However, on July 2, the Fourth Circuit offered a different interpretation of Section 401 in its decision in N.C. This interpretation was also codified in EPA’s 2020 Clean Water Act Section 401 Certification Rule. This bright-line test was reinforced by the Second Circuit’s more recent decision in New York State Department of Environmental Conservation v. States cannot engage in actions to extend this deadline by requiring an applicant to withdraw and refile their application or by finding an application incomplete. 2019) established a bright-line standard that a 401 certification must be issued or denied within one year of receipt of application, or the certification opportunity is waived.
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There has been a longstanding debate about how to apply the one-year time limit on Clean Water Act Section 401 certification decisions. …Ĭontinue Reading EPA and Army Corp’s Joint Section 401 Guidance Walks Back Regulatory Certainty EPA Finalizes Recommended Nutrient Criteria for Lakes and Reservoirs In a press release the following day, EPA and the Corps frame the guidance as addressing “implementation challenges” raised by state and tribal certifying authorities. The guidance also cryptically suggests that the agencies may revisit the 16 NWPs that were previously certified and finalized by the Corps in January 2021. The agencies explain that the guidance applies specifically to 41 Clean Water Act Section 404 Nationwide Permits (NWPs) proposed in September 2020 that have already received certification (or for which certification was denied or waived) but have not yet been finalized, and a more detailed enclosure is intended to be applied generally to the Corps’ permit programs. On August 19, EPA and the Army Corps of Engineers (Corps) issued a joint guidance document concerning implementation of EPA’s 2020 Water Quality Certification Rule. This blog post was republished by Law360 on September 14, 2021. The NWPR sought to provide certainty as to which waterbodies meet the features of WOTUS by creating clear categories of jurisdictional waterbodies.Ĭontinue Reading District Court Vacates Navigable Waters Protection Rule EPA Moves to Elevate Tribal Rights in Water Quality: Changes Could Modify CWA Implementation In 2015, the Obama administration promulgated a WOTUS rule that had been the subject of significant litigation, which the Trump administration had repealed (the “Repeal Rule”). Before the promulgation of the NWPR, there had been several rulemakings and much litigation on this complicated issue, causing nationwide confusion on the application of a uniform standard. Army Corps of Engineers (Corps) (together, “Agencies”) that clarified the scope of federal jurisdictional “Waters of the United States” (WOTUS) under the Clean Water Act (CWA). District Court for the District of Arizona vacated and remanded the 2020 Navigable Waters Protection Rule (NWPR) issued by the Environmental Protection Agency (EPA) and U.S.