On July 7, 2025, the Environmental Protection Agency (EPA) established a public docket (Docket ID No. EPA-HQ-OW-2025-0272) on Implementation Challenges Associated with Clean Water Act (CWA) §401. The docket initiated a series of stakeholder listening sessions and invited written feedback on “regulatory uncertainty or implementation challenges associated with the [CWA] section 401 certification process as defined in the 2023 Water Quality Certification Improvement Rule.” Written feedback was due August 6, 2025.
The docket follows EPA’s May 2025 memorandum, which clarified that States and Tribes must use CWA §401 only to protect water quality. (See https://www.epa.gov/system/files/documents/2025-05/clarification-re-application-of-cwa-401-certification_may-2025.pdf).
EPA intends to use the input to determine whether new guidance or rulemaking is necessary. “The agency specifically seeks feedback on: defining the scope of certification generally and the scope of certification conditions, defining ‘water quality requirements,’ any data or information about how the agency should consider whether a neighboring jurisdiction’s water quality may be affected by discharge for purposes of Section 401(a)(2), any data or information on establishing categorical determinations under Section 401(a)(2), any data or information on stakeholder experiences with the 2023 Rule, including certification procedures, the 401(a)(2) process, and the application of treatment in a similar manner as a state solely for Section 401, and any data or information from stakeholders about the application of the 2023 Rule’s scope of certification.”
WSWC state agencies that submitted comments included:
California State Water Resources Control Board
Idaho Department of Environmental Quality
Nevada Department of Environmental Protection
Washington Department of Ecology
Wyoming Department of Environmental Quality.