EPA's Final Clean Water Act 401 Rule, Reinstating 1971 Approach, Already Under Fire

On September 27, 2023, the U.S. Environmental Protection Agency (EPA) published its final rule to implement Clean Water Act (CWA) section 401 water quality certifications (2023 Rule). The 2023 Rule became effective on November 27, 2023, but was the subject of litigation within a week. This article serves as a primer on the 2023 Rule, and CWA section 401 more broadly, by summarizing:

1. The regulatory background that set the stage for the 2023 Rule;
2. Seven key, arguably controversial aspects of the 2023 Rule;
3. The recent lawsuit, Louisiana v. EPA, 2:23-cv-01714, challenging the rule; and
4. Our best attempt to predict upcoming developments that may impact the rule's fate.

Background Leading up to the 2023 Rule