The Biden Administration Proposes Changing the Water Quality Certification Review Process for Federally Permitted Projects 

June, 2022 - Sean Herman

The U.S. EPA proposed a new rule under the Clean Water Act reversing the Trump Administration’s rule for water quality certifications under section 401 of the Act. Section 401 provides states and tribes with authority to protect waters within their jurisdiction from pollutant discharges originating from federally-licensed or -permitted projects. It does so by requiring project proponents to obtain a water quality certification from the states or tribes before the federal government may permit the project. Through the certification process, states and tribes may impose conditions on federal permits to minimize projects’ impacts to waters within their jurisdiction.


The Trump Administration’s rule narrowed states’ and tribes’ authority under the section 401 certification process in a few ways, which the Biden Administration’s proposed rule tries to undo. Two key changes stand out above the others.


Scope of Review. The Trump Administration limited state and tribal authority under section 401 to only discharges from “point sources” (which are discrete conveyances of pollutants, like pipes or ditches). In contrast, the Biden Administration tries aligning that authority with Supreme Court precedent by allowing a more holistic evaluation of a project’s water quality impacts. In allowing review of the “activity as a whole,” the proposed rule allows states and tribes to evaluate impacts from any aspect of the project activity. That evaluation may include, for instance, pollution from construction equipment or mining activities near water. As a result, the proposed rule covers activities not typically viewed as water quality issues regulated under the Clean Water Act.


Timeline for Review. Section 401 requires that states and tribes must decide a water quality certification application within a “reasonable period of time,” not to exceed one year. While the Trump Administration’s rule authorized the EPA to unilaterally determine that “reasonable period of time,” the new rule grants states and tribes the power to negotiate with the EPA.” If the certifying authority and EPA do not agree within 30 days, then the reasonable period of time will default to 60 days from receipt of the water quality certification request.


The EPA will accept comments on the proposed rule for 60 days following publication in the Federal Register. The EPA intends to finalize the rule in Spring 2023. Should you have any further questions or concerns about how these laws affect you, contact our Water Law attorneys.


 



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