Fourth Circuit Questions EPA 2020 Clean Water Act 401 Certification Rule Tolling Prohibition

Splash on water

The opinion conflicts with the EPA's 2020 final rule that sought to limit state and tribal certifying authorities’ ability to delay federal projects through various tolling schemes.

August 10, 2021
Karen C. Bennett - Lewis Brisbois

Last week, in North Carolina Department of Environmental Quality v. Federal Energy Regulatory Commission, the Fourth Circuit Court of Appeals suggested that Congress did not intend for the states, or tribes, to take final action on Clean Water Act (CWA) Section 401 applications within a year of filing. The opinion conflicts with the Environmental Protection Agency's (EPA) 2020 final rule that sought to limit state and tribal certifying authorities’ ability to delay federal projects through various tolling schemes. 85 Fed. Reg. 42210 (Jul. 13, 2020).

EPA’s rule, codified in existing regulations, states that the CWA imposes a strict one-year deadline for certification decisions, otherwise certification is waived. However, the Fourth Circuit’s view suggests that this waiver is not triggered in cases where the certifying authority has acted on the application, even if it takes longer than a year to make a final certification decision. The court ultimately decided the case on other grounds, leaving a resolution on the statutory interpretation question for another day.

Ms. Bennett may be contacted at Karen.Bennett@lewisbrisbois.com



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