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.
The stakes are high. Last August, EPA released its proposed rule, which, in the Maryland Department of the Environment's apt words, would
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.
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Dave Owen, Katlyn Schmitt | May 28, 2020
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.
Samuel Boden | May 27, 2020
On May 19, the National Weather Service advised people living near the Tittabawassee River in Michigan to seek higher ground immediately. The region was in the midst of what meteorologists were calling a “500-year-flood,” resulting in a catastrophic failure of the Edenville Dam. Despite years of warnings from regulators that the dam could rupture, its owners failed to make changes to reinforce the structure and increase spillway capacity. By the next day, the river had risen to a record-high 34.4 feet in the city of Midland.
Michael C. Duff | May 21, 2020
A recent, interesting lawsuit filed against McDonald's, in Cook County, Illinois, suffers from few of the deficiencies that I have identified in prior postings about public nuisance cases related to COVID-19. The named employee-plaintiffs allege "negligence" in what might look at first blush like a drop-dead workers' compensation case. This time, however, there is a wrinkle.
Darya Minovi, James Goodwin | May 20, 2020
Earlier this week, we submitted a public comment to the Environmental Protection Agency (EPA), criticizing the agency's March 2020 supplemental proposal for its “censored science" rulemaking. This rule, among other things, would require the public release of underlying data for studies considered in regulatory decision-making, and thus might prevent the agency from relying on such seminal public health research as Harvard’s Six Cities study, which have formed the backbone of many of the EPA’s regulations, simply because they rely on confidential data.
Alejandro Camacho, Robert L. Glicksman | May 20, 2020
Much of the discussion of the Trump administration's failed handling of the COVID-19 pandemic has focused on its delayed, and then insufficiently urgent, response, as well as the President's apparent effort to talk and tweet the virus into submission. All are fair criticisms. But the bungled initial response—or lack of response—was made immeasurably worse by the administration's confused and confusing allocation of authority to perform or supervise tasks essential to reducing the virus's damaging effects. Those mistakes hold important lessons.
Katie Tracy | May 19, 2020
The Occupational Safety and Health Administration's (OSHA) Whistleblower Protection Program (WPP) plays a vital role in protecting workers from employers who cut corners on safety or who violate other federal laws: It protects those workers who report such abuses from retaliation, making it harder for employers to get away with breaking the law. Or at least that's how it's supposed to work. The 23 separate federal statutes the program encompasses cover a wide range of corporate wrongdoing, including violations of clean air and drinking water standards, food safety standards, workplace health and safety standards, and much more. If an employer retaliates against an employee for taking any of the actions covered by these laws, the employee may file a retaliation complaint with OSHA for investigation.
Darya Minovi | May 18, 2020
On May 26, CPR and our advocacy partners are hosting a virtual town hall event to discuss the latest research and insights on air and water pollution from industrial livestock operations and their impact on public health and the environment in the Delmarva region.
Michael C. Duff | May 14, 2020
Listening in on Tuesday's Senate Hearing on Corporate Liability During the Coronavirus Pandemic, I was especially pleased to hear workers' compensation immunity discussed. Sen. Sheldon Whitehouse of Rhode Island specifically asked whether blanket corporate immunity would constitute subsidization of workers' compensation insurers. Witness Professor David Vladeck of Georgetown University Law Center responded that it very well could if workers' compensation were not carved out of the bill. I did not hear anyone contend during the hearing that workers' compensation could not be part of an immunity blanket, which is food for thought.
Daniel Farber | May 13, 2020
Sen. Mitch McConnell is demanding that any future coronavirus relief law provide a litigation shield for businesses, and other conservative and business interests have made similar proposals. So far, the supporters of these proposals have engaged in some dramatic handwaving but haven't begun to make a reasoned argument in support of a litigation shield.