Trump administration proposal threatens ability of states, tribes, and local communities to protect clean water, SELC says to EPA

WASHINGTON — The Southern Environmental Law Center today warned EPA that its proposed rule regarding Section 401 of the Clean Water Act cuts states, tribes, and local communities’ ability to protect drinking water, rivers, streams, wetlands, and wildlife harmed by large federally permitted projects. SELC and 99 other organizations from across the country submitted comments to EPA that urged it to abandon the proposed rule. The administration’s proposal would make it harder for states and tribes to protect local water quality threatened by large projects, including data centers, hydropower dams, and new highways.

“This harmful proposal jeopardizes water resources important to states and tribes,” said Patrick Hunter, senior attorney at the Southern Environmental Law Center. “The Trump administration seeks to slash the ability of states and tribes to protect local waterways and drinking water sources threatened by large, federally permitted projects. In addition to jeopardizing communities’ clean water, the Trump administration’s new rulemaking wastes agency resources and public taxpayer dollars. It is an ideological solution in search of a problem.”  

EPA nowhere points to problems with the existing rule that justify its new rulemaking. Worse, this rulemaking violates the Clean Water Act, Administrative Procedure Act, and binding Supreme Court precedent. By enabling increased pollution of our streams, rivers, lakes, and wetlands, it will ultimately increase the costs borne by ordinary Americans and their communities, businesses, and local and state governments, while damaging economically, culturally, and recreationally important resources. The overwhelming public response to the administration’s solicitation of examples of problematic application of the current rule was to ask EPA to leave the current rule in place.

SELC’s comments point out that despite the rhetoric from industry and the administration about the purported need for faster project approvals, the proposed rule leaves in place the existing time period to act on Section 401 certification requests. The proposed rule also will not result in fewer certification denials—only 0.8% of projects have been denied Section 401 certification under the existing rule. In fact, the Trump administration’s proposed rule risks increasing the number of denials as certifying authorities are left with fewer options to address pollution from proposed federally licensed and permitted projects.

The ability of states and tribes to protect water quality under Section 401 of the Clean Water Act had been in place since the 1970s, but it was curtailed severely under the first Trump administration before being restored in significant part by the Biden administration. Section 401 is intended to ensure that communities have a voice in federal projects and that local water quality concerns are not trampled by federal regulators. Upending decades of regulatory stability, EPA’s proposed rule is its third rulemaking regarding Section 401 of the Clean Water Act in six years.