Economic Analysis for the Clean Water Act
Section 401 Water Quality Certification
Improvement Rule
U.S. Environmental Protection Agency
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Table of Contents
Table of Contents.................................................................................................................................2
List of Tables 5
List of Figures....................................................................................................................................... 6
Abbreviations...................................................................................................................................... 7
1 Executive Summary 8
2 Introduction 9
3 Baseline Conditions 11
3.1 Description of Certifying Authority Determinations 11
3.2 Information from Certifying Authorities 13
3.2.1 Quantitative Data on the Number of Section 401 Certification Requests and Decisions .. 13
3.2.2 Certification Processing Fees 15
3.2.3 Time to Issue a Certification Decision 16
3.2.4 Time Required for the Public Comment Process 17
3.3 Federal Agency Data on License and Permits by Certifying Authority 19
3.4 License and Permit Data Characterization 20
3.4.1 Section 404 Permits 20
3.4.2 Section 402 NPDES Permits 20
3.4.3 Interstate Natural Gas Pipeline and Hydropower Project Licenses 20
3.4.4 Rivers and Harbors Act Sections 9 and 10 Permits 20
3.4.5 Nuclear Power Plant Licenses 21
3.4.6 Mining Licenses 21
3.5 Limitations and Uncertainties 21
3.5.1 Information from Certifying Authority Websites and Pre-proposal Input 21
3.5.2 Federal License and Permit Summary 21
4 Potential Effect of Proposed Regulatory Revisions 22
4.1 When Section 401 Certification is Required 22
4.1.1 Summary of Provision 22
4.1.2 Potential Impacts of the Provision 23
4.2 Pre-filing Meeting Requests 23
4.2.1 Summary of Provision 23
4.2.2 Potential Impacts of the Provision 24
4.3 Certification Requests 26
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4.3.1 Summary of Provision 26
4.3.2 Potential Impacts of the Provision 27
4.4 Reasonable Period of Time 29
4.4.1 Summary of Provision 29
4.4.2 Potential Impacts of the Provision 30
4.5 Scope of Certification 33
4.5.1 Summary of Provision 33
4.5.2 Potential Impacts of the Provision 34
4.6 Certification Decisions 36
4.6.1 Summary of Provision 36
4.6.2 Potential Impacts of the Provision 37
4.7 Federal Agency Review 38
4.7.1 Summary of Provision 38
4.7.2 Potential Impacts of the Provision 40
4.8 EPA's Roles Under Section 401 41
4.8.1 Summary of Provision 41
4.8.2 Potential Impacts of the Provision 42
4.9 Modifications 43
4.9.1 Summary of Provision 43
4.9.2 Potential Impacts of the Provision 44
4.10 Neighboring Jurisdiction Process 46
4.10.1 Summary of Provision 46
4.10.2 Potential Impacts of the Provision 47
4.11 TAS and Other Tribal Issues 48
4.11.1 Summary of Provision 48
4.11.2 Potential Impacts of the Provision 49
4.12 Potential Effects on Federal Agency and Certifying Authority Regulations and Guidance 50
4.12.1 Potential Effects on Federal Agency Regulations 50
4.12.2 Potential Effects on Certifying Authority Regulations and Guidance 50
4.12.3 Information Collection Request Burden Estimates 52
4.13 Summary of Potential Effects 52
4.13.1 Incremental Benefits 54
4.13.2 Incremental Costs 55
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4.13.3 Net Benefits 56
5 Environmental Justice ................................................................................................................ 57
5.1 Impacts on Communities of Concern 57
5.2 Tribal Impacts 59
6 Data Limitations and Uncertainty............................................................................................... 6:1
7 Statutory and Executive Order Requirements 62
7.1 Unfunded Mandate Reform Act 63
7.2 Executive Order 12898 Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations 63
7.3 Executive Orders 12866 Regulatory Planning and Review and 13563 Improving Regulation and
Regulatory Review 64
7.4 Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act 64
8 References 70
Appendix A. Rule Provision Comparison 80
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List of Tables
Table 3-1. Summary of section 401 certification fees 15
Table 3-2. State-reported length of time to issue a certification decision 16
Table 3-3. Time for the public comment period 18
Table 3-4: License and permit summary data by certifying authority 19
Table 4-1. Summary of potential effects of the proposed rule, relative to the 1971 Rule and 2020 Rule
baselines 56
Table 6-1. Limitations and uncertainties in estimating effects of proposed rule 61
Appendix Tables
Table A-l. Comparison of rule provisions under the baseline 1971 Rule, the vacated 2020 Rule, and the
proposed rule 80
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List of Figures
Figure 4-1. Incremental Benefits of the Proposed Rulemaking
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Abbreviations
BLM
Bureau of Land Management
CA
Certifying Authority
CFR
Code of Federal Regulations
Corps
U.S. Army Corps of Engineers
CWA
Clean Water Act
DWR
Division of Water Resources
EA
Economic Analysis
EJ
Environmental Justice
EO
Executive Order
EPA
U.S. Environmental Protection Agency
FERC
Federal Energy Regulatory Commission
ICR
Information Collection Request
NPDES
National Pollutant Discharge Elimination System
NRC
Nuclear Regulatory Commission
NTTAA
National Technology Transfer and Advancement Act
NWP
Nationwide Permit
PP
Project Proponent
RFA
Regulatory Flexibility Act
RHA
Rivers and Harbors Act
RPT
Reasonable Period of Time
SBREFA
Small Business Regulatory Enforcement Fairness Act
TAS
Treatment in a Similar Manner as a State
TDEC
Tennessee Department of Environment and Conservation
UMRA
Unfunded Mandate Reform Act
USDA
U.S. Department of Agriculture
WDEQ
Wyoming Department of Environmental Quality
WOTUS
Waters of the United States
WQS
Water Quality Standards
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1 Executive Summary
The U.S. Environmental Protection Agency (EPA) is proposing revisions to the Clean Water Act (CWA)
section 401 regulations to restore cooperative federalism principles and ensure that states and tribes
are empowered to protect water resources that are essential to public health, ecosystems, and
economic opportunity. CWA section 401 provides states1 and authorized tribes2 with the authority to
protect the quality of their waters from adverse impacts resulting from federally licensed or permitted
projects. Under section 401, a federal agency may not issue a license or permit to conduct any activity
that may result in any discharge into waters of the United States3 unless the state or tribe where the
discharge would originate either issues a CWA section 401 water quality certification or waives
certification. 33 U.S.C. 1341(a)(1).
Pursuant to Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation
and Regulatory Review), EPA has prepared this economic analysis (EA) to inform the public of potential
effects associated with this rulemaking. This analysis is not required by the CWA.
This EA assesses the potential impacts of the proposed CWA section 401 Water Quality Certification
Improvement Rule. Pursuant to President Biden's EO 13990 "Protecting Public Health and the
Environment and Restoring Science to Tackle the Climate Crisis", EPA reviewed the 2020 Rule.4 In the
spring of 2021, EPA determined that it would propose revisions to the 2020 Rule through a new
rulemaking effort (U.S. EPA, 2021a). In October 2021, the U.S. District Court for the Northern District of
California issued an order that remanded and vacated EPA's 2020 Rule.5 The effect of the court's vacatur
was to reinstate the 1971 CWA section 401 requirements (hereinafter, 1971 Rule), effective October 21,
2021, until EPA finalized a new certification rule. However, the U.S. Supreme Court issued a stay of the
vacatur on April 6, 2022, which put the 2020 Rule back in effect pending appeal. EPA considers two
baselines in this EA: (1) a 1971 Rule baseline and (2) a 2020 Rule baseline. In this EA, EPA describes the
1 The CWA defines "state" as "a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of
the Pacific Islands." 33 U.S.C. 1362(3).
2 The term "authorized tribes" refers to tribes that have been approved for "treatment in a manner similar to a
State" status for CWA section 401. See 33 U.S.C. 1377(e).
3 The CWA, including section 401, uses the term "navigable waters," which the statute defines as "the waters of
the United States, including the territorial seas." 33 U.S.C. 1362(7). This proposed rule uses the term "waters of the
United States" throughout. EPA and the Corps recently published a proposed rule that would define the scope of
"waters of the United States." See Proposed Revised Definition of "Waters of the United States." 86 FR 69372
(December 7, 2021). The agencies are currently interpreting "waters of the United States" consistent with the pre-
2015 regulatory regime. The "pre-2015 regulatory regime" refers to the agencies' pre-2015 definition of "waters
of the United States," implemented consistent with relevant case law and longstanding practice, as informed by
applicable guidance, training, and experience.
4 Clean Water Act section 401 Certification Rule, 85 FR 42210 (July 13, 2020) (hereinafter, the 2020 Rule). For
further discussion on the 2020 Rule, including legal challenges, please see Preamble Section IV.B.
5 In Re Clean Water Act Rulemaking, No. 3:20-cv-04636-WHA, 2021WL 4924844 (N.D. Cal. Oct. 21, 2021). The case
is currently on appeal by industry stakeholders and eight states.
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proposed regulatory changes and qualitatively evaluates the impacts to states, tribes, and federal
agencies relative to the 1971 Rule and 2020 Rule baselines and implementation practices.
The proposed rule would ensure that states and tribes are empowered to protect water resources by
clarifying key components of the water quality certification process and improving coordination
between federal agencies, certifying authorities, and project proponents. The economic impacts of the
proposed rule are expected to be minimal, as it proposes many existing practices that have been widely
implemented over the last 50 years. Key changes in this proposal that are intended to restore
cooperative federalism, empower certifying authorities to protect their water resources, and improve
tribal rights/opportunities include: 1) an interpretation of the scope of a certifying authority's review as
encompassing the "activity as a whole," which allows certifying authorities to protect their waters from
the widest range of water quality-related impacts; 2) a collaborative approach for federal agencies and
certifying authorities to jointly set the reasonable period of time (RPT) to act on a certification request;
3) a requirement for project proponents to submit a copy of the draft license or permit in the "request
for certification;" and 4) options for tribes to apply for "treatment in a similar manner as a state" (TAS)
status and participate in neighboring jurisdiction determinations.
The Agency anticipates that the proposed rule would result in more predictable, efficient decision-
making by certifying authorities relative to the baselines. Although the proposed rule may impose some
burdens on certifying authorities (e.g., RPT negotiations) and project proponents (e.g., pre-filing
meetings requests), the Agency expects that clear, unambiguous procedural requirements would
improve section 401 procedural efficiencies for both certifying authorities and project proponents. The
proposed rule would clarify ambiguities in the section 401 process, including scope, modifications,
neighboring jurisdiction assessments, and procedures that would apply when EPA acts as the certifying
authority. These revisions would help standardize the certification process, reduce confusion, and
promote efficient section 401 reviews. The proposed rule would also create a means for tribes to obtain
TAS for section 401 and/or section 401(a)(2) directly, which would limit costs for tribes interested in
obtaining TAS for section 401 and/or 401(a)(2) that do not want to administer the section 303(c)
program for water quality standards (WQS).
Though both baselines include the requirement that the federal agency notify EPA upon receipt of an
application for a federal license or permit and a certification, historically the Agency has only received
copies of the application and certification when EPA is the federal agency or is acting as the certifying
authority. Thus, the Agency does not have comprehensive data to estimate the number of certification
decisions (grant, grant with conditions, deny, or waive) per year, nor does the Agency have data to
suggest how these decisions would change under the proposed rule. The lack of a national-level dataset
on section 401 certification reviews limited EPA's ability to perform a quantitative analysis of the
incremental impacts of the proposed rule. Thus, EPA qualitatively assessed potential impacts of the
proposed rule.
2 Introduction
Under Clean Water Act (CWA) section 401, a federal agency may not issue a license or permit to conduct
any activity that may result in any discharge into waters of the United States (WOTUS) unless the
certifying authority (CA) where the discharge would originate either certifies that the discharge will
comply with applicable water quality requirements or waives certification. The certifying authority is
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determined based on the location where the discharge originates (or may originate) and can be a state,
territory, authorized tribe, and in some circumstances, EPA. All states and U.S. territories currently have
section 401 certification authority. Certifying authority under CWA section 401 can be assumed by
Indian tribes under section 518 of the CWA, which authorizes EPA to treat eligible tribes with
reservations in a similar manner to states (referred to as "treatment in a similar manner as a state" or
TAS).6 EPA is responsible for section 401 certification decisions in instances when a state or tribe lacks
certification authority (e.g., on tribal lands where tribes do not have TAS and on lands with exclusive
federal jurisdiction). As the federal agency charged with implementing the CWA, as well as the certifying
authority in certain instances, EPA is responsible for developing regulations and guidance to ensure
effective implementation of all CWA programs, including section 401.7
The Federal Water Pollution Control Act was enacted in 1948 but took on its modern form in 1972 in the
Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act). EPA promulgated
regulations for water quality certification in May 1971. These regulations pre-date the passage of the
1972 CWA amendments and were based on CWA section 401's predecessor, section 21(b) of the Water
Quality Improvement Act of 1970.8 An April 2019 Executive Order (EO 13868) directed EPA to
promulgate a new rule to clarify and modernize the Agency's 1971 Rule, and in 2020, EPA revised these
regulations (U.S. EPA, 2020). On January 20, 2021, President Biden signed EO 13990 "Protecting Public
Health and the Environment and Restoring Science to Tackle the Climate Crisis" directing federal
agencies to review rules issued in the prior four years that are, or may be, inconsistent with the policy
goals of the new Administration.
Pursuant to President Biden's EO 13990, EPA reviewed the 2020 Rule. In the spring of 2021, EPA
determined that it would propose revisions to the 2020 Rule through a new rulemaking effort (U.S. EPA,
2021a). The Agency identified substantial concerns about whether portions of the 2020 Rule impinged
on the cooperative federalism principle central to CWA section 401. As a result, the Agency announced
its intention to revise the 2020 Rule in a manner that is well informed by stakeholder input, is better
aligned with the cooperative federalism principles that have been central to the effective
implementation of the CWA, and is responsive to the national objectives outlined in EO 13990.
EPA is proposing revisions to the 2020 Rule consistent with the principles outlined in the EO 13990 and
the Agency's legal authority. Additionally, EPA is revising the 2020 Rule in a manner that promotes
efficiency and certainty in the certification process, that is well-informed by stakeholder input on the
section 401 certification rule's substantive and procedural components, and that is consistent with the
cooperative federalism principles central to CWA section 401. The proposal also includes conforming
revisions to the water quality certification regulations for EPA-issued National Pollutant Discharge
Elimination Systems (NPDES) permits to align with the proposed 401 Rule.
To support the proposed rule, EPA has prepared this economic analysis (EA) and other related rule
analyses to assess potential impacts of the rule. These analyses seek to evaluate the benefits and costs
of the proposed rule and the effects of the rule on vulnerable groups and small entities. Section 3 of this
6 33 U.S.C. 1377(e).
7 33 U.S.C. 1251(d), 1361(a).
8 Water Quality Improvement Act of 1970, P.L 91-224, 84 Stat. 91 (April 3,1970).
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EA presents an overview of the practice under the 1971 Rule and 2020 Rule (baselines), including a
summary of federal licenses and permits that require section 401 certification. Section 4 summarizes
proposed provisions and presents a qualitative assessment of the potential impacts of the proposed rule
on project proponents, certifying authorities, and federal agencies when transitioning from the
baselines to the new proposed requirements. Section 5 presents an environmental justice analysis
characterizing potential impacts of the proposed rule on population groups of concern (e.g., minority,
low-income, and indigenous populations as specified in EO 12898 and EPA technical guidance9). Section
6 presents data limitations and uncertainties. Section 7 discusses consideration of statutory and
Executive Order requirements.
3 Baseline Conditions
The baseline is a description of the world absent the proposed regulation and is the starting point for
determining the potential benefits and costs of a proposed regulation. Due to the stay of the vacatur of
the 2020 Rule pending appeal, EPA is considering two baselines in this economic analysis. The first
baseline is the 1971 Rule with the regulations and practices in effect and occurring through 2019, and
the second baseline is the 2020 Rule currently in effect.
The CWA section 401 certification process provides an important tool for certifying authorities to
protect their water quality from potential effects caused by the "activity as a whole" and discharges
from federally licensed or permitted projects. A federal agency may not issue a license or permit to
conduct any activity that may result in any discharge into a WOTUS unless the certifying authority where
the discharge would originate either issues a section 401 water quality certification verifying compliance
with CWA sections 301, 302, 303, 306, and 307, and any other appropriate requirement of state or tribal
law, or waives certification.
Section 401 certification is required for various federal licenses and permits including, but not limited to,
dredge and fill activities that require CWA section 404 permits from the U.S. Army Corps of Engineers
(Corps), CWA section 402 NPDES permits for industrial and municipal point source discharges issued by
EPA, permits issued under sections 9 and 10 of the Rivers and Harbors Act (RHA) by the Corps (or the
U.S. Coast Guard for bridges and causeways under section 9), mining plan of operations approvals issued
by the Department of the Interior's Bureau of Land Management (BLM) and the U.S. Department of
Agriculture's (USDA) Forest Service, and projects requiring licenses from the Federal Energy Regulatory
Commission (FERC) or the Nuclear Regulatory Commission (NRC). Additional federal licenses and permits
are subject to section 401 if they authorize any activity that may result in a discharge from a point
source into a WOTUS.
3.1 Description of Certifying Authority Determinations
A certifying authority may take four potential actions pursuant to its section 401 authority: grant, grant
with conditions, deny, or expressly waive certification. If a certifying authority fails or refuses to act on a
request for certification within the reasonable period of time (RPT), it will constructively waive
9 EPA's Technical Guidance for Assessing Environmental Justice in Regulatory Action (U.S. EPA, 2016) identifies
population groups of concern including indigenous peoples and groups identified under EO 12898 (minority and
low-income populations) as well as sub-populations that may be at greater risk for experiencing adverse effects,
including those that rely on fish/wildlife for subsistence, age groups, and gender groups (p. 6).
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certification. Though both baselines include the requirement that the federal agency notify EPA upon
receipt of an application for a federal license or permit and a certification, historically the Agency has
only received copies of the application and certification when EPA is the federal agency or is acting as
the certifying authority. Thus, the Agency does not have comprehensive data on the number of
certification decisions (grant, grant with conditions, deny, or waive) over time and therefore does not
have available data to quantify the number of actions that fall into each of these categories.
Under the two baselines, certifying authorities generally determine whether the federally licensed or
permitted activity as a whole (1971 Rule) or discharge (2020 Rule) will comply with the listed CWA
provisions and other appropriate requirements of state or tribal law. Regarding the determinations
certifying authorities may make, there are differences between the scope of review across the 1971
Rule, 2020 Rule, and the proposed rule that are further discussed in section 4.5 in this economic
analysis.
Under the two baselines, certifying authorities make determinations as follows:
1) Grant certification. Under the 1971 Rule, certifying authorities may grant section 401
certification if they determine that the proposed activity as a whole will comply with water
quality requirements. Under the 2020 Rule, certifying authorities may grant section 401
certification if they determine that the proposed discharge will comply with water quality
requirements. When certification is granted by a certifying authority to a project proponent for
a federal license or permit under either rule, the federal licensing or permitting agency
(hereafter, the "federal agency") may issue the license or permit.
2) Grant certification with conditions. Under the 1971 Rule, certifying authorities impose
limitations or conditions in their section 401 certifications as necessary to ensure the activity as
a whole will comply with water quality requirements. Under the 2020 Rule, certifying authorities
impose limitations or conditions in their section 401 certifications as necessary to ensure the
discharge will comply with water quality requirements. Section 401(d) requires the federal
agency to include all of the certifying authority's conditions as part of the resulting license or
permit.10 When a certification is granted with conditions under either rule, the federal agency
may issue the license or permit, and any certification conditions included in the section 401
certification become part of the federal license or permit.
3) Deny certification. Under the 1971 Rule, certifying authorities may deny section 401
certification if they cannot certify that the activity as a whole will comply with water quality
requirements. Under the 2020 Rule, certifying authorities may deny section 401 certification if
they cannot certify that the discharge will comply with water quality requirements. Under either
rule, a certification denial prohibits the federal agency from issuing the license or permit.
4) Waive review. Certifying authorities may waive section 401 certification, either expressly
through notification to the project proponent or constructively by failing or refusing to act on
10 33 U.S.C. 1341(d) (requiring "any effluent limitations and other limitations, and monitoring requirements
necessary to assure that any applicant for a Federal license or permit will comply with [sections 301, 302, 306, and
307] and with any other applicable requirement of State law ... shall become a condition on any Federal license or
permit...
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the certification request within the RPT. The statute states that if a certifying authority fails or
refuses to act on a certification request within the RPT, the certification requirements shall be
waived (33 U.S.C. 1341(a)(1)). Under the 2020 Rule, a certifying authority may also fail or refuse
to act where the certifying authority's action on a request for certification is procedurally
deficient (e.g., does not follow the 2020 Rule's procedural requirements for a denial of
certification). 40 CFR 121.9(a)(2). A waiver does not necessarily indicate a certifying authority's
opinion regarding the potential water quality implications of an activity since a certifying
authority may waive certification for a variety of reasons, including a lack of resources to
evaluate the request. Under both rules, when certifying authorities waive certification, the
federal agency may issue the license or permit without a certification from the certifying
authority.
3.2 Information from Certifying Authorities
To support this rulemaking effort, EPA investigated the possibility of generating comprehensive data on
the 401 process from the certifying authority perspective. EPA reviewed state and territory websites to
investigate data availability and assemble available quantitative data. EPA also conducted a focused
review of pre-proposal input letters11 to extract any information concerning economic impacts of
section 401 and key issues identified during implementation of section 401. This section summarizes
results from website and pre-proposal input reviews. Results from the review of certifying authority
websites and pre-proposal input are used in the baseline to describe the available data on certification
decisions, section 401 fees, and the time it takes for certifying authorities to act on certification
requests.
EPA found that only five certifying authority websites12 have readily usable public documentation of
their annual average number of section 401 certification decisions13 for the purposes of creating a more
robust characterization of certification decisions. The available data are not sufficient for developing a
nationally-representative dataset for the annual average number of section 401 reviews conducted, the
proportion of section 401 certification requests that are waived, or the proportion of reviews that result
in certifications granted without conditions, certifications granted with conditions, or denials of
certification.
3.2.1 Quantitative Data on the Number of Section 401 Certification Requests and Decisions
Certifying authorities for five states provided information about the average number of section 401
certification requests reviewed each year. Of the five states, New York and Tennessee review the most
certification requests on an annual basis with New York reviewing an average of 4,000 certification
11 Docket ID No. EPA-HQ-OW-2021-0302.
12 States with readily usable section 401 certification data: Connecticut (CT DEEP, 2021), Delaware (DE NREC, n.d.),
Idaho (ID DEQ, 2021), Missouri (MO DNR, n.d.), and Oregon (OR DEQ, n.d.-a).
13 Six additional states have section 401 certification data publicly available in PDF format: Arkansas (AR DEQ,
2022), California (California Water Board of San Diego, 2021), New Hampshire (NH DES, 2022), North Carolina (NC
DEQ, 2021), Rhode Island (Rl DEM, 2022), and Washington (WSDE, 2022).). For the final rule, EPA will investigate
methods to extract data from PDFs for the purposes of further characterizing the available information on
certification decisions.
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requests and Tennessee reviewing 3,610 general and 490 individual permit certification requests.14
North Carolina and Washington stated that they review over 1,600 and 400 certification requests
annually, respectively.15 In contrast, Colorado reviews far fewer certification requests, only 14 annually
since 2015.16
EPA extracted limited quantitative information provided in pre-proposal input letters on the number of
section 401 certifications granted by certifying authorities. Data limitations prevented a quantitative
assessment of the proposed rule's impact on the number of certification grants. Certifying authorities
for six states provided information about the number of section 401 certifications granted (with or
without conditions) each year or over a specified period of time. Of the six states, the New York
Department of Environmental Conservation and the California Water Boards issue the most
certifications annually at approximately 4,050 certifications and over 1,000 certifications, respectively.17
Additionally, the New Mexico Environmental Department stated that they issued over 1,000
certifications from 2017 to 2019, including 46 federal CWA section 402 permits.18 On the lower end of
the spectrum, the Pennsylvania Department of Environmental Protection and the Washington
Department of Ecology stated that they issue 350-500 and 400 certifications annually, respectively.19
Lastly, two states provided information on certifications related to FERC licenses and licenses for other
uses of water. Wisconsin stated that they certified 41 FERC-regulated dams over the past 30 years.20
Between 2018 and 2021, the California Division of Water Rights stated that they issued 29 certifications,
including amendments, related to FERC licenses and other federal permits or licenses for the diversion
or use of water.21
Certifying authorities for three states provided information about the number of section 401
certification denials. New York stated that they denied an average of 8 certification requests per year
prior to 2020.22 Oregon stated that they denied a total of either 5 or 11 certification requests from 1999
14 Basil Seggos, Commissioner of New York State Department of Environmental Conservation (0042). Note that this
letter was submitted prior to the 2020 Rule in response to the 2019 proposed rule. Tennessee Department of
Environment and Conservation (0083).
15 North Carolina Department of Environmental Quality (0124) and various attorneys general (0098) Part 2; State of
Washington Department of Ecology (0025).
16 Various attorneys general (0098) attachment D Part 1.
17 Various attorney's general (0098) attachment D Part 3; Various attorney's general (0098) attachment D Part 1.
18 Various attorney's general (0098) attachment D Part 2.
19 Pennsylvania Department of Environmental Protection (0052); Various attorney's general (0098) attachment D
Part 1. In 2020, the section 401 workload tripled for the Washington Department of Ecology; by August 26, the
department had already issued 396 certifications. The reason for the increase in section 401 certification is
because "the invalidation of the nationwide aquaculture permits resulted in a flood of individual section 401
certification requests for shellfish growing operations."
20 Wisconsin Department of Natural Resources (0038).
21 Various attorney's general (0098) attachment D Part 1.
22 Basil Seggos, Commissioner of New York State Department of Environmental Conservation (0042). Note that this
letter was submitted prior to the 2020 Rule in response to the 2019 proposed rule.
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to 2020.23 Lastly, Wisconsin stated that they had not denied a certification request for FERC-regulated
dams in over 30 years.24
Wisconsin is the only certifying agency that shared waiver information in its pre-proposal letter. The
Wisconsin Department of Natural Resources waived section 401 review for 43 FERC-regulated dams
over the past 30 years.25
3.2.2 Certification Processing Fees
Table 3-1 summarizes the various fees associated with the section 401 certification process that are
available on state/territory websites. Twenty-eight states/territories list a section 401 fee, often
increasing as the complexity or size of the project increases. Twelve states/territories explicitly state
that they do not charge a section 401 fee,26 while 16 states/territories do not include any fee
information on their website.27 In some cases, it is unclear if the reported fee is solely for section 401
certification or if it incorporates fees for other state permitting processes. Approximately 77% of fees
have a maximum range between $385-$5,000. The average cost for states/territories with a flat fee
instead of a range is $277. Reported fees that significantly exceed this range may incorporate fees for
other state permitting processes (i.e., joint permit fees).
Table 3-1. Summary of section 401 certification fees
State / Territory
Section 401 Fee
Source
Alabama3
$800 - $25,920
ALDEM (2021)
Alaska
$320-$2,375
AK DEC (2020)
California3
$645 - $2,417
CA Water Boards (2022)
Colorado3
$1,122 - $3,876
CO DPHE (2022)
Florida
$100-$14,020
FL DEP (2011)
Hawaii
$0 - $1,000
HA DHCWB (2013)
Illinois3
$350
IL EPA (2022a)
Kentucky
$1,000 - $5,000
KY LRC (n.d.)
23 Oregon Department of Environmental Quality (0045); Various attorney's general (0098) attachment D Part 3.
The number of denials reported in the attorney's general pre-proposal letter conflicts with the number reported in
the Oregon Department of Environmental Quality pre-proposal letter; it is unclear which source is more accurate,
thus EPA presents the range covering both sources.
24 Wisconsin Department of Natural Resources (0038).
25 Wisconsin Department of Natural Resources (0038).
26 Twelve states/territories that do not charge a fee: Arizona (AZ DEQ, 2021a), Indiana (IN DEM, 2022a), Kansas (KS
DHE, 2022), Minnesota (MN PCA, n.d.), Mississippi (MS DEQ, 2022), Nebraska (NE DEE, 2021), New Hampshire (NH
DES, 2022), New Mexico (NM ED, 2021a), North Dakota (ND DEQ, 2022), Pennsylvania (PA DEP, 2022), South
Dakota (SD DANR, 2020), and Wyoming (WY DEQ, n.d.).
27 Sixteen states/territories had no information available about section 401 certification fees on their websites:
Arkansas (AR DEQ, n.d.), Connecticut (CT DEEP, 2021), Delaware (DE NREC, n.d.), District of Columbia (DC DOEE,
n.d.), Georgia (ASWM, 2011c), Idaho (ID DEQ, n.d.), Iowa (IA DNR, n.d.), Michigan (Ml DEGLE, 2022), Nevada (NV
DEP, n.d.), New York (NYS DEC, n.d.), Texas (TX CEQ, 2021), Washington (WSDE, n.d.), Puerto Rico (U.S. EPA, 2005),
Guam (GU EPA, 2022), American Samoa (AS EPA, 2022), and the Virgin Islands (VI DPNR, 2019).
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Table 3-1. Summary of section 401 certification fees
State / Territory
Section 401 Fee
Source
Louisiana
$37 - $385
LADEQ (n.d.)
Maine3
$263-$1,881
ME DEP (2021)
Maryland
$385
MD DE (2022)
Massachusetts3
$90 - $490
CMR (2021)
Missouri
$150-$1,500
MO COR (2020)
Montana
$400 - $20,000
ARM (n.d.)
New Jersey3
$0 - $5,000
NJ DEP (2019)
Northern Mariana Islands3
$100-$ 5,000
MP Administrative Code (2018)
North Carolina
$240 - $570
NC DEQ (n.d.)
Ohio3
$200
OH EPA (n.d.)
Oklahoma
$100
OK DEQ (2022)
Oregon
$985 - $14,020
Oregon State Archives (2022)
Rhode Island
$200 - $400
Rl DEM (2005)
South Carolina
$100-$1000
ASWM (2011a)
Tennessee
$0 - $5,000
TN DEC (n.d.)
Utah
$100/hour
UT DEQ (2022)
Vermont
$200 - $20,000
VT DEC (2020)
Virginia
$0 or direct cost of WQC services
VA DEQ (n.d.)
West Virginia
$350
WV DEP (n.d.)
Wisconsin3
$50 -$2,000
ASWM (2011b)
a. Fee(s) may be subject to additional stipulations, such as conditional processing fees, project type variations, expedition fees, project fees,
annual fees, among others.
3.2.3 Time to Issue a Certification Decision
Thirteen states provide readily useable information, either on their websites or in pre-proposal input
letters, about the length of time to issue a certification decision. Most states issue certification decisions
in 60-90 days. The North Carolina Department of Environmental Quality stated that over 90% of their
applications between July 1, 2015, and June 30, 2017 (approximately 2,250 applications) were issued in
under 60 days. Moreover, only 32 applications took over half a year to certify and most of that time
(over four months) was spent waiting on the applicant to provide additional information. Certification
decisions for these applications were issued on average within 21 days after receipt of complete
information.28 The information provided by states on the length of time to issue a certification decision
is summarized in Table 3-2 below.
Table 3-2. State-reported length of time to issue a certification decision
State/Territory
Number of Days
Source
Alaska
60
AK Department of Environmental
Conservation (0065)
28 North Carolina Department of Environmental Quality (0124).
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Table 3-2. State-reported length of time to issue a certification decision
State/Territory
Number of Days
Source
Arkansas3
93
AR DEQ (2022)
Colorado15
365 (for large projects)
Colorado Department of Public Health and
Environment (0057)
Connecticut
< 180
CT DEEP (2021)
Delaware0
60-90
DE NREC (n.d.)
Idaho
60
ID DEQ (n.d.)
Missouri
60
MO DNR (n.d.)
North Carolina
60
NC Department of Environmental Quality
(0124)
Oregon6
45; 60-180; 210-365
OR DEQ (n.d.-a)
Tennessee'
85 (individual permits); 6 (general permits)
TN Department of Environment and
Conservation (0083)
Utah
80
UT Department of Environmental Quality
(0028)
Washington8
"several months" (seasonally dependent)
WA State Department of Ecology (0025)
Wyoming
60
WY Department of Environmental Quality
(0019)
a. Uses certification decision information from 2013 to the effective date of the 2020 Rule. 188 of 374 certifications did not contain enough
information to calculate the issuance timeframe (i.e., request and issuance dates). Based on the 186 section 401 certification decisions which
contained this information, the average issuance timeframe was 93 days.
b. The Colorado Department of Public Health and Environment (CDPHE) stated that the full one-year time period was needed to complete
section 401 review for large projects such as the last four water supply projects in the state.29
c. For certifications that require public notice.
d. For certification of section 404 permits.
e. The estimated timeframe depends on the complexity of the project, the quality of the information provided, significance of water quality
concerns raised during the public commenting process, and the responsiveness of the applicant.
f. The numbers provided in the table are from the receipt of complete opplicotions. The Tennessee Department of Environment and
Conservation (TDEC) stated that the average processing time for individual and general permits is 205 and 34 days from the initial certification
requests given that they often lack sufficient information to analyze water quality impacts and solicit public input.30
g. The Washington State Department of Ecology (WSDE) stated that the necessary time to complete a section 401 review is often influenced by
the time of year (for example, wetland delineation work typically cannot be adequately completed during the dry summer months).31
3.2.4 Time Required for the Public Comment Process
State public notice periods for section 401 certifications range from 14 to 90 days, with 30 days as the
most common timeframe. Certifying authorities for four states (New Hampshire, Rhode Island,
Maryland, and Minnesota) described how a 60-day RPT was inadequate for completing the public
comment process, which includes the time needed for comments to be received, to review and address
29 Colorado Department of Public Health and Environment (0057).
30 Tennessee Department of Environment and Conservation (0083).
31 Washington State Department of Ecology (0025).
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comments, and/or to hold public hearings.32 For example, the New Hampshire Department of
Environmental Services and the Rhode Island Department of Environmental Management stated that
they allow for a 30-day comment period and that additional time is needed to review and respond to
these comments. The same two certifying authorities suggested that the minimum amount of time for
section 401 certifications should be 120 days.33 In their pre-proposal input letters, Maryland and
Minnesota did not describe their minimum public notice period. Table 3-3 summarizes states' public
notice periods.
Table 3-3. Time for the public comment period
State / Territory
Public Notice Period (days)
Source
Alaska
30
AK DEC (2022)
Arizona
30
AZDEQ (2021b)
California
21
California Water Board of San
Diego (2021)
Colorado
30
Code of Colorado Regulations
(2019)
Delaware
20
DE NREC (n.d.)
Hawaii
30
HA DHCWB (2022)
Idaho
21
ID DEQ (2021)
Illinois
14
IL EPA (2022b)
Indiana
30
IN DEM (2022b)
Kansas
21
KS DHE (2022)
Kentucky
30
KY EEC (2019)
Massachusetts
21
CMR (2014)
Minnesota3
Case-by-case; 10-day minimum
MN ORS (2009)
Missouri
21
MO DNR (n.d.)
New Hampshire
30
NH DES (2022)
New Mexico
30
NM ED (2021b)
North Carolina
30
NC AC (2019)
Ohiob
30-45
OH EPA (2006)
Oklahoma
30
OK DEQ (2022)
Oregon
30-35
OR DEQ (n.d.-b)
Rhode Island
30
Rl Department of Environmental
Management (0126)
Tennessee15
30-90
TN DEC (n.d.)
32 New Hampshire Department of Environmental Services (0039); Rhode Island Department of Environmental
Management (0126); Maryland Department of the Environment (0069); Minnesota Pollution Control Agency
(0047).
33 New Hampshire Department of Environmental Services (0039); Rhode Island Department of Environmental
Management (0126).
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Table 3-3. Time for the public comment period
State / Territory
Public Notice Period (days)
Source
Vermont
30
VT DEC (2022)
a. Public comment period established by the commissioner on a case-by-case basis based on the scope, nature, and potential
impacts on water quality of the project; public notice period cannot be shorter than ten days.
b. The public notice period increases to 45 days (Ohio) or 90 days (Tennessee) if a hearing is requested.
3.3 Federal Agency Data on License and Permits by Certifying Authority
Table 3-4 presents summary information for federal license/permits that may require section 401
certification. This table includes the annual average number of federal licenses or permits issued that
may require section 401 certification; this table does not include state permits or licenses (e.g., state
issued NPDES permits).34 The table provides separate values for general and individual permits, when
applicable. General permits provide streamlined procedures for project proponents by authorizing
categories of discharges or simplified review procedures when the discharges comply with specified
requirements, whereas individual licenses and permits are customized to a specific project and
discharge(s).
Table 3-4: License and permit summary data by certifying authority
License/Permit Type
Annual Average # Federal
Licenses/Permits lssuedJ
Timeframe set by Federal Agency for
Section 401 Review
CWA section 404
45,725 general;
1,898 individual
60 days - 1 yearh
Rivers and Harbors Act section
10
7,600 general;
1,391 individual0
60 days - 1 yearh
CWA section 402
16 general;
125 individual
60 days'
Rivers and Harbors Act section 9
40e
1 year6
Federal Energy Regulatory
Commission license
44f
1 yearJ
Nuclear Regulatory Commission
license
2g
1 year
Totals
53,341 general;
3,500 individual11
a. Includes all permits issued by the relevant federal agency (section 401 certification either granted, granted with conditions, or waived). Due
to data limitations, EPA is not able to estimate the proportion of licenses/permits in the summary that are subject to section 401 certification.
b. Estimate based on the annual average number of 404 permits from 01/01/2010 - 09/01/2020 based on counts provided by the Corps.
c. Estimate based on the annual average number of section 10 permits from 01/01/2010 - 09/01/2020 based on counts provided by the Corps.
d. Estimate based on the annual average of EPA-issued section 402 permits from 2010-2020.
e. Estimate based on personal communication with Bridge Permits and Policy Division, Coast Guard Bridge Program.
f. Estimate based on annual average license issuance for hydropower facilities/major natural gas pipelines from 01/01/2010 - 09/01/2020
(FERC, 2021a, 2021b)
g. Estimate based on annual average license issuance for operating nuclear power reactors (full-power operating licenses and combined
operating licenses) from 01/01/2010 - 09/01/2020 (NRC, 2021)
h. Timeframe depends on Corps district. Corps regulations (33 CFR 325.2) specify that waiver could occur if the certifying authority does not
issue a decision within 60 days. Historically, many Corps districts have allowed a longer timeframe.
i. 40 CFR 124.53(c)(3), unless unusual circumstances warrant a longer timeframe,
j. 18 CFR 4.34(b)(5)(iii)
34 Most CWA section 404 permits are federal permits, although a few states (Michigan, New Jersey, Florida) have
assumed implementation of the CWA section 404 permit program. Most CWA section 402 permits are state-issued
permits; only three states do not have any NPDES authorization and therefore all NDPES permits issued in those
states are federal permits (Massachusetts, New Hampshire, New Mexico).
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h. The estimates for the last three permit average values were included in the totals as individual permits.
3.4 License and Permit Data Characterization
3.4.1 Section 404 Permits
The Corps issues two types of CWA section 404 permits, individual and general. Individual section 404
permits are for projects with more than minimal individual or cumulative impacts, while general section
404 permits are for activities that are similar in nature, cause only minimal individual adverse
environmental impacts when performed separately, and have only minimal cumulative environmental
impacts (U.S. EPA, 2021b). There are several types of 404 general permits, including Nationwide Permits
(NWPs) and Regional General Permits (RGPs). The most common 404 general permits are NWPs, which
provide streamlined review and authorization for activity categories that are determined by the Corps to
have minimal adverse impacts, both individually and cumulatively, on the aquatic environment. NWPs
automatically expire, unless renewed, every five years. The Corps has 57 NWPs that are effective
through March 2026 (Corps, 2021a; 2021b). RGPs are issued on a regional basis by an individual Corps
district (Corps, n.d.). There is no standard set of RGP activity categories that apply to all states, and there
are varying numbers of RGPs issued by different Corps Districts.
3.4.2 Section 402 NPDES Permits
The NPDES permit program addresses water pollution by regulating point sources that discharge
pollutants to a WOTUS. For section 402 NPDES permits, section 401 certification only applies when EPA
(a federal agency) is the permitting authority. Program components of NPDES include the NPDES permit
program, authority to regulate federal facilities, pretreatment program, general permits program, and
biosolids program (U.S. EPA, 2019), and a state may receive authorization to administer one or more of
the NPDES program components. EPA retains administration for the program components for which a
state is not authorized. For example, if the state has not received authorization for federal facilities, EPA
would continue to issue permits to federal facilities (e.g., military bases, national parks, federal lands,
etc.), and the state would have input on the permit via section 401. EPA is the sole NPDES permitting
authority for three states (Massachusetts, New Hampshire, and New Mexico), the District of Columbia,
all U.S. territories except the Virgin Islands, and generally on tribal lands. All other states and the Virgin
Islands have authorization to issue section 402 permits for either the entire NPDES program or certain
components.
The two basic types of NPDES permits are individual and general permits. NPDES individual permits are
project specific. Typically, dischargers seeking coverage under a NPDES general permit are required to
submit a notice of intent to be covered by the permit. NPDES general permits cover discharges meeting
general permit requirements in areas where EPA is the NPDES permitting authority (see U.S. EPA, 2017).
3.4.3 Interstate Natural Gas Pipeline and Hydropower Project Licenses
Projects requiring interstate natural gas pipeline and hydropower project licenses, which are issued by
FERC (FERC, 2020), are also subject to section 401 certification. Certifying authorities typically review
section 401 certification requests for these projects rather than waiving review.
3.4.4 Rivers and Harbors Act Sections 9 and 10 Permits
Rivers and Harbors Act sections 9 and 10 permits cover construction of structures in navigable waters.
Section 9 permits authorize construction of bridges and causeways, which fall under U.S. Coast Guard
jurisdiction, as well as dams and dikes, which fall under Corps jurisdiction. Section 10 permits authorize
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construction of wharfs, piers, dolphins, booms, weirs, breakwaters, bulkheads, and jetties, which all fall
under Corps jurisdiction.
3.4.5 Nuclear Power Plant Licenses
NRC issues licenses for nuclear power plants, which are often subject to section 401 review since they
are often located adjacent to waters to support the power generation equipment and sometimes
discharge cooling water (U.S. Energy Information Administration, 2021a). According to the Energy
Information Administration (2021b), "[a]s of September 1, 2021, there were 55 commercially operating
nuclear power plants with 93 nuclear power reactors in 28 U.S. states."
3.4.6 Mining Licenses
The USDA Forest Service and BLM are responsible for management of surface resources and
government-owned minerals on National Forest Service lands. The Forest Service and BLM therefore
must approve mine plans of operations before mining activity can take place. Other approvals, such as
section 404 permits, may also be required for such activities.
3.5 Limitations and Uncertainties
3.5.1 Information from Certifying Authority Websites and Pre-proposal Input
Only five of the 56 states and territories list the average annual number of certifications approved
and/or denied on their websites. No state or territory websites provide information about how often
they waive section 401 review.
Of the 56 state and territory websites searched, 18 did not have any information on section 401 fees.
These states or territories either do not charge a section 401 fee, or their section 401 fees are not
documented on their websites. For the states and territories with listed fees, some fees appear large for
reviews solely for section 401 purposes and may be part of a larger permitting fee. For example, the fee
range listed for Alabama's section 401 process ranged from $800-$25,920. The $800 minimum fee is
listed for several project types, while the $25,920 fee is listed for "commercial and residential
development 100 acres or greater in size" (AL DEM, 2021).
As summarized in Section 3.2, many states provided information about their average annual number of
certification decisions and average issuance times in pre-proposal input letters. Although this
information helps establish the section 401 baseline, the available data are not sufficient for developing
a nationally representative dataset for the annual average number of section 401 reviews conducted
and the resulting certification decisions.
3.5.2 Federal License and Permit Summary
Table 3-4 in Section 3.3 presents the average annual number of issued federal licenses and permits for
six licensing/permitting categories. However, the annual average number of licenses and permits issued
does not capture the totality of section 401 certification reviews because the numbers do not account
for certification requests that may be denied by certifying authorities or withdrawn by project
proponents. Lastly, some licenses/permits in Table 3-4 may not meet the requirements that trigger
section 401 certification, but EPA is unable to estimate the proportion of licenses/permits that require
section 401 certification due to data limitations.
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4 Potential Effect of Proposed Regulatory Revisions
EPA is proposing a new certification rule that promotes efficiency and certainty in the certification
process, that is well-informed by stakeholder input, and that is consistent with the cooperative
federalism principles central to CWA section 401. EPA's efforts to reconsider the 2020 Rule identified
certain procedural components of the 2020 Rule that impacted the certification and licensing/permitting
process. These efforts and subsequent stakeholder input informed the proposed rule provisions.
Overall, EPA anticipates that the proposed rule would result in more predictable, efficient decision-
making by certifying authorities relative to either the 1971 Rule or 2020 Rule baseline. Additionally, the
proposed changes are expected to improve certifying authorities' ability to protect water resources.
Improved water quality protection is the main benefit anticipated to result from proposed changes to
several provisions.35 Although the proposed rule may impose some additional burdens on certifying
authorities (e.g., RPT negotiations relative to both baselines, information requirements for denials
relative to the 1971 Rule baseline) and project proponents (e.g., pre-filing meeting requests and
participation relative to the 1971 baseline), the Agency expects that clear, unambiguous procedural
requirements would improve section 401 procedural efficiencies for both certifying authorities and
project proponents. The proposed rule would clarify ambiguities in the current section 401 process,
including scope, modifications, neighboring jurisdiction assessments, and procedures when EPA acts as
the certifying authority. These revisions would help standardize the certification process, reduce
confusion, and promote efficient section 401 reviews. The proposed rule would also create a means for
tribes to obtain TAS for section 401 and/or section 401(a)(2) directly, which would limit costs for tribes
interested in obtaining TAS for section 401 and/or 401(a)(2) that do not want to administer the section
303(c) program for WQS.
Sections 4.1 through 4.11 summarize each proposed rule provisionincluding a description of the 1971
Rule and 2020 Rule requirements, the proposed change, and the rationale for the proposed change
and discuss potential effects of each proposed rule provision on certifying authorities, project
proponents, other stakeholders, and the environment, as compared with the 1971 Rule and 2020 Rule
baselines. Section 4.12 discusses potential regulatory revisions that federal agencies and certifying
authorities may make in response to the proposed rule. Section 4.13 summarizes in a table (Table 4-1)
the potential effects of the proposed regulatory revisions relative to both the baselines. Table A-l
compares rule provisions, in plain language, under the 1971 Rule, the 2020 Rule, and the proposed rule.
4.1 When Section 401 Certification is Required
4.1.1 Summary of Provision
1971 Rule and 2020 Rule requirements: Section 401 certification is required for any federal
license or permit to conduct any activity that may result in any discharge into a water of the
35 Use benefits are values individuals hold for an environmental improvement that can be inferred through a
change in demand for one or more market goods (i.e., purchases of complementary goods such as equipment and
travel), and nonuse benefits are values individuals hold for an environmental improvement that are independent
of purchases of market goods and services. The total benefits of an environmental improvement are the
combination of use and nonuse benefits (Freeman III et al., 2014). Recent economic literature provides substantial
empirical support that nonuse values, such as option and existence values, are greater than zero, and small per
capita nonuse values held by a substantial fraction of the population can be very large in the aggregate.
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United States. 33 U.S.C. 1341(a)(1). While not addressed in the 1971 Rule, case law from the 9th
Circuit held that only a point source discharge triggers section 401 (Oregon Natural Desert Ass'n
v. Dombeck, 172 F.3d 1092 (9th Cir. 1998)). The 2020 Rule aligns with the 1971 Rule practice,
but explicitly provides in the regulatory text that certification is required for any activity that
may result in a discharge. "Discharge" for purposes of section 401 is also defined in the 2020
Rule as a discharge from a point source into a water of the United States, consistent with
Dombeck, 172 F.3d 1092.
Description of proposed regulatory change: The proposed rule explicitly reaffirms the
longstanding Agency position that section 401 certification is required for any federal licenses or
permits that authorize an activity which may result in a point source discharge into a water of
the United States. The preamble reaffirms that the Agency interprets discharge to include, but
not be limited to, the discharge of pollutants, consistent with the holding in S.D. Warren Co. v.
Maine Bd. ofEnvtl. Prot., 547 U.S. 370 (2006). Additionally, the preamble reaffirms that
discharges must be from point sources in order to require section 401 certification. Dombeck,
172 F.3d 1092. This interpretation is consistent with the Agency's longstanding interpretation of
section 401 and judicial precedent. See section V.A in the preamble for further discussion of this
aspect of the proposed rule.
Rationale for proposed regulatory change: This proposal reaffirms existing regulatory practice
and continues to provide clarity for stakeholders involved in the certification process.
4.1.2 Potential Impacts of the Provision
4.1.2.1 1971 Rule as the Baseline
The proposed approach clarifies when section 401 certification is required for certifying authorities,
federal agencies, and project proponents. Increased clarity on the section 401 certification process and
implementation was a common request during pre-proposal feedback across stakeholder groups, and
the proposed rule addresses these requests by codifying existing practices in the section 401
certification process. Overall, the increased clarity that would be gained from the proposed provision
could result in small environmental benefits from improvements in the section 401 review process and
small cost savings for certifying authorities, federal agencies, and project proponents.
4.1.2.2 2020 Rule as the Baseline
The proposed provision replicates the 2020 Rule provision regarding when section 401 certification is
required. As such, relative to the 2020 Rule baseline, this proposed rule provision does not have any
potential impacts.
4.2 Pre-filing Meeting Requests
4.2.1 Summary of Provision
1971 Rule and 2020 Rule requirements: There is no requirement for early engagement between
any section 401 stakeholders in the 1971 Rule or in the statute. Pre-filing meetings were
introduced in the 2020 Rule. Project proponents are required to request pre-filing meetings at
least 30 days prior to requesting certification. Under the 2020 Rule, certifying authorities do not
have to grant the request for a pre-filing meeting, but they cannot waive the 30-day wait period
to submit a request for certification. See 40 CFR 121.4.
Description of proposed regulatory change: EPA is proposing to retain the 2020 Rule
requirement for project proponents to request a pre-filing meeting with the certifying authority
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at least 30 days prior to submitting a certification request. However, under the proposed rule,
certifying authorities may shorten or waive this pre-filing meeting request requirement and
direct the project proponent to proceed with submitting a certification request. See section V.B
in the preamble for further discussion of this aspect of the proposed rule.
Rationale for proposed regulatory change: In pre-proposal outreach, some stakeholders shared
that the pre-filing meeting request requirement in the 2020 Rule has been a helpful tool in
promoting early coordination and transparency among certifying authorities, federal agencies,
and project proponents. However, EPA also received input from some stakeholders noting that
the mandatory 30-day wait period in between the pre-filing meeting request and submission of
the certification request under the 2020 Rule is too rigid for projects that do not require
significant early coordination. 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 before the statutory "reasonable period of time" for
certification review begins (e.g., allow the certifying authority to collect important details about
a proposed project and its potential effects on water quality). The proposed revision provides
flexibility for certifying authorities to decide whether to require pre-filing meeting requests
based on project complexity and other factors, and supports cooperative federalism, allowing
states and tribes to choose which projects or scenarios, if any, require early coordination. The
ability to waive a pre-filing meeting may be especially beneficial for certifying authorities
(including tribes with TAS) with limited resources under their existing 401 programs, or for
projects of limited scope and impact.
4.2.2 Potential Impacts of the Provision
4.2.2.1 1971 Rule as the Baseline
Although pre-filing meetings would place additional burden on both project proponents and certifying
authorities (unless a pre-filing meeting request has been waived), the process is ultimately expected to
reduce burden elsewhere in the section 401 certification. Informal engagement often occurs in the
baseline after receipt of a certification request, such as when certifying authorities request additional
information from project proponents to make a certification decision. The informal engagement often
occurs at multiple points throughout the section 401 review process. The pre-filing meeting would
provide a more formal engagement opportunity between project proponents and certifying authorities
prior to the initiation of the certification review process, which may help project proponents provide
relevant information in the initial certification request, help certifying authorities act within the RPT, and
reduce back-and-forth communication between project proponents and certifying authorities. The
requirement in the proposed rule for project proponents to submit a pre-filing meeting request would
provide certifying authorities with the option to learn about and discuss proposed projects prior to
receiving certification requests, which represents an improvement from the baseline scenario. Pre-filing
meetings benefit certifying authorities and project proponents by helping both parties to understand
the proposed project and the type of information or data that may be necessary for a timely and
complete section 401 review. It may also allow states to more rapidly initiate their public notice
processes and provide better information for public comment.
Under the 1971 Rule baseline, the section 401 process is often delayed by incomplete section 401
requests. The Tennessee Department of Environment and Conservation (TDEC), for example, found that
the average time to process certification requests was often delayed because the initial requests lacked
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sufficient information to analyze water quality impacts and solicit public input. On average, TDEC
reported a 120-day waiting period after receipt of the initial request for obtaining the information
necessary to make a certification decision.36 Alternatively, states that already utilize pre-filing meetings
noted fewer delays due to incomplete requests. For example, the Wyoming Department of
Environmental Quality (WDEQ) stated in its pre-proposal input letter that the section 401 review process
can be completed within 60 days by properly using pre-filing meetings. WDEQ frequently encourages
project proponents to submit pre-filing meeting requests at the conceptual or 30% design phase of the
proposed project. WDEQ often includes several stakeholders in the pre-filing meeting process and
discusses several projects at meetings with larger entities that are filing for multiple federal licenses or
permits. For certain projects, WDEQ also participates in the early stages of the National Environmental
Policy Act review process to facilitate an efficient section 401 review process.37 In addition to facilitating
efficient section 401 reviews, early engagement may improve the quality of section 401 reviews by
helping to ensure that necessary information is available prior to or early in the RPT, which may improve
compliance with water quality requirements.
Flexibility in the pre-filing meeting proposed rule provision would minimize burden on certifying
authorities and project proponents. If a certifying authority decides to categorically waive pre-filing
meetings for certain project types and makes that information publicly available, the project proponent
does not have to request a pre-filing meeting and may proceed without any delay. Similarly, if a
certifying authority declines a pre-filing meeting after a project proponent submits a pre-filing meeting
request, the project proponent could proceed with submitting a certification request without any
additional delay. If a certifying authority decides to require a pre-filing meeting, the proposal clarifies
that the project proponent must request the pre-filing meeting at least 30 days before requesting
certification. However, the certifying authority may shorten the timeframe to reduce any delays in the
certification process. Similarly, the certifying authority may advise a project proponent to submit a pre-
filing meeting request more than 30 days before submitting a certification request, as necessary, to
ensure that the project proponent has sufficient time to gather the appropriate information to submit a
certification request and that the certifying authority can make a certification decision within the RPT.
The proposed rule requirement for project proponents to submit a pre-filing meeting request to
certifying authorities for all projects, unless otherwise waived, would result in an additional time burden
for project proponents. The time burden would increase when certifying authorities accept the request
since project proponents would be expected to participate in a pre-filing meeting. Additionally, project
proponents may be required to pay a fee for a pre-filing meeting. For example, Michigan uses a joint
state and Corps permit application, and project proponents currently have the option to request a pre-
application meeting for a fee up to $1,100 (Michigan Department of Environmental Quality, 2019). If
pre-filing meetings become more common as a result of this rulemaking, certifying authorities may
consider adding pre-filing meeting fees to help cover their administrative costs. Hence, project
proponents may be more likely to incur this monetary burden. However, EPA does not have information
on which states may impose these fees or the potential magnitude of such fees.
36 Tennessee Department of Environment and Conservation (0083).
37 Wyoming Department of Environmental Quality (0019).
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The burden of the pre-filing meeting provision on certifying authorities depends on multiple factors.
First, the burden depends on the magnitude of the change in the number of pre-filing meetings from the
baseline, as a result of the proposed rule provision. Some certifying authorities are already engaging in
pre-filing meetings with project proponents and may experience limited to no changes. Additionally, to
minimize costs and burdens on staff, certifying authorities can decline all meeting requests or choose to
decline meeting requests for routine or non-complex projects and only accept the meeting for larger or
complex projects. Second, the burden depends on the methodology that certifying authorities use to
conduct pre-filing meetings. Certifying authorities can use methodologies that would limit staff time and
resources, such as conducting the meeting online or via phone call. Lastly, the burden also depends on
whether a certifying authority implements a pre-filing meeting fee to help cover costs. EPA recognizes
that there is considerable uncertainty in estimating how certifying authorities alter their current practice
in response to the proposed rule.
Overall, relative to the 1971 Rule baseline, this provision of the proposed rule could have positive
environmental benefits since early engagement via pre-filing meetings could improve section 401
reviews and compliance with applicable water quality requirements. In terms of process costs, the
proposed provision would result in cost savings for certifying authorities since they would only accept
the pre-filing meeting request when such meetings would be beneficial for their section 401 review (i.e.,
for large or complex projects). For project proponents, the overall cost effects are uncertain since the
cost savings resulting from improved efficiencies may not exceed burden of submitting pre-filing
requests, participating in pre-filing meetings when accepted, and potential fees that certifying
authorities may charge for the pre-filing meetings.
4.2.2.2 2020 Rule as the Baseline
Under the 2020 Rule, project proponents are required to request pre-filing meetings at least 30 days
prior to requesting certification, and the 30-day period cannot be waived even if certifying authorities
do not grant the request for a pre-filing meeting. The proposed rule would allow certifying authorities to
waive the 30-day waiting period at their discretion. The proposed provision would allow greater
flexibility to certifying authorities and project proponents when initiating the section 401 review process
and reduce delay when pre-filing meetings are not needed for a particular project, which would result in
cost savings for both certifying authorities and project proponents relative to the 2020 Rule baseline.
4.3 Certification Requests
4.3.1 Summary of Provision
1971 Rule and 2020 Rule requirements: The statute states that a certifying authority's
reasonable period of time to act starts after the certifying authority is in "receipt" of a "request
for certification" from a project proponent (33 U.S.C. 1341(a)). Neither the CWA nor the 1971
Rule define either "request for certification" or "receipt." The 1971 Rule did not define what is
required in a "request for certification" when states or tribes are the certifying authorities.
However, when EPA is the certifying authority, the 1971 Rule required project proponents to
submit a signed certification request with "a complete description of the discharge involved in
the activity," which included five components. The Agency defined both "certification request"
and "receipt" in the 2020 Rule and provided an exhaustive list of items required in a certification
request applicable to all certifying authorities. See 40 CFR 121.l(m), 121.5. The 2020 Rule
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requires seven or nine components depending on whether the request for certification is for an
individual license or permit or the issuance of a general license or permit.
Description of proposed regulatory change: The Agency is proposing that a "request for
certification" be in writing, signed, and dated, and include a copy of the relevant draft license or
permit (unless legally precluded from obtaining such a copy) and any existing and readily
available data or information related to potential water quality impacts from the proposed
project. Beyond this requirement, EPA is not proposing further requirements for states or
authorized tribes who already define "request for certification" in their regulations. When EPA
acts as the certifying authority and when a state or authorized tribe does not have its own
definition of "request for certification" in their regulations, the Agency proposes to define
additional contents of a "request for certification." Lastly, EPA is proposing minor revisions to
the term "receipt" in all circumstances to clarify for stakeholders that the reasonable period of
time begins when a certifying authority receives a certification request as defined by the
certifying authority and in accordance with its applicable submission procedures. See section
V.C in the preamble for further discussion of this aspect of the proposed rule.
Rationale for proposed regulatory change: In pre-proposal outreach, states and tribes
expressed concerns about the Agency's decision to provide an exhaustive list for certification
requests in the 2020 Rule, noting that it is unreasonable to impose a "one size fits all" on
certification requests in light of different state law requirements (e.g., fees, antidegradation
laws) or expect states and tribes to be able to act in a timely, informed manner without more
specific, tailored information. Therefore, the Agency is only defining additional contents of a
"request for certification" when EPA acts as a certifying authority or for when a state or tribe
does not have a definition for "request for certification" in their own regulations. This proposal
balances both transparency, efficiency, and flexibility for stakeholders. Additionally, the
proposal to include a copy of the draft license or permit (unless legally precluded from obtaining
such a copy) and any existing and readily available data or information related to potential
water quality impacts from the proposed project in the "request for certification" ensures that
the certifying authority has important information to evaluate and determine if it can certify
that the activity as a whole will comply with applicable water quality requirements.
4.3.2 Potential Impacts of the Provision
4.3.2.1 1971 Rule as the Baseline
Although requiring a copy of a draft license or permit and any existing and readily available data or
information related to potential water quality impacts from the proposed project as part of a
certification request may postpone when the section 401 review process could begin, the inclusion of a
copy of a draft license or permit and any existing and readily available data or information related to
potential water quality impacts from the proposed project would help standardize the level of
information provided to certifying authorities and reduce duplication of effort between certifying
authorities and federal agencies. In pre-proposal input, attorneys general from multiple states described
how states need to spend resources to evaluate water quality impacts that are also evaluated by the
federal agency, which is a duplication of effort, because certification requests typically come before
federal agencies develop a draft permit or license or related conditions.38 The information included in a
38 Idaho Attorney General and others (0094).
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draft license or permit and any existing and readily available data or information related to potential
water quality impacts from the proposed project may help certifying authorities conduct more complete
section 401 reviews and better ensure compliance with applicable water quality requirements.
Additionally, certifying authorities would be less likely to request additional information from project
proponents to assess potential water quality impacts of the proposed project, which would increase
efficiency in the section 401 certification process. This increased efficiency could benefit both project
proponents and federal agencies since licenses or permits may be issued more quickly.
Defining the contents of a certification request, beyond the draft license or permit, when EPA is acting
as the certifying authority or when certifying authorities have not defined a "request for certification" in
their regulations would help to improve certification request consistency by providing a backstop of
information requirements. Although a list of required contents may not be sufficient for all project types
with various levels of complexity, the pre-filing meeting provision of the proposed rule (see Section 4.2)
would provide opportunities for certifying authorities to discuss data needs with project proponents
before the submission of certification requests. The proposed provision would also provide flexibility for
certifying authorities to set their own definition regarding the required contents of a certification
request.
The "request for certification" provision when EPA is acting as the certifying authority or when certifying
authorities have not provided their own definition would also provide project proponents with greater
clarity and certainty regarding what contents to include in certification requests. More complete initial
certification requests may improve the quality of section 401 reviews and compliance with applicable
water quality requirements. However, project proponents with projects that span multiple jurisdictions
may also need to follow alternative definitions set by certifying authorities, which may be more
cumbersome than one standard definition across jurisdictions.
The proposed provision balances pre-proposal input received regarding certification requests. Many
stakeholders recommended that state certifying authorities be responsible for determining the
information needed to process a complete certification request.39 Other stakeholders supported a
standard certification request definition because it eliminated confusion as to when a project proponent
requests certification, created clarity and certainty around the timeline for certifying authority action,
and ensured the statutory clock began with the basic information needed for review.40 Defining a
certification request when EPA is acting as the certifying authority or when certifying authorities do not
have their own definition provides the clarity and certainty desired by project proponents while giving
certifying authorities flexibility to set their own definition.
Overall, relative to the 1971 Rule baseline, this provision of the proposed rule would have positive
environmental benefits since improving consistency of information provided in certification requests via
copies of the draft license or permit and other readily available data related to potential water quality
impacts from the proposed project would improve the quality of section 401 reviews, particularly for
certifying authorities with limited resources. In terms of process costs, the proposed provision would
39 See, e.g., Michigan Department of Natural Resources (0016); New York State Department of Environmental
Conservation (0042); North Carolina Department of Environmental Quality (0124).
40 See, e.g., Enbridge Gas Pipelines (0072); Metallurgical Coal Producers Association (0036); GPA Midstream
Association (0050).
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result in cost savings for project proponents by streamlining the process when EPA is the certifying
authority or when a certifying authority does not provide its own definition of a "request for
certification." The proposed provision would also result in cost savings for certifying authorities by
reducing duplication of effort between certifying authorities and federal agencies.
4.3.2.2 2020 Rule as the Baseline
Relative to the 2020 Rule, the proposed rule provides more flexibility in the certification request
definition. The 2020 Rule includes a prescriptive list of certification request components and does not
allow certifying authorities to provide an alternative definition of a "request for certification." Under the
proposed rule, certifying authorities would be able to maintain their existing definitions or components
of a "request for certification/' along with additional requirements of a copy of the draft license or
permit (unless legally precluded from obtaining such a copy) and any existing and readily available data
or information related to potential water quality impacts from the proposed project. Requiring a copy of
a draft license or permit would reduce redundancy in the certification and federal licensing or permitting
process, while allowing certifying authorities to maintain their existing definitions or components of a
"request for certification" which provides states and tribes with greater autonomy to tailor required
components to their needs. Since the proposal affirms longstanding section 401 practices and several
states already have request for certification definitions in their regulations, EPA anticipates minimal
costs for certifying authorities. Additionally, the proposal does not require certifying authorities to
develop regulatory definitions, nor does it prevent certifying authorities from requesting additional
information after it receives a request for certification. When EPA is the certifying authority or when
certifying authorities do not have their own "request for certification" definitions or components in
regulation, the proposed rule would require a set list of components in addition to the draft license or
permit and any existing and readily available data or information related to potential water quality
impacts from the proposed project, which would provide additional clarification to project proponents
and standardize the information that certifying authorities receive in certification requests. Section
4.3.2.1 provides additional details about the potential impacts of the draft license or permit
requirement, the ability for certifying authorities to maintain their existing "request for certification"
definitions or components, and the requirement to include a set list of components when certifying
authorities do not have their own definition.
Overall, relative to the 2020 Rule baseline, this provision of the proposed rule would have similar
impacts as relative to the 1971 Rule baseline, including positive environmental benefits and cost savings
for both certifying authorities and project proponents. Environmental benefits may be larger relative to
the 2020 Rule baseline because certifying authorities would be able to retain their own regulatory
requirements for a certification request, which can be tailored to best ensure compliance with
applicable water quality requirements, instead of using the prescriptive list required by the 2020 Rule.
The ability to retain their own "request for certification" regulatory requirements may also result in
higher cost savings for certifying authorities relative to the 2020 Rule baseline than relative to the 1971
Rule baseline.
4.4 Reasonable Period of Time
4.4.1 Summary of Provision
1971 Rule and 2020 Rule requirements: The statute states that a certifying authority waives its
ability to certify a federal license or permit if it does not act on a certification request within a
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reasonable period of time, which cannot exceed one year (33 U.S.C. 1341(a)). Other than
specifying that the RPT "shall not exceed one year/' the CWA does not define RPT. The 1971
Rule reiterated that a certifying authority would waive its certifying ability if it did not act within
"a reasonable period of time" and offers interpretations on two key RPT concepts: (1) the
federal licensing or permitting agency determines the length of the RPT, and (2) the RPT "shall
generally be considered to be six months, but in any event shall not exceed one year" (40 CFR
121.16(b)(2019)). Additionally, the Agency is aware that there are instances where project
proponents were asked to withdraw and resubmit a certification request, even though the 1971
Rule was silent on this practice [see, e.g., Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir.
2019)). Under the 2020 Rule, federal agencies are required to set the RPT within 15 days of
receiving the request for certification. The 2020 Rule provides that the RPT shall not exceed one
year, as well as provides factors federal agencies must consider in setting the reasonable period
of time. Under the 2020 Rule, the certifying authority cannot ask a project proponent to
withdraw and resubmit a certification request to restart the clock.
Description of proposed regulatory change: EPA is proposing a process whereby the federal
agency and certifying authority may jointly determine the length of the RPT. If the federal
agency and the certifying authority do not reach an agreement within 30 days of receipt of the
request for certification, the RPT will default to 60 days. The proposal also identifies scenarios
where the RPT would automatically be extended upon notification by the certifying authority
(e.g., where necessary to accommodate a certifying authority's public notice requirements) but
not beyond one year from the receipt of the certification request. Lastly, the federal agency and
certifying authority, after consulting with the project proponent, may extend the RPT once it has
begun, provided that the RPT does not exceed one year from the receipt of the certification
request. See section V.D in the preamble for further discussion of this aspect of the proposed
rule.
Rationale for proposed regulatory change: In pre-proposal input, some stakeholders asserted
that the 2020 Rule limits the role of state and tribal authorities in setting the timeline for
reviewing certification requests. EPA expressed similar concerns about the lack of flexibility for
certifying authorities to inform the RPT in the Federal Register (U.S. EPA, 2021a). While still
consistent with statutory text, the proposed regulatory changes would balance equities
between certifying authorities and federal agencies. It would provide the flexibility for
cooperative federalism principles and would allow certifying authorities and federal agencies to
determine the best method for establishing the RPT (e.g., case-by-case or on a programmatic
basis). Alternatively, if the agencies are unable to agree to an RPT, this option would provide for
a default RPT. This "default" approach obviates the need for a potentially lengthy dispute
resolution process in the event the certifying authority and federal agency disagree about the
RPT.
4.4.2 Potential Impacts of the Provision
4.4.2.1 1971 Rule as the Baseline
The proposed rule would give certifying authorities greater opportunity to ensure that the RPT is
informed by the size and complexity of the project, the certifying authority's available resources (e.g.,
staff size), and public notice and comment requirements. Negotiating the RPT upfront could improve the
efficiency of the review process (e.g., reduce the need for subsequent extension requests) and reduce
the administrative burden on the certifying authority. If a longer RPT is negotiated, the proposed rule
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could give certifying authorities more time to request additional information from project proponents, if
such information is necessary to fully assess the water quality impacts of the proposed activity and make
a certification decision. Additionally, auto-extensions described in the proposed rule would give the
certifying authority greater flexibility to account for the public comment process or unforeseen
circumstances, such as a federal government closure or natural disaster, which could further reduce
burden on certifying authorities.
The default RPT of 60 days is shorter than the general consideration of six months in the 1971 Rule;
however, the majority of certification decisions are already subject to a 60-day RPT, as described in
Table 3-4. In combination with the requirement to include a draft license or permit in the certification
request and any existing and readily available data or information related to potential water quality
impacts from the proposed project, the shorter default RPT of 60 days may be more efficient in certain
instances as certifying authorities could use the federal agency's water quality impact analysis from the
draft license or permit to inform their analysis, which would reduce burden on certifying authorities and
minimize duplication of effort with federal agencies. However, negotiation with the federal agency to
set the RPT could create additional administrative costs for the certifying authority. Moreover, in
instances where the certifying authority needs more than 60 days, and the certifying authority and
federal agency could not reach an agreement on a longer RPT, a 60-day default RPT to complete a
section 401 review could put undue strain on the certifying authority's resources. This undue strain may
translate into increased administrative costs for certifying authorities, which could increase certification
fees for project proponents if certifying authorities increase their fees to cover higher costs.
Greater flexibility for the certifying authority to influence the RPT (e.g., by extending its length) could
lead to more complete water quality impact analyses and better-informed certification decisions, which
could positively impact water quality and the natural environment, better ensure adherence to water
quality requirements, and potentially reduce the number of denials issued due to insufficient time to
complete a certification review. RPT extensions could result in more certifications granted with
conditions, such as monitoring and reporting conditions, which is expected to improve water quality
protection but may come with additional project costs to the project proponent. Alternatively, in cases
where the certifying authority and federal agency could not agree on a longer RPT and none of the auto-
extension conditions apply, a 60-day default RPT could either result in (1) less complete water quality
impact analysis and certification decisions that are not as protective of water quality or (2) an increase in
the number of denials if the RPT is insufficient for a complete review. Lastly, the proposed rule allows
for certifying authorities and federal agencies to set a RPT shorter than 60 days, which would reduce
delays and improve efficiencies for the project proponent.
The proposed rule clearly outlines the process for extending the RPT and grants project proponents
more involvement in the extension process. This increased involvement in the extension process could
potentially reduce the regulatory uncertainty of the review process for project proponents and reduce
the risk of certifying authorities issuing a denial (due to a lack of time and necessary information to
conduct a proper review). Auto-extensions could also reduce the risk of certifying authorities issuing
project denials because of a lack of time to complete a review due to unforeseen circumstances.
Moreover, there may be fewer project delays from the section 401 review process in cases where the
default 60-day RPT is set. However, a general consensus among certifying authorities in the pre-proposal
input letters was that the federal agency typically set the RPT to be too short and did not account for
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adequate information needs and project complexity and size.41 Since certifying authorities would have
more influence on setting the RPT under this proposal, the RPT for certification requests for federal
licenses or permits where the federal agency currently has a default RPT of less than one year in the
baseline may be longer on average than it would be if it was determined unilaterally by the federal
agency. As a result, the proposed provision to allow certifying authorities and federal agencies to jointly
set the RPT could increase the risk of project delays, though this effect could be limited to the CWA
section 402 and section 404 permit programs (which currently have a default RPT of 60 days).
Additionally, the potential for project delays could be offset by pre-filing meeting coordination and a
greater availability of information afforded to the certifying authority at the beginning of the
certification review process under this proposal (e.g., draft license or permit); as noted in Section 3.2.3,
certifying authorities have delayed issuing certification decisions in the past due to incomplete
information.
Overall, this provision of the proposed rule could result in small positive environmental benefits due to
the improved efficiency of the section 401 process. Additionally, this provision of the proposed rule may
result in cost savings for certifying authorities and project proponents. The certifying authority would
have greater flexibility to conduct its section 401 review and the ability to influence the RPT. Moreover,
the project proponent would have the ability to influence the extension process. These potential effects
could translate into reduced administrative burden for these two entities. Additionally, because they
would have to negotiate the RPT with certifying authorities, federal agencies may experience
incremental costs.
4.4.2.2 2020 Rule as the Baseline
The Agency expects that many of the potential impacts of this provision would be the same with either
the 1971 Rule or 2020 Rule as the baseline. For instance, the Agency expects the potential impacts of
having certifying authorities and federal agencies jointly set the RPT and negotiate for extensions (with
consultation of the project proponent) to have the same potential impacts relative to both baselines.
Moreover, the potential impacts of auto-extensions will also likely be the same under the two baselines.
However, there may be some other different potential impacts with the 2020 Rule baseline. The
proposed rule does not require federal agencies to determine the RPT 15 days after receipt of a
certification request. On average, federal agencies may experience reduced administrative burden as a
result of the removal of this deadline, but may also experience a shared burden of determining the RPT
with the certifying authority during a maximum 30-day negotiation period. The 2020 Rule explicitly bars
certifying authorities from asking project proponents to withdraw and resubmit certification requests,
while the proposed rule does not take a position on the validity of withdrawal/resubmit. In the pre-
proposal input letters, two industry stakeholders stated that the 2020 Rule helped prevent certifying
authorities from asking project proponents to withdraw and resubmit certification requests.42 As a
result, project proponents may experience more project delays under the proposed rule, as well as
additional costs, if the "withdraw and resubmit" practice is used. However, it is not clear what effect
EPA's 2020 Rule had on that practice independent to published court decisions. EPA assumes that the
41 See, e.g., Wisconsin Department of Natural Resources (0038); New Hampshire Department of Environmental
Services (0039); Utah Department of Environmental Quality (0028).
42 American Coal Council (0076); National Mining Association (0097).
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"withdraw and resubmit" approach has primarily been used when a certifying authority had inadequate
water quality information with which to certify or certify with conditions, and was confronted by an
imminent RPT deadline. Under the proposed rule, it is likely that the certifying authority may not feel
the need to request as much additional information (necessitating "withdrawal and resubmit") because
the proposed approach to a request for certification will have already necessitated its submission. In
such cases, the difference between the 2020 Rule baseline and the proposed rule for the RPT provision
would be quite limited. Additionally, the ability of the federal agency and certifying authority to
collaboratively set the RPT would reduce the need for the "withdraw and resubmit" practice.43
Overall, as under the 1971 Rule baseline, this provision of the proposed rule could result in small
environmental benefits due to the improved efficiency of the review process. This provision may also
result in net cost savings for certifying authorities and project proponents for the same reasons as
discussed in Section 4.4.2.1. Despite being required to negotiate the RPT with the certifying authority,
federal agencies may also experience net cost savings due to the removal of the 15-day deadline to set
the RPT.
4.5 Scope of Certification
4.5.1 Summary of Provision
1971 Rule and 2020 Rule requirements: Section 401(a)(1) provides that a certification must be
obtained by "any applicant for a Federal license or permit to conduct any activity .. . which may
result in any discharge into the navigable waters" (33 U.S.C. 1341(a)(1)). Section 401(d) provides
that a certifying authority may place conditions in a certification that are "necessary to assure
that any applicant for a Federal license or permit will comply with" water quality requirements.
Id. at 1341(d). The 1971 Rule did not explicitly address the scope of certification in regulatory
text. In 1994, the U.S. Supreme Court held that section 401 "is most reasonably read" as
authorizing the certifying authority to evaluate and place conditions on what the Court
described as the "project in general" or the "activity as a whole" to assure compliance with
various provisions of the CWA and "any other appropriate requirement of State law" once the
predicate existence of a discharge is satisfied. PUD No. 1 of Jefferson County v. Washington
Department of Ecology, 511 U.S. 700, 711-712 (1994). The Court also said its "activity as a
whole" interpretation was consistent with EPA's 1971 Rule at 40 CFR 121.2(a)(3) (2019)
(requiring reasonable assurance that the "activity" will not violate applicable WQS) and with
EPA's 1989 guidance (U.S. EPA, 1989). The 2020 Rule replaced the "activity as a whole" scope of
review with a "discharge-only" approach that assures that a discharge from a federally licensed
or permitted activity will comply with water quality requirements. Water quality requirements is
defined as the applicable provisions of CWA sections 301, 302, 303, 306, 307, and state or tribal
regulatory requirements for point source discharges into waters of the United States.
Description of proposed regulatory change: The Agency is proposing to return to the scope of
certification standard affirmed by the Supreme Court in PUD No. 1, which provides that a
certifying authority's section 401 review and conditions may address the water quality-related
impacts from the "activity as a whole," as long as the need for a section 401 certification has
been triggered by the potential for a point source discharge into a WOTUS. Under this approach,
43 To the extent this assumption is not accurate, a project proponent may experience more project delays under
the proposed rule to the extent that the "withdraw and resubmit" approach would continue to be relied upon.
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every aspect of the project activity with the potential to affect water quality (e.g., construction,
operation) could be considered and subject to potential conditions under section 401(d)
regardless of whether those aspects are directly authorized by the federal license or permit that
has triggered the need for certification. See section V.E in the preamble for further discussion of
this aspect of the proposed rule.
Rationale for proposed regulatory change: During pre-proposal outreach, some states and
tribal authorities raised concerns that the scope of the 2020 Rule limits their ability to protect
water quality. The proposed rule is consistent with the Administration's interest in enhancing
and supporting cooperative federalism. The proposed approach is also environmentally
protective and allows states and tribes to address the broadest possible range of adverse water
quality effects from federally licensed or permitted projects. Lastly, the interpretation of
"activity as a whole" is consistent with the text of the statute, the Supreme Court case law, and
25 years of Agency guidance and practice prior to the 2020 Rule.
4.5.2 Potential Impacts of the Provision
4.5.2.1 1971 Rule as the Baseline
The clarified scope of review in the proposed rule would give certifying authorities more definitive
authority to comprehensively analyze water quality impacts related to a proposed activity as a whole.
The clarified scope may provide greater flexibility to certifying authorities to analyze additional
environmental impacts related to water quality. As a result, certifying authorities may have greater
ability to make better-informed certification decisions and ensure compliance with water quality
requirements. Moreover, certifying authorities would have clearer authority to base certification
decisions on water quality-related impacts from "the activity as a whole" rather than water quality-
related impacts resulting solely from the discharge. The proposed rule removes reliance on common law
and codifies the scope of "the activity as a whole" clearly for stakeholders. To that end, the clarified
scope of review in the proposed rule would likely reduce the risk of litigation against certifying
authorities by project proponents since the "activity as a whole" interpretation reduces the likelihood of
a condition or a denial being based on impacts outside of the section 401 scope of review.
The clarified scope of section 401 certification can lead to improved water quality protection,
particularly if certifying authorities were not considering the "activity as a whole" under the 1971 Rule
baseline. To illustrate, construction of a hydroelectric dam has much broader environmental
implications than just those at the point of discharge. Hydroelectric dams could significantly impact
water quality beyond the point of discharge by affecting migration patterns, downstream nutrient
passage, build-up of sediments, and aquatic habitats. Explicitly setting the scope of certification to the
"activity as a whole" could lead to certifying authorities who were not considering this scope under the
1971 Rule baseline to analyze and set conditions in accordance with water quality considerations from
both the discharge itself and water quality impacts beyond the discharge. As such, the clarified scope of
section 401 certification could improve water quality protection and result in both use and nonuse
benefits. Use benefits are values individuals hold for an environmental improvement that can be
inferred through a change in demand for one or more market goods (i.e., purchases of complementary
goods such as equipment and travel), and nonuse benefits are values individuals hold for an
environmental improvement that are independent of purchases of market goods and services. The total
benefits of an environmental improvement are the combination of use and nonuse benefits (Freeman III
et al., 2014). Recent economic literature provides substantial empirical support that nonuse values, such
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as option and existence values, are greater than zero for environmental improvements, and small per
capita nonuse values held by a substantial fraction of the population can be very large in the aggregate.
Most certifying authorities are likely already considering water quality-related impacts of the "activity as
a whole" when completing section 401 reviews because this is the standard set out by the U.S. Supreme
Court and consistent with EPA's 1971 Rule. However, a small number of certifying authorities may see
increased administrative costs due to the proposed rule if they are not currently evaluating water
quality-related impacts from "the activity as a whole." Alternatively, a small number of certifying
authorities that were previously considering impacts outside of water quality-related impacts could see
reduced administrative costs as a result of the proposed rule.
By clarifying the scope of review, the proposed rule could reduce the regulatory uncertainty of the
section 401 review process for project proponents. The clarified scope could also reduce the risk of
project delays from certification denials that are based on analyses of impacts outside of water quality-
related impacts of a proposed activity.
Overall, this provision of the proposed rule may result in small positive environmental benefits due to
the clarification of the scope of review as "the activity as a whole." It is uncertain if certifying authorities
will experience incremental costs or cost savings because some may conduct more thorough section 401
reviews than they would have before the scope clarification. However, there may also be a reduced risk
of litigation (and the associated costs) from project proponents against certifying authorities, who
already conduct thorough water quality analyses, that considered non-water quality related issues
before the proposed rule's clarification. Project proponents may experience incremental costs due to an
increase in the risk of project delays and denials.
4.5.2.2 2020 Rule as the Baseline
Relative to the 2020 Rule, the proposed rule shifts the scope of review away from a focus on "discharge-
only" and towards the "activity as a whole." As a result, with the 2020 Rule as the baseline, the
proposed rule may improve certifying authorities' ability to ensure compliance with water quality
requirements and could more significantly improve water quality than would be the case with the 1971
Rule as the baseline. Additionally, with the 2020 Rule as the baseline, certifying authorities may face
greater administrative costs from broadened section 401 reviews resulting from the proposed rule's
scope shift to "activity as a whole," as described in more detail below.
Relative to the 2020 Rule, under which only discharge-related impacts could be considered, the
proposed provision has significant potential to generate noticeable water quality improvements, such as
during the construction phase of a project when land disturbance can lead to significant stormwater
runoff issues and periods of excessive downstream siltation that can significantly affect aquatic habitat.
As described in Section 4.5.2.1, the expansion of the scope of review would give certifying authorities
latitude to analyze a wide array of water quality-related impacts from the activity, aside from the point
source discharge, such as those created by hydroelectric dams (e.g., sedimentation, aquatic habitats,
trash pollution). Under the 2020 Rule, certifying authorities could not analyze the water quality impacts
that did not arise from point source discharges. As a result, certifying authorities may have been
hampered from adequately protecting water quality via certification decisions and conditions issued
under the 2020 Rule. Certifying authorities that would have analyzed such water quality impacts under
the 1971 Rule but were prohibited from doing so under the 2020 Rule would be able to do so again
under the proposed rule. The 2020 Rule encourages project proponents to apply for permits which have
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low discharge impacts and high "activity as a whole" impacts. By limiting the ability of the certifying
authority to consider the full range of benefits and costs to society in determining whether to issue a
certification, the 2020 Rule increased the likelihood that projects that are not beneficial to society
(negative net benefits) were approved. The proposed rule would both discourage project proponents
from applying for and enable federal agencies to deny permit or license applications where certifying
authorities cannot certify such projects to be consistent with water quality requirements.
Conversely, with the 2020 Rule as the baseline, there may be increased risk of project delays and
associated costs for project proponents. Water quality impact analyses could take longer when
considering the "activity as a whole" as opposed to the "discharge only." Additionally, certifying
authorities may request additional information from project proponents to consider the "activity as a
whole" in their section 401 reviews. However, since these activity-related data requests may address
data that project proponents must compile anyway in the normal course for the federal license or
permit application, data requests for the section 401 process are unlikely to place any incremental
burden on project proponents.
Overall, this provision of the proposed rule would result in environmental benefits as more certifying
authorities could conduct more thorough water quality impact analyses with the expanded scope of
review. The potential environmental benefits associated with the change in scope will vary depending
on the nature, size, location, and type of projects that require a federal license or permit. For example,
when looking at a hydropower project, the activity as a whole scope would allow a certifying authority
to consider water quality-related impacts beyond the discharges from the tailrace or powerhouse.
Depending on the activity specifics, such consideration could result in certification conditions that could
include building or maintaining fish passage or habitat restoration. As another example, when looking at
the construction of a large pipeline project, the activity as a whole scope would allow a certifying
authority to consider water quality-related impacts beyond the discharge of dredge or fill material from
the construction and placement of the pipeline and, depending on the activity specifics, could include
erosion or sedimentation. Certifying authorities could consider certification conditions that include
monitoring, reporting, and adaptive management in response to the non-discharge impacts of the
activity, such as temperature, flow, riparian buffer conditions, and species impacts. These conditions
could also lead to improvements in ecosystem services that lead to use and nonuse benefits. However,
certifying authorities could also experience incremental costs due to the associated administrative costs
of conducting more thorough water quality impact analyses. Project proponents could experience
incremental costs due to the increased risk of project delays and denials. Moreover, project proponents
may be responsible for complying with a broader range of certification conditions due to the expanded
scope of review.
4.6 Certification Decisions
4.6.1 Summary of Provision
1971 Rule and 2020 Rule requirements: Section 401(a)(1) provides that a certifying authority
may grant a certification, grant a certification with conditions, deny a certification, or waive a
certification. The statute also says that, if a certifying authority fails or refuses to act on a
certification request within a reasonable period of time after receipt of such request, the
certification requirements shall be waived (33 U.S.C. 1341(a)(1)). Neither the statute nor the
1971 Rule define what it means for a certifying authority "to act on a certification request."
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Although EPA has never explicitly defined the term, prior Agency guidance and the 2020 Rule
took the position that certifying authorities must make a decision on a certification request
within the RPT. The 1971 Rule and 2020 Rule defined what certifying authorities must include in
a certification or express waiver. The 2020 Rule requires specific information to be included in
any decision document written by the certifying authority. See 40 CFR 121.7.
Description of proposed regulatory change: EPA is proposing to define "to act on a request for
certification" as one of the four certification decisions (grant, grant with conditions, deny, or
expressly waive) to provide clarity and transparency about the certification process. Consistent
with the 1971 Rule and the 2020 Rule, the proposed rule defines the information requirements
for certifications and express waivers for all certifying authorities. However, similar to the 2020
Rule, the proposed rule also adds information requirements for grants with conditions and
denials for all certifying authorities. See section V.F in the preamble for further discussion of this
aspect of the proposed rule.
Rationale for proposed regulatory change: The proposal makes the Agency's prior position on
what it means "to act on a certification request" explicit and aligns with previous practice.
Stakeholders have argued that the information requirements imposed under the 2020 Rule are
burdensome and should not be required. However, the Agency does not view that the proposed
information requirements will impose the same workload concerns as the 2020 Rule. Rather,
the proposed change updates certain standardized informational requirements to provide
clarity and transparency about the basis for certification decisions.
4.6.2 Potential Impacts of the Provision
4.6.2.1 1971 Rule as the Baseline
The additional clarity that "acting" equates to issuing a decision may help certifying authorities avoid
exceeding the RPT and waiving their section 401 authority. The informational requirements in the
proposed rule would provide direction on what limited information is needed to support a certification
decision. Unlike the 1971 baseline, the proposed rule sets out limited information requirements for all
certification decisions, not just for a grant of certification or express waiver. Therefore, the
informational requirements may pose an additional burden to certifying authorities if they exceed the
information that certifying authorities are currently including with their decisions, or if the certifying
authority was not previously providing information on decisions to grant certification with conditions or
deny certification.
Project proponents may benefit from the additional transparency provided by the informational
requirements of the certification decision. For example, if certification is granted with conditions,
project proponents would have information on the reason why the condition is needed to meet water
quality requirements. Similarly, if a certification is denied, project proponents would have information
on the reason for denial and may alter the proposed project to ensure compliance with water quality
requirements and submit a revised certification request. Although projects may be delayed by the
additional time needed for certifying authorities to meet informational requirements, the proposed
revision would create a more transparent process and may lead to a better-informed public regarding
why certain certification decisions were made for specific projects. Lastly, this revision may result in
environmental benefits if the clarified definition of "to act on a request for certification" reduces the
number of constructive waivers and ensures that certifying authorities are able to review projects for
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potential conflicts with applicable water quality requirements, but may come with additional project
costs to the project proponent if conditions are added to the certification.
Overall, this provision of the proposed rule may result in environmental benefits provided that a
clarified definition of "to act on a request for certification" leads to a reduction in constructive waivers.
Additionally, the provision may result in incremental costs for certifying authorities (given the additional
informational requirements) and project proponents (given the potential for project delays).
4.6.2.2 2020 Rule as the Baseline
Relative to the 2020 Rule, the proposed provision may reduce the informational burden on certifying
authorities. For certifications granted with conditions, the proposed rule would not require a citation to
federal, state, or tribal law that authorizes each condition. Additionally, in the case of certification
denials due to insufficient information, the proposed rule would only require certifying authorities to
include a written statement that explains why a certification cannot be made, while the 2020 Rule
requires certifying authorities to describe the specific water quality data or information needed to
assure compliance with water quality requirements. Reductions in the information burden on certifying
authorities may also benefit project proponents if the reduced informational burden on certifying
authorities leads to more timely certification decisions and, in turn, fewer project delays. However, the
proposed rule would retain some information requirements from the 2020 Rule for certifications
granted with conditions and denials. These retained information requirements will continue potential
benefits from the 2020 Rule of increased transparency regarding the reasoning for certification
conditions or denials.
The proposed provision may lead to environmental benefits as well. The reduced informational burden
on certifying authorities' certification decisions relative to the 2020 Rule may reduce constructive
waivers of certifications. Under the 2020 Rule, constructive waivers can occur if certifying authorities do
not comply with information requirements for conditions or denials, but under the proposed rule,
constructive waivers are limited to failure to act with the RPT. The potential reduction in constructive
waivers may help prevent harmful water quality impacts when certifying authorities intended to grant
with conditions or deny the certification request. Additionally, the proposed rule would require
certifying authorities to include a statement in the certification decision about whether the "activity as a
whole" would comply with water quality requirements, not just the discharge alone (see Section 4.5).
Requiring this statement as part of the certification decision would help protect against harmful water
quality impacts by reducing the possibility of certifying authorities granting certification if water quality
impacts beyond the discharge will not comply with water quality requirements.
Overall, this provision of the proposed rule may result in environmental benefits assuming that a
reduced informational burden on certifying authorities leads to a reduction in constructive waivers.
Additionally, the provision may result in cost savings for certifying authorities and project proponents
since the reduction in informational requirements may, in turn, lead to fewer project delays.
4.7 Federal Agency Review
4.7.1 Summary of Provision
1971 Rule and 2020 Rule requirements: Section 401 does not explicitly provide a defined role
for federal licensing or permitting agencies to review certifications. However, prior Agency
guidance acknowledged case law on the topic. Several circuit courts have recognized that
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federal agencies have the discretion to review certification decisions only to see whether they
meet the minimum facial requirements of section 401, including whether the decision was
issued within the RPT, whether appropriate public notice was provided, and whether the proper
certifying authority issued the decision. See City ofTacoma v. FERC, 460 F.3d 53, 67-68 (D.C. Cir.
2007), American Rivers v. FERC, 129 F.3d 99, 110-11 (2d. Cir 1997). Additionally, the 1971 Rule
provided that a federal agency may determine that a waiver had occurred if it determines that a
certification decision was not issued within the reasonable period of time. 40 CFR 121.16(b)
(2019). Under the 2020 Rule, federal agencies are required to review water quality certification
decisions to ensure that (1) the decision was made within the RPT, (2) the certifying authority
provided public notice on the certification request, and (3) the certification decision included
the informational requirements set out in the 2020 Rule. See 40 CFR 121.9(a)(2). If a federal
agency determines that a certifying authority failed to comply with the aforementioned
procedural requirements, then the certification could be deemed waived under the 2020 Rule.
Similarly, the federal agency could find waiver with respect to specific certification conditions
that fail to meet informational requirements. See 40 CFR 121.9(b).
Description of proposed regulatory change: Consistent with case law and prior Agency
guidance, EPA is proposing to limit federal agency review of a certifying authority's decision to
four issues: (1) confirming whether the decision is a grant, grant with conditions, denial, or
express waiver; (2) determining whether the proper certifying authority issued the decision; (3)
determining whether public notice was provided; and (4) determining whether the decision was
issued within the reasonable period of time. Additionally, the Agency would not identify the
specific types of information that must be included in a certification decision to satisfy federal
agency review and instead rely on the certifying authority to determine how to demonstrate
that it met the facial requirements. Consistent with the statutory text, the proposal clarifies that
if a certification decision is not issued within the RPT, then a waiver occurs. If a federal agency
determines that a certification decision does not comply with public notice requirements or
clearly indicate the nature of the decision, the federal agency must send the certification
decision back to the certifying authority to remedy the deficiency. See section V.G in the
preamble for further discussion of this aspect of the proposed rule.
Rationale for proposed regulatory change: States, territories, and tribes are primarily
concerned about the potential consequences of federal agency review required by the 2020
Rule. These partners argue that, contrary to the plain language of the statute and legislative
history, the 2020 Rule gives federal agencies the ability to effectively "veto" a state, territory, or
tribal water quality certification, with no proposed remedy to allow the certifying authority to fix
errors or submit further information. Additionally, EPA also reflected this concern in its recent
Federal Register notice, noting that "EPA is concerned that a federal agency's review may result
in a state or tribe's certification or conditions being permanently waived as a result of non-
substantive and easily fixed procedural concerns identified by the federal agency" (86 FR
29543). The proposed rule clarifies that waivers may only occur for failure to act within the RPT,
consistent with the statutory text. Additionally, the proposed regulatory changes alleviate some
cooperative federalism concerns by expressly limiting federal agency review to facial
requirements in section 401(a)(1), consistent with some case law and EPA's position prior to the
2020 Rule.
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4.7.2 Potential Impacts of the Provision
4.7.2.1 1971 Rule as the Baseline
Flexibility in the proposed revision to allow certifying authorities to rectify issues identified during
federal agency review, if time remains within the RPT or if the RPT can be extended, will help minimize
the number of constructive waivers. However, in cases for which the RPT is already exceeded or where
there is not enough time remaining in the RPT even with an extension to rectify issues identified during
federal agency review, the certification decision would be waived. Several pre-proposal input letters
suggested that certifying authorities be provided such an opportunity for revisions.44 The proposed rule
would include additional guidance in this area (via preamble) by identifying some ways in which a
certifying authority may satisfy federal agency review. However, consistent with the statutory language,
a constructive waiver occurs under the proposed rule if the certification decision is not issued within the
RPT. This may occur more frequently relative to current practice if federal agencies were inconsistently
reviewing certification decisions for these issues. Certifying authorities could face additional burden to
remedy the deficiencies in their certification decisions to satisfy federal agency review. On the other
hand, if deficiencies are caught and fixed during federal agency review, this could increase certainty and
decrease the chance of subsequent legal challenges upending certified projects.
With more consistent federal agency review, project proponents may benefit from fewer project delays
since certifying authorities would face having their certification decision waived during federal agency
review if they exceed the RPT. Conversely, project proponents may experience project delays if
certifying authorities are required to remedy the deficiency in their certification decisions to satisfy
federal agency review. The public may benefit from ensured involvement/engagement in the
certification process since federal agency review may include checking that public notice was provided.
The flexibility to allow certifying authorities to rectify issues identified during federal agency review
would reduce the likelihood of constructive waivers and, in turn, reduce the likelihood that conditions or
denials intended to protect water quality requirements would be waived. Thus, the flexibility mitigates
potential negative impacts of the federal agency review process on water quality.
Overall, this provision of the proposed rule may result in environmental benefits since certifying
authorities are provided the opportunity to rectify issues encountered during federal agency review and
avoid a constructive waiver. However, the net effect on certifying authorities and project proponents is
unclear. For certifying authorities, constructive waivers may decrease if issues during review can be
rectified within the RPT. However, constructive waivers may increase if federal agencies review
certification decisions more consistently and find that they exceed the RPT. For project proponents,
projects may have fewer delays if consistent federal agency review leads certifying authorities to make
certification decisions within the RPT. However, projects may have more delays if certifying authorities
are able to rectify issues found during review.
4.7.2.2 2020 Rule as the Baseline
Relative to the 2020 Rule, the proposed provision reduces the scope and potential impact of federal
agency review by (1) limiting review of a certifying authority's certification decision to four facial
statutory components of section 401, including failure to act within the RPT, and (2) requiring federal
44 See, e.g., American Association of State Highway and Transportation Officials (0029); District of Columbia
Department of Energy & Environment (0035); Rhode Island Department of Environmental Management (0126).
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agencies to provide certifying authorities with the opportunity to remedy deficiencies that arise during
the review process. Additionally, the proposed rule allows for extensions to the RPT as necessary for
certifying agencies to address deficiencies, provided that it does not exceed one year from the receipt of
the certification request. In short, the proposed provision responds to concerns about the potential for
federal agency review to undermine cooperative federalism by making the scope of federal agency
review consistent with EPA's position prior to the 2020 Rule and relevant case law.
The potential impacts of the proposed provision on project proponents relative to the 2020 Rule is
similar to potential impacts relative to the 1971 Rule. Project proponents may experience project delays
if certifying authorities are required to remedy the deficiency in their certification decisions to satisfy
federal agency review. In contrast, the proposed provision relative to the 2020 Rule baseline may be
more protective of water quality requirements because the 2020 Rule allows federal agencies to waive a
certification decision or condition for failure to comply with procedural requirements of the 2020 Rule
without providing certifying agencies with the opportunity to address the issues. The reduced scope of
federal agency review and the opportunity to rectify deficiencies identified during federal agency review
under the proposed rule may lead to reductions in the number of constructive waivers for certification
decisions that may have been protective of water quality requirements. Thus, the reduced scope of
federal agency review and the opportunity to rectify deficiencies mitigates potential negative impacts of
the federal agency review process on water quality.
Overall, this provision of the proposed rule may result in environmental benefits given the imposed
limitations on federal agency review and the opportunity for certifying authorities to rectify issues
during review and avoid a constructive waiver. Additionally, this provision may result in incremental
costs for project proponents if projects are delayed due to the additional time needed for certifying
authorities to resolve issues during federal agency review.
4.8 EPA's Roles Under Section 401
4.8.1 Summary of Provision
1971 Rule and 2020 Rule requirements: The Agency has a number of specific roles under
section 401. First, 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)). The 1971 Rule had provisions for
when EPA acts as the certifying authority, including a provision on the contents of a certification
request, a process for making certification decisions, and a process for pre-operation inspections
pursuant to section 401(a)(4). The 2020 Rule places restrictions on the EPA when it acts as a
certifying authority by prescribing timeframes on the public notice process and limiting requests
for additional information. The 2020 Rule provided that the EPA can only request additional
information that can be collected or generated within the reasonable period of time. EPA's
second role is to provide technical assistance as requested by federal agencies, certifying
authorities, and project proponents for federal licenses and permits. The 1971 Rule
acknowledged this role but limited it to providing technical advice on WQS to federal agencies.
The 2020 Rule recognizes EPA's role to provide federal agencies, certifying authorities, and
project proponents with technical assistance and information in regard to complying with water
quality requirements. A third role EPA plays is discussed in Section 4.10 (neighboring jurisdiction
process).
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Description of proposed regulatory change: The Agency is proposing updates to the public
notice requirements in the 2020 Rule applicable to EPA when it acts as the certifying authority
to provide greater flexibility. EPA is proposing to remove the 2020 Rule's limitations on EPA's
ability to request additional information. EPA is also proposing to clarify that once EPA provides
public notice on receipt of a request for certification, EPA must provide an opportunity for
public comment. The Agency is also proposing minor updates to the 2020 Rule provision on
technical advice. Under the proposal, EPA can provide technical advice on (1) applicable effluent
limitations, or other limitations, standards, regulations, or requirements, or water quality
criteria, and (2) any methods to comply with such limitations, standards, regulations,
requirements, or criteria. See section V.H in the preamble for further discussion of this aspect of
the proposed rule.
Rationale for proposed regulatory change: The proposed changes would provide EPA with
flexibility in the manner and methods of providing of public notice when EPA is a certifying
authority while maintaining accountability provided by the public notice requirements. The
proposal removes the 2020 Rule's limitations on EPA's ability to request additional information
to allow for a more informed certification decision. The proposal also makes minor conforming
changes to the 2020 Rule's provision on technical assistance to be more consistent with the
statutory language.
4.8.2 Potential Impacts of the Provision
4.8.2.1 1971 Rule as the Baseline
This proposed provision is expected to be beneficial on several fronts. First, defining a timeframe for
public notice when EPA is the certifying authority (within 20 days following receipt of a certification
request) would provide clearer guidance regarding the timeline that EPA must follow. For project
proponents, clearer guidance on public notice requirements would provide more regulatory certainty.
Additionally, defining the timeframe for public notice would provide more certainty to the public
regarding when public comment occurs, and increasing predictability of public comment periods may
improve public engagement. Such effects may ultimately improve section 401 reviews and compliance
with water quality requirements.
The proposed provision would also provide EPA with greater flexibility to determine the best manner
and method to notify stakeholders. This flexibility would provide the Agency with the latitude to reach
the broadest number of potentially interested stakeholders, which could also improve section 401
reviews and compliance with water quality requirements. The proposed revision to broaden the scope
of EPA's technical assistance would reduce burden on certifying authorities and project proponents by
increasing the range of issues for which they can seek technical assistance from EPA, including any (1)
applicable effluent limitations, or other limitations, standards, regulations, requirements, or water
quality criteria, and (2) any methods to comply with such limitations, standards, regulations,
requirements, or criteria.
Overall, this provision of the proposed rule would improve section 401 reviews and compliance with
water quality requirements, thereby benefiting the environment. The proposed provision would also
result in cost savings for EPA and project proponents by providing clearer guidance on timeline for
regulatory certainty and greater flexibility to determine the best manner and method to notify
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stakeholders. Lastly, the proposed rule would result in cost savings for certifying authorities and project
proponents by reducing section 401 burden via a broadened scope of EPA's technical assistance role.
4.8.2.2 2020 Rule as the Baseline
The 2020 Rule includes the same 20-day timeframe as the proposed rule for providing public notice
upon receipt of a certification request. The 2020 Rule also does not limit the scope of a public hearing
on the certification process. As such, relative to the 2020 Rule, the proposed rule may not add as much
regulatory certainty or improve public engagement at the same magnitude relative to the 1971 Rule.
However, the proposed provision would provide EPA with greater flexibility in determining the best
manner to notify stakeholders relative to both baselines and could improve section 401 reviews and
compliance with water quality requirements.
The 2020 Rule includes provisions that limit the timeframe during which EPA can request additional
information from project proponents (initial request 30 days after receipt of a certification request) as
well as the information that can be requested (information related to discharge only). As a result,
relative to the 2020 Rule, the proposed rule would broaden the Agency's ability to request information
from project proponents. The broadened ability for EPA to request additional information has an
uncertain total impact on project proponents. Although project proponents may face increased
regulatory burden and uncertainty from additional information requests, the increased flexibility for EPA
to request information may allow the Agency to make certification decisions in cases for which a denial
was likely to occur under the more restrictive 2020 Rule due to insufficient information. For such cases,
the proposed rule likely reduces overall burden for project proponents. Relative to the 2020 Rule, the
proposed rule could also improve the Agency's ability to assess compliance with water quality
requirements, which could lead to certification decisions that better protect state water quality.
The 2020 Rule includes similar technical assistance provisions as the proposed provision, including
expansion of technical assistance scope to include certifying authorities and project proponents. As
such, the potential impacts described in Section 4.8.2.1 related to technical assistance do not apply
under the 2020 Rule baseline.
Overall, this provision of the proposed rule would provide some environmental benefits by improving
the Agency's ability to assess compliance with water quality requirements, which could lead to
certification decisions that better protect water quality. Additionally, the proposed provision would save
costs for EPA by offering greater flexibility in determining the best manner to notify stakeholders and
broadening the Agency's ability to request information from project proponents. The impacts to project
proponents are uncertain; increased regulatory burden and uncertainty from additional information
requests may result in incremental costs, but allowing the Agency to make certification decisions in
cases for which a denial was likely to occur under the more restrictive 2020 Rule due to insufficient
information may lead to cost savings.
4.9 Modifications
4.9.1 Summary of Provision
1971 Rule and 2020 Rule requirements: The 1971 Rule allowed certification modifications to
occur after a certification was issued, provided the certifying authority, federal agency, and the
EPA Regional Administrator agreed to the modification. 40 CFR 121.2(b) (2019). The 2020 Rule
removed the modification provision and instead relied on other federal agency regulations to
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address modifications (e.g., the NPDES regulations allow for certification modifications based on
changes in underlying law or in response to a court decision). 85 FR 42279.
Description of proposed regulatory change: The Agency is proposing to reintroduce the
certification modification process, allowing certifying authorities and federal agencies to
coordinate when circumstances warranting certification modification arise. EPA is not proposing
to define such circumstances, but generally requires the certifying authority and federal agency
to be in agreement when modifying a certification. In addition, this proposal explains that
denials and waivers of certification may not be modified, and the certifying authority is also not
permitted to modify a grant of certification into a denial or waiver of certification. Unlike the
1971 Rule, the Agency is not proposing to include EPA in the certification modification process
where the Agency is neither the certifying authority nor the federal licensing or permitting
agency. See section V.I in the preamble for further discussion of this aspect of the proposed
rule.
Rationale for proposed regulatory change: In pre-proposal outreach, stakeholders expressed
interest in maintaining a process for certification modifications to address changing, unseen, or
emergency circumstances relevant to water quality that may occur after a certification has been
issued. From a resource perspective, re-initiating the entire certification process for each
changing detail of a certified project/license/permit is procedurally and/or financially
burdensome to all parties and does not allow for efficient adaptive management. The proposed
change is in line with cooperative federalism principles because it provides a balance between
the needs and authorities of the certifying authority, federal licensing or permitting agency, and
project proponent.
4.9.2 Potential Impacts of the Provision
4.9.2.1 1971 Rule as the Baseline
Relative to the 1971 Rule, the proposed rule would clarify the roles that certifying authorities, federal
agencies, and project proponents play in initiating modifications. It would also promote the principle of
cooperative federalism and increase regulatory certainty.
Unlike the 1971 Rule, the Agency is not proposing to include EPA in the certification modification
process where the Agency is neither the certifying authority nor the federal licensing or permitting
agency. As such, EPA is removing itself from the list of entities in the 1971 Rule that must reach
agreement for modifications to occur, which simplification may improve the likelihood of reaching a
modification agreement.
The proposed rule would clarify that: 1) unilateral modifications may not occur, and 2) the nature of a
certification decision may not be changed {e.g., modify a grant into a denial or waiver). In addition,
certifying authorities and federal agencies may agree to modify a grant of certification (with or without
conditions), but modification is limited to the scope of the agreement. These proposed changes would
all promote regulatory certainty during the modifications process. As such, the proposed changes would
align with cooperative federalism principles by providing a balance between the needs and authorities
of the certifying authority, federal licensing or permitting agency, and project proponent.
Overall, the improved regulatory certainty from this aspect of the proposed rule would lead to cost
savings for certifying authorities, federal agencies, and project proponents by improving efficiency {e.g.,
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allowing for more streamlined modifications and clear direction on when modifications may or may not
occur).
4.9.2.2 2020 Rule as the Baseline
Relative to the 2020 Rule, the proposed rule would authorize certification modifications subject to
certain conditions. The proposed revisions would provide several benefits for certifying authorities,
federal agencies, and project proponents, as well as the environment.
Many certifying authorities stated that including a provision for certification modifications provides the
ability to adapt to changes in circumstance, such as changes to projects,45 water quality requirements,
and rules over time.46 Several certifying authorities and environmental groups added that modifications
may be necessary to maintain water quality protection when new information and data become
available to stakeholders during the term of the permit.47 Other certifying authorities and non-
governmental entities further stated that modifications may be necessary to account for unforeseen
impacts, particularly in projects that can last decades.48 The proposed rule would allow project plans to
evolve after issuance of a certification, providing added flexibility to project proponents and preventing
the burden of having to seek a new certification. Project proponents would face limited regulatory
uncertainty because this proposal would require certifying authorities to first coordinate with the
federal agency before modifying a certification. The proposal would also limit regulatory uncertainty for
project proponents by clarifying that denials and waivers of certification may not be revoked or
modified, and that the certifying authority is also not permitted to revoke or convert a grant of
certification into a denial or waiver of certification.
In addition, the proposed modification process would respect state and tribal rights, as these
jurisdictions are often more familiar with local conditions and able to manage local waters more
effectively. The proposed change is in line with cooperative federalism principles because it provides a
balance between certifying authority, federal agency, and project proponent needs. Requiring
agreement between the certifying authority and the federal agency would support federal agencies and
project proponents by limiting the circumstances under which certification modification can occur and,
thus, prohibiting unilateral modifications. Lastly, retaining the ability to modify certifications supports
certifying authorities by preserving their authority to protect their water resources in the event of
changes to the construction, operation, and water quality impacts of certified projects.
The proposed rule provision is responsive to stakeholder input regarding the importance of the
modifications process for section 401, as it would bring about added compliance and economic benefits.
Some certifying authorities and environmental groups stated that certification modifications provide
45 See, e.g., Florida Department of Environmental Protection (0041); New York State Department of Environmental
Conservation (0042); Attys Gen CA et al. (0098); Rhode Island Department of Environmental Management (0126).
46 See, e.g., Oregon Department of Environmental Quality (0045); American Whitewater (0005); Association of
State Wetland Managers (0023); Appalachian Trail Conservancy (0070).
47 New Mexico Environment Department (0013); American Whitewater (0005); Maryland Department of the
Environment (0069); Appalachian Trail Conservancy (0070).
48 State of Michigan Department of Natural Resources (0016); Attys Gen CA et al. (0098); Michigan Department of
Environment, Great Lakes, and Energy (0121); Pennsylvania Department of Environmental Protection (0052).
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states and authorities with the ability to adapt to changing conditions, ensure compliance with state and
federal water quality requirements, and protect water quality.49 Conversely, the inability to modify
certifications might create costly project delays and increase state administrative costs if - due to
changes - a certification process needs to be reinitiated.50 From a resource perspective, re-initiating the
entire certification process - instead of modifying a certification that has already been granted - for
each changing detail of a project, license, or permit is procedurally and/or financially burdensome to all
parties and does not allow for efficient adaptive management. Furthermore, some certifying authorities
might be inclined to issue more denials of certification if they do not possess a mechanism to evaluate
new data and information about a project after issuing a certification decision.51
Overall, the proposed rule would provide significant environmental benefits because it would afford
certifying authorities the ability to adapt to changes in circumstance, such as changes to projects, water
quality requirements, and rules over time, thus better protecting water quality when new information
becomes available or conditions change. It would also reduce costly project delays and lower
administrative costs for certifying authorities and project proponents if modifications may be used
instead of re-initiating the entire certification process.
4.10 Neighboring Jurisdiction Process
4.10.1 Summary of Provision
1971 Rule and 2020 Rule requirements: Section 401(a)(2) establishes a process for states and
tribes with TAS for section 401 to participate in the federal licensing or permitting process in
circumstances where a discharge originating in another jurisdiction may affect their water
quality. For purposes of initiating this process, section 401(a)(2) requires a federal agency to
"immediately" notify EPA upon receipt of a license or permit application and section 401
certification. Under the 1971 Rule, federal agencies were required to notify EPA upon receipt of
an application and certification or a waiver. 40 CFR 121.16 (2019). If the documents did not
contain sufficient information for EPA to make a "may affect" determination, EPA could request
supplemental information. 40 CFR 121.12 (2019). Within 30 days of receiving notification, EPA
may determine, at its discretion, that the discharge may affect the water quality of a
neighboring jurisdiction (which includes states and tribes with TAS for section 401). 40 CFR
121.13 (2019). If EPA makes a "may affect" determination under section 401(a)(2), EPA must
notify the neighboring jurisdiction, federal agency, and the project proponent, and the
neighboring jurisdiction has 60 days to determine whether the discharge will violate its water
quality requirements, object to the license or permit, and request a hearing. The 1971 Rule
established a process for EPA to provide notification to neighboring jurisdictions in a manner
similar to that subsequently set forth in section 401(a)(2). Under the 2020 Rule, federal agencies
are required to notify EPA within 5 days of receiving the certification and application for the
permit or license. The 2020 Rule also defined the contents EPA provides to neighboring
49 Nevada Division of Environmental Protection (0018); Wyoming Department of Environmental Quality (0019);
National Wildlife Federation (0060).
50 American Association of State Highway and Transportation Officials (0029); North Carolina Department of
Environmental Quality (0124); Idaho Department of Environmental Quality (0046).
51 Association of Clean Water Administrators (0043).
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jurisdictions when EPA makes a "may affect" determination, as well the contents required from
a neighboring jurisdiction when it makes any "will affect" objection. The 2020 Rule also asserts
that it is within the Agency's discretion whether to make a "may affect" determination in the
first place, and that EPA is, therefore, not required to make such a determination.
Description of proposed regulatory change: The Agency proposes to retain the 2020 Rule
process for federal agencies to "immediately" notify EPA by requiring notification within five
days of receiving an application and certification or waiver and introduce a definition for the
contents of a notification. The Agency also agrees with the 2021 Fond du Lac court that EPA
must determine whether a discharge "may affect" a neighboring jurisdiction once it receives
notification of the application and certification or waiver.52 The Agency is also providing greater
clarity regarding factors it could consider in making a "may affect" determination in the
preamble. Additionally, EPA is proposing to revise the 2020 Rule's procedural framework for the
neighboring jurisdiction objection process under section 401(a)(2). The Agency proposes to
require EPA and neighboring jurisdictions to notify certifying authorities when determinations
are made. See section V.K in the preamble for further discussion of this aspect of the proposed
rule.
Rationale for proposed regulatory change: In pre-proposal input, some stakeholders suggested
that section 401(a)(2) is a vital and underused tool for protecting water quality. Stakeholders
have raised concerns that EPA had not clearly identified what factors it intended to use in
determining whether a discharge "may affect" a neighboring jurisdiction and objected to EPA
asserting sole discretion over this determination without obtaining input from that neighboring
jurisdiction or other federal agencies. The proposed changes provide transparency to licensing
and permitting federal agencies about the information EPA expects in section 401(a)(2)
notifications and would streamline EPA's section 401(a)(2) review by standardizing the timing
and content of notifications from federal agencies.
4.10.2 Potential Impacts of the Provision
4.10.2.1 1971 Rule as the Baseline
Greater clarity regarding the "may affect" interpretation may increase efficiency of neighboring
jurisdiction assessments. Additionally, the proposed revisions ensure that certifying authorities are
informed about neighboring jurisdiction assessments. Representatives from the Minnesota Pollution
Control Agency affirm the need for clarity on when the "may affect" determination should be made, as
do several other stakeholders.53 Additionally, establishing a procedural framework for objections and
hearings under section 401(a)(2) and clarifying the information that EPA expects in section 401(a)(2)
notifications may reduce burden on federal licensing or permitting agencies, improve efficiency of
neighboring jurisdiction assessments, and reduce project delays. Clarifying that EPA must conduct a
"may affect" determination once it receives notification of the application and certification or waiver
and the added procedural clarity may increase the number of jurisdictions that decide to object or
request a hearing on a federal license or permit.
52 Fond du Lac Band of Lake Superior Chippewa v. EPA, 519 F.Supp.3d 549 (D. Minn. 2021).
53 See, e.g., Minnesota Pollution Control Agency (0047), New Mexico Environment Department (0013), Earthjustice
(0051).
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Ultimately, clarifications regarding when neighboring jurisdiction assessments are required would help
bring stability to the neighboring jurisdiction assessment process. The proposed revisions regarding
when neighboring jurisdiction assessments are required would help ensure that neighboring
jurisdictions that EPA determines may be affected by a federally licensed or permitted project have the
potential to provide input on whether the project complies with their water quality requirements and,
thus, that the section 401 process considers and accounts for potential effects on water quality in
neighboring jurisdictions. Consistent with the statute, if conditions added to the permit or license
cannot ensure compliance of water quality requirements in neighboring jurisdictions, the federal agency
cannot issue the license or permit.
Overall, this provision of the proposed rule could bring positive environmental benefits by allowing
neighboring jurisdictions to provide input regarding potential project impacts to local waterways.
Additionally, a potential increase in "may affect" determinations and neighboring jurisdiction objections
could lead to incremental costs to project proponents if the neighboring jurisdiction process results in
more federal licenses and permits being granted with additional conditions or denied.
4.10.2.2 2020 Rule as the Baseline
Some stakeholders indicated that the neighboring jurisdiction process is currently underused. Even with
more attention on this provision during the development and finalization of the 2020 Rule, EPA has not
seen a significant increase in the number of section 401(a)(2) actions to date. The proposal improves
and clarifies the federal agency notification process by defining the contents of a federal agency's notice
to EPA and allowing EPA to request supplemental information, which the 2020 Rule limits to copies of
the certification and the federal license or permit application. The proposed provision would also allow
EPA to enter into agreements with federal agencies regarding the manner and contents of notification.
Further, relative to the 2020 Rule baseline, the proposed rule would ensure thatfollowing receipt of
noticeEPA assess whether a project "may affect" a neighboring jurisdiction and, if so, provide notice
to that neighboring jurisdiction. Receipt of such notice would allow neighboring jurisdictions to conduct
their own review of the project to determine if it "will affect" compliance with their water quality
requirements. The 2020 Rule gives EPA discretion regarding whether to make such a "may affect"
determination for neighboring jurisdictions, whereas the proposed rule clarifies thatupon receipt of
notice- EPA must determine whether a discharge "may affect" water quality in a neighboring
jurisdiction.
Overall, this provision of the proposed rule relative to the 2020 Rule could bring greater positive
environmental benefits by making the "may affect" determination mandatory for EPA as opposed to
discretionary. Additionally, a potential increase in "may affect" determinations and neighboring
jurisdiction objections could lead to incremental costs to project proponents if the neighboring
jurisdiction process results in more federal licenses and permits being granted with additional conditions
or denied.
4.11 TAS and Other Tribal Issues
4.11.1 Summary of Provision
1971 Rule and 2020 Rule requirements: Under section 518 of the CWA, EPA may treat federally-
recognized Indian tribes in a similar manner as a state for purposes of administering most CWA
programs for Federal Indian reservations which they govern. 33 U.S.C. 1377. Neither the 1971
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Rule nor the 2020 Rule include TAS provisions for section 401. Currently, in the absence of TAS
provisions solely for section 401, tribes have received TAS for section 401 by seeking TAS to
administer the section 303(c) program for WQS (40 CFR 131.4(c)) ("Where EPA determines that
a tribe is eligible to the same extent as a state for purposes of water quality standards, the tribe
likewise is eligible to the same extent as a state for purposes of certifications conducted under
Clean Water Act section 401"). As certifying authorities, tribes with TAS may waive certification
or grant, grant with conditions, or deny certification based on whether discharges from a
federally licensed or permitted project will comply with sections 301, 302, 303, 306, and 307 of
the CWA and any other appropriate requirements of tribal law. As a neighboring jurisdiction, if
EPA makes a "may affect" determination, tribes with TAS may object to projects if they
determine that the discharge "will violate" their water quality requirements, and request a
public hearing from the federal licensing or permitting agency.
Description of proposed regulatory change: The proposed rule adds provisions for how tribes
could obtain TAS solely for section 401, as well as provisions on how tribes could obtain TAS for
the limited purpose of participating as a neighboring jurisdiction under section 401(a)(2). See
section V.L in the preamble for further discussion of this aspect of the proposed rule.
Rationale for proposed regulatory change: The proposed regulatory changes provide tribes
with a greater ability to protect their water resources from the adverse effects of pollution from
federally licensed or permitted projects. The first proposed change gives tribes more options in
deciding whether to seek TAS for section 303(c), section 401, or both. Decoupling section 401
TAS provisions from section 303(c) recognizes that section 401 and section 303 administration
are related, but distinct functions. Several tribal representatives have also expressed concern
about tribes without TAS being unable to participate in the section 401(a)(2) neighboring
jurisdiction process. The second proposed change is responsive to tribes who have expressed an
interest in the neighboring jurisdiction process, even if they are not interested in issuing
certifications (under section 401(a)(1)) and/or developing WQS (under section 303(c)).
4.11.2 Potential Impacts of the Provision
4.11.2.1 1971 Rule as the Baseline
Several benefits would stem from the TAS provision of this rulemaking. Providing a pathway for tribes to
obtain TAS for section 401 (as a whole) or for section 401(a)(2) alone may improve section 401
certification reviews and compliance with water quality requirements, as tribes are most familiar with
local waterways. The provision provides tribes the ability to obtain TAS for section 401 (as a whole) or
specifically for section 401(a)(2) without having to also meet requirements for section 303(c). A separate
pathway to obtain TAS for section 401 (as a whole) or for section 401(a)(2) would provide tribal
stakeholders with more tools for ensuring that water quality requirements are met. Project proponents
may gain from the proposed rule provision by working directly with tribes as opposed to EPA as the
certifying authority, increasing clarity and efficiency. Additionally, as tribes take a more active role in the
certification process, there could be an increase in the number of certifications granted with conditions
or the average number of conditions added to each certification, which could lead to an increase in costs
for the project proponent. At the same time, it could lead to benefits in quality for the tribe's waters.
However, EPA anticipates that the increase in the number of conditions would likely be minimal since
EPA already adds conditions, on a tribe's behalf, as needed to assure compliance with tribal water
quality requirements. Alternatively, tribes who newly obtain TAS for section 401 may require some time
49
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to learn the certification process, which may increase review time and reduce efficiency in the short-
term.
Overall, this provision of the proposed rule would streamline the process for tribes to obtain TAS, which
could lead to an improvement in local water quality. Additionally, the costs to project proponents would
be uncertain, as working directly with tribes as certifying authorities could lead to longer or shorter
certification timelines.
4.11.2.2 2020 Rule as the Baseline
Similar to the 1971 Rule, the 2020 Rule does not provide tribes with the opportunity to receive TAS
solely for section 401. Therefore, the potential impacts of the proposed provision are the same under
the two baselines.
Overall, the environmental impacts and process costs of the proposed provision are the same under the
two baselines.
4.12 Potential Effects on Federal Agency and Certifying Authority Regulations
and Guidance
4.12.1 Potential Effects on Federal Agency Regulations
Federal agencies can play an important role in facilitating information collection, sharing information
amongst involved parties, and clearly communicating project milestones and deadlines during the
federal licensing and permitting process. The proposed rule does not explicitly require other federal
agencies to change their existing regulations to reflect the revised requirements. For this reason, the EA
does not attempt to quantify costs of regulatory updates for other federal agencies.
As mentioned previously, the proposed rule includes conforming amendments to regulations for water
quality certifications on EPA-issued NPDES permits. These revisions will make the NPDES regulations
consistent with the proposed approaches and impacts already discussed in this EA. This EA does not
attempt to differentiate the costs of regulatory updates for EPA's NPDES program from the proposed
changes to section 401.
4.12.2 Potential Effects on Certifying Authority Regulations and Guidance
Certifying authorities generally delineate their section 401 requirements in statutes, regulations,
guidance documents, and forms. The proposed rule does not require states or tribes to update their
regulations, statutes, guidance documents, or forms. Section 401 provides states and authorized tribes
with the ability to grant (with or without conditions), deny, or waive certification for federally licensed
or permitted projects that may result in a discharge into waters of the United States. Unlike the CWA
section 402 and section 404 permitting programs, the CWA does not require EPA to approve state
administration of the section 401 program. The CWA also does not require states or authorized tribes to
establish regulations to implement section 401, but many states and some authorized tribes have
promulgated section 401 implementing regulations. Additionally, any changes made by a state or tribe
to their section 401 program do not require formal approval by EPA to go into effect. In summary, with
this rulemaking, EPA is neither mandating that conforming changes be made to state or tribal
regulations, nor overseeing in any capacity such changes. EPA is not aware to what extent states or
tribes may update their requirements, so this document does not attempt to quantify potential costs
associated with states or tribes doing so. EPA welcomes comment or feedback to inform this analysis at
the final rule stage. The Agency recognizes that in order to increase certainty and clarity and to avoid
50
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other negative outcomes, certifying authorities may update their section 401 requirements. As a result,
states or authorized tribes that have section 401 regulations, statutes, guidance documents, and forms
that are inconsistent with this proposed rule may incur costs to match their requirements to the
proposed rule. However, the Agency does not expect that most certifying authorities will need to update
their requirements to conform with the proposed rule provisions, and where they do, the costs are
expected to be minimal. This proposal codifies longstanding practices and case law on section 401. As
discussed below, some certifying authorities may opt to modify their requirements for a request for
certification, specify if and when pre-filing meetings may occur, and alter fees associated with
certifications. However, any costs associated with such modifications would be incurred as a result of a
certifying authority's own decision-making and not required by the proposed rule.
Because certifying authorities delineate their requirements in different ways, EPA is unable to fully
describe all potential revisions states or tribes may make or the associated costs. However, the following
paragraphs discuss potential changes states or tribes may make in response to the proposed rule. EPA
reviewed select topics covered in state section 401 regulations that may differ from the proposed rule
provisions.
Some state section 401 regulations include language stating that the RPT begins after the state receives
a complete application or after the certifying authority determines that a certification request is
complete. Such language is not in conflict with the proposed rule provisions as long as these states also
clearly define the contents of a "request for certification." If a state does not clearly define the contents
of a certification request, then the proposed rule defines the contents for certification requests that
must be met before the RPT begins. This may not include all contents that the certifying authority may
otherwise want to consider. States could rectify the situation by providing their own definition for a
"request for certification" that includes all contents that they do want to consider. States with existing
definitions may also need to revise their definitions to include a copy of the draft license or permits as a
required component.
Some state section 401 regulations recommend or encourage project proponents to request meetings
with the state certifying authority prior to the submittal of a certification request, and several certifying
authorities have updated their section 401 documentation to address the 2020 Rule requirement for
project proponents to request a pre-filing meeting. Similar to the 2020 Rule, the proposed rule would
require project proponents (including federal agencies seeking to issue general license or permits) to
request pre-filing meetings before every certification request, unless the certifying authority waives the
requirement (either universally or on a categorical basis). Even where a pre-filing meeting request is
required by the certifying authority, the certifying authority is not required to accept the pre-filing
meeting request. States may choose to update their regulations to specify that project proponents are
required to request a pre-filing meeting for all projects (if they have not already done so under the 2020
Rule) or specify which project types require a pre-filing meeting request. However, the proposal does
not establish the manner or method for certifying authorities to communicate whether it will hold pre-
filing meetings or waive them; as a result, some certifying authorities may opt to communicate such
approaches through less formal means than regulations.
States also have different fee structures for section 401 certifications. Some state section 401
regulations mention the existence of a fee but do not include specific language about the response to
nonpayment of the fees. Other states include language about nonpayment of applicable fees; for
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example, regulations may specify that fees must be paid to produce a complete application and start the
review process, or that an application is considered withdrawn if the project proponent fails to pay the
appropriate fee within a specified time period. States may have addressed such language in response to
the 2020 Rule, which did not include fee payment as a required "request for certification" element. For
states that still have such language in their section 401 documentation, the language is not a conflict
with the proposed rule provisions if these states also provide their own definition or components for a
"request for certification" that include fee payment as a required element. The proposed rule definition
for a "request for certification," which applies when EPA is the certifying authority and when states or
tribes do not have their own "request for certification" definition, does not include fee payment as a
required component of certification requests. States with such conflicts could rectify the discrepancy by
providing their own definition for a "request for certification" that includes fee payment as a required
element.
4.12.3 Information Collection Request Burden Estimates
In accordance with the Paperwork Reduction Act, EPA has developed an Information Collection Request
(ICR) for the proposed rule. ICRs are developed based on available information about how a regulation
may affect a respondent. The total annual burden for respondents, which includes project proponents,
certifying authorities, and tribes applying for TAS, would decrease when compared to the estimates in
the collection for the 2020 Rule, as well as compared to the estimates in the collection for the 1971
Rule. These changes are mainly due to refinements in how the estimates are calculated, updated
information regarding the average annual number of licenses or permits issued, and updated
information regarding the annual number of certification requests rather than the Agency's ability to
quantify differential burden under the particular requirements of this proposed rule. Please see the
Supporting Statement in the docket for this rulemaking for further discussion on the estimates for this
collection.
The ICR estimates are based on overall burden of section 401, not the incremental burden of the
proposed rule. The economic analysis for the proposed rule is qualitative because of significant
limitations and uncertainties associated with estimating the incremental burden of the proposed rule.
4.13 Summary of Potential Effects
Figure 4-1 presents a schematic diagram of the potential environmental benefits resulting from this
proposed rule, focusing primarily on the impacts from the change in scope of certification. The ultimate
benefits are expressed as values people hold for the expected environmental improvements. Reading
the figure from left to right, the specific action resulting from this proposed rule is described in
increasing specificity, first as ecological changes and effects, then as changes in ecosystem services.
Benefit-relevant indicators of water quality are the metrics that can be used to demonstrate the
magnitude of environmental benefits, and finally, the values people hold for ecosystem services are
often measured in quantifiable effects on the delivery of ecosystem services. The dashed line around the
blue boxes in the fourth column and the magenta boxes in the fifth column signal that the ecosystem
services in the teal boxes in the third column may be related to one or more of the metrics and values
pairs.
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Figure 4-1. Incremental Benefits of the Proposed Rulemaking
Action
Ecological Changes and Effects
Valued Ecosystem Services and
Environmental Conditions
Benefit-relevant Indicators - Water
Quality
Measurable Values and Benefits
Recreational use
values
Frequency of water
quality standard
exceedances
Secchi depth
Species biodiversity
Presence, richness,
and abundance of
desirable fish species
Other indicators
Incremental property
value due to
proximate clear
waters
Nonuse values
Willingness to pay for
recreational fishing
Other values and
benefits
Direct and indirect linkages
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4.13.1 Incremental Benefits
Overall, the proposed rule is anticipated to have positive environmental benefits, particularly
incremental water quality improvements resulting from efforts to standardize information included in
certification requests (Section 4.3) and changes in scope of certification relative to the 2020 Rule
(Section 4.5).
Society values such ecological improvements by a number of mechanisms, including increased
frequency and value of use of the improved surface waters for recreational and educational activities. In
addition, individuals also value the protection of habitats and species that would be adversely affected
by stream degradation from particular projects, even when those individuals do not use or anticipate
future use of the affected waterways for recreational or other purposes, resulting in nonuse values.54
Water-based recreational activities that would be enhanced by surface water quality improvements may
include swimming, recreational fishing, boating, and other outings. In each case, improved water quality
may increase water quality benefits in two ways: (1) an increase in the value of a recreational trip
resulting from a more enjoyable experience, and (2) an increase in the number of recreational trips.
Swimmers may benefit from more sites suitable for swimming and enhanced experiences when waters
are safer for swimming with fewer pathogen-induced illnesses; reduced pollutant loadings are also likely
to increase the aesthetic appeal (i.e., clarity and lack of odor) and enjoyment. Anglers may benefit from
improved fish populations and more waters being suitable as habitat (e.g., increased levels of dissolved
oxygen, allowing fish to breathe; improved fish passage at dams; temperatures staying in ranges suitable
to native species). Fish populations may also improve from reduction in pollutants that inhibit
reproduction, growth, and survival of species (e.g., Mason, 2011; Kahn et al., 2014; Alkire et al., 2020),
which may also increase species diversity. Improved aesthetic qualities may also enhance fishing
recreation. Boaters may benefit from reductions in secondary-contact illnesses and improved aesthetics
leading to a better recreational experience. Boaters may also benefit from better opportunities for
companion activities, such as swimming, fishing, and wildlife viewing. Other outings include recreational
activities such as hiking, jogging, picnicking, and wildlife viewing; these activities are enhanced by better
aesthetic experiences and more opportunities to view wildlife, whether aquatic, terrestrial or avian (e.g.,
piscivorous birds, such as osprey and eagles), that could result from water quality improvements and
improved fish populations. Water quality improvements may improve wildlife diversity since excessive
nutrient loadings can lead to eutrophic and turbid waters with few plants, invertebrate, and fish food
sources for waterfowl and other wildlife (MDNR, 2010).
In addition to recreation benefits, water quality improvements resulting from the proposed rulemaking
may also have property value benefits. Numerous economic studies (e.g., Leggett et al., 2000; Bin et al.,
2013; P. J. Walsh et al., 2011; Tuttle et al., 2015; Klemick et al., 2018; Kung et al., 2022) suggest that
waterfront property is more desirable when located near unpolluted water. Some previously published
hedonic property studies (e.g., P. J. Walsh et al., 2011; Netusil et al., 2014; Liu et al., 2017; Klemick et al.,
54 In analyzing non-market benefits associated with water quality improvements, EPA has in the past used a
regression-based meta-analysis of 189 estimates of total willingness to pay (including both use and nonuse values)
for water quality improvements, provided by 59 original studies published between 1985 and 2021. Additional
discussion of the meta-analysis and studies included are provided in R. J. Johnston et al. (2017), R. J. Johnston et al.
(2019) and U.S. EPA (2020a).
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2018) found that the property value premium for increased water quality also extends to homes up to
one kilometer from the water. EPA was not able to quantify or monetize the potential increase in
property values associated with the environmental benefits expected to result from this rule. The
magnitude of the potential increase depends on many factors, including the number and context of
future section 401 certification cases whose outcomes might be affected by this rule, the number of
housing units located near the waterbodies in question, and other factors.
The total benefits of an environmental improvement are the combination of use and nonuse benefits
(Freeman III 1993, 2014).55 Recent economic literature provides substantial empirical support that
nonuse values, such as option and existence values, are greater than zero. In fact, small per capita
nonuse values held by a substantial fraction of the population can be very large in the aggregate.
Consequently, both EPA's own Guidelines for Preparing Economic Analysis and the Office of
Management and Budget's (OMB) Circular A-4 governing regulatory analysis support the need to assess
nonuse values (U.S. EPA 2010; U.S. OMB 2003).
Although EPA is not always able to estimate changes in nonuse values as part of regulatory
development, an extensive body of environmental economics literature demonstrates that the public
holds significant value for services flowing from natural resources well beyond those associated with
direct uses (Boyd et al. 2001; Fischman 2001; Heal et al. 2001; Herman et al. 2001; Ruhl and Gregg 2001;
Salzman et al. 2001; Wainger et al. 2001). Studies have documented public values for services provided
by a variety of natural resources potentially affected by the proposed rule, including fish and wildlife
(Loomis et al. 2000; Stevens et al. 1991); wetlands (Woodward and Wui 2001); wilderness (Walsh et al.
1984); critical habitat for threatened and endangered species (Haqen et al. 1992; Loomis and Ekstrand
1997; Whitehead and Blomquist 1991); shoreline quality (Grigalunas et al. 1988); and beaches,
shorebirds, and marine mammals (Rowe et al. 1992), among others.
Many ecosystems provide goods and services that contribute to societal well-being, but may be
generally unrecognized because of the indirect nature of the effect. As such, valuations based solely on
the analysis of markets are unlikely to capture the full economic value of the affected ecosystem
services. For example, stream improvements will create recreational opportunities, increase commercial
activity in the affected neighborhoods, and improve community wellbeing.
4.13.2 Incremental Costs
Overall cost impacts are uncertain. While some proposed provisions are expected to lead to cost savings
for both certifying authorities and project proponents (e.g., certification requests, EPA roles under
section 401), other provisions would have uncertain overall cost impacts for certain stakeholders (e.g.,
pre-filing meeting requests for project proponents, reasonable period of time for federal agencies) or
incremental costs (e.g., scope of certification, neighboring jurisdiction process). By promoting efficiency
and certainty in the certification process, the proposed rule would standardize the certification process,
reduce confusion, and promote efficient section 401 reviews. However, if the scope of the certification
changes, then the direction of the potential costs may result in cost savings or incremental costs.
55 This additive property holds under traditional conditions related to resource levels and prices for substitute
goods in the household production model (Freeman III 1993).
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4.13.3 Net Benefits
Table 4-1 summarizes the expected benefits and costs from individual rule provisions. The net benefits
expected from each provisionand from the rule as a wholeare uncertain given uncertainty about the
magnitude of expected environmental benefits, cost savings, and incremental costs (see additional
discussion in Section 6). Table 4-1 presents this summary relative to both the 1971 Rule and 2020 Rule
baselines. In the "environmental benefits" columns, positive effects correspond to environmental
improvements. In the "process costs" columns, "incremental costs" correspond to additional costs,
while "cost savings" correspond with net costs reductions. EPA welcomes comment or feedback to
inform this analysis at the final rule stage.
Table 4-1. Summary of potential effects of the proposed rule, relative to the 1971 Rule and 2020 Rule
baselines
Provision
1971 Rule Baseline
2020 Rule Baseline
Environmental
Benefits
Process Costs
Environmental
Benefits
Process Costs
When Section 401
Certification is
Required
Positive but small
Cost savings (but
small) for CAs, PPs,
and FAs
NA
NA
Pre-filing Meeting
Request
Positive
Cost savings for
CAs; uncertain for
PPs
NA
Cost savings for CAs
and PPs
Certification
Requests
Positive
Cost savings for
CAs and PPs
Positive
Cost savings for CAs
and PPs
Reasonable Period
of Time
Positive but small
Cost savings for
CAs and PPs;
incremental costs
for FAs
Positive but small
Cost savings for CAs,
PPs, FAs
Scope of
Certification
Positive but small
Uncertain cost
impacts for CAs;
incremental costs
(but small) for PPs
Positive
Incremental costs
for PPs; incremental
costs for CAs
Certification
Decisions
Positive
Incremental costs
for PPs;
incremental costs
for CAs
Positive
Cost savings for PPs
and CAs
Federal Agency
Review
Positive
Uncertain cost
impacts for PPs
and Cas
Positive
Incremental costs
for PPs
EPA Roles under
Section 401
Positive but small
Cost savings for
PPs, CAs, and EPA
Positive but small
Cost savings for
EPA; uncertain to
PPs
Modifications
Negligible
Cost savings for
PPs, CAs, and FAs
Positive
Cost savings for CAs,
FAs, and PPs
Neighboring
Jurisdiction
Process
Positive
Incremental costs
for PPs
Positive
Incremental costs
for PPs
TAS and Other
Tribal Issues
Positive
Uncertain cost
impacts for PPs
Positive
Uncertain cost
impacts for PPs
Notes: CA = certifying authority; PP = project proponent; FA = federal agency
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5 Environmental Justice
Executive Order (EO) 12898 directs agencies to make environmental justice (EJ) part of their mission by
identifying and addressing, as appropriate, disproportionately high and adverse human health or
environmental effects of their programs, policies, and activities on minority and low-income populations
in the United States. Moreover, EO 12898 provides that each federal agency must conduct its programs,
policies, and activities that substantially affect human health or the environment in a manner that
ensures such programs, policies, and activities do not have the effect of (1) excluding persons or
populations from participation in, or (2) denying persons or populations the benefits of, or (3) subjecting
persons or populations to discrimination under such programs, policies, and activities because of their
race, color, or national origin.
EO 14008 expands on the policy objectives established in EO 12898 and directs federal agencies to
develop programs, policies, and activities to address the disproportionately high and adverse human
health, environmental, climate-related, and other cumulative impacts on vulnerable, historically
marginalized, and overburdened communities, as well as the accompanying economic challenges of
such impacts.
Other recent executive actions that touch on environmental justice include EO 13985, EO 13990, and EO
13563. EPA also published "Technical Guidance for Assessing Environmental Justice in Regulatory
Analysis" (U.S. EPA, 2016) to provide recommendations that encourage analysts to conduct the highest
quality analysis feasible, recognizing that data limitations, time and resource constraints, and analytic
challenges will vary by media and circumstance.
For the proposed rule, the Agency qualitatively assessed whether the change in benefits from the
rulemaking may be differentially distributed among population groups of concern (U.S. EPA, 2016). The
Agency determined that the proposed rule may have some positive impacts for population groups of
concern and tribal communities. Such impacts are explored in Sections 5.1 and 5.2 below.
5.1 Impacts on Communities of Concern
Several revisions proposed in this rulemaking have the potential to give communities of concern greater
autonomy and influence over the quality of waters in their area. This section outlines the positive EJ
impacts that may result from several proposed rule provisions in (1) pre-filing meeting requests; (2)
request for certification; (3) reasonable period of time; (4) scope of certification; (5) federal agency
review; (6) EPA's roles under section 401; (7) modifications; and (8) neighboring jurisdiction process.
Pre-filing meetings may provide certifying authorities with an early opportunity to request and receive
project details, allowing for better informed certification decisions that may affect population groups of
concern. Thus, the pre-filing meetings provision of the proposed rule may have positive EJ effects
relative to the 1971 Rule baseline. Since the 2020 Rule includes a pre-filing meeting requirement, the
pre-filing meeting provision of the proposed rule is unlikely to have any EJ effects relative to the 2020
Rule baseline.
The proposed change to include a copy of the draft permit or license and any existing and readily
available data or information related to potential water quality impacts from the proposed project in the
request for certification is responsive to stakeholder feedback that there needs to be sufficient
information provided to make a certification decision. The inclusion of a copy of the draft license or
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permit and any existing and readily available data or information related to potential water quality
impacts from the proposed project gives all certifying authorities, including where a proposed project
may affect population groups of concern, important details upfront about the proposed project as they
evaluate any impacts on their water resources.
The collaborative approach proposed for the RPT determination provides certifying authorities with
negotiation power. The certifying authority can take the needs of the communities into account when
trying to determine the length of time needed to review and evaluate the potential impacts of the
proposed project on the communities' water resources.
The proposal to set the scope of certification review to "activity as a whole" could also provide positive
impacts on communities of concern. This approach gives certifying authorities serving minority, low-
income, and indigenous communities a broader scope of review to address water quality-related
impacts to their water resources. Under the 2020 Rule, the scope of review is limited to assuring that
any discharge from the project (as opposed to the activity as a whole) will comply with water quality
requirements. Additionally, the 2020 Rule limited water quality requirements to federal, state, and tribal
laws regulating point source discharges. By contrast, the proposed rule would allow certifying
authorities to evaluate all aspects of a project's "activity as a whole" that could impact compliance with
water quality requirements.
Communities of concern may also benefit from the proposed rule's considerations for federal agency
review. This rulemaking would provide certifying authorities with the opportunity to revise their
certification decisions to satisfy federal agency review, which would better allow certifying authorities to
assure compliance with their water quality requirements and protect against potential impacts to
communities of concern. Relative to the 2020 Rule, the proposed rule also limits the scope of federal
agency review to four facial statutory components of section 401. It also eliminates the possibility of
inadvertent waiver of a certification decision with conditions designed to protect communities of
concern from negative water quality impacts for failure to comply with the informational requirements
set out in the 2020 Rule.
The proposed provisions regarding EPA's roles under section 401 could also benefit communities of
concern. Updating the public notice requirements and defining a timeframe for public notice when EPA
acts as the certifying authority would provide more certainty to the public regarding when public
comment occurs and may improve community engagement. Broadening the scope of EPA's technical
assistance would provide more support to stakeholders in the certification process, including certifying
authorities. Since the 2020 Rule broadens the scope of EPA's technical assistance, the proposed rule
provisions related to technical assistance are unlikely to have any EJ effects relative to the 2020 Rule
baseline.
Retaining the modifications provision could also have positive impacts on population groups of concern
since the public could inform the certifying authority and the federal agency when circumstances
warranting certification modification arise. Allowing certification modifications, and therefore project
modifications, reduces the potential of environmental degradation in communities of concern and may
have further positive impacts on water quality. This provision would also allow certifying authorities to
consider potential environmental degradation and impacts to communities of concern that could result
from project/license/permit adjustments. However, the provision's stipulation that the certifying
authority and federal agency must be in agreement on proposed certification modifications could limit
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the ability of certifying authorities to make desired changes should the federal agency disagree that a
modification to the certification is appropriate. The 2020 Rule removed the modification provision and
instead relied on other federal agency regulations to address modifications. Using the 2020 Rule as a
baseline, the proposed rule would have substantial benefits, as listed above, by allowing certifying
authorities and federal agencies to agree to modify a grant of certification. Relative to 1971 Rule
baseline, the proposed modification provision adds clarification regarding the allowable scope and
extent of modifications. The increased clarity relative to the 1971 Rule baseline could improve the
modification process and make certifying authorities and federal agencies more likely to agree to modify
a certification under changing project conditions.
Proposed revisions to the neighboring jurisdiction provision may allow other affected communities to
provide input on section 401 certifications. EPA's proposed revisions to clarify the objection and hearing
process may allow neighboring jurisdictions with communities of concern to participate in the process.
This would allow neighboring jurisdictions to provide input on a project with potential negative effects
and may reduce associated harms to communities of concern located near affected waters. Relative to
the 2020 Rule, which gave EPA discretion regarding whether to make a "may affect" determination for
neighboring jurisdictions, the proposed rule would ensure that EPA always assesses potential impacts to
neighboring jurisdictions and make either a positive or negative "may affect" determination. Ensuring
that EPA make a positive or negative "may affect" determination rule would increase the potential for
neighboring jurisdictions to protect communities of concern from negative water quality impacts
originating in other jurisdictions.
5.2 Tribal Impacts
A few aspects of the proposed rulemaking would provide clarity and greater flexibility for tribes to
govern water quality in their jurisdictions. The provisions of the rulemaking central to tribes include: (1)
scope of review; (2) federal agency review; (3) EPA's roles under section 401; (4) modifications; (5)
neighboring jurisdiction process; and (6) treatment in a similar manner as a state.
Clarifications that the scope of review includes effects from the "activity as a whole" would allow tribes
with TAS and tribes for which EPA acts as the certifying authority to have greater autonomy and control
to ensure that projects affecting water quality in their jurisdiction meet all applicable water quality
requirements, including water quality-related religious, economic, and cultural criteria. Other tribal and
non-tribal stakeholders agree that it is critical to allow certifying authorities the ability to evaluate
proposed activities beyond point source discharges to preserve water quality requirements specific to
their respective jurisdictions.56 While this provision has been practiced historically based on case law
under the 1971 baseline, adding clarity with the proposed rule could protect tribal certifying authorities
from legal disputes. Under the 2020 Rule, the scope of review is limited to assuring that any discharge
from a project will comply with water quality requirements as opposed to the activity as a whole.
Additionally, the 2020 Rule limited water quality requirements to federal, state, and tribal laws
regulating point source discharges. The proposed rule would allow tribes to evaluate all aspects of a
project that could impact compliance with their water quality requirements.
56 See, e.g., Southern Ute Indian Tribe (0182), National Tribal Water Council (0183), National Wildlife Federation
(0060).
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Tribal communities may also benefit from the proposed rule's considerations for federal agency review.
This rulemaking would provide tribal certifying authorities with the opportunity to revise their
certification decisions to satisfy federal agency review, which would help affirm tribal sovereignty and
tribes' ability to ensure compliance with their water quality requirements. Input from several
stakeholders supports the provision to allow certifying authority revision after federal review;57
however, federal review may lead to additional section 401 waivers if certifying authorities are unable to
make needed revisions within the RPT. Relative to the 2020 Rule, the proposed rule also limits the scope
of federal agency review to four facial statutory components of section 401 and eliminates the
possibility of a tribal certification decision being waived inadvertently for failure to comply with the
informational requirements set out in the 2020 Rule.
When EPA acts as a certifying authority on behalf of tribes, the Agency provides public notice on any
requests for certification. The proposed updates to the public notice provision when EPA is a certifying
authority are expected to provide more clarity to tribal communities regarding when to provide input on
a project in the certification process.58 This provision of the rulemaking could give tribal members
greater involvement with local water quality when they are not the certifying authority because the
public notice will be provided in a timely manner. Tribes could also utilize the proposed expanded scope
of EPA's technical assistance (relative to the 1971 Rule baseline) to learn more about water quality
requirements or methods to comply with applicable water quality requirements.
Allowing for a certification modification when the federal agency and the certifying authority agree
would respect state and tribal rights and promote cooperative federalism. Should conditions in waters
of importance to marginalized communities or tribes change during the licensing or permitting period, a
certification modification would allow these communities more flexibility to address the changing
conditions. For example, Earthjustice and the Confederated Tribes of the Colville Reservation asserted
that certifying authorities are in the best position to determine whether a certification modification is
required.59 However, reintroducing the collaborative process from the 1971 Rule stipulating that the
federal agency must be in agreement with the certifying authority prior to the certifying authority
modifying the certification could limit tribal authority if the federal agency disagrees. The 2020 Rule
removed the modification provision and instead relied on other federal agency regulations to address
modifications. Using the 2020 Rule as a baseline, the proposed rule would have substantial benefits, as
listed above, by allowing certifying authorities and federal agencies to agree to modify a grant of
certification.
Revisions to the neighboring jurisdictions' and TAS provisions could have substantive positive impacts on
tribal communities. Clarifications regarding when neighboring jurisdiction assessments are required
would standardize the neighboring jurisdiction assessment process and ensure that tribes with TAS
(either for section 401 as a whole or just section 401(a)(2)) have the opportunity to provide input if EPA
57 See, e.g., Nicole Rowan, Director of CO Water Quality Control Division (0057), Association of State Wetland
Managers (0023), New Mexico Environment Department (0013).
58 Of note, each EPA regional office has also developed Regional Consultation Procedures in line with EPA's Policy
on Consultation and Coordination with Indian Tribes. These guidance documents describe the specific consultation
practices of each EPA region and what activities are appropriate for consultation.
59 Earthjustice (0051); The Confederated Tribes of the Colville Reservation (CTCR) (0127).
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determines that a discharge originating from a neighboring jurisdiction may affect its water quality. The
proposed rule provision to develop separate TAS provisions for section 401, rather than requiring TAS
for section 303(c) to obtain TAS for section 401, provides tribes with more options in their decision to
seek TAS. Increased tribal section 401 authority would allow tribes to gain autonomy in maintaining
water quality requirements in tribal waters. Additionally, a separate TAS provision for section 401(a)(2)
would allow tribes who do not wish to take on the entire section 401 program to be notified and
participate in the neighboring jurisdiction process when EPA determines that its waters may be affected
by a discharge.
6 Data Limitations and Uncertainty
Table 6-1 summarizes the limitations and uncertainties that EPA faced in assessing the potential impacts
arising from the proposed rule. Whether these limitations and uncertainties, taken together, are likely
to result in an understatement or overstatement of the potential impacts is not known. EPA welcomes
comment or feedback to inform this analysis at the final rule stage.
Table 6-1. Limitations and uncertainties in estimating effects of proposed rule
Uncertainty/Data Limitation
Notes
Lack of national-level dataset of
section 401 certification reviews
The lack of a national-level dataset of section 401 water quality certification
reviews limited EPA's ability to perform a quantitative analysis of the
potential impacts of the proposed rule in the EA. EPA has limited data
regarding the number of section 401 reviews that each certifying authority
conducts annually, the number of certification actions (grant, grant with
conditions, deny, or waive), average time spent per review, and other time
requirements.
Uncertainty regarding the
baseline for the proposed rule
Due to the stay of the 2020 Rule vacatur, the baseline for the proposed rule
has changed from the 1971 Rule to the 2020 Rule. However, because of
ongoing litigation regarding the 2020 Rule in the U.S. Court of Appeals for
the Ninth Circuit, the baseline for the proposed rule remains uncertain. This
baseline uncertainty required assessing potential rule impacts relative to
both the 1971 Rule and the 2020 Rule.
Lack of information to determine
how certifying authorities will
respond to the proposed rule
(e.g., fee changes, acceptance
rate of pre-filing meeting request
requirement)
The impact of the proposed rule on both certifying authorities and project
proponents could vary depending on certifying authority response. For
example, certifying authorities may adjust their fee structure for section
401 reviews to account for changing costs or keep their fee structure (or
lack thereof) the same. The impact of the pre-filing meeting request
requirement depends on whether the certifying authority currently
engages in pre-filing meetings, whether the certifying authority will require
pre-filing meeting requests for all projects, how frequently the certifying
authority may accept the meeting request (if at all), the methodology used
to conduct pre-filing meetings, and whether the certifying authority
implements a pre-filing meeting fee to help cover costs.
Lack of information to determine
the number of requests
submitted that do not contain
enough information to make a
certification decision in the
baseline
The proposed rule defines a certification request to include, at a minimum,
a copy of the draft license or permit and any existing and readily available
data or information related to potential water quality impacts from the
proposed project. This change is intended to reduce duplication of effort
between certifying authorities and federal agencies as well as the number
of requests that certifying authorities receive with insufficient information
to make a certification decision. Quantifying the impacts of this provision
would require data regarding the reduction in labor burden for
deduplication of effort, the proportion of requests that are incomplete
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Table 6-1. Limitations and uncertainties in estimating effects of proposed rule
Uncertainty/Data Limitation
Notes
under baseline, and the increase in the proportion of requests that would
be complete with a copy of the draft license or permit.
Lack of information to determine
how often the RPT is exceeded
for reasons covered by the auto-
extension process
The proposed rule would require certifying authorities and federal agencies
to set the RPT collaboratively, with a 60-day default RPT if an agreement
could not be reached and if none of the auto-extension conditions apply.
Auto-extensions apply when certifying authorities have public notice
requirements that make meeting a 60-day RPT impossible, or when there
are force majeure events (e.g., federal government closures, natural
disasters). Quantifying the impacts of this provision would require data
about how often the 60-day default RPT would be in effect and how often
the auto-extension conditions would apply.
Lack of information to determine
change in certification denials
With the review timeframe starting after receipt of a certification request,
certifying authorities may deny certification if they do not receive
additional information that they assert is needed to make a determination,
particularly when the RPT is set to the default of 60 days. The actual change
is uncertain since pre-filing meetings and a copy of the draft license or
permit and any existing and readily available data or information related to
potential water quality impacts from the proposed project will likely
increase the initial availability of information that may be necessary to
make a certification decision.
Lack of information to determine
impacts of federal agency review
The proposed rule defines four facial statutory aspects of a certification
decision that are subject to federal agency review. Quantifying the impacts
of this provision would require data regarding the frequency of: (1)
challenges to certification decisions and (2) challenged certifications not
complying with the four facial statutory aspects.
Lack of information about
number of tribes interested in
obtaining TAS for section 401 and
401(a)(2) alone
The proposed rule would provide a pathway for tribes to apply directly for
TAS for section 401 or 401(a)(2), rather than obtaining section 401
authority by applying for TAS for section 303(c). Quantifying the impacts of
this provision would require information about the number of tribes
interested in obtaining TAS for section 401 or 401(a)(2) alone rather than
TAS for both sections 303(c) and 401.
Lack of information to assess the
combined effect of proposed rule
provisions
EPA anticipates that overall, the proposed rule would result in more
predictable, efficient decision-making by certifying authorities as compared
with the baseline scenario. Quantifying the combined effect of the
proposed rule on certifying authorities, project proponents, and other
stakeholders would require quantifying and summing the effects of
individual provisions.
7 Statutory and Executive Order Requirements
The statutory requirements considered during development of the proposed rule include the Regulatory
Flexibility Act (RFA) and Small Business Regulatory Enforcement Fairness Act (SBREFA), the Paperwork
Reduction Act, the Unfunded Mandate Reform Act (UMRA), and the National Technology Transfer and
Advancement Act (NTTAA). The analysis is also conducted pursuant to Executive Orders 12866
(Regulatory Planning and Review), 12898 (Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations), 13132 (Federalism), 13175 (Consultation and Coordination
with Indian Tribal Governments), 13045 (Protection of Children from Environmental Health Risks and
Safety Risks), 13211 (Action Concerning Regulations that Significantly Affect Energy Supply, Distribution,
or Use), and 13563 (Improving Regulation and Regulatory Review). Requirements with specific import
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for an economic and programmatic analysis are described in the sections below; others are addressed in
the preamble to the proposed rule.
7.1 Unfunded Mandate Reform Act
The Unfunded Mandate Reform Act contains requirements for agencies when regulations include
unfunded federal mandates imposed by the federal government on state, local, and tribal governments.
For reasons noted previously, EPA does not have comprehensive data with which to analyze fully the
costs of the proposed rule and is conducting a qualitative analysis of the rule relative to the UMRA
threshold. The requirement of this proposed rule that most lends itself to cost analysis is the pre-filing
meeting request, which was included in the 2020 Rule. Rough estimates of wage rates and labor-hours
associated with the pre-filing meeting request and meeting suggests costs on the order of several
thousand dollars at the upper end. However, unlike the 2020 Rule, the proposed rule only requires the
project proponent to request a pre-filing meeting if a certifying authority does not otherwise waive the
requirement. Additionally, the proposed rule allows the certifying authority to waive the meeting
requirement or shorten the wait time between requesting a pre-filing meeting and requesting
certification. EPA also notes that Table 3-4 shows that about 94 percent of federal licenses or permits
are general licenses or permits, which apply when specific conditions are known to apply to the project,
such as limitations on the acreage of the project. EPA assumes that certifying authorities may in many
instances use conditions of general licenses or permits as a rationale for waiving the pre-filing meeting,
which leads to an estimate measured in a few tens of millions of dollars. EPA expects that some licenses
or permits could have higher costs due to other provisions of the proposed rule, but also expects those
costs to be measured in tens or hundreds of thousands of dollars and the number of such licenses and
permits to be a small fraction of those subject to requesting the pre-filing meeting. In the aggregate, EPA
expects the costs of this rule to be well below $160 million, the UMRA threshold of $100 million
adjusted for inflation to 2021 dollars using the GDP implicit price deflator. Therefore, this action does
not contain an unfunded mandate exceeding the UMRA threshold as described in UMRA, 2 U.S.C. 1531-
1538, and does not significantly or uniquely affect small governments. While this action creates
enforceable duties for the private sector, the cost does not exceed $100 million or more. This action
does not create enforceable duties for state and tribal governments. Based on EPA's understanding of
UMRA, if a state chooses to participate in the section 401 process, and by choosing to do so may be
subject to some requirements in the rule, that does not rise to "enforceable duty" under the statute.
7.2 Executive Order 12898 Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations
EO 12898 requires federal agencies to identify and address the disproportionately high and adverse
human health or environmental effects of their actions on minority and low-income populations, to the
greatest extent practicable and permitted by law. EPA views that this action does not have
disproportionately high and adverse human health or environmental effects on minority populations,
low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629,
February 16, 1994). The Agency has conducted an environmental justice analysis for the proposed rule
(see Section 5 of this EA for further discussion).
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7.3 Executive Orders 12866 Regulatory Planning and Review and 13563
Improving Regulation and Regulatory Review
EPA anticipates that the proposed rule would have varying effects on certifying authorities, project
proponents, and federal agencies. However, the Agency is unable to fully quantify the impacts of the
proposed rule due to several data limitations and uncertainties, which are described in Section 6. Due to
the limitations, any attempts to quantify the benefits and costs of the proposed rule provisions would be
highly speculative and imprecise. Therefore, EPA included a qualitative assessment of the potential
impacts of the proposed rule on project proponents, certifying authorities, and federal agencies in this
EA.
EPA acknowledges that there would likely be some costs associated with project proponents, certifying
authorities, and federal agencies reviewing the proposed rule language and ensuring that their activities
going forward are in compliance with the rulemaking.
7.4 Regulatory Flexibility Act and Small Business Regulatory Enforcement
Fairness Act
EPA expects that the proposed changes would improve coordination between project proponents,
certifying authorities, and federal agencies, which would in turn reduce regulatory uncertainty and
project delays for project proponents, including small entities. The small entities subject to the
requirements of this action are small businesses applying for federal licenses or permits subject to
section 401 certification, which includes construction, manufacturing, mining, and utility businesses.
Small entities are not subject to economic impacts from the proposed requirements on certifying
authorities, federal agencies, or neighboring jurisdictions because small entities do not act in those roles
under section 401. Based on the qualitative analysis, the Agency has determined that some small
entities may experience some impact from the proposed rule but that the impact would not be
significant. This proposed rule may impact states and authorized tribes that implement section 401 in
the form of administrative burden and cost. States and tribes are not small entities under the Regulatory
Flexibility Act (RFA).
There are five provisions from the proposed rule that the Agency believes may have some impact on
project proponents (as mentioned above, these are the impacts which would apply to small entities),
including the pre-filing meeting request requirement, the contents of a request for certification, the
scope of certification, modifications, and the section 401(a)(2) review process. A qualitative summary of
these anticipated impacts on small entities as compared to the 1971 Rule and 2020 Rule baselines is
discussed below.
First, the Agency is proposing to retain the requirement for project proponents to request a pre-filing
meeting from the 2020 Rule; the 1971 Rule did not include a pre-filing meeting request requirement.
However, specific to this proposal, the certifying authority may waive the requirement for a pre-filing
meeting request. In pre-proposal input, several project proponents noted that while pre-filing meetings
had some utility, they had also resulted in delays in some instances and recommended that the Agency
should provide greater flexibility for the pre-filing meeting request requirement, including allowing for
waivers or shortening the period between submitting a pre-filing meeting request and a request for
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certification.60 This proposal provides certifying authorities with the flexibility to determine whether a
pre-filing meeting request is needed and allows certifying authorities to shorten the waiting period
between submitting a pre-filing meeting request and a request for certification. As a result, there are no
additional requirements being imposed upon project proponents, including small entities, with respect
to this aspect of the proposed rule when compared to the 2020 Rule baseline. Although the pre-filing
meeting request requirement is new when compared to the 1971 Rule baseline, the Agency believes the
pre-filing meeting process will ultimately reduce burden elsewhere in the section 401 certification
process (e.g., reduce project delays due to incomplete certification requests). The Agency also believes
that certifying authorities may be more likely to waive the pre-filing meeting request requirement for
small, routine projects,61 which are more likely to involve small entities. Therefore, the Agency expects
the proposed changes to the pre-filing meeting requirement to be a reduction of direct economic impact
on project proponents when the certifying authority determines that both a pre-filing meeting request
and a pre-filing meeting are not necessary prior to the submission of a request for certification.62
Second, the Agency is proposing to update the 2020 Rule provision describing the contents of a
certification request for all certifying authorities; the 1971 Rule only described the contents of a
certification request when EPA acted as the certifying authority. In pre-proposal input, several project
proponents noted that it was important to have clarity and predictability regarding the elements of a
request for certification and expressed support for the 2020 Rule's uniform requirement for all
certification requests.63 The Agency anticipates that this proposal includes direct impacts to small
entities regarding the contents of a request for certification. Specifically, in contrast to the 1971 Rule
and 2020 Rule, when a project proponent submits a request for certification to any certifying authority,
it must include a copy of the draft license or permit and any existing and readily available data or
information related to potential water quality impacts from the proposed project. Furthermore, the
proposed rule defines the additional requirements for a request for certification when EPA is the
certifying authority and when a non-EPA certifying authority has not identified in regulation additional
contents for a request for certification. See preamble section V.C. The proposed rule provides a
standardized list components for all requests for certification. The proposed rule also provides a
standardized list of additional components that must be included in a request for certification when EPA
acts as the certifying authority or in instances where a state or authorized tribe declines to define
additional components in their own regulations. Although the Agency is proposing to allow states and
authorized tribes to define their own additional requirements for a certification request, the proposed
approach provides a clear backstop for those states or authorized tribes who do not choose to define
any additional requirements in regulation. The Agency expects that those states and authorized tribes
who choose to define additional contents for a certification request would do so clearly enough to
60 See, e.g., Association of American Railroads (0021), Metallurgical Coal Producers Association (0036), MJB&A
Permitting and Infrastructure Coalition (0064), Alaska Oil and Gas Association (0090)
61 See, e.g., Washington Department of Ecology (0025), Utah Department of Environmental Quality (0028), D.C.
Department of Energy and Environment (0035)
62 See Section 4.2.2 for further discussion on the potential impacts of the proposed provision from the 1971 Rule
and 2020 Rule baselines.
63 See, e.g., Edison Electric Institute (0049), GPA Midstream Association (0050), Natural Gas Supply Association
(0074), Williams Company (0084)
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provide project proponents with full transparency as to what is required. Additionally, EPA anticipates
that allowing states and authorized tribes to define additional contents of a certification request may
reduce the need for additional information requests. As a result, the Agency anticipates this new
requirement to result in faster, more efficient decision-making by the certifying authorities than under
the 1971 Rule and 2020 Rule baselines, which may reduce the economic impact on project proponents.
Third, EPA is also returning to the longstanding "activity as a whole" scope of certification review, which
represents a change from the 2020 Rule baseline. The 1971 Rule did not explicitly address the scope of
certification in regulatory text. However, the U.S. Supreme Court held that section 401 "is most
reasonably read" as authorizing the certifying authority to evaluate and place conditions on the "activity
as a whole" to assure compliance with various provisions of the CWA and "any other appropriate
requirement of State law" once the predicate existence of a discharge is satisfied. PUD No. 1 of Jefferson
County v. WA Dept. of Ecology, 511 U.S. 700, 711-12 (1994). In pre-proposal input, several project
proponents asserted that prior to the 2020 Rule, certifying authorities considered non-water quality
related issues and supported the 2020 Rule's discharge-only scope of review.64 Although this proposal
returns to the activity as a whole scope of review, the proposal retains the Agency's longstanding
position that certifying authorities may only consider water quality related impacts when acting on a
request for certification. The "activity as a whole" scope of review could result in an increase in the
number of water quality certification conditions proportional to the size and complexity of the activity;
however, this proposal clarifies that the scope of certification is limited to water quality-related impacts.
As a result, conditions are more likely to be appropriately limited to water quality related impacts.
Additionally, because certifying authorities would have the benefit of seeing the draft license or permit
under this proposal, including preliminary conditions in the draft license or permit, the certifying
authority should be able to deliver certifications with fewer and more targeted and effective conditions.
Given these factors and that most certifying authorities are familiar with the "activity as a whole"
approach, the direct economic impact of this change on project proponents is not expected to be
significant.
Fourth, the Agency is proposing to reintroduce a certification modifications provision. In response to
pre-proposal input and stakeholder recommendations to allow certification modifications, the Agency is
proposing a process similar to the 1971 Rule that allows a certifying authority to modify a certification
after reaching an agreement to do so with the federal licensing or permitting agency. In contrast, the
2020 Rule removed the 1971 Rule's modification provision in its entirety, and instead relies on other
federal agencies to define if and when such modifications may occur. The 2020 Rule preamble also
suggests there might be circumstances that warrant the submission of a new request for certification;
however, the Agency declined to identify circumstances that might warrant the submission of a new
certification request. Therefore, during the pre-proposal input period, stakeholders said they need more
flexibility than the 2020 Rule provides for modifications.65 Relative to the 2020 Rule, the Agency expects
the reintroduction of a certification modification provision to reduce burden on small entities acting as
project proponents by adding the flexibility they need to adapt to changing circumstances or new
64 See, e.g., National Hydropower Association (0048), Interstate Natural Gas Association of America and American
Gas Association (0058), Equitrans Midstream Corporation (0073).
65 See, e.g., American Association of State Highway and Transportation Officials (0029), Edison Electric Institute
(0049), Massachusetts Department of Transportation (0055).
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information, without limiting them to submission of a new request for certification where the federal
agency has not established other modification mechanisms. Furthermore, this proposed provision
reduces the burden on small entities, acting as project proponents, relative to the 1971 Rule because
this proposal does not include a third-party role for EPA participation in certification modifications. EPA
anticipates the exclusion of the third-party role for EPA will streamline collaboration regarding
certification modifications.
Lastly, the Agency is updating the 2020 Rule regulatory text regarding the section 401(a)(2) process to
provide greater clarity regarding how the section 401(a)(2) process is initiated and conducted. These
updates include clarifying that waivers in addition to certifications trigger the section 401(a)(2) process;
defining the contents of notification from a federal agency to EPA; clarifying that EPA must determine
whether a discharge may affect a neighboring jurisdiction after it receives notification; and clarifying the
neighboring jurisdiction's objection process. Although project proponents are not directly impacted by
the neighboring jurisdiction process, the Agency anticipates that the proposal may have an indirect
impact on project proponents (some of which may be small entities) because a federal license or permit
may not be issued until the neighboring jurisdiction process concludes. The proposal reintroduces the
longstanding practice of waivers, in addition to certifications, triggering the neighboring jurisdiction
process. However, the proposal provides further clarification of the neighboring jurisdiction process
than the 2020 Rule (e.g., contents of notification), which would allow the neighboring jurisdiction
process to be more efficient. The Agency also anticipates greater efficiency when moving from the 1971
Rule baseline to the proposal, due to the clarifications and procedural framework for objections and
hearings included in the proposed rule. EPA acknowledges that the clarity may increase the number of
jurisdictions that object or request hearings under section 401(a)(2).
Despite these direct impacts to project proponents, including some small entities, the Agency has
concluded that this proposed rule will not have a significant economic impact on a substantial number
of small entities. To support a certification under RFA, EPA has conducted a qualitative analysis of the
impacts to small businesses. For the qualitative assessment, EPA considered the impacts on project
proponents by dividing them into three mutually exclusive and exhaustive groups: 1) project proponents
for whom the pre-filing meeting request requirement is waived, 2) project proponents for whom the
pre-filing meeting request requirement is the largest impact, and 3) project proponents for whom one
or more of the other provisions have an impact (e.g., scope of certification, neighboring jurisdiction
process, etc.). This analysis describes the three groups and their particular features first, and then
analyzes the small business impacts relative to each baseline.
The first group includes project proponents for whom the pre-filing meeting request requirement is
waived by their certifying authority under the proposed rule, which also depends on information in their
certification request. Relative to the 2020 Rule baseline, this group would not face incremental costs,
because the pre-filing meeting was also a feature of the 2020 Rule. In fact, this group would realize cost
savings relative to the 2020 Rule, because the pre-filing meeting could not be waived under that
baseline; these cost savings are expected to be relatively low, on the order of hundreds to thousands of
dollars. Relative to the 1971 Rule baseline, this group may face incremental costs for this proposed rule
because the 1971 Rule did not include a pre-filing meeting request, but these costs are expected to be
quite low, on the order of tens or hundreds of dollars.
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Pre-filing meeting requests ensure that certifying authorities can receive early notification of and discuss
the project and potential certification request information needs with the project proponent before the
statutory "reasonable period of time" for certification review begins; however, under this proposal
project proponents are also required to provide a certification request that includes a copy of the draft
license or permit and any existing and readily available data or information related to potential water
quality impacts from the proposed project. This information should be readily available from the federal
licensing or permitting agency and would not necessarily require any independent development by the
project proponent. EPA assumes that certifying authorities may in many instances use conditions of
general licenses or permits as a rationale for waiving the pre-filing meeting request requirement, which
means that many of the project proponents in this group are the approximately 94 percent of
certification requests derived from general licenses or permits (see Table 3-4). Furthermore, EPA
expects that the small entities affected by this rule are the project proponents who are predominantly
included in this group. This presumption is based on the likelihood that small firms develop expertise
around filling economic niches in which larger firms are uninterested, because the larger firms can make
greater profits on projects for which they have a size advantage (e.g., there are market-based barriers to
entry for small firms). For example, the CWA section 404 general permit for Residential Developments is
limited to projects resulting in the loss of non-tidal waters of the United States of no more than a half-
acre. Of course, a large residential development, built by a large firm could have an impact that would
be this minimal on waters of the United States. However, all other things being equal, the likelihood of
disturbing more acres grows with the size of the development, and the more diverse skills required to
handle the greater rigors of the individual permit process are more likely to be found in larger firms. To
summarize the impacts to this group relative to the 1971 Rule baseline, there are impacts, but these
impacts are quite low and thus not expected to be significant impacts. To summarize the impacts to this
group relative to the 2020 Rule baseline, the impacts result in no net burden.
The second group faces more costs under the proposed rule than the first group, because the certifying
authority does not waive their pre-filing meeting request requirement. What distinguishes this group
from the third group is that the higher costs they face relative to the first group are limited to the pre-
filing meeting request requirement. Although it would be difficult to predict with much specificity the
costs of pre-filing meetings, a reasonable set of assumptions includes that pre-filing meetings will entail
approximately 30 labor hours (abstracting from several people for a few hours, plus preparation) at an
average wage rate of $100/hour (abstracting from labor categories).66 Thus, EPA is able to conclude that
these costs in the abstract are on an order of magnitude in thousands of dollars. These relative costs are
therefore not expected to impose a significant impact on project proponents, with the possible
exception of the very smallest firms in this group. Furthermore, this group is not expected to be
comprised solely of small entities, rather that small businesses would be a subset of this group.
Additionally, the project proponents in this group are expected to be comprised of a minority of the
general license or permits and most of the individual permits or licenses in Table 3-4 (the remaining of
this latter category being in the third group). To summarize the impacts to this group relative to the
1971 Rule baseline, there are impacts, but these impacts are only expected to be significant for a not-
substantial number of small entities. To summarize the impacts to this group relative to the 2020 Rule
66 This wage rate is on the order of magnitude of the wage rates used in the ICR for this proposed rule.
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baseline, the impacts result in no net burden, because project proponents in this group are treated
similarly under the 2020 Rule baseline and proposed rule, by definition.
The third group is the group most likely to face costs of a magnitude that could rise to the level of
significant impacts, because they face the same costs under the proposed rule as the second group, as
well as costs associated with another part of the section 401 process, such as scope of certification or
neighboring jurisdiction process. EPA acknowledges that in some instances, these costs could impose a
significant impact. However, EPA assumes that the project proponents facing these impacts would most
likely not be small entities, precisely because these more complex situations require larger skill sets
most often found in firms exceeding the small business size standards. To summarize the impacts to this
group relative to the 1971 Rule baseline, there would be no scope of certification impacts though there
could be neighboring jurisdiction impacts; these impacts could be of a magnitude that would be
significant for small entities, but small entities in this group are not expected to comprise a substantial
number. To summarize the impacts to this group relative to the 2020 Rule baseline, there would be
either scope of certification or neighboring jurisdiction impacts (or both); these impacts could be of a
magnitude that would be significant for small entities, but small entities in this group are not expected
to comprise a substantial number.
Though EPA lacks detailed information on project proponents, the total effect across these three groups,
under both baselines, gives EPA confidence that there is no significant impact on a substantial number
of small entities.
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U.S. Environmental Protection Agency (U.S. EPA). (2019). NPDES State Program Information. Retrieved
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Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source
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U.S. Environmental Protection Agency (U.S. EPA). (2020b). Final Rule. 85 FR 42210. July 13th, 2020.
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U.S. Environmental Protection Agency (U.S. EPA). (2021a). Notice of Intention to Reconsider and Revise
the Clean Water Act Section 401 Certification Rule. 86 FR 29541. Retrieved from:
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Walsh, P. J., Milon, J. W., & Scrogin, D. O. (2011). The Spatial Extent of Water Quality Benefits in Urban
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West Virginia Department of Environmental Protection (WV DEP). (n.d.). Application for Individual
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https://dep.wv.gov/WWE/Programs/wqs/Documents/401%20Program/401Certificationfornoncoal%20A
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Appendix A. Rule Provision Comparison
Table A-l compares major rule provisions, in plain language, under the baseline 1971 Rule, the vacated 2020 Rule, and the proposed rule.
Table A-l. Comparison of rule provisions under the baseline 1971 Rule, the vacated 2020 Rule, and the proposed rule
1971 Rule and Practice
2020 Rule
Proposed Rule
When certification is required
A project proponent must request section
401 certification from the appropriate
certifying authority if a federally licensed or
permitted activity may result in a discharge
into a water of the United States.
While not addressed in 1971 Rule, case law
from the 9th Circuit held that only a point
source discharge triggers section 401 (ONDA
v. Dombeck, 172 F.3d 1092 (9th Cir. 1998).
Same as 1971 practice, but the regulatory
text explicitly provides that certification is
required for any license or permit that
authorizes an activity that may result in a
discharge.
Defines "discharge" for purposes of section
401 as a discharge from a point source into a
water of the United States, consistent with
ONDA.
Same as 1971 practice, but the regulatory
text explicitly provides that a certification or
waiver is required for any license or permit
that authorizes an activity which may result in
a point source discharge into a water of the
United States.
Preamble provides that a discharge for
purposes of section 401 is a discharge from a
point source into a water of the United
States, consistent with ONDA.
Pre-filing meeting request
Pre-filing meeting requests were not required
by rule, but encouraged by some certifying
authorities.
Project proponents are required to request a
pre-filing meeting from a certifying authority
at least 30 days before requesting
certification.
Project proponents are required to request a
pre-filing meeting from a certifying authority
at least 30 days before requesting
certification, unless waived or shortened by
the certifying authority.
Certification request
Included five components that must be in a
certification request when EPA is the
certifying authority.
Did not define a certification request for
other certifying authorities.
In practice, some states and tribes said a
"complete application" constituted a
certification request.
Requires all certification requests to be
written, signed, and dated and include either
7 or 9 components, which are based on
whether the certification request was for an
individual license or permit, or the issuance
of a general license or permit.
Requires all certification requests to be in
writing, signed, and dated, and include a copy
of the draft license or permit (unless legally
precluded from obtaining such a copy) and
any existing and readily available data or
information related to potential water quality
impacts from the proposed project.
Requires all certification requests to EPA to
include 5 additional items, if not already
included in the draft license or permit; this
requirement also applies to certification
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Table A-l. Comparison of rule provisions under the baseline 1971 Rule, the vacated 2020 Rule, and the proposed rule
1971 Rule and Practice
2020 Rule
Proposed Rule
requests to states or tribes that do not define
a request for certification in their own
regulations.
States and tribes are free to define additional
contents in a certification request in
regulation.
Reasonable period of time (RPT)
When the RPT starts:
The RPT began after the receipt of a
certification request.
In practice, some certifying authorities
required a "complete application" to start the
RPT.
A project proponent is required to submit a
certification request to the certifying
authority and federal agency concurrently.
The RPT begins on the date that a
certification request is documented as
received by a certifying authority in
accordance with applicable submission
procedures.
The RPT begins upon receipt of a request or
certification. Receipt is defined as the date
that a certification request, as defined by the
certifying authority, in accordance with the
certifying authority's applicable submission
procedure.
Certifying authority required to notify the
federal agency and project proponent, in
writing, of the date when it receives a
certification request meeting the proposed
requirements.
Timeline for acting:
A certifying authority must act on a request
for certification within the RPT, which shall
not exceed one year, as determined by the
federal agency.
Rule provided for a default RPT of generally
six months.
A certifying authority must act on a request
for certification within the RPT, which shall
not exceed one year, as determined by the
federal agency.
Rule does not provide a default RPT.
A certifying authority must act on a request
for certification within the RPT, which shall
not exceed one year, as determined by the
federal agency and certifying authority.
If the certifying authority and federal agency
fail to set an RPT within 30 days from receipt
of a request for certification, it will default to
60 days.
How the RPT is set:
Federal agency expected to set the RPT;
process not specified in rule.
Federal agency is required to set the RPT
either categorically or on a case-by-case basis
Certifying authority and federal agency may
jointly set the RPT within 30 days of receiving
a request for certification.
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Table A-l. Comparison of rule provisions under the baseline 1971 Rule, the vacated 2020 Rule, and the proposed rule
1971 Rule and Practice
2020 Rule
Proposed Rule
In practice, federal agencies specified default
RPT in regulations.
within 15 days of receiving a certification
request.
Preamble provided that the RPT will default
to a categorically RPT (if specified in a federal
agency's regulations) or 1 year (if the federal
agency did not have a categorical RPT in its
regulations) if the federal agency failed to set
an RPT within 15 days of receiving a
certification request.
Rule provides factors that the federal agency
must consider when establishing the RPT.
Failure to set the RPT within 30 days of
receipt of a request for certification results in
default RPT of 60 days.
Proposed rule does not specify factors that
the federal agency and certifying authority
must consider when setting the RPT.
Extending the RPT:
Not specified in rule, but some federal
agencies included procedures for modifying
the RPT in their water quality certification
implementation regulations.
Certifying authorities and project proponents
may request an extension to the RPT, but the
federal agency is not required to grant the
extension request.
The extension may not extend the RPT
beyond 1 year from receipt of the
certification request.
RPT is automatically extended upon
notification by the certifying authority prior
to the end of the reasonable period of time in
2 scenarios: need to meet public notice
requirements and force majeure events.
RPT may be extended upon certifying
authority and federal agency agreement,
after consulting the project proponent, as
long as it does not extend beyond 1 year from
receipt of the certification request.
Stopping/pausing the RPT:
Not specified in rule.
In practice, some certifying authorities
requested or allowed project proponents to
withdraw their applications to
stop/pause/restart the clock.
The withdrawal/resubmit practice is
prohibited in regulatory text.
Declines to take a position on validity of
withdrawal/resubmit.
Scope of review and scope of conditions
Not specified in regulatory text.
In 1994, the Supreme Court stated that the
scope of a jurisdiction's certification review
includes assuring that any potential point
source discharge, as well as the
licensed/permitted activity as a whole, will
The scope of certification is limited to
assuring that a discharge from a federally
licensed or permitted activity will comply
with water quality requirements.
Water quality requirements are defined as
the applicable provisions of CWA sections
The scope of certification is based on
whether the activity as a whole will comply
with all applicable water quality
requirements.
Water quality requirements are defined as
any limitation, standard, or other
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Table A-l. Comparison of rule provisions under the baseline 1971 Rule, the vacated 2020 Rule, and the proposed rule
1971 Rule and Practice
2020 Rule
Proposed Rule
comply with sections 301, 302, 303, 306, and
307 of the Clean Water Act and "any other
appropriate requirements of State or tribal
law" (PUD No. 1 of Jefferson County v. WA
Dept. of Ecology, 511 U.S. 700 (1994))
301, 302, 303, 306, and 307, and state or
tribal regulatory requirements for point
source discharges into waters of the United
States.
requirement under CWA sections 301, 302,
303, 306, and 307, any federal and state or
tribal laws or regulations implementing those
sections, and any other water quality-related
requirement of state or tribal law.
Certification decisions
Granting certification:
A grant of certification included five elements
that must be included in a certification,
including "[a] statement that there is a
reasonable assurance that the activity will be
conducted in a manner which will not violate
applicable water quality standards."
A grant of certification must be in writing and
include a statement that the discharge from
the proposed project will comply with water
quality requirements.
A grant of certification must be in writing and
include (1) the name and address of the
project proponent and an identification of
the applicable federal license or permit and
(2) a statement that the activity as a whole
will comply with water quality requirements.
Granting certification with conditions:
A grant of certification with conditions
included the same elements as a grant of
certification, including "a statement of any
conditions which the certifying agency deems
necessary or desirable with respect to the
discharge of the activity."
No further information required with the
certification condition.
A grant of certification with conditions for an
individual license or permit must be in writing
and include (1) a statement explaining why
the condition is necessary to assure that the
discharge from the proposed project will
comply with water quality requirements, and
(2) a citation to federal, state, or tribal law
that authorizes the condition.
Includes a similar requirement for a grant of
certification with conditions on issuance of a
general license or permit.
A grant of certification with conditions must
be in writing and include (1) the name and
address of the project proponent and an
identification of the applicable federal license
or permit, (2) any conditions necessary to
assure that the activity as a whole will comply
with water quality requirements and (3) a
statement explaining why each of the
included conditions is necessary to assure
that the activity as a whole will comply with
water quality requirements.
Denying certification:
Not specified.
A denial of certification on an individual
license or permit must be in writing and
include (1) the specific water quality
requirements with which the discharge will
not comply, (2) a statement explaining why
the discharge will not comply with the
identified water quality requirements, and (3)
Must be in writing and include (1) the name
and address of the project proponent and an
identification of the applicable federal license
or permit and (2) a statement explaining why
the certifying authority cannot certify that
the activity as a whole will comply with water
quality requirements
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Table A-l. Comparison of rule provisions under the baseline 1971 Rule, the vacated 2020 Rule, and the proposed rule
1971 Rule and Practice
2020 Rule
Proposed Rule
if the denial is due to insufficient information,
the denial must describe the specific water
quality data or information, if any, that would
be needed to assure that the discharge from
the proposed project will comply with water
quality requirements.
Includes a similar requirement for a denial of
certification on issuance of a general license
or permit.
Waiving certification:
A certifying authority may waive certification
(1) expressly or (2) by failing or refusing act,
which is not defined in the regulation,
although in practice, federal agencies
sometimes determined waiver occurred by
passage of time.
A certifying authority may waive certification
(1) expressly or (2) by failing or refusing to
act.
An express waiver must be in writing.
A certifying authority can fail or refuse to act
on a request for certification by (1) failing or
refusing to act on a certification request
within the RPT, (2) failing or refusing to
satisfy the requirements for a grant of
certification (described above), (3) failing or
refusing to satisfy the requirements for a
denial of certification (described above), or
(4) failing or refusing to comply with other
procedural requirements of section 401.
A certifying authority can also waive a
certification condition by failing or refusing to
satisfy the requirements for a grant of
certification with conditions (described
above).
A certifying authority may waive certification
(1) expressly or (2) by failing or refusing to
act.
An express waiver must be in writing and
include (1) the name and address of the
project proponent an identification of the
applicable federal license or permit and (2) a
statement stating that the certifying authority
expressly waives its authority to act on a
request for certification.
A certifying authority fails or refuses to act on
a request for certification by failing to make a
certification decision within the RPT.
Federal agency review
Scope of federal agency review
Not addressed in rule but, in practice, a
federal agency determined whether a
certifying authority failed to act within the
RPT.
A federal agency is required to review a grant
of certification, grant of certification with
conditions, or denial of certification to
determine whether it complied with the
A federal agency may review a certification
decision to ensure it meets four facial
statutory components of section 401: (1)
indicates whether the decision is a grant,
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Table A-l. Comparison of rule provisions under the baseline 1971 Rule, the vacated 2020 Rule, and the proposed rule
1971 Rule and Practice
2020 Rule
Proposed Rule
Some case law provided federal agencies with
the ability to review for compliance with
facial section 401 statutory requirements,
including public notice provision, RPT, and
proper certifying authority.
procedural requirements for those actions
(e.g., denial of certification element
requirements), whether the actions were
issued in the RPT, and whether the actions
followed the other procedural requirements
of section 401 (e.g., public notice).
grant with conditions, deny, or waiver, (2) the
proper certifying authority issued the
decision, (3) the certifying authority provided
public notice on the certification request, and
(4) the decision was issued within the RPT.
Explicitly limits federal agency review to the
four factors above.
Defers to certifying authorities to determine
how to demonstrate that it met the four
listed facial elements.
Consequences of federal agency review
Not addressed in rule. In practice, a waiver
occured if federal agency determines the
certifying authority fails to act within the RPT.
A federal agency can waive a state or tribe's
certification decision or condition for failure
to act within the RPT, and failure to comply
with the procedural requirements of section
401 (e.g., public notice) or the 2020 Rule
(e.g., denial of certification element
requirements).
Federal agencies are not required to provide
the certifying authority with the opportunity
to remedy any deficiency.
A waiver may only occur for failure to act
within the RPT.
If a certification decision does not meet the
public notice requirement or does not clearly
identify the nature of the decision, the
federal agency must provide the certifying
authority with an opportunity to remedy the
deficiency. If necessary the RPT will be
extended to provide such an opportunity, as
long as an extension to the RPT would not
exceed one year from the receipt of the
certification request.
Modifications
The 1971 Rule allowed modifications upon
agreement of federal agencies, certifying
authorities and EPA.
Removes the 1971 modification provision.
Certifying authorities and federal agencies
may agree to modify a grant of certification
(with or without conditions), but modification
is limited to the scope of the agreement (e.g.,
if they agree that the construction timeframe
needs to be extended, only that aspect of the
certification may be modified).
EPA is removing itself from the list of entities
in the 1971 Rule that must reach agreement
for modifications to occur.
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Table A-l. Comparison of rule provisions under the baseline 1971 Rule, the vacated 2020 Rule, and the proposed rule
1971 Rule and Practice
2020 Rule
Proposed Rule
Clarifies that unilateral modifications may not
occur.
Clarifies that the nature of a certification
decision may not be changed (e.g., modify a
grant into a denial or waiver).
Neighboring Jurisdiction Process
Notice from federal agency to EPA
Required federal agency to notify EPA upon
receipt of an application and a certification or
waiver.
Notification included a copy of the
certification or waiver, and the portions of
the federal license or permit application
related to water quality considerations.
EPA could ask federal agency to procure
additional information from the project
applicant.
Requires the federal agency to notify EPA
within 5 days of receiving a license or permit
application and the related certification.
Does not define the contents of a federal
agency's notification to EPA.
Allows EPA to request copies of the
certification and the federal license or permit
application.
Requires the federal agency to notify EPA
within 5 days of receiving the application and
either a certification or waiver.
Defines the contents of a federal agency's
notification to EPA, but also provides EPA
with the option of entering into agreements
with federal agencies regarding the manner
and contents of notification.
Allows EPA to request supplemental
information.
EPA's "may affect" evaluation and notice to neighboring state/tribe
Rule did not define what "may affect" means;
in practice, EPA interpreted section 401(a)(2)
as providing EPA with the ability to determine
in its discretion whether the discharge from a
project may affect the water quality in a
neighboring jurisdiction; however, one
district court found that EPA is required to
make a determination about whether a
discharge may affect a neighboring
state/tribe (Fond du Lac Band of Lake
Superior Chippewa v. EPA, 519 F.Supp.3d 549
(D. Minn. 2021).
Rule provided that if EPA determines that the
discharge from a project may affect water
quality in a neighboring jurisdiction, EPA shall
Provides that the Administrator at his or her
discretion may determine that the discharge
from the certified project may affect water
quality in a neighboring jurisdiction.
Defines what EPA provides to neighboring
states and tribes when it determines that a
discharge may affect a neighboring state or
tribe.
Requires EPA to notify the neighboring state
or tribe, federal agency, project proponent,
and the certifying authority.
Clearly states that a federal license or permit
may not be issued until the neighboring
jurisdiction process concludes.
Clarifies that EPA must determine whether a
discharge "may affect" water quality in a
neighboring state or tribe.
Defines what EPA provides to neighboring
states and tribes when it determines that a
discharge may affect a neighboring state or
tribe.
Requires EPA to notify the neighboring state
or tribe, federal agency, project proponent,
and the certifying authority.
Clearly states that a federal license or permit
may not be issued until the neighboring
jurisdiction process concludes.
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Table A-l. Comparison of rule provisions under the baseline 1971 Rule, the vacated 2020 Rule, and the proposed rule
1971 Rule and Practice
2020 Rule
Proposed Rule
notify the neighboring jurisdiction, certifying
authority, federal agency, and applicant.
Required EPA to send any materials it reviews
to the neighboring state/tribe.
Neighboring state/tribe "will affect" objection
Not specified in rule.
Requires the neighboring jurisdiction to notify
EPA and the federal agency if it objected to
the issuance of the federal license or permit.
Defines what the neighboring jurisdiction
must provide in its notification to EPA and the
federal agency.
Requires the neighboring jurisdiction to notify
EPA, the federal agency, and the certifying
authority if it objects to the issuance of the
federal license or permit.
Defines what the neighboring jurisdiction
must provide in its notification to EPA, the
federal agency, and certifying authority.
Objection and hearing process
Required the federal agency to notify EPA at
least 30 days before the public hearing.
Required EPA to provide its evaluation and
recommendations at the public hearing,
including recommendation as to whether and
under what conditions the license/permit
should be issued.
Requires the federal agency to notify EPA at
least 30 days before the public hearing.
Requires EPA to provide its evaluation and
recommendations at the public hearing.
Clarifies that the license or permit may not be
issued if additional license or permit
conditions cannot ensure that the discharge
from the certified project will comply with
the neighboring jurisdiction's water quality
requirements.
Explicitly reiterates that the federal agency
must hold a public hearing if the neighboring
state or tribe requests one.
Requires the federal agency to provide public
notice at least 30 days prior to the hearing.
Requires EPA to provide its evaluation and
recommendations at the hearing.
Clarifies that the license or permit may not be
issued if additional license or permit
conditions cannot ensure that the discharge
from the project will comply with the
neighboring jurisdiction's water quality
requirements.
Treatment in a Similar Manner as a State for Section 401
Rule did not provide tribes with the
opportunity to receive TAS solely for section
401.
Rule does not provide tribes with the
opportunity to receive TAS solely for section
401.
Provides tribes with a new 401-specific
alternative option for obtaining section 401
TAS without also obtaining TAS for WQS.
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Table A-l. Comparison of rule provisions under the baseline 1971 Rule, the vacated 2020 Rule, and the proposed rule
1971 Rule and Practice
2020 Rule
Proposed Rule
In practice, tribes have received TAS for
section 401 by receiving TAS for water quality
standards.
Tribes without TAS are unable to participate
as a neighboring tribe under section
401(a)(2).
In practice, tribes have received TAS for
section 401 by receiving TAS for water quality
standards.
Tribes without TAS are unable to participate
as a neighboring tribe under section
401(a)(2).
Provides tribes with an option to obtain TAS
solely for section 401(a)(2) to participate as a
neighboring jurisdiction.
EPA as a Certifying Authority
Specified how/to whom EPA must provide
public notice on a certification request when
it is the certifying authority.
Limited the subject matter of a public hearing
to whether or not EPA should grant or deny a
request for certification.
Clarifies when EPA acts as the certifying
authority on behalf of a jurisdiction.
Requires EPA to provide public notice within
20 days of receiving a certification request to
parties known to be interested it the
proposed project or in the receiving waters
into which the discharge may occur.
Does not limit the scope of a public hearing
on a certification request.
Allows EPA to request additional information
from a project proponent on a request for
certification, but only if the initial request is
made within 30 days of receipt of the request
for certification.
Limits EPA's request for additional
information to only that which was within the
scope of certification, directly related to the
discharge from the proposed project and its
potential effects on receiving waters, and
able to be collected or generated in the RPT.
Clarifies when EPA acts as the certifying
authority on behalf of a jurisdiction.
Requires EPA to provide public notice within
20 days of receiving a certification request,
but enables EPA regions to determine the
best methods/means to provide public
notice.
Clarifies that EPA must provide an
opportunity for public comment after
providing notice.
Does not limit the scope of a public hearing
on a certification request.
Technical Assistance
EPA may, and upon request shall, provide
federal agencies with determinations,
definitions and interpretations with respect
to the meaning and content of federally
approved water quality standards, and
EPA may, and upon request shall, provide
federal agencies, certifying authorities, and
project proponents with relevant information
and assistance regarding the meaning of,
content of, application of, and methods to
comply with water quality requirements.
Requires EPA to provide federal agencies,
certifying authorities, and project proponents
with any relevant information on applicable
effluent limitations, or other limitations,
standards, regulations, or requirements, or
water quality criteria, and shall, when
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Table A-l. Comparison of rule provisions under the baseline 1971 Rule, the vacated 2020 Rule, and the proposed rule
1971 Rule and Practice
2020 Rule
Proposed Rule
findings with respect to the application of all
applicable water quality standards.
EPA may, and upon request shall, advise
federal agencies as to the status of
compliance by dischargers with the
conditions and requirements of applicable
water quality standards.
EPA may advise federal agencies with respect
to conditions to achieve compliance with the
CWA's purpose where there are no applicable
water quality standards.
requested by any Federal agency, certifying
authority, or project proponent, comment on
any methods to comply with such limitations,
standards, regulations, requirements, or
criteria.
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