Water Quality Certification

In yet another development relating to Clean Water Act (CWA) Section 401 water quality certifications, a recent policy directive from the Department of the Army could impose tighter timeframes for a state to review whether projects comply with state water quality standards. The U.S. Department of the Army has issued a policy directive memorandum requiring the U.S. Army Corps of Engineers (USACE) to adhere to a “default time period” of 60 days for states to act on a request for water quality certification under CWA Section 401 in conjunction with USACE’s issuance of dredge and fill permits under CWA Section 404. The directive also requires USACE to “immediately draft guidance” to establish criteria for USACE District Engineers to identify circumstances that may warrant additional time for states to decide on an application for water quality certification. Continue Reading USACE to Impose 60 Day Period on State Water Quality Certification Review

The federal Clean Water Act (CWA) requires that states review all federal permits involving water discharges to certify that those permits do not conflict with state water quality standards (WQS). 33 U.S.C. § 1341. The statute further provides that if a State “fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application.” Id. For pipeline projects, this ‘Section 401’ authority was not historically a significant issue, as most federal permits already anticipated and ensured compliance with state WQS. In recent years, however, opponents of new or expanded pipeline projects have sought to use Section 401 as an additional point of challenge, seeking to stop or delay pipeline project permitting. In a decision issued just last week – although not in a pipeline case – the D.C. Circuit provided the most recent clarification on the issue, admonishing states that the one year timeframe is “absolute.” Hoopa Valley Tribe v. FERC, No. 14-1271 (D.C. Cir., Jan. 25, 2019). Continue Reading D.C. Circuit Clarifies that States have Maximum of One Year to Decide on Water Quality Certification Applications