PCEC's Public Comment on Proposed Clean Water Act Section 401 Certification Rule
To: Lee Zeldin, Administrator, U.S. Environmental Protection Agency
Jessica Kramer, Assistant Administrator for Water, U.S. Environmental Protection Agency
Adam Telle, Assistant Secretary of the Army for Civil Works
We are submitting this comment on behalf of the Park County Environmental Council (PCEC), our 500+ members, and 2,400 supporters. PCEC is a grassroots conservation group serving Park County, Montana, since 1990. Our members include local fly-fishing guides, agricultural producers, municipal water users, and business owners who rely on the biological and chemical integrity of the Greater Yellowstone Ecosystem (GYE).
PCEC opposes the proposed 2026 Clean Water Act Section 401 rule change and advocates for maintaining the current standard without modification.
The core mission of the Clean Water Act (CWA) is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." The proposed 2026 rule fundamentally undermines this mission by stripping states of the authority Congress explicitly granted them under Section 401. This means less local control over federal permits for mining, pipelines, and large-scale water diversions that directly impact our communities.
The proposed rule abandons "Cooperative Federalism" in favor of federal overreach. It transforms a state's right to protect its citizens into a "check-the-box" exercise for industry. By narrowing the scope to "point source discharge" only, the Environmental Protection Agency (EPA) is knowingly creating a legal pathway for the degradation of our local drinking water and the economic lifeblood of our river-dependent communities.
I. Certification Review Scope (40 CFR 121.3 and 121.1(f)). EPA is requesting comment on:
Whether to limit the scope of review from the entire "activity" to only point source discharges into WOTUS
Whether to limit "water quality requirements" (40 CFR 121.1(f)) exclusively to numeric water quality criteria
Alternative interpretation of "other appropriate requirement of State law" as referring only to monitoring requirements based on statutory punctuation in Section 401(d)
We oppose narrowing the review scope to "point source discharge only." This restriction directly contradicts binding Supreme Court precedent established in PUD No. 1 of Jefferson County v. Washington Department of Ecology (1994), which explicitly ruled that states can condition an entire activity to protect water quality, not just the discharge itself. The EPA attempted this same legally flawed "discharge-only" approach in 2020, and a federal court vacated that rule in 2021, finding it "antithetical" to PUD No. 1's binding precedent.
Under the current standard, states have the authority to review the entire project's impact on water quality to ensure the watershed is protected as a whole. The proposed change ignores nonpoint source pollution—a leading water quality concern. Water picks up contaminants (grease, pesticides, oil, fertilizer, road salt) as it flows over and through the ground. Development increases impervious surfaces that prevent water infiltration, allowing contaminants to be transported directly to waterways. If certifying authorities can only assess "point source discharge," they cannot evaluate these nonpoint source concerns, creating a massive blind spot for water protection.
This creates real-world consequences: construction runoff, erosion, habitat destruction, and sediment loads don't flow through a single identifiable pipe, but they destroy biological integrity regardless. For example, the diesel plume contaminating Livingston's drinking water moves through aquifers and into surface waters without passing through a discrete pipe—under the proposed rule, Montana would be prohibited from intervening under Section 401.
We oppose limiting "water quality requirements" to numeric criteria only. During Montana's 2025 Legislative Session, the Montana Legislature passed House Bill 664, which repealed numeric nutrient standards for Montana waters. The proposed federal rule now seeks to eliminate the use of narrative standards in Section 401 certifications. These two changes in tandem strip Montana of any enforceable legal mechanism to protect its waters from nutrient pollution and biological degradation.
Narrative standards (such as "waters shall be free from excessive suspended sediments" or "waters shall support the growth and propagation of salmonid fishes") are essential tools that allow states to protect the actual biological health of their waters, not just chemical benchmarks. A project may meet numeric mercury standards while physically destroying a trout-spawning bed, warming a river beyond thermal tolerance for native species, or covering a streambed with fine sediment that smothers aquatic insects.
For Park County's economy, this is not theoretical. The Yellowstone River system supports approximately $500 million in annual tourism revenue built on world-class trout fisheries and river recreation. Numeric standards alone cannot protect the complex ecological conditions (substrate composition, temperature regimes, food web integrity) that sustain these fisheries and the livelihoods dependent on them.
We oppose the alternative interpretation limiting "other appropriate requirements of State law" to monitoring only. Montana's lack of robust water quality requirements would leave residents without federal oversight to protect citizens' right to a clean and healthful environment. We advocate for "no change" to the current standard of the Clean Water Act, which requires the protection of designated uses: fishing, swimming, drinking water, and aquatic life support.
II. Request for Certification & Timelines (40 CFR 121.5(c)) EPA is requesting comment on:
Whether the proposed definition of "discharge" (40 CFR 121.1(c)) is necessary or if existing regulations provide sufficient clarity
Removal of state/tribal authority to define additional required contents for certification requests (currently at 40 CFR 121.5(c))
Whether Section 401 should extend to general permits where there is no formal "applicant"
We oppose the standardized list of required documents at 40 CFR 121.5(c) that constitutes a complete certification request and prohibits certifying authorities from amending this list. The proposed rule would "define one list of contents needed for all certification requests in order to begin review for a project," limiting state and Tribal authority. This "one-size-fits-all" federal checklist ignores project-specific complexity and the diverse hydrologic, ecological, and geographic contexts across states.
Under the current standard, states and Tribes (through "Treatment as a State" [TAS]) have the authority to request project-specific information necessary to evaluate water quality impacts and determine what information is needed to make an informed decision. The review clock doesn't start until the authority has all material necessary for thorough analysis. States can require specific data, such as groundwater studies, fish habitat assessments, or seasonal flow data, before the official review begins. Under the proposed rule, states must follow a federal list and are prohibited from requiring additional studies to fill critical information gaps.
The rule's strict one-year deadlines function as a "forced waiver" mechanism. These timelines are unrealistic for state engagement and will lead to polluted waters. Complex projects such as large-scale pipelines, mines, or water diversions require more than a year of study to understand their impacts on local aquifers, seasonal flow regimes, and sensitive species. By barring states from establishing "completeness" criteria before the clock starts, EPA effectively rubber-stamps industry projects.
Montana and other states have the scientific expertise and local knowledge to conduct thorough reviews. This rule strips them of the time necessary to do so, replacing science-based analysis with arbitrary deadlines that serve industry timelines, not public health.
These proposed changes nullify Cooperative Federalism found in Section 101(b), which defines Congress's clear intent in establishing a system that protects "the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution" and "to plan the development and use of land and water resources." Repealing state authority in the certification process violates the United States Constitution's Tenth Amendment and State Sovereignty—states have a constitutional right to manage internal affairs including water quality that affects public health within their jurisdiction.
We support extending Section 401 to general permits. Section 401 should extend to any permit "which may result in any discharge into waters of the United States." Corps civil works projects impact water quality just like private projects and should require the same certification process.
III. Decision Processes & Modifications (40 CFR 121.7). EPA is requesting comment on:
Whether the proposed decision contents in 40 CFR 121.7 should be mandatory
Whether the applicant should be involved in modification agreements and whether the federal agency must agree to specific modification language
We support making decision content requirements mandatory. Transparency requires citing specific water quality requirements for each condition or denial. The public deserves to know the legal basis for certification decisions, and mandatory documentation ensures accountability and consistency across certifying authorities.
We urge caution regarding three-party modification processes. While we recognize the value of collaboration, applicant involvement in modification agreements could create pressure to weaken protective conditions. The federal permitting agency and state or Tribal certifying authority should maintain primacy in the modification process to ensure water quality protection remains the paramount concern, not project expedience.
IV. Neighboring Jurisdictions (Section 401(a)(2)). EPA is requesting comment on:
Removal of language "neighboring jurisdiction" from 40 CFR 121.1(g) and "Regional Administrator" from 40 CFR 121.1(i) to use statutory terms "other State" and "Administrator" instead
Whether specific factors for "may affect" determinations (e.g., proximity, chemical parameters) should be codified in regulation
New provision at 40 CFR 121.12(a) acknowledging EPA may conduct "may affect" determinations categorically rather than case-by-case
Alternative approach: starting the neighboring jurisdiction process at the 6-month mark if initial certification isn't complete
We oppose the removal of "neighboring jurisdiction" language from 40 CFR 121.1(g) and "Regional Administrator" from 40 CFR 121.1(i). This terminology change could weaken the standing of downstream jurisdictions, particularly Tribes. Section 401(a)(2) is critical for downstream Tribes—many of Montana's Tribes are located downstream from industrial projects and need the authority to evaluate and object to federal licenses or permits when discharges originating upstream will violate their water quality requirements.
We oppose creating specific factors for "may affect" determinations and oppose categorical determinations. Every project has a unique context and must be thoroughly examined using the best available science to determine effects on water quality. Categorical approaches ignore site-specific hydrology, ecology, and cumulative impacts. Without a robust definition of Waters of the United States (WOTUS) and both numeric and narrative standards for water quality criteria, categorical factors would be meaningless and unenforceable.
We strongly oppose the 6-month jurisdiction transfer alternative. This approach undermines the certifying state's primary authority under Section 401 and punishes thorough scientific review by fragmenting decision-making authority. If EPA is concerned about delays, the solution is adequate state funding and technical support, not automatic jurisdiction transfers. Montana shouldn't lose control over its own water quality decisions because we're conducting rigorous scientific analysis, nor should we be able to prematurely interfere with Wyoming's legitimate process.
We oppose the 90-day timeline for public comment if state and Tribal authority is curtailed. Abbreviated timelines prevent meaningful public participation, particularly for communities that depend on these waters for drinking, agriculture, and economic livelihood.
V. Tribal Authority - Treatment as a State (TAS) (40 CFR 121.11). EPA is requesting comment on:
Impact of repealing standalone tribal TAS application procedures (40 CFR 121.11(a)-(c) and (d))
Whether the neighboring jurisdiction role under 401(a)(2) is "reasonably severable" from other certification activities
We oppose the repeal of standalone "Treatment as a State" (TAS) procedures at 40 CFR 121.11(a)-(c). The rule proposes to repeal these provisions, which allow Tribes to obtain TAS solely for Section 401, directing them instead to the preexisting 40 CFR 131.8 process.
This creates a circular impossibility: Section 40 CFR 131.8(b)(2)(iii) requires a Tribe to identify the source of the Tribal government's authority to carry out governmental functions. However, the proposed rule repeals the very state authority established in Section 401, making this alternative process have no legal standing through which Tribes can participate in the administration of water quality standards.
This rule directly undermines Tribal authority to protect waters essential to Treaty Rights and subsistence. Section 401 is one of the only legal tools available to Tribes to enforce Treaty Rights against federal projects that cross their lands or affect waters guaranteed under Treaty. Removing a Tribe's ability to condition or deny a federal permit violates the federal trust responsibility and ignores the unique spiritual, cultural, and subsistence relationships Tribes maintain with water. This is not just an environmental issue—it is a matter of Indigenous sovereignty and federally-protected rights.
The neighboring jurisdiction role under 401(a)(2) is NOT reasonably severable from other certification activities. Allowing Tribes to apply for TAS for the limited purpose of participating as a neighboring jurisdiction (40 CFR 121.11(d)) is essential for downstream Tribes to protect their waters from upstream pollution. Many Montana Tribes are located downstream from development projects, and Section 401(a)(2) provides their only mechanism to object when upstream discharges will violate their water quality standards. Severing this authority would strip downstream Tribes of meaningful participation in decisions that directly affect Treaty-protected resources and Tribal public health.
VI. EPA Public Comment Period (40 CFR 121.17(a)). EPA is requesting comment on:
Whether to codify a comment period of no more than 30 days for EPA certifications (40 CFR 121.17(a))
We oppose codifying a 30-day limit on public comment periods when EPA acts as certifying authority. Public participation is essential to the integrity of the certification process, particularly for Tribes without TAS status and communities near federal lands where EPA serves as certifying authority.
Complex projects, such as large-scale mining operations on federal lands or infrastructure projects affecting Tribal waters, require adequate time for meaningful public review and comment. A rigid 30-day limit is insufficient for rural and Tribal communities to organize, analyze technical documents (often hundreds of pages of environmental assessments, hydrological studies, and impact analyses), and provide substantive input.
EPA should retain flexibility to extend comment periods based on project complexity and community needs, consistent with the statutory requirement for "procedures for public notice" under Section 401(a)(1). Meaningful public participation requires meaningful opportunity—not arbitrary deadlines that favor permit applicants over affected communities.
Conclusion
The proposed 2026 Clean Water Act Section 401 rule works in tandem with the already-narrowed definition of "Waters of the United States" (WOTUS) following the Sackett decision, creating compounding threats to water protection. Because the federal government has already stripped protections from many wetlands and ephemeral (seasonal) streams, Section 401 is now the last remaining shield for these ecologically critical waters. By further weakening Section 401 authority, EPA leaves entire categories of waters functionally unprotected.
This proposal undermines the core principles of Cooperative Federalism, contradicts Supreme Court precedent, and ignores basic hydrologic and ecological science. It sacrifices local control, Tribal sovereignty, and water quality protection in favor of expedited permit approvals for industrial projects.
The science is clear: groundwater and surface water are one hydrologic system. If a project leaks pollutants through the soil (like the diesel plume contaminating Livingston's drinking water) but not through a discrete pipe, the new rule would prohibit the state from intervening under Section 401. This ignores basic hydrologic science about how contamination moves through aquifers and into streams, rivers, and drinking water sources.
Park County depends on clean water for drinking, for agriculture, for the trout fisheries that sustain our economy, and for the ecological integrity of the Greater Yellowstone Ecosystem. Montana's outdoor recreation economy contributes $3.4 billion to the state's GDP, with fishing alone contributing nearly $1 billion annually. This economic engine depends entirely on maintaining the biological integrity of Montana's rivers and streams. This rule would strip Montana of the tools we need to protect these waters from projects whose full impacts cannot be measured by a single pipe.
We urge the EPA to withdraw this proposed rule and preserve the state and Tribal authority that Congress intended under Section 401 of the Clean Water Act.
Respectfully submitted,
Park County Environmental Council
Livingston, Montana