EPA proposed a rule today that would reshape critical state and tribal permit reviews under the Clean Water Act, reversing a Trump-era policy that roiled Capitol Hill, industry and environmental groups.
The proposed rule lays out a process under the law’s Section 401 by which developers of pipelines, power lines, mines and other projects request federal permits to discharge into regulated waterways and wetlands.
For the first time, the EPA proposal allows states and tribes to take part in defining a “reasonable time” to conduct such reviews — an issue that’s sparked political fights in the past — and restore flexibility on what states and tribes consider when reviewing applications, according to an EPA fact sheet.
EPA Administrator Michael Regan said the proposal would line up the review process with the Clean Water Act while reinstating a “broader and more environmentally protective scope” of review under Section 401.
“For 50 years, the Clean Water Act has protected water resources that are essential to thriving communities, vibrant ecosystems, and sustainable economic growth,” 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.”
Environmental groups and Democrats applauded the proposal, which is now open for 60 days of public comment.
“The Clean Water Act quite clearly gives states, territories, and Tribes the ability to protect their water quality when projects are permitted or licensed,” Senate Environment and Public Works Chair Tom Carper (D-Del.) said.
New Mexico Gov. Michelle Lujan Grisham (D) also welcomed the proposed rule, saying it would let states, territories and tribes protect their water resources “as they deem appropriate.” She applauded EPA’s “collaborative approach to ensuring that our state and federal partnership on this important issue leads to improved water quality for ecosystems, cultural uses and continued economic growth.”
Karen Harbert, president and CEO of the American Gas Association, said the group was concerned that the Biden proposal would veer too far from what Congress intended when it passed the Clean Water Act and would increase costs for energy infrastructure.
“It should not take longer to get the permits and permissions for a pipeline than it does to build one,” Harbert said in a statement. “A few states have misused their authority under section 401 of the Clean Water Act in an attempt to block projects they do not like for unrelated reasons. They have concocted objections not related to water quality and have taken longer than one year for their review.”
‘Restoring some of the discretion’
The proposal appears to broaden the scope of what states and tribes can consider when reviewing permit applications and eases strict deadlines that would have been imposed under the Trump administration’s rule.
Under the Biden administration proposal, for example, developers would be able to request a meeting with regulators a month before requesting a permit, a move that could prompt early coordination. The proposed rule also lays out what applicants would need to show to request a permit.
And the proposal allows states and tribes to take part in determining what constitutes a “reasonable period of time” to review the request for certification, a clock that starts ticking when states or tribes receive a developer’s permit application.
Under Section 401 of the Clean Water Act, states and tribes have one year to issue their certifications before they are considered to have waived their authority, but that deadline is sometimes surpassed.
In comparison, the Trump-era regulation attempted to hold states and tribes to the one-year deadline for reviews.
The EPA proposal also clarifies that when states, tribes or territories receive a request for certification, they can look at “whether the activity as a whole will comply with water quality requirements, which include water quality-related state or Tribal laws.”
EPA said such an approach would allow “a certifying authority to holistically evaluate the water quality impacts of a federally licensed or permitted project.”
“Certifying authorities may evaluate impacts from any aspect of the project activity with the potential to affect water quality,” EPA wrote. “This approach reinstates the broader and more environmentally protective scope of review that the Supreme Court affirmed in 1994.
Ben Cowan, a Houston-based environmental attorney with Locke Lord LLP who works with large pipeline and energy projects, said that while the 60-day default period is significant, it appears certifying authorities will be able to negotiate extensions and he expects this EPA to be flexible.
“The Biden EPA is restoring some of the discretion to the certifying authorities that the Trump rule had limited through imposition of a one-year time frame and by limiting the scope of their review,” he said. “It provides more definition to the process, which could be helpful, but it’s giving the certifying authorities the ability to review projects more broadly.”
Debate over Section 401 of the Clean Water Act made its way to the Supreme Court earlier this year after Republican-led states asked the justices to reverse a federal judge’s ruling that had blocked the Trump rule while the Biden administration worked to replace it.
In a short order issued through the Supreme Court’s emergency docket, five members of the conservative wing agreed to revive the Trump rule, which dismantled about 50 years of precedent on how states, tribes and the federal government had approached water quality certifications. They did not explain their reasoning (Greenwire, April 6).
Four justices made their frustrations known, with Chief Justice John Roberts joining Justice Elena Kagan’s dissent decrying the order as an abuse of the court’s emergency — or “shadow” — docket.
The underlying question of the legality of the Trump rule now sits with the 9th U.S. Circuit Court of Appeals, which is considering whether Senior Judge William Alsup of the U.S. District Court for the Northern District of California erred last year when he found that the regulation violated decades of Supreme Court precedent.
Alsup, a Clinton appointee, cited the court’s 1994 ruling in Public Utility District No. 1 of Jefferson County v. Washington Department of Ecology, which said states could require federally approved hydropower projects to preserve minimum stream flow, even though that issue is not directly addressed in the Clean Water Act (Greenwire, Oct. 25, 2021).
EPA referenced that ruling in its fact sheet today.
“This approach reinstates the broader and more environmentally protective scope of review that the Supreme Court affirmed in 1994,” the agency wrote.
The question of the timing of state and tribal water certifications has also been the subject of legal scrutiny.
In one 2019 case, for instance, the U.S. Court of Appeals for the District of Columbia Circuit faulted California and Oregon for engaging in a scheme to reset the clock on approvals for dam relicensing, rather than handing the decision over to the Federal Energy Regulatory Commission (Greenwire, Jan. 25, 2019).
The Supreme Court later declined to revisit the D.C. Circuit’s ruling.