Wetland Wednesday

January 15, 2020

The 401 certification program is undergoing some major updates. This past August, the USEPA published its Economic Analysis for the Proposed Clean Water Act Section 401 Rulemaking. This is a fascinating document as it explains the economic rational for the proposed new 401 rules.

This document discusses the status of the existing processes and suggested efficiencies that are intended to expedite the permit process. The proposed EPA clarifications to the existing certification regulations include:

1. Timeline: The timeline for action on a section 401 certification is proposed to begin upon receipt of a certification request by the certifying authority. Review timeline is reinforced as one year.
2. Scope: The scope of a section 401 certification review, and the decision whether to issue or deny a section 401 certification, is proposed to be limited to an evaluation of whether the potential discharge will comply with applicable provisions of sections 301, 302, 303, 306, and 307 of the Clean Water Act and EPA-approved state or tribal Clean Water Act regulatory program provisions.
3. When the EPA is the certifying authority, the EPA is proposing additional procedures for prefiling engagement and requests for additional information. Under the proposal, project proponents would be required to request a pre-filing meeting with the EPA, when it acts as the certifying authority, at least 30 days prior to submitting a request for certification to help ensure a timely section 401 certification decision. As proposed, when EPA is the certifying authority, it would be allowed to request additional data from the project proponent within 30 days of receipt of a request for certification; the EPA would only request additional information that could be collected or generated within the established reasonable period of time; and the EPA would include a deadline for the project proponent response, allowing sufficient time to review the information and act on the request within the federal agency’s timeframe.

This proposed rule was published in the Federal Register on August 22, 2019. The public comment period ended on October 21, 2019. These changes are in response to the April 2019 Executive Order 13868: Promoting Energy Infrastructure and Economic Growth.

There is quite a lot of information about the changes and I encourage you to dive into the proposed rules. They can be found at: https://www.regulations.gov/document?D=EPA-HQ-OW-2019-0405-0025