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EPA moves to reverse Trump-era water permitting policy

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The EPA proposed a rule that would reverse a Trump-era decision on water permitting projects, seeking to strengthen the authority of states, territories, and tribes to protect their water resources from projects that they believe might threaten them.

The EPA’s proposal Thursday would revise Section 401 of the Clean Water Act, which under former President Donald Trump had focused on prioritizing and fast-tracking major energy projects.

The revision would restore flexibility for what states and tribes can consider when reviewing permitting applications in their waterways, according to an EPA fact sheet released alongside the announcement.

“Certifying authorities may evaluate impacts from any aspect of the project activity with the potential to affect water quality,” the EPA wrote. “This approach reinstates the broader and more environmentally protective scope of review that the Supreme Court affirmed in 1994.”

Under Trump, states were only allowed to block a federal water permit project if they could prove the project would directly pollute state waterways.


The proposed rule would also, for the first time, allow states and territories to take part in determining what constitutes a “reasonable period of time” to review requests for project certification, another change from Trump-era policies, which had granted them one year to review requests.

“EPA’s proposed rule builds on this foundation by empowering states, territories, and Tribes to use Congressionally granted authority to protect precious water resources while supporting much-needed infrastructure projects that create jobs and bolster our economy,” EPA Administrator Michael Regan said Thursday in a statement.

The EPA also said Thursday the revised approach will allow “a certifying authority to holistically evaluate the water quality impacts of a federally licensed or permitted project.”

Early news of the decision was praised by tribes and some state lawmakers, including National Tribal Water Council Chairman Ken Norton.


“The CWA Section 401 certifications serve as the first and sometimes the only line of defense protecting tribal waters from pollutant discharge flowing within and on to our reservation lands,” Norton said in a statement.