:00 PM ET. Participants wishing to speak will have three minutes to present their remarks.
Action: Comments on the proposed rule are due February 17, 2026.
SUBMIT COMMENTS:
CWA Section 401 Regulatory Requirements
FEDERAL REGISTER NOTICE:
Updating the Water Quality Certification Regulations
VIRTUAL PUBLIC MEETING INFORMATION:
Clean Water Act Section 401 meeting, Jan. 26 at 10 AM ET
Clean Water Act Section 401 meeting, Jan 28 at 2 PM ET
CONTACT:
Nick Goldstein
EMAIL:
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Is your small business or entity being impacted by a proposed rule? If yes, write a comment letter to the proposing agency.