EPA Limits States’ Power to Review Projects That Affect Water Quality

SAN FRANCISCO (CN) — For almost 50 years, states and tribal governments have played an outsized role in deciding whether projects that can harm water quality should receive federal permits — a role that is about to change under a new rule finalized by the Trump administration Monday.

The “Clean Water Act 401 Certification Rule” narrows what issues state and tribal governments may consider when determining if a project, such as one that involves discharging pollution into a river or stream, will comply with state water quality standards. State or tribal approval is a prerequisite for obtaining a federal permit under the Clean Water Act.

The new rule curtailing states’ review power is intended to advance President Donald Trump’s goal of promoting “efficient permitting” and reducing “regulatory uncertainties” as outlined in his April 2019 executive order on “Promoting Energy Infrastructure and Economic Growth.” This rule is one of the first major overhauls of the water quality certification process established by the Clean Water Act of 1972.

“Today, we are following through on President Trump’s Executive Order to curb abuses of the Clean Water Act that have held our nation’s energy infrastructure projects hostage, and to put in place clear guidelines that finally give these projects a path forward,” U.S. Environmental Protection Agency Director Andrew Wheeler said in a June 1 announcement on the final rule.

The rule will affect the permitting and relicensing process for natural gas pipelines, hydropower plants, wastewater treatment plants, wetlands developments and other industrial projects.

Under the new regulatory framework, the EPA will no longer let states and tribes consider a project’s impact on air emissions or road traffic congestion. The scope of review will be limited to water quality alone.

The rule, set to take effect Sept. 11, also forbids state and tribal government from imposing conditions on applicants seeking permits, such as requiring them to build hiking or biking trails, allow fishing access, or pay extra money for improvements not related to water quality.

Additionally, the rule requires states to take final action on water quality certification requests within one year. Only the federal government can allow extensions. States and tribes must also provide more information explaining why conditions imposed on projects are necessary to ensure compliance with water quality standards.

The rule empowers the EPA to deem a certification “waived” if it finds a state or tribal government’s certification denial did not comply with the new rule.

More than 125,000 public comments were submitted on the rule before it was finalized. Several state government officials voiced concern about the rule’s impact on their authority to protect local waters from industrial pollution.

One of those commenters was Hunter Roberts, secretary of the South Dakota Department of Environment and Natural Resources.

“While the goal of improving the nation’s energy infrastructure is certainly admirable, it should not come at the cost of curtailing the states’ and tribes’ congressionally-authorized role in protecting the environment,” Roberts wrote in an October 2019 letter to the EPA.

Mere hours after the final rule was published Monday, a coalition of conservation groups filed a federal lawsuit in the Northern District of California to block it.

American Rivers, American Whitewater, California Trout and Idaho Rivers United claim in their lawsuit that this new rule contradicts Congress’s intent to ensure federally licensed projects do not violate state water quality laws.

“With this rule change, the administration has given corporations the green light to run roughshod over local communities, and has proven it is more interested in corporate rights than states’ rights,” said attorney Andrew Hawley of the Western Environmental Law Center, who represents the plaintiffs, in a statement Monday.

The 23-page lawsuit claims multiple violations of the Clean Water Act and Administrative Procedure Act. The plaintiffs seek a court order invalidating the rule.

“These new regulations are a brazen attack on the Clean Water Act with the goal of undermining the public’s ability to protect our rivers from harmful impacts of federally-licensed energy projects on the environment and outdoor recreation,” American Whitewater legal director Bob Nasdor said in a statement Monday.

An EPA spokesperson said via email that the agency’s “water quality certification regulations were nearly 50 years old and did not reflect the statutory language in Section 401.

“The agency’s recent action reflects the first comprehensive analysis of the text, structure and legislative history of Clean Water Act Section 401. As a result, the agency’s final rule increases the transparency and efficiency of the Section 401 certification process in order to promote the timely review of infrastructure projects while continuing to ensure that Americans have clean water for drinking and recreation,” the spokesperson wrote.

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