EPA Limits State Review of Section 401 Permits Under Proposed Rule
Energy producers are welcoming a proposed change to Clean Water Act regulations that would limit states’ rights to review Section 401 certifications. The changes, proposed Aug. 8 by the Environmental Protection Agency, would give states only one year from the time an application is submitted to grant a 401 certification based on the water quality impacts of discharges from federally permitted or licensed infrastructure projects.
Additionally, EPA can overrule a state’s decision if it considers anything unrelated to water quality, such as air quality or other project components. States have previously used existing 401 rules to block pipelines and coal plants. Oil, gas and hydropower associations cheered the proposal, but governors and environmentalists said the rule is an overreach of federal authority.
“Section 401 certifications have long frustrated project proposers,” says Thaddeus Lightfoot, a partner at the law firm Dorsey & Whitney who specializes in environmental law. “Among the Section 401 certification concerns of project proposers are the scope of the certification, ambiguities in the certification process, long delays in obtaining the certification, and state conditions imposed in certifications once issued.” The new proposal fixes these problems, Lightfoot says.
The proposal codifies and expands EPA guidance issued in June. The EPA will accept comments on the rule for 60 days.
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