ILMA Compoundings - August 2020 - 33

WASHINGTON LANDSCAPE

EPA Finalizes Section
401 Permitting Changes
By Matthew Levetown

I

n 2019, the U.S. Environmental
Protection Agency (EPA) was
directed by President Donald Trump
to review Section 401 permitting under
the Clean Water Act (CWA), which
requires states to certify that a project
seeking a federal permit or license will
meet CWA quality standards.
Project owners and developers have
long complained that the process to
obtain state Section 401 certification can
be burdensome, confusing and at odds
with the statutory language. In finalizing
its new Section 401 rule, which takes
effect on Sept. 11, the EPA looked at
the sometimes-inconsistent case law
and congressional intent to determine
that the proper role of state and tribal
governments in the Section 401 process
should be restricted to determinations
of how a project will directly impact
water quality, even if the project is not
expected to emit pollutants.
As a quick overview, under CWA
Section 401, a federal agency may not
issue a permit or license to conduct
any activity that may result in any discharge into waters of the U.S. unless
a state or authorized tribe where the
discharge would originate issues a
Section 401 water-quality certification
that verifies compliance with existing
water-quality requirements or waives
the certification requirement.
Section 401 permitting works as
follows: An entity wants to construct
a project that includes federal permits
or licenses; timely examples include
oil pipelines. The proponent applies
for the federal permits or licenses,
and the EPA makes a decision about
whether the project may impact water
quality and informs the potentially
affected state or tribe. Hearings

and consultations happen, the state
or tribe provides a certification of
conditions required to maintain water
quality, and the federal permit or
license is issued with said conditions
in mind.
Critics of Section 401 permitting
point to states requiring expansive environmental testing and projects unrelated
to water quality that delay construction for years. I personally cannot
attest to the EPA-noted instances of
state-certifying agencies asking for
commitments to construct hiking and
biking trails from permit seekers.
'REASONABLE TIME MEANS, AT
MOST, ONE YEAR'
The new rule directs federal agencies
to take three factors into consideration
in defining "reasonable time" for state
and tribal governments to complete
their certifications, with a maximum
time frame of one year. While the
one-year time period is statutory, there
have been a number of ways certifying states and tribes get around the
one-year limit to delay projects. The
EPA noted a case where a certification
request was extended by withdrawing
and resubmitting at the request of
the state to toll the deadline. Other
examples included requirements for
"complete" applications before beginning the process, which can include
extensive environmental analyses
unrelated to water quality.
As a result of the changes, federal
agencies will establish a reasonable
timeframe for review of the project,
either on a categorical or case-by-case
basis, taking into account complexity,
nature of potential discharge and
potential need for further evaluation
of impact on water quality. After

defining the "reasonable time" for
certifying authorities to respond by,
the deadline begins immediately upon
receipt of a certification request by the
project owner and can be extended up
to the maximum period of one year.
INSPECTION BY ALL, ENFORCEMENT
BY SOME (PROBABLY)
The final rule places the burden of
enforcing Section 401 discharge
certifications by the states and tribal
governments entirely on the federal
agency issuing the permit or license, as
the EPA determined that there is no
independent authority under the CWA
for enforcement by multiple agencies.
Once a certification is complete, the
issuing state or tribe takes on a more
advisory role in conducting inspections and sharing information with
the permitting agency for noncompliance. However, after receiving the
certification, including a requirement
about why each condition in the
certification is necessary to prevent
direct impacts on water quality, which
must now be tailored to comply with
water-quality requirements instead of
"reasonable assurance" of compliance,
the federal agency can omit the
condition if it determines it is
unnecessary. As a result, stakeholders
and project proponents gain an extra
opportunity to lobby against recalcitrant states. State inspectors are bound
by the final permit when they conduct
pre-operational checks.
While the rule narrows the scope of
authority of states and tribes to attach
conditions to a Section 401 permit,
there is one expansion of power. Conditions can attach to any project that
affects water quality in any way, rather
Continued on page 35

33
ILMA Compoundings - August 2020

Table of Contents for the Digital Edition of ILMA Compoundings - August 2020
