EPA this week published a Federal Register notice outlining its intention to reconsider and, as necessary, revise the regulations finalized in July 2020 governing the process and requirements for Clean Water Act (CWA) Section 401 state water quality certifications. 

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 such a certification. 

EPA’s original regulations addressing state water quality certifications were promulgated in 1971, prior to the establishment of the current text of CWA Section 401 and multiple court cases addressing its scope and application. The Trump administration therefore promulgated the first rules addressing issues including timeframes for certification, the appropriate scope of reviews and conditions, and other Section 401 procedures.

However, the current rules have proven controversial, and have been the subject of multiple lawsuits filed by environmental groups as well as a coalition of 20 states and the District of Columbia, who have argued that the regulations unlawfully limit the scope of state authority provided by Section 401. As such, in accordance with Executive Order 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, EPA intends to revisit the rulemaking.

While the current rules will remain in place pending EPA’s review, EPA’s notice states that EPA is reconsidering:

• (1) the requirement that project proponents submit a pre-filing meeting request 30-days prior to requesting a Section 401 certification;
• (2) the definition and elements of a certification request;
• (3) the requisite “reasonable period of time” provided to states to act on a certification request;
• (4) the scope of the issues that can be addressed by the certification, which the current rules limit to impacts directly flowing from discharges into “waters of the United States,” as opposed to impacts from “activities as a whole;”
• (5) the authority federal agencies have to review state certification actions;
• (6) whether states and/or third parties should be able to enforce certification conditions;
• (7) whether certifications can be reopened and modified;
• (8) the rights of “neighboring jurisdictions” that might be impacted by a proposed federal activity;
• (9) impacts on or conflicts with existing state Section 401 procedures; and
• (10) how best to coordinate implementation of new rules with states and other federal agencies.

The agency intends to initiate a series of stakeholder outreach sessions, and to revise the regulations “in a manner that is well informed by stakeholder input on the rule’s substantive and procedural components; is better aligned with the cooperative federalism principles that have been central to the effective implementation of the CWA; and is responsive to the national objectives outlined in Executive Order 13990.”

Comments on the potential revisions are due August 2, 2021. Please contact NACWA’s Chief Legal Counsel, Amanda Aspatore, with any questions, or if you would like NACWA to consider filing comments on EPA’s proposal.