Now, the EPA is seeking to restore states’ authority, making it easier for local officials, including Native American tribes, to scrutinize proposals to build many highways, hydroelectric dams, shopping malls, housing developments and even wineries and breweries.
“For 50 years, the Clean Water Act has protected water resources that are essential to thriving communities, vibrant ecosystems, and sustainable economic growth,” EPA Administrator Michael Regan said in a statement. “EPA’s proposed rule builds on this foundation.”
Although the proposed rule does not explicitly target fossil-fuel infrastructure, Democrats may seek to invoke it to reduce emissions contributing to global warming. New York, for instance, once used its power under the Clean Water Act to nix a gas pipeline that it said was “inconsistent” with the state’s climate goals.
Under the Clean Water Act, the federal government cannot issue a permit for projects that may harm protected waterways without getting permission from states, territories or tribes. The new rule will give local officials more time and time when making those decisions.
The agency officials will take public comment on the proposal over the next 60 days, with plans to revise and finalize the rule after getting that feedback by the spring of next year.
The reversal will be among the latest of dozens of Trump environmental policies that President Biden’s team has overturned.
Tracking Biden’s environmental actions
But the proposed rule, on which the agency has been working for more than a year, may meet resistance from real estate developers, oil and gas operators and other business interests who have long lamented the bureaucratic hoops through which they need to jump. In the past, red tape added to the cost and risk associated with construction, leading some developers to abandon projects entirely.
And the proposal may stall Biden’s push to rebuild the nation’s crumbling infrastructure and lower energy costs if states and tribes decide to erect roadblocks to energy projects. With the price of gasoline climbing, the White House has identified curbing inflation as a top priority.
“At a time of increasing regulatory uncertainty and high energy costs, adding bureaucratic red tape is the exact opposite of what is needed,” said Robin Rorick, vice president of midstream policy at the American Petroleum Institute.
The oil and gas lobbying group is worried about the proposal mean “increasing permitting delays and allowing states to go well beyond their scope for water quality certifications,” Rorick added.
But with the dangers of rising temperatures growing, leaders in left-leaning states have turned to their authority under the Clean Water Act to block construction of more fossil-fuel infrastructure in recent years.
The state of Washington, for instance, canceled an export terminal that would have shipped coal to Asia but lead to “irreparable and unavoidable harm” to the Columbia River, according to state regulators.
Those blue-state policies earned the ire of the Trump administration. In an effort to end the construction delays, Trump, a real estate developer before entering politics, asked the EPA to help pave the way for energy infrastructure.
In 2020, the agency issued a rule putting local governments on a tight one-year timeline to make decisions and requiring state bureaucrats to consider only a narrow set of water-quality standards.
“It made it much, much harder for states to exercise their authority, which is interesting because the Trump administration was all about states’ rights — until it wasn’t,” said Mark Ryan, a lawyer who worked at the EPA on water issues for a quarter-century before entering private practice.
In response, the Biden administration plans to keep the one-year deadline in place but will give states more flexibility in determining when the clock starts. It also plans to allow local regulators to “holistically” evaluate impacts on water quality and model the effects of climate change when making certification decisions.
“The end result of this rule will be cleaner, healthier waters that benefit water quality, wildlife and our way of life,” said Jim Murphy, director of legal advocacy at the National Wildlife Federation.
The move would bring the EPA in line with a 1994 Supreme Court ruling that found states could require hydroelectric damages to maintain a minimum amount of water in rivers to sustain fish populations, an issue not directly related to water pollution.
Jon Devine, director of federal water policy at the Natural Resources Defense Council, said the Supreme Court has recognized the Clean Water Act gives states the right “to look at the entire project.”
“That’s a critical part of what’s needed in the new rule.”
Right now, the Trump administration’s water rule remains in effect. A federal district judge initially struck it down last year after more than a dozen states sued to stop it.
But in a 5-to-4 decision in April, the Supreme Court took the unusual step of reinstating the Trump-era regulation — at least temporarily — as the case makes its way through appellate court.
Sign up for the latest news about climate change, energy and the environment, delivered every Thursday