Mission The Western Environmental Law Center is a non-profit public interest environmental law firm. We use the power of the law to safeguard the public lands, wildlife, and communities of the American West in the face of a changing climate.
The End of Cooperative Federalism: The Trump Administration’s efforts to eliminate the States’ authority under section 401 of the Clean Water Act I attempted to rise, but was not able to stir: for, as I happened to lie on my back, I found my arms and legs were strongly fastened on each side to the ground; and my hair, which was long and thick, tied down in the same manner. I likewise felt several slender ligatures across my body, from my arm-pits to my thighs. I could only look upwards; the sun began to grow hot, and the light offended my eyes. — Jonathan Swift, Gulliver's Travels, Chapter 1. Karuk Tribe of California v. U.S. Forest Serv. , 681 F.3d 1006, 1031 (9th Cir. 2012)
Section 401 of the CWA, 33 U.S.C. § 1341 (a) Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate, or, if appropriate, from the interstate water pollution control agency having jurisdiction over the navigable waters at the point where the discharge originates or will originate, that any such discharge will comply with the applicable provisions of sections 1311, 1312, 1313, 1316, and 1317 of this title. In the case of any such activity for which there is not an applicable effluent limitation or other limitation under sections 1311(b) and 1312 of this title, and there is not an applicable standard under sections 1316 and 1317 of this title, the State shall so certify, except that any such certification shall not be deemed to satisfy section 1371(c) of this title. Such State or interstate agency shall establish procedures for public notice in the case of all applications for certification by it and, to the extent it deems appropriate, procedures for public hearings in connection with specific applications. In any case where a State or interstate agency has no authority to give such a certification, such certification shall be from the Administrator. If the State, interstate agency, or Administrator, as the case may be, fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application. No license or permit shall be granted until the certification required by this section has been obtained or has been waived as provided in the preceding sentence. No license or permit shall be granted if certification has been denied by the State, interstate agency, or the Administrator, as the case may be.
Section 401 of the CWA, 33 U.S.C. § 1341 ❑ Section 401(a) requires that: Any applicant for a federal license orpermit ❑ which may result in a discharge into waters of the United ❑ States must obtain a water quality certification fromthe ❑ certifying authority that the discharge complies with all applicablewater quality ❑ requirements. ❑ Such State or interstate agency shall establish procedures for public notice in the case of all applications for certification by it and, to the extent it deems appropriate, procedures for public hearings in connection with specific applications.
Section 401 of the CWA, 33 U.S.C. § 1341 401(d)L IMITATIONS AND MONITORING REQUIREMENTS OF C ERTIFICATION ❑ Any certification provided under this section shall: ❑ set forth any effluent limitations and other limitations and monitoring requirements ❑ necessary to assure that any applicant for a Federal license or permit will comply with: ❑ any applicable effluent limitations and other limitations, under section 1311 or 1312 of this title, ❑ standard of performance under section 1316 ❑ or prohibition, effluent standard, or pretreatment standard under section 1317, and ❑ with any other appropriate requirement of State law set forth in such certification ❑ Terms of Cert shall become a condition on any Federal license or permit subject to the provisions of this section.
Section 401 of the CWA, 33 U.S.C. § 1341 ❑ If the State . . . fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application. ❑ No license or permit shall be granted until the certification required by this section has been obtained or has been waived. ❑ No license or permit shall be granted if certification has been denied by the State, interstate agency, or the Administrator, as the case may be.
Section 401 Works Section 401 recast pre-existing law and was meant to “ continu[e] the authority of the State ... to act to deny a permit and thereby prevent a Federal license or permit from issuing to a discharge source within such State.” S.Rep. No. 92 – 414, p. 69 (1971). S.D. Warren Co. v. Maine Bd. of Envtl. Prot. , 547 U.S. 370, 380 (2006)
Renewed Interest in Section 401 Executive Order 13868 April 10, 2019, Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth,” which directed the EPA to propose a new rule that modernizes the agency’s water quality certification regulations (40 C.F.R. Part 121). “To enable the timely construction of the infrastructure needed to move our energy resources through domestic and international commerce, the Federal Government must promote efficient permitting processes and reduce regulatory uncertainties that currently make energy infrastructure projects expensive and that discourage new investment. ”
Executive Order13868
EPA Guidance ❑ June 7, 2019, EPA, Clean Water Act Section 401 Guidance for Federal Agencies, States and Authorized Tribes ❑ (1) strictly interpreting the time within which a state must make a certification decision; ❑ (2) limiting the grounds for denying or conditioning a certification to water quality requirements; and ❑ (3) asserting that the information included in the application for the federal license or permit should generally be all the information that the state needs to make its certification decision.
EPA’s Proposed Regulations August 8, 2019, EPA proposed rule: “Updating Regulations on Water Quality Certification,” 84 Fed. Reg. 44,080 (Aug. 22, 2019) Modernize the EPA’s existing regulations and make them consistent with the currentCWA. The existing regulations were promulgated in 1971, prior to the 1972 Clean Water Act. Proposed Changes: Scope of Review Time for Decision Standards for Decision making Federal Agency Review
Proposed Change to Scope of Analysis Discharge v. Discharge from a Point Source Section 401(a) states: Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters , shall provide the licensing or permitting agency a certification from the State in which the discharge originates Current 40 C.F.R. § 121.1(a) License or permit means any license or permit granted by an agency of the Federal Government to conduct any activity which may result in any discharge into the navigable waters of the United States . Proposed 40 C.F.R. § 121.1(g) Discharge for purposes of this part means a discharge from a point source into navigable waters .
Proposed Change to Scope of Analysis Discharge v. Discharge from a Point Source CWA’s Definitions: 33 U.S.C. § 1362(12) The term “discharge of a pollutant” and the term “discharge of pollutants” each means (A) any addition of any pollutant to navigable waters from any point source . . . . 33 U.S.C. § 1362 (16) The term “discharge” when used without qualification includes a discharge of a pollutant, and a discharge of pollutants. S.D. Warren v. Maine Bd. of Envt’l Protection , 547 U.S. 370, 374 (2006)
Proposed Change to Scope of Analysis Discharge v. Activity Section 401(a) “ Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge” is required to obtain a Cert. Section 401(d) Any Cert must include effluent limits “ necessary to assure that any applicant for a Federal license or permit will comply with” water quality requirements
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