EPA proposes rescinding Trump’s controversial water permit policy

The EPA today proposed a rule that would reshape state and tribal permit reviews under the Clean Water Act, reversing a Trump-era policy that has rocked Capitol Hill, industry and environmental groups.

The proposed rule establishes a process under Section 401 of the Act by which developers of pipelines, power lines, mines and other projects apply for federal permits to discharge into waterways and regulated wetlands.

For the first time, EPA’s proposal allows states and tribes to participate in defining a “reasonable time” to conduct such reviews – an issue that has sparked political fights in the past – and restore the flexibility on what states and tribes consider when reviewing claims, says EPA fact sheet.

EPA Administrator Michael Regan said the proposal would align the review process with the Clean Water Act while restoring a “broader and more environmentally protective scope of review” under the Act. 401.

“For 50 years, the Clean Water Act has protected water resources that are essential to thriving communities, vibrant ecosystems and sustainable economic growth,” Regan said in a statement. “The EPA’s proposed rule builds on that foundation by empowering states, territories, and tribes to use the authority granted by Congress to protect precious water resources while supporting much-needed infrastructure projects that create jobs and strengthen our economy.”

Environmental groups and Democrats applauded the proposal, which is now open for 60 days of public comment.

“The Clean Water Act very clearly gives states, territories and tribes the ability to protect the quality of their water when projects are permitted or authorized, said Senate Environment and Public Works Chairman Tom Carper (D-Del.).

New Mexico Governor Michelle Lujan Grisham (D) also welcomed the proposed rule, saying it would allow states, territories and tribes to protect their water resources “as they see fit”. She applauded EPA’s “collaborative approach to ensuring that our state and federal partnership on this important issue leads to improved water quality for ecosystems, cultural uses, and continued economic growth.”

Karen Harbert, president and CEO of the American Gas Association, said the group is concerned that Biden’s proposal may stray too far from what Congress intended when it passed the Clean Water Act and n increase the cost of energy infrastructure.

“It shouldn’t take longer to get permits and approvals for a pipeline than it does to build one,” Herbert said in a statement. “A few states have abused their authority under Section 401 of the Clean Water Act to try to block projects they dislike for unrelated reasons. They concocted non-water quality objections and took over a year to review.

“Restore some of the discretion”

The proposal appears to expand the scope of what states and tribes can consider when reviewing permit applications and relaxes strict deadlines that would have been imposed under the Trump administration.

Under the Biden administration’s proposal, for example, developers could request a meeting with regulators a month before applying for a permit, a decision that could lead to early coordination. The proposed rule also sets out what applicants would need to show to apply for a permit.

And the proposal allows states and tribes to participate in determining what constitutes a “reasonable period of time” to review the application for certification, a clock that starts ticking when states or tribes receive an application for a developer permit.

Under Section 401 of the Clean Water Act, states and tribes have one year to issue their certifications before they are considered to have relinquished their authority, but sometimes that time is exceeded.

By comparison, Trump-era regulations attempted to keep states and tribes within the one-year time limit for exams.

The EPA proposal also specifies that when states, tribes or territories receive an application for certification, they can verify “whether the activity as a whole will comply with water quality requirements, which include laws state or tribal rights related to water quality”.

The EPA said such an approach would allow “a certification authority to comprehensively assess the water quality impacts of a federally licensed or licensed project.”

“Certification authorities may assess the impacts of any aspect of project activity that may affect water quality,” the EPA wrote. “This approach restores the broader, more environmentally protective scope that the Supreme Court affirmed in 1994.

Ben Cowan, a Houston-based environmental lawyer at Locke Lord LLP who works with major pipeline and energy projects, said that while the 60-day default period is important, it appears certification authorities will be in able to negotiate extensions and he expects this EPA to be flexible.

“The Biden EPA restores some of the discretion of certification authorities that the Trump rule had limited by imposing a one-year deadline and limiting the scope of their review,” he said. “It provides more definition to the process, which could be helpful, but it gives CAs the ability to look at projects more broadly.”

Legal control

The debate over Section 401 of the Clean Water Act made its way to the Supreme Court earlier this year after Republican-led states asked judges to overturn a federal judge’s decision that had blocked the rule Trump while the Biden administration worked to replace her.

In a short order issued through the Supreme Court’s emergency roll, five members of the conservative wing agreed to revive the Trump rule, which dismantled about 50 years of precedent for how states, tribes and the federal government had addressed water quality certifications. They did not explain their reasoning (green wireApril 6).

Four justices made their frustrations known, with Chief Justice John Roberts joining in dissenting Justice Elena Kagan denouncing the order as an abuse of the court’s emergency – or “shadow” – role.

The underlying question of the legality of the Trump rule now rests with the 9th U.S. Circuit Court of Appeals, which is considering whether Senior Judge William Alsup of the U.S. District Court for the Northern District of California erred last year when he concluded that the settlement violated decades of Supreme Court precedent.

Alsup, a Clinton appointee, cited the 1994 court ruling in Jefferson County Public Utility District No. 1 v. Washington Department of Ecologywho said states could require federally approved hydroelectric projects to maintain minimum stream flow, even though this issue is not directly addressed in the Clean Water Act (green wireOctober 25, 2021).

The EPA referenced this decision in its fact sheet today.

“This approach restores the broader, more environmentally protective scope that the Supreme Court affirmed in 1994,” the agency wrote.

The issue of the timing of state and tribal water certifications has also come under legal scrutiny.

In a 2019 case, for example, the United States Court of Appeals for the District of Columbia Circuit faulted California and Oregon for engaging in a program to reset the clock on dam permit renewal approvals, rather than handing over the decision to the Federal Energy Regulatory Commission. (green wireJanuary 25, 2019).

The Supreme Court later declined to review the DC Circuit’s decision.

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