U.S. District Court Vacates Trump Administration Rule Governing The Clean Water Act's One-Year Deadline For State Water Quality Certifications Under Section 401

• Published date: 02 November 2021
• Subject Matter: Environment, Energy and Natural Resources, Environmental Law, Water
• Law Firm: Beveridge & Diamond
• Author: Mr Eric L. Christensen and Allyn L. Stern

On October 21, 2021, a U.S. District Court vacated the Trump Administration's rule that sought to limit the power of States and Indian Tribes under Section 401 of the Clean Water Act to impose conditions on federal permits for projects that would create discharges into the waters of a State or Tribe. The ruling effectively restores EPA's prior rule, initially adopted in 1971, pending further revisions by the Biden Administration, which are currently being considered and are likely to be adopted in roughly two years.

Key Takeaways

• The District Court's decision vacates the Trump Administration rule, adopted in June 2020, that significantly restricted the scope of the conditions states are permitted to impose on federal permits under Section 401 of the Clean Water Act.

• States will now have considerably more leeway than was allowed under the Trump Administration rule to impose conditions on federal permits for projects that involve discharges to the waters of an affected State. Given the Biden Administration's priorities in environmental policy, that will likely remain in effect even after it issues a new rule governing Section 401 implementation.

• On June 2, 2021, the Biden Administration issued a Notice of Intent indicating that it would undertake an administrative process to revise the Trump Administration's Section 401 rule, with a final rule likely to be issued in 2023. The District Court's ruling means that until that final rule is issued, the 1971 rule, which accorded broad discretion to the states, will remain in effect.

• At least for the time being, difficult interpretative questions about how the one-year time limit allowed to states to act under Section 401 is construed, and especially how or whether the time limit can be extended, will remain.

Background

Section 401 of the Clean Water Act authorizes States and Tribes to certify that a discharge into waters of the United States that may result from a proposed activity will comply with certain sections of the CWA, including effluent limitations and performance standards, water quality standards, and toxic pretreatment effluent standards. The CWA has statutory timelines for action, requiring States and Tribes to act on a certification request within a reasonable time not to exceed one year. Certification requires the State or Tribe to take one of three actions: (1) grant certification; (2) deny certification; or (3) grant certification with conditions. Failure to act timely by the State or...