On June 1, 2020, the Environmental Protection Agency (“EPA”) finalized a new rule implementing the Clean Water Act’s (“CWA”) Section 401. Under Section 401, no federal permit or license can be issued that may result in a discharge to waters of the United States unless the authorized tribe or state certifies that the discharge is consistent with its water quality requirements or waives certification. The new rule issued by EPA allows federal agencies to limit the time frame within which tribes or states are allowed to review and issue conditions on applicable federal permits to less than the one-year limit provided for under the CWA. The new rule also provides that under Section 401, tribes and states are only able to impose conditions related to “water quality requirements.”
Section 401 Authority: A Cooperative Federalism Approach under which Tribes and States Play a Role in Permitting Discharges from Federally Licensed Hydropower, Pipeline and other Projects
The CWA is an example of joint governance by tribal, state and federal governments, or cooperative federalism. Rather than competing to regulate areas of joint concern, cooperative federalism requires federal agencies work together with counterpart agencies in state, tribal or local governments to solve problems. In the case of Section 401, an applicant for a federal license or permit to conduct an activity that may result in a discharge—that is, any addition—into waters of the United States must obtain a certification from the state or tribal area in which the discharge originates that the discharge complies with the applicable water quality standards. The 401 certification becomes a condition of federal permits including Coast Guard Section 10 permits, Federal Energy Regulatory Commission (FERC) permits and U.S. Army Corps of Engineers (Corps) Section 404 permits.
Section 518 of the CWA authorizes EPA to treat eligible Indian tribes with reservations in a similar manner to states (Tribes As States or “TAS”) for a variety of purposes, including administering each of the main CWA regulatory programs, such as setting water quality standards and receiving grants, as well as Section 401. TAS grants tribes the same certification authority and responsibilities as states. EPA’s regulations establish a process for tribes to apply for TAS for purposes of establishing water quality standards and providing Section 401 water quality certification, and tribes that want to maximize their ability to exercise jurisdictional authority over water quality are encouraged to apply. As of April 30, 2020, EPA’s website reports that 67 tribes have been found eligible to administer a water quality standards (“WQS”) program. Under EPA’s regulations, tribes that have been approved to administer WQS are automatically approved to administer certifications under Clean Water Act section 401, although tribes may choose not to exercise that authority. More information is available here.
If a tribe does not have CWA Section 401 certification authority, its respective EPA regional office acts as the certifying authority for tribal lands. This provision may allow tribes that have not gone through the process of obtaining TAS status some ability to influence section 401 certification by consulting with appropriate EPA decisionmakers.
The CWA provides that states and authorized tribes must act on their Section 401 authority within “any reasonable time not to exceed one year.” The new rule emphasizes that the reasonable period is to be decided by the federal permitting or licensing agency. Previously, federal agencies allowed the full year allotted in the CWA for states and tribes to act. A state or authorized tribe may waive the certification voluntarily or by failing to act within the established reasonable time period.
New Rule Limits Section 401 Authority
The final rule, which differs slightly from the proposed rule issued in August 2019, restricts the ways in which states and tribes can deny or condition permits under Section 401. Procedurally, the new rule allows federal agencies to impose deadlines that are shorter than the one year allowed for under the CWA, and also sets up processes for appeals by neighboring jurisdictions and to promote early engagement of stakeholders. Substantively, the new rule seeks to make it clear that Section 401 conditions must relate to water quality requirements that EPA has interpreted more narrowly than under previous practice and case law.
The EPA’s action responds to President Trump’s Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth,” issued on April 10, 2019, which directed the EPA to review CWA Section 401 and EPA’s related regulations and guidance to determine whether the agency’s policies should be updated or clarified. The administration was concerned that some states have used authority under Section 401 to block various energy projects over environmental concerns.
The impact of this new rule will depend on how implementing agencies interpret the phrase “water quality requirements.” This term is defined in the new rule, but as the preamble recognizes, the “final definition allows States and Tribes to evaluate narrative water quality standards and other regulatory requirements that apply to point source discharges into waters of the United States.” This language allows some flexibility in interpretation that could be helpful to tribes and states, but as is evident from the preamble, the rule seeks to prevent states and tribes from imposing permit requirements that are unrelated to pollutant discharges. Requirements related to climate change or air pollution, for example, are now considered outside the scope of Section 401 authority. While there is some scope for flexibility and continued collaboration between federal, state and tribal officials, the rule could also face challenges both political and legal. Commentators have noted that since it was issued in June 2020, if a new administration is elected in November, the rule could be subject to repeal under the Congressional Review Act. In the meantime, the rule will limit the authority of tribes under Section 401, although the exact scope of the limitation will be established as agencies, tribes and states gain experience implementing the rule. Tribes that engage in early, proactive discussions with their regional EPA office and neighboring jurisdictions regarding potential discharges are likely to be best able to successfully use the Section 401 certification process to protect tribal waters.
The text of the final rule and related information is available here.
Sarah Walters, Shareholder and Bella Sewall Wolitz, Of Counsel