Wetland Wednesday
June 24, 2020
As many of our readers are no doubt aware the new Waters of the US rules have gone into effect this past Monday, June 22, 2020. These rules known as the Navigable Waters Protection Rule are significant in that the significantly change what is considered a federally regulated waterbody. The concept of Significant Nexus is no longer used and only waters that are directly connected to commerce waters are federally regulated.
In addition to this new rule, the US EPA has announced that the final Clean Water Act 401 Water Quality Certification rules are to be published in the Federal Register in matter of weeks. The EPA announcement was made on June 1, 2020 and generally takes a couple of months to get published. It could be sooner, but the last major water rule was published over 90 days form the date of this type of announcement. Once published it becomes the law of the land 60-days from the publication date.
The changes to the rules are mostly directed toward how and when states should issue 401 Water Quality certifications. At issue are the significant time delays associated with individual wetlands permit reviews. Some of these permit delays have stretched into decades and they have been used to derail a number of transportation and energy projects.
The Trump Administration has an overall goal of eliminating impediments to infrastructure projects for better or worse. This new regulation is designed to speed permit reviews and eliminate indefinite delays by state reviews. There are concerns on both sides of this issue as the states will have a challenge keeping up with the review process. Under the Clean Water Act the states are required to assess potential water quality impacts resulting from discharges related to federally permitted or licensed projects that may affect navigable waters within their borders.
Under this new regulation the states must make a 401 Water Quality Certification determination within one-year of the application. Currently there is no set timeline for the states to act. If the states delay the review and fail to meet this one-year timeline, then the certification requirement is waived. Essentially, if the state does not meet the timeline the permit or action is approved.
In addition, the state cannot “stop the clock” by asking for additional information or declaring some sort of administrative deficiency. Historically, this has led to significant project delays lasting may decades in some cases. The final rule does outline what needs to be submitted in the permit request. If something is lacking in the submission the clock does not start until all the required information has been sent. So, there are some circumstances that may delay the project, but the intention of the regulation is to clear the backlog.
The state’s ability to handle the workload that will result from this regulation is going to be quite a challenge. Many states are still reeling from budget cutbacks stemming from COVID-19. Loss of tax revenue and incredible spending on relief efforts are going to make it a challenge for the states to keep up with the review process. To be frank, they do not have the staff to handle to workload. Consequently, we may see simple 401 Water Quality certification denials rather than prolonged reviews. No is still an answer.
To read more about this you can visit the EPA 401 website here.