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Eleven states (but not Ohio) challenged US EPA’s new Clean Water Act Section 401 water quality certification rule

By Nat Morse

On December 4, a coalition of eleven states and three industry groups filed a legal challenge to US EPA’s new Clean Water Act rule that modified the water quality certification process that states (and other authorized certifying authorities) use to determine if a project complies with applicable water quality standards. As explained in a prior blog post, this new Clean Water Act Section 401 water quality certification rule (“401 WQC Rule”), which went into effect last month, expanded the scope of impacts that a state could consider in its review of federal permits and licenses authorizing a discharge into a water of the United States. (See

The states challenging the 401 WQC Rule include Louisiana, Alaska, Arkansas, Kentucky, Mississippi, Missouri, Montana, Oklahoma, South Carolina, West Virginia and Wyoming, and the industry groups include American Petroleum Institute, the Interstate Natural Gas Association of America and the National Hydropower Association (collectively, the “Plaintiffs”). The Plaintiffs are seeking a preliminary injunction to block the implementation of the rule and ultimately an order that US EPA vacate the rule.

The Plaintiffs argue that the new 401 WQC Rule will be a burden on states and other certifying authorities, because it will expand the scope of the review. Instead of narrowly focusing on the direct impact of the discharge into the jurisdictional water, the Plaintiffs contend states will have “a mandatory obligation to evaluate the entire activity.”

US EPA has not filed a response to the action yet. However, one component of a response might point out that states have the ability to “waive” the 401 certification process for a specific project.

The case is Louisiana et al. v. Environmental Protection Agency et al., case number 2:23-cv-01714, in the U.S. District Court for the Western District of Louisiana. For more information about how this case might impact state or federal permitting under the Clean Water Act of Ohio laws, reach out to Nat Morse, Kristin Watt, or your Vorys attorney.

Tags: CWA, 401, WOTUS, Clean Water Act, water quality certification

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