The U.S. Environmental Protection Agency is moving to revise a rule under the federal Clean Water Act to give states and tribes more authority to review project impacts on water quality, although critics say it could delay project permitting.
EPA published a notice of intent in the Federal Register June 2 announcing its plan to revise the law's section 401 certification rule, which has historically given state and tribal governments the ability to block projects over water quality concerns since the law was enacted in the early 1970s.
A 2020 change by the Trump administration had removed that power, a move that some tribes and environmental advocates have challenged in court. The US Supreme Court issued an order by a 5-4 decision earlier this year allowing the Trump-era rule to temporarily remain in place.
EPA officials say the proposed revision would be more consistent with existing regulations.
Under section 401, a federal agency considering issuing a permit needs the state, territory or tribal government where water from the proposed project would discharge to either issue a water quality certification or waive certification.
“For 50 years, the Clean Water Act has protected water resources that are essential to thriving communities, vibrant ecosystems and sustainable economic growth,” EPA Administrator Michael Regan said in a statement. “EPA’s proposed rule builds on this foundation by empowering states, territories and tribes to use congressionally-granted authority to protect precious water resources while supporting much-needed infrastructure projects that create jobs and bolster our economy.”
The proposal drew praise from some state officials as well as from tribes and environmental groups that challenged the Trump-era rule, but was criticized by some groups that had pushed to reinstate that revision in court.
“EPA’s proposal is a positive and welcome step towards correcting the Trump administration’s unlawful rollback of state and Tribal authority and the chaos imposed by the Supreme Court’s decision to reinstate the illegal rule that coopts the Clean Water Act to serve the interests of the fossil fuel industry,” Moneen Nasmith, senior attorney at Earthjustice, said in a statement. The group represented three tribes and two environmental groups in the suit challenging the Trump-era rule.
Robin Rorick, vice president of midstream policy at the American Petroleum Institute, which favored the Trump-era rule, said in a statement that the group supports the Clean Water Act but is concerned EPA’s move “would counteract the well-defined timeline and review process enacted by Congress,” potentially adding delays to the permitting process.
“At a time of increasing regulatory uncertainty and high energy costs, adding bureaucratic red tape is the exact opposite of what is needed,” Rorick said.
EPA says in its Federal Register notice that it is revisiting the 2020 rule as a result of President Joe Biden’s January 2021 executive order that directed federal agencies to review rules issued during the Trump administration. As ENR has previously reported, EPA has moved to reverse Trump-era rules on navigable waters, mercury emissions from power plants and landfill emissions.
The agency will accept comments on its latest proposal for 60 days. Details on submitting comments are available in the Federal Register.
