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Federal Register / Vol. 86, No. 104 / Wednesday, June 2, 2021 / Proposed Rules
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We encourage the public to submit written feedback via https
www.regulations.gov/ or email, as there may be a delay in processing mail and faxes. Hand deliveries and couriers may be received by scheduled appointment only. For further information on EPA
Docket Center services and the current status, please visit us online at https
www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT:
Lauren Kasparek, Oceans, Wetlands and Communities Division, Office of Water 4502T, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460;
telephone number: 202 5643351;
email address: cwa401@epa.gov.
SUPPLEMENTARY INFORMATION: Clean Water Act CWA Section 401 provides states 1 and tribes 2 with a powerful tool to protect the quality of their waters from adverse impacts resulting from federally licensed or permitted projects.
Under CWA Section 401, a federal agency may not issue a license or permit to conduct any activity that may result in any discharge into navigable waters, unless the state or tribe where the discharge would originate either issues a CWA Section 401 water quality certification finding that any such discharge will comply with the applicable provisions of Sections 301, 302, 303, 306, and 307 of the CWA, or certification is waived. 33 U.S.C.
1341a1. When granting a CWA
Section 401 certification, states and tribes are directed by CWA Section 401d to include conditions, including effluent limitations and other limitations, and monitoring requirements that are necessary to assure that the applicant for a federal license or permit will comply with applicable provisions of CWA Sections 301, 302, 306, and 307, and with any other appropriate requirement of State law. Id. at 1341d.
EPA promulgated implementing regulations for water quality certification 1971 regulation 3 prior to the 1972 amendments to the Federal Water Pollution Control Act commonly known as the Clean Water Act or CWA, which created Section 401. In 2020, EPA revised these regulations found at 1 The CWA defines state as a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands. 33
U.S.C. 13623.
2 Tribes refers to tribes that have been approved for treatment in a manner similar to a State status for CWA Section 401. See 33 U.S.C. 1377e.
3 36 FR 22487, November 25, 1971, redesignated at 37 FR 21441, October 11, 1972, further redesignated at 44 FR 32899, June 7, 1979.

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40 CFR part 121. Clean Water Act Section 401 Certification Rule 401
Certification Rule, 85 FR 42210 July 13, 2020.
On January 20, 2021, President Biden signed Executive Order 13990 directing federal agencies to review rules issued in the prior four years that are, or may be, inconsistent with the policy stated in the order. Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, Executive Order 13990, 86 FR 7037
published January 25, 2021, signed January 20, 2021. The order provides that it is, therefore, the policy of my Administration to listen to the science;
to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals. Id. at 7037, Section 1. The order directs all executive departments and agencies agencies to immediately review and, as appropriate and consistent with applicable law, take action to address the promulgation of Federal regulations and other actions during the last 4 years that conflict with these important national objectives, and to immediately commence work to confront the climate crisis. Id. For any such actions identified by the agencies, the heads of agencies shall, as appropriate and consistent with applicable law, consider suspending, revising, or rescinding the agency actions. Id. at 7037, Section 2a. The 401 Certification Rule was identified for review under the Executive Order. See Fact Sheet: List of Agency Actions for Review, available at https www.whitehouse.gov/briefingroom/statements-releases/2021/01/20/
fact-sheet-list-of-agency-actions-forreview/ last visited on April 26, 2021.
EPA has completed its initial review of the 401 Certification Rule and determined that it will propose revisions to the rule through a new rulemaking effort. The agency has considered the following factors in making this determination, including but not limited to: The text of CWA
Section 401; Congressional intent and the cooperative federalism framework of CWA Section 401; concerns raised by stakeholders about the 401 Certification Rule, including implementation related
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feedback; the principles outlined in the Executive Order; and issues raised in ongoing litigation challenges to the 401
Certification Rule. As described below, the agency has identified substantial concerns with a number of provisions of the 401 Certification Rule that relate to cooperative federalism principles and CWA Section 401s goal of ensuring that states are empowered to protect their water quality.
Agencies have inherent authority to reconsider past decisions and to revise, replace, or repeal a decision to the extent permitted by law and supported by a reasoned explanation. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 2009 Fox; Motor Vehicle Manufacturers Assn of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 42 1983 State Farm. Importantly, such a revised decision need not be based upon a change of facts or circumstances. A revised decision based on a reevaluation of which policy would be better in light of the facts is well within an agencys discretion National Assn of Home Builders v.
EPA, 682 F.3d 1032, 1038 D.C. Cir.
2012 citing Fox, 556 U.S. at 51415.
EPA does not intend to replace the 401 Certification Rule with the 1971
regulation. Instead, EPA plans to reconsider and revise the 401
Certification Rule consistent with the principles outlined in the Executive Order and the agencys legal authority.
Additionally, EPA seeks to revise the rule in a manner that promotes efficiency and certainty in the certification process, that is wellinformed by stakeholder input on the 401 Certification Rules substantive and procedural components, and that is consistent with the cooperative federalism principles central to CWA
Section 401.
Questions for Consideration The issues EPA intends to reconsider include, but are not limited to, whether the rule appropriately considers cooperative federalism principles central to CWA Section 401. EPA has substantial concerns about whether portions of the rule impinge on those principles. EPA also intends to reconsider whether certain procedural components of the rule improve, or impede, the certification and licensing/
permitting processes. To assist in its development of a proposed revision, EPA is considering specific provisions of the rule for potential revision. EPA
welcomes feedback related to key issues identified during implementation of the 401 Certification Rule, including but not limited to, the following:

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