EPA Asks Court to Leave Controversial Clean Water Act Section 401 Rule in Place Until New Rule Expected in Spring 2023

Last week’s request by the Biden Administration to keep in place for the next two years the previous administration’s controversial Clean Water Act (CWA) Section 401 rule could have important implications for a wide variety of energy, infrastructure, and other projects that are in the midst of the federal permitting process.

As we reported in our previous blog post, on May 27, 2021, the Biden Administration announced that it will be revising the Trump Administration’s CWA Section 401 Certification Rule. In brief, CWA Section 401 grants authority to states and certain tribes to review (and then certify, condition, or contest) any discharge into a water of the United States that may result from a proposed activity that requires a federal license or permit. Section 401 thus provides states and tribes with significant influence over the federal permitting process, and it has been used to block or delay controversial energy and infrastructure projects for a variety of reasons, including impacts on climate.

As explained in our June 2020 Advisory, the Trump Administration hailed its CWA Section 401 Certification Rule as a key component of its effort to expedite infrastructure permitting. Among other controversial changes, the rule: (1) restricted the authorities of states and tribes by limiting the substantive scope, time allotted, and conditions that may be imposed when conducting their reviews, and (2) expanded the ability of federal agencies to overrule their determinations. In announcing that it will be revising the Trump rule, the Biden Administration noted its intention to “strengthen the authority of states and Tribes to protect their vital water resources.”

Litigation challenging the Trump rule has been ongoing in the United States District Court for the Northern District of California. On July 1, 2021, EPA moved the court to remand the Trump rule to the agency for further administrative proceedings, but requested the remand without vacatur. “Remand without vacatur” is an administrative law device that would keep the Trump rule in effect until the Biden Administration issues a new final rule. EPA’s motion notes that the agency does not intend to return to the regulations in place before the Trump rule, and the motion sets forth the agency’s planned schedule for the new rulemaking process, with initial stakeholder outreach this year, the proposed rule published next spring 2022, and the final rule published in spring 2023.

Although EPA’s motion acknowledges “substantial concerns” with the Trump rule, the agency nonetheless argues that the Trump rule should be kept in effect during the new rulemaking process because any alleged harms that might occur during this time are either “abstract and speculative” or otherwise can be “mitigate[d] or eliminate[d].” Specifically, EPA notes that plaintiffs can still “challenge individual 401 certifications or federal actions taken pursuant to the Certification Rule as they arise,” and EPA states that it is “committed to providing technical assistance to all stakeholders, including States and Tribes, regarding interpretation and implementation of the Certification Rule and working with its federal agency partners to address implementation concerns.”

Plaintiffs challenging the Trump rule will be filing an opposition later this month to EPA’s motion for remand without vacatur, and the court will hold a hearing on the matter on August 26, 2021, with a decision expected soon thereafter.

We are continuing to monitor the new rulemaking process and the pending litigation. Please contact us with any questions.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.