On Tuesday, February 18, 2025 The Institute for Energy Research delivered a petition for reconsideration of the Section 401 Certification Rule, 88 Fed. Reg. 66,558 (Sept. 27, 2023), and Rulemaking to Amend 40 C.F.R. Parts 121, 122, and 124 to the office of the Environmental Protection Agency’s Administrator.
Despite the Supreme Court’s ruling in Sackett v. EPA, the Biden administration moved forward with its own definition of WOTUS, relying on Justice Kennedy’s outdated “significant nexus” test. The definition does not align with the Sackett ruling, and the petition calls for the EPA to revise the rulemaking to align with the Supreme Court’s decision. This petition requests that the U.S. EPA and the U.S. Army Corps of Engineers start a new rulemaking process to clarify and redefine the term “Waters of the United States” under the Clean Water Act.
Accompanying the petition, IER President Tom Pyle provided the following letter:
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Dear Administrator and Assistant Secretary:
Pursuant to the Administrative Procedure Act, 5 U.S.C. § 553, the Institute for Energy Research respectfully requests that the U.S. Environmental Protection Agency (“EPA”) reconsider the final rule entitled Clean Water Act Section 401 Water Quality Certification Improvement Rule, 88 Fed. Reg. 66,558 (Sept. 27, 2023), and initiate notice-and-comment rulemaking to rescind the Rule’s preamble and to amend the requirements for Section 401 certifications and related provisions at 40 C.F.R. Parts 121, 122, and 124.
The EPA’s current regulation for the Section 401 certification program is based on statutory language that Congress repealed in enacting the Clean Water Act (CWA) in 1972. The 1972 amendments launched a fundamental shift in national environmental policy from aspirational water quality standards to enforceable limits on discharges into federally regulated waters. Congress specifically instructed the EPA to account for this new approach by issuing new rules for Section 401 certifications. In 2020, the EPA finally complied with this instruction by promulgating a certification regulation that accounted for the CWA’s discharge-based approach to achieving water quality and established reasonable guardrails for State and Federal agency participation in the program. Yet the EPA abruptly reversed course in 2023, adopting a new rule that returned to practice under a pre-CWA regulation and abdicated the EPA’s critical supervisory role under Section 401. The result is a regulation that sets few meaningful limits on States’ ability to delay and block essential projects licensed by Federal agencies and fails to ensure that State decisions are consistent with the CWA.
The Institute for Energy Research respectfully requests that EPA reconsider and rescind the preamble of the Section 401 Certification Rule and amend 40 C.F.R. Parts 121, 122, and 124 to comply with the text, structure, and express purposes of the CWA. Specifically, EPA should initiate notice-and-comment rulemaking to (1) align the scope of certification and certification conditions to the discharge-specific focus and jurisdictional limits of the CWA; (2) clearly define when a request for certification triggers the deadline for certifying authority action; (3) establish clear rules for defining the reasonable period of time for decision; and (4) restore reasonable guardrails and Federal-agency review procedures that ensure certification decisions are transparent, predictable, and in full compliance with the CWA.
Sincerely,
Tom Pyle, President
The Institute for Energy Research______
The full petition is available to review here.
