Overview of CWA Section 401 Certification
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What is CWA Section 401?
Section 401 of the Clean Water Act provides states and authorized Tribes with an important tool to help protect the water quality of federally regulated waters within their borders, in collaboration with federal agencies.
Under Section 401 of the Clean Water Act, a federal agency may not issue a permit or license to conduct any activity that may result in any discharge into waters of the United States unless a Section 401 water quality certification is issued, or certification is waived. States and authorized Tribes where the discharge would originate are generally responsible for issuing water quality certifications. In cases where a state or Tribe does not have authority, EPA is responsible for issuing certification. 33 USC 1341.
Some of the major federal licenses and permits subject to Section 401 include:
- Clean Water Act Section 402 and 404 permits issued by EPA or the Corps,
- Bridge Act of 1946 permits issued by the U.S. Coast Guard,
- Federal Energy Regulatory Commission (FERC) licenses for hydropower facilities and natural gas pipelines, and
- Rivers and Harbors Act Section 9 and 10 permits.
The CWA provides that certifying authorities (states, authorized Tribes, and EPA) must act on a Section 401 certification request "within a reasonable period of time (which shall not to exceed one year) after receipt" of such a request. A certifying authority may waive certification expressly, or by failing or refusing to act within the established reasonable period of time. In making decisions to grant, grant with conditions, or deny certification requests, certifying authorities consider whether the federally licensed or permitted activity will comply with applicable water quality requirements, which include water quality standards, effluent limitations, new source performance standards, toxic pollutants restrictions and other appropriate water quality requirements of state or Tribal law.
Once the federal licensing or permitting agency receives both the application for the license or permit and a certification, it must immediately notify EPA under the neighboring jurisdiction process set forth in CWA Section 401(a)(2). A federal agency may not issue a license or permit for an activity that may result in a discharge into waters of the United States prior to the completion of the CWA Section 401(a)(2) process.
What are the Regulatory Requirements for CWA Section 401 Certification?
EPA's current regulations at 40 CFR 121 address Section 401 certification generally. The Agency conducted other regulatory efforts in 1971 and 2020. EPA also has water quality certification regulations for federally-issued CWA Section 402 permits that are subject to the Section 401 certification requirements (40 CFR 124.53-124.55). Other federal agencies may also have CWA Section 401 certification regulations for their licensing and permitting programs.