Jun 142022

U.S. Environmental Protection Agency Proposes Updates to State Certification Process Under Clean Water Act Section 401

Caleb J. Bowers and Samuel B. Boxerman
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A recently proposed rule by the U.S. Environmental Protection Agency (EPA) seeks to expand the powers of states and tribes in approving or denying projects that require Clean Water Act (CWA) authorization. On June 9, 2022, EPA published for public comment its proposed Clean Water Act Section 401 Water Quality Certification Improvement Rule, which would significantly alter a Trump-era rule regarding the grounds on which state and tribal certifying agencies may impose conditions on, or outright block, projects that receive federal authorization.

The CWA requires that before any activity that will discharge into “waters of the United States” receives a federal permit or approval, a certifying authority (typically a state) must either issue a water quality certification or waive certification for the activity. This certification requirement, in effect, incorporates state law requirements into the federal permitting process that may result in a more stringent environmental review process for certain federally authorized activities. For example, a state may decide to add its own permit conditions and effluent limitations to any federal permit. In effect, Section 401 certification provides states and tribes with “veto” power over a number of activities requiring a CWA permit, such as CWA Section 402 permits from EPA for discharges to surface waters, CWA Section 404 dredge-and-fill permits from the U.S. Army Corps of Engineers, and hydroelectric licenses from the Federal Energy Regulatory Commission.

The different approaches that states take in performing Section 401 certification review can cause unpredictability in the certification process, in particular when multiple jurisdictions are involved. Under the Trump administration, in 2020, EPA published a certification rule that sought to more clearly define the grounds for states to deny or condition a Section 401 water quality certification. EPA is now proposing to expand those grounds, asserting that the proposed rule will be “better aligned with the cooperative federalism principles that have been central to the effective implementation of the CWA, and … responsive to the environmental protection and other objectives outlined in Executive Order 13990” (which directs agencies to review prior actions for inconsistency with established environmental principles). 87 Fed. Reg. 35319-35320.

In particular, EPA’s proposed rule would 1) retain the requirement for an applicant to request a prefiling meeting with the certifying agency 30 days before submitting an application, 2) impose a new requirement for the applicant to provide a draft permit and any readily available water quality data related to impacts from the proposed activity, and 3) provide the state certifying agency a role in determining the “reasonable period of time” to review the request. It would also encourage states to adopt an “activity as a whole” approach that considers the impacts of the entire project rather than just the specific discharge for which the applicant requests certification.

EPA’s proposed rule has been published in the Federal Register for public comment, with Docket ID No. EPA-HQ-OW-2022-0128. The public comment period will remain open until August 8, 2022.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Caleb J. Bowers

Los Angeles

cbowers@sidley.com

Samuel B. Boxerman

Washington, D.C.

sboxerman@sidley.com

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