	Background

Under the Clean Water Act (CWA), an applicant for a federal license or permit to conduct any activity that may result in a discharge to waters of the United States must provide the federal agency with a Section 401 certification. The certification, made by the state in which the discharge originates, declares that the discharge will comply with applicable provisions of the act, including water quality standards. Stakeholder Concerns and Other Court Rulings

For the most part, the debate over the Section 401 certification issue has centered on states and hydropower interests. Development and hydropower interests, on the other hand, said that it would make licensing of hydropower facilities more difficult and costly. Section 401 and Land Runoff

In 1996, a federal district court in Oregon ruled that Section 401 "applies to all federally permitted activities that may result in a discharge, including discharges from nonpoint sources." Supporters said that the ruling gave states new regulatory power over federal licenses or permits that affect water quality by clarifying that Section 401 applies to nonpoint source discharges of water pollution, in addition to point source discharges. Point sources are discrete conveyances, such as pipes or ditches, from which pollutants are discharged. Following the Supreme Court's 2006 ruling in the S.D. Legislative Response

Since the mid-1990s, Congress has shown interest in these issues in proposals reflecting varying perspectives, but no legislation that would modify Section 401 has been enacted. This provision in H.R. 114th Congress

In the 114 th Congress, the Senate and House are considering comprehensive energy policy proposals, including legislation that some states believe could impinge on states' authority under CWA Section 401 concerning hydropower projects.
Section 401 of the Clean Water Act (CWA) 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 since it was enacted in 1972. In the 114th Congress, the Senate and House are considering comprehensive energy policy proposals (H.R. 8 and S. 2012) with provisions that some states believe could impinge on states' authority under CWA Section 401 concerning hydropower projects.
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 twice ruled 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.