The U.S. Environmental Protection Agency (EPA) today issued a direct message to states and Tribes: stick to water quality. In a new memorandum, the agency reinforced what it calls the “specific and limited role” for states and Tribes under Section 401 of the Clean Water Act (CWA) when reviewing federal licenses and permits.
The EPA’s clarification emphasizes that state and tribal reviews must focus solely on protecting water quality and not be used to hinder broader economic or energy projects. This move is explicitly tied to the administration’s “Powering the Great American Comeback” initiative.
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“Under the last Administration, certain states attempted to leverage the Clean Water Act to undercut projects that would boost national and regional development and unleash American energy resources,” stated EPA Administrator Lee Zeldin. “With this memorandum, EPA is reinforcing the limits on Clean Water Act section 401 certification to support energy, critical mineral, and infrastructure projects that are key to economic growth and Power the Great American Comeback.”
The memorandum specifies that any state or Tribal evaluation is limited to considering negative impacts directly to water quality, and only those impacts that would prevent compliance with applicable water quality requirements. The EPA asserts this interpretation aligns with all prior regulations and guidance documents for Section 401.
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Furthermore, the agency announced its plan to seek public input via a forthcoming Federal Register notice. This process aims to address “implementation challenges and regulatory uncertainty” connected to the 2023 rule’s scope of certification, potentially leading to additional guidance or rulemaking in the future.
Section 401 of the CWA grants states and authorized Tribes the authority to review potential water quality impacts from federally licensed or permitted projects. The EPA, as the lead federal agency, is responsible for developing regulations and guidance to ensure the CWA programs, including Section 401, are implemented effectively.
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