EPA Warns States Against Using Clean Water Act as 'Weapon'

Environment attorney Jeff Porter was interviewed for a Bloomberg Law article about a recent memo from the U.S. Environmental Protection Agency (EPA) regarding states' use of the Clean Water Act (CWA) to deny permits for fossil fuel projects. The Biden Administration promulgated a rule implementing CWA Section 401 and governing projects that could pollute waters of the United States (WOTUS). The Trump Administration has not rescinded the rule, but the memo clarifies EPA's stance that states relying on Section 401 must cites its statutory purpose of protecting water quality when evaluating certification of a project. Air quality, traffic and economic impacts are cited as examples of reasons that go beyond the statute's scope. Mr. Porter commented that the memo alone, as nonbinding guidance, will probably not be effective, saying EPA will need to issue a new rule to change states' processes.

"The Biden Administration EPA did what it did by a regulation, and it is likely going to take a regulation to meaningfully undo it," he explained. A new regulation "will likely streamline the additional certification steps imposed on would-be permittees by the Biden Administration EPA regulation, and could narrow the bases upon which a state or Tribe can withhold its certification."

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