Congress may soon rewrite a key piece of environmental law without knowing what it does. A comprehensive deal to reform federal permitting will likely include changes to Clean Water Act Section 401—the provision that grants states and Tribes authority to certify, block, or impose conditions on federally permitted activities that may result in a discharge into state or Tribal waters. The trouble is that the most important decisions made under Section 401 are fragmented across states, buried in agency files, and often folded into other Clean Water Act permitting regimes. Lawmakers are poised to fix a program they cannot actually see.
That blind spot matters because the politics here are genuinely contested. In 2016, New York state began to use Section 401 to block gas pipelines partly on climate change grounds. The law gives states broad deference on what they may consider, and New York also cited water quality impacts.Republicans and their stakeholders argue the rejections were “wholly unrelated to water quality.” Section 401 also implicates dam re-licensing, which can drag on unresolved for years. These are the fights driving reform. Yet there is no comprehensive data to inform whether existing challenges reflect a pervasive national problem or just a narrower set of high-friction cases concentrated in particular sectors, states, or agencies.
The fix isn’t a maximalist archive of every certification document. Sound analysis requires clean, high-level data that lets us see and understand Section 401 decision-making—the kind of information that reveals the scale and scope of repairs the program actually needs.
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 | A guest post by
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