EPA fast tracks construction projects that affect U.S. waterways

By: Lisa Neuberger

Publication: Environmental Regulatory Alert

Date Posted: 07/20/2020

EPA Final Rule on Construction Projects in U.S. Waterways

On June 1, EPA finalized a rule intended to speed up permitting for construction projects that affect U.S. waterways. The agency says the rule “increases the transparency and efficiency of the Clean Water Act Section 401 certification process in order to promote the timely review of infrastructure projects while continuing to ensure that Americans have clean water for drinking and recreation.”

The rule comes in response to President Trump’s Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth.” In the order, Trump argued that the United States needs to be able to safely and efficiently transport oil and natural gas to end users, which means that the federal government must speed up infrastructure permitting processes and reduce regulatory uncertainties. The order directed EPA to review Section 401 and related regulations and guidance to determine whether agency policy should be updated or clarified. The new final rule reflects this review by:

  • Requiring final action to be taken within one year of receiving a Section 401 certification request.
  • Clarifying the scope of Section 401, including explaining that 401 certification is triggered based on the potential for a project to result in a discharge from a point source into a water of the United States.
  • Listing EPA’s responsibilities under Section 401, including the responsibility to provide technical assistance to any party involved in a Section 401 water quality certification process.
  • Promoting early engagement and coordination among developers, certifying authorities, and federal licensing and permitting agencies.

Section 401 of Clean Water Act

Section 401 of the Clean Water Act gives states and authorized tribes authority to assess potential water quality impacts of discharges from federally permitted or licensed projects that may affect navigable waters within their borders. Section 401 is intended to protect water quality while allowing federal permitting and licensing processes to proceed in a timely manner.

EPA notes that the language in EPA’s water quality certification regulations hasn’t been updated in nearly 50 years. While working on the final rule, the agency met with state, local, and tribal partners along with other federal agencies. In addition, EPA received more than 120,000 comments on the proposed rulemaking.

Examples of projects that would require Section 401 approval and permitting include mining operations, dam removal, large bridges, large pipelines, and large transmission lines.

Key to remember: Construction projects that could discharge sediments or other pollutants into waters of the United States need to obtain permission and permits from EPA, states, tribes, and often other federal agencies. The permitting process can be long and cumbersome. EPA’s new final rule is intended to streamline and expedite that process.

About the author
Lisa Neuberger - EH&S Editor

Lisa joined J. J. Keller & Associates, Inc. in 2008. She serves as a resource for customers on environmental, health, and safety topics, and has a passion for the safe management of hazardous waste. She specializes in OSHA’s workplace injury and illness recordkeeping and reporting, flammable liquids, and sanitation standards and in EPA’s solid and hazardous waste regulations.

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