EPA Rules On CWA Section 401 Water Quality Certifications By States

• Published date: 28 February 2024
• Subject Matter: Environment, Energy and Natural Resources, Energy Law, Environmental Law, Oil, Gas & Electricity, Water
• Law Firm: Cullen and Dykman
• Author: Angela N. Cascoine

In compliance with a 2021 Presidential Executive Order entitled "Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis"¹ as well as in response to recent case law (including NYSDEC v. FERC)², the U.S. Environmental Protection Agency ("EPA") has finalized new rules³ that revise and replace its 2020 regulatory requirements for Water Quality Certifications ("WQC") pursuant to the Federal Clean Water Act ("CWA")⁴.

The EPA's "Clean Water Act Section 401 Water Quality Certification Improvement Rule," effective November 27, 2023, comprises a voluminous document detailing various changes to or clarifications of rules governing the process for obtaining WQC's from a State (or certain Tribes). Under the CWA, a Federal agency may not issue a license or permit to conduct any activity that may result in any discharge from a point source into "Waters of the United States" unless the State where the discharge would originate either waives certification or issues a WQC. To protect the quality of their waters from adverse impacts resulting from the construction and/or operation activities of Federally licensed or permitted projects, Section 401 of the CWA empowers States to include WQC conditions, including "effluent limitations and other limitations, and monitoring requirements,"⁵ necessary to assure that the applicant for a Federal license or permit will comply with CWA Sections 301, 302, 306, and 307, and with "any other appropriate requirement of State law."⁶

In the New York Public Service Law Article VII context⁷, our siting clients or their environmental consultants (each a "project proponent") frequently request a WQC from the New York State Public Service Commission (the "certifying authority") because most proposed major utility transmission facility projects trigger the need for a Federal permit from the U.S. Army Corps of Engineers. Our natural gas pipeline project proponent clients require such certifications as well, pursuant to the Natural Gas Act⁸ and Federal Energy Regulatory Commission permitting regulations; in those scenarios, the New York State Department of Environmental Conservation ("NYSDEC") is the certifying authority. While several questions remain regarding how each of the NYSDEC and the Commission will implement these new EPA rules in issuing a New York State WQC, a few items in such new rules seemed especially noteworthy:

1. A project proponent is now required to request a pre-filing meeting with the...