Section 401

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On March 23, the Second Circuit issued its opinion in N.Y. Dep’t of Enviro. Conservation v. FERC, Case No. 19-1610 (i.e., the “Empire Pipeline” case). The case concerns the Federal Energy Regulatory Commission’s (FERC or Commission) determination that the New York State Department of Environmental Conservation (NYSDEC) waived its water quality certification authority with regard to FERC’s issuance of a gas pipeline certificate when NYSDEC sought to extend its review period beyond the one-year deadline under Section 401 of the Clean Water Act (CWA or Act) by agreeing with the applicant to “post-date” the filing date of its water quality certification application by several weeks.

On December 9, 2019, the U.S. Supreme Court decided not to revisit the U.S. Court of Appeals for D.C. Circuit’s decision in Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (2019), allowing the lower court’s ruling to stand.

The key holding of the D.C. Circuit’s opinion, which concerned the ongoing Federal Energy Regulatory Commission’s (FERC) relicensing of the Klamath Hydroelectric Project, is that the States of California and Oregon waived their authorities under section 401 of the Clean Water Act (CWA), 33 U.S.C. § 1341, by failing to rule on the applicant’s submitted request for water quality certification within one year.  The D.C. Circuit held that the plain language of CWA section 401 establishes a maximum period of one year for states to act on a request for water quality certification.  Accordingly, the court further held that FERC erred in concluding that the “withdrawal-and-resubmittal” of the water quality certification application on an annual basis resets the one-year statutory time period for state action under section 401.

On Friday, August 9, the Environmental Protection Agency (“EPA”) unveiled a pre-publication version of a notice of proposed rulemaking (“NOPR”) to clarify state water quality certification (“certification”) procedures under Section 401 of the Clean Water Act (“CWA”) to allow for increased regulatory certainty in federal licensing and permitting activities, and particularly authorization of infrastructure projects.  EPA Administrator Andrew Wheeler announced on Friday that the “proposal is intended to help ensure that states adhere to the statutory language and intent of Clean Water Act.”  The NOPR proposes substantive changes to the scope of state water quality certification authority under the CWA and the procedures governing these certifications, focusing on the plain language of the statute and at times departing from prior case law precedent.

Significant components of the NOPR are summarized below.  EPA has established a 60-day period for public comment on the proposed rule, from the date of publication in the Federal Register.  In light of the substantial modifications to the scope, substance and procedures related to state water quality certification, the NOPR presents a unique opportunity for utilities, manufacturers, developers, and other regulated business entities to help shape a significant regulatory program.