The EPA and Clean Water Act Authority

The U.S. Environmental Protection Agency (EPA) is seeking comments on two separate rulemakings concerning the agency’s authority under the Clean Water Act.

Section 401 of the Clean Water Act is a water quality certification program. It states that no federal permit or license can be issued that may result in a discharge into “waters of the U.S.,” unless the state or authorized tribe waives certification or confirms that the discharge is consistent with water quality requirements. When reviewing a proposed federal permit or licenses, states and authorized tribes have the following options:

  • grant the permit;
  • grant the permit with conditions;
  • deny the permit; or
  • waive their right to act.

On Aug. 22, EPA published a proposed rule to replace and modernize the existing water quality certification process. The agency is accepting comments through Oct. 21. In May, NLC urged EPA to delay the proposed rule and undergo a proper federalism consultation process. For additional background information, see the June 4 edition of the Federal Advocacy Update.

EPA recently held a webinar for state and local intergovernmental partners (a recording will be available on the EPA website soon). Additionally, EPA Administrator Andrew Wheeler recently published an op-ed on the proposed rule.

Section 404 of the Clean Water Act allows for permitted discharges of dredge and fill material. This section authorizes the Army Corps of Engineers or a delegated state or tribe to issue permits for said discharges into “waters of the U.S.” Section 404c authorizes the EPA to restrict, prohibit, deny or withdraw the use of an area as a disposal site whenever (emphasis added) the Administrator determines that the discharge will have unacceptable adverse effects on municipal water supplies, shellfish beds and fishery areas, wildlife or recreational areas.

EPA is currently in the process of developing a rule to revise the Section 404c “veto authority” procedures and regulations. The agency recently held a briefing for state and local government organizations and a webinar on the forthcoming rulemaking (a recording will be available on the EPA website soon). EPA is accepting comments on the pre-proposal through Sept. 13. Comments can be submitted to

Carolyn-Berndt-small.jpgAbout the Author: Carolyn Berndt is the program director for infrastructure and sustainability on the NLC Federal Advocacy team. Follow Carolyn on Twitter at @BerndtCarolyn.