The U.S. Environmental Protection Agency (EPA) issued on June 1 its final rule amending Section 401 of the Clean Water Act, under which states are given authority to issue permits certifying that any discharges into the state’s waters from a proposed project will comply with Clean Water Act, including state-established water quality standard requirements. A permit under Section 401 was required for both the Atlantic Coast Pipeline and the Mountain Valley Pipeline.
The new rule takes steps to limit the authority of a state in exercising its permit-granting authority, including requiring that a state act on its 401-certification within one year. The rule was proposed in August 2019 in accordance with President Trump’s Executive Order 13868, issued in April 2019, that directed EPA to streamline the 401-certification process. The final rule has been met with praise by industry groups and criticism from environmental organizations, as well as from many state regulatory officials. Comments critical of the proposed rule were filed jointly by the Council of State Governments, National Association of Counties, National League of Cities, Association of Clean Water Administrators and others.
The new rule will become effective 60-days after it is published in the Federal Register (which had not occurred as of this writing). For a copy of the final rule, click here; and for EPA’s press release, click here. For additional analysis of the new rule, click here.