The EPA held its second and final listening session regarding Section 401 of the Clean Water Act on July 30. The session was part of the agency’s call for comments that it says it will use to determine if a new rulemaking on Section 401 is necessary.
For almost all of those who gave public testimony, the answer was “no.”
“We encourage EPA not to introduce a new rulemaking associated with section 401 of the Clean Water Act,” said Julie MacNamara, national water projects coordinator for Clean Water Action and Clean Water Fund. “We do not believe a new rulemaking is necessary, and we strongly oppose any regulatory changes that would limit the ability of states and tribes to protect their own water resources.”
The CWA’s Section 401 outlines states’ and tribes’ role in certifying, denying or limiting federal projects that could impact federal waters in their jurisdiction. Examples of when a Section 401 certification process might happen include the Army Corps of Engineers issuing a Section 404 discharge of dredge or fill material permit or the Federal Energy Regulatory Commission issuing a natural gas pipeline license.
Over 230 remote participants joined the Section 401 listening session, and more than a dozen people gave prepared testimony. Most who spoke represented environmental- or water quality-focused nonprofits, though there were also a couple state-level officials, lawyers, representatives from industry, and even private citizens.
Section 401 Rules: 2020 vs. 2023
The focus for many commenters boiled down to the so-called 2020 Rule versus the 2023 Rule for Section 401.
In her introductory overview, Lauren Kasparek — Section 401 team lead and biologist in the EPA’s Office of Wetlands, Oceans and Watersheds — explained the 2020 Rule was the first amendment to Section 401 since it was enacted in 1972. The 2023 Rule represented revisions to the 2020 Rule that generally realigned Section 401 implementation with earlier interpretations.
“If you want regulatory certainty, I encourage you not to whipsaw the country back to the 2020 Rule,” advised Kelly Wood, senior counsel with the Washington state attorney general’s office. He urged EPA to look back at the feedback the agency received in lead up to both the 2020 Rule and the 2023 Rule. “People around the country that actually implement Section 401 are almost universally opposed to making sweeping changes. That is for the simple reason that the interpretation of Section 401 that had successfully governed that work without problem or controversy for 50 years prior to the 2020 rule, and was restored in the 2023 rule, simply works. Almost all Section 401 certifications are granted on time, without controversy, without fanfare.”
A common complaint about the 2020 Rule voiced by many commenters was that it limited the role of states and tribes in safeguarding water quality.
“It’s that role specifically granted to states and tribes that’s threatened by the EPA rulemaking contemplated by this administration, just as it was by a similar attempt to limit state and tribal authority in a previous rulemaking by the first Trump administration,” said Nancy Stoner, senior attorney at the nonprofit Environmental Law and Policy Center, in reference to the events that led up to the 2020 Rule.
“At that time, 19 states and D.C. challenged that rule, alleging that it could upend 50 years of cooperative federalism by arbitrarily rewriting EPA’s existing water quality certification regulations to unlawfully curtail state authority under the Clean Water Act,” she added.
Jon Devine, director of freshwater ecosystems at the Natural Resources Defense Council, also described the 2020 Rule as “grossly illegal” and as having “dramatically weakened state and tribal authority.”
Concerned About States Rights
Many commenters framed potential changes to Section 401 away from the 2023 Rule as a likely states’ rights issue. Jaimie Sigaran, associate director of American Rivers, called it “a bedrock principle of cooperative federalism,” for example.
“This authority is not just a bureaucratic hurdle; it reflects the delicate constitutional balance between state sovereignty and federal oversight,” he said. “We’ve heard from [EPA Administrator Lee] Zeldin that he emphasizes the importance of state primacy in water issues. He’s advocated for joint federal and state solutions, not federal preemption. So, we need to support this cooperative federalism model.”
Jim Murphy, legal counsel for National Wildlife Federation, also referenced Zeldin and the Trump administration’s stated goals.
“This administration and administrator Zeldin have repeatedly promised that they will provide the cleanest water,” Murphy said. “They have also expressed a desire to return more power to the states to protect their own resources. Leaving the current rule in place will help advance both of these goals.”
Critical Comments on CWA Changes
In addition to offering their recommendations to the EPA, several commenters offered criticism. For some, the stated motivation for the call for comments is a non-issue.
Wood, referencing the nearly five years of litigation following the 2020 rule, said that he has “been struck by what industry has not been able to show here, and that’s any actual harm from the well-established scope of Section 401.”
Stoner offered a similar observation.
“Having read this administration’s criticisms of the 2023 Section 401 rule, I was surprised to see that it doesn’t actually talk about traffic or climate or noise or any of the other broad readings that this administration claims it is used to address,” she said.
For Devine, the whole comment solicitation effort was suspect, characterizing it as disingenuous and a waste of time.
“EPA’s current notice practically begs the polluting industries to give it an excuse to undo the law by submitting any examples of specific legal vulnerabilities, implementation challenges or regulatory uncertainty. This is essentially an admission that the agency has no basis to change the regulation,” he said. “Anyone can see where this is going. No matter how weak the examples industry lobby groups put forward, EPA will likely say that the input it solicited shows that there are concerns with the rule that justify weakening the regulation.”
He added his perspective that, if the 2023 Rule changes or reverts to the 2020 version, the future would also be foreseeable.
“The kinds of changes the EPA’s notice suggests it is considering would make the rule unlawful,” he said. “The final regulations will inevitably be challenged in court, and I fully expect they will be struck down. In the meantime, a bunch of damaging projects will likely barrel forward without adequate protections for state and tribal waters.”
