2020 Cwa Section 401 Certification Rule

In defining “water quality requirements” in this way, the EPA interpreted state and tribal authority under the CWA in the final rule to cover only water quality issues. The EPO explains: 33 U.S.C. 1341(a)(1) (emphasis added). The clear wording of the law requires that the reasonable period of time to respond to the certification does not exceed one year after receipt of the application for certification. However, the Statute does not define these terms. As we have seen in the preamble to the proposed rule, these terms, since they are not defined and their exact meaning is ambiguous, are open to different interpretations. This lack of clarity has led to inefficiencies in the certification process. individual certification decisions that have exceeded the legally reasonable time limit; regulatory uncertainty; and litigation. See section II.F of this communication. As the agency responsible for administering the CWA, the EPA has the authority to interpret terms not defined by the rule development, including those associated with CWA Section 401 certifications. See Chevron, Start Printed page 42244U.

S.A., Inc. v Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). In view of the large number of certification applications submitted each year [54] and the legal requirement that such applications be processed within a reasonable period of time not exceeding one year, the EPO is in the process of finalising the definitions of `application for certification` and `receipt` in order to provide project advocates, certification authorities and federal bodies with a clear regulatory text stating that: when the legally reasonable period of time begins. For more information on epa involvement in states and tribes, see Section II.C of this advisory, and additional information on the EPA`s updated guidance document can be found in Section II.D of this advisory. The EPA recognizes that many states and tribes have established their own requirements for filing Section 401 certification requirements, which may differ or be more comprehensive from the “certification requirements” set forth in this Final Rule. However, those additional requirements should not be used to extend the requirements for the certification requirements set out in this Final Rule, which aim to set clear expectations for certification authorities and project advocates and which provide a transparent and consistent framework for the start of the appropriate period. The EPA notes that Start Printed Page 42249 certification authorities may update their existing certification requirements under Section 401 to comply with EPA regulations. In addition, the EPA notes that certification authorities may want to work with neighboring jurisdictions to develop regulations that are consistent across states. This can be especially useful for intergovernmental projects such as pipelines and transmission lines that require water quality certifications from more than one state. Under section 401 and the final rule, the presence or potential of a release is a key element in determining when water quality certification is required.

According to the text of the law, article 401, according to the final rule, is triggered by the potential for reparation and not by the presence of an actual reparation. The final rule defines the term “discharge” in accordance with the proposal, but replaces the term “navigable waters” in the proposed definition with “U.S. waters” in the final definition. This amendment is not intended to change the meaning of the definition; On the contrary, it brings clarity and consistency to other CWA programs. 15. The EPA`s 1971 certification rules were at 40 CFR Part 121. The EPA has also issued regulations on how 401 certification applies to the CWA Section 402 NPDES program, which is located at 40 CFR 124.53, 124.54, 124.55. See 48 FR 14264 (1 April 1983). This final rule does not address NPDES regulations, and the Agency will make the necessary compliant regulatory amendments in future regulation.

8. Neighbouring Jurisdictions. The rule addresses the so-called “adjacent adjudicative process” in Section 401(a)(2) of the CWA, including the interpretation of the time frame within which a federal agency must notify the EPA for the purposes of Section 401(a)(2), and the provision of process requirements for the organization`s analysis and the review and response of neighboring jurisdictions. The EPA is interested in stakeholder comments on the related court proceedings, including, but not limited to, whether the Agency should consider considerations in the regulatory text or preamble that inform its analysis under Section 401(a)(2) of the CWA and explain whether the Agency`s decision should be made under Section 401(a)(2) of the CWA; is entirely discretionary and indicates whether the Agency should provide additional guidance for the Section 401(a)(2) process following the EPA`s decision. a determination “can influence”. The CWA expressly states that all certification terms “become a condition of any federal license or approval,” subject to 401.33 U.S.C. 1341(d). The EPA`s 1971 certification regulations did not address the federal agency`s responsibility to enforce certification requirements after they were included in approval.

Under the final rule and in accordance with the law, the federal agency is responsible for enforcing the certification conditions included in a federal licence or permit. In some circumstances, the EPA`s 1971 certification regulations required the agency to report a violation and give a project advocate six months to return to compliance before proceeding with the law. See 40 CFR 121.25. The EPO does not support this provision of Article 401 of the CWA, and such a provision is not included in the Final Rule. Many commentators supported the EPA`s proposal to require project proponents to request meetings before filing. Several commenters supported the proposed pre-filing procedure, where the EPA is the certification authority, while others supported the extension to all certification authorities. Several commenters explained that while such meetings are useful for various purposes (p.B in determining what information is needed by a project advocate), they should not be mandatory. Other commentators explained that such meetings should only be used for complex and non-routine projects. Some commentators argued that the pre-filing procedure could penalise States that choose not to attend pre-filing meetings, although this may not be feasible or necessary in all cases, arguing that the EPO should not seek to replace a State`s expert report where a pre-filing meeting is required. Several commentators noted that some States had established their own pre-submission requirements and should be encouraged to develop their own criteria, including the decision whether or not to hold such meetings prior to submission […].