In 1988, the National Wetlands Policy Forum recommended that States "make more aggressive use of their certification authorities under Section 401 of the CWA to protect their wetlands from chemical and other types of alterations." In response, in 1989, U.S. Environmental Protection Agency (EPA) issued a handbook for States and Tribes on applying Section 401 certification to protect wetlands. A year later, EPA issued guidance on developing water quality standards specifically for wetlands.

Under Section 401 of the Clean Water Act (CWA):

Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate, or, if appropriate, from the interstate water pollution control agency having jurisdiction over the navigable waters at the point where the discharge originates or will originate, that any such discharge will comply with the applicable provisions of sections 301, 302, 303, 306, and 307 of this title.

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 state or authorized tribe where the discharge would originate issues a Section 401 water quality certification verifying compliance with existing water quality requirements or waives the certification requirement. The CWA provides that states and authorized tribes must act on their Section 401 authority within "any reasonable time not to exceed one year.” Some of the major federal licenses and permits subject to Section 401 include:

  • Section 402 and 404 permits (in non-delegated states)
  • Federal Energy Regulatory Commission (FERC) hydropower licenses
  • Rivers and Harbors Act Section 9 and 10 permits.

On Thursday, August 22, 2019, the EPA’s proposed rule for changes to Clean Water Act (CWA) Section 401 was published in the Federal Register. The public comment period deadline is October 21, 2019.

  • The proposed rule can be found here.
  • Comments can be submitted electronically here.
  • EPA’s webpage for the rulemaking is here and an EPA fact sheet is available here.
  • USACE released corresponding guidance on August 7, 2019 that can be found here.

These changes may have impacts for state and tribal wetland programs and ASWM would like to know if your state/tribe plans to submit comments. Please send information to ASWM’s Senior Policy Analyst, Brenda Zollitsch ().

ASWM has developed a list of all the requests for comment in a matrix to help states and tribes, as well as its own internal development of comments.

  • ASWM’s matrix of requests for comment can be found here.
  • Additionally, ASWM has developed an orientation to the ASWM matrix document, to help users understand how the information was developed, which can be found here.

 

ASWM Publications:

ASWM Resources and Links

State 401 Certification Links
States and Tribal 401 Certification of Nationwide Permits (2012)
States 401 Certification of Nationwide Permits (2007)
401 Certification Resources