This post was originally published on Legal Planet. Reprinted with permission.
The Biden administration announced on Monday that it would not meet a February target date to issue a revised definition of federal jurisdiction under the Clean Water Act. It still plans to issue a revised definition later in the year. That sounds like a very technical issue. But it actually determines the extent to which the federal government can prevent water pollution and protect wetlands across the nation. The Biden proposal basically calls for case-by-case decisions about federal jurisdiction. It's also the latest chapter in one of the most snarled-up regulatory issue of our times.
The story begins with the 1972 passage of the Clean Water Act. The act requires permits for dredge-and-fill operations and for pollution discharges into "navigable waters." Traditionally, navigable waters were tidal waters or waterways that could be used for commercial transport. Although Congress used the traditional term, the statute eschews the traditional meaning. Instead, it defines navigable waters as "waters of the United States." It's clear that this definition is broader than the traditional definition. But how much broader?
The U.S. Supreme Court has spoken to the issue several times. The …
Earlier this month, Congress overwhelmingly passed America's Conservation Enhancement Act (ACE). The legislation's dozen-plus conservation initiatives include reauthorizations for important programs that help protect the Chesapeake Bay and wetlands across the country.
Among other provisions, the legislative package authorizes $92 million in annual funding for the U.S. Environmental Protection Agency’s (EPA) Chesapeake Bay Program through 2025, a $7 million annual increase. The program provides funding for states, local governments, and other partners to take measures that improve Bay water quality, and it also helps coordinate restoration efforts in the watershed. While Congress has appropriated funds to the program every year since it was created in 1987, its authorization expired in 2005. This reauthorization and increase in funding are a good sign for the future of Bay cleanup efforts, provided, of course, that Congress follows through with appropriations at the authorized level.
ACE also established a …
Sometime soon, EPA is expected to release its final rule limiting state and tribal authority to conduct water quality certifications under section 401 of the Clean Water Act. A water quality certification is the most important tool states have to ensure that any federally permitted project complies with state water quality protections.
States often impose conditions on such projects that are more stringent than federal requirements in order to protect drinking water and local aquatic habitat, among other reasons. The Clean Water Act also empowers states to deny certifications and stop a project from moving forward if it would still violate the state's water quality standards even after conditions are imposed.
The rulemaking was spurred by an executive order from President Trump last year. The order directed the EPA to change the 401 certification process, with an ostensible focus on "the need to promote timely Federal-State cooperation …