On June 1, the Environmental Protection Agency (EPA) issued a final rule providing guidance on the project certification process under Section 401 of the Clean Water Act (CWA). According to an EPA press release, the “agency’s final rules increases the transparency and efficiency of the Clean Water Act Section 401…certification process in order to promote the timely review of infrastructure projects while continuing to ensure that Americans have clean water for drinking and recreation.”
In general, Section 401 mandates that “for any federally licensed or permitted project that may result in a discharge into waters of the United States,” a project proposer must first obtain a “water quality certification” that ensures “the discharge complies with applicable water quality requirements.” President Trump requested the rule via Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth,” where the President instructed the EPA to “review EPA’s regulations implementing section 401 of the Clean Water Act…and shall finalize…rules…no later than 13 months after the date of this order.” According to the EPA, “the final rule…provides the EPA’s first holistic analysis of the statutory text, legislative history, and relevant case law informing the implementation of the CWA section 401 program” and “is informed by the Agency’s expertise developed over nearly 50 years of implementing the CWA and policy considerations where necessary to address certain ambiguities in the statutory text.”
The rule “addresses some key areas of the CWA Section 401 certification process” by doing the following: (1) reaffirming the “statutory requirement that action on a certification request must be taken within a reasonable period of time, but in no case later than one year after receipt of a certification request”; (2) reaffirming that “certification is required for federally licensed or permitted activities that may result in a discharge from a point source into a water of the United States”; (3) clarifying that the “scope of a certifying authority’s CWA Section 401 certification review and action is limited to assuring that the discharge from a point source into a water of the United States resulting from a federally licensed or permitted activity will comply with ‘water quality requirements,’ as defined in the rule”; (4) reaffirming the EPA’s “statutory responsibility to provide technical assistance to any party involved in a Section 401 water quality certification process”; and (5) promoting “early engagement and coordination among project proponents, certifying authorities…and federal licensing and permitting agencies.”
The final rule becomes effective on August 30.
