The Whittling Away of State Clean Water Act Authority

Katlyn Schmitt
Dave Owen

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.

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:

  1. The rule would allow federal agencies to restrict the amount of time a state has to review and decide on a request for certification before the state's authority is completely waived. This is problematic for a variety of reasons. Often, the first application for certification does not have the necessary details for a state to make an adequate evaluation of the proposed project's impacts, yet under the rule, a state could only ask for information that could be provided within that same "reasonable" period, as determined by the federal agency. Likewise, the "reasonable periods" may be highly truncated. Federal agencies under political pressure to approve infrastructure may have curious ideas about what counts as a reasonable time. Finally, this addition probably isn't legal. Section 401 contemplates states setting procedures for reviewing certification applications. It doesn't empower federal agencies to limit state authority in this way.

  2. In a similar vein, the rule would prevent states from defining what a "complete application" for certification must contain, thereby preventing the state from deciding when the regulatory clock starts and, therefore, when its authority is waived.

  3. The rule would prevent states from denying or placing conditions on projects if the denial or condition relates to the water quality impacts from the activities of a project as a whole, rather than just from a specific "discharge" from the project. This portion of the rule tries to overrule a landmark U.S. Supreme Court case, PUD No. 1 of Jefferson County v. Washington Department of Ecology, and would take away authority that states have enjoyed for decades – and that the United States Supreme Court has found flows directly from the text of the Clean Water Act.

  4. The rule would empower federal agencies to reclassify any denial of a 401 certification that the federal agency deems legally insufficient as a waiver of state authority. This is problematic because it effectively allows federal agencies to override state certification denials. No such power appears in the language of section 401, which instead bluntly says that "[n]o license or permit shall be granted if certification has been denied by the State."

  5. The rule would similarly empower federal agencies to reject state conditions if, in the judgment of the federal agency, those conditions do not meet the requirements of the Clean Water Act or its implementing regulations. Particularly with an administration not known for rigorous legal interpretation, this provision will encourage federal agencies to pick and choose which state requirements they will pay attention to, with the states likely forced to resort to litigation to defend powers expressly conferred upon them by the Clean Water Act itself.

  6. The rule would also prevent states and tribes from enforcing any state or local laws or regulations that deal with water quality in the certification process, unless that state or local law or regulation had already been approved by the EPA. The rule doesn't directly acknowledge that limitation, but it specifically says that certifications can only be based on "water quality requirements," which in turn can only come from the Clean Water Act itself or from "EPA-approved state or tribal Clean Water Act regulatory program provisions." This goes against longstanding case law and the plain language of the Clean Water Act, which says that states or tribes may deny certification if they have reason to believe that a project will violate water quality standards or any other appropriate state law or requirement.

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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