July 27, 2020

Emerging Developments in Water Quality Certification for Federally Licensed or Permitted Facilities

by Charles R. Sensiba and Elizabeth J. McCormick

For many infrastructure projects requiring a federal permit or license, a major permitting hurdle is water quality certification (WQC) under section 401 of the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq., from the state or Native American tribe authorized to implement the CWA. Section 401(a)(1) requires the federal permitting applicant to request WQC for an activity that “may result in any discharge into the navigable waters” to provide the federal permitting or licensing agency a certification from the state in which the discharge will originate. The WQC is intended to provide reasonable assurance that there will be compliance with enumerated provisions of the CWA. Section 401(d) authorizes the certifying entity to include in any certification conditions “necessary to assure” that the applicant complies with these enumerated provisions, “and with any other appropriate requirement of state law.” Any such conditions must be included as conditions of the federal license or permit issued by the federal agency. Obtaining CWA section 401 certification often leads to project delay, particularly where the state has limited resources to implement this program within the maximum one-year timeframe provided by the statute. In some instances, to extend the maximum one-year time frame, project proponents—frequently at the request of states—have withdrawn their WQC request prior to the expiration of the one-year period and resubmitted it to toll the deadline, leading to additional uncertainty and delay.

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