Aquatic Science Societies Urge EPA to Restore State and Tribal Authority in Clean Water Act Section 401 Certification Rule

American Fisheries Society · International Association of Great Lakes Researchers · North American Lake Management Society · Phycological Society of America · Society for Freshwater Science · Society of Wetland Scientists

August 2, 2021

The Honorable Michael S. Regan
Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460
Via regulations.gov

Re: Submission of Comments regarding “Notice of Intention To Reconsider and Revise the Clean Water Act Section 401 Certification Rule” (86 FR 29541; Docket Number EPA-HQ-OW-2021-0302)

Dear Administrator Regan:

On behalf of the undersigned scientific societies, we respectfully submit the following comments in response to the “Notice of Intention To Reconsider and Revise the Clean Water Act Section 401 Certification Rule,” published in the Federal Register on June 2, 2021. We appreciate this opportunity to provide comments to the Environmental Protection Agency (EPA) on this matter.

Our scientific societies represent more than 13,000 individuals with diverse areas of expertise in the aquatic, ecological, hydrologic, biogeochemical, biological and ecological restoration sciences. Our members have deep subject matter expertise and a commitment to independent objectivity and peer-review of science and work in the private sector, academia, and various tribal, state, and federal agencies. We promote the development and use of the best available science to sustainably manage and restore our freshwater, estuarine, coastal, and ocean resources for the benefit of the U.S. economy, environment, and public health and safety.

Cooperative federalism is at the core of the Clean Water Act (CWA). The Water Quality Certification (WQC) process served as a successful model of cooperative federalism—until it was constrained by the most recent rule. The CWA requires that, when considering whether to approve certain actions, federal agencies must respect state and tribal authority and control over water quality within their respective boundaries. Revising the CWA Section 401 Certification Rule is of immense importance to the states and tribes that rely on Section 401 as a means of protecting the quality of their surface waters.

The current CWA Section 401 Certification Rule—adopted without any rigorous analysis—disrupts the partnership between the states and tribes and the federal government in administering the CWA. The CWA Section 401 Certification Rule undermines the ability to uphold the CWA’s mandate to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. Accordingly, we respectfully request that the CWA Section 401 Certification Rule be revised to provide full state and tribal authority to promote water quality under the CWA. Indeed, as Justice
Stevens, concurring in the 7 – 2 majority opinion in PUD No. 1 of Jefferson County v. Washington Department of Ecology, 511 U.S. 700 (1994), observed, “Not a single sentence, phrase, or word in the Clean Water Act purports to place any constraint on a State’s power to regulate the quality of its own waters more stringently than federal law might require. In fact, the Act explicitly recognizes States’ ability to impose stricter standards.”

We support revisions to restore the state and tribal roles and authorities to complete adequate review of federal permits. Revisions should be guided by three common-sense principles: (1) to make decisions that promote the CWA’s objective, a certifying authority must have the relevant data related to the proposed activity; (2) to make decisions that promote the CWA’s objective, a certifying authority must have adequate time to review the relevant data; and (3) the federal role in the WQC process should be to support state and tribal efforts to promote the CWA’s objective.

The certification request must contain sufficient information for the certifying authority to make an informed decision about how best to protect water quality, including physical, chemical and biological contributions to water quality.

The current CWA Section 401 Certification Rule’s requirements for a certification request do not provide the certifying authority with sufficient notice and information to allow it to properly evaluate potential water quality impacts. Furthermore, the current rule is too restrictive about what may be considered—limited to the direct impacts of a point source discharge, rather than the impacts of the activity as a whole, as well as non-point discharges, which at a national spatial extent are more biologically limiting (Herlihy et al. 2020).

To provide the certifying authority with sufficient notice and information to begin evaluation of the proposed project, a certification request, or preferably a complete application, should (at a minimum) include the following:

(1) A full description of the proposed project: geographic location, boundaries, purpose of the permitted activity, description of the permitted activity, proposed impacts to wetlands and waters (both temporary and permanent), and affected waterbodies;
(2) Description of the location, type of material, and extent—acres, square feet, linear feet, volume, as applicable—of any discharge that may result from the proposed project, and the location of receiving waters;
(3) A description of any methods and means proposed to monitor the discharge and the equipment or measures planned to treat or control the discharge, including an Inadvertent Return Plan when horizontal directional drilling is proposed;
(4) A description of any methods and means proposed to mitigate temporary impacts to wetlands and waters;
(5) A delineation of wetlands and waters prepared by a qualified professional;
(6) Maps, engineering diagrams, and drawings to support the application;
(7) A conceptual Compensatory Mitigation Plan, when one is required by the federal permitting authority;
(8) A copy of the Pre-construction Notification (PCN) when one is required by the federal permitting authority (a properly prepared PCN would include items 1 through 7); and
(9) Any additional information deemed necessary by the state certifying authority on a case-by-case basis.

As a practical matter, we recommend that the project proponent be required to submit to the state certifying authority, at a minimum, a copy of all documents and materials that were submitted to the federal permitting authority. This requirement would facilitate an efficient and easily understandable process.

The certifying authority must have adequate time to review the relevant data to make an informed decision about how best to protect water quality.

The CWA has a maximum of a one-year review period, and that clock should not start until a complete application has been submitted to the certifying authority. This length of time offers a minimum number of wet and dry seasons to estimate potential non-point (diffuse) pollution effects, as well as the potential effects of permitted discharges and flow regime changes on migrating fish or ESA listed species in the vicinity of the site. Furthermore, sufficient time is needed to evaluate the likely effectiveness of the proposed mitigation efforts, particularly those that propose to substitute one type of water body for another (Kentula et al. 1992) or those with latent effects (Harding et al. 1998).

The responsibility for presenting adequate information for permit evaluation in a timely manner should be on the applicant. The certifying agency has a trust responsibility to ensure that actions it approves will not place the water resource at risk. Use of state or tribal waters is not a right; it is a regulated and limited opportunity. The CWA was enacted to formalize review of these opportunities and support better decisions on what kinds of activities a permitting entity is willing to allow given the state and supply of its waters.

The federal role in the WQC process should be to support state and tribal efforts to promote the CWA’s objective.

As the EPA considers revisions to the WQC process, we recommend the following actions:

(1) EPA should collaborate with state and tribal regulators and professional organizations to update the Clean Water Act Section 401 Water Quality Certification: A Water Quality Protection Tool for States and Tribes (2010) and ultimately use the revised document to form the basis for modernized guidance to the states and federal agencies for Section 401 WQC procedures;
(2) Instead of working to restrict the rights of states and tribes, the EPA should focus on empowering them by providing adequate funding, technical assistance, and support for capacity building so that certifying authorities can work toward developing functional, efficient, and consistent Section 401 WQC policies, regulations, and procedures;
(3) The EPA should continue to emphasize the importance of federal agencies and project proponents bringing states and tribes into the application process, focusing on formal engagement as early as possible in the Pre-Application phase of a project. Doing so has helped to minimize duplication of effort, ensure the completeness of application materials, and increase compliance;
(4) Federal agencies should emphasize to the regulated community that most NWPs are pre-certified by the states and tribes, and that remaining within impact thresholds for NWP eligibility is the best strategy for expediting a Section 404 permit. Adherence to limiting the complexity and footprint of projects to avoid impacts, and careful selection of project sites, should be embraced as a viable path toward achieving a regulatory certainty while meeting the legal obligation to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters; and
(5) When a Section 404 individual permit is required, federal agencies should hold project proponents to a high standard of compliance with CWA Section 404(b)(1) avoidance and minimization requirements in 40 C.F.R. Section 230.10, which will substantially contribute to a given project’s adherence to state water quality standards.

Thank you for considering these comments. If you have further questions, please do not hesitate to contact Drue Banta Winters by email at [email protected]isheries.org or telephone at 301-897-8616.

Sincerely,

American Fisheries Society
International Association of Great Lakes Researchers
North American Lake Management Society
Phycological Society of America
Society for Freshwater Science
Society of Wetland Scientists

Literature Cited
Harding JS, Benfield EF, Bolstad PV, Helfman GS, Jones III EBD.1998. Stream biodiversity: the ghost of land use past. Proceedings of the National Academy of Sciences of the United States
of America 95:14843-14847.
Herlihy, A.T., J.C. Sifneos, R.M. Hughes, D.V. Peck, and R.M. Mitchell. 2020. Relation of lotic fish and benthic macroinvertebrate condition indices to environmental factors across the
conterminous USA. Ecological Indicators DOI: 10.1016/j.ecolind.2019.105958.
Kentula ME, Sifneos JC, Good JW, Rylko M, Kunz K. 1992. Trends and patterns in section 404 permitting requiring compensatory mitigation in Oregon and Washington. Environmental
Management 16:109-119.