In the August 22, 2019 Federal Register, the Environmental Protection Agency (EPA) proposed a rule modifying its substantive and procedural requirements for water quality certification under section 401 of the Clean Water Act. The proposed rule is intended to codify the guidance released on June 7, 2019. Public comments will be accepted through October 21, 2019.
EPA’s rule proposes that section 401 is triggered when there is a potential for a discharge to occur, rather than an actual discharge into a water of the United States, not a tribal or state water. The proposed rule would trigger section 401 by any unqualified discharge, not a discharge of pollutants as in other Clean Water Act programs. Finally, the discharge must be from a point source.
Under the proposed rule, states would have a reasonable amount of time, up to one year, to act on a request for certification. The year timeline is proposed to start upon receipt by the certifying authority of a “certification request” rather than the receipt of a “completed application.”
EPA proposes that a certifying authority would be able to take four actions in response to a request: (1) grant certification; (2) grant with conditions; (3) deny; or (4) waive its authority.
EPA proposes that the scope of a 401 review be limited to water quality requirements, which would be a stricter interpretation of the Act’s “any other appropriate requirement of State law,” that some states have employed. Any conditions of a certification are also proposed to be restricted to addressing water quality requirements.