The U.S. Environmental Protection Agency (EPA) opened a docket to receive feedback on the Clean Water Act’s section 401 State Water Quality Certification process, during which states can place conditions or additional requirements before a federal CWA permit can proceed. In its responses (here and here), AGC of America highlighted time delays and extraneous requirements that can beleaguer projects moving through the process.
The intent of the certification process is to ensure that federally permitted activities do not degrade a state’s water quality. AGC raised long-standing concerns that states may add public access, cultural, and wildlife considerations as conditions to the water permits, which can require the hiring of biologists and other consultants to fulfill. AGC provided similar feedback on the certification process during the first Trump Administration (here) and the Biden Administration (here).
In 2020, the Trump Administration streamlined the certification process, required strict adherence to the timeline, and limited conditions to only those related to water quality. The 2020 rule was challenged in federal court, which remanded and vacated the rule without judgement on its merits. That vacatur was appealed and ultimately stayed by the U.S. Supreme Court. Following litigation, the 2020 rule was reinstated. However, the Biden Administration reopened the rule and finalized modifications in 2023. This most recent action provided an opportunity for the public to weigh in on any concerns with the current certification process.
For more information, contact Melinda Tomaino at melinda.tomaino@agc.org.