The Upcoming Battle Over Water Quality Certifications

Section 401 of the Clean Water Act (CWA) states that a federal agency may not issue a permit to conduct any activity that may result in any discharge into waters of the U.S., unless the state where the discharge would originate either issues a water quality certification or waives the certification requirement. Under Section 401, an applicant for a federal permit must submit a request for a certification to the state, which has a reasonable period of time (not more than a year) to grant the certification, grant the certification with conditions, deny the certification or waive the opportunity.

Congress enacted Section 401 as an exercise in cooperative federalism to allow states to help protect the water quality of federally regulated waters within their borders in collaboration with federal agencies. In recent years, though, several states that oppose the construction of natural gas pipelines have denied Section 401 certifications or used Section 401 to delay the issuance of the federal permit. For example, upon submittal of the certification request, the state would request more and more information to avoid the beginning of the review timeframe.

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