The U.S. EPA issued a proposed rule to implement Section 401 of the Clean Water Act today, Aug. 9.

Section 401 of the CWA gives states and authorized tribes the authority to assess potential water quality impacts of discharges from federally permitted or licensed infrastructure projects that may affect navigable waters within their borders.

According to EPA, the proposed rule seeks to increase the transparency and efficiency of the 401 certification process and to promote the timely review of infrastructure projects while continuing to ensure that Americans have clean water for drinking and recreation.

In April, President Trump issued an executive order and directed the administration to take appropriate action to accelerate and promote the construction of pipelines and other important energy infrastructure. The president’s executive order directs EPA to consult with states and tribes on reviewing and updating guidance and regulations related to Section 401 of the CWA.

The EPA’s existing certification rules have not been updated in nearly 50 years and are inconsistent with the text of CWA Section 401, leading to confusion and unnecessary delays for infrastructure projects. With today’s action, EPA is proposing to modernize and clarify the timeline and scope of CWA Section 401 certification review and action to be consistent with the plain language of the CWA.

EPA will accept public comment on the proposed rule for 60 days following publication in the Federal Register. A public hearing will be held Sept. 5-6.

To review the proposed rule and learn more about the CWA Section 401 certification process, see https://www.epa.gov/cwa-401  

Background information

EPA is proposing this rule in response to President Trump’s Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth.” EPA was directed to first revise guidance on the CWA Section 401 certification process and then to propose new rules to implement CWA Section 401 by Aug. 8, 2019. EPA engaged in formal consultation with state, local and tribal partners, as well as other federal agencies, to develop this proposed rule. Under the executive order, the EPA is scheduled to finalize this rule in May 2020.

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