EPA Finalizes Amendments to Clean Water Act 401 Certification Process

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On June 1, 2020, EPA finalized amendments to the Clean Water Act section 401 certification process.  The amendments update the substantive and procedural requirements for state water quality certifications.  The rule is almost certainly going to be challenged in court by states and special interest groups.  If it survives, however, the new rule could provide companies with greater planning certainty by reducing project permitting delays, although the danger is that states may deny more certification applications.

Section 401 authorizes States and Tribes to certify that a discharge into waters of the United States that may result from a proposed activity will comply with certain enumerated sections of the CWA, including the effluent limitations and standards of performance for new and existing discharge sources (sections 301, 302, and 306 of the CWA), water quality standards and implementation plans (section 303), and toxic pretreatment effluent standards (section 307).  States have significant authority under section 401.  A state can deny certification, or a state can impose extensive conditions on its certification to ensure compliance with state water quality standards.  In addition, states can impose conditions on the project as whole, and not just its discharges.

The rule was partially in response to state actions in recent years that have blocked or extensively delayed interstate energy infrastructure projects.

Among other things, the amendments to the final rule will require certifying agencies take action on a certification request "within a reasonable time…which shall not exceed 1 year of receipt" of the request.  Additionally, the final rule narrows the scope of the state certification to "considerations of water quality" from point source discharges. 

The pre-publication version is available here.  The amendments will take effect 60 days after publication of the final rule in the Federal Register.

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