On February 17, the WSWC submitted comments on the proposed rule, “Updating the Water Quality
Certification Regulations,” urging the Environmental Protection Agency (EPA) to respect state primacy and cooperative federalism in implementing §401 of the Clean Water Act (CWA). WSWC emphasized that §401 reflects Congress’s intent to recognize states as primary authorities in protecting water quality within their borders, citing CWA §§101(b), 101(g), and 401.
The Council underscored that states serve as co-regulators with the federal government. The final rule must support state certification processes and retain appropriate deference to the diversity of state frameworks. EPA should avoid revisions that increase administrative burdens or force unnecessary denials due to missing information. WSWC supported a balanced approach to §401 that streamlines permitting for critical mineral, energy, infrastructure, and development projects while preserving §401’s core function as a state-led water quality safeguard. WSWC encouraged EPA to work collaboratively with states to improve interagency coordination, reduce duplication, and support timely project completion without weakening water quality protections.
On the scope of certification, WSWC acknowledged the importance of clear statutory boundaries and
cautioned against using §401 to regulate matters beyond water quality requirements. At the same time, the Council warned that the final rule should not unintentionally constrain states from addressing water quality impacts that are integral to a project’s compliance with state standards. EPA sought comment on whether “water quality requirements” should be limited to numeric water quality criteria. WSWC emphasized that state water quality standards include designated uses, narrative and numeric criteria, and antidegradation requirements.
The Council stressed that states must retain flexibility to apply the full range of their standards. EPA should defer to state expertise and consultation in understanding the full range of water quality management practices implemented by states. SWC highlighted the importance of allowing states to modify certifications when new or changed information arises during a project’s lifecycle. The Council expressed concern that elements of the proposed rule could create a de facto federal veto over state modifications and urged EPA to consult closely with states in designing any modification process to ensure state authority is preserved.
To read the full letter, click the link below.