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WASHINGTON – Today, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army issued a joint memorandum regarding implementation of the 2020 Clean Water Act (CWA) Section 401 Certification Rule associated with U.S. Army Corps of Engineers (Corps) permits. EPA and Army are closely coordinating to address challenges and better empower states and Tribes to protect public health and the environment.
“While EPA moves expeditiously to revise the 2020 rule, it is essential that the agencies address pressing implementation challenges that have been raised by our co-regulators,” said Assistant Administrator for EPA’s Office of Water Radhika Fox. “Today’s action provides guidance to maximize flexibilities and support the authority of states and Tribes to protect their waters.”
“Today’s joint memorandum demonstrates another area where EPA and Army are working closely together to listen to our co-regulators under the Clean Water Act,” said Acting Assistant Secretary of the Army for Civil Works Jaime A. Pinkham. “We believe today’s action will ensure improved implementation of the 401 certification process as it relates to U.S. Army Corps of Engineers issued authorizations to provide the maximum flexibility for states and Tribes to best govern their water resources.”
On May 27, 2021, EPA announced its intent to revise the CWA Section 401 Certification Rule to strengthen the authority of states and Tribes to protect their vital water resources. While the rulemaking effort is underway, today’s joint memorandum provides direction to the Corps related to implementation of the 2020 rule. The joint memorandum directs the Corps to provide the maximum amount of time allowed before finalizing 41 Nationwide Permits (NWPs) that were proposed in September 2020 and have not yet been finalized. The joint memorandum also addresses multiple implementation challenges with the 2020 Rule associated with Corps-issued permits, including by directing the Corps to work collaboratively with states and Tribes to:
- Identify factors and circumstances that warrant extending the reasonable period of time.
- Resolve procedural deficiencies within the reasonable period of time.
- Identify and address circumstances that may appropriately require permit modifications.
“We appreciate this important and timely step forward by EPA and the Army Corps of Engineers for clean water and states’ rights,” said Ben Grumbles, Maryland Secretary of the Environment.
“We appreciate our federal partners working with us and other states to find a path forward,” said Laura Watson, Director of the Washington State Department of Ecology. “There is more work to do, but when we work together, we can efficiently review projects that bolster economic activity and protect the environment.”
CWA Section 401 provides states and Tribes with a powerful tool to protect the quality of their waters from adverse impacts resulting from federally licensed or permitted projects. Under CWA Section 401, a federal agency may not issue a license or permit to conduct any discharge into navigable waters, unless the state or Tribe where the discharge would originate either issues a CWA Section 401 water quality certification finding “that any such discharge will comply with the applicable provisions of Section 301, 302, 303, 306, and 307” of the CWA, or certification is waived.
Executive Order 13990 on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis directed EPA to review and, as appropriate and consistent with applicable law, take action to revise or replace the 2020 Section 401 Certification Rule. Prior to the 2020 rule, EPA promulgated implementing regulations for water quality certification before the 1972 amendments to the Federal Water Pollution Control Act (commonly known as the Clean Water Act), which created section 401.
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