• Comment Deadline: February 17, 2026, via the Federal eRulemaking Portal, email (OW-Docket@epa.gov), or mail. Comments must be submitted in writing and identified with Docket ID No. EPA‑HQ‑OW‑2025‑2929.
• Adoption: Expected in Spring 2026 (subject to comments received).

On January 13, 2026, the United States Environmental Protection Agency (EPA) announced a proposed rule, to be codified as 40 C.F.R. Part 121, “Updating the Water Quality Certification Regulations,” that proposes to narrow the scope of state and tribal review under Section 401 of the federal Clean Water Act (CWA), 33 U.S.C. § 1341, and tighten timelines intended to expedite federal permitting (Proposed Rule).

What is CWA Section 401?

CWA Section 401 specifies that a federal permit or license for any activity that may result in a discharge to waters of the United States (WOTUS) cannot issue unless the state or authorized tribe where the discharge will occur certifies that the discharge will comply with CWA Sections 301, 302, 303, 306, and 307, which includes prescribed effluent limitations, or the state or authorized tribe waives certification. Section 401 requires states and tribes to act on certification requests “within a reasonable period of time (which shall not to exceed one year) after receipt” of the request. The certifying authority must decide to grant, grant with conditions, or deny the certification. Major federal licenses and permits subject to CWA Section 401 certification include:

• CWA Section 402 NPDES permits issued by EPA in jurisdictions where the EPA administers the NPDES permitting program.
• CWA Section 404 permits for the discharge of dredged or fill material issued by the Army Corps of Engineers (Corps).
• Bridge permits issued by the Coast Guard under the General Bridge Act of 1946.
• Hydropower and interstate natural gas pipeline licenses issued by the Federal Energy Regulatory Commission (FERC).
• Rivers and Harbors Act Sections 9 and 10 permits issued by the Corps.

Key Takeaways of Proposed Rule & Impacts on States and Tribes

EPA frames the proposed changes as restoring “clear statutory boundaries” and streamlining permitting for nationally important infrastructure while protecting water quality.

• Rule Reversal: The Proposed Rule would reverse many of the changes made during the Biden Administration in 2023 and return major elements of the rule adopted during the first Trump Administration in 2020.
• Narrowed Authority: The scope of a CWA Section 401 certification and any imposed conditions are limited to point source discharges to WOTUS, disavowing the 2023 rule’s “activity as a whole” approach and limiting broader project‑level conditions that States have used in the past. This item is likely to generate substantial comment.
• Predictable Timelines: The Proposed Rule removes the option for the certifying authority to unilaterally extend the “reasonable period,” and curbs tools previously used by certifying authorities to extend the one‑year issuance period (e.g., withdraw‑and‑resubmit practices), aiming to accelerate decisions for linear energy and infrastructure projects.
• Standardized Applications: EPA proposes a fixed content list needed for all certification requests, which may reduce back‑and‑forth with certifying authorities, but also limits states’ ability to require additional information at the intake stage.
• Mutually Agreed Upon Modifications: The Proposed Rule requires all modifications to certification decisions and conditions to be approved by both the applicant and the federal permitting agency.
• Timely Action on Objections: The Proposed Rule requires the federal permitting agency to act on another state’s objection to a certification within ninety (90) days, and allows EPA to make either categorical or case-by-case determinations regarding whether the discharge may affect another state’s waters.
• Policy Alignment: States and tribes may need to revise Section 401 policies, forms, and guidance, and federal agencies will need to align permit processes with updated Section 401 triggers and timelines.

Conclusion and Next Steps

Regulated entities, project developers, and other interested parties should evaluate whether to suggest further adjustments to streamline the CWA Section 401 certification process by the comment deadline of February 17, 2026. If the Proposed Rule is adopted, we recommend tracking whether litigation is filed, and what effect, if any, such litigation has on implementation (e.g., if an injunction is issued). Ultimately, regulated entities should consider the impacts of the changes on current and future certification applications, and evaluate opportunities to conform certifications to the updated scope and procedures.