Clean Water Act Section 401: Background and Issues Page: 2 of 9
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Clean Water Act Section 401: Background and Issues
Summary
Section 401 of the Clean Water Act requires that an applicant for a federal license or permit
provide a certification that any discharges from the facility will comply with the act, including
state-established water quality standard requirements. Disputes have arisen over the states'
exercise of this authority in protecting water quality. For the most part, the debate over the
Section 401 certification issue has been between states and hydropower interests. A 1994
Supreme Court decision, which upheld the states' authority in this area, dismayed development
and hydropower interest groups. The Court revisited these issues in a 2006 ruling that
unanimously upheld the authority of states to condition hydropower licenses by exercising
Section 401. The dispute between states and industry groups about Section 401 authority has been
a legislative issue on several occasions, but Congress has not modified the provision's scope.
In addition, there has been interest in clarifying whether Section 401 certification applies to
nonpoint source discharges, such as rainfall runoff, as well as point source discharges from pipes
or ditches. This question was raised in lawsuits in Oregon, where a federal court ruled in 1998
and again in 2008 that Section 401 does not apply to nonpoint source discharges. Still, some
interests continue to favor a broad reading of 401 that would apply to both nonpoint and point
sources of pollutant discharges.Congressional Research Service
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Copeland, Claudia. Clean Water Act Section 401: Background and Issues, report, December 12, 2012; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc821497/m1/2/: accessed April 24, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.