The Environmental Protection Agency (EPA) is seeking public input on revising part of the Clean Water Act (CWA) that Jessica Kramer, EPA assistant administrator of the Office of Water says is necessary to ensure the CWA is being implemented “without weaponizing” it against beneficial infrastructure projects.

The part of the CWA the EPA plans to accept comments on is Section 401, which requires applicants for federal licenses or permits that allow discharges into “waters of the United States” to first obtain certification from a state or an authorized tribe in order to ensure that such discharges will comply with water quality standards. Under Section 401, states and authorized tribes are empowered to play important roles in protecting their water resources from the effects of federally regulated activities. 

In an announcement issued July 1, 2025, the EPA said it planed to create a docket for comments, as well as hosting listening sessions on revising Section 401—which is also known as the “Water Quality Certification” provision—of the CWA.

On July 7, 2025, the EPA announced in a Federal Register notice entitled “Establishment of Public Docket and Listening Sessions on Implementation Challenges Associated With Clean Water Act Section 401” that the docket for comments is operational and the deadline to file written comments on CWA Section 401 is Aug. 6, 2025.

In addition to accepting public comments through the docket, the EPA says it will host two webinar-based listening sessions to solicit feedback from stakeholders. However, as of press time, no information on listening sessions was available. The EPA does say information on the listening session dates, times, and registration instructions will be made available at a later date on the EPA’s CW-401 website.

Individuals or organizations wanting to provide verbal input during a listening session will need to pre-register. Due to the expected number of participants, individuals will be asked to limit their oral presentation to three minutes. Supporting materials and written comments from those who do not have an opportunity to speak may be submitted to the docket, the EPA says.

Congress established the water quality certification requirement in Section 21 of the Water Quality Improvement Act of 1970, and in 1971 the EPA promulgated regulations for implementation of the water quality certification requirement, according to the agency. Furthermore in 1972, Congress enacted CWA Section 401 as amendments to the Federal Water Pollution Control Act.

In 2020, the EPA amended its regulations regarding water quality certification for the first time since enactment of CWA Section 401 and in September 2023 the EPA promulgated revisions to the 2020 rule with the 2020 rule and 2023 rule differing on several issues, including the scope of water quality certification.

The “scope” of certification refers to the extent of a certifying state’s or authorized tribe’s analysis when those entities evaluate a request for certification to determine whether it will deny certification, waive certification, or grant certification, including any conditions a state or tribe might require in a grant of certification, the EPA says.

The 2023 rule says when a certifying authority reviews a request for certification, the certifying authority “shall evaluate whether the activity will comply with applicable water quality requirements.” Furthermore, the 2023 rule broadly defines “water quality requirements” as “any limitation, standard or other requirement under Sections 301, 302, 303, 306, and 307” of the CWA, as well as “any federal and state or tribal laws or regulations implementing those sections, and any other water quality-related requirement of state or tribal law.”

The 2023 rule further provides that the certifying authority’s evaluation of a request for certification is “limited to the water quality-related impacts from the activity subject to the federal license or permit, including the activity’s construction and operation.” Finally, it provides that a certifying authority “shall include any conditions in a grant of certification necessary to assure that the activity will comply with applicable water quality requirements.”

The EPA says “some stakeholders have raised questions about applications of the 2023 rule’s scope of certification.” As a result of those concerns, the EPA issued a memorandum titled: “Clarification regarding Application of Clean Water Act Section 401 Certification” to reiterate the EPA’s position that states and tribes must utilize CWA Section 401 “only for its statutory purpose—to protect water quality.”

As noted, the EPA seeks input from states, tribes, project proponents, and the public regarding any regulatory uncertainty and implementation challenges related to the 2023 Rule. The agency says it intends to use input received through the listening sessions and the recommendations docket to inform future guidance or rulemaking efforts to address regulatory uncertainty or implementation challenges.

To assist the EPA in addressing implementation challenges and regulatory uncertainty related to the 2023 Rule’s scope of certification as well as in considering experiences related to CWA Section 401 implementation, the Agency is seeking input on several issues including:

1. Defining the Scope of Certification Generally and the Scope of Certification Conditions: The rule defines the scope of certification under CWA Section 401 as both the scope of certification review and the scope of certification conditions, which are to be used to “evaluate whether the activity will comply with applicable water quality requirements.” However, part of CWA Section 401 “refers specifically” to “discharge into the navigable waters” and requires that “such discharge will comply with the applicable provisions of Sections 301, 302, 306, and 307” of the CWA.

Therefore, the EPA is seeking stakeholder input on the 2023 Rule’s interpretation of the scope of certification and certification conditions, including but not limited to, the legal rationale for interpreting scope as applicable to the “discharge” versus the “activity” and whether the EPA should clarify or revise its interpretation of scope of certification.

The EPA also seeks input on whether justification is necessary to demonstrate that certification conditions included in a certification decision are within the appropriate scope, and whether further clarification is needed on the waters considered in acting on a request for certification, also known as applicable waters. EPA encourages submission of any examples of specific legal vulnerabilities, implementation challenges, or regulatory uncertainty related to the 2023 Rule.

2. Water quality requirements: The rule defines “water quality requirements,” as ‘‘any limitation, standard, or other requirement under Sections 301, 302, 303, 306, and 307 of the Clean Water Act, any federal and state or tribal laws or regulations implementing those sections, and any other water quality-related requirement of state or tribal law.” The EPA is seeking stakeholder input on the definition of “water quality requirements” including, but not limited to, whether the EPA should further clarify or revise its interpretation of the statutory phrase “other appropriate requirements of state law” from CWA section 401; whether the EPA should clarify or revise the definition of “water quality requirements,” and any legal rationale for such clarifications or revisions.

3. Neighboring Jurisdictions. The EPA seeks data or information from stakeholders about how the agency should consider whether a neighboring jurisdiction’s water quality may be affected by discharges in relation to Section 401 and whether there are parameters to consider in making that determination.

4. Categorical Determinations under Section 401: The EPA requests information or data from stakeholders on whether there are specific types of activities, geographic regions, types of water bodies, or other types of circumstances, etc., which may support the EPA establishing a categorical determination that the quality of no neighboring jurisdiction’s waters may be affected by discharges in such circumstances.

5. Stakeholder Input on 401 Certification Experiences: The EPA seeks information and data from stakeholders on their experiences with the 2023 Rule, including certification procedures, the Section 401 process, and the application of treatment in a similar manner as a state solely for Section 401, in particular related to areas where challenges were identified; areas for improvement; areas for increased transparency; areas of positive engagement; and best practices or lessons learned from the stakeholder perspective that might assist the EPA in identifying areas that simplify certification procedures or improve agency business processes.

6. Data and Other Information: The EPA requests data or information from stakeholders about the application of the 2023 Rule’s scope of certification, including but not limited to, examples of certification decisions issued under the 2023 Rule that are believed to exceed the 2023 Rule’s scope of certification.

The EPA says it will use the input received to determine next steps to address identified areas of regulatory uncertainty or implementation challenges regarding the scope of certification, which Kramer, in a written statement, said requires “rejecting the false, binary choice between environmental protection and economic and energy development,” and is “central to the powering the great American comeback.”

Furthermore, on Feb. 4, 2025, EPA Administrator Lee Zeldin announced that the EPA is “powering the great American comeback initiative,” which is a slogan associated with the environmental and economic policies of the Trump administration that says the U.S. will return to prosperity by emphasizing deregulation, particularly in the energy and manufacturing sectors, and aims to foster U.S. dominance in artificial intelligence and auto manufacturing.

Therefore, it is EPA’s “responsibility to guarantee Clean Water Act Section 401 is only being used for its statutory purpose, to ensure permitted projects protect water quality while delivering real prosperity for all Americans,” Kramer said. “It is critical that EPA meets its statutory requirements without weaponizing them against beneficial infrastructure projects,” she said.

While Kramer says the action is to protect “infrastructure projects” from possible “weaponizing” of CWA Section 401, a House Republican leader said he does not agree with the claim made that the CWA has been weaponized by environmental groups opposed to development projects.

Following a hearing on Feb. 11, 2025, Subcommittee on Water Resources and Environment Acting Chairman Brad Knott (N.C.) told The Driller he “wouldn't use the term weaponized” to describe how the CWA is being used by those groups. “I wouldn't say (the CWA was) weaponized, but I think there’s people who are just naturally against some of these projects,” he said.

The deadline to file written comments on CWA Section 401 is on or before Aug. 6, 2025, and all submissions must include the Docket ID No. EPA–HQ–OW–2025–0272, and can be filed by any of the following methods:

Federal eRulemaking Portal: https://www.regulations.gov.

Follow the online instructions for submitting comments.

Email: The address to send email comments is OW-Docket@epa.gov, and include Docket ID No. EPA–HQ–OW–2025–0272 in the subject line of the message.

Comments received may be posted without change to https://www.regulations.gov, including any business and personal information provided. For detailed instructions on sending written recommendations and additional information on the forthcoming listening sessions, see the “Supplementary Information” section of the Federal Register notice.

For further information, contact Lauren Kasparek, Oceans, Wetlands and Communities Division, Office of Water (4502–T), EPA, 1200 Pennsylvania Ave., NW, Washington, D.C. 20460; or by calling (202)–564–3351; or by sending an email to cwa401@epa.gov.

Click to read the original announcement: “EPA to open public docket and host listening sessions on Clean Water Act Section 401 implementation challenges.”