(July 22, 2020) – Last week, EPA finalized updates to its regulations governing the Clean Water Act (CWA) Section 401 state water quality certification process.  The Agency proposed the changes in August of last year pursuant to Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth.” 

Under CWA Section 401, a federal agency may not issue permits or licenses to conduct any activity that may result in any discharge into “waters of the United States” – such as CWA permits from the Army Corps of Engineers needed for  critical infrastructure development – unless a state or authorized tribe either issues a certification verifying compliance with existing water quality requirements or waives its certification. 

EPA’s previous regulations addressing state water quality certifications were promulgated in 1971, prior to the establishment of the current text of CWA Section 401. According to EPA, therefore, the new rule “for the first time in Agency history” comprehensively addresses the certification process in a way that was “informed by a holistic analysis of the statutory text, legislative history, and relevant case law.” 

The rule addresses both substantive and procedural requirements concerning 401 certifications, including timeframes for certification, the appropriate scope of reviews and conditions, and other Section 401 procedures. Notably, the rule limits the time period for a state to act to a maximum of one year after receipt of a certification request, and limits the scope of the state’s review process to ensuring “point source” discharges into “waters of the United States” – rather than project activities as a whole – will meet specified water quality requirements.

While the new regulations do not become effective until Sept. 11, 2020, several environmental groups as well as a coalition of 20 states and the District of Columbia have already initiated lawsuits against the rule, claiming that it unlawfully limits the scope of state authority provided by CWA Section 401. 

Please contact NACWA’s Chief Legal Counsel, Amanda Aspatore, with any questions concerning the final rule.