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On Friday, December 17, the Environmental Protection Agency (EPA) quietly issued a Q&A document concerning the vacatur of the 2020 Section 401 Certification Rule (2020 Rule). The Q&A confirms EPA’s view that the 1971 certification regulation is now in effect nationwide, but does not present a policy or legal rationale for this decision. Although much of the Q&A refers the reader to the 1971 certification regulation, it also provides some pretty important information.
Continue Reading EPA Issues 401 Q&A

Landowners and permit applicants received an email notification this week that the Army Corps of Engineers (Army Corps) would not be processing their requests for coverage under a variety of Clean Water Act (CWA) Section 404 Nationwide Permits (NWPs). NWPs are general permits that authorize activities under Clean Water Act Section 404 that “will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effects on the environment.” CWA Section 404 (e)(1).

Continue Reading Army Corps Halts Coverage Under Nationwide Permits

The Environmental Protection Agency (EPA) has initiated two rulemaking actions, both expected to be proposed in early 2022, that could change the way the Clean Water Act (CWA) is administered across the country. Together, these actions would elevate tribal rights in water quality regulatory decision-making and could provide EPA with significantly greater authority to regulate discharges on and upstream of tribal lands.

Continue Reading EPA Moves to Elevate Tribal Rights in Water Quality: Changes Could Modify CWA Implementation

This blog post was republished by Law360 on September 14, 2021.

On August 19, EPA and the Army Corps of Engineers (Corps) issued a joint guidance document concerning implementation of EPA’s 2020 Water Quality Certification Rule. The agencies explain that the guidance applies specifically to 41 Clean Water Act Section 404 Nationwide Permits (NWPs) proposed in September 2020 that have already received certification (or for which certification was denied or waived) but have not yet been finalized, and a more detailed enclosure is intended to be applied generally to the Corps’ permit programs. The guidance also cryptically suggests that the agencies may revisit the 16 NWPs that were previously certified and finalized by the Corps in January 2021. In a press release the following day, EPA and the Corps frame the guidance as addressing “implementation challenges” raised by state and tribal certifying authorities.
Continue Reading EPA and Army Corp’s Joint Section 401 Guidance Walks Back Regulatory Certainty

On August 13, EPA finalized Clean Water Act (Act) Section 304(a) recommended criteria for phosphorus and nitrogen in lakes and reservoirs. The new recommendations incorporate scientific models that states and tribes with treatment as state status can use to establish numeric water quality criteria for phosphorus and nitrogen, and they mark an important milestone in EPA’s long-running war on excess nutrients in the nation’s surface waters. In the new recommended lakes criteria, EPA is embracing a stressor-response approach to managing nutrients, instead of the least-disturbed reference method. This is a significant move for the agency and has the potential to set a positive precedent going forward for EPA and state and tribal regulators to re-evaluate the utility of the reference method approach in other contexts.

Continue Reading EPA Finalizes Recommended Nutrient Criteria for Lakes and Reservoirs

EPA announced yesterday its intent to revise some portions of the 2020 Steam Electric Effluent Limitation Guideline Reconsideration Rule (2020 ELG Rule). EPA’s press release and the pre-publication version of its Federal Register notice sent a clear message that the agency is aiming at membrane technology to control flue gas desulfurization (FGD) wastewater discharges from coal-fired power plants. The notice also states that the agency will reconsider the technology selected for bottom ash transport, and it may revise or eliminate the subcategories created by the 2020 ELG Rule for high-flow facilities, low-utilization facilities, and for facilities that commit to retire or repower coal-fired units by 2028.

Continue Reading EPA Signals More Stringent Regulation for Steam Electric Power Generators

There has been a longstanding debate about how to apply the one-year time limit on Clean Water Act Section 401 certification decisions. The D.C. Circuit court in Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019) established a bright-line standard that a 401 certification must be issued or denied within one year of receipt of application, or the certification opportunity is waived. States cannot engage in actions to extend this deadline by requiring an applicant to withdraw and refile their application or by finding an application incomplete. This bright-line test was reinforced by the Second Circuit’s more recent decision in New York State Department of Environmental Conservation v. FERC, 991 F.3d 439 (2d Cir. 2021). This interpretation was also codified in EPA’s 2020 Clean Water Act Section 401 Certification Rule. See 85 Fed. Reg. 42210 (July 13, 2020). However, on July 2, the Fourth Circuit offered a different interpretation of Section 401 in its decision in N.C. Department of Environmental Quality v. FERC, No. 20-1655 (McMahan Hydro).

Continue Reading The Fourth Circuit Weighs In on the Interpretation of CWA Section 401