Biden Administration Releases Clean Water Act

Section 401 Rule 

The Environmental Protection Agency (EPA) last week released a final rule that grants states greater ability to reject certifications to projects that could adversely impact water quality. The rule addresses Section 401 of the Clean Water Act which enables states, tribes, and territories to deny permit certification based on concerns over threats to their water resources. The rule reverses a previous rule by the Trump Administration that limited the scope of Section 401 by limiting certification oversight from “the activity as a whole” to specific discharges to a water of the United States.

Specifically, the new rule will provide a default time frame of six months for certification when a federal agency and certifying lower authority fail to reach an agreement and a one-year maximum time frame for certification review. According to the EPA, it will not apply retroactively to decisions made under the Trump-era rule, but all actions going forward must conform to the new regulation. 

After its publication in the Federal Register, a 60-day public comment period will be open on the new rule. More information can be found on EPA’s website here.