EPA Issues New Clean Water Act Section 401 Water Quality Certification Rules to Expand Authority of States and Tribes and Clarify Certification Procedures

November 2023

Environmental, Energy, & Climate Change Law and Regulation Reporter, Vol. 4, Number 2

In September 2023 the U.S. Environmental Protection Agency (EPA) issued a final rule revising and replacing the 2020 regulatory requirements for water quality certifications under Section 401 of the federal Clean Water Act. EPA’s final rule expands state and tribal powers to grant or deny water quality certifications for large infrastructure projects like pipelines and dams over water quality concerns. According to EPA, the rule is also intended to improve the certification process to make the procedures and timeline for obtaining water quality certifications more clear and efficient. This entire process has been the subject of multiple legal challenges and litigation, however, so it remains to be seen whether EPA’s new rule will accomplish EPA’s objectives.

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