USEPA’s New Clean Water Act Section 401 Water Quality Certification Rule Becomes Effective November 27, 2023

By Downey Brand LLP

Nov 9, 2023

On September 27, 2023, the United States Environmental Protection Agency (USEPA) published its final 2023 Clean Water Act (“CWA”) Section 401 Water Quality Certification Improvement Rule (2023 Rule), which goes into effect on November 27, 2023. (88 Fed. Reg. 66558 [Sept. 27, 2023].) The 2023 Rule claims to strengthen the authority of States, territories, and Tribes to protect water resources by increasing discretion for those entities in granting water quality certifications that precede federal permits or licenses occurring within their respective jurisdictions.

Section 401 of the CWA (33 U.S.C. §1341) requires that any person applying for a federal permit or license, which may result in a discharge of pollutants into waters of the United States, must obtain a State/Tribal water quality certification that the activity authorized by the federal permit complies with all applicable water quality standards, limitations, and restrictions. Therefore, no license or permit may be issued by a federal agency until Clean Water Act section 401 certification has been granted. The USEPA first implemented regulations for water quality certification in 1971, which remained in effect until the 2020 CWA Section 401 Certification Rule (2020 Rule) was finalized. (85 Fed. Reg. 42210 [Sept. 11, 2020].) The 2020 Rule narrowed the conditions that a State or Tribe could impose, limited the scope of State and Tribal review of certification requests, and placed strict time requirements for State or Tribal action.

On January 20, 2021, President Biden issued Executive Order 13990 on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, signaling an effort to reverse the 2020 Rule. (Exec. No. 13990, 86 Fed. Reg. 7037 [Jan. 20, 2021]). Executive Order 13990 required the USEPA to review and, as appropriate, take action to revise or replace the 2020 Rule, resulting in the September 27, 2023 publication of the 2023 Rule.

The 2023 Rule differs from the 2020 Rule in many aspects, and some of the key distinctions are summarized below.

The 2023 Rule requires project proponents to request a pre-filing meeting from the certifying authority at least thirty (30) days before requesting a certification, unless the certifying authority waives or shortens the requirement. In the 2020 Rule, the certifying authority could not waive or shorten the time between receiving a pre-filing meeting request and a request for certification.
The 2023 Rule provides that States and Tribes are free to identify additional requirements relevant to the water quality related impacts from the proposed activity so long as identified prior to the certification request being made. This allows States and Tribes to identify such requirements during the thirty day window between a pre-filing meeting request and the request for certification. The 2020 Rule did not allow for modifications of the content in certification requests.
The 2023 Rule provides that a certifying authority must act on a request for certification within a reasonable period of time. The default reasonable period of time for the certifying authority to act is six (6) months from the date the certifying authority receives a request for certification. However, the federal agency and certifying authority may jointly determine to set a date for the reasonable period of time that exceeds the six month default, as long the agreed upon date does not exceed one year from the receipt of the request for certification.

The reasonable period of time is automatically extended if the certifying authority provides written justification and either:

(1) public notice procedures need to be met, or
(2) force majeure events occur.

Any extension shall not exceed one year from the receipt date for the request for certification.

The 2023 Rule provides that the scope of certification must consider whether the activity will comply with applicable water quality requirements. This is broader than the 2020 Rule, which limited scope of certification to assuring that a federally licensed or permitted discharge will comply with water quality requirements.
The 2023 Rule provides that a certifying authority may act on a request for certification in one of four ways: (1) grant the certification; (2) grant the certification with conditions; (3) deny the certification; or (4) expressly waive the certification.

Importantly, the 2023 Rule does not apply retroactively, does not apply to certification decisions already issued under the 2020 Rule, and does not apply to ongoing certification requests made prior to the 2023 Rule’s November 27, 2023 effective date. Therefore, until the 2023 Rule becomes effective, the validity of requests for certification made prior to the effective date will be determined under the 2020 Rule, and project proponents will not need to re-request certification consistent with the 2023 Rule.

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