On August 8, the EPA announced a proposed rule that would revise Section 401 of the Clean Water Act (CWA), which gives states the responsibility to “certify” that proposed projects meet water quality standards. State Section 401 certifications approvals are required before the federal government may sign off on CWA Section 402 and 404 permits, Federal Energy Regulatory Commissioner (FERC) hydropower licenses and Rivers and Harbors Act Section 9 and 10 permits. The new proposed rule creates a tighter timeframe and criteria for states to review permits. The agency is accepting comments on the proposed regulations through October 21, 2019.

The proposed rule builds on a similar guidance issued by the EPA in June 2019, which creates a tighter timeframe and criteria for states to review, approve or deny proposed energy projects. Several provisions of the June guidance are solidified in the proposed rule, including limiting states to one year from the time the submittal is received to approve or deny a certification. In addition, the proposed rule prevents states from considering issues beyond water quality in their certification process. To read EPA’s press release on the proposed rule, click here.

The recently proposed rule follows concerns expressed by the administration and industry groups that states have used the Section 401 process to put additional requirements on or deny energy infrastructure siting projects. After releasing the guidance in June, it was anticipated that legal challenges would be filed, prompting the administration to undergo a more formalized rulemaking since guidance can be easily overturned at any time, or from one administration to the next.

In May 2019, NACo, along with other local government groups, sent a letter to EPA Administrator Andrew Wheeler requesting a delay to a proposed rule on Section 401 until after the EPA could more fully engage with state and local governments. To view the letter, click here.