A proposed rule issued August 9th appears to move in a different direction from the approach to cooperative federalism promoted by recent EPA initiatives. EPA’s new Water Quality Certification rule seeks to restrict the authority of states and authorized tribal agencies – at least with respect to certain actions under the Clean Water Act. This is a rule to watch for utilities and businesses seeking licenses from the Federal Energy Regulatory Commission, and for developers who need Clean Water Act Section 404 permits from the Army Corps of Engineers.

Section 401 of the Clean Water Act Section gives states and authorized tribes the authority to assess the potential water quality impacts of discharges from federally permitted or licensed projects that may affect navigable waters. This certification process is triggered by a range of federal permitting and licensing decisions. Significantly, the Water Quality Certification is the mechanism by which state and tribal permitting agencies provide input to the Army Corps of Engineers’ issuance of Clean Water Action Section 404 Dredge and Fill permits and the Federal Energy Regulatory Commission’s hydropower and pipeline licensing process.

According to EPA, the proposed rule is “intended to increase the predictability and timeliness of section 401 certification by clarifying timeframes for certification, the scope of certification review and conditions, and related certification requirements and procedures.” (August 9th News Release)

As compared to past practice, including actions upheld by the U.S. Supreme Court, the newly proposed rule would narrow the scope of what a state or tribal authority could consider or require as part of a certification. Under the new rule, a certifying authority’s evaluation and any actions directed as part of a certification decision, would be limited to:

  • Considerations of water quality only: States could no longer consider the effects on, or require actions regarding matters outside water quality, for example air quality or public access to waters.
  • Water quality impacts from the potential discharge associated with a project: States could not consider or mitigate potential impacts from the project generally, but must evaluate and address only the discharge to water.
  • Water quality impacts to waters of the United States resulting from a point source discharge: Impacts from run-off or indirect discharges could not be considered.

Additionally, the proposed rule more firmly defines the timeline. The statute and existing regulations require that a state or other certifying authority must act within a “reasonable period of time,” which shall not exceed a year. The proposed rule would direct federal agencies to establish the “reasonable period of time” for a given review and provides that there is no tolling provision to stop the clock at any time. The failure to issue or deny certification within the time set, or one year at the most, will result in a waiver of the certification requirement.

EPA developed the proposed rule in response to the Administration’s April Executive Order on Promoting Energy Infrastructure and Economic Growth. The proposed rule follows on guidance issued in June pursuant to the Executive Order.

The proposed rule, Updating Regulations on Water Quality Certification, will be open for public comment for 60 days. Companies seeking federal licenses or Clean Water Act Section 404 permits should evaluate the proposed rule, including those topics EPA has specifically identified for input, and consider whether there are topics that warrant comment.

EPA has indicated that the anticipated timeline for finalizing the rule is May 2020.