Protecting States’ and Tribes’ Voices on Clean Water Nationwide

A Trump rule gutted provisions of the Clean Water Act (Section 401), which for nearly 50 years provided for states’ and authorized Tribes’ self-determination in permitting for a wide array of projects requiring federal approval within their borders. The rule also suppressed state and Tribal public participation processes that moor U.S. water policy in the harbor of democracy.

This rule change is separate from rollbacks to the Waters of the U.S. Rule (WOTUS), which eliminated protections for many waterbodies throughout the country, but represented an equally dangerous threat to clean water and public health nationwide: Section 401 applies broadly to any proposed federally licensed or permitted activity that may result in a discharge into any waterway that is covered under the law. Projects that may be approved against states’ and Tribes’ wishes include pipelines, hydropower, industrial plants, municipal facilities, and wetland development.

Working in combination, the Section 401 and WOTUS rollbacks made it virtually impossible for states, Tribes, and communities to stand in opposition to projects that will pollute and harm their rivers, streams, lakes, and wetlands. We stood against this unprecedented federal power grab that went against the intent of Congress to integrate state and federal authority for permitting decisions affecting state waterways and won in Fall of 2021. The Biden administration had planned to restore at least parts of the rule through a years-long public process. Our victory eliminated the bad rule completely and immediately.

Most recently, the Supreme Court of the U.S. misused its emergency powers to reinstate the rule on a partisan vote as the case proceeds. We are reviewing our legal options.