by Adam Carlesco
In the fight to protect our waters from reckless permitting by the federal government, the drafters of the Clean Water Act (CWA) ensured that state governments had the authority to deny federal permits for infrastructure projects that violate state laws. This authority comes from Section 401 of the CWA and has allowed states to block a number of oil and gas pipelines, like the Northeast Supply Enhancement project, due to the harm they’d cause to state water. This authority is a vital tool in stopping the expansion of fossil fuel infrastructure in states with strong climate goals and the preservation of this power is necessary to avert the worst effects of climate change.
Trump’s Administration Wrote A Bad Clean Water Act Rule, And Biden’s EPA Must Fix It
For the past four decades, the Environmental Protection Agency (EPA) has understood that states have broad discretion in how they review whether a project will significantly impact a waterbody within its borders. But in July 2020 the Trump administration finalized a major regulatory change that hastened state and tribal authorities’ timelines for reviewing such projects. Making things worse, it also severely limited the factors that state agencies could consider when deciding whether to certify a project. It’s clear that this rule was enacted to stop states like New York from protecting water people depend on for life. If this rule isn’t rewritten, it will lead to more oil and gas pipelines being approved without critical state review.
Understanding this, the Biden Administration has directed EPA to review the 2020 CWA §401 Certification Rule for legal deficiencies and amend the rule as needed so it aligns with the principles of state sovereignty and protects water bodies and the climate. Currently, EPA is considering how it can improve the state certification process and will likely be proposing a new rule in late 2021 or early 2022. To guide that proposal, Food & Water Watch has submitted comments advising the agency on how best to address the dual challenge of climate change and water contamination.
The 2020 Trump Rule Wholly Undermines The Spirit And Intent Of The Clean Water Act
Under the 2020 Trump Rule, EPA shortened timelines for states to review a project’s compliance with state law, requiring the timeframe for review to begin immediately when a developer submits an application – even if lacking vital information. Going forward, the EPA must amend this so the clock starts only once a state certifying authority deems an application administratively complete. Also, EPA must allow applicants to voluntarily withdraw their request and resubmit it at a later date when there is inadequate information for a state authority to make an informed final decision. Without that flexibility, this practice will result in more states denying certification to avoid inadvertently waiving their review authority. It is also incredibly important for states to be able to delay certification until the completion of an environmental review as required by the National Environmental Policy Act.
The 2020 Rule has also severely narrowed the scope of what review criteria a state can consider when determining whether a project complies with state law. EPA must reiterate that state certification must consider the impacts of any “discharge” as the Clean Water Act requires, not just a “discharge of pollutants” which is a wholly different legal term not present in Section 401 of the statute. Despite the Trump administration’s insistence that Section 401 applies only to “point sources of pollution” (e.g., wastewater coming directly out of a pipe into a river), in actuality, the CWA requires a review of any activity that may result in a discharge, including from non-point sources (e.g., pesticide run-off from golf courses). EPA must correct this gross misreading of the statute if states are to meaningfully assess the full scope of a project’s potential harm.
The damage caused by such shortened timelines and a narrowed scope of review is heightened by the 2020 Rule’s requirements that force states to waive their certification authority if a final decision is not made within EPA’s definition of a “reasonable” period of time or if it contains conditions that EPA objects to. It is of the utmost importance that EPA allows flexibility in its determination of a “reasonable time” for review that allows states to request additional data necessary for informed decision-making, without the looming threat of waiving state certifying authority.
Moreover, EPA must respect state conditions when approving a project. Conditional approval of a project is meant to allow a project — that would otherwise not be certified — to move forward with strict conditions on approval. Stripping conditions from a conditional certification allows projects to proceed which, without those state-issued conditions, would be in violation of state law. As such, EPA must respect state sovereignty in determining when a project would violate state law without a condition and in determining what a reasonable amount of time is for reviewing a project within the statutory one-year limit.
EPA is anticipated to issue a notice of proposed rulemaking within a few months which the public can comment on. Food & Water Watch will be involved in submitting comments to EPA that call on a robust review process that protects our waters and will be sure to alert our supporters on how they can get involved when a proposed rule is announced.
More people should know about this. Can you share it with friends?
A Note About What’s Next To Protect Waterways:
Protecting the waterways of this nation must be an all-of-government effort. As such, it is important that EPA coordinate their regulatory plans with the U.S Army Corps of Engineers and the Federal Energy Regulatory Commission, as these agencies oversee dredging of waterways and gas pipeline permitting respectively. Without a coordinated regulatory reform for all three agencies, priorities and legislative interpretations may become conflicted or incompatible, which would result in weakened waterbody protections and uncertainty in permitting for water-crossings of public utility lines, like much-needed water infrastructure.