Infrastructure Bill Tightens Water Quality Review Scope, Mandates 30-Day Rules Publication

This legislation, titled the Improving Water Quality Certifications and American Energy Infrastructure Act, takes a scalpel to the permitting process required under the Clean Water Act. Essentially, it overhauls how states and the Environmental Protection Agency (EPA) handle water quality certifications—the sign-off needed before a major project, like a pipeline or dam, can get a federal permit. The biggest changes are procedural: agencies must now publish their specific certification rules within 30 days of the law passing, and they are given a tight 90-day deadline to request any missing information from an applicant. This is about injecting speed and clarity into a process often criticized for being slow.

The New 90-Day Clock and Publishing Deadlines

For anyone looking to build major infrastructure, the new deadlines are a game-changer. Right now, the process for getting a water quality certification can feel like a black box, with agencies taking their time to ask for additional data. This bill mandates that within 90 days of receiving a request, the certifying agency (the state or EPA) must tell the applicant, in writing, exactly what specific extra materials they need. This eliminates the long, drawn-out back-and-forth that stalls projects. Furthermore, agencies must publish their specific certification requirements within 30 days. This means less guessing for developers and hopefully, a faster path to approval or denial.

Narrowing the Review Scope: What Gets Checked?

Here’s where the policy gets tricky. When an agency decides whether to grant or deny a certification, the bill strictly limits the basis for that decision. They can only base their approval or denial on whether the project violates specific sections of the Clean Water Act: 301, 302, 303, 306, and 307. These sections cover things like effluent limits and performance standards, but they replace the previously broader authority agencies had to ensure compliance with general “water quality requirements.”

For a regular person, this matters because it changes the goalposts for environmental review. If a state agency previously denied a permit because a project might have a significant, non-listed impact on a local water body—say, impacting wetlands vital for flood control, even if it met the technical discharge limits—that might become much harder to do now. The focus shifts strictly to whether the project will “directly cause a discharge that violates” those specific, technical sections. This could streamline things for infrastructure projects but might also narrow the scope of environmental protection, potentially making it easier for projects to move forward even if they have related water quality concerns not explicitly covered by the listed sections.

Clarifying the Language of Denial

The bill also tightens up the language used in decisions. For instance, the language around potential harm is changed from “may result” to “may directly result,” and the focus shifts from reviewing the overall “activity” to the specific “discharge.” If a certification is denied, the agency must now explicitly state that the facility will directly cause a discharge that violates one of the five specific sections listed above. This procedural clarity is a win for applicants, as it forces agencies to be specific and defend their denials with precise statutory references. However, the use of “directly cause” could open the door to legal challenges, as proving direct causation versus potential cumulative impact is often a complex hurdle in environmental law.