EPA Takes Action to Bolster State and Tribal Authority to Protect Water Resources
WASHINGTON – Today, the U.S. Environmental Protection Agency (EPA) announced its intent to revise the 2020 Clean Water Act (CWA) Section 401 Certification Rule after determining that it erodes state and Tribal authority. Through this process, EPA intends to strengthen the authority of states and Tribes to protect their vital water resources.
“We have serious water challenges to address as a nation and as EPA Administrator, I will not hesitate to correct decisions that weakened the authority of states and Tribes to protect their waters,” said EPA Administrator Michael S. Regan. “We need all state, Tribal, local, and federal partners working in collaboration to protect clean water, which underpins sustainable economic development and vibrant communities. Today, we take an important step to realize this commitment and reaffirm the authority of states and Tribes.”
“States and Tribes have relied on the Clean Water Act for almost 50 years to protect our waters and people, and EPA’s action is essential to restoring that historic authority,” said Oregon Governor Kate Brown. “The prior administration’s rule was not only harmful to the environment, it was corrosive to state, federal, and Tribal partnerships. Communities rely on clean water, businesses rely on clean water, and our environment is dependent on clean water. We welcome this important step by the Biden-Harris Administration to restore a strong, collaborative approach to protecting one of America’s most precious resources.”
EPA intends to reconsider and revise the 2020 CWA Section 401 Certification Rule to restore the balance of state, Tribal, and federal authorities while retaining elements that support efficient and effective implementation of Section 401. Congress provided authority to states and Tribes under CWA Section 401 to protect the quality of their waters from adverse impacts resulting from federally licensed or permitted projects. Under Section 401, a federal agency may not issue a license or permit to conduct any activity that may result in any discharge into navigable waters unless the affected state or Tribe certifies that the discharge is in compliance with the Clean Water Act and state law, or waives certification.
The agency’s process of reconsidering and revising the 2020 CWA Section 401 Certification Rule will provide opportunity for public and stakeholder input to inform the development of a proposed regulation, and will include sustained dialogue with state and Tribal co-regulator partners and local governments around these issues. EPA will begin a stakeholder engagement process in June to hear perspectives on this topic and how to move forward. More information will be available at: www.epa.gov/cwa-401.
While EPA engages with stakeholders and develops a revised rule, the 2020 rule will remain in place. The agency will continue listening to states and Tribes about their concerns with implementation of the 2020 rule to evaluate potential administrative approaches to help address these near-term challenges.
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. Prior to the 2020 rule, EPA promulgated implementing regulations for water quality certification before the 1972 amendments to the Federal Water Pollution Control Act (commonly known as the Clean Water Act), which created section 401.