The Clean Water Act Is At Risk

The Clean Water Act Protects The Role of the States in Resource Management


At the core of the A.T.’s success as a National Scenic Trail is the cooperative management system, which respects the role of different governments, agencies, Clubs, and ATC in ensuring that the A.T. is protected forever, for all. Just like the cooperative management system, many natural resource laws are structured so that entities with the right knowledge and experience are responsible for different parts of protection and operation. The Clean Water Act is one of those such laws. Section 401 of the Clean Water Act mandates that any permit or license for infrastructure as varied as natural gas pipelines to sewage treatment plants must receive a certification from the state so the infrastructure does not injure water quality. Section 401 is a critical tool for our state cooperative management partners to protect the A.T. Landscape and conserve lands and waters for habitation and recreation.

Unfortunately, the U.S. Environmental Protection Agency’s (EPA) is currently seeking to limit the ability of states to fulfil their Congressionally mandated role in overseeing everything from pipeline construction to protecting sources of drinking water. Let your Members of Congress know that you understand how important the Clean Water Act is to keeping real people involved in decision-making.

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The Clean Water Act was enacted into law in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” In order to make sure that decisions with large local impacts weren’t solely dictated by people in faraway D.C., a requirement was put into the Clean Water Act that for any major infrastructure that could discharge pollutants into a navigable waters (or would feed into navigable waters), a state-level certification would need to be obtained. This part of the law, Section 401, allows states to insert state laws into federal permits and licenses — and prohibits the federal government from ignoring them. Every pipeline, dam, and wastewater discharger operated since 1972 has required a state-level 401 Water Quality Certification.

How the EPA is Cutting States Out of Decision Making:

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Limiting Time to Review Applications

The Clean Water Act gives states and tribes a reasonable amount of time, not to exceed one year, to evaluate applications for a Clean Water Act Certification. Unfortunately, many applicants for infrastructure, such as pipelines, submit their applications before they have all the information that the state and federal government need to present a scientifically based and legally defensible set of conditions to protect local cultural, historical, natural, and recreational resources. By eliminating the ability of states to request an application be withdrawn and resubmitted with the necessary information — as well as centrally determining at EPA what a “reasonable” amount of time is — the EPA is looking to turn the 401 Certification process into a rubber stamp.

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Restricting the Scope of Review

The proposed rule declares that states may only consider the information that the federal agency believes is relevant, rather than the information the state believes is relevant. By removing the ability of the states to solicit necessary information from developers, power is further centralized in Washington, D.C. and the concerns of local communities are ignored. The Federal Energy Regulatory Commission (FERC), which is in charge of approving interstate energy infrastructure like pipelines, will not consider the impact to the local recreational economy, such as scenic views or visitor access. And if states can’t consider those things, no one will.

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Giving the Federal Government the Final Word

As if limiting the types of information states may consider and the amount of time they have to consider them isn’t enough, the proposed rule does what litigation has been unable to accomplish for the nearly fifty-year history of the Clean Water Act — it gives the federal agency issuing the permit or license the ability to remove a condition it doesn’t believe is within the scope of the Act. Empowering the EPA or FERC or the Army Corps to delete entire sections of a state’s Water Quality Certification isolates the true oversight in the federal government: which is exactly what Section 401 was enacted to prevent.

Section 401 has been cited by the Supreme Court as a model of “cooperative federalism,” or the federal and state governments working together, rather than against each other. The idea of cooperative federalism is very familiar to those of us on the A.T., where our system of cooperative management is ingrained in everything we do. Making a fundamental change today to what states and tribes are able to consider in their Water Quality Certifications runs the real risk of preventing substantive review of community and public health impacts resulting from major infrastructure development.

As the current system has been in place for nearly fifty years, by limiting the amount of time states have and limiting the information they can make decisions off of, states and local communities may simply be ignored. The only community engagement necessary will be visits to D.C., to make sure bureaucrats at the Federal Energy Regulatory Commission, Army Corps of Engineers, and Environmental Protection Agency are consulted. Those are all long-distance calls.

The proposed Clean Water Act Section 401 regulations redistribute power so that state governments, which represent local communities, can be gamed by developers and industry insiders. Restricting their ability to collect information and make thoughtful decisions based on local needs does not serve the public good.