House Bill Aims to Reduce EPA Role Under the Clean Water Act

Legislators in the House, concerned with the impact of environmental regulation on the economy, are considering legislation to curtail EPA’s role under the Clean Water Act (CWA) and give more autonomy to states. The Clean Water Cooperative Federalism Act of 2011 (H.R. 2018) would significantly reduce EPA’s authority to oversee, overrule, and/or replace state water quality standards, water quality certifications for certain projects, and permits for wastewater discharges or dredge-and-fill activities. Proponents of the bill argue that EPA is frustrating economic recovery and interfering with state regulation of water quality within their borders, while opponents call the bill a frontal attack on environmental protection. The bill was reported out of committee without a hearing on June 22; the next step at this time is full consideration by the House.

Clean Water Cooperative Federalism Act of 2011

The House Transportation and Infrastructure Committee approved the Clean Water Cooperative Federalism Act of 2011 on June 22 without a hearing by a bi-partisan 35-19 vote.[1] The bill was introduced by the Republican chairman, Rep. John Mica (R-Fla.), and the ranking Democrat on the committee, Rep. Nick Rahall (D-W.Va.). Three other Democrats and 15 Republicans co-sponsored the bill, including Rep. Bob Gibbs (R-Ohio), chairman of the Transportation Subcommittee on Water Resources and Environment. As described further below, the bill would restrict EPA’s authority to: (1) promulgate state water quality standards; (2) “supersede” state water quality certifications; (3) overrule a state-approved discharge permit under the National Pollutant Discharge Elimination System (NPDES) program; and (4) block dredge-and-fill permits issued by the U.S. Army Corps of Engineers.

1. Water Quality Standards

Under current law, set out in CWA § 303, EPA can override and replace a state’s proposed new or revised water quality standards based on EPA’s determination that such standards are necessary to protect the designated uses of the water body.[2] The proposed legislation would revise CWA § 303 by stating that EPA “may not promulgate a revised or new standard for a pollutant in any case in which the State has submitted to [EPA] and [EPA] has approved a water quality standard for that pollutant, unless the State concurs with [EPA’s] determination that the revised or new standard is necessary to meet the requirements of the [CWA].”[3] A noteworthy example of where the current law has stirred considerable controversy is in Rep. Mica’s home state, where EPA has imposed numeric nutrient criteria for Florida waters over Florida’s strong and persistent objection. See M. MacCurdy, EPA Proposal for Numeric Nutrient Standards for Florida Waters has National Implications, Marten Law Environmental News (Feb. 3, 2010); M. MacCurdy, EPA Faces Lawsuits Challenging Potentially Far-Reaching Rule Setting Numeric Nutrient Criteria in Florida Waters, Marten Law Environmental News (Feb. 10, 2011).

2. Water Quality Certifications

Second, the proposed legislation would prohibit EPA from “superseding” water quality certifications under CWA § 401. The current law is designed to ensure that a state or appropriate governing agency certifies that discharges from proposed projects requiring a federal license or permit will comply with various provisions of the CWA. CWA § 401 gives EPA the authority to evaluate a proponent’s application and the proposed certification and determine whether the discharges will affect water quality in another state. H.R. 2018 would add a provision stating that, “if a State or interstate agency having jurisdiction over the navigable waters at the point where the discharge originates or will originate determines under paragraph (1) that the discharge will comply with the applicable provisions of sections 301, 302, 303, 306, and 307, [EPA] may not take any action to supersede the determination.”[4]

3. NPDES Permits

Third, H.R. 2018 would revise two aspects of the NPDES program under CWA § 402 regarding EPA’s approval of a state’s implementation program as a whole, which most states currently run, or a state’s approval of a particular state-issued NPDES permit. The bill would bar EPA from rescinding its approval of the state’s NPDES program, limiting federal assistance for the state program, or objecting to particular permits based on EPA’s disagreement with or interpretation of the state’s implementation of previously-approved water quality standards or federal guidance that directs the interpretation of the state’s water quality standards.[5] While EPA has only sparingly exercised its authority to withdraw approval of states’ NPDES programs or to object to individual permits, this element of the bill would remove a primary characteristic of EPA’s federal oversight of key CWA programs.

4. Dredge-and-Fill Permits

The final element of H.R. 2018 is directed at EPA’s role with respect to dredge-and-fill permits under CWA § 404. While the Army Corps of Engineers generally implements CWA § 404, EPA retains the ability to object to disposal sites based on specified adverse environmental effects of the discharge after consultation with the Corps and allowing for public comment. H.R. 2018 would insert a provision limiting EPA’s authority to so object “if the State in which the discharge originates or will originate does not concur with [EPA’s] determination that the discharge will result in [such] an unacceptable adverse effect.”[6] The bill also seeks to streamline the permitting process by shortening the period in which federal agencies can provide comments on the proposed permit.

Under an amendment that Rep. Shelley Capito (R-W.Va) offered, the bill would apply to all pending permits or new and revised water quality standards that are being promulgated when the bill becomes law. Rep. Capito initially offered, but then withdrew, a provision that would have required EPA to conduct an economic impact assessment of each regulation it issues under the CWA.

Responses

Not surprisingly, HR 2018 has set off a heated battle over the proper role of EPA and the states in protecting water quality. Proponents of the bill argue that centralization of regulatory power over U.S. waters fails to account for regional differences and has stymied job growth in many states. Rep. Mica, who introduced the bill, argues that, while “EPA continues to strangle economic growth in this country with its overreaching and arbitrary regulatory regime,” the proposed legislation is necessary to “restore and preserve the federal-state partnership that is the foundation of the [CWA] but which is being progressively undermined by EPA.”[7] Rep. Mica argues that the proposed legislation “will help ensure a common sense regulatory regime that does not unnecessarily harm our nation’s farmers, miners and other businesses critical to our economy.”[8] Members of the mining industry hailed the bill as providing “much needed certainty for jobs and the Appalachian economy, which have borne the brunt of [EPA’s] regulatory overreach.”[9] A group representing equipment dealers and manufacturers also supports the bill, asserting that EPA is “standing in the way of a broad range of economic activity” and “is hampering job creation and recovery in an industry hit hard by the recession.”[10]

In contrast, opponents view the bill as a naked attempt to use the current economic crisis to gut key components of the CWA that have been in place for nearly forty years. Environmental groups have strongly criticized the bill as “the single greatest assault on clean water protections in a generation,”[11] stating that the bill would “turn[] back the clock to a time when the Cuyahoga River was on fire, where there were oil spills all across California beaches and the majority of our drinking water was unfit to drink.”[12]

EPA provided its legal analysis of the bill in a letter to Rep. Timothy Bishop (D-N.Y.), who offered an unsuccessful amendment that would have excluded drinking water sources, flood protection areas, fish and wildlife habitat, and recreational areas from the bill.[13] EPA raised concerns regarding the scope of the bill, and argued that it is full of ambiguities. Among other things, EPA stated that the bill would “significantly undermine EPA’s longstanding role under the CWA to assure that state water quality standards protect clean water and public health and comply with the law.…[,] fundamentally disrupt the Federal-State relationship outlined in the 1972 CWA[,] and … hinder the federal government’s ability to ensure that states protect interstate waters at a common level.” EPA warned that the bill would erode EPA’s ability to facilitate disputes between states and provide input on proposed permits, generate lawsuits from citizen groups or environmental groups by removing the current state-EPA dialogue in several areas, and incentivize a “race to the bottom” that the CWA was designed to avoid.

The next step for the bill is consideration by the House. Republican House leaders expecting to bring the bill to a floor vote this summer.

For more information regarding this article, please contact Meline MacCurdy or any member of Marten Law’s Water Quality practice group.