Clean Water Act Section 401 Certification Rule

Overview

On April 15, 2019, President Trump issued Executive Order 13868, titled “Promoting Energy Infrastructure and Economic Growth.” That order directed the Environmental Protection Agency (“EPA”) to review and revise its regulations implementing Section 401 of the Clean Water Act to make it easier for oil and gas infrastructure to be approved and constructed. Section 401 of the Clean Water Act gives states and tribes the ability to ensure that a proposed project requiring federal authorization does not degrade water quality within the certifying authority’s jurisdiction. A certifying authority can waive its authority, issue a certification, deny a certification, or issue a certification with conditions that ensure protection of water quality.

On August 22, 2019, EPA proposed a new rule overhauling its Section 401 regulations. The new rule dictated what items constituted a complete certification request from a project proponent (which determines when the one-year clock starts for a certifying authority to make a decision), limited the legal authorities that could serve as the bases of a certifying authority’s decision; treated non-compliant certifications as a waiver of certifying authority; vested the Federal agencies with the power to enforce a certifying authority’s certification; and attempted to make the determination as to whether an activity may affect a neighboring jurisdiction entirely discretionary. See DRN’s comment on the proposed rule here.

On July 13, 2020, EPA promulgated the final rule with some slight changes. That same day, Delaware Riverkeeper Network filed a challenge in the Eastern District of Pennsylvania. See the complaint here. EPA moved to dismiss Delaware Riverkeeper Network’s complaint, arguing that we did not have standing and that our challenge was not ripe. The court denied EPA’s motion in December 2020.

On Inauguration Day, January 20, 2021, President Biden issued Executive Order 13990, titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” which directed federal agencies to immediately review certain actions taken during the Trump Administration, and revoking EO 13868. As a result, Delaware Riverkeeper Network and the EPA agreed to a 60-day abeyance of the lawsuit so that the EPA could evaluate the Certification Rule. That abeyance is scheduled to end on April 6, 2021.