AMWA submitted joint comments with the American Water Works Association (AWWA) October 17 on EPA’s proposed rule, “Updating Regulations on Water Quality Certification”. Section 401 of the Clean Water Act (CWA) gives states and tribes the authority to evaluate the potential water quality impacts of discharges from federally permitted or licensed projects that may affect waters of the United States within their borders. Section 401 requires any individual or entity applying for a federal license or permit to obtain a corresponding water quality certification from the certifying state or tribal agency before commencing the project.
The proposal is consistent with an April 2019 Presidential Executive Order entitled “Promoting Energy Infrastructure and Economic Growth” which asked for greater clarity and regulatory certainty for the water quality certification process, particularly for pipeline projects and other energy infrastructure. According to a fact sheet released by EPA, the proposed rule “is intended to modernize the EPA’s regulations and make them consistent with the current text and structure of the CWA.” The agency believes this proposal “will promote consistent implementation of CWA section 401 and streamline the federal licensing and permitting process, consistent with the objectives of the Executive Order.”
The proposal attempts to clarify portions of Section 401, including more clearly limiting a state or tribal agency to a maximum of one calendar year to review an application; limiting the scope of these reviews to only the direct discharge instead of the full footprint of the project; and outlines circumstances for denying a certification and the justification a state or tribal agency must include to do so. In the comment letter, AMWA and AWWA provide support for “any effort to streamline or clarify existing regulatory procedures,” stating that “transparency and clarity are crucial for the regulated public.” However, the associations caution EPA against “any changes that would weaken the abilities of states to protect the quality of their waters and by proxy, the source waters for drinking water utilities.”
According to the Trump administration’s most recent Unified Agenda of Regulatory and Deregulatory Actions, EPA intends to finalize the rule by May 2020.