On July 13, the Federal Register published the final rule modifying Clean Water Act (CWA) Section 401 water quality certification requirements, making it effective immediately. The EPA had published the rule in late June, with the hopes that the modifications will promote consistency and regulatory certainty in the certification process. Key changes that have been identified by the EPA:

• New prefiling meeting provisions to promote early coordination in the water quality certification process.
• Additional elements required in a “certification request,” which are required to start the reasonable period of time for certification review.
• A clarified definition of “water quality requirements.”
• Refined information requirements that must be included in a decision document.
• Clarification that federal agency review of a certifying authority’s decision document is focused on compliance with the procedural requirements of Section 401 and the final rule.

“The Section 401 changes would increase certainty in timing and scope of state certifications for future projects.”

Kelly Collins