June 3, 2020

EPA Issues Final Rule that Limits Misuse of the Clean Water Act

 

WASHINGTON (June 1, 2020) — Today, after speaking with U.S. stakeholders via conference call, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced a final rule that will help accelerate and promote the construction of important energy infrastructure across the United States, while ensuring the nation’s waterways are protected. The agency’s final rule increases the transparency and efficiency of the Clean Water Act Section 401 (Section 401) certification process in order to promote the timely review of infrastructure projects while continuing to ensure that Americans have clean water for drinking and recreation.

“EPA is returning the Clean Water Act certification process under Section 401 to its original purpose, which is to review potential impacts that discharges from federally permitted projects may have on water resources, not to indefinitely delay or block critically important infrastructure,” said EPA Administrator Andrew Wheeler. “Today, we are following through on President Trump’s Executive Order to curb abuses of the Clean Water Act that have held our nation’s energy infrastructure projects hostage, and to put in place clear guidelines that finally give these projects a path forward.”

EPA finalized this rule pursuant to the direction of Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth.” In this Executive Order, President Trump directed EPA to review Section 401 and EPA’s related regulations and guidance to determine whether the agency’s policies should be updated or clarified. In this final rule, EPA conducted the first comprehensive analysis of the text, structure and legislative history of Section 401. The final rule:

  • Specifies statutory and regulatory timelines for review and action on a Section 401 certification—requiring final action to be taken within one year of receiving a certification request.
  • Clarifies the scope of Section 401, including clarifying that 401 certification is triggered based on the potential for a project to result in a discharge from a point source into a water of the United States. When states look at issues other than the impact on water quality, they go beyond the scope of the Clean Water Act.
  • Explains EPA’s roles under Section 401.
  • Reaffirms the agency’s statutory responsibility to provide technical assistance to any party involved in a Section 401 water quality certification process.
  • Promotes early engagement and coordination among project proponents, certifying authorities and federal licensing and permitting agencies.

To read the final rule and to learn about the Clean Water Act Section 401 water quality certification process, please visit https://www.epa.gov/cwa-401.

Background

Clean Water Act Section 401 gives states and authorized tribes authority to assess potential water quality impacts of discharges from federally permitted or licensed projects that may affect navigable waters within their borders. Properly implemented, Section 401 is an important tool that can be used to help protect water quality while allowing federal permitting and licensing processes to proceed in a timely manner.

At the time the Executive Order was issued, EPA’s water quality certification regulations were nearly 50 years old and did not reflect the statutory language in Section 401. Prior to issuing its proposed rule, EPA held consultations with state, local and tribal partners and engaged with federal partners on this rulemaking effort. The agency also invited written pre-proposal recommendations through a public docket. EPA received more than 120,000 public comments on the proposed rulemaking and carefully reviewed all comments received in completing this final rule.