Waterkeepers Chesapeake Urges EPA to Fully Restore State, Tribal, and Community Rights Under the Clean Water Act’s Section 401

On August 8, 2022, Waterkeepers Chesapeake submitted comments to the U.S. Environmental Protection Agency (EPA) urging removal and replacement of regulations of the prior Administration that weakened the rights of state, tribal, and local governments to safeguard their waters against pollution from federally authorized projects. Clean Water Act Section 401 gives states and Tribes broad authority to issue certifications to protect water quality within their borders related to federally authorized projects, such as pipelines, dams, and powerplants. These projects often result in discharges that can harm the waters that communities depend on for drinking, fishing, and swimming.

The prior Administration issued regulations in 2020 that drastically weakened this important tool for the protection of water quality, effectively giving federal agencies veto authority over states and Tribes’ determinations despite clear language in the statute and despite the federal agencies’ lack of expertise. EPA’s newer proposal would eliminate some of the questionable provisions enacted in 2020 and revise others to better implement the statutory text, Congressional intent, and Supreme Court precedent. Waterkeepers Chesapeake supported EPA’s efforts to return to the cooperative federalism structure outlined in the Clean Water Act, which recognizes states primary authority to regulate water quality.

The submitted comments supported the EPA’s efforts to return to the long-standing findings that states and Tribes can consider a fuller range of potential harms to water quality when determining what requirements should be placed on a proposed project. Nonetheless, the comments also urged EPA to ensure federally approved projects that may have only non-point source discharges, which can be a significant source of water pollution, not avoid state or tribal scrutiny. The comments also supported ensuring States and Tribes have sufficient information and time to reasonably be able to evaluate the projects presented to them without running afoul of the statute’s one-year time limitation to act on certification requests. The comments further argued that allowing sufficient time to conduct the review also is needed to ensure communities can meaningfully participate in the decision-making process, especially for those disadvantaged communities that may face disproportionate environmental harms but lack resources to participate. While urging EPA to finalize the proposal as soon as possible since the unlawful 2020 regulations remain in effect, the comments urged EPA to consider environmental justice concerns as part of its final rulemaking.

The comments were joined by ShoreRivers (Miles-Wye Riverkeeper, Choptank Riverkeeper, Chester Riverkeeper and Sassafras Riverkeeper), Upper Potomac Riverkeeper, Lower Susquehanna Riverkeeper, Baltimore Harbor Waterkeeper, and Assateague Coastkeeper.