EHS Administration, Regulatory Developments

Proposed Rule Puts States Back in Power Under the CWA Permitting Process

In following President Joseph Biden Jr.’s Executive Order (EO) 13990 on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, on June 2, 2022, the EPA announced a proposed rule to update the regulatory requirements under the Clean Water Act (CWA) Section 401 Certification Rule. The proposed rule will strengthen the authority of states and tribes to protect their water resources.

“For 50 years, the [CWA] has protected water resources that are essential to thriving communities, vibrant ecosystems, and sustainable economic growth,” says EPA Administrator Michael S. Regan. “EPA’s proposed rule builds on this foundation by empowering states, territories, and Tribes to use Congressionally granted authority to protect precious water resources while supporting much-needed infrastructure projects that create jobs and bolster our economy.”

During the Trump administration, there was a goal to fast-track pipeline and other projects. The 401-certification process allowed states and tribes to block projects for many environmental reasons. At that time, the administration created a rule that made it impossible for states and tribes to block federal water permits unless the project would directly pollute the states’ or tribes’ waters. The rule also only gave these authorities a 1-year deadline to approve these projects.

“At the time, Wheeler said states could no longer use section 401 to block projects citing climate change concerns,” reports Reuters.

The proposed rule “would update the existing regulations to be more consistent with the statutory text of the 1972 CWA; to clarify, reinforce, and provide a measure of consistency with respect to elements of section 401 certification practice that have evolved over the 50 years since the 1971 Rule was promulgated; and to support an efficient and predictable certification process that is consistent with the water quality protection and cooperative federalism principles central to CWA section 401.”

“Now, the EPA says states should have the authority to look beyond pollution discharged into waterways and ‘holistically evaluate’ the impact of a project on local water quality,” says The Washington Post. “The proposal would also give local regulators more power to ensure they have the information they need before facing deadline pressure to issue or deny a permit.”

Until the proposed rule is finalized, the 2020 regulations will remain in place.

While environmental groups support the change, industry has expressed concern about potential permitting delays.

“At a time of increasing regulatory uncertainty and high energy costs, adding bureaucratic red tape is the exact opposite of what is needed,” said American Petroleum Institute Vice President of Midstream Policy Robin Roric in a statement. “A consistent and transparent process for water quality certifications for energy developers and manufacturers is critical to develop vital energy infrastructure and meet increased global demand. We support the [CWA] and are concerned these actions would counteract the well-defined timeline and review process enacted by Congress, increasing permitting delays and allowing states to go well beyond their scope for water quality certifications. As we review the current rulemaking, we look forward to working with EPA to express our concerns and improve the permitting process.”

The proposed rule is expected to be finalized in spring 2023.