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July 6, 2022

EPA Issues Proposed Water Quality Certification Rule

On June 9, 2022, the Environmental Protection Agency (EPA) issued the long-expected proposed new rule for water quality certification (WQC) under Section 401 of the Clean Water Act (CWA). The proposed rule, when finalized, will replace the rule enacted during the Trump administration, which was recently reinstated by the US Supreme Court (see our previous alert). Section 401 of the CWA provides states and authorized tribes with the authority to block federal permits and licenses for projects that the state determines will violate its water quality standards. States and authorized tribes may also impose additional conditions on federal permits in order to minimize the impact of federal projects on waters within their jurisdiction.

The new proposed rule seeks to undo some of the limitations under the current rule, which had narrowed the authority of states and authorized tribes to impose conditions. The proposed rule will allow for review of the “activity as a whole,” to the extent that any aspect of a project’s impact can be considered. That evaluation may include, for instance, pollution from construction or mining activities near water. As a result, the proposed rule broadens the authority of the states and authorized tribes over activities that may not typically be viewed as related to water quality issues.

The proposed rule also provides some clarity with respect to timing. Section 401 requires that states and authorized tribes make a decision on whether to approve or deny an application for WQC within a reasonable time, not to exceed one year. The current rule states that federal agencies should have the unilateral authority to decide what is a “reasonable time.” The proposed new rule grants states and authorized tribes the power to negotiate with the permitting federal agency on a reasonable time, not to exceed one year from the receipt of a request for certification. If the state or authorized tribe cannot come to an agreement with the federal agency within 30 days of receipt of a request for certification, then the default is 60 days from the request. The clock does not start, however, until a federal agency issues a draft license or permit, which, with limited exceptions, must be part of the WQC request,.

If finalized, regulated entities will have more certainty with respect to the timing of their projects, but will have to work with their counsel and consultants to consider the scope of activities that could impact water quality and trigger the imposition of state WQC conditions. In the meantime, businesses and individuals can submit comments on the proposed rule until August 8, 2022. Comments may be made here using the docket number EPA-HQ-OW-2022-0128. The EPA intends to finalize this rule in spring 2023.

If you have any questions regarding the content of this alert, please contact Tom Paul, counsel, at; Emma Marshall, associate, at; or another member of the firm’s Regulatory or Environmental Practice Areas or Energy Team.

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