On June 1, 2022, the Environmental Protection Agency issued a proposed rule regarding Section 401 of the Clean Water Act, which provides that any applicant for a federal license/permit to conduct activities that may result in discharge into navigable waters must obtain a Section 401 water quality certification from a certifying authority (generally the state or authorized tribe where the discharge would originate). The Section 401 certification may impose conditions to ensure that the discharge will comply with the certifying authority’s water quality requirements. For example, Federal Energy Regulatory Commission (FERC) licenses for hydropower facilities and natural gas pipelines are subject to Section 401 certification. If finalized, the EPA’s proposed rule would replace the currently-effective version, issued in 2020 under the Trump Administration (2020 Rule).
Key takeaways from the EPA’s proposed rule include that proposed rule would allow the certifying authority to waive or shorten the pre-filing request. The proposed rule would require that the project proponent, when submitting a Section 401 certification request, include a draft of the relevant federal permit or license and any existing/readily available data or information related to potential water quality impacts from the project. Further, the certifying authority and the federal agency would be able to agree to a reasonable period of time, of not more than one year, by when the certifying agency must act on a certification request after receiving the request. If no agreement is reached, the default reasonable period of time would be 60 days from receipt. The proposed rule also offers a definition of acting on a request for certification: the certifying authority may grant, grant with conditions, waive, or deny certification. While failure to act by a certifying authority would be deemed a waiver, procedural deficiencies would be insufficient to constitute a waiver.
Unlike the 2020 Rule, the proposed rule does not take a position on the permissibility or legality of withdrawing and resubmitting requests to reset the reasonable period of time. Further, the proposed rule broadens the scope of the 401 certification by allowing certifying authorities to review project activities with the potential to affect water quality (as opposed to the 2020 Rule, which limits review to point source discharge into navigable waters). The EPA’s proposed rule would also allow certifying authorities to modify 401 certifications with the agreement of the federal agency that issued the license/permit.
The proposed rule also limits federal agency review of the 401 certification to whether the certification clearly states the decision (whether it is a grant, a grant with conditions, denial, or express waiver), the correct certifying authority issued the certification, whether certifying authority gave public notice while considering certification, and whether the certification was issued within a reasonable time period. Finally, the proposed rule expands Tribes’ authority to receive treatment in a similar matter as a state (TAS) status. This means Tribes can implement water quality certification programs and object, as a “neighboring jurisdiction,” to the issuance of licenses when a discharge may affect that Tribe’s water quality.
