On the 14th of September 2023, the US Environmental Protection Agency (EPA) disclosed the finalization of the Clean Water Act (CWA) Section 401 Water Quality Certification Improvement Rule (hereinafter referred to as “the Rule”).
The Rule presents a marked evolution in the regulatory landscape, restoring authority to states and tribes to review pipelines, dams, and an assortment of other federally regulated infrastructure projects within their territories. This is a departure from the previous framework in 2020, set in place by the Trump administration, that essentially curtailed these rights.
The EPA, in promulgating the Rule, takes a step towards fortifying state and tribal rights in environmental management. This shift back to a framework favoring decentralization aligns with the original intention of the CWA itself. Enacted in 1972, the CWA was aimed at controlling water pollution by giving significant authority to states and tribal governments to enforce water quality standards within their jurisdictions.
The Rule raises a number of critical questions and potential challenges for all involved parties. For instance, there’s the question of timelines and how they will affect development projects. Also, the practical implementation of the Rule requires a careful assessment of new approval processes for infrastructure projects and how they align or differ from previous procedures.
This Rule represents a crucial shift in policy that corporate legal teams, in particular those dealing with federal regulated infrastructure projects, will need to review closely to develop a strategic response that aligns with the newly reinstated regulatory framework.