Merit-Less Decision Vacates Trump-Era Water Certification Rule

On October 21, 2021, the United States District Court for the Northern District of California issued an order vacating (invalidating) the entirety of EPA’s rule revising its regulations implementing Clean Water Act (“CWA”) Section 401 (“Certification Rule”), which were adopted during the Trump administration.  This vacatur fully restores EPA’s 1971 regulations implementing CWA Section 401. The consolidated case is In re Clean Water Act Rulemaking, Case No. 20-04636 (N.D. Cal.).

CWA Section 401’s Requirements Apply Broadly and Implicate Important Energy, Waterfront, and Other Infrastructure.

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) that the proposed activity will not violate applicable 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.  During the Trump administration, EPA adopted the Certification Rule to overhaul the 1971 regulations and limit State discretion.

The Court Vacated the Certification Rule Because EPA Had Too Many “Substantial Concerns.”

Responding to EPA’s request for a remand without vacatur, the district court vacated the Certification Rule in its entirety. The court did so without reaching the merits. Instead, the court reasoned that the APA allows for vacatur without reaching the merits where there is sufficient doubt as to the correctness of the agency action and disruption would be minimal.

Relying on EPA’s stated “substantial concerns” about “nearly every substantive change” made by the Certification Rule, the court found adequate doubt about the Rule’s correctness. The court also found disruption would be minimal because no institutional reliance on the Rule was reasonable and progress towards the environmental goals of the CWA “carries inherent economic effects.”

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A copy of the decision is available here.

If you have any questions about this decision, its implications for existing permits, or how it may impact pending or future permitting applications, please contact jared@goodstewardlegal.com.

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