On May 22, the U.S. Environmental Protection Agency (EPA) issued a memorandum clarifying the specific and limited role of States and Tribes in the federal licensing and permitting processes under Section 401 of the Clean Water Act (CWA). The EPA reiterates its position that States and Tribes must utilize Section 401 only for its statutory purpose – to protect water quality.
Specifically, the memorandum clarifies that a State or Tribe’s evaluation is limited to considering negative impacts to water quality, and only such impacts that prevent compliance with applicable water quality requirements. The memorandum indicates that this direction is consistent with all prior regulations and guidance documents for Section 401 certification.
The EPA intends to use a forthcoming Federal Register notice and docket to obtain public input on implementation challenges and regulatory uncertainty related to the 2023 Rule’s scope of certification. The agency will address such challenges and uncertainty through additional future guidance or rulemaking.
For additional information, please contact RCRC Senior Policy Advocate Staci Heaton.