August 9, 2022

Volume XII, Number 221

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August 08, 2022

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EPA Proposes Changes (Again) to CWA Water Quality Certification Rule

Recently, the Environmental Protection Agency (EPA) issued a proposed rule to replace existing regulatory requirements for water quality certifications under Section 401 of the Clean Water Act (CWA).

As with many other recent changes in environmental regulations, these proposed changes were prompted by President Biden’s January 2021 Executive Order 13990, which directed EPA to review agency actions taken by the Trump administration. As noted in our July 13, 2020 alert, under the Trump administration EPA replaced prior water quality certification regulations that had been in place for nearly 50 years, effective September 2020 (the 2020 Rule).

Under the Biden administration, EPA reviewed the 2020 Rule and concluded that its provisions were inconsistent with the CWA’s statutory text, the legislative history of Section 401, and the water quality protection goals of the CWA.

Key proposed changes include:

  • Scope of certification. The proposed rule broadens the scope of certification to include evaluation of all potential water quality impacts to any water body, including waters beyond the navigable water into which the triggering discharge occurs, resulting from the proposed project. This means that the certifying authority may consider the broadest possible range of water quality effects of the “activity as a whole.”

  • Contents of a certification request. The proposed rule defines only limited requirements for certification requests, including that the request must contain a copy of the draft federal license. According to EPA, this will facilitate more targeted certification conditions by ensuring that the certifying authority knows which water-quality-related conditions the licensing agency has preliminarily decided to impose. Aside from these requirements, states and tribes may determine by regulation their own requirements for a certification request.

  • Neighboring jurisdictions. The proposed rule expands the definition of the term “neighboring jurisdiction” but clarifies that the scope of Section 401(a)(2) is limited to considerations of potential effects only from a “discharge” from an activity, and requires EPA to determine within 30 days whether a discharge “may affect” a neighboring jurisdiction.

  • Reasonable period of time to determine a certification request. Under the proposed rule, the licensing agency and certifying authority negotiate the reasonable period of time for the certification decision, provided that it does not exceed one year from the certifying authority’s receipt of the certification request. If the certifying authority fails to grant, grant with conditions, deny, or expressly waive certification within the reasonable period of time, the failure to act may be treated as a constructive waiver and the licensing agency may proceed to issue the license.

  • Enforcement authority. The proposed rule clarifies that Section 401 does not preclude states and tribes from exercising their independent enforcement authority of certification conditions.

Public comment on the proposal must be received on or before August 8, 2022. A virtual public hearing will be held on July 18, 2022 (with registration required by July 12, 2022).

©2022 Pierce Atwood LLP. All rights reserved.National Law Review, Volume XII, Number 175
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About this Author

Lisa Gilbreath, Pierce Atwood, Environmental lawyer
Associate

Lisa Gilbreath is an associate in the Environmental & Land Use and Energy Infrastructure Development, Acquisition & Financing practice groups. Lisa works on a wide variety of environmental and energy matters, offering clients strategic advice in regulatory, legislative, and judicial proceedings.

In her environmental practice, Lisa assists clients with numerous issues including energy project development permitting, energy and environmental litigation, air quality legislative and regulatory activities, air quality enforcement, hazardous substances and...

(207) 791-1397
Matthew D. Manahan, Pierce Atwood LLP, Environmental lawyer
Partner

Since 1989 Matt Manahan has worked closely with businesses to find innovative solutions to the environmental law issues they face. He provides strategic counsel in regulatory, legislative, and judicial proceedings involving a broad range of environmental and land use issues, including those relating to energy project development, transfer and development of contaminated property, water use, energy, and Native American regulatory claims.

Matt is adept at stakeholder negotiations, including with state and federal regulators, that are a necessary part of large...

(207) 791-1189
Michelle N. O'Brien, Pierce Atwood, environmental attorney
Partner

Michelle O'Brien handles environmental and land use permitting and related litigation for various types of developments including residential homes, commercial buildings, waterfront properties, wind turbines, and solid waste facilities. She defends companies in environmental enforcement matters at the federal, state, and local levels. She represents private parties in cost recovery and property damage claims involving releases of oil and hazardous materials, and assists clients with real estate transactions involving contaminated properties.

An accomplished...

(617) 488-8146
Brian M. Rayback, Pierce Atwood, environmental regulatory lawyer
Partner

Brian Rayback focuses his practice on environmental and land use law, with expertise in all aspects of water, air, natural resources, solid waste, and zoning regulation.

Brian provides cost-effective, strategic advice on project permitting, enforcement matters, appeals of agency decisions, regulatory compliance, and legislative issues for property developers and owners, trade associations, utilities, construction companies, and industrial and manufacturing facilities. He regularly appears before federal, state, and local boards and agencies to assist clients in...

(207) 791-1188
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