Resources for When EPA Acts as the Certifying Authority under Section 401
Overview
The 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 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.
The EPA has developed the resources described below to help with the implementation of the 2023 Rule, when the EPA acts as the certifying authority. In instances where the EPA is the certifying authority, project proponents should refer to the templates below for more information on how to request a pre-filing meeting and submit a request for certification to the EPA. Submissions should be made to the EPA Region where the project is located. EPA Regional points of contact may be found on the Section 401 Contact Us webpage.
These materials are not regulations, nor do they change or substitute for any applicable regulations. Thus, they do not impose legally binding requirements on the EPA, states, Tribes, other federal agencies or the regulated community. These documents neither alters legal rights or obligations nor change or create law. In the event of a conflict between the discussion in this document and any statute or regulation, these documents would not be controlling.
Pre-Filing Meeting Requests
Template and Process for CWA Section 401 Certification Pre-Filing Meeting Request (docx)
Pre-filing meeting requests ensure that certifying authorities have an opportunity to receive early notification of and discuss the project and potential information needs with the project proponent. Certifying authorities may determine appropriate submission procedures for pre-filing meeting requests. For clarity when EPA acts as the certifying authority, the EPA recommends that project proponents submit a pre-filing meeting request to the Agency in writing and have provided a list of recommended components of a pre-filing meeting request. These components are not required by the EPA, but the EPA views these components as good practices for any pre-filing meeting requests to any certifying authority.
Requests for Certification
Template and Process for a CWA Section 401 Request for Certification when the EPA is the Certifying Authority (docx)
The EPA has required that all requests for certification be in writing, signed, and dated and include defined minimum contents (40 CFR 121.5(a)). To provide certainty and transparency, the EPA has also defined additional contents of a “request for certification” when EPA acts as a certifying authority or for when a state or authorized Tribe does not define additional contents (40 CFR 121.5(b) and 40 CFR 121.5(d)).
Certification Decisions
Section 401 Certification Actions - Best Practices when the EPA is the Certifying Authority (docx)
When a certifying authority receives a request for certification, it may take one of four actions on the request for certification:
- Grant certification (40 CFR 121.7(c))
- Grant certification with conditions (40 CFR 121.7(d))
- Deny certification (40 CFR 121.7(e))
- Expressly waive certification (40 CFR 121.7(f))
While the EPA is not requiring certifying authorities to include decision-specific contents in each of the four certification decisions, the EPA strongly encourages certifying authorities to include the recommended contents located at final rule sections 121.7(c) through (f) for transparency and clarity.