EPA issues final rule for Clean Water Act Section 401

U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler has announced a final rule the EPA says “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 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,” according to a press release.

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. EPA says 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.

“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,” Wheeler said. “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.” U.S. President Donald 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.

When 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. Before issuing its proposed rule, EPA held consultations with state, local and tribal partners, engaged with federal partners and invited written pre-proposal recommendations through a public docket. EPA received more than 120,000 public comments on the proposed rulemaking.

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 U.S. When states look at issues other than the impact on water quality, they go beyond the scope of the CWA.
  • 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.

Delays in CWA Section 401 certifications as part of the hydropower licensing process have been an issue for several years. The new rules will hopefully shake loose the more than a dozen projects currently delayed in their Federal Energy Regulatory Commission licensing process and help streamline the process for the more than 300 existing projects that will go through the relicensing process over the next decade.

Click here to read the final rule and to learn about the CWA Section 401 water quality certification process.

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