Few issues are more critical to Trout Unlimted’s mission than clean water. With recent actions by the Administration to weaken protections, we are facing one of the greatest threats to the Clean Water Act in its long and effective history. While we await publication of final rules to repeal and replace the Clean Water Rule, EPA has launched an additional assault on the Clean Water Act, this time taking aim at the authority of States and Tribes to protect water resources through the Section 401 water quality certification process.
The proposed rule would vastly undercut state and tribal authority to protect coldwater resources.
In issuing this proposal, the EPA rejects decades of administrative practice and directly defies numerous judicial interpretations, including at least two Supreme Court rulings.
About the proposal:
On August 8, 2019, the US EPA announced plans to issue a proposed rule revising revise regulations related to Section 401 of the Clean Water Act, a tool used by states and tribes to protect state and tribal resources from impacts of federally permitted development. The proposed rule would modify existing practices to dramatically limit the authority of states and tribes to protect coldwater resources.
The proposed rule was officially published on August 22nd. A summary of key elements is included below.
TU will engage on all fronts to defend and support the CWA Section 401 program, an essential tool for protecting coldwater resources.
How this impacts coldwater fisheries:
CWA Section 401 grants states and tribes the right to review and certify projects that will result impact water quality through discharge of pollutants. This includes small projects, and also large, interstate energy and infrastructure projects. Unless the state issues (or waives) a 401 permit, a federal agency may not issue a permit for the proposed activity.
The proposed rule would curb this authority by limiting the timeline for review as well as narrowing scope of issues that states can review or include as conditions on a permit. Here’s an example of how the State of Oregon exercised their 401 authority to protect salmon and steelhead fisheries.
Ensuring a strong 401 certification process is essential to Trout Unlimted’s mission as this is among the most critical tools for ensuring that proposed projects are designed and implemented in a manner that protects the coldwater resources that Trout Unlimited cares about.
What comes next and how you can help:
Public Hearings: EPA will hold a public hearing in Salt Lake City on Thursday, September 5 and Friday, September 6, 2019 to accept initial feedback on the proposed rulemaking. If you are unable to attend the public hearing, but would like to submit comments in writing, you can do so using the online rulemaking portal (comment here). Comments are due September 6th. Note: This is not the only opportunity to comment (see “official 60-day comment period,” below).
Official 60-day comment period: Publication of the proposed rule triggers a 60-day comment period. Comments are due October 21st. TU staff will work with volunteer leaders to provide talking points, templates or other assistance in submitting comments. Please check back for updates.
A short overview of key takeaways from the proposal is included below. Trout Unlimited staff will review and offer substantive comments on the proposed rule. TU Councils and Chapters are encouraged to coordinate with the Government Affairs team to share project examples, ask questions, and to help ensure we are as effective as possible across the TU family.
This proposed rulemaking follows on the heels of EPA guidance issued on June 7th. Both actions are in response to directives in Executive Order 13868 (April 10, 2019), “Promoting Energy Infrastructure and Economic Growth.” The proposed rule, consistent with the guidance issued last month, seeks to streamline the process for constructing new energy infrastructure projects (eg: hydropower, pipelines, and more) by limiting the scope and timeline for review.
- Timeline: Restricted timeframes for agency review. One year from date of request, regardless of whether the application is deficient or requires additional study.
- Scope: limitations on the scope of what states/tribes can (1) consider in evaluating 401 applications; and (2) include as conditions to 401 certifications. Currently, 401 certifications are used to ensure such critical provisions as fish passage, minimum instream flows, and other mitigation needs to protect state and tribal resources. The proposed rule would put these protections at risk.
- Federal Override of State/Tribal decision: if the federal permitting agency decides the state or tribal certification is not consistent with the new restrictive guidelines, the federal agency can override or reject the conditions. There is no requirement that states or tribes be given an opportunity to revise or correct any disputed conditions.
- Applicability: Executive Order specified that EPA regs will be used as the template for other agencies.
- Connection to the Clean Water Rule: The new 401 rule would only allow states and tribes to review and place conditions on projects that discharge into “waters of the U.S.” Earlier this year, the Administration began a rulemaking process to narrow the definition of “waters of the U.S.” to exclude many wetlands and smaller streams that have historically been protected under the Act. If approved, these two rules in combination would eliminate state and tribal authority to protect waters and wetlands from development, removing them from the equation all together.