House subcommittee hears states, regulators warn against broader use of section 401 certification

Rob Singletary, executive director of the Oklahoma Department of Environmental Quality, told the House Transportation and Infrastructure Subcommittee on Water Resources and Environment on Feb. 11 that Section 401 of the Clean Water Act has been used beyond its intended scope and urged Congress to clarify its limits.

"We feel strongly that this powerful tool should be reserved for efforts specifically related to water, resource protection," Singletary said in his opening testimony, adding that ambiguity in the rule "expands the workloads of state agencies, complicates and lengthens the review process, and makes certification determinations more vulnerable to legal challenges."

The subcommittee also heard from Sean LaTourette, commissioner of the New Jersey Department of Environmental Protection, who framed the law as one built on "cooperative federalism" and said New Jersey’s experience assuming certain federal programs shows states can both protect water and streamline permitting.

"In the absence of assumption, project applicants were often challenged to adhere to 2 different schemes under federal and under state law," LaTourette said, describing New Jersey’s assumption of Section 404 wetlands authority as producing "stability" and a more accessible permitting process for applicants. He cautioned that federal rule changes can create uncertainty for states and urged continued federal support for state implementation.

Members of the subcommittee and state witnesses described examples where third parties or litigation use the Section 401 process to press concerns unrelated to direct water‑quality impacts. Singletary urged that any statutory changes include language "that would ensure that future EPA administrations are unable to expand the use of this process beyond the protection of water resources or beyond those water quality impacts clearly attributable to the project at issue."

Several members of Congress said they want clarity rather than new delays. Representative Fong pressed Singletary for guardrails; Singletary offered to provide proposed language after the hearing. Representative Scholten and others said they support permitting reform but not at the expense of environmental protections.

Why it matters: Section 401 certification is a state tool with broad consequences for infrastructure, energy and water projects. Witnesses told the committee that unclear scope produces inconsistent application across states and regions and can lengthen project timelines through additional reviews and appeals.

Sources and context: Witnesses referenced the Biden‑era 401 rule and the Supreme Court’s Sackett decision shaping the scope of jurisdictional waters. Several witnesses urged clearer statutory direction and suggested greater encouragement of state assumption and more explicit limits on judicial or third‑party triggers of broad reviews.

The subcommittee opened a record for additional written comments and asked witnesses to supply follow‑up material; no formal votes or legislative actions were taken at the hearing.