Key takeaways:

• The PFOA and PFOS hazardous-substance designation remains in effect.
• EPA need not prove certain harm from every release.
• Detection alone does not establish a cleanup obligation or CERCLA liability.
• Organizations should account for potential PFOA and PFOS sources in release planning, operational practices, waste and transportation arrangements, site diligence, and contracts.

The ruling has broad implications across the environmental, health, and safety landscape, including for energy, agriculture, transportation, manufacturing, construction, real estate, and waste management. By sustaining the designation, the decision preserves CERCLA mechanisms that can shift qualifying cleanup costs from public funds to responsible parties. However, the ruling recognized that not every detection of PFOA or PFOS triggers an automatic cleanup or liability event.

Read the full article for a comprehensive analysis of the D.C. Circuit’s decision upholding EPA’s PFAS hazardous-substance designation, including its impact on CERCLA liability, reporting obligations, cleanup cost recovery, environmental due diligence, and business risk management.

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The permit is expected to become effective on or around October 31, 2026. Covered sites will be required to conduct stormwater sampling, develop a Stormwater Pollution Prevention Plan (“SWPPP”), implement required best management practices, pay annual fees, and comply with one of three available compliance pathways, some of which could involve substantial capital expenditures. Owners and operators of potentially covered facilities should consider promptly evaluating whether any facilities fall within the permit’s geographic scope and whether existing stormwater permit coverage, site configuration, acreage, ownership structure, or mixed-use characteristics necessitate permit coverage.

Notably, similar requests are pending in several other regions of California, including Lower San Diego, Ontario, Salinas, Santa Rosa, the San Francisco Bay Area, and Sacramento, which could lead to similar permit programs being adopted by Regional Water Boards in those additional watersheds. Owners and operators potentially subject to the new CII Stormwater Permit or similar pending permits will want to consider applicability assessments, compliance planning, and implementation strategies.

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The action marks a substantial shift in the Services’ interpretation of the ESA’s prohibition on “take” by rescinding a broad regulatory definition of “harm” that has been in place for decades and has long been interpreted to encompass certain forms of habitat modification that result in injury or death to ESA-listed species.

Background

Section 9 of the ESA prohibits the “take” of listed wildlife species by private citizens and entities. The statute defines “take” to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Section 10 of the ESA authorizes the Services to issue incidental take permits for otherwise lawful activities that may result in the incidental take of listed species, subject to permit conditions and conservation planning requirements.

For decades, the Services’ regulations have defined “harm” to include “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F.R. § 17.3. That regulatory definition was upheld in 1995 by the U.S. Supreme Court in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (“Sweet Home”). 515 U.S. 687 (1995). However, in a dissent joined by two other judges, Justice Scalia argued that the term “harm” should be limited to “affirmative acts . . . directed immediately and intentionally against a particular animal—not acts or omissions that indirectly and accidentally cause injury to a population of animals,” such as habitat modification that impairs breeding patterns. Id. at 720–21.

In the 2025 proposal, FWS and NMFS concluded that the regulatory definition did not reflect the best interpretation of the ESA’s text and structure. In the final rule, the Services reiterate that view and expressly rely on the reasoning set forth in Justice Scalia’s Sweet Home dissent.

What the Final Rule Does

The final rule removes the regulatory definition of “harm” from the Services’ ESA implementing regulations. The Services determined that no replacement definition is necessary, concluding that the existing text and structure of the ESA support a narrower understanding of “take” that does not extend to habitat modification alone. In support of that conclusion, the Services expressly adopt Justice Scalia’s dissent in Sweet Home.

Accordingly, the Services state that ESA implementation will return to the statute’s text, without a separate regulatory definition of “harm.” The Services explain that the rescission is intended to align ESA implementation with what they view as the best reading of the statute. In interpreting and applying the term “harm” moving forward, the Services maintain they will review each specific situation and species’ response to a proposed action to determine whether it constitutes “harm,” noting that the term should be construed to require an “affirmative act” directed “immediately and intentionally against a particular animal” in alignment with Justice Scalia’s dissent in Sweet Home.

The Services emphasize that the rule change is prospective and does not require reevaluating existing permits and incidental take statements finalized prior to the rule’s effective date. However, the Services explain that future incidental take permit applicants will no longer be required to address habitat modification and degradation in the manner previously required under the rescinded definition of “harm.”

What to Watch Next

Although the rule is now finalized, its practical implications will likely continue to develop through agency implementation and litigation challenging the rule, including two lawsuits already filed by environmental groups.

For now, regulated entities should be aware that the Services have formally withdrawn the regulatory definition of “harm” that has been part of the ESA framework for decades. At the same time, the Services emphasize that other ESA provisions—including those governing critical habitat designation and federal agency Section 7 consultations—remain unchanged.

We will continue to monitor developments, including any legal challenges to the rule and future agency guidance regarding its implementation. Regulated entities with questions about the rule or its potential implications for ongoing or planned projects should contact a member of our Environmental, Land Use & Natural Resources team for additional information and project-specific guidance.

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This latest action follows a series of prior delays and reflects EPA’s ongoing reassessment of the breadth, burden, and implementation of its October 2023 PFAS reporting rule.

Background on the TSCA PFAS Reporting Rule

PFAS are sometimes referred to as “forever” chemicals because of their strong carbon-fluorine bonds that cause them to be extremely resistant to degradation in the environment. They have been used in a variety of products due to their resistance to degradation, their stability/non-reactivity, and the barrier they provide against water, oil, grease, and staining. Historically, PFAS have been used in a wide range of industrial and consumer products including the manufacture of textiles, food packaging, and as surfactants. They have also been used in firefighting foams used at airfields, refineries, and aboard ships.

Section 8(a)(7) of TSCA, added by the National Defense Authorization Act for Fiscal Year 2020, directs EPA to require reporting by any entity that manufactured (including imported) PFAS at any time since January 1, 2011.

EPA finalized its PFAS reporting and recordkeeping rule in October 2023. The rule adopts a broad, structural definition of PFAS, and requires manufacturers and importers to submit extensive historical information regarding PFAS identity, uses, production volumes, exposures, and health and environmental effects. As finalized, the rule imposes a one-time reporting obligation on entities that manufactured or imported PFAS—including PFAS imported in articles (i.e., manufactured goods or finished products)—for a commercial purpose between January 1, 2011, and December 31, 2022. The regulation has few exemptions and no de minimis threshold. This has created a significant compliance and planning burden across multiple industries.

In May 2025, EPA issued an interim final rule delaying the start of the reporting period to April 13, 2026. Under the interim rule, the end of the data submission period was pushed to October 13, 2026, or April 13, 2027, for certain small manufacturers reporting solely as article importers.  EPA explained that the delay was necessary to prepare the reporting application and to allow time to consider potential revisions to the rule, signaling that additional rulemaking would follow to address stakeholder concerns regarding reporting burden and feasibility.

EPA advanced substantive amendments to the PFAS reporting rule in November 2025, through a proposed rule modifying the scope of reportable activities. The proposed rule would establish several new reporting exemptions, including exemptions for de minimis concentrations of PFAS below 0.1%, PFAS imported as part of an article, and PFAS manufactured only as byproducts, impurities, or non-isolated intermediates. Under the proposed rule, the reporting submission period would begin 60 days after the final rule’s effective date and remain open for three months. EPA framed these changes as an effort to focus reporting on information that is reasonably ascertainable and most relevant to its regulatory objectives, while reducing industry compliance burdens compared to the broader October 2023 rule.

What EPA Changed in April 2026

EPA’s April 2026 final rule does not alter the scope of who must report or what information must be reported. Instead, it addresses only when reporting will begin.

Under the revised rule:

• The PFAS reporting submission period will begin 60 days after the effective date of a forthcoming final rule addressing the substantive requirements of the PFAS reporting program; or
• January 31, 2027, whichever occurs first.

EPA described January 31, 2027, as a backstop date and indicated that it expects to finalize the substantive revisions to the rule well before then. EPA also stated that it anticipates removing the backstop date in that future rulemaking.

The final rule leaves unchanged the duration of the submission period—six months for most reporters, with an additional six months for certain small manufacturers whose reporting obligations arise solely from article imports. EPA explained that any further adjustments to deadlines or reporting mechanics will be addressed in the forthcoming substantive revisions rule.

Why EPA Delayed Reporting Again

EPA cited several reasons for delaying the start of reporting. Since the interim final rule was issued in May 2025 and the proposed rule was issued in November 2025, the Agency has received thousands of comments regarding the need for exemptions for certain categories such as imported articles, low-concentration PFAS, impurities, byproducts, and research and development uses.

EPA also stated that delaying the reporting start date avoids requiring companies to expend resources compiling and submitting data that may not ultimately align with the final scope of the rule. The Agency further cited the need for additional time to finalize guidance and complete updates to its electronic reporting systems.

What This Means for Regulated Entities

For now, companies subject to the PFAS reporting rule do not need to submit any information and will not be required to report until EPA completes at least one more rulemaking (or until January 31, 2027, if EPA fails to finalize the rulemaking by that date). However, this delay does not eliminate the reporting obligation, and EPA has not yet finalized any substantive exemptions.

Companies that have already begun internal PFAS inventory efforts or supply chain inquiries may wish to reassess the pace and scope of those efforts while continuing to monitor EPA’s next steps. The substance of the forthcoming final rule—particularly whether EPA narrows the reporting universe—will determine the level of diligence ultimately required.

What to Watch Next

EPA has indicated that it will issue a separate final rule addressing the substantive revisions proposed in November 2025, including potential exemptions and clarifications to the reporting requirements. That rule will also establish the final reporting timeline.

Until then, the start of TSCA PFAS reporting remains on hold, but regulated entities should continue to track developments closely. We will continue to monitor EPA’s actions and provide updates as the PFAS reporting framework evolves.

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For facilities with regulated substances such as anhydrous ammonia or chlorine above threshold quantities, treat a NOCI as an immediate priority. EPA’s current inspection approach involves extensive pre-inspection document production, employee and union notice requirements, facility tours and likely follow-up requests. Organize responses and preparation with care under direction of counsel.

Key takeaways include:

• Act immediately. Send the NOCI to environmental counsel the same day and consider requesting from EPA a written extension for document production.
• Protect employee participation rights. Post the notice, provide copies to employee representatives where required, and document those steps.
• Use EPA’s Program 3 checklist carefully. It can help organize, but facilities should avoid creating a roadmap to alleged noncompliance.
• Manage response to EPA’s broad training-record form. Facilities may consider asking EPA to narrow requests to specific SOPs, roles, or sample personnel.
• Preserve CBI protections. Confidential Business Information claims should be made at the time documents are submitted.

Read the full alert for a real time practical guide to preparing for, managing, and following up after on this inspection activity.

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1. The Shift

The traditional prohibition authored through EPA guidance beginning in 1978[1] then later promulgated in the NSR rules[2] disallowed activities of a “permanent nature” prior to issuance of a NSR permit. Subsequent determinations and memos evaluating case-by-case site specific facts led to a distinct prohibition in 1986 disallowing installation of an emission unit or any installation designed to accommodate the emission unit before issuance of a NSR permit. Then in the 1990s EPA considered ‘‘excavation activities’’ prohibited because they ‘‘are costly, they significantly alter the site, are an integral part of the overall construction project, and are clearly of a permanent nature.’’  Allowing costly and significant site clearing and alterations could predetermine permitting decisions, according to EPA at the time. Since at least 1996 NSR permittees and applicants encouraged EPA to address “begin actual construction” and reform its approach.

Recent decisions from EPA in 2020 and 2025 foreshadowed action to clarify and align EPA’s approach with statutory and policy directives.[3]

Now EPA draws on statutory language in the Clean Air Act — specifically terms like “stationary source” and “air pollutant” and “emits or has the potential to emit” — to discern what the Clean Air Act requires to permit, and terms like “construction” and “commenced” to discern when construction begins. EPA analyzes that the Clean Air Act permitting obligation attaches to stationary sources that emit air pollutants and the permitting obligation arises somewhere after planning but before operation. 

2. The Birdie

EPA views the best reading of the CAA to be that an NSR permit is required “when” on-site physical construction begins on equipment or components that have characteristics that identify them as something that will emit air pollution, as distinguished from equipment or components that will not.[4]  Accordingly, the proposed definition of “being actual construction” prohibits the initiation of physical construction of pollutant-emitting activities. Preconstruction activities such as design, site preparation, equipment ordering, and staging still do not require issuance of a NSR permit.  The proposed revision to the term “begin actual construction” reads:

Begin actual construction means, in general, initiation of physical on-site construction of pollutant-emitting activities on a stationary source. This does not include the following: (1) Engineering and design planning; (2) geotechnical investigation (surface and subsurface explorations); (3) clearing vegetation, grading, surveying, soil compacting and stabilization (including associated pile driving), and excavating land (including blasting or other removal of hardrock); (4) ordering of equipment and materials; (5) storing of equipment or setting up temporary trailers to house construction management or staff and contractor personnel; (6) paving surfaces. This list is not intended to be exhaustive. With respect to a change in method of operations, this term refers to those on-site activities other than preparatory activities which mark the initiation of the change.

3. The Tie

EPA proposes a new definition for “pollutant-emitting equipment” too. And it’s long:

Pollutant-emitting activities, as used in 40 CFR 52.21(b)(6)(i) and (b)(11), include any equipment or component in a process or operation that emits or has the potential to emit a regulated NSR pollutant. Pollutant-emitting activities do not include the following: (1) office buildings; (2) retail stores; (3) buildings or structures designed for storage if the product or material to be stored therein is not capable of producing airborne vapors or particles; (4) concrete pads and building foundations, walls, and roofs that are not closed in on the interior side and do not have design elements (e.g., piping, ductwork, wiring, anchor bolts) specifically and uniquely configured to serve or support any equipment or component in a process or operation that emits or has the potential to emit a regulated NSR pollutant; (5) equipment or components whose sole purpose is heating ventilation and air conditioning for human workspaces or spaces within a building used to store supplies related to the  habitation of the building; (6) wiring, piping, and associated support structures that supply utility services (including electrical, water, wastewater, or telecommunications) to a property site or a building on a site; (7) sealed junctions or tie-ins within one process that may serve equipment or components in another process constructed at a later time. This list is not intended to be exhaustive. For purposes of this definition, classification as pollutant-emitting is based on emissions from a process or operation after construction, not emissions of pollutants during the construction process.

4. The Risk 

If finalized, Permit applicants can proceed with a broader set of construction activities before issuance of a NSR permit, but at their own risk. Explicitly, EPA states:

In all instances, owners or operators accept risk for the actions they may take in advance of obtaining a permit. Owners or operators cannot expect that any site activities prior to permitting will alter or influence the BACT analysis for an emissions unit or other elements of a permitting decision. Permit applicants that choose to undertake on-site construction activities in advance of permit issuance do so at their own economic risk that a permit may be denied or issued with unanticipated conditions on operations, potentially resulting in a lost investment or increased construction costs.[5]

Practical Improvements 

EPA offers a practical approach to owners and operators that may help expedite completion of projects and avoid site-specific inquiries to permitting agencies regarding what and when activities can commence. The proposal could allow greater flexibility in project and construction timing, particularly for large industrial projects; however, EPA reinforces the inherent risk that early-stage investments may be lost if permits are denied or require redesign. The rulemaking prompts decisions from applicants about the economic risk they are willing to bear that a NSR permit application is denied or that a project cost is impacted by obligations to comply with an issued permit.

Public Comment Opportunity

Comments on the proposed rule are due June 29, 2026. EPA sets out eleven questions to solicit comments on the approach, plus any aspect of the proposed rule.[6] The proposed rule modifies non-attainment and attainment programs and the term “commence construction” in the federal minor NSR regulations for Indian country.

[1] ‘‘Interpretation of ‘Constructed’ as it Applies to Activities Undertaken Prior to Issuance of a PSD Permit’’ from Edward Reich, Director, Division of Stationary Source Enforcement (December 1978).

[2] Definition of ‘‘begin actual construction’’— 40 CFR 51.165(a)(1)(xv), 5

[3] EPA Draft Memorandum from Anne Idsal, Principal Deputy Assistant Administrator for the Office of Air and Radiation. Interpretation of ‘‘Begin Actual Construction’’ Under the New Source Review Preconstruction Permitting Regulations (2020); EPA Letter from Aaron Szabo, EPA Assistant Administrator for the Office of Air and Radiation, to Philip McNeely, Director, MCAQD, (2025).

[4] 91 Fed.Reg. 26958, 26970 (May 13, 2026)

[5] 91 Fed.Reg 26858, 26973 (May 13, 2026)

[6] 91 Fed.Reg. 26958, 26974 (May 13, 2026)

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EPA clarifies how permitting authorities and EPA Regions may use existing flexibility to reduce administrative delays and accelerate permit issuance without a change to statutory or regulatory requirements. The guidance signals a policy shift toward parallel processing, favoring earlier EPA engagement, and expedited review decisions.  

Key Developments 

1. Concurrent EPA and Public Review 

The guidance observes that permitting authorities may submit a proposed permit to EPA at the same time the public comment period begins, allowing EPA’s 45-day review period to run concurrently with public comment. EPA encourages this approach where significant public comment is not anticipated. If significant comments are received, the permit must be revised and resubmitted, restarting EPA review. 

2. Expedited EPA Review and Early Final Issuance 

The guidance concludes that EPA is not required to use the full 45-day review period and may notify permitting authorities that it does not object before the 45-day period ends. Permitting authorities may then issue the final permit immediately. EPA’s “no objection” is not an approval and does not constitute a compliance determination, however.  

3. Early Engagement with EPA 

The guidance encourages early and informal submission of draft permits to EPA Regions and coordination throughout the permitting process. 

4. Clarified Deadline Calculations 

Review deadlines trigger on the date EPA receives the proposed permit. Counting begins the following day, includes weekends and holidays, and extends to the next business day if the count lands on a weekend or holiday. If EPA completes review early, the 60-day petition period begins only after the full 45-day review period has elapsed. 

Practical Moves 

Title V permittees can take these steps to lean into the new direction from EPA and seek expedited review of a proposed permit: 

• Evaluate whether concurrent review (EPA and public comment) is appropriate. 
• Engage early with the permitting authority regarding coordination with EPA. 
• Ensure that the administrative record is robust and defensible.  

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This decision was supported by the U.S. Supreme Court’s ruling in City and County of San Francisco v. EPA, decided March 4, 2025, which made clear that such receiving‑water limits are not merely disfavored, but outside EPA’s statutory authority. In a 5‑4 ruling, the Court held that the Clean Water Act does not authorize EPA to include “end‑result” receiving water limitations in NPDES permits. Such provisions make a permittee responsible for meeting water quality standards in the receiving water, rather than complying with defined discharge limits. The Supreme Court grounded its reasoning in the text and structure of the CWA Section 301, which authorizes effluent limitations that restrict the “quantities, rates, and concentrations” of pollutants discharged, but does not mandate ambient water quality guarantees. Allowing receiving water limits, the Supreme Court warned, would also undermine the CWA’s permit shield, exposing permittees to liability even when they fully comply with the other clear terms of their permits.

In NWEA v. DEQ, environmental petitioners argued that DEQ violated the Clean Water Act by removing a narrative prohibition that barred discharges from “causing or contributing” violations of water quality standards in the receiving water. According to NWEA, deleting that language weakened the permit and amounted to prohibited backsliding under Clean Water Act section 402 (33 USC § 1342(o)). The Court of Appeals disagreed and upheld the changes.

The renewed permit challenged in NWEA v. DEQ continued to impose enforceable effluent limitations at the point of discharge, which included nutrient limits and monitoring requirements designed to ensure compliance with water quality standards. The removed provision did not itself function as a stand‑alone effluent limit; rather, it was a more open‑ended receiving‑water obligation. Therefore, eliminating that previous permit language did not relax any numeric or narrative effluent limitation and did not trigger anti‑backsliding concerns under the Clean Water Act. In short, regulating the discharge—rather than ambient conditions in the river—is exactly what the NPDES program is designed to do.

When read together, NWEA v. DEQ and San Francisco v. EPA point in the same general direction. Removing receiving water limitations from NPDES permits:

• Does not constitute backsliding where the permit retains enforceable discharge‑based limits sufficient to ensure water quality standards are eventually met.
• Promotes regulatory clarity by basing compliance on measurable effluent limits rather than variable downstream conditions affected by many sources, including natural ones.
• May be legally required where a permit condition crosses the line into an impermissible “end‑result” obligation found unlawful under federal law.

State permitting authorities authorized under the Clean Water Act must implement the Act consistent with Supreme Court precedent. After San Francisco, retaining narrative receiving‑water limitations and prohibitions in discharge permits risks exceeding statutory authority and eroding the permit shield, outcomes that the Supreme Court explicitly rejected. The holding in the NWEA v. DEQ confirms that removal of these “end result” limits does not run afoul of Clean Water Act anti-backsliding requirements.

Takeaways for Permittees and Regulators

Taken together, these two decisions should provide important clarity and guidance for permit writers and permittees alike. For municipalities, industries, and regulators, these decisions reinforce a core principle that Clean Water Act permits regulate discharges, not waterbodies. Other programs, like the Total Maximum Daily Load (TMDL) process, can remedy the issue where waters are deemed impaired.

Permit writers should focus on including clear narrative or numeric effluent limits where a reasonable potential to cause or contribute to an in-stream exceedance of standards exists (40 C.F.R. §122.44(d)(1)), along with supporting monitoring requirements. Where numeric effluent limitations are not attainable or feasible, best management practices (BMPs) can be included instead (40 C.F.R. §122.44(k)), or compliance schedules should be included to allow time to come into compliance (40 C.F.R. §122.47).

Permittees, in turn, can have greater confidence that compliance with clear permit requirements will define their obligations without the specter of liability for ambient conditions beyond their reasonable control. Permittees should carefully scrutinize previously included permit language that resembles receiving water limitations or other “end‑result” requirements to ensure permits are compliant with new legal precedent. Permittees should raise these issues either during the permit readoption process or in a request for a mid-permit modification under the new information/regulations criteria of the federal regulations (40 C.F.R. §122.62(a)(2)-(3)).

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On January 13, 2026, the United States Environmental Protection Agency (EPA) announced a proposed rule, to be codified as 40 C.F.R. Part 121, “Updating the Water Quality Certification Regulations,” that proposes to narrow the scope of state and tribal review under Section 401 of the federal Clean Water Act (CWA), 33 U.S.C. § 1341, and tighten timelines intended to expedite federal permitting (Proposed Rule).

What is CWA Section 401?

CWA Section 401 specifies that a federal permit or license for any activity that may result in a discharge to waters of the United States (WOTUS) cannot issue unless the state or authorized tribe where the discharge will occur certifies that the discharge will comply with CWA Sections 301, 302, 303, 306, and 307, which includes prescribed effluent limitations, or the state or authorized tribe waives certification. Section 401 requires states and tribes to act on certification requests “within a reasonable period of time (which shall not to exceed one year) after receipt” of the request. The certifying authority must decide to grant, grant with conditions, or deny the certification. Major federal licenses and permits subject to CWA Section 401 certification include:

• CWA Section 402 NPDES permits issued by EPA in jurisdictions where the EPA administers the NPDES permitting program.
• CWA Section 404 permits for the discharge of dredged or fill material issued by the Army Corps of Engineers (Corps).
• Bridge permits issued by the Coast Guard under the General Bridge Act of 1946.
• Hydropower and interstate natural gas pipeline licenses issued by the Federal Energy Regulatory Commission (FERC).
• Rivers and Harbors Act Sections 9 and 10 permits issued by the Corps.

Key Takeaways of Proposed Rule & Impacts on States and Tribes

EPA frames the proposed changes as restoring “clear statutory boundaries” and streamlining permitting for nationally important infrastructure while protecting water quality.

• Rule Reversal: The Proposed Rule would reverse many of the changes made during the Biden Administration in 2023 and return major elements of the rule adopted during the first Trump Administration in 2020.
• Narrowed Authority: The scope of a CWA Section 401 certification and any imposed conditions are limited to point source discharges to WOTUS, disavowing the 2023 rule’s “activity as a whole” approach and limiting broader project‑level conditions that States have used in the past. This item is likely to generate substantial comment.
• Predictable Timelines: The Proposed Rule removes the option for the certifying authority to unilaterally extend the “reasonable period,” and curbs tools previously used by certifying authorities to extend the one‑year issuance period (e.g., withdraw‑and‑resubmit practices), aiming to accelerate decisions for linear energy and infrastructure projects.
• Standardized Applications: EPA proposes a fixed content list needed for all certification requests, which may reduce back‑and‑forth with certifying authorities, but also limits states’ ability to require additional information at the intake stage.
• Mutually Agreed Upon Modifications: The Proposed Rule requires all modifications to certification decisions and conditions to be approved by both the applicant and the federal permitting agency.
• Timely Action on Objections: The Proposed Rule requires the federal permitting agency to act on another state’s objection to a certification within ninety (90) days, and allows EPA to make either categorical or case-by-case determinations regarding whether the discharge may affect another state’s waters.
• Policy Alignment: States and tribes may need to revise Section 401 policies, forms, and guidance, and federal agencies will need to align permit processes with updated Section 401 triggers and timelines.

Conclusion and Next Steps

Regulated entities, project developers, and other interested parties should evaluate whether to suggest further adjustments to streamline the CWA Section 401 certification process by the comment deadline of February 17, 2026. If the Proposed Rule is adopted, we recommend tracking whether litigation is filed, and what effect, if any, such litigation has on implementation (e.g., if an injunction is issued). Ultimately, regulated entities should consider the impacts of the changes on current and future certification applications, and evaluate opportunities to conform certifications to the updated scope and procedures.

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Stoel Rives LLP is pleased to announce that Ankur Tohan has joined the firm’s Seattle office as a Partner in the Environment, Land Use and Natural Resources practice group.

Ankur brings extensive experience in environmental and energy law, with a practice focused on renewable energy development, carbon capture and sequestration, energy infrastructure, and complex regulatory compliance. He advises clients on permitting, enforcement defense, carbon-credit transactions, and navigating rapidly changing climate and environmental regulations.

Before joining Stoel, Ankur co-led the environmental practice at a global law firm for over a decade. Prior to private practice, he served as an assistant regional counsel for the U.S. Environmental Protection Agency for more than six years, where he worked on environmental enforcement, civil defense, and permitting issues. He also served with the Washington Attorney General’s Office. This government experience has given him deep relationships with agency personnel at the Washington Department of Ecology and EPA Region 10, providing valuable insight for clients navigating regulatory matters.

Ankur has been recognized as “Lawyer of the Year” by Best Lawyers© for Energy Regulatory Law and Natural Resources Law in Seattle and selected as one of “America’s Leading Lawyers for Business” by Chambers USA (Environment). An active thought leader, he has contributed to the American Bar Association’s Clean-Water Act Handbook and the Environmental Law Institute’s Law of Environmental Protection handbook. He currently serves on the advisory board for Cleantech Alliance’s Washington Energy Carbon Advancement Network (WECAN).

Ankur earned his J.D. from Lewis & Clark Law School, his M.S. from the University of Wisconsin-Madison, and his B.A. from the University of Vermont.

Ankur’s technical fluency in environmental and energy law, combined with his long-standing agency relationships, will be an invaluable asset to our clients and our team. Please join us in welcoming Ankur to Stoel Rives!

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