If finalized, the proposed rule would replace the 2020 rule that is currently in effect and would expand the scope of state and tribal reviews.

On August 8, AGC submitted comments in response to the U.S. Environmental Protection Agency’s proposed revision to the rule implementing the Clean Water Act (CWA) section 401 certification process, which provides for state review of federal CWA licenses or permits. The proposal rule if finalized would replace the 2020 rule that is currently in effect and would expand the scope of state and tribal reviews.

The proposal goes beyond prior interpretations of the statute and includes many “firsts” that stretch the scope of the review beyond Congressional intent. The proposal would require states and tribes to evaluate “the activity as a whole” instead of the discharge point and for “the life of the license or permit” without clear definitions or parameters. EPA also is proposing that section 401 applies to all waters, not just “navigable waters,” which could lead to federal regulation of state waters. The proposal encourages states to “consider the broadest possible range of water quality effects” and provides example conditions that a state could impose on a project such as recreational fishing access, parking lots, and tree planting. The proposal would require the project proponents to secure a draft permit before the 401 review, which could delay projects. The proposal also for the first time would allow certifying authorities and federal agencies to later modify the certification without input or agreement by the project proponent/permittee.

Background

The CWA provides for state review of federal CWA permits, such as section 404 dredge and fill permits or 402 stormwater permits, to ensure that any federally permitted discharges comply with certain effluent limits and water quality standards specified in the Act. States are supposed to act on the review within a reasonable period of time (not to exceed one year) or the review is effectively waived. States can condition their approval, and some states have a list of general conditions that they apply across the board.

In 2020, EPA revised their 401 rules to clarify the timelines and scope of the review process which had become expansive and time-consuming. The 2020 rule was challenged in court and vacated by the U.S. District Court for the Northern District of California without a ruling on the merits.  On April 6, 2022, the U.S. Supreme Court issued a stay of that vacatur thereby bringing the 2020 rule back in effect.

For more information, contact Melinda Tomaino at [email protected].