EPA Set to Reinstate More State Oversight of Project Water Quality Impacts

Abstract

June 3, 2022 James Leggate KEYWORDS American Petroleum Institute / Clean Water Act / Earthjustice / EPA Order Reprints No Comments The U.S. Environmental Protection Agency is moving to revise a rule in an effort to give states and tribes more authority to protect water quality, though 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 Clean Water Act 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. Under section 401 of the Clean Water Act, a federal agency considering issuing a permit needs the state, territory or tribe 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 the tribes and environmental groups that challenged the Trump-era rule, but criticism from some of the groups that had pushed to reinstate that rule 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. Robin Rorick, vice president of midstream policy at the American Petroleum Institute, which was one of the groups supporting the Trump-era rule, said in a statement that the group supports the Clean Water Act but is concerned the EPA's move "Would counteract the well-defined timeline and review process enacted by Congress," potentially adding delays to the permitting process.