The Environmental Protection Agency has proposed a rule limiting the scope of state and tribal review of federal projects’ effect on water quality, a step toward preventing governors of blue states from blocking pipelines and other infrastructure for oil and natural gas.
On Tuesday, the EPA announced that it has proposed a rule to narrow Section 401 of the 1972 Clean Water Act, which allows states and tribes to review federal projects before issuing a water certification to ensure projects comply with water quality standards.
The reform could help the Trump administration pursue its agenda of ramping up fossil fuel production by preventing instances such as former Gov. Andrew Cuomo (D-NY) using the law to block the construction of natural gas pipelines that would have provided supply to New England.
In 2020, the first Trump administration restricted state and tribal oversight by focusing reviews solely on the direct effects of discharges on water quality. The Biden administration reversed this, allowing broader consideration of how the project could affect water. Now, the Trump EPA is seeking to narrow the review scope again.
“Today’s proposal restores the Clean Water Act to its intended purpose, protecting America’s water quality and ending the weaponization of the law that has been obstructing infrastructure and energy projects vital to our nation’s economy,” EPA Administrator Lee Zeldin said in a statement.
“By returning Section 401 to its clear statutory boundaries, we’re strengthening the role of state and tribal partners while ensuring environmental protections are implemented lawfully, efficiently, and consistent with congressional intent,” Zeldin added.
The EPA argued that the 2023 rule has delayed or blocked energy projects.
EPA Assistant Administrator Jessica Kramer, on a call with reporters on Tuesday, called the Biden rule “fundamentally flawed, and its inefficient and ineffective implementation issues are bad for business.”
The proposed rule would return the scope of reviews to discharges into the waters of the United States, rather than to the activity itself.
“When finalized, the scope of the state or tribe’s review would be limited to determining whether point source discharges into Waters of the United States will comply with applicable and appropriate water quality requirements,” Kramer said.
Kramer also noted that the proposal would establish procedures by defining a single list of required content for all certification requests to begin project review. It would prohibit certifying authorities from asking applicants to withdraw and resubmit a request. It would also keep the certification process within one year and set a deadline for federal agencies to hold a public hearing on a federal license or permit.
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Under the Trump administration, the EPA has also proposed limiting the definition of bodies of water subject to federal oversight by revising the definition of “Waters of the United States” under the Clean Water Act.
The agency worked with the U.S. Army Corps of Engineers, which regulates bodies of water, to write a rule that complies with the Supreme Court’s 2023 decision in Sackett v. EPA, which narrowed the scope of bodies of water subject to federal oversight.
