2020 Clean Water Act Section 401 Certification Rule

On April 6, 2022, the U.S. Supreme Court issued a stay of the October 2021 order by the U.S. District Court for the Northern District of California that vacated EPA’s 2020 Clean Water Act Section 401 Certification Rule (2020 Rule). The stay of the vacatur applies nationwide. Therefore, the CWA section 401 certification process is once again governed by the CWA section 401 certification regulations promulgated by EPA in 2020, codified at 40 CFR 121.

EPA’s own review of the 2020 Rule identified substantial concerns with a number of provisions that relate to cooperative federalism principles and CWA section 401’s goal of ensuring that states, territories, and tribes are empowered to protect water resources that are essential to public health, ecosystems, and economic opportunity. In May 2021, the agency began working on a regulatory effort to address those concerns. Further details about the Agency’s plans, including information regarding the current rulemaking process, can be found here.

On June 1, 2020, EPA finalized the 2020 Clean Water Act Section 401 Certification Rule (2020 Rule). The 2020 rule became effective on September 11, 2020. The 2020 Rule was vacated on October 21, 2021 and the vacatur was stayed on April 6, 2022, so the 2020 Rule is currently in effect.