EPA Proposes A Section 401 "Improvement Rule" — Now That's A Low Bar

Last week, EPA released its proposed "Clean Water Act Section 401 Water Quality Certification Improvement Rule". The proposed rule would make a number of significant changes to the rule promulgated by EPA in 2020.

I'm going to focus on one in particular, because it could be a good test of just how far the current Supreme Court is willing to go to limit the authority of the executive branch.

In 2020, EPA limited the scope of state authority under § 401 to those effects directly related to the discharge that triggers review under § 401. This reversed the approach taken by EPA over the prior 50 years, which was that, once a discharge triggers review under § 401, states may review the "activity as a whole", meaning any impact related to water quality, even if not directly caused by the jurisdictional discharge.