U.S. EPA Announces Plan to Revise State Water Quality Certification Rule

May 27, the U.S. Environmental Protection Agency (EPA) announced it will be revising a 2020 rule regarding Clean Water Act Section 401 Certification. EPA’s stated goal with this revision will be to strengthen the ability of state and tribal governments to set water quality standards.

Section 401 of the Clean Water Act requires applicants to get EPA approval of projects that involve discharge of pollutants into navigable waters to first obtain water quality certification from the affected state. On June 1, 2020, then-President Trump’s EPA finalized a rule limiting state review of these projects to one year and limiting the scope of requirements the state may impose on those projects. Under the 2020 rule, state requirements for Section 401 certification must be directly related to point source discharges into the waters of the United States and may not consider other issues such as air quality, transportation concerns, or public access to waters.

The Biden administration’s EPA will likely loosen or eliminate these limitations on state review. Until the rulemaking process is complete, the 2020 rule will remain in place. EPA plans to begin a stakeholder engagement process in June, followed by a formal rulemaking and request for comment.

EPA’s announcement may be found here, and information on the 2020 rule here. If you have any questions or comments, please reach out to APWA Government Affairs Manager Michael Altman at maltman@apwa.net or 202-218-6727.