Lewis Roca Blog

On April 10, 2019, President Trump signed an executive order that alters how Section 401 review is performed under the Clean Water Act ("CWA"). Currently, applicants must seek State authorization of a project pursuant to Section 401 of the CWA from the State in which the project is located. Section 401 delegates federal authority to the States to ensure that water quality standards are met. Industry has been concerned that States are using their delegated authority to delay or disrupt energy pipeline projects. The Executive Order, which is intended to speed federal permitting of energy projects, requires the EPA to review existing guidance and regulations with the goal of revamping current policy regarding 401 requirements. The administration believes EPA's current policies do not comply with recent court decisions and allow States too much opportunity to introduce delay into the permitting process. Arizona, which has a State government apparatus that seeks to timely, efficiently and effectively complete its review and prepare its response to 401 authorization requests, is not anticipating to be significantly impacted by this Executive Order.

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