EHS Administration, Regulatory Developments

A Closer Look at Proposed Changes to the 401 CWA Water Quality Certification Rule

In June 2022, the EPA issued a proposed rule to update regulatory requirements under Section 401 of the Clean Water Act (CWA).

The Trump administration issued the first changes to these rules in 50 years, known as the 2020 Rule.

Many felt the 2020 Rule removed long-standing state and tribal rights to block federal water permits for a wide variety of environmental reasons and limited their ability to block these permits unless the project would directly pollute the waters within their jurisdiction.

Under Section 401, a project that requires a federal permit because it could result in a discharge into waters of the United States (WOTUS) must obtain a water quality certification from the certifying authority—a state or a tribe.

Examples of these types of Section 401 regulations include:

  • CWA Section 404 dredge and fill permits from the Army Corps of Engineers (Corps)
  • Hydroelectric licenses from the Federal Energy Regulatory Commission (FERC)
  • CWA Section 402 pollutant discharge permits from the EPA

Key components of proposed changes

The EPA’s proposed rule, in addition to reinstating long-standing state and tribal rights, also proposes the following changes to the 2020 Rule:

  1. Pre-filing meeting requests. Project proponents must request a pre-filing meeting with the certifying authority at least 30 days before requesting federal certification or provide proof that the certifying authority waived or shortened this requirement.
  2. Certification content. Certification requests must include:
  3. A copy of a draft federal license or permit
  4. Any existing and readily available data or information related to potential water quality impacts from the proposed project

Certifying authorities may regulate their own required elements for certification requests.

  • Reasonable period of time. “Under the proposed rule, the licensing agency and certifying authority negotiate the reasonable period of time for the certification decision, provided that it does not exceed one year from the certifying authority’s receipt of the certification request,” says Pierce Atwood in a JD Supra article. “If the certifying authority fails to grant, grant with conditions, deny, or expressly waive certification within the reasonable period of time, the failure to act may be treated as a constructive waiver and the licensing agency may proceed to issue the license.”
  • Scope of review. The rights of states and tribes to broadly “evaluate impacts from any aspect of the project activity with the potential to affect water quality” are restored.
  • Certification options. Four options for certification decisions are provided to certifying authorities:
  • Grant certification.
  • Grant certification with condition.
  • Deny certification.
  • Expressly waive certification.
  • Neighboring jurisdictions. More detail and explanation is provided on the neighboring jurisdiction process under Section 401(a)(2), including the roles of the actors involved, defining when the neighboring jurisdiction process begins, and the minimal contents of a notification to the EPA.
  • Federal agency review. Federal agency review of certification decisions is limited to whether:
  • The certifying authority has indicated the nature of the certification decision (i.e., grant, grant with conditions, deny, or waiver).
  • The proper certifying authority issued the decision.
  • The certifying authority provided public notice on the request for certification.
  • The decision was issued within a reasonable period of time.

When one or more of the conditions are found to be unmet during the federal review process, the proposed rule requires the reviewing federal agency to “provide the certifying authority with an opportunity to remedy the deficiency, provided the time period for review has not expired or if the time can be extended,” states the EPA Fact Sheet on the proposed rule. “Consistent with the statute, a waiver of certification may only occur if the certifying authority fails or refuses to act within the reasonable period of time.”

The EPA expects to finalize the rule by spring 2023.