2020 Clean Water Act Section 401 Certification Rule
On June 1, 2022, the EPA Administrator signed a proposed rule to improve the CWA section 401 certification process. The proposed rule would replace and update the existing regulations at 40 CFR 121, to be more consistent with the statutory text of the 1972 CWA and clarify elements of section 401 certification practice that has evolved over the 50 years since the 1971 regulation was promulgated. On June 9, 2022, the proposed rule was published in the Federal Register. The public comment period closed on August 8, 2022. More information on the proposed rule is available here.
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.
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.
2020 Rule Materials
- View the Clean Water Act Section 401 Certification Rule
- Implementation Materials: 2020 Rule Implementation Materials
- Fact Sheet: Overview of the 2020 Clean Water Act Section 401 Certification Rule
- Fact Sheet: Frequently Asked Questions
- Economic Analysis: Economic Analysis for the 2020 Clean Water Act Section 401 Certification Rule
- Federalism Report: Summary Report on Consultation with State and Local Governments for the 2020 Clean Water Act Section 401 Certification Rule
- Tribal Consultation Report: Summary Report of Tribal Consultation and Engagement for the 2020 Clean Water Act Section 401 Certification Rule
- Docket: See Docket ID No. EPA-HQ-OW-2019-0405 for additional information
- For more information on the 2020 Rulemaking Proposed Rule and related outreach efforts, see the EPA Archive Page
- Public Webinar: View Public Webinar Slides for the 2020 Clean Water Act Section 401 Certification Rule
- State and Tribal Webinars: View Slides for the State and Tribal Webinars for the 2020 Clean Water Act Section 401 Certification Rule