Outdoor Recreation and Conservation Advocates Challenge EPA Rule Granting Industry Priority Over State, Public in Clean Water Decisions

Citing breathtaking levels of overreach, conservation, fishing, and paddling advocates today filed a complaint in federal court challenging the Environmental Protection Agency’s (EPA) final rule effectively sidelining the role the states and the public have long played in permitting decisions affecting clean water.

“With this rule change, the Trump administration has given corporations the green light to run roughshod over local communities, and has proven it is more interested in corporate rights than states’ rights,” said Andrew Hawley, attorney at the Western Environmental Law Center. “The judicial branch must intervene to preserve some semblance of balance in our nation. What an opportunity for the courts here: To stop this flagrant overreach steamrolling states and Tribes while preserving an essential public health and clean water protection.”

The new rule guts the Clean Water Act’s Section 401 provisions, which for nearly 50 years have provided for states’ and authorized Tribes’ self-determination in permitting for a wide array of projects requiring federal approval within their borders. The rule also suppresses state and Tribal public participation processes that moor U.S. water policy in the harbor of democracy.

"Now is not the time to be rolling back protections for our rivers and clean water," said Chris Williams, senior vice president for conservation at American Rivers. "We need to be doing more, not less, to ensure healthy rivers can provide clean drinking water and support strong communities and local economies. The Trump administration’s unlawful new 401 rules abandon the Clean Water Act’s commitment to providing a voice for Tribes, states, and communities in how their rivers and streams are protected and managed, allowing potentially harmful projects to escape critical local review. We must protect the rights of states and Tribes to defend clean water safeguards."

“The rule changes will have a long-term and devastating effect on California’s ability to manage its clean water resources,” said Redgie Collins, staff attorney at California Trout. “Unless changed, this gives hydroelectric dam operators the ability to skirt State Water Board regulations that protect the health, safety, and welfare of all Californians.”

This rule change is separate from rollbacks to the Waters of the U.S. Rule (WOTUS), which eliminates protections for many waterbodies throughout the country, but represents an equally dangerous threat to clean water and public health nationwide: Section 401 applies broadly to any proposed federally licensed or permitted activity that may result in a discharge into any waterway that is covered under the law. Projects that may be approved against states’ and Tribes’ wishes include pipelines, hydropower, industrial plants, municipal facilities, and wetland development.

Working in combination, the Section 401 and WOTUS rollbacks will make it virtually impossible for states, Tribes, and communities to stand in opposition to projects that will pollute and harm their rivers, streams, lakes, and wetlands. 

Further, the new rule limits the information on proposed projects that may be made available to the states, Tribes, and the public.

"These new regulations are a brazen attack on the Clean Water Act with the goal of undermining the public’s ability to protect our rivers from harmful impacts of federally-licensed energy projects on the environment and outdoor recreation," said Bob Nasdor, American Whitewater legal director. “Rather than protecting and restoring our rivers, these rules will weaken water quality by limiting the information, time for review, and ability of the states to require that projects meet state standards.”

“Under the cover of COVID-19, the Trump administration has again stripped one of our bedrock environmental laws and is giving extractive and polluting industries the power to dictate their own pollutant levels in our rivers, lakes, and wetlands, all in the name of profit,” said Nic Nelson of Idaho Rivers United. “By effectively silencing public review and participation processes for these projects, they will have equally degraded our basic rights of democracy.”

The new rule, finalized without Congressional input, directly overturns Congress’ intent to integrate state and federal authority for permitting decisions affecting state waterways.

Letters (public comments) from states, Tribes, and organizations opposing Section 401 rollbacks:

Opposition Letter: State of South Dakota (scathing)

October 21, 2019

https://pdfhost.io/v/v.mLY3z2d_20191021South_Dakota_CWA_401_commentspdf.pdf

Opposition Letter: State of Arkansas

October 21, 2019

https://pdfhost.io/v/5RTbsrt8~_AR_401_Commentspdf.pdf

Opposition Letter: State of California

October 21, 2019

https://pdfhost.io/v/F1zojtGKa_20191021_Ltr_to_A_Wheeler_re_SWRCB

Opposition Letter: Confederated Tribes and Bands of the Yakama Nation

October 21, 2019

https://pdfhost.io/v/FoaQ2zvAh_20191021Yakama_Nation_Section_401_Commentspdf.pdf

Opposition Letter: Inter Tribal Association of Arizona

October 21, 2019

https://pdfhost.io/v/.jk5nJ1oK_InterTribal_Assn_of_AZ_401_Commentspdf.pdf

Opposition Letter: State of Idaho

October 21, 2019

https://pdfhost.io/v/kZlX31CB7_ID_401_Commentspdf.pdf

Opposition Letter: State of Louisiana

October 19, 2019

https://pdfhost.io/v/F52ivsrg._LA_401_Commentspdf.pdf

Opposition Letter: Menominee Indian Tribe of Wisconsin

October 22, 2019

https://pdfhost.io/v/UTuKpy6FF_Menominee_Tribe_401_Commentspdf.pdf

Opposition Letter: State of Montana

October 17, 2019

https://pdfhost.io/v/SnoPVhxYj_MT_401_rule_Commentspdf.pdf

Opposition Letter: State of Nevada

October 17, 2019

https://pdfhost.io/v/0BeC6MkzI_NV_401_Rule_Commentspdf.pdf

Opposition Letter: State of New York

October 21, 2019

https://pdfhost.io/v/c0.jrsYs~_NY_401_Commentspdf.pdf

Opposition Letter: State of Pennsylvania

October 21, 2019

https://pdfhost.io/v/Q9h7qFprp_PA_Comments_on_401_rulepdf.pdf

Opposition Letter: Seattle City Light

October 21, 2019

https://pdfhost.io/v/XDTlaYaTh_Seattle_City_Light_401_Commentspdf.pdf

Opposition Letter: Skokomish Indian Tribe

October 20, 2019

https://pdfhost.io/v/NKCE.ps4l_20191020Skokomish_Tribe_Section_401_Commentspdf.pdf

Opposition Letter: Standing Rock Sioux

October 21, 2019

https://pdfhost.io/v/67Ar2EyV8_Standing_Rock_Sioux_401_Commentspdf.pdf

Opposition Letter: State of Tennessee

October 21, 2019

https://pdfhost.io/v/e7PdQltny_TN_401_Commentspdf.pdf

Opposition Letter: State of Texas

October, 2019

https://pdfhost.io/v/SS5mPC48m_TX_401_commentspdf.pdf

Opposition Letter: Twenty-Nine Palms Band of Mission Indians

October 14, 2019

https://pdfhost.io/v/hiNTrBCKr_Twenty_Nine_Palms_Band_401_Commentspdf.pdf

Opposition Letter: State of Washington

May 24, 2019

https://pdfhost.io/v/21GYgD4xa_WA_401_Commentspdf.pdf

Opposition Letter: National Governors’ Association

October 18, 2019

https://www.nga.org/policy-communications/letters-nga/natural-resources-committee/

letter-regarding-the-environmental-protection-agencys-proposed-rule-updating-regulations-on-water-quality-certification/

Opposition Letter: Western Governors’ Association, National Conference of State Legislatures, National Association of Counties, National League of Cities, U.S. Conference of Mayors, Council of State Governments, Western Interstate Region, Association of Clean Water Administrators, Association of State Floodplain Managers, Association of State Wetland Managers, Western States Water Council

October 16, 2019

https://www.ncsl.org/Portals/1/Documents/standcomm/scnri/EPA_NPRM_CWA_401_Comments_FINAL.pdf?ver=2019-10-17-150909-880&timestamp=1571346568787

Opposition Letter: Earthjustice, Sierra Club, and 31 other organizations

October 21, 2019

https://www.sierraclub.org/sites/www.sierraclub.org/files

Opposition Letter: Sens. Carper, Duckworth, and Booker

October 21, 2019

https://www.epw.senate.gov/public/index.cfm/2019/10/carper-duckworth-and-booker-epa-s-section-401-proposal-violates-states-rights-harms-water-quality

Opposition Letter: Southern Environmental Law Center

October 21, 2019

https://www.southernenvironment.org/uploads/words_docs/SELC_Comments_on_%E2%80%9CUpdating_Regulations_on_Water_Quality_Cer....pdf

Opposition Letter: Rep. Peter DeFazio

July 29, 2019

https://transportation.house.gov/imo/media/doc/2019-7-29%20PAD_LTR%20to%20EPA%20re%20401Certification.pdf