EPA requests comments on potential changes to Clean Water Act water certification program

Key Takeaways

On April 23, the U.S. Environmental Protection Agency (EPA) held an Executive Order 13132 (EO 13132) Federalism consultation with state and local governments on their upcoming efforts to review and revise Section 401 of the Clean Water Act (CWA). Under EO 13132, federal agencies are required to consult with state and local governments and/or their national associations on pending rules and regulations that could significantly impact state and local governments.

The consultation follows President Trump’s April 10th Executive Order on Promoting Energy Infrastructure and Economic Growth, which instructed the agency to revisit Section 401 CWA policies that prevent energy projects from moving forward. Section 401 requires companies to obtain certificates from states before building federally-approved infrastructure, like pipelines, within that state’s borders, giving states the authority to deny projects if they deem it would have a negative impact on water quality, even if the project has already received federal approval. Many state groups expressed concerns that the new EO would block states' authorities to regulate pipelines and other energy infrastructure siting projects.

In response to the federalism consultation, the EPA is seeking input form state and local governments regarding the following questions:

• How could EPA increase coordination and information-sharing among the states, federal agencies and project proponents? Are there any states or tribes that currently have a process in place that facilitates early information sharing?
• What factors play a role in a slowdown of the 401-certification process? What factors help speed up certification decision-making?
• What federal permits and licenses, beyond CWA Sections 402 and 404, the Rivers and Harbors Act, and the Federal Energy Regulatory Committee, are subject to Section 401?

During the consultation, the EPA provided a PowerPoint presentation describing the potential scope of the revision and requesting state and local government comments on opportunities and challenges to modify Section 401. While NACo does not have specific policy on Section 401 water certifications, counties oppose efforts to preempt state and local government processes, planning and decision-making authorities. As co-regulators and regulated entities under the CWA, counties stand ready to work with our federal partners to streamline the CWA permitting process, while maintaining existing state and local government authorities.

Comments are due to the EPA on May 24, 2019. To comment, click here. Please include Docket No. EPA-HQ-OW-2018-0855 in your comments. For more information about the rulemaking, please click here.