Restore Section 401 to the Clean Water Act - Waterkeeper

Restore Section 401 to the Clean Water Act

By: Thomas Hynes

A controversial 2020 regulation promulgated by the Trump EPA dramatically diminished state and tribal authority under Section 401 of the Clean Water Act. This misinterpretation unlawfully limits the ability of states, tribes, communities, and individual citizens to participate in the certification processes of new projects and protect their waters from pollution and degradation.

The EPA must immediately reverse this attack on the Clean Water Act. Join us in urging the EPA to fully restore state and tribal authority to protect their communities and waters from pollution. 

Section 401 is an essential part of the Clean Water Act. It arms states with the broad authority to protect water quality within their borders. It ensures that big infrastructure projects, such as pipelines, dams, and power plants, do not have devastating impacts on local waterways. Section 401 gives local governments a voice when massive projects are planned that can harm the waters communities depend on for drinking, fishing, and swimming. 

For nearly 50 years, Section 401 functioned as Congress intended, with the vast majority of water quality certifications granted by states and tribes promptly after a request, with very few outright denials. However, as of 2020, local governments and communities have been stripped of their right to safeguard their watersheds. 

But, the 2020 rollback of Clean Water Act protections was not only unnecessary, it’s also very dangerous. 

This 2020 rule was a bald-faced effort to steal authority granted by Congress to the States. It has codified draconian procedural requirements and unlawful restrictions, effectively hamstringing states and tribes, as well as communities and individuals who regularly participate in certification processes. Until this ruling is reversed, countless waterways and wetlands will be needlessly vulnerable to damage caused by projects such as dams and pipelines. 

Recently, the EPA announced that it will replace the unlawful 2020 regulation, and has scheduled public listening sessions with plans to take written comments on how the rule should be fixed.

Will you join us in urging the EPA to restore Section 401 of the Clean Water Act as it was originally intended and implemented for nearly five decades? 

Specifically, the EPA must restore the full scope of authority under Section 401, reverse the unreasonable timing provisions, and repair enforcement provisions to best ensure the public’s rights are protected. Section 401 had previously guaranteed the individual’s right to engage in the certification process. Reversing last year’s ruling will allow communities across the country to defend themselves against pollution. 

Time is of the essence. Every day that this draconian effort to greenlight fossil fuel infrastructure and other damaging projects stays on the books is another day polluters can skirt around regulations, impact the health of our communities, and impair our shared waterways. A future of clean water demands we act today!  

Contact EPA Administrator Regan today in support of this urgently needed reversal.

You can hear even more about the Section 401 Rollback from Waterkeeper Alliance’s General Counsel, Daniel Estrin here.