EPA Proposes Limitations To States' Clean Water Act Section 401 Permitting Power

On January 15, 2026, the U.S. Environmental Protection Agency (EPA) published a proposed rule titled "Updating the Water Quality Certification Regulations" (Proposed Rule). This rule implements changes to the Clean Water Act's (CWA) Section 401 permitting process. EPA intends to narrow the scope of the States' certification authority to the application of solely water quality-related conditions which may be applied only to the discharge, not the project as a whole.

This change, among others in the Proposed Rule, will significantly reduce the ability of States or authorized Tribes to regulate projects through the CWA's Section 401 permitting process. In this post, we 1) summarize three significant changes to the current Section 401 permitting process set forth in the Proposed Rule; 2) discuss the potential impact of the Proposed Rule on the regulated community; and 3) provide information about how to submit comments on the Proposed Rule.