Insights
Publications

New EPA Clean Water Act Rule Attempts to Streamline Permitting Process

June 4, 2020 Articles

Earlier this week, the U.S. Environmental Protection Agency finalized the “Clean Water Act Section 401 Certification Rule” (Rule). The Rule comes with significant procedural and substantive changes to the certification process for infrastructure projects.

Under Section 401 of the Clean Water Act, every applicant for a federal permit or license for any activity that may result in a discharge to a water body must request certification from the relevant state or tribe that the activity will comply with the local applicable water quality requirements.

The certifying state or tribe is obligated to respond within a “reasonable period of time” – not to exceed one year. In the past, states and tribes could extend the one year time period by stopping or tolling the certification process. The Rule prohibits this practice. Now, the clock starts ticking when the authorizing agency receives the certification request. If it does not grant, grant with conditions, deny, or expressly waive certification within one year, then it waives its certification authority under Section 401.

The Rule also limits the types of conditions that a certifying agency can place on a federal permit or license. This change incorporates Justice Thomas’s dissent in PUD No. 1 of Jefferson County v. Washington Dep’t of Ecology, 511 U.S. 700 (1994). Whereas the majority opinion held that certifying agencies could comprehensively review a facility’s impacts on water quality and identify conditions to address the same, Justice Thomas argued that any conditions must be narrow and strictly discharge related. In adopting Justice Thomas’s logic, EPA has sought to clarify that the Clean Water Act does not permit states or tribes to place any restrictions on infrastructure projects that are unrelated to a facility’s discharges.

Due to the Rule’s constraint on the power of states and tribes to set conditions on federal permits and licenses, legal challenges are expected. Thus, while industry may look favorably on EPA’s rulemaking as a common sense interpretation of the Clean Water Act and a welcome attempt to streamline the permitting process for infrastructure projects, several states, including California and Washington have voiced objections to the Rule, and for now, project applicants are unlikely to benefit from streamlined review.

Firm Highlights

News

52 Farella Braun + Martel Attorneys Listed in The Best Lawyers in America© 2021

Read More
Publication

Major Supreme Court Ruling Expands Reach of Clean Water Act NPDES Permitting to Certain Discharges to Groundwater

In a landmark ruling, the United States Supreme Court has held that, under section 301 of the federal Clean Water Act (CWA), a discharge of pollutants from a point source to groundwater is subject...

Read More
Publication

New Screening Levels for Key PFAS Chemicals Will Spur Regulatory Action at Contaminated Sites

In support of the State Water Resources Control Board’s (State Board) efforts to investigate and evaluate the public health effects of per- and polyfluoroalkyl substances (PFAS), the San Francisco Regional Water Quality Control Board...

Read More
Publication

The Winding Trail Home: Marin County Secures Key Multi-Use Trail Access Decision

With Marin County’s Mt. Tamalpais often considered the birthplace of mountain biking, it should not be surprising that the County finds itself at the forefront of California’s battle over multi-use trail access and consequently...

Read More
Publication

Key PFAS Regulatory Standards Set in California

In support of California’s efforts to investigate and evaluate the presence of per- and polyfluoroalkyl substances (PFAS) in the environment, the San Francisco Bay Regional Water Quality Control Board (Regional Board) has released interim...

Read More
Publication

Renewable Energy Roundtable Update in the Wake of COVID-19

The COVID-19 pandemic has resulted in widespread disruption of business and industry across California, including the state’s vibrant renewable energy and energy storage industry. Farella Braun + Martel attorneys are tracking developments and advising...

Read More
Publication

Supreme Court Ruling Expands Reach of Clean Water Act NPDES Permitting

Read the article on California Ag Net , here . In April, the United States Supreme Court issued a landmark ruling clarifying the reach of the federal Clean Water Act. The Court decided that a...

Read More
News

EPA’s New Guidance Mandate Leaves Superfund Cleanup Less Certain

Sarah Bell commented in the Bloomberg Law article "EPA’s New Guidance Mandate Leaves Superfund Cleanup Less Certain."    Read the full article here .

Read More
Event

LSI's PFAS Contamination and Regulation in California Virtual Conference

Sarah Bell will be speaking at LSI's virtual conference on PFAS Contamination and Regulation in California live webinar, "PFAS and Hazardous Materials Cleanup Laws." Details: CWA violations, CERCLA designations, and NRD claims as potential game...

Read More
News

Farella Braun + Martel Ranked Among “Best Law Firms” by U.S. News & World Report and Best Lawyers

SAN FRANCISCO, November 5, 2020: Farella Braun + Martel earned national and regional rankings across a number of practice areas in the U.S. News & World Report and Best Lawyers® release of the “Best...

Read More