Tell EPA to Fully Restore State, Tribal, and Community Rights Under Section 401 of the Clean Water Act
By: Thomas Hynes
The Clean Water Act is the nation’s most effective tool to protect American waterways. An essential component of the Clean Water Act, Section 401, gives states and Tribes broad water quality certification authority to protect water quality within their borders. Section 401 gives local governments a voice in the planning of massive projects — such as pipelines, dams, and powerplants — that can harm the waters that communities depend on for drinking, fishing, and swimming.
Despite the fact that Section 401 functioned as Congress intended for nearly 50 years, the previous administration drastically weakened it in 2020. This unlawful misinterpretation stripped state, tribal, and local governments and communities of their rights to safeguard their waters against pollution from federally authorized projects.
Thankfully, the current administration is working on a new rule to reinstate these rights under the Clean Water Act.
Now is our chance to tell EPA we support fully restoring Section 401 of the Clean Water Act.
Restoring Section 401 as proposed by EPA will allow states and Tribes to consider a more full range of potential harms to water quality when determining what requirements should be placed on a proposed project. States and Tribes will also be provided with more time to reasonably be able to evaluate the projects presented to them and not have that time arbitrarily set or truncated by a federal agency with no expertise regarding water quality or conditions on-the-ground in a particular state.
While these corrections are great news, and we commend EPA for proposing them, the agency must go even further to protect clean water for American communities.
For example, under EPA’s proposal, actions that are expected to cause only nonpoint source water pollution would not trigger state/tribal review. This ignores the enormous threat that agricultural, urban, and similar nonpoint source runoff poses to waterways. The section 401 certification process should be triggered by activities that are expected to generate nonpoint source pollution.
Furthermore, the Clean Water Act gives states and Tribes a “reasonable period of time (not to exceed one year)” to meet their obligations under Section 401. How much time states and Tribes need to fulfill their Section 401 obligations should be up to states and Tribes — not federal agencies.
Finally, EPA must remember as it works to promulgate a final water quality certification rule that members of the public lean heavily upon Section 401 to protect our water resources and communities from pollution, and it is imperative for EPA to prioritize the public’s interests and rights as it considers these timeframes and processes. Many communities, including rural, frontline environmental justice, and other underserved communities, require sufficient time to participate in the certification process with whatever understanding, expertise, and resources they are able to muster. Codifying a default 60-day “reasonable period of time” for states and Tribes to act on a request for certification would do a disservice to these communities. As EPA considers appropriate and equitable processes and timeframes to codify in a final Section 401 rule, we implore the agency to prioritize the public’s rights and ability to fully and fairly participate to protect their waters and communities.
Time is of the essence. Thanks to a decision by the Supreme Court, until EPA finalizes this rule, the 2020 rule from the Trump administration remains in effect and, as a result, states and Tribes have less power to prevent heavy pollution in their waterways. We urge EPA to expeditiously finalize this rule and restore these vital protections to our waters.
Now is not the time to take half measures on protecting clean water. We need EPA to do everything in its power to keep our communities safe from pollution and harmful fossil fuel projects.