years by repeatedly reaching uncertain and unsustainable jurisdictional determinations” and another remand to the agency was clearly unwarranted. The lower court was instructed to enter judgment in favor of the Plaintiffs that the tracts in question are not WOTUS.Impact of EPA’s Revised Clean Water Act Section 401 Water Quality Certification Rules At the same time that Sackett was winding its way through the U.S. Corps of Engineers’ administrative processes, EPA was revising the Section 401 rules that govern the CWA’s 401 “certification process,” which controls the procedures by which states and Tribes can protect the water quality of their waters from adverse impacts “resulting from the construction of operation of federally licensed or permitted projects that involve any discharge into waters of the United States” in areas subject to the control of states or Tribes. The revised Section 401 rules were promulgated on September 27, 2023, and became effective on November 27, 2023. (See 88 Fed. Reg. 66558.) These rules have been challenged in the federal courts, with opponents alleging that the States will now have an obligation to evaluate the entire facility and not only its impact on water quality. Clearly, litigants are concerned that EPA believes that Section 401 is triggered by the potential for any unqualified discharge, rather than by a discharge or addition of pollutants alone. EPA states that the types of federal permits that trigger the Section 401 procedures are Section 402 NPDES permits, U.S. Army Corps of Engineers Section 404 dredge and fill permits, River and Harbors Act permits, and hydropower and pipeline permits issued by the Federal Energy Regulatory Commission (FERC).What’s Ahead in 2024 The application of Maui and Sackett in recent months confirms the rift in water jurisprudence. Given the flood of regulatory changes afoot, 2024 will prove to be another significant year for water regulation. For example, Sackett represents a significant shift of federal regulatory

On September 27, 2023, the United States Environmental Protection Agency (USEPA) published its final 2023 Clean Water Act (“CWA”) Section 401 Water Quality Certification Improvement Rule (2023 Rule), which goes into effect on November 27, 2023. (88 Fed. Reg. 66558 [Sept. 27, 2023].) The 2023 Rule claims to strengthen the authority of States, territories, and Tribes to protect water resources by increasing discretion for those entities in granting water quality certifications that precede federal permits or licenses occurring within their respective jurisdictions.Section 401 of the CWA (33 U.S.C. §1341) requires that any person applying for a federal permit or license, which may result in a discharge of pollutants into waters of the United States, must obtain a State/Tribal water quality certification that the activity authorized by the federal permit complies with all applicable water quality standards, limitations, and restrictions. Therefore, no license or permit may be issued by a federal agency until Clean Water Act section 401 certification has been granted. The USEPA first implemented regulations for water quality certification in 1971, which remained in effect until the 2020 CWA Section 401 Certification Rule (2020 Rule) was finalized. (85 Fed. Reg. 42210

-overdue final rule under TSCA Section 8(a)(7) regarding reporting and recordkeeping requirements for PFAS. 88 Fed. Reg. 70516. Data are due to EPA within 18 months of the effective date of the final rule, with an additional six months for reports from small businesses that are solely reporting data on importing PFAS contained in articles. The final rule will be effective November 13, 2023. The final rule is not what many of us expected, nor wanted. EPA appears to be indifferent to the due diligence burden, focusing almost entirely on the reporting burden. It remains to be seen if any regulated entities will challenge this final rule. For more information on the final rule, please read the full memorandum.RCRA/CERCLA/CWA/CAA/PHMSA/SDWAEPA Publishes CWA Section 401 Water Quality Certification Improvement Rule: On September 27, 2023, EPA published a final rule revising and replacing the 2020 regulatory requirements for water quality certification under Clean Water Act (CWA) Section 401. 88 Fed. Reg. 66558. EPA states that the final rule updates the existing regulations to align better with the statutory text and purpose of the CWA; to clarify, reinforce, and provide a measure of consistency with elements of Section 401 certification practice that have evolved over the more than 50 years since EPA first promulgated water quality certification regulations; and to support an efficient and predictable certification process that is consistent with the water quality protection and cooperative federalism principles central to CWA Section 401. The final rule also makes conforming amendments to the water quality certification regulations for EPA-issued National Pollutant Discharge Elimination System (NPDES) permits. The rule will be effective November 27, 2023.EPA Proposes To Amend Rule On Reclassification Of Major Sources As Area Sources Under CAA Section 112: EPA proposed on September 27, 2023, to add requirements for sources to reclassify from major source status to area source status under

ction and operation. This suggests any environmental impact from operating the project subject to the federal license or permit triggering 401 WQC may restricted as “any other appropriate requirement of State [or Tribal] law” without limitation.CONCLUSION AND RECOMMENDED ACTIONFacilities applying for or renewing NPDES permits and/or 404 fill permits may be at a disadvantage under the new regulations governing 401 WQCs. Pre-filing meetings now are not required, the WQC request is expanded, timing for a final decision is less defined, and the WQC may include restrictions or limitations on more than just the discharge of pollutants.To best prepare for the new guidelines, it is recommended facilities evaluate all potential water quality impacts (including impacts from construction projects, operation of the business, storm water runoff, and land application processes) to minimize the risk restrictions on those practices may become part of the permits necessitating a 401 WQC decision. 88 Fed. Reg. 66558 (September 27, 2023)