By Brittany Schieler
Quick overview: The EPA proposed changes to implementation of Section 401 of the Clean Water Act (Docket ID No. EPA-HQ-OW-2019-0405) which will significantly restrict a state or tribe’s authority in certifying infrastructure projects that will impact its waters and watershed habitat.
On August 8th the Environmental Protection Agency (EPA) proposed changes to implementation of Section 401 of the Clean Water Act (CWA), which were officially entered into the Federal Register on August 22, 2019 (Docket ID No. EPA-HQ-OW-2019-0405). Section 401 requires state (or tribal) water quality certification for federal permits on infrastructure projects that, “may result in any discharge into the navigable waters.” For many years, Section 401 has been implemented such that states and tribes have broad authority to set standards and regulations for their own waters. States effectively reserve the right to deny, or impose conditions on, federal permits for a project if it does not meet the state’s water quality standards. While the plain language of Section 401 refers specifically to discharge, the rule has been used by states to consider the activities of the proposed project as a whole and regulate other environmental impacts including soil erosion, restriction or redirection of water flow, degradation of wildlife habitat, and diminished dissolved oxygen levels.
The broad interpretation of Section 401 has been upheld in numerous court cases. In Public Utility District No. 1 of Jefferson County and City of Tacoma v. Washington Department of Ecology (1994) the Supreme Court of the United States ruled that regulating stream flow fell under the purview of Section 401, observing that “Section 401(d) is most reasonably read as authorizing additional conditions and limitations on the activity as a whole.” This interpretation was upheld again in 2006 in S.D. Warren Co. v. Maine Board of Environmental Protection when the court unanimously concluded that states may impose regulations on stream flows for hydroelectric dams. The implementation of Section 401 has thus been model of the “cooperative federalism” framework originally envisioned by the CWA in which the federal government provides a foundation for water quality regulations while states and tribes implement, and can expand upon, those regulations.
Section 401 has frustrated industries for years and has been recently used to stymie progress on several high-profile pipeline and other energy projects, such as the Constitution Pipeline in New York State. In response, President Trump issued an Executive Order in April 2019 directing the EPA to review and revise its implementation of Section 401. The result of the order is the proposed rule discussed here, which ultimately shifts powers granted by Section 401 from states to federal agencies. Specifically, the proposed changes would have three major effects. First, it would greatly limit the scope of Section 401 to water discharge only. Other activities or environmental impacts of a proposed project would not qualify as conditions under the CWA. Second, it would put greater limits on the amount of time states have to grant certification and give federal agencies the ability to establish a timeline they deem appropriate. Failure to abide by the established timeline will be treated as a waiver of certification by the state. Third, and most notably, the new rules would give the federal agencies power to override a state’s decision to deny certification.
The proposed rule changes have wide, bipartisan opposition, including from the State Wetland Managers Association and the Western Governors’ Association. In a statement, ranking member of the Senate Environment and Public Works Committee Tom Carper (D-Delaware) said, "this EPA is rendering states voiceless and virtually powerless to protect the quality of their water. As a recovering governor, I shudder at the thought of Delaware having no real authority to review and challenge permits for federal energy projects that might threaten our coasts and water resources.” ASLO feels that this issue is of relevance to the membership and we, along with our society partners in the Consortium for Aquatic Science Societies (CASS), are taking various actions related to this proposed policy. The period for public comment on the new rule is currently only 60 days- open until October 21, 2019. Due to the complexity of the issue and the extent of information requested for comment in the proposal (there are over 130 individual questions in the proposal), CASS has requested an extension of the public commenting period to 120 days. In addition, in the coming weeks CASS will be drafting and submitting a substantive letter to EPA Administrator Wheeler that reflects the opinions and expertise of the membership on the proposed rule itself.
To download and read the CASS letter of request for extension on the comment period, click here.
Members who wish to comment on the proposed changes can submit a comment by the current deadline of 21 October on Docket ID No. EPA-HQ-OW-2019-0405 by clicking here.