Fourth Circuit Weighs In On Rules For Clean Water Act's One-Year Deadline For State Water Quality Certifications For Federal Discharge Permits

• Published date: 07 October 2021
• Subject Matter: Environment, Energy and Natural Resources, Environmental Law, Water
• Law Firm: Beveridge & Diamond
• Author: Mr Eric L. Christensen, Allyn L. Stern and James B. Slaughter

On July 2, 2021, the U.S. Court of Appeals for the Fourth Circuit waded into the controversy surrounding proper interpretation of the one-year deadline for state action contained in Section 401 of the Clean Water Act. Its opinion in North Carolina Department of Environmental Quality v. Federal Energy Regulatory Commission, 2021 WL 2763265 (4th Cir. July 2, 2021), interprets Section 401's deadline with considerably more leniency toward the states than either of the other circuits that have recently addressed the issue. Regulated entities seeking federal discharge permits have to carefully assess the timeline for state involvement in their permits and consider outreach to shape acceptable state water quality guidelines under Section 401.

Key Takeaways

• Section 401 of the Clean Water Act authorizes states and tribes to impose water quality requirements on any federal license that would create a discharge into the waters of the state or tribe. The state certification requirement is therefore a key hurdle for any project sponsor seeking a federal license that might impact water quality.

• In contrast with recent decisions from other federal circuit courts, the Fourth Circuit's decision interprets Section 401's one-year shot clock in a manner that gives states and those seeking federal licenses considerably more leeway to withdraw and resubmit requests for certification from states and tribes This could result in a significant extension of the one-year certification period.

• The Fourth Circuit suggests, but does not decide, that under certain factual circumstances the state or tribe could extend the one-year deadline by taking non-final action on a certification request within the one-year deadline, which could lead to project delays.

• At least in the short term, the Fourth Circuit may create more confusion about the rules governing Section 401's one-year shot clock.

Background

Section 401 of the Clean Water Act authorizes states and tribes to approve, reject, or impose certain types of conditions on federally-permitted projects that may result in a discharge into state or tribal waters. But Section 401 imposes a one-year shot clock, providing that if the state or tribe "fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request," the state's (or tribe's) authority to act "shall be waived." This seemingly straightforward requirement has generated considerable...