On June 1, 2020, U.S. EPA finalized amendments to the rules governing the Clean Water Act (CWA) Section 401 water quality certification (WQC) process, which had not been updated since 1971. The final amendments establish a more robust framework for the WQC process which is intended, in large part, to ensure that certifying agencies take action on a certification request “within a reasonable period of time…which shall not exceed 1 year from receipt” of the request, as required under the CWA. The final amendments have implications for any project triggering the WQC requirement (e.g. construction projects requiring a CWA 404 wetland permit).
Ambiguities in the previous WQC rules often caused significant delays in the certification process. In an effort to remedy those ambiguities and provide more regulatory certainty, U.S EPA’s amendments create several new provisions in the WQC rules (40 CFR Part 121), including rules that specify when a certification is required; require a project proponent to request a pre-filing meeting with the certifying agency at least 30 days prior to submitting the certification request; enumerate specific project details and other information that must be included in a certification request; define the scope of and time frame for the certifying agency’s review of a certification request; and clarify other procedural aspects of the WQC process. The final amendments also define new terms including, “certification request,” “discharge,” “reasonable period of time,” “receipt” (of a certification request), and “water quality requirements.”
A pre-publication version of the final amendments to the CWA 401 WQC rules is available here. The amendments become effective 60 days after publication in the Federal Register.