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May 28, 2020 by Katlyn Schmitt, Dave Owen

The Whittling Away of State Clean Water Act Authority

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." The executive order followed several situations in which states had declined to provide 401 certifications for fossil fuel infrastructure projects, and so its primary goal was clear: getting the states and their environmental concerns out of the way of energy infrastructure development. And while energy may have been the primary focus, section …

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May 28, 2020

The Whittling Away of State Clean Water Act Authority