The Clean Water Act can get pretty technical. Here are the basics:
In 1972, the Clean Water Act was established to protect and restore our oceans, rivers, lakes, and wetlands. While the primary goal of the CWA is to stop us from using our waters to carry away waste and pollutants, the Act also sets standards to ensure that our waters can provide us drinking water, support healthy populations of fish and wildlife, and allow us to swim, fish, and boat without fear of getting sick. The Clean Water Act empowers the states and tribes to take the lead in protecting the waters within their borders. A central pillar of this authority is the ability, under Section 401 of the Act, to say “no” to any project that threatens to degrade their waters or harm the communities that depend on healthy water sources.
What the Clean Water Act Does:
- The Clean Water Act is the most effective tool we have to protect water for all Americans.
Unfortunately, this protection is under attack by the EPA with proposed changes to make it easier for the federal government to force infrastructure projects like dams and pipelines on states and Tribes by hampering their ability to carefully evaluate a project’s impacts on rivers, streams, wetlands, and other water bodies. - Section 401 is a cornerstone of the Clean Water Act.
It provides a framework for states and Tribes to work together with the federal government to ensure that their waters are protected and that federally permitted projects meet the needs of the communities where they are located. - Section 401 gives states and authorized Tribes a voice in federal licensing decisions. The Clean Water Act is a partnership. Congress recognized the importance of local control and wrote the Clean Water Act to give states, Tribes, and the public a voice in the decision-making process.
What the EPA Wants to Change:
- The EPA’s new rule removes states’ and Tribes’ ability to enforce their water quality laws. The new rule strips states and Tribes of the power to enforce protective conditions on a project, consolidating that power exclusively in the federal government. States and Tribes will just have to hope that the federal government has the willingness and resources to protect our clean water.
- The EPA’s new rule creates unnecessary, strict new deadlines that states and Tribes will struggle to meet. Strict new deadlines for action begin when the applicant submits the bare minimum amount of information on a project rather than when the state has the details it needs to make an informed decision.
- The EPA’s new rule will prevent states from requesting the information they need to make an informed decision. The new rule prevents states and Tribes from requesting certain studies under their 401 authority that are necessary to evaluate a project’s potential impacts on water quality standards and to develop appropriate measures to avoid, minimize, or mitigate those impacts.
- The EPA’s new rule illegally gives the federal government the power to impose unreasonably short timelines for review on states and authorized Tribes. The changes give the federal government the ability to impose unreasonably short deadlines that will make it impossible for states to adequately review these complex projects.
- The EPA’s new rule limits the reasons states can say “no” to a project. The new rule limits the ability of a state or Tribal agency to deny with prejudice a 401 certification, meaning that the state or Tribal agency doesn’t believe a project can be implemented in a way that will comply with state laws. This removes the option for a “final no,” allowing developers to propose and re-propose projects in perpetuity and making states powerless to stop harmful projects once and for all.
- The EPA’s new rule limits the types of protections that states and Tribes can require for projects. Currently, states can set conditions on 401 certification that protect all beneficial uses and enforce provisions of relevant state law. The new rule takes some of this authority off the table and grants the federal government power to throw out any condition it decides is outside the limited scope of review under the new rules. Never before has a federal agency had the authority to dismiss state and Tribal clean water protections.
Why It’s Important:
- The EPA rule will almost certainly reduce public participation on clean water issues. The strict and shortened timelines for state review will likely come at the expense of public participation. With less time to respond, states will likely reduce public comment periods. Additionally, by giving exclusive power to the federal government to enforce the protections in a 401 certification issued by a state or Tribe, the rule may be used to limit the public’s right to enforce these provisions.
- State water quality standards don’t just cover pollution. They include the protection of all uses of a river: agriculture, drinking water, water-related recreation such as boating and fishing, wildlife habitat, and others. Constraining the ability of states and Tribes to protect ALL uses of a river is not in the public interest.
- State water quality agencies are the only state agencies that can regulate hydropower projects. State water agencies are the only state-level entities with the ability to require protections in federal hydropower project licenses; other state agencies can only make recommendations.The new rule seizes that authority, placing it in the hands of the federal government.
- State and Tribal conditions on hydropower dams, made possible by Section 401, protect water for up to 50 years. Hydropower licenses last 30-50 years, and the review of the project’s ability to meet state and Tribal clean water standards happens only once during the term of the license. Many projects being licensed now have never had to meet state water quality protections because the last review happened before the Clean Water Act was passed.
- The EPA’s new rule will exclude many previously protected rivers and streams. The new rule excludes many previously protected rivers and streams by disqualifying from certification any discharges into state or Tribal waters, non-point source discharges, or point-source discharges into non-navigable headwater streams and wetlands. This excludes common project impacts such as erosion, sedimentation, and low stream flow that can have dramatic impacts on water quality. Often, this nonpoint source pollutant is the real cause of concern for the water bodies that are going to be affected.
- The EPA’s new rule is an enormous federal power grab. Collectively, the changes made by the new rule take authority away from states and Tribes and give it to the federal government, dismantling the clear intentions of Congress, which designed the Clean Water Act as an equal partnership between federal, state, and Tribal governments.