In an important recent development, the Environmental Protection Agency (EPA) announced on September 14, 2023, its final Clean Water Act (CWA) Section 401 Water Quality Certification Improvement Rule. This new rule significantly expands the powers of states and tribal authorities in environmental regulation.
Before this legislation, a federal agency might veto the issuance of a license or permit for activities that could potentially lead to the discharge into the waters of the United States, regardless of the state or tribe’s position on the issue. However, the improved rule dictates that without a CWA Section 401 water quality certification issued by a state or authorized tribal entity, no federal agency can act in such a way.
The expansion of power and autonomy into the hands of State or Tribe is a notable shift in the regulatory landscape. It allows more area-specific, grounded, and resultant action in defending and enhancing water quality. This appears to be an effective move towards more efficient and localized environmental regulatory efforts.
This shift in federal policy is indicative of a broader trend towards devolved authority and environmental management, pushing greater responsibility to state and tribal entities. It is a trend that has potentially far-reaching implications for corporations and legal professionals working in the environmental domain, increasing state and tribal sway on water quality matters.
To get further details about these new rules and the implications for state authorities, tribes and other stakeholders, refer to “State and Tribal Powers Expanded Under the EPA’s New CWA Section 401 Rule“, an analysis by Reed Smith.