On September 14, 2023, the Environmental Protection Agency (EPA) announced its final Clean Water Act (CWA) Section 401 Water Quality Certification Improvement Rule.
Unless a state or authorized Tribe issues a CWA Section 401 water quality certification, a federal agency may not issue a license or permit to conduct any activity that may result in any discharge into “waters of the United States.” The water quality certification ensures “that any such discharge will comply with the applicable provisions of Sections 301, 302, 303, 306, and 307” of the CWA.
In 2020, the Trump administration limited state and tribal oversight from “the activity as a whole” to a “discharge-only” approach. The Biden administration’s rule restores the “activity” approach, but only as it relates to water quality concerns. The rule expands state and authorized Tribe’s powers where projects occur within their borders.
In light of the recent Sackett v. EPA decision, less waters will fall under the “waters of the United States” definition. Because of this, the rule will likely have less reach than the pre-2020 version.
Nevertheless, opponents of the rule are concerned by the potential that this expansion of power is a way to delay or veto infrastructure projects. EPA contends that the rule streamlines projects and bolsters cooperative federalism. State and authorized Tribes may decide when a “pre-filing meeting request will lead to a more efficient certification process.” However, states and authorized Tribes will have six months to register their objections to projects, which could ultimately delay projects. Litigation over the rule is likely.
The final rule will become effective 60 days after it is published in the Federal Register. Our team will continue to provide updates.
Section 401 has been a regular target for industry members and GOP lawmakers, many of whom feel that states led by Democrats have weaponized the provision to delay projects like oil and gas pipelines.