35318 Federal Register / Vol. 87, No. 111 / Thursday, June 9, 2022 / Proposed Rules 

1The CWA defines ‘‘state’’ as ‘‘a State, the District 

of Columbia, the Commonwealth of Puerto Rico, the 

Virgin Islands, Guam, American Samoa, the 

Commonwealth of the Northern Mariana Islands, 

and the Trust Territory of the Pacific Islands.’’ 33 

U.S.C. 1362(3). 

2The term ‘‘authorized tribes’’ refers to tribes that 

have been approved for ‘‘treatment in a manner 

similar to a State’’ status for CWA section 401. See 

33 U.S.C. 1377(e). 

3The CWA, including section 401, uses the term 

‘‘navigable waters,’’ which the statute defines as 

‘‘the waters of the United States, including the 

territorial seas.’’ 33 U.S.C. 1362(7). This proposed 

rule uses the term ‘‘waters of the United States’’ 

throughout. EPA and the Corps recently published 

a proposed rule that would define the scope of 

‘‘waters of the United States.’’ See Proposed 

Revised Definition of ‘‘Waters of the United States.’’ 

86 FR 69372 (December 7, 2021). The agencies are 

currently interpreting ‘‘waters of the United States’’ 

consistent with the pre-2015 regulatory regime. The 

‘‘pre-2015 regulatory regime’’ refers to the agencies’ 

pre-2015 definition of ‘‘waters of the United 

States,’’ implemented consistent with relevant case 

law and longstanding practice, as informed by 

applicable guidance, training, and experience. 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 121, 122 and 124 

[EPA–HQ–OW–2022–0128; FRL–6976.1–01– 

OW] 

RIN 2040–AG12 

Clean Water Act Section 401 Water 

Quality Certification Improvement Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: Following a careful 

reconsideration of the water quality 

certification rule promulgated in 2020, 

the Environmental Protection Agency 

(EPA or the Agency) is publishing for 

public comment a proposed rule 

revising and replacing the Agency’s 

2020 regulatory requirements for water 

quality certification under Clean Water 

Act (CWA) section 401. This proposed 

rule would update the existing 

regulations to be more consistent with 

the statutory text of the 1972 CWA; to 

clarify, reinforce, and provide a measure 

of consistency with respect to elements 

of section 401 certification practice that 

have evolved over the 50 years since the 

1971 Rule was promulgated; and to 

support an efficient and predictable 

certification process that is consistent 

with the water quality protection and 

cooperative federalism principles 

central to CWA section 401. This 

proposal is consistent with the 

Executive order signed on January 20, 

2021, ‘‘Protecting Public Health and the 

Environment and Restoring Science to 

Tackle the Climate Crisis,’’ which 

directed the Agency to review the water 

quality certification rule EPA 

promulgated in 2020. The Agency is 

also proposing conforming amendments 

to the water quality certification 

regulations for EPA-issued National 

Pollutant Discharge Elimination System 

permits. 

DATES: Comments must be received on 

or before August 8, 2022. Please refer to 

the SUPPLEMENTARY INFORMATION section 

for additional information on the public 

hearing. 

ADDRESSES: You may send comments, 

identified by Docket ID No. EPA–HQ– 

OW–2022–0128, by any of the following 

methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov/ (our 

preferred method). Follow the online 

instructions for submitting comments. 

• Email: OW-Docket@epa.gov. 

Include Docket ID No. EPA–HQ–OW– 

2022–0128 in the subject line of the 

message. 

• Hand Delivery/Courier: EPA Docket 

Center, WJC West Building, Room 3334, 

1301 Constitution Avenue NW, 

Washington, DC 20004. The Docket 

Center’s hours of operations are 8:30 

a.m.–4:30 p.m., Monday–Friday (except 

Federal Holidays). 

Instructions: All submissions received 

must include the Docket ID No. EPA– 

HQ–OW–2022–0128 for this 

rulemaking. Comments received may be 

posted without change to https://

www.regulations.gov/, including any 

personal information provided. For 

detailed instructions on sending 

comments and additional information 

on the rulemaking process, see the 

‘‘Public Participation’’ heading of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

FOR FURTHER INFORMATION CONTACT: 

Lauren Kasparek, Oceans, Wetlands, 

and Communities Division, Office of 

Water (4504–T), Environmental 

Protection Agency, 1200 Pennsylvania 

Avenue NW, Washington, DC 20460; 

telephone number: 202–564–3351; 

email address: cwa401@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Executive Summary 

II. Public Participation 

A. Written Comments 

B. Virtual Public Hearing 

III. General Information 

A. What action is the Agency taking? 

B. What is the Agency’s authority for 

taking this action? 

C. What are the incremental costs and 

benefits of this action? 

IV. Background 

A. Development of Section 401 

B. Overview of CWA Section 401 

Requirements 

C. Prior Rulemaking Efforts Addressing 

Section 401 

D. Summary of Stakeholder Outreach 

V. Proposed Rule 

A. When Section 401 Certification Is 

Required 

B. Pre-Filing Meeting Request 

C. Request for Certification 

D. Reasonable Period of Time 

E. Scope of Certification 

F. Certification Decisions 

G. Federal Agency Review 

H. EPA’s Roles Under Section 401 

I. Modifications 

J. Enforcement and Inspections 

K. Neighboring Jurisdictions 

L. Treatment in a Similar Manner as a State 

Under Section 401 

M. Implementation Considerations 

VI. Economic Analysis 

VII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review; Executive Order 

13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

I. Executive Summary 

Clean Water Act (CWA) section 401 

provides states 1 and authorized tribes 2

with a powerful tool to protect the 

quality of their waters from adverse 

impacts resulting from the construction 

and operation of federally licensed or 

permitted projects. Under CWA section 

401, a Federal agency may not issue a 

license or permit to conduct any activity 

that may result in any discharge into a 

‘‘water of the United States’’ 3 unless the 

state or authorized tribe where the 

discharge would originate either issues 

a CWA section 401 water quality 

certification ‘‘that any such discharge 

will comply with the applicable 

provisions of Sections 301, 302, 303, 

306, and 307’’ of the CWA, or waives 

certification. 33 U.S.C. 1341(a)(1). When 

granting a CWA section 401 

certification, states and authorized 

tribes are directed by CWA section 

401(d) to include conditions, including 

‘‘effluent limitations and other 

limitations, and monitoring 

requirements’’ necessary to assure that 

the applicant for a Federal license or 


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4Water Quality Improvement Act of 1970, Public 

Law 91–224, 84 Stat. 91 (April 3, 1970). 

5S. Rep. 91–351, at 26 (1969) (‘‘Existing law 

declares it to be the intent of Congress that all 

Federal departments, agencies, and 

instrumentalities shall comply with water quality 

standards. This declaration of intent has proved 

unsatisfactory. One basic thrust of S. 7 is to require 

that all activity over which the Federal Government 

has direct control— . . . . federally licensed or 

permitted activity—be carried out in a manner to 

assure compliance with applicable water quality 

standards.’’) 

6City of Milwaukee v. Illinois, 451 U.S. 304, 310, 

317 (1981). 

7Public Law 92–500, 86 Stat. 816, as amended, 

Public Law 95–217, 91 Stat. 1566, 33 U.S.C. 1251 

et seq. 

8 36 FR 8563 (May 8, 1971), redesignated at 36 FR 

22369, 22487 (November 25, 1971), further 

redesignated at 37 FR 21441 (October 11, 1972), 

further redesignated at 44 FR 32854, 32899 (June 7, 

1979). 

9See Wetlands and 401 Certification: 

Opportunities and Guidelines for States and 

Eligible Indian Tribes (April 1989) (hereinafter, 

1989 Guidance); Clean Water Act Section 401 Water 

Quality Certification: A Water Quality Protection 

Tool for States and Tribes (May 2010) (hereinafter, 

2010 Handbook) (rescinded). 

10Clean Water Act Section 401 Certification Rule, 

85 FR 42210 (July 13, 2020) (hereinafter, 2020 

Rule). For further discussion on the 2020 Rule, 

including legal challenges, please see Section IV.C 

of this preamble. 

11EPA has defined environmental justice as the 

‘‘fair treatment and meaningful involvement of all 

people regardless of race, color, national origin, or 

income with respect to the development, 

implementation and enforcement of environmental 

laws, regulations and policies.’’ See https://

www.epa.gov/environmentaljustice/learn-aboutenvironmental-justice. 

permit will comply with CWA sections 

301, 302, 306, and 307, and with ‘‘any 

other appropriate requirement of State 

law.’’ Id. at 1341(d). 

Congress originally created the state 

water quality certification requirement 

in section 21(b) of the Water Quality 

Improvement Act of 1970, which 

amended the Federal Water Pollution 

Control Act (FWPCA).4 Congress 

granted states this certification authority 

in response to Federal agencies’ failure 

to achieve Congress’s previously stated 

goal of assuring that federally licensed 

or permitted activities comply with 

water quality standards.5 Two years 

later, Congress revised the Federal water 

quality protection framework 6 when it 

enacted the Federal Water Pollution 

Control Act Amendments of 1972 

(commonly known as the Clean Water 

Act or CWA).7 In those Amendments, 

Congress placed the state water quality 

certification requirement in section 401, 

using ‘‘substantially section 21(b) of 

existing law,’’ with relevant conforming 

amendments ‘‘to assure consistency 

with the [ ] changed emphasis from 

water quality standards to effluent 

limitations based on the elimination of 

any discharge of pollutants.’’ S. Rep. No. 

92–414 at 69 (1971); see also H.R. Rep. 

No. 92–911 at 121 (1972) (‘‘Section 401 

is substantially section 21(b) of the 

existing law amended to assure that it 

conforms and is consistent with the new 

requirements of the Federal Water 

Pollution Control Act.’’). Section 401’s 

grant of authority to states and 

authorized tribes to play a significant 

role in the Federal licensing or 

permitting process is consistent with the 

overall cooperative federalism 

framework of the CWA, which provides 

states and authorized tribes with a major 

role in implementing the CWA, 

balancing their traditional power to 

regulate land and water resources 

within their borders with the need for 

a national water quality regulation. 

EPA promulgated implementing 

regulations for water quality 

certification in 1971 (1971 Rule) 8 prior 

to enactment of the 1972 amendments to 

the CWA. In 1979, the Agency 

recognized the need to update its water 

quality certification regulations, in part 

to be consistent with the 1972 

amendments. See 44 FR 32854, 32856 

(June 7, 1979) (noting the 40 CFR part 

121 regulations predated the 1972 

amendments). However, the Agency 

declined to update the 40 CFR part 121 

regulations at the time because it had 

not consulted with other Federal 

agencies impacted by the water quality 

certification process, and instead 

developed regulations applicable to 

water quality certifications on EPAissued National Pollutant Discharge 

Elimination System (NPDES) permits. 

Id.; see e.g., 40 CFR 124.53 through 

124.55. As a result, the 1971 Rule did 

not fully reflect the current statutory 

language, nor does it reflect or account 

for water quality certification practices 

and judicial interpretations of section 

401 that have evolved over the past 50 

years. Following the promulgation of 

the 1971 Rule, several seminal court 

cases have addressed fundamental 

aspects of the water quality certification 

process, including the scope of 

certification review and the appropriate 

timeframe for certification decisions. 

States have also developed and 

implemented their own water quality 

certification programs and practices 

aimed at protecting waters within their 

borders. During this time, the Agency 

supported state and tribal water quality 

certification practices and the critical 

role states and tribes play in protecting 

their waters under section 401.9

EPA revised the 1971 Rule in 2020.10

The 2020 Rule did not update the 

regulations applicable to water quality 

certifications on EPA-issued NPDES 

permits but noted that the Agency 

would ‘‘make any necessary conforming 

regulatory changes in a subsequent 

rulemaking.’’ 85 FR 42219. The 2020 

Rule represented a substantive 

departure from some of the Agency’s 

and certifying authorities’ core prior 

interpretations and practices with 

respect to water quality certification. 

Moreover, the 2020 Rule deviated 

sharply from the cooperative federalism 

framework central to section 401 and 

the CWA. While the 2020 Rule did 

reaffirm some of the Agency’s and the 

courts’ prior interpretations, e.g., the 

need for a potential point source 

discharge into a water of the United 

States to trigger the section 401 water 

quality certification requirement, the 

2020 Rule rejected nearly twenty-five 

years of Agency practice and Supreme 

Court precedent regarding the 

appropriate scope of certification 

review, i.e., rejecting ‘‘activity as a 

whole’’ for the narrower ‘‘dischargeonly’’ approach. Additionally, the 2020 

Rule introduced new procedural 

requirements that caused disruption to 

state and tribal certification programs 

that had evolved over the last half 

century. In this proposal, the Agency is 

returning to some of those important 

core principles, such as an ‘‘activity as 

a whole’’ approach to the scope of 

certification review and greater 

deference to the role of states and tribes 

in the certification process, while 

retaining (and adding) elements that 

provide transparency and predictability 

for all stakeholders. 

On January 20, 2021, President Biden 

signed Executive Order 13990 directing 

Federal agencies to review actions taken 

in the prior four years that are, or may 

be, inconsistent with the policies stated 

in the order (including, but not limited 

to, bolstering resilience to climate 

change impacts and prioritizing 

environmental justice 11). Protecting 

Public Health and the Environment and 

Restoring Science to Tackle the Climate 

Crisis, Executive Order 13990, 86 FR 

7037 (published January 25, 2021, 

signed January 20, 2021). Pursuant to 

this Executive order, EPA reviewed the 

2020 Rule. EPA identified substantial 

concerns with a number of its 

provisions that were at odds with 

section 401’s cooperative federalism 

approach to ensuring that states and 

tribes are empowered to protect their 

water quality. See Notice of Intention to 

Reconsider and Revise the Clean Water 

Act Section 401 Certification Rule, 86 

FR 29541, 29542 (June 2, 2021) 

(identifying the Agency’s concerns with 

the 2020 Rule). As a result, the Agency 

announced its intention to revise the 

2020 Rule so that it is (1) well-informed 


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12See EPA’s Motion for Remand Without Vacatur, 

No. 3:20–cv–04636–WHA (July 1, 2021). 

13The Court’s stay order does not alter EPA’s 

legal conclusions discussed in this proposed rule. 

The request for a stay concerned only the 

appropriateness of the district court’s vacatur of a 

promulgated rule before a decision on the merits. 

The stay request did not raise any issues related to 

the substance of CWA section 401 certification or 

the merits of the 2020 Rule. See Louisiana 

Application for Stay Pending Appeal in Louisiana 

v. Am. Rivers, No. 21A539, pp. 1, 4, 16 (March 21, 

2022) (identifying ‘‘the core issue in this case’’ to 

be the appropriateness of the district court’s vacatur 

order) (identifying the APA—not the CWA or 

section 401—as the statutory provision involved in 

the application for stay) (starting the application for 

stay with the question: ‘‘Can a single district court 

vacate a rule that an agency adopted through noticeand-comment rulemaking without first finding that 

the rule is unlawful?’’). Neither the Court’s 

majority—which did not issue an opinion 

explaining its stay order—nor the dissent discussed 

any aspect of section 401 certification or the 2020 

Rule. 

by stakeholder input, (2) better aligned 

with the cooperative federalism 

principles that have been central to the 

effective implementation of the CWA, 

and (3) responsive to the environmental 

protection and other objectives outlined 

in Executive Order 13990. Id. 

Five months after EPA’s 

announcement of its intent to reconsider 

and revise the 2020 Rule, on October 21, 

2021, a Federal district court remanded 

and, while EPA had moved for a remand 

without vacatur,12 vacated the 2020 

Rule. In Re Clean Water Act 

Rulemaking, No. 3:20–cv–04636–WHA, 

2021 WL 4924844 (N.D. Cal. October 21, 

2021). The court found that vacatur was 

appropriate ‘‘in light of the lack of 

reasoned decision-making and apparent 

errors in the rule’s scope of certification, 

indications that the rule contravenes the 

structure and purpose of the Clean 

Water Act, and that EPA itself has 

signaled that it could not or would not 

adopt the same rule upon remand.’’ Slip 

op. at 14–15. The effect of the court’s 

vacatur was to reinstate the 1971 Rule, 

effective October 21, 2021. Defendantintervenors appealed the vacatur order 

to the U.S. Court of Appeals for the 

Ninth Circuit. On April 6, 2022, the U.S. 

Supreme Court granted the defendantintervenors’ application for a stay of the 

vacatur pending the Ninth Circuit 

appeal. Louisiana v. Am. Rivers, No. 

21A539 (S. Ct. April 6, 2022).13 The 

effect of the Court’s stay is that the 2020 

Rule once again applies to section 401 

certifications until EPA finalizes this 

proposed rulemaking. 

The Agency is now proposing to 

revise the 2020 Rule to better reflect the 

cooperative federalism framework and 

text of the 1972 statutory amendments 

and provide needed clarity on issues 

such as scope of certification and the 

reasonable period of time for a certifying 

authority to act. The proposed rule 

would modify the regulatory text 

implementing section 401 to support a 

more efficient, effective, and predictable 

certifying authority-driven certification 

process consistent with the water 

quality protection and other policy goals 

of Executive Order 13990. The Agency 

is also proposing conforming 

amendments to the water quality 

certification regulations for EPA-issued 

NPDES permits. 

II. Public Participation 

A. Written Comments 

Submit your comments, identified by 

Docket ID No. EPA–HQ–OW–2022– 

0128, at https://www.regulations.gov 

(our preferred method), or the other 

methods identified in the ADDRESSES

section above. Once submitted, 

comments cannot be edited or removed 

from the docket. EPA may publish any 

comment received to its public docket. 

Do not submit to EPA’s docket at 

https://www.regulations.gov any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e., 

on the web, cloud, or other file sharing 

system). For additional submission 

methods, the full EPA public comment 

policy, information about CBI or 

multimedia submissions, and general 

guidance on making effective 

comments, please visit https://

www.epa.gov/dockets/commenting-epadockets. 

B. Virtual Public Hearing 

Please note that because of current 

Centers for Disease Control and 

Prevention (CDC) recommendations, as 

well as state and local orders for social 

distancing to limit the spread of 

COVID–19, EPA does not anticipate 

holding in-person public meetings at 

this time. EPA is hosting a virtual public 

hearing on Monday, July 18, 2022; the 

public hearing will consist of three 

virtual sessions, which will be recorded 

for transcription purposes. 

EPA will begin pre-registering 

speakers for the hearing upon 

publication of this document in the 

Federal Register. To register to speak at 

or attend the virtual hearing on July 18, 

2022, please use the online registration 

form available at https://www.epa.gov/ 

cwa-401/upcoming-outreach-andengagement-cwa-section-401- 

certification. The last day to pre-register 

to speak at the hearing will be July 12, 

2022, three working days before the 

hearing date. On July 15, 2022, EPA will 

post a general agenda for the hearing 

that will list pre-registered speakers in 

approximate order at: https://

www.epa.gov/cwa-401/upcomingoutreach-and-engagement-cwa-section401-certification. 

EPA will make every effort to follow 

the schedule as closely as possible on 

the day of the hearing; however, please 

plan for the hearing sessions to run 

either ahead of schedule or behind 

schedule. A public hearing session may 

end ahead of schedule if all interested 

speakers have had the opportunity to 

participate and if no other speakers 

come forward within 15 minutes of the 

last speaker. 

Each commenter will have five 

minutes to give their name and 

affiliation, and provide oral testimony. 

EPA encourages commenters to provide 

the Agency with a copy of their oral 

testimony electronically by emailing it 

to cwa401@epa.gov. EPA also 

recommends submitting the text of your 

oral comments as written comments to 

the rulemaking docket. 

EPA may ask clarifying questions 

during the oral presentations but will 

not respond to the presentations at that 

time. Written statements and supporting 

information submitted during the 

comment period will be considered 

with the same weight as oral comments 

and supporting information presented at 

the public hearing. 

Please note that any updates made to 

any aspect of the hearing will be posted 

online at https://www.epa.gov/cwa-401/ 

upcoming-outreach-and-engagementcwa-section-401-certification. While 

EPA expects the hearing to go forward 

as set forth above, please monitor our 

website or contact cwa401@epa.gov to 

determine if there are any updates. EPA 

does not intend to publish a document 

in the Federal Register announcing 

updates. 

If you require the services of a 

translator or special accommodations 

such as audio description, please preregister for the hearing with cwa401@

epa.gov and describe your needs by July 

5, 2022. EPA may not be able to arrange 

accommodations without advanced 

notice. 

III. General Information 

A. What action is the Agency taking? 

In this action, the Agency is 

publishing a proposed rule to replace its 

currently effective water quality 


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14City of Milwaukee v. Illinois, 451 U.S. 304, 310, 

317 (1981). 

15 33 U.S.C. 1251(b). 

16The conference substitute noted that ‘‘[t]he 

inserting of section 303 into the series of sections 

listed in section 401 is intended to mean that a 

federally licensed or permitted activity, including 

discharge permits under section 402, must be 

certified to comply with State water quality 

standards adopted under section 303. The inclusion 

of section 303 is intended to clarify the 

requirements of section 401. It is understood that 

section 303 is required by the provisions of section 

301. Thus, the inclusion of section 303 in section 

401 while at the same time not including section 

303 in the other sections of the Act where sections 

301, 302, 306, and 307 are listed is in no way 

intended to imply that 303 is not included by 

reference to 301 in those other places in the Act, 

such as sections 301, 309, 402, and 509 and any 

other point where they are listed. Section 303 is 

always included by reference where section 301 is 

listed.’’ Id. 

certification regulations at 40 CFR part 

121. 

B. What is the Agency’s authority for 

taking this action? 

The authority for this action is the 

Federal Water Pollution Control Act, 33 

U.S.C. 1251 et seq., including but not 

limited to sections 101(d), 304(h), 401, 

402, and 501(a). 

C. What are the incremental costs and 

benefits of this action? 

The Agency prepared the Economic 

Analysis for the Proposed ‘‘Clean Water 

Act Section 401 Water Quality 

Certification Improvement Rule’’ 

(‘‘Economic Analysis for the Proposed 

Rule’’), available in the rulemaking 

docket, for informational purposes to 

analyze the potential costs and benefits 

associated with this proposed action. 

The analysis is summarized in section 

VI in this preamble. The Economic 

Analysis for the Proposed Rule is 

qualitative because of significant 

limitations and uncertainties associated 

with estimating the incremental costs 

and benefits of the proposed rule; see 

section VI of this preamble for further 

discussion. 

IV. Background 

A. Development of Section 401 

In 1965, Congress amended the 

Federal Water Pollution Control Act 

(FWPCA) to require states, or, where a 

state failed to act, the newly created 

Federal Water Pollution Control 

Administration, to promulgate water 

quality standards for interstate waters 

within each state. Water Quality Act of 

1965, Public Law 89–234, 79 Stat. 903 

(October 2, 1965). These standards were 

meant ‘‘to protect the public health or 

welfare, enhance the quality of water 

and serve the purposes of [the] Act,’’ 

which included ‘‘enhanc[ing] the 

quality and value of our water resources 

and [] establish[ing] a national policy for 

the prevention, control, and abatement 

of water pollution.’’ Id. Yet, only a few 

years later, while debating potential 

amendments to the FWPCA, Congress 

discovered that, despite that laudable 

national policy, states faced obstacles to 

achieving these newly developed water 

quality standards because of an 

unexpected source: Federal agencies. 

Instead of helping states cooperatively 

achieve these Federal policy objectives, 

Federal agencies were ‘‘sometimes . . . 

a culprit with considerable 

responsibility for the pollution problem 

which is present.’’ 115 Cong. Rec. 9011, 

9030 (April 15, 1969). Federal agencies 

were issuing licenses and permits 

‘‘without any assurance that [water 

quality] standards [would] be met or 

even considered.’’ S. Rep. No. 91–351, 

at 3 (August 7, 1969). As a result, states, 

industry groups, conservation groups, 

and the public alike ‘‘questioned the 

justification for requiring compliance 

with water quality standards’’ if Federal 

agencies themselves would not comply 

with those standards. Id. at 7. 

In response to such concerns, 

Congress introduced language that 

would bolster state authority to protect 

their waters and ensure federally 

licensed or permitted projects would 

not ‘‘in fact become a source of 

pollution’’ either through ‘‘inadequate 

planning or otherwise.’’ 115 Cong. Rec. 

9011, 9030 (April 15, 1969). Under this 

new provision, instead of relying on the 

Federal Government to ensure 

compliance with water quality 

standards, states would be granted the 

power to certify that there was 

reasonable assurance that federally 

licensed or permitted activities would 

meet water quality standards before 

such a license or permit could be 

issued. Ultimately, Congress added this 

new provision as section 21(b) of the 

Water Quality Improvement Act of 

1970, Public Law 91–224, 84 Stat. 91 

(April 3, 1970). 

Under section 21(b)(1), applicants for 

Federal licenses or permits were 

required to obtain state certification that 

there was reasonable assurance that any 

federally licensed or permitted activity 

that may result in any discharge into 

navigable waters would not violate 

applicable water quality standards. Id. 

Additionally, section 21(b) also 

provided a role for other potentially 

affected states, discussed scenarios 

under which state certification for both 

Federal construction and operation 

licenses or permits may be necessary, 

and provided an opportunity for a 

Federal license or permit to be 

suspended for violating applicable 

water quality standards. Section 21(b) 

embodied the cooperative federalism 

principles from the 1965 amendments 

by providing states with the opportunity 

to influence, yet not ‘‘frustrate,’’ the 

Federal licensing or permitting process. 

See 115 Cong. Rec. 28875, 28971 

(October 7, 1969) (noting the idea of 

state certification ‘‘[arose] out of policy 

of the 1965 Act that the primary 

responsibility for controlling water 

pollution rests with the States’’); see 

also H.R. Rep. No. 91–940, at 54–55 

(March 24, 1970) (Conf. Rep) (adding a 

timeline for state certification ‘‘[i]n 

order to insure that sheer inactivity by 

the State . . . will not frustrate the 

Federal application’’). 

In 1972, Congress significantly 

revised the statutory water quality 

protection framework.14 Clean Water 

Act, Public Law 92–500, 86 Stat. 816, as 

amended, Public Law 95–217, 91 Stat. 

1566, 33 U.S.C. 1251 et seq. While doing 

so, Congress reaffirmed ‘‘the primary 

responsibilities and rights of States to 

prevent, reduce, and eliminate 

pollution.’’ 15 To this end, the 1972 

amendments included section 401, 

which Congress considered to be 

‘‘substantially section 21(b) of the 

existing law amended to assure that it 

conforms and is consistent with the new 

requirements of the Federal Water 

Pollution Control Act.’’ H.R. Rep. No. 

92–911 at 121 (1972). These ‘‘new 

requirements’’ of the 1972 Act reflected 

a ‘‘changed emphasis from water quality 

standards to effluent limitations based 

on the elimination of any discharge of 

pollutants.’’ S. Rep. No. 92–414 at 69 

(1971). As a result, unlike section 21(b) 

which focused only on compliance with 

water quality standards, section 401 

required applicants for Federal licenses 

and permits to obtain state certification 

of compliance with the newly 

developed provisions focused on 

achieving effluent limitations. 33 U.S.C. 

1341(a)(1). A few years later, Congress 

amended section 401 to correct an 

omission from the 1972 statute and 

clarify that it still intended for states to 

also certify compliance with water 

quality standards. See H.R. Rep. No. 95– 

830, at 96 (1977) (inserting section 303 

in the list of applicable provisions 

throughout section 401).16

Section 401 of the 1972 Act also 

introduced a new subsection, subsection 

(d), that explicitly provided states with 

the ability to include ‘‘effluent 

limitations and other limitations, and 

monitoring requirements’’ in their 

certification to assure that the applicant 

will comply not only with sections 301, 

302, 306, and 307, but also with ‘‘any 

other appropriate requirement of State 

law.’’ Id. at 1341(d). In subsection (d), 


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17Section 401(a)(3) identifies the bases a 

certifying authority may rely upon for finding that 

there is no longer reasonable assurance. These are 

changes after certification was granted in: 

construction or operation of the facility, 

characteristics of the water where the discharge 

occurs, or the applicable water quality criteria or 

effluent limits or other requirements. Id. at 

1341(a)(3). 

18Each Federal licensing or permitting agency 

may have its own regulations regarding additional 

processes for suspending a license or permit. 

Congress also provided that any 

certification ‘‘shall become a condition 

on any Federal license or permit.’’ Id.; 

see also S. Rep. No. 92–414, at 69 (1971) 

(‘‘The certification provided by a State 

in connection with any Federal license 

or permit must set forth effluent 

limitations and monitoring 

requirements necessary to comply with 

the provisions of this Act or under State 

law and such a certification becomes an 

enforceable condition on the Federal 

license or permit.’’). Consistent with 

Congress’s intent to empower states to 

protect their waters from the effects of 

federally licensed or permitted projects, 

this provision ‘‘assure[d] that Federal 

licensing or permitting agencies cannot 

override State water quality 

requirements.’’ S. Rep. No. 92–414, at 69 

(1971). 

B. Overview of CWA Section 401 

Requirements 

Under CWA section 401, a Federal 

agency may not issue a license or permit 

to conduct any activity that may result 

in any discharge into a water of the 

United States, unless the certifying 

authority where the discharge would 

originate either issues a CWA section 

401 water quality certification or waives 

certification. 33 U.S.C. 1341(a)(1). The 

applicant for the Federal license or 

permit that requires section 401 

certification is responsible for obtaining 

certification or a waiver from the 

certifying authority, which could be a 

state, territory, authorized tribe, or EPA, 

depending on where the discharge 

originates. To initiate the certification 

process, Federal license or permit 

applicants must submit a ‘‘request for 

certification’’ to the appropriate 

certifying authority. The certifying 

authority must act upon the request 

within a ‘‘reasonable period of time 

(which shall not exceed one year).’’ Id. 

Additionally, during the reasonable 

period of time, certifying authorities 

must provide public notice of a 

certification request, and where 

appropriate, hold a public hearing. Id. 

If a certifying authority determines 

that a discharge will comply with the 

listed provisions in section 401(a)(1), it 

may grant or waive certification. When 

granting a CWA section 401 

certification, certifying authorities must 

include conditions (e.g., ‘‘effluent 

limitations and other limitations, and 

monitoring requirements’’) pursuant to 

CWA section 401(d) necessary to assure 

that the applicant for a Federal license 

or permit will comply with applicable 

provisions of CWA sections 301, 302, 

306, and 307, and with ‘‘any other 

appropriate requirement of State law.’’ 

Id. at 1341(d). If a certifying authority 

grants certification with conditions, that 

certification shall become a condition 

on the Federal license or permit. Id. 

Once an applicant provides a Federal 

agency with a certification, the Federal 

agency may issue the license or permit. 

Id. at 1341(a)(1). 

If a certifying authority is unable to 

provide such certification, the certifying 

authority may deny or waive 

certification. If certification is denied, 

the Federal agency cannot issue the 

Federal license or permit. If certification 

is waived, the Federal agency may issue 

the Federal license or permit. Certifying 

authorities may waive certification 

expressly, or they may waive 

certification by ‘‘fail[ing] or refus[ing] to 

act on a request for certification within 

a reasonable period of time.’’ Either 

way, the Federal licensing or permitting 

agency may issue the Federal license or 

permit. Id. 

Although Congress provided section 

401 certification authority to the 

jurisdiction in which the discharge 

originates, Congress also recognized that 

another state’s or authorized tribe’s 

water quality may be affected by the 

discharge, and it created an opportunity 

for such a state or tribe to raise 

objections to, and request a hearing on, 

the Federal license or permit. See id. at 

1341(a)(2). Section 401(a)(2) requires the 

Federal agency to ‘‘immediately notify’’ 

EPA ‘‘upon receipt’’ of a ‘‘[license or 

permit] application and certification.’’ 

Id. EPA in turn has 30 days from that 

notification to determine whether the 

discharge ‘‘may affect’’ the water quality 

of any other state or authorized tribe. Id. 

If the Agency makes a ‘‘may affect’’ 

determination, it must notify the other 

state or authorized tribe, the Federal 

agency, and the applicant. The other 

state or authorized tribe then has 60 

days to determine whether the discharge 

will violate its water quality 

requirements. If the other state or 

authorized tribe makes such a 

determination within those 60 days, it 

must notify EPA and the Federal 

agency, in writing, of its objection(s) to 

the issuance of the Federal license or 

permit and request a public hearing. Id. 

The Federal licensing or permitting 

agency is responsible for holding the 

public hearing. At the hearing, EPA is 

required to submit its evaluation and 

recommendations regarding the 

objection. Based on the 

recommendations from the objecting 

state or authorized tribe and EPA’s own 

evaluation and recommendation, as well 

as any evidence presented at the 

hearing, the Federal agency is required 

to condition the license or permit ‘‘in 

such manner as may be necessary to 

insure compliance with applicable 

water quality requirements.’’ Id. The 

license or permit may not be issued ‘‘if 

the imposition of conditions cannot 

ensure such compliance.’’ Id. 

Section 401 also addresses when an 

applicant must provide separate 

certifications for a facility’s Federal 

construction license or permit and any 

necessary Federal operating license or 

permit. Under section 401(a)(3), an 

applicant may rely on the same 

certification obtained for the 

construction of a facility for any Federal 

operating license or permit for the 

facility if (1) the Federal agency issuing 

the operating license or permit notifies 

the certifying authority, and (2) the 

certifying authority does not within 60 

days thereafter notify the Federal agency 

that ‘‘there is no longer reasonable 

assurance that there will be compliance 

with applicable provisions of sections 

[301, 302, 303, 306 and 307 of the 

CWA].’’ Id.17

Sections 401(a)(4) and (a)(5) discuss 

circumstances where the certified 

Federal license or permit may be 

suspended by the Federal agency. First, 

a Federal agency may suspend a license 

or permit where a certifying authority 

determines during a pre-operation 

inspection of the facility or activity that 

it will violate applicable water quality 

requirements. Id. at 1341(a)(4). This preoperation inspection and possible 

suspension apply only where a facility 

or activity does not require a separate 

operating license or permit. Under 

section 401, the Federal agency may not 

suspend the license or permit unless it 

holds a public hearing.18 Id. Once a 

license or permit is suspended, it must 

remain suspended until the certifying 

authority notifies the Federal agency 

that there is reasonable assurance that 

the facility or activity will not violate 

applicable water quality requirements. 

Id. Second, a Federal agency may 

suspend or revoke a certified license or 

permit if a judgment is entered under 

the CWA that the facility or activity 

violated applicable provisions of 

sections 301, 302, 303, 306, or 307 of the 

CWA. Id. at 1341(a)(5). Section 401 not 

only identifies the roles and obligations 

of Federal license or permit applicants, 

certifying authorities, and Federal 

agencies, it also provides specific roles 


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19 If the documents provided are insufficient to 

make the determination, the Regional Administrator 

can request any supplemental information ‘‘as may 

be required to make the determination.’’ 40 CFR 

121.12. 

for EPA. First, EPA may act as a 

certifying authority where a state or 

tribe ‘‘has no authority to give such 

certification.’’ Id. at 1341(a)(1). Second, 

as discussed above, EPA is responsible 

for notifying other states or authorized 

tribes that may be affected by a 

discharge from a federally licensed or 

permitted activity, and where required, 

for providing an evaluation and 

recommendation(s) on such other state 

or authorized tribe’s objections. Id. at 

1341(a)(2). Lastly, EPA is responsible for 

providing technical assistance upon 

request from Federal agencies, certifying 

authorities, or Federal license or permit 

applicants. Id. at 1341(b). 

C. Prior Rulemaking Efforts Addressing 

Section 401 

In the last 50 years, EPA has 

undertaken two rulemaking efforts 

focused solely on addressing water 

quality certification, one of which 

preceded the 1972 enactment of the 

CWA. The Agency has also developed 

several guidance documents on the 

section 401 process. This section of the 

preamble discusses EPA’s major 

rulemaking and guidance efforts over 

the last 50 years, including most 

recently, the 2020 Rule and EPA’s 

review of it pursuant to Executive Order 

13990. 

1. 1971 Rule 

In February 1971, EPA proposed 

regulations implementing section 401’s 

predecessor provision, section 21(b). 36 

FR 2516 (February 5, 1971). Those 

proposed regulations were divided into 

four subparts, one of which provided 

‘‘definitions of general applicability for 

the regulations and would provide for 

the uniform content and form of 

certification.’’ The other three subparts 

focused on EPA’s roles. Id. In May 1971, 

after receiving public comments, EPA 

finalized the water quality certification 

regulations with the proposed four-part 

structure at 18 CFR part 615. 36 FR 8563 

(May 8, 1971). 

The first subpart of the 1971 Rule 

(subpart A) established requirements 

that applied generally to all 

stakeholders in the certification process, 

including an identification of 

information that all certifying 

authorities must include in a 

certification. According to the 1971 

Rule, a certifying authority was required 

to include several components in a 

certification, including the name and 

address of the project applicant; a 

statement that the certifying authority 

either examined the Federal license or 

permit application or examined other 

information from the project applicant 

and, based upon that evaluation, 

concluded that ‘‘there is reasonable 

assurance that the activity will be 

conducted in a manner which will not 

violate applicable water quality 

standards;’’ any conditions that the 

certifying authority deemed ‘‘necessary 

or desirable for the discharge of the 

activity;’’ and any other information the 

certifying authority deemed appropriate. 

40 CFR 121.2(a) (2019). Additionally, 

the 1971 Rule allowed for modifications 

to certifications upon agreement by the 

certifying authority, the Federal 

licensing or permitting agency, and 

EPA. Id. at § 121.2(b) (2019). 

The second subpart of the 1971 Rule 

(subpart B) established a process for 

EPA to provide notification of potential 

water quality affects to other potentially 

affected jurisdictions. Under the 1971 

Rule, the Regional Administrator was 

required to review the Federal license or 

permit application, the certification or 

waiver, and, where requested by EPA, 

any supplemental information provided 

by the Federal licensing or permitting 

agency.19 If the Regional Administrator 

determined that there was ‘‘reason to 

believe that a discharge may affect the 

quality of the waters of any State or 

States other than the State in which the 

discharge originates,’’ the Regional 

Administrator would notify each 

affected state within 30 days of receipt 

of the application materials and 

certification. Id. at §§ 121.13, 121.16 

(2019). In cases where the Federal 

licensing or permitting agency held a 

public hearing on the objection raised 

by an affected jurisdiction, the Federal 

agency was required to forward notice 

of such objection to the Regional 

Administrator no later than 30 days 

prior to the hearing. Id. at § 121.15 

(2019). At the hearing, the Regional 

Administrator was required to submit 

an evaluation and ‘‘recommendations as 

to whether and under what conditions 

the license or permit should be issued.’’ 

Id. 

Subpart B also provided that 

certifying authorities may waive the 

certification requirement under two 

circumstances: first, when the certifying 

authority sends written notification 

expressly waiving its authority to act on 

a request for certification; and second, 

when the Federal licensing or 

permitting agency sends written 

notification to the EPA Regional 

Administrator that the certifying 

authority failed to act on a certification 

request within a reasonable period of 

time after receipt of such a request. Id. 

at § 121.16 (2019). The 1971 Rule 

provided that the Federal licensing or 

permitting agency determined what 

constitutes a ‘‘reasonable period of 

time,’’ and that the period shall 

generally be six months, but in any 

event, not exceed one year. Id. at 

§ 121.16(b) (2019). 

The third subpart of the 1971 Rule 

(subpart C) established requirements 

that only applied when EPA acted as the 

certifying authority, including 

identifying specific information that 

must be included in a certification 

request. The project applicant was 

required to submit to the EPA Regional 

Administrator a signed request for 

certification that included a ‘‘complete 

description of the discharge involved in 

the activity for which certification is 

sought,’’ which included five items: the 

name and address of the project 

applicant, a description of the facility or 

activity and of any related discharge 

into waters of the United States, a 

description of the function and 

operation of wastewater treatment 

equipment, dates on which the activity 

and associated discharge would begin 

and end, and a description of the 

methods to be used to monitor the 

quality and characteristics of the 

discharge. Id. at § 121.22 (2019). Once 

the request was submitted to EPA, the 

Regional Administrator was required to 

provide public notice of the request and 

an opportunity to comment. The 1971 

Rule specifically stated that ‘‘[a]ll 

interested and affected parties will be 

given reasonable opportunity to present 

evidence and testimony at a public 

hearing on the question whether to grant 

or deny certification if the Regional 

Administrator determined that such a 

hearing is necessary or appropriate.’’ Id. 

at § 121.23 (2019). If, after consideration 

of relevant information, the Regional 

Administrator determines that there is 

‘‘reasonable assurance that the proposed 

activity will not result in a violation of 

applicable water quality standards,’’ the 

Regional Administrator would issue the 

certification. Id. at § 121.24 (2019). 

The fourth and final subpart of the 

1971 Rule (subpart D) provided that the 

Regional Administrator ‘‘may, and upon 

request shall’’ provide Federal licensing 

and permitting agencies with 

information regarding water quality 

standards and advise them as to the 

status of compliance by dischargers 

with the conditions and requirements of 

applicable water quality standards. Id. 

at § 121.30 (2019). 

In November 1971, EPA reorganized 

and transferred several regulations, 

including the water quality certification 

regulations, into title 40 of the Code of 

Federal Regulations. EPA subsequently 


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20Updating Regulations on Water Quality 

Certifications, 84 FR 44080 (August 22, 2019). 

redesignated the water quality 

certification regulations twice in the 

1970s. See 36 FR 22369, 22487 

(November 25, 1971), redesignated at 37 

FR 21441 (October 11, 1972), further 

redesignated at 44 FR 32854, 32899 

(June 7, 1979). The last redesignation 

effort was part of a rulemaking that 

extensively revised the Agency’s NPDES 

regulations. In the revised NPDES 

regulations, EPA addressed water 

quality certifications on EPA-issued 

NPDES permits separate from the 1971 

Rule. EPA acknowledged that the 1971 

Rule was ‘‘in need of revision’’ because 

the ‘‘substance of these regulations 

predates the 1972 amendments to the 

Clean Water Act.’’ 44 FR 32880. 

However, EPA declined to revise the 

1971 Rule because it had not consulted 

the other Federal agencies impacted by 

the water quality certification process. 

Id. at 32856. Instead, the Agency 

finalized regulations applicable to 

certification on EPA-issued NPDES 

permits. Id. at 32880. These regulations, 

which included a default reasonable 

period of time of 60 days, limitations on 

certification modifications, and 

requirements for certification 

conditions, were developed in response 

to practical challenges and issues 

arising from certification on EPA-issued 

permits. Id. Ultimately, despite the 

changes Congress made to the statutory 

text in 1972 and opportunities it had to 

revisit the regulatory text during 

redesignation efforts in the 1970s, EPA 

did not substantively change the 1971 

Rule until 2020. 

2. EPA Guidance on 1971 Rule 

Although EPA did not pursue any 

rulemaking efforts until 2019, the 

Agency issued three national guidance 

documents on the water quality 

certification process set forth by the 

1971 Rule. The first and second 

guidance documents recognized the 

vital role section 401 certification can 

play in protecting state and tribal water 

quality, sought to inform states and 

tribes how to use the certification 

program to protect their waters, and 

explained how to leverage available 

resources to operate or expand their 

certification programs. These 

documents provided states and tribes 

with background on the certification 

process, discussed the relevant case law, 

and identified data sources that could 

inform the certification review process. 

Additionally, both documents provided 

tangible examples of state and tribal 

experiences with section 401 that could 

inform other states and tribes interested 

in developing their certification 

programs. 

The first guidance document, issued 

in 1989, focused on how states and 

tribes could use water quality 

certifications to protect wetlands. 

Wetlands and 401 Certification: 

Opportunities and Guidelines for States 

and Eligible Indian Tribes (April 1989) 

(‘‘1989 Guidance’’). While the guidance 

document focused on the use of water 

quality certifications in lieu of, or in 

addition to, state or tribal wetlands 

regulatory programs, it provided helpful 

background information on the 

certification process. It also highlighted 

various state programs and water quality 

certification practices to demonstrate 

how other certifying authorities could 

approach the certification process. For 

example, the guidance document 

highlighted a certification denial issued 

by the Pennsylvania Department of 

Environmental Resources to illustrate 

that ‘‘all of the potential effects of a 

proposed activity on water quality— 

direct and indirect, short and long term, 

upstream and downstream, construction 

and operation—should be part of a 

State’s certification review.’’ Id. at 22– 

23. Additionally, the 1989 Guidance 

discussed considerations states or tribes 

could examine when developing their 

own section 401 implementing 

regulations, as well as programs and 

resources states and tribes could look to 

for technical support when making 

certification decisions. Id. at 30–37. 

The second guidance document, 

issued in 2010, reflected the 

development of case law and state and 

tribal program experiences over the two 

decades following the 1989 Guidance. 

Clean Water Act Section 401 Water 

Quality Certification: A Water Quality 

Protection Tool for States and Tribes 

(May 2010) (‘‘2010 Handbook’’) 

(rescinded). Instead of focusing on 

certifications in the context of wetland 

protection, the 2010 Guidance focused 

more broadly on how the certification 

process could help states and tribes 

achieve their water quality goals. Like 

the 1989 Guidance, the 2010 Guidance 

discussed the certification process, 

using state and tribal programs as 

examples, and explored methods and 

means for states and tribes to leverage 

available funding, staffing, and data 

sources to fully implement a water 

quality certification program. This 

guidance document was rescinded on 

June 7, 2019, concurrent with the 

publication of the third guidance 

document. 

The third guidance document was 

issued in 2019 pursuant to Executive 

Order 13868 (now revoked). Clean 

Water Act Section 401 Guidance for 

Federal Agencies, States and Authorized 

Tribes (June 2019) (‘‘2019 Guidance’’) 

(rescinded). The 2019 guidance 

document said it was meant to 

‘‘facilitate consistent implementation of 

section 401 and 1971 certification 

regulations’’ because the 2010 

Handbook allegedly did not ‘‘reflect 

current case law interpreting CWA 

section 401.’’ 85 FR 42213. The 

guidance document focused on three 

topics: timeline for certification review 

and action, the scope of section 401, and 

the information within the scope of a 

certifying authority’s review. 2019 

Guidance, at 1. The 2019 Guidance was 

rescinded on July 13, 2020, concurrent 

with the publication of the final 2020 

Rule. 

3. Development of the 2020 Rule 

In addition to directing EPA to review 

its 2010 Handbook and issue new 

section 401 guidance, Executive Order 

13868 also directed EPA to review the 

1971 Rule and (1) issue a new proposed 

regulation within 120 days and (2) issue 

a final regulation within 13 months. 84 

FR 13495, 13496 (April 15, 2019). It 

directed the Agency to focus on various 

aspects of the certification process such 

as the scope of review, and determine 

whether ‘‘any provisions thereof should 

be clarified to be consistent with the 

policies described in section 2 of [the] 

order.’’ Id. EPA released the proposed 

rule on August 22, 2019.20 EPA 

promulgated a final rule on July 13, 

2020. Clean Water Act Section 401 

Certification Rule, 85 FR 42210 (July 13, 

2020) (‘‘2020 Rule’’). 

The 2020 Rule reaffirmed that Federal 

agencies unilaterally set the reasonable 

period of time, clarified that the 

certification requirement was triggered 

by a federally licensed or permitted 

discharge into a ‘‘water of the United 

States,’’ and reaffirmed that certifying 

authorities may explicitly waive 

certification. The 2020 Rule also 

introduced several new features 

including one that allowed Federal 

agencies to review certification 

decisions for compliance with the 2020 

Rule’s requirements and, if the 

certification decision did not comply 

with these requirements, allowed 

Federal agencies to deem such noncompliant certifications as waived. The 

2020 Rule, citing Hoopa Valley Tribe v. 

FERC, 913 F.3d 1099 (DC Cir. 2019), 

prohibited a certifying authority from 

requesting a project applicant to 

withdraw and resubmit a certification 

request. The 2020 Rule also rejected the 

scope of certification review (‘‘activity 

as a whole’’) affirmed by the Supreme 

Court in PUD No. 1 of Jefferson County 


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21 In Re Clean Water Act Rulemaking, No. 3:20– 

cv–04636–WHA (N.D. Cal.); Delaware Riverkeeper 

et al. v. EPA, No. 2:20–cv–03412 (E.D.P.A.); S.C. 

Coastal Conservation League v. EPA, No. 2:20–cv– 

03062 (D.S.C.). 

22To remand a rule means that the court returns 

the rule to the Agency for further action. To vacate 

a rule means that the court decides that rule is null 

and void. 

23The two other courts also remanded the 2020 

Rule to EPA, but without vacatur. Order, Delaware 

Riverkeeper v. EPA, No. 2:20–cv–03412 (E.D. Pa. 

August 6, 2021) (determining that vacatur was not 

appropriate because the court ‘‘has not yet, and will 

not, make a finding on the substantive validity of 

the Certification Rule’’); Order, S.C. Coastal 

Conservation League v. EPA, No. 2:20–cv–03062 

(D.S.C. August 2, 2021) (remanding without 

vacating). 

v. Washington Department of Ecology, 

511 U.S. 700 (1994), in favor of a more 

truncated interpretation (‘‘dischargeonly’’ approach) favored by two 

dissenting Justices in that case. 

Following publication, the 2020 Rule 

was subject to legal challenge in three 

Federal district courts by states, tribes, 

and non-governmental organizations.21

On October 21, 2021, following 

extensive briefing and a hearing on 

EPA’s motion for remand without 

vacatur, the U.S. District Court for the 

Northern District of California 

remanded and vacated 22 the 2020 Rule. 

In re Clean Water Act Rulemaking, No. 

3:20–cv–04636–WHA, 2021 WL 

4924844 (N.D. Cal. October 21, 2021). 

The court found that vacatur was 

appropriate ‘‘in light of the lack of 

reasoned decision-making and apparent 

errors in the rule’s scope of certification, 

indications that the rule contravenes the 

structure and purpose of the Clean 

Water Act, and that EPA itself has 

signaled that it could not or would not 

adopt the same rule upon remand.’’ Slip 

op. at 14–15, 2021 WL 4924844, at *8. 

The court order required a temporary 

return to EPA’s 1971 Rule until EPA 

finalizes a new rule.23 This case is 

currently on appeal by industry 

stakeholders and eight states in the U.S. 

Court of Appeals for the Ninth Circuit. 

On March 21, 2022, industry 

stakeholders and eight states filed an 

application for a stay of the vacatur 

pending appeal in the Ninth Circuit. On 

April 6, 2022, the U.S. Supreme Court 

granted the application for a stay of the 

vacatur pending resolution of the appeal 

of the vacatur in the Ninth Circuit. 

Louisiana v. Am. Rivers, No. 21A539 (S. 

Ct. April 6, 2022). 

4. Executive Order 13990 and Review of 

the 2020 Rule 

On January 20, 2021, President Biden 

signed Executive Order 13990, 

Protecting Public Health and the 

Environment and Restoring Science to 

Tackle the Climate Crisis (E.O.). 86 FR 

7037 (published January 25, 2021, 

signed January 20, 2021). The E.O. 

provides that it’s the policy of the 

Administration to listen to the science; 

to improve public health and protect 

our environment; to ensure access to 

clean air and water; to limit exposure to 

dangerous chemicals and pesticides; to 

hold polluters accountable, including 

those who disproportionately harm 

communities of color and low-income 

communities; to reduce greenhouse gas 

emissions; to bolster resilience to the 

impacts of climate change; to restore 

and expand our national treasures and 

monuments; and to prioritize both 

environmental justice and the creation 

of the well-paying union jobs necessary 

to deliver on these goals. Id. at 7037, 

Section 1. The E.O. ‘‘directs all 

executive departments and agencies 

(agencies) to immediately review and, as 

appropriate and consistent with 

applicable law, take action to address 

the promulgation of Federal regulations 

and other actions during the last 4 years 

that conflict with these important 

national objectives, and to immediately 

commence work to confront the climate 

crisis.’’ Id. ‘‘For any such actions 

identified by the agencies, the heads of 

agencies shall, as appropriate and 

consistent with applicable law, consider 

suspending, revising, or rescinding the 

agency actions.’’ Id., Section 2(a). The 

E.O. also revoked Executive Order 

13868 of April 10, 2019 (Promoting 

Energy Infrastructure and Economic 

Growth), which initiated development 

of the 2020 Rule. The 2020 Rule also 

was specifically identified for review 

under the E.O. See Fact Sheet: List of 

Agency Actions for Review, available at 

https://www.whitehouse.gov/briefingroom/statements-releases/2021/01/20/ 

fact-sheet-list-of-agency-actions-forreview/ (last visited on January 27, 

2022). 

EPA reviewed the 2020 Rule in 

accordance with Executive Order 13990, 

and in the spring of 2021, determined 

that it would propose revisions to the 

2020 Rule through a new rulemaking 

effort. See Notice of Intention to 

Reconsider and Revise the Clean Water 

Act Section 401 Certification Rule, 86 

FR 29541 (June 2, 2021). EPA 

considered a number of factors in 

making this determination, including 

but not limited to: the text of CWA 

section 401; Congressional intent and 

the cooperative federalism framework of 

CWA section 401; concerns raised by 

stakeholders about the 2020 Rule, 

including implementation related 

feedback; the principles outlined in the 

E.O. and issues raised in ongoing 

litigation challenging the 2020 Rule. Id. 

In particular, the Agency identified 

substantial concerns about whether 

portions of the 2020 Rule impinged on 

the cooperative federalism principles 

central to CWA section 401. The Agency 

identified this and other concerns as 

they related to different provisions of 

the 2020 Rule including certification 

requests, the reasonable period of time, 

scope of certification, certification 

actions and Federal agency review, 

enforcement, and modifications. See id. 

at 29543–44. 

Agencies have inherent authority to 

reconsider past decisions and to revise, 

replace, or repeal a decision to the 

extent permitted by law and supported 

by a reasoned explanation. FCC v. Fox 

Television Stations, Inc., 556 U.S. 502, 

515 (2009) (‘‘Fox’’); Motor Vehicle Mfrs. 

Ass’n of the U.S., Inc. v. State Farm 

Mutual Automobile Ins. Co., 463 U.S. 

29, 42 (1983); see also Encino 

Motorcars, LLC v. Navarro, 579 U.S. 

211, 221 (2016) (‘‘Agencies are free to 

change their existing policies as long as 

they provide a reasoned explanation for 

the change.’’). Such a decision need not 

be based upon a change of facts or 

circumstances. A revised rulemaking 

based ‘‘on a reevaluation of which 

policy would be better in light of the 

facts’’ is ‘‘well within an agency’s 

discretion.’’ Nat’l Ass’n of Home 

Builders v. EPA, 682 F.3d 1032, 1038 & 

1043 (DC Cir. 2012) (citing Fox, 556 U.S. 

at 514–15). The Agency has reviewed 

the 2020 Rule and determined that the 

rule should be replaced. 

Accordingly, EPA is now proposing to 

revise the 2020 Rule to be fully 

consistent with the 1972 CWA 

amendments, the Agency’s legal 

authority, and the principles outlined in 

Executive Order 13990. This proposed 

rule would revise and replace the 2020 

Rule to better reflect the 1972 CWA’s 

statutory text, the legislative history 

regarding section 401, and the broad 

water quality protection goals of the 

Act. In addition, the proposed rule will 

clarify certain aspects of section 401 

implementation that have evolved in 

response to over 50 years of judicial 

interpretation and certifying authority 

practice, and support an efficient and 

predictable water quality certification 

process that is consistent with the 

cooperative federalism principles 

central to CWA section 401. 

D. Summary of Stakeholder Outreach 

Following the publication of EPA’s 

notice of intent to revise the 2020 Rule, 

the Agency opened a public docket to 

receive written pre-proposal 

recommendations for a 60-day period 

beginning on June 2, 2021, and 

concluding on August 2, 2021. The 


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Agency received nearly 3,000 

recommendations from members of the 

public, which can be found in the preproposal docket. See Docket ID No. 

EPA–HQ–OW–2021–0302. The Federal 

Register publication requested feedback 

related to key issues identified during 

implementation of the 2020 Rule, 

including but not limited to issues 

regarding pre-filing meeting requests, 

certification requests, reasonable period 

of time, scope of certification, 

certification actions and Federal agency 

review, enforcement, modifications, 

neighboring jurisdictions, data and 

other information, and implementation 

coordination. See 86 FR 29543–44. 

EPA also held a series of virtual 

listening sessions for certifying 

authorities (June 14, June 23, and June 

24, 2021), project applicants (June 15, 

2021), and the public (June 15, June 23, 

2021) to gain further pre-proposal input. 

See id. at 29544 (announcing EPA’s 

intention to hold multiple webinarbased listening sessions). EPA also met 

with stakeholders upon request during 

development of this proposed rule. 

More information about the outreach 

and engagement conducted by EPA 

during the pre-proposal input period 

can be found in Docket ID No. EPA– 

HQ–OW–2022–0128. Additionally, EPA 

also met with other Federal licensing 

and permitting agencies to solicit 

feedback on the Federal Register 

publication. At the virtual listening 

sessions, the Agency provided a 

presentation that provided background 

on section 401 and prior Agency actions 

and sought input on the Agency’s intent 

to revise the 2020 Rule and the specific 

issues included in the Federal Register 

publication described above. 

The Agency heard from stakeholders 

representing a diverse range of interests 

and positions and received a wide 

variety of recommendations and 

suggestions during this pre-proposal 

outreach process. Certifying authorities 

expressed concern about the limited 

role of states and tribes under the 2020 

Rule, and they called for increased 

flexibility in implementing section 401 

to fully protect their water resources. 

During the project proponent listening 

session, project proponents shared 

feedback about the need to streamline 

the certification process and 

recommended that the new rule prevent 

delays in determining certification 

decisions. In the general public listening 

sessions, speakers from nongovernmental environmental and water 

conservation organizations reinforced 

the idea that states and tribes should be 

accorded greater deference in the 

certification process. An overarching 

theme articulated by many speakers 

from various stakeholder groups was the 

need for EPA’s new rule to provide 

increased guidance and clarity. 

The Agency also initiated a tribal 

consultation and coordination process 

on June 7, 2021. The Agency engaged 

tribes over a 90-day consultation period 

during development of this proposed 

rule that concluded on September 7, 

2021, including two tribal consultation 

kickoff webinars on June 29, 2021, and 

July 7, 2021. The Agency received 

consultation letters from eight tribes and 

three tribal organizations. The Agency 

did not receive any requests for 

consultation during this time, although 

several tribes expressed an interest in 

receiving additional information and 

ongoing engagement throughout the 

rulemaking process. The Agency 

anticipates that consultation meetings 

will be held with tribes during the 

rulemaking process. Several tribes 

commented that the 2020 Rule impaired 

or undermined tribal sovereignty and 

their ability to protect tribal waters. 

Many tribes provided input regarding 

section 401 certification process 

improvements. Most tribes were 

generally positive about a provision for 

a pre-filing meeting request, however 

some had concerns that the 30-day wait 

period (before a project proponent could 

request certification) is very rigid and 

would like to see more flexibility in 

allowing certifying authorities to waive 

the 30-day requirement. Some tribes 

believe ‘‘the reasonable period of time’’ 

should start when the application is 

deemed complete, not when the initial 

request for certification is received. 

Most tribes argued that the 2020 Rule’s 

narrowing of the scope of certification 

was inconsistent with Congressional 

intent for tribes and states to have an 

effective tool to protect the quality of 

waters under their jurisdiction. A few 

tribal organizations expressed concern 

that current implementation of section 

401(a)(2) does not protect off-reservation 

treaty rights from discharges. Additional 

information about the tribal 

consultation process can be found in 

section VII.F in this preamble and the 

Summary of Tribal Consultation and 

Coordination, which is available in the 

docket for this proposed rule. 

The Agency has considered the input 

it received as part of the tribal 

consultation process and other 

opportunities for pre-proposal 

recommendations. EPA welcomes 

feedback on this proposed rule through 

the upcoming virtual public hearing and 

the 60-day public comment period 

initiated through publication of this 

action. The Agency will consider 

comments received during the comment 

period on this proposal, and this 

consideration will be reflected in the 

final rule and supporting documents. 

V. Proposed Rule 

EPA is the primary agency 

responsible for developing regulations 

and guidance to ensure effective 

implementation of all CWA programs, 

including section 401. See 33 U.S.C. 

1251(d), 1361(a). The Agency is 

proposing to revise the section 401 

regulations to better align its regulations 

with the cooperative federalism and 

water quality protection principles 

enshrined in the text and legislative 

history of the 1972 CWA. Additionally, 

the Agency is seeking to provide greater 

clarity and acknowledgment of essential 

water quality protection concepts from 

Executive Order 13990. In addition to 

providing a necessary regulatory reset 

on significant issues such as the scope 

of certification, Federal agency review, 

and the reasonable period of time, the 

Agency proposes to update the 

regulatory text to foster a more efficient 

and predictable certification process. As 

it has already demonstrated through its 

extensive pre-proposal outreach, EPA 

intends for this rulemaking to be wellinformed by stakeholder input on all 

aspects of the certification process and 

welcomes comment on all facets of this 

proposal. 

In light of the proposed revisions to 

part 121, EPA is also proposing to make 

conforming changes to the part 124 

regulations governing CWA section 401 

certifications for EPA-issued NPDES 

permits. The purpose of these 

conforming changes is to ensure that— 

assuming the proposed part 121 changes 

are adopted—the part 124 regulations 

are consistent with the revised 

provisions of part 121. To that end, EPA 

is proposing to make targeted deletions 

to specific provisions of the regulations 

at 40 CFR 124.53 and 124.55 to conform 

those sections with this proposal, 

explicitly deleting 40 CFR 124.53(b), (c), 

and (e), as well as § 124.55(b). EPA is 

also proposing to make targeted 

revisions to the regulations at 40 CFR 

124.53(d), 124.54(a) and (b), 124.55(a), 

(c), and (d), consistent with those 

proposed deletions and this proposal. 

EPA is also proposing to make targeted 

conforming revisions to the regulations 

at 40 CFR 122.4(b) and 122.44(d)(3). 

EPA explains in further detail the 

reasons for each conforming change 

(beyond mere technical revisions) 

following the preamble discussion of 

the part 121 proposal that necessitates 

conforming revisions to part 124. EPA is 

seeking comment on whether the 

Agency has identified all changes to the 

part 124 regulations that conflict or 

potentially conflict with this proposal 


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24See proposed § 121.1(e), (h) (defining ‘‘Federal 

agency’’ to mean ‘‘any agency of the Federal 

Government to which application is made for a 

license or permit that is subject to Clean Water Act 

section 401,’’ and similarly defining ‘‘license or 

permit’’ to mean ‘‘any license or permit issued or 

granted by an agency of the Federal Government to 

conduct any activity which may result in any 

discharge into waters of the United States’’). 

25The Corps also requires section 401 

certification for its civil works projects, even though 

there is no Federal license or permit associated with 

those projects. The Corps’ current regulations 

require the Corps to seek section 401 certification 

for dredge and fill projects involving a discharge 

into waters of the United States, regardless of 

whether the Corps issues itself a permit for those 

activities. See 33 CFR 336.1(a)(1) (‘‘The CWA 

requires the Corps to seek state water quality 

certification for discharges of dredged or fill 

material into waters of the U.S.’’); 33 CFR 335.2 

(‘‘[T]he Corps does not issue itself a CWA permit 

to authorize Corps discharges of dredged material 

or fill material into U.S. waters but does apply the 

404(b)(1) guidelines and other substantive 

requirements of the CWA and other environmental 

laws.’’). In these instances, EPA understands that 

the Corps will follow the certification process as 

described in this proposal. 

26 33 U.S.C. 1342(b). 

27 33 U.S.C. 1344(g). 

and therefore need to be made to 

conform. This proposed part 121 

regulations would apply to all Federal 

licenses or permits subject to CWA 

section 401 certification.24 EPA 

accordingly intends for this part 121 

proposal to apply to EPA-issued NPDES 

permits, even where EPA is not 

proposing conforming edits to part 124. 

EPA is also proposing to make several 

revisions to the definition section in 

light of this proposed rulemaking. EPA 

is proposing to make minor revisions to 

the definition of ‘‘Administrator’’, 

currently located at § 121.1(a), to 

remove the reference to authorized 

representatives. Instead, the Agency is 

proposing to add a separate definition 

for ‘‘Regional Administrator’’. See 

proposed § 121.1(k). The Agency is also 

proposing to remove the definition for 

‘‘certification’’, which is currently 

located at § 121.1(b), because it does not 

believe it is necessary to define the 

term. Additionally, the Agency is 

proposing to remove the definition for 

‘‘certified project’’, currently located at 

§ 121.1(d), and ‘‘proposed project’’, 

currently located at § 121.1(k), because 

the Agency is not proposing to use these 

terms throughout other regulatory 

provisions. Other proposed revisions to 

regulatory definitions are discussed 

throughout this preamble; the Agency 

welcomes any comments on these 

definitions. 

A. When Section 401 Certification Is 

Required 

In this proposed rulemaking, EPA is 

proposing a number of definitional and 

other revisions to clarify the 

circumstances under which a section 

401 certification is required. These 

proposed revisions are consistent with 

the Agency’s longstanding 

interpretation of section 401, including 

in the 2020 Rule, that an applicant for 

a Federal license or permit to conduct 

any activity that may result in any point 

source discharge into the navigable 

waters is required to obtain a section 

401 certification. Accordingly, the 

Agency is proposing minor revisions to 

the regulatory text currently located at 

§ 121.2 to affirm that a Federal license 

or permit for any potential point source 

discharge into a water of the United 

States requires a certification or waiver. 

With respect to the definition section, 

EPA is proposing to clarify the roles of 

the stakeholders in the certification 

process. First, the Agency is proposing 

non-substantive modifications to the 

definition of ‘‘Federal agency’’ currently 

located at § 121.1(g). Second, the 

Agency is proposing to retain the term 

‘‘project proponent’’ to define the 

stakeholder seeking certification. While 

the term ‘‘applicant’’ is used in section 

401, that term does not clearly reflect 

and include all the stakeholders who 

might seek certification. For example, 

Federal agencies themselves (and not 

third-party applicants) seek section 401 

certification on the issuance of general 

permits (e.g., U.S. Army Corps of 

Engineers’ (Corps’) Nationwide Permits, 

EPA’s Construction General Permits). 

Additionally, contractors or other agents 

will often seek certification on behalf of 

a project applicant. The term ‘‘project 

proponent’’ is meant to include the 

applicant for a Federal license or 

permit, as well as any other entity that 

may seek certification (e.g., agent of an 

applicant or a Federal agency, such as 

EPA when it is the permitting authority 

for a National Pollutant Discharge 

Elimination System (NPDES) permit). 

Lastly, the Agency is proposing nonsubstantive changes to the definition of 

‘‘certifying authority’’ currently located 

at § 121.1(e). EPA is requesting 

comment on these definitions and the 

proposed language to clarify the 

circumstances under which section 401 

certification is required. EPA’s rationale 

for determining when certification is 

required is discussed in further detail 

below. 

1. Federally Licensed or Permitted 

Activity 

Section 401 certification is required 

for any Federal license or permit to 

conduct any activity that may result in 

any discharge into a ‘‘water of the 

United States.’’ 33 U.S.C. 1341(a)(1). 

The Agency is proposing to retain the 

2020 Rule’s definition for a ‘‘license or 

permit’’ with minor modifications. 

The Agency is not proposing to 

provide an exclusive list of Federal 

licenses and permits that may be subject 

to section 401. The CWA itself does not 

list specific Federal licenses and 

permits that are subject to section 401 

certification requirements. The most 

common examples of licenses or 

permits that may be subject to section 

401 certification are CWA section 402 

NPDES permits issued by EPA in 

jurisdictions where the EPA administers 

the NPDES permitting program; CWA 

section 404 permits for the discharge of 

dredged or fill material and Rivers and 

Harbors Act sections 9 and 10 permits 

issued by the Army Corps of Engineers; 

and hydropower and interstate natural 

gas pipeline licenses issued by the 

Federal Energy Regulatory Commission 

(FERC).25

Section 401 certification is not 

required for licenses or permits issued 

by a state or tribe that has been 

authorized to administer a permit 

program. For example, states and tribes 

may be authorized to administer the 

section 402 NPDES permitting 

program 26 or the section 404 dredge and 

fill permitting program.27 Permits 

issued by states or tribes pursuant to 

their approved program are not subject 

to section 401 of the CWA as the 

programs operate in lieu of the Federal 

program, under state or tribal 

authorities. The state or tribal permit is 

not a ‘‘Federal’’ permit for purposes of 

section 401. The CWA is clear that the 

license or permit prompting the need for 

a section 401 certification must be a 

Federal license or permit, that is, one 

issued by a Federal agency. This 

conclusion is supported by the 

legislative history of CWA section 401, 

which noted that ‘‘since permits granted 

by States under section 402 are not 

Federal permits—but State permits—the 

certification procedures are not 

applicable.’’ H.R. Rep. No. 92–911, at 

127 (1972). Additionally, the legislative 

history of the CWA amendments of 

1977, discussing state assumption of 

section 404, also noted that ‘‘[t]he 

conferees wish to emphasize that such 

a State program is one which is 

established under State law and which 

functions in lieu of the Federal program. 

It is not a delegation of Federal 

authority.’’ H.R. Rep. No. 95–830, at 104 

(1977). 

2. Potential for a Discharge To Occur 

The presence of, or potential for, a 

discharge is a key determinant for when 

a water quality certification is required. 

33 U.S.C. 1341(a)(1) (‘‘A certification is 

required for ‘‘a Federal license or permit 

to conduct any activity . . . which may 


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28 In Dombeck, the United States took the position 

that the term ‘‘discharge’’ at 33 U.S.C. 1362(14) did 

not include nonpoint sources because there was 

nothing in the definition or the legislative history 

of the term that suggested it extended to nonpoint 

source pollution. Brief of the United States in Or. 

Natural Desert Ass’n v. Dombeck, Nos. 97–3506, 

97–35112, 97–35115, at 18–21 (9th Cir. 1997). 

Additionally, the United States argued that section 

401’s legislative history did not suggest that 

‘‘discharge’’ included nonpoint sources. Id. at 23– 

24. 

29The United States made a similar observation 

in its brief in USFS. See Brief of the United States 

in ONDA v. USFS, No. 08–35205, at 22 (9th Cir. 

2008). 

30The United States has suggested that section 

401 requires the discharge to be from a point source 

in briefs filed before both the Ninth Circuit and the 

Supreme Court. See, e.g., Briefs of the United States 

in ONDA v. Dombeck, Nos. 97–3506, 97–35112, 97– 

35115 (9th Cir. 1997), ONDA v. USFS, No. 08– 

35205 (9th Cir. 2008), Amicus brief of the United 

States in S.D. Warren Co. v. Maine Bd. of Envtl. 

Prot., No. 04–1527 (January 9, 2006). 

result in any discharge into the 

navigable waters. . .’’) (emphasis 

added). 

The Agency is not proposing a 

specific process or procedure for project 

proponents, certifying authorities, and/ 

or Federal agencies to follow in order to 

determine whether or not a federally 

licensed or permitted activity may result 

in a discharge and therefore require 

section 401 certification. After 50 years 

of implementing section 401, EPA’s 

experience is that Federal agencies and 

certifying authorities are well-versed in 

the practice of determining which 

Federal licenses or permits may result 

in discharges. Ultimately, the project 

proponent is responsible for obtaining 

all necessary permits and 

authorizations, including a section 401 

certification. If there is a potential for a 

project to discharge into a ‘‘water of the 

United States,’’ a Federal agency cannot 

issue the Federal license or permit 

unless a section 401 certification is 

granted or waived by the certifying 

authority. EPA recommends that project 

proponents engage in early discussions 

with certifying authorities and Federal 

agencies to determine whether their 

federally licensed or permitted activity 

will require section 401 certification. 

The Agency requests comment on 

whether it should propose a specific 

process or procedure for project 

proponents, certifying authorities, and/ 

or Federal agencies to follow in order to 

determine whether or not a federally 

licensed or permitted activity may result 

in a discharge and therefore require 

section 401 certification. 

3. Discharge 

Consistent with the Agency’s 

longstanding position and the 2020 

Rule, EPA is proposing that a point 

source discharge, or potential for one, is 

required to trigger section 401. See 

proposed § 121.2. Additionally, the 

Agency is clarifying that, consistent 

with S.D. Warren v. Maine Board of 

Environmental Protection, 547 U.S. 370 

(2006), discussed below, a point source 

discharge triggering section 401 does 

not require the addition of pollutants. 

The CWA provides that ‘‘[t]he term 

‘discharge’ when used without 

qualification includes a discharge of a 

pollutant, and a discharge of 

pollutants.’’ 33 U.S.C. 1362(16). The 

CWA defines ‘‘discharge of a pollutant’’ 

to mean ‘‘any addition of any pollutant 

to navigable waters from any point 

source.’’ Id. at 1362(12). EPA and the 

Corps have long interpreted the 

definition of ‘‘discharge’’ broadly to 

include, but not be limited to, 

‘‘discharges of pollutants.’’ 

This interpretation is consistent with 

the text of the statute as interpreted by 

the U.S. Supreme Court. In S.D. Warren 

Co, a hydropower dam operator asserted 

that its dams did not result in 

discharges that would require section 

401 certification because the dams only 

released water that ‘‘adds nothing to the 

river that was not there above the 

dams.’’ 547 U.S. 370, 374–75, 378 

(2006). The Court stated that the term 

discharge is broader than ‘‘discharge of 

a pollutant’’ and ‘‘discharge of 

pollutants.’’ Observing that the term 

‘‘discharge’’ is not specifically defined 

in the statute, the Court applied the 

ordinary dictionary meaning, ‘‘flowing 

or issuing out.’’ Id. In applying this 

meaning to hydroelectric dams, the 

Court held that releasing water through 

a dam constituted a discharge for 

purposes of section 401 and, thus, the 

CWA provided states with the ability to 

address water quality impacts from 

these releases through the certification 

process. Id. at 385–86. The Court 

explicitly rejected the argument that an 

‘‘addition’’ was necessary for a 

‘‘discharge,’’ stating ‘‘[w]e disagree that 

an addition is fundamental to any 

discharge.’’ Id. at 379 n.5. 

While the Supreme Court has held 

that the addition of a pollutant is not 

necessary for a discharge to prompt the 

need for a CWA section 401 

certification, the Ninth Circuit has held 

that such certification triggering 

discharges must be from point sources. 

Or. Natural Desert Ass’n v. Dombeck, 

172 F.3d 1092, 1093–94 (9th Cir. 1998) 

(‘‘Dombeck’’).28 In Dombeck, the Ninth 

Circuit addressed the question whether 

‘‘the term ‘discharge’ in [section 401] 

includes releases from nonpoint sources 

as well as releases from point sources.’’ 

Id. At issue in that case was whether a 

cattle-grazing permit issued by the U.S. 

Forest Service required a section 401 

certification. 

The court observed that the word 

‘‘discharge’’ is used consistently in the 

Act to refer to releases from point 

sources, whereas the term ‘‘runoff’’ is 

used to describe pollution flowing from 

nonpoint sources, and Congress did not 

say ‘‘runoff’’ in section 401. Id. at 1097. 

The court also found that all of the CWA 

sections cross-referenced in section 

401(a)(1) were related to the regulation 

of point sources. Id. Regarding the 

inclusion of section 303, the CWA 

section requiring states to adopt and 

EPA to approve water quality standards, 

the court said that section 303 did ‘‘not 

itself regulate nonpoint source 

pollution’’ and, therefore, ‘‘did not 

sweep nonpoint sources into the scope 

of [section 401].’’ Id. 

Following the Supreme Court’s 

decision in S.D. Warren that the 

addition of a pollutant was not needed 

to trigger section 401, the Ninth Circuit 

reaffirmed its earlier decision that 

section 401 was only triggered by a 

point source discharge. Or. Natural 

Desert Ass’n v. USFS, 550 F.3d 778 (9th 

Cir. 2008). The Ninth Circuit found that 

‘‘[t]he issue in S.D. Warren was 

narrowly tailored to determine whether 

a discharge from a point source could 

occur absent addition of any pollutant 

to the water emitted from the dam 

turbines.’’ Id.at 783–84; see S.D. Warren, 

547 U.S. at 376–87.29 The Ninth Circuit 

held that ‘‘[n]either the ruling nor the 

reasoning in S.D. Warren is inconsistent 

with this court’s treatment of nonpoint 

sources in [section] 401 of the Act, as 

explained in Dombeck. Accordingly, the 

principles of stare decisis apply, and 

this court need not revisit the issue 

decided in Dombeck.’’ USFS, 550 F.3d 

at 785. EPA has consistently 

implemented the Ninth Circuit’s 

interpretation of section 401 as 

requiring the potential for a point source 

discharge (with or without the addition 

of pollutants) to trigger section 401. See 

85 FR 42238; 2010 Handbook 

(rescinded) (discussing requirement of 

section 401 certification when there is a 

point source discharge).30

Although the Agency is retaining the 

same interpretation of ‘‘discharge’’ as 

the 2020 Rule, to simplify the regulatory 

architecture, the Agency is proposing to 

remove the definition of ‘‘discharge’’ 

currently located at § 121.1(f) and 

instead incorporate those definitional 

concepts into the regulatory text at 

proposed § 121.2 which discusses when 

certification is required. The Agency 

believes this simpler approach will 

provide greater clarity about the nature 


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31The CWA defines point source as ‘‘any 

discernible, confined and discrete conveyance . . . 

from which pollutants are or may be discharged.’’ 

33 U.S.C. 1362(14) (emphasis added). 

32 In County of Maui, Hawaii v. Hawaii Wildlife 

Fund, et al., the Supreme Court addressed the 

question whether the CWA requires a NPDES 

permit under section 402 of the Act when 

pollutants originate from a point source but are 

conveyed to navigable waters by groundwater. 140 

S. Ct. 1462 (2020). The Court held that ‘‘the statute 

requires a permit when there is a direct discharge 

from a point source into navigable waters or when 

there is the functional equivalent of a direct 

discharge.’’ Id. at 1476 (emphasis in original). The 

Court articulated a number of factors that may 

prove relevant for purposes of section 402 

permitting. Id. at 1476–77. Consistent with the 

rationale of the Court’s decision in County of Maui, 

any point source discharge that is the functional 

equivalent of a direct discharge into navigable 

waters would also trigger section 401. This broad 

interpretation is also consistent with S.D. Warren, 

547 U.S. at 375. 

33See, e.g., North Carolina v. FERC, 112 F.3d 

1175, 1187 (D.C. Cir. 1997) (holding that 

withdrawal of water from lake does not constitute 

discharge for CWA section 401 purposes). 

of discharges that trigger the need for 

section 401 certification or waiver. 

Just as the Agency is not proposing to 

define the term ‘‘discharge’’ for 

purposes of section 401, the Agency is 

not proposing a distinct definition of the 

term ‘‘point source.’’ Rather, the Agency 

will continue to rely on the definition 

of point source in section 502(14) of the 

CWA,31 as interpreted by the courts.32

For example, courts have concluded 

that bulldozers, mechanized land 

clearing machinery, and similar types of 

equipment used for discharging dredge 

or fill material are ‘‘point sources’’ for 

purposes of the CWA. See, e.g., 

Avoyelles Sportsmen’s League v. Marsh, 

715 F.2d 897 (5th Cir. 1983); United 

States v. Larkins, 657 F. Supp. 76 (W.D. 

Ky. 1987), aff’d, 852 F.2d 189 (6th Cir. 

1988). On the other hand, courts have 

concluded that a water withdrawal is 

not a point source discharge and 

therefore does not require a water 

quality certification.33

4. ‘‘Into the Navigable Waters’’ 

Section 401 says that certification is 

required for an activity that ‘‘may result 

in any discharge into the navigable 

waters.’’ 33 U.S.C. 1341(a)(1). The term 

‘‘navigable waters’’ is defined as ‘‘waters 

of the United States, including the 

territorial seas.’’ 33 U.S.C. 1362(7). 

The proposed rule provides that 

section 401 certification is required for 

Federal licenses or permits where there 

is a potential discharge into a water of 

the United States. This interpretation is 

consistent with the plain language and 

legislative history of the CWA. See H.R. 

Rep. No. 91–911, at 124 (1972) (‘‘It 

should be clearly noted that the 

certifications required by section 401 

are for activities which may result in 

any discharge into navigable waters.’’). 

This interpretation is also consistent 

with the Agency’s longstanding position 

and practice. See, e.g., 2010 Handbook, 

at 3, 5 (rescinded) (‘‘Since [section] 401 

certification only applies where there 

may be a discharge into waters of the 

[United States], how states or tribes 

designate their own waters does not 

determine whether [section] 401 

certification is required.’’). 

Potential discharges into state or tribal 

waters that are not ‘‘waters of the United 

States’’ do not trigger the requirement to 

obtain section 401 certification. 

However, as discussed in section V.E. in 

this preamble, once the certification 

requirement is triggered by the 

prerequisite of a point source discharge 

into a water of the United States, the 

certifying authority may choose to grant, 

condition, or deny water quality 

certifications based on the potential 

impact of the ‘‘activity as a whole’’ on 

waters of the United States and other 

state or tribal waters. 

B. Pre-Filing Meeting Request 

EPA is proposing to retain the 

requirement for a project proponent to 

request a pre-filing meeting with the 

certifying authority at least 30 days 

before submitting a water quality 

certification request. However, 

recognizing the variety of project types 

and complexities, the proposed rule also 

provides certifying authorities with the 

flexibility to waive or shorten this prefiling meeting request requirement. This 

requirement to request a pre-filing 

meeting will ensure that certifying 

authorities have an opportunity, should 

they desire it, to receive early 

notification and to discuss the project 

with the project proponent before the 

statutory timeframe for review begins. 

The intent of this proposed provision is 

to support early engagement and 

coordination between certifying 

authorities and project proponents. 

The 2020 Rule introduced the prefiling meeting request requirement to 

encourage early coordination between 

parties to identify needs and concerns 

before the start of the reasonable period 

of time. EPA interpreted the term 

‘‘request for certification’’ in CWA 

section 401(a)(1) as being broad enough 

to include an implied requirement that, 

as part of the submission of a request for 

certification, a project proponent shall 

also provide the certifying authority 

with advance notice that a certification 

request is imminent. The time (no 

longer than one year) that certifying 

authorities are provided under the CWA 

to act on a certification request (or else 

waive the certification requirements of 

section 401(a)) provided additional 

justification in this context to interpret 

the term ‘‘request for certification’’ to 

allow EPA to require a pre-filing 

meeting request. 

The 2020 Rule proposal originally 

limited the pre-filing meeting request 

requirement to project proponents 

seeking certification in jurisdictions 

where EPA acts as the certifying 

authority. However, in response to 

stakeholder feedback on the proposed 

2020 Rule, the Agency extended the prefiling meeting request requirement to all 

project proponents. As a result, the final 

2020 Rule required all project 

proponents to request a pre-filing 

meeting at least 30 days prior to 

submitting a water quality certification 

request. 85 FR 42241 (July 13, 2020). 

The 2020 Rule did not provide any 

mechanism for certifying authorities to 

waive or otherwise alter the 30-day 

period between a project proponent 

requesting a pre-filing meeting and 

subsequently submitting a certification 

request. Instead, there was a mandatory 

30-day period that had to pass before 

the project proponent could submit a 

certification request. 

During pre-proposal outreach on this 

proposed rule, some stakeholders found 

the pre-filing meeting request 

requirement to be essential to an 

efficient certification process. Some 

stakeholders shared that the pre-filing 

meetings were helpful in allowing 

certifying authorities to inform project 

proponents of the specific project 

information needed for an effective 

evaluation of the certification request. 

However, some stakeholders expressed 

concern about the mandatory 30-day 

‘‘waiting period’’ between the pre-filing 

meeting request and the certification 

request, particularly in emergency 

permit situations. Stakeholders also 

noted that the 30-day mandatory period 

could create delays for Federal licensing 

or permitting agencies. Some 

stakeholders noted that most 

certification requests involve smaller, 

less complex projects and requiring the 

project proponent to request a pre-filing 

meeting and wait 30 days before 

submitting a request for certification 

was unnecessarily burdensome. 

Stakeholders suggested that EPA should 

add flexibility to the process and give 

certifying authorities the ability to 

waive the pre-filing meeting request 

(e.g., for smaller and less complex 

projects and emergencies). 

Pre-filing meeting requests ensure that 

certifying authorities can receive early 

notification of and discuss the project 

and potential information needs with 

the project proponent before the 

statutory ‘‘reasonable period of time’’ for 

certification review begins (e.g., allow 


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the certifying authority to collect 

important details about a proposed 

project and its potential effects on water 

quality). Under this proposal, a project 

proponent is required to request a prefiling meeting from the certifying 

authority in accordance with the 

certifying authority’s applicable 

submission procedures at least 30 days 

prior to submitting a certification 

request, unless the certifying authority 

waives or shortens this requirement. 

Similar to the approach taken under the 

2020 Rule, EPA is not proposing to 

define by regulation the process or 

manner for project proponents to submit 

pre-filing meeting requests. Rather, EPA 

intends the term ‘‘applicable submission 

procedures’’ to mean the submission 

procedures deemed appropriate by the 

certifying authority. EPA intends for 

certifying authorities to communicate to 

project proponents when a pre-filing 

meeting request is necessary and when 

a pre-filing meeting request is waived. 

For example, certifying authorities 

could either require or waive the prefiling meeting request requirement for 

all projects or specific types of projects. 

EPA recommends that certifying 

authorities make this information 

readily available to project proponents 

in an easily accessible manner to allow 

for a transparent and efficient process 

(e.g., posting a list of project types that 

require a pre-filing meeting request on 

the certifying authority’s website). 

When EPA acts as the certifying 

authority, EPA would generally find the 

following submission procedures to be 

appropriate. First, EPA recommends 

that project proponents submit a prefiling meeting request to the Agency in 

writing. As discussed in section V.C in 

this preamble, the project proponent 

must submit documentation that a prefiling meeting was requested as a 

component of its certification request 

when EPA is acting as the certifying 

authority (or where a state or tribe does 

not have certification request 

requirements), unless a pre-filing 

meeting request has been waived. In 

light of this requirement, EPA 

recommends that pre-filing meeting 

requests to the Agency be submitted in 

writing. Second, the Agency 

recommends that project proponents 

include the following information, as 

available, in any written request for a 

pre-filing meeting with EPA: 

1. A statement that it is ‘‘a request for 

CWA section 401 certification pre-filing 

meeting,’’ 

2. The name of the project proponent 

and appropriate point of contact, 

3. The name of the tribe or 

jurisdiction for which EPA is serving as 

the certifying authority, 

4. The planned project location 

(including identification of waters of the 

United States into which any potential 

discharges would occur), 

5. A list of any necessary licenses/ 

permits (e.g., state permits, other 

Federal permits, etc.), 

6. The project type and a brief 

description of anticipated project 

construction and operation activities, 

and 

7. The anticipated start work date. 

EPA is requesting comment on 

whether it should define ‘‘applicable 

submission procedures’’ for itself in 

regulatory text, or only provide 

recommended procedures in the final 

rule preamble and future guidance. 

Additionally, the Agency is requesting 

comment on whether it should define 

‘‘applicable submission procedures’’ in 

regulatory text for all certifying 

authorities, and if so, what those 

‘‘applicable submission procedures’’ 

should include (e.g., the items listed 

above for pre-filing meetings with EPA, 

and/or other items). The Agency also 

requests comment on the proposed 

minimum timeline between the 

submission of a pre-filing meeting 

request and certification request. If a 

requirement to submit a pre-filing 

meeting request remains in the final rule 

and ‘‘applicable submission 

procedures’’ remains undefined, EPA 

intends to develop its own 

recommended procedures for pre-filing 

meeting requests and will make those 

procedures available to the public 

during the implementation of any final 

rule. These recommendations will 

reflect some of EPA’s own procedures 

when the Agency is the certifying 

authority, which are described, in part, 

above. 

The Agency is also proposing to 

provide certifying authorities with the 

flexibility to waive or shorten the prefiling meeting request requirement. As 

indicated in pre-proposal input, all 

projects do not necessarily require early 

engagement between the project 

proponent and certifying authority. For 

example, less complex, routine projects 

may not necessitate the same level of 

early engagement as a large, complex 

project. The Agency’s view is that the 

proposed requirement to submit a prefiling meeting request is responsive to 

stakeholder concerns and suggestions 

mentioned above about the need for 

early engagement between the project 

proponent and a certifying authority. 

Additionally, the Agency recognizes 

that states and tribes are in the best 

position to determine whether a 

particular project (or class of projects) 

would benefit from such early 

coordination. Accordingly, this 

proposed requirement includes a waiver 

provision that reflects both cooperative 

federalism principles and the reality 

that not every project will benefit from 

a pre-filing meeting. The Agency 

recommends that certifying authorities 

clearly communicate to project 

proponents their expectations for prefiling meetings and requests for prefiling meeting waivers (e.g., whether 

they may grant waivers, either 

categorically or on an individual basis, 

and any procedures and deadlines for 

submission of requests and the grant of 

waivers) so that project proponents may 

clearly and efficiently engage in the 

certification process. EPA is requesting 

comment on whether the project 

proponent should have the opportunity 

to participate in determining the need 

for a pre-filing meeting request. For 

example, should there be a process for 

the project proponent to ask the 

certifying authority to waive the prefiling meeting request requirement? 

Like other certifying authorities, EPA 

would have the discretion to waive the 

pre-filing meeting request requirement. 

Generally, EPA expects that it will 

provide written acknowledgement that 

the pre-filing meeting request has been 

received within 5 days of receipt. In its 

written response, the Agency will also 

state whether it has determined that the 

pre-filing meeting will be waived or 

when (if less than 30 days) the project 

proponent may submit the certification 

request. The 2020 Rule provides that the 

certifying authority is not obligated to 

grant or respond to a pre-filing meeting 

request. See 40 CFR 121.4(b). The 

Agency is proposing to delete this 

provision as unnecessary because the 

proposed regulatory text at § 121.4 does 

not compel any action by the certifying 

authority. Accordingly, the Agency does 

not find it necessary to expressly 

reiterate what the certifying authority is 

not obligated to do. If a certifying 

authority fails to communicate whether 

it wants to waive or shorten the prefiling meeting request requirement, then 

the project proponent must wait 30 days 

from requesting a pre-filing meeting to 

submit its request for certification. The 

Agency is requesting comment on 

whether it should exclude any 

particular project types from the prefiling meeting request requirement and 

process. The Agency is also requesting 

comment on whether it should specify 

that all certifying authorities should 

respond with written acknowledgement 

and determination of the need for a prefiling meeting and timeline within 5 

days of receipt of the pre-filing meeting 

request, whether it should define the 

pre-filing meeting waiver process in 


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34 ‘‘If the State, interstate agency, or 

Administrator, as the case may be, fails or refuses 

to act on a request for certification, within a 

reasonable period of time (which shall not exceed 

one year) after receipt of such request, the 

certification requirements of this subsection shall 

be waived with respect to such Federal 

application.’’ (emphasis added). 

regulation (either for EPA or all 

certifying authorities), or whether it 

should maintain certifying authority 

flexibility in setting the process. 

The Agency is not proposing to define 

the pre-filing meeting process, e.g., 

define meeting subject matter or 

meeting participants. In the 2020 Rule, 

the Agency ‘‘encouraged’’ but did not 

require the project proponent and the 

certifying authority to take certain steps 

with respect to the pre-filing meeting 

process. See 40 CFR 121.4(c)–(d). The 

Agency is proposing to remove these 

recommendations from the regulatory 

text because (1) they were not expressed 

as, or intended to be, regulatory 

requirements and (2) the Agency 

believes that certifying authorities and 

project proponents are best suited to 

determine the optimal pre-filing 

meeting process on a project-by-project, 

project type, or general basis. EPA 

encourages project proponents and 

certifying authorities to use the prefiling meeting to discuss the proposed 

project, as well as determine what 

information or data is needed (if any) as 

part of the certification request to enable 

the certifying authority to take final 

action on the certification request 

within the reasonable period of time. 

During the pre-filing meeting, project 

proponents could share a description of 

the proposed project location and 

timeline, as well as discuss potential 

impacts from the proposed project to 

waters of the United States and other 

water resources. Certifying authorities 

could use the meeting as an opportunity 

to provide information on how to 

submit certification requests (e.g., 

discuss procedural expectations for a 

certification request). Certifying 

authorities should also consider 

including the Federal agency in the prefiling meeting process for early 

coordination. Additionally, the 

proposed provision provides flexibility 

for the certifying authority to determine 

if the pre-filing meeting request is 

fulfilled by any pre-application 

meetings or application submissions to 

the Federal licensing or permitting 

agency. Generally, EPA recommends 

that certifying authorities provide clear 

expectations for pre-filing meetings to 

ensure they are used efficiently and 

effectively. As mentioned previously, 

EPA intends to develop recommended 

procedures for pre-filing meeting 

requests to make available to the public 

during rule implementation. 

This proposed approach provides 

sufficient flexibility (consistent with the 

Act’s cooperative federalism framework) 

to allow states and tribes to decide 

which projects (or project categories) 

require the type of early coordination 

reflected in a pre-filing meeting. EPA is 

requesting comment on the proposed 

approach and whether EPA should 

define the pre-filing meeting request 

process in more detail for other 

certifying authorities (e.g., defining the 

contents of the pre-filing meeting 

request). The Agency is also soliciting 

comment on an alternate approach 

where the Agency would not include a 

pre-filing meeting request requirement 

at all, which some stakeholders 

supported during pre-proposal outreach. 

C. Request for Certification 

EPA is proposing that, once a project 

proponent has requested a pre-filing 

meeting (unless waived by the certifying 

authority), the project proponent may 

submit a certification request in 

accordance with the certifying 

authority’s applicable submission 

procedures. Section 401(a)(1) provides 

that the certifying authority’s reasonable 

period of time to act starts after a 

certifying authority is in ‘‘receipt’’ of a 

‘‘request for certification’’ from a project 

proponent. 33 U.S.C. 1341(a).34 The 

statute does not define either ‘‘request 

for certification’’ or ‘‘receipt.’’ 

In the 2020 Rule, the Agency defined 

‘‘certification request’’ for all certifying 

authorities and asserted that ambiguities 

in the statutory language had led to 

inefficiencies in the certification 

process. 40 CFR 121.5; see 85 FR 42243. 

In particular, the 2020 Rule preamble 

provided that states and authorized 

tribes could not rely on state or tribally 

defined ‘‘complete applications’’ to start 

the certification process, but rather must 

rely on a certification request as defined 

in EPA’s regulation to initiate the 

process. The Agency relied on New 

York State Department of 

Environmental Conservation v. FERC, in 

which the Court of Appeals for the 

Second Circuit rejected New York’s 

argument that the section 401 process 

‘‘begins only once [the state agency] 

deems an application ‘complete’ ’’ and, 

instead, agreed with FERC that the 

section 401 review process begins when 

the state receives a request for 

certification. 884 F.3d 450, 455 (2d Cir. 

2018) (‘‘NYSDEC’’). The court found 

that ‘‘[t]he plain language of Section 401 

outlines a bright-line rule regarding the 

beginning of review’’ and reasoned that 

‘‘[i]f the statute required ‘complete’ 

applications, states could blur this 

bright-line rule into a subjective 

standard, dictating that applications are 

‘complete’ only when state agencies 

decide they have all the information 

they need.’’ Id. at 455–56. 

In NYSDEC, the Second Circuit held 

that the plain language of section 

401(a)(1) provides that the reasonable 

period of time begins after receipt of the 

request for certification, not when a 

certifying authority deems the request 

‘‘complete.’’ The Second Circuit did not, 

however, decide the separate question 

of whether EPA or certifying authorities 

have the authority to establish—in 

advance of receiving a certification 

request—a list of required contents for 

such a request. Accordingly, the court’s 

holding that the reasonable period of 

time begins after ‘‘receipt’’ does not 

preclude EPA from establishing such a 

list of minimum ‘‘request for 

certification’’ requirements, or from 

allowing certifying authorities to add 

requirements to EPA’s list or develop 

their own lists of request requirements. 

Because the statute does not expressly 

define the term ‘‘request for 

certification,’’ EPA and other certifying 

authorities are free to do so in a manner 

that establishes—in advance of 

receiving the request—a discernable and 

predictable set of requirements for a 

certification request that starts the 

reasonable period of time. Establishing 

such a list of required elements in 

advance is consistent with the rationale 

of NYSDEC that criticized the state for 

relying on its ‘‘subjective’’ 

determination that the request was 

‘‘complete.’’ 

EPA is proposing minor revisions to 

the term ‘‘receipt’’ to clarify for all 

stakeholders that the reasonable period 

of time begins to run after a certifying 

authority receives a certification request 

as that request is defined either by EPA 

or the certifying authority in accordance 

with its applicable submission 

procedures. EPA is also proposing to 

remove the language in the regulatory 

text at § 121.5(a) that requires a project 

proponent to submit a certification 

request to a Federal agency. Section 

401(a)(1) requires a project proponent to 

obtain certification or waiver from a 

certifying authority, not a Federal 

agency. The proposed definition of 

‘‘receipt’’ relies upon the certifying 

authority, and not the Federal agency, to 

determine whether the certifying 

authority has received a request for 

certification from a project proponent, 

and as discussed below, the Agency is 

proposing that the certifying authority 

sends written confirmation of receipt of 

the request for certification to the 

project proponent and Federal agency. 

Therefore, it is unnecessary for a project 


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proponent to submit a request for 

certification to the Federal agency in 

addition to sending it to the certifying 

authority. 

New to this proposal and as discussed 

in the next section, EPA is proposing 

that every ‘‘request for certification’’ 

include a copy of the relevant draft 

Federal license or permit. EPA intends 

for this new requirement to ensure that 

states and tribes have the critical 

information they need to make a timely 

and informed certification decision. 

Accordingly, under this proposal a 

project proponent cannot submit a 

request for certification to a certifying 

authority until after a Federal agency 

has developed a draft license or permit. 

In an effort to be further responsive to 

state and tribal input and the 

cooperative federalism principles of the 

Act, unlike the 2020 Rule, EPA is 

proposing additional contents of a 

‘‘request for certification’’ in only two 

circumstances: (1) When EPA acts as the 

certifying authority and (2) when a state 

or authorized tribe has not established 

its own definition of ‘‘request for 

certification’’ in regulation. 

1. Minimum Contents of a Request for 

Certification 

Although the proposed rule would 

require project proponents to initiate 

engagement with a certifying authority 

through a pre-filing meeting request, the 

timing for a certifying authority to 

review and act on a request for 

certification for a federally licensed or 

permitted project starts only when the 

certifying authority receives a request 

for certification. EPA and stakeholders 

alike have recognized the importance of 

ensuring that adequate information is 

available to initiate and inform the 

certification review process, given the 

relatively limited period of time a 

certifying authority has to review a 

project under section 401 (i.e., a 

‘‘reasonable period of time’’ not to 

exceed one year). However, EPA 

recognizes that stakeholders’ views vary 

on whether it is possible to define 

exactly what information is sufficient or 

necessary to start the review process. 

In 1971, the Agency opted to not 

define what information, if any, was 

sufficient to start the review process for 

all certifying authorities and instead 

opted to define the information only for 

EPA when it acts as the certifying 

authority. 40 CFR 121.22 (2019). As a 

result, over the last approximately 50 

years, many states and tribes established 

their own requirements for what 

constitutes a request for certification, 

also called a ‘‘certification request,’’ 

typically defining it as a so-called 

‘‘complete application.’’ See, e.g., Cal. 

Code Regs. Tit. 23, sec. 3835; La. 

Admin. Code tit. 33, sec. IX–1507; Ohio 

Admin. Code 3745–32–03. Prior Agency 

guidance acknowledged this practice. 

See 1989 Guidance, at 31 (April 1989) 

(‘‘Thus, after taking the federal agencies’ 

regulations into account, the State’s 401 

certification regulations should link the 

timing for review to what is considered 

receipt of a complete application.’’); see 

also 2010 Handbook (rescinded) 

(‘‘States and tribes often establish their 

own specific requirements for a 

complete application for water quality 

certification. . . . The advantage of a 

clear description of components of a 

complete [section] 401 certification 

application is that applicants know 

what they must be prepared to provide, 

and applicant and agencies alike 

understand when the review timeframe 

has begun.’’). 

As discussed above, the 2020 Rule 

defines the term ‘‘certification request’’ 

and the contents of a certification 

request for all certifying authorities and 

does not allow certifying authorities to 

modify or add to these requirements. 

See 40 CFR 121.1(c), 121.5. Generally, 

these requirements include basic project 

information such as identifying the 

project proponent and a point of 

contact, and identifying the location and 

nature of any potential discharge that 

may result from the proposed project 

and the location of receiving waters. See 

id. at § 121.5. 

In pre-proposal outreach for this rule, 

many certifying authorities expressed 

concerns about the Agency’s decision in 

the 2020 Rule to provide a complete list 

of elements that define a certification 

request. These certifying authorities 

noted that it is unreasonable to impose 

a ‘‘one size fits all’’ definition on 

certification requests in light of different 

state legal requirements (e.g., 

certification fee requirements, 

antidegradation laws) or to expect states 

and tribes to be able to act in a timely, 

informed manner without more specific 

information about the proposed project. 

Although the 2020 Rule did not prohibit 

certifying authorities from requesting 

additional information after receiving a 

request for certification, several 

certifying authorities argued that the 

rule’s bifurcated approach (e.g., separate 

lists of Federal and state requirements) 

created workload issues for certifying 

authorities and caused confusion among 

project proponents. At least one 

certifying authority noted that the 2020 

Rule requirements resulted in the state 

issuing more denials due to project 

proponents not submitting information 

necessary for project evaluation. 

Conversely, several project proponents 

have argued that a definitive list of 

contents of a request for certification is 

essential to provide clarity and 

consistency for project proponents and 

certifying authorities. 

In this rulemaking, EPA is proposing 

that a request for certification must in 

all cases be in writing, signed, dated, 

and include a copy of a draft license or 

permit (unless legally precluded from 

obtaining such a copy) and any existing 

and readily available data or 

information related to potential water 

quality impacts from the proposed 

project (e.g., Environmental Impact 

Statement (EIS), water quality data 

collected by the project proponent). 

Although this proposed approach 

defines limited requirements for all 

certification requests, the Agency is not 

providing an exclusive definition of 

request for certification, as it did in the 

2020 Rule. Rather, the Agency is 

proposing to define requirements it 

views as necessary for an efficient and 

consistent certification process. The 

Agency is also proposing to remove the 

definition of ‘‘certification request’’ 

currently located at 40 CFR 121.1(c), 

which describes the components of a 

request for certification, and instead 

incorporate those same definitional 

elements directly into the proposed 

language at § 121.5(a). The Agency 

believes incorporating the definitional 

elements into the relevant regulatory 

section for request for certification will 

provide greater clarity about the 

contents of a request for certification. 

Because the proposed interpretation 

of a ‘‘request for certification’’ includes 

submission of the relevant draft Federal 

license or permit for the proposed 

project, a project proponent would not 

be able to submit a request for 

certification until a Federal agency 

develops and provides it with a draft 

license or permit for the proposed 

project. Section 401 does not specify 

when a request for certification must be 

submitted in relation to the related 

Federal licensing or permitting process, 

nor does the 1971 Rule or 2020 Rule 

specify when a project proponent must 

submit a request for certification. 

Because the text of section 401 does not 

define the contents of a ‘‘request for 

certification’’ or specify at what point in 

the Federal licensing or permitting 

process such a request must or may be 

submitted to the certifying authority, the 

statute is ambiguous on both points. As 

the agency charged with administering 

the CWA, EPA is entitled to deference 

for its reasonable interpretation of the 

statute that a draft license or permit 

must be included. See Ala. Rivers 

Alliance v. FERC, 325 F.3d 290, 296–97 

(D.C. Cir. 2003); NYSDEC, 884 F.3d at 

453, n.33. 


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As discussed below, EPA’s proposed 

interpretation of the term ‘‘request for 

certification’’ to include a draft license 

or permit and any existing and readily 

available data or information related to 

potential water quality impacts from the 

proposed project is reasonable because 

it ensures that the certifying authority 

has arguably the most important pieces 

of information—the water qualityrelated conditions and limitations the 

Federal agency has preliminarily 

decided to include in the draft license 

or permit and information informing 

that preliminary decision—to evaluate 

and determine whether it can certify 

(with or without additional conditions 

and limitations) that the project will 

comply with all applicable Federal and 

state water quality requirements. 

Without the ability to see and evaluate 

what conditions and limitations the 

Federal agency has preliminarily 

decided to include in its license or 

permit and the information informing 

that decision, the certifying authority 

might be inclined to deny certification 

as a protective measure against the 

unknown potential effects from the 

project or, in the alternative, it may 

include in its certification potentially 

unnecessary conditions as a hedge 

against what the Federal agency may 

decide to include. Because the certifying 

authority would have the benefit of 

seeing the Federal agency’s preliminary 

conditions during its review of the draft 

license and permit, including its water 

quality-related limitations and 

requirements, and any existing and 

readily available data or information 

related to potential water quality 

impacts from the proposed project (such 

as an EIS), certifying authorities should 

be able to complete their certification 

review in less time and deliver 

certifications with fewer and more 

targeted and effective conditions. EPA 

also anticipates that this proposed 

requirement may reduce redundancies 

between the certification and Federal 

licensing or permitting processes. 

Providing certifying authorities with 

any existing and readily available data 

or information related to potential water 

quality impacts from the proposed 

project, such as studies or an EIS or 

Environmental Assessment (EA) or 

other water quality monitoring data, 

may reduce the need for duplicative 

studies and analyses. EPA intends for 

such ‘‘existing and readily available 

data or information related to potential 

water quality impacts from the proposed 

project’’ to include both data or 

information that informed the Federal 

agency’s development of the draft 

license or permit as well as any other 

existing data or information the project 

proponent may have readily available. 

Under this proposal, if a project 

proponent is legally precluded from 

obtaining a copy of a draft license or 

permit, the project proponent would not 

be required to provide a copy. However, 

in this instance, a project proponent 

would still be required to obtain and 

produce any existing and readily 

available data or information related to 

potential water quality impacts from the 

proposed project, such as a copy of an 

EIS or EA. 

The Agency is aware that some 

Federal agencies allow project 

proponents to submit certification 

requests shortly after a license or permit 

application is received and before there 

is a draft license or permit. See, e.g., 18 

CFR 5.23 (requiring a FERC hydropower 

license applicant to provide a copy of a 

water quality certification or request for 

certification ‘‘no later than 60 days 

following the date of issuance of the 

notice of acceptance and ready for 

environmental analysis’’); 33 CFR 

325.2(b)(1) (requiring a Corps district 

engineer to notify the applicant if they 

determine that a water quality 

certification is necessary in processing 

an application); cf. 40 CFR 124.53(a)–(c) 

(providing for a request for certification 

to occur either before or after EPA 

prepares a draft NPDES permit). The 

Agency is not aware of any regulatorybased reason why Federal licensing or 

permitting agencies could not manage 

their internal procedures so that a 

certifying authority’s ‘‘reasonable period 

of time’’ did not begin to run until after 

it had received a copy of the draft 

license or permit. Moreover, as 

discussed above, it is reasonable to start 

the certification process only after a 

draft license or permit for the proposed 

project is available. To be clear, EPA is 

not proposing to require the project 

proponent to request certification 

immediately upon development or 

receipt of the draft license or permit. For 

example, the Corps is required to 

request certification on the nationwide 

permits (NWPs) when they are renewed 

every five years. First, the Corps 

proposes the draft NWPs and takes 

comment on the proposal, and later 

finalizes the NWPs after considering 

public comment. Under this proposed 

rule, the Corps may request certification 

on the NWPs after it receives and 

considers public comment on the 

proposal but before finalizing the NWPs. 

In that scenario, the Corps would 

provide the non-finalized NWP to the 

certifying authority as the draft permit 

in its request for certification to satisfy 

the proposed requirements. EPA 

encourages project proponents to work 

with certifying authorities to determine 

when it is appropriate to submit a 

request for certification after 

development of the draft license or 

permit to allow for an informed and 

efficient certifying authority review. 

Furthermore, EPA is not proposing that 

the Federal agency must solicit public 

comment on its draft license or permit 

or create a new regulatory process to 

engage the public (e.g., notice and 

comment); rather, the Agency is 

proposing that the Federal agency 

provide a draft version of its license or 

permit for that specific proposed project 

prior to initiating the certification 

process, for the limited purpose of 

helping the certifying authority reach a 

proper decision on the request for 

certification. EPA is requesting 

comment on whether the Federal 

agency, as opposed to the project 

proponent, should provide a copy of the 

draft license or permit to the certifying 

authority when it is not otherwise 

already publicly available. 

The Agency is not proposing to 

require that the project proponent 

submit a final license or permit in its 

certification request because a final 

Federal license or permit may not be 

issued until after a certification or 

waiver is obtained by the project 

proponent. 33 U.S.C. 1341(a)(1) (‘‘No 

license or permit shall be granted until 

certification required by this section has 

been obtained or has been waived as 

provided in the preceding sentence.’’) 

Therefore, requiring a copy of the final 

license or permit to initiate the 

certification process would be 

inconsistent with the plain language of 

section 401. 

The Agency is requesting comment on 

its proposed approach. The Agency is 

also requesting comment on an 

alternative approach, under which a 

project proponent may submit either a 

copy of its officially submitted license 

or permit application or a copy of the 

draft license or permit and any existing 

and readily available data or 

information related to potential water 

quality impacts from the proposed 

project. 

2. Additional Contents in a Request for 

Certification 

As discussed above, the Agency is 

proposing that every request for 

certification include a copy of the draft 

license or permit and any existing and 

readily available data or information 

related to potential water quality 

impacts from the proposed project. The 

Agency is also proposing to identify a 

set of additional contents that a project 

proponent must include in a request for 

certification when EPA acts as the 


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35The use of ‘‘complete’’ applications is also 

applied in other Federal environmental realms (e.g., 

the Safe Drinking Water Act, the Clean Air Act). 

See, e.g., 40 CFR 144.31, 40 CFR 51.103, appendix 

V to part 51. 

certifying authority. The Agency is also 

proposing that the same set of 

additional contents would be required 

in each request for certification to a state 

or authorized tribe that has not 

established its own definition of a 

‘‘request for certification’’ under state or 

tribal law. These additional contents 

would not apply where a state or 

authorized tribe has established its own 

list of requirements for a request for 

certification. As discussed above, this 

proposed approach contrasts with the 

approach taken in the 2020 Rule, which 

defines the contents of a certification 

request for all certifying authorities. 

However, it is a reasonable—and more 

flexible—approach to defining the term 

‘‘request’’ and consistent with NYSDEC. 

That decision holds that the reasonable 

period of time begins after receipt of a 

request for certification and not when a 

state deems it ‘‘complete;’’ it does not 

preclude EPA or other certifying 

authorities from defining—in advance— 

those contents a certification request 

must contain. As discussed below, this 

approach is consistent with stakeholder 

input and the cooperative federalism 

principles central to section 401 and the 

CWA. 

The Agency agrees it is important for 

project proponents to have clarity and 

certainty during the certification 

process. In order to effectuate Congress’ 

goals for section 401 in the limited 

amount of time provided by the Act, it 

is reasonable that certifying authorities 

should be able to define what 

information, in addition to a draft 

license or permit and any existing and 

readily available data or information 

related to potential water quality 

impacts from the proposed project, is 

necessary to make an informed decision 

regarding protecting their water quality 

from adverse effects from a federally 

licensed or permitted activity. See 

discussion in Section IV.A in this 

preamble on the legislative history of 

section 401. This approach will allow 

certifying authorities to act on 

certification requests in a timely and 

informed manner, while providing 

project proponents with clarity 

regarding expectations for the 

certification process. Pre-proposal input 

on this rulemaking revealed that 

defining an exclusive list of components 

for certification requests for all 

certifying authorities would not 

necessarily result in a more efficient or 

timely process. As noted above, several 

stakeholders asserted that the 2020 Rule 

led to workload challenges, general 

confusion for project proponents, and, 

in at least one state, an increase in 

denials. The Agency’s proposed 

approach here will allow for a 

transparent and timely process that 

respects the role of state and tribal 

certifying authorities under the 

cooperative federalism framework of 

section 401. 

First, this proposed approach will 

reduce project proponent confusion. In 

all instances, the proposed rule defines 

the term ‘‘request for certification’’ to 

include a copy of a draft license or 

permit and any existing and readily 

available data or information related to 

potential water quality impacts from the 

proposed project. It then defines 

additional contents that a certification 

request must include when EPA acts as 

a certifying authority or where a state or 

authorized tribe does not define a 

certification request in its regulations. 

Providing a defined list of additional 

contents for a certification request 

where EPA acts as a certifying authority, 

or where a state or tribe does not have 

a defined list in regulation, will provide 

project proponents with clear 

expectations for starting the process. 

Implicit in this requirement is an 

understanding that certifying authorities 

that wish to define their own additional 

requirements for a certification request 

have the authority to do so in 

regulation. Additionally, this proposed 

approach should be familiar to project 

proponents who would have followed 

specific requirements established by 

states and tribes during the last 

approximately 50 years. The proposed 

approach also addresses project 

proponent concerns about certifying 

authorities that, in the past, may have 

unexpectedly required additional 

information from the project proponent 

to satisfy the request for certification 

requirement before starting the clock on 

the ‘‘reasonable period of time.’’ Under 

the approach EPA proposes here, the 

reasonable period of time starts after 

receipt of a ‘‘request for certification,’’ 

which is defined to mean a request that 

contains the contents required by EPA’s 

proposed regulations and any additional 

state or tribal requirements. 

Second, this approach will allow 

certifying authorities to act on 

certification requests in a more efficient 

manner. The Agency generally agrees 

with stakeholders that the Agency 

cannot tailor the requirements of a 

certification request to fit every project 

or state or tribal law. This proposed 

approach recognizes the importance of 

ensuring that states and tribes are 

empowered to determine what 

information is necessary to initiate the 

certification process. Although this 

proposed rule does not preclude 

certifying authorities from asking for 

more information once they receive a 

certification request and the reasonable 

period of time begins, allowing states 

and authorized tribes to define 

additional contents of a certification 

request may reduce the need for such 

additional requests. 

Although the Agency is proposing to 

allow states and authorized tribes to 

define their own additional 

requirements for a certification request, 

the proposed approach provides a clear 

backstop for those states or authorized 

tribes who do not choose to define any 

additional requirements in regulation. 

The Agency expects that those states 

and authorized tribes who choose to 

define additional contents for a 

certification request would do so clearly 

enough to provide project proponents 

with full transparency as to what is 

required. As discussed above, some 

certifying authorities rely on a 

‘‘complete application’’ to start the 

certification review process. In the 

Agency’s view, a state requirement for 

submittal of a complete application, 

when the contents of such complete 

application are clearly defined in 

regulation, will not necessarily lead to 

a ‘‘subjective standard.’’ NYSDEC, 884 

F.3d at 455–56. In fact, the Agency 

observes that the use of a 

‘‘completeness’’ standard for 

applications or similar documents is not 

a novel concept in CWA implementing 

regulations.35 Both EPA and the Corps 

have developed regulations setting out 

requirements for ‘‘completeness’’ or 

‘‘complete applications’’ to initiate the 

permitting process. See 40 CFR 

122.21(e) (describing ‘‘completeness’’ 

for NPDES applications); 33 CFR 

325.1(d)(10) (describing when an 

application is deemed ‘‘complete’’ for 

section 404 permits). Neither CWA 

section 402 or section 404 uses the word 

‘‘complete’’ to modify the term 

‘‘application’’ in the statute, yet the 

agencies have reasonably interpreted the 

term ‘‘application’’ in those contexts to 

allow for a ‘‘completeness’’ concept that 

provides a clear and consistent 

framework for stakeholders involved in 

the section 402 and 404 permitting 

processes. The Agency is unaware of 

significant issues with the use of 

‘‘complete applications’’ in either the 

section 402 or section 404 permitting 

processes or a concern that it has led to 

a ‘‘subjective standard.’’ 

The Agency is requesting comment on 

this proposed approach, including any 

examples or data about state or tribal 

certification request practices, including 


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36CWA section 401(a)(1) states that a ‘‘State or 

interstate agency shall establish procedures for 

public notice in the case of all applications for 

certification by it.’’ 

a requirement for a ‘‘complete request,’’ 

that may have delayed the certification 

process. The Agency also requests 

comment on examples or circumstances 

where a certifying authority has applied 

a subjective or open-ended definition of 

‘‘complete application’’ to certification 

requests, including examples of such in 

certifying authority regulations. EPA is 

also seeking comment on whether it 

should take an alternate approach 

whereby the Agency would define the 

minimum additional components of a 

certification request for all certifying 

authorities and if so, what those 

minimum additional components 

should include (e.g., the minimum 

additional components proposed to 

apply to EPA when it acts as a certifying 

authority, as discussed below). 

The Agency is proposing to require 

that a certification request made to EPA, 

or to states or tribes without their own 

definitions of ‘‘request for certification’’ 

as discussed above, include five 

additional components. As discussed 

below, these five components contain 

some similarities to the 1971 Rule, with 

revisions to provide further clarification 

and efficiency for project proponents 

and EPA when it acts as a certifying 

authority and when a state or authorized 

tribe has not established its own 

definition of ‘‘request for certification.’’ 

As stated above, the statute does not 

define the contents of a ‘‘request for 

certification’’ to EPA, nor does the 

legislative history discuss these 

components. The 1971 Rule required 

project proponents to submit a signed 

certification request with ‘‘a complete 

description of the discharge involved in 

the activity’’ to EPA when it acts as the 

certifying authority. 40 CFR 121.22 

(2019). Specifically, the 1971 regulation 

required project proponents to include 

five mandatory components to provide 

a ‘‘complete description of the 

discharge.’’ Id. 

The 2020 Rule precludes state or 

tribal definitions of what must be 

included in a ‘‘certification request.’’ 

Instead, it provides a general definition 

of ‘‘certification request’’ applicable to 

all certifying authorities and two 

different lists of documents and 

information that must be included in all 

certification requests: one list for 

individual licenses and permits and a 

separate list for the issuance of a general 

license or permit. 40 CFR 121.5; see also 

85 FR 42285. The preamble asserted that 

these were objective components that 

would not ‘‘require subjective 

determinations about whether the 

request submittal requirements have 

been satisfied.’’ 85 FR 42246. The nine 

components for a certification request 

on an individual license or permit are 

similar to the 1971 Rule, with additional 

components that required project 

proponents to include documentation of 

a pre-filing meeting request, a list of 

other project authorizations, and 

attestations regarding the contents of the 

request and that a request was being 

submitted. Id. at 42285. 

Prior to the 2020 Rule, some states 

and authorized tribes established their 

own requirements for a certification 

request that included more information 

than the 2020 Rule. In pre-proposal 

outreach for this rulemaking, several 

certifying authorities noted that the 

2020 Rule’s list of components for a 

certification request failed to account for 

information that may be required to 

comply with state public notice 

requirements 36 and state 

antidegradation policies. As a result, 

these certifying authorities asserted that 

the list limited their ability to engage in 

robust, meaningful public engagement 

on certification requests or ensure that 

a project would comply with EPAapproved water quality standards. 

As noted above, although the Agency 

is proposing that all requests for 

certification must include a copy of the 

draft license or permit and any existing 

and readily available data or 

information related to potential water 

quality impacts from the proposed 

project, the Agency is declining to 

define the additional contents of a 

certification request for those states or 

authorized tribes who have regulations 

that identify the contents of a 

certification request because it is 

difficult to tailor the contents at a 

national level to fit all state and tribal 

laws and regulations. However, EPA is 

proposing to define additional contents 

of a certification request for EPA when 

it acts as a certifying authority and for 

states or authorized tribes who do not 

have regulations on the components of 

a certification request. EPA is proposing 

that a certification request to EPA when 

it acts as the certifying authority, or to 

a state or tribe who does not have 

regulations on the components of a 

certification request, must also contain 

the following five components, if not 

already included in the draft license or 

permit: 

1. The name and address of the 

project proponent; 

2. The project proponent’s contact 

information; 

3. Identification of the applicable 

Federal license or permit, including 

Federal license or permit type, project 

name, project identification number, 

and a point of contact for the Federal 

agency; 

4. Where available, a list of all other 

Federal, interstate, tribal, state, 

territorial, or local agency 

authorizations required for the proposed 

activity and current status of each 

authorization; and 

5. Documentation that a pre-filing 

meeting request was submitted to the 

certifying authority in accordance with 

applicable submission requirements, 

unless a pre-filing meeting request has 

been waived. 

Like the 1971 Rule and 2020 Rule, the 

Agency proposes to require basic 

background information about the 

project proponent, including name, 

address, and contact information. 

Consistent with the definition for 

‘‘project proponent’’ proposed at 

§ 121.1(j), this information may include 

the name, address, and contact 

information for a project proponent’s 

agent or contractor, where relevant, in 

addition to the primary project 

proponent. This additional contact 

information is important for the Agency 

to ensure that the appropriate 

representatives are aware of the 

certification requirements and can be 

contacted throughout the certification 

process. The proposed rule also requires 

project proponents to identify the 

Federal license or permit for which they 

are seeking certification, including 

information that identifies the license or 

permit type, name, and number, as well 

as a point of contact at the respective 

Federal licensing or permitting agency. 

Similar to the 2020 Rule, the Agency 

also proposes to require that the project 

proponent provide a list of other 

authorizations that are required for the 

proposed activity and the current status 

of such authorizations, where 

applicable. This requirement will allow 

the Agency to assess how water quality 

impacts may be addressed through other 

Federal, state, or local authorizations 

and potentially reduce redundancies or 

inconsistencies between the certified 

license or permit and other 

authorizations. When the project 

proponent is a Federal agency seeking 

certification, the Agency does not 

expect the Federal agency to be able to 

produce such a list. Typically, when a 

Federal agency seeks certification, it is 

seeking certification on general licenses 

or permits that would be used by future 

project applicants. Therefore, at the time 

of the request for certification, the 

Federal agency is likely unable to 

provide any information on which 

authorizations, if any, are required for 

such a future project. Similar to the 

2020 Rule, the Agency also proposes to 


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require a project proponent to submit 

documentation that the proponent 

requested a pre-filing meeting, unless a 

pre-filing meeting request has been 

waived. The documentation should be 

in writing, such as a copy of the email 

requesting the pre-filing meeting. As 

discussed in section V.B in this 

preamble, a certifying authority may 

waive the requirement for a pre-filing 

meeting request. In that event, the 

project proponent would not need to 

produce documentation of a pre-filing 

meeting request. 

The Agency is not proposing to retain 

the contents of the 2020 Rule at 

§ 121.5(b)(4) and (5) and (8) and (9); the 

1971 Rule also contained similar 

contents to § 121.5(b)(4) and (5). See 40 

CFR 121.22(b)–(c), (e) (2019). Section 

121.5(b)(4) and (5) are unnecessary 

since the proposed rule requires a 

project proponent to provide a copy of 

the draft license or permit and any 

existing and readily available data or 

information related to potential water 

quality impacts from the proposed 

project in its request. The Agency also 

finds it unnecessary to retain the 

requirements at § 121.5(b)(8) and (9). 

EPA included the component at 

§ 121.5(b)(8) ‘‘to create additional 

accountability on the part of the project 

proponent to ensure that information 

submitted in a certification request 

accurately reflects the proposed 

project.’’ 85 FR 42245 (July 13, 2020). 

EPA is unaware of any issues or 

concerns that project proponents will 

not provide accurate information in the 

request for certification without such 

attestation. Furthermore, the proposed 

contents for a request for certification 

include a copy of the draft license or 

permit, which presumably incorporates 

accurate information about the proposed 

project. Additionally, it is unnecessary 

for a project proponent to provide 

specific language explicitly requesting 

certification because a project 

proponent is required to submit a 

request for certification as defined in 

this proposal. Submitting a request for 

certification as defined in this proposal 

should be a clear indication to the 

certifying authority that the project 

proponent is seeking certification. 

Although the Agency is defining the 

additional components of a certification 

request when it acts as a certifying 

authority, this does not preclude EPA 

from asking for additional information 

after a certification request is submitted, 

if the Agency determines additional 

information is necessary to inform its 

decision-making on a request for 

certification. 

The Agency is proposing to require a 

copy of the draft license or permit and 

any existing and readily available data 

or information related to potential water 

quality impacts from the proposed 

project in all requests for certification of 

both individual and general licenses 

and permits. Additionally, the Agency 

is proposing to require that any 

additional requirements for a request for 

certification apply to both requests for 

individual and general licenses or 

permits. Unlike the 2020 Rule, the 

Agency is not proposing to retain a 

separate list of additional requirements 

for general licenses and permits. See 40 

CFR 121.5(c). In the 2020 Rule, EPA 

introduced a separate list of contents for 

a request for certification on the 

issuance of a general license or permit 

‘‘to account for the distinctions between 

issuing a general license or permit and 

issuing a license or permit for a specific 

project, with respect to the available 

information at the time of certification.’’ 

85 FR 42281 (July 13, 2020). However, 

EPA does not think there are any 

information needs beyond the proposed 

additional requirements unique or 

specific to a general license or permit. 

EPA is requesting comment on whether 

there are such different needs and 

whether it should create a separate list 

of additional requirements for general 

licenses or permits. 

EPA is requesting comments on its 

proposed list of additional components 

for a certification request when EPA acts 

as the certifying authority, or where a 

state or tribe does not define such 

additional requirements in regulation. 

Additionally, the Agency is requesting 

comment on the components as they 

would apply to state and authorized 

tribal certification requests, including 

where available, citations to existing 

regulations or any data on the time it 

takes project proponents to comply with 

these requirements. 

The Agency also requests comment on 

an alternative approach where the 

project proponent would be required to 

submit (1) a Federal license or permit 

application instead of a copy of the draft 

license or permit, (2) any existing and 

readily available data or information 

related to potential water quality 

impacts from the proposed project, and 

(3) an additional set of components. 

Under this alternative approach, the 

project proponent would be required to 

submit ‘‘proposed activity information’’ 

with six components, including the 

following: 

1. A description of the proposed 

activity, including the purpose of the 

proposed activity and the type(s) of 

discharge(s) that may result from the 

proposed activity; 

2. The specific location of any 

discharge(s) that may result from the 

proposed activity; 

3. A map and/or diagram of the 

proposed activity site, including the 

proposed activity boundaries in relation 

to local streets, roads, highways; 

4. A description of current activity 

site conditions, including but not 

limited to relevant site data, 

photographs that represent current site 

conditions, or other relevant 

documentation; 

5. The date(s) on which the proposed 

activity is planned to begin and end 

and, if known, the approximate date(s) 

on which any discharge(s) will take 

place; and 

6. Any additional information to 

inform whether any discharge from the 

proposed activity will comply with 

applicable water quality requirements. 

This alternative additional 

information would incorporate some of 

the information requirements from the 

1971 Rule and 2020 Rule and add other 

items to reflect the additional 

information that the Agency views 

necessary to initiate its analysis of a 

certification request on a Federal license 

or permit application. 

EPA is also proposing to make 

conforming changes to the part 124 

regulations governing the contents of a 

request for certification of EPA-issued 

NPDES permits. EPA is proposing to 

delete 40 CFR 124.53(b), which provides 

that when EPA receives a permit 

application without certification, EPA 

shall forward the application to the 

certifying authority with a request that 

certification be granted or denied. EPA 

is proposing to delete § 124.53(b) 

because this provision allows a request 

for certification to precede development 

of a draft NPDES permit, which is 

inconsistent with the approach 

proposed at § 121.5(a). It is worth noting 

that although § 124.53 currently allows 

for a request for certification on a permit 

application, EPA typically requests 

certification on draft NPDES permits. 

EPA is also proposing to delete 40 

CFR 124.53(c), which identifies the 

required contents of a request for 

certification of an EPA-issued NPDES 

permit (if certification has not been 

received by the time the draft permit is 

prepared). EPA is proposing to delete 

§ 124.53(c) because EPA intends that all 

requests for certification—including all 

requests for certification on EPA-issued 

NPDES permits—follow the regulations 

proposed at § 121.5. The list of contents 

at § 124.53(c) differs significantly from 

the list of contents proposed at 

§ 121.5(c). Further, unlike proposed 

§ 121.5(b), § 124.53(c) is unclear 

regarding whether requests for 


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certification on EPA-issued NPDES 

permits must follow state regulations 

regarding the contents of a request for 

certification. Also, as explained at the 

end of Section V.D.2 of this preamble, 

the statement required at § 124.53(c)(3) 

regarding the reasonable period of time 

is not consistent with the approach to 

the reasonable period of time proposed 

at § 121.6. 

3. Defining ‘‘Receipt’’ of a Request for 

Certification 

EPA is also proposing to define the 

term ‘‘receipt’’ to clarify that the 

reasonable period of time begins on the 

date that a certifying authority receives 

a certification request as defined by this 

proposal, with any additional 

components identified by the certifying 

authority in its regulations, and in 

accordance with its applicable 

submission procedures. The statute does 

not define the term ‘‘receipt of such 

request’’ nor does it define how a 

certification request must be received by 

a certifying authority. The 1971 Rule 

does not address or define the term 

‘‘receipt’’, however, the Agency opted to 

define the term in the 2020 Rule. 40 

CFR 121.1(m). The 2020 Rule defined 

the term ‘‘receipt’’ as ‘‘the date that a 

certification request is documented as 

received by a certifying authority in 

accordance with applicable submission 

procedures.’’ Id. In implementation of 

the 2020 Rule, there was some 

confusion regarding whether it was the 

Federal agency’s or certifying 

authority’s responsibility to determine 

that a certification request, as defined by 

the 2020 Rule, was received. The 

proposed definition in this proposal 

clarifies that receipt occurs when the 

certifying authority receives a 

certification request that meets its 

definition for a certification request and 

complies with applicable submission 

procedures. 

First, the proposed definition of 

‘‘receipt’’ acknowledges that a request 

for certification may largely be defined 

by the certifying authority. As discussed 

above, the Agency is proposing to 

require a copy of the draft license or 

permit and any existing and readily 

available data or information related to 

potential water quality impacts from the 

proposed project in all requests for 

certification, but only require additional 

components in a request for certification 

when EPA acts as the certifying 

authority, or where a state or authorized 

tribe does not define a certification 

request in its own regulations. Beyond 

these proposed Federal regulatory 

requirements, states and authorized 

tribes remain free to identify their own 

additional contents of a request for 

certification under state or tribal law. 

Second, the proposed definition of 

‘‘receipt’’ requires a certification request 

to be submitted in accordance with the 

certifying authority’s applicable 

submission procedures. Applicable 

submission procedures describe the 

manner in which a certifying authority 

will accept a certification request, e.g., 

through certified mail or electronically. 

The Agency understands that certifying 

authorities may have different 

procedures for receiving certification 

requests (e.g., receiving certification in 

different formats or requiring the 

payment of fees), and as such, is not 

defining a set of standard applicable 

submission procedures. However, EPA 

encourages certifying authorities to 

make their applicable submission 

procedures publicly available and, 

where possible, to discuss these 

procedures at pre-filing meetings. EPA 

is requesting comment on whether it 

should define applicable submission 

procedures. 

The statute further provides that the 

reasonable period of time begins ‘‘after 

receipt of such request.’’ 33 U.S.C. 

1341(a)(1). The Agency interprets this to 

mean that the reasonable period of time 

begins on the date that the certifying 

authority receives a certification request 

that meets the proposed rule’s 

requirements for a certification request, 

includes any additional certification 

request components identified in the 

certifying authority’s regulation, and is 

delivered in accordance with the 

certifying authority’s applicable 

submission procedures. See proposed 

§ 121.6(a). The Agency’s proposed 

rulemaking allows the certifying 

authority the opportunity to confirm 

that it received a request for certification 

consistent with this proposal, its 

additional requirements, and in 

accordance with its applicable 

submission procedures. The Agency is 

proposing to require the certifying 

authority to confirm in writing for the 

project proponent and Federal agency 

the date it received a certification 

request that meets its definition and is 

submitted in accordance with its 

applicable submission procedures. 

Because the certifying authority must 

confirm receipt of the request for 

certification after it receives a request 

from a project proponent, EPA is 

proposing to remove the regulatory text 

at § 121.5(a), which requires a project 

proponent to submit a certification 

request to a certifying authority and 

Federal agency. Similarly, the Agency is 

also proposing to remove the regulatory 

text located at § 121.6(b), which requires 

the Federal agency to communicate the 

date of receipt of the request for 

certification, the reasonable period of 

time, and the date waiver will occur. 

The certifying authority is responsible 

for confirming the date of receipt of a 

request for certification with the project 

proponent and Federal agency. As 

discussed in the next section of this 

preamble, the Federal agency and the 

certifying authority may collaboratively 

set the reasonable period of time. As 

such, it is unnecessary for the Federal 

agency to communicate the length of the 

reasonable period of time and date of 

waiver to the certifying authority. The 

Agency is requesting comment on 

whether there should be a specified 

timeframe for when the certifying 

authority should send written 

confirmation to the project proponent 

and Federal agency of the date of receipt 

of the request for certification. The 

Agency is requesting comment on its 

proposed definition for receipt and the 

start of the reasonable period of time. 

C. Reasonable Period of Time 

1. Reasonable Period of Time 

Determination 

Under section 401, when a certifying 

authority receives a request for 

certification, the certifying authority 

must act on that request within a 

‘‘reasonable period of time (which shall 

not exceed one year).’’ 33 U.S.C. 

1341(a)(1). The proposed rule provides 

Federal agencies and certifying 

authorities with the ability to jointly set 

the reasonable period of time, provided 

the reasonable period of time does not 

exceed one year from the receipt of the 

request for certification. Additionally, 

after the reasonable period of time is set, 

the Federal agency and certifying 

authority may agree to extend the 

reasonable period of time, provided that 

it does not exceed one year from receipt. 

Section 401(a)(1) provides that a 

certifying authority waives its ability to 

certify a Federal license or permit if it 

does not act on a certification request 

within the reasonable period of time. 33 

U.S.C. 1341(a)(1) (‘‘If the State, 

interstate agency, or Administrator, as 

the case may be, fails or refuses to act 

on a request for certification, within a 

reasonable period of time (which shall 

not exceed one year) after receipt of 

such request, the certification 

requirements of this subsection shall be 

waived with respect to such Federal 

application.’’). Other than specifying its 

outer bound (one year), the CWA does 

not define what length of time is 

‘‘reasonable.’’ The 1971 Rule reiterated 

that a certifying authority would waive 

its opportunity to certify if it did not act 

within ‘‘a reasonable period of time’’ 


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37But see U.S. EPA and Department of the Army, 

Clean Water Act Section 401 Certification 

Implementation Memorandum (August 19, 2021) 

(interim joint guidance from EPA and Army Corps 

extending the reasonable period of time to the full 

statutory year for certain nationwide permits). 

and provided that: (1) the Federal 

licensing or permitting agency 

determines the length of the reasonable 

period of time, and (2) the reasonable 

period of time ‘‘shall generally be 

considered to be six months, but in any 

event shall not exceed one year.’’ See 40 

CFR 121.16(b) (2019). 

The 2020 Rule provides that the 

Federal agency sets the reasonable 

period of time and defined a process for 

how it should be determined. See 40 

CFR 121.6. This process specifies when 

a Federal agency must communicate the 

reasonable period of time to the 

certifying authority and identifies 

factors that the Federal agency must 

consider when setting the reasonable 

period of time. See id.; 85 FR 42259–60 

(July 13, 2020). The 2020 Rule does not 

maintain the 1971 Rule’s six-month 

default and reiterates that the reasonable 

period of time could not exceed one 

year from receipt of the certification 

request. 40 CFR 121.6. The 2020 Rule 

also defines the term ‘‘reasonable period 

of time’’ as the length of time, which is 

determined in accordance with § 121.6, 

during which the certifying authority 

may act on a request for certification. 40 

CFR 121.1(l). 

Some Federal agencies have 

promulgated regulations describing a 

reasonable period of time for section 

401 certification in relation to those 

agencies’ licenses or permits. For 

example, FERC has explicitly defined 

the ‘‘reasonable period’’ for certifying 

authority action under section 401 to be 

one year. See 18 CFR 4.34(b)(5)(iii), 

5.23(b)(2), 157.22(b). The Corps has 

routinely implemented a 60-day 

reasonable period of time for section 

401 decisions commencing when the 

certifying authority receives a section 

401 certification request. See 33 CFR 

325.2(b)(1)(ii).37 EPA has established a 

60-day reasonable period of time for 

certifying authorities to act on requests 

for certifications for draft NPDES 

permits. See 40 CFR 124.53(c)(3). 

While project proponents generally 

supported the reasonable period of time 

provisions in the 2020 Rule, most states, 

tribes, and non-governmental 

organizations expressed concern with 

various aspects of its provisions. Many 

states and tribes expressed concern that 

the Federal agency is afforded the sole 

authority to set the reasonable period of 

time, and some recommended that the 

certifying authority alone should be able 

to determine the reasonable period of 

time. Some stakeholders suggested that 

a rule replacing the 2020 Rule should at 

least require the Federal agency and 

certifying authority to collaborate and 

agree on the reasonable period of time. 

Some certifying authorities also pointed 

out that short reasonable periods of time 

(e.g., 60 days) do not allow the state or 

tribe sufficient time to fulfill certain 

state or tribal law requirements, such as 

public notice requirements, or allow 

them to obtain all the information they 

need about a project to make an 

informed certification decision. As a 

result, these certifying authorities 

asserted that for complex projects, their 

only realistic options are to waive or 

deny certification. EPA expressed 

similar concerns in its notice of intent 

to revise the 2020 Rule. See 86 FR 29543 

(June 2, 2021) (‘‘Among other issues, 

EPA is concerned that the rule does not 

allow state and tribal authorities a 

sufficient role in setting the timeline for 

reviewing certification requests. . . .’’). 

This proposed rulemaking not only 

affirms and clarifies that—consistent 

with the statutory text—the reasonable 

period of time may not exceed one year 

from receipt of the certification request, 

but it also proposes that the Federal 

agency and certifying authority 

collaboratively set the reasonable period 

of time on a project-by-project or project 

type basis (e.g., through development of 

procedures and agreements), provided 

that it does not exceed one year. Under 

this proposal, if the Federal agency and 

certifying authority do not agree upon a 

reasonable period of time, the default 

reasonable period of time would be 60 

days from the receipt of the request for 

certification. The proposed rulemaking 

also allows for extensions of the 

reasonable period of time under certain 

circumstances. Additionally, the 

Agency is proposing to remove as 

unnecessary the definition for 

‘‘reasonable period of time,’’ currently 

located at § 121.1(l). Like that definition, 

the proposed language in § 121.6(b) 

itself provides that the reasonable 

period of time is the time during which 

the certifying authority must act on a 

request for certification. As a result, the 

Agency finds it duplicative and 

unnecessary to include a separate 

definition for the term ‘‘reasonable 

period of time.’’ 

EPA understands that, in most cases, 

acting within the reasonable period of 

time is not a major issue for most 

certifying authorities. Several 

stakeholders noted in pre-proposal 

input that the majority of section 401 

certifications are issued in well under a 

year. See Economic Analysis for the 

Proposed Rule (based on pre-proposal 

input and website information, most 

states issue certification decisions in 

60–90 days); see also 85 FR 42215 (July 

13, 2020) (‘‘EPA acknowledges that [] 

many certifications reflect an 

appropriately limited interpretation of 

the purpose and scope of section 401 

and are issued without controversy 

. . . .’’). 

However, a too short or inflexible 

reasonable period of time can present a 

major issue in certain circumstances, 

e.g., for complex, multi-jurisdictional 

projects, and in jurisdictions with 

longer public notice requirements. In 

pre-proposal input, several certifying 

authorities said they needed more 

(rather than less) time to make 

certification decisions due to a lack of 

necessary information from project 

proponents. See also Economic Analysis 

for the Proposed Rule (noting that some 

pre-proposal input revealed that project 

size, project complexity, sufficiency of 

project proponent information, and 

public notice processes impacted 

whether additional time was necessary). 

Several stakeholders recommended that 

EPA establish a default reasonable 

period of time of one full year. 

The collaborative approach EPA is 

proposing (i.e., the Federal agency and 

certifying authority jointly set the 

reasonable period of time with a default 

of 60 days if an agreement is not 

reached) differs from the approach in 

both the 1971 Rule and the 2020 Rule 

where the reasonable period of time is 

determined by the Federal agency. See 

40 CFR 121.16(b) (2019) and 40 CFR 

121.6(a). Such an approach is not 

compelled by the statutory text because 

CWA section 401(a)(1) is silent 

regarding who, if anyone, determines 

the reasonable period of time. Nor does 

it say that the Federal agency is the only 

entity that may establish the reasonable 

period of time. Given that statutory 

ambiguity, EPA has flexibility under 

Chevron to establish regulatory 

provisions regarding the establishment 

of a reasonable period of time. Chevron 

U.S.A., Inc. v. Natural Res. Def. Council, 

Inc., 467 U.S. 837 (1984). 

EPA is proposing to provide Federal 

agencies and certifying authorities with 

an opportunity to collaboratively set the 

reasonable period of time, in lieu of 

relying on a regulatory default of 60 

days. Under this approach, Federal 

agencies and certifying authorities can 

offer each other their expertise relevant 

to determining what period of time is 

reasonable. Federal agencies are in the 

best position to opine on timing in 

relation to their Federal licensing or 

permitting process. Likewise, because 

certifying authorities regularly issue 

their own permits for activities that may 

impact water quality (e.g., NPDES 


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38Section 401(a)(1) requires a State or interstate 

agency to establish procedures for public notice in 

the case of all applications for certification by it 

and, to the extent it deems appropriate, procedures 

for public hearings in connection with specific 

applications. However, section 401(a)(1) itself does 

not set any requirements or time limits on those 

public notice procedures or how those procedures 

should be considered when setting the reasonable 

period of time. EPA is aware that some certifying 

authorities have public notice procedures that 

exceed the default reasonable period of time in 

place for some Federal agencies (e.g., longer than 

the Corps or EPA’s default 60-day reasonable period 

of time for federally issued CWA section 404 and 

402 permits). 

permits, above and below ground 

pipelines, etc.) they also have expertise 

in the time needed to evaluate potential 

water quality impacts from federally 

licensed or permitted activities. 

Certifying authorities are also best 

positioned to opine on the impacts of 

state or tribal law governing the timing 

of decisions with respect to 

environmental review and public 

participation requirements.38 Given that 

EPA is proposing to defer to the 

combined expertise of the Federal 

agencies and certifying authorities for 

establishing the reasonable period of 

time, this proposal does not retain the 

list of factors that a Federal agency shall 

consider, under the 2020 Rule at 

§ 121.6(c), when establishing the 

reasonable period of time. Above all, 

this proposed approach addresses state 

and tribal stakeholders’ concerns that, 

under the 2020 Rule, certifying 

authorities do not have enough 

influence in determining the length of 

the reasonable period of time for a 

particular project. 

Under the proposed approach, during 

the first 30 days after a certifying 

authority receives a request for 

certification, the Federal agency and 

certifying authority would attempt to 

agree in writing to the length of a 

reasonable period of time. EPA 

recommends that the Federal agency 

and the certifying authority discuss the 

length of a reasonable period of time at 

the pre-filing meeting, particularly 

because the project proponent 

participates in that meeting and will, 

therefore, be informed of any reasonable 

period of time related discussions and 

decisions. Although the Agency is not 

proposing to list factors that Federal 

agencies and certifying authorities must 

consider when establishing the 

reasonable period of time, EPA observes 

that Federal agencies and certifying 

authorities might consider various 

factors, such as project type, 

complexity, location, and scale; the 

certifying authority’s administrative 

procedures; and the potential for the 

licensed or permitted activity to affect 

water quality. Federal agencies and 

certifying authorities might also elect to 

establish joint reasonable period of time 

procedures and agreements through a 

memorandum of agreement (MOA). 

Such MOAs could apply to all potential 

projects or only to projects of a specified 

type. As discussed further below, such 

MOAs could also address how and 

when the agencies might change or 

extend the reasonable period of time. 

Alternatively, Federal agencies and 

certifying authorities might prefer to 

establish the reasonable period of time 

on a project-by-project basis. Whichever 

approach is taken to establish the 

reasonable period of time, the certifying 

authority must inform the Federal 

agency of the date of receipt of a 

certification request that meets the 

certifying authority’s applicable 

submission procedures to signal the 

start of the reasonable period of time 

clock. See proposed §§ 121.5(d), 

121.6(a). 

As discussed above, if the agencies do 

not agree on the length of a reasonable 

period of time within 30 days of receipt 

of a request for certification, the default 

reasonable period of time would apply. 

See proposed § 121.6(c) This default 

approach obviates the need for a dispute 

resolution process in the event the 

certifying authority and Federal agency 

are not able to agree on the reasonable 

period of time. 

EPA believes that a default reasonable 

period of time of 60 days is a sensible 

and practical interpretation of the 

reasonable period of time concept. First, 

the approach is responsive to 

stakeholder concerns regarding the 2020 

Rule’s approach. In pre-proposal 

outreach, several stakeholders indicated 

that most delays in the certification 

process were attributed to lack of 

information. As discussed in section 

V.C in this preamble, EPA is proposing 

that all requests for certification must 

include a copy of the draft license or 

permit and any existing and readily 

available data or information related to 

potential water quality impacts from the 

proposed project and provides certifying 

authorities with the opportunity to 

define what additional information is 

needed in a certification request. These 

components of the proposal would 

allow certifying authorities to define 

what information is necessary to initiate 

a successful certification review process 

and, thus, address lack of information 

concerns before the reasonable period of 

time begins. 

It bears noting that the statutory 

language does not guarantee that the 

reasonable period of time is one year in 

all instances. Rather, section 401(a)(1) 

provides that the reasonable period of 

time ‘‘shall not exceed one year.’’ 33 

U.S.C. 1341(a)(1). The words ‘‘shall not 

exceed’’ imply that the reasonable 

period of time need not be one full year 

and that a certifying authority should 

not—in all circumstances—expect to be 

able to take a full year to act on a section 

401 certification request. Under the 

proposal, the certifying authority could 

be subject to a shorter than one-year 

period of time to render its decision, 

provided that the Federal agency and 

the certifying authority have agreed to a 

shorter time, or as discussed above, the 

agencies rely on the default reasonable 

period of time. See Hoopa Valley Tribe 

v. FERC, 913 F.3d 1099, 1104 (D.C. Cir. 

2019) (‘‘[W]hile a full year is the 

absolute maximum, it does not preclude 

a finding of waiver prior to the passage 

of a full year.’’). Additionally, the 

Agency’s longstanding 1971 regulations 

acknowledged that the reasonable 

period of time may be less than one 

year. See 40 CFR 121.16(b) (2019) 

(noting that the reasonable period of 

time is generally six months). 

Based on the Agency’s nearly 40 years 

of experience with NPDES permits, the 

Agency views a 60-day default 

reasonable period of time as 

appropriate, provided (as the proposed 

rule would require) that the reasonable 

period of time does not commence until 

after the Federal licensing or permitting 

agency prepares a draft license or 

permit. See 40 CFR 124.53(c)(3) 

(providing a default 60-day reasonable 

period of time for certification on draft 

NPDES permits). In the NPDES 

permitting process, draft permits 

include detailed fact sheets or 

statements of how permit limits and 

conditions were developed along with 

legal and/or scientific justifications, 

giving certifying authorities relevant 

data and information to use in their 

certification process and decision. A 

default 60-day reasonable period of time 

is also used for certification requests on 

section 404 general permits, which 

occurs after the Corps prepares the draft 

permit. See 33 CFR 325.2(b)(1)(ii). 

EPA requests comment on this 

proposed collaborative approach to 

setting the reasonable period of time, 

the 30-day timeframe that the Federal 

agency and certifying authority would 

have to determine the length of the 

reasonable period of time, and the 60- 

day default. The Agency also requests 

comments on alternative approaches, 

such as retaining the approach where 

the Federal agency is solely responsible 

for determining the reasonable period of 

time. Another alternative approach EPA 

seeks comment on is whether the 

default reasonable period of time should 

be shorter or longer depending on when 

certification is requested during the 


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39For example, a certifying authority may submit 

a new or revised certification decision after it acts 

on a certification request if the reasonable period 

of time has not expired and the Federal licensing 

or permitting agency agrees. See U.S. EPA and 

Department of the Army, Clean Water Act Section 

401 Certification Implementation Memorandum 

(August 19, 2021). In contrast to the certification 

modification proposed at § 121.10, a new 

certification decision made within the reasonable 

period of time will supersede the previous 

certification decision. 

licensing or permitting process. For 

example, if EPA were to decide that a 

draft license or permit is not a required 

component of a certification request, 

should EPA’s regulations specify a 

different and potentially longer default 

reasonable period of time? Additionally, 

the Agency is soliciting comment on 

whether and why the default reasonable 

period of time should be longer than 60 

days (e.g., 120 days, six months, one 

year). The Agency also requests any 

information, data, or experiences 

stakeholders can provide on the length 

of time it has taken or should take a 

certifying authority to act on a request 

for certification. 

2. Extensions to the Reasonable Period 

of Time 

The proposed rule provides that the 

reasonable period of time may be 

extended upon written agreement by the 

certifying authority and Federal agency, 

in consultation with the project 

proponent. Any extensions shall not 

exceed one year from the receipt of the 

certification request. Project proponents 

would be consulted before any changes 

to the reasonable period of time, but 

they would not have the ability to veto 

final reasonable period of time decisions 

jointly made by the certifying authority 

and Federal agency. The statute does 

not explicitly address extending the 

reasonable period of time once it has 

started; nor does it expressly prohibit 

extending the reasonable period of time 

as long as the certifying authority ‘‘acts’’ 

within one year from receipt of the 

certification request. The statute also 

does not specify who may extend the 

reasonable period of time or the terms 

on which it may be extended. 

The 1971 Rule was also silent on 

reasonable period of time extensions. 

However, several Federal agencies, 

including EPA and the Corps, 

established regulations allowing 

extensions to their default reasonable 

periods of time. See 40 CFR 124.53(c) 

(allowing for a reasonable period of time 

greater than 60 days for certification 

requests on NPDES permits where the 

EPA Regional Administrator finds 

‘‘unusual circumstances’’); 33 CFR 

325.2(b)(1)(ii) (allowing for a reasonable 

period of time greater than 60 days for 

certification requests on Corps permits 

when the ‘‘district engineer determines 

a shorter or longer period is reasonable 

for the state to act.’’). 

The 2020 Rule explicitly allows 

certifying authorities to request an 

extension of the reasonable period of 

time. 40 CFR 121.6(d). However, only 

the Federal agency has the power to 

extend the reasonable period of time, 

and such extension cannot exceed one 

year from the receipt of the certification 

request. Id.; see also 85 FR 42260 (July 

13, 2020). Under the 2020 Rule, the 

Federal agency is not required to grant 

reasonable period of time extension 

requests. See 40 CFR 121.6(d)(2). As a 

result, Federal agencies may deny those 

requests even in situations where the 

certifying authority said it was not able 

to act within the established timeframe 

(e.g., where state public notice 

procedures required more time than the 

regulatory reasonable period of time). In 

pre-proposal input, at least one 

stakeholder observed that a Federal 

agency’s failure to grant an extension 

request could lead to certification 

denials. Other stakeholders noted that 

certifying authorities should have a say 

in any extensions of the reasonable 

period of time. 

The proposed requirement to include 

a copy of the draft license or permit 

(and any existing and readily available 

data or information related to potential 

water quality impacts from the proposed 

project) in the request for certification, 

and the opportunity to collaboratively 

set the reasonable period of time, should 

reduce the need for extensions. 

However, the Agency recognizes there 

may be circumstances where the 

established or default reasonable period 

of time are not sufficient to allow the 

certifying authority to complete its 

review. Accordingly, the Agency is 

proposing to allow certifying authorities 

and Federal agencies to jointly extend 

the reasonable period of time in a 

written agreement, as long as the project 

proponent is consulted and the 

extension does not exceed one year from 

the receipt of request for certification. 

See proposed § 121.6(d). Consistent 

with this proposed collaborative 

approach, the Agency is not proposing 

to retain the regulatory text located at 

§ 121.6(d) that permits Federal agencies 

to unilaterally determine whether to 

extend the reasonable period of time. 

This proposal does not preclude a 

Federal licensing or permitting agency 

from extending the reasonable period of 

time after a certification has been 

issued, as long as the extension will not 

exceed one year from receipt of the 

request for certification.39

The Agency expects that certifying 

authorities and Federal agencies will 

collaboratively agree to extensions to 

the reasonable period of time where 

needed. For example, the certifying 

authority and Federal agency could 

develop in a MOA a process to identify 

scenarios where changes to the 

reasonable period of time would be 

appropriate. Such scenarios may 

include situations where relevant new 

information becomes available during 

the reasonable period of time. EPA notes 

that the proposed rulemaking promotes 

early collaboration and pre-filing 

meetings to allow the Federal agency, 

certifying authority, and the project 

proponent to discuss project 

complexity, seasonal limitations, and 

other factors that may influence the time 

needed to complete the certification 

review. These opportunities may reduce 

the need to extend the jointly 

established or default reasonable period 

of time. 

However, the Agency also recognizes 

that there are circumstances under 

which the Federal agency should extend 

the reasonable period of time without 

the certifying authority needing to 

negotiate an agreement. Such situations, 

which were not included in the 2020 

Rule, include where a certification 

decision cannot be rendered within the 

reasonable period of time due to force 

majeure events (including, but not 

limited to, government closure or 

natural disasters). Extensions may also 

be necessary in jurisdictions where the 

state or tribal public notice and 

comment process takes longer than the 

negotiated or default reasonable period 

of time. To address pre-proposal input, 

in contrast to the 2020 Rule, the Agency 

is proposing to identify a limited list of 

scenarios that would require the 

extension of the reasonable period of 

time. See proposed § 121.6(c). If a longer 

period of time to review the request for 

certification is necessary due to these 

circumstances, upon notification by the 

certifying authority prior to the end of 

the reasonable period of time, the 

reasonable period of time shall be 

extended by the period of time 

necessitated by public notice 

requirements or the force majeure event. 

In its notification, the certifying 

authority must provide the Federal 

agency with a written justification for an 

extension. Ultimately, such extension 

may not exceed one year from receipt of 

the request for certification. The 

justification would describe the 

circumstances supporting the extension 

(i.e., accommodating the certifying 

authority’s public notice requirements, 

government closures, or natural 


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40The court held that the project proponent and 

the certifying authorities (California and Oregon) 

had improperly entered into an agreement whereby 

the ‘‘very same’’ request for state certification of its 

relicensing application was automatically 

withdrawn and resubmitted every year for a decade 

by operation of ‘‘the same one-page letter,’’ 

submitted to the states before the statute’s one-year 

waiver deadline. 913 F.3d at 1104. 

41Historically, certifying authorities and project 

proponents have used the ‘‘withdraw and resubmit’’ 

approach for dealing with the one-year deadline for 

complex projects. There are a multitude of 

permutations, but the basic idea is that the project 

proponent would withdraw the certification request 

and then resubmit a new certification request either 

immediately or at some later date. The Agency 

recognizes that there may be legitimate reasons for 

withdrawing and resubmitting certification 

requests, including but not limited to the following: 

a new project proponent, project analyses are 

delayed, or the project becomes temporarily 

infeasible due to financing or market conditions. 

disasters) and does not require Federal 

agency approval before taking effect. For 

example, if the reasonable period of 

time is set to the default 60 days and the 

certifying authority has a 90-day public 

notice requirement, then the certifying 

authority would provide a written 

justification to the Federal agency prior 

to the end of the reasonable period of 

time for an extension to accommodate 

the public notice requirement. The 

extended reasonable period of time 

would take effect upon notification by 

the certifying authority to the Federal 

agency. 

The proposed approach balances 

Federal agency and certifying authority 

equities better than the 1971 Rule and 

the 2020 Rule by allowing the Federal 

agency and certifying authority to 

determine collaboratively whether and 

how the reasonable period of time 

should be extended. This approach to 

extensions aligns with the approach 

proposed above for joint establishment 

of the reasonable period of time. It also 

aligns with cooperative federalism 

principles central to the CWA. 

Moreover, it encourages stakeholder 

cooperation and allows for input from 

the project proponent. EPA is soliciting 

comment on this proposed approach. 

The Agency is also seeking comment on 

the list of situations described in the 

regulatory text under which extensions 

would be automatic, for example, 

whether other circumstances should be 

expressly included. Additionally, the 

Agency seeks comment on any 

alternative approaches, such as only 

allowing the Federal licensing or 

permitting agency to determine any 

extensions of the reasonable period of 

time, not requiring the project 

proponent to be consulted before an 

extension decision, or not allowing any 

extensions of the reasonable period of 

time after the agreed to or default 

reasonable period of time has been 

established. 

Consistent with this proposal, the 

Agency is also proposing to delete the 

part 124 provisions regarding the 

reasonable period of time for 

certification on EPA-issued NPDES 

permits, currently located at 40 CFR 

124.53(c)(3), in favor of the reasonable 

period of time provisions in proposed 

§ 121.6. The approach to the reasonable 

period of time taken in § 124.53(c) is not 

fully consistent with the approach 

proposed at § 121.6. For instance, unlike 

proposed § 121.6(b), § 124.53(c)(3) does 

not involve certifying authority 

collaboration in setting the reasonable 

period of time. And unlike proposed 

§ 121.6(c), § 124.53(c)(3) does not allow 

for automatic extensions to 

accommodate a certifying authority’s 

public notice requirements or force 

majeure events (instead allowing 

extensions beyond the default 60 days 

only if EPA finds ‘‘unusual 

circumstances’’ require a longer time). 

3. Withdrawal and Resubmissions of 

Requests for Certification 

EPA is aware that, historically under 

the 1971 Rule, certifying authorities 

asked project proponents to withdraw 

and resubmit their certification requests 

in order to restart the clock and provide 

more time to complete their certification 

review. EPA is also aware that this 

practice has been subject to Federal 

court litigation. In this proposed rule, 

EPA is not taking a position on the 

legality of withdrawing and 

resubmitting a certification request. 

While there may be situations where 

withdrawing and resubmitting a 

certification request is appropriate, 

drawing a bright regulatory line on this 

issue is challenging, and the law in this 

area is dynamic. See Hoopa Valley Tribe 

v. FERC, 913 F.3d 1099, 1105 (D.C. Cir. 

2019) (holding that a repeated, 

coordinated withdrawal and resubmittal 

of a certification request resulted in a 

waiver); N.C. Dep’t of Envtl. Quality 

(NCDEQ) v. FERC, 3 F.4th 655, 676 (4th 

Cir. 2021) (finding that the record did 

not support FERC’s determination that 

the state and project proponent 

withdrew and resubmitted the 

certification request in a coordinated 

fashion). For these reasons, the 

proposed rulemaking does not take a 

position on this issue, instead allowing 

the courts and the different state and 

tribal certifying authorities to make 

case-specific decisions or issue their 

own regulations addressing the practice. 

Neither section 401 nor the 1971 Rule 

specifically address the practice of 

withdrawing a certification request and 

submitting a new request to restart the 

reasonable period of time. On the other 

hand, the 2020 Rule prohibits the 

certifying authority from asking the 

project proponent to withdraw the 

certification request to reset the 

reasonable period of time. 40 CFR 

121.6(e). In support of that position, the 

2020 Rule relies on a broad reading of 

the D.C. Circuit’s decision in Hoopa 

Valley Tribe and asserts that the 

regulatory text at § 121.6(e) is a ‘‘clear 

statement that reflects the plain 

language of section 401 and . . . is 

supported by the legislative history.’’ 85 

FR 42261. In that case, which featured 

highly unusual facts,40 the court 

rejected the particular ‘‘withdraw and 

resubmit’’ 41 strategy the project 

proponents and states had used to avoid 

waiver of certification for a FERC 

license. 913 F.3d at 1105. The court 

held that a decade-long ‘‘scheme’’ to 

subvert the one-year review period 

characterized by a formal agreement 

between the certifying authority and the 

project proponent, whereby the project 

proponent never even submitted a new 

request, was inconsistent with the 

statute’s one-year deadline. Id. 

Significantly, the court said it was not 

addressing the legitimacy of a project 

proponent actually withdrawing its 

request and then submitting a new one, 

or how different a new request had to 

be to restart the one-year clock. Id. at 

1104. 

On the other hand, at least two circuit 

courts have acknowledged the 

possibility that withdrawal and 

resubmittal of a certification request 

may be a viable mechanism for 

addressing complex certification 

situations. See NCDEQ, 3 F.4th at 676 

(withdrawal and resubmittal 

appropriate where the certifying 

authority and project proponent did not 

engage in a coordinated scheme to 

evade the reasonable period of time); 

NYSDEC, 884 F. 3d at 456 (noting in 

dicta that the state could ‘‘request that 

the applicant withdraw and resubmit 

the application’’). Additionally, EPA’s 

guidance prior to the 2020 Rule 

acknowledged use of the withdrawal 

and resubmittal approach, as well as the 

‘‘deny certification without prejudice to 

refile’’ approach but noted that ‘‘[t]his 

handbook does not endorse either of the 

two approaches . . . .’’ 2010 Handbook, 

at 13, n.7 (rescinded). 

During pre-proposal input, many state 

and tribal stakeholders said they did not 

support the 2020 Rule’s position on the 

withdrawal and resubmittal process. 

These stakeholders called for more 

flexibility in the case of unexpected and 

significant changes in the project. For 

the reasons discussed below, EPA is not 


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proposing to retain the regulatory text at 

§ 121.6(e) and instead, proposing not to 

take a position in this rulemaking on the 

permissibility of withdrawing and 

resubmitting a certification request. 

As mentioned above, neither the text 

of section 401 nor Hoopa Valley Tribe 

categorically precludes withdrawal and 

resubmission of a certification. EPA 

understands the concern expressed by 

the D.C. Circuit in Hoopa Valley Tribe 

that prolonged withdrawal and 

resubmission ‘‘schemes’’ might—under 

certain facts—unreasonably delay and 

frustrate the Federal licensing and 

permitting process. Yet, the potential 

factual situations that might give rise to, 

and potentially justify, withdrawal and 

resubmission of a certification request 

are so varied that the Agency is not 

confident that it can create regulatory 

‘‘bright lines’’ that adequately and fairly 

address each situation. By not taking a 

regulatory position on this issue, 

certifying authorities are free to 

determine on a case-by-case basis 

whether and when withdrawal and 

resubmittal of a certification request is 

appropriate. Such determinations are 

ultimately subject to judicial review 

based on their individual facts. The 

Agency seeks comment on this 

approach, as well as any alternative 

approaches, such as EPA establishing 

regulations specifically authorizing 

withdrawals and resubmissions in 

certain factual situations similar (or not) 

to the circumstances in Hoopa Valley 

Tribe. 

D. Scope of Certification 

The Agency is proposing to return to 

the scope of certification standard 

affirmed by the Supreme Court in PUD 

No. 1 of Jefferson County v. Washington 

Dep’t of Ecology, 511 U.S. 700 (1994). In 

that case, the Court held that section 

401 ‘‘is most reasonably read’’ as 

authorizing the certifying authority to 

evaluate and place conditions on what 

the Court described as the ‘‘project in 

general’’ or the ‘‘activity as a whole’’ to 

assure compliance with various 

provisions of the Clean Water Act and 

‘‘any other appropriate requirement of 

State law’’ once the predicate existence 

of a discharge is satisfied. Id. at 711–12. 

The 2020 Rule substantially narrowed 

the scope of a certifying authority’s 

review of a federally licensed or 

permitted project. Before the 2020 Rule, 

a certifying authority could consider 

whether the federally licensed or 

permitted ‘‘activity as a whole’’ might 

adversely affect the quality of the state’s 

or tribe’s waters. After the 2020 Rule 

became effective, the certifying 

authority could only consider potential 

water quality impacts from the project’s 

point source ‘‘discharges.’’ See 85 FR 

42229 (July 13, 2020). This change was 

heavily criticized by many states, tribes, 

and non-governmental organizations as 

unlawfully narrowing the certifying 

authorities’ scope of review under 

section 401. In recognition of, and 

deference to, the central role that states 

and tribes play in issuing CWA section 

401 certifications, EPA is proposing to 

modify the regulatory text at § 121.3 and 

reaffirm the broader and more 

environmentally protective ‘‘activity as 

a whole’’ scope of review that the 

Supreme Court affirmed in PUD No. 1. 

The distinction and choice between 

‘‘discharge-only’’ and ‘‘activity as a 

whole’’ is more than semantic and has 

significant environmental 

consequences. The ‘‘activity as a whole’’ 

approach allows states and tribes to 

holistically consider and protect against 

impacts to their water resources from 

the licensed or permitted ‘‘project in 

general.’’ Id. at 711. For example, 

stakeholders have commented that a 

‘‘discharge-only’’ approach would 

inappropriately constrain the scope of 

review and conditions relating to 

hydroelectric dam facilities. 

Specifically, stakeholders stated that 

addressing the water quality impacts of 

a dam requires a broader review of 

potential effects beyond those caused 

only by the discharge(s) from a dam’s 

powerhouse or tailrace. This is because 

the chemical, physical, and biological 

integrity of a river is fundamentally 

altered by the federally licensed 

‘‘activity’’ or ‘‘project’’—not just the 

discharges from a specific element, e.g., 

the powerhouse or tailrace. They noted 

that a dam alters the chemical, physical, 

and biological integrity of a river by 

placing a barrier across it, blocking 

upstream and downstream passage of 

nutrients and aquatic species, altering 

the timing and volume of flows, 

transforming a free-flowing riverine 

reach into a reservoir, and converting 

the energy that oxygenates water into 

electricity. 

Stakeholders have asserted that a 

‘‘discharge-only’’ approach to a 

hydroelectric dam facility precludes 

several kinds of potential nondischarge-related conditions a certifying 

authority might add to its water quality 

certification, including fish and eel 

passage facilities (upstream and 

downstream), fish protection measures 

concerning intakes, wildlife habitat 

enhancements, and aquatic resource 

enhancements. Stakeholders also noted 

that FERC-licensed hydropower projects 

can also limit public access to a river, 

adversely affecting fishing, swimming, 

boating, and other state-adopted and 

EPA-approved recreational designated 

uses. Conditions assuring protection of 

those designated uses would arguably 

not be allowed if the scope of review is 

limited only to impacts from the dam’s 

‘‘discharges.’’ 

EPA is concerned that many (if not 

all) of these water quality-related 

impacts and potential conditions might 

fall outside the scope of certifying 

authority review under the 2020 Rule’s 

‘‘discharge-only’’ approach to scope of 

review. The inability of states and tribes 

to protect against such impacts could 

seriously impair their ability to protect 

valuable water resources. This would be 

inconsistent with Congress’s intention 

to provide states and tribes with this 

powerful certification tool to prevent 

their water resources from being 

adversely impacted by projects needing 

Federal licenses or permits. 

In addition to narrowing the scope of 

review from ‘‘activity as a whole’’ to 

‘‘discharge,’’ the 2020 Rule also 

significantly narrows the ability of 

certifying authorities, pursuant to 

section 401(d), to include conditions in 

their certifications to protect the quality 

of their waters. Before the 2020 Rule, 

consistent with EPA’s proposed 

interpretation of the statute, a certifying 

authority could add conditions to its 

certification as necessary to assure 

compliance with the specifically 

enumerated sections of the CWA and 

‘‘any other appropriate requirement of 

State [or Tribal] law.’’ 33 U.S.C. 1341(d). 

In the 2020 Rule, however, EPA codified 

a narrow regulatory interpretation of the 

section 401(d) term ‘‘other appropriate 

requirements of State law.’’ 85 FR 42250 

(July 13, 2020). With the 2020 Rule in 

effect, the certifying authority can only 

add conditions necessary to assure 

compliance with those specifically 

enumerated sections of the CWA ‘‘and 

state or tribal regulatory requirements 

for point source discharges into waters 

of the United States.’’ 40 CFR 121.1(n), 

121.3. In recognition of, and deference 

to, the central role that states and tribes 

play in issuing CWA section 401 

certifications, EPA is proposing to 

return to what it now views as the more 

textually accurate and environmentally 

protective ‘‘any other appropriate 

requirement of State [or Tribal] law’’ 

standard for including certification 

conditions. 

As discussed below, the 

interpretations of section 401’s scope of 

review and conditions EPA is proposing 

are more closely aligned with the 

statutory text and goals of section 401 

than the interpretations in the 2020 

Rule. Consistent with the principles of 

cooperative federalism that underlie the 

Clean Water Act and especially section 

401, the interpretations the Agency is 


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proposing would restore the full 

measure of authority that EPA believes 

Congress intended to grant states and 

authorized tribes to protect their critical 

water resources. 

The following sections discuss (1) 

EPA’s longstanding position that CWA 

section 401 certifications are limited to 

addressing water quality effects; (2) 

EPA’s decision to reaffirm the Supreme 

Court’s interpretation of the scope of 

certification in PUD No. 1 as the 

‘‘activity as a whole;’’ and (3) EPA’s 

decision to return to a broader 

definition of ‘‘water quality 

requirements’’ than that adopted in the 

2020 Rule. 

1. Water Quality Impacts From 

Federally Licensed or Permitted Projects 

The Agency continues to interpret 

section 401 to provide that, when 

issuing certifications and conditions, 

certifying authorities may only consider 

and address potential water quality 

effects. The CWA’s objective is ‘‘to 

restore and maintain the chemical, 

physical, and biological integrity of the 

Nation’s waters.’’ 33 U.S.C. 1251(a). 

Among the Act’s policy declarations is 

‘‘the policy of Congress to recognize, 

preserve, and protect the primary 

responsibilities of States to prevent, 

reduce, and eliminate pollution.’’ Id. at 

1251(b). As discussed in section IV.A in 

this preamble, Congress intended that 

section 401 provide states and tribes 

with a powerful tool to prevent their 

water resources from being adversely 

impacted by projects needing Federal 

licenses or permits. While the text of 

section 401 does not expressly state that 

certifications and conditions may only 

consider and address water quality 

effects, the courts have consistently 

clarified that this is so. See Am. Rivers, 

Inc. v. FERC, 129 F.3d 99, 107 (2d Cir. 

1997) (‘‘Section 401(d), reasonably read 

in light of its purpose, restricts 

conditions that states can impose to 

those affecting water quality in one 

manner or another.’’); see also PUD No. 

1, 511 U.S. at 711–713 (holding that a 

state’s authority to impose conditions 

under section 401(d) ‘‘is not 

unbounded’’). This view is also 

consistent with prior Agency 

interpretations articulated in the 2020 

Rule and prior Agency guidance. See 85 

FR 42250 (‘‘The scope of a Clean Water 

Act section 401 certification is limited 

to assuring that a discharge from a 

Federally licensed or permitted activity 

will comply with water quality 

requirements.’’); 2010 Handbook, at 16 

(rescinded) (‘‘As incorporated into the 

1972 CWA, [section] 401 water quality 

certification was intended to ensure that 

no federal license or permits would be 

issued that would prevent states or 

tribes from achieving their water quality 

goals or that would violate CWA 

provisions.’’). 

Accordingly, EPA continues to 

maintain that it would be inconsistent 

with the purpose of CWA section 401 to 

deny or condition a section 401 

certification based solely on potential 

air quality, traffic, noise, or economic 

impacts that have no connection to 

water quality. In pre-proposal outreach, 

it appeared that some stakeholders were 

confused about whether an EPA 

proposal to align the scope of review 

with PUD No.1 would allow certifying 

authorities to deny or condition 

certifications based on potential 

environmental or societal impacts not 

related to water quality. It is not the 

Agency’s intention to do so or to 

include consideration of such non-water 

quality-related impacts within the 

proposed ‘‘activity as a whole’’ scope of 

review. 

The preamble to the final 2020 Rule 

identified examples of certification 

conditions possibly falling outside the 

water quality-related scope of section 

401 review because they did not address 

water quality impacts, including onetime and recurring payments to state 

agencies for improvements or 

enhancements that are unrelated to the 

proposed federally licensed or 

permitted project; conditions to address 

potential non-water quality-related 

environmental impacts from the 

creation, manufacture, or subsequent 

use of products generated by a proposed 

federally licensed or permitted activity 

or project; and conditions related only 

to non-water quality-related impacts 

associated with air emissions and 

transportation effects. See 85 FR 42230. 

Subject to a case-by-case review of the 

particular facts presented by each 

certification, EPA thinks it reasonable to 

assume that such non-water qualityrelated conditions would generally be 

beyond the scope of section 401. 

On the other hand, some conditions 

that stakeholders have identified as 

potentially problematic may, in fact, be 

appropriate as necessary to prevent 

adverse impacts to a state’s or tribe’s 

water quality. Depending on the 

circumstances, examples of conditions 

that might be appropriate to include in 

a state or tribal certification to comply 

with water quality requirements could 

be: building and maintaining fish 

passages (related to protecting 

designated uses); the construction of 

public access for fishing (related to 

protecting recreational/fish 

consumption designated uses); 

maintaining minimum flow rates for 

visual, auditory, and religious 

experiences (related to protecting 

designated uses); compensatory wetland 

and riparian mitigation (related to 

protecting designated uses and criteria); 

temporal restrictions on activities to 

protect sensitive aquatic species (related 

to protecting designated uses); preconstruction monitoring and assessment 

of resources (related to protecting 

designated uses and criteria); habitat 

restoration (related to protecting 

designated uses and criteria); 

construction of recreation facilities to 

support designated uses (e.g., 

whitewater release for kayakers, canoe 

portages, parking spaces) (related to 

protecting designated uses); tree 

planting along waterways (related to 

protecting designated uses and criteria); 

and spill management and stormwater 

management plans (related to protecting 

designated uses and criteria). For these 

and other potentially qualifying 

conditions, EPA believes that it is 

appropriate for the certifying authority 

to consider the broadest possible range 

of water quality effects and that the 

appropriateness of any given condition 

will depend on an analysis of all 

relevant facts. 

The Agency invites comment on to 

what extent section 401 certification 

review and conditions should be limited 

to potential water quality-related effects 

or should also consider non-water 

quality-related impacts. 

2. ‘‘Activity as a Whole’’ 

EPA is proposing to return to the 

‘‘activity as a whole’’ or ‘‘project in 

general’’ scope of certification review 

and conditions that the Supreme Court 

affirmed in PUD No. 1. Having carefully 

reviewed the 2020 Rule in light of preproposal stakeholder comments, EPA 

has determined that the ‘‘activity as a 

whole’’ interpretation of scope is more 

consistent with the statutory text, 

legislative history, and water quality 

protective goals of the CWA than the 

2020 Rule’s ‘‘discharge-only’’ approach. 

The Agency also finds that the more 

environmentally protective ‘‘activity as 

a whole’’ interpretation of scope is 

better aligned with the cooperative 

federalism principles animating section 

401. 

The first sentence of section 401(a)(1) 

provides that a certification must be 

obtained by ‘‘any applicant for a Federal 

license or permit to conduct any activity 

. . . which may result in any discharge 

into the navigable waters.’’ 33 U.S.C. 

1341(a)(1) (emphasis added). These 

three italicized words—‘‘applicant,’’ 

‘‘activity,’’ and ‘‘discharge’’—are the 

semantic building blocks used to 

support two differing interpretations of 

scope of review. Supporters of the 


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42The dissent in PUD No. 1 offered a more 

limited interpretation of section 401(d)’s scope, 

stating that ‘‘while [section] 401(d) permits a State 

to place conditions on a certification to ensure 

compliance of the ‘applicant,’ those conditions 

must still be related to discharges.’’ 511 U.S. at 727 

(Thomas, J., dissenting with whom Scalia, J., 

joined). 

43Without acknowledging that the 1971 Rule was 

based on an earlier version of the statute, the Court 

also noted that its interpretation was consistent 

with EPA’s 1971 Rule. Id. at 712. 

44Public Law 92–500, 401, 85 Stat. 816 (1972). 45PUD No. 1 also said its ‘‘activity as a whole’’ 

interpretation was consistent with EPA’s 1971 Rule 

at 40 CFR 121.2(a)(3) (2019) (requiring reasonable 

assurance that the ‘‘activity’’ will not violate 

applicable water quality standards) and with EPA’s 

1989 Guidance. It is worth noting, however, that 

EPA’s 1971 Rule pre-dated the 1972 amendments 

and was based on the language of the 1970 version 

of the statute which used the word ‘‘activity’’ 

instead of ‘‘discharge.’’ While the Court appeared to 

be unaware of that fact, it is of minor significance 

because EPA’s conclusion that ‘‘activity as a whole’’ 

is the most reasonable interpretation is based on the 

statutory text and legislative history, not EPA’s 

regulations preceding enactment of the 1972 law. 

‘‘discharge-only’’ interpretation of scope 

of review chiefly rely on Congress’s use 

of the word ‘‘discharge’’ in section 

401(a)(1) in support of the proposition 

that states and tribes may only consider 

water quality impacts from the project’s 

discharges when deciding whether to 

certify or add conditions to federally 

licensed or permitted projects. EPA 

disagrees with this overly narrow 

interpretation. Following its 

reconsideration of the statutory text, the 

Agency believes that Congress’s use of 

the words ‘‘applicant’’, ‘‘activity’’, and 

‘‘discharge’’ in section 401(a)(1), 

‘‘applicant’’ in section 401(d), and its 

failure to use the word ‘‘discharge’’ in 

section 401(d), create enough ambiguity 

to support an interpretation that 

certifying authority review, and the 

ability to impose conditions, extends to 

the project proponent’s ‘‘activity as a 

whole,’’ or in other words, the ‘‘project 

in general.’’ In the 2020 Rule, EPA 

acknowledged that the statutory 

language addressing scope of review is 

ambiguous and subject to interpretation. 

See 85 FR 42232. In light of that 

ambiguity, EPA now agrees with the 

Supreme Court in PUD No. 1 that 

‘‘activity as a whole’’ is ‘‘a reasonable 

interpretation of [section] 401.’’ PUD 

No. 1, 511 U.S. at 712.42

In PUD No. 1, the Supreme Court 

reviewed a water quality certification 

issued by the State of Washington for a 

new hydroelectric project on the 

Dosewallips River. The principal 

dispute adjudicated in PUD No. 1 was 

whether a certifying authority may 

require a minimum stream flow as a 

condition in a certification issued under 

section 401. The project applicant 

identified two potential discharges from 

its proposed hydroelectric facility: ‘‘the 

release of dredged and fill material 

during construction of the project, and 

the discharge of water at the end of the 

tailrace after the water has been used to 

generate electricity.’’ Id. at 711. The 

project applicant argued that the 

minimum stream flow condition was 

unrelated to these discharges and 

therefore beyond the scope of the state’s 

authority under section 401. Id. 

The Court examined sections 

401(a)(1) and 401(d), specifically the use 

of different terms in those sections of 

the statute to inform the scope of a 

section 401 certification. Section 

401(a)(1) requires the certifying 

authority to certify that the discharge 

from a proposed federally licensed or 

permitted project will comply with 

certain enumerated CWA provisions, 

and section 401(d) authorizes the 

certifying authority to include 

conditions to assure that the applicant 

will comply with those enumerated 

CWA provisions and ‘‘‘any other 

appropriate’ state law requirements.’’ Id. 

at 700. Emphasizing that the text of 

section 401(d) ‘‘refers to the compliance 

of the applicant, not the discharge,’’ the 

Court concluded that section 401(d) ‘‘is 

most reasonably read as authorizing 

additional conditions and limitations on 

the activity as a whole once the 

threshold condition, the existence of a 

discharge, is satisfied.’’ Id. at 712.43 The 

Court recognized that section 401 

placed some bounds on the ‘‘activity as 

a whole’’ scope, noting that a certifying 

authority ‘‘can only ensure that the 

project complies with ‘any applicable 

effluent limitations or other limitations 

under [33 U.S.C. 1311, 1312] or other 

provisions of the Act,[’] ‘and with any 

other appropriate requirement of State 

law.’’’ 511 U.S. at 712. The Court found 

that ‘‘at a minimum, limitations 

imposed pursuant to state water quality 

standards adopted pursuant to [section] 

303,’’—the limitations at issue in PUD 

No. 1—‘‘are ‘appropriate’ requirements 

of state law,’’ but declined ‘‘to speculate 

on what additional state laws, if any, 

might be incorporated by this 

language.’’ Id. at 713. 

A quarter of a century after PUD No. 

1, in its 2020 Rule EPA rejected its 

longstanding ‘‘activity as a whole’’ 

interpretation, affirmed by the PUD No. 

1 majority, in favor of the dissent’s 

‘‘discharge-only’’ interpretation of 

section 401’s scope. The 2020 Rule’s 

interpretation received heavy criticism 

and was subject to multiple legal 

challenges. Having now carefully 

reconsidered the ‘‘discharge-only’’ 

interpretation of scope of review the 

previous Administration announced in 

the 2020 Rule, EPA has concluded that 

the statutory text, legislative history, 

and goals of section 401 more 

reasonably support the ‘‘activity as a 

whole’’ standard that was accepted 

practice for the preceding 50 years. 

Congress’s 1972 textual revisions to 

section 21(b) support the ‘‘activity as a 

whole’’ interpretation of scope. At the 

same time it was revising section 

401(a)(1), Congress added section 401(d) 

that required states to include 

conditions ‘‘necessary to assure’’ that 

‘‘any applicant’’ will comply with 

sections 301, 302, 303, 306 and 307 and 

‘‘any other appropriate requirement of 

State law.’’ 44 Unlike section 401(a)(1), 

section 401(d) does not use the term 

‘‘discharge.’’ Use of the word 

‘‘applicant’’ instead of ‘‘discharge’’ in 

section 401(d) introduced ambiguity as 

to whether the scope of section 401 

review was limited to effects from the 

discharge alone. In light of this 

ambiguity, EPA believes it is reasonable 

to interpret the combined text of 

sections 401(a)(1) and 401(d) as 

supporting ‘‘activity as a whole’’ as the 

proper scope of certification. 511 U.S. at 

711–712. (‘‘[Section] 401(d) is most 

reasonably read as authorizing 

additional conditions and limitations on 

the activity as a whole once the 

existence of the threshold condition, 

existence of a discharge, is satisfied.’’). 

Because section 401(d) requires that a 

section 401(a) certification include 

conditions ‘‘necessary to assure’’ the 

applicant’s compliance with the five 

CWA sections listed in section 401(a)(1) 

and ‘‘any other appropriate requirement 

of State law,’’ section 401(d) is most 

reasonably read to require the certifying 

authority—when it reviews a 

certification request under section 

401(a)(1)—to review the potential water 

quality impacts from the ‘‘project in 

general,’’ i.e, the ‘‘activity as a whole,’’ 

and not merely evaluate the water 

quality effects of the potential discharge. 

This approach is reasonable because it 

accounts for the fact that the applicant 

for certification is responsible for a wide 

variety of activities at the project site 

that might affect water quality in 

addition to any potential ‘‘discharge.’’ 

To assure—as it must under section 

401(d)—that ‘‘the applicant’’ complies 

with all applicable state or tribal and 

Federal water quality requirements, the 

certifying authority must be able to 

evaluate potential water quality effects 

from the applicant’s ‘‘activity as a 

whole.’’ 45

The text of CWA sections 401(a)(3)– 

(5) also supports an ‘‘activity as a 

whole’’ interpretation of section 401’s 

scope. Section 401(a)(3) provides that a 


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certification for a facility’s construction 

fulfills the section 401 obligations with 

respect to its operation unless the 

certifying authority determines there is 

no longer reasonable assurance of 

compliance with sections 301, 302, 303, 

306 and 307 because of changes in ‘‘(A) 

the construction and operation of the 

facility.’’ See 33 U.S.C. 1341(a)(3). 

‘‘Construction and operation of the 

facility’’ is clearly a broader concept 

than ‘‘discharge.’’ In addition, section 

401(a)(4) guarantees that the certifying 

authority has the opportunity ‘‘to review 

the manner in which the [previously 

certified] facility or activity shall be 

operated or conducted’’ prior to its 

initial operation ‘‘for the purpose of 

assuring that applicable effluent 

limitations or other limitations or water 

quality requirements will not be 

violated.’’ See id. at 1341(a)(4). If this 

review results in suspension of the 

facility’s permit, the permit shall remain 

suspended until notification from the 

certifying authority that ‘‘there is 

reasonable assurance that such facility 

or activity will not violate the 

applicable provisions of section 1311, 

1312, 1313, 1316 and 1317.’’ Id. Lastly, 

section 401(a)(5) provides that any 

certified Federal license or permit may 

be suspended or revoked by the Federal 

licensing or permitting agency ‘‘upon 

the entering of a judgment under this 

chapter that such facility or activity has 

been operated in violation of the 

applicable provisions of section 1311, 

1312, 1313, 1316 and 1317.’’ See id. at 

1341(a)(5). The scope of review 

employed in each of these subsections 

is whether there has been compliance 

by the ‘‘facility or activity’’ with the five 

CWA sections identified in section 

401(a)(1), and not merely compliance by 

the ‘‘discharge.’’ Congress’s application 

of this ‘‘facility’’ and ‘‘activity’’ scope of 

review in sections 401(a)(3)–(5) is 

consistent with and supports an 

‘‘activity as a whole’’ interpretation of 

sections 401(a)(1) and 401(d). 

The legislative history of CWA section 

401, and its predecessor section 21(b) of 

the Water Quality Improvement Act of 

1970, also supports the ‘‘activity as a 

whole’’ interpretation of scope. EPA 

believes that the mere fact that Congress 

changed a single word ‘‘activity’’ to 

‘‘discharge’’ in section 401(a)(1) of the 

1972 Act is not dispositive, or even 

persuasive, that Congress intended to 

shrink the scope of review under 

sections 401(a)(1) and (d) from 

consideration of water quality effects 

caused by the ‘‘project in general’’ or 

‘‘activity as a whole’’ to those caused 

only by the discharge. 

It is not obvious from the legislative 

history that such a significant shift was 

intended. It is, however, quite clear 

from the legislative history that, in 1972, 

Congress thought it was making only 

‘‘minor,’’ insubstantial changes to 

section 21(b). The Senate Report stated 

that section 401 was ‘‘substantially 

section 21(b) of the existing law.’’ S. 

Rep. No. 92–414, at 69 (1971). See also 

remarks of Sen. Baker: ‘‘Section 21(b), 

with minor changes, appears as section 

401 of the pending bill S.2770.’’ 117 

Cong. Rec. 38857 (1971). Nowhere in 

the legislative history is there a 

statement to the effect that Congress 

understood it was dramatically 

shrinking section 401’s scope of review 

to only those water quality effects 

caused by a potential discharge. To the 

contrary, the House Report stated that 

‘‘[i]t should be clearly noted that the 

certifications required by section 401 

are for activities which may result in 

any discharge into navigable waters.’’ 

H.R. Rep. 92–911, at 124 (1972) 

(emphasis added). Indeed, in 

summarizing section 401, Senator 

Muskie stated that ‘‘[a]ll we ask is that 

activities that threaten to pollute the 

environment be subjected to the 

examination of the environmental 

improvement agency of the State for an 

evaluation and recommendation before 

the federal license or permit be 

granted.’’ 117 Cong. Rec. 38854 (1971) 

(emphasis added). See also H.R. Rep. 

92–911, at 121 (1972) (stating that ‘‘[t]he 

term ‘applicable’ as used in section 401 

. . . means that the requirement which 

the term ‘applicable’ refers to must be 

pertinent and apply to the activity and 

the requirements must be in existence 

by having been promulgated or 

implemented.’’) (emphasis added). 

A comparison of section 21(b) and 

section 401 reveals that the two sections 

are, indeed, substantially the same. In 

light of the previously discussed 

legislative history affirming that the 

1972 law was ‘‘substantially’’ the same 

as the 1970 law, EPA does not think it 

reasonable to assume that Congress 

intended to make fundamental changes 

to the scope of the certifying authority’s 

certification review merely by changing 

a single word (‘‘activity’’) in section 

401(a) when—at the same time—it 

added a different and more expansive 

formulation based on the word 

‘‘applicant’’ in section 401(d). See 

Whitman v. Am. Trucking Ass’ns, 531 

U.S. 457, 468 (2001) (‘‘Congress, we 

have held, does not alter the 

fundamental details of a regulatory 

scheme in vague terms or ancillary 

provisions—it does not, one might say, 

hide elephants in mouseholes.’’). 

Congress’s revisions to section 401(a) 

in the 1977 CWA amendments also 

suggests it continued to support the 

application of the broader ‘‘activity’’ 

approach. Legislative history from 1977 

states that Congress intended for ‘‘[t]he 

inserting of section 303 into the series 

of sections listed in section 401 [ ] to 

mean that a federally licensed or 

permitted activity, including discharge 

permits under section 402, must be 

certified to comply with State water 

quality standards adopted under section 

303.’’ H.R. Rep. No. 95–830, at 96 (1977) 

(emphasis added). 

The Agency invites comment on its 

proposal to readopt the ‘‘activity as a 

whole’’ definition of scope of review 

under section 401(a)(1) and scope of 

conditions under section 401(d). The 

Agency is also seeking comment on 

whether it should adopt the ‘‘dischargeonly’’ scope of review announced in the 

2020 Rule. 

Consistent with the discussion above, 

the Agency is proposing to define the 

term ‘‘activity as a whole’’ to capture 

‘‘any aspect of the project activity with 

the potential to affect water quality.’’ 

See proposed § 121.1(a). This approach 

provides certifying authorities with the 

ability to consider any aspect of the 

federally licensed or permitted activity 

that may adversely impact water 

quality. As the stakeholder input 

described above illustrates, the impacts 

of a federally licensed or permitted 

project on a certifying authority’s water 

resources may be caused by aspects of 

the project’s activity in addition to the 

potential discharge that triggered the 

need to seek section 401 certification. 

Accordingly, the Agency’s proposed 

definition for the term ‘‘activity as a 

whole’’ is meant to include all activity 

at the proponent’s ‘‘project in general’’ 

with the potential to affect water quality 

(e.g., construction and operation of the 

project or facility). This definition of 

‘‘activity as a whole’’ is consistent with 

previously issued EPA guidance, which 

identified the scope of review as ‘‘all 

potential water quality impacts of the 

project, both direct and indirect, over 

the life of the project.’’ See 1989 

Guidance, at 22 (‘‘[I]t is imperative for 

a State review to consider all potential 

water quality impacts of the project, 

both direct and indirect, over the life of 

the project.’’); see also 2010 Handbook, 

at 17 (rescinded) (‘‘Thus, it is important 

for the [section] 401 certification 

authority to consider all potential water 

quality impacts of the project, both 

direct and indirect, over the life of the 

project.’’) (citing PUD No.1, 511 U.S. at 

712 (1994)). The Agency invites 

comment on its proposed interpretation 

of the term ‘‘activity as a whole.’’ 

The Agency also understands that, 

while PUD No. 1 used the term ‘‘activity 

as a whole,’’ the Court did not offer a 


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specific definition of that term, 

specifically what ‘‘activity’’ should be 

examined as a whole. Nevertheless, 

certifying authorities and Federal 

agencies have gained significant 

experience over nearly 50 years 

implementing an ‘‘activity as a whole’’ 

approach, and EPA believes that 

certifying authorities and Federal 

agencies are capable of appropriately 

delineating the ‘‘activity as a whole’’ or 

the ‘‘project in general’’ based on the 

facts of each situation. EPA is not aware 

of any cases in which delineation of 

‘‘activity as a whole’’ has been litigated, 

provided that the scope of review was 

limited to water quality. While EPA 

intends the word ‘‘activity’’ in the term 

‘‘activity as a whole’’ to include all 

activities of the ‘‘project in general’’ that 

might affect water quality, EPA invites 

comment on whether EPA should 

specifically define the term ‘‘activity’’ to 

mean only those activities at the project 

site that are specifically authorized by 

the Federal license or permit in 

question. EPA also invites comment on 

whether and how the Federal licensing 

or permitting agency could effectively 

implement a certification with 

conditions addressed to impacts from 

the ‘‘activity as a whole’’ if it has 

authority over only a small part of a 

larger project. What challenges would 

be presented to the licensing or 

permitting authority’s ability to 

administer and enforce its license or 

permit? 

To illustrate, assume there are two 

hydroelectric facilities on the same 

river. Facility A has yet to be 

constructed and may require multiple 

Federal licenses or permits. It may 

require a FERC license for its 

construction and operation, a CWA 

section 404 permit for dredge and fill 

activity related to its construction, and 

a CWA section 402 permit to discharge 

pollutants during its operation. Facility 

B, on the other hand, has already been 

constructed and only needs a CWA 

section 402 permit to discharge 

pollutants before it may commence 

operations. EPA invites comment on 

whether the same ‘‘activity’’ viewed ‘‘as 

a whole’’ should define the scope of 

review applicable to certifications for 

both facilities. 

With respect to the broad, relatively 

comprehensive licenses and permits 

issued by FERC and the Corps for 

construction and operation of Facility 

A, the Agency sees little difference in 

the scope of review and conditions that 

may be included in certifications issued 

under either a broad or potentially 

narrower approach to defining the 

relevant ‘‘activity.’’ That is because their 

licenses and permits are generally 

comprehensive enough in what they 

authorize that there would appear to be 

few if any significant aspects of a 

project’s activity that fall outside the 

scope of activities authorized by the 

Federal license or permit. Accordingly, 

for these kinds of licenses and permits, 

EPA believes that any significant 

potential water quality-related impacts 

could be addressed by a certification 

condition on the ‘‘activity’’ whether it is 

construed to be the activities comprising 

the ‘‘project in general’’ or ‘‘the specific 

activity authorized by the federal 

license or permit.’’ 

EPA requests comment on whether a 

different outcome might apply to 

Facility B. As discussed above, Facility 

B only needs an NPDES permit to 

discharge pollutants to commence 

operations. For purposes of this 

example, assume EPA will be issuing 

the NPDES permit because the 

jurisdiction in which the facility is sited 

does not have NPDES permit authority. 

In the case of Facility B, should the 

scope of the certifying authority’s 

section 401 review for the Federal 

NPDES permit include the potential for 

water quality-related impacts from 

Facility B’s ‘‘activity’’ broadly defined 

to include water quality-related impacts 

from Facility B’s entire construction and 

operation, including aspects previously 

authorized by a FERC license or CWA 

404 permit? Or should the scope of the 

certifying authority’s section 401 review 

for Facility B’s Federal NPDES permit 

include only those potential impacts 

caused by Facility B’s activity narrowly 

defined as specifically authorized by the 

NPDES permit, i.e., the discharge of 

pollutants like heated water, oil, and 

grease introduced by the operation of 

Facility B’s turbines, and not include 

other aspects of Facility B’s construction 

and operation? 

As discussed above, the choice of the 

narrower approach to defining 

‘‘activity’’ within the context of 

‘‘activity as a whole’’ may limit the 

kinds of conditions that may be placed 

on a project proponent’s ‘‘activity’’ 

given that the scope of authorization 

under a more circumscribed permit, e.g., 

the NPDES permit for Facility B, would 

extend to a narrower range of the project 

proponent’s activities, e.g., only the 

discharge of pollutants and not the other 

aspects of the dam’s operation not 

regulated under section 402. 

3. Water Quality Requirements 

Under this proposal, when a 

certifying authority reviews a federally 

licensed or permitted activity, it must 

determine whether the ‘‘activity as a 

whole’’ will comply with ‘‘water quality 

requirements.’’ Logically, the ‘‘activity 

as a whole’’ standard would apply to a 

certifying authority’s evaluation of 

potential water quality effects under 

both sections 401(a)(1) and 401(d). This 

is because the two sections are 

inextricably linked. Section 401(d) 

requires a certifying authority to 

determine whether ‘‘the applicant’’ 

will—without additional conditions— 

comply with the specified CWA 

provisions and ‘‘any other appropriate’’ 

requirement of state law. Only if the 

certifying authority determines pursuant 

to section 401(d) that adding ‘‘any 

effluent limitations and other 

limitations, and monitoring 

requirements’’ to the license or permit 

will assure that water quality 

requirements will be met, may the 

certifying authority grant the 

certification contemplated by section 

401(a)(1). The certifying authority’s 

evaluations and determinations under 

sections 401(a)(1) and 401(d) do not 

work together in a harmonious fashion 

if the statute is interpreted to apply a 

different scope of review standard to 

each section. 

Because EPA interprets the scope of 

certification review under sections 

401(a)(1) and (d) to be the same, the 

same ‘‘activity as a whole’’ standard 

applies to a grant of certification, a grant 

of certification with conditions, and a 

denial. For example, when a certifying 

authority determines that it must add 

conditions under section 401(d) to 

justify a grant of certification under 

section 401(a), that is equivalent to 

deciding that, without those conditions, 

it must deny certification. The standard 

for each of the potential certification 

decisions is therefore essentially the 

same. 

To clarify which provisions of Federal 

and state law a certifying authority may 

consider when evaluating and 

ultimately deciding which action to take 

on a certification request pursuant to 

sections 401(a) and (d), the Agency is 

proposing to define the term ‘‘water 

quality requirements.’’ See proposed 

§ 121.1(m). The term ‘‘water quality 

requirements’’ is used throughout 

section 401, and the term ‘‘any other 

appropriate requirement of State law’’ is 

used in section 401(d), but neither term 

is defined in the CWA. The Agency did 

not interpret the term ‘‘water quality 

requirements’’ in the 1971 Rule, perhaps 

because the term ‘‘water quality 

requirements’’ was not introduced into 

section 401 until the 1972 CWA 

amendments, where it replaced the term 

‘‘water quality standards’’ throughout 

the section. See Public Law 91–224, 

21(b)(1), 85 Stat. 91 (1970); Public Law 

92–500, 401, 85 Stat. 816 (1972). 

Accordingly, the 1971 Rule used the 


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term ‘‘water quality standards’’ 

consistent with the text of the 1970 

statutory version of the certification 

provision. Similarly, the 1971 Rule did 

not account for the term ‘‘other 

appropriate requirement of State law’’ 

since section 401(d) was not introduced 

until 1972. 

The 2020 Rule defines the term 

‘‘water quality requirements,’’ and 

subsumes the phrase ‘‘any other 

appropriate requirement of State law’’ 

into the term ‘‘water quality 

requirements.’’ 40 CFR 121.1(n); see 85 

FR 42253. Consistent with what EPA 

characterized as the discharge-only 

scope of section 401, the preamble to 

the final 2020 Rule limited ‘‘water 

quality requirements’’ to only the 

enumerated provisions of the CWA 

listed in section 401(a)(1) and ‘‘state or 

tribal regulatory requirements for point 

source discharges into waters of the 

United States.’’ 40 CFR 121.1(n). Citing 

Justice Thomas’s dissent in PUD No. 1, 

the Agency relied on the principle 

ejusdem generis to argue that the term 

‘‘appropriate requirement of State law’’ 

was limited ‘‘only to provisions that, 

like other provisions in the statutory 

list, impose discharge-related 

restrictions.’’ 511 U.S. at 728 (Thomas, 

J., dissenting); 85 FR 42453. As a result, 

the 2020 Rule significantly narrows the 

scope of review and ability of certifying 

authorities to include conditions to 

protect their water quality. 

In proposing the definition of the term 

‘‘water quality requirements’’ set out in 

this document, the Agency has 

reconsidered the 2020 Rule’s definition 

of the term and finds it appropriate to 

interpret the term in a way that respects 

what EPA believes is the full breadth of 

the Federal and state water qualityrelated provisions that Congress 

intended a certifying authority to rely 

upon when developing its certification 

and conditions. Accordingly, EPA is 

now proposing to define ‘‘water quality 

requirements’’ to include any limitation, 

standard, or other requirement under 

the provisions enumerated in section 

401(a)(1), any Federal and state laws or 

regulations implementing the 

enumerated provisions, and any other 

water-quality related requirement of 

state or tribal law regardless of whether 

they apply to point or nonpoint source 

discharges. 

The text, purpose, and legislative 

history of the statute support the 

proposed interpretation of ‘‘water 

quality requirements.’’ In section 401(d) 

Congress said that certifying authorities 

must include conditions in their 

certifications to assure that any 

applicant will comply with enumerated 

provisions of the CWA and ‘‘any other 

appropriate requirement of State law.’’ 

33 U.S.C. 1341(d) (emphasis added). 

The word ‘‘any’’ is capacious in its 

scope, literally meaning ‘‘all’’ such state 

law requirements and not just a limited 

subset, e.g., point source-related 

requirements. While the word 

‘‘appropriate’’ arguably provides a 

limiting principle with respect to which 

requirements may be considered and 

applied, the word ‘‘appropriate’’ is to be 

interpreted broadly in light of statute’s 

text and purpose. Michigan v. EPA, 576 

U.S. 743, 752 (2015) (stating that 

‘‘appropriate’’ is a broad and allencompassing term that naturally and 

traditionally includes consideration of 

all the relevant factors). In this context, 

the word ‘‘appropriate’’ is more 

reasonably understood as specifying the 

‘‘water quality-related’’ nature of such 

requirements and not their ‘‘point 

source’’ character. This interpretation is 

consistent with the water quality 

protection goals of the CWA, as well as 

the Supreme Court’s affirmance of 

EPA’s longstanding interpretation in 

PUD No. 1 that water quality 

certifications and their conditions must 

assure that the ‘‘activity as a whole’’— 

and not just its point source 

discharges—does not adversely impact 

the quality of a certifying authority’s 

waters. 

Application of the maxim ejusdem 

generis to limit ‘‘appropriate 

requirement of State law’’ only to those 

state law provisions that impose 

discharge-related restrictions is 

misplaced. The list of CWA provisions 

referenced in section 401(a)(1), and in 

section 401(d) by incorporation, 

includes section 303, which addresses 

the requirement to adopt water quality 

standards for a state’s waters. This 

requirement applies to such waters 

irrespective of the presence of point or 

nonpoint sources of pollution or 

pollutants. Moreover, as discussed 

earlier, even though Congress modified 

the language of section 21(b) to conform 

to the revised regulatory approach of the 

1972 Act, it is clear from the legislative 

history that Congress intended new 

section 401 to be substantially the same 

as section 21(b) and not at all clear that 

Congress intended the restrictive 

reading of ‘‘appropriate requirement of 

State law’’ arguably suggested by use of 

that maxim. 

Congress provided states with the 

primary role in protecting the Nation’s 

waters from pollution, including 

pollution from Federal projects, and the 

phrase ‘‘water quality requirements’’ 

should be interpreted broadly to 

preserve state authority and further the 

section’s protective goal. See S.D. 

Warren, 547 U.S. at 386 (‘‘State 

certifications under [section] 401 are 

essential in the scheme to preserve state 

authority to address the broad range of 

pollution . . . .’’). 

The legislative history supports this 

interpretation. In earlier versions of 

section 401(d), Congress proposed to 

limit section 401(d) to the enumerated 

provisions from section 401(a)(1) and 

either ‘‘any more stringent water quality 

requirements under State law provided 

in section 510 of [the Act],’’ S. 2770, 

92nd Cong. (1972), or ‘‘any regulation 

under section 316 of this Act.’’ H.R. 

11896, 92nd Cong. (1972). Ultimately, 

neither of those formulations was 

adopted. Instead, consistent with 

Congress’s objective to empower states 

to protect their waters from pollution, 

Congress ‘‘expanded’’ the scope of 

section 401(d) ‘‘to also require 

compliance with any other appropriate 

requirement of State law which is set 

forth in the certification.’’ S. Rep. No. 

92–1236, at 138 (1972) (Conf. Rep.). 

EPA recognizes that, as noted by the 

Court in PUD No. 1, the authority 

granted to certifying authorities in 

section 401(d) ‘‘is not unbounded.’’ 511 

U.S. at 712. Rather, the scope is limited 

to ‘‘ensur[ing] that the project complies 

with ‘any applicable effluent limitations 

or other limitations under [33 U.S.C. 

1311, 1312] or other provisions of the 

Act,[’] ‘and with any other appropriate 

requirement of State law.’’’ Id. Although 

the Court declined ‘‘to speculate on 

what additional state laws, if any, might 

be incorporated by this language,’’ the 

Court found that ‘‘at a minimum, 

limitations imposed pursuant to state 

water quality standards adopted 

pursuant to [section] 303 are 

‘appropriate’ requirements of state law.’’ 

Id. at 713. As discussed earlier in this 

section, EPA’s longstanding position is 

that the scope of certification decisions 

and conditions are limited to water 

quality-related considerations. See also 

American Rivers, 129 F.3d at 107 

(‘‘Section 401(d), reasonably read in 

light of its purpose, restricts conditions 

that states can impose to those affecting 

water quality in one manner or 

another.’’). EPA’s redefinition of the 

term ‘‘water quality requirements’’ is 

not intended to alter this interpretation. 

The Agency does not, however, view 

the Act’s focus on water quality-related 

considerations to mean that 

certifications and conditions may only 

be based on point source discharge 

provisions in either Federal or state law. 

As noted above, the legislative history 

on section 401 reveals that, although 

Congress contemplated a narrower 

interpretation of section 401(d) (e.g., 

limited to the enumerated provisions 

and CWA section 316 in the House 


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version), Congress ultimately codified 

an ‘‘expanded’’ scope of section 401(d). 

In addition, EPA does not believe that 

the scope of a state’s or tribe’s 

certification review is limited only to 

water quality effects in bodies of water 

meeting the definition of ‘‘navigable 

waters’’ or ‘‘waters of the United 

States,’’ or to water quality effects 

caused by point sources. There is 

nothing in the text of section 401 that 

compels either interpretation. Nor, as 

we said in the preamble to the 2020 

Rule, is EPA aware of any court 

decisions that have directly addressed 

the scope of waters covered by section 

401. EPA acknowledges it articulated a 

different position on those issues in the 

2020 Rule. 85 FR 42234–35 (July 13, 

2020). However, upon reconsideration, 

EPA believes there are good reasons for 

changing its position now. 

While the text of section 401(a)(1) 

says that the need for a certification is 

only triggered by a potential discharge 

into ‘‘the navigable waters,’’ it does not 

state that, once the need for certification 

is triggered, a certifying authority must 

confine its review to potential water 

quality impacts to such ‘‘navigable 

waters.’’ Indeed, while section 401(a)(1) 

says that the certifying authority must 

certify that ‘‘any such discharge’’ will 

comply with various provisions of the 

CWA, it does not limit the point of 

compliance for purposes of certifying 

authority review to the specific outfall 

point or to the waterbody (‘‘navigable’’ 

or not) into which the triggering 

discharge occurs. Unlike section 

401(a)(1), which uses the term 

‘‘discharge’’ four times and ‘‘navigable 

waters’’ twice, section 401(d) uses 

neither term. Instead, the focus of 

section 401(d) falls on the conduct of, 

and need to assure compliance by, ‘‘the 

applicant’’ and its licensed or permitted 

activities, rather than—as with section 

401(a)(1)—on the nature and 

compliance of the ‘‘discharge’’ to 

‘‘navigable waters.’’ Section 401(d) is 

thus arguably more expansive than 

section 401(a)(1), providing that the 

certification authority must assure that 

‘‘any applicant’’ comply with the same 

provisions of the CWA, as well as ‘‘any 

other appropriate requirement of State 

law,’’ and states may, under state law, 

protect state waters beyond those that 

are navigable. Again, there is no 

indication in the text or legislative 

history that Congress intended the scope 

of review under sections 401(a)(1) and 

(d) to assure such compliance be limited 

to ‘‘navigable waters.’’ Had Congress 

desired to create such a limited scope of 

review, it could easily have done so. It 

did not. 

This interpretation is reinforced by 

the fact that Congress intended section 

401 to afford states broad power to 

protect their waters from harm caused 

by federally licensed or permitted 

projects. That intent is best realized by 

interpreting the scope of section 401 

review and conditions as applying to 

impacts to all potentially affected state 

waters, not just the state’s ‘‘navigable 

waters.’’ Such an interpretation is also 

consistent with PUD No.1’s affirmance 

of EPA’s determination that the proper 

scope of review is potential water 

quality impacts from the ‘‘activity as a 

whole.’’ While the certification 

triggering discharge must itself be into 

a ‘‘navigable water,’’ water quality 

impacts from the larger ‘‘project in 

general’’ or the ‘‘activity as a whole’’ 

might well occur in state waters at some 

distance from the triggering discharge. 

There is nothing in the phrase ‘‘any 

other appropriate requirement of State 

law,’’ or the nature of CWA section 

303(c) water quality standards, that 

would compel an interpretation that 

these water quality requirements could 

only support certification review or 

conditions to prevent water quality 

impacts to the state’s ‘‘navigable waters’’ 

or caused by ‘‘point sources.’’ Finally, 

an expansive interpretation of scope of 

review as applying to all potentially 

affected state waters is supported by 

CWA section 510, which—‘‘[e]xcept as 

expressly provided’’—preserves a state’s 

authority and jurisdiction to protect its 

waters from pollution. 

In the preamble to the 2020 Rule, EPA 

acknowledged that CWA sections 402 

and 404 apply only to point source 

discharges to waters of the United 

States. 85 FR 42234. EPA does not 

disagree with that proposition here. 

However, the Agency no longer believes 

that the point source focus of sections 

402 and 404, or the fact that section 401 

is located in the first section of Title IV 

of the CWA, titled Permits and Licenses, 

means that—once the need for a 

certification has been triggered by a 

point source discharge into a water of 

the United States—a state may not 

consider potential water quality effects 

in non-navigable waters caused by the 

activity as a whole. EPA disagrees with 

and finds unpersuasive the 2020 Rule 

preamble’s attempt to conflate section 

401 with sections 402 and 404 by saying 

that ‘‘similar to the section 402 and 404 

permit programs, section 401 is a core 

regulatory provision of the CWA.’’ Id. 

While section 401 is certainly a critical 

element of the Act—indeed, it pre-dated 

the 1972 CWA amendments and was 

deemed so important that Congress 

carried it over—section 401 is a direct 

congressional grant of authority for 

states to protect their water resources 

from impacts caused by federally 

licensed or permitted projects that is 

significantly different in character from 

the Act’s other Federal ‘‘regulatory’’ 

provisions. As such, it is more 

reasonable to interpret section 401’s 

scope broadly to effectuate that grant of 

authority, consistent with the 

reservation of state powers in section 

510, rather than interpret section 401’s 

scope as limited to consideration of 

point source discharges to or into waters 

of the United States like sections 402 

and 404. 

In the preamble to the 2020 Rule, the 

Agency said that ‘‘for many of the same 

reasons why the Agency is not 

interpreting the use of the word 

‘applicant’ in section 401(d) as 

broadening the scope of certification 

beyond the discharge itself, the Agency 

is also declining to interpret section 

401(d) as broadening the scope of waters 

and the types of discharges to which the 

CWA federal regulatory programs 

apply.’’ Id. at 42235. As an initial 

matter, the Agency is not espousing in 

this document an interpretation of the 

scope of section 401 that in any way 

broadens the scope of basic Federal 

regulatory provisions like sections 402 

and 404. Instead, the Agency is merely 

recognizing the fundamental difference 

between those Federal ‘‘regulatory’’ 

sections, whose scope is textually 

limited to point source discharges to or 

into waters of the United States, and the 

grant of state authority in section 401, 

which is not so limited. Indeed, to flip 

the argument EPA made in 2020, the 

reasons we have articulated above in 

support of broadening the scope of 

certification beyond the discharge itself 

also support expanding its scope 

beyond a state’s navigable waters. The 

fact that the Agency continues to agree 

with the Ninth Circuit’s analysis and 

holding in Dombeck that section 401 

certification is not required for nonpoint 

source discharges does not compel a 

different interpretation with respect to 

these scope issues. Dombeck, 172 F.3d 

at 1098–99. Nor does EPA’s 

interpretation of section 401(d)’s term 

‘‘applicant’’ as authorizing states to add 

certification conditions that might 

protect ‘‘non-federal waters’’ in any way 

broaden the scope of the Federal 

regulatory programs enacted by the 1972 

CWA amendments, e.g., sections 402 

and 404, beyond the limits that 

Congress intended. See 85 FR 42234–35. 

Section 401, although a neighbor to 

sections 402 and 404 in the CWA’s 

organizational framework, is a 

fundamentally different provision and 


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need not be interpreted according to 

those other provisions’ strictures. 

EPA is not offering an opinion in this 

rulemaking about what characteristics 

such a ‘‘State law’’ or ‘‘Tribal law’’ must 

have to qualify as an appropriately 

‘‘legal’’ basis for certification review or 

conditions under sections 401(a)(1) or 

401(d). In the spirit of cooperative 

federalism, EPA defers to the relevant 

state and tribe to define which of their 

state or tribal provisions qualify as 

appropriate ‘‘State laws’’ or ‘‘Tribal 

laws’’ for purposes of implementing 

section 401. 

EPA requests comment on this 

proposed definition of ‘‘water quality 

requirements,’’ EPA’s basis for 

proposing it, and any other potential 

definitions of the term ‘‘water quality 

requirements’’ EPA should consider 

adopting in the final rule. 

F. Certification Decisions 

1. Decisions on a Request for 

Certification 

The CWA allows certifying authorities 

to make one of four decisions on a 

request for certification pursuant to 

their section 401 authority. A certifying 

authority may either grant certification, 

grant certification with conditions, deny 

certification, or it may expressly waive 

certification. A certifying authority may 

also constructively waive certification 

by failing or refusing to act in the 

reasonable period of time. This section 

briefly discusses each of the four 

decisions a certifying authority may 

make, including what each decision 

means and its impact on the Federal 

licensing or permitting process. This 

proposed interpretation of the four 

decisions a certifying authority may 

make is consistent with the Agency’s 

interpretation in the 1971 and 2020 

Rules. 

First, a certifying authority may grant 

certification. A grant of certification 

means that the certifying authority has 

determined that the federally licensed 

or permitted activity as a whole will 

comply with water quality 

requirements. See section V.E in this 

preamble for further discussion of the 

scope of certification and the term 

‘‘water quality requirements.’’ Granting 

certification means that the license or 

permit may be issued. See 33 U.S.C. 

1341(a)(1). Section 401(a)(1) provides 

that in circumstances where there are no 

applicable water quality requirements 

for an activity, the certifying authority 

‘‘shall so certify.’’ Id. EPA is proposing 

minor revisions to the regulatory 

language currently located at § 121.7(f) 

that describes this scenario, with minor 

edits to reflect the proposed scope of 

certification. 

Second, a certifying authority may 

grant certification with conditions. A 

grant of certification with conditions 

means that the certifying authority has 

determined that the federally licensed 

or permitted activity as a whole will 

comply with water quality 

requirements, but only if certain 

conditions are met. Section 401(d) 

provides that any certification condition 

shall become a condition on the Federal 

license or permit. Id. at 1341(d) (‘‘Any 

certification provided under this section 

shall set forth any effluent limitations 

and other limitations, and monitoring 

requirements necessary to assure that 

any applicant for a Federal license or 

permit will comply with [sections 301, 

302, 306, and 307], and with any other 

appropriate requirement of State law set 

forth in such certification, and shall 

become a condition on any Federal 

license or permit . . . .). As discussed 

later in section V.G in this preamble, 

circuit courts have routinely held that 

Federal agencies may not question or 

criticize a state’s water quality 

conditions. See, e.g., American Rivers, 

129 F.3d at 107 (‘‘[Section 401(d)] is 

unequivocal, leaving little room for 

FERC to argue that it has authority to 

reject state conditions it finds to be ultra 

vires.’’). Granting certification with 

conditions means the Federal license or 

permit may be issued, provided the 

conditions are incorporated into that 

license or permit. The 2020 Rule 

includes regulatory text on the 

incorporation of certification conditions 

into a license or permit. See 40 CFR 

121.10. The Agency is not proposing to 

retain any regulatory text on the 

incorporation of certification 

conditions. First, the 2020 Rule limits 

incorporation of certification conditions 

to only those that satisfy the content 

requirements at § 121.7(d). Section 

401(d) clearly requires all certification 

conditions to become conditions on a 

Federal license or permit and does not 

limit incorporation to only those 

conditions that include certain 

regulatory defined components. As 

discussed in section V.G in this 

preamble, EPA does not interpret the 

statute as allowing a Federal agency to 

review whether a certifying authority 

included certain regulatorily defined 

elements in its certification decisions, 

nor question certifying authority 

conditions. Second, while the 2020 Rule 

requires Federal agencies to clearly 

identify certification conditions in their 

Federal license or permit, section 401 

does not require Federal agencies to 

distinguish certification conditions from 

other condition in their licenses or 

permits. If the Federal agency finds it 

useful to distinguish certification 

conditions for implementation 

purposes, the Federal agency may 

structure its license or permit in such a 

manner, but EPA does not find it 

necessary for the Agency to require such 

a distinction. 

Third, a certifying authority may deny 

certification. A denial means that the 

certifying authority is not able to certify 

that the activity as a whole will comply 

with water quality requirements. If a 

certifying authority denies certification, 

the license or permit cannot be issued. 

33 U.S.C. 1341(a)(1). The 2020 Rule 

includes regulatory text that discusses 

the effects of a denial of certification. 

See 40 CFR 121.8. The Agency is not 

proposing to retain any regulatory text 

that speaks to the effects of a denial of 

certification. First, the 2020 Rule 

provides that a certification denial does 

not preclude a project proponent from a 

submitting a new certification request. 

Section 401(a)(1) provides that a license 

or permit may not be granted if 

certification is denied, but it does not 

speak to new certification submittals 

following a denial. EPA does not find it 

necessary to add any additional 

direction or process for certification 

denials, beyond defining the contents of 

a certification denial (as discussed 

below). If a project proponent disagrees 

with a certifying authority’s denial, the 

project proponent may challenge the 

certifying authority’s decision in the 

appropriate court of jurisdiction. See S. 

Rep. 92–414 at 69 (1971) (‘‘Should such 

an affirmative denial occur no license or 

permit could be issued by such Federal 

agencies . . . unless the State action 

was overturned in the appropriate 

courts of jurisdiction.’’). The 2020 Rule 

also provides that a Federal license or 

permit may not be issued if a certifying 

authority denies certification in the 

manner prescribed by the 2020 Rule 

(i.e., contains the contents defined at 

§ 121.7(e)). As discussed in section V.G 

in this preamble, Federal agency review 

does not permit a Federal agency to 

review whether a certifying authority 

included certain regulatorily defined 

elements in its certification decisions. 

Accordingly, it is unnecessary to 

provide the Federal agency with the role 

of confirming that a denial is sufficient 

in the regulatory text. 

Fourth, a certifying authority may 

expressly waive certification. The 

statute explicitly provides for a 

constructive waiver if the certifying 

authority fails or refuses to act on a 

request for certification within the 

reasonable period of time. The statute 

does not expressly state that a certifying 


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46The D.C. Circuit held that California and 

Oregon had waived their section 401 authority by 

allowing the project applicant to repeatedly 

withdraw and resubmit the same certification 

request to avoid exceeding the reasonable period of 

time deadline. 913 F.3d at 1101. The D.C. Circuit 

also found that FERC’s interpretation of ‘‘act on a 

request’’ as allowing the states to ‘‘indefinitely 

delay’’ its review was arbitrary and capricious and 

not within the bounds of its authority under section 

401. Id. at 1102. 47See 2010 Handbook, at 11 (rescinded). 

authority may expressly waive 

certification. However, EPA has 

determined that providing this 

opportunity in the proposed rulemaking 

is consistent with a certifying 

authority’s ability to waive through 

failure or refusal to act. See EDF v. 

Alexander, 501 F. Supp. 742, 771 (N.D. 

Miss. 1980) (‘‘We do not interpret [the 

Act] to mean that affirmative waivers 

are not allowed. Such a construction 

would be illogical and inconsistent with 

the purpose of this legislation.’’). This 

interpretation is also consistent with the 

Agency’s longstanding interpretation of 

the waiver provision. See 40 CFR 

121.9(a)(1) (allowing a certifying 

authority to expressly waive 

certification via written notification); 40 

CFR 121.16(a) (2019) (same). 

Additionally, continuing to allow 

express waivers may create efficiencies 

where the certifying authority knows 

early in the process that it will waive. 

An express waiver does not mean that 

the certifying authority has determined 

that the activity will comply with water 

quality requirements. Instead, an 

express waiver indicates only that the 

certifying authority has chosen not to 

act on a request for certification. 

Consistent with the statutory text, an 

express waiver enables the Federal 

agency to issue a license or permit. 

2. Defining What It Means ‘‘To Act on 

a Request for Certification’’ 

Once a certifying authority receives a 

request, the certifying authority must 

‘‘act on a request for certification, 

within a reasonable period of time 

(which shall not exceed one year) after 

receipt of such request.’’ 33 U.S.C. 

1341(a)(1). The phrase ‘‘to act on a 

request for certification’’ is not defined 

in the statute; nor did EPA define it in 

the 1971 or 2020 Rules. To provide 

greater clarity regarding how a certifying 

authority ‘‘act[s] on a request for 

certification’’ within the reasonable 

period of time, EPA is proposing to 

define the phrase ‘‘to act on a request for 

certification’’ to mean that a certifying 

authority is making one of the four 

certification decisions discussed above: 

granting certification, granting 

certification with conditions, denying 

certification, or expressly waiving 

certification. 

In pre-proposal feedback, a few 

stakeholders asked the Agency to 

provide additional clarification 

regarding what it means to ‘‘act on a 

request for certification.’’ For example, 

would decisions beyond the four just 

discussed qualify as acting (e.g., would 

a certifying authority ‘‘act on a request 

for certification’’ if it requested that the 

project proponent withdraw and 

resubmit its certification request)? 

Specifically, states and tribes expressed 

concern about their ability to make one 

of the four above-described decisions on 

a request for certification within the 

reasonable period of time, especially for 

larger, more complex projects. Recent 

case law has also highlighted the need 

to clarify this issue, particularly in 

instances where a certifying authority 

does not wish to waive certification. 

The D.C. Circuit has further suggested 

that acting on a request for certification 

does not include participating in a 

coordinated withdrawal and 

resubmission ‘‘scheme.’’ See Hoopa 

Valley Tribe, 913 F.3d at 1101–02.46 The 

Fourth Circuit recently held that it was 

permissible for the project proponent to 

withdraw its application in order to 

avoid a certification denial as long as 

the certifying authority and project 

proponent were not in a ‘‘coordinated 

withdrawal and resubmission scheme.’’ 

NCDEQ, 3 F.4th at 672, 676. However, 

the court also suggested that the section 

401 phrase ‘‘to act’’ could be interpreted 

to mean something different than a final 

agency action on a request for 

certification. According to the court, a 

certifying authority that ‘‘takes 

significant and meaningful action’’ and 

‘‘in good faith takes timely action to 

review and process a certification 

request likely would not lose its 

authority to ensure that federally 

licensed projects comply with the 

State’s water-quality standards, even if 

it takes the State longer than a year to 

make its final certification decision’’ Id. 

at 670. 

Some stakeholders have expressed 

concern with the NCDEQ approach, 

noting that it may make the section 401 

certification process less predictable 

and transparent. EPA shares those 

concerns. The Agency is concerned that 

interpreting ‘‘to act on a request for 

certification’’ as any ‘‘significant and 

meaningful action’’ might inject 

significant uncertainty and subjectivity 

into the certification process (e.g., what 

is a ‘‘significant and meaningful 

action?’’) causing significant confusion 

for stakeholders. 

Although the Agency has never 

explicitly defined ‘‘to act on a request 

for certification,’’ prior Agency guidance 

and the 2020 Rule preamble took the 

position that certifying authorities must 

make a decision on a request for 

certification within the reasonable 

period of time. For instance, in the 2010 

Handbook, EPA stated that to avoid 

constructively waiving certification, the 

certifying authority should ‘‘verify the 

time available for [its] certification 

decision.’’ 47 One implication of this 

language is that the Agency thought that 

‘‘to act on a request for certification’’ 

means to make a final decision on the 

request (i.e., grant, grant with 

conditions, deny, or expressly waive 

certification). Courts appear to agree. 

See, e.g., Alcoa Power Generating, Inc. 

v. FERC, 643 F.3d 963, 972 (D.C. Cir. 

2011) (noting that ‘‘[i]n imposing a oneyear time limit on States to ‘act,’ 

Congress plainly intended to limit the 

amount of time that a State could delay 

a federal licensing proceeding without 

making a decision on the certification 

request’’); NYDEC, 884 F.3d at 455–56 

(noting that a state must act after 

receiving a certification request and that 

denial ‘‘would constitute ‘acting’ on the 

request under the language of Section 

401’’). 

Based on stakeholder feedback and 

recent court cases suggesting ambiguity 

with respect to what it means for a 

certifying authority to act, EPA is 

proposing to clarify that the phrase ‘‘to 

act on a request for certification’’ means 

that a certifying authority makes one of 

the four above-described certification 

decisions: grant, grant with conditions, 

deny, or expressly waive. In light of the 

case law and EPA’s prior statements and 

practice, EPA thinks this is the most 

reasonable interpretation of what it 

means for a certifying authority ‘‘to act 

on a request for certification.’’ It also 

provides stakeholders with a clear and 

predictable endpoint for knowing when 

the certifying authority has failed or 

refused to act, resulting in a waiver. See 

33 U.S.C. 1341(a)(1) (‘‘If the State . . . 

fails or refuses to act on a request for 

certification, within a reasonable period 

of time (which shall not exceed one 

year) after receipt of such request, the 

certification requirements of this 

subsection shall be waived with respect 

to such Federal application.’’). The 

Agency is requesting comment on the 

proposed interpretation of what it 

means to act on a request for 

certification, as well as any alternative 

interpretations (e.g., NCDEQ approach). 

3. Failing or Refusing To Act on a 

Request for Certification 

The Agency is also proposing to 

clarify what it means for a certifying 

authority to fail or refuse to act on a 


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request for certification. As discussed 

above, the Agency is proposing to define 

‘‘act on a request for certification’’ as the 

certifying authority making one of four 

certification decisions: grant, grant with 

conditions, deny, or expressly waive. If 

the certifying authority fails to take one 

of these actions, the certification may be 

treated as a constructive waiver. 

Consistent with the statutory text, when 

a certifying authority waives the 

requirement for a certification, the 

Federal agency may proceed to issue the 

license or permit. 33 U.S.C. 1341(a)(1). 

The plain language of section 

401(a)(1) provides that the certification 

requirement is waived if a certifying 

authority ‘‘fails or refuses to act on a 

request for certification, within a 

reasonable period of time (which shall 

not exceed one year).’’ Id. Section 

401(a)(1) clearly indicates Congress’s 

intent to limit constructive waivers to 

situations where a certifying authority 

did not act. See id. (‘‘No license or 

permit shall be granted until the 

certification required by this section has 

been obtained or has been waived as 

provided in the preceding sentence.’’). 

The legislative history of this provision 

suggests that constructive waivers were 

intended to prevent delays in the 

Federal licensing or permitting process 

due to the certifying authority’s 

inactivity. See H. Rep. No 92–911, at 

122 (1972) (‘‘In order to insure that 

sheer inactivity by the State, interstate 

agency or Administrator as the case may 

be, will not frustrate the Federal 

application, a requirement, that if 

within a reasonable period, which 

cannot exceed 1 year, after it has 

received a request to certify the State, 

interstate agency, or Administrator, as 

the case may be, fails or refuses to act 

on the request for certification, then the 

certification requirement is waived.’’). 

Similarly, the 1971 Rule and subsequent 

Agency guidance recognized that 

constructive waivers could occur due to 

certifying authority inaction. See 40 

CFR 121.16(b) (2019) (noting that 

constructive waivers occurred upon the 

‘‘failure of the State . . . concerned to 

act on such a request for certification 

within a reasonable period of time after 

receipt of such request’’); 2010 

Handbook, at 11 (rescinded) (‘‘State and 

tribes are authorized to waive [section] 

401 certification . . . by the certification 

agency not taking action.’’). 

The 2020 Rule’s interpretation of 

what it means for a certifying authority 

to fail or refuse to act departs from the 

longstanding Agency position on 

constructive waivers. The 2020 Rule 

allows a Federal agency to determine 

that a certifying authority had failed or 

refused to act, and thereby waived 

certification, where the certifying 

authority’s action on a request for 

certification was procedurally deficient 

(e.g., did not follow the 2020 Rule’s 

procedural requirements for a denial of 

certification). 40 CFR 121.9(a)(2); 85 FR 

42266. Similarly, a Federal agency can 

determine that a certification condition 

is waived if the condition does not 

comply with procedural requirements of 

the 2020 Rule. Id. at 42250. This aspect 

of the 2020 Rule drew considerable preproposal input from certifying 

authorities who argued that this 

interpretation could result in a Federal 

agency ‘‘veto’’ of a section 401 

certification, and was contrary to the 

statute and the legislative history. EPA 

similarly expressed concern in its 

Federal Register notice announcing its 

intent to revise the 2020 Rule, noting 

that ‘‘a federal agency’s review may 

result in a state or tribe’s certification or 

conditions being permanently waived as 

a result of non-substantive and easily 

fixed procedural concerns identified by 

the federal agency.’’ 86 FR 29543 (June 

2, 2021). 

The 2020 Rule’s interpretation of 

waiver is not consistent with the plain 

language of the statute and its legislative 

history. The mere failure of a certifying 

authority to include certain regulatorily 

defined elements in its certification 

decisions or comply with other 

procedural requirements of section 401, 

such as providing public notice on a 

request for certification, do not qualify 

as the kind of ‘‘sheer inactivity’’ that 

Congress contemplated would result in 

a constructive waiver. Consistent with 

the statutory language, legislative 

history, and prior Agency interpretation, 

EPA is proposing to revise the 

regulatory text to clarify that 

constructive waivers may only occur if 

a certifying authority fails or refuses to 

take one of the four actions described in 

this section within the reasonable 

period of time. 

4. Contents of a Certification Decision 

To provide further clarity on how a 

certifying authority may ‘‘act on a 

request for certification,’’ EPA is also 

proposing to define the contents of a 

certification decision. Accordingly, EPA 

is proposing to remove the regulatory 

text currently located at § 121.7(b), 

which characterizes what actions a 

certifying authority may take based on 

its evaluation of the request for 

certification. The regulatory text 

proposed at § 121.7(c)–(f) sufficiently 

defines the contents of each certification 

decision and identifies the actions a 

certifying authority may take based on 

its evaluation of the request for 

certification such that EPA believes it 

would be redundant to retain separate 

regulatory text restating the same ideas. 

While the statute provides that 

certifying authorities may make one of 

four decisions when processing a 

certification request, the CWA does not 

explicitly describe the contents or 

elements of a certification decision. 

EPA’s 1971 Rule defined the contents of 

a certification and express waiver 

decision for all certifying authorities. 

The 1971 Rule’s enumeration of the 

contents of a certification decision were 

simple but effective and included the 

name and address of the applicant, a 

statement that the certifying authority 

examined the application, a statement 

that ‘‘there is a reasonable assurance 

that the activity will be conducted in a 

manner which will not violate 

applicable water quality standards,’’ and 

other information deemed appropriate 

by the certifying authority. 40 CFR 

121.2(a) (2019). In addition, the 1971 

Rule provided that a certification could 

be waived upon either (1) written 

notification from the certifying authority 

that it expressly waived its authority to 

act on a request, or (2) written 

notification from the licensing or 

permitting agency regarding the failure 

of the certifying authority to act on a 

request for certification within the 

reasonable period of time. 40 CFR 

121.16 (2019). The 1971 Rule did not 

define the contents of a certification 

denial or provide specific requirements 

for how to articulate and incorporate a 

certification condition. 

In the 2020 Rule, EPA updated those 

requirements for each type of 

certification decision and more fully 

addressed the effects of those decisions. 

First, it provides that, when a certifying 

authority granted certification under the 

2020 Rule, the certification must be in 

writing and include a written statement 

that the discharge from the proposed 

federally licensed or permitted project 

would comply with water quality 

requirements. 40 CFR 121.7(c); 85 FR 

42286. 

Second, when a certifying authority 

grants certification with conditions, the 

2020 Rule requires that the certifying 

authority explain the necessity of each 

condition and provide a citation to an 

applicable Federal, state, or tribal law. 

40 CFR 121.7(d); 85 FR 42286. This was 

a change from the 1971 Rule, which 

broadly provided for certifying 

authorities to include conditions as they 

‘‘deem[ed] necessary or desirable.’’ 40 

CFR 121.2(a)(4) (2019). The 2020 Rule 

preamble stated that the new 

requirements were ‘‘intended to 

increase transparency and ensure that 

any limitation or requirement added to 

a certification . . . is within the scope 


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of certification.’’ 85 FR 42256. 

Additionally, EPA observes that this 

provision is similar to EPA’s NPDES 

program-specific section 401 

regulations. See 40 CFR 124.53(e)(2) 

(requiring a citation for any conditions 

more stringent than those in the draft 

permit). 

Third, unlike the 1971 Rule, under 

which certification denials were 

undefined, the 2020 Rule defines the 

contents of a denial. Specifically, the 

2020 Rule requires certification denials 

to be made in writing and to identify 

any water quality requirements with 

which the discharge will not comply, 

include a statement explaining why the 

discharge would not comply with those 

requirements, and provide any specific 

water quality data or information that 

would help explain a denial based on 

insufficient information. 40 CFR 

121.7(e); 85 FR 42286. 

Fourth, the 2020 Rule includes 

similar language to the 1971 Rule for 

express waivers and required written 

notification from the certifying authority 

indicating an express waiver of its 

authority to act on a request for 

certification. 40 CFR 121.9(a)(1); 85 FR 

42286 (July 13, 2020). Lastly, under the 

2020 Rule, EPA defined constructive 

waiver as a certifying authority’s 

‘‘failure or refusal to act on a 

certification request’’ which included 

failing or refusing to (1) act within the 

reasonable period of time, (2) satisfy the 

requirements for a grant or denial of 

certification, or (3) comply with other 

procedural requirements of section 401 

(e.g., provide public notice on a 

certification request). 40 CFR 

121.9(a)(2); 85 FR 42286. The 2020 Rule 

also provided that waivers could occur 

if the certifying authority failed or 

refused to satisfy the requirements of 

any certification conditions. 40 CFR 

121.9(b); 85 FR 42286. See section V.G 

in this preamble for further discussion 

on constructive waivers and the role of 

Federal agencies. 

The stated purpose of the 2020 Rule 

requirements was to promote 

transparency and consistency in 

certification decisions and to help 

streamline the Federal licensing and 

permitting processes. 85 FR 42220 (July 

13, 2020). However, in pre-proposal 

input, several certifying authorities said 

that the 2020 Rule’s requirements for 

the contents of certification decisions 

delayed rather than streamlined the 

certification process. Conversely, in preproposal outreach, project proponents 

expressed interest in keeping the 2020 

Rule requirements for the added 

transparency and argued that it is 

helpful when certifying authorities 

explain their final certification 

decisions (especially denials). Project 

proponents have also argued that 

certifying authorities benefit from 

including this additional information in 

their certification decisions because it 

helps build complete and legally 

defensible administrative records to 

support their certification actions. 

Under this proposed approach, 

similar to the approach taken in the 

2020 Rule, EPA is proposing revisions 

to the regulatory text currently located 

at § 121.7(a) to clarify that all 

certification decisions should: be in 

writing; clearly state whether the 

certifying authority has chosen to grant, 

grant with conditions, deny, or 

expressly waive certification; be within 

the scope of certification, as defined at 

proposed § 121.3; and be taken within 

the reasonable period of time, as 

determined pursuant to proposed 

§ 121.6. 

Like the approach taken in the 1971 

and 2020 Rules, EPA is proposing to 

include some requirements for each of 

the four types of certification decisions. 

This approach addresses both the 

workload concerns expressed by 

certifying authorities, and the desire of 

project proponents for increased 

transparency and consistency in the 

certification process. The list of 

elements required for each certification 

decision will provide predictability and 

still allow certifying authorities the 

flexibility to add additional elements of 

their own under state or tribal law. EPA 

does not anticipate that this proposed 

approach will be controversial because 

it is generally consistent with the 

approach taken in the 1971 Rule and 

2020 Rule. 

Consistent with the position taken in 

the 2020 Rule, the Agency has opted to 

retain contents of a certification 

decision consistent with the 1972 

statutory language. Unlike the 2020 

Rule, the 1971 Rule included language 

that reflected the predecessor statute. 

For example, the 1971 Rule required 

certifications to include a ‘‘statement 

that there is a reasonable assurance that 

the activity will be conducted in a 

manner which will not violate 

applicable water quality standards.’’ 40 

CFR 121.2(3) (2019). As discussed in 

section IV.A in this preamble, the 1972 

CWA revised the predecessor version of 

section 401 to reflect the changed 

emphasis from complying with ‘‘water 

quality standards’’ to complying with 

‘‘the applicable provisions of sections 

301, 302, 303, 306, and 307’’ of the 

CWA. 33 U.S.C. 1341(a)(1). 

Additionally, Congress added section 

401(d) that requires a certifying 

authority to include ‘‘any effluent 

limitations and other limitations, and 

monitoring requirements necessary to 

assure that any applicant for a Federal 

license or permit will comply’’ with the 

enumerated provisions of the CWA and 

any other appropriate requirement of 

state law. Id. at 1341(d). Consistent with 

this change, the Agency is proposing to 

retain a similar provision as the 2020 

Rule that certification decisions to grant, 

grant with conditions, or deny 

certification must indicate whether the 

certifying authority has determined that 

an activity will comply with the water 

quality requirements identified in the 

1972 CWA, not just water quality 

standards. Additionally, consistent with 

the proposal’s scope of certification, 

EPA is proposing that certification 

decisions must indicate whether the 

activity as a whole, as opposed to the 

discharge, will comply with water 

quality requirements. See section E of 

this proposal for further discussion on 

the scope of certification. 

Similar to the Agency’s position in 

the 2020 Rule, the Agency does not 

think that retaining the 1972 statutory 

language ‘‘will comply’’ in the proposed 

regulations requires certifying 

authorities to provide absolute certainty 

that applicants for a Federal license or 

permit will never violate water quality 

requirements. See 85 FR 42278 (July 13, 

2020). This is not EPA’s intention, and 

EPA does not think such a stringent 

interpretation is required by the 

statutory or proposed regulatory 

language. The use of language 

comparable to ‘‘will comply’’ is not 

uncommon in CWA regulatory 

programs. For example, CWA section 

402 contemplates that NPDES permits 

will only be issued upon a showing that 

discharge ‘‘will meet’’ various 

enumerated provisions of the CWA. 33 

U.S.C. 1342(a). This standard has not 

precluded states, tribes, or EPA from 

routinely issuing NPDES permits to 

allow pollutant discharges. 

Nor does EPA expect that the use of 

‘‘will comply’’ will impede or limit a 

certifying authority’s ability to act on a 

request for certification. Additionally, 

the Agency does not think that this 

proposed language prevents certifying 

authorities from relying on modeling 

information, which provides an 

informed projection of potential 

impacts, to make a certification 

decision. When a certifying authority 

makes a certification decision, EPA 

believes that the certifying authority 

would be certifying that the ‘‘activity as 

a whole’’ will comply with water 

quality requirements for the life of the 

license or permit and not just at the 

moment the license or permit is issued. 

The lifespan of FERC licenses can be 

decades, whereas section 402 or 404 


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permits last five years. Given the 

possible lifespan of a license or permit, 

and the possibility that water qualityrelated changes or impacts may occur 

due to climate change or other factors 

during that time, it is reasonable (and 

perhaps essential in some cases) for 

certifying authorities to rely on 

modeling to inform certification 

decisions. EPA does not intend or 

expect the use of the term ‘‘will 

comply’’ to limit or impact a certifying 

authority’s ability to rely on such 

modeling to support its certification 

decisions. 

Since EPA is defining ‘‘to act on a 

request for certification’’ as making one 

of four certification decisions, it is 

reasonable for EPA to identify a nonexhaustive list of contents for each of 

those certification decisions. Under 

EPA’s proposal, certifying authorities 

would be free to add additional 

elements or information requirements to 

any of these four certification decisions 

to provide stakeholders with clarity and 

transparency. For example, a certifying 

authority may choose to require a 

citation to applicable Federal or state 

water quality requirements to support a 

certification condition. For its part, EPA 

is not proposing to include this 

additional requirement as a Federal 

regulatory element as it did in the 2020 

Rule. 

The following paragraphs describe the 

Federal requirements EPA is proposing 

to adopt for each of the four kinds of 

certification decisions. Under this 

proposal, each of the four kinds of 

certification decisions must be in 

writing and include the name and 

address of the project proponent and 

identification of the applicable Federal 

license or permit. Additionally, each of 

the four kinds of certification decisions 

includes other requirements. 

First, any grant of certification shall 

include a written statement that the 

federally licensed or permitted activity 

as a whole ‘‘will comply’’ with water 

quality requirements. While the 1971 

Rule required a statement that there was 

‘‘reasonable assurance,’’ 40 CFR 121.2(a) 

(2019), as explained above, the 2020 

Rule uses the term ‘‘will comply’’ which 

is more consistent with the 1972 

statutory language used in sections 

401(a)(1) and 401(d). 

Second, EPA is proposing that any 

grant of certification with conditions 

shall (1) identify any conditions 

necessary to assure that the activity as 

a whole will comply with water quality 

requirements and (2) include a 

statement explaining why each 

condition is necessary to assure that the 

activity as a whole will comply with 

water quality requirements. This 

proposal reflects the language used in 

section 401(d) and is similar to the 

approach taken under the 1971 and 

2020 Rules. A statement explaining why 

a condition is necessary will help 

project proponents and Federal agencies 

understand the reason for the condition 

and assist in its implementation. EPA 

anticipates that such information is 

readily available to the certifying 

authority as part of its decision-making 

process. However, unlike the 2020 Rule, 

the Agency is not proposing to require 

certifying authorities to include a 

specific statutory or regulatory citation 

in support of a certification condition. 

Rather, the Agency will let certifying 

authorities decide what relevant 

information to provide in support of any 

conditions. Additionally, EPA is not 

proposing to distinguish between 

certification decisions based on an 

individual or a general license or 

permit. Although EPA made such a 

distinction in the 2020 Rule, EPA finds 

it unnecessary here because the few 

relevant proposed regulatory 

requirements apply to a certification 

with conditions regardless of the nature 

of the license or permit. EPA is 

proposing limited regulatory 

requirements in this area, anticipating 

that certifying authorities will work 

with project proponents and Federal 

agencies to determine what information 

would be most useful (e.g., statutory or 

regulatory citations). 

Consistent with this approach, EPA 

recognizes that certification conditions 

are an important tool that enable 

certifying authorities to ensure that 

projects needing Federal licenses or 

permits will be able to move forward 

without adverse impacts to water 

quality. EPA encourages certifying 

authorities to develop certification 

conditions in a way that enables 

projects to adapt to future water qualityrelated changes, i.e., so-called ‘‘adaptive 

management conditions.’’ For example, 

if a certifying authority is concerned 

about future downstream, climate 

change-related impacts on aquatic 

species due to increased reservoir 

temperatures during the lifespan of a 

hydropower dam license, the certifying 

authority might develop a condition that 

would allow a project proponent to take 

subsequent, remedial action in response 

to reservoir temperature increases (e.g., 

conditions that might require, as 

necessary, a change in reservoir 

withdrawal location in the water 

column, a change in the timing of 

releases, etc.). To ensure project 

proponents and Federal agencies 

understand and are able to implement 

any such adaptive management 

conditions, EPA recommends that 

certifying authorities clearly define and 

explain the basis for these conditions 

and the circumstances in which 

adaptive management conditions may 

spring into effect (e.g., expectations for 

undertaking additional planning and 

monitoring; thresholds triggering 

adaptive responses; requirements for 

ongoing compliance). EPA has 

previously acknowledged the use of 

‘‘adaptive management’’ conditions in 

prior guidance, see, e.g., 2010 

Handbook, at 32, and will explore the 

development of other guidance on this 

topic in the future. EPA requests 

comment on whether it should define in 

more detail—as it did in the 2020 

Rule—what information should be 

included in support of a certification 

condition and examples of such 

information (e.g., statutory and 

regulatory citations). 

Third, EPA is proposing that any 

denial of certification shall include a 

statement explaining why the certifying 

authority cannot certify that the 

proposed activity as a whole will 

comply with water quality 

requirements. Although the 1971 Rule 

did not define the elements of a 

decision to deny certification, this 

concept was introduced in the 2020 

Rule. The proposed requirements for a 

denial of certification are similar to the 

requirements in the 2020 Rule. 

However, the Agency is not proposing 

to retain the 2020 Rule requirements to 

identify the specific water quality 

requirements with which the project 

will not comply nor require the 

certifying authority to describe the 

missing data or information that would 

be necessary in instances where the 

denial is due to insufficient information. 

See 40 CFR 121.7(e). Rather, EPA’s few 

relevant regulatory requirements 

anticipate that certifying authorities will 

work with project proponents and 

Federal agencies to determine what 

information would be most useful. 

Additionally, EPA is not proposing to 

distinguish between certification 

decisions based on an individual or a 

general license or permit. Although EPA 

took this approach in the 2020 Rule, 

EPA finds that the few relevant 

proposed regulatory requirements apply 

to a denial of certification regardless of 

the nature of the license or permit. EPA 

does not expect this to be a burdensome 

requirement for certifying authorities. 

As a practical matter, certifying 

authorities will likely already have 

developed and considered such 

information as part of their decisionmaking process and included it in the 

record to substantiate their decision. 


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Aside from borrowing from their 

decision-making record, EPA expects 

that certifying authorities may be able to 

satisfy this requirement in a number of 

ways. For example, certifying 

authorities could identify specific water 

quality requirements with which the 

activity as a whole will not comply, or 

identify what information about the 

project or potential water quality effects 

is missing or incomplete that led the 

certifying authority to not be able to 

determine whether the activity as a 

whole will comply with water quality 

requirements. This proposal to provide 

at least a succinct explanation for the 

certification denial will provide 

necessary transparency and clarity for 

project proponents and Federal 

agencies. 

Lastly, consistent with the 1971 Rule 

and 2020 Rule, EPA is proposing that 

any express waiver made by a certifying 

authority shall include a statement from 

the certifying authority stating that it 

expressly waives its authority to act on 

a request for certification. As noted 

above, an express waiver indicates only 

that the certifying authority has chosen 

not to act on a request for section 401 

certification. Accordingly, the certifying 

authority only needs to state that it is 

waiving certification and does not need 

to make any statement about why it has 

decided to waive or its assessment of 

the project’s impact on its water quality. 

EPA is also proposing to delete 40 

CFR 124.53(e), which addresses the 

contents of a certification for an EPAissued NPDES permit. The contents 

identified at § 124.53(e) are not 

consistent with the contents identified 

at proposed § 121.7(c) and (d). For 

example, § 124.53(e) requires a citation 

(but not an explanation) for each 

condition of certification, whereas 

proposed § 121.7(d) requires an 

explanation (but not a citation) for each 

condition. Further, § 124.53(e)(1) and 

proposed § 121.7(d)(2)—both of which 

identify what conditions must be 

included in a certification—are distinct. 

Proposed § 121.7(d)(2) incorporates the 

proposal’s concepts of ‘‘the activity as a 

whole’’ and ‘‘water quality 

requirements’’ while § 124.53(e)(1) does 

not. EPA intends for all certification 

decisions, including those on EPAissued NPDES permits, to comply with 

the requirements discussed above and 

proposed at § 121.7. 

EPA is requesting comment on the 

proposed approach described above, 

including whether the Agency should 

include additional or alternative 

requirements for certification actions. 

The Agency is also requesting comment 

on an alternative approach that would 

only require a limited list of contents for 

certification decisions when EPA acts as 

a certifying authority. This alternative 

approach would not delineate any 

specific requirements for certification 

decisions made by any other certifying 

authority. 

G. Federal Agency Review 

The proposed rule confirms the 

Agency’s longstanding position prior to 

the 2020 Rule that Federal agencies may 

review a certification decision only for 

the limited purpose of ensuring that the 

decision meets a handful of facial 

statutory requirements. Specifically, 

EPA is proposing that Federal agencies 

may review a certifying authority’s 

certification decision to determine (1) 

whether the decision clearly indicates 

the nature of the decision (i.e., is it a 

grant, grant with conditions, denial, or 

express waiver), (2) whether the proper 

certifying authority issued the decision, 

(3) whether public notice was provided, 

and (4) whether the decision was issued 

within the reasonable period of time. As 

discussed below, the Agency views this 

Federal agency review role as consistent 

with Agency practice prior to the 2020 

Rule and case law. 

Section 401 does not expressly 

provide a defined role for Federal 

licensing or permitting agencies to 

review certifications or change 

certification conditions. However, the 

Agency has long recognized, both in 

regulation and guidance, some degree of 

appropriate Federal agency review of 

certification decisions. The 1971 Rule 

provides Federal agencies with the 

ability to determine whether a certifying 

authority acted within the reasonable 

period of time. See 40 CFR 121.16(b) 

(2019) (‘‘The certification requirement 

with respect to an application for a 

license or permit shall be waived upon 

. . . Written notification from the 

licensing or permitting agency to the 

Regional Administrator of the failure of 

the State or interstate agency concerned 

to act on such request for certification 

within a reasonable period of time after 

receipt of such request . . . .’’). Prior 

EPA guidance acknowledged that the 

Federal licensing or permitting agency 

may review the procedural requirements 

of a certification decision. 2010 

Handbook, at 32 (rescinded) (citing 

American Rivers, 129 F.3d at 110–111; 

City of Tacoma v. FERC, 460 F.3d 53, 68 

(D.C. Cir. 2006)) (‘‘For example, the 

federal permitting or licensing authority 

may review the procedural requirements 

of [section] 401 certification, including 

whether the proper state or tribe has 

certified, whether the state or tribe 

complied with applicable public notice 

requirements, and whether the 

certification decision was timely.’’). 

However, this guidance also 

acknowledged the limitations of Federal 

agency review and stated that Federal 

agencies cannot pick and choose among 

a certifying authority’s certification 

conditions. Id. at 10 (citing American 

Rivers, 129 F.3d at 110–111). 

Prior Agency guidance relied heavily 

on case law addressing the question of 

Federal agency review. A few courts 

have acknowledged a limited role for 

Federal agencies to ensure that a 

certifying authority meets certain facial 

requirements of section 401. The D.C. 

Circuit has held that section 401(a)(1) 

authorized FERC, as the relevant 

Federal licensing agency, ‘‘to determine 

that the specific certification ‘required 

by [section 401 has] been obtained,’’’ 

because otherwise, ‘‘without that 

certification, FERC lack[ed] authority to 

issue a license.’’ City of Tacoma, 460 

F.3d at 67–68 (‘‘If the question [raised 

to FERC] regarding the state’s section 

401 certification is not the application 

of state water quality standards but 

compliance with the terms of section 

401, then FERC must address it.’’). The 

court did not define what a 

‘‘certification required by this section’’ 

included, but suggested it included at a 

minimum, ‘‘explicit requirement[s] of 

section 401,’’ including that the 

certifying authority provide public 

notice, which was the section 401 

requirement at issue in the case before 

the court. Id. at 68. It is important to 

note that, while the court found that 

FERC had an obligation under the facts 

of that case to confirm the public notice 

requirement was satisfied, the court did 

not frame this requirement as a 

prerequisite in every instance where the 

agency is presented with a certification 

decision. Rather, the court found that 

FERC had to confirm compliance in the 

case before it because public notice had 

been ‘‘called into question.’’ See id. 

In an earlier case, the Second Circuit 

ruled that FERC did not have authority 

to substantively review certification 

conditions to ‘‘decide which conditions 

are within the confines of [section] 

401(d) and which are not.’’ American 

Rivers, 129 F.3d at 107. In reaching this 

conclusion, the court noted that FERC 

nonetheless did have authority to 

determine whether the appropriate 

certifying authority issued the 

certification decision and whether the 

certification decision was issued within 

the reasonable period of time. The court 

explained that, ‘‘[w]hile [FERC] may 

determine whether the proper state has 

issued the certification or whether a 

state has issued a certification within 

the prescribed period, [FERC] does not 

possess a roving mandate to decide that 

substantive aspects of state-imposed 


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conditions are inconsistent with the 

terms of [section] 401.’’ Id. at 110–11. 

Under the 2020 Rule, the Federal 

agency may review a certification to 

confirm that a number of certification 

requirements are met as a prerequisite to 

accepting the certification decision. 85 

FR 42267. Specifically, the 2020 Rule 

relies on City of Tacoma to assert that 

the plain language of section 401 

requires Federal licensing or permitting 

agencies ‘‘to confirm that the state has 

facially satisfied the express 

requirements of section 401.’’ 85 FR 

42267–68 (quoting City of Tacoma, 460 

F.3d at 68). The 2020 Rule requires the 

Federal licensing agency to ensure (1) 

compliance with ‘‘other procedural 

requirements of section 401’’ (which 

included public notice requirements), 

(2) compliance with the reasonable 

period of time, and (3) compliance with 

the rule’s requirements related to 

providing a legal and technical basis 

within the certification document for 

the action taken. The 2020 Rule 

contains little direction to Federal 

agencies about how to ensure that those 

components are met (e.g., how to 

confirm public notice took place), other 

than noting in the preamble that the 

Federal agency’s review role does not 

require the agency to ‘‘make a 

substantive inquiry into the sufficiency 

of the information provided in support 

of a certification, condition, or a 

denial.’’ Id. at 42268. 

This lack of clarity in the 2020 Rule 

has led to stakeholder confusion and 

misunderstanding about the nature of 

the Federal agency’s review (e.g., 

assertions from both Federal agencies 

and states and tribes that the review is 

to be ‘‘substantive’’ in nature). 

Additionally, although the 2020 Rule 

limits Federal agency review to certain 

procedural components, Federal agency 

stakeholders expressed concerns about 

even this responsibility. In this vein, the 

2020 Rule preamble says that ‘‘[i]f a 

federal agency, in its review, determines 

that a certifying authority failed or 

refused to comply with the procedural 

requirements of the Act, including the 

procedural requirements of this final 

rule, the certification action, whether it 

is a grant, grant with conditions, or 

denial, will be waived.’’ Id. at 42266. 

The 2020 Rule takes the same approach 

with review of individual conditions, 

i.e., if a condition does not meet 

procedural requirements, it is waived 

(even though the certification itself 

stands). Id. at 42263. The 2020 Rule 

does not extend Federal agency review 

to more substantive requirements of the 

Act (e.g., whether a certification 

decision was within the scope of 

certification). Id. at 42267. 

In pre-proposal feedback for this rule, 

certifying authorities expressed concern 

over the potential consequences of 

Federal agency review required by the 

2020 Rule. These stakeholders said that, 

contrary to the plain language of the 

statute and legislative history, the 2020 

Rule gives Federal agencies the ability 

to effectively ‘‘veto’’ a state or tribal 

water quality certification, with no 

ability for the certifying authority to fix 

errors or submit additional explanatory 

information. EPA reflected this concern 

in its recent Federal Register document, 

stating that ‘‘EPA is concerned that a 

federal agency’s review may result in a 

state or tribe’s certification or conditions 

being permanently waived as a result of 

nonsubstantive and easily fixed 

procedural concerns identified by the 

federal agency.’’ 86 FR 29543 (June 2, 

2021). 

The following subsections discuss the 

extent of Federal agency review, the 

Federal agency review process, and 

consequences of such review under this 

proposal. 

1. Extent of Federal Agency Review 

The Agency is proposing to reaffirm 

its longstanding interpretation prior to 

the 2020 Rule that Federal agencies may 

review certification decisions only for 

the limited purpose of ensuring 

decisions will meet certain facial 

statutory requirements. Federal agency 

review of such requirements does not 

require a Federal agency to inquire into 

whether the certification is consistent 

with the substantive elements of 

Federal, state, or tribal law. In fact, 

consistent with prior Agency guidance 

and the 2020 Rule, section 401 does not 

authorize Federal agencies to review or 

change the substance of a certification 

(e.g., determine whether the 

certification or its conditions is within 

section 401’s scope of review). See 86 

FR 42268; 2010 Handbook, at 10 

(rescinded). 

Circuit courts have routinely held that 

Federal agencies may not question or 

criticize the substance of a state’s water 

quality certification or conditions, sees, 

e.g., City of Tacoma, 460 F.3d at 67 

(‘‘[The Federal agency’s] role is limited 

to awaiting, and then deferring to, the 

initial decision of the state.’’); American 

Rivers, 129 F.3d at 111 (‘‘[The Federal 

agency] does not possess a roving 

mandate to decide that substantive 

aspects of state-imposed conditions are 

inconsistent with the terms of [section] 

401.’’); U.S. Dept. of Interior v. FERC, 

952 F.2d 538, 548 (D.C. Cir. 1992) 

(‘‘FERC may not alter or reject 

conditions imposed by the states 

through section 401 certificates.’’). 

Courts have also cautioned Federal 

agencies against imposing conditions 

they believe are more stringent than the 

certifying authority’s conditions. See 

Sierra Club v. U.S. Army Corps of 

Eng’rs, 909 F.3d 635, 648 (4th Cir. 2018) 

(‘‘the plain language of the Clean Water 

Act does not authorize the Corps to 

replace a state condition with a 

meaningfully different alternative 

condition, even if the Corps reasonably 

determines that the alternative 

condition is more protective of water 

quality’’); see also Lake Carriers’ Ass’n. 

v. EPA, 652 F.3d 1, 6, 12 (D.C. Cir. 2011) 

(concluding that additional notice and 

comment on state certification 

conditions would have been futile 

because ‘‘the petitioners have failed to 

establish that EPA can alter or reject 

state certification conditions. . . .’’). 

Rather, courts have generally found 

that Federal agencies may review 

certification decisions only to see 

whether the water quality certifications 

satisfy the minimum facial requirements 

of section 401, including whether the 

decision was issued within the 

reasonable period of time, whether 

public notice was provided, and 

whether the proper certifying authority 

issued the decision. The court in City of 

Tacoma found that if the facial public 

notice requirement of section 401 is 

‘‘called into question’’ before the 

Federal agency, the Federal agency must 

determine if it was met. 460 F.3d at 68 

(requiring the Federal agency ‘‘to obtain 

some minimal confirmation of such 

compliance, at least in a case where 

compliance has been called into 

question.’’). 

Therefore, and consistent with the 

case law, EPA is proposing that Federal 

agency review of a certification decision 

is limited to four factors. First, a Federal 

agency may review a certification 

decision to confirm the nature of the 

decision (i.e., whether the certification 

decision is a grant, grant with 

conditions, denial, or express waiver). 

Section 401 requires a project proponent 

to obtain either a certification or waiver 

before the Federal agency may issue the 

license or permit. If a certifying 

authority denies certification, then the 

license or permit may not be issued. The 

Federal agency must determine whether 

‘‘the specific certification ‘required by 

[section 401 has] been obtained,’ ’’ 

because otherwise, ‘‘without that 

certification, [the Federal agency] lacks 

authority to issue a license.’’ Id. at 67– 

68. It is thus reasonable for a Federal 

agency to review a certification decision 

to ensure it understands which action 

the certifying authority took (i.e., grant, 

grant with conditions, deny, or 

expressly waive). 


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Second, a Federal agency may 

confirm that the proper certifying 

authority issued the certification 

decision. Section 401 requires a project 

proponent to seek certification from the 

jurisdiction in which the discharge 

originates or will originate. 33 U.S.C. 

1341(a)(1). Allowing a Federal agency to 

confirm that the proper certifying 

authority—meaning the certifying 

authority for the jurisdiction where the 

discharge originates or will originate— 

has issued certification is consistent 

with case law, American Rivers, 129 

F.3d at 110–11, and prior Agency 

regulations and guidance, 85 FR 42267; 

2010 Handbook, at 10 (rescinded). 

Third, a Federal agency may review a 

certification decision to determine 

whether the certifying authority 

complied with its own established 

procedures for public notice on requests 

for water quality certification. Section 

401 requires a certifying authority to 

provide procedures for public notice, 

and a public hearing where necessary, 

on a certification request. 33 U.S.C. 

1341(a)(1). In City of Tacoma, the court 

held that the Federal agency had a 

statutory obligation to confirm whether 

the certifying authority complied with 

its public notice procedures in issuing 

the certification because compliance 

had been called into question. 460 F.3d 

at 68. ‘‘Otherwise, [the Federal agency] 

has no assurance that the certification 

the state has issued satisfies section 

401.’’ Id. As discussed above, prior 

Agency guidance and regulations have 

recognized this form of Federal agency 

review. See 85 FR 42267; 2010 

Handbook, at 10 (rescinded). 

Lastly, a Federal agency may review 

a certification decision to confirm 

whether it was issued within the 

reasonable period of time. Section 401 

establishes one year as the outer bound 

of the reasonable period of time. 33 

U.S.C. 1341(a)(1); H.R. Rep. No. 91–940, 

at 54–55 (March 24, 1970) (Conf. Rep) 

(adding a timeline for state certification 

‘‘[i]n order to insure that sheer inactivity 

by the State . . . will not frustrate the 

Federal application’’). It is thus 

reasonable for the Federal agency to 

determine whether a certifying authority 

failed to act within the reasonable 

period of time, and this has been the 

Agency’s longstanding position in 

regulation and guidance. See 40 CFR 

121.16(b) (2019); 85 FR 42267; 2010 

Handbook, at 10 (rescinded). 

Additionally, as discussed above, this is 

also consistent with case law on Federal 

agency review. See American Rivers, 

129 F.3d at 110–11 (explaining that 

FERC ‘‘may determine . . . whether a 

state has issued a certification within 

the prescribed period’’); see also Alcoa 

Power Generating, 643 F.3d at 972–73 

(holding that, like the public notice 

requirements at issue in City of Tacoma, 

the issue of whether a certifying 

authority acted upon a certification 

request within the statutory one-year 

period was an issue properly before 

FERC). 

EPA does not find that Federal 

agencies have the authority to review 

other aspects of a certification decision 

for purposes of determining whether a 

‘‘certification required by [section 401] 

has been obtained or has been waived.’’ 

33 U.S.C. 1341(a)(1). EPA’s proposal to 

clearly define the extent of Federal 

agency review in regulatory text is 

found in proposed § 121.9. EPA requests 

comment on its proposed approach, 

including whether section 401 

authorizes other aspects of a 

certification decision to be subject to 

Federal agency review. 

2. Federal Agency Review Process 

This proposed rule also attempts to 

clarify the manner in which Federal 

agency review would occur. Section 401 

does not expressly address what specific 

information certifying authorities must 

include in a certification decision, nor 

does it address the process of Federal 

agency review. While the statute does 

contain important information about the 

identity of the appropriate certifying 

authority, the length of the reasonable 

period of time, and a requirement for 

public notice, it does not prescribe how 

a certifying authority must demonstrate 

compliance with those requirements or 

describe the extent to which they are 

subject to Federal agency review. 

EPA is not proposing to define what 

specific information a certifying 

authority must include in its 

certification decision to demonstrate 

that it has met these four facial elements 

of section 401. Instead, certifying 

authorities may determine how to 

demonstrate compliance in response to 

a Federal agency inquiry about one of 

these aspects of its certification 

decision. Because certifying authorities 

are the entities most familiar with their 

certification process, certifying 

authorities, and not EPA or other 

Federal agencies, are in the best position 

to determine how to demonstrate 

compliance with these four section 401 

facial elements. 

EPA does not anticipate that such 

demonstrations will be burdensome. As 

the court noted in City of Tacoma, 

Federal agencies only need ‘‘to obtain 

some minimal confirmation of such 

compliance.’’ 460 F.3d at 68. For 

example, the certifying authority may 

choose to demonstrate that it provided 

public notice either by including a copy 

of the public notice with the 

certification or by including an 

attestation statement that public notice 

occurred. Similarly, a certifying 

authority may choose to demonstrate 

that it acted within the reasonable 

period of time by providing 

documentation of the date the certifying 

authority received the request for 

certification and documentation of the 

date it furnished the project proponent 

with a decision. A certifying authority 

may also choose to demonstrate that it 

is the proper certifying authority by 

providing location information, such as 

a map, demonstrating the discharge will 

originate in its jurisdiction. This sort of 

documentation should satisfy Federal 

agency review in most instances. 

EPA is requesting comment on its 

proposed approach, including examples 

of how a certifying authority could 

demonstrate that it met the section 401 

facial requirements. In addition, EPA 

requests comment on alternative 

approaches whereby the Agency might 

identify in regulation different elements 

of a certification decision that might be 

appropriate for Federal agency review, 

or whether EPA should defer to Federal 

agencies to define those elements 

appropriate for them to review. 

3. Consequences of Federal Agency 

Review 

The Agency is proposing to clarify the 

consequences of Federal agency review. 

If a Federal agency reviews a section 

401 certification decision and 

determines it was not issued within the 

reasonable period of time, the Federal 

agency may determine that a waiver has 

occurred (or alternatively, may extend 

the reasonable period of time up to the 

one year statutory maximum). If the 

Federal agency determines that the 

statutory one year maximum has passed, 

the Federal agency may determine that 

a waiver has occurred. As discussed in 

section V.G in this preamble, a Federal 

agency may determine that a 

constructive waiver has occurred only if 

a certifying authority fails to take one of 

the four decisions described in this 

proposal within the reasonable period of 

time. Consistent with the 1971 Rule and 

2020 Rule, the Agency is proposing to 

reaffirm that a waiver of certification 

occurs if the certifying authority fails to 

act within the reasonable period of time. 

See 40 CFR 121.9(a)(2)(i), 40 CFR 

121.16(b) (2019). Similar to the 

approach in the 2020 Rule, the Agency 

is proposing to retain regulatory text 

describing how the Federal agency must 

communicate its waiver determination 

to the project proponent and certifying 

authority. See 40 CFR 121.9(c). If a 

Federal agency determines that the 


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48Allowing certifying authorities to remedy 

deficiencies if there is time remaining in the 

reasonable period of time is consistent with EPA’s 

position in the joint memo with the Army 

addressing Corps permits. U.S. EPA and 

Department of the Army, Clean Water Act Section 

401 Certification Implementation Memorandum, at 

6 (August 19, 2021). 

certification decision was not issued 

within the reasonable period of time, 

the Federal agency shall notify the 

certifying authority and project 

proponent in writing that a waiver has 

occurred. Similar to the 2020 Rule, see 

§ 121.9(d), the Agency is also proposing 

to retain regulatory text that clarifies 

that such notification from the Federal 

agency satisfies the project proponent’s 

obligations under section 401. 

Consistent with this approach, EPA is 

also proposing targeted conforming 

revisions to its part 124 and part 122 

regulations, where these regulations 

allow EPA to find that a certifying 

authority waived its right to certify or 

waived a certification condition for 

reasons other than those specified in 

proposed § 121.8 (failure to act on a 

request for certification within the 

reasonable period of time). EPA is 

proposing to delete 40 CFR 124.53(e), 

which allows EPA to waive certification 

conditions that do not meet the 

requirements of § 124.53(e)(2) or (3). 

EPA is also proposing to delete 

§ 124.53(e) because its approach to the 

contents of certification differs from 

proposed § 121.7, as explained in at the 

end of preamble section V.F.4. EPA is 

also proposing to revise 40 CFR 

124.55(c), which allows EPA to waive 

certification conditions or denials that 

are based on State law allowing a less 

stringent permit condition. EPA is 

proposing to delete the second sentence 

of § 124.55(c), which allows EPA to 

waive a certification denial or 

condition, but the first sentence would 

not be affected by this proposal. EPA is 

proposing to revise 40 CFR 122.44(d)(3), 

which allows EPA to waive 

certifications that are stayed by a court 

or state board under certain 

circumstances. EPA proposing to delete 

the second and third sentences, which 

concern certification waiver. EPA 

intends that certification waivers for 

EPA-issued NPDES permits be governed 

by the certification waiver requirements 

in part 121. 

The Agency recognizes that a 

constructive waiver is a severe 

consequence; as discussed in section 

V.G in this preamble, a waiver means 

the Federal license or permit may 

proceed without any input from the 

certifying authority. EPA encourages 

Federal agencies, project proponents, 

and certifying authorities to 

communicate early and often to prevent 

inadvertent waivers due to passage of 

time. If Federal agency review reveals 

that a certifying authority has 

inadvertently failed to act within the 

reasonable period of time, EPA 

encourages Federal licensing and 

permitting agencies to extend the 

reasonable period of time (provided it 

does not exceed one year from the 

receipt of the certification request) to 

allow certifying authorities an 

opportunity to make a certification 

decision.48 Providing this opportunity 

would be consistent with cooperative 

federalism principles central to section 

401 while respecting the statute’s clear 

direction that the reasonable period of 

time may not exceed one year from the 

receipt of a request for certification. 33 

U.S.C. 1341(a)(1). 

Aside from providing that a waiver 

occurs if the certifying authority does 

not act within the reasonable period of 

time, the statute does not provide 

direction on what should occur if a 

certifying authority fails to meet the 

other facial requirements in section 401. 

As discussed earlier, the legislative 

history indicates that Congress added 

the waiver provision to prevent ‘‘sheer 

inactivity’’ by a certifying authority 

from holding up the licensing or 

permitting process. See H.R. Rep. No. 

91–940, at 54–55 (March 24, 1970) 

(Conf. Report). Consistent with the 

statutory language and legislative 

history, EPA believes that Congress 

intended such an extreme outcome only 

in situations where certifying 

authorities fail or refuse to make a 

decision, and not where a certifying 

authority, otherwise attempting to make 

a timely decision, fails to comply with 

other facial requirements of section 401. 

Case law also provides support for the 

Federal agency asking the certifying 

authority to either demonstrate that its 

decision meets section 401’s facial 

requirements or remedy the situation 

instead of deeming any such failure an 

automatic waiver of certification. See 

City of Tacoma, 460 F.3d at 68–69 

(‘‘FERC should seek an affirmation from 

Ecology that it complied with state law 

notice requirements when it issued its 

water quality certification or, if it did 

not, that it has done so in response to 

this decision.’’). 

If a Federal agency determines that a 

section 401 certification decision does 

not meet the certifying authority’s 

public notice procedures, pursuant to 

proposed § 121.9(b), the Federal agency 

must notify the certifying authority of 

the deficiency and provide the 

certifying authority with an opportunity 

to remedy the noted deficiency. If 

necessary, the Federal agency must 

extend the reasonable period of time to 

provide the certifying authority with an 

opportunity to remedy the deficiency, 

but the reasonable period of time may 

not exceed one year from the receipt of 

the certification request. 

If Federal agency review reveals that 

the wrong certifying authority issued 

the certification, EPA recommends that 

the Federal agency notify the project 

proponent that it must seek certification 

from the appropriate certifying authority 

before the Federal license or permit may 

be issued. As noted above, section 401 

requires a project proponent to seek 

certification from the jurisdiction in 

which the discharge originates or will 

originate. 33 U.S.C. 1341(a)(1). 

Therefore, it is incumbent on the project 

proponent to identify and seek 

certification or waiver from the proper 

certifying authority before it may obtain 

a Federal license or permit. 

If a Federal agency determines that a 

section 401 certification decision does 

not clearly indicate whether it is a grant, 

grant with conditions, denial, or express 

waiver, pursuant to proposed § 121.9(b), 

the Federal agency must notify the 

certifying authority of the deficiency 

and provide the certifying authority 

with an opportunity to remedy it. Under 

EPA’s proposed rulemaking, if 

necessary, the Federal agency must 

extend the reasonable period of time to 

provide the certifying authority with an 

opportunity to remedy the deficiency, 

subject to the caveat that the reasonable 

period of time may not exceed one year 

from the receipt of the certification 

request. EPA expects that a certifying 

authority would be able to clarify its 

intended decision for the Federal 

agency upon request. 

EPA is requesting comment on 

whether the Agency should develop 

procedures regarding how a certifying 

authority should respond to a Federal 

agency’s notice regarding deficiencies in 

its certification decision. For example, 

should EPA provide a timeframe for the 

certifying authority to affirmatively 

respond to the Federal agency’s notice 

of deficiency and provide a justification 

for any extension to the reasonable 

period of time (e.g., length of the public 

notice period)? EPA also is requesting 

comment on all aspects of its proposed 

rulemaking regarding Federal agency 

review and its understanding of the 

potential consequences of Federal 

agency review. 

H. EPA’s Roles Under Section 401 

Section 401 identifies a number of 

specific roles for EPA. First, EPA acts as 

the certifying authority on behalf of 

states or tribes that do not have 

‘‘authority to give such certification.’’ 33 


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49These appear to include Denali National Park 

and Preserve, Yellowstone National Park, Yosemite 

National Park, Sequoia National Park, Crater Lake 

National Park, Glacier National Park, Rocky 

Mountain National Park, Mesa Verde National Park, 

Lassen Volcanic National Park, Great Smoky 

Mountains National Park, Mammoth Cave National 

Park, and Isle Royale National Park. 

U.S.C. 1341(a)(1). Second, EPA is 

responsible for notifying other states or 

authorized tribes that may be affected by 

a discharge from a federally licensed or 

permitted activity, and where required, 

for providing an evaluation and 

recommendations on such other state or 

authorized tribe’s objections. Id. at 

1341(a)(2). Lastly, EPA is responsible for 

providing technical assistance upon 

request from Federal agencies, certifying 

authorities, or Federal license or permit 

applicants. Id. at 1341(b). This section 

focuses on EPA’s role as a certifying 

authority and in providing technical 

assistance. EPA’s role under section 

401(a)(2) is discussed in detail in 

section V.K in this preamble. 

1. EPA’s Role as a Certifying Authority 

EPA is proposing to revise the part 

121 regulations to provide greater clarity 

about EPA’s process when it acts as the 

certifying authority. Pursuant to section 

401 of the CWA, EPA acts as the 

certifying authority on behalf of states or 

tribes that do not have ‘‘authority to give 

such certification.’’ 33 U.S.C. 1341(a)(1). 

The 1971 Rule required EPA to provide 

certification in two scenarios: first, 

where EPA promulgated standards 

pursuant to section 10(c)(2) of the 1970 

Water Quality Improvement Act; and 

second, where water quality standards 

have been established, but no state or 

interstate agency has authority to 

provide certification. 40 CFR 121.21 

(2019). As discussed in section IV.A in 

this preamble, the 1971 Rule was 

promulgated prior to the enactment of 

the 1972 CWA amendments; as a result, 

the language in the 1971 Rule regarding 

EPA as a certifying authority does not 

reflect the amended text of section 401. 

In the 2020 Rule, EPA updated this 

provision with new regulatory text that 

indicates that EPA provides certification 

consistent with the 1972 statutory text 

and notes that EPA is required to 

comply with part 121 when it acts as a 

certifying authority. 40 CFR 121.13. 

EPA is proposing minor, conforming 

modifications to current § 121.13(a) and 

(b). Specifically, consistent with the 

language in section 401(a)(1), the 

Agency is proposing to reaffirm that 

EPA is required to provide certification 

where no state, tribe, or interstate 

agency has the authority to provide 

certification or a waiver. See proposed 

§ 121.16(a). The Agency is also 

proposing to reaffirm that, when it acts 

as a certifying authority, EPA must 

comply with both section 401 and the 

proposed requirements in part 121. See 

proposed § 121.16(b). Alternatively, 

EPA is requesting comment on whether 

it needs to clarify in regulatory text the 

circumstances under which it would act 

as a certifying authority, or whether the 

statutory language is clear enough that 

it ‘‘speaks for itself.’’ 

Currently, EPA acts as the certifying 

authority in two scenarios: (1) On behalf 

of tribes without ‘‘treatment in a similar 

manner as a state’’ (TAS) and (2) on 

lands of exclusive Federal jurisdiction. 

In the first scenario, if a tribe does not 

obtain TAS for section 401, EPA acts as 

the certifying agency for any federally 

licensed or permitted activity that may 

result in a discharge that originates in 

Indian country lands. As discussed in 

section V.L in this preamble, a tribe may 

obtain TAS for section 401 for the 

purpose of issuing water quality 

certifications. When EPA certifies on 

behalf of tribes without TAS, its actions 

as a certifying authority are informed by 

its tribal policies and the Federal trust 

responsibility to federally recognized 

tribes. EPA’s 1984 Indian Policy, 

recently reaffirmed by EPA 

Administrator Regan, recognizes the 

importance of coordinating and working 

with tribes when EPA makes decisions 

and manages environmental programs 

that affect Indian country. See EPA 

Policy for the Administration of 

Environmental Programs on Indian 

Reservations (November 8, 1984), 

available at https://www.epa.gov/sites/ 

default/files/2015-04/documents/ 

indian-policy-84.pdf; see also 

Memorandum from Michael S. Regan to 

All EPA Employees, Reaffirmation of 

the U.S. Environmental Protection 

Agency’s Indian Policy (September 30, 

2021), available at https://www.epa.gov/ 

system/files/documents/2021-09/oita21-000-6427.pdf. This includes 

coordinating and working with tribes on 

whose behalf EPA reviews and acts 

upon requests for certification on 

federally licensed or permitted projects. 

In the second scenario, EPA acts as 

the certifying authority in situations 

where the Federal Government has 

exclusive jurisdiction over certain 

lands. Exclusive Federal jurisdiction is 

obtained in multiple ways, including (1) 

where the Federal Government 

purchases land with state consent to 

jurisdiction, consistent with article 1, 

section 8, clause 17 of the U.S. 

Constitution; (2) where a state chooses 

to cede jurisdiction to the Federal 

Government; and (3) where the Federal 

Government reserved jurisdiction upon 

granting statehood. See Collins v. 

Yosemite Park Co., 304 U.S. 518, 529– 

30 (1938); James v. Dravo Contracting 

Co., 302 U.S. 134, 141–42 (1937); 

Surplus Trading Company v. Cook, 281 

U.S. 647, 650–52 (1930); Fort 

Leavenworth Railroad Company v. 

Lowe, 114 U.S. 525, 527 (1895). It is 

important to note that lands of exclusive 

Federal jurisdiction do not include 

lands where the Federal Government 

and a state, tribe, or interstate agency 

share jurisdictional responsibility. 

While 16 U.S.C. Chapter 1 identifies 

multiple national parks as lands of 

exclusive Federal jurisdiction,49 EPA 

does not maintain a map or list 

delineating all lands of exclusive 

Federal jurisdiction. In the preamble to 

the 2020 Rule, EPA noted that the 

number and extent of lands under 

exclusive Federal jurisdiction are 

subject to change and stated that it is the 

obligation of the project proponent to 

determine the identity of the 

appropriate certifying authority when 

seeking section 401 certification. 85 FR 

42270 (July 13, 2020). Because such 

status is subject to change, EPA is not 

proposing to provide an exclusive list of 

lands subject to exclusive Federal 

jurisdiction. However, EPA is 

considering development of guidance to 

help stakeholders identify such areas. 

EPA is requesting comment on whether 

it should attempt to provide a list of 

lands subject to exclusive Federal 

jurisdiction or whether there are other 

examples or categories of lands of 

exclusive Federal jurisdiction that EPA 

should recognize, aside from the 

national parks identified in 16 U.S.C. 

Chapter 1, as lands of exclusive Federal 

jurisdiction. 

Consistent with the 2020 Rule, under 

this proposal, when EPA acts as the 

certifying authority, it is subject to the 

same requirements as other certifying 

authorities (e.g., reasonable period of 

time to act on a request for certification) 

under section 401 and 40 CFR 121. In 

contrast to the 2020 Rule, this proposal 

does not retain the request for 

additional information provisions 

included in § 121.14 when EPA is the 

certifying authority. Under the 2020 

Rule, EPA introduced limits on EPA’s 

ability, as a certifying authority, to 

request additional information from a 

project proponent once the reasonable 

period of time began. These provisions 

include a requirement that EPA must 

initially request additional information 

within 30 days of receiving a request for 

certification and limitations on the type 

and scope of additional information 

EPA may request. 40 CFR 121.14(a)–(c). 

Additionally, the 2020 Rule requires 

EPA to provide the project proponent 

with a deadline to respond to request for 


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50EPA’s Technical Guidance for Assessing 

Environmental Justice in Regulatory Action 

identifies population groups of concern including 

indigenous peoples and group as those identified 

under E.O. 12898 (minority and low-income 

populations) as well as sub-populations that may be 

at greater risk for experiencing adverse effects, 

including those that rely on fish/wildlife for 

subsistence, age groups, and gender groups (p. 6). 

additional information and 

acknowledges that a project proponent’s 

failure to provide additional 

information neither extends the 

reasonable period of time, nor prevents 

EPA from acting on the request for 

certification. Id. at § 121.14(d)–(e). 

EPA proposes to remove § 121.14 in 

its entirety because it finds these 

provisions not conducive to an efficient 

certification process for several reasons. 

The preamble to the 2020 Rule stated 

that it was ‘‘reasonable to assume that 

Congress intended some appropriate 

limits be placed on the timing and 

nature of such requests [for additional 

information]’’ because of the 

overarching statutory timeline. 85 FR 

42271. Yet, neither the 2020 Rule 

preamble nor its regulatory text 

articulates how a 30-day limitation on 

EPA’s initial request for additional 

information is compelled or even 

consistent with the statutory limitation 

that a certifying authority must act 

within a reasonable period of time. 

Although it is ideal for EPA to have 

relevant information to inform its 

analysis early in the reasonable period 

of time, various questions or needs may 

arise later in the review process that are 

critical to EPA acting on a request for 

certification. There is nothing in the 

statutory language that compels or even 

suggests that EPA should have a limited 

ability to use the reasonable period of 

time to request additional information 

to evaluate a request for certification 

and make a fully informed decision. If 

the Agency is limited in its ability to 

request additional information to inform 

its decision, it may need to deny a 

request for certification instead of 

utilizing the additional information to 

possibly grant certification. Such an 

outcome would unnecessarily impede 

the Federal license or permitting 

process. 

The current regulatory language also 

unnecessarily injects ambiguity into the 

certification process. Section 121.14(b) 

limits requests for additional 

information to that which is ‘‘directly 

related to the discharge’’, while 

§ 121.14(c) limits requests only to 

information than can be ‘‘collected or 

generated within the reasonable period 

of time.’’ Yet neither phrase is defined 

nor explained in the preamble or 

regulatory text to the 2020 Rule which 

introduces uncertainty into what kind of 

information EPA could actually request. 

Furthermore, the statutory language and 

this proposal already place a number of 

limitations on all certifying authority 

decisions. As proposed in § 121.7(b), all 

certifying authorities, including EPA, 

must act within the reasonable period of 

time and within the scope of 

certification. EPA finds that these 

proposed regulatory requirements are 

sufficient to ensure the Agency will act 

on requests for certification in a timely 

and appropriate manner. 

Consistent with the Agency’s proposal 

to remove the aforementioned 

limitations on EPA’s ability to request 

additional information, EPA is also 

proposing to remove the provisions at 

§ 121.14(d) and (e), which discuss how 

EPA and project proponents must 

respond to requests for additional 

information or lack thereof. The Agency 

is requesting comment on whether EPA 

should provide, either through guidance 

or in regulation, its expectations 

regarding communication with project 

proponents when EPA is a certifying 

authority. 

EPA is proposing to retain and update 

the provision regarding the certification 

public notice and hearing process when 

EPA is the certifying authority, 

currently located at § 121.15. The 

statutory language of section 401(a)(1) 

requires states and interstate agencies to 

establish procedures for public notice 

and hearings. The D.C. Circuit has held 

that certifying authorities have an 

obligation to provide public notice on 

certification requests. See City of 

Tacoma, 460 F.3d at 67–68. The 1971 

Rule stated that EPA could provide 

public notice either by mailing notice to 

state and local authorities, state agencies 

responsible for water quality 

improvement, and ‘‘other parties known 

to be interested in the matter’’ 

(including adjacent property owners 

and conservation organizations), or, if 

mailed notice is deemed 

‘‘impracticable,’’ by publishing notice in 

a newspaper of general circulation in 

the area where the activity is proposed. 

40 CFR 121.23 (2019). With regard to 

hearings, the 1971 Rule provided that 

the Regional Administrator with 

oversight for the area of the proposed 

project has discretion to determine that 

a hearing is ‘‘necessary or appropriate,’’ 

and that ‘‘[a]ll interested and affected 

parties’’ would have reasonable 

opportunity to present evidence and 

testimony at such hearings. Id. EPA 

updated this provision in the 2020 Rule 

to expand the scope of possible parties 

that may receive notice to avoid 

unintentionally narrowing the list of 

potentially interested parties. 85 FR 

42271. Additionally, under the 2020 

Rule, EPA has placed a timeframe on 

when the Agency must provide public 

notice following receipt of a 

certification request and retained 

discretion to provide for a public 

hearing as necessary or appropriate. Id; 

See 40 CFR 121.15. 

In proposed § 121.17, EPA is 

proposing to retain the public notice 

provision from the 2020 Rule with 

revisions to facilitate participation by 

the broadest number of potentially 

interested stakeholders and clarify that 

following such public notice, the 

Administrator shall provide an 

opportunity for public comment. The 

1971 Rule allowed the Agency to either 

provide notice to a list of possible 

interested parties through mail, 

including adjacent property owners and 

heads of state agencies responsible for 

water quality improvement, or provide 

notice in a ‘‘newspaper of general 

circulation in the area in which the 

activity is proposed to be conducted.’’ 

40 CFR 121.23 (2019). As mentioned 

previously, the 2020 Rule removed this 

1971 Rule provision that may have 

unintentionally narrowed the list of 

stakeholders who may wish to receive 

notice on projects seeking certification. 

However, the 2020 Rule defines an 

appropriately broad list of potentially 

interested stakeholders (e.g., parties 

known to be interested in the proposed 

project). See 40 CFR 121.15(a). 

Additionally, the 1971 Rule limited the 

means for providing public notice to 

mail and newspaper circulation and 

may also unintentionally limit access to 

notice on such projects, particularly as 

stakeholders increasingly rely more on 

digital means of communication. 

Accordingly, EPA is proposing in 

§ 121.17 to provide public notice on 

receipt of a request for certification and 

broader public participation by not 

specifying the particular manner(s) in 

which that notice will occur. Aligning 

with the commitment to empower 

communities, protect public health and 

the environment, and advance 

environmental justice in Executive 

Orders 13990 and 12898, the proposal 

allows for outreach designed to reach all 

potentially interested stakeholders, 

including population groups of concern 

(e.g., minority and low-income 

populations as specified in Executive 

Order 12898 and indigenous peoples, as 

identified in EPA technical guidance 50

as a population group of concern. The 

Agency encourages doing so by using all 

appropriate means and methods. This 

proposed approach will allow EPA 

greater flexibility to address on a caseby-case basis specific issues regarding 


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51The Agency also finalized and published the 

fiscal year (FY) 2022–2026 EPA Strategic Plan in 

March 2022, which includes new environmental 

justice strategic goals and emphasis to be embedded 

in all EPA work. See https://www.epa.gov/ 

planandbudget/strategicplan. 

notice, such as broadband access issues 

and requirements for regional 

publications. Additionally, EPA is not 

proposing to provide in regulatory text 

an exhaustive list or examples of 

potentially interested parties to avoid 

unintentionally excluding some 

interested stakeholders on that list. EPA 

generally believes those stakeholders to 

whom it is appropriate to provide 

public notice may include state, tribal, 

county, and municipal authorities, 

heads of state agencies responsible for 

water quality, adjacent property owners, 

and conservation organizations. EPA is 

requesting comment on whether it 

should specify in regulatory text a list 

of stakeholders to whom notice of a 

certification request should be given. 

Second, EPA is proposing to provide 

public notice within 20 days following 

receipt of a certification request. The 

1971 Rule did not set a time frame for 

EPA’s public notice after receiving a 

certification request. In contrast, the 

2020 Rule states that EPA would 

provide public notice 20 days from 

receipt of a certification request. In 

EPA’s view, continuing to provide a 

time frame for EPA’s issuance of public 

notice following a receipt of a 

certification request will contribute to 

better accountability, transparency, and 

certainty with respect to EPA’s handling 

of certification requests. Generally, EPA 

views it will be able to provide public 

notice within the proposed timeframe. 

EPA finalized an identical timeframe 

under the 2020 Rule, which it has been 

able to meet without difficulty in most 

instances. EPA is requesting comment 

on whether this 20-day time frame is 

reasonable, whether EPA should 

provide notice sooner or later, or 

whether it is even necessary to provide 

a time frame in regulatory text. 

EPA is proposing that once the 

Administrator provides public notice on 

receipt of a request for certification, the 

Administrator must provide an 

opportunity for public comment. EPA is 

not proposing to define the length of the 

public comment period. Rather, EPA 

believes the appropriate timeframe for 

comment is more appropriately 

determined on a case-by-case basis, 

considering project-specific 

characteristics. In general, EPA 

anticipates a 30-day comment period; 

however, comment periods as short as 

15 days or as long as 60 days may be 

warranted in some cases, based on the 

nature of the project. 

EPA may also hold a public hearing 

after it provides public notice on receipt 

of a request for certification. EPA is 

proposing to retain with minor 

modifications the public hearing 

provision currently located at 

§ 121.15(b). For context, the 1971 Rule 

provided that the Regional 

Administrator may hold a public 

hearing at their discretion. 40 CFR 

121.23 (2019). Although ‘‘[a]ll interested 

and affected parties’’ have the 

opportunity to present evidence and 

testimony at a public hearing, the scope 

of the hearing is limited to the question 

of ‘‘whether to grant or deny 

certification.’’ Id. The 2020 Rule carries 

forward the position that the Agency 

has discretion to determine whether a 

public hearing is necessary or 

appropriate; however, the 2020 Rule 

removes the limitation on the subject 

matter of the public hearing. Consistent 

with the 2020 Rule, under § 121.17(b) of 

this proposal, stakeholder input at 

public hearings may cover any relevant 

subject matter on the proposed project 

to best inform EPA as it makes its 

certification decision. EPA is requesting 

comment on the proposed public 

hearing provision in general. 

The Agency is also providing further 

insight on its plans to incorporate 

environmental justice into its role as a 

certifying authority. As discussed in 

section IV in this preamble, the Agency 

intends for this proposal to address 

essential water quality protection 

policies identified in Executive Order 

13990, including environmental justice. 

In addition to the policy directive from 

Executive Order 13990, other Executive 

orders emphasize the importance of 

advancing environmental justice in 

Federal agency actions. See E.O. 12898, 

59 FR 7629 (February 11, 1994) 

(directing agencies to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority and 

low-income populations in the United 

States), E.O. 14008, 85 FR 7619 (January 

27, 2021) (expanding on the policy 

objectives established in E.O. 12898 and 

directing Federal agencies to develop 

programs, policies, and activities to 

address the disproportionately high and 

adverse human health environmental, 

climate-related and other cumulative 

impacts on vulnerable, historically 

marginalized, and overburdened 

communities, as well as the 

accompanying economic challenges of 

such impacts).51

Consistent with these directives and 

EPA technical guidance, when EPA acts 

as a certifying authority, the Agency 

should consider impacts on minority, 

low-income, indigenous communities 

who disproportionately bear the 

burdens of environmental pollution and 

hazards. In considering impacts from a 

federally licensed or permitted project, 

water quality related impacts on 

population groups of concern are issues 

that fall within the relevant scope of 

analysis and should inform decisionmaking on requests for certification. 

Specifically, the Agency intends to 

consider the extent to which the 

‘‘activity as a whole’’ or any discharge 

may cause water quality-related effects 

with the potential to impact population 

groups of concern. Additionally, as 

discussed above, the Agency finds that 

broadening the public notice provision 

will provide communities seeking to 

advance environmental justice with 

greater opportunities to inform the 

certification process. The Agency 

invites comment on ways the Agency 

can further incorporate environmental 

justice and related concerns into its 

certification process, including whether 

the Agency should develop any 

regulatory text to this effect. 

2. EPA’s Role as a Technical Advisor 

Section 401(b) provides certifying 

authorities, project proponents, and 

Federal agencies with the ability to ask 

EPA for technical advice on applicable 

effluent limitations, or other limitations, 

standards, regulations, or requirements, 

or water quality criteria, and any 

methods to comply with such 

limitations, standards, regulations, 

requirements, or criteria. See also H.R. 

Rep. No. 92–911, at 124 (1972) (‘‘The 

Administrator may perform services of a 

technical nature, such as furnishing 

information or commenting on methods 

to comply with limitations, standards, 

regulations, requirements, or criteria, 

but only upon the request of a State, 

interstate agency, or Federal agency.’’). 

The 1971 Rule acknowledged this role 

but limited it to provision of technical 

advice on water quality standards. 40 

CFR 121.30 (2019). In the 2020 Rule, the 

Agency modified this provision to 

expand the scope of technical advice 

and assistance EPA might provide to 

better align with the statutory text. 85 

FR 42274–75 (July 13, 2020). 

Therefore, consistent with the scope 

of section 401(b), EPA is proposing to 

revise the regulatory text currently at 

§ 121.16 to reflect the statutory text 

more directly. Under this proposal, EPA 

shall provide technical advice, upon 

request by a Federal agency, certifying 

authority, or project proponent, on (1) 

applicable effluent limitations, or other 

limitations, standards (including water 


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52See discussion of reasonable period of time in 

section V.D in this preamble regarding extensions 

of the reasonable period of time, not to exceed one 

year from receipt of the request for certification. 

quality standards such as water quality 

criteria), regulations, or requirements, 

and (2) any methods to comply with 

such limitations, standards, regulations, 

or requirements. See proposed § 121.18. 

Federal agencies, certifying authorities, 

and project proponents may request 

EPA’s technical assistance at any point 

in the certification process. 

EPA does not intend this proposal to 

give EPA the authority to make 

certification decisions for states and 

authorized tribes, or to independently 

review state or tribal certifications or 

certification requests. See H.R. Rep. 92– 

911, at 124 (1972) (‘‘The Committee 

notes that a similar provision in the 

1970 Act has been interpreted to 

provide authority to the Administrator 

to independently review all State 

certifications. This was not the 

Committee’s intent. The Administrator 

may perform services of a technical 

nature, such as furnishing information 

or commenting on methods to comply 

with limitations, standards, regulations, 

requirements or criteria, but only upon 

request of a State, interstate agency or 

Federal agency.’’). Nor does the Agency 

consider its role under section 401(b) to 

include providing monetary or financial 

support to certifying authorities in 

implementing their section 401 

programs. The Agency observes that 

there are other means for certifying 

authorities to seek financial assistance 

for their water quality certification 

programs (e.g., CWA section 106 grants). 

The Agency requests comments on 

whether any additional procedural steps 

should be described in regulatory text, 

such as the manner in which certifying 

authorities, Federal agencies, and 

project proponents may request 

technical assistance. 

I. Modifications 

The Agency is proposing to 

reintroduce a certification modifications 

provision. Prior to the 2020 Rule, the 

Agency’s longstanding 1971 Rule 

allowed certification modifications to 

occur after a certification is issued, 

provided the certifying authority, 

Federal agency, and the EPA Regional 

Administrator agree to the modification. 

40 CFR 121.2(b) (2019). In response to 

stakeholder recommendations and preproposal input to allow certification 

modifications, the Agency is proposing 

a process similar to the 1971 Rule that 

allows a certifying authority to modify 

a certification after reaching an 

agreement to do so with the Federal 

licensing or permitting agency (but not 

EPA). 

CWA section 401 does not expressly 

authorize or prohibit modifications of 

certifications; nor does it preclude the 

certifying authority from participating 

in the licensing or permitting process 

after the issuance of a certification. See 

33 U.S.C. 1341(a)(3)–(a)(5). 

In a significant change from prior 

practice, the 2020 Rule removes the 

1971 Rule’s modification provision in 

its entirety and shifts the obligation to 

define when certification modifications 

are allowed to the Federal licensing or 

permitting agency. 85 FR 42278 (July 13, 

2020). However, the 2020 Rule does not 

interpret the statutory silence in section 

401 as prohibiting all modifications. 

Rather, the 2020 Rule preamble asserts 

that section 401 does not provide EPA 

an oversight role in the modification 

process or authorize ‘‘unilateral’’ 

modifications by certifying authorities. 

Id. The 2020 Rule preamble 

acknowledges that certification 

modifications could occur through other 

mechanisms (e.g., as provided in other 

Federal regulations), and encourages 

Federal agencies to establish procedures 

in regulation ‘‘to clarify how 

modifications would be handled in 

these specific scenarios.’’ Id. at 42279. 

Beyond modifications to existing 

certifications, the 2020 Rule preamble 

also suggests there might be 

circumstances that warrant the 

submission of a new request for 

certification, such as ‘‘if certain 

elements of the proposed project (e.g., 

the location of the project or the nature 

of any potential discharge that may 

result) change materially after a project 

proponent submits a certification 

request.’’ Id. at 42247. The Agency 

declined to identify in the 2020 Rule 

itself specific circumstances that might 

warrant the submission of a new 

certification request. After promulgation 

of the 2020 Rule, the Agency did not 

issue any further guidance on which 

situations warranted a new certification 

request (as opposed to modification of 

the existing certification through other 

Federal agency processes). 

In its 2021 Federal Register 

document, EPA expressed concern ‘‘that 

the [2020 Rule’s] prohibition of 

modifications may limit the flexibility 

of certifications and permits to adapt to 

changing circumstances.’’ 86 FR 29544. 

Stakeholders have expressed similar 

concerns, noting that minor changes 

may occur in the project that may not 

rise to a level that requires a new 

certification (e.g., needing to extend the 

certification’s ‘‘expiration’’ date to 

match a permit extension, or shifting the 

certified ‘‘work window’’ to reduce the 

amount of work occurring during highflow periods), but may be significant 

enough to warrant a modification of the 

certification. During pre-proposal 

outreach, certifying authorities, project 

proponents, and non-governmental 

organizations expressed support for a 

certification modification process that 

balances transparency and an ability to 

adapt to new information. While some 

project proponents requested flexibility 

to adapt to changing circumstances, 

they noted that any rulemaking should 

limit unilateral actions a certifying 

authority may take to modify a 

certification after issuance. 

In response to stakeholder 

recommendations to allow certification 

modifications, the Agency is proposing 

a process similar to the 1971 Rule that 

allows a certifying authority to modify 

a previously granted certification (with 

or without conditions) after reaching an 

agreement to do so with the Federal 

licensing or permitting agency. See 

proposed § 121.10. 

The proposed approach is also 

consistent with section 401’s temporal 

limitations on when a certifying 

authority may act on a certification 

request. The statute requires a certifying 

authority to act on a request for 

certification within a reasonable period 

of time not to exceed one year. 33 U.S.C. 

1341(a)(1). As discussed in section V.F 

in this preamble, the Agency interprets 

the term ‘‘to act on a request for 

certification’’ to mean the certifying 

authority must make a decision to grant, 

grant with conditions, deny, or 

expressly waive certification. Under this 

proposed rulemaking, a certification 

modification could occur after the 

reasonable period of time in which the 

original certification decision was 

made.52 The Agency does not view 

allowing such modifications as contrary 

to the text of, or Congressional intent 

supporting, the reasonable period of 

time limitation. First, on its face, the 

reasonable period of time limitation 

only applies to the certifying authority’s 

action on the request for certification. 

The statute is silent regarding whether 

it also applies to modifications. Second, 

in imposing the reasonable period of 

time limitation, Congress was concerned 

by the potential for the certifying 

authority’s ‘‘sheer inactivity’’ to delay 

the project. See H.R. Rep. 92–911, at 122 

(1972). That concern is not present with 

modifications because the certifying 

authority will have already acted on the 

request. Moreover, the Agency’s 

proposal requires that the Federal 

agency also agree to initiate the 

modification process. 

EPA intends that, as used here, a 

modification means a change to an 


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53See section V.H in this preamble discussing 

EPA’s specific roles identified in section 401, 

including acting as a certifying authority on behalf 

of jurisdictions lacking authority, notifying other 

jurisdictions where their water may be affected by 

a discharge from another jurisdiction, and 

providing technical assistance upon request. 

54See 33 U.S.C. 1341(a)(3)–(a)(4); Keating v. 

Federal Energy Regulatory Comm’n, 927 F.2d 616, 

621–22 (D.C. Cir.1991) (summarizing section 

401(a)(3)); see also 115 Cong. Rec. 9257, 9268–9269 

(April 16, 1969) (discussing a hypothetical need for 

a state to take another look at a previously certified 

federally licensed or permitted activity where 

circumstances change between the issuance of the 

construction permit and the issuance of the 

operation permit). 

55See section V.F for further discussion on the 

importance of certification conditions and adaptive 

management, particularly where future water 

quality-related impacts may occur due to climate 

change or other events. 

element or portion of a certification or 

its conditions; it does not mean the 

wholesale reversal of a certification 

decision. For example, if a certifying 

authority has previously waived 

certification, that waiver may not be 

modified because there would be no 

‘‘certification’’ to modify. Thus, a 

certifying authority may not ‘‘modify’’ a 

waiver by changing it into a grant, a 

grant with conditions, or a denial. 

Similarly, a denial of certification 

cannot be modified into a grant (with or 

without conditions) of certification. 

Furthermore, under this proposed 

rulemaking, a previously granted 

certification (with or without 

conditions) cannot be converted into a 

waiver or denial of certification because 

EPA considers a modification to be a 

change to an element or portion of a 

certification, not a reconsideration of 

the decision whether to certify. 

Constraining certifying authorities from 

fundamentally changing their 

certification action (e.g., changing a 

grant into a denial or vice versa) through 

a modification process recognizes 

reliance interests and promotes 

regulatory certainty. Further, EPA has 

concerns that changing the fundamental 

nature of the certification action (e.g., 

change a grant, denial, or waiver to 

something entirely different) may be 

inconsistent with the Congressional 

admonition to act on a certification 

request within the statutory reasonable 

period of time. 

The Agency is proposing that the 

ability to modify a certification be 

subject to two further limitations. First, 

similar to the 1971 Rule, the certifying 

authority and the Federal agency must 

agree in writing that a modification 

should be made. Second, the certifying 

authority may modify only those 

portions of the certification that the two 

parties agree should be modified. Both 

of these limitations are discussed below. 

First, EPA is proposing that a 

modification may only occur where a 

Federal agency and certifying authority 

agree in writing that the certification 

should be modified. The parties would 

have to agree that one or another part of 

the certification should be modified; 

they would not have to agree to the 

specific language of such modification. 

Unlike the 1971 Rule, the Agency is not 

proposing to include EPA in the 

certification modification process where 

the Agency is neither the certifying 

authority nor the Federal licensing or 

permitting agency. As noted in the 2020 

Rule preamble, the statute does not 

expressly provide EPA with a role in the 

modification process, unlike the 

Agency’s other roles under section 

401.53 See 85 FR 42278 (July 13, 2020). 

Additionally, although the 1971 Rule 

provides the Agency with an oversight 

role in the modification process, the 

preamble to the 1971 Rule does not 

explain why the Agency was given such 

a role. See 36 FR 8563–65 (May 8, 1971). 

As such, the Agency does not see the 

need for such a role now, especially 

where EPA was not involved in the 

original certification decision and is not 

the relevant Federal permitting agency. 

EPA is proposing that it should not have 

an oversight role in the certification 

modification process. Consistent with 

the 1971 Rule, the Agency is also not 

proposing to require that the project 

proponent agree to the modification. 

However, the Agency anticipates that 

project proponents may still play some 

part in the modification process (e.g., 

notifying the certifying authority when 

it thinks a modification may be 

appropriate). The Agency is requesting 

comment on whether the regulations 

should provide project proponents with 

a more explicit and expansive role in 

the modification process. 

Because the Agency is reintroducing a 

provision similar to the 1971 Rule’s 

collaborative approach to modifications 

(albeit without EPA’s involvement), the 

proposal would not allow for unilateral 

modifications by certifying authorities. 

This is consistent with the 2020 Rule. 

While the statutory language and 

legislative history appear to 

countenance a role for certifying 

authorities after a certification is issued, 

EPA does not think that role includes 

unilateral action to modify a 

certification.54 Rather, the certifying 

authority’s actions under sections 

401(a)(3)–(a)(4) depend on the existence 

of either a preceding or subsequent 

Federal agency action. See 33 U.S.C. 

1341(a)(3)–(a)(4). The Agency does not 

view conditions in the original 

certification that require ongoing or 

future monitoring or modeling 

activities, including when paired with 

clearly defined adaptive management 

response actions, as unilateral 

certification modifications. Such 

conditions merely put project 

proponents and Federal agencies on 

notice at the time of certification that 

future adaptive management 

implementation actions might be 

needed.55

The Agency is not proposing to define 

the specific circumstances in which a 

Federal agency and certifying authority 

may agree to modify a certification. 

During the pre-proposal input period, 

stakeholders said they need more 

flexibility than the 2020 Rule provides 

for modifications such as correcting 

typographical errors, changing a point of 

contact, or adjusting a certification’s 

expiration date. The Agency invites 

comment on other scenarios or reasons 

for certification modifications. 

The last proposed limitation on a 

certification modification is that the 

certifying authority may only modify 

those portions of the certification that 

the Federal agency agrees may be 

modified. For example, if a Federal 

agency and certifying authority agree 

that a modification is necessary to fix a 

typographical error in the certification, 

the certifying authority may only 

modify that aspect of the certification. 

EPA recommends that the modification 

process be collaborative and that any 

modification be limited by the nature of 

the Federal agency and certifying 

authority’s agreement. However, EPA is 

not suggesting that Federal agencies and 

certifying authorities must collaborate 

on the specific language of the 

certification modification. Rather, EPA’s 

proposal contemplates that the 

certifying authority and the Federal 

agency agreement would identify those 

portions of the certification decision 

that the certifying authority would 

modify, and then the certifying 

authority would be responsible for 

drafting the modification language. The 

Agency is requesting comment on an 

alternative approach whereby the actual 

language of the certification 

modification would be agreed upon by 

both the Federal agency and the 

certifying authority. 

EPA is not proposing to place 

regulatory limitations on the point in 

time that certification modifications 

may occur. Rather, the Agency expects 

this proposal to provide the opportunity 

for certification modification at any 

point after certification issuance, 

provided the Federal agency and the 

certifying authority agree to make the 

modification. EPA is requesting 

comment on this approach. EPA is also 


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56EPA is proposing regulatory text regarding 

Federal agency review of certification decisions. 

See section V.G for further discussion. 

requesting comment on whether, in the 

interest of finality and reliance, there 

should be a temporal limitation on the 

ability to modify certifications. EPA is 

also requesting comment on whether the 

certification modification process 

should account for (1) whether there is 

a Federal license or permit modification 

process already in place and (2) the 

point in time at which a modification 

may be made (e.g., if new information 

supporting a modification arises either 

before or after issuance of the final 

license or permit). 

EPA is also proposing to delete 40 

CFR 124.55(b), which describes the 

circumstances under which a 

modification may be made to a 

certification on an EPA-issued NPDES 

permit. The approach to modifications 

in § 124.55(b) differs significantly from 

the approach proposed at § 121.10. In 

many respects, it is more limited. For 

instance, § 124.55(b) allows 

modifications after permit issuance only 

at the request of the permittee and only 

to the extent necessary to delete any 

conditions invalidated by a court or 

appropriate state board or agency. In 

one way, it is broader because it does 

not require EPA as the Federal 

permitting agency to agree to the 

modification. EPA intends for all 

certification modifications, including 

for EPA-issued NPDES permits to follow 

the approach discussed above and 

proposed at § 121.10. EPA is requesting 

comment on whether it should allow a 

certifying authority to unilaterally 

modify any certification, including but 

not limited to certifications for EPAissued NPDES permits, in circumstances 

under which there is a change in State 

law or regulation upon which a 

certification is based, or if a court of 

competent jurisdiction or appropriate 

state board or agency stays, remands, or 

vacates a certification after license or 

permit issuance. See 40 CFR 124.55(b). 

Given the pre-proposal stakeholder 

input and the Agency’s experience with 

certification modifications, the Agency 

is proposing to reintroduce a 

modification process for certifications, 

provided the certifying authority and 

Federal agency agree that a modification 

is necessary. By proposing this 

collaborative and adaptive process, EPA 

expects that certifying authorities and 

Federal agencies (as well as project 

proponents) will have the flexibility 

they need to adapt to changing 

circumstances or new information, 

while recognizing the need to protect 

reliance interests and promote 

transparency. 

J. Enforcement and Inspections 

This section of the preamble discusses 

a number of issues that have arisen with 

respect to enforcement of the 

requirement to obtain CWA section 401 

certifications and enforcement of 

certification conditions. The Agency is 

addressing these issues in response to 

stakeholder concern and confusion over 

how the 2020 Rule addresses CWA 

section 401 enforcement. EPA is not 

proposing to retain any regulatory text 

regarding enforcement of the 

requirement to obtain section 401 

certification or enforcement of 

certification conditions.56 Nevertheless, 

in light of the significant pre-proposal 

input EPA received on this issue, EPA 

will discuss some of the more common 

concerns that have been identified 

regarding enforcement of the 

requirement to obtain section 401 

certification and enforcement of 

certification conditions and seek further 

comment and input from stakeholders. 

To be clear, EPA is not offering new 

interpretations or positions on most of 

the issues discussed below. EPA does, 

however, invite comment on whether 

any of the interpretations or positions or 

judicial holdings identified below 

should be expressed in regulatory 

language in the final rule, specifically 

the interpretations on the enforceability 

of certification conditions by Federal 

agencies and certifying authorities; the 

judicial holdings regarding the 

application of the CWA citizen suit 

provision to certifications and 

certification conditions; and the 

interpretation of the term ‘‘review’’ in 

CWA section 401(a)(4). 

1. General Enforcement Issues 

Section 401 contains three provisions 

directly relevant to enforcement. First, 

section 401(a)(4) provides certifying 

authorities with an opportunity, prior to 

operation, to inspect a certified federally 

licensed or permitted activity or facility 

that does not require a Federal operating 

license to assure its operation will not 

violate water quality requirement. 33 

U.S.C. 1341(a)(4). If the certifying 

authority determines that the operation 

will violate applicable water quality 

requirements, the Federal agency may 

suspend the license or permit after a 

public hearing. Id. Second, section 

401(a)(5) provides that any certified 

Federal license or permit may be 

‘‘suspended or revoked’’ by the Federal 

agency ‘‘upon the entering of a 

judgment under [the CWA] that such 

facility or activity has been operated in 

violation’’ of the enumerated sections of 

the CWA. Id. at 1341(a)(5). Third, 

section 401(d) provides that certification 

conditions ‘‘shall become a condition on 

any Federal license or permit subject to 

the provisions of this section.’’ Id. at 

1341(d). 

Of these three provisions, the 1971 

Rule only included regulatory text on 

section 401(a)(4), as discussed below in 

the section on inspection authority. The 

1971 Rule did not contain any 

regulatory provisions addressing section 

401(a)(5) or section 401(d) (the latter of 

which was not added to the statute until 

the 1972 amendments). The 2020 Rule 

addresses section 401(d) and section 

401(a)(4). Regarding section 401(d), the 

2020 Rule states that the Federal agency 

‘‘shall be responsible for enforcing 

certification conditions’’ incorporated 

into its license or permit. Regarding 

section 401(a)(4), the 2020 Rule allows 

the pre-operation inspection under 

section 401(a)(4) of all certified projects, 

regardless of whether they had received 

a subsequent Federal operating license 

or permit. See 85 FR 42275–76. The 

2020 Rule preamble also stated that the 

‘‘CWA does not provide an independent 

regulatory enforcement role for 

certifying authorities,’’ id. at 42275, and 

declined to finalize an interpretation 

regarding CWA section 505 citizen suits 

and section 401. Id. at 42277. 

In EPA’s notice of intent to revise the 

2020 Rule, EPA requested stakeholder 

feedback on several enforcement related 

issues, including ‘‘the roles of federal 

agencies and certifying authorities in 

enforcing certification conditions, 

whether the statutory language in CWA 

Section 401 supports certifying 

authority enforcement of certification 

conditions under federal law, whether 

the CWA citizen suit provision applies 

to Section 401, and the rule’s 

interpretation of a certifying authority’s 

inspection opportunities.’’ 86 FR 29543 

(June 2, 2021). In pre-proposal input, 

stakeholders generally agreed that 

Federal agencies could enforce 

certification conditions. However, 

stakeholders expressed concern that the 

2020 Rule prevents states and tribes 

from exercising their independent 

enforcement authority and relied solely 

on Federal agencies to enforce 

certification conditions. Several 

stakeholders expressed concern that 

Federal agencies may not be willing or 

able to enforce certification conditions 

incorporated into their Federal licenses 

or permits due to resource limitations 

(e.g., staff, funding, time). Conversely, a 

few stakeholders asserted that certifying 

authorities did not have an enforcement 

role either under section 401 or any 

other provision of the CWA, including 


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section 505. Other stakeholders asserted 

that section 505 provided for citizen suit 

enforcement of both failures to obtain 

section 401 certification and failure to 

comply with certification conditions. 

EPA observes that this proposal is 

generally focused on interpreting the 

text of section 401 itself, which does not 

directly address state or tribal 

enforcement authority. Consistent with 

the approach taken in the 2020 Rule, 

this rulemaking does not propose 

interpretations of other enforcementrelated sections of the CWA, such as 

section 505. As such, the Agency is not 

inclined to propose regulatory text to 

address state or tribal enforcement 

authority with respect to section 401 or 

the CWA’s citizen suit provision. 

Nevertheless, EPA invites comment on 

whether it should do so in the final rule 

and, if so, what regulatory language it 

should include. 

The Agency views section 401 

certification conditions that are 

incorporated into the Federal license or 

permit as enforceable by Federal 

licensing or permitting agencies. Section 

401(d) provides that certification 

conditions ‘‘shall become a condition on 

any Federal license or permit.’’ Because 

section 401 conditions become 

conditions of the Federal license or 

permit, the Federal agency may enforce 

any such conditions in the same manner 

as any other conditions of its license or 

permit. EPA expressed this 

interpretation in the 2020 Rule, 85 FR 

42275–76, and a decade prior to that 

rulemaking. See, e.g., 2010 Handbook, at 

32 (rescinded). EPA also observes that 

Federal agencies have considerable 

latitude in deciding whether and when 

to enforce requirements and conditions 

in their licenses and permits. See 

Heckler v. Cheney, 470 U.S. 821, 831 

(1985) (discussing why it is important 

for agencies to retain enforcement 

discretion). 

The Agency has consistently taken the 

view that nothing in section 401 

precludes states from enforcing 

certification conditions when so 

authorized under state law. In the 2020 

Rule preamble, the Agency concluded 

that ‘‘[n]othing in this final [2020] rule 

prohibits States from exercising their 

enforcement authority under enacted 

State laws.’’ EPA did, however, consider 

this authority limited to ‘‘where State 

authority is not preempted by federal 

law.’’ 85 FR 42276. A decade prior to 

the 2020 Rule, EPA had already 

recognized that states enforce 

certification conditions when 

authorized to do so under state law. See 

e.g., 2010 Handbook, p. 32–33 

(rescinded) (‘‘Many states and tribes 

assert they may enforce 401 certification 

conditions using their water quality 

standards authority.’’). EPA is not 

proposing to retain the regulatory text 

currently located at § 121.11(c) which 

expressly states that Federal agencies 

‘‘shall be responsible’’ for enforcing 

certification conditions placed in the 

Federal license or permit. The 

regulatory text at § 121.11(c) introduces 

ambiguity into the Agency’s 

longstanding position that nothing in 

section 401 precludes states from 

enforcing certification conditions when 

authorized under state law, and has led 

to stakeholder confusion over whether 

the 2020 Rule prevents states and tribes 

from exercising their independent 

enforcement authority and whether the 

2020 Rule limited Federal agency 

discretion regarding their enforcement 

of section 401 conditions in their 

permits. 

With respect to CWA citizen suits and 

their application to section 401 

certifications and conditions, the 

Agency observes that there is some case 

law discussing this issue. First, the 

Ninth Circuit Court of Appeals has held 

that citizen suits may be brought to 

enforce the requirement to obtain 

certification. Or. Natural Desert Ass’n v. 

Dombeck, 172 F.3d 1092, 1095 (9th Cir. 

1998). In Dombeck, the court rejected 

the argument that section 505 authorizes 

only suits to enforce certification 

conditions but not the requirement to 

obtain a certification. The court pointed 

to the plain language of section 505, 

which cross-references the entirety of 

section 401 (and not, for example, only 

section 401(d), which concerns 

certification conditions). Id. Second, a 

few Federal courts have held that 

certification conditions can be enforced 

through CWA citizen suits. In Deschutes 

River Alliance, a U.S. district court 

considered the issue at length and 

ultimately held that CWA section 505 

authorizes citizens to enforce 

certification conditions. See Deschutes 

River Alliance v. Portland Gen. Elec. 

Co., 249 F. Supp. 3d 1182, 1188 (D. Or. 

2017). Relying in part on Deschutes 

River Alliance, another U.S. district 

court also considered the issue in depth 

and held that the CWA citizen suit 

provision provides citizens a cause of 

action to sue to enforce the conditions 

of a section 401 certification. Pub. 

Emps. for Envtl. Responsibility v. 

Schroer, No. 3:18–CV–13–TAV–HBG, 

2019 WL 11274596, at *8–10 (E.D. 

Tenn. June 21, 2019). EPA is not aware 

of any Federal court that has considered 

the issue and reached the opposite 

conclusion. 

EPA notes that Deschutes River 

Alliance also held that certifying states 

may enforce certification conditions via 

the CWA citizen suit provision. 249 F. 

Supp. 3d at 1191–92. The court 

reasoned that section 505 is the only 

provision of the CWA that could bestow 

Federal authority upon states to enforce 

certification conditions and, given this, 

interpreting section 505 to preclude 

state enforcement of certification 

conditions would run ‘‘contrary to the 

CWA’s purpose and framework.’’ Id. at 

1191. 

2. Certifying Authority Inspection 

Authority 

As discussed above, section 401(a)(4) 

identifies one set of circumstances 

where the certifying authority may 

review the manner in which a facility or 

activity will operate once the facility or 

activity has received certification. 33 

U.S.C. 1341(a)(4). The certifying 

authority’s review is limited to 

determining if the post-construction 

operation of the facility or activity will 

ensure that applicable effluent 

limitations, other limitations, or other 

applicable water quality requirements 

will not be violated. Section 401(a)(4) 

further states that upon notification by 

the certifying authority that the 

operation or activity will violate effluent 

limits, other limits or other water 

quality requirements, the Federal 

agency, after public hearing, may 

suspend the license or permit and the 

license or permit shall remain 

suspended until there is reasonable 

assurance that the facility or activity 

will not violate CWA sections 301, 302, 

303, 306 or 307. Id. 

The 1971 Rule clarified that the 

ability to ‘‘review the manner in which 

the facility or activity shall be operated 

or conducted’’ meant the right to inspect 

a facility or activity, and that the 

inspection is limited to a situation 

where there was a construction license 

or permit and a subsequent operating 

license or permit was not required. The 

1971 Rule set forth the procedure 

regarding inspection and subsequent 

inspection findings; however, these 

regulations only apply where EPA is the 

certifying authority. See 40 CFR 121.26– 

121.28 (2019). The 2020 Rule interprets 

section 401(a)(4) to apply to all 

certifying authorities. It also expands 

the ability to conduct inspections 

pursuant to section 401(a)(4) to any 

certified project where the license or 

permit and certification were issued 

prior to operation, instead of only for 

projects where there was a construction 

license or permit and a subsequent 

operating license or permit was not 

required. 40 CFR 121.11(a); 85 FR 

42277. In pre-proposal input, several 

stakeholders pressed the Agency to 


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57Tribes without TAS to administer section 401 

or section 401(a)(2) are not neighboring 

jurisdictions for purposes of section 401(a)(2), as 

the statutory language limits the section 401(a)(2) 

process specifically to states. However, EPA is 

proposing a process for tribes to attain TAS 

specifically for administering a water quality 

certification program under section 401 and for 

administering only the section 401(a)(2) portion of 

a water quality certification program. See proposed 

§ 121.11. Further, in the absence of TAS for either 

section 401 or 401(a)(2), tribes may participate in 

the public notice process for a section 401 water 

quality certification. 

58 Fond du Lac Band of Lake Superior Chippewa 

v. EPA determined that the statutory language of 

section 401(a)(2) does not allow EPA to decline to 

make a determination whether or not a discharge 

from the certified project may affect water quality 

in a neighboring jurisdiction, and further found that 

EPA’s ‘‘may affect’’ determination is judicially 

reviewable under the APA. 519 F.Supp.3d 549, 565, 

567 (D. Minn. 2021). 59See 40 CFR part 121, subpart B (2019). 

allow for inspections before, during, and 

post-operation. 

EPA thinks that the 2020 Rule 

incorrectly interprets the limited 

applicability of section 401(a)(4) and 

does not think the statutory language 

needs further clarification through 

rulemaking. Accordingly, EPA is 

proposing to remove § 121.11(a)–(b) in 

the current regulation. On its face, 

section 401(a)(4) applies to a limited 

circumstance where there is a Federal 

license or permit and certification 

issued prior to operation of the facility 

or activity and there is not a subsequent 

Federal operating license or permit 

necessary for the facility or activity to 

operate. Under these limited 

circumstances, the statute is clear that 

the licensee or permittee must provide 

the certifying authority with the ability 

to ‘‘review’’ the facility or activity to 

determine whether it will comply with 

effluent limitations, other limitations, or 

other water quality requirements. EPA 

interprets the term ‘‘review’’ found in 

section 401(a)(4) to be broad enough to 

include inspection, but not necessarily 

limited to inspection. It can arguably 

also include the right to review 

preliminary monitoring reports or other 

such records that will assist the 

certifying authority in determining 

whether the operation of the facility or 

activity will comply with effluent 

limitations, other limitations, or other 

water quality requirements. EPA is 

requesting comment on whether it 

should articulate this interpretation of 

section 401(a)(4) in regulatory text. 

EPA emphasizes that section 401(a)(4) 

does not necessarily limit the certifying 

authority’s ability to inspect facilities or 

activities before or during operation in 

accordance with the certifying 

authority’s laws and regulations. The 

Agency is aware that states and tribes 

may have their own authority to inspect 

a facility or activity to determine 

compliance with conditions set forth in 

a section 401 certification. Similarly, 

section 401(a)(4) does not necessarily 

limit a Federal agency’s ability to 

inspect a facility during the life of the 

permit or license pursuant to that 

Federal agency’s laws and regulations. 

K. Neighboring Jurisdictions 

Section 401(a)(2) establishes a process 

for ‘‘neighboring jurisdictions’’ to 

participate in the Federal licensing or 

permitting process in circumstances 

where EPA has determined that a 

discharge from an activity subject to 

certification from another jurisdiction 

‘‘may affect’’ their water quality. EPA is 

revising the definition of the term 

‘‘neighboring jurisdiction’’ to clarify that 

it includes ‘‘any state, or tribe with 

treatment in a similar manner as a state 

for CWA section 401 in its entirety or 

only for CWA section 401(a)(2), other 

than the jurisdiction in which the 

discharge originates or will originate.’’ 

See proposed § 121.1(i).57 The current 

definition of ‘‘neighboring jurisdiction’’ 

located at § 121.1(i) inaccurately 

suggests that a neighboring jurisdiction 

may only include a state or TAS tribe 

that EPA determines may be affected by 

a discharge from another jurisdiction. 

However, a neighboring jurisdiction 

does not obtain its status as a 

neighboring jurisdiction based upon 

EPA’s ‘‘may affect’’ determination. It 

instead obtains such status by being a 

jurisdiction other than the one where 

the discharge originates or will 

originate. Ultimately, a Federal license 

or permit may not be issued until the 

section 401(a)(2) process is complete. 

To initiate the section 401(a)(2) 

process, a Federal licensing or 

permitting agency must ‘‘immediately’’ 

notify EPA when it receives a license or 

permit application and a section 401 

certification. 33 U.S.C. 1341(a)(2). EPA 

then has 30 days from the date it 

receives that notification to determine 

whether a discharge from the activity 

may affect the water quality of a 

neighboring jurisdiction and, if so, to 

notify that neighboring jurisdiction, the 

licensing or permitting agency, and the 

project proponent.58 After receiving 

notice from EPA, the neighboring 

jurisdiction has 60 days to determine 

whether the discharge ‘‘will affect’’ its 

water quality so as to violate its water 

quality requirements, and if so, object in 

writing to the issuance of the license or 

permit and request that the licensing or 

permitting agency conduct a hearing on 

its objection. Id. When the licensing or 

permitting agency conducts a hearing 

under section 401(a)(2), EPA must 

submit to the licensing or permitting 

agency an evaluation and 

recommendations regarding the 

objection of the neighboring 

jurisdiction. In turn, section 401(a)(2) 

requires the licensing or permitting 

agency to condition the relevant license 

or permit ‘‘as may be necessary to insure 

compliance with applicable water 

quality requirements,’’ based upon the 

recommendations of the neighboring 

jurisdiction and EPA, and any 

additional evidence presented at the 

hearing. If ‘‘the imposition of conditions 

cannot insure such compliance,’’ the 

licensing or permitting agency shall not 

issue the license or permit. Id. 

Section 401(a)(2) limits EPA to 

considering whether a ‘‘discharge’’ from 

an activity may affect the water quality 

of a neighboring jurisdiction, and 

likewise limits a neighboring 

jurisdiction to determining whether a 

‘‘discharge’’ from the activity will affect 

its water quality so as to violate any 

water quality requirements. 

Accordingly, EPA interprets the scope 

of section 401(a)(2) as limited by the 

statutory language to considering 

potential effects only from a ‘‘discharge’’ 

from an activity. 

Pre-proposal feedback relating to the 

process established in section 401(a)(2) 

reflected the need for more specificity 

regarding the roles of the Federal 

licensing or permitting agency, EPA, 

and the neighboring jurisdiction in the 

process, and the steps within the 

process. As a result, EPA is providing 

more detail and explanation in this 

proposal on the roles of each of these 

participants in the section 401(a)(2) 

process and the steps involved. 

Additionally, to promote consistency 

and efficiency, EPA is updating the 

2020 Rule to provide greater clarity 

regarding how the section 401(a)(2) 

process is initiated and conducted. 

1. Federal Licensing or Permitting 

Agency’s Role in Initiating the Section 

401(a)(2) Process 

CWA section 401(a)(2) requires that 

the Federal licensing or permitting 

agency, upon receipt of a license or 

permit application and the related 

section 401 water quality certification, 

immediately notify the EPA 

Administrator of such certification and 

application. 33 U.S.C. 1341(a)(2). The 

1971 Rule established some procedural 

requirements for this process,59 which 

EPA updated in 2020. The 2020 Rule 

includes additional specificity on the 

timing of Federal agency notification 

but did not contain a standardized 

process for notification. 40 CFR 

121.12(a). Instead, the Agency relies on 

Federal agencies to develop notification 


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60See section 401(a)(2) (‘‘Upon receipt of such 

application and certification the licensing or 

permitting agency shall immediately notify the 

Administrator of such application and 

certification.’’) (emphasis added). 

61For this proposed rulemaking, EPA is not 

suggesting that Corps civil works projects are 

exempt from section 401(a)(2) processes, even 

though there are no ‘‘applications’’ or draft licenses 

or permits. Rather, EPA expects the Corps to 

determine how best to comply with all section 401 

requirements. Compliance may involve the Corps 

sending a project study in conjunction with a 

certification or a waiver of certification. 

62Although this statutory language is 

unambiguous, EPA is further discussing when 

receipt occurs due to questions and conflicting 

practices among Federal licensing and permitting 

agencies. 

63 It is necessary that certification or waiver occur 

for EPA to make a determination as to whether a 

discharge from the activity ‘‘may affect’’ the water 

quality of a neighboring jurisdiction under section 

401(a)(2), as EPA only makes such a determination 

where certification or waiver has occurred, and 

considers any conditions included in a certification 

in making this determination. 

processes and procedures that work 

within their licensing or permitting 

programs. 85 FR 42273. 

The Agency is proposing to clarify 

what actions initiate the section 

401(a)(2) process and when Federal 

agencies must provide notification to 

EPA under section 401(a)(2). 

Additionally, the Agency is proposing 

procedures for Federal agencies to 

follow when providing notification to 

EPA. Section 401(a)(2) provides that the 

Federal licensing or permitting agency 

must ‘‘immediately’’ notify the EPA 

Administrator upon receipt of an 

application and certification. 33 U.S.C. 

1341(a)(2). Under the 1971 Rule, EPA’s 

section 401(a)(2) review was initiated 

upon receipt of either a certification or 

a waiver, which was treated as a 

substitute for certification. See 40 CFR 

121.11, 121.16 (2019). In the 2020 Rule, 

EPA’s section 401(a)(2) review is 

initiated upon receipt of a certification. 

40 CFR 121.12(a); see 85 FR 42287. As 

discussed below, EPA is proposing to 

return to the approach taken in the 1971 

Rule at proposed § 121.12. 

Although the statutory text does not 

explicitly identify waiver of certification 

as an action that initiates section 

401(a)(2) review,60 the Agency proposes 

that it is appropriate to treat the waiver 

of certification as a substitute for a grant 

of certification for purposes of section 

401(a)(2) review for several reasons. 

First, this treatment is consistent with 

the purpose of section 401(a)(2). Section 

401(a)(2) provides neighboring 

jurisdictions with an opportunity to 

object to federally licensed or permitted 

discharges originating in other 

jurisdictions, where they determine the 

discharge will violate their water quality 

requirements. A waiver does not 

indicate a certifying authority’s 

substantive opinion regarding the water 

quality implications (for itself or 

another jurisdiction) of a proposed 

activity or discharge. Rather, a certifying 

authority may waive certification for a 

variety of reasons, including a lack of 

resources to evaluate the project. In 

addition, a certifying authority may be 

deemed to have waived certification for 

various reasons, including if that 

certifying authority fails or refuses to act 

on a request for certification before the 

end of the reasonable period of time. 

See section V.F in this preamble for 

further discussion on waivers. 

Ultimately a waiver of certification 

allows the Federal licensing or 

permitting agency to issue its license or 

permit without receipt of a water quality 

certification. As a result, a waived 

certification could result in water 

quality impacts that might violate a 

neighboring jurisdiction’s water quality 

requirements. It seems reasonable to 

afford a mechanism for EPA and a 

neighboring jurisdiction to evaluate that 

possibility. Second, this approach is 

consistent with the Agency’s approach 

to section 401(a)(2) for over 50 years. 

See 40 CFR 121.16 (2019). Therefore, 

consistent with the approach taken in 

the 1971 Rule, the Agency is proposing 

to restore the interpretation that 

waivers, in addition to certifications, 

initiate the section 401(a)(2) process. 

Additionally, the Agency is proposing 

to clarify the term ‘‘application’’ as 

applied to section 401(a)(2). Section 

401(a)(2) requires a Federal licensing or 

permitting agency to notify EPA upon 

receipt of application and certification. 

33 U.S.C. 1341(a)(2). Section 401 uses 

the term ‘‘application’’ throughout 

section 401(a); however, when read in 

context, the term is used for both 

‘‘applications for certification’’ and 

‘‘applications for such Federal license or 

permit.’’ The Agency considers the 

‘‘request for certification’’ to be an 

‘‘application for certification.’’ See 

section V.C in this preamble for further 

discussion on a request for certification. 

In the context of section 401(a)(2), the 

term ‘‘application’’ is used to refer to the 

‘‘application for such Federal license or 

permit.’’ Id. As a result, section 

401(a)(2) is initiated upon the Federal 

licensing or permitting agency’s receipt 

of such Federal license or permit 

application and either a section 401 

certification or a waiver of certification. 

However, the Agency is aware that there 

are instances where a Federal license or 

permit application does not accompany 

a certification or waiver (e.g., 

certification on general permits or Corps 

civil works projects). To account for 

Federal agencies’ different licensing or 

permitting practices, the Agency is 

proposing to clarify that the term 

‘‘application’’ in this regulation means 

the license or permit application to a 

Federal agency, or if available, a draft 

license or permit.61 See proposed 

§ 121.1(c). 

As noted, the Agency is further 

seeking to clarify when a Federal agency 

must provide notification to EPA under 

section 401(a)(2) and is proposing basic 

procedures for Federal agencies to 

follow when providing such 

notification. As discussed above, section 

401(a)(2) provides that the Federal 

licensing or permitting agency must 

‘‘immediately’’ notify the EPA 

Administrator upon receipt of an 

application for a Federal license or 

permit and certification. See 33 U.S.C. 

1341(a)(2). EPA seeks to clarify that a 

Federal agency is only considered to be 

in receipt of an application for a license 

or permit and certification within the 

meaning of section 401(a)(2) when such 

agency has received both an application 

for a license or a permit, as discussed 

above, and has either received a 

corresponding certification or a waiver 

has occurred.62 It is typical for Federal 

agencies to receive applications for 

licenses or permits in advance of receipt 

of certification or waiver. In such 

circumstances, it would be premature 

for the Federal agency to provide EPA 

with notification under section 401(a)(2) 

until it has also received the 

certification or waiver has occurred and 

the statute accordingly only requires 

notification to EPA when the certifying 

agency is in possession of both.63

Furthermore, to aid in clarity and 

implementation, the Agency is 

proposing to retain the 2020 Rule 

interpretation of ‘‘immediately’’ to mean 

within five days of the Federal agency’s 

receipt of the application for a Federal 

license or permit and either receipt of 

certification or waiver. Under the 2020 

Rule, the Agency also interprets the 

term ‘‘immediately’’ to mean within five 

days of the Federal agency receiving 

notice of application and certification to 

encourage clear, consistent timing of the 

notification to EPA. 40 CFR 121.12(a); 

see 85 FR 42273. The Agency is not 

aware of any practical challenges or 

issues posed by this timeframe. The 

Federal agency needs some amount of 

time to process receipt of the permit or 

license application and certification or 

waiver from the project proponent or 

certifying authority, review the received 

materials, which might be substantial, 

and then transmit notice to the 

appropriate EPA regional office. EPA 

considers five days a prompt yet 


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reasonable amount of time to complete 

this process. EPA is soliciting comment 

on whether it should interpret 

‘‘immediately’’ in this context to mean 

a different period of time than five days, 

and whether five days provides Federal 

agencies with sufficient time to provide 

notice to EPA or if additional time is 

required. 

Although the text of section 401(a)(2) 

requires a Federal agency to notify EPA 

upon receipt of an application and 

certification, it does not define the 

contents of such notification. 33 U.S.C. 

1341(a)(2). The 1971 Rule and 2020 

Rule provided some direction on 

information that could be submitted to 

EPA as part of the section 401(a)(2) 

process, but neither regulation defined 

the contents of the section 401(a)(2) 

notification. See 40 CFR 121.12(b); 40 

CFR 121.13 (2019). 

The 1971 Rule provided that upon 

receipt of application for a license or 

permit with an accompanying 

certification, the Federal agency shall 

forward copies of the application and 

certification to the Regional 

Administrator. 40 CFR 121.11 (2019). It 

further stated that only those portions of 

the application which relate to water 

quality shall be forwarded to the 

Regional Administrator and allows for 

the Regional Administrator to ask for 

supplemental information if the 

documents forwarded do not contain 

sufficient information to make the 

determination provided for in § 121.13. 

See 40 CFR 121.12 and 121.13 (2019). In 

the preamble to the 2020 Rule, EPA said 

it expects Federal agencies to develop 

notification processes and procedures 

but noted that the Administrator could 

request copies of the certification and 

application. 85 FR 42273. During 

implementation of the 2020 Rule, some 

but not all agencies have developed 

their own procedures, and these 

procedures have varied between 

agencies and across the country. 

To provide consistency and to 

streamline the notification process, EPA 

is proposing to add regulatory text 

defining the minimum level of 

information that must be included in 

the notification to EPA. The Agency is 

proposing that the notification be in 

writing and contain a general 

description of the proposed project, 

including but not limited to: permit or 

license identifier, project location 

information (e.g., latitude and 

longitude), a project summary including 

the nature of any discharge and size or 

scope of activity, and whether the 

Federal agency is aware of any 

neighboring jurisdiction providing 

comment on the project. If the Federal 

agency is aware that a neighboring 

jurisdiction provided comment on the 

project, the notification shall include a 

copy of those comments. Additionally, 

the notification shall include a copy of 

the certification or notice of waiver, and 

the application, as defined at proposed 

§ 121.1(c). If supplemental information 

is needed to make a determination 

pursuant to section 401(a)(2), the 

Regional Administrator may ask for it in 

writing with a timeframe for a response, 

and the Federal agency shall obtain that 

information from the project proponent 

and forward the additional information 

to the Regional Administrator within 

the specified timeframe. If supplemental 

information is not provided in a timely 

manner, EPA may consider that lack of 

information as a factor in its ‘‘may 

affect’’ determination. The Agency may 

also develop agreements with Federal 

agencies to refine the notification 

process and the provision of 

supplemental information. The Agency 

is soliciting comment on the proposed 

aspects of the notification process, 

including the timing and the contents of 

the Federal agency notification to EPA. 

2. EPA’s Role Under Section 401(a)(2) 

Section 401(a)(2) states that whenever 

a discharge ‘‘may affect, as determined 

by the Administrator, the quality of the 

waters of any other State,’’ the 

Administrator must notify the other 

neighboring jurisdiction, Federal 

agency, and the project proponent of 

their determination within thirty days of 

the date of notice of the application. 33 

U.S.C. 1341(a)(2). Under the 1971 Rule, 

the Regional Administrator was 

required to review the Federal license or 

permit application, the certification, and 

any supplemental information provided 

to EPA, and, if the Regional 

Administrator determined that there 

was ‘‘reason to believe that a discharge 

may affect the quality of the waters of 

any State or States other than the State 

in which the discharge originates,’’ the 

Regional Administrator would notify 

the affected jurisdictions within thirty 

days of receipt of the application 

materials and certification. See 40 CFR 

121.13 (2019). 

Similarly, the 2020 Rule 

acknowledges EPA’s responsibility to 

notify a neighboring jurisdiction 

whenever it determined that a discharge 

from the certified activity may affect the 

water quality of the neighboring 

jurisdiction. 40 CFR 121.12(b), 85 FR 

42274. However, the 2020 Rule asserted 

that it was within the Agency’s 

discretion whether to make a ‘‘may 

affect’’ determination in the first place, 

and that EPA was, therefore, not 

required to make such a determination. 

85 FR 42273. Additionally, the 2020 

Rule does not clearly state in either 

regulatory text or the preamble whether 

there are specific factors that the 

Administrator must consider in making 

a ‘‘may affect’’ determination and 

whether any other interested party can 

be involved when EPA is making a 

‘‘may affect’’ determination. Id. During 

the pre-proposal outreach, stakeholders 

raised concerns that EPA had not clearly 

identified what factors it intended to 

use in determining whether a discharge 

‘‘may affect’’ the water quality of a 

neighboring jurisdiction. Stakeholders 

also objected to EPA asserting sole 

discretion over this ‘‘may affect’’ 

determination without obtaining input 

from the neighboring jurisdiction or 

other stakeholders. 

To date, only one Federal district 

court has addressed EPA’s obligation to 

make a determination pursuant to 

section 401(a)(2). In Fond du Lac, the 

court addressed two issues concerning 

section 401(a)(2): (1) whether EPA is 

required to make a ‘‘may affect’’ 

determination and (2) whether EPA’s 

‘‘may affect’’ determination is judicially 

reviewable. 519 F.Supp.3d 549.The 

court concluded that EPA is required to 

determine whether the discharge may 

affect the quality of a neighboring 

jurisdiction’s waters. In coming to this 

conclusion, the court examined the 

statutory text and found that it requires 

EPA to make ‘‘a discrete factual 

determination . . . within a specific 

timeframe . . . based on an application 

and certification . . . .’’ Id. at 564. The 

court further concluded that Federal 

courts have the jurisdiction to review 

EPA’s ‘‘may affect’’ determination. The 

court did not opine on the specific 

meaning of ‘‘may affect’’ means or 

factors that EPA should consider in 

making a ‘‘may affect’’ determination. 

EPA agrees with the Fond du Lac 

court that EPA must determine whether 

a discharge ‘‘may affect’’ a neighboring 

jurisdiction once it receives notification 

of the application and certification or 

waiver, and EPA is proposing to revise 

the regulation accordingly. When EPA is 

the Federal licensing or permitting 

agency (e.g., EPA-issued NPDES 

permits), EPA intends to include such 

‘‘may affect’’ determination in the 

administrative record for the permit 

action. EPA is further proposing that, in 

making a ‘‘may affect’’ determination, 

EPA has the discretion to look at a 

variety of factors depending on the type 

of license or permit and discharge. 

Factors that EPA could consider in 

making a ‘‘may affect’’ determination 

include, but are not limited to, the type 

of project and discharge covered in the 

license or permit, the proximity of the 

project and discharge to other 


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64There are other opportunities for stakeholders 

to provide input into the certification and licensing 

or permitting process, including the public notice 

and comment processes on the certification and the 

license or permit. 

jurisdictions, certification and other 

conditions already contained in the 

draft license/permit, and the 

neighboring jurisdiction’s water quality 

requirements. Given the range of 

Federal licenses or permits that are 

covered by CWA section 401(a)(2) and 

EPA’s discretion to look at various 

factors, EPA is not proposing to identify 

specific factors EPA must analyze in 

making a ‘‘may affect’’ determination. 

Indeed, as each ‘‘may affect’’ 

determination is likely to be factdependent and based on situationspecific circumstances, EPA is uncertain 

that providing a required list of factors 

is possible. However, in the interest of 

transparency, EPA is asking for 

comment on whether such a list of 

specific factors that EPA must consider 

in making a ‘‘may affect’’ determination 

should be set forth in regulation and, if 

so, what factors should be included. 

EPA is further clarifying that, once it 

receives notice from a Federal agency 

initiating its obligation to make a ‘‘may 

affect’’ determination, it is within EPA’s 

sole discretion to examine the facts and 

determine whether the discharge ‘‘may 

affect’’ the quality of a neighboring 

jurisdiction’s waters. Section 401(a)(2) 

provides that ‘‘[w]henever such a 

discharge may affect, as determined by 

the Administrator. . . .’’ 33 U.S.C. 

1341(a)(2) (emphasis added). EPA 

interprets this language as providing the 

Agency with sole discretion in making 

a ‘‘may affect’’ determination. 

Accordingly, EPA is not required to 

engage with stakeholders or seek their 

input in making this determination. If 

an interested party does not agree with 

EPA’s determination, that interested 

party may have recourse under the 

Administrative Procedure Act as 

discussed in Fond du Lac. However, in 

making its ‘‘may affect’’ determination, 

the Agency does intend to consider the 

views of other jurisdictions if provided 

in a timely manner. As discussed above, 

the Agency is proposing to define the 

contents of a Federal agency’s 

notification to EPA to include an 

indication of whether any neighboring 

jurisdictions have expressed water 

quality concerns or provided such 

comment on the project.64 Other factors 

informing the Agency’s ‘‘may affect’’ 

determination evaluation are discussed 

above, including the nature of the 

neighboring jurisdiction’s water quality 

requirements. 

After receiving notification from the 

Federal licensing or permitting agency, 

EPA has 30 days to complete its ‘‘may 

affect’’ determination evaluation. 33 

U.S.C. 1341(a)(2). If EPA determines 

that the discharge may affect a 

neighboring jurisdiction’s water quality, 

EPA must notify the neighboring 

jurisdiction, the Federal licensing or 

permitting agency, and the project 

proponent. Id. EPA is proposing to 

retain regulatory text similar to 40 CFR 

121.12(c) that clarifies which 

stakeholders EPA must notify upon 

making a ‘‘may affect’’ determination. 

The Agency is also proposing to define 

the contents of such notification similar 

to the 2020 Rule. The 1971 Rule did not 

define the contents of a ‘‘may affect’’ 

notification from EPA to a neighboring 

jurisdiction, Federal agency, and project 

proponent. However, the 1971 Rule 

provided that EPA must send the 

neighboring jurisdiction a copy of the 

application and certification it received 

to initiate the section 401(a)(2) process. 

40 CFR 121.14 (2019). The 2020 Rule 

defines the contents of EPA’s 

notification. 40 CFR 121.12(c)(1). EPA is 

proposing to revise the provision from 

the 2020 Rule and clarify that its 

notification shall be in writing and shall 

include a statement that the Agency has 

determined that the discharge may 

affect the neighboring jurisdiction’s 

water quality, as well as a description of 

the next steps in the section 401(a)(2) 

process, a copy of the certification or 

waiver, and a copy of the license or 

permit application. See proposed 

§ 121.13. The proposed regulation also 

retains similar text as the 2020 Rule 

that, once EPA makes a ‘‘may affect’’ 

determination, a Federal license or 

permit may not be issued pending the 

conclusion of the section 401(a)(2) 

process, as described in further detail 

below. Accordingly, the Agency is 

proposing to remove the regulatory 

provision located at § 121.9(e) which 

provides that a Federal agency may 

issue a license or permit upon issuance 

of a written notice of waiver. As 

discussed above, waivers also trigger the 

section 401(a)(2) process and EPA may 

make a ‘‘may affect’’ determination 

based upon a waiver of certification. 

Consistent with the proposed language 

at § 121.13(d), a Federal agency may not 

issue a Federal license or permit until 

the section 401(a)(2) process concludes. 

Upon completion of its ‘‘may affect’’ 

determination evaluation, if EPA does 

not find that a discharge from the 

activity may affect the water quality of 

a neighboring jurisdiction, then EPA is 

not required to provide notification of 

its determination. See 33 U.S.C. 

1341(a)(2). If a Federal licensing or 

permitting agency does not receive 

notification from EPA that the discharge 

may affect a neighboring jurisdiction’s 

water quality within 30 days after 

proper notification, then the Federal 

agency may proceed with processing the 

license or permit. 

3. Neighboring Jurisdiction’s Role Under 

Section 401(a)(2) 

CWA section 401(a)(2) states that if, 

within sixty days after receipt of EPA’s 

notification, such other State determines 

that such discharge will affect the 

quality of its waters so as to violate any 

water quality requirements in such 

State, and within such 60 day period 

notifies the Administrator and the 

licensing or permitting agency in 

writing of its objection to the issuance 

of such license or permit and requests 

a public hearing on such objection, the 

licensing or permitting agency shall 

hold such a hearing. 33 U.S.C. 

1341(a)(2). The 1971 Rule did not 

describe the contents or form that such 

an objection notification must take. 

However, the 2020 Rule clarifies that 

the objection notification must identify 

the receiving waters that are determined 

to be affected and identify the specific 

water quality requirements that will be 

violated. 40 CFR 121.12(c)(2); 85 FR 

42274. 

In this rule, EPA is proposing to 

revise the specific requirements for 

what a neighboring jurisdiction is 

required to include in an objection 

notification sent pursuant to section 

401(a)(2). Initially, as required by the 

statute, the neighboring jurisdiction 

must act within 60 days of receipt of 

EPA’s notification, and must provide its 

objection and request for public hearing 

in writing to EPA and the licensing and 

permitting authority. EPA is also 

proposing that the objection notification 

be sent to the certifying authority. 

Further, EPA is proposing that the 

neighboring jurisdiction include an 

explanation of the reasons supporting 

its determination that the discharge will 

violate its water quality requirements, 

including but not limited to identifying 

any water quality requirements that will 

be violated. This will allow EPA and the 

Federal licensing or permitting agency 

to understand the basis for the 

objection. EPA is not proposing to retain 

the regulatory text requiring the 

neighboring jurisdiction to identify the 

receiving waters that will be affected by 

the discharge. However, EPA anticipates 

this information will likely be included 

in the neighboring jurisdiction’s 

explanation of the reasons supporting 

its determination that the discharge will 

violate its water quality requirements. 

EPA is not proposing to require the 

neighboring jurisdiction to identify a 


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license or permit condition that it thinks 

would resolve the objection; however, 

EPA encourages neighboring 

jurisdictions to offer such a condition or 

conditions and is requesting comment 

on whether this element should be 

required by regulation. 

4. Objection and Public Hearing Process 

Under Section 401(a)(2) 

As discussed above, a neighboring 

jurisdiction must request a public 

hearing from the Federal licensing or 

permitting agency as part of its 

objection. CWA section 401(a)(2) does 

not provide for a specific process for the 

section 401(a)(2) public hearing. It 

merely states that, if a neighboring 

jurisdiction objects to a Federal license 

or permit and requests a public hearing 

within the 60-day timeframe, the 

Federal licensing or permitting agency 

must hold a hearing. 33 U.S.C. 

1341(a)(2). The statute further provides 

that the EPA Administrator must submit 

an evaluation and recommendations 

regarding the objection at the hearing. 

Id. In addition, section 401(a)(2) states 

that additional evidence may be 

presented at the hearing. After the 

public hearing, the Federal licensing or 

permitting agency must consider the 

recommendations of the neighboring 

jurisdiction and EPA Administrator as 

well as any additional evidence 

presented at the hearing and, based on 

that information, must condition the 

license or permit as may be necessary to 

ensure compliance with applicable 

water quality requirements. If additional 

conditions cannot ensure compliance 

with applicable water quality 

requirements, the license or permit 

cannot be issued. Id. Notably, the statute 

is silent as to whether public notice of 

the public hearing is required; the 

nature of, and specific procedures for, 

the public hearing; the need for a court 

reporter or transcript; whether the 

Federal licensing or permitting agency’s 

decision is appealable; and other such 

matters. 

The 1971 Rule provided that, in cases 

where the Federal licensing or 

permitting agency held a public hearing 

on the objection raised by a neighboring 

jurisdiction, the licensing or permitting 

agency was required to forward notice 

of such objection to the Regional 

Administrator no later than 30 days 

prior to the hearing. 40 CFR 121.15 

(2019). At the hearing, the Regional 

Administrator was required to submit 

an evaluation and ‘‘recommendations as 

to whether and under what conditions 

the license or permit should be issued.’’ 

Id. EPA retained these requirements in 

the 2020 Rule. 40 CFR 121.12(c)(3); 85 

FR 42274. 

The Agency is proposing to add 

transparency to the section 401(a)(2) 

process by requiring the Federal agency 

to provide for a minimum of a 30-day 

public notice of the hearing. This will 

allow for notice to all interested parties, 

including the neighboring jurisdiction 

and EPA, and provide adequate time for 

such parties to determine whether they 

have any interest in attending the public 

hearing. EPA is not defining the type of 

public hearing that the Federal agency 

must hold since many Federal agencies 

have their own regulations regarding 

public hearings on permits and licenses; 

however, EPA recommends that the 

public hearing would be one at which 

the Federal agency accepts comments 

and additional evidence on the 

objection. EPA defers to the Federal 

agency to decide whether the public 

hearing would be conducted in-person 

and/or remotely through telephone, 

online, or other virtual platforms 

depending on the circumstances and the 

Federal agency’s public hearing 

regulations. 

As discussed, section 401(a)(2) 

provides that the EPA Administrator 

shall submit an evaluation and 

recommendations on the objection 

raised by the neighboring jurisdiction at 

the hearing conducted by the Federal 

licensing or permitting agency. The 

statutory text does not elaborate on how 

the Administrator is to develop its 

evaluation and recommendations or 

what specific elements it must include. 

Accordingly, the statute provides EPA 

with considerable discretion in 

developing its evaluation and 

recommendations. 

EPA interprets its role in providing 

the evaluation and recommendations on 

the neighboring jurisdiction’s objection 

as that of an objective and neutral 

evaluator providing recommendations 

to the licensing or permitting Federal 

agency based upon its expert, technical 

analysis of the record before it. EPA 

intends to conduct its evaluation and 

make any recommendations based on 

the information before it, giving equal 

consideration to the information and 

views—if provided—by interested 

parties, including the objecting 

neighboring jurisdiction, project 

proponent, and certifying authority. 

Consistent with this approach, as a 

general matter EPA does not intend to 

invite comment and input from, or 

engage with, interested parties when 

developing its evaluation and 

recommendations on the objection. 

However, EPA may, where it deems it 

appropriate, seek additional information 

from a neighboring jurisdiction 

regarding its objection to be sure EPA is 

able to develop an informed and wellsupported evaluation and 

accompanying recommendations. This 

approach to developing its evaluation 

and recommendations is consistent with 

the hearing process established by 

section 401(a)(2), which recognizes a 

role for the neighboring jurisdiction 

independent of the Agency and allows 

for presentation of evidence at the 

hearing by any interested stakeholder, 

including the neighboring jurisdiction. 

If a stakeholder agrees or disagrees with 

EPA’s evaluation and recommendations 

presented at the hearing, such 

stakeholder may have an opportunity to 

provide additional information and 

comment directly to the Federal agency 

for its consideration. 

After conducting the public hearing, 

pursuant to CWA section 401(a)(2), the 

Federal licensing or permitting agency 

must consider the recommendations of 

the neighboring jurisdiction and EPA, as 

well as any additional evidence 

presented at the hearing, as it 

determines whether additional permit 

or license conditions are necessary to 

ensure compliance with applicable 

water quality requirements. 33 U.S.C. 

1341(a)(2). The Act does not accord 

special status to EPA’s evaluation and 

recommendations compared with the 

neighboring jurisdiction’s input or other 

evidence received at the hearing; rather, 

the section appears to contemplate that 

the Federal agency will consider all of 

the information presented in making its 

decision. If the Federal licensing or 

permitting agency determines that 

additional conditions may be necessary 

to ensure compliance with the 

neighboring jurisdiction’s water quality 

requirements, the Federal licensing or 

permitting agency must include those 

conditions in the Federal license or 

permit. In addition, if the Federal 

licensing or permitting agency cannot 

include conditions that will ensure 

compliance with applicable water 

quality requirements, the Federal 

agency cannot issue the license or 

permit. EPA is proposing to specifically 

incorporate these statutory requirements 

in regulatory language. 

EPA is not, however, proposing to 

establish a deadline by which the 

Federal licensing or permitting agency 

must make a determination after the 

public hearing. EPA is requesting 

comment on whether such a deadline 

should be established. 

CWA section 401(a)(2) states that if 

the neighboring jurisdiction notifies 

EPA and the licensing or permitting 

agency ‘‘in writing of its objection to the 

issuance of [the] license or permit and 

requests a public hearing on such 

objection, the licensing or permitting 

agency shall hold such a hearing.’’ 33 


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65 ‘‘Federal Indian reservation’’ means all land 

within the limits of any Indian reservation under 

the jurisdiction of the United States Government, 

notwithstanding the issuance of any patent, and 

including rights-of-way running through the 

reservation. 33 U.S.C. 1377(h)(1). 

66For example, there are TAS regulatory 

provisions for the CWA section 303(c) water quality 

standards (WQS) program, located at 40 CFR 131.8, 

and for the CWA section 303(d) impaired water 

listing and total maximum daily load program, 

located at 40 CFR 130.16. 

67See https://www.epa.gov/tribal/tribesapproved-treatment-state-tas. 

U.S.C. 1341(a)(2). For a hearing to be 

required under section 401(a)(2), there 

must be (1) a written objection from the 

neighboring jurisdiction and (2) a 

request for a public hearing on the 

objection. Id. EPA is proposing that if 

one of these elements is not present, the 

Federal agency is not required to hold 

a hearing. If a neighboring jurisdiction 

can resolve its concerns with the 

Federal licensing or permitting agency 

before a public hearing is held, then 

under this proposed approach, the 

neighboring jurisdiction could 

withdraw its objection and, as a result, 

a public hearing would not be required. 

EPA does not assume that a withdrawal 

of a written objection would eliminate 

the need for the Federal licensing or 

permitting agency to comply with its 

own public notice requirements if 

resolution of the objection results in a 

change to the permit or license. EPA is 

requesting comment on whether a 

neighboring jurisdiction could 

withdraw its objection before the 

hearing is held and, thus, eliminate the 

requirement to hold a public hearing. 

EPA is also requesting comment on 

whether it should develop any 

regulatory text to clarify this aspect of 

the section 401(a)(2) process. 

L. Treatment in a Similar Manner as a 

State Under Section 401 

This proposed rulemaking would add 

provisions enabling tribes to obtain 

treatment in a similar manner as a state 

(TAS) solely for section 401, as well as 

provisions on how tribes can obtain 

TAS for the limited purpose of 

participating as a neighboring 

jurisdiction under section 401(a)(2). 

These proposed provisions provide 

more opportunities and clarity for tribes 

interested in participating in the section 

401 certification process. Although the 

CWA clearly allows tribes to obtain TAS 

for section 401, current regulations and 

practice treat TAS for section 401 as an 

adjunct to TAS for the CWA section 

303(c) program for water quality 

standards. 

Section 401 specifies that certification 

under section 401(a)(1) shall be made by 

the state in which the discharge 

originates or will originate, or if 

appropriate, the interstate water 

pollution control agency with 

jurisdiction over the waters of the 

United States where the discharge 

originates or will originate. 33 U.S.C. 

1341(a)(1). Likewise, under section 

401(a)(2) the Administrator considers 

whether a discharge from a project may 

affect ‘‘the quality of the waters of any 

other state’’ in initiating the neighboring 

jurisdiction process. Id. at 1341(a)(2). 

Prior Agency guidance and the 2020 

Rule preamble provided that only tribes 

with TAS for section 401 may act as 

certifying authorities under section 

401(a)(1) and may act as neighboring 

jurisdictions under section 401(a)(2). 85 

FR 42270, 42274; 2010 Handbook, at 6 

(rescinded). The 1971 Rule did not 

address tribes with TAS; the TAS 

provisions in the CWA were not 

introduced until the 1987 CWA 

Amendments. 

Under section 518 of the CWA, EPA 

may treat federally-recognized Indian 

tribes in a similar manner as a state for 

purposes of administering most CWA 

programs over Federal Indian 

reservations. 33 U.S.C. 1377. Under 

section 518 and EPA’s implementing 

regulations, an Indian tribe is eligible 

for TAS to administer CWA regulatory 

programs, including section 401, if it 

can demonstrate that (1) it is federallyrecognized and exercises governmental 

authority over a Federal Indian 

reservation; 65 (2) it has a governing 

body carrying out substantial 

governmental duties and power; (3) it 

has the appropriate authority to perform 

the functions to administer the program; 

and (4) it is reasonably expected to be 

capable of carrying out the functions of 

the program it applied to administer. 

See 33 U.S.C. 1377(e), (h); see also, e.g., 

40 CFR 131.8. 

While certain CWA programs have 

TAS implementing regulations,66 there 

are currently no such regulations 

tailored solely for section 401. In the 

absence of TAS provisions tailored 

specifically for section 401, tribes have 

received TAS for section 401 when 

eligible for TAS to administer the 

section 303(c) program for water quality 

standards. 40 CFR 131.4(c) (‘‘Where 

EPA determines that a Tribe is eligible 

to the same extent as a State for 

purposes of water quality standards, the 

Tribe likewise is eligible to the same 

extent as a State for purposes of 

certifications conducted under Clean 

Water Act section 401.’’). To date, 78 

federally-recognized tribes (out of 574) 

have received TAS for section 401 

concurrently with obtaining TAS for 

section 303(c).67

Upon receiving TAS for section 401, 

tribes have two roles. First, tribes that 

receive section 401 TAS are responsible 

for acting as a certifying authority for 

projects that may result in a discharge 

into waters of the United States on their 

Indian reservations. As certifying 

authorities, tribes with TAS may grant, 

grant with conditions, deny, or waive 

certification based on whether a 

federally licensed or permitted project 

will comply with sections 301, 302, 303, 

306, and 307 of the CWA and any other 

appropriate requirements of tribal law. 

See 33 U.S.C. 1341(a)(1) and (d). 

Second, tribes that receive section 401 

TAS are accorded the status of 

‘‘neighboring jurisdiction’’ for purposes 

of section 401(a)(2). If EPA makes a 

‘‘may affect’’ determination with respect 

to that neighboring jurisdiction, the 

neighboring jurisdiction, including 

tribes with TAS for section 401, may 

object to the Federal license or permit 

if they determine that the discharge 

‘‘will violate’’ their water quality 

requirements and request a public 

hearing from the Federal licensing or 

permitting agency. 33 U.S.C. 1341(a)(2). 

EPA is proposing a section 401- 

specific set of requirements and 

procedures for tribes seeking TAS for 

purposes of making sections 401(a)(1) 

and 401(d) certification decisions and 

for exercising their statutory rights as a 

‘‘neighboring jurisdiction’’ under 

section 401(a)(2). These proposed 

procedures do not eliminate or modify 

the section 401 procedures already 

found in part 131. Instead, they provide 

an alternate path for tribes wishing to 

obtain TAS status only for section 401 

and not also for section 303(c). 

1. Obtaining TAS for Section 401 

Proposed § 121.11 includes the 

criteria an applicant tribe would be 

required to meet to be treated in a 

similar manner as states, the 

information the tribe would be required 

to provide in its application to EPA, and 

the procedure EPA would use to review 

the tribal application. This section is 

intended to ensure that tribes treated in 

a similar manner as states for the 

purposes of the section 401 water 

quality certification program are 

qualified, consistent with CWA 

requirements, to implement a water 

quality certification program. The 

procedures are meant to provide more 

opportunities for tribes to engage fully 

in the program and are not intended to 

act as a barrier to tribal assumption of 

the section 401 program. The proposed 

procedures are modeled after the TAS 

regulatory provisions for the CWA 

section 303(c) WQS program, located at 

40 CFR 131.8, and the TAS provisions 


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68EPA defines the term ‘‘appropriate 

governmental entities’’ as ‘‘States, tribes, and other 

Federal entities located contiguous to the 

reservation of the tribe which is applying for 

treatment as a State.’’ 56 FR 64876, 64884 

(December 12, 1991). 

for the CWA section 303(d) impaired 

water listing and total maximum daily 

load program, located at 40 CFR 130.16. 

The WQS TAS regulations, developed 

in the early 1990s, have acted as a 

model for other programs including the 

section 303(d) regulations. See 81 FR 

65905. Additionally, as discussed 

above, EPA’s TAS regulations allow 

tribes to simultaneously obtain TAS for 

sections 303(c) and 401 and have been 

used by 78 tribes to date. As a result, the 

Agency thinks the part 131 and part 130 

TAS regulations provide an appropriate 

model for this proposal. 

Consistent with the requirements 

provided in CWA section 518, EPA 

proposes that four criteria must be met 

for tribes to obtain TAS for section 401. 

First, the tribe should be federally 

recognized by the U.S. Department of 

the Interior and meet the definitions in 

proposed § 121.1(f) and (g). Second, the 

tribe should have a governing body that 

carries out ‘‘substantial governmental 

duties and powers’’ over a defined area. 

Third, the tribe should have appropriate 

authority to regulate and manage water 

resources within the borders of the 

tribe’s reservation. Lastly, the tribe 

should be reasonably expected, in the 

Regional Administrator’s judgment, to 

be capable of administering a section 

401 water quality certification program. 

The tribe may satisfy the first criterion 

by stating that it is included on the list 

of federally recognized tribes that is 

published periodically by the U.S. 

Department of the Interior. 

Alternatively, the tribe may submit 

other appropriate documentation (e.g., if 

the tribe is not yet included on the U.S. 

Department of the Interior list but is 

federally recognized). 

To meet the second criterion, the tribe 

would show that it conducts 

‘‘substantial governmental duties and 

powers,’’ which the Agency views as 

performing governmental functions to 

promote the health, safety, and welfare 

of the affected population within a 

defined geographical area. See 54 FR 

39101; 81 FR 65906. This requires a 

descriptive statement that should (1) 

describe the form of tribal government, 

(2) describe the types of essential 

governmental functions currently 

performed by the tribal governing body, 

including but not limited to, the 

exercise of the power of eminent 

domain, taxation, and police power, and 

(3) identify the sources of authorities to 

carry out these functions. 

To establish the third criterion that 

the tribe has the authority to manage the 

water resources within the borders of 

the tribe’s reservation, the tribe would 

submit a descriptive statement 

comprised of two components. First, the 

statement should include a map or legal 

description of the area over which the 

tribe has authority to regulate surface 

water quality. Second, there should be 

a statement signed by the tribe’s legal 

counsel or equivalent explaining the 

legal basis for the tribe’s regulatory 

authority. EPA notes that section 518 of 

the CWA includes a delegation of 

authority from Congress to eligible 

Indian tribes to regulate the quality of 

waters of their reservations under the 

CWA. See 81 FR 30183 (May 16, 2016). 

Absent rare circumstances that may 

affect a tribe’s ability to effectuate the 

delegation of authority, tribes may rely 

on the congressional delegation of 

authority included in section 518 of the 

statute as the source of authority to 

administer a section 401 water quality 

certification program. This is identical 

to the manner in which tribes have been 

demonstrating authority for eligibility to 

administer 401 certifications under 

existing TAS regulations, the only 

change being that under the new 

proposed regulations, tribes would be 

able to seek TAS eligibility for section 

401 only. Similarly, as with tribes 

already administering section 401 under 

prior TAS approvals, the authority to 

issue certifications exercised by a tribe 

authorized under the new proposed 

regulation will, by virtue of the 

congressional delegation, apply 

throughout the reservation area covered 

by the TAS approval, irrespective of 

land ownership or the tribal 

membership status of the Federal 

license applicant. See, e.g., 81 FR 30190. 

Therefore, grants or waivers of 

certification by an authorized tribe, as 

well as any conditions included in a 

certification or denials of certification 

by an authorized tribe, would apply to 

any application for a Federal license 

throughout the relevant reservation 

without any separate need to 

demonstrate inherent tribal jurisdiction. 

A tribe may satisfy the fourth criterion 

regarding its capability by either (1) 

providing a description of the tribe’s 

technical and management skills to 

administer a water quality certification 

program or (2) providing a plan that 

proposes how the tribe will acquire 

such skills. Additionally, when 

considering tribal capability, EPA 

would also consider whether the tribe 

can demonstrate the existence of 

institutions that exercise executive, 

legislative, and judicial functions, and 

whether the tribe has a history of 

successful managerial performance of 

public health or environmental 

programs. 

To provide direction on how a tribe 

may meet the criteria described above, 

EPA is also proposing to describe the 

contents of an application for TAS for 

section 401. See proposed 40 CFR 

121.11(b). These contents include a 

statement that the tribe is recognized by 

the Secretary of the Interior, a 

descriptive statement that demonstrates 

the tribal government carries out 

substantial duties and powers, a 

descriptive statement of the tribe’s 

authority to regulate water quality, and 

a narrative statement that describes the 

tribe’s capability to administer a section 

401 water quality certification program. 

Consistent with existing TAS 

regulations for other programs, the 

proposed rulemaking also provides that 

tribal applicants include additional 

documentation that may be required by 

EPA to support the tribal application. 

Each TAS application will present its 

own set of legal and factual 

circumstances, and EPA anticipates that 

in some cases it may be necessary to 

request additional information when 

reviewing a tribe’s application. Such 

requests would, for instance, generally 

relate to ensuring that the application 

contains sufficient complete 

information to address the required 

statutory and regulatory TAS criteria. 

This could include, for instance, 

information relating to a unique issue 

pertaining to the applicant tribe or its 

reservation or an issue identified during 

the comment process described below. 

Consistent with longstanding practice, 

the Agency would work with tribes in 

an appropriately streamlined manner to 

ensure that their TAS applications 

contain all necessary information to 

address applicable statutory and 

regulatory criteria. If a tribe has 

previously qualified for TAS under 

another EPA program, the tribe is only 

required to submit information that was 

not previously submitted as part of a 

prior TAS application. 

EPA is also proposing to describe 

EPA’s procedures to review and process 

an application for section 401 TAS. See 

proposed 40 CFR 121.11(c). Under this 

proposal, once EPA receives a complete 

tribal application, it will promptly 

notify the tribe of receipt and process 

the application in a timely manner. 

Within 30 days after receipt of the 

tribe’s complete application for section 

401 TAS, EPA shall provide notice to 

appropriate governmental entities 68 of 

the application, including information 

on the substance of and basis for the 

tribe’s assertion of authority to regulate 

reservation water quality. Appropriate 


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69See 2010 Handbook (rescinded); 85 FR 42274. 70 33. U.S.C. 1341(a)(1) (‘‘In any case where a 

State or interstate agency has no authority to give 

such a certification, such certification shall be from 

the Administrator.’’) 

71Under section 401(a)(2), once EPA determines 

that a federally licensed or permitted discharge may 

affect the water quality of a neighboring 

jurisdiction, EPA must notify that neighboring 

jurisdiction. 33 U.S.C. 1341(a)(2). In turn, the 

neighboring jurisdiction has 60 days to evaluate the 

notice and determine whether the discharge will 

violate its water quality requirements, object to the 

issuance of the license or permit, and request a 

public hearing from the Federal licensing or 

permitting agency. Id. Ultimately, the Federal 

licensing or permitting agency is responsible for 

evaluating the neighboring jurisdiction’s input, in 

addition to EPA’s input and other input received at 

the public hearing, to determine whether it needs 

to condition the license or permit to assure that it 

will comply with the neighboring jurisdiction’s 

water quality requirements. If conditions cannot 

assure such compliance, then the Federal agency 

may not issue the license or permit. Id. 

governmental entities will be given 30 

days to provide comment on the tribe’s 

assertion of authority. Consistent with 

prior practice regarding such notice in 

connection with TAS applications for 

other programs, EPA also intends to 

provide sufficiently broad notice (e.g., 

through local newspapers, electronic 

media, or other appropriate media) to 

inform other potentially interested 

entities of the applicant tribe’s complete 

application and of the opportunity to 

provide relevant information regarding 

the tribe’s assertion of authority. If the 

tribe’s assertion of authority is 

challenged, EPA will determine whether 

the tribe has adequately demonstrated 

authority to regulate water quality on 

the reservation after considering all 

relevant comments received. 

However, if a tribe previously 

qualified for TAS for another program 

that also required a tribe to demonstrate 

authority to regulate reservation water 

quality (i.e., CWA section 303(c) 

program, CWA section 303(d) program, 

CWA section 402 program, or CWA 

section 404 program) and EPA provided 

a notice and comment opportunity, the 

Agency would not require notice on the 

tribe’s assertion of authority to 

appropriate governmental entities in the 

section 401 TAS application unless 

there were different jurisdictional issues 

or significant new factual or legal 

information relevant to jurisdiction. 

EPA thinks this approach could help 

streamline the process and avoid a 

potentially duplicative notice process. 

The Agency is proposing to apply this 

approach prospectively only, i.e., where 

the tribe obtains TAS for the CWA 

section 303(c), 402, or 404 programs 

after the effective date of this rule. In 

other words, if a tribe first gains TAS for 

another CWA regulatory program after 

this rule is finalized, and subsequently 

seeks TAS under this rule, additional 

notice and comment would not be 

required as part of the section 401 TAS 

application unless different 

jurisdictional issues or significant new 

factual or legal information relevant to 

jurisdiction are presented in the 401 

application. If the Regional 

Administrator determines that a tribe’s 

application meets the requirements 

proposed in § 121.11(b), the Regional 

Administrator would promptly notify 

the tribe in writing. A decision by the 

Regional Administrator that a tribe does 

not meet the requirements proposed in 

§ 121.11(b) would not preclude the tribe 

from resubmitting the application at a 

future date. If the Regional 

Administrator determines that a tribal 

application is deficient or incomplete, 

EPA will identify such deficiencies and 

gaps so the tribe can make changes as 

appropriate and necessary. 

Promulgating a regulation expressly 

providing a process and requirements 

for section 401 TAS in the absence of 

303(c) TAS is consistent with section 

518 and would provide clarity and 

increased opportunities for interested 

tribes to participate in section 401. 

Additionally, developing regulations on 

section 401 TAS as a standalone process 

for tribes seeking this authority who are 

not concurrently applying for section 

303(c) TAS may encourage more tribes 

to seek TAS for section 401. Decoupling 

section 401 TAS from section 303(c) 

recognizes that section 401 and section 

303 administration are related, but 

distinct functions and is responsive to 

tribal stakeholders who have expressed 

an interest in participating in the 

section 401 certification process. EPA is 

requesting comment on this more 

targeted proposed approach to obtaining 

TAS for section 401. 

2. Obtaining TAS for Section 401(a)(2) 

If a tribe receives TAS for section 401, 

it is treated in a manner similar to a 

state and considered an ‘‘authorized 

tribe’’ for purposes of exercising its 

statutory authority under section 401. 

Generally, the Federal statutory and the 

proposed regulatory requirements for 

state water quality certification would 

apply to authorized tribes, including 

acting as a certifying authority and 

neighboring jurisdiction, as appropriate. 

However, EPA is also proposing 

regulatory language that would allow a 

tribe to apply for TAS for only the 

limited purpose of being a neighboring 

jurisdiction under section 401(a)(2). As 

noted above, prior Agency guidance and 

the 2020 Rule preamble expressed the 

interpretation that only tribes with TAS 

status may participate as a neighboring 

jurisdiction under section 401.69 This is 

because, unlike section 401(a)(1), which 

specifically requires EPA to act as a 

certifying authority on behalf of 

jurisdictions without the authority to 

certify,70 section 401(a)(2) only provides 

‘‘states’’ with an opportunity to 

participate as a neighboring jurisdiction. 

Although 78 tribes have received TAS 

for section 401 to date, EPA recognizes 

that some tribes may not desire or have 

the resources to apply for the section 

401 certification program. However, preproposal input suggests that tribes may 

wish to be notified about, and have the 

ability to object to and provide 

information regarding, potential Federal 

licenses and permits that may impact 

their waters. Several tribal stakeholders 

have expressed concern that tribes 

without TAS are not able to participate 

in the section 401(a)(2) neighboring 

jurisdiction process. In light of this 

input, EPA is proposing to provide 

tribes with an opportunity to seek TAS 

authorization for the limited purpose of 

being a neighboring jurisdiction 

pursuant to section 401(a)(2). 

This approach has been taken in other 

EPA programs. For example, the 

Agency’s regulations under the Clean 

Air Act provide opportunities for 

interested tribes to seek TAS 

authorization for reasonably severable 

elements of programs under that statute, 

so long as such elements are not 

integrally related to program elements 

that are not included and are consistent 

with applicable statutory and regulatory 

requirements. See 40 CFR 49.7(c). Under 

that authority, EPA has approved tribes 

for TAS authorization for the procedural 

comment opportunity provided in 

connection with issuance of certain 

permits by upwind permitting 

authorities, without requiring those 

tribes to seek authorization for the entire 

relevant program. See 42 U.S.C. 

7661d(a)(2). 

EPA thinks that the neighboring 

jurisdiction role under section 401(a)(2) 

is similar. See discussion in section V.K 

in this preamble.71 EPA thinks it is 

appropriate to allow tribes wishing to 

protect their water quality interests 

under section 401(a)(2) to apply for and 

obtain TAS status to do so 

independently of whether they also 

desire to take on the separate 

responsibility to act pursuant to sections 

401(a)(1) and 401(d). Nothing in the 

language of section 401 precludes this 

approach. 

Additionally, EPA thinks that the 

neighboring jurisdiction role under 

section 401(a)(2) is reasonably severable 

from the statute’s other water quality 

certification activities. Section 401 

provides separate and distinct roles for 


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72See e.g., 33 CFR 325.2 (water quality 

certification on section 404 permits); 18 CFR 4.34 

(water quality certification on FERC hydropower 

licenses); 40 CFR 124.53 through 124.55 (water 

quality certification on EPA-issued NPDES 

permits). 

73On October 21, 2021, the U.S. District Court for 

the Northern District of California issued an order 

remanding and vacating EPA’s 2020 Rule. The 

vacatur was nationwide in scope, and the order 

required a temporary return to the 1971 Rule until 

EPA finalized a new certification rule. However, the 

U.S. Supreme Court issued a stay of the vacatur on 

April 6, 2022, which put the 2020 Rule back in 

effect pending the Ninth Circuit and potential 

Supreme Court appeal. Due to the stay of the 

vacatur pending appeal, EPA considers two 

baselines in the economic analysis. 

certifying authorities and neighboring 

jurisdictions. As noted above, the 

statutory language expressly provides a 

role for states and EPA to act as 

certifying authorities in section 

401(a)(1), but only provides a role for 

states to act as a neighboring 

jurisdiction in section 401(a)(2). While 

both sections allow states and tribes 

with TAS status to inform the Federal 

licensing or permitting process, there 

are significant differences. For example, 

if a certifying authority places 

conditions on a Federal license or 

permit through a water quality 

certification, the Federal agency must 

incorporate those conditions into the 

license or permit. 33 U.S.C. 1341(d). 

However, if a neighboring jurisdiction 

objects to a Federal license or permit 

and recommends conditions it would 

like to see in the Federal license or 

permit, the Federal agency must 

consider that objection and 

recommended conditions as part of its 

broader analysis, but it is not required 

to incorporate them verbatim as 

required by section 401(d). Rather, the 

Federal agency is only required to 

impose a neighboring jurisdiction’s 

recommended conditions to the extent 

they are necessary to assure compliance 

with the neighboring jurisdiction’s 

applicable water quality requirements. 

Id. at 1341(a)(2). 

EPA thinks that authorizing tribes to 

obtain TAS solely for section 401(a)(2) 

would allow tribes not interested in 

issuing their own certifications to have 

an opportunity to participate as a 

neighboring jurisdiction where 

discharges into another jurisdiction’s 

waters may affect their own water 

quality. The proposed approach is 

responsive to stakeholder feedback and 

promotes tribal agency by providing an 

opportunity for tribes to protect their 

water quality by participating in the 

section 401 certification process without 

requiring the tribe to assume all of the 

authorities and responsibilities of 

section 401. EPA is soliciting comment 

on the proposed provisions, as well as 

comment on any alternative approaches. 

In section V.E in this preamble, EPA 

discussed the term ‘‘any other 

appropriate requirement of State law.’’ 

That discussion applies equally to tribal 

law for those tribes that obtain TAS 

status, either for section 401 in its 

entirely or only for section 401(a)(2). 

There is no reason to treat a tribe’s laws 

differently than a state’s laws with 

respect to their ability to form the legal 

basis for a certification decision or any 

conditions the tribe might find 

necessary to include in a certification. 

Once it attains TAS status, a tribe stands 

on equal footing with a state regarding 

its ability to carry out its functions 

under sections 401(a)(1), 401(d) and 

401(a)(2). Accordingly, a tribe with TAS 

status under section 401(a)(2) may rely 

upon any of its water quality-related 

laws in deciding whether to issue a 

certification (or conditions) under 

sections 401(a)(1) and (d) or object to a 

Federal license or permit under section 

401(a)(2). 

M. Implementation Considerations 

EPA recognizes that both certifying 

authorities and Federal agencies have 

existing regulations addressing 

implementation of section 401. For 

example, as discussed in section V.C in 

this preamble, the Agency is aware that 

some certifying authorities have 

regulations defining the contents of a 

request for certification. As a result of 

this rulemaking effort, certifying 

authorities may choose to modify their 

existing regulations if certain proposed 

provisions are finalized (e.g., they may 

choose to define the contents of a 

certification request in regulation 

instead of relying on EPA’s proposed 

definition). Similarly, EPA is aware that 

the Corps, FERC, and EPA’s NPDES 

program have separate section 401 

implementation regulations addressing 

their respective licensing or permitting 

programs.72 EPA expects that Federal 

agencies with existing section 401 

implementing regulations will evaluate 

their regulations and other guidance 

documents to ensure consistency with 

this regulation. EPA is requesting 

comment on the types of 

implementation materials that EPA 

should develop to assist Federal 

agencies and certifying authorities to 

implement any proposed or alternative 

provisions discussed throughout this 

preamble. 

VI. Economic Analysis 

Pursuant to Executive Orders 12866 

(Regulatory Planning and Review) and 

13563 (Improving Regulation and 

Regulatory Review), EPA has prepared 

an economic analysis (EA) to inform the 

public of potential effects associated 

with this proposed rulemaking. This 

analysis is not required by the CWA. 

To support the proposed rulemaking, 

EPA prepared an EA and other related 

rule analyses to assess potential impacts 

of the rule. These analyses seek to 

evaluate the benefits and costs of the 

proposed rulemaking and the effects of 

the rule on vulnerable groups and small 

entities. The EA presents an overview of 

practice under the 1971 Rule and 2020 

Rule (baselines),73 a description of the 

proposed changes, and an assessment of 

the potential impacts of the proposed 

rulemaking on project proponents, 

certifying authorities, and Federal 

agencies when transitioning from the 

baselines of regulatory practice to the 

new proposed requirements. Appendix 

A in the EA provides a plain-language 

comparison of the 1971 Rule, 2020 Rule, 

and proposed rulemaking provisions in 

a table format. Within the EA, the 

Agency included discussion of the 

environmental benefits and process 

costs with examples relative to the 

proposed rulemaking provisions. EPA 

also assessed environmental justice 

impacts of the proposed rulemaking on 

vulnerable communities and impacts on 

small entities. The Agency also 

prepared an Information Collection 

Request Supporting Statement which 

describes the overall burden of the 

section 401 regulations. See section 

VII.B in this preamble. 

Section 401 certification decisions 

have varying effects on certifying 

authorities and project proponents. 

However, the Agency has limited data 

regarding the number of certification 

requests submitted and the certification 

decisions taken on certification requests 

(i.e., whether the certification requests 

were granted, granted with conditions, 

denied, or waived). The Agency does 

not maintain a national database of 

certifying authority decisions and 

therefore did not have data available to 

perform a fully quantitative economic 

analysis. Given the absence of data 

related to section 401 regulations, EPA 

performed a qualitative analysis of the 

section 401 certification process under 

the 1971 Rule, the 2020 Rule, and under 

the proposed rulemaking.The Agency 

reviewed information from several 

sources to characterize section 401 

baseline conditions and understand 

potential impacts of the proposed 

regulatory changes. Specifically, the 

Agency investigated state and territory 

websites and assembled available 

information concerning section 401 fees 

and certification decisions. EPA also 

conducted a focused review of preVerDate Sep<11>2014 20:07 Jun 08, 2022 Jkt 256001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4702 E:\FR\FM\09JNP3.SGM 09JNP3

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74 Docket ID No. EPA–HQ–OW–2021–0302. 

proposal input letters 74 to extract any 

information concerning economic 

impacts of section 401 and key issues 

identified during implementation of 

section 401. Within the EA, EPA 

describes the various Federal licenses 

and permits that require section 401 

certification and the potential actions 

that certifying authorities may take 

pursuant to their section 401 authority. 

Additionally, the Agency summarized 

the annual number of licenses and 

permits that require section 401 

certification under different Federal 

authorities to determine the extent of 

licensing and permitting actions within 

the section 401 universe. These types of 

information are used in the EA to 

describe implementation practices and 

trends under the baselines and serve as 

the basis for assessing impacts of the 

proposed rulemaking. 

In determining the potential effects of 

the proposed rulemaking, EPA 

described the impacts of rule revisions 

in several key areas including pre-filing 

meetings, contents of certification 

requests, time period for review, 

neighboring jurisdictions, and tribal 

provisions for implementing section 

401. The 1971 Rule baseline did not 

include a pre-filing meeting request 

requirement. However, because prefiling meetings allow for early 

discussion of project details, such 

meetings would ultimately be expected 

to reduce burden elsewhere in the 

section 401 certification process. The 

2020 Rule does not provide certifying 

authorities with the option to waive or 

shorten the pre-filing meeting request 

requirement. The Agency anticipates 

that the proposed pre-filing meeting 

request provision would provide 

flexibility for certifying authorities to 

decide whether to require pre-filing 

meeting requests and whether to hold 

pre-filing meetings based on project 

complexity and other factors. Relative to 

both the 1971 Rule and 2020 Rule 

baselines, the Agency expects that the 

proposed requirement to include a copy 

of the draft license or permit with all 

requests for certifications would 

decrease the number of redundant and 

unnecessary certification conditions and 

increase the amount of relevant projectspecific information available to the 

certifying authority promoting a more 

efficient certification review process. 

Additionally, relative to the two 

baselines, the proposed changes 

concerning the reasonable time for 

certification review would balance 

equities between certifying authorities 

and Federal agencies and provide 

flexibility for certifying authorities and 

Federal agencies to determine the 

optimal length for the reasonable period 

of time or any extensions, provided they 

do not exceed one year from receipt. For 

example, the proposed rulemaking 

would allow certifying authorities to 

ensure that the reasonable period of 

time is informed by the size and 

complexity of the project, the certifying 

authority’s available resources (e.g., staff 

size), and public notice and comment 

requirements. Allowing the certifying 

authority and Federal agency to 

negotiate a reasonable period of time at 

the beginning of the certification 

process (subject to a 60-day default) is 

also likely to improve the efficiency of 

the review process. The proposed rule 

also provides greater clarity regarding 

the process to protect neighboring 

jurisdiction waters (e.g., by specifying 

the contents of a notification from a 

Federal agency to EPA), which is also 

expected to increase its efficiency. This 

clarity and efficiency is expected when 

using the 1971 Rule as the baseline, as 

well as for the 2020 Rule baseline 

(though potentially to a lesser extent 

due to some updated provisions in the 

2020 Rule). Neither the 1971 Rule nor 

the 2020 Rule included TAS provisions. 

Proposed revisions permitting tribes to 

obtain TAS solely for section 401 and, 

if desired, to only obtain TAS for the 

purpose of participating as neighboring 

jurisdictions under section 401(a)(2), 

would provide tribes with a greater 

ability to protect their water resources 

from the adverse effects of pollution 

from federally licensed or permitted 

projects. 

In some areas, the proposed 

rulemaking would revive practices that 

had been widely implemented for 50 

years before the 2020 Rule. Specifically, 

the proposal would return the scope of 

a certifying authority’s section 401 

review as encompassing the ‘‘activity as 

a whole,’’ which is consistent with 

longstanding Agency and certifying 

authority practice and allows certifying 

authorities to protect their waters from 

the widest range of impacts. The Agency 

is proposing to put back a certification 

modification process, allowing 

certifying authorities and Federal 

agencies the flexibility to mutually agree 

on circumstances warranting 

modification. Provided that certification 

modification efforts are appropriately 

coordinated, the modification process 

under the proposed rulemaking would 

allow certifying authorities to adapt to 

changes in environmental and 

regulatory conditions, and provide 

needed flexibility to accommodate 

changed circumstances after issuance of 

a section 401 certification. 

EPA anticipates that the proposed 

rulemaking will enhance the ability of 

states and tribes to protect their water 

resources by clarifying key components 

of the water quality certification process 

and improving coordination between 

Federal agencies, certifying authorities, 

and project proponents. The Agency is 

seeking comment on the EA and 

information collection request, 

including the information used to 

inform the Agency’s understanding of 

baseline conditions. Additionally, EPA 

is requesting comment on any 

additional data sources that can be used 

to characterize the baseline for section 

401 implementation and serve as the 

basis for understanding the potential 

impacts of any of these proposed 

regulatory changes. 

VII. Statutory and Executive Order 

Reviews 

Additional information about these 

statutes and Executive orders can be 

found at http://www.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review; Executive Order 

13563: Improving Regulation and 

Regulatory Review 

This action is a significant regulatory 

action that was submitted to the Office 

of Management and Budget (OMB) for 

review. Any changes made in response 

to OMB recommendations have been 

documented in the docket for this 

action. The Agency prepared an 

economic analysis of the potential 

benefits and costs associated with this 

action. This analysis, the Economic 

Analysis for the Proposed Rule, is 

available in the docket for this action 

and is briefly summarized in section VI 

in this preamble. 

B. Paperwork Reduction Act (PRA) 

The information collection activities 

in this proposed rulemaking have been 

submitted for approval to OMB under 

the PRA. The Information Collection 

Request (ICR) document that EPA 

prepared has been assigned EPA ICR 

number 2603.06. A copy of the ICR is 

included in the docket for this rule, and 

it is briefly summarized here. 

The information collected under 

section 401 is used by certifying 

authorities and EPA to evaluate 

potential water quality impacts from 

federally licensed or permitted projects. 

When states or tribes with TAS act as 

the certifying authority, the primary 

collection of this information is 

performed by the Federal agencies 

issuing the licenses or permits or the 

states and tribes acting as certifying 

authorities. When EPA acts as the 


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certifying authority or evaluates 

potential neighboring jurisdiction 

impacts, the information is collected by 

EPA. Information collected directly by 

EPA under section 401 in support of the 

section 402 NPDES program is already 

captured under existing ICR No. 

0229.255 (OMB Control No. 2040–0004). 

The information collected under section 

518(e) is used by EPA to determine 

whether a tribe is eligible for TAS for 

section 401 or section 401(a)(2). 

Information collected directly by EPA 

under section 518(e) in support of the 

process for tribes to obtain TAS for 

CWA section 303(c) and section 401 

simultaneously is already captured 

under existing ICR No. 0988.14 (OMB 

Control No. 2040–0049). 

The proposed revisions clarify the 

nature of the information project 

proponents must include in a request 

for section 401 certification. They also 

contain a pre-filing meeting request 

requirement for project proponents 

which may be waived or shortened by 

a certifying authority. The proposed 

revisions also provide tribes with the 

ability to obtain TAS solely for either 

section 401 or section 401(a)(2). Total 

annual burden for respondents (project 

proponents and certifying authorities 

and tribes applying for TAS) are 

anticipated to be 861,274 hours with the 

associated annual labor costs being 

approximately $47 million. EPA expects 

that these proposed revisions will 

provide additional transparency in the 

certification modification and section 

401(a)(2) contexts. EPA expects these 

proposed revisions to provide greater 

clarity regarding section 401 

requirements, to reduce the overall 

preparation time spent by a project 

proponent on certification requests, and 

to reduce the review time for certifying 

authorities. EPA solicits comment on 

whether there are ways it can increase 

clarity, reduce the information 

collection burden, or improve the 

quality or utility of the information 

collected, or the information collection 

process itself, in furtherance of goals 

and requirements of section 401. 

In the interest of transparency, EPA is 

providing the following summary of the 

relevant portions of the burden 

assessment associated with EPA’s 

existing certification regulations. EPA 

does not expect any measurable change 

in information collection burden 

associated with the proposed 

rulemaking changes. 

Respondents/affected entities: Project 

proponents, state and tribal reviewers 

(certifying authorities), tribes applying 

for TAS. 

Respondent’s obligation to respond: 

Required to obtain section 401 water 

quality certification; voluntary for tribes 

to apply for TAS. 

Estimated number of respondents: 

154,006 responses from 72,125 

respondents annually. 

Frequency of response: Variable (one 

per Federal license or permit 

application, or only once) depending on 

type of information collected. 

Total estimated burden: 861,274 

hours (per year). Burden is defined at 5 

CFR 1320.3(b). 

Total estimated cost: $47 million (per 

year), includes $0 annualized capital or 

operation & maintenance costs. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

Submit your comments on the 

Agency’s need for this information, the 

accuracy of the provided burden 

estimates and any suggested methods 

for minimizing respondent burden to 

the EPA using the docket identified at 

the beginning of this rule. The EPA will 

respond to any ICR-related comments in 

the final rule. You may also send your 

ICR-related comments to OMB’s Office 

of Information and Regulatory Affairs 

using the interface at www.reginfo.gov/ 

public/do/PRAMain. Find this 

particular information collection by 

selecting ‘‘Currently under Review— 

Open for Public Comments’’ or by using 

the search function. OMB must receive 

comments no later than [INSERT DATE 

60 DAYS AFTER DATE OF 

PUBLICATION IN THE FEDERAL 

REGISTER]. 

C. Regulatory Flexibility Act (RFA) 

I certify that this proposed rulemaking 

will not have a significant economic 

impact on a substantial number of small 

entities under the RFA. The small 

entities subject to the requirements of 

this action are small businesses 

applying for Federal licenses or permits 

subject to section 401 certification, 

which includes construction, 

manufacturing, mining, and utility 

businesses. Section 401 requires project 

proponents to obtain a water quality 

certification from the certifying 

authority where the potential discharge 

originates or will originate before it may 

obtain such Federal license or permit. 

Small entities are not subject to 

economic impacts from the proposed 

rule’s requirements on certifying 

authorities, Federal agencies, or 

neighboring jurisdictions because small 

entities do not act in those roles under 

section 401. 

EPA is not able to quantify the 

impacts of the proposed rulemaking on 

small entities due to several data 

limitations and uncertainties, which are 

described within the Economic Analysis 

for the Proposed Rule, available in the 

docket for this rulemaking. However, 

EPA is including a qualitative 

assessment of the potential impacts of 

the proposed rulemaking on project 

proponents that are small entities in the 

Economic Analysis. Based on the 

qualitative analysis, the Agency has 

determined that some small entities may 

experience some impact from the 

proposed rulemaking but that the 

impact would not be significant. See the 

Economic Analysis for details of the 

qualitative analysis. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain an 

unfunded mandate of $100 million or 

more as described in UMRA, 2 U.S.C. 

1531–1538, and does not significantly or 

uniquely affect small governments. 

While this action creates enforceable 

duties for the private sector, the cost 

does not exceed $100 million or more. 

This action does not create enforceable 

duties for state and tribal governments. 

See the Economic Analysis in the 

docket for further discussion on UMRA. 

E. Executive Order 13132: Federalism 

Under the technical requirements of 

Executive Order 13132 (64 FR 43255, 

August 10, 1999), EPA has determined 

that this proposed rulemaking does not 

have federalism implications but 

expects that this proposed rulemaking 

may be of significant interest to state 

and local governments. 

EPA is proposing updates to its CWA 

section 401 regulation to provide greater 

clarity and flexibility for certifying 

authorities in relation to acting on prefiling meeting requests, contents of 

requests for certification, and acting 

within the reasonable period of time. 

EPA is also proposing to clarify the 

scope of Federal agency review of 

certification decisions; however, 

nothing in EPA’s proposed rulemaking 

would preempt state law. These 

proposed regulatory clarifications and 

revisions will reinforce the authority 

granted to states by CWA section 401 to 

protect their water quality, which had 

been exercised by the states prior to 

implementation of the 2020 Rule. 

Prior to proposing this rule, EPA 

solicited recommendations and 

conducted pre-proposal outreach, such 

as virtual listening sessions, where 

many state and local governments, 

intergovernmental associations, and 

other associations representing state and 


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local governments participated. 

Specifically, EPA hosted webinar-based 

listening sessions for pre-proposal input 

on June 14, June 15, June 23, and June 

24, 2021, with over 400 participants 

from most states and a few territories. 

Furthermore, EPA accommodated 

requests for listening sessions with 

representatives from the Association of 

Clean Water Administrators, the 

Association of State Wetland Managers, 

the Environmental Council of the States, 

Western States Water Council, Indiana 

Department of Environmental 

Management, Maryland Department of 

the Environment, New Mexico 

Environmental Department, New York 

Department of Environmental 

Conservation, Oregon Department of 

Environmental Quality, Virginia 

Department of Environmental Quality, 

and Washington Department of Ecology. 

All pre-proposal input letters and 

summaries of the webinar-based 

listening sessions are available in 

Docket ID No. EPA–HQ–OW–2021– 

0302. These webinars, meetings, and 

input letters provided a wide and 

diverse range of interests, positions, and 

recommendations to the Agency. The 

pre-proposal feedback from certifying 

authorities covered eight of the issues 

the EPA identified in the Federal 

Register document. See 86 FR 29543– 

44. Generally, participants advocated for 

states to have increased authority and 

flexibility to determine the needs and 

requirements for certification requests. 

In addition, states asked EPA to clarify 

definitions and conveyed support for 

interim guidance and immediate relief 

as they continued to implement the 

2020 Rule. 

After publishing this proposed 

rulemaking, EPA will conduct 

additional outreach and engagement 

with state and local government 

officials, or their representative national 

organizations, prior to finalizing a rule. 

All comment letters and 

recommendations received by EPA 

during the comment period from state 

and local governments will be included 

in the proposed rulemaking docket 

(Docket ID No. EPA–HQ–OW–2022– 

0128). 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action may have implications for 

tribal governments. However, it will 

neither impose substantial direct 

compliance costs on federally 

recognized tribal governments, nor 

preempt tribal law. This action may 

change how tribes with TAS for section 

401 administer the section 401 program, 

but it will not have an administrative 

impact on tribes on whose behalf EPA 

issues certifications. As discussed in the 

preamble, EPA expects this proposal to 

expand and further clarify the 

opportunities for tribal participation in 

the CWA section 401 water quality 

certification process. 

EPA consulted with tribal officials 

under the EPA Policy on Consultation 

and Coordination With Indian Tribes 

early in the process of developing this 

proposed rulemaking to allow them to 

have meaningful and timely input into 

its development. 

The Agency initiated a tribal 

consultation and coordination process 

before proposing this rule by sending a 

‘‘Notification of Consultation and 

Coordination’’ letter, dated June 7, 2021, 

to all 574 of the tribes federally 

recognized at that time (see Docket ID 

No. EPA–HQ–OW–2021–0302). The 

letter invited tribal leaders and 

designated consultation representatives 

to participate in the tribal consultation 

and coordination process for this 

rulemaking. In addition to two national 

tribal webinars held on June 29 and July 

7, 2021, the Agency convened other 

listening sessions, that tribal members 

and representatives attended, for 

certifying authorities and the public. 

EPA continued outreach and 

engagement with tribes and sought other 

opportunities to provide information 

and hear feedback from tribes at 

national and regional tribal meetings 

during and after the end of the 

consultation period. The Agency did not 

receive any consultation requests. All 

tribal and tribal organization letters and 

webinar feedback are included in the 

pre-proposal docket (Docket ID No. 

EPA–HQ–OW–2021–0302), and a 

summary of the tribal consultation and 

coordination effort may be found in the 

docket for this action (Docket ID No. 

EPA–HQ–OW–2022–0128). 

Many tribal feedback letters or 

meeting participants expressed an 

interest in receiving additional 

information and in continued 

engagement with the Agency during 

development of the proposed 

rulemaking; however, most of these 

tribal representatives highlighted other 

ongoing rulemakings that also required 

their engagement. Common themes 

expressed in the tribal feedback letters 

included the need for applicants to 

submit complete certification requests, 

expanding the scope of certifications, 

cooperative federalism, concerns about 

a Federal agency’s unilateral ability to 

determine the reasonable period of time, 

and concerns about Federal agencies 

waiving certifying authority decisions. 

Feedback was relatively consistent 

across these stakeholders regardless of 

whether the feedback was from tribes 

having TAS or not. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

EPA interprets Executive Order 13045 

as applying only to those regulatory 

actions that concern environmental 

health or safety risks that EPA has 

reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive order. This action is not 

subject to Executive Order 13045 

because it does not concern an 

environmental health risk or safety risk. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ because it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

I. National Technology Transfer and 

Advancement Act 

This proposed rulemaking does not 

involve technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

EPA believes that this action does not 

have disproportionately high and 

adverse human health or environmental 

effects on minority populations, lowincome populations and/or indigenous 

peoples, as specified in Executive Order 

12898 (59 FR 7629, February 16, 1994). 

The documentation for this decision is 

contained in the Economic Analysis for 

the Proposed Rule, which can be found 

in the docket for this action and is 

briefly summarized in section VI in this 

preamble. 

The Agency recognizes that the 

burdens of environmental pollution 

disproportionately fall on population 

groups of concern (e.g., minority, lowincome, and indigenous populations as 

specified in Executive Order 12898), 

and EPA is responsive to environmental 

justice concerns through multiple 

provisions in this proposal. The 

proposed pre-filing meeting request 

requirement provides a mechanism to 

ensure certifying authorities can request 

and receive information needed to 

protect their water resources and 

population groups of concern during 

early engagement. Additionally, the 

proposal to include a copy of the draft 

permit or license in a ‘‘request for 

certification’’ empowers certifying 


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75Under section 401(a)(1), a certifying authority 

is required to provide public notice on a request for 

certification. 

authorities with more details upfront 

about the project to make a wellinformed decision that may affect 

population groups of concern, 

promoting environmental justice and 

transparency in the certification 

process. This also enables certifying 

authorities to share a greater level of 

detail with the public (including 

population groups of concern that may 

be impacted by a proposed project), so 

that participants in the public notice 

and comment process can provide better 

informed input.75 Under the proposed 

collaborative approach for determining 

the reasonable period of time, certifying 

authorities can take the needs of 

population groups of concern into 

account when determining the amount 

of time they need to review and evaluate 

the potential impacts of a proposed 

project on the communities’ water 

resources (e.g., a certifying authority 

may suggest a longer reasonable period 

of time to facilitate outreach to 

population groups of concern or to 

conduct studies on a proposed project’s 

impact on these communities). 

Additionally, the ‘‘activity as a whole’’ 

approach for scope of review has the 

potential to benefit population groups of 

concern by ensuring that the certifying 

authority can broadly review the 

potential water quality impacts on those 

communities. The proposed TAS 

provisions for section 401 as a whole or 

for section 401(a)(2) give tribes 

additional options to obtain TAS, as 

well as more opportunities to provide 

input and voice any water quality 

concerns during the certification 

process. Lastly, when EPA is acting as 

the certifying authority, the Agency is 

proposing to update the public notice 

provision to facilitate participation by 

the broadest number of potentially 

interested stakeholders, including 

population groups of concern. These 

proposed approaches and their 

responsiveness to environmental justice 

concerns is further discussed within the 

environmental justice section of the 

Economic Analysis. 

List of Subjects 

40 CFR Part 121 

Environmental protection, 

Administrative practice and procedure, 

Intergovernmental relations, Water 

pollution control. 

40 CFR Part 122 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous substances, Reporting and 

recordkeeping requirements, Water 

pollution control. 

40 CFR Part 124 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Hazardous waste, 

Indians-lands, Reporting and 

recordkeeping requirements, Water 

pollution control, Water supply. 

Michael S. Regan, 

Administrator. 

For the reasons set out in the 

preamble, EPA proposes to amend 40 

CFR parts 121, 122, and 124 as follows: 

■ 1. Revise part 121 to read as follows: 

PART 121—STATE CERTIFICATION OF 

ACTIVITIES REQUIRING A FEDERAL 

LICENSE OR PERMIT 

Sec. 

Subpart A—General 

121.1 Definitions. 

121.2 When certification is required. 

121.3 Scope of certification. 

121.4 Pre-filing meeting requests. 

121.5 Request for certification. 

121.6 Reasonable period of time. 

121.7 Certification decisions. 

121.8 Failure or refusal to act. 

121.9 Federal agency review. 

121.10 Modifications. 

121.11 Requirements for Indian Tribes to 

administer a water quality certification 

program. 

Subpart B—Neighboring Jurisdictions 

121.12 Notification to the Regional 

Administrator. 

121.13 Determination of effects on 

neighboring jurisdictions. 

121.14 Neighboring jurisdiction objection 

and request for a public hearing. 

121.15 Public hearing and Federal agency 

evaluation of neighboring jurisdiction 

objection. 

Subpart C—Certification by the 

Administrator 

121.16 When the Administrator certifies. 

121.17 Public notice and hearing. 

Subpart D—Review and Advice 

121.18 Review and advice. 

Authority: 33 U.S.C. 1251 et seq. 

Subpart A—General 

§ 121.1 Definitions. 

As used in this part, the following 

terms shall have the meanings 

indicated: 

(a) Activity as a whole means any 

aspect of the project activity with the 

potential to affect water quality. 

(b) Administrator means the 

Administrator, Environmental 

Protection Agency (EPA). 

(c) Application means an application 

for a license or permit submitted to a 

Federal agency, or if available, the draft 

license or permit. 

(d) Certifying authority means the 

entity responsible for certifying 

compliance with applicable water 

quality requirements in accordance with 

Clean Water Act section 401. 

(e) Federal agency means any agency 

of the Federal Government to which 

application is made for a license or 

permit that is subject to Clean Water Act 

section 401. 

(f) Federal Indian Reservation, Indian 

reservation, or reservation means all 

land within the limits of any Indian 

reservation under the jurisdiction of the 

United States Government, 

notwithstanding the issuance of any 

patent, and including rights-of-way 

running through the reservation. 

(g) Indian Tribe or Tribe means any 

Indian Tribe, band, group, or 

community recognized by the Secretary 

of the Interior and exercising 

governmental authority over a Federal 

Indian Reservation. 

(h) License or permit means any 

license or permit issued or granted by 

an agency of the Federal Government to 

conduct any activity which may result 

in any discharge into waters of the 

United States. 

(i) Neighboring jurisdiction means any 

state, or tribe with treatment in a similar 

manner as a state for Clean Water Act 

section 401 in its entirety or only for 

Clean Water Act section 401(a)(2), other 

than the jurisdiction in which the 

discharge originates or will originate. 

(j) Project proponent means the 

applicant for a license or permit or the 

entity seeking certification. 

(k) Receipt means the date that a 

request for certification, as defined by 

the certifying authority, is documented 

as received by a certifying authority in 

accordance with the certifying 

authority’s applicable submission 

procedures. 

(l) Regional Administrator means the 

Regional designee appointed by the 

Administrator, Environmental 

Protection Agency. 

(m) Water quality requirements means 

any limitation, standard, or other 

requirement under sections 301, 302, 

303, 306 and 307 of the Clean Water 

Act, any Federal and state or tribal laws 

or regulations implementing those 

sections, and any other water qualityrelated requirement of state or tribal 

law. 

§ 121.2 When certification is required. 

Certification or waiver is required for 

any license or permit that authorizes an 

activity which may result in a discharge 

from a point source into a water of the 

United States. 


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§ 121.3 Scope of certification. 

When a certifying authority reviews a 

request for certification, it shall evaluate 

whether the activity as a whole will 

comply with all applicable water quality 

requirements. 

§ 121.4 Pre-filing meeting requests. 

The project proponent shall request a 

pre-filing meeting from a certifying 

authority at least 30 days prior to 

submitting a request for certification in 

accordance with the certifying 

authority’s applicable submission 

procedures, unless the certifying 

authority waives or shortens the 

requirement for a pre-filing meeting 

request. 

§ 121.5 Request for certification. 

(a) A request for certification shall be 

in writing, signed, and dated and shall 

include a copy of the draft license or 

permit (unless legally precluded from 

obtaining a copy of the draft license or 

permit) and any existing and readily 

available data or information related to 

potential water quality impacts from the 

proposed project. 

(b) Where a project proponent is 

seeking certification from the Regional 

Administrator, a request for certification 

shall also include the additional 

contents identified in paragraph (c) of 

this section. Where a project proponent 

is seeking certification from a certifying 

authority other than the Regional 

Administrator, and that certifying 

authority has not identified in 

regulation additional contents of a 

request for certification, the project 

proponent shall submit a request for 

certification as defined in paragraph (c) 

of this section. 

(c) A request for certification 

submitted to the Regional Administrator 

shall include the following, if not 

already included in the draft license or 

permit: 

(1) The name and address of the 

project proponent; 

(2) The project proponent’s contact 

information; 

(3) Identification of the applicable 

Federal license or permit, including 

Federal license or permit type, project 

name, project identification number, 

and a point of contact for the Federal 

agency; 

(4) Where applicable, a list of all other 

Federal, interstate, tribal, state, 

territorial, or local agency 

authorizations required for the proposed 

activity and the current status of each 

authorization; and 

(5) Documentation that a pre-filing 

meeting request was submitted to the 

certifying authority in accordance with 

applicable submission requirements, 

unless a pre-filing meeting request has 

been waived. 

(d) A certifying authority shall send 

written confirmation of the date of 

receipt of the request for certification to 

the project proponent and Federal 

agency. 

§ 121.6 Reasonable period of time. 

(a) The reasonable period of time shall 

begin upon receipt of a request for 

certification. 

(b) The Federal agency and the 

certifying authority may, within 30 days 

of receipt of a request for certification, 

jointly agree in writing to a reasonable 

period of time for the certifying 

authority to act on the request for 

certification, provided the reasonable 

period of time does not exceed one year 

from receipt. 

(c) If the Federal agency and the 

certifying authority do not agree on the 

length of a reasonable period of time 

within 30 days of receipt of a request for 

certification, the reasonable period of 

time shall be 60 days. If a longer period 

of time is necessary to accommodate the 

certifying authority’s public notice 

requirements or force majeure events 

(including, but not limited to, 

government closure or natural 

disasters), upon notification by the 

certifying authority prior to the end of 

the reasonable period of time, the 

reasonable period of time shall be 

extended by the period of time 

necessitated by public notice 

requirements or the force majeure event. 

In its notification, the certifying 

authority shall provide the Federal 

agency with a justification for such 

extension in writing. Such an extension 

may not exceed one year from receipt of 

the certification request. 

(d) The Federal agency and certifying 

authority, after consulting with the 

project proponent, may agree to extend 

the reasonable period of time in writing 

for any other reason, provided the 

reasonable period of time as extended 

does not exceed one year from receipt 

of the request for certification. 

§ 121.7 Certification decisions. 

(a) A certifying authority may act on 

a request for certification in one of four 

ways: grant certification, grant 

certification with conditions, deny 

certification, or expressly waive 

certification. 

(b) A certifying authority shall act on 

a request for certification within the 

scope of certification, as defined at 

§ 121.3, and within the reasonable 

period of time, as determined pursuant 

to § 121.6. 

(c) A grant of certification by a 

certifying authority shall be in writing 

and include the following: 

(1) Name and address of the project 

proponent and identification of the 

applicable Federal license or permit; 

and 

(2) A statement that the activity as a 

whole will comply with water quality 

requirements. 

(d) A grant of certification with 

conditions by a certifying authority 

shall be in writing and include the 

following: 

(1) Name and address of the project 

proponent and identification of the 

applicable Federal license or permit; 

(2) Any conditions necessary to assure 

that the activity as a whole will comply 

with water quality requirements; and 

(3) A statement explaining why each 

of the included conditions is necessary 

to assure that the activity as a whole 

will comply with water quality 

requirements. 

(e) A denial of certification by a 

certifying authority shall be in writing 

and include the following: 

(1) Name and address of the project 

proponent and identification of the 

applicable Federal license or permit; 

and 

(2) A statement explaining why the 

certifying authority cannot certify that 

the activity as a whole will comply with 

water quality requirements. 

(f) An express waiver by a certifying 

authority shall be in writing and include 

the following: 

(1) Name and address of the project 

proponent and identification of the 

applicable Federal license or permit; 

and 

(2) A statement stating that the 

certifying authority expressly waives its 

authority to act on a request for 

certification. 

(g) If the certifying authority 

determines that no water quality 

requirements are applicable to the 

activity as a whole, the certifying 

authority shall grant certification. 

§ 121.8 Failure or refusal to act. 

The certification requirement shall be 

waived if a certifying authority fails or 

refuses to act on a request for 

certification in accordance with 

§ 121.7(a) within the reasonable period 

of time, as defined at § 121.6. 

§ 121.9 Federal agency review. 

(a) To the extent a Federal agency 

reviews a certification decision for 

compliance with Clean Water Act 

section 401, its review is limited to 

evaluating whether: 

(1) The certification decision 

indicates whether it is a grant, grant 


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with conditions, denial, or express 

waiver; 

(2) The proper certifying authority 

issued the certification decision; 

(3) The certifying authority provided 

public notice on the request for 

certification; and 

(4) The certification decision was 

issued within the reasonable period of 

time, as defined at § 121.6. 

(b) If a Federal agency determines that 

a certification decision does not meet 

the elements identified in paragraph 

(a)(1) or (3) of this section, the Federal 

agency shall notify the certifying 

authority and provide the certifying 

authority with an opportunity to ensure 

that its certification decision meets 

those elements. If necessary, the 

reasonable period of time shall be 

extended to provide the certifying 

authority with such an opportunity, but 

in no case shall the reasonable period of 

time exceed one year from the receipt of 

the certification request. 

(c) If a Federal agency determines that 

a certification decision does not meet 

the element identified in paragraph 

(a)(4) of this section, the Federal agency 

shall notify the certifying authority and 

project proponent in writing that the 

certification requirement has been 

waived in accordance with § 121.8. 

Such notice shall satisfy the project 

proponent’s obligations under Clean 

Water Act section 401. 

§ 121.10 Modifications. 

(a) The certifying authority may not: 

(1) Revoke or modify a denial of 

certification; 

(2) Revoke or modify a waiver of 

certification; 

(3) Revoke a grant of certification 

(with or without conditions); or 

(4) Modify a grant of certification 

(with or without conditions) into a 

denial or waiver of certification. 

(b) Provided that the Federal agency 

and the certifying authority agree in 

writing that the certifying authority may 

modify a grant of certification (with or 

without conditions), the certifying 

authority may modify the agreed upon 

portions of the certification. 

§ 121.11 Requirements for Indian Tribes to 

administer a water quality certification 

program. 

(a) The Regional Administrator may 

accept and approve a tribal application 

for purposes of administering a water 

quality certification program if the Tribe 

meets the following criteria: 

(1) The Indian Tribe is recognized by 

the Secretary of the Interior and meets 

the definitions in § 121.1(f) and (g); 

(2) The Indian Tribe has a governing 

body carrying out substantial 

governmental duties and powers; 

(3) The water quality certification 

program to be administered by the 

Indian Tribe pertains to the 

management and protection of water 

resources that are within the borders of 

the Indian reservation and held by the 

Indian Tribe, within the borders of the 

Indian reservation and held by the 

United States in trust for Indians, within 

the borders of the Indian reservation 

and held by a member of the Indian 

Tribe if such property interest is subject 

to a trust restriction on alienation, or 

otherwise within the borders of the 

Indian reservation; and 

(4) The Indian Tribe is reasonably 

expected to be capable, in the Regional 

Administrator’s judgment, of carrying 

out the functions of an effective water 

quality certification program in a 

manner consistent with the terms and 

purposes of the Clean Water Act and 

applicable regulations. 

(b) Requests by an Indian Tribe for 

administration of a water quality 

certification program should be 

submitted to the appropriate EPA 

Regional Administrator. The application 

shall include the following information, 

provided that where the Tribe has 

previously qualified for eligibility or 

‘‘treatment as a state’’ under another 

EPA-administered program, the Tribe 

need only provide the required 

information that has not been submitted 

in a previous application: 

(1) A statement that the Tribe is 

recognized by the Secretary of the 

Interior. 

(2) A descriptive statement 

demonstrating that the tribal governing 

body is currently carrying out 

substantial governmental duties and 

powers over a defined area. The 

statement should: 

(i) Describe the form of tribal 

government; 

(ii) Describe the types of 

governmental functions currently 

performed by the tribal governing body 

such as, but not limited to, the exercise 

of police powers affecting (or relating to) 

the health, safety, and welfare of the 

affected population, taxation, and the 

exercise of the power of eminent 

domain; and 

(iii) Identify the source of the tribal 

government’s authority to carry out the 

governmental functions currently being 

performed. 

(3) A descriptive statement of the 

Tribe’s authority to regulate water 

quality. The statement should include: 

(i) A map or legal description of the 

area over which the Tribe asserts 

authority to regulate surface water 

quality; and 

(ii) A statement by the Tribe’s legal 

counsel or equivalent official that 

describes the basis for the Tribe’s 

assertion of authority and may include 

copies of documents such as tribal 

constitutions, by-laws, charters, 

executive orders, codes, ordinances, 

and/or resolutions that support the 

Tribe’s assertion of authority. 

(4) A narrative statement describing 

the capability of the Indian Tribe to 

administer an effective water quality 

certification program. The narrative 

statement should include: 

(i) A description of the Indian Tribe’s 

previous management experience that 

may include the administration of 

programs and services authorized by the 

Indian Self-Determination and 

Education Assistance Act (25 U.S.C. 

450, et seq.), the Indian Mineral 

Development Act (25 U.S.C. 2101, et 

seq.), or the Indian Sanitation Facility 

Construction Activity Act (42 U.S.C. 

2004a); 

(ii) A list of existing environmental or 

public health programs administered by 

the tribal governing body and copies of 

related tribal laws, policies, and 

regulations; 

(iii) A description of the entity (or 

entities) which exercise the executive, 

legislative, and judicial functions of the 

tribal government; 

(iv) A description of the existing, or 

proposed, agency of the Indian Tribe 

which will assume primary 

responsibility for establishing and 

implementing a water quality 

certification program; and 

(v) A description of the technical and 

administrative capabilities of the staff to 

administer and manage an effective 

water quality certification program or a 

plan which proposes how the Tribe will 

acquire additional administrative and 

technical expertise. The plan must 

address how the Tribe will obtain the 

funds to acquire the administrative and 

technical expertise. 

(5) Additional documentation 

required by the Regional Administrator 

which, in the judgment of the Regional 

Administrator, is necessary to support a 

tribal application. 

(c) The procedure for processing a 

Tribe’s application is as follows: 

(1) The Regional Administrator shall 

process an application of an Indian 

Tribe submitted pursuant to paragraph 

(b) of this section in a timely manner. 

The Regional Administrator shall 

promptly notify the Indian Tribe of 

receipt of the application. 

(2) Except as provided in paragraph 

(c)(4) of this section, within 30 days 

after receipt of the Tribe’s application, 

the Regional Administrator shall 

provide appropriate notice. The notice 

shall: 


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(i) Include information on the 

substance and basis of the Tribe’s 

assertion of authority to regulate the 

quality of reservation waters; 

(ii) Be provided to all appropriate 

governmental entities; and 

(iii) Provide 30 days for comments to 

be submitted on the tribal application. 

Comments shall be limited to the Tribe’s 

assertion of authority. 

(3) If a Tribe’s asserted authority is 

subject to a competing or conflicting 

claim, the Regional Administrator, after 

due consideration, and in consideration 

of other comments received, shall 

determine whether the Tribe has 

adequately demonstrated that it meets 

the requirements of paragraph (a)(3) of 

this section. 

(4) Where, after [EFFECTIVE DATE 

OF FINAL RULE], EPA has determined 

that a Tribe qualifies for treatment in a 

similar manner as a state for the Clean 

Water Act section 303(c) Water Quality 

Standards Program, Clean Water Act 

section 303(d) Impaired Water Listing 

and Total Maximum Daily Loads 

Program, Clean Water Act section 402 

National Pollutant Discharge 

Elimination System Program, or Clean 

Water Act section 404 Dredge and Fill 

Permit Program, and has provided 

notice and an opportunity to comment 

on the Tribe’s assertion of authority to 

appropriate governmental entities as 

part of its review of the Tribe’s prior 

application, no further notice to 

governmental entities, as described in 

paragraph (c)(2) of this section, shall be 

provided with regard to the same Tribe’s 

application for the water quality 

certification program, unless the 

application presents to the EPA 

Regional Administrator different 

jurisdictional issues or significant new 

factual or legal information relevant to 

jurisdiction. 

(5) Where the Regional Administrator 

determines that a Tribe meets the 

requirements of this section, they shall 

promptly provide written notification to 

the Indian Tribe that the Tribe is 

authorized to administer the water 

quality certification program. 

(d) An Indian Tribe may submit a 

tribal application for purposes of 

administering only the Clean Water Act 

section 401(a)(2) portion of a water 

quality certification program. 

Subpart B—Neighboring Jurisdictions 

§ 121.12 Notification to the Regional 

Administrator. 

(a) Within five days of the date that 

it has received both the application and 

either a certification or waiver for a 

Federal license or permit, the Federal 

agency shall provide written 

notification to the Regional 

Administrator. 

(1) The notification shall include a 

copy of the certification or waiver and 

the application for the Federal license or 

permit. 

(2) The notification shall also contain 

a general description of the proposed 

project, including but not limited to, 

permit or license identifier, project 

location (e.g., latitude and longitude), a 

project summary including the nature of 

any discharge and size or scope of 

activity, and whether the Federal agency 

is aware of any neighboring jurisdiction 

providing comment about the project. If 

the Federal agency is aware that a 

neighboring jurisdiction provided 

comment about the project, it shall 

include a copy of those comments in the 

notification. 

(b) If the Regional Administrator 

determines there is a need for 

supplemental information to make a 

determination about potential 

neighboring jurisdiction effects 

pursuant to Clean Water Act section 

401(a)(2), the Regional Administrator 

may make a written request to the 

Federal agency that such information be 

provided in a timely manner for EPA’s 

determination, and the Federal agency 

shall obtain that information from the 

project proponent and forward the 

additional information to the 

Administrator within such timeframe. 

(c) The Regional Administrator may 

enter into an agreement with a Federal 

agency regarding the manner of this 

notification process and the provision of 

supplemental information. 

§ 121.13 Determination of effects on 

neighboring jurisdictions. 

(a) Within 30 days after the Regional 

Administrator receives notice in 

accordance with § 121.12(a), the 

Regional Administrator shall determine 

whether a discharge from the certified 

or waived project may affect water 

quality in a neighboring jurisdiction. 

(b) If the Regional Administrator 

determines that the discharge from the 

project may affect water quality in a 

neighboring jurisdiction, within 30 days 

after receiving notice in accordance 

with § 121.12(a), the Regional 

Administrator shall notify the 

neighboring jurisdiction, the certifying 

authority, the Federal agency, and the 

project proponent in accordance with 

paragraph (c) of this section. 

(c) Notification from the Regional 

Administrator shall be in writing and 

shall include: 

(1) A statement that the Regional 

Administrator has determined that a 

discharge from the project may affect 

the neighboring jurisdiction’s water 

quality; 

(2) A copy of the license or permit 

application and related certification or 

waiver; and 

(3) A statement that the neighboring 

jurisdiction has 60 days to notify the 

Regional Administrator, the Federal 

agency, and the certifying authority, in 

writing, whether it has determined that 

the discharge will violate any of its 

water quality requirements, to object to 

the issuance of the Federal license or 

permit, and to request a public hearing 

from the Federal agency. 

(d) A Federal license or permit may 

not be issued pending the conclusion of 

the process described in §§ 121.14 and 

121.15. 

§ 121.14 Neighboring jurisdiction 

objection and request for a public hearing. 

(a) If the neighboring jurisdiction 

determines that a discharge will violate 

any of its water quality requirements, 

within 60 days after receiving notice in 

accordance with § 121.13(c), the 

neighboring jurisdiction shall notify the 

Regional Administrator, the Federal 

agency, and the certifying authority in 

accordance with paragraph (b) of this 

section. 

(b) Notification from the neighboring 

jurisdiction shall be in writing and shall 

include: 

(1) A statement that the neighboring 

jurisdiction objects to the issuance of 

the Federal license or permit; 

(2) An explanation of the reasons 

supporting the neighboring 

jurisdiction’s determination that the 

discharge will violate its water quality 

requirements, including but not limited 

to, an identification of those water 

quality requirements that will be 

violated; and 

(3) A request for a public hearing from 

the Federal agency on its objection. 

§ 121.15 Public hearing and Federal 

agency evaluation of neighboring 

jurisdiction objection. 

(a) Upon a request for hearing from a 

neighboring jurisdiction in accordance 

with § 121.14(b), the Federal agency 

shall hold a public hearing on the 

neighboring jurisdiction’s objection to 

the license or permit. 

(b) The Federal agency shall provide 

public notice at least 30 days in advance 

of the hearing. 

(c) At the hearing, the Regional 

Administrator shall submit to the 

Federal agency its evaluation and 

recommendation(s) concerning the 

objection. 

(d) The Federal agency shall consider 

recommendations from the neighboring 

jurisdiction and the Regional 


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Administrator, and any additional 

evidence presented to the Federal 

agency at the hearing, and determine 

whether additional license or permit 

conditions may be necessary to ensure 

that any discharge from the project will 

comply with the neighboring 

jurisdiction’s water quality 

requirements. If such conditions may be 

necessary, the Federal agency shall 

include them in the license or permit. 

(e) If additional license or permit 

conditions cannot ensure that the 

discharge from the project will comply 

with the neighboring jurisdiction’s 

water quality requirements, the Federal 

agency shall not issue the license or 

permit. 

Subpart C—Certification by the 

Administrator 

§ 121.16 When the Administrator certifies. 

(a) Certification or waiver by the 

Administrator is required where no 

state, tribe, or interstate agency has 

authority to give such a certification. 

(b) When acting pursuant to this 

section, the Administrator shall comply 

with the requirements of Clean Water 

Act section 401 and this part. 

§ 121.17 Public notice and hearing. 

(a) Within 20 days of receipt of a 

request for certification, the 

Administrator shall provide public 

notice of receipt of a request for 

certification. Following such public 

notice, the Administrator shall provide 

an opportunity for public comment. 

(b) If the Administrator determines 

that a public hearing on a request for 

certification is appropriate or necessary, 

the Administrator shall schedule such 

hearing at an appropriate time and place 

and, to the extent practicable, give all 

interested and potentially affected 

parties the opportunity to present 

evidence or testimony in person or by 

other means. 

Subpart D—Review and Advice 

§ 121.18 Review and advice. 

Upon the request of any Federal 

agency, certifying authority, or project 

proponent, the Administrator shall 

provide any relevant information on 

applicable effluent limitations, or other 

limitations, standards, regulations, or 

requirements, or water quality criteria, 

and shall, when requested by any 

Federal agency, certifying authority, or 

project proponent, comment on any 

methods to comply with such 

limitations, standards, regulations, 

requirements, or criteria. 

PART 122—EPA ADMINISTERED 

PERMIT PROGRAMS: THE NATIONAL 

POLLUTANT DISCHARGE 

ELIMINATION SYSTEM 

■ 2. The authority citation for part 122 

continues to read as follows: 

Authority: The Clean Water Act, 33 U.S.C. 

1251 et seq. 

■ 3. Section 122.4 is amended by 

revising paragraph (b) to read as follows: 

§ 122.4 Prohibitions (applicable to State 

NPDES programs, see § 123.25). 

* * * * * 

(b) When the applicant is required to 

obtain a State or other appropriate 

certification under section 401 of the 

CWA and that certification has not been 

obtained or waived; 

* * * * * 

■ 4. Section 122.44 is amended by 

revising paragraph (d)(3) to read as 

follows: 

§ 122.44 Establishing limitations, 

standards, and other permit conditions 

(applicable to State NPDES programs, see 

§ 123.25). 

* * * * * 

(d) * * * 

(3) Conform to the conditions in a 

State certification under section 401 of 

the CWA when EPA is the permitting 

authority; 

* * * * * 

PART 124—PROCEDURES FOR 

DECISIONMAKING 

■ 5. The authority citation for part 124 

continues to read as follows: 

Authority: Resource Conservation and 

Recovery Act, 42 U.S.C. 6901 et seq.; Safe 

Drinking Water Act, 42 U.S.C. 300f et seq.; 

Clean Water Act, 33 U.S.C. 1251 et seq.; 

Clean Air Act, 42 U.S.C. 7401 et seq. 

■ 6. Section 124.53 is amended by: 

■ a. Removing paragraphs (b), (c), and 

(e); 

■ b. Redesignating paragraph (d) as 

paragraph (b); and 

■ c. Revising newly redesignated 

paragraph (b). 

The revision reads as follows: 

§ 124.53 State certification. 

* * * * * 

(b) State certification shall be granted 

or denied within the reasonable period 

of time as required under CWA section 

401(a)(1). The State shall send a notice 

of its action, including a copy of any 

certification, to the applicant and the 

Regional Administrator. 

■ 7. Section 124.54 is amended by 

revising paragraphs (a) and (b) to read 

as follows: 

§ 124.54 Special provisions for State 

certification and concurrence on 

applications for section 301(h) variances. 

(a) When an application for a permit 

incorporating a variance request under 

CWA section 301(h) is submitted to a 

State, the appropriate State official shall 

either: 

(1) Deny the request for the CWA 

section 301(h) variance (and so notify 

the applicant and EPA) and, if the State 

is an approved NPDES State and the 

permit is due for reissuance, process the 

permit application under normal 

procedures; or 

(2) Forward a copy of the certification 

required under CWA section 401(a)(1) to 

the Regional Administrator. 

(b) When EPA issues a tentative 

decision on the request for a variance 

under CWA section 301(h), and no 

certification has been received under 

paragraph (a) of this section, the 

Regional Administrator shall forward 

the tentative decision to the State. If the 

State fails to deny or grant certification 

and concurrence under paragraph (a) of 

this section within the reasonable 

period of time provided in CWA section 

401(a)(1), certification shall be waived 

and the State shall be deemed to have 

concurred in the issuance of a CWA 

section 301(h) variance. 

* * * * * 

■ 8. Section 124.55 is amended by: 

■ a. Revising paragraph (a); 

■ b. Removing paragraph (b); 

■ c. Redesignating paragraphs (c), (d), 

(e), and (f) as paragraphs (b), (c), (d), and 

(e) respectively; and 

■ d. Revising newly redesignated 

paragraphs (b) and (c). 

The revisions read as follows: 

§ 124.55 Effect of State certification. 

(a) When certification is required 

under CWA section 401(a)(1), no final 

permit shall be issued: 

(1) If certification is denied; or 

(2) Unless the final permit 

incorporates the conditions specified in 

the certification. 

(b) A State may not condition or deny 

a certification on the grounds that State 

law allows a less stringent permit 

condition. 

(c) A condition in a draft permit may 

be changed during agency review in any 

manner consistent with a corresponding 

certification. No such changes shall 

require EPA to submit the permit to the 

State for recertification. 

* * * * * 

[FR Doc. 2022–12209 Filed 6–8–22; 8:45 am] 

BILLING CODE 6560–50–P 


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