Western States Water Council

A Voice for Water in the West 


Testimony: Clean Water Act §401 State Certifications

On August 16, 2018, the Senate Environment and Public Works Committee held a hearing on S. 3303, the Water Quality Certification Improvement Act of 2018. Chair John Barrasso introduced the bill on July 31, in response to perceived abuses by some States of their certification authority. The Clean Water Act (CWA) Section 401 requires that States certify within one year that any proposed project or activity requiring federal permit or license will comply with Sections 301, 301, 303, 306 and 307 and any related State water quality requirements, including but not limited to State designated uses, water quality standards or Total Maximum Daily Loads and minimum flow requirements. S. 3303 would strike existing language assuring that “applicable effluent limitations or other limitations or other applicable water quality requirements will not be violated,” and replace it with “any discharge made by the applicant into the navigable waters as described in paragraph (1) will not violate the applicable provisions of section 301, 302, 303, 306, and 307.” The intent is to limit review only to water quality considerations directly related to discharges by the applicant’s project or activity.

WSWC Executive Director Tony Willardson testified at the hearing. He emphasized the WSWC’s support for streamlining regulations, but questioned the impact of S. 3303 on States and their ability to mandate and control minimum by pass flows for private hydropower projects to protect minimum instreamflows, water quality and aquatic species. He also outlined a 2014 WSWC survey that concluded most certifications are issues or waived within 40-90 days (the CWA allows up to one year). Most delays are related to incomplete applications, failure to provide required information, and substantive changes to project plans.

The written testimony and letter on behalf of the Council may be accessed at the following links:

August 2018 Willardson WSWC Testimony on State CWA 401 Authority
Letter to Senate ENR and EPW Committees Re 401 Testimony
Supplemental Questions for the Record

Western Governors’ Association Coalition Letter