EPA issued a memorandum clarifying the specific and limited role that states and tribes play in the federal licensing and permitting processes under the Clean Water Act (CWA) section 401. Through the memorandum, the agency is reiterating its longstanding position that states and Tribes must utilize section 401 only for its statutory purpose – to protect water quality. The memorandum clarifies that a state’s or Tribe’s evaluation is limited to considering negative impacts to water quality, and only such impacts that prevent compliance with applicable water quality requirements. This direction is consistent with all prior regulations and guidance documents for section 401 certification.
The memorandum also announces EPA’s intent to issue a forthcoming Federal Register notice and docket to obtain public input on implementation challenges and regulatory uncertainty related to the 2023 rule’s scope of certification. The agency will address such challenges and uncertainty through additional future guidance or rulemaking.
To read this memo and learn more about section 401 of the CWA visit: https://www.epa.gov/cwa-401.
clarification-re-application-of-cwa-401-certification_may-2025
