By Jim Wedeking, Counsel with Sidley Austin LLP in the firm’s Washington, DC office. He is the WLF Legal Pulse’s Featured Expert Contributor on Environmental Law and Policy. The opinions expressed are those of the author and do not necessarily reflect the views of Sidley Austin LLP or its clients.

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The U.S. Environmental Protection Agency (“EPA”) issued a long-awaited final rule that governs the timing and scope of Clean Water Act Section 401 state water quality certifications. The timing and scope of such certifications have become rather contentious environmental regulatory issues. Section 401 certifications can effectively give individual States veto power over interstate infrastructure projects, such as natural gas pipelines or electric transmission lines.

Press accounts of the final rule describe it as dramatically expanding state and tribal Clean Water Act powers while rescinding a 2020 rule from the Trump Administration that purportedly damaged both cooperative federalism and water quality.¹ The praise for the 2023 (Biden) Rule and derision of the 2020 (Trump) Rule have little relation to the actual substance of either rule. In fact, both rules are similar in many ways. Generally, the 2023 Rule loosens a few restraints from the 2020 Rule while retaining some of its reforms, but both rules left major issues unresolved. This Legal Backgrounder will briefly explore the issues that prompted the 2020 Trump Rule, what it implemented, and what the 2023 Biden Rule changes.

The Fight Against “Fracked Gas from Neighboring States” Inspired Section 401 Reform

Former Governor Andrew Cuomo declared that New York “must double down by investing in the fight against dirty fossil fuels and fracked gas from neighboring states to achieve the goals outlined in the Governor’s Clean Energy Standard.”² A big part of that fight was New York’s use of Section 401 of the Clean Water Act to block interstate natural gas pipelines approved by the Federal Energy Regulatory Commission (“FERC”). In April 2016, after FERC already granted a conditional Certificate of Public Convenience and Necessity, ³ the New York State Department of Environmental Conservation denied Constitution Pipeline Company, LLC’s application for a Clean Water Act Section 401 water quality certification. ⁴

The proposed pipeline would have run from the Marcellus shale play in northeastern Pennsylvania through Delaware and into New York. ⁵ After taking nearly two and a half years to review the application, ⁶ and with FERC issuing the pipeline’s 3,900-page Final Environment Impact Statement some 18 months previously, New York denied the application largely based on claims that it lacked information about the pipeline’s environmental effects. Despite the many thousands of pages on the project’s impacts, New York asserted that it simply could not know whether the pipeline could meet water quality standards because Constitution failed to provide requested data. ⁷

New York, which participated in Constitution’s FERC proceedings, relied on its disagreements with FERC when denying the Section 401 water quality certification application. For instance, where FERC required Constitution to cross only 21 streams using trenchless crossing methods, such as horizontal directional drilling, over New York’s objections. ⁸ Instead of challenging FERC’s decision in court, New York demanded that the pipeline use trenchless methods for all 251 streams and wetlands along the route and used Constitution’s failure to provide full site investigations for every crossing as a reason to deny the application. ⁹ It also denied Constitution’s application for failing to analyze the environmental impacts of alternative routes that FERC did not approve, including the route that New York favored but FERC rejected. ¹⁰ In reality, New York used Section 401 as a backdoor tactic to nullify FERC’s certificate for the pipeline without having to challenge it under the Natural Gas Act. ¹¹ And it did so with more than just one interstate pipeline project. ¹² Notably, the New York denial was years in the making. Despite the Clean Water Act imposing a one-year deadline for New York’s review—with a failure to timely complete that review resulting in a waiver of its authority to grant or deny a Section 401 certification—some applicants alleged that New York required them to withdraw and then immediately resubmit their applications to avoid the one-year deadline. ¹³

New York’s demands that companies withdraw and resubmit applications (only to deny the applications anyway), raised significant questions about the purpose and proper application of Section 401. Practically speaking, New York converted the Clean Water Act into a tool to usurp FERC’s authority over where and how natural gas pipelines are built or, at worst, one that ensures that no “fracked gas from neighboring states” flows at all. This led to a morass of litigation as pipeline companies sued to reverse the Section 401 denials¹⁴ and environmental groups sued states, such as Pennsylvania, that granted water quality certifications to pipelines. ¹⁵ This eruption of lawsuits and resulting questions about the proper scope and function of Section 401 led EPA to implement a reform rule.

The 2020 Rule’s Attempt at Section 401 Reform

Under the Clean Water Act, any party seeking a license or permit from a federal agency for a project that “may result in any discharge into the navigable waters” must apply for a Section 401 water quality certification from the State “in which the discharge originates.” ¹⁶ This certification would determine that the pollutant discharge from this proposed project to the waters of that State complies with specific sections of the Clean Water Act. ¹⁷ If the State grants the certification, it may impose “any effluent limitations and other limitations, and monitoring requirements necessary to assure that” the project “will comply with any applicable effluent limitations and other limitations” under certain sections of the Clean Water Act “and with any other appropriate requirement of state law set forth in such certification.” ¹⁸ The state agency’s conditions “shall become … condition[s] of any Federal license or permit subject to the provisions of this section.” ¹⁹ However, a federal permit applicant does not require a Section 401 certification as a State may choose to waive its authority to issue a certification or have its authority deemed waive 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.” ²⁰

The statute, operating for decades with few serious controversies, was spawning a series of questions with respect to natural gas pipeline litigation. What are the valid (and invalid) reasons for a State to deny a water quality certification? Who determines whether a State has waived its authority to deny a water quality certification? How long is a reasonable period of time, if anything less than one year? And when does the clock start, meaning, when does a state agency genuinely have “receipt” of a request for a water quality certification? Section 401 generated a handful of cases interpreting the statute over the years, including a Supreme Court case, but none grappled with the questions arising from New York’s spate of denials. ²¹ Nor did EPA’s regulations governing water quality certifications, which were promulgated in 1971. ²² Therefore, EPA determined that recent “litigation over the section 401 certifications for several high-profile infrastructure projects have highlighted the need for the EPA to update its regulations to provide a common framework,” consistency, and clarity. ²³

A D.C. Circuit decision on a Section 401 water quality certification for a hydroelectric project originally constructed in 1954 resolved questions about waiver. ²⁴ The project had been operating on an interim license since 2006 pending the conclusion of renewal proceedings before FERC. ²⁵ A group of stakeholders, including tribes, environmental groups, ranchers, fishermen, the States of Oregon and California, and the project operator reached an agreement to decommission the project in 2020. ²⁶ Part of this agreement required the operator to withdraw and resubmit its Section 401 water quality certification application to the States each year, ensuring that the States’ “review” of the application would never terminate, and the relicensing process would never conclude prior to decommissioning. ²⁷

Left out of the agreement, the Hoopa Valley tribe filed suit requesting a declaration that the States waived their ability to grant or deny the application because their review exceeded the statutory one-year deadline. ²⁸ The D.C. Circuit easily found that the States waived their authority to grant or deny a water quality certification because “Section 401’s text is clear” regarding the one-year deadline. ²⁹ The operator simply withdrew and resubmitted the same application “in the same one-page letter … for more than a decade,” meaning that these “withdrawals-and-resubmissions” over the years “were not just similar requests, they were not new requests at all.” ³⁰ The 2020 Rule incorporated Hoopa Valley’s holding but, to ease fears that States could not adequately review applications within one year, and to “promote[ ] early coordination,” it also required project proponents to request a meeting with the State at least 30 days prior to formally submitting an application in order to discuss what information the State needs for its review. ³¹

Although Hoopa Valley brought some clarity to when the one-year deadline ends, the 2020 Rule looked to clarify when it begins. The statute starts the clock “after receipt of such request” for a Section 401 certification. ³² To determine when a state agency receives a request, EPA again turned to a recent court decision. In New York State Department of Environmental Conservation v. FERC, the Second Circuit rejected New York’s interpretation that “receipt” “begins only once it, a state agency, deems an application ‘complete.’” ³³

That interpretation was obviously subject to abuse as New York could (and in some cases, did) make numerous demands for additional information and hold a company’s application in limbo for several months before deeming it to be “complete.” ³⁴ Instead, the 2020 Rule incorporated the Second Circuit’s holding that waiting for a state agency to deem an application “complete” some indeterminate time after actually receiving it contradicts the statute’s plain language. ³⁵

To address complaints that project applicants might start the clock by submitting bare bones,  clearly inadequate applications, the 2020 Rule required that an application must contain minimum information about the project proponent, the proposed project, the related federal license or permit and any other state, local or tribal permits required, and specific information about the location and nature of the proposed pollutant discharge as well as all proposed means for treatment, control, and monitoring of discharges, and documentation that the applicant at least requested a pre-application meeting. ³⁶ The applicant also had to attest that all information was complete and accurate and formally request the state agency to take action on the application for it to be deemed “received” by the state agency. ³⁷

Under the 2020 Rule, the scope of a State’s review was limited to “addressing water quality impacts from potential or actual discharges from federally licensed or permitted projects,” ³⁸ a relatively common-sense limitation that was only needed to combat theories that a State could deny a Clean Water Act Section 401 water quality certification on virtually any possible ground. ³⁹ Thus, applications would be reviewed for compliance with “water quality requirements,” a term defined to include the five sections of the Clean Water Act identified in Section 1341(a) plus any “state or tribal regulatory requirements for point source discharges.” ⁴⁰ This definition arguably broadened the scope of review beyond what Congress allowed in that it could include state or tribal water requirements unrelated to delegated Clean Water Act programs (i.e., “state-only” standards).⁴¹

In summary, the 2020 Rule adopted the two court rulings’ rationale on when the one-year clock begins and ends; provided minimum application information requirements; adopted a relatively expansive interpretation of the scope of a state agency’s review; and required an applicant to at least attempt meeting with a state agency to better coordinate the parties’ expectations. This gave project proponents nothing more than what the courts already provided while state agencies maintained broad powers to veto those projects—perhaps broader than what the Clean Water Act authorized. For these relatively milquetoast modifications, the 2020 Rule was absolutely pilloried by fossil-fuel opponents. Senator Tom Carper declared that the 2020 Rule “defies congressional intent and flies in the face of cooperative federalism … rendering states virtually powerless to stop a harmful federal project from being built.” ⁴² The New York State Department of Environmental Conservation derided the rule as “weaken[ing] hard-won environmental protections to serve corporate interests” and “nothing short of a federal power grab that would strip New York and all states of our authority to protect clean water and public health.”⁴³  One environmental group attorney declared that the 2020 Rule “has given corporations the green light to run roughshod over local communities” ⁴⁴ while another characterized it as “a brazen attack on the Clean Water Act.” ⁴⁵ These strident, strange criticisms made the 2020 Rule a target for lawsuits and for review by the incoming Biden Administration. ⁴⁶

The 2023 Biden Rule’s Counter-Reforms

EPA proposed to counter the 2020 Rule’s mild reforms in June 2022, premising the need for a new rulemaking on a district judge’s vacatur of the 2020 Rule,⁴⁷ professions of “confusion,” and newly discovered “concerns” about its legality. ⁴⁸ EPA published the final rule late September 2023. ⁴⁹ Despite the strident criticisms of the 2020 Rule, many of the Biden Administration’s revisions are relatively limited:

• EPA retained the requirement for pre-application meeting requests. ⁵⁰
• Applications must contain the same information as the 2020 Rule required with the addition of (1) a copy of either the final or draft federal license or permit that triggered Section 401, and (2) “[a]ny readily available water quality-related materials that informed the application.”⁵¹ This material might include “water quality baseline conditions from the project site, sediment and erosion control plans, restoration plans, alternatives analyses, mitigation plans, modeling, and/or other materials that have already been developed for the Federal license or permit application.” ⁵²
• EPA struck a compromise position on when the statutory clock begins. Instead of the review time beginning upon receipt of the information specified in the 2020 Rule, state agencies may require those applications to be consistent with “applicable submission procedures.” ⁵³ An application will not be deemed “received” until it includes materials “that are identified” by the state agencies “prior to when the request for certification is made.” ⁵⁴ Although this does reintroduce some risk of gamesmanship, EPA expressly rejected a return to the days where it never deemed an application “complete” due to a state agency’s interminable, ad hoc demands for additional information. ⁵⁵ State agencies must clearly and publicly describe their requirements in advance of an application.
• The 2023 Rule allows States to jointly establish the “reasonable period of time” for review of a project application and allows for extensions of time in some instances. ⁵⁶ However, these provisions are only for review periods of less than one year and the 2023 Rule clearly prohibits exceeding the statutory deadline.
• EPA stated that it “is not taking a position on the legality of withdrawing and resubmitting a request for certification” because circumstances may differ from the Hoopa Valley Tribe case “where withdrawing and resubmitting a request for certification is appropriate.” ⁵⁷ This position stemmed largely from a 2021 Fourth Circuit case, North Carolina Department of Environmental Quality v. FERC, which rejected FERC’s finding of waiver because, although the applicant did withdraw and resubmit an identical application to avoid the waiver deadline, there was no evidence that “the state agency encourage[d] the withdrawal or otherwise coordinate[d] with the applicant.” ⁵⁸

The only significant change in the 2023 Rule is its rejection of the requirement that, in determining whether to grant or deny a certification, state agencies must evaluate the effects of the proposed project’s discharges to waters of the United States. Instead, the 2023 Rule created a broad but vague theory of certification review called “the activity as a whole.” This means that the state agency may reject the application based on “any aspect of the project activity with the potential to affect water quality,” ⁵⁹ including any “direct and indirect, short and long term, upstream and downstream, construction and operation” aspects of a project that could affect water quality in some imaginable way. ⁶⁰ EPA portrayed this as a “return” to prior interpretations that “best reflects congressional intent and appropriately restores consistency with the … scope that the Supreme Court affirmed in PUD No. 1 [Public Utility District No. 1 of Jefferson City v. Washington Department of Ecology, 511 U.S. 700 (1994)] over a quarter century before the 2020 Rule.” ⁶¹ This view, however, is completely mistaken.

The PUD No. 1 case resolved questions about what conditions a state agency may impose when it grants a water quality certification under Section 401(d) and, specifically, the meaning of the phrase “any other appropriate requirement of State law.” ⁶² It held that “§ 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.” ⁶³ The 2023 Final Rule errantly applied this reasoning to Section 401(a), which limits the authority to grant or deny a certification to the narrower criteria of whether “any such discharge will comply with the applicable provisions of section 1311, 1312, 1313, 1316, and 1317 of this title.” ⁶⁴ Not only is Section 401(a) specifically limited to discharges (while Section 401(d) is not), it lacks the “any other appropriate requirement of State law” language at issue in PUD No. 1. ⁶⁵ How much this mistaken view of the statute and PUD No. 1 will practically mean is still an open question. It undoubtedly opens the door to state agencies denying Section 401 certifications on policy grounds unrelated to water quality such as greenhouse gas emissions or endangered species. ⁶⁶ However, denial letters for even the most controversial projects include claims of “core” water quality concerns such as turbidity.

Whether the controversy over the 2020 Rule and its subsequent modification in 2023 will mean anything is an open question, too. Neither rule altered the use of Section 401 as a powerful weapon for States against federal agencies, allowing them to effectively veto federal permits and licenses without challenging them directly in court. Nor did either rule significantly disturb the Hoopa Valley Tribe’s decision that the statutory deadline for waiver begins upon receipt of an application, ends at one year (at the very latest), and that state agencies cannot coerce or collude to avoid that deadline. For both project developers and the state agencies opposed to those projects, they are largely back to where they were before the 2020 Rule issued.

Notes

1. For instance, EPA Office of Water Assistant Administrator Radhika Fox stated that the new rule will “restore the authority of states, territories and tribes to protect our essential water resources” which was “really eroded” by the 2020 Rule. Sam Hess, Reversing Trump, EPA Seeks To Align New 401 Rule With CWA Mandates, InsideEPA.com (Sept. 14, 2023).
2. Andrew M. Cuomo, 2017 State of the State at 57-58.
3. In re: Constitution Pipeline Company, LLC, Order Issuing Certificates and Approving Abandonment, 149 FERC ¶ 61,199 (Dec. 2, 2014).
4. Letter from John Ferguson, Chief Permit Admin., NYSDEC, to Lynda Schubring, PMP, Envt’l Project Mgr., Constitution Pipeline Company, LLC (Apr. 22, 2016) (on file with author) (“Constitution Denial”).
5. Id. at 2.
6. Id. at 6 (application timeline).
7. Id. at 3, 5-8. For its part, Constitution stated that “it was not told of any outstanding issues” prior to the denial “and that during the past nine months, it made weekly inquiries to ensure no additional data was needed.” John Kennedy, Constitution Says NYDEC ‘Playing Politics’ With Pipeline Denial, Law360.com (Apr. 25, 2016).
8. 149 FERC ¶ 61,199 (Dec. 2, 2014) at ¶¶ 77-79.
9. See New York State Department of Environmental Conservation, Preliminary Comments on Notice of Application for Constitution Pipeline Company, LLC (July 17, 2013), Case No. CP13-499 at 3-4; Constitution Denial at 8-12. New York also claimed that Constitution failed to provide detailed blasting plans for all 251 stream crossing (even though blasting was not planned at any specific crossing), site-specific analyses for pipe burial depth at each crossing, and unspecified information about wetland crossings. Id. at 11-12.
10. Id. at 3; see also New York State Department of Environmental Conservation, Comments, Draft Environmental Impact Statement (Apr. 7, 2014), Case No. CP13-499 at 1-5.
11. 15 U.S.C. § 717r(a) requires aggrieved parties who participated in a proceeding before FERC, such as New York in this case, to first petition for rehearing with the Commission and then, if that petition is denied, file a petition for review in either the D.C. Circuit or the U.S. Court of Appeals where the natural gas company is headquartered. 15 U.S.C. §§ 717r(a), (b). In challenges to FERC’s decisions, whether those are under the National Environmental Policy Act or the Natural Gas Act, the review courts are deferential to FERC. Myersville Citizens for a Rural Community v. FERC, 783 F.3d 1301, 1308 (D.C. Cir. 2015) (Natural Gas Act); Sierra Club v. FERC, 867 F.3d 1357, 1367 (D.C. Cir. 2017) (National Environmental Policy Act).
12. See Letter from Daniel Whitehead, New York State Department of Environmental Projection, to Joseph Dean, Transcontinental Gas Pipe Line Company, LLC (May 15, 2019) (“Transco Denial”) (denying water quality certification for Northeast Supply Enhancement Project) (on file with author); Letter from Thomas Berkman, New York State Department of Environmental Projection, to Georgia Carter, Millennium Pipeline Company LLC (Aug. 30, 2017) (denying water quality certification for Millennium Pipeline Company Valley Lateral Project) (on file with author); Letter from John Ferguson, New York State Department of Environmental Protection, to Ronald Kraemer, National Fuel Gas Supply Corporation and Empire Pipeline, Inc. (Apr. 7, 2017) (“National Fuel Gas Denial”) (denying water quality certification for Northern Access Pipeline) (on file with author).
13. See 164 FERC ¶ 61,084 at ¶¶ 39-45 (finding that “agreement” between New York and applicant for the applicant to extend the one-year deadline by withdrawing and resubmitting the same application before the deadline ran was invalid); 162 FERC ¶ 61,014 at ¶¶ 18-23 (addressing Constitution Pipeline’s claims that New York coerced it into withdrawing and resubmitting its application twice to avoid the statutory deadline).
14. See, e.g., 85 Fed. Reg. at 42,211; see, e.g., Constitution Pipeline Co. v. New York State Dep’t of Envt’l Conserv., 868 F.3d 87 (2d Cir. 2017) (challenge to New York denial); Millennium Pipeline Co., LLC v. Seggos, 860 F.3d 696 (2d Cir. 2017) (same); Nat’l Fuel Gas Supply Corp. v. New York State Dep’t of Envt’l Conserv., 761 Fed. Appx. 68 (2d Cir. 2019) (same).
15. See, e.g., Delaware Riverkeeper Network v. Sec’y PA Dep’t of Envt’l Prot., 833 F.3d 360 (3d Cir. 2016) (challenge to Pennsylvania’s grant of a Section 401 water quality certification to a pipeline); Delaware Riverkeeper v. FERC, 857 F.3d 388 (D.C. Cir. 2017) (same); Sierra Club v. State Water Control Board, 898 F.3d 383 (4th Cir. 2018) (same).
16. 33 U.S.C. § 1341(a)(1).
17. Id. Those sections are 33 U.S.C. §§ 1311 (effluent limitations), 1312 (water-quality-related effluent limitations), 1313 (water quality standards and implementation plans), 1316 (national standards of performance), and 1317 (toxic and pretreatment effluent standards).
18. Id. § 1341(d). The certification can require limitations under Sections 1311 and 1312, a standard of performance under Section 1316, or a pretreatment standard under Section 1317. Oddly, Section 1313, governing state water quality standards, is not mentioned in Subsection (d).
19. Id.
20. Id. § 1341(a)(1).
21. The major Section 401 cases include Public Utility District No. 1 of Jefferson City v. Washington Department of Ecology, 511 U.S. 700 (1994), a case giving States broad leeway to impose water-quality-related conditions when they grant water quality certifications.
22. 84 Fed. Reg. 44,080, 44,081 (Aug. 22, 2019) (Proposed Rule) (noting that the 1971 regulations were never updated to account for Clean Water Act amendments in 1972).
23. Id.
24. Hoopa Valley Tribe v. FERC, 913 F.3d 1099, 1101 (D.C. Cir. 2019).
25. Id.
26. Id.
27. Id. Although it lacked the publicity of New York’s pipeline denials, abuse of the Section 401 certification process was a serious problem for hydropower projects. “According to FERC, it is now commonplace for states to use Section 401 to hold federal licensing hostage. At the time of briefing, twenty-seven of the forty-three licensing applications before FERC were awaiting a state’s water quality certification, and four of those had been pending for more than a decade.” Id. at 1104.
28. Id. at 1102.
29. Id. at 1103.
30. Id. at 1104 (emphasis deleted) (ellipses in original).
31. 85 Fed. Reg. at 42,240-41.
32. 33 U.S.C. § 1341(a)(1).
33. 884 F.3d 450, 455 (2d Cir. 2018). There, New York received the company’s application on November 23, 2015, but, after demanding more information, did not deem it to be “complete” for purposes of the one-year review deadline until August 31, 2016—over nine months after receiving it. In re: Millennium Pipeline Company, LLC, 160 FERC ¶ 61,065 at ¶ 12.
34. Constitution Pipeline submitted its application on August 28, 2013, but New York did not deem it complete until almost 15 months later, on December 24, 2014—requiring the company to supplement its application six times and withdraw-and-resubmit it once. Constitution Denial at 6. Even after the application was deemed complete, the company had to file eleven additional supplements and withdraw-and-resubmit the application again before New York ultimately denied it, nearly three years after the initial submission, because the company “has not supplied sufficient information.” Id. at 6-8.
35. Id. at 456; see also 85 Fed. Reg. at 42,222-23 (adopting Second Circuit’s interpretation).
36. 85 Fed. Reg. at 42,243.
37. Id.
38. Id. at 42,250.
39. Washington denied a Section 401 water quality certification to a planned coal export terminal due to, among other reasons, increases in cancer risks from locomotive air pollutant emissions, traffic delays, the degradation of “aesthetically and culturally pleasing surroundings,” train-related noise, disproportionate air emission, traffic, and noise impacts on minority and low-income communities, claims that the project may cause an exceedance in local rail capacity, potential increases in train accidents, impacts on historic buildings, and impacts on tribal fishing and treaty rights. Letter from Maia D. Bellon, Washington Dep’t of Ecology, to Kristin Gaines, Millennium Bulk Terminals-Longview, LLC (Sept. 26, 2017). Further, when publicly announcing the decision, Washington touted the denial as being premised on reducing carbon dioxide emissions. See Lighthouse Resources Inc. v. Inslee, 429 F. Supp. 3d 736 (W.D. Wash. 2019); Millennium Bulk Terminals Longview, LLC v. Wash. State Dep’t of Ecology, Case No. 18-2-00994-08 (Super. Ct. Cowlitz Cty.) (alleging that Washington improperly denied a Clean Water Act Section 401 water quality certification due to carbon dioxide emissions from proposed coal export operation). Obviously, many, in not all, of these reasons are completely divorced from water quality impacts.
40. 85 Fed. Reg. at 42,250.
41. EPA reviews and approves aspects of a State’s delegated Clean Water Act program pursuant to 40 C.F.R., Part 123. Any other “state-only” regulations related to water quality, the use of waters, or wetlands that are not part of the EPA-approved State program are not part of the Clean Water Act.
42. Quoted: Early reaction to EPA’s CWA section 401 rule, InsideEPA.com (June 2, 2020).
43. Statement from NYSDEC Commissioner Basil Seggos on EPA Rule to Limit States’ Authority Under Section 401 of the Clean Water Act (June 1, 2020).
44. Environmentalists Sue EPA Over CWA 401 Rule, InsideEPA.com (July 13, 2020) (statement of Andrew Hawley).
45. Id. (statement of Bob Nasdor).
46. See In re Clean Water Act Rulemaking, Case No. 3:20-cv-04636 (N.D. Cal.).
47. See 87 Fed. Reg. 35,318, 35,325 (June 9, 2022) (Proposed Rule) (citing In re Clean Water Act Rulemaking, 2021 WL 4924844 (N.D. Cal. Oc. 21, 2021). The court vacated the rule on the United States’ motion for remand without vacatur and prior to ruling on summary judgment briefing. The Ninth Circuit subsequently vacated and reversed the district court decision as a final rule cannot be vacated without a court finding it to be unlawful. 60 F.4th 583 (9th Cir. 2023); see also Jim Wedeking, Ninth Circuit Quashes Practice of Vacating Rulemakings Without Finding Them Unlawful, WLF Legal Pulse (Apr. 4, 2023) (discussing the decision’s importance to administrative law).
48. 87 Fed. Reg. at 35,325, 35,332.
49. See 87 Fed. Reg. 35,318 (June 9, 2022) (Proposed Rule); 88 Fed. Reg. 66,558 (Sept. 27, 2023) (Final Rule).
50. 40 C.F.R. § 121.4.
51. 40 C.F.R. § 121.5.
52. 88 Fed. Reg. at 66,575. This is hardly a difficult requirement as much of this material would already be included in an Environmental Assessment or Environmental Impact Statement prepared by the federal agency for the project.
53. 88 Fed. Reg. at 66,581.
54. Id.
55. Id.
56. 88 Fed. Reg. at 66,583-84.
57. 88 Fed. Reg. at 66,584. The 2023 Rule also deleted former 40 C.F.R. § 121.6(e) that prohibited certifying authorities from “asking the project proponent to withdraw the certification request to reset the reasonable period of time.” 88 Fed. Reg. at 66,590. This deletion is arguably contrary to EPA’s profession that it takes no position on the practice.
58. 3 F.4th 655, 676 (4th Cir. 2021). Notably, EPA’s deletion of 40 C.F.R. § 121.6(e), discussed supra, does not appear to be required by the Fourth Circuit’s holding which may view a state agency’s request to withdraw and resubmit an application as an improper attempt to avoid the statutory deadline.
59. 88 Fed. Reg. at 66,599.
60. 88 Fed. Reg. at 66,563 (internal quotations omitted).
61. 88 Fed. Reg. at 66,593; see also id. at 66,559 (claiming that 2020 Rule “rejected nearly 50 years of Agency practice and over 25 years of Supreme Court precedent regarding the appropriate scope of certification review, i.e., rejecting ‘activity as a whole’ for the narrower ‘discharge-only’ approach.”).
62. 511 U.S. 700, 709-11.
63. Id. at 711-12.
64. 33 U.S.C. § 1341(a)(1) (emphasis added).
65. Notably, the 2023 Final Rule never discusses or quotes any particular aspect of PUD No. 1 that applies to the scope of certification under Section 401(a) and admitted that the United States’ amicus brief in that case “did not directly address” the question because “EPA felt the Supreme Court need not reach the question of the scope of certification.” 88 Fed. Reg. at 66,594, n. 57. Further, the “activity as a whole” language was never found in EPA’s implementing regulations and the 2023 Final Rule could only point to sentence fragments in two EPA guidance documents—and one Pennsylvania guidance document—as evidence of EPA’s purportedly “longstanding” views. Id. at 66,593, n. 56.
66. See Transco Denial at 10 (citing greenhouse gas emissions as a ground for denial); Letter from Thomas Berkman, New York State Department of Environmental Conservation to Georgia Carter, Millennium Pipeline Company LLC (Aug. 30, 2017) (denying Valley Lateral Project because the D.C. Circuit held that FERC failed to adequately consider or quantify downstream greenhouse gas emissions under the National Environmental Policy Act); National Fuel Gas Denial at 10 (denying Northern Access Pipeline, in part, because it would cross habitat for a  New York State Species of Special Concern).