The National Sea Grant Law Center


  • Which Rule Rules?
    In re Clean Water Act Rulemaking

  • January 20th, 2022 — by Caroline Heavey — Category: Clean Water Act

  • In 2020, the Trump administration revised the Clean Water Act (CWA) Section 401 Certification Rule (Trump 2020 Rule) for the first time since 1971. Subsequently, the Biden administration took office and the Environmental Protection Agency (EPA) began revising the Trump 2020 Rule. A district court had to determine whether to set aside the 2020 Rule while the Environmental Protection Agency (EPA) made revisions. The CWA Section 401 Certification Rule requires that a water quality certification be issued (or waived) by a State or Tribe where a federal license or permit to conduct an activity could result in pollutants discharged into United States waters. After President Biden took office, the EPA notified the court of its intent to leave the Trump 2020 Rule in effect while the EPA revised the rule.

    The CWA is the major statute responsible for regulating pollutants in waters of the United States. Under Section 401, federal agencies may not issue permits for activities that could result in the discharge of pollutants into waters unless the State or Tribe issues or waives a Section 401 certification. Therefore, the CWA Section 401certification is a powerful tool states and Tribes can use to protect water quality within their jurisdiction. The Trump 2020 Rule made several substantive changes to the certification process, including a one-year timeline for certification, when a state or Tribe may impose conditions on a discharge activity, and when a state or Tribe may impose conditions related to other environmental effects. The Trump administration, and supporters of the Trump 2020 Rule, argued rule changes were needed so that major federal energy infrastructure development would not be hindered or “abused” by the Section 401 certification process. Alternatively, opposers of the Trump 2020 Rule argued the rule narrowed states’ rights to regulate water quality.

    Litigation about the Trump 2020 Rule has been ongoing in the U.S. District Court for the Northern District of California. After President Biden took office, the EPA requested the court to remand the Trump 2020 Rule to the agency without vacatur. This means the court had to analyze whether the Trump 2020 Rule should be kept in effect until the EPA administers a new certification rule. The EPA argued that the court should keep the Trump 2020 Rule in place and remand the issue to the agency for further proceedings because there would only be minimal or speculative harm from the rule, and plaintiffs can still challenge individual 401 certifications. The court held that the gravity of the deficiencies of the certification rule supported vacatur because: 1) the changes to the scope of the certification rule are arbitrary and capricious; 2) the rule is inconsistent with the purpose of the CWA; and 3) the EPA showed that it will not adopt the same rule on remand. Further, the court reasoned that significant, environmental harms would likely occur if the rule remained without vacatur. Therefore, the court vacated and remanded the rule to the EPA. As a result of the court’s action, the previous Certification Rule issued in 1971 takes effect until the EPA finalizes a new certification rule.

    After the court remanded the rule to the EPA, eight states and three industry groups intervened as defendants (intervenors) on the side of the EPA and filed a motion asking the court to overrule its previous order. The intervenors opposed vacatur and supported the 2020 Rule because it limited states’ and Tribes’ ability to impose more conditions on Section 401 certifications. The court determined that equity factors, such as reliance on the rule, the purpose of the rule, potential harm from the rule, and changes to the scope of the rule, supported denying the intervenors request and keeping the 1971 Rule in effect. The court reasoned there was no reliance on the 2020 Rule because it had only been in effect for thirteen months. Additionally, the court determined that to preserve some certainty in the administrative process and purpose of the certification rule, equity favored leaving the 1971 Rule in effect. Therefore, the district court denied the intervenor’s motion, and the 1971 Rule remains in effect.

    Throughout the course of this litigation, the court has consistently held that equity favors returning to the 1971 Rule until the EPA can finalize a new certification rule to replace the revisions made to the rule by the Trump administration. The CWA was implemented to regulate the Nation’s water and avoid irreparable harm to the environment by regulating water pollution, and the certification rule is one tool used to help achieve this goal by setting and enforcing water quality standards. At this time, the EPA has not finalized a new Section 401 certification rule. However, the current and future Section 401 certification rule will affect how states, Tribes, and the federal government collaborate to manage projects and regulate the nation’s waters.

  • Caroline Heavey
    NSGLC Blog Guest Author

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