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:
- A project proponent is now required to request a pre-filing
meeting with the certifying authority at least 30 days prior to
submitting a request a WQC in accordance with the certifying
authority's applicable submission procedures, unless the
certifying authority waives or shortens the requirement for the
pre-filing meeting request. If a certifying authority fails to
communicate whether it wants to waive or shorten the pre-filing
meeting request requirement, then the project proponent must wait
30 days from requesting a pre-filing meeting to submit its request
for certification.9
- If the WQC request is for an individual Federal license or
permit, the request for certification must include a copy of the
Federal license or permit application and any readily available
water quality-related materials that informed the development of
the application. If the request for certification is for the
issuance of a general Federal license or permit, then the request
for certification must include a copy of the draft Federal license
or permit and any readily available water quality-related materials
that informed the development of the draft Federal license or
permit.10
- A certifying authority must send written confirmation to the
project proponent and Federal agency of the date that a request for
certification is received by the certifying authority in accordance
with its applicable submission procedures. The reasonable period of
time for a certifying authority to act, which shall not to exceed
one year, does not start with the written confirmation from the
certifying authority; instead, it begins on the date that the
project proponent submitted the request for certification in
accordance with the certifying authority's applicable
submission procedures.11
- The phrase "shall not exceed one year" means that the
reasonable period of time need not be one full year and that a
certifying authority should not necessarily expect to be able to
take a full year to act on a Section 401 WQC request. The
certifying authority could be subject to a shorter than one-year
reasonable period of time to render its decision, provided that the
Federal agency and the certifying authority have agreed to a
shorter time, or when the parties do not reach agreement and
instead rely on the EPA's default reasonable period of time of
six months.12
- If the State certifying authority has identified additional
contents for a request for certification, such as those that are
relevant to State water quality-related impacts from the activity,
then the project proponent must include in its WQC request those
additional contents identified by the certifying authority prior to
when the request was made.13 Certifying authorities
cannot subsequently modify or add to the required contents of a
request for certification after the request was submitted. This
does not mean a certifying authority could not ask for additional
information after a request for certification is made; rather, it
means that a certifying authority cannot alter the required
contents of a request for certification after it is received. Any
requests for additional information by a certifying authority
should be targeted to information relevant to the potential water
quality-related impacts from the activity.14
- EPA did not take a position on the legality of withdrawing and
resubmitting a WQC request. It is up to the project proponents,
certifying authorities, and/or possibly Federal agencies to
determine on a case-by-case basis whether and when withdrawal and
resubmission of a WQC request is appropriate, and such
determinations are ultimately subject to judicial review based on
their individual facts.15
- A point source discharge does not require the addition of
pollutants; the definition of "discharge" is distinct
from the term "discharge of pollutant" and therefore
encompasses both the discharge without the addition of pollutants
as well as the "discharges of pollutants." A certifying
authority's evaluation extends to the activity subject to the
Federal license or permit in its entirety, as opposed to only the
potential point source discharges associated with the activity.
Once there is a prerequisite potential for a point source discharge
into Waters of the United States, then the certifying authority may
evaluate and place conditions on the "activity," which
includes consideration of water quality-related impacts from both
point sources and nonpoint sources.16
- While the certifying authority's evaluation is limited to
the water quality-related impacts from the activity subject to the
Federal license or permit, including the activity's
construction and operation, a WQC for a Federal license or permit
for construction may address potential water quality impacts from
the subsequent operation even though the operation may be subject
to a different Federal license or permit.17 By allowing
States to protect their water quality from the full activity made
possible by a Federal license or permit, the CWA provides an
independent grant of authority to States to ensure that federally
licensed or permitted activities do not frustrate attainment of
their water quality protection goals.18
- Although a certifying authority is limited to considering
impacts to "navigable waters" when certifying compliance
with the enumerated provisions of the CWA, a certifying authority
is not so limited when certifying compliance with requirements of
State law that otherwise apply to waters of the State beyond
navigable waters.19 The text of Section 401 states that
the need for a certification is triggered by a potential discharge
into "the navigable waters," but it does not state that,
once the need for certification is triggered, a certifying
authority must confine its review to potential water quality
impacts to such "navigable waters" when considering
requirements of State law that apply beyond navigable
waters.20
- A certifying authority may act on a WQC request in one of four ways: grant certification; grant certification with conditions; deny certification; or expressly waive certification. If a certifying authority grants certification with conditions, those conditions are incorporated into the Federal license or permit, and Federal agencies may not question or reject a State's WQC conditions.21 When a certifying authority determines that it must add WQC conditions, that is equivalent to deciding that, without those conditions, it must deny certification. Constructive waivers may occur only if a certifying authority fails or refuses to take one of the four actions within the reasonable period of time, in all cases not to exceed one year.22
The EPA's new rule recently has been challenged by a group of States and industry groups (Plaintiffs) as an improper broadening of States' (and certain Tribes') power to veto energy projects over water quality concerns.23 In the complaint filed in December 2023, Plaintiffs argue that statutory limits to states' power are necessary to ensure that the certifying authority does not inappropriately thwart nationally important projects or the development of critical infrastructure that are essential to modernizing the nation's means of generating and supporting energy.
Plaintiffs contend that the CWA 2023 Rule, by now requiring States to review the "entire activity proposed" when processing WQC requests, will complicate and delay the Section 401 review process. 24 Plaintiffs claim that broadening the scope of Section 401 WQC reviews will burden states by increasing their workload, making certification determinations more vulnerable to legal challenge, and causing the certification process to become more unpredictable.
Footnotes
1. Exec. Order No. 13990, 88 Fed Reg. 66558 (Jan 20, 2021).
2.New York State Department of Environmental Conservation v. FERC 884 F.3d 450, 455 (2d Cir. 2018) (Second Circuit rejects New York's argument that the Federal Clean Water Act Section 401 process "begins only once [the state agency] deems an application `complete'" and instead, agreed with FERC that the Section 401 review process begins when the State receives a request for a Water Quality Certification).
3. Clean Water Act Section 401 Water Quality Certification Improvement Rule, 88 Fed. Reg. 66558, (2023)(hereinafter "CWA 2023 Rule").
4. Clean Water Act, 33 U.S.C §§ 1251 et seq. (1972)
5. Clean Water Act, 33 U.S.C §1341(d)
6. Id.
7. Article VII, Siting of Major Utility Transmission facilities, New York Public Service Law (Sections 120-130)
8. Natural Gas Act, 15 U.S.C. §§ 717-717z (1940)
9. CWA 2023 Rule at 66571.
10. Id. at 66575
11. Id.
12. Id. at 66587
13. Id. at 66576
14. Id.
15. Id. at 66590
16. Id. at 66599
17. Id.
18. Id. at 66593
19. Id. at 66604
20. Id.
21. Id. 66607
22. Id. at 66608
23State of Louisiana v. U.S. Environmental Protection Agency, CA No. 2:2023-cv-01714 (W.D. La. December 4, 2023)
24. Id. at 5
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