June began with a revision to the Clean Water Act (CWA)’s environmental rules and regulations. Today, we’ll explain what that section of the law does, and what the changes mean for state and tribal government review of federal projects moving forward.
Section 401 Certification
Starting in April of 2019, the current administration started a process to review Section 401 of the CWA. The process is meant to speed up approval of energy projects as a result of an Executive Order titled “Promoting Energy Infrastructure and Economic Growth.” In particular, oil and gas pipelines were targeted.
According to the above-mentioned Executive Order, the environmental rules and regulations that implement Section 401 “are causing confusion and uncertainty and are hindering the development of energy infrastructure.” The United States Environmental Protection Agency, which enforces the CWA, was charged with updating the regulations and guidance related to the certification process. In August of 2019, the EPA signed a proposed rule, and allowed for public comment on the revisions. The process resulted in a final rule dated June 1, 2020 which revises the regulations located in 40 C.F.R. § 121. These revisions include a one-year deadline for review and certification (or denial) of the covered projects and require the decision to be based solely on whether or not the project will result in direct pollution into state waters.
Section 401 of the CWA requires federal license and permit applicants to obtain certification from states and Native American tribal governments. This certification serves to show that the project will not discharge pollutants into waters within the jurisdiction’s borders. A state or tribal government, following the related environmental rules and regulations, has a few options. It may either certify the project, certify with conditions, or deny certification. Additionally, a state or tribal government waives the requirements to certify a project if it fails to act within one year. The practical effect of inaction is that the project is considered certified and may proceed. If the state or tribal government denies certification because the project will likely result in water pollution, the project cannot be approved or permitted by the federal agency.
Responses to the Changes
The reactions to the changed regulations seem to be split. The federal government previously voiced that Section 401 of the CWA has been used to delay projects for years. Not surprisingly,many developers and permit applicants agreed! The objections to Section 401 were based on reasoning that goes beyond the scope of the review given to states and tribal governments under the applicable environmental rules and regulations.
Opponents of the changes believe that the changes were implemented to push pipeline projects through quickly. Also, that the changes deprive states of their CWA rights to review and certify these projects by limiting them. Among the opponents are states and environmental groups,
The new rule is now in place. As a result, it is important to recognize the changes. Of course, many are saying that there might be legal challenges to these revised environmental rules and regulations. However, while the revision is in place, states and tribal governments will first need to ensure that they meet the one-year deadline for reviewing projects under Section 401. This means that decisions must be issued within that timeframe.
Additionally, Section 401 decision makers must carefully assess projects under the scope provided by the new regulations. The review must also be based upon the allowed criteria.
The attorneys at Desautel Law have experience with Section 401 of the CWA. We have litigated these claims in federal and state courts. If you have questions, we are ready and able to answer them and discuss the changes to environmental rules and regulations. Email or call us today at 401.477.0023.