By John McFerrin

For activities which cross or result in a discharge into streams and wetlands, builders must have a permit pursuant to the Clean Water Act.  Even if the permit is issued by a federal agency, federal agencies cannot authorize projects in a state unless that state certifies (called a 401 Certification) that the project will not violate state water quality standards.

Now the Environmental Protection Agency has issued a new rule which restricts the authority of the states to restrict activities which will occur in those states.

For an explanation of the changes, we turn to an opinion piece published in The Hill by Jim Murphy:

The new rule undermines states and tribes authorities to protect their waters in the several key ways.

First, the rule restricts the period of time that states and tribes have to analyze proposed projects. It gives the federal agencies wide latitude to put tight time limits on states or tribes to examine complex issues. It gives states no longer than a year to make a decision and in many cases it will be much less time.

Paired with this, the rule changes effectively allows the applicant – the pipeline company or the mining firm, for example – to determine when the clock starts ticking. This will incentivize applicants to provide as little information as they can get away with and then start the process, requiring the states and tribes to spend their limited time trying to gather the information they need. If the state or tribe can’t act in time, certification authority is waived and the applicant can move ahead regardless of state or tribal concerns.

The rule also thumbs its nose at two Supreme Court decisions, seeking to effectively overturn them. First, the rule limits the scope of review to projects that result in discharges from “point sources.” However, the Supreme Court’s unanimous 2006 opinion, S.D. Warren v Maine, found that state and tribal authority to review projects that affect water quality is broader than that.

This has real world impact. Some projects, like dams, affect water quality downstream, but are not considered “point sources” under the law. The Supreme Court has said dam relicensing is subject to state and tribal review even though they are not point sources. In 2018, Maryland certified the relicensing of a major hydropower dam but required the operator to address pollution issues and to manage the dam in a way that allows migrating fish easier access to spawning areas upstream. But the new rule could block states from reviewing major projects like dam relicensing.

The rule also takes a swipe at a 1994 Supreme Court decision, PUD No. 1 v. Washington, where Justice O’Connor’s majority opinion found that the Clean Water Act allows states and tribes to place limits or conditions on the entire proposed activity associated with constructing the dam, mine, pipeline or other project, not just the materials that would be intentionally dumped in the water.

The new rule limits the scope of review so that states and tribes cannot look at the ways the overall operation of an activity like a pipeline or mine or dam could pollute or degrade waters. This could undercut states’ abilities to make sure a dam is operated in a way that provides enough water for fish or pipeline measures to protect communities against oil spills. In the case of the Millennium Bulk Coal terminal, under the new rule, Washington State likely could not have considered the impacts of increased ship traffic on salmon. For an open-pit mine, the state or tribe might not be able to consider the impacts of toxic dust or runoff on water quality.

Finally, the rule gives federal agencies the power to effectively overrule or ignore state or tribal decisions they disagree with. This is an expansion of federal power that clearly defies the intent of the Clean Water Act.

Rules do not just spring from the forehead of some bureaucrat for no reason.  Something has to motivate them.  In this case, New York and Oregon had used the authority granted by Section 401 to block pipelines.  Washington State had used the authority to block a coal export terminal.  States’ rights are fine until they interfere with something the EPA wants to do.

While the changes may make a difference in some states, in West Virginia it may not make any difference.  When a Clean Water Act certification for the Mountain Valley Pipeline were being considered in late 2017, West Virginia waived its right to make comments or place restrictions upon it to protect West Virginia’s waters. (The Highlands Voice, December 2017).  At the time Department of Environmental Protection Secretary Austin Caperton said, “We feel very comfortable that this pipeline can be installed in an environmentally sound manner and that the environmental impacts ultimately will be zero.”  The next month West Virginia punted again on the Atlantic Coast Pipeline. (The Highlands Voice, January, 2018).

            Virginia was not as compliant as was West Virginia.  It actually did a review of the permit for the Atlantic Coast Pipeline and included some conditions in some parts of the project.

Note:  Jim Murphy is senior counsel for the National Wildlife Federation’s Climate and Energy Program. He is also an assistant professor of law at Vermont Law School and the director of the law school’s Environmental Advocacy Clinic, which represents the Federation.