Michael Campbell and Veronica Keithley Discuss Future of EPA’s Section 401 Rule on State Water Quality Certification of Federal Permits

Environmental and natural resource law attorneys Michael Campbell and Veronica Keithley contributed an article to POWER magazine titled “Future of EPA’s Rule on State Water Quality Certification of Federal Permits,” published March 1, 2021. The authors discuss the possible fate under the Biden administration of the Environmental Protection Agency’s (EPA’s) Clean Water Act (CWA) section 401 rule on state water quality certifications of federal permits.

Section 401 dictates steps the states, and tribes treated as states under the CWA, must take before a federal permit can be issued for an activity that may discharge to “waters of the United States.” It also can be used as a tool by states to allow them to regulate an activity — including blocking or restricting it — in those instances where state laws are preempted by federal laws. Such federal laws include those giving the Federal Energy Regulatory Commission exclusive authority to license hydropower projects, natural gas pipelines and certain other facilities.

Stymied by states exercising their section 401 authority to block federal permitting of new energy projects, the Trump administration directed the EPA to update the rule. Revised section 401 went into effect in September 2020, giving states narrower authority under the rule and more strictly interpreting its deadlines, and brought an immediate challenge from 20 states and several other entities.

The authors conclude: “The fate of the EPA’s rule under the Biden administration is likely to be similar to that of Obama administration rules during the Trump presidency — multiple, protracted legal challenges to the rule, the adoption of a revised rule, and then multiple, protracted legal challenges to the revised rules, with the challengers and defenders switching sides. … The scope of the states’ section 401 authority will likely remain in the courts, with uncertainty for years to come.”