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The Insider

The Biden EPA is beginning to chart its path on Clean Water Act (CWA) policies, initiating efforts to rework a Trump-era section 401 rule that limited states’ review of water quality impacts from federally permitted projects, while defending the agency’s approach to approving Florida’s section 404 permitting authority as well as the pace of a CWA oil spill rule.

EPA Administrator Michael Regan this week announced plans to revise the Trump administration’s section 401 rule that limited states’ reviews of federally permitted projects, noting the need to reverse policies that weakened state and tribal authorities to protect waters:

EPA Eyes Revamp Of Trump-Era State Water Quality Certifications Policy
EPA is launching an effort to revise a Trump-era rule that limited the scope of states’ review under Clean Water Act (CWA) section 401 of the water quality impacts from federally permitted projects, saying it plans to issue a new rule but will not return to the 1971 regulations that the Trump EPA said were outdated.

“We have serious water challenges to address as a nation and as EPA Administrator, I will not hesitate to correct decisions that weakened the authority of states and Tribes to protect their waters,” agency chief Michael Regan said in a May 27 statement announcing the planned rule revision. “Today, we take an important step to realize this commitment and reaffirm the authority of states and Tribes.”

In a pre-publication version of a Federal Register notice that Regan signed May 26, EPA says it “intends to revise the Clean Water Act Section 401 Certification Rule in a manner that is well informed by stakeholder input on the rule’s substantive and procedural components; is better aligned with the cooperative federalism principles that have been central to the effective implementation of the Clean Water Act; and is responsive to the national objectives outlined in President Biden’s Executive Order 13990” on protecting the environment.

The Biden EPA is defending a Trump-era decision to grant approval of Florida’s CWA section 404 permitting program, citing a broad scope of authority in deciding when to act through an adjudicatory order or a rule.

But environmentalists are continuing to fight the agency’s approval, which Trump EPA Administrator Andrew Wheeler had labeled as a “roadmap” for other states that might also want to assume 404 permitting. The Center for Biological Diversity is seeking to overturn the approval, arguing violations of the Administrative Procedure Act:

CBD Asks Court To Reverse EPA Approval Of Florida CWA Permit Program
The Center for Biological Diversity (CBD) is urging a federal district court to find that EPA violated the Administrative Procedure Act (APA) when it allowed Florida to assume Clean Water Act (CWA) section 404 permitting authority, arguing the agency erred in setting an immediate effective date for the approval and by failing to codify the state program.

The litigation CBD, et al. v. Regan, et al. challenges the Trump EPA’s approval of Florida’s assumption of federal dredge-and-fill permitting in many of its waters and claims the federal government violated numerous laws, including the APA, the CWA, the Endangered Species Act and the Rivers and Harbors Act.

EPA is also rejecting a push by environmentalists, through the courts, to speed up its oil spill response regulation, or possibly even revise it further, under CWA National Contingency Plan regulations. At issue are regulations over the approval of dispersants to treat oil spills as environmentalists contend their use should be curbed due to adverse health effects:

EPA Fights Environmentalists’ Legal Bid To Expedite Oil Spill Rule Update
EPA is fighting environmentalists’ push for a federal district court to require that the agency expedite a new oil spill response regulation addressing dispersants, with EPA arguing it is already updating the existing rule and that the plaintiffs’ demands are too far-reaching.

“Plaintiffs’ request for relief has evolved from the Complaint, which seeks an order requiring EPA to ‘issue a final rule to update the [National Contingency Plan (NCP)] on an expeditious schedule to be established by this Court,’ to a much broader demand regarding the substance of EPA’s rulemaking, in which Plaintiffs seek to discard the prior proposal by requesting an order requiring EPA to draft a new proposed rule and complete action on that new proposal in one year,” EPA says in a May 20 brief in Alert Project/Earth Island Institute, et al. v. Michael Regan.

On another section 401 issue that helped spur the Trump EPA’s section 401 policy weakening states’ authorities, the Biden administration is weighing in against a Supreme Court petition by two states that argue Washington state violated their constitutional rights when the state denied a CWA certification for a coal terminal. The U.S. government says the matter is moot and therefore the court should not take up the litigation:

Biden DOJ Urges Supreme Court To Reject Interstate CWA 401 Dispute
The Biden Justice Department (DOJ) is urging the Supreme Court to reject a request from Montana and Wyoming to determine whether Washington violated the states’ constitutional rights when it denied a Clean Water Act (CWA) certification for a coal terminal, saying the controversy is now moot due to the coal terminal’s bankruptcy.

Regardless of whether Washington state’s denial was unlawful, the Millennium Bulk Terminal will not be built because after Montana and Wyoming asked the Supreme Court to hear their dispute, Millennium filed for bankruptcy and divested itself of any interest in the property in question, DOJ says in a recent amicus brief to the Supreme Court.

“Accordingly, this suit would not redress Montana and Wyoming’s asserted injury from the denial of certification under Section 401. Because no Article III case or controversy exists, the motion for leave to file a bill of complaint should be denied,” DOJ says.

Fears over Biden EPA plans on setting CWA waters of the United States jurisdiction policy partly drove some GOP senators to vote against Radhika Fox to assume the agency’s top water policy slot, but her nomination nonetheless passed out of committee May 26:

Senate EPW Backs Key EPA Nominees But GOP Fears Biden CWA Policy
The Senate Environment & Public Works Committee (EPW) has approved President Joe Biden’s nominations of Michal Freedhoff to head EPA’s toxics office and Radhika Fox to be the agency’s water policy chief, but six GOP senators opposed Fox -- partly due to their fears about the Biden EPA’s Clean Water Act (CWA) jurisdiction policy.

During a May 26 business meeting, environment panel members voted 19-1 to approve Freedhoff’s nomination to lead the Office of Chemical Safety and Pollution Prevention (OCSPP). Only Sen. Dan Sullivan (R-AK) voted against sending her nomination to the Senate floor. He did not explain his vote during the meeting, and at press time his office had not responded to a request from Inside EPA for comment on why he opposed Freedhoff’s confirmation.

The vote on Fox’s nomination to be the Office of Water’s assistant administrator was more closely split at 14-6, with the panel’s ranking member Sen. Shelley Moore Capito (R-WV) and GOP Sens. James Inhofe (OK), Richard Shelby (AL), John Boozman (AR), Sullivan and Joni Ernst (IA) all voting against her.

Meanwhile, environmentalists are pressing EPA to weigh in and establish numeric water quality standards for Montana after the state recently replaced its numeric limits with narrative standards:

Environmentalists Urge EPA To Reject Montana’s Nutrient Water Standards
Environmentalists in Montana are petitioning EPA to step in and set numeric water quality standards for the state after Gov. Greg Gianforte (R) enacted a new law eliminating Montana’s previous numeric standards in favor of narrative standards, with environmentalists arguing the state law violates the Clean Water Act (CWA).

The state law, known as SB 358, “is a blatant attempt to eliminate a well-documented, proven, and science-based approach to protecting designated uses of most Montana waterways with numeric nutrient criteria,” Upper Missouri Waterkeeper writes in a May 24 petition to EPA. The group says it is unaware of a single instance where EPA has allowed a state to regress and remove a duly promulgated and approved numeric water quality criteria approach in favor of a less-protective narrative criteria approach.