The United States Environmental Protection Agency (USEPA) has finalized its 2023 Clean Water Act (CWA) Section 401 Water Quality Certification Improvement Rule, which becomes effective on November 27, 2023. As published in the Federal Register on September 27, 2023, the new rule purports to bolster the potency of states, territories, and tribes in safeguarding water resources. The key mechanism through which this is achieved is by increasing the discretion of these entities in granting water quality certifications.
Traditionally, Section 401 of the CWA provides states and authorized tribes an important tool to manage local water quality. The clean water certification process ensures that any federal license or permit applicant whose proposed construction activity may result in the discharge of pollutants must first seek and obtain certification from the relevant state or tribal agency. This process acts as a control mechanism, preventing any projects from bypassing state or tribal reviews and enforcing local water quality standards and regulations.
The 2023 Rule represents a significant amplification of this authorization. It confines the federal oversight to a bare minimum and entrusts maximum authority in state hands. While in principle, this added discretion is expected to boost water quality management efforts, there could be tangible challenges in the practical context. The onus is now on legal professionals to reconfigure their strategic perspectives towards water-related projects to consider the enhanced role of local governmental bodies.
With this in mind, corporate legal teams and legal firms should pivot in their approach towards water-related projects. This proactive adaptation, while challenging, will help ensure compliance with the new regulations and mitigate potential risks associated with non-compliance.
A detailed reading of the 2023 Rule can be accessed here. As legal professionals, staying updated on these regulatory shifts is critical in navigating the ever-evolving legal landscape.