10/30/2019 - Regulatory Rollback

Section 401 Water Quality Certification

by EELP Staff

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

Why it Matters

The Clean Water Act (CWA) is a bedrock environmental law intended to prevent discharges of pollutants into waters of the United States without a permit. States set water quality standards-designated uses for water bodies (e.g., water must be swimmable or fishable) with criteria to protect the designated uses. The CWA then provides mechanisms for states to enforce those standards.

CWA section 401 governs certification of water quality. Under section 401, any project seeking federal permits or licenses for activities that “may result in any discharge into the navigable waters” must also obtain a water quality certification from a state or interstate authority. Projects that trigger section 401 certification include projects requiring permits for disturbing wetlands, permits under the Rivers and Harbors Act, licenses for hydroelectric power plants, and licenses from the Nuclear Regulatory Commission. The 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 that the water can support human, plant, and animal life.

Section 401 provides significant latitude to states to issue water quality certifications. States can approve projects without change, conditionally certify activities to reduce harm while allowing projects to move forward, deny certification, or waive the right to issue a certification (either affirmatively or by failing to promptly act). Crucially, if a state denies certification, federal agencies cannot permit such activity.

In recent years, states have used their section 401 authority to deny permits to coal terminals, liquefied natural gas export facilities, and pipelines. Now, the Trump administration is working to shift the balance of power in this federalist feature to facilitate energy project development.

Current Status

June 1, 2020 EPA finalizes the Clean Water Act Section 401 Certification Rule, limiting state authority over water quality certification. The final rule restricts the scope of the state review process to exclude consideration of “…air quality or transportation concerns, public access to waters, energy policy, or other multi-media or non-water quality impacts….” EPA is ambiguous on whether minimum flow can be considered under the rule, simply stating “…neither the proposed rule nor the final rule address minimum flow issues.” EPA also increases the stringency of the one-year deadline for state decisions by allowing the federal agency waiting on the state’s decision to set a “reasonable period of time” for the decision and giving that agency the power to determine whether the state has waived its right to make a decision. The rule is published in the Federal Register on July 13, 2020 and goes into effect Sep. 11, 2020.

July-Aug. 2020 Five lawsuits are filed challenging the Clean Water Act Section 401 Certification Rule:

  • Del. Riverkeeper Network v. EPA, No. 2:20-CV-3412 (E.D. Pa.).
  • American Rivers v. Wheeler, No. 20-04636 (N.D. Cal.).
  • California v. Wheeler, No. 4:20-cv-04869 (N.D. Cal.).
  • S.C. Coastal Conservation League v. Wheeler, No. 2:20-cv-03062 (D.S.C.).
  • Suquamish Tribe v. Wheeler, No. 3:20-cv-06137 (N.D. Cal.).

History

May 31, 1994 The US Supreme Court expands scope of the section 401 certification process in PUD No. 1 v. Wash. Dep’t of Ecology, 511 U.S. 700 (1994) to include conditions for quantity of water flow. The Court holds that a state can require a minimum stream flow requirement as part of its section 401 certification process, refusing to create a distinction between water quality and quantity.

May 15, 2006 The US Supreme Court affirms the ability of states to impose stricter discharge regulations through section 401 certification than the federal government requires in S. D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370 (2006). The Court also reaffirms that regulations can include a minimum stream flow from hydroelectric dams to ensure minimal ecological disruption.

Trump Era

Sep. 26, 2017 Washington State denies section 401 water quality certification to the Millennium Bulk Terminals-Longview project, a proposed coal export terminal sited for construction in and along the Columbia River. The terminal would allow operators to transfer coal from trains to marine vessels.

April 20, 2018 New York State denies section 401 water quality certification to the Constitution Pipeline. This project would have involved the installation of approximately 17.4 miles of natural gas pipeline within New York State waters. 

Aug. 16, 2018 The Senate Committee on Environment and Public Works holds a legislative hearing entitled, “Hearing to Examine Implementation of Clean Water Act Section 401 and S. 3303, the Water Quality Certification Improvement Act of 2018.” The hearing centers on alleged state “abuses” of the section 401 water quality certification program.

Jan. 25, 2019 The DC Circuit rules that California and Oregon exceeded their authority under section 401 in the certification process for a set of hydroelectric dams on the Klamath River. Hoopa Valley Tribe v. FERC, No. 14-1271 (D.C. Cir.).

April 10, 2019 President Trump issues EO 13868, the Executive Order on Promoting Energy Infrastructure and Economic Growth. Section 3 of the EO directs the EPA Administrator to review section 401 of the CWA 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, he is directed to then issue new guidance and consider new regulations on section 401 permitting. For more information on section 3 of EO 13868, see Ari Sillman’s (JD ‘21) summary here; see also our Tracker page on EO 13868 here.

May 6, 2019 Oregon State denies section 401 water quality certification to the proposed liquefied natural gas export facility at Jordan Cove.

May 15, 2019 New York State denies section 401 water quality certification to the Williams Pipeline. This pipeline would have extended the Transco pipeline, which begins in Texas and currently ends in New Jersey, the final 24 miles would travel underwater from New Jersey to reach New York. Williams Transco. later reapplied to New York and New Jersey for water quality certification for the pipeline.

June 7, 2019 EPA releases guidance pursuant to section 3 of EO 13868 clarifying timelines for state review, the agency’s interpretation of the scope of review and the information that can be considered. This guidance provides insight into the administration’s more limited view of the scope of states’ section 401 certification authority.

Aug. 9, 2019 EPA proposes a regulation that would allow the agency to issue CWA permits over state objections concerning a project’s impact on climate change or air quality voiced through the section 401 certification process. This would prevent actions such as those taken in Washington, New York, and Oregon where state regulators used the section 401 certification process to block the construction of coal terminals, liquefied natural gas export facilities, and natural gas pipelines. The comment period is open through Oct. 21, 2019.

Aug. 26, 2019 A coalition of environmental groups, led by California Trout and Trout Unlimited, petitions the Supreme Court to review the DC Circuit decision, Hoopa Valley Tribe v. FERC, finding California and Oregon exceeded their 401 certification authority. A coalition of 21 states, led by Oregon, files a brief as amici curiae in support of the petitioners.

Aug. 28, 2019 The Federal Energy Regulatory Commission (FERC) issues an order determining that New York Department of Environmental Conservation waived its authority under section 401 to issue or deny a water quality certification for the Constitution Pipeline Project, based on the DC Circuit’s decision in Hoopa Valley Tribe v. FERC, No. 14-1271 (D.C. Cir.). The order also denied New York’s request for a stay, allowing the project to advance. 

Dec. 9, 2019 The Supreme Court declines to review the DC Circuit’s decision in Hoopa Valley Tribe v. FERC.

Dec. 12, 2019 FERC denies petitions for rehearing of its Aug. 2019 order filed by environmental organizations and an individual landowner. FERC affirms its determination that New York waived its authority to issue or deny a water quality certification under section 401 for the Constitution Pipeline Project. 

May 15, 2020 New York and New Jersey both deny water quality certification permits for the Northeast Supply Enhancement Pipeline Project, also called the Williams Pipeline for the company developing it, Williams Transco. The New York State Department of Environmental Conservation says in its denial letter, “New York is not prepared to sacrifice the state’s water quality for a project that is not only environmentally harmful but also unnecessary to meet New York’s energy needs.”

June 1, 2020 EPA finalizes the Clean Water Act Section 401 Certification Rule, limiting state authority over water quality certification. The final rule restricts the scope of the state review process to exclude consideration of “…air quality or transportation concerns, public access to waters, energy policy, or other multi-media or non-water quality impacts….” EPA is ambiguous on whether minimum flow can be considered under the rule, simply stating “…neither the proposed rule nor the final rule address minimum flow issues.” EPA also increases the stringency of the one-year deadline for state decisions by allowing the federal agency waiting on the state’s decision to set a “reasonable period of time” for the decision and giving that agency the power to determine whether the state has waived its right to make a decision. The rule is published in the Federal Register on July 13, 2020 and goes into effect Sep. 11, 2020.

July 13, 2020 The Delaware Riverkeeper Network files a lawsuit challenging the Clean Water Act Section 401 Certification Rule and alleges violations of the Administrative Procedure Act, Clean Water Act, and 10th Amendment. Del. Riverkeeper Network v. EPA, No. 2:20-CV-3412 (E.D. Pa.).

July 13, 2020 American Rivers leads a coalition of national, regional, and state environmental groups in filing a lawsuit challenging the Clean Water Act Section 401 Certification Rule, alleging violations of the Clean Water Act and Administrative Procedure Act. American Rivers v. Wheeler, No. 20-04636 (N.D. Cal.).

July 21, 2020 A coalition of 20 states and the District of Columbia file a lawsuit challenging the Clean Water Act Section 401 Certification Rule. California v. Wheeler, No. 4:20-cv-04869 (N.D. Cal.).

Aug. 26, 2020 A coalition of environmental and water conservation groups files a lawsuit challenging the Clean Water Act Section 401 Certification Rule. S.C. Coastal Conservation League v. Wheeler, No. 2:20-cv-03062 (D.S.C.).

Aug. 31, 2020 The Suquamish and Pyramid Lake Paiute tribes and the Orutsararmiut Native Council file a lawsuit challenging the Clean Water Act Section 401 Certification Rule since it also affects tribal review and determinations under the CWA. Suquamish Tribe v. Wheeler, No. 3:20-cv-06137 (N.D. Cal.).

Oct. 23, 2020 The Northern District of California consolidates American River v. Wheeler, California v. Wheeler, and Suquamish Tribe v. Wheeler. Proceedings will take place under In re Clean Water Act Rulemaking, No. 20-04636 (N.D. Cal.).

For additional information, see Ari Sillman’s (JD 2021) summary of section 3 of EO 13868 directing a review of CWA Section 401 guidance.