EPA’s Section 401 Rule Respects Federalism While Addressing State Abuses

Daren Bakst

A central feature of the Clean Water Act (CWA) is cooperative federalism.  In fact, right at the start of the statute, Congress made it clear that states are expected to take the leading role in addressing water pollution.

Section 401 of the CWA is a great example of this cooperative federalism model.  As explained by the Environmental Protection Agency (EPA):

Section 401 of the CWA requires that, for any federally licensed or permitted project that may result in a discharge into waters of the United States, a water quality certification be issued [by states and authorized tribes] to ensure that the discharge complies with applicable water quality requirements.

States can use the Section 401 certification process to ensure that state water quality will not be harmed by federally permitted activities.

But what happens when states abuse this process to address issues that have nothing to do with water quality? What happens when non-water quality issues delay critical projects?

For example, the state of Washington blocked the Millennium Bulk Terminal project, a proposed large coal export facility along the Columbia River that would help export coal to Asia.

In order to deny the Section 401 certification, the state of Washington heavily relied upon factors that have nothing to do with water, such as vehicle traffic, train noise, and rail safety.

The EPA has provided some additional examples of abuse:

Certifying authorities have on occasion required in a certification condition the construction of biking and hiking trails, requiring one-time and recurring payments to State agencies for improvements or enhancements that are unrelated to the proposed federally licensed or permitted project…[they] have also attempted to address all potential environmental impacts from the creation, manufacture, or subsequent use of products generated by a proposed federally licensed or permitted activity or project that may be identified in an environmental impact statement or environmental assessment, prepared pursuant to the NEPA or a State law equivalent.

Section 401 doesn’t give states a green light to veto projects for whatever reasons they desire.

On Monday, the EPA released a final rule that would help to better clarify the Section 401 process and eliminate some of these abuses.

The final rule correctly states in the preamble, “The imposition of conditions unrelated to water quality is not consistent with the scope of the CWA generally or section 401.”  The rule text itself states, “[t]he scope of a Clean Water Act section 401 certification is limited to assuring that a discharge from a Federally licensed or permitted activity will comply with water quality requirements.”

There are two key components of this scope language that helps to ensure the section 401 process is consistent with the CWA.  First, states are required to focus on discharges from the activity itself and not on other alleged impacts of a project.  Second, states must focus on water quality requirements only and not use the process to achieve other state objectives, such as addressing climate change.

The final rule covers additional issues as well.  According to the EPA, the rule also, among other things:

  • “Reaffirms the statutory requirement that action on a certification request must be taken within a reasonable period of time, but in no case later than one year after receipt of a certification request.”
  • “Reaffirms the Agency’s statutory responsibility to provide technical assistance to any party involved in a Section 401 water quality certification process.”
  • “Promotes early engagement and coordination among project proponents, certifying authorities (the regulating entity responsibility for acting on a CWA Section 401 certification), and federal licensing and permitting agencies.”

Critics of the rule, including environmental organizations, have claimed it would undermine state rights.  The final rule though would simply rein in abuses and ensure that the cooperative federalism model of Section 401 is applied consistently with the plain language and intent of the CWA.

As the United States searches for solutions that will help jumpstart the economy in light of the pandemic, unnecessary governmental obstacles need to be addressed.  This new Section 401 rule primarily serves to properly interpret the CWA.  However, it does have the additional benefit of helping to remove inappropriate state-imposed obstacles to projects that could help the economy during this challenging time.

Daren Bakst

Director of the Center for Energy and Environment and Senior Fellow

Competitive Enterprise Institute

Energy & Environment

Federalist Society’s Environmental Law & Property Rights Practice Group

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the author(s). To join the debate, please email us at [email protected].

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