On 9 June 2022, the U.S. Environmental Safety Company (EPA) printed within the federal register a proposed rule concerning the Clear Water Act (CWA) Section 401 water high quality certification course of (the Proposed Rule), undoing most of the Trump administration’s modifications to that course of in 2020.1 Whereas the Proposed Rule seeks to return regulatory authority to states and tribes in a fashion extra aligned with the company’s Section 401 certification guidelines in existence previous to the Trump administration’s rule, expanded state and tribal authority underneath the Proposed Rule might be used to dam or delay improvement tasks at a time when main infrastructure tasks are ramping up.
Section 401 of the CWA offers an essential instrument to states and licensed tribes to restrict federal authorization of tasks that may lead to discharge to a water of america. Below Section 401, states and licensed tribes have the flexibility to grant, situation, waive, or deny certification for federally licensed tasks to make sure compliance with relevant water high quality requirements. These certifications are referred to as Section 401 water high quality certifications.
In 2020, the Trump administration promulgated a brand new rule implementing Section 401 (the 2020 Rule), which had the overarching impact of narrowing states’ and tribes’ authority over Section 401 water high quality certifications. For instance, the 2020 Rule narrowed the scope of certification evaluation from the “activity as a whole” to “discharge only” and allowed federal companies to unilaterally set the “reasonable period of time” inside which water high quality certification should be issued. Following litigation difficult the 2020 Rule, an October 2021 order by the U.S. District Court docket for the Northern District of California remanded and vacated the 2020 Rule due to errors within the Rule’s scope and indications that the Rule contravened the construction and goal of the CWA.2 This determination was appealed to the Ninth Circuit. On 6 April 2022, america Supreme Court docket granted a keep of the vacatur.3 This vacatur implies that the 2020 Rule will keep in impact till a brand new rule is finalized or one of many courts declares in any other case.
THE PROPOSED RULE
In its Proposed Rule, EPA seeks to revise and make clear the circumstances underneath which Section 401 water high quality certification is required, returning authority to states and tribes in accordance with Section 401’s “cooperative federalism” method. To perform this, EPA proposes the next substantial modifications:
Increasing the scope of evaluation for Section 401 water high quality certifications. The Proposed Rule modifies 40 C.F.R. § 121.3 to require certifying authorities to guage whether or not the “activity as a whole will comply with all applicable water quality requirements,” relatively than merely the discharge.
Giving states and tribes the ability to barter what constitutes a “reasonable period of time” to behave on a request for certification. The Proposed Rule modifies § 121.6 to permit the federal authorities and certifying authority to conform to an inexpensive time frame (most one 12 months).
Clarifying the federal authorities’s scope of evaluation. The Proposed Rule provides § 121.9—federal company evaluation—which might restrict federal companies’ evaluations of state and tribal water high quality certifications to the adequacy of the certification underneath relevant laws. It additionally requires federal companies to offer states and tribes with a possibility to repair any errors.
Along with these main modifications, EPA additionally proposes a sequence of smaller revisions to the 2020 Rule, together with, for instance, lowering necessities for pre-filing assembly requests.
The takeaway, if the Proposed Rule is finalized, is that states and tribes could have extra authority to evaluation tasks and broader authority to situation or deny Section 401 water high quality certifications. Increasing the powers of state and tribal certifying authorities at a time when the Biden administration seeks to ramp up infrastructure spending and improvement might put federal, state, and tribal authorities at cross-purposes, creating further hurdles for regulated firms trying to develop and construct infrastructure and vitality tasks.
The 60 day public remark interval on the Proposed Rule ends 8 August 2022.
1. 87 Fed. Reg. 35318 (June 9, 2022).
2 .In re Clear Water Act Rulemaking, No. 3:20-cv-04636-WHA, 2021 WL 4924844 (N.D. Cal. October 21, 2021).
3. Louisiana v. Am. Rivers, No. 21A539 (S. Ct. April 6, 2022). The Supreme Court docket stayed the vacatur pending disposition of the attraction within the Ninth Circuit and disposition of the petition for a writ of certiorari to the Supreme Court docket (if sought)