Earthjustice Applauds EPA’s Move to Recognize State and Tribal Authority Under Clean Water Act

EPA’s final rule corrects a Trump era rollback and brings clarity to state and Tribal authority to protect water quality


Alexandria Trimble,

Today, the Environmental Protection Agency (EPA) finalized a rule interpreting Section 401 of the Clean Water Act to reiterate Tribes and states’ authority to protect their water quality. In response, Moneen Nasmith, senior attorney at Earthjustice, released the statement below:

“We applaud the Biden administration for confirming the authority Congress intended states and Tribes to have when considering projects that could harm their water quality. This rule will help end the regulatory chaos states and Tribes have operated under during attempts to coopt Section 401 to serve the interests of the fossil fuel industry. Now, state and Tribal authorities can much more confidently exercise their authority to review and reject or condition projects that threaten their region’s water quality.”

To protect water quality, Section 401 of the Clean Water Act creates a state-tribal-federal partnership, giving individual states and some Tribes the ability to review the impacts of federally-licensed projects, like oil and gas pipelines, on waterways and wetlands within their borders.

In 2020 under the Trump administration, EPA finalized a rule that significantly altered past interpretations of Section 401 and attempted to substantially limit states and tribes’ authority to reject projects that would harm their waterways and health.

Earthjustice represented three tribes and two environmental organizations in a lawsuit against the Trump rollback, which made its way to the Supreme Court. In April 2022, the Supreme Court reinstated the Trump rule while the U.S. 9th Circuit of Appeals heard the case — a decision made without explanation and over the objection of four justices. The 9th Circuit later sided with the Supreme Court, overturning the district court’s decision to vacate the Trump rollback on procedural grounds and remanding back to the district court for further proceedings, which were stayed, pending EPA’s issuance of the final rule.

Once the Biden administration’s EPA rule takes effect, the unlawful Trump era rollback will no longer apply to projects.

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