EPA Proposes Changes to Provide More Certainty for Clean Water Act Section 401 Water Quality Certification Review
On January 13, 2026, the U.S. Environmental Protection Agency (EPA) announced a proposed rule to revise the Clean Water Act (CWA) Section 401 water quality certification regulations (40 C.F.R. Part 121), which proposes several clarifications to enhance certainty for project applications regarding the timing and contents of applications to state certifying authorities.[1] Administrator Lee Zeldin said the proposal is intended to return Section 401 to “clear statutory boundaries” while ensuring protections are implemented “lawfully” and “efficiently.” The proposed rule would narrow the scope of Section 401 review to point source discharges, standardize what qualifies as a complete certification request and when the review clock begins, prohibit withdrawal-and-resubmittal tactics, and add transparency requirements for certification decisions and conditions.[2] The proposed rule aims to limit tactics that have become common in certain states as they attempt to gain additional time for reviewing project applications, beyond the one-year maximum provided by statute.
U.S. Army Corps of Engineers Finalizes 2026 Nationwide Permit Reissuance and Modifications
On January 8, 2026, the U.S. Army Corps of Engineers (Corps) published its final action reissuing and modifying Nationwide Permits (NWPs). This final action reissues 56 existing NWPs and issues one new NWP. The changes are modest, but include helpful clarifications for certain activities and businesses. They also include program-wide updates to certain general conditions and definitions, such as by adding “nature-based solutions,” and changes tied to recent litigation affecting certain NWPs. The new NWPs and associated conditions and definitions take effect March 15, 2026 and will expire March 15, 2031.
U.S. EPA Removes Regulatory Affirmative Defense Provision Against Alleged Violations of Oil and Gas Facility NESHAPs
On October 22, 2024, the U.S. Environmental Protection Agency (EPA) published a final rule removing an affirmative defense from Clean Air Act (CAA) National Emission Standards for Hazardous Air Pollutants (NESHAP) regulations for the Oil and Natural Gas Production Facility and Natural Gas Transmission and Storage Facility Source Categories (Final Rule).[1] Prior to the Final Rule, owners or operators could assert an affirmative defense that alleged NESHAP standard violations were caused by an equipment malfunction.[2] A “malfunction” is defined as any sudden, infrequent, and not reasonably preventable failure of air pollution control and monitoring equipment, process equipment, or a process to operate in a normal or usual manner.[3]
