Sometime soon, EPA is expected to release its final rule limiting state and tribal authority to conduct water quality certifications under section 401 of the Clean Water Act. A water quality certification is the most important tool states have to ensure that any federally permitted project complies with state water quality protections.
States often impose conditions on such projects that are more stringent than federal requirements in order to protect drinking water and local aquatic habitat, among other reasons. The Clean Water Act also empowers states to deny certifications and stop a project from moving forward if it would still violate the state's water quality standards even after conditions are imposed.
The rulemaking was spurred by an executive order from President Trump last year. The order directed the EPA to change the 401 certification process, with an ostensible focus on "the need to promote timely Federal-State cooperation." The executive order followed several situations in which states had declined to provide 401 certifications for fossil fuel infrastructure projects, and so its primary goal was clear: getting the states and their environmental concerns out of the way of energy infrastructure development. And while energy may have been the primary focus, section 401 certifications are also central to the policies states use to protect waterways from a variety of other activities.
undermine state authority and jeopardize the ability of states to protect their waters from pollution associated with federally permitted activities…EPA puts forth a series of constraints on state implementation of CWA Section 401 that are contrary to law and fundamentally different from the positions EPA has taken over the past 40 plus years in overseeing the implementation of CWA Section 401. The cumulative effect of these constraints is to substantially diminish the authority reserved by Congress to the states to protect their waters from pollution.
The proposed rule, if finalized as written, would significantly limit state authority in a number of ways:
Ultimately, this rule would weaken one of the primary ways in which the Clean Water Act empowers states to protect their waterways, and it would give federal agencies and project developers much more ability to ignore state preferences. Of course, with this administration, there's no doubting that weakening the rule is exactly the purpose.
This move is one part in a string of regulatory rollbacks by the Trump administration aimed at weakening environmental protections, including a recent rule redefining the "waters of the United States" (WOTUS). Properly defining WOTUS is important because the definition determines whether an aquatic feature is protected by the Clean Water Act. The new WOTUS rule shrank those protections. The waterways removed from Clean Water Act protection include streams that flow shortly after precipitation events and wetlands that are close to surface waterways, but only connected to those waterways through groundwater. Both types of waterways are environmentally valuable in their own right and are crucially important to water quality in larger waterways.
For states, the WOTUS rule and the section 401 rule will interact in pernicious ways. Rather than setting up independent stream and wetland protections, many states have relied on the combination of Clean Water Act jurisdiction and section 401 certification requirements to influence stream and wetland protections. In other words, they have developed their water quality protections in symbiosis with Clean Water Act regulation. The WOTUS rule undercuts that symbiosis by placing huge numbers of aquatic features outside the scope of the Clean Water Act, and thus outside the scope of the state programs that link to the Clean Water Act. And the section 401 rulemaking will undercut states' ability to protect those waterways that do remain subject to Clean Water Act jurisdiction.
Both rules have been accompanied by rhetoric about empowering states and building federal-state collaboration. But that rhetoric is disingenuous. The real result is a one-two punch to states' ability to protect their waters and safeguard their residents.