EPA issues final rule strengthening CWA water protections

A final rule aimed at supporting clean, efficient, timely, water quality reviews of infrastructure and development projects key to economic growth has been announced by Environmental Protection Agency Administrator Michael Regan.

“To achieve this goal, we must protect our water resources while also making investments that move our nation forward. With EPA’s final Clean Water Act (CWA) Section 401 rule, we are affirming the authority of states, territories, and tribes to protect precious water resources while advancing federally permitted projects in a transparent, timely, and predictable way,” Regan said on Thursday, Sept. 14.

Regan said in an interview with the Associated Press at the start of a four-day tour of Alaska in late August, that he fully supports the EPA’s decision to block the Pebble Mine. Pebble Mine is a proposed copper, gold, and molybdenum mine abutting the headwaters of the Bristol Bay watershed in Southwest Alaska.

“Let me be clear, we are very proud of our decision to really evaluate the Pebble Mine project and do what is necessary to protect Bristol Bay,” Regan said.

In January the EPA vetoed the proposed mine, citing concerns over potential impact of mine waters on the Bristol Bay watershed. The state of Alaska began litigation in the U.S. Supreme Court, arguing that the EPA order strikes at the heart of Alaska’s sovereignty and deprives the state the power to regulate its lands and waters. The matter is under review by the Justice Department and the EPA, according to Regan.

“The Clean Water Act has been a valuable tool for states to protect their waters,” said Ben Grumbles, executive director of the Environmental Council of States. “We appreciate EPA’s renewed engagement under section 401 and will continue to strive for regulatory partnerships that safeguard states’ rights and clean water.”

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The EPA said that the final rule strengthens the foundation of the CWA, while recognizing the essential partnership among the federal government, states, territories, and tribes in protecting these waters.

CWA section 401 allows states, territories and authorized tribes to protect their water quality from adverse impacts of construction or operation of federally permitted projects. Under section 401 of the act, a federal agency may not issue a license or permit to conduct activities that may result in any discharge into a water of the United States, unless the appropriate state, territory or authorized tribe issues a CWA Section 401 water quality certification or waives certification.

The rule realigns the scope of Section 401 certification with decades of established practice, and restores and strengthens the role of states, territories and authorized tribes, the EPA said.

The rule also enhances certification review and provides regulatory certainty to advance federally permitted projects, and a one-year maximum timeframe for certification review.

The rule notes that states, territories and tribes may only consider the adverse water quality-impacts from the activity. To limit delays, the rule also provides a clear approach to defining the required contents in a request for certification, the EPA said.

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