Clean Water Act Section 401 Certifications
Section 401 of the Clean Water Act requires that federally-permitted projects involving discharges into waters of the United States must obtain a certification from the relevant state that the project meets state water quality standards. States are required to act on a state water quality certification request within a “reasonable period of time” — not to exceed one year — or the certification requirement is waived.
In December 2018, the Army Corps of Engineers released a policy directive that would drastically shorten the timeframe for states to review section 401 certification requests. The memorandum would provide states only 60 days to act on a certification request, even if the request is incomplete or otherwise deficient.
In response, in April 2019, New York Attorney General James led a fourteen state coalition in sending a letter to the Army Corps of Engineers objecting to the policy. The attorneys general noted that the directive violates the Clean Water Act’s core objective to restore and maintain the chemical, physical and biological integrity of the country’s waters as states will not have sufficient time to ensure that a proposed project meets state water quality standards. The comment letter also pointed out that the memorandum violates the Administrative Procedure Act (APA) because it was issued without providing the public the opportunity to comment on the policy directive.
Earlier in April 2019, President Trump issued the Energy Infrastructure and Economic Growth executive order, which among several provisions, requires the EPA to review the state water quality certification process for energy development projects. The executive order directs the EPA, before issuing new section 401 guidance, to evaluate the“appropriate scope” of water quality reviews as well as the“nature and scope” of information states may need to act on a certification request within a prescribed period of time.
In May 2019, New York Attorney General James led a coalition of 16 attorneys general in submitting comments in response to the EPA’s request for comments in response to the April 2019 executive order. The comments objected to any efforts to shorten the time frame for states to complete the section 401 water quality certification process as it would restrict state oversight of state water quality certification applications.
The attorneys general also noted that the process that the EPA is using to review the section 401 process is procedurally flawed as EPA only has 17 days from the closure of the public comment period on the 401 process to the executive order’s deadline for issuing new section 401 guidance. The comments pointed out that the EPA cannot “possibly review-let alone meaningfully consider” the substantive comments it will receive on the large range of state water quality certification issues in such a short timeframe.
In June 2019, the EPA issued its new section 401 guidance in response to the April 2019 executive order. The guidance imposes strict limits on states’ abilities to collect complete information about a federally-permitted project’s expected impacts on water quality. EPA’s document also attempts to curtail the time limit provided states in section 401 to complete reviews of water quality certification requests.
In July 2019, California Attorney General Becerra led a coalition of 14 attorneys general in filing comments in opposition to the new section 401 guidance. The letter noted that the guidance improperly contravenes the language of the Clean Water Act in limiting the information states can require be submitted to evaluate water quality certification applications. The attorneys general also insisted that the guidance violated the Clean Water Act in attempting to restrict the time states have to review section 401 certification requests.
Ignoring the objections of the attorneys general and following the roadmap laid out in the April 2019 executive order, the EPA issued a proposed rule in August 2019 on water quality certifications under section 401 of the Clean Water Act. The proposal includes a strict “outer bound” within which a state must act on a water quality certification request and limits state authority to act on requests to only those projects that would discharge pollutants from point sources into protected waters. Additionally, federal agencies would be provided the authority to ignore the imposition of conditions on water quality certifications by states, and construct a project that could harm state water quality, if the agencies determine the imposed conditions do not satisfy the regulatory definition of “conditions.”
In October 2019, Washington Attorney General Bob Ferguson spearheaded a coalition of 23 attorneys general in filing comments opposed to the proposal. The comments pointed out that the proposal’s strict time limit on a state acting on a certification request ignores section 401’s clear language that states are to have a “reasonable” period of time up to one year to act on the requests. Moreover, the agency’s action unlawfully restricts the states’ section 401 review process to pollution discharges from point sources in clear violation of the Clean Water Act’s instruction that the section 401 review process is to include a review of the entirety of a project’s impact on state water quality standards. The attorneys general also noted that there is no basis in the statute’s text or legislative history for providing federal agencies the authority to issue a project a permit for construction without also including lawfully imposed conditions intended to protect state water quality.
In July 2020, the EPA ignored the concerns of the attorneys general and published a final rule on water quality certifications under section 401 of the Clean Water Act. The rule imposes a strict limit on the time states have to review water quality certification requests, restricts states’ section 401 review process to pollution discharges from point sources and prohibits states from considering how a federally permitted project as a whole will impact state water quality.
That same month, California Attorney General Becerra, Washington Attorney General Ferguson and New York Attorney General James led a coalition of 21 attorneys general in filing a lawsuit in federal district court in California challenging the lawfulness of the July 2020 final rule. The lawsuit notes that the final rule violates section 401 of the Clean Water Act in placing a time limit on states’ water quality certification reviews, restricting the review process to discharges from point sources and prohibiting consideration of the impact of the project as a whole on water quality. Consequently, the rule is arbitrary, capricious, and an abuse of discretion in violation of the APA. The attorneys general seek a declaration that the July 2020 rule violates the Clean Water Act and APA and request that the court set aside and vacate the rule.
In September 2020, the Federal Energy Regulatory Commission (FERC) released a proposed rule intended to ensure compliance with the EPA’s July 2020 rule on water quality certification applications for federally-permitted projects under section 401 of the Clean Water Act in connection with a project for which authorization is sought from FERC under section 3 or 7 of the Natural Gas Act (NGA). FERC proposed that a state certifying authority waives its authority to issue a water quality certification under section 401 of the Clean Water Act in connection with a NGA section 3 or section 7 project if it has not denied or granted a certification one year after the certifying agency receives the written request for certification.
In November 2020, Maryland Attorney General Brian Frosh led a coalition of 16 attorneys general in submitting comments on FERC’s proposed rule. Learn more about the proposed rule here (see “Ensuring States Have Sufficient Time to Review the Clean Water Act Impacts of Projects”).
The comments voiced the states’ strong support for providing state certifying authorities with the maximum amount of time allowed by statute before the section 401 certification authority is waived. It would be difficult for the certifying authority to complete the review with anything less than the maximum review period given the complexity of natural gas pipeline projects. Additionally, the attorneys general noted their concerns with EPA’s underlying section 401 water quality certification rule by including their October 2019 comments on EPA’s proposed section 401 rule and the lawsuit that the attorneys general filed in California federal district court challenging EPA’s final section 401 rule.