Q&A on EPA's Intent to Revise 2020 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.
1. Why is the EPA reconsidering and revising this rule?
Executive Order 13990 on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis directed EPA to review and, as appropriate and consistent with applicable law, take action to revise or replace the 2020 Section 401 Certification Rule. EPA has announced its intent to reconsider and revise the 2020 rule after determining that, in key ways, it erodes state and tribal authority under the Clean Water Act and thereby clean water and public health protections. Through this process, EPA intends to support the role of states as co-regulators with the authority to protect their vital water resources and support environmental, ecosystem, and public health in their states, as well as ensure that tribes are empowered in circumstances that may affect their waters.
2. Will there be any public outreach on the Agency’s plan to reconsider and revise the rule?
Yes. The Agency will hold webinar-based listening sessions for the public and stakeholders to receive feedback on the Agency’s plan to reconsider and revise the rule. Additionally, the Agency will be accepting written feedback through a docket. Please visit www.epa.gov/cwa-401 for more information on these listening sessions, including dates, times, and how to register, and how to submit written feedback.
3. Where can the public and stakeholders submit feedback?
The Agency will open a docket to receive stakeholder feedback. Please visit www.epa.gov/cwa-401 for more information on how to submit written feedback.
4. When will the EPA propose a new rule?
EPA plans to conduct public and stakeholder outreach prior to proposing a new rule, including hosting webinar-based listening sessions and accepting feedback through a docket. For more information on how you may participate in these listening sessions or provide written feedback, please visit www.epa.gov/cwa-401.
On June 9, 2022, the proposed rule was published in the Federal Register. The public comment period closed on August 8, 2022.
5. Is the 2020 Clean Water Act Section 401 Certification Rule still in effect?
Yes. The Clean Water Act Section 401 Certification Rule is still in effect and will remain in effect until the Agency finalizes a new regulation following the public notice and comment process.
6. Will the EPA do anything in the meantime to address state and tribal concerns with the 2020 rule?
Yes. EPA intends to continue listening to states and tribes about their concerns with implementation of the 2020 rule and will continue to evaluate potential administrative approaches to help address these near-term challenges.