401 Water Quality Certifications for federal facilities

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U.S. Supreme Court stays lower court ruling that vacated 2020 EPA rule

April 6, 2022 - The 2020 EPA Clean Water Act Section 401 Certification Rule was previously invalidated (vacated) by the U.S. District Court for the Northern District of California in October 2021. A group of states and industry groups appealed that decision to the Ninth Circuit Court of Appeals and then sought a stay from the U.S. Supreme Court pending the Ninth Circuit appeal. 

The U.S. Supreme Court granted the stay on April 6, 2022, which reinstated the 2020 EPA Clean Water Act Section 401 Certification Rule until the Ninth Circuit appeal concludes.

We are reviewing our processes to determine what modifications are needed in response to the Supreme Court ruling. Please review our main Section 401 Water Quality Certification page for the most up-to-date information.

National Pollution Discharge Elimination System (NPDES) permits address water pollution from point sources into surface waters such as rivers, lakes, and streams.

The U.S. Environmental Protection Agency (EPA) has given us authority to write NPDES permits in Washington state. However, EPA retains authority to administer NPDES permits for federal facilities and those on tribal lands.

We issue Section 401 water quality certifications for those permits once they are issued by EPA.

To view current public notices for 401 water quality certifications, please visit our public notice page.

What is a federal facility?

All federal facilities that discharge to a surface water in Washington have a responsibility to prevent water pollution and obtain a discharge permit. By definition, a federal facility is any building or structure that is owned or leased by the United States or a federal agency. Some examples of federal facilities include energy facilities, government buildings, and facilities on federal land such as fish hatcheries.

Who writes the permits?

EPA is responsible for implementing clean water regulations on federal and tribal lands. Even though EPA writes federal NPDES permits, the conditions of the permit must meet our state water quality standards and other requirements of the state water pollution control act. In many cases, Washington state standards are more protective of water quality than federal standards.

What is our role?

In order to issue 401 water quality certifications, we coordinate with EPA to ensure federal NPDES-permitted facilities are complying with our state standards. Our team works to review and authorize EPA permits according to state water quality standards and the state water pollution control act through the 401 water quality certification process.

Please see our focus sheet on the 401 NPDES process.