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On June 7, 2019 the U.S. Environmental Protection Agency (EPA) released updated guidance on Section 401 of the Clean Water Act (CWA), related to water quality certifications. EPA was directed to modernize and clarify previous guidance under Executive Order 13868, issued April 10, 2019.

Section 401 of the CWA states that federal agencies may not issue a permit or license to conduct any activity that may result in any discharge into Waters of the United States (WOTUS), unless a state or authorized tribe where the discharge would originate issues a Section 401 water quality certification. This certification verifies compliance with existing water quality requirements, or waives the certification requirement.

EPA's newly published guidance “Clean Water Act Section 401 Certification Guidance for Federal Agencies, States, and Authorized Tribes” provides clarification and recommendations on CWA Section 401 certifications in the following specific areas, and noteworthy changes in the guidance are included below.

Statutory and regulatory timelines for review and action on a CWA Section 401 certification

  • Per the new guidance, the timeline for action on a Section 401 certification begins upon receipt of a certification request. Previous guidance suggested that the timeline begins upon receipt of a complete application.
  • PSection 401 indicates that a state or authorized tribe has a reasonable period of time, which shall not exceed one year, to act on a certification request. Per the new guidance, if a state or tribe does not grant, deny, or voluntarily waive the certification within the established reasonable timeline, or seek an extension of time, federal permitting agencies are authorized to determine that the certification requirement has been waived, and may issue the federal permit or license. Once the certification requirement has been made, no further action to deny the certification by a state or tribe will have effect.

The appropriate scope of CWA Section 401 certification conditions

  • Per the new guidance, the scope of a Section 401 certification review, and the decision whether to issue or deny a certification, will be limited to an evaluation of potential water quality impacts.
  • The guidance also suggests, conditions in a Section 401 certification be limited to ensuring compliance with the detailed provisions of the CWA and other appropriate state or tribal water quality requirements.

Information within the scope of a state or authorized tribe's CWA Section 401 review.

  • There is no provision in the CWA requiring specific information to be submitted with a Section 401 certification request. So, per the guidance document, states and tribes are encouraged to consult past certifications, available state/tribal water quality data, other information, and project review standard operating procedures (SOPs) to provide information with project supporters and federal permitting agencies about the certification process, and potential project-specific information needs.
  • If an environmental assessment or environmental impact statement is requested by a state/tribe during certification review, the new guidance recommends that the state/tribe should not delay action on a certification request until a National Environmental Policy Act (NEPA) review is complete, unless the request is submitted at or near the conclusion of the NEPA process.

The guidance document also provides recommendations for federal permitting agencies and states and tribes related to timelines, procedures and communication guidance during the Section 401 review and certification process.

Executive Order 13868 also directed EPA to propose new rules modernizing CWA Section 401 and implementing regulations by August 8, 2019. EPA intends to propose regulations that further clarify and streamline CWA Section 401 certifications - the current regulations have not been updated since 1971. The proposed guidance and ensuing updates to the rules will most likely have an impact on permitting actions which include a Section 401 component (either a water quality certificate or waiver), such as Section 402 discharge permits, and Section 404 fill and dredge permits.

To learn more about CWA Section 401 certifications, visit EPA's website. Trinity Consultants is well versed with assisting our clients with environmental compliance needs, including water quality certifications under Section 401. If you would like assistance with a CWA Section 401 certification or have any other environmental compliance need, contact your local Trinity office at (800) 229-6655.