Joint Trades Comments on Clean Water Act Section 401 Certification Rule

This letter provides comments from the American Fuel & Petrochemical Manufacturers (“AFPM”), the American Petroleum Institute (“API”), the American Exploration and Production Council (“AXPC”), and the Independent Petroleum Association of America (“IPAA”) (collectively, “the Associations”) in response to the U.S. Environmental Protection Agency’s request for comment on reconsidering and revising the Agency’s 2020 Clean Water Act Section 401 Certification Rule1 (“401 Certification Rule”). As explained in more detail below, the 401 Certification Rule provided long-overdue clarification on the role of states and other certifying authorities under Section 401 of the Clean Water Act (“CWA” or “the Act”).

The clarifications furnished in the 401 Certification Rule were also necessary to address some states’ misuse of Section 401 certification procedures in pursuit of policy goals wholly distinct from considerations of potential water quality impacts. Indeed, the 401 Certification Rule was also necessary to incorporate a growing body of case law interpreting Section 401 of the Act consistent with Congress’s intent to preserve for states a highly circumscribed role in evaluating a proposed project’s potential impacts on certain enumerated CWA provisions.

The Associations therefore recommend EPA refrain from altogether setting aside the 401 Certification Rule. If EPA intends to promulgate revisions to portions of the 401 Certification Rule, we urge the Agency to do so in a way that adheres to congressional intent, conforms to relevant current and pending court decisions, and restrains misuse of Section 401 certification procedures. Indeed, as EPA considers revisions to the 401 Certification Rule, we are optimistic that the Agency will recognize that Congress did not intend CWA Section 401 to allow a single state to wield disproportionate power over projects of national importance, and to further recognize that the imposition of reasonable limits on the disproportionate use of Section 401 certification authority is consistent with the principles of cooperative federalism.