December 20, 2019

State water quality certification: What’s all the fuss about?

Susan L. Stephens

Recent proposed amendments to rules implementing the Clean Water Act may substantially change the way states and tribes interact with federal agencies on permits affecting water quality. The extent of the changes will vary program to program and state to state, as discussed below.

Under section 401 of the Clean Water Act (CWA), a federal agency cannot issue a permit or license for activities or projects that may discharge to a navigable water without the appropriate sign-off from the states or authorized tribes (hereinafter states/tribes) where the discharge will occur. Specifically, states/tribes must certify that the discharge will comply with their water quality requirements—or waive certification.

Under the CWA, states/tribes must act on their section 401 authority “within any reasonable time not to exceed one year,” and that action can take number of forms. The state/tribe can voluntarily or involuntarily waive, deny, or grant water quality certification, with or without conditions.

The Environmental Protection Agency (EPA) enacted rules implementing section 401 in 1971, at 40 C.F.R. part 121. Authorizations subject to CWA section 401’s requirements include section 402 discharge and section 404 dredge and fill permits, Federal Energy Regulatory Commission (FERC) hydropower licenses, and Rivers and Harbors Act (RHA) section 9 permits.

Setting for change

40 C.F.R. part 121 has not been updated in nearly 50 years and, according to EPA, is inconsistent with the text of CWA section 401, leading to confusion and delay in certain states. Accordingly, on August 22, 2019, EPA issued a proposed rule updating EPA’s water quality certification rules. 84 Fed. Reg. 44,080 (Aug. 22, 2019). This rulemaking is in response to President Trump’s April 15, 2019, Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth.” Under the executive order, EPA is scheduled to finalize the rule in May 2020. 84 Fed. Reg. 15,495 (Apr. 15, 2019).

Summary of proposed rule

According to the preamble, the proposed rule is intended to provide consistency with CWA section 401, increase efficiencies, and clarify aspects of certification that have been unclear or subject to differing legal interpretations in the past. EPA is proposing a wholesale replacement of 40 C.F.R. part 121. Compared to the existing rule, the proposed rule:

  • Clarifies that the scope of the section 401 certification process applies only to licenses or permits to conduct an activity that may result in a discharge from a point source into navigable waters.
  • Specifies that certification is limited to assuring the licensed or permitted activity will comply with water quality requirements.
  • Specifies the contents and form of a request for certification, including the time to respond.
  • Specifies that the “reasonable period of time” to act on a certification request cannot exceed one year under any circumstances, and that the requesting agency shall specify the applicable “reasonable period of time” for the state/tribe to respond. The rule provides factors to consider in establishing what is “reasonable,” such as complexity of the project. The federal agency may modify the time period upon written request, but the state/tribe cannot ask the project proponent to withdraw or modify its action to restart the clock.
  • Clarifies that the scope of review is limited to potential water quality impacts caused by the point source discharge.
  • Specifies under what conditions a state/tribe may request additional information. Additional information must be within the scope of certification and directly related to the discharge and its potential effect on water quality.
  • Requires that the project proponent request a pre-filing meeting with EPA when EPA is the certifying authority.

Expected impacts

The rule changes affect only federal permitting actions; where the state/tribe has assumed CWA permitting authority, section 401 certification is not required. For CWA section 402 discharges pursuant to the National Pollution Discharge Elimination System (NPDES) program, the states have largely assumed the NPDES discharge permitting program. EPA issues section 402 NPDES discharge permits in only four states (Idaho, Massachusetts, New Hampshire, and New Mexico) as well as the District of Columbia and U.S. territories and on federal and tribal lands. In areas where states have NPDES permitting authority, the new rule will have no effect. For CWA section 404 permits, the situation is almost entirely reversed, with only New Jersey and Michigan issuing section 404 permits in lieu of the U.S. Army Corps of Engineers (Corps); water quality certification is required for section 404 permits elsewhere. States may have operating agreements in place with the Corps that address how water quality certifications for section 404 permits will be handled; these agreements may need to be modified, for example by changing the form and content of certification requests. See, e.g., Memorandum of Agreement Between the U.S. Army Corps of Engineers and the Texas Natural Resource Conservation Commission on Section 401 Certification Procedures (Aug. 17, 2000); Operating Agreement Among the Jacksonville District of the U.S. Army Corps of Engineers, the State of Florida Department of Environmental Protection et al. (Sept. 4, 2012). The rule changes will also affect FERC licensures and RHA section 9 permitting.

Over 1,000 comments were received on the proposed rulemaking. The biggest change is expected to be the time frames under which states/tribes must act or waive the certification requirement. Objectors claim the rules would allow the federal agency to dictate the time in which states/tribes can respond, notwithstanding the one-year backstop in the CWA. Many also claim the new rules inappropriately narrow the scope of certification review. The Association of Clean Water Administrators, Western Governors Association, and Environmental Council of the States, along with attorneys general from 16 states, have all raised objections to the proposed rules, arguing the rules improperly restrict states’ CWA authority. The bipartisan Western States Water Council concedes that improvements are needed to allow for more timely review, but stresses that legitimate reasons for delay must be recognized and authorized.

Susan L. Stephens

Susan L. Stephens is a shareholder with Hopping Green & Sams in Tallahassee, Florida. She is the chair of the Section’s Endangered Species Committee and Communications vice chair for the Water Quality and Wetlands Committee.