The U.S. EPA on June 2 unveiled a proposal that would strengthen state and tribal authority to block projects like pipelines, highways, export terminals, and dams over Clean Water Act (CWA) concerns, saying the power had been improperly restricted by the Trump administration.
The proposed rule expands the power of states, territories, and tribes to grant or deny water quality certificates under Section 401 of the CWA. EPA said the prosed rule is part of the regulatory process announced in May 2021 to revise the 2020 CWA Section 401 Certification Rule, and would be more consistent with the statutory text of the 1972 CWA.
“For 50 years, the Clean Water Act has protected water resources that are essential to thriving communities, vibrant ecosystems, and sustainable economic growth,” said EPA Administrator Michael S. Regan. “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.”
Under the Biden administration’s proposal, a state would be allowed to determine whether “any aspect” of an entire federally-licensed pipeline or other project will comply with its water quality standards and then deny certification of the project within state borders if it chooses. States and tribes would also be able to waive certification, grant it, or do so with conditions.
If finalized, the EPA’s proposed Water Quality Certification Improvement Rule would scrap the Trump administration’s 2020 CWA 401 Certification Rule, which curtailed states’ ability to object to infrastructure projects. The rule remains in effect and has resulted in a cascade of litigation that reached the U.S. Supreme Court earlier this year, Bloomberg Law reported.
The EPA is accepting comments on the proposed rule for 60 days beginning on the date it is published in the Federal Register.