Archives: September 2023

EPA ANNOUNCES FINAL CLEAN WATER ACT SECTION 401 WATER QUALITY CERTIFICATION IMPROVEMENT RULE

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In another “Waters of the United States” development, the EPA published its final 2023 Clean Water Act Section 401 Quarter Quality Certification Improvement Rule on September 27, 2023. (88 Fed. Reg. 66558.) The final 2023 Rule revises and replaces the 2020 Rule’s regulatory requirements for water quality certification that were adopted by the prior federal administration. The updates seek to realign the scope of Section 401 certification with established practices, while also restoring the roles of states, territories, and authorized Tribes as certifying agencies.

Background on Section 401 Permitting

Section 401 of the Clean Water Act (CWA) requires applicants for any federal license or permit that may result in discharge from a point source into “waters of the United States” to obtain a water quality certification or waiver from the certifying authority (i.e., states, territories, and Tribes with treatment in a similar manner as a state [TAS]). To initiate the process, the applicant must submit a “request for certification,” and the certifying authority must act upon that request within a “reasonable period of time” (which shall not exceed one year).

If the certifying authority determines the proposed activity will comply with statutory limitations and requirements (i.e., effluent limits; monitoring and reporting; etc.), it may grant or waive certification, after which the federal agency can issue the corresponding federal license/permit. If the certifying authority denies certification, no license may be issued. Alternatively, the certifying authority may waive certification simply by “failing or refusing to act on a request for certification within a reasonable period of time.”

The 2020 Rule

On April 15, 2019, then-President Trump issued Executive Order 13868, entitled “Promoting Energy Infrastructure and Economic Growth,” which directed the EPA to propose new regulations governing Section 401 permitting consistent with the order’s policy of “promot[ing] private investment in the Nation’s energy infrastructure.” Pursuant to this directive, EPA promulgated a final rule on July 13, 2020.

The 2020 Rule clarified that federal agencies unilaterally set the “reasonable period of time” for the certifying authority to act on a certification request, clarified that certification was required for any federally licensed activity that discharges into WOTUS, and reaffirmed that certifying authorities may explicitly waive 401 certification. The 2020 Rule also introduced several new features, including one that allowed federal agencies to review certifying agencies’ certification decisions for compliance and, if found non-compliant, deem the non-complying certifications as waived. The 2020 Rule also prohibited certifying agencies from requesting applicants to withdraw and resubmit a certification request. Finally, the 2020 Rule rejected the traditional scope of review as one that considered “the activity as a whole,” in favor of a narrower and more limited “discharge-only” approach.

The 2020 Rule was challenged in three federal district courts by various states, tribes, and NGOs, where, at varying times, it was remanded, reinstated, and ultimately vacated for further proceedings. (E.g., In re Clean Water Act Rulemaking (N.D. Cal. 2021) 568 F. Supp. 3d 1013 (reversed and remanded by (9th Cir. 2023) 60 F.4th 583.)

2023 Rulemaking Process

On January 20, 2021, President Biden signed Executive Order 13990, entitled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” (86 Fed. Reg. 7037.) The order directed the EPA to review and, as appropriate, revise or replace any or all portions of the 2020 Clean Water Action (CWA) Section 401 Certification Rule that had been adopted by the Trump administration.

On May 27, 2021, the EPA announced its intent to revise the 2020 Rule and update the regulatory requirements for water quality certification under Section 401. The EPA later circulated the proposed rule on June 2, 2022, which updated existing regulations to be more consistent with the statutory text of the CWA and to clarify elements of the Section 401 certification process, particularly as it applied to state, federal, and Tribal authority. Thereafter, the EPA conducted pre-proposal engagement and provided a 60-day public comment period.

After receiving public comments and incorporating stakeholder feedback, the EPA published the final Section 401 Rule on September 27, 2023. The rule will become effective on November 27, 2023, and apply to all Section 401 permit applications from then on.

The 2023 Rule Update

The updated 2023 Rule aims to enhance certification review and provide more regulatory certainty that better reflects the CWA’s cooperative federalism framework. The 2023 Rule makes key updates to five major areas of the certification process, including: pre-filing meeting requests; requests for certification; the length of “reasonable period of time”; scope of review; and certification decisions. The Rule also clarifies provisions related to: federal agency review; neighboring jurisdictions; certification modifications; and Tribal TAS status.

Pre-Filing Meeting Requests (Section 121.4)
The 2023 Rule reaffirms that project proponents must request a pre-filing meeting from the certifying agency at least 30 days before it requests certification. (Section 121.4).

As part of the update, the 2023 Rule now provides certifying authorities with the ability to waive or shorten the pre-filing meeting request requirement either on a case-by-case basis (i.e., individual) or on a categorical basis (i.e., for certain types of projects, permits, etc.). The Rule also provides a recommended list of pre-filing meeting request contents to ensure any issues are timely addressed and the certification process moves efficiently.

Requests for Certification (Section 121.5)
The 2023 Rule updates the submission requirements for requests for certification. (Section 121.5). Now, requests for certification must be in writing, signed, date, and include defined minimum contents. For example, if the certification request is for an individual license/permit, it must include a copy of the federal license/permit application and any readily available water-quality materials that informed the application. Alternatively, if the certification request is for a general license/permit, then it must include a copy of the draft federal license/permit and any available water quality-related materials that informed the draft permit.

Moreover, if the EPA is acting as the certifying authority, the Rule sets forth seven additional components that the project proponent must submit. To this end, the Rule now allows state and Tribal certifying authorities to define their own contents or forms for submitting requests for certification, in lieu of relying on EPA’s default list. But if they choose not to do so, the seven elements contained in the Rule’s default list must be included in the request.

Finally, the 2023 Rule now requires certifying authorities to send written confirmation of the date it received a request for certification to the project proponent and the corresponding federal agency.

Reasonable Period of Time (Section 121.6)
Section 121.6 requires certifying agencies to review certification requests and act on those requests within a “reasonable period of time.” (Section 121.6.)  For the first time, the 2023 Rule now provides certifying authorities a role in determining, with the federal agency, the length of the “reasonable period of time” for the certifying authority to review a certification request. Certifying authorities may collaborate with federal licensing or permitting agencies to jointly establish reasonable periods of time before receiving a request. For example, time periods may be established on a case-by-case basis, or on a categorical basis (i.e., through a memorandum of agreement between the federal and certifying agencies).

If the certifying and federal agencies do not reach an agreement, the “reasonable period of time” will default to six months from the time the certifying authority receives a compliant certification request.

In the event the certifying authority needs more time to comply with its public notice procedures or if there is a force majeure event, the agency may, subject to proper notice, automatically extend the review period, provided that the extension does not exceed the statutory maximum of one year.

Scope of Review (Section 121.3)
The 2023 Rule realigns certification processes with previously-established practices that preceded the 2020 Rule. In particular, the Rule modifies the regulatory text to better clarify the extent of the activity subject to certification and the water quality limitations inherent to Section 401.

Under the 2020 Rule, certifying authorities could only consider potential water quality impacts from a proposed project’s point source “discharges.” The 2023 Rule replaces this “discharge-only” approach and returns the scope of review to the “whole activity” that will be subject to the federal permit. Specifically, the Rule provides that, when a certifying authority reviews a certification request, the authority shall evaluate whether the activity complies with all water quality requirements.

However, the Rule clarifies that this evaluation is limited only to those water-quality-related impacts from the activity subject to the federal permit, including the activity’s construction and operation (i.e., impacts that adversely affect the chemical, physical, and biological integrity of WOTUS). Therefore, indirect project impacts with no connection to water quality should not be considered.

To this end, the 2023 Rule also clarifies that the certifying authority’s review is limited to considering impacts to WOTUS, except where a state or authorized Tribe has jurisdiction over those waters. In other words, the certifying authority’s analysis of any given activity is limited to adverse water-quality impacts that may prevent compliance with applicable state or Tribal water quality requirements.

Finally, in granting the certification, the certifying authority must include any requisite conditions that will ensure the activity complies with all applicable water quality requirements (e.g., Sections 301, 302, 303, 306, and 307, and/or any applicable state or Tribal statutes and regulations governing water quality). As such, any conditions that are imposed to address impacts should not be treated as part of the “activity” under consideration.

Certification Decisions (Section 121.7)
The 2023 Rule also establishes that a certifying agency may “act on a request for certification” in one of four ways: (1) by granting certification; (2) by granting certification with conditions; (3) denying certification; or (4) expressly waiving certification. The Rule also requires all final certification decisions be in writing and defines recommended minimum contents for each type of decision.

For example, the Rule recommends that each decision identify the type of decision being made, the applicable federal license/permit, acknowledgement that the certifying agency complied with public noticing procedures. For certifications granted with conditions, the Rule recommends the authority provide a statement explaining why each condition is necessary to assure the activity will comply with water quality requirements. Alternatively, for denials, the Rule recommends the authority explain why it is unable to certify compliance with water quality requirements.

Federal Agency Review (Sections 121.8–121.9)
The 2023 Rule shifts away from the 2020 Rule by limiting the role of federal agency review. Now, federal agencies are limited to verifying: (1) whether the certifying authority issued a certification decision; (2) the authority confirmed it complied with public noticing procedures; and (3) the authority acted on the request within a reasonable period of time.

Neighboring Jurisdictions (Sections 121.12–121.15)
The 2023 Rule adds more detail to the discussion of neighboring jurisdictions and how they can participate in the permitting process when the EPA has determined that a proposed project in another jurisdiction may affect their water quality. The regulatory text now clarifies: the roles of actors involved; when the neighboring jurisdiction process begins; and identifying minimum contents of notifying the EPA.

Certification Modifications (Section 121.10)
The 2023 Rule authorizes certifying authorities and federal agencies to modify a grant of certification, but only if the modifications are to portions that are agreed upon by both entities. The Rule clarifies that the certifying authority cannot unilaterally modify a certification decision, nor can it change the nature of the final decision through the modification process (i.e., grant, deny, waive).

Tribes Applying for Treatment in a Similar Manner as a State (Section 121.11)
For the first time, the 2023 Rule includes provisions for Tribes to obtain TAS status for purposes of Section 401 certification or to obtain TAS status to act as a neighboring jurisdiction. This will not allow tribes to have more involvement in the certification process without also having to apply for TAS for water quality standards under Section 303(c).

Conclusion

The Final 2023 Rule will go into effect on November 27, 2023 and apply to all prospective certification decisions. All other certifications currently pending review or submitted before then will be governed by the 2020 Rule or corresponding certification scheme.

For more information, the EPA has provided an overview of the final rule, along with a summary of key updates and a comparison of the 2023 Rule vs. the 2020 Rule. The Agency is also finalizing conforming amendments to the water quality certification regulations for EPA-issued NPDES permits. (Docket ID No. EPA-HQ-OW-2022-0128; -0391).

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Brian Plant, Of Counsel Attorney at RMM, advises private and public agency clients regarding a broad range of permitting actions under Federal and State water quality, endangered species, and other natural resources laws and regulations. He can be reached at: [email protected].

Bridget McDonald, Associate Attorney at RMM, advises private and public agency clients regarding a broad range of permitting actions under Federal and State water quality laws, as well as CEQA, the Coastal Act, and matters related to planning, zoning, and housing. She can be reached at: [email protected].

EPA PUBLISHES REVISED DEFINITION OF “WATERS OF THE UNITED STATES” IN RESPONSE TO SCOTUS’ SACKETT DECISION.

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On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) issued a final rule to amend the agencies’ earlier “Revised Definition of ‘Waters of the United States,’” published on January 18, 2023. (88 Fed. Reg. 3004.) The latest rule revises the definition of “waters of the United States” (WOTUS) to conform to the Supreme Court’s May 25, 2023 opinion in Sackett v. Environmental Protection Agency (2023) 598 U.S. 651.

The highly anticipated Sackett decision resolved long-standing debate over the scope and definition of WOTUS under the Clean Water Act (CWA). The Court’s opinion considerably narrows the regulatory reach of the EPA and the Army by invalidating the agencies’ application of the “significant nexus” test and promulgating a limited interpretation of jurisdictional “waters” and “adjacent wetlands” that are covered by the CWA.

While the EPA and Army’s January 2023 WOTUS Rule was not directly before the Supreme Court, the Sackett decision made clear that certain aspects of the that Rule were invalid, in turn creating further uncertainty for CWA implementation. The August 2023 Rule (also referred to as “the Conforming Rule”) thus responds to Sackett by amending only those components of the rule’s regulatory text that are now invalid under the Supreme Court’s interpretation of the CWA—namely, removing the “significant nexus” standard and amending the definition of “adjacent” waters. By expeditiously issuing these amendments, the agencies assert the final rule provides much-needed clarity and a clear path forward that is not only consistent with the Supreme Court’s ruling, but allows the Army Corps to resume issuing jurisdictional determinations (which have been put on hold in some Corps’ Districts).

A summary of the August 2023 Rule’s key amendments and its timeline for implementation are summarized below:

Key Regulatory Amendments

To align with the Sackett holding, the August 2023 Rule takes a surgical approach to make targeted revisions to selected portions of the January 2023 Rule that are implicated by the decision:

Removal of “Significant Nexus” Standard
The Sackett decision found that the agencies’ application of the “significant nexus” test to identify federally protected tributaries and other waters was inconsistent with the text and structure of the CWA. The August 2023 Rule thus removes all references to the standard.

As a result, tributaries, adjacent wetlands, and intrastate lakes and ponds that “significantly affect the chemical, physical, or biological integrity of [traditional navigable] waters” are no longer jurisdictional under the CWA. Along these lines, the Conforming Rule also eliminates the definition of “significantly affect,” which listed various factors and conditions that the agencies used to ascertain whether certain waters would have a material influence on the chemical, physical, or biological integrity of traditional navigable waters. These standards, according to the Court, were too nebulous for reasonable and understandable implementation and were inconsistent with the structure of the Clean Water Act.

Amended Definition of “Adjacent” Waters
To conform to Sackett, the August 2023 Rule also amends the WOTUS definition so that water can no longer be found “jurisdictional” based on the January 2023 Rule’s definition of “adjacent.” As such, wetlands are not “adjacent,” and thus, not jurisdictional under the CWA, solely because they are “bordering, contiguous, or neighboring…[or] separated from other ‘waters of the United States’ by man-made dikes or barriers, natural river berms, beach dunes, and the like.”

Instead, “adjacent” tributaries, wetlands, and intrastate lakes/ponds are only jurisdictional if they are “relatively permanent, standing, or continuously flowing bodies of water,” or have a continuous surface connection to navigable waters.

No More “Interstate Wetlands,” But Little Clarity on “Relatively Permanent” Wetlands
With the elimination of the “significant nexus” standard, tributaries, wetlands, and intrastate lakes/ponds that are “adjacent” to federal navigable waters are only jurisdictional if they are “relatively permanent, standing, or continuously flowing bodies of water.” The August 2023 Rule also eliminates “interstate wetlands” from the definition of “interstate waters” that are subject to the CWA.

Notably, however, the August 2023 Rule provides little clarity into the factors that create “relatively permanent” waters. The Rule’s supplemental preamble explains that, under Rapanos, those waters do “not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances such as drought,” or “seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months.”

And, under Sackett, “waters”  encompass “only those relatively permanent, standing, or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes.” Wetlands are  WOTUS “when they have a continuous surface connection to bodies that are ‘waters of the United States’in their own right, so that there is no clear demarcation between ‘waters’ and wetlands.’” Nevertheless, under the Conforming Rule, it remains unclear the length of “relative permanency” a water must experience in order to qualify as jurisdictional under the CWA.

Finally, the August 2023 Rule removes “interstate wetlands” to conform to the Sackett decision’s determination that wetlands are not jurisdictional simply because they are interstate. Instead, under the Supreme Court’s interpretation of the CWA, the term “waters” refers to such ‘open waters’ such as rivers, lakes, and other waters that flow across or form a part of State boundaries.

Regulatory Interpretation & Agency Guidance
Unlike prior versions of the WOTUS rule, the August 2023 Rule’s proposed amendments note that the agencies will continue to interpret the remainder of the definition of WOTUS in a manner that is consistent with the Sackett decision. But the agencies reiterate that it is both reasonable and appropriate for the agencies to promulgate this rule as quickly as feasible, without notice and comment, in response to the Supreme Court’s significant holding.

In turn, the agencies concede that they will address any potential issues arising from implementation of the August 2023 Rule through appropriate avenues, such as approved jurisdictional determinations and CWA permits, issuing future guidance, subsequent notice and comment rulemaking, preparing agency forms and training materials, and holding stakeholder meetings to ensure the public has an opportunity to provide input on other issues they would like the agencies to address.

Thus, in practice, the agencies will develop guidance and take stakeholder input regarding the August 2023 Rule’s proposed amendments after it is published in the Federal Register and becomes effective, and not rely on pre-publication comment.

Severability Clause
As with the agencies’ January 2023 Rule, the August 2023 Rule similarly provides a severability clause that attempts to preserve as many portions as feasible in the event future litigation attempts to stay or invalidate the Rule. The August 2023 Rule reiterates that the WOTUS rule was crafted so that each portion or element is disjunctive and capable of operating independently. Therefore, if any provision is deemed legally invalid, that partial invalidation will not render the remainder of the Rule as also invalid. To this end, if applying any portion of the Conforming Rule is determined to be invalid, the agencies intend that the complete WOTUS rule, as revised, will remain applicable to all other circumstances. In other words, if any of the exclusions from WOTUS were deemed invalid, invalidating one exclusion would not necessarily have any practical impact on any other part of the definition of WOTUS.

Implementation Timeline

No Notice and Public Comment Process
Because the proposed amendments are change only those parts of the January 2023 rule that are invalid under Sackett, the EPA and the Army have decided to issue the August 2023 Rule without notice or an opportunity for public comment. Citing section 553(b)(B) of the Administrative Procedure Act (APA), the agencies have found there is good cause that providing noticing or receiving public comments on the final rule would be impracticable and unnecessary.

According to the agencies, the conforming amendments “do not involve the exercise of the agencies’ discretion,” therefore a “notice and comment process would neither provide new information to the public nor inform any agency decisionmaking regarding the aspects of the regulations defining ‘waters of the United States’ that are invalid as inconsistent with the [CWA] under Sackett.”

Immediate Publication & Effect
The August 2023 Rule will become immediately effective upon publication in the Federal Register. The agencies have found similar good cause under APA section 553(d)(3) to make the August 2023 Rule immediately effective because it will not impose any burdens on the regulated community. Instead, the agencies contend that the amendments merely conform the January 2023 Rule to Sacket by amending those provisions deemed invalid under the Supreme Court’s interpretation of the CWA.

The agencies reiterate that making the rule immediately effective will provide more clarity and certainty to the regulated community; whereas a delayed effective date would prolong confusion and potentially result in project delays for prospective permittees that seek a jurisdictional determination for their project’s proposed discharges. Finally, the immediate effect of the Conforming Rule will also provide clarity to States and Tribes that administer CWA permitting programs, as well as members of the general public who seek to understand which waters are subject to the CWA’s requirements.

Next Steps

The amended August 2023 Rule is expected to be published in the Federal Register by Friday, September 1, 2023. Once published, the rule will go into immediate effect and the Army Corps’ pause on issuing jurisdictional determinations (due to the pending Sackett decision) will be lifted.

Due to an existing injunction against the January 2023 Rule, the agencies will implement the August 2023 Rule in the 23 states where the January 2023 Rule is not enjoined. In the remaining 27 states where the January 2023 is enjoined, the agencies will continue interpreting WOTUS consistent with the pre-2015 regulatory regime and the Sackett framework until further notice.

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Brian Plant, Of Counsel attorney at RMM, advises private and public agency clients regarding a broad range of permitting actions under Federal and State water quality, endangered species, and other natural resources laws and regulations. He can be reached at: [email protected].