Law360 author Juan Carlos Rodriguez wrote an article addressing the U.S. Environmental Protection Agency (EPA)’s proposed Clean Water Act Section 401 rule, extensively quoting Principal Eric Christensen (Seattle). This rule would reverse the version adopted during the Trump Administration that narrowed states' and tribes' authority and would add some important clarifications not present in either the original rule or in the Trump-era rule. If the rule is adopted as proposed, state and tribal regulators will have expanded authority to reject or impose conditions on federally-permitted projects that discharge pollutants into the state’s or tribe’s waters.

In addition, under the proposed rule, project applicants would not be able to apply for state certification until they have a draft federal permit, which would be part of the state or tribal review process. Accordingly, if the new proposal becomes law, state certification would generally be at the end of the federal process for projects, which could add up to another year to the certification process.

On the other hand, the proposal includes important clarifications that may resolve some of the complicated issues that have arisen in the courts under Section 401, such as making 60 days the default period for the state to act. "My first impression is that EPA actually did a pretty thoughtful job in trying to resolve a number of issues that have been really difficult in the courts," said Eric. "From the perspective of someone who tries to advise companies about how to deal with permitting, you can't read the court decisions and come up with any coherent rule of what it means to have a reasonable time [for the state to act] or how the one-year maximum period is calculated," he said. "And so I think this rule — and I may be overly optimistic here — but I think this rule does a pretty credible job of trying to put some parameters on that."

Similarly, the proposed rule spells out the extent to which the relevant federal authority can determine that a state has overstepped its authority or failed to act within the required time. "It's a devilishly complicated question about who gets to say when the state agency has overstepped its authority," Eric said. "Is that the federal agency? The federal courts? The state courts? Or is it somebody else? Those kinds of questions can really give you a headache if you're an attorney trying to advise a client [on] how to deal with all this. So I really appreciate EPA's effort to put some solid parameters around what the federal agency can do."

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