On August 6, APPA filed comments in response to the U.S. Environmental Protection Agency’s (EPA) request for input on any regulatory uncertainty or implementation challenges associated with the Clean Water Act (CWA) section 401 water quality certification process.
APPA made a number of high-level recommendations in the comments.
It said that EPA should reconsider the scope of certification in the 2023 Water Quality Certification (WQC) rule.
APPA believes the scope of certification must be limited to water quality impacts directly caused by the discharge, excluding other non-discharge elements of the activity and indirect impacts or consequences from upstream developments or other facilities.
EPA should also reinstate certain provisions from the 2020 WQC rule, which restricted section 401's certification scope and conditions, it said.
APPA also said that EPA must restrict the rule's jurisdictional reach to impacts affecting only those waters subject to the CWA.
APPA also said that EPA:
• Should revise the 2023 WQC rule to make the “may affect” neighboring determination discretionary, rather than mandatory.
• Should revise the 2023 WQC rule to include clean regulatory statements that the withdrawal and resubmittal tactic is unlawful, that the one-year timeline certification deadline starts when the initial application is sent, and that resubmittals do not restart or modify the one-year timeline.
APPA supports the inclusion of project proponents in the modification process and requests that project proponents be allowed to submit comments during the modification process, at a minimum.
