Regulatory Developments, Special Topics in Environmental Management

EPA Announces Another Revision to CWA Section 401 Certification Rule

On May 27, 2021, the EPA announced in a press release that it will revise the 2020 Clean Water Act (CWA) Section 401 Certification Rule after determining the rule hinders state and tribal authorities from protecting their water resources.

River, CWA, Clean Water Act, Section 401

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“We have serious water challenges to address as a nation and as EPA Administrator, I will not hesitate to correct decisions that weakened the authority of states and Tribes to protect their waters,” says EPA Administrator Michael S. Regan. “We need all state, Tribal, local, and federal partners working in collaboration to protect clean water, which underpins sustainable economic development and vibrant communities.”

The rule changes issued by the EPA in 2020 under the Trump administration significantly limited states’ authority to protect their waters. “The Trump rule made it impossible for a state to block a water permit for a project for any reason other than direct pollution into state waters,” according to Reuters. “It will also set a one-year deadline for states to approve projects. At the time, Wheeler said states could no longer use section 401 to block projects citing climate change concerns.”

“States and Tribes have relied on the [CWA] for almost 50 years to protect our waters and people, and EPA’s action is essential to restoring that historic authority,” says Oregon Governor Kate Brown in the EPA press release. “The prior administration’s rule was not only harmful to the environment, it was corrosive to state, federal, and Tribal partnerships. Communities rely on clean water, businesses rely on clean water, and our environment is dependent on clean water. We welcome this important step by the Biden-Harris Administration to restore a strong, collaborative approach to protecting one of America’s most precious resources.”

The Section 401 Certification Rule was designed by Congress to provide state and tribal authorities with the power to protect their water sources from federally licensed or permitted projects if they feel a project would have an adverse impact on their waters.

“Under Section 401, a federal agency may not issue a license or permit to conduct any activity that may result in any discharge into navigable waters unless the affected state or Tribe certifies that the discharge is in compliance with the [CWA] and state law, or waives certification,” the EPA adds.

Until the revision takes place, the 2020 CWA Section 401 Certification Rule will remain in place. Impacted industries are advised to move quickly before a new rule is put in place that may adversely impact planned projects.

The public and stakeholders will have an opportunity to comment on the direction of the proposed revised regulation. The EPA states it will begin stakeholder engagement in June.

Background

“Executive Order 13990 on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis directed EPA to review and, as appropriate and consistent with applicable law, take action to revise or replace the 2020 Section 401 Certification Rule,” according to the EPA. “Prior to the 2020 rule, EPA promulgated implementing regulations for water quality certification before the 1972 amendments to the Federal Water Pollution Control Act (commonly known as the Clean Water Act), which created section 401.”