Final 2023 CWA Section 401 Water Quality Certification Improvement Rule

1. When will the rule go into effect?

On September 27, 2023, the final 2023 Clean Water Act Section 401 Water Quality Certification Improvement Rule was published in the Federal Register. The final 2023 Rule went into effect on November 27, 2023.

2. Where can stakeholders see the public comments from the rulemaking process?

Stakeholders may refer to the public comments online at Regulations.gov to Docket ID No. EPA-HQ-OW-2022-0128.

3. Will there be any public webinars before the effective date of the final rule (November 27, 2023)?

Yes. The Agency has posted a recorded informational webinar and hosted additional virtual meetings regarding the final rule for different stakeholder groups. Please see Upcoming Outreach and Engagement Opportunities for more information, including links to all of the recorded webinars.

4. Does this rule apply to certification decisions that were already issued under the 2020 Rule (i.e., retroactively)?

No, the final rule does not apply retroactively to certification decisions made under the 2020 Rule. For instance, if a certifying authority issued a certification decision under the 2020 Rule in accordance with the 2020 Rule’s scope of certification, that certification decision is not invalidated by this final rule going into effect on November 27, 2023, even if the relevant Federal license or permit has not yet been issued.

5. Does this rule apply to ongoing certification actions (e.g., pending certification decisions that started the certification process while the 2020 Rule was in effect)?

As of the effective date of this final rule (November 27, 2023), all actions taken as part of the section 401 certification process must be taken pursuant to the final rule. However, the final rule does not apply retroactively to actions already taken under the 2020 Rule. For example, if a certifying authority received a request for certification prior to the effective date of this final rule (November 27, 2023), and the certifying authority has not acted on the request for certification as of the effective date, any decision issued by the certifying authority after the effective date of this final rule (November 27, 2023) must comply with the requirements in the final rule. However, the validity of the request for certification would be determined under the 2020 Rule and the project proponent would not need to re-request certification consistent with the final rule. The approach the Agency adopts here regarding the applicability of the final rule to ongoing certification actions is consistent with the approach taken by the Agency after a court vacatur of the 2020 Rule in 2021 and the Supreme Court’s stay of that vacatur in 2022. Please see Section IV.M of the Final Rule Preamble for further discussion.

6. How will the final rule help Tribes participate in the section 401 process?

It will give greater flexibility to Tribes who are interested in participating in the section 401 certification process by enabling Tribes to obtain treatment in a similar manner as a state (TAS) solely for section 401, as well as including provisions on how Tribes can obtain TAS for the limited purpose of participating as a neighboring jurisdiction under section 401(a)(2).