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Proposed Rule2026-00754

Updating the Water Quality Certification Regulations

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Published

January 15, 2026

Issuing agencies

Environmental Protection Agency

Abstract

The U.S. Environmental Protection Agency (EPA) is publishing this proposed rule to update and clarify several substantive and procedural requirements for water quality certification under Clean Water Act (CWA or the Act) section 401. CWA section 401 is a direct grant of authority to States (and Tribes that have been approved for "treatment as a State" status) to review for compliance with appropriate Federal, State, and Tribal water quality requirements any discharge into waters of the United States that may result from a proposed activity that requires a Federal license or permit. This proposed rule is intended to clarify several aspects of the certification process consistent with the statutory framework.

Full Text

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<title>Federal Register, Volume 91 Issue 10 (Thursday, January 15, 2026)</title>
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[Federal Register Volume 91, Number 10 (Thursday, January 15, 2026)]
[Proposed Rules]
[Pages 2008-2042]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-00754]

[[Page 2007]]

Vol. 91

Thursday,

No. 10

January 15, 2026

Part IV

Environmental Protection Agency

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40 CFR Part 121

Updating the Water Quality Certification Regulations; Proposed Rule

Federal Register / Vol. 91 , No. 10 / Thursday, January 15, 2026 /
Proposed Rules

[[Page 2008]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 121

[EPA-HQ-OW-2025-2929; FRL-6976.2-01-OW]
RIN 2040-AG47

Updating the Water Quality Certification Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is publishing
this proposed rule to update and clarify several substantive and
procedural requirements for water quality certification under Clean
Water Act (CWA or the Act) section 401. CWA section 401 is a direct
grant of authority to States (and Tribes that have been approved for
``treatment as a State'' status) to review for compliance with
appropriate Federal, State, and Tribal water quality requirements any
discharge into waters of the United States that may result from a
proposed activity that requires a Federal license or permit. This
proposed rule is intended to clarify several aspects of the
certification process consistent with the statutory framework.

DATES: Comments must be received on or before February 17, 2026.
Comments on the information collection provisions of the proposed rule
under the Paperwork Reduction Act (PRA) must be received by the Office
of Management and Budget's Office of Information and Regulatory Affairs
(OMB-OIRA) on or before February 17, 2026. Please refer to the PRA
section under ``Statutory and Executive Order Reviews'' in this
preamble for specific instructions. Public meeting: EPA will hold a
virtual public meeting following publication of this proposed action.
Please refer to the SUPPLEMENTARY INFORMATION section for additional
information on the public meeting.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2025-2929, 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
comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#327d651f765d51595746725742531c555d44">[email&#160;protected]</a>. Include Docket ID No. EPA-HQ-OW-
2025-2929 in the subject line of the message.
<bullet> Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Water Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW,
Washington, DC 20460.
<bullet> Hand Delivery/Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m.,
Monday-Friday (except Federal Holidays).
Instructions: All submissions received must include the Docket ID
No. EPA-HQ-OW-2025-2929 for this rulemaking. Comments 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
comments and additional information on the rulemaking process, see the
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION
section of this document.
The virtual meeting will be held after publication of the proposed
action; the date and time will be available at <a href="https://www.epa.gov/cwa-401">https://www.epa.gov/cwa-401</a>. Refer to the SUPPLEMENTARY INFORMATION section below for
additional information.

FOR FURTHER INFORMATION CONTACT: Lauren Kasparek, Oceans, Wetlands, and
Communities Division, Office of Water (4504-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#9af9edfbaeaaabdaffeafbb4fdf5ec">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
A. Purpose of the Proposed Regulatory Action
B. Summary of the Major Provisions of the Proposed Regulatory
Action
C. Costs and Benefits
II. Public Participation
A. Written Comments
B. Participation in Virtual Public Meeting
III. General Information
A. What action is the Agency proposing to take?
B. What is the Agency's authority for taking this proposed
action?
C. What are the incremental costs and benefits of this proposed
action?
IV. Background
A. The Clean Water Act
B. Clean Water Act Section 401
C. The EPA's Role in Implementing Section 401
D. Prior Rulemaking Efforts Addressing Section 401
E. Summary of Stakeholder Outreach
V. Proposed Rule
A. Request for Certification
B. Timeframe for Certification Analysis and Decision
C. Appropriate Scope for Section 401 Certification Review
D. Contents of a Certification Decision
E. Modifications
F. Section 401(a)(2) Process
G. Treatment in a Similar Manner as a State
VI. Supporting Information
A. Economic Analysis
B. Children's Health
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 14192: Unleashing Prosperity Through
Deregulation
C. Paperwork Reduction Act
D. Regulatory Flexibility Act
E. Unfunded Mandates Reform Act
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act

I. Executive Summary

A. Purpose of the Proposed Regulatory Action

The U.S. Environmental Protection Agency is seeking public comment
on a proposed rule that would revise several procedural and substantive
aspects of the Clean Water Act Section 401 Water Quality Certification
Improvement Rule (hereinafter, the 2023 Rule) to address areas of
regulatory uncertainty and implementation challenges.
In July 2025, the Agency published a Federal Register notice
seeking input on regulatory uncertainty and implementation challenges
associated with the 2023 Rule after stakeholders \1\ raised questions
about application of the 2023 Rule's scope of certification. 90 FR
29828, 29829 (July 7, 2025). In response, industry stakeholders and
States supported revisions to the 2023 Rule to increase clarity and
transparency around the certification process, in particular the scope
of certification. Conversely, some States, Tribes, and individuals
opposed revisions to the 2023 Rule. With this action, the Agency is
proposing to revise the 2023 Rule to align the regulations with the
scope of the Clean Water Act, increase transparency, efficiency, and
predictability for certifying authorities

[[Page 2009]]

and the regulated community, and to ensure that States and authorized
Tribes understand and adhere to their section 401 role. The proposed
rule, while focused on the relevant statutory provisions and case law
interpreting those provisions, is informed by the Agency's expertise
developed in implementing the Clean Water Act for over 50 years and
policy considerations where appropriate. A plain language summary of
this proposed rule is available on <a href="http://regulations.gov">regulations.gov</a>.
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\1\ 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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B. Summary of the Major Provisions of the Proposed Regulatory Action

The Agency is proposing to revise the following provisions in 40
CFR part 121: the contents of a request for certification at 40 CFR
121.5; the scope of certification at 40 CFR 121.3; the contents of a
certification decision at 40 CFR 121.7; the modification process at 40
CFR 121.10; and the section 401(a)(2) process at subpart B. The Agency
is also proposing to add regulatory text at 40 CFR 121.6 regarding
withdrawal and resubmittal of requests for certification and proposing
to remove regulatory text at 40 CFR 121.11 regarding treatment in a
similar manner as a State for Tribes. The Agency is also proposing
several clarifying and conforming revisions throughout part 121.

C. Costs and Benefits

Potential costs and benefits would be incurred as a result of
actions taken by applicants,\2\ certifying authorities, and Federal
agencies acting pursuant to or implementing the proposed rule. The
Agency prepared the economic analysis for the proposed rule (``Economic
Analysis''), available in the rulemaking docket, for informational
purposes to analyze the potential cost savings and benefits associated
with this proposed action. The Agency analyzed the potential cost
savings and benefits against the baseline of the 2023 Rule. This
analysis is summarized in section VI of this preamble.
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\2\ Throughout this document, the Agency will use the term
``applicant'' to refer to the individual responsible for obtaining
certification. The current regulations refer to applicants as the
``project proponent.'' See 40 CFR 121.1(h). However, EPA is
proposing to remove this term and instead rely on the term
``applicant'' consistent with the statutory text. See section V.A of
this preamble for further discussion.
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II. Public Participation

A. Written Comments

Submit your comments, identified by Docket ID No. EPA-HQ-OW-2025-
2929, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> (our preferred method), or the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. EPA may publish
any comment received to its public docket. Do not submit to EPA's
docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> any information you consider to
be Confidential Business Information (CBI), Proprietary Business
Information (PBI), or other information whose disclosure is restricted
by statute. Multimedia submissions (audio, video, etc.) must be
accompanied by a written comment. The written comment is considered the
official comment and should include discussion of all points you wish
to make. EPA will generally not consider comments or comment contents
located outside of the primary submission (i.e., on the web, cloud, or
other file sharing system). Please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a> for additional submission methods; the full EPA
public comment policy; information about CBI, PBI, or multimedia
submissions; and general guidance on making effective comments.

B. Participation in Virtual Public Meeting

The Agency will hold one virtual public meeting after publication
of the proposed action. The meeting date and time will be available on
<a href="https://www.epa.gov/cwa-401">https://www.epa.gov/cwa-401</a>. The Agency will begin pre-registering
speakers for the meeting upon publication of this document in the
Federal Register. To register to speak at the public meeting, please
use the online registration forms available at <a href="https://www.epa.gov/cwa-401">https://www.epa.gov/cwa-401</a> or contact EPA staff at <a href="/cdn-cgi/l/email-protection#690a1e085d5958290c1908470e061f">[email&#160;protected]</a> to register to speak at the
meeting. The last day to pre-register to speak at the meeting will be
the day before the meeting. On the last working day before the meeting,
EPA will post a general agenda for the meeting that will list pre-
registered speakers in approximate order at: <a href="https://www.epa.gov/cwa-401">https://www.epa.gov/cwa-401</a>.
The Agency will make every effort to follow the schedule as closely
as possible on the day of the meeting; however, please plan for the
hearing to run either ahead of schedule or behind schedule. EPA will
make every effort to accommodate all speakers who register and joining
the meeting, although preferences on speaking times may not be able to
be fulfilled. Additionally, as time allows, EPA will accept requests to
speak the day of the meeting.
Each commenter will have three minutes to provide oral testimony.
EPA encourages commenters to provide the Agency with a copy of their
oral testimony electronically by emailing it to <a href="/cdn-cgi/l/email-protection#dab9adbbeeeaeb9abfaabbf4bdb5ac">[email&#160;protected]</a>. EPA
also recommends submitting the text of your oral comments as written
comments to the rulemaking docket.
The Agency may ask clarifying questions during the oral
presentations but will not respond to the presentations at that time.
Written statements and supporting information submitted during the
comment period will be considered with the same weight as oral comments
and supporting information presented at the public meeting.
Please note that any updates made to any aspect of the meeting will
be posted online at <a href="https://www.epa.gov/cwa-401">https://www.epa.gov/cwa-401</a>. While EPA expects the
meeting to go forward as set forth above, please monitor our website or
contact <a href="/cdn-cgi/l/email-protection#b7d4c0d6838786f7d2c7d699d0d8c1">[email&#160;protected]</a> to determine if there are any updates. EPA does
not intend to publish a document in the Federal Register announcing
updates.
If you require the services of an interpreter or special
accommodations such as audio description, please pre-register for the
meeting with <a href="/cdn-cgi/l/email-protection#3f5c485e0b0f0e7f5a4f5e11585049">[email&#160;protected]</a> and describe your needs by one week before
the meeting. The Agency may not be able to arrange accommodations
without advance notice.

III. General Information

A. What action is the Agency proposing to take?

In this rulemaking, the Agency is publishing a proposed rule
updating certain provisions in the water quality certification
regulations in 40 CFR 121.

B. What is the Agency's authority for taking this proposed action?

The authority for this action is the Federal Water Pollution
Control Act, 33 U.S.C. 1251 et seq., including, but not limited to,
sections 304(h), 401, and 501(a).

C. What are the incremental costs and benefits of this proposed action?

The Agency prepared the Economic Analysis for the proposed rule,
available in the rulemaking docket, for informational purposes to
analyze the potential costs and benefits associated with this proposed
action. The analysis is summarized in section VI of this preamble.

IV. Background

Congress enacted section 401 of the Clean Water Act (CWA) to
provide States and authorized Tribes with an important tool to help
protect the water quality of federally regulated waters within their
borders in collaboration with Federal agencies. Under section

[[Page 2010]]

401, a Federal agency may not issue a license or permit to conduct any
activity that may result in any discharge into waters of the United
States,\3\ unless the State or authorized Tribe where the discharge
would originate either issues a section 401 water quality certification
finding compliance with applicable water quality requirements or
certification is waived. Section 401 envisions a robust State and
Tribal role in the Federal licensing or permitting proceedings,
including those in which local authority may otherwise be preempted by
Federal law. Section 401 also places important limitations on how that
role may be implemented to maintain an efficient process, consistent
with the overall cooperative federalism construct established by the
CWA.
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\3\ The CWA, including section 401, uses ``navigable waters,''
defined as ``waters of the United States, including territorial
seas.'' 33 U.S.C. 1362(7). This proposed rulemaking uses ``waters of
the United States'' throughout.
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Section 401 provides that a State or authorized Tribe must act on a
section 401 request for certification ``within a reasonable period of
time (which shall not exceed one year)''.\4\ Section 401 does not
guarantee a State or Tribe a full year to act on a request for
certification, as the statute only grants as much time as is
reasonable. 33 U.S.C. 1341(a)(1). The CWA provides that the timeline
for action on a section 401 certification begins ``after receipt'' of a
request for certification. Id. If a State or Tribe does not grant,
grant with conditions, deny, or expressly waive the section 401
certification within a reasonable time period, section 401 states that
the ``the certification requirements of this subsection shall be waived
with respect to such Federal application.'' Id. If the certification
requirement has been waived and the Federal license or permit is
issued, any subsequent action by a State or Tribe to grant, grant with
conditions, or deny section 401 certification has no legal force or
effect.
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\4\ In some circumstances, the EPA can act as the certifying
authority. 33 U.S.C. 1341(a)(1) (``In any case where a State or
interstate agency has no authority to give such a certification,
such certification shall be from the Administrator.'').
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Section 401 authorizes States and Tribes to certify that a
discharge into waters of the United States that may result from a
proposed activity will comply with certain enumerated sections of the
CWA, including the effluent limitations and standards of performance
for new and existing discharge sources (sections 301, 302, and 306 of
the CWA), water quality standards and implementation plans (section
303), and toxic pretreatment effluent standards (section 307). When
granting a section 401 certification, States and Tribes are directed by
CWA section 401(d) to 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.''
As the Agency charged with administering the CWA,\5\ as well as a
certifying authority in certain instances, the EPA is responsible for
developing a common regulatory framework for certifying authorities to
follow when completing section 401 certifications. See 33 U.S.C.
1251(d), 1361(a). In 1971, the EPA promulgated regulations for
implementing the water quality certification provisions pursuant to
section 21(b) of the Federal Water Pollution Control Act of 1948
(FWPCA) (hereinafter, the 1971 Rule).\6\ The 1971 Rule was promulgated
prior to enactment of the 1972 amendments to the FWPCA (commonly known
as the Clean Water Act or CWA),\7\ which included amendments to the
water quality certification provisions. In 1979, the Agency recognized
the need to update the 1971 Rule, in part to be consistent with the
1972 amendments. See 44 FR 32854, 32856 (June 7, 1979) (noting the 40
CFR part 121 regulations predated the 1972 amendments). However, the
Agency declined to update the 1971 Rule at the time because it had not
consulted with other Federal agencies impacted by the water quality
certification process and instead promulgated regulations applicable to
water quality certifications on EPA-issued National Pollutant Discharge
Elimination System (NPDES) permits. Id.; see, e.g., 40 CFR 124.53
through 124.55. As a result, for many years, the 1971 Rule did not
fully reflect the amended statutory language.
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\5\ The EPA co-administers section 404 with the Army Corps of
Engineers (the Corps).
\6\ 36 FR 8563 (May 8, 1971), redesignated at 36 FR 22369, 22487
(November 25, 1971), further redesignated at 37 FR 21441 (October
11, 1972), further redesignated at 44 FR 32854, 32899 (June 7,
1979).
\7\ The FWPCA has been commonly referred to as the CWA following
the 1977 amendments to the FWPCA. Public Law 95-217, 91 Stat. 1566
(1977). For ease of reference, the Agency will generally refer to
the FWPCA in this rulemaking as the CWA or the Act.
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EPA revised the 1971 Rule in 2020.\8\ The 2020 Rule was the
Agency's first comprehensive effort to promulgate Federal rules
governing the implementation of CWA section 401, informed by a holistic
analysis of the statutory text, legislative history, and relevant case
law. In 2023, the Agency revised the 2020 Rule and made several
material revisions to procedural and substantive aspects of the
certification process, including the scope of certification, the
contents of a request for certification and certification decision, and
modification to certification decisions.\9\ In July 2025, the Agency
published a Federal Register document seeking input on regulatory
uncertainty and implementation challenges with the 2023 Rule after
stakeholders raised questions about applications of the 2023 Rule's
scope of certification. 90 FR 29828, 29829 (July 7, 2025).
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\8\ Clean Water Act Section 401 Certification Rule, 85 FR 42210
(July 13, 2020) (hereinafter, the 2020 Rule).
\9\ Clean Water Act Section 401 Water Quality Certification
Improvement Rule, 88 FR 66558 (September 27, 2023) (hereinafter, the
2023 Rule).
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The Agency is proposing revisions to several aspects of the 2023
Rule, including the contents of a request for certification, the scope
of certification, the contents of a certification decision, and the
modification process. The Agency is also adding regulatory text
regarding withdrawal and resubmittal of requests for certification,
removing regulatory text on the automatic extension process to the
reasonable period of time, and removing regulatory text regarding
``treatment in a similar manner as a State'' (TAS) for Tribes and
instead relying on the existing regulatory process for TAS for section
303(c). The proposed rule, while focused on the relevant statutory
provisions and case law interpreting those provisions, is informed by
the Agency's expertise developed in implementing the CWA for over 50
years and policy considerations where appropriate.
The following sections describe the regulatory framework and
history of the 1972 CWA amendments, how section 401 fits within that
framework, previous rulemaking efforts, and recent stakeholder outreach
and engagement that provide the foundation for this proposed rule.

A. The Clean Water Act

In 1972, Congress amended the CWA to address longstanding concerns
regarding the quality of the nation's waters and the Federal
Government's ability to address those concerns under existing law.
Prior to 1972, responsibility for controlling and redressing water
pollution in the nation's waters largely fell to the Corps under the
Rivers and Harbors Act of

[[Page 2011]]

1899 (RHA). While much of that statute focused on restricting
obstructions to navigation on the nation's major waterways, section 13
of the RHA made it unlawful to discharge refuse ``into any navigable
water of the United States, or into any tributary of any navigable
water from which the same shall float or be washed into such navigable
water.'' \10\ 33 U.S.C. 407. Congress had also enacted the Water
Pollution Control Act of 1948, Public Law 80-845, 62 Stat. 1155 (June
30, 1948), to address interstate water pollution, and subsequently
amended that statute in 1956 (giving the statute its current formal
name), in 1961, and in 1965. The early versions of the CWA promoted the
development of pollution abatement programs, required States to develop
water quality standards, and authorized the Federal Government to bring
enforcement actions to abate water pollution.
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\10\ The term ``navigable water of the United States'' is a term
of art used to refer to a water subject to Federal jurisdiction
under the RHA. See, e.g., 33 CFR 329.1. The term is not synonymous
with the phrase ``waters of the United States'' under the CWA, see
id., and the general term ``navigable waters'' has different
meanings depending on the context of the statute in which it is
used. See, e.g., PPL Montana, LLC v. Montana, 132 S. Ct. 1215, 1228
(2012).
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These earlier statutory frameworks, however, proved challenging for
regulators, who often worked backward from an overly polluted waterway
to determine which dischargers and which sources of pollution may be
responsible. See EPA v. State Water Resources Control Bd., 426 U.S.
200, 204 (1976). In fact, Congress determined that the prior statutes
were inadequate to address the decline in the quality of the nation's
waters, see City of Milwaukee v. Illinois, 451 U.S. 304, 310 (1981), so
Congress performed a ``total restructuring'' and ``complete rewriting''
of the existing statutory framework of the Act in 1972, id. at 317
(quoting legislative history of 1972 amendments). That restructuring
resulted in the enactment of a comprehensive scheme designed to
prevent, reduce, and eliminate pollution in the nation's waters
generally, and to regulate the discharge of pollutants into waters of
the United States specifically. See, e.g., S.D. Warren Co. v. Maine Bd.
of Envtl. Prot., 547 U.S. 370, 385 (2006) (``[T]he Act does not stop at
controlling the `addition of pollutants,' but deals with `pollution'
generally[.]'').
The objective of the new statutory scheme was ``to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters.'' 33 U.S.C. 1251(a). In order to meet that objective,
Congress declared two national goals: (1) ``that the discharge of
pollutants into the navigable waters be eliminated by 1985;'' and (2)
``that wherever attainable, an interim goal of water quality which
provides for the protection and propagation of fish, shellfish, and
wildlife and provides for recreation in and on the water be achieved by
July 1, 1983 . . . .'' Id. at 1251(a)(1)-(2).
Congress established several key policies that direct the work of
the Agency to effectuate those goals. For example, Congress declared as
a national policy ``that the discharge of toxic pollutants in toxic
amounts be prohibited; . . . that Federal financial assistance be
provided to construct publicly owned waste treatment works; . . . that
areawide waste treatment management planning processes be developed and
implemented to assure adequate control of sources of pollutants in each
State; . . . [and] that programs for the control of nonpoint sources of
pollution be developed and implemented in an expeditious manner so as
to enable the goals of this Act to be met through the control of both
point and nonpoint sources of pollution.'' Id. at 1251(a)(3)-(7).
Congress gave States a major role in implementing the CWA. This
balanced the traditional power of States to regulate land and water
resources within their borders with the need for a national water
quality regulation. For example, the statute highlighted ``the policy
of the Congress to recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate
pollution'' and ``to plan the development and use . . . of land and
water resources . . . .'' Id. at 1251(b). Congress also declared as a
national policy that States manage the major construction grant program
and implement the core permitting programs authorized by the statute,
among other responsibilities. Id. Congress added that ``[e]xcept as
expressly provided in this Act, nothing in this Act shall . . . be
construed as impairing or in any manner affecting any right or
jurisdiction of the States with respect to the waters (including
boundary waters) of such States.'' Id. at 1370.\11\ Congress also
pledged to provide technical support and financial aid to the States
``in connection with the prevention, reduction, and elimination of
pollution.'' Id. at 1251(b).
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\11\ 33 U.S.C. 1370 also prohibits States with EPA-approved CWA
programs from adopting any limitations, prohibitions, or standards
that are less stringent than required by the CWA.
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To carry out these policies, Congress broadly defined ``pollution''
to mean ``the man-made or man-induced alteration of the chemical,
physical, biological, and radiological integrity of water,'' id. at
1362(19), to parallel the broad objective of the Act ``to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters.'' Id. at 1251(a). Congress then crafted a non-
regulatory statutory framework to provide technical and financial
assistance to the States to prevent, reduce, and eliminate pollution in
the nation's waters generally. See, e.g., id. at 1256(a) (authorizing
the EPA to issue ``grants to States and to interstate agencies to
assist them in administering programs for the prevention, reduction,
and elimination of pollution'').
In addition to the Act's non-regulatory measures to control
pollution of the nation's waters, Congress created a Federal regulatory
program designed to address the discharge of pollutants into a subset
of those waters identified as ``the waters of the United States.'' See
33 U.S.C. 1362(7). Section 301 contains the key regulatory mechanism:
``Except as in compliance with this section and sections 302, 306, 307,
318, 402, and 404 of this Act, the discharge of any pollutant by any
person shall be unlawful.'' Id. at 1311(a). A ``discharge of a
pollutant'' is defined to include ``any addition of any pollutant to
navigable waters from any point source,'' such as a pipe, ditch or
other ``discernible, confined and discrete conveyance.'' Id. at
1362(12), (14). The term ``pollutant'' means ``dredged spoil, solid
waste, incinerator residue, sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt and industrial,
municipal, and agricultural waste discharged into water.'' Id. at
1362(6). Thus, it is unlawful to discharge pollutants into waters of
the United States from a point source unless the discharge is in
compliance with certain enumerated sections of the CWA, including by
obtaining authorizations pursuant to the section 402 NPDES permit
program or the section 404 dredged or fill material permit program. See
id. at 1342, 1344. Congress therefore intended to achieve the Act's
objective ``to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters'' by addressing pollution
of all waters via non-regulatory means and federally regulating the
discharge of

[[Page 2012]]

pollutants to the subset of waters identified as ``navigable waters.''
\12\
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\12\ Fundamental principles of statutory interpretation support
the Agency's recognition of a distinction between ``nation's
waters'' and ``navigable waters.'' As the Supreme Court has
observed, ``[w]e assume that Congress used two terms because it
intended each term to have a particular, nonsuperfluous meaning.''
Bailey v. United States, 516 U.S. 137, 146 (1995) (recognizing the
canon of statutory construction against superfluity). Further, ``the
words of a statute must be read in their context and with a view to
their place in the overall statutory scheme.'' FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (internal
quotation marks and citation omitted); see also United Savings Ass'n
v. Timbers of Inwood Forest Associates, 484 U.S. 365, 371 (1988)
(``Statutory construction . . . is a holistic endeavor. A provision
that may seem ambiguous in isolation is often clarified by the
remainder of the statutory scheme--because the same terminology is
used elsewhere in a context that makes its meaning clear[.]'')
(citation omitted). The non-regulatory sections of the CWA reveal
Congress' intent to restore and maintain the integrity of the
nation's waters using Federal assistance to support State and local
partnerships to control pollution in the nation's waters in addition
to a Federal regulatory prohibition on the discharge of pollutants
into the navigable waters. If Congress intended the terms to be
synonymous, it would have used identical terminology. Instead,
Congress chose to use separate terms, and the Agency is instructed
by the Supreme Court to presume Congress did so intentionally.
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The regulatory programs established by the Act focus on the
development of point source effluent limitations that directly restrict
discharges, with compliance achieved through NPDES permits. See EPA v.
State Water Resources Control Bd., 426 U.S. at 204 (discussing the
major changes to the methods to abate and control water pollution in
the 1972 amendments). This provides a framework for the Agency to focus
on reducing or eliminating discharges while creating accountability for
each regulated entity that discharges into a waterbody, facilitating
greater enforcement and overall achievement of the CWA water quality
goals. Id.; see Oregon Natural Desert Association v. Dombeck, 172 F.3d
1092, 1096 (9th Cir. 1998) (observing that 1972 amendments ``largely
supplanted'' earlier versions of CWA ``by replacing water quality
standards with point source effluent limitations'').
Under this statutory scheme, the States \13\ are authorized to
assume program authority for issuing section 402 and 404 permits within
their borders, subject to certain limitations. 33 U.S.C. 1342(b),
1344(g). States are also responsible for developing water quality
standards for ``waters of the United States'' within their borders and
reporting on the condition of those waters to the EPA every two years.
Id. at 1313, 1315. States must develop total maximum daily loads
(TMDLs) for waters that are not meeting established CWA water quality
standards and must submit those TMDLs to the EPA for approval. Id. at
1313(d). And, central to this proposed rule, States under CWA section
401 have authority to grant, grant with conditions, deny, or waive
water quality certifications for every Federal license or permit issued
within their borders that may result in a discharge into waters of the
United States. Id. at 1341. These same regulatory authorities can be
assumed by Indian Tribes under section 518 of the CWA, which authorizes
the EPA to treat eligible Tribes with reservations in a similar manner
to States (referred to as ``treatment as States'' or TAS) for a variety
of purposes, including administering the principal CWA regulatory
programs. Id. at 1377(e). In addition, States and Tribes retain
authority to protect and manage the use of those waters that are not
waters of the United States under the CWA. See, e.g., id. at 1251(b),
1251(g), 1370, 1377(a).
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\13\ 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).
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B. Clean Water Act Section 401

Legislative history indicates that Congress created the water
quality certification requirement to ``recognize[] the responsibility
of Federal agencies to protect water quality wherever their activities
affect public waterways.'' S. Rep. No. 91-351, at 3 (1969). ``In the
past, these [Federal] licenses and permits have been granted without
any assurance that the [water quality] standards will be met or even
considered.'' Id. Instead of helping States cooperatively achieve
Federal policy objectives related to water quality standards, Federal
agencies were ``sometimes . . . a culprit with considerable
responsibility for the pollution problem which is present.'' 115 Cong.
Rec. 9011, 9030 (April 15, 1969). As an example, the legislative
history discusses the Atomic Energy Commission's failure to consider
the impact of thermal pollution on receiving waters when evaluating
``site selection, construction, and design or operation of nuclear
powerplants.'' S. Rep. No. 91-351, at 3. As a result, States, industry
groups, conservation groups, and the public alike ``questioned the
justification for requiring compliance with water quality standards''
if Federal agencies themselves would not comply with those standards.
S. Rep. No. 91-351, at 7 (August 7, 1969).
The water quality certification requirement first appeared in
section 21(b) of the FWPCA, and it required States to certify that
``such activity will be conducted in a manner which will not violate
applicable water quality standards.'' Public Law 91-224, 21(b)(1), 84
Stat. 91 (1970) (emphasis added). As described above, the 1972
amendments restructured the CWA and created a framework for compliance
with effluent limitations that would be established in discharge
permits issued pursuant to the new Federal permitting program. The pre-
existing water quality certification requirement was retained in
section 401 of the 1972 amendments but modified to be consistent with
the overall restructuring of the CWA. The new section 401 required a
water quality certification to assure that the ``discharge will
comply'' with effluent limitations and other enumerated regulatory
provisions of the Act. 33 U.S.C. 1341(a) (emphasis added). The 1972
amendments also established a new section 401(d), which provides that
certifications ``shall set forth any effluent limitations and other
limitations, and monitoring requirements necessary to assure''
compliance with the same enumerated CWA provisions and with ``any other
appropriate requirement'' of State or Tribal law. 33 U.S.C. 1341(d).
In enacting section 401, Congress recognized that where States and
Tribes do not have direct permitting authority (because they do not
have section 402 or 404 program authorization or where Congress has
preempted a regulatory field, e.g., under the Federal Power Act), they
may still play a valuable role in protecting the water quality of
federally regulated waters within their borders in collaboration with
Federal agencies. Under section 401, a Federal agency may not issue a
license or permit for an activity that may result in a discharge into
waters of the United States, unless the appropriate State or Tribal
authority provides a section 401 certification or waives its ability to
do so. The authority to certify a Federal license or permit lies with
the agency (the certifying authority) that has jurisdiction over the
location of the discharge (or potential discharge) to the receiving
water of the United States. Id. at 1341(a)(1). Examples of Federal
licenses or permits potentially subject to section 401 certification
include, but are not limited to, CWA section 402 NPDES permits in
States where the EPA administers the permitting program; CWA section
404 and RHA sections 9 and 10 permits issued by the Corps; bridge
permits issued by the U.S. Coast Guard (USCG); and hydropower and
pipeline licenses

[[Page 2013]]

issued by the Federal Energy Regulatory Commission (FERC).
Under section 401, a certifying authority may grant, grant with
conditions, deny, or waive certification in response to a request from
an applicant. The certifying authority determines whether the potential
discharge or discharges from the proposed activity will comply with the
applicable provisions of sections 301, 302, 303, 306, and 307 of the
CWA and any other appropriate requirement of State law. Id. at
1341(a)(1), (d). Certifying authorities also add to a certification
``any effluent limitations and other limitations, and monitoring
requirements'' necessary to assure compliance. Id. at 1341(d). These
limitations and requirements must become conditions of the Federal
license or permit should it be issued. Id. A certifying authority may
deny certification if it is unable to determine that the discharge from
the proposed activity will comply with the applicable sections of the
CWA and appropriate requirements of State or Tribal law. If a
certifying authority denies certification, the Federal license or
permit may not be issued. Id. at 1341(a)(1). A certifying authority may
waive certification by ``fail[ing] or refus[ing] to act on a request
for certification, within a reasonable period of time (which shall not
exceed one year) after receipt of such request.'' Id.

C. The EPA's Role in Implementing Section 401

The EPA, as the Federal agency charged with administering the CWA,
is responsible for developing regulations and guidance to ensure
effective implementation of all CWA programs, including section
401.\14\ In addition to administering the statute and promulgating
implementing regulations, the Agency has several other roles under
section 401.
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\14\ See 33 U.S.C. 1251(d) (``Except as otherwise expressly
provided in this chapter, the Administrator of the Environmental
Protection Agency . . . shall administer this chapter.''); id. at
1361(a); Mayo Found. for Medical Educ. and Res. v. United States,
562 U.S. 44, 45 (2011); Hoopa Valley Tribe v. FERC, 913 F.3d 1099,
1104 (D.C. Cir. 2019); Ala. Rivers Alliance v. FERC, 325 F.3d 290,
296-97 (D.C. Cir. 2003); Cal. Trout v. FERC, 313 F.3d 1131, 1133
(9th Cir. 2002); Am. Rivers, Inc. v. FERC, 129 F. 3d 99, 107 (2d
Cir. 1997).
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The EPA is required to provide certification or waiver where no
State, Tribe, or interstate agency has the authority to provide
certification. 33 U.S.C. 1341(a)(1) (``In any case where a State or
interstate agency has no authority to give such a certification, such
certification shall be from the Administrator.''). Currently, EPA acts
as the certifying authority in two scenarios (1) on behalf of Tribes
without ``treatment in a similar manner as a State'' (TAS) and (2) on
lands of exclusive Federal jurisdiction in relevant respects.\15\
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\15\ Exclusive Federal jurisdiction is established only under
limited circumstances pursuant to the Enclave Clause of the U.S.
Constitution, article 1, section 8, clause 17. These circumstances
include (1) where the Federal Government purchases land with state
consent to jurisdiction, consistent with article 1, section 8,
clause 17 of the U.S. Constitution; (2) where a State chooses to
cede jurisdiction to the Federal Government, and (3) where the
Federal Government reserved jurisdiction upon granting statehood.
See Paul v. United States, 371 U.S. 245, 263-65 (1963); Collins v.
Yosemite Park Co., 304 U.S. 518, 529-30 (1938); James v. Dravo
Contracting Co., 302 U.S. 134, 141-42 (1937); Surplus Trading Co. v.
Cook, 281 U.S. 647, 650-52 (1930); Fort Leavenworth Railroad Co. v.
Lowe, 114 U.S. 525, 527 (1895).
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The EPA also notifies other States when the Administrator
determines that a discharge may affect the quality of such State's
waters. Id. at 1341(a)(2). Although section 401 certification authority
lies with the jurisdiction where the discharge originates, another
State whose water quality is potentially affected by the discharge may
have an opportunity to raise objections to, and request a hearing on,
the relevant Federal license or permit before issuance. Where the EPA
determines that a discharge subject to section 401 ``may affect'' the
water quality of another State, the EPA is required to notify that
State. Id. If the notified other State determines that the discharge
``will affect'' the quality of its waters in violation of a water
quality requirement of that State, it may notify the EPA and the
Federal licensing or permitting agency of its objection to the license
or permit. Id. It may also request a hearing on its objection with the
Federal licensing or permitting agency. At such a hearing, section 401
requires the EPA to submit its evaluation and recommendations with
respect to the objection. The Federal agency will consider the State's
and the EPA's recommendations, and any additional evidence presented at
the hearing, and ``shall condition such license or permit in such
manner as may be necessary to ensure compliance with the applicable
water quality requirements'' of the other State. Id. If the conditions
cannot ensure compliance, the Federal agency shall not issue the
license or permit.
The EPA must also provide technical assistance for section 401
certifications upon the request of any Federal or State agency or
applicant. Id. at 1341(b). Technical assistance might include the
provision of any relevant information or comment on methods to comply
with applicable effluent limitations, standards, regulations,
requirements, or water quality standards.

D. Prior Rulemaking Efforts Addressing Section 401

The EPA is responsible for developing regulations and guidance to
ensure effective implementation of all CWA programs, including section
401. Because the EPA has been charged by Congress with administering
the CWA, some courts have concluded that other Federal agencies are not
entitled to deference on their interpretations of section 401. See Ala.
Rivers Alliance v. FERC, 325 F.3d 290, 296-97 (D.C. Cir. 2002); Am.
Rivers, Inc. v. FERC, 129 F.3d 99, 107 (2d. Cir. 1997). In the last 50-
plus years, EPA has undertaken three rulemaking efforts focused solely
on addressing water quality certification, one of which preceded the
1972 amendments to the CWA. The Agency has also developed several
guidance documents on the section 401 certification process. This
section of the preamble discusses EPA's major rulemaking efforts over
the last 50-plus years, including most recently, the 2023 Rule.
1. 1971 Rule
In February 1971, EPA proposed regulations implementing section
401's predecessor provision, section 21(b) of the FWPCA. 36 FR 2516
(February 5, 1971). Those proposed regulations were divided into four
subparts, one of which provided ``definitions of general applicability
for the regulations and . . . provide[d] for the uniform content and
form of certification.'' Id. The other three subparts focused on EPA's
roles. Id. In May 1971, after receiving public comments, EPA finalized
the water quality certification regulations with the proposed four-part
structure at 18 CFR part 615. 36 FR 8563 (May 8, 1971) (``1971 Rule'').
The EPA's 1971 Rule required certifying authorities to act on a
certification request within a ``reasonable period of time.'' 40 CFR
121.16(b) (2019). The regulations provided that the Federal licensing
or permitting agency determines what constitutes a ``reasonable
period,'' and that the period shall generally be six months but in any
event shall not exceed one year. Id.
The 1971 Rule also provided that certifying authorities may waive
the certification requirement under two circumstances: first, when the
certifying authority sends written notification expressly waiving its
authority to act on a request for certification; and second, when the
Federal licensing or permitting agency sends written

[[Page 2014]]

notification to the EPA Regional Administrator that the certifying
authority failed to act on a certification request within a reasonable
period of time after receipt of such a request. Id. at 121.16(a)-(b)
(2019). Once waiver occurs, certification is not required, and the
Federal license or permit may be issued. 33 U.S.C. 1341(a).
The 1971 Rule also established requirements that applied only when
the EPA was the certifying authority, including specific information
that must be included in a certification request and additional
procedures. For example, the regulations required the applicant to
submit to the EPA Regional Administrator the name and address of the
applicant, a description of the facility or activity and of any related
discharge into waters of the United States, a description of the
function and operation of wastewater treatment equipment, dates on
which the activity and associated discharge would begin and end, and a
description of the methods to be used to monitor the quality and
characteristics of the discharge. 40 CFR 121.22 (2019). Once the
request was submitted to the EPA, the regulations required the Regional
Administrator to provide public notice of the request and an
opportunity to comment, specifically stating that ``all interested and
affected parties will be given reasonable opportunity to present
evidence and testimony at a public hearing on the question whether to
grant or deny certification if the Regional Administrator determines
that such a hearing is necessary or appropriate.'' Id. at 121.23
(2019). If, after consideration of relevant information, the Regional
Administrator determined that there was ``reasonable assurance that the
proposed activity will not result in a violation of applicable water
quality standards,'' the Regional Administrator would grant
certification.\16\ Id. at 121.24 (2019).
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\16\ Use of the terms ``reasonable assurance,'' ``water quality
standards,'' and ``activity'' in the EPA's 1971 certification
regulations was consistent with section 21(b) of the pre-1972
statutory language. However, those terms are not used in the current
text of CWA section 401, which replaced the pre-1972 language. See
Public Law 91-224, 21(b)(1), 84 Stat. 91 (1970).
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The 1971 Rule identified a number of requirements that all
certifying authorities must include in a section 401 certification. Id.
at 121.2 (2019). For example, the regulations provided that a section
401 certification shall include the name and address of the applicant.
Id. at 121.2(a)(2). They also provided that the certification shall
include a statement that the certifying authority examined the
application made by the applicant to the Federal licensing or
permitting agency and bases its certification upon an evaluation of the
application materials which are relevant to water quality
considerations or that it examined other information sufficient to
permit the certifying authority to make a statement that there is a
``reasonable assurance that the activity will be conducted in a manner
which will not violate applicable water quality standards.'' Id. at
121.2(a)(2)-(3) (2019). Finally, the regulations provided that the
certification shall state ``any conditions which the certifying agency
deems necessary or desirable with respect to the discharge of the
activity,'' and other information that the certifying authority deems
appropriate.\17\ Id. at 121.2(a)(4)-(5) (2019).
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\17\ The term ``desirable'' is also not used in CWA section 401.
---------------------------------------------------------------------------

The 1971 Rule also established a process for the EPA to provide
notification to other States in a manner that is similar to that
provided in CWA section 401(a)(2). Under the 1971 certification
regulations, the Regional Administrator was required to review the
Federal license or permit application, the certification, and any
supplemental information provided to the EPA by the Federal licensing
or permitting agency, and if the Regional Administrator determined that
there was ``reason to believe that a discharge may affect the quality
of the waters of any State or States other than the State in which the
discharge originates,'' the Regional Administrator would notify each
affected State within thirty days of receipt of the application
materials and certification. Id. at 121.13 (2019). If the documents
provided were insufficient to make the determination, the Regional
Administrator could request any supplemental information ``as may be
required to make the determination.'' Id. at 121.12 (2019). In cases
where the Federal licensing or permitting agency held a public hearing
on the objection raised by another State, notice of such objection was
required to be forwarded to the Regional Administrator by the licensing
or permitting agency no later than 30 days prior to the hearing. Id. at
121.15 (2019). At the hearing, the Regional Administrator was required
to submit an evaluation and ``recommendations as to whether and under
what conditions the license or permit should be issued.'' Id.
The 1971 Rule established that the Regional Administrator ``may,
and upon request shall'' provide Federal licensing and permitting
agencies with information regarding water quality standards and advise
them as to the status of compliance by dischargers with the conditions
and requirements of applicable water quality standards. Id. at 121.30
(2019).
Finally, the 1971 Rule established an oversight role for the EPA
when a certifying authority modified a prior certification. The
regulation provided that a certifying authority could modify its
certification ``in such manner as may be agreed upon by the certifying
agency, the licensing or permitting agency, and the Regional
Administrator.'' Id. at 121.2(b) (2019) (emphasis added).
In November 1971, EPA reorganized and transferred several
regulations, including the water quality certification regulations,
into title 40 of the Code of Federal Regulations. EPA subsequently
redesignated the water quality certification regulations twice in the
1970s.\18\ The last redesignation effort was part of a rulemaking that
extensively revised the Agency's NPDES regulations. In the revised
NPDES regulations, EPA addressed water quality certifications on EPA-
issued NPDES permits separately from the 1971 Rule. EPA acknowledged
that the 1971 Rule was ``in need of revision'' because the ``substance
of these regulations predates the 1972 amendments to the Clean Water
Act.'' 44 FR 32880 (June 7, 1979). However, EPA declined to revise the
1971 Rule because it had not consulted the other Federal agencies
impacted by the water quality certification process. Id. at 32856.
Instead, the Agency finalized regulations applicable only to
certification on EPA-issued NPDES permits. Id. at 32880. EPA developed
these regulations, which included a default reasonable period of time
of 60 days, limitations on certification modifications, and
requirements for certification conditions, in response to practical
challenges and issues arising from certification on EPA-issued permits.
Id. Ultimately, despite the changes Congress made to the statutory text
in 1972 and opportunities the Agency had to revisit the regulatory text
during redesignation efforts in the 1970s, EPA did not substantively
change the 1971 Rule until 2020.
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\18\ See 36 FR 22369, 22487 (November 25, 1971), redesignated at
37 FR 21441 (October 11, 1972), further redesignated at 44 FR 32854,
32899 (June 7, 1979).
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2. Development of the 2020 Rule
Executive Order 13868, entitled Promoting Energy Infrastructure and
Economic Growth, directed EPA to propose new regulations governing
section 401 consistent with the policy set forth to encourage greater
investment

[[Page 2015]]

in energy infrastructure in the United States by promoting efficient
Federal licensing and permitting processes and reducing regulatory
uncertainty. 84 FR 13495 (April 15, 2019). EPA issued the proposed rule
on August 22, 2019.\19\ EPA promulgated a final rule on July 13, 2020.
Clean Water Act Section 401 Certification Rule, 85 FR 42210 (July 13,
2020) (``2020 Rule'').
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\19\ Updating Regulations on Water Quality Certifications, 84 FR
44080 (August 22, 2019).
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The 2020 Rule rejected the ``activity as a whole'' scope of
certification review in favor of the ``discharge-only'' approach and
provided guidelines on the appropriate scope of conditions. See 85 FR
42258 (``The scope of certification extends to the scope of conditions
that are appropriate for inclusion in a certification--specifically,
that these conditions must be necessary to assure that the discharge
from a federally licensed or permitted activity will comply with water
quality requirements . . . .''). The 2020 Rule clarified that the
certification requirement was triggered by a point source discharge
from a Federally licensed or permitted activity into ``waters of the
United States,'' and reaffirmed that certifying authorities may
explicitly waive certification. The 2020 Rule also introduced several
new features, including requiring applicants to request a pre-filing
meeting with the certifying authority at least 30 days prior to
requesting certification, and defining the contents of a request for
certification and certification decisions for all certifying
authorities. The 2020 Rule also prohibited a certifying authority from
requesting a project applicant to withdraw and resubmit a certification
request; and removed the certification modification provision from the
1971 Rule.
3. Development of the 2023 Rule
In Spring 2021, EPA reviewed the 2020 Rule in accordance with
Executive Order 13990 and determined that it would propose revisions to
the 2020 Rule through a new rulemaking effort.\20\ The Agency issued a
proposed rule on June 9, 2022.\21\ EPA promulgated a final rule on
September 27, 2023.\22\
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\20\ See Notice of Intention to Reconsider and Revise the Clean
Water Act Section 401 Certification Rule, 86 FR 29541 (June 2,
2021).
\21\ Clean Water Act Water Quality Certification Improvement
Rule, 87 FR 35318 (June 9, 2022).
\22\ Clean Water Act Section 401 Water Quality Certification
Improvement Rule, 88 FR 66558 (September 27, 2023).
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The 2023 Rule retained several aspects of the 2020 Rule, including
when the certification requirement was triggered, pre-filing meeting
requests, and the ability to explicitly waive certification. However,
the 2023 Rule differed from the 2020 Rule in several material respects,
including adopting an ``activity as a whole'' approach to the scope of
certification review, allowing certifying authorities to define
additional components in a request for certification, removing the
regulatory prohibition on certifying authorities requesting the
withdrawal of requests for certification, declining to define required
components for all certification decisions, and reintroducing a
provision on modifications to certification decisions.
4. Review of the 2023 Rule
In early 2025, stakeholders raised questions about multiple
features of the 2023 Rule, including applications of the 2023 Rule's
scope of certification.\23\ As a result, in May 2025, the Agency
released a memorandum titled Clarification regarding Application of
Clean Water Act Section 401 Certification \24\ 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. In the
Memorandum, the Agency announced its intention to publish a Federal
Register notice seeking stakeholder feedback regarding additional areas
of implementation challenges and regulatory uncertainty related to the
2023 Rule to be later addressed through additional guidance or
rulemaking. On July 7, 2025, the EPA published a Federal Register
document \25\ to initiate a series of stakeholder listening sessions
and invite written feedback on multiple topics, including the scope of
certification, the 2023 Rule definition of ``water quality
requirements,'' the Agency's ``may affect'' analysis under CWA section
401(a)(2), and experiences with the 2023 Rule. See Section IV.E of this
preamble for further discussion on pre-proposal stakeholder engagement
and outreach.
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\23\ See supra footnote 1.
\24\ Memorandum from Peggy S. Browne, Acting Assistant
Administrator for Water, Clarification regarding Application of
Clean Water Act Section 401 Certification, May 21, 2025.
\25\ Establishment of Public Docket and Listening Sessions on
Implementation Challenges Associated with Clean Water Act Section
401, 90 FR 29828 (July 7, 2025).
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The Agency reviewed input received on implementation challenges and
regulatory uncertainty associated with the 2023 Rule and determined to
propose revising specific aspects of the 2023 Rule, as discussed in
this preamble. EPA is now proposing revisions to the 2023 Rule to
reflect the best reading of the CWA's statutory text, the legislative
history regarding section 401, to support an efficient and transparent
certification process, and to address stakeholder feedback gathered in
its preliminary engagement and outreach. A decision to revise a
regulation need not be based upon a change of facts or circumstances.
``[A]gencies are free to change their existing policies as long as they
provide a reasoned explanation for the change,' `display awareness that
[they are] changing position,' and consider `serious reliance
interests.' '' FDA v. Wages & White Lion Invs., L.L.C., 145 S. Ct. 898,
917 (2025) (``Wages & White Lion'') (citing Encino Motorcars, LLC v.
Navarro, 579 U.S. 211, 221 (2016) (``Encino'') (quoting FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 515 (2009) (``Fox'')).\26\ A
revised rulemaking based ``on a reevaluation of which policy would be
better in light of the facts'' before the agency is ``well within an
agency's discretion.'' Nat'l Ass'n of Home Builders v. EPA, 682 F.3d
1032, 1038 & 1043 (D.C. Cir. 2012) (citing Fox, 556 U.S. at 514-15).
The Agency's proposal is based in part on additional facts and
considerations raised in stakeholder feedback and will continue to be
informed by additional facts or considerations raised during the public
comment period.
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\26\ Although ``longstanding policies'' may engender ``serious
reliance interests,'' Wages & White Lion, 145 S. Ct. at 918
(citations omitted), the 2023 Rule has been in effect for less than
two years and subject to litigation for most of that time.
Louisiana, et al., v. EPA, No. 2:23-cv-01714 (W.D. La.). Supreme
Court decisions ``have set a much higher bar, requiring, for
example, `decades of industry reliance on [an agency's] prior
policy.' '' Id. at 927 (citing Encino, 579 U. S. at 222) (referring
to another short-term agency policy). However, EPA will consider all
asserted reliance interests raised by commenters.
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In Loper Bright v. Raimondo, 603 U.S. 369 (2024), the Supreme Court
overruled the longstanding Chevron deference doctrine. In Loper Bright,
the Supreme Court emphasized that reviewing courts must ``exercise
independent judgment in determining the meaning of statutory
provisions.'' Id. at 394. To resolve the meaning of disputed statutory
language, a court must adopt the interpretation that the court ``after
applying all relevant interpretive tools concludes is best.'' Id. at
400. When a court reviews an agency's statutory interpretations, Loper
Bright noted that ``courts may . . . seek aid from the interpretations
of those responsible for implementing particular statutes.'' Id. at
394. The Court also recognized that Congress has often enacted statutes
that delegate discretionary authority to agencies, such

[[Page 2016]]

as statutes that empower an agency to prescribe rules to ``fill up the
details'' of a statutory scheme. Id. at 394-95. When the best reading
of a statute is that it delegates discretionary authority to an agency,
reviewing courts ``need only fulfill their obligations under the APA to
independently identify and respect such delegations of authority,
police the outer statutory boundaries of those delegations, and ensure
that agencies exercise their discretion consistent with the APA.'' Id.
at 404.

E. Summary of Stakeholder Outreach

Following the publication of the July 2025 Federal Register notice,
the Agency opened a 30-day recommendations docket beginning on July 7,
2025, and concluding on August 6, 2025. The Agency received over 170
written recommendations from members of the public, which can be found
in the recommendations docket. See Docket ID No. EPA-HQ-OW-2025-0272.
The Federal Register notice requested feedback related to
implementation challenges and regulatory uncertainty related to the
2023 Rule and asked several questions related to the scope of
certification, the definition of ``water quality requirements,'' the
Agency's ``may affect'' analysis under CWA section 401(a)(2), and
experiences with the 2023 Rule. See 90 FR 29828 for the list of
questions for consideration.
EPA also hosted two webinar-based listening sessions open to
States, Tribes, applicants, and the public on July 16 and July 30,
2025, to gain further input. A summary of the verbal input received at
the listening sessions can be found in the docket for this proposed
rulemaking. The Agency also met with stakeholders upon request during
development of the proposed rule. The Agency initiated formal
consultation efforts under Executive Order 13132 on Federalism with
States and Executive Order 13175 on Consultation and Coordination with
Indian Tribal Governments regarding areas of regulatory uncertainty and
implementation challenges associated with the 2023 Rule. The Agency
held an initial federalism consultation meeting on July 22, 2025, and
held an initial Tribal consultation meeting on July 23, 2025.
Consultation ran from June 7, 2025, through September 7, 2025. A
summary of the Tribal consultation and federalism efforts is available
in the docket for this proposed rule. See section VII of this preamble
for further details on the Agency's federalism and Tribal
consultations.
During the consultation period, the Agency participated in virtual
meetings with inter-governmental and Tribal associations, including the
Region 9 Regional Tribal Operations Caucus, the National Tribal Water
Council, the Environmental Council of States, the National Association
of Wetland Managers, the Association of Clean Water Administrators, and
the Western States Water Council. At the listening sessions and other
meetings, EPA sought input on experiences with the 2023 Rule, including
the scope of certification. Stakeholders addressed topics related to
the 2023 Rule's interpretation of the scope of certification and
definition of water quality requirements, the ``may affect'' process
and categorical determinations, and experiences with the implementation
of the 2023 Rule. While some stakeholders stated the 2023 Rule
established clear and transparent processes, other stakeholders
provided recommendations to help improve the overall implementation of
the certification process. Additionally, several themes emerged
throughout this process, including support for ongoing State and Tribal
engagement and recognition of the importance of clarity, consistency,
and effective protection of water resources within the regulatory
framework. The Agency has incorporated relevant input into section V of
this preamble. EPA considered all of this information and stakeholder
input during the development of this proposed rulemaking, including all
recommendations submitted to the docket and through the consultation
process.

V. Proposed Rule

EPA is the primary agency responsible for developing regulations
and guidance to ensure effective implementation of CWA programs,
including section 401. See 33 U.S.C. 1251(d), 1361(a). The Agency is
proposing to revise several procedural and substantive aspects of the
current water quality certification regulations at 40 CFR part 121 to
better align its regulations with the text and legislative history of
the CWA, increase transparency, efficiency, and predictability for
certifying authorities and the regulated community, and to ensure
States and authorized Tribes understand and adhere to their section 401
role. The following sections further explain the Agency's rationale for
the proposed rule. EPA intends for this rulemaking to be informed by
stakeholder input and welcomes comment on all facets of this proposal.
This section of the proposed rule preamble includes seven sub-
sections that each discuss (1) the proposed rule provisions, and (2) a
summary of the Agency's proposed rule rationale. Section V.A of this
preamble discusses the contents of a request for certification. Section
V.B of this preamble discusses two aspects of the timeframe for a
certifying authority's analysis, including extensions to the reasonable
period of time and withdrawal and resubmission of requests for
certification. Section V.C of this preamble discusses the appropriate
scope of certification, including the scope of any certification
conditions. Section V.D of this preamble discusses the required
contents of a certification decision. Section V.E of this preamble
discusses modifications of a certification. Section V.F of this
preamble discusses aspects of the section 401(a)(2) process, including
the contents of a notification, factors the Agency considers in making
a may affect determination, the contents of another State's objection
to the issuance of a Federal license or permit, and the Federal agency
process upon receipt of an objection. Lastly, section V.G of this
preamble discusses the proposed repeal of the provisions for Tribes to
obtain treatment in a similar manner as a State (TAS) for section 401
or section 401(a)(2).
The Agency is not proposing any revisions to the regulations at
subpart C that specifically apply to EPA when it acts as a certifying
authority. However, EPA is seeking comment on whether it should add
regulatory text to limit the duration of the public comment period that
accompanies EPA's public notice on a request for certification.
Consistent with section 401(a)(1), EPA defines its public notice
procedures at 40 CFR 121.17. See 33 U.S.C. 1341(a)(1) (``Such State or
interstate agency shall establish procedures for public notice in the
case of all applications for certification by it and, to the extent it
deems appropriate, procedures for public hearings in connection with
specific applications.''); 88 FR 66626. EPA declined to define the
length of the public comment period and stated it would determine it on
a case-by-case basis but acknowledged that it expected the comment
period generally to be 30 days. 88 FR 66626. EPA is requesting comment
on whether it should codify a comment period of no more than 30 days in
its regulations currently located at 40 CFR 121.17(a).
The Agency is not proposing revisions to subpart E, which provides
that the provisions of 40 CFR part 121 are separate and severable from
one another, and if any provision is stayed or determined to be
invalid, the remaining provisions shall continue in effect. EPA is
proposing to retain this

[[Page 2017]]

regulatory text because EPA continues to view the provisions of 40 CFR
part 121 as severable taking into account the revisions proposed here.

A. Request for Certification

1. What is the Agency proposing?
Under this proposed rulemaking, an applicant must submit a request
for certification to a certifying authority to initiate an action under
CWA section 401. Consistent with the text of the CWA, the proposed rule
provides that the statutory timeline for certification review starts
when the certifying authority receives a request for certification. In
order for a request for certification to start the statutory timeline
for review, it must meet the requirements as defined in this proposed
rule, rather than as defined by the certifying authority. The proposed
40 CFR 121.5 includes a singular enumerated list of documents and
information that must be included in a request for certification for
all Federal licenses or permits, including a copy of the Federal
license or permit application submitted to the Federal agency or a copy
of the draft Federal license or permit; any readily available water
quality-related materials on any potential discharges from a point
source into waters of the United States from the Federally licensed or
permitted activity that informed the development of the application or
draft license or permit; and any additional project information as
proposed in 40 CFR 121.5(c) not already included in the request for
certification.
Under this proposed rulemaking, a request for certification must
include all applicable components to start the statutory clock. In the
interest of ensuring certifying authorities do not ``blur'' the
``bright-line rule regarding the beginning of [the certification]
review'' process, which states that the timeline for a certifying
authority's action regarding a request for certification ``shall not
exceed one year'' after ``receipt of such request,'' the Agency is
proposing to remove the text currently located at 40 CFR 121.5(c) which
allows State and Tribal certifying authorities to define additional
contents in a request for certification, consistent with the Agency's
rulemaking authority. N.Y. State Dep't of Envtl. Conservation v. FERC,
884 F.3d 450, 455-56 (2d Cir. 2018) (``NYSDEC'').
EPA is proposing revisions throughout 40 CFR 121.5 to reflect the
proposed scope of certification. See section V.C of this preamble.
Consistent with this proposed revised scope, the Agency is also
proposing to add a definition for ``discharge'' at 40 CFR 121.1(c) to
clarify that usage of the term throughout 40 CFR part 121 refers to a
discharge from a point source into waters of the United States.\27\
Consistent with this revision, the Agency proposes to delete the text
``from a point source into waters of the United States'' from 40 CFR
121.2 and ``into waters of the United States'' from the definition of
``license or permit'' at 40 CFR 121.1(f) to reduce redundancy in these
provisions. This proposed definition and revision to 40 CFR 121.2 are
consistent with the Agency's longstanding position on the meaning of
the term ``discharge'' for purposes of CWA section 401. See 88 FR
66568, 85 FR 42237.\28\ The Agency welcomes comments on whether the
proposed definition is necessary and addresses concerns related to
clarity as drafted, or whether 40 CFR 121.2 clearly conveys the meaning
of the term discharge for purposes of CWA section 401.
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\27\ The Agency will use the term ``discharge'' throughout the
preamble to refer to point source discharges into waters of the
United States, i.e., the proposed definition of ``discharge'' at 40
CFR 121.1(c), unless use of the full terminology is necessary for
readability and clarity.
\28\ The Agency continues to rely on the definition of ``point
source'' in section 502(14) of the CWA. 33 U.S.C. 1362(14). For
example, courts have concluded that bulldozers, mechanized land
clearing machinery, and similar types of equipment used for
discharging dredge or fill material are ``point sources'' for
purposes of the CWA. See, e.g., Avoyelles Sportsmen's League v.
Marsh, 715 F.2d 897 (5th Cir. 1983); United States v. Larkins, 657
F. Supp. 76 (W.D. Ky. 1987), aff'd, 852 F.2d 189 (6th Cir. 1988).
---------------------------------------------------------------------------

EPA is also proposing to remove the definition of ``project
proponent'' currently located at 40 CFR 121.1(h) and instead leverage
the statutory term ``applicant'' throughout 40 CFR part 121. The term
``project proponent'' does not appear in CWA section 401, and the
Agency believes it is most appropriate to adhere to the statutory text
where, as here, a term has a readily understandable ordinary meaning
reinforced by the surrounding context. The term ``applicant'' as used
in the EPA's proposed regulations, like the text of CWA section 401,
would refer to the applicant for a Federal license or permit that is
subject to CWA section 401 certification. Using the term ``applicant''
throughout 40 CFR part 121 carries this established usage throughout
the regulatory scheme. To be clear, the term ``applicant'' may refer to
the person or entity applying for a Federal license or permit
themselves, contractors or other agents of that person or entity, or
any other entity that may seek certification. The Agency is also
proposing additional revisions to 40 CFR 121.5 to remove redundant
provisions and further streamline the contents of a request for
certification.
Ultimately, these proposed revisions would provide greater
certainty for applicants, certifying authorities, and Federal agencies
concerning when the reasonable period of time for review of a request
for certification has started.
2. Summary of Proposed Rule Rationale
The Act places the burden on the applicant to obtain a CWA section
401 certification from a certifying authority in order to receive a
Federal license or permit. The CWA section 401 certification process
begins on the date when the certifying authority receives a request for
certification. The statute limits the time for a certifying authority
to act on a request as follows:

If the State, interstate agency, or Administrator, as the case
may be, fails or refuses to act on a request for certification,
within a reasonable period of time (which shall not exceed one year)
after receipt of such request, the certification requirements of
this subsection shall be waived with respect to such Federal
application.

33 U.S.C. 1341(a)(1) (emphasis added). The plain language of the Act
requires that the reasonable period of time to act on certification not
exceed one year after the ``receipt'' of the ``request for
certification.'' The statute, however, does not define those terms. As
the agency that Congress charged with administering the CWA,\29\
Congress empowered EPA ``to prescribe rules to `fill up the details' of
a statutory scheme.'' Loper Bright, 603 U.S. 369, 395 (2024) (noting
that in such circumstances, an ``agency is authorized to exercise a
degree of discretion'') (citation omitted). In defining the terms
``receipt,'' at 40 CFR 121.6(a), and ``request for certification,'' at
40 CFR 121.5, EPA is ``filling up the details'' of the CWA section 401
certification process. See 33 U.S.C. 1361(a) (``The Administrator is
authorized to prescribe such regulations as are necessary to carry out
his functions under this chapter.'').
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\29\ See footnote 14.
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In 2018, the Second Circuit addressed the question of when the
statutory review clock begins. NYSDEC, 884 F.3d at 455-56. The
certifying authority in the case, NY State Department of Environmental
Conservation, ``contend[ed] that the review process under Section 401
begins only once it, a state agency, deems an application `complete.'
'' Id. at 455. The court disagreed and held that the statutory time
limit is not triggered when a certifying authority determines that a
request for certification is ``complete,''

[[Page 2018]]

but that the ``plain language of Section 401 outlines a bright-line
rule regarding the beginning of review,'' and that the clock starts
after ``receipt of such request'' by the certifying authority. Id. at
455-56. Otherwise, the court noted that State certifying authorities
could ``blur this bright-line into a subjective standard, dictating
that applications are complete only when state agencies decide that
they have all the information they need. The state agencies could thus
theoretically request supplemental information indefinitely.'' Id. at
456.
Under the current regulations, the Agency defined the minimum
contents in all requests for certification and allowed State and Tribal
certifying authorities to define additional contents of a request for
certification. 40 CFR 121.5(a), (c). In the July 2025 Federal Register
publication, the Agency asked stakeholders for any data or information
on their experiences with the 2023 Rule, including certification
procedures. 90 FR 29829. Several stakeholders, including some
certifying authorities, supported the current regulation's approach to
the request for certification, asserting that it provided certifying
authorities with the necessary information to make a certification
decision and reduced the time in the certification process. Conversely,
several industry stakeholders expressed concern that the current
regulation's authorization for State and Tribal certifying authorities
to add additional contents could lead to uncertainty about when the
reasonable period of time began.
Given the large number of requests for certification submitted each
year,\30\ the statutory requirement that those requests be acted on
``within a reasonable period of time (which shall not exceed one year)
after receipt of such a request,'' and the potential for uncertainty or
delays associated with the absence of a nationally consistent
definition for request for certification, the EPA is proposing to
standardize the contents of a ``request for certification'' to provide
applicants, certifying authorities, and Federal agencies with clear
regulatory text identifying when the statutory reasonable period of
time begins.
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\30\ See section 3 of the Economic Analysis.
---------------------------------------------------------------------------

The Agency is proposing to revise 40 CFR 121.5 to define one
complete list of components for all requests for certification.
Consistent with the existing regulatory requirements, all requests must
be in writing, signed, and dated by the applicant. The proposed
regulatory text retains the minimum components currently included in
all requests for certification, e.g., a copy of the Federal license or
permit application, with structural revisions to consolidate these
requirements into one list instead of bifurcating between individual
and general licenses or permits, and additional revisions to ensure
consistency across the proposed regulatory text. The proposed text also
identifies additional project information for inclusion in a request
for certification that is similar to the current default list of
additional components, with revisions to further streamline and clarify
the contents of a request.
As discussed in more detail below, the Agency believes these are
the components that would be necessary to provide a certifying
authority with clear notice that a request has been submitted and a
sufficient baseline of information for the certifying authority to
begin its review. It is important to distinguish between the amount of
information appropriate to start the certifying authority's reasonable
period of time and the amount of information that may be necessary for
the certifying authority to take final action on a request for
certification. The components of a request for certification identified
in the proposed rule--including a copy of the Federal license or permit
application or draft license or permit and any readily available water
quality-related materials on any potential discharges from the
Federally licensed or permitted activity that informed the development
of the application or draft license or permit--are intended to be
sufficient information to start the reasonable period of time but may
not necessarily represent the totality of information a certifying
authority may need to act on a request. Nothing in the proposed rule
would preclude an applicant from submitting additional relevant
information or preclude a certifying authority from requesting and
evaluating additional information within the reasonable period of time.
However, the Agency expects any additional information requested by the
certifying authority to relate to the discharge, consistent with the
proposed scope of certification at 40 CFR 121.3, because any decision
must include a statement that the discharge will comply with water
quality requirements. See Section V.D of this preamble for further
discussion on the contents of a certification decision.
The Agency is proposing to retain the requirement that all requests
for certification include either a copy of the Federal license or
permit application submitted to the Federal agency (for an individual
license or permit), or a copy of the draft Federal license or permit
(for a general license or permit) \31\. This means that a request for
certification could not precede submission of an application to the
Federal agency (for individual licenses or permits), providing
applicants and others with clear direction on when the certification
process begins in relation to the Federal licensing or permitting
process. Furthermore, this would be consistent with several Federal
agency practices that allow applicants to submit requests for
certification shortly after the license or permit application is
received. See, e.g., 18 CFR 5.23 (requiring a FERC hydropower license
applicant to file a copy of a water quality certification, request for
certification, or evidence of a waiver ``within 60 days from the date
of issuance of the notice of ready for environmental analysis''); 33
CFR 325.2(b)(1) (requiring a Corps district engineer to notify the
applicant if they determine that a water quality certification is
necessary in processing an application).
---------------------------------------------------------------------------

\31\ The Agency notes that the draft Federal license or permit
required in a request for certification on the issuance of a general
license or permit refers to the draft used at the time of the
request for certification.
---------------------------------------------------------------------------

The Agency is also proposing that all requests for certification
include any readily available water quality-related materials on any
potential discharges from the Federally licensed or permitted activity
that informed the development of the application or the draft license
or permit. This information is similar to the existing requirement
currently located at 40 CFR 121.5(a)(1)(ii) and (a)(2)(ii), with
revisions to ensure the information is appropriately limited and
related to the potential discharges, consistent with proposed revisions
to the scope of certification. See Section V.C of this preamble. The
term ``readily available'' refers to existing materials that are in the
applicant's possession or easily obtainable.\32\ The phrase ``that
informed development of the application or the draft license or
permit'' refers to materials that were considered by the applicant
during its development of the application or draft license or permit.
These terms provide a predictable, objective endpoint for applicants
because they are limited to data or information existing at the time
of, and that was used in, the development of the Federal license or
permit application or the draft Federal license or permit. This
information may also reduce the need for duplicative

[[Page 2019]]

studies and analyses during the certification process. Consistent with
the scope of review under this proposed rule, the proposed rule would
limit any such materials to ``water quality-related materials on any
potential discharges.'' Accordingly, applicants may redact or exclude
personally identifiable information (e.g., personal addresses, personal
finance information) and/or other sensitive information.
---------------------------------------------------------------------------

\32\ For example, this could include maps, studies, or a
reference to a website or literature that contain information that
the applicant considered during the development of the application
or draft license or permit.
---------------------------------------------------------------------------

The components proposed at 40 CFR 121.5(a) and (b) should be
familiar to stakeholders and provide a reasonable baseline of
information to initiate the certification process, including
information on the project and its discharge-related water quality
impacts. However, in the event a Federal license or permit application
or draft Federal license or permit does not include certain baseline
information on discharge-related water quality impacts, the Agency is
proposing five additional components for inclusion in a request for
certification to ensure all requests for certification include the same
predictable, baseline information. To ensure the additional information
is not duplicative of the proposed components at 40 CFR 121.5(a) and
(b), the proposed regulatory text specifies that such additional
information is only required if not already included in the request for
certification. For example, if the Federal license or permit
application already includes a map or diagram of the proposed
discharges from the Federally licensed or permitted activity, the
applicant would not be required to submit a second copy of the map or
diagram. To ensure the certifying authority understands where these
components are located in a request for certification, the Agency
observes that the applicant could simply indicate where the components
identified in proposed 40 CFR 121.5(c) are already included in the
materials proposed at 40 CFR 121.5(a) and (b). The proposed additional
components are based on the current regulatory text that applies to EPA
when it acts as a certifying authority or when a State or Tribe does
not define additional components in a request for certification with
revisions. 40 CFR 121.5(b), (d). Based on the Agency's experience,
these proposed components are those that are necessary to initiate a
certifying authority's analysis on a request for certification. The
following paragraphs discuss these additional components.
The Agency is proposing to require additional components related to
the location and type of discharges from a Federally licensed or
permitted activity at 40 CFR 121.5(c)(1)-(4). These additional
components, including a description of the proposed discharges, the
specific location of any discharges, a map or diagram of the proposed
discharges, and a description of current site conditions, are similar
to those in the 2020 Rule, see 40 CFR 121.5(b)(4) (2020), and the
current regulation, see 40 CFR 121.5(b)(1)-(4), with revisions to
ensure the information is appropriately limited and related to the
potential discharges, consistent with proposed revisions to the scope
of certification. See section V.C of this preamble. The Agency
recognizes that some of these components may not be appropriate for a
Federal agency seeking CWA section 401 certification for the issuance
of general license or permit. For example, at the time of
certification, a Federal agency may not know the location of every
potential discharge that may in the future be covered under a general
license or permit. Accordingly, the Agency has proposed regulatory text
at 40 CFR 121.5(c) to clarify that additional project information only
needs to be included in a request for certification ``as applicable.''
Consistent with prior regulations, the Agency is proposing that
applicants must provide documentation that a pre-filing meeting request
was submitted to the certifying authority in accordance with applicable
submission procedures (unless the pre-filing meeting request was
waived) at 40 CFR 121.5(c)(5). This provision is intended to create
additional accountability on the part of the applicant to ensure that
the applicant has complied with the requirement to request a pre-filing
meeting with the certifying authority. If the certifying authority
waives the requirement for a pre-filing meeting request, then the
applicant would not need to produce documentation of the pre-filing
meeting request.
The Agency is proposing to remove the additional contents currently
required at 40 CFR 121.5(b)(5) and (6). 40 CFR 121.5(b)(5) requires the
applicant to include ``[t]he date(s) on which the proposed activity is
planned to begin and end and, if known, the approximate date(s) when
any discharge(s) may commence,'' while 40 CFR 121.5(b)(6) requires the
applicant to include ``[a] list of all other Federal, interstate,
Tribal, state, territorial, or local agency authorizations required for
the proposed activity and the current status of each authorization.''
While this information may be helpful to certifying authorities as they
develop certification decisions, this information may not be available
at the time the applicant submits a request for certification, or at
all in the case of the issuance of general permits. See 88 FR 66580
(discussing the lack of information on other authorizations at the time
of a request for certification on the issuance of a general permit).
Certifying authorities would be free to leverage the pre-filing meeting
or other communications with the applicant to discuss related items, to
the extent they are relevant to the certifying authority's analysis,
including work windows and any expected authorizations. The Agency
requests comment on the proposed contents of a request for
certification, including whether the Agency should further revise the
required components proposed at 40 CFR 121.5.
EPA proposes to remove the text currently located at 40 CFR
121.5(c) which allows State and Tribal certifying authorities to define
additional contents in a request for certification. The court in NYSDEC
held that the reasonable period of time begins after receipt of a
request for certification and not when the certifying authority deems
it ``complete.'' 88 FR 66574. The 2023 Rule asserted that NYSDEC did
not address the separate question of whether EPA or certifying
authorities have the authority to establish a list of required contents
for a request in advance of the request and opted to allow State and
Tribal certifying authorities the ability to add additional
requirements to a request for certification. Id. at 66577. After
considering stakeholder input, the Agency has determined that EPA, and
not certifying authorities, has the authority to establish a list of
contents for a request for certification. Accordingly, the Agency is
proposing to define one list of contents for all requests for
certification to reduce uncertainty and enable applicants and
certifying authorities to objectively and transparently understand
which submittals start the reasonable period of time clock.
As an initial matter, the approach taken in the current regulation
is not compelled by either the statutory text or NYSDEC. The Agency
does not find that defining an exclusive list would delay or hinder the
certification process. Rather, the Agency finds the current regulatory
approach could introduce uncertainty and delays where certifying
authorities fail to transparently and objectively convey the additional
required contents of a request, including requesting information
unrelated to certification of project-related discharges, leading
certifying authorities to ``blur this bright-line into a subjective
standard,'' NYSDEC, 884 F.3d at 456, contrary to the holding in NYSDEC
and the statutory text. As discussed above, nothing in the proposed
rule would

[[Page 2020]]

preclude an applicant from submitting additional relevant information
or preclude a certifying authority from requesting and evaluating
additional information within the reasonable period of time. Indeed, in
many cases it may be in the interest of the applicant and provide a
more efficient certification process if relevant information about
discharges and potential impacts to the receiving waters is provided to
the certifying authority early in the certification process. The Agency
also observes that the applicants and certifying authorities could use
the pre-filing meeting process to discuss the proposed project and to
determine what information (if any), in addition to that required to be
submitted as part of the request, may be needed to enable the
certifying authority to take final action on the request in the
reasonable period of time.
The EPA acknowledges the desire of certifying authorities to have
all necessary information as soon as possible in the certification
process, but the Agency must balance that desire against the need for
transparency related to when the reasonable period of time starts and
the need for certainty regarding the required contents of a request for
certification. The Agency finds that its proposed rule would strike the
appropriate balance by identifying the kinds of information that
provide a reasonable baseline about any project while recognizing the
ability of certifying authorities and applicants to request and provide
additional information both before and after the reasonable period of
time clock starts.
It is important to reiterate that the burden is on the applicant to
submit a request for certification to the certifying authority and work
cooperatively to provide additional information as appropriate to
facilitate the certification process. Likewise, the burden is on the
certifying authority to evaluate the request for certification in good
faith and to request information, documents, and materials that are
within the scope of section 401 as provided in this proposed rule and
that can be produced and evaluated within the reasonable period of
time. If an applicant fails to supply the certifying authority with
information necessary to assure that the discharge from the proposed
project complies with the water quality requirements, the certifying
authority may so specify in a denial of the certification. If the
certifying authority requests information from the applicant that is
beyond the scope of section 401, the applicant's remedy would lie with
a court of competent jurisdiction. To avoid situations where the
certifying authority requests information from applicants that cannot
be developed and submitted within the reasonable period of time, the
EPA recommends that both the applicant and the certifying authority
work in good faith, consistent with CWA section 401, and have early and
sustained coordination and communication to streamline the overall
certification process. The Agency requests comment on the proposed
approach to remove the text currently located at 40 CFR 121.5(c) which
allows State and Tribal certifying authorities to define additional
contents in a request for certification.
Consistent with proposed revisions to define one list of components
for all requests for certification, the Agency is proposing to remove
40 CFR 121.5(d), which directed applicants to provide defined
additional contents in a request for certification if the State or
Tribal certifying authority had not established its own list of
requirements for a request for certification. This provision is
unnecessary and redundant in light of the proposed requirements at 40
CFR 121.5(a)-(c). As noted above, the proposed components provide
familiar regulatory text with clear direction for stakeholders
regarding what is required in a request for certification that begins
the statutory reasonable period of time. The Agency sees value in
proposing to define components that are objective and do not require
subjective determinations by a certifying authority about whether the
request submittal requirements have been satisfied. Pursuant to 40 CFR
121.6(a), which would remain unchanged from the current regulations,
the reasonable period of time begins on the date that the certifying
authority receives a request for certification as defined in 40 CFR
121.5 (and in accordance with the certifying authority's applicable
submission procedures). Thus, a request for certification must include
all components listed in 40 CFR 121.5 of the proposed rule to start the
statutory reasonable period of time. If any of the components of
proposed 40 CFR 121.5 are missing from the request, the statutory
reasonable period of time would not start. The inclusion of the
proposed information would provide the certifying authority with clear
notice that the applicant has submitted a request for certification and
a sufficient baseline of information to allow it to begin its
evaluation in a timely manner. If there are additional information
needs aside from the proposed components provided in a request for
certification, the certifying authority and applicant could discuss
those needs during the pre-filing meeting (i.e., discuss anticipated
additional information needs prior to the request for certification
submittal) or during the reasonable period of time (i.e., discuss
additional information needs that emerged during the certifying
authority's analysis of the request). The regulatory requirement that
requests be received ``in accordance with applicable submission
procedures'' should not be used by certifying authorities to introduce
unreasonable delay between when a certifying authority receives a
request and when ``receipt'' occurs, as this would contravene this
proposed rule.
Finally, the Agency is proposing to remove the definition of
``project proponent'' at 40 CFR 121.1(h) and revise corresponding
regulatory language throughout 40 CFR part 121 to use the statutory
term ``applicant.'' CWA section 401 applies to any ``applicant for a
Federal license or permit to conduct any activity . . . which may
result in any discharge into the navigable waters.'' 33 U.S.C.
1341(a)(1). Such an ``applicant . . . shall provide the licensing or
permitting agency a certification from'' the relevant certifying
authority. Id. The remainder of the statute carries through this basic
applicability language--the CWA section 401(a)(2) provision triggers
``[u]pon receipt of such application and certification,'' id.
1341(a)(2), and any certification must include conditions ``necessary
to assure that any applicant for a Federal license or permit will
comply'' with applicable water quality requirements. Id. 1341(d). The
term ``project proponent'' does not appear in CWA section 401 or any
related provisions. The term ``applicant'' is most consistent with the
statutory text and would also improve the clarity and administrability
of the regulatory provisions intended to implement the statute.
In light of this revision, and in light of the statutory text of
CWA section 401 discussed above, which requires an ``applicant for a
Federal license or permit'' to request certification and otherwise
carries through this basic applicability language, the EPA also
requests comment on whether the best reading of the statute supports
extending the CWA section 401 certification requirement to general
permits, even in the absence of an ``applicant.'' See Loper Bright, 603
U.S. at 400. EPA's position, as reflected in the current regulation
(and the prior 2020 Rule), is that CWA section 401 certification ``is
not limited to individual Federal licenses or permits, but also extends
to general licenses and

[[Page 2021]]

permits such as CWA section 404 general permits . . . and CWA section
402 general permits[.]'' 88 FR 66570; see also 85 FR 42243 (noting the
definition of ``project proponent'' ``extends all of the substantive
and procedural requirements [of the 2020 Rule] to federal agencies
seeking certification for a general license or permit.''). In taking
this position, the Agency previously asserted that ``both case law and
prior Agency rulemakings and guidance recognize that general Federal
licenses or permits are subject to section 401 certification.'' 88 FR
66571 (citing, inter alia, United States v. Marathon Dev. Corp., 867
F.2d 96, 100 (1st Cir. 1989)); 85 FR 42285-86. By defining ``project
proponent'' to include ``the applicant for a Federal license or permit,
or the entity seeking certification,'' 40 CFR 121.1(h) (emphasis
added), the EPA sought for the regulation to include, as a categorical
matter, general permits and other instances of non-applicants
requesting certification. However, general permits do not involve an
``applicant,'' such as the issuance of nationwide and regional general
permits for dredged and fill material issued by the Corps pursuant to
an express grant of statutory authority in CWA section 404(e), 33
U.S.C. 1344(e). There are also instances where individual projects do
not involve an ``application,'' such as Corps' civil works projects,
but the Federal agency still requires a certification. See 33 CFR
336.1(a)(1) (``The CWA requires the Corps to seek state water quality
certification for discharges of dredged or fill material into waters of
the U.S.''); 33 CFR 335.2 (``[T]he Corps does not issue itself a CWA
permit to authorize Corps discharges of dredged material or fill
material into U.S. waters but does apply the 404(b)(1) guidelines and
other substantive requirements of the CWA and other environmental
laws.''). The Agency requests comment on whether the best reading of
section 401 extends the certification requirement even to those
situations where there are no ``applicants,'' but there nevertheless is
a potential for a point source discharge from a Federally licensed or
permitted activity into waters of the United States. The Agency also
seeks comment on whether reliance interests exist for the Agency's
prior statements regarding the applicability of CWA section 401 in the
absence of applicants, and, if so, how the Agency should weigh them
against returning to the plain language of the statute. The EPA notes
that this alternative approach would not be intended to alter the scope
of permits to which CWA section 401 applies of its own force.

B. Timeframe for Certification Analysis and Decision

1. What is the Agency proposing?
Section 401(a)(1) of the CWA provides that a certifying authority
waives its ability to certify a Federal license or permit if it does
not act on a request for certification within the reasonable period of
time. 33 U.S.C. 1341(a)(1) (``If the State, interstate agency, or
Administrator, as the case may be, fails or refuses to act on a request
for certification, within a reasonable period of time (which shall not
exceed one year) after receipt of such request, the certification
requirements of this subsection shall be waived with respect to such
Federal application.''). As discussed in further detail below, the
Agency is proposing to repeal the provision allowing for automatic
extensions to the reasonable period of time to accommodate a certifying
authority's public notice procedures and force majeure events and
instead rely on the joint extension process. Furthermore, the Agency is
proposing regulatory text to bar certifying authorities from requesting
applicants to withdraw a request for certification to avoid exceeding
the reasonable period of time.
2. Summary of Proposed Rule Rationale
i. Extensions to the Reasonable Period of Time
Under this proposed rulemaking, the EPA is removing the provision
at 40 CFR 121.6(d) that allows for automatic extensions to the
reasonable period of time if a longer period of time was necessary to
accommodate the certifying authority's public notice procedures or
force majeure events. The current regulations identify two
circumstances that would require an extension to the reasonable period
of time: (1) where a certification decision cannot be rendered within
the negotiated or default reasonable period of time due to force
majeure events (including, but not limited to, government closure or
natural disasters); and (2) when State or Tribal public notice
procedures necessitate a longer reasonable period of time. 40 CFR
121.6(d).
In response to EPA's July 2025 request for stakeholder feedback,
several industry stakeholders were not supportive of the extension
provisions under the 2023 Rule arguing that State processes (i.e.,
public notice procedures) should not override the agreed upon
reasonable period of time. Further, one industry stakeholder added that
the certifying authority should not be allowed to extend the reasonable
period of time and instead the Federal agency should do so only at the
request of the applicant. On the other hand, several State, Tribal, and
public stakeholders supported extensions of the six-month default
period where necessary.
Upon reconsideration, the Agency finds that automatic extensions
which accommodate the certifying authority's public notice procedures
or force majeure events are unnecessary. As an initial matter, the
certifying authority and Federal agency can discuss the certifying
authority's public notice procedures when jointly setting and agreeing
to the reasonable period of time. See 88 FR 66586 (discussing factors
Federal agencies and certifying authorities may consider in setting the
reasonable period of time, including the certifying authority's
administrative procedures). Since administrative procedures, like
public notice procedures, should be established and readily
predictable, EPA encourages the creation of memorandums of agreement
(MOAs) between Federal agencies and certifying authorities as
appropriate to help reduce the need for determining the reasonable
period of time on a case-by-case basis for every request. Likewise,
certifying authorities and Federal agencies can agree to extend the
reasonable period of time, not beyond one year, as necessary to address
unforeseen events like extensions to the public notice process or force
majeure events, and develop MOAs to standardize the process in such
scenarios.
Aside from being able to jointly set and extend the reasonable
period of time, the Agency also finds the automatic extensions
unnecessary in light of the default reasonable period of time. The
reasonable period of time defaults to six months if the certifying
authority and Federal agency cannot jointly agree to a reasonable
period of time. 40 CFR 121.6(c). The Agency is unaware of any
implementation issues with the default reasonable period of time and
meeting public notice requirements. In any case, the Agency expects
Federal agencies and certifying authorities to negotiate and
collaborate on setting the reasonable period of time and any extensions
in good faith.
Considering these other aspects of the existing regulations for
setting and extending the reasonable period of time, the Agency finds
the automatic extension provision to be duplicative and anticipates
that the proposed approach would provide clarity and added
predictability to the certification

[[Page 2022]]

timeline. The Agency is requesting comment on the proposed approach.
ii. Withdrawal and Resubmittal
The EPA is proposing to add regulatory text in 40 CFR 121.6(e)
providing that the certifying authority may not request the applicant
to withdraw a request for certification or take any action to extend
the reasonable period of time other than specified in proposed 40 CFR
121.6(d), which provides that any extension ``shall not cause the
reasonable period of time to exceed one year from the date that the
request for certification was received.'' As described in greater
detail below, this proposed language is consistent with the plain
statutory text of CWA section 401(a)(1) providing that the reasonable
period of time shall not exceed one year and is further supported by
the legislative history and body of case law addressing withdrawal and
resubmission of certification requests. Moreover, as discussed below,
this proposed approach addresses concerns raised by stakeholders in
pre-proposal outreach seeking regulatory clarity regarding withdrawal
and resubmission.
Although CWA section 401(a)(1) does not address withdrawal and
resubmission expressly, the plain text provides that the reasonable
period of time upon which a certifying authority may act on a request
for certification ``shall not exceed one year.'' This language
unequivocally sets the maximum limit of the reasonable period of time
to act on a request for certification as one year and does not provide
for exceptions to this restriction. As the Court of Appeals for the
D.C. Circuit correctly observed, through this text, ``Congress plainly
intended to limit the amount of time that a State could delay a federal
licensing proceeding without making a decision on the certification
request.'' Alcoa Power Generating Inc. v. FERC, 643 F.3d 963, 972,
(D.C. Cir. 2011). This purpose is clearly documented in the legislative
history for CWA section 401. The Conference Report on Section 401
identifies that the purpose of the one-year maximum time limit is to
ensure that ``sheer inactivity by the State . . . will not frustrate
the Federal application.'' H.R. Rep. 91-940, at 56 (1970), reprinted in
1970 U.S.C.C.A.N. 2741. Allowing a certifying authority to circumvent
the set maximum period of time to act on a request for certification,
either by requesting that an applicant withdraw and resubmit the
request for certification or otherwise extending the reasonable period
of time beyond a year, conflicts with the plain statutory language and
statutory purpose of precluding a certifying authority from thwarting a
project through continued inaction. Thus, the proposed text recognizes
the one-year maximum and ensures that certifying authorities do not
request withdrawal and resubmission to evade this restriction.
The proposed approach is consistent with the body of case law
addressing withdrawal and resubmission of certification requests, which
recognizes that certifying authorities may not use withdrawal and
resubmission to extend the one-year maximum on the reasonable period of
time to act on a request for certification in section 401. In Hoopa
Valley Tribe v. FERC, 913 F.3d 1099, 1104 (D.C. Cir. 2019), the Court
of Appeals for the D.C. Circuit held that State certifying authorities
had improperly entered into an agreement with an applicant whereby the
``very same'' request for certification of its relicensing application
was automatically withdrawn and resubmitted every year by operation of
``the same one-page letter,'' submitted to the certifying authorities
before the statute's one-year waiver deadline. Hoopa Valley Tribe v.
FERC, 913 F.3d 1099, 1104 (D.C. Cir. 2019). The court found that under
the coordinated ``withdrawal-and-resubmission scheme,'' the certifying
authorities had not rendered a certification decision for ``more than a
decade'' after the initial request was submitted to them, and that such
``deliberate and contractual idleness'' defied the statute's one-year
limitation. Id. In its analysis, the court found that ``[s]uch an
arrangement does not exploit a statutory loophole,'' but rather
impermissibly circumvents the congressionally granted authority of the
Federal agency licensing the project. Id. Specifically, the court
reasoned that such a scheme ``could be used to indefinitely delay
federal licensing proceedings,'' thereby undermining the authority of
the Federal licensing agency to regulate such matters. Id.
Case law surrounding withdrawal and resubmission has continued to
develop since the limitation identified in Hoopa Valley Tribe.
Subsequent to its decision in Hoopa Valley Tribe, the Court of Appeals
for the D.C. Circuit distinguished unilateral withdrawals initiated by
an applicant as distinct from the impermissible withdrawal-and-
resubmission scheme at issue in Hoopa Valley Tribe, finding that
``where a party unilaterally withdraws and resubmits its certification
application, those actions outside of the State's control do not waive
its statutory authority.'' Vill. of Morrisville v. FERC, 136 F.4th
1117, 1127 (D.C. Cir. 2025). In drawing this distinction, the court
noted that its decision in Hoopa Valley Tribe centered on a mutual
agreement between a State certifying authorities and the applicant to
circumvent the one-year maximum limit of the reasonable period of time
and delay the certification process, and the court explained that the
``evidence of the State's decision to delay was central to [the
court's] holding'' in that case. Id. Consistently, the Fourth and Ninth
Circuit Courts of Appeals have declined to find that agency records
support finding impermissible withdrawal-and-resubmission schemes where
such records demonstrate unilateral withdrawal initiated by an
applicant, even where there has been acquiescence to the withdrawal by
a certifying authority. See N.C. Dep't of Envtl. Quality v. FERC, 3
F.4th 655, 675 (4th Cir. 2021); Cal. State Water Res. Control Bd. v.
FERC, 43 F.4th 920, 931-32 (9th Cir. 2022).
The proposed regulatory text in 40 CFR 121.6(e) is consistent with
this body of case law regarding withdrawal and resubmission, as it
recognizes the impermissibility of a certifying authority applying
withdrawal and resubmission to evade the statutory one-year maximum
reasonable period of time to act on a request for certification, as
addressed in Hoopa Valley Tribe, without precluding unilateral
withdrawal initiated by an applicant found to be permissible in
subsequent cases. This regulatory provision also does not preclude a
certifying authority from acting within the statutory one-year maximum
reasonable period of time to deny a request for certification without
prejudice, which the Court of Appeals for the D.C. Circuit has
distinguished from the withdrawal-and-resubmittal scheme at issue in
Hoopa Valley Tribe and has recognized involves action from the
certifying authority within the meaning of section 401 on a
certification request. See Turlock Irrigation Dist. v. FERC, 36 F.4th
1179, 1183 (D.C. Cir. 2022).
The Agency's proposed approach addresses concerns raised by
multiple stakeholders in response to the EPA's July 2025 request for
stakeholder feedback regarding the lack of clarity under the current
regulations regarding circumstances under which withdrawal and
resubmission is impermissible. Rather than proposing an intent-based
standard to evaluate the objectives of a certifying authority regarding
withdraw and resubmission, which would likely prove difficult to apply
and would not provide regulatory certainty for certifying authorities
or industry, EPA's proposed approach provides a clear, bright-line
limitation on certifying

[[Page 2023]]

authorities requesting an applicant withdraw a request for
certification or otherwise taking action to extend the reasonable
period of time beyond the one-year statutory maximum.
EPA seeks comment on its proposed text in 40 CFR 121.6(e),
including but not limited to whether the proposed approach sufficiently
addresses the regulatory uncertainty surrounding withdrawal and
resubmission identified by stakeholders in feedback received in
response to the Agency's July 2025 request.

C. Appropriate Scope for Section 401 Certification Review

1. What is the agency proposing?
The proposed rule would narrow the current regulation's broad
``activity''-based scope of certifying authority review to what
Congress clearly intended: an assessment of whether a facility's point
source discharges \33\ into waters of the United States will comply
with specified water quality requirements. To explain this fundamental
change in overall scope of review, this section will explain the
history of EPA's interpretations, why the Agency chose to address the
issue again in this rulemaking, and most importantly, the basis for the
proposed new interpretation. Lastly, the preamble turns to other
changes the Agency proposes to correct, related to the definition of
``water quality requirements'' and the scope of waters subject to
certification.
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\33\ See footnote 27.
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i. The History of EPA's Interpretation of Scope
The proposed rule is the Agency's fourth interpretation regarding
the scope of water quality certification since 1971. EPA first issued
regulations addressing water quality certification in 1971,
implementing a version that predated the modern CWA enacted in 1972
including the current CWA section 401. The 1971 Rule included language
that was consistent with the statute at that time, indicating that the
scope of certification prior to the modern CWA extended to the entire
``activity'' at issue in the Federal license or permit. In 1972,
Congress amended the CWA and required certifying authorities to certify
that ``any such discharge shall comply'' with certain provisions of the
CWA. EPA did not revise its 1971 Rule following those amendments. In
1994, the Supreme Court reviewed EPA's 1971 Rule under the Chevron
framework, whereby courts deferred to agency interpretations of
ambiguous provisions of statutes the agency implements so long as they
were reasonable. PUD No. 1 of Jefferson County v. Washington Department
of Ecology, 511 U.S. 700 (1994) (``PUD No. 1''). The Court upheld EPA's
1971 interpretation as reasonable. Id. at 712.
As for the more recent interpretations in 2020 and 2023, they were
made under an evolving and progressively unclear landscape for judicial
interpretation wherein courts, including the Supreme Court, were
reducing reliance on, or calling into question, Chevron deference.
Against this backdrop, the 2020 Rule analyzed the statute under Chevron
(which was applicable at the time) and adopted an interpretation
largely consistent with this proposal. The 2023 Rule subsequently
reversed the 2020 interpretation to largely return to the
interpretation upheld by the Supreme Court in PUD No 1. The Agency did
not cite Chevron, but in the absence of any other applicable framework,
instead relied heavily on the PUD No. 1 precedent and interpretive
tools.
ii. Reevaluation of the 2023 Rule Interpretation
In June 2024, the Supreme Court issued its decision in Loper
Bright, 603 U.S. 369, overruling Chevron and announcing a new framework
for judicial review that largely eliminates judicial deference to
administrative agencies regarding statutory interpretation, demanding
instead that statutory interpretations be based on the ``best reading''
of the statute, starting with the language of the statute and using
other traditional tools of statutory construction where appropriate.
With the benefit of this direction from the Supreme Court, the Agency
has reevaluated CWA section 401's language, structure, and history and
concluded that CWA section 401 clearly limits the certification
analysis to ensuring that any point source discharge into waters of the
United States from a federally licensed or permitted activity will
comply with appropriate and applicable water quality requirements. The
2023 Rule interpretation underpinning the current regulation does not
reflect this best reading of the statute. This presents the Agency with
a compelling reason to update its interpretation and, consequently, its
regulations. EPA's proposal also reflects public feedback regarding
uncertainty associated with the 2023 Rule provisions regarding the
scope of certification.
2. Summary of Proposed Rule Rationale
EPA is proposing the following regulatory text at 40 CFR 121.3
regarding the scope of certification:

The scope of a Clean Water Act section 401 certification is
limited to assuring that a discharge from a federally licensed or
permitted activity will comply with applicable and appropriate water
quality requirements.

Under the new definition of ``discharge,'' the discharge in this
section is further limited by the fact that the discharge must be a
discharge from a point source into ``waters of the United States.''
This section first explains why EPA's proposal is supported by the
statutory text of CWA section 401, the history of the CWA and, in
particular, the 1972 amendments to the Act, and related legislative
history. After reviewing the statutory text and 1972 amendments, this
section then discusses the Supreme Court's decision in PUD No. 1
regarding the scope of certification including the Court's discussion
of CWA section 401(d). The section then turns to EPA's proposed
definition of ``water quality requirements'' and EPA's related proposed
interpretation of the statutory phrase ``other appropriate requirement
of State law;'' and finally to EPA's proposed approach to which waters
a certifying authority considers when acting on a request for
certification (referred to as ``scope of waters'' below).
i. The CWA Limits the Scope of Section 401 Certifications to
``Discharges''
The best reading of the text of CWA section 401 limits scope of
certification to ``discharges'' and not to the ``activity.'' The first
sentence in CWA section 401(a)(1) provides that ``[a]ny applicant for a
Federal license or permit to conduct any activity including, but not
limited to, the construction or operation of facilities, which may
result in any discharge into the navigable waters, shall provide the
licensing or permitting agency a certification from the State in which
the discharge originates or will originate . . . that any such
discharge will comply with the applicable provisions of sections 301,
302, 303, 306, and 307 of this Act'' (emphasis added). The plain
language of CWA section 401(a) directs States to certify that any
discharge resulting from the proposed Federally licensed or permitted
activity will comply with the enumerated provisions of the CWA. The use
of the phrase ``such discharge'' in the very sentence that identifies
what a State must certify is strong textual support for EPA's proposed
interpretation. See Park 'N Fly, Inc. v.

[[Page 2024]]

Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985) (``Statutory
construction must begin with the language employed by Congress and the
assumption that the ordinary meaning of that language accurately
expresses the legislative purpose.''); PG&E v. FERC, 113 F.4th 943, 948
(D.C. Cir. 2024) (explaining that, ``when `addressing a question of
statutory interpretation, we begin with the text' '') (quoting City of
Clarksville v. FERC, 888 F.3d 477, 482 (D.C. Cir. 2018)).
Section 401(a)(1) of the CWA uses the term ``activity,'' but not in
reference to the scope of certification. The term ``activity''
describes the type of Federal license or permit that triggers CWA
section 401 certification--namely, a ``Federal license or permit to
conduct any activity including, but not limited to, the construction or
operation of facilities, which may result in any discharge into the
navigable waters.'' Whereas ``such discharge'' identifies the scope of
certification. Or, in the phrasing of the statutory text, if a Federal
license or permit to conduct an activity may result in a discharge,
then the certifying authority would certify that ``any such discharge''
will comply with the enumerated provisions of the CWA.
The language of the rest of CWA section 401 supports this reading.
Section 401(a)(2) of the CWA, regarding the neighboring jurisdiction
process discussed at section V.F of this preamble, is clearly limited
to discharges.\34\ Section 401(a)(2) of the CWA requires EPA to
determine whether ``such a discharge may affect'' the quality of the
waters of any other State beyond the State in which the discharge
originates (emphasis added), and subsequently notify that affected
other State. Section 401(a)(2) of the CWA also requires a notified
State that objects to a Federal license or permit to determine whether
``such discharge will affect the quality of its waters so as to violate
any water quality requirements'' (emphasis added). These references to
``discharge'' are clear indications that the subject of the entire CWA
section 401 process--from certification pursuant to CWA section
401(a)(1) to the neighboring jurisdiction process pursuant to CWA
section 401(a)(2)--is focused on discharges, not the broader activity.
The scope of the CWA section 401(a)(2) process is clearly limited to
discharges, and this provides strong support that the scope of
certification in CWA section 401(a) is also clearly limited to
discharges.\35\
---------------------------------------------------------------------------

\34\ The 2023 Rule goes to great lengths to explain why it
interprets ``such discharge'' in CWA section 401(a)(1) to
effectively mean ``such activity'' while interpreting ``such
discharge'' in CWA section 401(a)(2) to mean precisely what it says.
88 FR 66637-38 (discussing ``scope of the neighboring jurisdiction
process''). EPA now proposes that the far simpler and more coherent
reading, indeed the best reading, is that both provisions are
limited to discharges.
\35\ The text of section 401(a)(3) and (a)(4) also support a
reading that the scope of certification is limited to discharges.
Section 401(a)(3) refers to ``such discharge,'' another reference
back up to the triggering discharge. Section 401(a)(4) also refers
to discharges and applies to ``any federally licensed or permitted
facility or activity which may result in any discharge into the
navigable waters and with respect to which a certification has been
obtained'' pursuant to section 401(a)(1) (emphasis added).
---------------------------------------------------------------------------

ii. The 1972 Amendments to the CWA Support EPA's Proposed
Interpretation
The 1972 amendments to the CWA and related legislative history
provide additional support to interpret scope as limited to discharges.
As discussed in detail in Section IV.A, before it was amended in 1972,
the CWA ``employed ambient water quality standards specifying the
acceptable levels of pollution in a State's interstate navigable waters
as the primary mechanism in its program for the control of water
pollution.'' EPA v. Cal. ex rel. State Water Res. Control Bd., 426 U.S.
200, 202 (1976). In 1972, Congress determined that this program had
``been inadequate in every vital aspect,'' id. at 203 (quoting
legislative history of the 1972 amendments), and performed a ``total
restructuring'' and ``complete rewriting'' of the existing regulatory
framework. City of Milwaukee v. Illinois, 451 U.S. 304, 317 (quoting
legislative history of the 1972 amendments). The new regulatory
framework involved imposing effluent limitations on point source
discharges through NPDES permits. State Water Resources Control Bd.,
426 U.S. at 204-05 (describing the new framework).
CWA section 401 was updated as part of the 1972 CWA amendments to
reflect the restructuring of the Act. The 1970 version provided that a
certifying authority must certify ``that such activity . . . will not
violate water quality standards.'' Public Law 91-224, 21(b)(1), 84
Stat. 91, 108 (1970) (emphasis added). Significantly, Congress modified
this language in 1972, requiring a certifying authority to certify
``that any such discharge shall comply with the applicable provisions
of [the CWA].'' Public Law 92-500, 401(a)(1), 86 Stat. 816, 877 (1972)
(codified at 33 U.S.C. 1341(a)(1)) (emphasis added).
This change from ``activity'' to ``discharge'' is consistent with
the broader amended regulatory regime and statutory construct of the
CWA by focusing on regulating point source discharges into ``waters of
the United States.'' It is also strong evidence that Congress intended
the scope of certification to change from the entire ``activity''
subject to the Federal license or permit to the ``discharges'' of that
activity. Had Congress intended the 1972 amendments to retain the
original ``activity'' scope, Congress could have retained the phrase
``such activity'' instead of changing it to ``such discharge.''
However, Congress specifically did not carry forward the term
``activity'' in the operative phrase in CWA section 401(a). Under basic
canons of statutory construction, EPA begins with the presumption that
Congress chose its words intentionally. See, e.g., Stone v. INS, 514
U.S. 386, 397 (1995) (``When Congress acts to amend a statute, we
presume it intends its amendment to have real and substantial
effect.'').
The legislative history also supports the conclusion that Congress
intended its changed framing from ``activity'' to ``discharge'' to have
real meaning, with the purpose of making the new CWA section 401
consistent with the new regulatory framework of the Act. The 1971
Senate Report reiterates that CWA section 401 involves ``certification
from the State in which the discharge occurs that any such discharge
will comply'' with water quality requirements. S. Rep. No. 92-414, at
69 (1971) (emphasis added). The report continues that CWA section 401
``is substantially section 21(b) of existing law . . . amended to
assure consistency with the bill's changed emphasis from water quality
standards to effluent limitations based on the elimination of any
discharge of pollutants.'' Id.; see also H.R. Rep. No. 92-911 at 121
(1972) (``Section 401 is substantially section 21(b) of the existing
law amended to assure that it conforms and is consistent with the new
requirements of the [1972 Act].''). The legislative history indicates
that Congress amended the existing water quality certification
framework to ``assure consistency'' with the 1972 Act's ``changed
emphasis'' of controlling ``discharges.'' The 2023 Rule makes much of
the statements in the Congressional reports that CWA section 401 is
``substantially section 21(b) of existing law,'' suggesting that this
demonstrates that Congress did not intend to change the scope of
certification when it amended ``such activity'' to ``such discharge.''
88 FR 66596. However, the better understanding of these statements, and
the explicit amendment of the text of the Act, is that they reflect
that Congress did in fact largely retain the water

[[Page 2025]]

quality certification framework from section 21(b) and continued to
allow States to ensure that Federally authorized projects would not
violate applicable water quality requirements, even if Congress also
made important revisions to assure the retained certification framework
is consistent with the 1972 Act.
iii. The Supreme Court's Ruling Under Chevron on Scope of Certification
In 1994, the Supreme Court reviewed a CWA section 401 certification
issued by the State of Washington for a new hydroelectric project on
the Dosewallips River. See PUD No. 1, 511 U.S. 700, 703-04 (1994). This
decision, though narrow in its holding, has been read by the EPA in the
past (including in the 2023 Rule) and by some States and Tribes to
significantly broaden the scope of CWA section 401 beyond what the
statutory text allows. After considering the Court's holding and EPA's
prior interpretations, EPA now appropriately interprets CWA section 401
using the ``best reading'' standard recently provided by the Supreme
Court in Loper Bright.
The principal dispute adjudicated in PUD No. 1 was whether the
State of Washington could impose a minimum stream flow as a condition
in a certification issued under CWA section 401. There were two
potential discharges from the proposed hydroelectric facility: ``the
release of dredged and fill material during construction of the
project, and the discharge of water at the end of the tailrace after
the water has been used to generate electricity.'' Id. at 711. The
applicant argued that the minimum stream flow condition was unrelated
to these discharges and therefore beyond the scope of the State's
authority under CWA section 401. Id.
The Court considered the text of sections 401(a) and 401(d) and,
specifically, the use of ``discharge'' in CWA section 401(a) and
``applicant'' in CWA section 401(d). Id. at 711-13. Section 401(a) of
the CWA requires the certifying authority to certify that the discharge
from a proposed Federally licensed or permitted project will comply
with enumerated CWA provisions, and CWA section 401(d) allows the
certifying authority to include conditions to assure that the applicant
will comply with enumerated CWA provisions and ``any other appropriate
State law requirements.'' Emphasizing that the text of CWA section
401(d) ``refers to the compliance of the applicant, not the
discharge,'' the Court explained that CWA section 401(d) ``is most
reasonably read as authorizing additional conditions and limitations on
the activity as a whole once the threshold condition, the existence of
a discharge, is satisfied.'' Id. at 712.
The Court then ultimately deferred to EPA's 1971 Rule, affording it
Chevron deference. The Court found that ``[o]ur view of the statute is
consistent with EPA's regulations implementing Sec. 401.'' Id. The
Court favorably quoted EPA's 1971 Rule, which indicated that certifying
authorities certify the ``activity'' (and an EPA guidance document from
1989). Id. The Court then held that ``EPA's conclusion that
activities--not merely discharges--must comply with state water quality
standards is a reasonable interpretation of Sec. 401 and is entitled
to deference.'' Id. at 712 (citing, inter alia, Chevron) (emphasis in
the original). The Court therefore reached its holding at Chevron
``step two,'' finding the statutory text to be ambiguous and EPA's
interpretation embodied in the 1971 Rule to be a ``reasonable''
interpretation.
While the Court in PUD No. 1 upheld one interpretation of CWA
section 401 as reasonable, that does not preclude the Agency from
adopting a different interpretation. When a court, even the Supreme
Court, has upheld an agency interpretation of a statute as reasonable
under Chevron, the agency is not precluded from revising its regulation
to ensure it reflects the best reading of the statute. See Loper
Bright, 603 U.S. at 400 (reviewing courts determine whether an agency
interpretation is the ``best'' reading of the statute). Nothing in
Loper Bright changed the proposition that agencies may update their
interpretations of the statutes that they implement, even
interpretations previously upheld by a court as reasonable under
Chevron, particularly to align the agency's interpretation with the
best reading of the statute. Lopez v. Garland, 116 F.4th 1032, 1038-41
(9th Cir. 2024) (upholding post-Loper Bright an agency's updated
interpretation of a statute after that circuit court of appeals had
``historically endorsed [the] prior [agency] interpretation under
Chevron''). See White Lion, 604 U.S. 542, 568 (2025) (affirming, post-
Loper Bright, that agencies remain ``free to change their existing
policies as long as they provide a reasoned explanation for the
change''); Ozurumba v. Bondi, 2025 U.S. App. LEXIS 22523, *22 (4th Cir.
2025) (noting that it ``strikes us as arbitrary'' if ``we would be
stuck--forever--with the most recent agency interpretation that we
upheld [under Chevron] before Loper Bright'').\36\
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\36\ Granted, if the court upholding the prior agency
interpretation offered a reasoned analysis explaining its support
for the prior agency interpretation, it would behoove an agency to
engage with that analysis to ensure the agency's new interpretation
is the best interpretation. EPA does that here, for example, by
analyzing the discussion in PUD No. 1 regarding the text of section
401(d).
---------------------------------------------------------------------------

It is significant that, not only did the majority in PUD No. 1
employ Chevron deference to EPA regulations, those regulations were not
based on the statutory text before the Court. The Court relied on EPA
regulations that predated the 1972 CWA amendments and therefore
contained outdated statutory terminology, most importantly ``activity''
rather than ``discharge'' in CWA section 401(a)(1). This is yet another
important reason not to treat PUD No. 1 as the final word on the proper
scope of certification.
The PUD No. 1 majority's short discussion of the statutory text
focused on the use of the term ``applicant'' in CWA section 401(d),
noting that the ``text refers to the compliance of the applicant, not
the discharge.'' 511 U.S. at 711. While CWA section 401(d) does not
expressly refer back to ``such discharge,'' it also does not use the
phrase ``activity.'' Ultimately, CWA section 401(d) applies to ``[a]ny
certification provided under this section,'' which is most naturally
read as operating within the bounds set by CWA section 401(a)(1):
discharges into waters of the United States.\37\ Furthermore, CWA
section 401(d) requires certifications to set forth conditions
necessary to assure compliance with enumerated provisions of the CWA
which all regulate point source discharges into waters of the United
States.\38\ The ordinary meaning of the word ``applicant'' is ``[o]ne
who applies, as for a job or admission.'' See Webster's II, New
Riverside University Dictionary (1994). The use of the term

[[Page 2026]]

``applicant for a Federal license or permit'' is best read to simply
describe the person or entity that applied for the Federal license or
permit that requires a certification, not to greatly expand the scope
of CWA section 401 beyond what the rest of the text clearly indicates.
---------------------------------------------------------------------------

\37\ This interpretation mirrors some of the reasoning discussed
in the dissenting opinion in PUD No. 1, which the Agency examined in
its efforts to discern ``the best'' interpretation of section 401.
Loper Bright, 603 U.S. at 400. As the dissent reasoned,
``subsections 401(a)(1) and (d) can easily be reconciled to avoid
this problem.'' PUD No. 1, 511 U.S. at 726 (Thomas, J., dissenting).
As described above, the Agency also is persuaded that reading
section 401 ``as a whole'' indicates that ``while Sec. 401(d)
permits a State to place conditions on a certification to ensure
compliance of the `applicant,' those conditions must still be
related to discharges.'' Id. at 726-27. As the dissent concluded,
``this interpretation best harmonizes the subsections of Sec.
401.'' Id. at 727.
\38\ Sections 301, 302, and 306 address the applicable effluent
limitations for new and existing sources, while Section 307
addresses the effluent limitations for toxic pollutants and
pretreatment standards for industrial pollutants discharged into
publicly owned treatment works.
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This view of CWA section 401(d) is supported by the Supreme Court's
``clear statement'' rule regarding federalism. The Supreme Court
``require[s] Congress to enact exceedingly clear language if it wishes
to significantly alter the balance between federal and state power . .
.'' Sackett v. EPA, 598 U.S. 651, 679 (2023) (citations omitted). In
the 1972 amendments to the Clean Water Act, Congress maintained
traditional State sovereignty principles while also adopting a new
approach to federal regulation of waters of the United States by
choosing to regulate discharges into waters of the United States
instead of the prior water quality goal-based approach. It is
improbable and highly unlikely that, despite Congress' actions to
narrow the scope of State certifications in line with the discharge
approach in regulation, Congress attempted to create a work-around to
expand the scope of allowable certification conditions authorized under
CWA section 401(d). Such a theory necessarily fails to satisfy the
clear statement rule to alter the traditional Federal-State balance
enshrined throughout the 1972 Act. As States continue to maintain their
traditional land and water management authority, so too does the
Federal government continue to maintain its traditional authority, as
provided through the Commerce Clause, to determine how waters of the
United States are to be regulated according to the Act's discharge-
based approach. There is no ``exceedingly clear language'' in CWA
section 401 indicating that Congress intended the scope of
certification to go beyond discharges.
The Court has recently cautioned agencies against assertions of
authority with vast ``economic and political significance'' without
``clear congressional authorization.'' West Virginia v. EPA, 597 U.S.
697, 723-30 (2022) (articulating the ``major questions doctrine''); see
also Biden v. Nebraska, 600 U.S. 477, 511 (Barrett, J., concurring)
(describing the doctrine as ``an interpretive tool reflecting `common
sense as to the manner in which Congress is likely to delegate a policy
decision of such economic and political magnitude to an administrative
agency.' '') (citations omitted). The assertion in the 2023 Rule that
the scope of certification encompassed the entire ``activity as a
whole'' has vast economic and political significance, as it provides
States with sweeping authority to decide the fate of nationally
important infrastructure projects, such as natural gas pipelines and
hydropower dams, based on potentially speculative water quality impacts
not linked to a point source discharge into waters of the United
States. And the 2023 Rule did so without ``clear congressional
authorization,'' instead ignoring the statutory language of CWA section
401(a) limiting certification review to discharges likely resulting
from the permitted activity and relying heavily on the ``vague term''
``applicant'' in CWA section 401(d). 88 FR 66594; West Virginia, 597
U.S. at 723 (``Extraordinary grants of regulatory authority are rarely
accomplished through `modest words,' `vague terms,' or `subtle
device[s].' ''); Nebraska, 600 U.S. at 515 (Barrett, J. concurring)
(``The expectation of clarity is rooted in the basic premise that
Congress normally `intends to make major policy decisions itself, not
leave those decisions to agencies.''). As the Supreme Court has
recently reiterated, ``Congress does not `hide elephants in
mouseholes.' '' Sackett, 598 U.S. at 677. Applying that principle here,
EPA should not assume that Congress intended to greatly expand the
scope of certification simply by use of the term ``applicant'' in CWA
section 401(d). Instead, for the reasons described above, the best
interpretation of the text of CWA section 401, as informed by the
statutory and legislative history of the CWA, is that the scope of
certification is limited to discharges, not the entire activity subject
to the Federal license or permit.
iv. Scope for Granting Certification Conditions
EPA is proposing to retain the position from both the current
regulation and the 2020 Rule that the scope for purposes of
conditioning a grant of certification is the same as the scope for
purposes of deciding whether to grant or deny certification. As EPA
explained in the 2020 Rule, interpreting CWA section 401 as
establishing different standards for issuing a denial under CWA section
401(a) and for requiring conditions under CWA section 401(d) is likely
to lead to implementation challenges, including confusion by
applicants, certifying authorities, and Federal licensing and
permitting agencies. 85 FR 42252. Moreover, if a certifying authority
determines that it must add conditions under CWA section 401(d) to
justify a grant of certification under CWA section 401(a), that is
equivalent to deciding that--without those conditions--it must deny
certification. The standard is therefore essentially the same. The
outcome of the certifying authority's analysis does not dictate the
scope of review.
EPA is proposing to remove current paragraph (b) in 40 CFR 121.3
regarding the scope of certification conditions as unnecessary. The
proposed new text at 121.3, which applies to a ``section 401
certification,'' is sufficiently clear that it applies to all aspects
of CWA section 401 certification, including conditions added to a grant
of certification. The 2020 Rule included regulatory text similar to
what EPA now proposes, and EPA is not aware of any confusion on this
point stemming from the 2020 Rule.
v. ``Water Quality Requirements''
Under the proposed rule, a certifying authority certifies
compliance with ``water quality requirements.'' EPA is proposing to
define ``water quality requirements'' at 40 CFR 121.1(f) as
``applicable provisions of sections 301, 302, 303, 306, and 307 of the
Clean Water Act, and applicable and appropriate state or tribal water
quality-related regulatory requirements for discharges.'' This would
return the definition of ``water quality requirements'' to essentially
what it was under the 2020 Rule. The first part of EPA's proposed
definition simply repeats the CWA provisions identified in CWA section
401(a)(1) to which a certifying authority certifies compliance. The
second part of EPA's proposed definition interprets the statutory
phrase ``other appropriate requirement of State law'' in CWA section
401(d). Section 401(d) of the CWA directs certifying authorities to add
conditions to a grant of certification necessary to assure compliance
with enumerated provisions of the CWA and ``any other appropriate
requirement of State law.'' EPA proposes to interpret ``other
appropriate requirement of State law'' as ``applicable and appropriate
state or tribal water quality-related regulatory requirements for
discharges,'' consistent with the proposed scope of certification.\39\
This would be a change from the current regulation, which interpreted
``other appropriate requirement of State law'' to broadly mean ``other
water quality-related requirement of state or Tribal law.''
---------------------------------------------------------------------------

\39\ EPA is also proposing to define ``discharge'' for purposes
of section 401 as ``a discharge from a point source into waters of
the United States.''
---------------------------------------------------------------------------

Congress delegated authority to EPA under CWA section 401(d) to
identify what constitutes ``any other appropriate

[[Page 2027]]

requirement of State law.'' Loper Bright, 603 U.S. at 395-96
(reiterating that terms like ``appropriate'' ``empower an agency to . .
. regulate subject to the limits imposed by'' that term and ``leaves
agencies with flexibility'') (citations omitted). The phrase ``other
appropriate requirement of State law'' indicates that Congress meant to
empower EPA to regulate what State law requirements are ``appropriate''
for forming the basis of a certification decision.
In exercising this discretion, EPA proposes to interpret ``other
appropriate requirement of State law'' to mean appropriate and
applicable State or Tribal water quality-related regulatory
requirements for point source discharges into waters of the United
States. This interpretation is consistent with the approach the Agency
took in 2020 and would appropriately limit ``other appropriate
requirement of State law'' to such laws that address impacts that are
within the scope of the certification and applicable to the discharges
and receiving waters subject to the certification. However, consistent
with the cooperative federalism central to CWA section 401, the
proposed interpretation does not otherwise restrict which State or
Tribal laws may form the basis of a certification decision within the
universe of those laws establishing requirements for point source
discharges into waters of the United States.\40\
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\40\ Section 401 certification is required for Federal licenses
or permits that authorize any activity which may result in any
discharge from a point source into waters of the United States. EPA
and the Corps recently published a proposed rule that would define
the scope of ``waters of the United States.'' See ``Updated
Definition of `Waters of the United States' '' 90 FR 52498 (November
20, 2025). Any changes in which waters qualify as waters of the
United States will impact the waters in which federally licensed or
permitted activities must seek section 401 certification.
---------------------------------------------------------------------------

EPA's interpretation of ``other appropriate requirement of State
law'' is informed by the principle ejusdem generis. Under this
principle, where general words follow an enumeration of two or more
things, they apply only to things of the same general kind or class
specifically mentioned. See Wash. State Dept. of Soc. & Health Servs.
v. Keffeler, 537 U.S. 371, 383-85 (2003). The use of the word
``appropriate'' in CWA section 401(d) indicates that Congress intended
to limit the phrase ``requirement of State law'' in some meaningful
manner. The best reading is that Congress intended that limitation to
be informed by the enumerated provisions of the CWA that appear in
section 401(d) directly before ``other appropriate requirement of State
law''--which all regulate point source discharges into waters of the
United States--as well as other key statutory touchstones in CWA
section 401 like the terms ``discharge'' and ``navigable waters,''
i.e., ``waters of the United States.'' The phrase ``any other
appropriate requirement of State law'' in CWA section 401(d) is not
unlimited or expansive, but rather it contains limiting language
(``appropriate'') that must not be read out of the statute. See PUD No.
1, 511 U.S. at 712 (holding that a State's authority to add conditions
pursuant to CWA section 401(d) ``is not unbounded'').
The phrase ``state or tribal water quality-related regulatory
requirements for discharges'' in the proposed rule's definition
includes those water quality-related provisions of State or Tribal law
that are more stringent than federal law, as authorized in CWA section
510. See 33 U.S.C. 1370 (establishing the authority of States to set
more stringent standards and limitations for discharges of pollutants
under the CWA). The legislative history supports the EPA's proposed
interpretation. See S. Rep. No. 92-414, at 69 (1971) (``In addition,
the provision makes clear that any water quality requirements
established under State law, more stringent than those requirements
established under this Act, also shall through certification become
conditions on any Federal license or permit.''). It is important to
note, however, that these more stringent provisions may not alter the
scope of certification as provided in this proposed rule. See, e.g., 40
CFR 123.1(i) (contrasting ``more stringent'' requirements of a State
NPDES program with requirements ``with a greater scope of coverage''
and therefore not part of the EPA-approved NPDES program). For example,
if a State law addresses nonpoint source discharges or discharges to
non-Federal waters, both of which are not within the proposed scope of
certification, they are still not factors the State may consider when
acting on certification requests.
The proposed definition does not require State and Tribal
provisions to be EPA-approved. EPA recognizes that there may be State
or Tribal regulatory provisions that address point source discharges
into waters of the United States that only partially implement certain
CWA programs or that were not submitted to the EPA for approval,
including water quality protective ordinances or water quality
standards adopted by Tribes under Tribal law. For this reason, EPA is
not proposing to limit State or Tribal regulatory provisions to EPA-
approved provisions.
EPA notes that the proposed definition of ``water quality
requirements'' would not limit States to evaluating only numeric water
quality criteria in a certification review. While numeric water quality
criteria are a central element of a water quality certification, the
proposed definition allows States and Tribes to evaluate narrative
water quality standards and other regulatory requirements that apply to
point source discharges into waters of the United States. EPA is
requesting comment on whether it should limit ``water quality
requirements'' to only numeric water quality criteria.
EPA is requesting comment on an alternative interpretation of
``other appropriate requirement of State law'' as limited to those
State and Tribal regulatory requirements that implement the enumerated
provisions of the CWA that appear in section 401(d). As discussed
above, the Agency finds the best reading of the statutory text is that
Congress intended the phrase to be informed by the enumerated
provisions of the CWA. The Agency seeks comment on whether to interpret
``other appropriate requirement of State law'' to be the subset of
State or Tribal regulatory requirements for point source discharges
that implement the CWA provisions enumerated in section 401(d). EPA
also seeks comment on the potential delta between these two
interpretations. EPA is also seeking comment on whether State or Tribal
regulatory provisions should be limited to EPA-approved provisions if
the Agency were to finalize the above alternative interpretation.
Additionally, EPA seeks comment on whether to interpret ``other
appropriate requirement of State law'' as referring solely to the text
in CWA section 401(d) regarding ``monitoring requirements'' for
specific enumerated provisions of the CWA. EPA takes comment on whether
to finalize a requirement that certifying authorities may only include
certification conditions based on State or Tribal law if such
conditions relate to a monitoring requirement necessary to demonstrate
compliance with the specified provisions of the CWA (sections 301, 302,
306, and 307). This interpretation would rely principally on the
placement of a comma after the phrase ``effluent limitations and other
limitations'' and before the phrase ``and monitoring requirements'' in
CWA section 401(d). Given the placement of the comma, EPA seeks comment
on whether to limit certification conditions based on State or Tribal
law to monitoring requirements necessary to implement the enumerated
CWA provisions in section 401(d) and how this proposed approach could
be implemented.

[[Page 2028]]

vi. Scope of Waters
EPA is proposing to define ``discharge'' for purposes of CWA
section 401, at 40 CFR 121.1(c), as ``a discharge from a point source
into waters of the United States.'' Accordingly, under the Agency's
proposal, certifying authorities cannot consider water quality impacts
to waters beyond waters of the United States, or impacts from outside
the discharge itself. This would be a departure from the current
regulations, which allow for consideration of State waters that are not
waters of the United States in certain circumstances. Specifically,
under the current regulations, certifying authorities may consider
waters beyond waters of the United States when certifying compliance
with requirements of State or Tribal law that otherwise apply to waters
of the State or Tribe beyond waters of the United States. 88 FR 66604.
EPA proposes that this approach was misguided and exceeded the Agency's
authority under the CWA.
The text of CWA section 401 provides that an applicant must seek
CWA section 401 certification for any activity requiring a Federal
license or permit ``which may result in any discharge into the
navigable waters'' (emphasis added). Thus, the text is clear that the
trigger for CWA section 401 certification is a potential discharge into
``navigable waters,'' also known as waters of the United States. 33
U.S.C. 1362(7). EPA has always recognized that the trigger for
certification involves a discharge into waters of the United States,
including in both the 2020 and 2023 Rules.
EPA proposes that it is equally clear that the scope of
certification is likewise limited to waters of the United States.
Pursuant to CWA section 401(a)(1), a certifying authority certifies
that any ``such discharge'' will comply with water quality
requirements, and ``such discharge'' is a clear reference back to the
triggering discharge.
This conclusion is supported by much of the same analysis as
discussed above in support of a scope interpretation limited to
discharges, as well as the regulatory framework of the CWA. As
described Section IV.A, the CWA is structured such that the Federal
government provides assistance, technical support, and grant money to
assist States in managing all of the nation's waters. By contrast, the
Federal regulatory provisions, including CWA sections 402 and 404,
apply only to point source discharges to a subset of those waters--
waters of the United States. CWA section 401 certification is another
Federal regulatory provision and should be interpreted consistent with
the other provisions as addressing point source discharges into waters
of the United States.
Moreover, EPA's proposed interpretation is supported by Supreme
Court precedent that ``require[s] Congress to enact exceedingly clear
language if it wishes to significantly alter the balance between
federal and state power and the power of the Government over private
property.'' Sackett v. EPA, 598 U.S. at 679 (citations omitted). The
Court in Sackett continued that ``[r]egulation of land and water use
lies at the core of traditional state authority'' and that ``[a]n
overly broad interpretation of the CWA's reach would impinge on this
authority.'' Id. at 679-80 (citations omitted). Congress has offered
nothing approaching a clear statement that CWA section 401 extends
beyond the waters of the United States, the point at which all other
CWA regulatory provisions end. Accordingly, the scope of waters under
CWA section 401 is limited to impacts from point source discharges into
waters of the United States.

D. Contents of a Certification Decision

1. What is the Agency proposing?
Under the proposed rule, any action by the certifying authority to
grant, grant with conditions, deny, or explicitly waive a request for
certification must be in writing and must include certain supporting
information as proposed in 40 CFR 121.7(c)-(f), including stating
whether the certifying authority has chosen to grant, grant with
conditions, deny, or expressly waive certification, and identifying the
applicable Federal license or permit. The Agency is also proposing to
require that each certification decision must include a statement
indicating whether the discharge \41\ will comply with water quality
requirements, and if not, must include additional supporting
information. In circumstances where a certifying authority grants
certification with conditions, EPA proposes that each condition must
include a statement explaining why the condition is necessary to assure
that the discharge(s) from the proposed project will comply with water
quality requirements, and a citation to the applicable water quality
requirement upon which the condition is based. In circumstances where
certification is denied, the EPA is proposing that the written
notification of denial state the reasons for denial, including the
specific water quality requirements with which the discharge(s) will
not comply; a statement explaining why the discharge will not comply
with the identified water quality requirements; or if the denial is due
to insufficient information, a description of any missing water
quality-related information.
---------------------------------------------------------------------------

\41\ See footnote 27.
---------------------------------------------------------------------------

The Agency is also making revisions throughout 40 CFR 121.7 to
align with proposed revisions to the scope of certification. See
section V.C of this preamble for further discussion on the scope of
certification. The Agency is proposing to delete the text at 40 CFR
121.7(c)(4), (d)(4), (e)(4), and (f)(4), which suggested that
certification decisions indicate that the certifying authority complied
with its public notice procedures established pursuant to CWA section
401(a)(1), to ensure the decision documents focus on providing
information about the nature and rationale of the certification
decision. Ultimately, the Agency finds these revisions would support a
transparent and consistent certification process that allows
applicants, Federal agencies, and the public at large to understand the
rationale behind certification decisions.
2. Summary of Proposed Rule Rationale
The CWA allows certifying authorities to make one of four decisions
on a request for certification pursuant to their CWA section 401
authority. A certifying authority may grant certification, grant
certification with conditions, deny certification, or it may expressly
waive certification. A certifying authority may also waive
certification by failing or refusing to act in the reasonable period of
time. The CWA does not define the term ``certification,'' identify what
it means to ``act'' on a request for certification, or offer a
definitive list of its contents or elements. As the agency that
Congress charged with administering the CWA,\42\ Congress empowered EPA
``to prescribe rules to `fill up the details' of a statutory scheme.''
Loper Bright, 603 U.S. at 395 (citation omitted). In identifying the
contents of those decisions, EPA is ``filling up the details'' of the
CWA section 401 certification process.\43\
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\42\ See footnote 14.
\43\ Section 304(h) of the CWA requires the EPA to promulgate
factors which must be provided in any section 401 certification. 33
U.S.C. 1314(h). EPA is also acting pursuant to this authority when
identifying the contents of certification decisions.
---------------------------------------------------------------------------

Prior to the current regulations, the Agency defined the required
contents for certification decisions. See 40 CFR 121.2(a), 121.16
(2019) (defining the contents of a grant of certification with or
without conditions and a waiver for all certifying authorities); 40 CFR
121.7

[[Page 2029]]

(2020) (defining the contents of all certification decisions). In a
change from past practice, in 2023 the Agency defined recommended
contents for all certification decisions in the current regulations,
but did not require certifying authorities to include these contents in
their decisions. 40 CFR 121.7(c)-(f).
In the July 2025 Federal Register publication, the Agency asked
stakeholders ``whether justification is necessary to demonstrate that
certification conditions included in a certification decision are
within the appropriate scope.'' 90 FR 29829. Several industry
stakeholders and one State recommended that the Agency require
certifying authorities to justify certification conditions to ensure
conditions are within the appropriate scope of certification. Another
State discussed how providing justifications for certification
conditions allowed them to ensure conditions were within the
appropriate scope of certification and communicate their necessity to a
Federal agency. Conversely, a few States and several non-governmental
advocacy organizations opposed requiring justifications for
certification conditions and asserted that it was time consuming and
unnecessary.
After evaluating stakeholder input, EPA is proposing to revise 40
CFR 121.7 to require certifying authorities to include specific
contents in all certification decisions. As discussed in more detail
below, the Agency is proposing to retain all components currently
listed at 40 CFR 121.7, except the component on the certifying
authority's compliance with public notice procedures, with minor
revisions to ensure consistency with the proposed scope of
certification. See section V.C of this preamble for additional
discussion on the scope of certification. The Agency is also proposing
to require that all certification conditions include a citation to the
applicable water quality requirement upon which each condition is
based. The proposed approach will promote transparency and efficiency
and ensure applicants and Federal agencies understand the reasoning and
rationale behind a certifying authority's action. The Agency does not
anticipate that this proposed approach will increase workload burden on
certifying authorities because certifying authorities should already be
generating this type of information to build complete and legally
defensible administrative records to support their certification
actions. Furthermore, this approach should be familiar to certifying
authorities that incorporated required components from the 2020 Rule
and/or 2023 Rule into their certification decisions.
The Agency is proposing to retain the requirement that all
certification decisions be in writing. While the Agency is not aware of
any certification decisions being provided in a different manner (e.g.,
verbally), EPA is maintaining the requirement that all certification
decisions be in writing to ensure the applicant and Federal agency can
clearly understand the certification decision and, for a certification
with conditions, any conditions that must be included in the Federal
license or permit. The Agency is unaware of any issues with certifying
authorities complying with this requirement under either the 2020 Rule
or the 2023 Rule.
EPA is proposing to require that certifying authorities include two
components that are the same or similar in all four types of
certification decisions: (1) identification of the applicable Federal
license or permit, and (2) identification of the certification decision
type (i.e., grant, grant with conditions, denial, or waiver). These
components are similar, if not identical in some cases, to components
currently listed at 40 CFR 121.7(c)-(f). EPA is also proposing
conforming revisions throughout 40 CFR 121.7 to clarify that
certification decisions should indicate whether the discharge, as
opposed to the activity, will comply with applicable water quality
requirements. See section V.C of this preamble for further discussion
on the scope of certification.
The Agency is proposing to remove the component that requires a
certifying authority to indicate that it complied with its public
notice procedures established pursuant to CWA section 401(a)(1). See 40
CFR 121.7(c)(4), (d)(4), (e)(4), (f)(4). Under CWA section 401(a)(1),
certifying authorities are required to establish procedures for public
notice and, to the extent a certifying authority deems appropriate,
procedures for public hearings. 33 U.S.C. 1341(a)(1). At least one
Circuit Court has concluded that Federal agencies must determine
whether a certifying authority has complied with its public notice
procedures at least where compliance has been ``called into question.''
See City of Tacoma v. FERC, 460 F.3d 53, 68 (D.C. Cir. 2006) (finding
that FERC had an obligation to ``confirm, at least facially, that the
state has complied with section 401(a)(1)'s public notice
requirements.''). EPA's current regulations do not require Federal
agencies to review for certifying authority compliance with public
notice procedures but instead acknowledge that Federal agencies can
verify compliance with certain requirements of the text of CWA section
401 identified in case law, including compliance with public notice
procedures. See 40 CFR 121.8. While an indication of the certifying
authority's compliance with public notice procedures could be helpful
in the event a Federal agency chooses to review the decision for such
purpose (e.g., compliance is called into question), the primary purpose
of the certification decision is to communicate the nature and
rationale behind the decision so that applicants and Federal agencies
can effectively comply with and implement the decision. The proposed
components for a certification decision would further that objective
(i.e., identify the decision type, the applicable Federal license or
permit, and a statement regarding the basis of the decision). The
Agency finds it unnecessary to mandate that certifying authorities
include for every certification decision an indication of compliance
with the public notice procedures in the decision document itself,
particularly in light of the discretionary nature of Federal agency
review. However, nothing in this proposed rule would prevent Federal
agencies from requesting confirmation from the certifying authority
that it complied with its public notice procedures (e.g., providing a
copy of its public notice), nor alters the statutory obligation for
certifying authorities to establish and comply with public notice
procedures consistent with CWA section 401(a)(1).
To ensure applicants and Federal agencies clearly understand the
rationale behind certification conditions and denials, the Agency is
proposing that such decisions include additional information to explain
the basis of the decision. The following paragraphs discuss the
additional information required for certifications with conditions and
denials.
The Agency proposes to require (as opposed to the recommendation in
the 2023 Rule) that a certifying authority must include a statement
explaining each certification condition. See 40 CFR 121.7(d)(3). To
provide additional transparency for Federal agencies, applicants, and
the public, the Agency proposes to also require that each condition
include a citation to the water quality requirement (as defined in this
proposed rulemaking) upon which the condition is based. In other words,
for each condition, the certifying authority must cite to the
applicable ``water quality requirement'' (as proposed at 40 CFR
121.1(f)) for which the condition is necessary to assure compliance.
The EPA intends this provision to require

[[Page 2030]]

citation to the specific State or Tribal statute or regulation or the
specific CWA provision, e.g., CWA section 301(b)(1)(C), and that
general citations to CWA section 401 or other general authorization or
policy provisions in Federal, State, or Tribal law would be
insufficient to satisfy the proposed requirement.
It is important for Federal agencies to have a clear understanding
of the basis for certification conditions, because such conditions must
be included in a Federal license or permit. Several appellate courts
have analyzed the plain language of the CWA and concluded that the Act
``leaves no room for interpretation'' and that ``state conditions must
be'' included in the Federal license or permit. Sierra Club v. U.S.
Army Corps of Eng'rs, 909 F.3d 635, 645 (4th Cir. 2018) (emphasis in
original); see also U.S. Dep't of Interior v. FERC, 952 F.2d 538, 548
(D.C. Cir. 1992) (``FERC may not alter or reject conditions imposed by
the states through section 401 certificates.''); Am. Rivers, Inc. v.
FERC, 129 F.3d 99, 107 (2d Cir. 1997) (recognizing the ``unequivocal''
and ``mandatory'' language of CWA section 401(d)); Snoqualmie Indian
Tribe v. FERC, 545 F.3d 1207, 1218 (9th Cir. 2008) (collecting cases).
Providing an explanation of the condition and a citation to the water
quality requirement underpinning the condition is one way to make it
easier for Federal agencies to understand how best to implement and, if
needed, enforce conditions.
In addition, including a citation and explanation with each
condition would provide transparency for the overall certification
process and allow the applicant to understand the legal and/or
technical basis for each condition, to assess whether a condition is
within the statute's lawful scope, and to identify what recourse may be
available to challenge it in an appropriate court of competent
jurisdiction. Certifying authorities should already be generating this
type of information to build complete and legally defensible
administrative records to support their certification actions and thus
this requirement should not unduly burden the certifying authority. As
a general matter, if a certifying authority determines that one or more
conditions are necessary for a CWA section 401 certification, the
certifying authority should clearly understand and articulate why it is
necessary and should identify the specific water quality requirements
which necessitate the conditions. Including this information in the
certification itself would provide transparency for the applicant, the
Federal licensing and permitting agency, and the public at large. For
these reasons, the EPA proposes that these are appropriate
requirements, and that the benefits of providing this information would
significantly outweigh any additional administrative burden that
certifying authorities may incur because of these requirements.
The Agency is also proposing that a certifying authority must
include (as opposed to the 2023 Rule's recommendation to include) a
statement explaining why it is denying certification. See 40 CFR
121.7(e)(3). However, the Agency proposes additional revisions to the
text currently at 40 CFR 121.7(e)(3) to require certifying authorities
to identify the specific water quality requirements that may be
violated, unless the denial is based on insufficient information, in
which case the statement must include a description of any missing
water quality-related information. The proposed required information
would lead to more transparent decision-making and a more complete
record of the administrative action. If a certifying authority denies
certification, its denial should be issued with information sufficient
to allow the applicant to understand the basis for denial and have an
opportunity to modify the project or to provide new or additional
information in a new request for certification. This information may
also facilitate discussions between certifying authorities and
applicants about what may be necessary to obtain a certification should
the applicant submit a new certification request in the future. A
certifying authority's explanation of why a discharge from a proposed
project will not comply with relevant water quality requirements would
also assist reviewing courts in understanding whether the denial is
appropriately based on the scope of certification discussed in section
V.C of this proposal. If the certifying authority determines that there
is no specific data or information that would allow the certifying
authority to determine that the discharge will comply with water
quality requirements, it should indicate as such and provide the basis
for the determination in its written decision to deny certification.
This proposed requirement is intended to reaffirm and clarify that
insufficient information about the proposed project can be a basis for
a certification denial.
While the proposed text of 121.7(c)-(f) makes clear that certifying
authorities are required to include the defined components, applicants
may challenge a certification decision in court in the event the
required components are missing. The ability of applicants to challenge
certification decisions in court is supported by the legislative
history, which indicates that certification decisions should be
challenged in courts of competent jurisdiction. See, e.g., 116 Cong.
Rec. 8805, 8988 (1970) (Conf. Rep.) (``If a State refuses to give a
certification, the courts of that State are the forum in which the
applicant must challenge that refusal if the applicant wishes to do
so.''); H.R. Rep. No. 92-911, at 122 (1972) (same); Lake Carriers'
Ass'n v. EPA, 652 F.3d 1, 10 (D.C. Cir. 2011) (quoting Roosevelt
Campobello Int'l Park Comm'n v. EPA, 684 F.2d 1041, 1056 (1st Cir.
1982) for the proposition that ``the courts have consistently agreed .
. . that the proper forum to review the appropriateness of a state's
certification is the state court''); 40 CFR 124.55(d) (``Review and
appeals of limitations and conditions attributable to State
certification shall be made through the applicable procedures of the
State and may not be made through the procedures in this part.'').
The Agency is requesting comment on the proposed approach to define
the contents for a certification decision, including but not limited to
the mandatory nature of the proposal and the proposed components.

E. Modifications

1. What is the Agency proposing?
The EPA is proposing to revise the regulatory text to require the
Federal agency, the certifying authority, and the applicant to all
agree before the certifying authority may modify a grant of
certification. Under the current regulations, only the certifying
authority and the Federal agency had to agree to modification; this
proposal includes the applicant as part of the modification process.
Further, the Agency is proposing that the certifying authority is
required to obtain the applicant's agreement on the language of the
modification.
The Agency is proposing to retain that a certifying authority may
not unilaterally modify a grant of certification. EPA intends that a
modification to a grant of certification means a change to an element
or a portion of a certification or its conditions--it does not mean a
wholesale change or unilateral modification in the type of
certification decision or a reconsideration of the decision whether to
certify (e.g., changing a grant of certification to a denial of
certification). The Agency therefore proposes to maintain regulatory
text at 121.10(b) providing

[[Page 2031]]

that a certifying authority may not revoke a grant of certification or
change it into a denial or waiver.
2. Summary of Proposed Rule Rationale
CWA section 401 does not expressly authorize or prohibit
modifications of certifications. The current regulations reintroduced a
modification provision with restrictions to protect applicant and
Federal agency reliance interests (i.e., modifications cannot be made
unilaterally, the agreement must be in writing, a grant of
certification cannot be changed into a denial, etc.).
In response to EPA's July 2025 request for stakeholder feedback on
their experiences with the 2023 Rule, in general, most stakeholders
supported retaining a modification process noting that modifications
were particularly useful for addressing small changes to a project
schedule or planned activities, enhanced efficiencies during the
certification process, and helped ensure that waters were protected in
light of project changes. Other stakeholder feedback warned that
modifications beyond the reasonable period of time could undermine
trust and certainty in the permitting process and should be limited to
material changes to the project's Federal license or permit.
EPA is proposing to retain the ability for a certifying authority
to modify a grant of certification (with or without conditions)
provided that the Federal agency, certifying authority, and applicant
agree in writing that the certifying authority may modify the
certification. However, the EPA proposes to maintain its longstanding
position that CWA section 401 does not provide authority for a
certifying authority to unilaterally modify a certification, either
through certification conditions that purport to authorize the
certifying authority to reopen the certification in the future or
through any other mechanism. This proposal remains consistent with the
position in the 2020 Rule and 2023 Rule that CWA section 401 does not
provide the authority for unilateral modifications to a certification
decision--either by the certifying authority or by the Federal
licensing or permitting agency--after the statutory reasonable period
of time has ended. See 88 FR 66631; 85 FR 42279. Additionally, the
Agency does not intend for modifications to be used to avoid or extend
the reasonable period of time because 40 CFR 121.10 in the proposed
rule only applies to previously granted certifications.
The Agency also notes that the ability to unilaterally modify a
certification after issuance is unnecessary. First, the certifying
authority has the ability under the proposed rule to modify a
certification with the agreement of the Federal agency and applicant.
Even if agreement cannot be reached, circumstances that may necessitate
modifications often will be linked to other actions that have
established procedures. For example, if a Federal license or permit is
modified or the underlying project is changed such that the Federal
license or permit requires modification, it may trigger the requirement
for a new certification, depending on the Federal agency's procedures.
The Agency is proposing to provide a direct role for the applicant
in the modification process. Specifically, in 40 CFR 121.10(a) of this
proposal, EPA is adding that the applicant agree in writing, along with
the Federal agency and certifying authority, that the certifying
authority may modify a grant of certification (with or without
conditions). Some stakeholder feedback expressed support for a
modification process that is collaborative and includes the applicants
in the process to agree upon reasonable modifications after
certifications have been issued. Stakeholder feedback also highlighted
that applicants play a necessary role in making project changes (i.e.,
changes in construction methods, re-routes avoiding newly identified
resources, etc.) to accommodate potential modifications. One
stakeholder suggested that at a minimum applicants should be given an
opportunity to submit comments during the modification process. EPA
agrees that the applicant has an important role in implementing any
conditions of a grant of certification and should therefore be included
in the agreement process of a modification. The Agency is requesting
comment on whether the applicant be involved in agreeing to the
modification, as proposed, or if some other variation should be
considered.
While the Federal agency must agree to a modification of the
certification, the current regulation does not require the certifying
authority to obtain Federal agency agreement to the substance or
language of such a modification. EPA proposes to retain this dynamic
between the certifying authority and Federal agency while also
proposing to require the certifying authority to obtain the applicant's
agreement on the language of the modification. EPA is proposing this
for the same reasons as discussed above for including the applicant in
the modification process. The applicant would ultimately need to
implement any modified certification conditions and therefore should
have a role in determining what any modified conditions will look like.
To be clear, the proposed rule would not give the applicant (or Federal
agency) a direct role in determining the language of an initial
certification decision (although the applicant presumably may
participate in the certifying authority's public participation
procedures like any other stakeholder). However, it is EPA's view that
if the certifying authority desires to change certification conditions
after the reasonable period of time has expired, particularly after the
Federal license or permit has been issued or the applicant has already
expended resources or initiated or finalized the project, the applicant
should participate in crafting the language of any modified condition.
EPA continues to recommend that the modification process be
collaborative.
As mentioned above, with the revisions to 40 CFR 121.10 currently
proposed, the Federal agency would not need to agree to the language of
the modification. The Agency proposes to remove the text currently
located at 40 CFR 121.10(a) that explicitly states this, since the
proposed text now focuses on who can agree to the language of a
modification (i.e., the certifying authority and applicant). It should
be clear that the absence of the Federal agency from the list of those
involved with agreeing on the language of the modification means the
Federal agency would not be involved in that specific step of the
modification. The Agency requests comment on whether there should be
explicit text stating that Federal agency agreement on the language of
the modification is not required, or if the proposed text is clear
enough to convey that approach. Some stakeholder feedback raised the
fact that modified certification conditions would also require the
Federal license or permit to be modified to include the modified
conditions. The Agency is requesting comment on whether the Federal
agency should also be involved in the agreement on the language of the
modification, if just the certifying authority and applicant should be
involved (as proposed), or if some other variation should be
considered.

F. Section 401(a)(2) Process

1. What is the Agency proposing?
EPA is proposing several revisions to the regulations addressing
the CWA section 401(a)(2) process. First, the Agency is proposing to
remove the definition of ``neighboring jurisdiction'' located at 40 CFR
121.1(g) and make conforming revisions throughout subpart B of part 121
to use the statutory language ``other State'' when referring to

[[Page 2032]]

the jurisdiction engaged in the CWA section 401(a)(2) process. Second,
the Agency is proposing to remove the definition of ``Regional
Administrator'' located at 40 CFR 121.1(i), revise the definition of
``Administrator'' located at 40 CFR 121.1(a) to acknowledge the term
may include any authorized representative, and make conforming
revisions throughout subpart B of part 121 to use the statutory
language ``Administrator'' when referring to EPA's role in the CWA
section 401(a)(2) process. Third, the Agency is proposing minor
revisions to the contents of a Federal agency's notification to EPA to
clarify that the size or scope of the activity referred to in the
project summary is only that which is relevant to the discharge.
Fourth, EPA is proposing to remove the current text at 40 CFR 121.13(c)
that allows an EPA Regional Administrator to request supplemental
information from a Federal agency as needed to make a determination and
to enter into agreements with Federal agencies. Fifth, EPA is proposing
to add regulatory text that acknowledges that the Agency may conduct
``may affect'' determinations on a categorical or case-by-case basis.
Sixth, the Agency proposes that any other State's objection must
include a citation to the water quality requirements that will be
violated to be valid. The Agency is also proposing several revisions to
internal citations throughout subpart B to reflect the proposed
regulatory provisions. Lastly, the proposed rule provides Federal
agencies with 90 days to hold a public hearing on State's objection and
make a determination on the objection. These proposed revisions are
discussed in further detail below.
2. Summary of Proposed Rule Rationale
Section 401(a)(2) provides a mechanism for the EPA to notify other
States and authorized Tribes where the EPA has determined the point
source discharge into waters of the United States \44\ from a proposed
Federally licensed or permitted project subject to section 401 may
affect the quality of their waters.\45\ Although the statutory text
refers to these States and authorized Tribes as ``other State[s],''
both the 2020 and 2023 Rule defined a new term, ``neighboring
jurisdictions,'' to characterize these States and Tribes. See 40 CFR
121.1(g) (defining neighboring jurisdictions as ``any state, or Tribe
with treatment in a similar manner as a state for Clean Water Act
section 401 in its entirety or only for Clean Water Act section
401(a)(2), other than the jurisdiction in which the discharge
originates or will originate''); 40 CFR 121.1(i) (2020) (defining
neighboring jurisdictions as ``any other state or authorized tribe
whose water quality the Administrator determines may be affected by a
discharge for which a certification is granted pursuant to Clean Water
Act section 401 and this part.''). Upon reconsideration, the Agency
proposes to remove the definition of ``neighboring jurisdiction''
currently located at 40 CFR 121.1(g) and instead make conforming edits
throughout subpart B to use the statutory language ``other States'' to
refer to States or Tribes with TAS for section 401 that may be notified
for purposes of Section 401(a)(2) review. The term ``other State'' is
self-explanatory when read in the statutory and regulatory text, i.e.,
a jurisdiction that is not otherwise the certifying authority and that
EPA has determined has waters that may be affected by a discharge. This
proposed revision reflects the statutory text, but the Agency
acknowledges that since the term ``neighboring jurisdiction'' was
introduced in 2020, it has been incorporated into stakeholder
vernacular around this topic. As such, the Agency will continue to use
the term ``neighboring jurisdiction'' interchangeably with ``other
State'' and ``neighboring jurisdiction process'' interchangeably with
the section 401(a)(2) process throughout this preamble and any
subsequent materials. However, the Agency does not believe a definition
of the term is necessary for reasons discussed above. The Agency
requests comment on this proposed revision.
---------------------------------------------------------------------------

\44\ See footnote 27.
\45\ Consistent with the Agency's longstanding position, the
scope of the CWA section 401(a)(2) process is limited to point
source discharges into waters of the United States. See also section
V.C of this preamble for further discussion on the scope as it
relates to CWA section 401(a)(2).
---------------------------------------------------------------------------

Section 401(a)(2) requires Federal agencies to immediately notify
the EPA upon receipt of a certification and Federal license or permit
application. Although the statute refers to the Administrator
throughout the section 401(a)(2) process, the current regulations refer
to the Regional Administrator because section 401(a)(2) duties have
been delegated from the Administrator to the Regional Administrators.
To ensure the regulations reflect the statutory text, the Agency is
proposing to remove the term ``Regional Administrator'' from 40 CFR
121.1(i), revise the definition of ``Administrator'' to acknowledge the
term may refer to any authorized representative of the EPA
Administrator, and replace references to the Regional Administrator
throughout subpart B. The Agency does not intend for this revision to
change current practice (e.g., Federal agencies should continue to
provide notification pursuant to section 401(a)(2) to the appropriate
EPA representative) but instead it ensures the regulatory text remains
durable in the event the delegation of authority changes to a different
representative. The Agency requests comment on this proposed revision.
EPA has 30 days from the date it receives Federal agency
notificat

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