This past June, the Environmental Protection Agency (EPA) proposed changes to section 401 of the Clean Water Act (CWA). Under CWA section 401, a Federal agency can not issue a license or permit for any activity that may result in any discharge into a "Water of the United States" unless the state or authorized tribe where the discharge would take place either issues a water quality certification or waives certification.

The EPA is proposing several definitional changes and other revisions that clarify the circumstances where section 401 certification is necessary. Their proposal states, "EPA recommends that project proponents engage in early discussions with certifying authorities and Federal agencies to determine whether their federally licensed or permitted activity will require section 401 certification." The EPA also requested comment on whether it should propose a specific process or procedure for stakeholders to follow in order to determine whether the activity requires section 401 certification. The EPA also proposed that a point source discharge should be required to trigger section 401 and potential discharge into a water of the United States should also require section 401 certification.

 

In response to this proposal, the American Association of State Highway and Transportation Officials (AASHTO) wrote a nine-page letter to the EPA on August 8. In their letter, the association expressed that they supported the review of the regulations while also raising concerns as "The proposed rule attempts to improve on parts of the 401 certification rule that have come to be regarded as cumbersome or ineffective."

The letter, which was signed by Shawn D. Wilsion, AASHTO president, went on to say, "Such additional oversight and process identified in the proposed rule are only useful in subset of complex projects with substantive potential to impact... water quality standards and/or that may impact more than one certifying authority's jurisdictional area. More clearly differentiating the instances in which extra oversight is beneficial is key to effective and efficient implementation, such as avoiding increased oversight on routine projects with minor impacts."

EPA's Proposal:
https://www.federalregister.gov/documents/2022/06/09/2022-12209/clean-water-act-section-401-water-quality-certification-improvement-rule#h-26

AAASHTO's Letter:
https://policy.transportation.org/wp-content/uploads/sites/59/2022/08/AASHTO-Comments-to-EPA-on-CWA-Section-401-2022-08-08-FINAL.pdf