AGA Comments Filed Supporting EPA CWA 401 Proposed Rule
AGA Comments Filed Supporting EPA Proposed Rule to Clarify and Modernize the Clean Water Act Section 401 Certification Process
On October 21, 2019, AGA filed the attached comments strongly supporting EPA’s proposed rule, “Updating Regulations on Water Quality Certification,” published in the Federal Register on August 22, 2019. In this proposal, EPA seeks to update and clarify the substantive and procedural requirements for water quality certification under Clean Water Act (CWA) section 401. CWA section 401 provides that a federal agency may not issue a license or permit to conduct any activity that may result in a discharge into waters of the United States, unless the state or authorized tribe where the discharge would originate either issues a section 401 water quality certification finding compliance with existing water quality requirements, or waives the certification requirement. In April 2019, the President issued Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth,” which directed EPA to review the CWA section 401 process, including existing regulations and interim guidance, issue new guidance to states, tribes, and federal agencies, and propose new section 401 regulations within 120 days of the Order. If implemented, EPA’s proposed rule would provide a common framework for implementing section 401 that will offer project proponents, certifying authorities, and federal licensing and permitting agencies additional clarity and regulatory certainty. Key components of the proposed rule include confirming the plain language of the statute by requiring certifying authorities to act on a request for certification in a “reasonable amount of time, which shall not exceed one year,” clarifying the scope of section 401 reviews, and better defining what information a project proponent is required to submit in order to initiate a certification request. During a pre-publication outreach period, AGA and INGAA submitted joint comments urging EPA to “take appropriate action to ensure that state water quality reviews under Clean Water Act section 401 are effective, efficient and consistent with the scope and timeline prescribed by the statute.” INGAA filed extensive comments in support of EPA’s proposal, and AGA supported INGAA’s comments.