Mission The Western Environmental Law Center is a non-profit - - PowerPoint PPT Presentation
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
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.
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
The End of Cooperative Federalism: The Trump Administration’s efforts to eliminate the States’ authority under section 401 of the Clean Water Act
(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.
❑ set forth any effluent limitations and other limitations and monitoring
❑ necessary to assure that any applicant for a Federal license or permit will
❑ any applicable effluent limitations and other limitations, under
❑ standard of performance under section 1316 ❑ or prohibition, effluent standard, or pretreatment standard under section
❑ with any other appropriate requirement of State law set forth in such
❑ (1) strictly interpreting the time within which a state must
❑ (2) limiting the grounds for denying or conditioning a
❑ (3) asserting that the information included in the application
Certification must address the impacts of the discharge Greenhouse gas emissions requiring construction of biking and hiking trails, requiring one-time and recurring payments to state agencies for improvements or enhancements that are unrelated to the proposed federally licensed or permitted project, and creating public access for fishing along waters of the United States. Certification must address impacts to water quality requirements defines “water quality requirements” as “applicable provisions of §§ 301, 302, 303, 306, and 307
provisions.”
local utility district challenged the state’s imposition of minimum flow requirements on the construction of a hydroelectric dam to protect the river as a fishery, arguing that the minimum flow condition was unrelated to the “discharge” from the permitted activity. The Court stated that subsection 401(d) “expands the State’s authority” beyond “discharges” and instead authorizes conditions to be placed on “any applicant” subject to the certification requirement. Section 401(d) “is most reasonably read as authorizing additional conditions and limitations on the activity as a whole once the threshold condition, the existence of a discharge, is satisfied” Justice Stevens, concurring, “[n]ot a single sentence, phrase, or word in the Clean Water Act purports to place any constraint on a State’s power to regulate the quality of its own waters more stringently than federal law might require. In fact, the Act explicitly recognizes States’ ability to impose stricter standards.”
❑ (a) The Federal agency shall establish the reasonable period of time
❑ (f) The certifying authority is not authorized to request the project
❑ (1) Identifies the project proponent(s) and a point of contact; ❑ (2) Identifies the proposed project; ❑ (3) Identifies the applicable federal license or permit; ❑ (4) Identifies the location and type of any discharge that may result from the
❑ (5) Includes a description of any methods and means proposed to monitor
❑ (6) Includes a list of all other federal, interstate, tribal, state, territorial, or
❑ (7) Contains the following statement: ‘The project proponent hereby
❑ Grant
❑
(c) Any grant of certification shall be in writing and shall include a statement that the discharge from the proposed project will comply with water quality requirements.
❑ Grant with Conditions
❑ (d) Any grant of certification with conditions shall be in writing and shall for each
condition include, at a minimum:
❑ (1) A statement explaining why the condition is necessary to assure that the discharge from
the proposed project will comply with water quality requirements;
❑ (2) A citation to federal, state, or tribal law that authorizes the condition; and ❑ (3) A statement of whether and to what extent a less stringent condition could satisfy
applicable water quality requirements.
❑ Deny
❑
(e) Any denial of certification shall be in writing and shall include:
❑ (1) The specific water quality requirements with which the proposed project will not comply; ❑ (2) A statement explaining why the proposed project will not comply with the identified water
quality requirements; and
❑ (3) The specific water quality data or information, if any, that would be needed to assure that the
discharge from the proposed project complies with water quality requirements.
❑ Waive
❑ § 121.6 Effect of denial of certification. ❑ (b) Where a Federal agency determines that a certifying authority’s denial
❑ (c) Where a Federal agency determines that a certifying authority’s denial did
❑
(1) If the Federal agency receives the certifying authority’s certification decision prior to the end
❑
(2) If the certifying authority does not provide a certification decision that satisfies the requirements of Clean Water Act section 401 and this part by the end of the reasonable period of time, the Federal agency shall treat the certification in a similar manner as waiver.
❑ (1) If the Federal agency determines that a condition does not satisfy the
❑ (2) If the Federal agency receives a certification with conditions that do
Some Problems the EPA may encounter: Section 401(a): Terms of Cert shall become a condition on any Federal
Cases:
Sierra Club v. U.S. Army Corps of Eng’rs, 909 F.3d 635, 645 (4th Cir. 2018) (“The plain language of Section 1341(d) of the Clean Water Act provides that any state certification “shall become a condition on any Federal license or permit.” 33 U.S.C. § 1341(d) (emphasis added). This language leaves no room for interpretation.”);
“language [of section 401(d)] is unequivocal, leaving little room for FERC to argue that it has authority to reject state conditions it finds to be ultra vires”);
Ackels v. U.S. EPA, 7 F.3d 862, 867 (9th Cir. 1993) (“once the state added the additional conditions, EPA was required to incorporate those conditions into the final permit and lacked authority to reject them”);
Roosevelt Campobello Int’l Park Comm’n v. EPA, 684 F.2d 1041, 1056 (1st Cir. 1982) (“’Limitations contained in a State certification must be included in a NPDES permit. EPA has no authority to ignore State certification or to determine whether limitations certified by the State are more stringent than required to meet the requirements of State law.’” (quoting EPA Decision of the General Counsel No 58 (Mar. 29, 1977)).