On September 27, 2023, the EPA published the "Clean Water Act Section 401 Water Quality Certification Improvement Rule" in the Federal Register. Since Congress passed the Clean Water Act in 1971, this rule represents only the second time the EPA has updated the water quality certification (WQC) regulations. The first rule to update WQC regulations, the "2020 rule," narrowed the scope of review and authority of states and tribes in the Section 401 certification process. The new WQC improvement rule restores and expands the authority of states and tribes and more clearly describes the requirements for beginning the certification process.
For background, under Section 401, a federal agency may not issue a license or permit to conduct any activity that may result in a discharge from a point source to "waters of the United States" unless the state or tribe in which the discharge originates grants a WQC or waives certification. In Indiana, the certifying authority is the Indiana Department of Environmental Management, though there may also be neighboring jurisdictions that can object under Section 401(a)(2), depending on the discharge's impacts. A Section 401 WQC indicates whether the project seeking a permit/license will be consistent with water quality standards and effluent guidelines under the CWA and with other relevant provisions of state or tribal law. WQC thus has implications for the proponents of projects, such as infrastructure or energy projects, that require CWA 404 permits, FERC hydroelectric licenses, or CWA 402 permits issued by the EPA, among other federal permits and licenses.
While the new WQC improvement rule does not take effect until November 27, 2023, practitioners should be aware of the following notable changes. First, certifying authorities may again evaluate whether the "activity as a whole will comply with all applicable water requirements" rather than just considering water quality impacts directly occurring from the discharge as under the 2020 rule. Second, Section 401 provides a "reasonable period of time," up to one year, to act on a certification request. The 2020 rule attempted to quicken this process by allowing federal agencies to make this decision unilaterally. The new WQC improvement rule instead gives the federal agency and certifying authorities the power to jointly set a time period (within one year) to act and sets a default of six months for review if the federal agency and certifying authority disagree. The last major change more clearly defines the content necessary to request a certification and grants certifying authorities the ability to require additional content. The rule limits this grant in that the additional content must be limited to those "relevant to the water quality-related impacts from the activity." The certifying authority must also identify these additions before (rather than after) the project proponent requested the certification.
Among the above changes, the rule also encourages more tribes to participate in the certification process, providing a pathway for tribes to obtain Treatment as a State Status solely to participate as a neighboring jurisdiction. The new WQC improvement rule does not address the enforcement of section 401 certification or conditions, nor does the final rule apply retroactively to actions already taken under the 2020 rule. In making these changes, the EPA aims to develop a long-lasting rule that will promote a transparent and predictable certification process in alignment with the principles of Section 401: cooperative federalism and protecting water quality.
By Chelsey Lang, J.D. Candidate at the IU Robert H. McKinney School of Law
member center
