Chris Tavenor, General Counsel, October 30, 2019
You’ve probably heard about the U.S. EPA’s efforts to rollback the Clean Water Rule and replace it with the Dirty Water Rule. You’ve probably heard of efforts to kill the Clean Power Plan, our country’s strongest proposal in history to combat climate change. These are important issues, and they take up a lot of press time, yet a few other proposals from the Trump Administration are just as insidious.
Under the Clean Water Act, projects which impact water quality are required to receive Water Quality Certifications, ensuring appropriate measures are taken to protect waters and take other actions necessary to further the goals of the Clean Water Act. For years, many states across the country have used this program effectively to protect rivers, lakes, and streams. At the same time, they’ve exercised their authority as states to use Water Quality Certification to further additional state interests, like improving public lands, providing public access to waterways, and constructing bike trails.
This arrangement makes sense; the federal government sets the floor for water quality protections through the Clean Water Act, while the states can go above and beyond with additional protections. Known as cooperative federalism, it’s the foundation upon which our environmental statutes were developed.
However, the Trump Administration doesn’t think states should have the right to create stronger Water Quality Certification programs.
The Trump Administration has proposed a rule to stop states from pursuing any state interest other than what it believes a state should pursue. That concept violates cooperative federalism. If a state wishes to go above and beyond the federal baseline for water quality programs, it should have the ability to do so.
More importantly, if a state wishes to condition its water quality certifications on additional state interests—like improved water access or bike trails—it should have the power to do so. States can account for the costs of water quality impacts through a variety of different methods, ensuring projects pay for the cost of their impacts to a state’s natural resources.
The U.S. EPA doesn’t want states making decisions for themselves, however. It wants to restrict states from placing any additional regulations on polluting businesses, further harming waters across the country. And this isn’t the only sneaky rule the agency is attempting to slip through regarding water quality certifications.
Many states across the country require polluters to provide “complete” applications before reviewing them. The Trump Administration wants to let polluters submit tiny amounts of information instead.
To make matters worse, the U.S. EPA argues once a polluter submits that small amount of information (much less than what a state like Ohio would consider a “complete” application), it can wait a year, not submit any additional information, and have its request granted. That practice would spell disaster for water quality programs across the country.
The Ohio Environmental Council submitted comments on October 21st opposing the U.S. EPA’s proposed rule: Comments of the Ohio Environmental Council Regarding the U.S. EPA’s Proposed Updates to Water Quality Certification Regulations (1). We’ll continue watching for every threat to your water and taking action as necessary to protect Ohio from bad actors at the federal level.