Today, the Supreme Court of the U.S. used its emergency docket to revive a Trump Administration Clean Water Act rule that sidelined states, Tribes, and the public in permitting decisions for large projects affecting water.

SCOTUS provided no reasoning for its decision or its use of the emergency docket, normally reserved for special circumstances. Justice Kagan led a dissent from four justices including Chief Justice Roberts.

“Today the Supreme Court’s ultra-conservative majority used the emergency docket to both revive an environmentally harmful rule and severally limit the authority of lower courts, without writing a single word as to why either was appropriate,” said Andrew Hawley, attorney at the Western Environmental Law Center. “Moreover, the irony of today’s decision is that the court effectively admonished the lower court for setting aside a clearly unlawful rule on too little process, while acting with arguably less process and ignoring its own rules along the way.”

“The reinstatement of these rules will limit the ability of states to protect rivers from the harmful impact of hydropower dams on rivers and those who use them for recreation,” said Robert Nasdor, American Whitewater legal director. “These rules needlessly limit states from requiring that these projects meet state water quality standards under the Clean Water Act.”

“With today’s decision, corporate interests have been elevated above the rights of states and Indigenous Tribes, said Nic Nelson, executive director of Idaho Rivers United. “This once again clouds the public process for review and engagement.”

“The ruling today will directly result in the degradation of California’s rivers and streams and will further imperil federally and state protected salmon and steelhead,” said Redgie Collins, California Trout’s legal and policy director. “The majority of the Supreme Court has shown a disregard for precedent in this hypocritical decision that turns its back on the rights of states to choose how and when to protect their rivers.”

Background:

For nearly 50 years, decisions regarding large federally regulated projects such as pipelines, dams, industrial plants, municipal facilities, and wetland development have required state, Tribal, and federal cooperation under the Clean Water Act. The Trump administration gutted that part of the law (final 401 rule here), allowing the federal government to force such projects onto states and Tribes despite pollution risks to rivers, streams, lakes, and wetlands within their borders. The changes to the Clean Water Act’s Section 401 represent a major threat to clean water and public health from coast to coast and everywhere in between.

The rule also suppresses state and Tribal public participation processes that moor U.S. water policy in the harbor of democracy. Further, the new rule limits the information on proposed projects that may be made available to the states, Tribes, and the public.

The new rule, directly overturns Congress’ intent to integrate state and federal authority for permitting decisions affecting state waterways.

As the Texas Commission on Environmental Quality noted earlier this year, the Trump 401 rule “caused considerable implementation confusion” and “brought about the breakdown of a long-standing, formally established and cooperative process between” federal and state agencies trying to coordinate the review of federal permits and licenses under section 401 of the Clean Water Act. These problems were predictable, and the direct result of the many problems with the Trump rule. For example, according to TCEQ’s 2019 comments on the proposed rule, the “narrowed scope of certification review” in the Trump rule “conflicts with Texas state law and several of TCEQ’s rules [and] limit[ed] Texas’ authority” under section 401.

Contacts:

Andrew Hawley, Western Environmental Law Center, 206-487-7250,

Amy Kober, American Rivers, 503-708-1145, 

Bob Nasdor, American Whitewater, 617-584-4566,

Nic Nelson, Idaho Rivers United, 208-343-7481,

Walter “Redgie” Collins, California Trout, 415-748-8755,

Photos for media use available here.

Letters (public comments) from states, Tribes, and organizations opposing Section 401 rollbacks:

Opposition Letter: State of South Dakota (scathing)

October 21, 2019

https://pdfhost.io/v/v.mLY3z2d_20191021South_Dakota_CWA_401_commentspdf.pdf

Opposition Letter: State of Arkansas

October 21, 2019

https://pdfhost.io/v/5RTbsrt8~_AR_401_Commentspdf.pdf

Opposition Letter: State of California

October 21, 2019

https://pdfhost.io/v/F1zojtGKa_20191021_Ltr_to_A_Wheeler_re_SWRCB_response_to_401_Cert_Proposed_Rulepdf.pdf

Opposition Letter: Confederated Tribes and Bands of the Yakama Nation

October 21, 2019

https://pdfhost.io/v/FoaQ2zvAh_20191021Yakama_Nation_Section_401_Commentspdf.pdf 

Opposition Letter: Inter Tribal Association of Arizona

October 21, 2019

https://pdfhost.io/v/.jk5nJ1oK_InterTribal_Assn_of_AZ_401_Commentspdf.pdf

Opposition Letter: State of Idaho

October 21, 2019

https://pdfhost.io/v/kZlX31CB7_ID_401_Commentspdf.pdf

Opposition Letter: State of Louisiana

October 19, 2019

https://pdfhost.io/v/F52ivsrg._LA_401_Commentspdf.pdf

Opposition Letter: Menominee Indian Tribe of Wisconsin

October 22, 2019

https://pdfhost.io/v/UTuKpy6FF_Menominee_Tribe_401_Commentspdf.pdf

Opposition Letter: State of Montana

October 17, 2019

https://pdfhost.io/v/SnoPVhxYj_MT_401_rule_Commentspdf.pdf

Opposition Letter: State of Nevada

October 17, 2019

https://pdfhost.io/v/0BeC6MkzI_NV_401_Rule_Commentspdf.pdf

Opposition Letter: State of New York

October 21, 2019

https://pdfhost.io/v/c0.jrsYs~_NY_401_Commentspdf.pdf

Opposition Letter: State of Pennsylvania

October 21, 2019

https://pdfhost.io/v/Q9h7qFprp_PA_Comments_on_401_rulepdf.pdf

Opposition Letter: Seattle City Light

October 21, 2019

https://pdfhost.io/v/XDTlaYaTh_Seattle_City_Light_401_Commentspdf.pdf

Opposition Letter: Skokomish Indian Tribe

October 20, 2019

https://pdfhost.io/v/NKCE.ps4l_20191020Skokomish_Tribe_Section_401_Commentspdf.pdf

Opposition Letter: Standing Rock Sioux

October 21, 2019

https://pdfhost.io/v/67Ar2EyV8_Standing_Rock_Sioux_401_Commentspdf.pdf

Opposition Letter: State of Tennessee

October 21, 2019

https://pdfhost.io/v/e7PdQltny_TN_401_Commentspdf.pdf

Opposition Letter: State of Texas

October, 2019

https://pdfhost.io/v/SS5mPC48m_TX_401_commentspdf.pdf

Opposition Letter: Twenty-Nine Palms Band of Mission Indians

October 14, 2019

https://pdfhost.io/v/hiNTrBCKr_Twenty_Nine_Palms_Band_401_Commentspdf.pdf

Opposition Letter: State of Washington

May 24, 2019

https://pdfhost.io/v/21GYgD4xa_WA_401_Commentspdf.pdf

Opposition Letter: National Governors’ Association

October 18, 2019

https://www.nga.org/policy-communications/letters-nga/natural-resources-committee/letter-regarding-the-environmental-protection-agencys-proposed-rule-updating-regulations-on-water-quality-certification/ 

Opposition Letter: Western Governors’ Association, National Conference of State Legislatures, National Association of Counties, National League of Cities, U.S. Conference of Mayors, Council of State Governments, Western Interstate Region, Association of Clean Water Administrators, Association of State Floodplain Managers, Association of State Wetland Managers, Western States Water Council

October 16, 2019

https://www.ncsl.org/Portals/1/Documents/standcomm/scnri/EPA_NPRM_CWA_401_Comments_FINAL.pdf?ver=2019-10-17-150909-880&timestamp=1571346568787

Opposition Letter: Earthjustice, Sierra Club, and 31 other organizations

October 21, 2019

https://www.sierraclub.org/sites/www.sierraclub.org/files/uploads-wysiwig/Sierra%20Club%20Comments%20Section%20401%20EPA%20Proposed%20Rule%20final.pdf

Opposition Letter: Sens. Carper, Duckworth, and Booker

October 21, 2019

https://www.epw.senate.gov/public/index.cfm/2019/10/carper-duckworth-and-booker-epa-s-section-401-proposal-violates-states-rights-harms-water-quality

Opposition Letter: Southern Environmental Law Center

October 21, 2019

https://www.southernenvironment.org/uploads/words_docs/SELC_Comments_on_%E2%80%9CUpdating_Regulations_on_Water_Quality_Cer….pdf

Opposition Letter: Rep. Peter DeFazio

July 29, 2019

https://transportation.house.gov/imo/media/doc/2019-7-29%20PAD_LTR%20to%20EPA%20re%20401Certification.pdf

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