Local Waterkeepers Oppose Rollback of States’ Rights to Protect Water

Waterkeepers Chesapeake submitted comments on behalf of our 18 Waterkeepers and 209 individuals opposing the Environmental Protection Agency’s (EPA) proposed rule that strips authority away from states and tribes to fully protect their local streams and rivers from major projects, like pipelines, dams and fossil fuel export terminals. In addition, Waterkeepers Chesapeake joined 148 Waterkeepers groups from across the nation in opposing this rule.

For the past few decades, states have utilized the Clean Water Act (CWA) Section 401 to prevent federally-licensed projects, like fracked gas pipelines and relicensing dams, from negatively impacting their local water resources. Section 401 provides the only meaningful opportunity for a state or tribe to review a project and protect their own water resources by ensuring that water quality standards are met. More often than not, states and tribes will allow federally-licensed projects to move forward under Section 401, sometimes placing conditions on the project to protect waterways. In some egregious instances, a state will deny a project.

However, the EPA recently released a Proposed Rule that will strip away state authority under Section 401 of the Clean Water Act. The longstanding authority granted by the CWA for states and tribes to make water quality determinations about federally licensed projects has been backed by the courts time and time again — who better to make determinations about how a proposed multi-state or federal project will impact local water quality than the state charged with enforcing its own water quality standards?

Now, despite rhetoric about states’ rights, the EPA is making a federal power-grab to benefit powerful fossil fuels and utility interests.

The proposed rule would drastically restrict a state’s ability to consider information about the broader water quality impacts, such as erosion and sedimentation and climate change impacts, of a pipeline, dam or other major project. The proposed rule establishes unreasonable time limits for states to analyze impacts and make their decision and creates a situation where a developer could intentionally submit an incomplete application for a proposed project, then simply wait for the clock to toll so that the state’s authority is then waived. The proposed rule would provide an outsized role for federal agencies in the name of economic development and at the cost of local waterways by ignoring the clear language and intent of the Clean Water Act by giving federal agencies the ability to overrule states’ decisions.

The EPA seems to be paving a path so it can loom over the shoulders and introduce a not-so invisible hand into states and tribes Section 401 Certification decision-making process. Rather than looking in the rearview mirror for answers to today’s problems, we encourage the EPA to utilize the full breadth of scientific data and experience at their disposal and protect water quality by not forcing multi-state projects through without state or local buy-in.