On July 1st, the United States Environmental Protection Agency (USEPA) announced it will soon open a docket and host two listening sessions to receive public input on needed reforms to the Section 401 program of the Clean Water Act (CWA). The notice indicated that, once published in the Federal Register, the public will have 30 days to provide comment and input on the Agency's 2023 implementation rule.  

Section 401 of the CWA requires states and authorized tribes to certify (or deny or waive) that certain federally regulated projects, such as a hydroelectric generating facility regulated by the Federal Energy Regulatory Commission (FERC), will comply with adopted state or tribal water quality standards. As USEPA indicated in a memorandum issued in May, telegraphing the docket, the scope of that review is to be limited and time-bound. However, the 401 certification process has been used to slow or frustrate disputed projects, leading in many cases to infrastructure project delays or wholesale cancellations. 

The certification is intended to be limited to water quality issues, but project proponents have complained that certain states have conditioned certifications to address project impacts well beyond water quality, such as air quality, noise, traffic, and other “nuisance” type impacts. 

If you work in these project programs, now is the time to bring forward your concerns and suggested improvements to an Administration that is open to change.