The Environmental Protection Agency wants to hear from stakeholders about regulatory uncertainty or challenges associated with the certification process under the Clean Water Act (CWA) Section 401.
In its call for comments, EPA says it will use the feedback to determine if an additional guidance or rulemaking is necessary.
The agency is asking specific questions and will accept written comments online through the end of Aug. 6. It will also be holding an online public listening session July 30 where interested stakeholders can give verbal testimony.
CWA’s Section 401 provides for cooperative federalism, allowing states and recognized tribes to certify, deny or put limitations on federal projects that might impact federal waters in their jurisdiction. The call for comments listed Section 404 discharge of dredge or fill material permits from the Army Corps of Engineers and natural gas pipeline licenses issued by the Federal Energy Regulatory Commission as the most common examples of federal projects where Section 401 certification might be in play.
The EPA is specifically asking stakeholders to comment on the following topics:
- The definition of scope of certification in an addendum 2023 rule to CWA’s Section 401, whether and how states and tribes must demonstrate that their decisions under the section are within the appropriate scope, and if further clarification is needed on the topic.
- The definition of “water quality requirements” as it relates to state or tribal certification decisions under Section 401.
- How EPA should consider impacts to neighboring jurisdictions’ water quality.
- Specific types of activities, geographic regions, types of waterbodies or other types of circumstances that should be included in categorial determinations related to neighboring jurisdiction’s waters.
- Their own experiences with the Section 401 certification process since the September 2023 passage of the 2023 rule, particularly related to challenges, areas in need of improvement or greater transparency, positives, best practices or lessons learned.
- Examples of application of the 2023 Rule that stakeholders believe exceeded its scope.
Interested stakeholders have until 11:59 p.m. EDT on Aug. 6 to submit comments on Regulations.gov or the Federal Register. Those who wish to attend the virtual July 30 listening session must pre-register for the event, which will be held via Microsoft Teams.
