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EPA working changes from executive order
Agency’s guidance for Section 401 of the Clean Water Act has now been updated and revised regulations are due out this August Kristen Nelson Petroleum News
In April President Donald Trump signed two executive orders aimed at speeding up government approval of energy infrastructure. One of the orders dealt, in part, with Section 401 of the Clean Water Act.
The Environmental Protection Agency released updated guidance for Section 401 of the CWA June 7. Under Executive Order 13868, the agency said, “EPA was directed to issue guidance for federal permitting agencies and state and authorized tribal authorities to modernize previous guidance and clarify existing CWA Section 401 requirements.”
U.S. Sen. Lisa Murkowski, R-Alaska, said in a June 10 statement that she welcomed the announcement and hopes the new guidance “will reduce abuse of the Clean Water Act to block infrastructure needed to provide reliable and affordable energy.” She said vital protection for water resources will be maintained under the updated guidance “while promoting responsible development of our energy resources.”
EPA said it new guidance replaces interim guidance issued in 2010 and also recommends early collaboration and coordination for the 401 certification process among federal agencies, states and authorized tribes.
Executive Order 13868 also directed EPA to propose new rules modernizing its CWA Section 401 and required the agency to implement new regulations by Aug. 8.
EPA said it intends to propose regulations further clarifying and streamlining Section 401 certifications. Since the Executive Order was issued in April, EPA said, it has initiated formal consultations with its state, local and tribal partners, and outreach to its federal partners, and invited pre-proposal recommendations through a public docket.
Section 401 Section 401 of the CWA requires approval by the state or authorized tribe for federal permits or licenses for any activity that may result in discharge into waters of the United States.
EPA said Section 401 of the Clean Water Act “provides states and authorized tribes with an important tool to help protect water quality within their borders in collaboration with federal agencies,” but said rules governing the authority have not been updated in nearly 50 years. Evolving case law and the agency’s outdated guidance “have caused some confusion and resulted in delays in certain infrastructure projects with potentially significant national benefits,” EPA said.
EPA said the CWA provides that states and authorized tribes must act on their Section 401 authority within “any reasonable time not to exceed one year,” with definition of the reasonable period up to the federal permitting or licensing agency.
Implementation of executive order EPA said in a June 7 letter to governors, tribal leaders and cabinet secretaries that it was rescinding EPA’s April 2010 Interim Handbook, which had provided guidance to CWA Section 401 water quality certifications. It said the Interim Handbook was not a rule, did not substitute for CWA Section 401 or implementing regulations and said EPA had reserved discretion to revise the handbook.
“The EPA has not updated or modified the 2010 Interim Handbook since it was issued, and the document no longer reflects the most recent case law interpreting the plain language of CWA Section 401,” the agency said.
It also noted that the Interim Handbook was never finalized and said it was concerned that an interim handbook, which has not been updated “and has neither been finalized nor formally withdrawn, may lead to confusion for both regulators and the regulated community. This is especially true in circumstances, including litigation, in which such a document may be interpreted as mandating certain actions or outcomes.”
EPA said that it anticipates that its activities in response to Executive Order 13868, “including additional engagement with state and tribal stakeholders, issuing new guidance, and modernizing federal rules implementing CWA Section 401, will increase transparency and regulatory uncertainty.”
The guidance In its updated guidance EPA said, “Section 401 envisions a robust state and tribal role in the federal permitting or licensing process, but places limitations on how that role may be implemented to maintain an efficient process that is consistent with the overall cooperative federalism construct established by the CWA.”
“The plain language of Section 401 provides a state or authorized tribe a reasonable period of time, which shall not exceed one year, to act on a Section 401 certification request. Importantly, the CWA does not guarantee that a state or tribe may take a full year to act on a Section 401 certification request, but only grants as much time as is reasonable.”
EPA cited general provisions of Section 401 and the agency’s existing regulations and said, “federal permitting agencies have the authority and discretion to establish certification timelines so long as they are reasonable and do not exceed one year.”
The timeline for action begins with receipt of a certification request, EPA said, and while “the EPA’s prior Section 401 guidance indicated that the timeline for action begins upon receipt of a ‘complete application,’ the CWA does not use that term and therefore its use in the EPA’s guidance document as a regulatory trigger, without notice and comment rulemaking, is inappropriate.”
EPA goes on to say that Section 401 of the CWA “makes no mention of a state or tribe’s authority to determine that a request is incomplete or delay the start of the timeline on that basis.”
The agency said the timeline for review begins upon receipt of a written request for certification.
“Section 401 of the CWA is a statutory tool intended to provide states and tribes with authority to protect water quality within their jurisdictions,” EPA said, describing this as “the focused intent of this provision on the protection of water quality,” and said it “recommends that conditions in a Section 401 certification be limited to ensuring compliance with the enumerated provisions of the CWA and other appropriate state or tribal water quality requirements.”
EPA said there is some regulatory uncertainty in this area and it “may consider providing additional clarity during the rulemaking process.”
No CWA provisions require specific information to be submitted with a Section 401 certification request, although no statutory provision prohibits a state or tribe from requesting specific information, EPA said, but noted that a state or tribe “should only need the application materials submitted for the federal permit or license.” A state or tribe might request additional information, but, EPA said, “an outstanding or unfulfilled request for information or documents does not pause or toll the timeline for action on a certification request.”
“Given the interest and attention this issue has generated, the EPA may consider providing additional clarity during its rulemaking effort,” the agency said.
For denials of Section 401 certification, EPA said it recommends that the notice be in writing and identify specific reasons for the denial and any outstanding data or information gaps, “so the project proponent has a meaningful opportunity to cure the identified deficiencies in a new request.”
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