Today, June 2, 2021, EPA published a notice indicating that the Agency intends to revise its recently updated regulations implementing Clean Water Act (“CWA”) Section 401. 86 Fed. Reg. 29,541. Although EPA does not plan to reinstate the 1971 regulations that were in effect before the past administration’s rulemaking amended them last year, the Agency’s notice signals its plan to restore greater power to States in line with “the cooperative federalism principles central to CWA Section 401.” EPA’s future proposed revisions will have significant implications for critical energy infrastructure projects, including certain linear projects like transmission lines and pipelines; hydroelectric projects; and certain water-based infrastructure like inland ports.

CWA Section 401 requires persons seeking a Federal permit for an activity that may cause a discharge into waters of the United States to obtain a certification from the relevant State(s) confirming that the proposed activity will not violate State water quality standards. Under EPA’s 1971 regulations and related judicial precedent, States had substantial discretion related to the scope of certification (i.e., what factors the States could consider in reviewing an application for certification) and the scope of conditions imposed on a proposed activity through certification. States also had found ways to circumvent the statutorily imposed one-year deadline for issuing a certification decision. For these and other reasons, the past presidential administration’s EPA significantly revised the 1971 regulations to limit State discretion in these and other areas.

Now, consistent with President Biden’s Executive Order 13990, EPA again plans to revise its regulations implementing CWA Section 401. Notably, EPA is specifically seeking public comment on, among other things, what flexibility States can and should have regarding the timing of issuing a certification decision, as well as the scope of certification and related conditions allowed under Section 401. Additionally, EPA is requesting comment on whether Section 401 authorizes States to include conditions in grants of certification that would allow the certifying State to reopen a certification after the one-year deadline where specified conditions occur (“reopeners”).

Before proposing any revisions, EPA will receive public comment and hold a series of webinar-based listening sessions, including one for project proponents scheduled on June 15, 2021. Interested persons should consult with their attorneys to develop and submit comments to EPA. Comments are due to EPA by August 2, 2021.

If you have any questions, please contact us as insights@goodstewardlegal.com.

Good Steward Legal is a principles-based business law office dedicated to protecting and advancing its clients’ interests by providing them with cost-effective, high-quality legal service.