The Upcoming Battle Over Water Quality Certifications
Section 401 of the Clean Water Act (CWA) states that a federal agency may not issue a permit to conduct any activity that may result in any discharge into waters of the U.S., unless the state where the discharge would originate either issues a water quality certification or waives the certification requirement. Under Section 401, an applicant for a federal permit must submit a request for a certification to the state, which has a reasonable period of time (not more than a year) to grant the certification, grant the certification with conditions, deny the certification or waive the opportunity.
Congress enacted Section 401 as an exercise in cooperative federalism to allow states to help protect the water quality of federally regulated waters within their borders in collaboration with federal agencies. In recent years, though, several states that oppose the construction of natural gas pipelines have denied Section 401 certifications or used Section 401 to delay the issuance of the federal permit. For example, upon submittal of the certification request, the state would request more and more information to avoid the beginning of the review timeframe.
In response to these efforts, President Trump issued Executive Order 13868 in April 2019, which required federal agencies to review, among other things, reasonable review times for certification requests and the scope of water quality reviews. The EPA then issued guidance in June indicating that the review time period should be a reasonable one, but no more than one year, which should begin upon receipt of a written request for certification. Requests by a state for additional information should not pause or toll the review timeframe. The scope of the review should be limited to potential water quality impacts.
The EPA recently proposed a rule to solidify the position it took in the June guidance memorandum. The proposed rule amends rules in 40 Code of Federal Regulations Part 121 that have been in place since 1971, even before the enactment of the modern CWA in 1972.
The proposed rule reiterates that the reasonable timeframe for review begins upon receipt of the certification request, which is a written, signed and dated communication from an applicant that includes the specified information in the proposed rule. The certification request must also include a statement that the applicant requests that action be taken within the applicable reasonable period of time. The proposed rule also defines the scope of the certification review, which is limited to assuring that a discharge from a federally permitted activity will comply with water quality requirements. In turn, water quality requirements are defined as the named sections of the CWA set out in Section 401 and EPA-approved state provisions.
The executive order, EPA’s guidance and the proposed rule are all designed to ensure that federal projects receive a timely review and the scope of the review is limited to the specific provisions set out in Section 401. It is likely, if not inevitable, that the several states currently using Section 401 to deny or delay pipeline projects will oppose this rule through comments in opposition and litigation once it is finalized. As a result, it may be a while before applicants in some states obtain a timely review of a certification request.