Proposed Revisions to Clean Water Act Section 401 Could Narrow State and Tribal Review

On January 13, 2026, the U.S. Environmental Protection Agency (EPA) announced proposed revisions to the existing Clean Water Act (CWA) Section 401 Water Quality Certification regulations that could narrow the scope of state and tribal review. The proposed rule—which is assumed will become known as the 2026 CWA Section 401 Certification Rule—was published to the Federal Register on January 15, 2026, and is open to public comment until February 17, 2026.

Revisions to the 401 Certification Rule

In 2020, the “401 Certification Rule,” Code of Federal Regulations (CFR) Section 121, established procedural changes to the process of obtaining a water quality certification from a “certifying authority,” such as a State or Tribe. Notably, the 2020 401 Certification Rule requires pre-filing meeting requests, specific application content, and timelines to act on an application. The 2020 401 Certification Rule has since undergone changes to its implementation guidance and even to the rule itself (refer to the graphic below).

In November 2023, the EPA published the CWA Section 401 Water Quality Certification Improvement Rule (2023 CWA Section 401 Certification Rule), which included an emphasis on water quality-related impacts, specified changes to the certifying authorities’ purview, established the right for Tribes to act as a certifying authority to issue certifications without the EPA, and refined procedural changes to the 2020 401 Certification Rule revisions, including but not limited to the requirement for pre-filing meeting requests, components of a request, and timelines that certifying authorities could act on a request.

What’s New in 2026?

The proposed 2026 CWA Section 401 Certification Rule includes some notable changes to the existing 2023 CWA Section 401 Certification Rule:

_{Source: https://www.epa.gov/system/files/documents/2026-01/cwa401_proposed-rule_public-meeting-overview_jan2026_0.pdf}

What Could This Mean for Permitting?

Although the full effect of these proposed changes on the current permitting landscape is not yet apparent, the 2026 CWA Section 401 Certification Rule, in its current form, would broadly limit State and tribal authority under Section 401 of the CWA. The changes to “Scope of Certification, Request for Certification, and TAS” are significant. States that lack another mechanism to permit dredge or fill discharges to state waters, would be more limited with respect to evaluating a project’s overall impacts and requesting additional information. And Tribes will have to rely once again on the EPA to act on certification requests.

Once codified in the Federal Register, the full effect of the 2026 CWA Section 401 Certification Rule will become clearer as implementation guidance rolls out. However, states like California and Florida that have a separate permitting authority (via the Porter-Cologne Act in California and the Warren S. Henderson Wetlands Protection Act in Florida, respectively) for projects that require certification under Section 401 of the CWA will have to grapple with the revisions. These changes could affect both the scope of review and the ability to request additional information for requests for certification, which were previously treated as a single application, for both wetlands protection and Section 401 of the CWA requirements.

What Could This Mean For Projects?

On a project level, the 2026 CWA Section 401 Certification Rule could lead to quicker turnaround times to obtain a Section 401 certification broadly. Different segments of the country are likely to see mixed results. When the 401 Certification Rule was first established, the initial messaging from regulators in parts of California was that obtaining a Section 401 certification would be slowed down as applications would be denied on a more frequent basis. The reality is that some applications were slowed down, but many were also sped up. The proposed language to the Scope of Certification and Request for Certification may make the ability to deny applications more onerous for the States and Tribes.

ESA is actively monitoring the dynamic policy landscape and is here to advise and support our clients as we adapt to changing processes and priorities. Do you have questions about your project and want to speak with an ESA permitting expert? Reach out to Daniel Swenson and be sure to subscribe to our newsletter for timely regulatory updates.