Proposed Rule2025-12564
Establishment of Public Docket and Listening Sessions on Implementation Challenges Associated With Clean Water Act Section 401
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Published
July 7, 2025
Issuing agencies
Environmental Protection Agency
Abstract
The U.S. Environmental Protection Agency (EPA) will initiate a series of stakeholder listening sessions and invite written feedback on regulatory uncertainty or implementation challenges associated with the Clean Water Act (CWA) section 401 certification process as defined in the 2023 Water Quality Certification Improvement Rule. The Agency will use this input to determine whether guidance or rulemaking are necessary to address identified areas of regulatory uncertainty or implementation challenges regarding the scope of certification. The Agency also seeks stakeholder input related to CWA section 401(a)(2) implementation.
Full Text
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<title>Federal Register, Volume 90 Issue 127 (Monday, July 7, 2025)</title>
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[Federal Register Volume 90, Number 127 (Monday, July 7, 2025)]
[Proposed Rules]
[Pages 29828-29830]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-12564]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 121
[EPA-HQ-OW-2025-0272; FRL-12813-01-OW]
Establishment of Public Docket and Listening Sessions on
Implementation Challenges Associated With Clean Water Act Section 401
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of public listening sessions; request for public
comment.
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SUMMARY: The U.S. Environmental Protection Agency (EPA) will initiate a
series of stakeholder listening sessions and invite written feedback on
regulatory uncertainty or implementation challenges associated with the
Clean Water Act (CWA) section 401 certification process as defined in
the 2023 Water Quality Certification Improvement Rule. The Agency will
use this input to determine whether guidance or rulemaking are
necessary to address identified areas of regulatory uncertainty or
implementation challenges regarding the scope of certification. The
Agency also seeks stakeholder input related to CWA section 401(a)(2)
implementation.
DATES: Written feedback must be received on or before August 6, 2025.
ADDRESSES: You may send written feedback, identified by Docket ID No.
EPA-HQ-OW-2025-0272, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
(our preferred method). Follow the online instructions for submitting
written feedback.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#4708106a0328242c22330722372669202831"><span class="__cf_email__" data-cfemail="6c233b4128030f0709182c091c0d420b031a">[email protected]</span></a>. Include Docket ID No. EPA-HQ-OW-
2025-0272 in the subject line of the message.
Instructions: All submissions received must include the Docket ID
No. EPA-HQ-OW-2025-2072. Written feedback received may be posted
without change to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal
information provided. For detailed instructions on sending written
recommendations and additional information on the forthcoming listening
sessions, see the SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Lauren Kasparek, Oceans, Wetlands and
Communities Division, Office of Water (4502-T), Environmental
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460;
telephone number: (202)-564-3351; email address: <a href="/cdn-cgi/l/email-protection#2e4d594f1a1e1f6e4b5e4f00494158"><span class="__cf_email__" data-cfemail="34574355000405745144551a535b42">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Section 401 of the Federal Water Pollution
Control Act (FWPCA, also commonly known as the Clean Water Act or CWA)
authorizes States \1\ and authorized Tribes \2\ to play a specific role
in Federal licensing or permitting processes. Under CWA section 401, a
Federal Agency may not issue a license or permit to conduct any
activity that may result in any discharge into navigable waters, unless
the State or Tribe where the discharge would originate either certifies
``that any such discharge will comply with the applicable provisions of
sections 301, 302, 303, 306, and 307'' of the CWA or waives
certification. 33 U.S.C. 1341(a)(1). When granting a CWA section 401
certification, States and Tribes may include conditions, including
``effluent limitations and other limitations, and monitoring
requirements'' that are necessary to assure that the applicant for a
Federal license or permit will comply with applicable provisions of CWA
sections 301, 302, 306, and 307, and with ``any other appropriate
requirement of State law.'' Id. at 1341(d).
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\1\ The CWA defines ``state'' as ``a State, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Commonwealth of the Northern Mariana Islands,
and the Trust Territory of the Pacific Islands.'' 33 U.S.C. 1362(3).
\2\ Authorized Tribes refers to Tribes that have been approved
for treatment in a manner similar to a State status for CWA section
401. See 33 U.S.C. 1377(e).
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Congress originally established the water quality certification
requirement in section 21(b) of the Water Quality Improvement Act of
1970. The EPA promulgated regulations implementing this water quality
certification requirement in 1971. Congress subsequently enacted CWA
section 401 in 1972 amendments to the FWPCA that borrowed from the text
of the earlier statutory provision but also differed in material
respects.\3\
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\3\ 36 FR 22487 (November 25, 1971), redesignated at 37 FR 21441
(October 11, 1972), further redesignated at 44 FR 32899 (June 7,
1979).
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In 2020, the EPA amended its regulations regarding water quality
certification at 40 CFR part 121 for the first time since enactment of
CWA section 401. Clean Water Act Section 401 Certification Rule, 85 FR
42210 (July 13, 2020). The EPA promulgated revisions to the 2020 Rule
in September 2023. Clean Water Act Section 401 Water Quality
Certification Improvement Rule (2023 Rule), 88 FR 66558 (September 27,
2023). The 2020 Rule and 2023 Rule differed in material respects,
including on several of the issues set out below.
One central aspect of water quality certification is the scope of
certification. The scope of certification refers to the extent of a
certifying State or authorized Tribe's analysis when it evaluates a
request for certification to determine whether it will deny
certification, waive certification, or grant certification, including
any conditions to include in a grant of certification. The 2023 Rule
provides that when a certifying
[[Page 29829]]
authority reviews a request for certification, the certifying authority
``shall evaluate whether the activity will comply with applicable water
quality requirements.'' 40 CFR 121.3. The 2023 Rule defined ``water
quality requirements'' broadly as ``any limitation, standard or other
requirement under sections 301, 302, 303, 306, and 307 of the Clean
Water Act,'' as well as ``any Federal and state or Tribal laws or
regulations implementing those sections, and any other water quality-
related requirement of state or Tribal law.'' 40 CFR 121.1(j). It
further provides that the certifying authority's evaluation is
``limited to the water quality-related impacts from the activity
subject to the Federal license or permit, including the activity's
construction and operation.'' Finally, it provides that a certifying
authority ``shall include any conditions in a grant of certification
necessary to assure that the activity will comply with applicable water
quality requirements.'' 40 CFR 121.3.
Recently, some stakeholders have raised questions about
applications of the 2023 Rule's scope of certification.\4\ The Agency
recently released a memorandum titled Clarification regarding
Application of Clean Water Act Section 401 Certification to reiterate
the EPA's longstanding position that States and Tribes must utilize CWA
section 401 only for its statutory purpose--to protect water quality.
Memorandum from Peggy S. Browne, Acting Assistant Administrator for
Water, Clarification regarding Application of Clean Water Act Section
401 Certification, May 21, 2025. As noted in the Memorandum, the Agency
is interested in State, Tribal, project proponent, and public input
regarding any regulatory uncertainty and implementation challenges
related to the 2023 Rule. The Agency intends to use input received
through the listening sessions and the recommendations docket announced
in this notice to inform future guidance or rulemaking efforts to
address regulatory uncertainty or implementation challenges. The Agency
will not be providing specific written responses to input received
through the listening sessions or recommendations docket.
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\4\ See, e.g., America Builds: Clean Water Permitting and
Project Delivery Hearing before Subcommittee on Water Resources and
Environment, 119th Cong. (2025) (statement of Robert D. Singletary,
Executive Director, Oklahoma Department of Environmental Quality;
statement of Noah Hanners, Executive Vice President, Nucor
Corporation, on behalf of the National Association of
Manufacturers).
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Questions for Consideration
To assist the Agency in addressing implementation challenges and
regulatory uncertainty related to the 2023 Rule's scope of
certification as well as in considering experiences related to CWA
section 401 implementation, the Agency is seeking input on the
following issues:
1. Defining the scope of certification generally and the scope of
certification conditions. The rule defines the scope of certification,
which includes both the scope of certification review under CWA section
401(a) and the scope of certification conditions under CWA section
401(d), as requiring a certifying authority to ``evaluate whether the
activity will comply with applicable water quality requirements.'' 40
CFR 121.3. However, CWA section 401(a)(1) refers specifically to
``discharge into the navigable waters'' and requires that ``such
discharge will comply with the applicable provisions of sections 301,
302, 306, and 307 of this Act.'' Public Law 92-500, 401(a)(1), 86 Stat.
816 (Oct. 18, 1972). Therefore, the Agency is seeking stakeholder input
on the 2023 Rule's interpretation of the scope of certification and
certification conditions, including but not limited to, the legal
rationale for interpreting scope as applicable to the ``discharge''
versus the ``activity'' and whether the Agency should clarify or revise
its interpretation of scope of certification. The Agency also seeks
input on whether justification is necessary to demonstrate that
certification conditions included in a certification decision are
within the appropriate scope, and whether further clarification is
needed on the waters considered in acting on a request for
certification, also known as applicable waters. Submission of any
examples of specific legal vulnerabilities, implementation challenges,
or regulatory uncertainty related to the 2023 Rule are encouraged.
2. Water quality requirements. The rule defines ``water quality
requirements,'' as ``any limitation, standard, or other requirement
under sections 301, 302, 303, 306, and 307 of the Clean Water Act, any
Federal and state or Tribal laws or regulations implementing those
sections, and any other water quality-related requirement of state or
Tribal law.'' 40 CFR 121.1(j). The Agency is seeking stakeholder input
on the definition of ``water quality requirements'' including but not
limited to, whether the Agency should further clarify or revise its
interpretation of the statutory phrase ``other appropriate requirements
of State law'' from CWA section 401(d), whether the Agency should
clarify or revise the definition of ``water quality requirements,'' and
any legal rationale for such clarifications or revisions.
3. Neighboring Jurisdictions. The Agency seeks data or information
from stakeholders about how the Agency should consider whether a
neighboring jurisdiction's water quality may be affected by discharge
for purposes of 401(a)(2) and whether there are parameters to consider
in making this determination.
4. Categorical Determinations under 401(a)(2). The Agency requests
data or information from stakeholders on whether there are specific
types of activities, geographic regions, types of waterbodies, or other
types of circumstances, etc., which may support the Agency establishing
a categorical determination that the quality of no neighboring
jurisdiction's waters may be affected by discharge in such
circumstances.
5. Stakeholder Input on 401 Certification Experiences. The Agency
seeks data and information from stakeholders on their experiences with
the 2023 Rule, including certification procedures, the 401(a)(2)
process, and the application of treatment in a similar manner as a
state (TAS) solely for section 401, in particular related to areas
where challenges were identified, areas for improvement, areas for
increased transparency, areas of positive engagement, and best
practices or lessons learned from the stakeholder perspective which may
assist the Agency in identifying any areas for simplifying
certification procedures or improving Agency business processes.
6. Data and Other Information. The Agency requests data or
information from stakeholders about the application of the 2023 Rule's
scope of certification, including but not limited to, examples of
certification decisions issued under the 2023 Rule that are believed to
exceed the 2023 Rule's scope of certification.
Outreach
In addition to the solicitation of public comments through the
docket, the Agency intends to host two webinar-based listening sessions
to solicit feedback on the questions identified above. Stakeholders
will have the opportunity to provide input to the Agency on the
questions provided above for the Agency's consideration. Information on
the listening session dates, times, and registration instructions will
be made available at a later date on the EPA's website, located at
<a href="https://www.epa.gov/cwa-401">https://www.epa.gov/cwa-401</a>. Persons or organizations wishing to
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provide verbal input during a listening session will need to pre-
register. Due to the expected number of participants, individuals will
be asked to limit their oral presentation to three minutes. Supporting
materials and written feedback from those who do not have an
opportunity to speak may be submitted to the docket as described above.
Peggy S. Browne,
Acting Assistant Administrator, Office of Water, Environmental
Protection Agency.
[FR Doc. 2025-12564 Filed 7-3-25; 8:45 am]
BILLING CODE 6560-50-P
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