De-Weaponizing Clean Water Act Section 401

On July 1st, the United States Environmental Protection Agency (USEPA) announced it will soon open a docket and host two listening sessions to receive public input on needed reforms to the Section 401 program of the Clean Water Act (CWA). The notice indicated that, once published in the Federal Register, the public will have 30 days to provide comment and input on the Agency's 2023 implementation rule.

Section 401 of the CWA requires states and authorized tribes to certify (or deny or waive) that certain federally regulated projects, such as a hydroelectric generating facility regulated by the Federal Energy Regulatory Commission (FERC), will comply with adopted state or tribal water quality standards. As USEPA indicated in a memorandum issued in May, telegraphing the docket, the scope of that review is to be limited and time-bound. However, the 401 certification process has been used to slow or frustrate disputed projects, leading in many cases to infrastructure