EPA Proposes New Clean Water Act Section 401 Rule

On Monday the U.S. Environmental Protection Agency announced it would pursue a new rulemaking that “would return Clean Water Act Section 401 to its proper statutory purpose.” The rulemaking was published in today’s Federal Register and the Public Comment window is now open.

The EPA under the current administration declared its intentions on May 21, 2025, clarifying its position that Section 401 “is limited to addressing only water quality-related impacts.” That memo continued the federal government’s pendulum swing on 401 purview. The Biden Administration promulgated the 2023 Clean Water Act Section 401 Certification rule that allowed states and tribes to consider the larger “activity” and not just the “discharge” into regulated waters. Before that the first Trump Administration amended the 401 regulations to encourage states and tribes to focus on water quality issues.

Wetland Studies and Solutions, Inc. (WSSI) will be monitoring the rulemaking process that began with today’s publication and will share updates in Field Notes and LinkedIn.

What Are Clean Water Act Section 401 Certifications?

Clean Water Act Section 401 gives states and federally-recognized Tribes the authority to protect the quality of federally-regulated waters within their borders. That means the federal government cannot issue a permit for an activity that will discharge into Waters of the U.S. without the state or Tribe of jurisdiction either issuing a Section 401 water quality certification or waiving that option.

Many WSSI clients seek permit authorizations for impacts to Waters of the U.S. under Clean Water Act Sections 404 and 401. Licenses for natural gas pipelines and hydropower facilities from the Federal Energy Regulatory Commission also require Section 401 certification.

Public Comment

The EPA is accepting comments from the public on or before February 17, 2026, and requires all comments be identified with Docket ID No. EPA– HQ–OW–2025–2929.

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

1. Email to:[email protected]
   and include Docket ID No. EPA–HQ–OW–2025–2929 in the subject line of the message.
2. Mail to:U.S. Environmental Protection Agency
   1200 Pennsylvania Avenue NW
   Washington, DC 20460
3. Hand Delivery/Courier to:EPA Docket Center, WJC West Building, Room 3334
   1301, Constitution Avenue NW
   Washington, DC 20004

How Does This Impact My Projects?

We will provide updates in Field Notes as this process unfolds. You can also can contact your WSSI project manager or the staff listed below.

Resources

1. 1. EPA News Release: EPA Proposes CWA Section 401 Rule to Streamline Permitting, Unleash Economic Growth, and Protect America’s Waterways, January 13, 2026
   2. “Updating the Water Quality Certification Regulations,” Federal Register, Vol. 91, No. 10, January 15, 2026
   3. U.S. EPA Acting Assistant Administrator Peggy S. Brown’s May 21, 2025 memo: Clarification regarding the Application of Clean Water Act Section 401 Certification