“It’s going to allow us to balance the Biden administration’s goals protecting our water resources and also supporting all kinds of infrastructure projects that this nation so desperately needs,” Fox said. 

Section 401 allows states and tribes to grant or deny water quality certification for federal projects in order to protect water resources from adverse impacts resulting from construction or operation of those projects. A rule made in 2020 during the Trump administration limited state and tribe reviews, as then-EPA officials claimed that states were delaying certifications to block infrastructure projects like pipelines. 

When EPA released its proposed rule last year, the Associated General Contractors joined the U.S. Chamber of Commerce and groups from other industrial sectors in asking EPA to retain the scope of certification from the Trump-era rule. AGC and the other groups also raised concerns that proposed requirements for draft permits and certification modifications could disrupt permitting, financing and construction timelines. 

The groups wrote that the proposed rule would “create significant regulatory uncertainty and cause lengthy delays.” The changes in the final rule appear to be “a mixed bag,” according to Brian Turmail, AGC’s vice president. 

EPA says the rule realigns the scope of certification “with nearly 50 years of established practice that preceded the 2020 rule.” However, the revision does address some concerns by clarifying that states and tribes can consider only adverse water quality-related impacts when reviewing a project for certification. Turmail says that change corresponds to issues raised by AGC, as past certifications have included conditions unrelated to water quality. 

The final rule sets a default “reasonable period of time” for reviews at six months from the time a certifying authority receives the request, while the law allows for up to one year. However, a certifying authority can extend that period to a full year. 

“AGC has explained that project proponents are snared in a loop of requests for additional information before the ‘clock’ on the review would even begin,” Turmail tells ENR. “It remains to be seen whether these new requirements are reasonable asks for project proponents and go far enough to curb project delays.”

Environmental advocates have supported EPA’s move. Jon Devine, director of federal water policy at the Natural Resources Defense Council, said in a statement that the rule empowers state and tribe officials to establish factors such as minimum instream flows for a hydropower project. 

“EPA’s rule restores the unique and important role of states and tribes in keeping waterways healthy,” Devine said.

Even with the change, Fox said she expects fewer projects will be reviewed under the Section 401 program than in the past because of the Supreme Court ruling earlier this year in the case Sackett v EPA, which narrowed the government’s ability to protect wetlands. EPA and the U.S. Army Corps of Engineers also published a final Waters of the United States (WOTUS) rule following the court’s decision. That rule opens thousands of acres of formerly protected wetlands to potential development. 

“There will be significantly less waters under federal protection and, therefore, fewer federally licensed projects that will need to go through the 401 program,” Fox said.