By Aaron Zoellick, WKC Legal Intern
You should not dive into a pool before checking if it is filled with water. States should not make a CWA §401 permit granting decision before they have all of the relevant facts. The EPA disagrees.
The Environmental Protection Agency (EPA) recently released a guidance document outlining certain Clean Water Act (CWA) timelines and requirements that states should follow when reviewing the impacts of major infrastructure projects, such as interstate pipelines and dams. The Guidance comes on the heels of President Trump’s Executive Order 13868 which seeks to abolish environmental protections in favor of unchecked development and economic growth. A strict adherence to the EPA’s recommendations would have states and tribes making rushed decisions, with incomplete information on projects that will have long-term consequences.
Any major development project, like a pipeline or a dam, that has the potential to pollute into navigable waters requires a “water quality certification” under Section 401 of the Clean Water Act from the state where the proposed pollution will occur. The water quality certification is a way for the state to either (1) review and “certify” that a project will not have a significant impact on the quality of state waterways, (2) place certain pollution prevention conditions on a project to minimize the impacts of a project, or (3) deny certification all together because the impacts of a project on local water quality would be too significant. The federal government must first have the approval of the state water quality certification before granting the new construction of any major project. The CWA requires states to issue or deny the water quality certification in a reasonable time, not to exceed one year, or it will be considered waived.
States have wielded the authority given to them through the CWA with increasing efficacy in the last few years to prevent projects from being developed within their borders that would have lasting impacts on the quality of their local waterways. However, setbacks in federal courts, like the DC Circuit’s decision in Hoopa Valley Tribe v. FERC, have introduced limits to the steps that states can take to protect their waterways. In the Hoopa Valley Tribe decision, the DC Circuit ruled that states cannot restart the ‘one-year clock’ on a Section 401 Certification when the applicant withdraws and then resubmits their request.
President Trump’s Executive Order and the EPA’s subsequent Guidance are meant to further erode state authority under the CWA by: (1) restricting the time available to the states and tribes to review and make their decisions about major projects impacting their local waterways; (2) limiting the information available to states and tribes when reviewing these major projects; and, (3) providing an outsized role for federal agencies in the process in the name of economic development.
The EPA’s Guidance begins by recommending that the one-year clock for states to make a decision on a water quality certification begins when the state receives the initial request, even if an incomplete request was submitted. Previously, the clock began after the appropriate state agency received a “complete application.” The EPA takes the preposterous position that the CWA “makes no mention of a state or tribe’s authority to determine that a request is incomplete…” and therefore it would be “inappropriate” for states to require having all of the facts and relevant information before starting the clock. Its unclear how states can do their due diligence in insuring that a project won’t dramatically impact local water quality without having all the relevant information to make that determination.
State authority to conduct these water quality certifications under the CWA is further usurped when the EPA suggests that the Hoopa Valleydecision made clear that states are not allowed to restart the one year clock — even if an application is submitted to the state, then fully withdrawn due to incompleteness, then re-submitted again at a much later time. Under the Guidance, EPA also suggests thatfederal permitting agencies are authorized to determine, on behalf of the states or tribes, that the authority to issue a water quality certification has been waived if a decision is not made within the one-year deadline. This could cause a situation where a developer intentionally submits an incomplete application for a proposed project, then simply waits for the one-year clock to toll so that the state’s authority is then waived.
Scope of Available Information
If limiting the time that states and tribes have to make water quality certification determinations was not enough, the EPA’s Guidance states that “a state or tribe should only need the application materials submitted for the federal permit or license.”The EPA does concede that in “some cases” states or tribes may need additional information, such as an environmental assessment or an environmental impact statement like those completed for a National Environmental Policy Act (NEPA) project. However, the Guidance recommends that waiting for a National Environmental Policy Act (NEPA) process to be completed may result in a federal agency determination that the state or tribe has waived its Section 401 Certification authority since the NEPA process is broader in scope and tends to take more than one year to be concluded.
As a sheep-in-wolf’s clothes effort to “improve communication” between project proponents, federal permitting agencies, and the states or tribes, the EPA recommends that “federal permitting agencies notify states and tribes of projects that may require Section 401 certification as soon as possible.” As an example, the agency suggests that when an agency issues a Notice of Intent pursuant to NEPA, that federal permitting agency should immediately notify the relevant states and tribes. Having already admitted that the NEPA process can take multiple years to go through, and insisting that states and tribes begin the water quality certification process as soon as they receive the initial request, or risk being deemed to have waived their authority, following this recommendation would make it highly likely that a state would be forced to make a decision without having all of the relevant information available to them.
The EPA seems to be paving a path for federal agencies to loom over the shoulders, and perhaps, introduce a not-so invisible hand into states and tribes Section 401 Certification decision-making process. This is unfortunate because the Clean Water Act is very explicit in giving broad authority to states to review and prevent major projects that would have a negative impact on state water quality. States have an explicit interest and knowledge in protecting their own waterways. This authority simply doesn’t belong to the federal government.
The Guidance recommends that: 1) federal permitting agencies have a procedure in place to ensure they are properly notified of the date a certification request is received by the state or tribe; 2) agencies offer, and provide as requested, technical assistance to states and tribes throughout the certification process; and, 3) federal permitting agencies encourage project proponents to request all necessary water quality certifications from multiple states at the same time.
These recommendations would seem to put further pressure on states and tribes to make hasty decisions and open the door to greater federal agency influence. By flooding state agencies and tribes with project proposals all at once, with varying deadline dates, offices with limited resources may feel compelled to lean on the federal agencies to aid in the decision making process, effectively circumventing the broad state authority under the Clean Water Act.
The EPA’s Guidance is not legally binding on the states or federal agencies. It is, however, a foreshadowing of possible rules that the agency will attempt to promulgate under the direction of President Trump’s Executive Order 13868. Until then, it seems likely that states and tribes are going to reject an increasing number of water quality certifications or risk having projects thrust upon them that will do untold damage to their waterways, because the authority given to them by the CWA was waived while they sought the appropriate information. There will certainly be a well-spring of litigation as a result of the Guidance, and any proposed rule changes in the coming months. Perhaps, that is what the EPA had in mind when they recommended that “if a state or tribe intends to deny a Section 401 certification…the notice of denial be in writing and identifying with specificity the reasons….” The EPA wants project proponents to have plenty of information to take to the courts, while stripping the states and tribes of the time and information needed to make appropriate decisions.
If the EPA, under the current administration, were a lifeguard at your local YMCA it would not only be recommending, but actively encouraging, people to leap head first from the diving board before assessing whether the pool is filled with water. If these recent recommendations by the EPA are to be followed by states and tribes in their Section 401 Certification process, the country will soon see states, at best, emerging from the metaphorical YMCA pool covered in thick, toxic algae or noxious pollutants after being rushed through their decision making process, or, at worst, suffering from similar head injuries as the EPA officials that concocted these proposals after diving into an empty pool.