EPA bolsters states’ control of water, infrastructure permitting

By E.A. Crunden | 09/14/2023 01:25 PM EDT

The Biden administration is walking back Trump-era efforts to weaken state and tribal permitting powers.

Radhika Fox.

"Our focus was on restoring their authority and providing an efficient path to the review of critical infrastructure projects in this country," Radhika Fox, assistant administrator for EPA's water office, said of a new rule boosting state water powers. Francis Chung/E&E News

The Biden administration is restoring significant state and tribal authority over water resources and expanding their leverage on infrastructure permitting decisions, including for pipelines.

With a final rule announced Thursday, EPA reversed Trump-era limitations on state permit approvals, a move the agency said would bolster state and tribal abilities to protect their waters. In addition to restoring certain oversight powers, the move also gives states, tribes and territories a direct role in determining the duration of review processes.

EPA Administrator Michael Regan said in a statement that the rule would support “economically secure, healthy, and sustainable communities” and foster the relationship between the federal government and its lower-level partners.


“With EPA’s final Clean Water Act Section 401 rule, we are affirming the authority of states, territories and Tribes to protect precious water resources while advancing federally permitted projects in a transparent, timely, and predictable way,” Regan said.

At issue is a provision of the Clean Water Act enabling states, tribes and territories to sign off on — or deny — permit certification based on concerns over threats to their water resources. Under former President Donald Trump, EPA limited Section 401 certification oversight from “the activity as a whole” to discharges alone, a move that sparked major backlash from some states and environmental groups.

The Biden administration is now walking back that erosion of powers, while also expanding state authorities.

On a call with reporters Thursday, Assistant Administrator for the Office of Water Radhika Fox said there will be a default time frame of six months for certification when a federal agency and certifying lower authority fail to reach an agreement, a shift from the 60-day period initially proposed. A one-year maximum time frame is also in place for certification review, which is the statutory maximum.

She did not expand on whether EPA anticipates that states will now have more support in blocking or delaying projects, but emphasized a return to enacted statutory powers. The rule underscores that certifying authorities may only consider adverse water quality impacts from a project or activity.

“Our focus was on restoring their authority and providing an efficient path to the review of critical infrastructure projects in this country,” Fox asserted.

Streamlining processes are similarly a focus. Fox said that the new rule heavily clarifies what needs to be in a permit application, as well as define the scope of review. “We really think this will help limit delays and provide clarity for all parties on how to move forward,” she said.

The rule is final but will receive a 60-day public comment period. Fox said that it will not apply retroactively to decisions made under the Trump-era rule, but that all actions going forward will have to conform to the new regulation.

A range of state officials have already expressed support for the move, including a number of Democratic governors, including the heads of Connecticut, Massachusetts, Maryland, New Mexico and North Carolina, along with environmental department leaders from New York and Washington state.

“In my state, clean water is the keystone of our economy — from tourism to seafood to small business growth,” said Maryland Gov. Wes Moore (D) in a statement.

He added: “By collaborating across all levels of government, we will build cleaner and more economically vibrant communities that benefit everyone for decades to come.”

Advocates are also celebrating the regulation. Jim Murphy, the National Wildlife Federation’s director of legal advocacy, said the rule was a watershed moment for protecting the environment.

“This rule ensures that the people who know these waters best are able to make thoughtful, informed decisions about projects that could harm them,” said Murphy. “If you care about safe drinking water or if you enjoy fishing, swimming or boating, you should be glad that states and tribes are able to review proposed projects like dams, pipelines and mines.”

Sackett implications

With the new rule, EPA has also had to account for the fallout from Sackett v. EPA, a Supreme Court decision in May that stripped protections for most of the nation’s wetlands.

That rule prompted EPA and the Army Corps of Engineers to release a new waters of the United States definition, or WOTUS, at the end of last month complying with the court’s directives. Under that regulation, protections have been majorly scaled back, limiting areas that merit federal oversight.

Fox said that the Section 401 rule had similarly been impacted by Sackett. “We now have a regulatory regime where certain waters would not be jurisdictional, and so therefore would not fall under the 401 program,” she noted.

Still, Section 401 is specifically focused on state oversight, Fox continued, and the newly issued rule serves to cement power to that extent. She nonetheless acknowledged that the new WOTUS definition covers fewer waters, ultimately meaning that there are fewer opportunities for states to exercise their power of approval over projects.

What the actual percentage decline might be, however, is unclear. Jurisdictions are determined by individual Army Corps reviews, making it a challenge to predict an exact number, even though the agencies will be monitoring the reduction.

“The Sackett case does limit pretty significantly the number of waters that we expect to be jurisdictional,” Fox said. “We do anticipate that there will be fewer projects that will be reviewed under the 401 program.”

Permitting drama

Section 401 has been a regular target for industry members and GOP lawmakers, many of whom feel that states led by Democrats have weaponized the provision to delay projects like oil and gas pipelines.

EPA is arguing that the new rule will actually make the permitting process run more smoothly, laying out requirements explicitly and firming up parameters around federal and state oversight. Fox pointed to transit and energy projects as examples of efforts that would benefit from “much more clarity” around the 401 process.

“We absolutely think that this will provide a more streamlined review of all kinds of projects,” she said.

That is unlikely to assuage anger from critics, although their road to success has proven rocky in the past.

Sen. Joe Manchin (D-W.Va.) attempted to target Section 401 in permitting legislation last year, only to fail after Democrats and Republicans alike shot him down.

More recently, House Transportation and Infrastructure Chair Sam Graves (R-Mo.) and Subcommittee on Water Resources and Environment Chair David Rouzer (R-N.C.) pushed forward their own legislation undercutting Section 401. That bill — H.R. 1152, the “Water Quality Certification and Energy Project Improvement Act” — has not garnered bipartisan support, likely dooming its prospects.

While legal challenges could still come rolling in, EPA argued that the agency has prepared for any attacks. Fox offered that the new regulation was shaped by significant state input and reflects the agency’s statutory authority.

“I think we struck the right balance here,” she said.