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.
Two policy problems, no evidence
Two issues dominate the Section 401 debate. First, the one-year time limit on certification has proven difficult to implement in certain high-profile circumstances. States and project sponsors have exploited loopholes to circumvent it, and the practice has emerged as a stalling tactic states can deploy for disfavored projects. In the Hoopa Valley case, California and Oregon strategically withdrew and resubmitted the same certification request for over a decade, thereby usurping “FERC’s control over whether and when a federal license will issue.” A politically contentious transmission line or pipeline can involve multiple state authorities—and multiple opportunities to game the timeline.
The court ruled the withdraw-and-resubmit scheme illegal. But the facts of Hoopa Valley may not reflect a widespread trend; dams and pipelines may be the only true friction points. That distinction matters for the remedy. The SPUR Act, for instance, would transfer water quality review to FERC—but that solution may leave other problems in place with other types of projects.
The second concern is that states sometimes use Section 401 to block projects because they oppose fossil fuels. Republican stakeholders cried foul when New York used climate change as the reason for denying certification to multiple natural gas pipelines, arguing that climate change is not a water quality impact resulting from a discharge. But without proper data, it’s difficult to say whether state objections unrelated to water quality are large or small. While there are anecdotal cases of Section 401 being leveraged to oppose projects on grounds like climate, noise, or traffic, anecdotes are insufficient to inform our policy options.
What the records actually look like
The Clean Water Act hands states and Tribes the job of administering Section 401, which means no centralized federal repository exists to track certifications. To see what studying the program would actually require, the authors sought records through the public records process in four states where Section 401 sat at the center of pipeline fights. The results illustrate the structural barriers to building any comprehensive dataset.
In West Virginia, the disputed certification for the Mountain Valley Pipeline yielded extensive litigation and drastically higher costs—a project initially estimated at $3.5 billion ran nearly $10 billion, and Congress had to intervene by statute to force it to approval. Yet the state’s files lacked searchable metadata on applicants, timelines, project characteristics, or outcomes. It was even unclear which documents were certifications. Obtaining the full record required labor-intensive downloads of thousands of documents.
In New York—home to the climate-based denials at the heart of the national debate—certification records are dispersed across nine district offices. The agency determined that producing all certifications and applications would be too time-consuming and therefore infeasible, offering only a subset of denial records instead. The authors made their initial request in December 2025; after repeated delays, they had not received the records.
Massachusetts shows how Section 401 reshapes projects without an outright denial. In 2016, the state certified Tennessee Gas’s Connecticut Expansion Project with 47 conditions, including a requirement that the company convey 36 acres of forest, wetlands, and open fields to offset 4,792 square feet of wetland fill. Conditions like these avoid the conflict of a denial or lawsuit but add costly, time-consuming demands—and the underlying data is not publicly available. The state estimated nearly $1,500 to fund 60 hours of staff search time to produce its records.
In North Carolina, the Atlantic Coast Pipeline demonstrates how the program can shape outcomes even without a formal denial. After certification was issued, a coalition petitioned to revoke it, citing newly discovered impacts on the Lumbee community and inadequate analysis of cumulative water quality effects. The agency did not publicly act before Dominion and Duke canceled the $8 billion project in 2020. North Carolina keeps a publicly accessible database—but the files have no metadata, are organized in county folders, and consist of handwritten documents, emails, and other paperwork, making them unsearchable and unusable.
Despite maintaining records, none of these states could readily provide information suitable for systematic policy analysis. Program administration is fragmented across states, Tribes, and territories with varying resources and priorities, which makes national analysis effectively impossible. A few well-resourced states do better—Colorado offers an interactive map, Illinois clear legal information—but the performance of a few states cannot substitute for a functioning national system.
The cost of guessing
The practical consequence of this vacuum is that policymakers base their decisions on anecdote rather than evidence. Critics frequently cite New York’s handling of the Northeast Supply Enhancement pipeline as an example of a state obstructing interstate energy infrastructure. But without systematic data on denial rates, approval timelines, and certification conditions, there is no way to know whether that case is representative or exceptional. We are debating reforms to a program we cannot empirically describe.
And the reform options on the table respond to very different diagnoses. Congress could narrow the statute to exclude non-water-quality considerations and tighten timelines. It could transfer pipeline certification authority to FERC, as the SPUR Act proposes. Or it could create a separate, faster certification track for pipelines. If delays and overreach are concentrated in pipelines and dams, sector-specific reform may be enough. If non-water-quality considerations appear broadly, a general statutory narrowing may be warranted. Without data on denials, timelines, conditions, project types, and agency practices, Congress cannot know which reform would solve the problem, which would leave dysfunction in place, and which might create unintended consequences.
A fix that respects state authority
The natural worry is that a federal reporting requirement could intrude on state authority. Under the anti-commandeering principle—set by the Supreme Court in New York v. United States and Printz v. United States—Congress cannot compel states to administer a federal program, and EPA likely cannot impose such a requirement through rulemaking alone.
But the Clean Water Act already contains the answer. The NPDES permitting program pairs standardized reporting with program authorization: a state that chooses to run the program accepts federal reporting standards as part of the deal, and for states that decline, EPA administers the program directly. Section 401, by contrast, grants certification authority with no corresponding reporting obligation, leaving the program’s most consequential decisions opaque. Congress likely has authority to amend Section 401 to require standardized reporting as a condition of participation—and EPA, which already defines what certifications must protect and operates analogous national databases, is the logical home for it.
The reporting itself would be modest: application and decision dates, outcome, the type of underlying federal permit, whether conditions were standalone or embedded in another permit, general project category, and high-level classifications of any conditions imposed—each paired with a link to the underlying record. This would make Section 401 decisions visible and comparable without constraining substantive state authority, and it would be ripe for AI-driven analysis.
Congress may need to make choices on Section 401 before comprehensive data is available. That doesn’t diminish the case for future-proofing decision-making against guesswork. Permitting reform is a long-term, iterative effort across many statutes—better to have data informing decisions along the way. The success of reform may ultimately depend on whether its effects are measurable. Congress shouldn’t continue to regulate in the dark.
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