The Federal Water Pollution Control Act, commonly referred to as the Clean Water Act (CWA), is the principal federal law in the United States governing water pollution. To help achieve its goals, the statute prohibits the discharge of pollutants from any point source (e.g., a discrete conveyance such as a pipe) to waters of the United States (WOTUS) without a permit. The CWA also establishes two permitting programs that may be used to authorize certain discharges. These include the Section 402 National Pollutant Discharge Elimination System (NPDES) permitting program and the Section 404 permitting program for dredged or fill material. NPDES permits are issued by states and the U.S. Environmental Protection Agency (EPA) for discharges of pollutants from point sources, such as municipal and industrial sources. These sources include wastewater treatment facilities, municipal stormwater collection systems, and a wide variety of industrial dischargers. Section 404 permits are issued primarily by the U.S. Army Corps of Engineers (USACE) and two states (Michigan and New Jersey) for discharges of dredged or fill material. Activities that may require a Section 404 permit include pipeline projects, water resource projects, mining projects, transmission line projects, or other development projects. Separate from, but related to permitting, CWA Section 401 requires a type of approval, called a water quality certification, for any federal permit or license that may result in a discharge to WOTUS. Although Section 401 water quality certifications are not permits, they are a type of approval required for some projects to move forward and have implications for issuance of some federal permits and licenses. Examples of activities that may require a CWA Section 401 water quality certification include activities requiring a USACE-issued CWA Section 404 permit, projects requiring USACE Rivers and Harbors Act permits, hydropower projects licensed by the Federal Energy Regulatory Commission (FERC), and certificates of public convenience and necessity issued by FERC. The second Trump Administration has issued proposed regulations that, if finalized, would affect some aspects of CWA permitting and 401 certifications. EPA and USACE have issued a proposed rule and a proposed supplemental rule to update the definition of WOTUS. If finalized, the rule would likely narrow the scope of waters and wetlands considered WOTUS, and therefore subject to the CWA’s permitting programs and water quality certification requirements. EPA has also issued a proposed rule to update the Section 401 implementing regulations, which, if finalized, would likely narrow the scope of what states may consider in issuing water quality certifications, among other changes. These changes could have implications for the issuance of certain federal licenses and permits, including Section 404 permits. Many Members have shown interest in policy issues pertaining to CWA permitting—especially permitting reform—in recent Congresses. Congressional committees have held hearings that have included discussions of CWA permitting, and some Members have introduced legislation that either focuses specifically on CWA permitting or would amend CWA permitting within broader permitting reform bills. Of the over 50 bills introduced during the 119th Congress that propose to address some aspect of CWA permitting, more than half include changes to NPDES permitting, more than half include changes to Section 404 permitting, and over a quarter would make changes to Section 401 certification. A few of these bills propose changes to the scope of WOTUS. Congress’s interest in CWA permitting, as demonstrated through hearings and legislative efforts, can be grouped under a few broader policy areas: the balance of federal versus state authority for permitting-related programs and decisions; regulatory certainty; and timelines for permit issuance, particularly for certain energy, mineral, and other projects identified as being of national importance. Congress may consider proposing or supporting legislation that addresses these issues, may consider overseeing the Administration’s ongoing regulatory efforts; may consider oversight of existing permitting processes generally, or specific to certain industries or project types; or may opt not to act and leave implementation of these issues to EPA, USACE, and states.
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