Against the advice of NEIWPCC and others, the EPA is proceeding with a plan that would curtail the time states have to certify or deny permits, and the grounds on which states may make those decisions.
The proposal, EPA-HQ-OW-2019-0405, has advanced to the formal rule-making stage. It would, according to NEIWPCC Executive Director Susan Sullivan, “result in increased certification denials, delays, and confusion” and violate the Clean Water Act by “diminishing state authority to protect water resources.”
Sullivan made her remarks on behalf of the seven NEIWPCC states in a nine-page comment letter dated October 21.
In an earlier comment, Sullivan had advised the EPA to work closely with states on the issue. “States have a unique understanding of waters within their jurisdiction and are best positioned to provide input,” she wrote on May 24.
The proposed rule would govern state review of projects under section 401 of the Clean Water Act. That part of the law bars the EPA and other federal agencies from permitting activities that may result in a discharge unless a state or tribe certifies or waives compliance with existing water-quality requirements.
The proposal could subject states to more frequent lawsuits when the curtailed process requires states to make decisions without sufficient information on proposed projects.
In the proposed rule, the limited time states have to review applications could begin before states have all of the information they require.
Also, the rule would block states from considering water-quality impacts that are not within the scope of the Clean Water Act as redefined by the EPA and allow the federal licensing agency to override state certification conditions or denials.