Ari Sillman is a student at HLS, JD 2021. This is part of a series analyzing the April 10th executive orders on energy infrastructure. See the links at the bottom of this page for the related pieces.
President Trump signed two executive orders on April 10, 2019 in Crosby, Texas, outside of Houston: EO 13868, titled “Executive Order on Promoting Energy Infrastructure and Energy Growth”, and EO 13867 on permits for cross-border facilities. Section 3 of EO 13868 orders EPA to review the process by which states certify projects receiving federal approvals under the Clean Water Act with the goal of shortening the permitting process. In this piece I provide background on the process and explain what the EO requires of EPA.
What is Section 401 of the Clean Water Act?
Section 401 of the Clean Water Act requires any project seeking federal permits or licenses for activities that “may result in any discharge into the navigable waters” to also obtain a water quality certification from a state or interstate authority. Section 401 certification is generally needed for permits and authorizations to affect wetlands under Sec. 404 of the Clean Water Act, permits under the Rivers and Harbors Act, licenses for hydroelectric power plants issued by the Federal Energy Regulatory Commission, or licenses from the Nuclear Regulatory Commission. This certification process takes a holistic look at the water quality and the uses of the water where the discharge(s) may occur to ensure that water quality is maintained and the water can continue to be used to support human, plant, and animal life.
States may waive their right to issue a certification either affirmatively or by failing to rule on proposed activities “within a reasonable period of time (which shall not exceed one year) after receipt” of a certification request. If a state denies certification, federal agencies cannot permit such activity. A state may also conditionally certify proposed activities as an alternative to full approval.
The scope of §401 is quite broad, it applies to “any activity” that “may” affect navigable waters. The Supreme Court has twice addressed the scope of §401. In 1994, the Court held that a state could require a minimum stream flow requirement as part of its §401 certification process, refusing to create a distinction between water quality and quantity.
In 2006, the Court reaffirmed the ability of states to impose stricter discharge regulations than the federal government under §401 and reaffirmed that such regulations can include a minimum stream flow from hydroelectric dams to ensure minimal ecologic disruption. Still, state regulatory authority under §401 is not absolute. The Ninth Circuit, for instance, has ruled that state regulatory authorities can only regulate discharges from point sources under §401.
Trump’s Executive Order
On April 10, 2019 President Trump issued Executive Order 13868 (Executive Order on Promoting Energy Infrastructure and Economic Growth). Section 3 of the executive order directs the EPA administrator to review §401 of the Clean Water Act and “EPA’s related regulations and guidance” to determine whether and how to adjust EPA regulations and guidance to ensure the efficient permitting of energy infrastructure. The administrator is directed to focus on “the appropriate scope of water quality reviews,” “types of conditions that may be appropriate to include in a certification,” and “expectations for reasonable review times for various types of certification requests,” among other factors.
Once the administrator has completed this review by June 9, 2019 (60 days from April 10), he is directed “to issue new guidance to States and authorized tribes” clarifying the factors discussed above, as well as guidance to agencies involved in the certification process. Within 120 days of the order, the administrator is also directed to review EPA’s implementing regulations for §401 to ensure consistency with the goal of permitting efficiency and to update those regulations through a rulemaking.
The EPA administrator is also directed to lead an interagency review with other federal agencies involved in the 401 process to harmonize their approaches. The respective heads of each “401 Implementing Agency” are also directed to update their guidance or rules as appropriate.
The review of §401 was prompted, in part, by the recent experience of oil and gas pipeline developers behind projects such as the Constitution Pipeline. The New York State Department of Environmental Conservation (NYSDEC) ultimately rejected Constitution Pipeline’s request for certification nearly two and a half years after the company initially filed its application for certification. Constitution Pipeline filed suit, alleging that NYSDEC had waived its certification authority. The Second Circuit noted that there was nothing in the record to indicate that “NYSDEC received the information it had consistently and explicitly requested over the course of several years—much less anything to support Constitution’s claim that NYSDEC said ‘it had’ all of the information it required ‘to issue’ the requested certification.” Furthermore, the court held that it lacked jurisdiction to rule on the issue of waiver and dismissed Constitution’s timeliness claim.
Republican senators on the Senate Environment and Public Works Committee have also expressed concern over EPA’s handling of §401. In October 2018, five senators wrote a letter to the acting EPA administrator to request that he review EPA’s implementation of §401 to “ensure it is consistent with the statute.” They specifically complained that “the most recent EPA document regarding Section 401 is a 2010 interim ‘handbook’ issued by the prior administration” which “contains clear misstatements of law.”
The senators took issue with the handbook’s suggestion that states retained the authority to determine what constitutes “receipt” of a certification application to start the timeline on what could be construed as a waiver. The handbook notes that “[t]he amount of time allowed for action on a certification application is determined by the Federal agency issuing the license or permit, while the certifying agency determines what constitutes a ‘complete application’ that starts the timeframe clock.” The senators, by contrast, pointed to a 2018 ruling in the Second Circuit which noted that “[t]he plain language of Section 401 outlines a bright-line rule regarding the beginning of review: the timeline for a state’s action regarding a request for certification ‘shall not exceed one year’ after ‘receipt of such request.’ It does not specify that this time limit applies only for ‘complete’ applications.”
However, the Senators’ representation of the law does not fully reflect the current state of the law in federal courts. Other federal circuits differ on when the clock starts ticking on receipt of a certification request. For example, in 1997 the Fourth Circuit held that a “valid request for certification occurs only if the prospective licensee complies with the state agency’s filing procedures.” Under this reading, a state regulatory agency may decide it has not received a certification request and thus the timeline for waiver of §401 has not begun.
Recent circuit rulings tend towards a limitation of state waiver powers. For instance, in January 2019, the D.C. Circuit held that FERC acted arbitrarily and capriciously when it decided that subsequent withdrawals and resubmissions of a certification under §401 counted as independent requests for certification (and thus did not waive California and Oregon’s §401 powers by violating the Clean Water Act’s temporal restrictions). In its ruling, the court noted that a state’s “withdrawal-and-resubmission scheme could be used to indefinitely delay federal licensing proceedings” and that “Congress intended Section 401 to curb a state’s ‘dalliance or unreasonable delay.’”
The Executive Order in Context
A review of EPA’s approach to §401 may thus lead to a revision of the existing EPA interim handbook to reflect more recent circuit court holdings, potentially limiting the ability of states to ask companies to withdraw and resubmit their applications for certification. Though the executive order directs the EPA administrator to consult with states and tribal authorities about ways to adjust its §401 policies to promote efficient permitting, the administrator is required within 60 days of the order to issue new guidance to states, tribal authorities and federal agencies involved in the §401 process. Given the limited time frame for consultation and the hostility expressed by states to potential infringements on their authority under the Clean Water Act, such guidance is likely to reflect the Trump administration’s priorities around accelerating permitting.
In addition to issuing new interim guidance, the EPA administrator is also directed to adjust existing EPA regulations within 120 days to meet the goals of the executive order. Existing EPA regulations do not set a specific amount of time for a state to have waived its §401 authority, but related regulations give a range between 60 days and six months depending on the permit sought. The executive order also directs the administrator to lead an interagency review process with other 401 Implementing Agencies such as FERC and the Army Corps of Engineers. FERC typically provides states an entire year in which to respond to §401 requests, while the Army Corps of Engineers varies by district. Harmonization of such permitting timelines could lead to a significant reduction in the time that states have to respond to §401 certification requests.
Regardless, certain powers under §401 will remain with state regulatory agencies. Foremost among these powers is the ability to constrain and condition the certification of projects that may result in discharge into waters of the U.S. The text of the Clean Water Act leaves this authority to the states, and new EPA or other federal regulations cannot impinge upon this. However, tightening the timelines for state action could make it challenging for states to comprehensively review projects and could lead to more waivers by default. Furthermore, changes to §401 waiver timelines are likely to face challenges in the courts, meaning that changes to state permitting authority could take a significant amount of time to manifest.
For more information on the energy EOs:
- See analysis by Staff Attorney Hana Vizcarra on Section 5 of the energy infrastructure EO (the ESG section)
- See analysis by Electricity Law Initiative Director Ari Peskoe on Section 7 of the energy infrastructure EO (“Reports on Barriers to a National Energy Market”)
- See analysis by Climate, Clean Air, and Energy Fellow Caitlin McCoy on EO 13867 and the new presidential permit for the Keystone XL pipeline.
- For more information on the EOs visit our Regulatory Rollback Tracker pages on EO 13867 and EO 13868.
 Federal Water Pollution Control Act, 33 U.S.C. § 1341
 Pud No. 1 v. Wash. Dep’t of Ecology, 511 U.S. 700, 719 (1994) (“[p]etitioners also assert more generally that the Clean Water Act is only concerned with water ‘quality,’ and does not allow the regulation of water ‘quantity.’ This is an artificial distinction.”).
 S. D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370 (2006).
 See Oregon Natural Desert Ass’n v. Dombeck, 172 F.3d 1092, 1097-99 (9th Cir. 1998) (holding that §401 of the CWA did not cover discharges from non-point sources such as cattle and agriculture).
 Exec. Order No. 13868, 84 Fed. Reg. 15495 (April 15, 2019).
 See Constitution Pipeline Co., LLC v. New York State Dep’t of Envtl. Conservation, 868 F.3d 87, 99-100 (2d Cir. 2017).
 Id. at 100.
 N.Y. State Dep’t of Envtl. Conservation v. FERC, 884 F.3d 450, 456-57 (2d Cir. 2018).
 Fredericksburg v. FERC, 876 F.2d 1109, 1111-12 (4th Cir. 1989).
 Hoopa Valley Tribe v. FERC, 913 F.3d 1099, 1104-05 (D.C. Cir. 2019).
 See, e.g., 40 CFR § 121.16(b); 40 CFR § 124.53(c)(3).