The Senate Permitting Reform Bill proposes sweeping changes to the Clean Water Act, with the most significant shifts affecting the Section 401 certification process. The legislation seeks to narrow the scope of these certifications to “water issues” and alters the burden of proof for state authorities.
Restrictions on State Certifications
Under the proposed Section 1202, a state can only deny a certification or impose conditions if it relates to “water quality requirements.” The state must provide “clear and convincing” evidence to deny a certification, showing that no conditions could protect water quality. When conditions are imposed, the state must demonstrate they are necessary to ensure compliance, the least burdensome option, and consistent with federal permit requirements.
The bill also requires that states provide public notice for any certification decisions, and offer a prefiling meeting with the project sponsor. States must prespecify in their regulations what additional information they require from applicants seeking certification. States must complete certification decisions within one year. There is a process for project sponsors to seek injunctive relief from federal courts if a state unreasonably delays its certification process or imposes information requirements not in the state’s own regulations.
Special rules apply to electric transmission lines and gas pipelines. For these projects, certification examines only the impacts of specific discharges, not the broader impact of the project on water quality. The bill defines “water quality requirements” to include federal and state laws implementing Sections 301, 302, 303, 306, and 307.
Washington Dep’t of Ecology. That ruling allowed a state to impose minimum water flow conditions to protect salmon runs. The bill’s text defines water quality requirements as laws “applicable to discharges into waters of the United States,” which could potentially include those flow requirements. However, broader climate-related impacts, such as greenhouse gas emissions from a pipeline, would likely be excluded as they are not directly applicable to discharges into waters.
Extending Permit Terms
The bill also extends the duration of NPDES permits from five years to ten years. Currently, state agencies and the EPA frequently miss deadlines for renewing permits, which creates uncertainty for regulated entities. Section 1204 applies the same term extension to Section 404 general permits.
Section 1204 of the bill narrows the time in which EPA can prohibit discharge of dredge and fill material in certain areas under a permit to the period when the application is under consideration. This provision aims to prevent changes to permit terms after approval. Additionally, the bill provides greater duration, certainty, and narrower permit discretion for issuing general permits for Section 404 regulated activities.
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Changes to Water Quality Criteria and Permit Rules
The public can provide input during this process. The EPA has historically struggled to update these criteria on time. The provision also moves judicial review of water quality criteria and definitions of the waters of the United States to the courts of appeal.
These permits cover oil and gas pipelines, linear transportation projects, stormwater systems, transmission lines, and water pipelines. Agencies can issue renewals without consulting the Endangered Species Act or the National Historic Preservation Act.
Section 1203 extends NPDES permit terms to ten years. Currently, permits last for five years.
Section 404 Permits
In issuing general permits, the bill limits the Corps of Engineers to consider only the effects of the permit on water quality. The agency may not consider other environmental effects. This limitation could facilitate the expansion of general permits issuance for activities involving less than two acres of discharge of dredge or fill material. The Corps is required to consider the effects of such discharges as producing minimal adverse environmental effects.
The bill mandates the continuance of certain Nationwide General Permits, including those for oil and gas pipelines, linear transportation projects, and transmission lines, where disturbance from a project is in total less than 2 acres. Renewal of these permits is exempt from ESA consultation and National Historic Preservation Act review. The agency can conduct a programmatic environmental assessment for the renewal, as long as the renewal only maintains the basic preexisting terms of the permit.
A judicial review provision specific to Section 404 permits is also created by the bill. This provision imposes a 150-day statute of limitations and requires exhaustion of administrative remedies by plaintiffs. Vacatur of an agency issuance of a Section 404 permit is only allowed if there is “imminent and substantial danger to human health or the environment” with no other “equitable remedy available.”