The Biden Administration Proposes Changing The Water Quality Certification Review Process For Federally Permitted Projects

The U.S. EPA proposed a new rule under the Clean Water Act reversing the Trump Administration's rule for water quality certifications under section 401 of the Act. Section 401 provides states and tribes with authority to protect waters within their jurisdiction from pollutant discharges originating from federally-licensed or -permitted projects. It does so by requiring project proponents to obtain a water quality certification from the states or tribes before the federal government may permit the project. Through the certification process, states and tribes may impose conditions on federal permits to minimize projects' impacts to waters within their jurisdiction.

The Trump Administration's rule narrowed states' and tribes' authority under the section 401 certification process in a few ways, which the Biden Administration's proposed rule tries to undo. Two key changes stand out above the others.