On May 27, the Environmental Protection Agency (EPA) announced its intent to reconsider the Clean Water Act (CWA) Section 401 final rule issued by the Trump administration in June 2020 (Final Rule).
Section 401 of the CWA provides a cooperative federalism framework where states and authorized Tribes can issue a water quality certification that places conditions on a proposed project or action requiring a federal permit. Under President Trump, EPA revised the regulations implementing Section 401, to among other reasons, create greater regulatory certainty in the process, reaffirm one year means one year or less as authorized by statute, address the scope of review by clarifying conditioning authority is focused on water quality effects of the discharge as opposed to the entire activity, and modernize the application process. While some states have intervened in support of EPA to defend the Final Rule (including Texas and West Virginia), other states (including New York and California) and environmental groups have challenged the Final Rule. Courts are currently holding these proceedings in abeyance in light of the change in administration. It is not clear how the reconsideration notice will affect these abeyances, but the courts may simply continue to hold the cases in abeyance pending a replacement rule being issued.
EPA seeks to conduct public outreach to gather input on whether the Final Rule serves CWA Section 401’s goal of ensuring that states and authorized Tribes are empowered to protect their water quality, which will then inform a subsequent proposal. Particularly, EPA is soliciting comments about whether the Final Rule appropriately considers cooperative federalism principles central to CWA Section 401, including but not limited to, the following:
In an associated Q&A document released concurrently with the reconsideration announcement, EPA makes clear that the Final Rule remains effective during this reconsideration proceeding. However, it also indicates a willingness to “evaluate potential administrative approaches to help address … near-term challenges” prior the reconsideration being finalized.
EPA also indicates that it does not intend to readopt the previous set of regulations that were in place prior to the Final Rule, which suggests the agency acknowledges that the historical 401 certification process was in tension with the modern CWA framework. It will be important for project proponents to highlight the significant burdens and delays that the previous interpretation of 401 certification authority caused, including for many projects that are important to achieve the Biden administration’s climate change and infrastructure goals.
Comments on the announcement are due within 60 days of its publication in the Federal Register and should be submitted in docket EPA-HQ-OW-2021-0302 via the rulemaking portal https://www.regulations.gov/ or by email at OW-Docket@epa.gov.