by Paul Ciampoli
APPA News Director
Posted June 12, 2020

The Environmental Protection Agency (EPA) on June 1 issued its final Clean Water Act (CWA) section 401 rule to clarify timeframes for water quality certification, the scope of certification review and conditions and related certification requirements and procedures.

The final rule, which was issued is in accordance with Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth,” clarifies that a state’s review and action under section 401 must be limited to water quality impacts to waters of the U.S. resulting from a potential point source discharge from a proposed federally licensed or permitted project.

The water quality certification may not address matters unrelated to water quality (e.g., greenhouse gas emissions or transportation impacts) or the applicant’s activity as a whole.

Also, the regulations clarify that a state waives its certification authority if it does not act upon a request for certification within a reasonable period of time, which cannot not exceed one year. This time period does not pause or stop for any reason once the state has received the certification request.

Changes from the proposed rule include requiring a project proponent to request a pre-filing meeting with state officials before formally seeking a section 401 certification and clarifying that federal agency review of a state’s certification decision document is focused on compliance with the procedural requirements of the CWA section 401 process rather than the substantive aspects of the document.

The final rule is effective 60 days after publication in the Federal Register.

The final rule is significant to members of the American Public Power Association because it should ensure consistent implementation of section 401 and timely issuance of water quality certifications. While the rule may provide clarity for some project proponents, some states have indicated they plan to challenge the final rule on the grounds the rule usurps states’ rights under the CWA.

Additional information about the final here is available here.