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Modernizing the implementing regulations of the Clean Water Act is a key part of comprehensive permitting reform, and it should be a priority for the administration, the NAM told the Environmental Protection Agency this week.

What’s going on: Complex certification requirements under Section 401 of the CWA have “‘posed challenges in instances when certifying authorities exceed the scope of their statutory mandate,’ which has ‘impeded interstate commerce, to the detriment of energy development and manufacturing competitiveness,’” the NAM said on Tuesday, quoting comments it made to the administration last August.

• The NAM’s remarks to the EPA this week were made in response to a proposal by the agency to update the water quality certification regulations of the CWA’s Section 401.
• “The NAM has long called for comprehensive permitting reform, inclusive of regulatory and legislative actions, to drive the growth and competitiveness of manufacturing in the U.S.,” it said on Tuesday.

The back story: In 2020, the EPA issued a rule to clarify Section 401, but in 2021, it said it would revise that rule. In 2023, it did so, partly reversing its previous rule.

What should be done: Manufacturers need regulatory certainty to make the business decisions that make manufacturing in the U.S. thrive, the NAM continued. To create that certainty with regard to the CWA Section 401, Congress should:

• Limit the scope of certification reviews to line up with statutory authority;
• “[R]equire certification conditions to cite the specific applicable water quality requirement”;
• Standardize the contents of certification requests;
• Reinforce the statutory one-year maximum for action on a certification request;
• Clarify procedures for modifying an issued Section 401 water quality certification; and
• Establish a 90-day deadline for federal agencies to act on neighboring states’ objections to proposed certifications.

The last word: “Manufacturers strongly support a return to appropriately scoped and timed certifications that provide certainty and predictability to manufacturers while reflecting the appropriate balance between federal and state authorities, as Congress intended,” NAM Vice President of Domestic Policy Chris Phalen said.