Q&A on the Stay of the 2020 Rule Vacatur
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 and 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 and Tribes are empowered to protect water resources that are essential to public health, ecosystems, and economic opportunity. The agency has already begun 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.
EPA has updated these questions and answers in response to the U.S. Supreme Court’s stay of the October 2021 order by the U.S. District Court for the Northern District of California which vacated the 2020 Rule. These questions and answers are not a regulation, nor do they change or substitute for applicable regulations. Thus, they do not impose legally binding requirements on EPA, states, territories, tribes, other federal agencies or the regulated community. These questions and answers neither alter legal rights or obligations nor change or create law. Please use the email box at email@example.com to submit additional questions regarding CWA section 401.