Yesterday, the U.S. Environmental Protection Agency (EPA) announced a final rule that will help accelerate and promote the construction of important energy infrastructure across the United States, while ensuring the nation’s drinking water and waterways are protected. The agency’s final rule increases the transparency and efficiency of the Clean Water Act Section 401 (Section 401) certification process in order to promote the timely review of infrastructure projects.

EPA finalized this rule pursuant to the direction of Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth.” In this Executive Order, President Trump directed EPA to review Section 401 and EPA’s related regulations and guidance to determine whether the agency’s policies should be updated or clarified. In the final rule, EPA conducted the first comprehensive analysis of the text, structure and legislative history of Section 401. Key elements of the final rule include:

• Specifies statutory and regulatory timelines for review and action on a Section 401 certification—requiring final action to be taken within one year of receiving a certification request.
• Clarifies the scope of Section 401, including clarifying that 401 certification is triggered based on the potential for a project to result in a discharge from a point source into a water of the United States. When states look at issues other than the impact on water quality, they go beyond the scope of the Clean Water Act.
• Explains EPA’s roles under Section 401.
• Reaffirms the agency’s statutory responsibility to provide technical assistance to any party involved in a Section 401 water quality certification process.
• Promotes early engagement and coordination among project proponents, certifying authorities and federal licensing and permitting agencies.

To read the final rule and about the Clean Water Act Section 401 water quality certification process, please visit https://www.epa.gov/cwa-401.