States Fight Federal Power Grab on Water Quality Review

Railroad trestles, a stream and wildfire smoke in Idaho. (Courthouse News photo/Chris Marshall)

(CN) — Waterways across the country will be polluted under a new rule from the federal government that modifies the Clean Water Act and limits a state’s authority to deny water permit projects, according to a coalition of states suing the Trump administration.

The complaint filed Tuesday says an executive order has upended the U.S. Environmental Protection Agency’s “longstanding broad interpretation of state authority to protect water quality” under existing law. The new rule would prevent authorized tribes’ and states’ ability to consider a proposed project’s impact on air emissions or road traffic congestion, narrowing the lens to specifically water quality.

California Attorney General Xavier Becerra said the change was done to benefit coal, oil and natural gas infrastructure projects.

“The EPA’s new rule limits the scope of what states can review and requires states to take action within a limited timeframe with minimal information,” said Becerra during a press briefing Tuesday. “So, let’s be clear, this Trump administration rule is not about water quality. This is about pushing forward fossil fuel energy infrastructure.”

In an April 2019 executive order, President Donald Trump said section 401 of the Clean Water Act has “hindered the development of energy infrastructure.”

The section gives states and authorized tribes a direct role in federal permitting, but the executive order called the section outdated and confusing.

In June, EPA Director Andrew Wheeler said the federal agency was following through on Trump’s executive order to “curb abuses of the Clear Water Act.”

The update to the Clean Water Act capsizes a nearly 50-year-old rule and would impact permitting and licensing for natural gas pipelines, hydropower plants, wastewater treatment plants, wetlands development and other industrial projects.

Under the new rule, states and tribes would have little say in asking for conditions on the approval of permitting projects. Local government agencies would have just one year to respond to the water quality certification tests that are part of the permitting process.

“Even when a state is able to make a certification decision before the expiration of the time limit imposed by the federal agency, the federal agency could still determine that the state waived its authority if it concludes that the state failed to provide certain information to the federal agency required by the rule,” according to the 32-page complaint filed in the Northern District of California.

Twenty other states join California as plaintiffs including Washington state and New York. They seek an injunction on the rule, which they say violates the Administrative Procedure Act and the Clean Water Act. The rule is set to take effect in September.

A coalition of Northern California conservation groups sued over the new rule this month.

In a statement, the EPA said the agency does not comment on pending litigation.

“However, we would note that prior to issuing this final rule, EPA’s water quality certification regulations were nearly 50 years old and did not reflect the statutory language in Section 401,” an EPA spokesperson said.

“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.”

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