The U.S. Environmental Protection Agency (EPA) plans to revise a Trump administration final rule issued last year to streamline Clean Water Act Section 401 certification, a move the Biden administration characterized as an effort to strengthen “state and Tribal authority” over review decisions.
By giving the states authority to make water quality permitting decisions for federally approved infrastructure projects, Section 401 certification has provided a regulatory pathway for states to stall natural gas pipelines. The Trump-era final rule aimed to prevent indefinitely delaying infrastructure projects cleared by agencies such as FERC.
EPA plans to “reconsider and revise” the 2020 final rule to “restore the balance of state, Tribal and federal authorities.” Starting this month, EPA is aiming to gather input from the public and stakeholders to “inform the development of a proposed regulation” on Section 401 certification.
“We have serious water challenges to address as a nation,” said EPA administrator Michael S. Regan. “I will not hesitate to correct decisions that weakened the authority of states and Tribes to protect their waters.
“We need all state, Tribal, local and federal partners working in collaboration to protect clean water, which underpins sustainable economic development and vibrant communities. Today, we take an important step to realize this commitment and reaffirm the authority of states and Tribes.”
The 2020 final rule would remain in place as the EPA develops a revised rule. The agency said it “will continue listening to states and Tribes about their concerns” over how the 2020 rule is being implemented “to evaluate potential administrative approaches to help address these near-term challenges.”
The latest EPA action follows from President Biden’s executive order issued in January on “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” The move also comes after the Senate in April cleared the way to undo a Trump-era rollback of methane emissions standards for oil and gas operators.
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