Change Is Afoot: EPA Revisiting Section 401 Program

More changes are ahead for entities seeking federal authorization for projects that may impact waters of the United States. On June 9, 2022, the Environmental Protection Agency ("EPA") published a proposed rule that would substantially change the Clean Water Act ("CWA") Section 401 regulations promulgated by the Trump administration in 2020 by giving states and authorized Tribes (Tribes eligible for Treatment in a Similar Manner as States, hereinafter "Tribes") a more expansive scope of review in considering 401 certifications. CWA Section 401 vests states and Tribes with responsibility to certify that a discharge is consistent with water quality requirements before certain federal permits can be issued. Infrastructure, reservoir, pipeline and utility projects, among others, often require a Section 401 certification (or waiver) as a prerequisite to securing a U.S. Army Corps of Engineers Section 404 dredge and fill permit, Federal Energy Regulatory Commission license