On September 14, the United States Environmental Protection Agency (USEPA ) released a pre-publication version of the Clean Water Act Section 401 Water Quality Certification Improvement Rule (the “2023 Rule”). The 2023 Rule expands Ohio’s (and other states and authorized tribes) authority to block federally-permitted projects based on concerns about the project’s impacts on water quality.
As a reminder, Section 401 of the federal Clean Water Act codified cooperative federalism between the states and the federal government in enforcing the Clean Water Act. Under Section 401, before the federal government issues a permit or license authorizing a “discharge” into a “water of the United States,” the certifying authority—Ohio EPA in Ohio—must have an opportunity to certify that the project will comply with applicable water quality standards. States can grant such a certification, known as a 401 Water Quality Certification, with conditions, waive the opportunity to certify, or deny a 401 Water Quality Certification. Without a 401 Water Quality Certification (or a waiver of the certification), the federal government cannot issue the permit.
This 2023 Rule revises and clarifies the prior 401 Water Quality Certification requirements passed in 2020. That Trump-era rule limited the scope of the review to discharges from point sources. In contrast, this 2023 Rule allows states to consider the entirety of the project’s impacts on water quality of waters of the United States. This could include the effluent from the pipe but also the cumulative impacts from the construction or operation of the project.
The 2023 Rule also revises the timeline for how long the certification process will take. Per the statute, states must decide within a "reasonable period of time" (not to exceed one year) whether to certify a project. The rule clarifies that states and tribes must negotiate that reasonable time within 30 days after the application is received, with an automatic six-month extension if the state and federal government cannot agree on a reasonable time period for the review. This is a departure from the 2020 Rule, which gave the authority to set the reasonable period of time to the federal government.
Moreover, as a potential means to expedite the 401 review, the 2023 Rule also creates opportunities for states to coordinate with stakeholders before the clock starts running. This includes a requirement for the applicant to submit a pre-filing meeting request at least 30 days prior to submitting a certification request, although the rule also allows the state to waive or shorten that requirement.
Last, the 2023 Rule lays out seven default components that must be included in any certification request. Again, however, the rule includes flexibility for states to modify that default list to either conform to a state-created form or to require additional components in a certification request.
Industry groups and legal analysts have already indicated that this rule will be challenged in court. Whether that challenge will be merged with the legal challenge to the 2020 rule, which is currently pending in California federal court, or if it will be a new docket in a more industry-friendly jurisdiction remains to be seen. Moreover, the scope of this rule is inherently narrower than the 2020 Rule as a result of the Sackett decision and the most recent WOTUS definition: A federal permit is no longer required for impacts to certain wetlands, and therefore, a 401 certification is not required either.