On Friday, December 17, the Environmental Protection Agency (EPA) quietly issued a Q&A document concerning the vacatur of the 2020 Section 401 Certification Rule (2020 Rule). The Q&A confirms EPA’s view that the 1971 certification regulation is now in effect nationwide, but does not present a policy or legal rationale for this decision. Although much of the Q&A refers the reader to the 1971 certification regulation, it also provides some pretty important information. For example, EPA says that “[g]enerally, EPA does not expect to revisit certifications the Agency issued while the 2020 Rule was effective.” This statement should provide some certainty to folks who received certifications and related federal permits under the vacated rule; however, a person may wonder under what circumstances EPA may decide to revisit prior certification actions. The Q&A also clarifies that any certification request that was previously submitted but not yet acted on should be processed in accordance with the 1971 certification rule.
The Q&A reiterates EPA’s intent to propose a new certification rule in Spring 2022.