EPA Curbs State and Tribal Authority to Block Projects that Harm Waterways

The move makes it that much easier for industry to barrel risky proposals for things like oil and gas pipelines toward approval.

Workers installing markers warning of underground petroleum pipelines in the marshlands of Louisiana

Cavan/Alamy Stock Photo

Today the U.S. Environmental Protection Agency issued a rule that limits states’ and Indigenous tribes’ authority to protect the water within their own borders from federally authorized destructive projects such as oil and gas pipelines, hydropower dams, and wetland fills.

“Enforcing state and federal laws is essential to protecting critical lakes, streams, and wetlands from harmful pollutants and other threats,” says Jon Devine, director of federal water policy at NRDC. “This action undermines how our foundational environmental laws work.”

The new rule impacts Section 401 of the Clean Water Act, under which state and tribal leaders can review the risks of federally permitted projects and take steps to protect their waters. The law requires such projects to obtain state or tribal “certification” before moving forward. These certifications often impose conditions to protect water resources. Ensuring that local leaders’ authority remains intact is important, as states often have unique knowledge of the area’s conditions or stronger water protections than the federal government.

Under the latest rule, which comes in the wake of other attacks on clean water by the administration, federal agencies can now reject the decisions made by states and tribes. In addition, the rule makes the reviews themselves much more narrow in scope, making it difficult for states and tribes to factor in broad impacts on an ecosystem.

“This is a dangerous mistake,” Devine says. “It makes a mockery of this EPA’s claimed respect for ‘cooperative federalism.’”

States have exercised their authority under the Clean Water Act “efficiently, effectively, and equitably,” says the Western Governors’ Association, but developers have been trying to curtail that authority for decades, and the federal government is now siding with industry. The Trump administration has especially targeted Section 401—particularly after New York State stopped several natural gas pipelines, including the recently blocked Williams Pipeline, that threatened its water supplies.

“The federal government should be setting baseline standards,” Devine says, “while states apply and enhance them to the benefit of their unique natural resources and their residents.”

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