Investigating 40 C.F.R. Sec. 124.55(B): State-Court Review of NPDES Permit Certifications

This Note investigates the wisdom and validity of 40 CER. § 124.55(b), a Clean Water Act regulation promulgated by the U.S. Environmental Protection Agency (EPA) as part of the National Pollution Discharge Elimination System (NPDES) permitting program. The Clean Water Act provides affected states with an opportunity to certify federally administered NDES permits before issuance by EPA. State certification is a meaningful moment in water quality regulation, and judicial review of these critical decisions takes place in state courts. Unfortunately, 40 C.ER. § 124.55(b), designed to bring certainty and finality to permit-holders, effectively removes state courts from the process of ensuring that state certifications are legally sufficient after permit issuance. In doing so, the regulation dismantles an essential tool of the Clean Water Act. It also renders 40 CER. § 124.55(b) invalid. Thus, 40 C.ER. § 124.55(b) should be repealed by EPA or invalidated by the courts, so that environmental organizations can effectively challenge illegal state certifications. While significant legal obstacles-standing, jurisdiction, and statutes of limitations, to name a few-stand in the way of a challenge to the validity to 40 CER. § 124.55(b), there is a good chance that such a challenge could ultimately find success.