Legal Updates

The Environmental Protection Agency (EPA) has proposed a new Clean Water Act Section 401 rule, which may delay and/or limit federal approvals of projects that discharge into federally protected waters.  The proposed rule specifically provides states and tribes the power to grant or deny Section 401 water quality certificates, which serve as prerequisites to federal permit approvals.

Previously, the Trump Administration’s 2020 rule limited this power of the states and tribes, and instead granted more authority to the federal government. The 2020 rule only allowed states and tribes to consider pollution discharges; the new proposed rule allows the assessment of whether the project “as a whole” complies with water quality requirements, including quality-related state or tribal laws.

The new proposed rule also loosens time restrictions on the states’ and tribes’ consideration of requests for certification. Previously, the EPA was given the power to waive the certification requirement entirely if a state or tribe determination took too much time. Instead, the new proposed rule requires decisions within “a reasonable period of time,” not to exceed one year, and allows the state/tribe to negotiate with the overarching federal agency regarding the specific length of time allowed.

Once the proposed rule is published in the Federal Register, public comments may be submitted for 60 days. Connell Foley will continue to monitor the developments regarding this proposed rule and project permit reviews under the Clean Water Act, and will advise its clients accordingly.