The EPA has narrowed state and tribal authority to evaluate and impose conditions on proposed projects under CWA Section 401.
The EPA's final Clean Water Act Section 401 Certification Rule, published in the Federal Register June 1, 2020, limits what factors state and tribal governments may consider, and what limitations they may impose, on a proposed project that requires a federal license or permit, in order to ensure that the project meets state or tribal water quality standards. The rule also gives the federal agency closer control over the timing of state and tribal review. The rule becomes effective 60 days after its June 1 publication date.
Section 401 requires an applicant for a federal license or permit that may result in a discharge to navigable waters to obtain a water quality certification from the affected state or tribe before a federal agency may issue the license or permit. If a state or tribe determines that a project does not comply with the relevant standards, the state or tribe may impose further conditions on or deny certification for a project - even if the project meets other requirements for the federal license or permit.
If a state or tribe fails to act on an applicant's request for certification within a reasonable period of time of the request, the state or tribe waives its certification authority and no longer may certify, impose conditions on, or deny certification for the project.
Changes to Section 401
The new rules in revised CWA Section 401 (40 CFR Part 121) include the following changes from the previous rule:
The federal permitting agency for a proposed project must establish the "reasonable period of time" within which the state or tribe must act on the certification request, or risk waiving its certification authority. The federal agency may extend this period once it is set, but may not extend it beyond one year from the applicant's certification request.
A state or tribe has up to one year, or less depending on the period set by the relevant federal permitting agency, on receiving a 401 certification request to grant, grant with conditions, or deny certification for the project. A state or tribe may no longer request that an applicant withdraw and resubmit a certification request.
Revised Section 401 defines a "certification request" and lists the information that, when submitted, triggers the state's or tribe's period for review of the request.
An applicant's certification request need not be complete or substantially complete to trigger the reasonable review period timeline, and need not conform with other state or tribal criteria for triggering a Section 401 certification review.
A state or tribe may only review licensed or permitted activities that may result in a point source discharge into a Water of the United States. States and tribes may only impose conditions that are directly related to water quality requirements, specifically, "those provisions of State or Tribal law that contain requirements for point source discharges into water of the United States." States and tribes no longer have authority to impose conditions on or deny projects when the condition or denial relates to water quality impacts from the overall project. The condition or denial must relate to the water quality impacts from a specific point source discharge. States and tribes must include a statement with any conditions imposed on a Section 401 certification explaining the necessity of the condition for achieving compliance with requirements for discharges into Waters of the United States.
A state or tribal Section 401 certification must be reviewed by the federal permitting agency to confirm that the state and tribe complied with Section 401 procedural requirements.