Wednesday June 22, 2022
The National Law Review —
On 9 June 2022, the U.S. Environmental Protection Agency (EPA) published in the federal register a proposed rule regarding the Clean Water Act (CWA) Section 401 water quality certification process (the Proposed Rule), undoing many of the Trump administration’s changes to that process in 2020.1 While the Proposed Rule seeks to return regulatory authority to states and tribes in a manner more aligned with the agency’s Section 401 certification rules in existence prior to the Trump administration’s rule, expanded state and tribal authority under the Proposed Rule could be used to block or delay development projects at a time when major infrastructure projects are ramping up.
REGULATORY BACKGROUND
Section 401 of the CWA provides an important tool to states and authorized tribes to limit federal authorization of projects that will result in discharge to a water of the United States. Under Section 401, states and authorized tribes have the ability to grant, condition, waive, or deny certification for federally authorized projects to ensure compliance with applicable water quality standards. These certifications are known as Section 401 water quality certifications.
In 2020, the Trump administration promulgated a new rule implementing Section 401 (the 2020 Rule), which had the overarching effect of narrowing states’ and tribes’ authority over Section 401 water quality certifications. For example, the 2020 Rule narrowed the scope of certification review from the “activity as a whole” to “discharge only” and allowed federal agencies to unilaterally set the “reasonable period of time” within which water quality certification must be issued. Following litigation challenging the 2020 Rule, an October 2021 order by the U.S. District Court for the Northern District of California remanded and vacated the 2020 Rule because of errors in the Rule’s scope and indications that the Rule contravened the structure and purpose of the CWA.2 This decision was appealed to the Ninth Circuit. On 6 April 2022, the United States Supreme Court granted a stay of the vacatur.3 This vacatur means that the 2020 Rule will stay in effect until a new rule is finalized or one of the courts declares otherwise.