EPA Proposed Clean Water Act Changes Could Cause Polluted Waterways

Earlier this summer, the Environmental Protection Agency (EPA) proposed changing certain regulations in the Clean Water Act (CWA). The proposed changes strengthen federal authority by allowing the EPA to overrule state decisions in enforcing the CWA.

The Clean Water Act, administered by the EPA, is key to governing water quality since its enactment in 1972. The law regulates the discharge of pollutants into the nation’s waters including lakes, rivers, wetlands, and coastal areas.

The CWA authorizes states to establish water quality standards while the EPA determines if the standards satisfy the requirements that the CWA set. The law also sets requirements for companies that would like to build pipeline infrastructure projects. If the proposed project may release pollutants into surface waters, the company has to apply for a section 401 certification. The certification ensures that the infrastructure being built follows the state’s water standards. States review the effects the proposed project will have on water quality and have the authority to approve or deny the certification request.

However, the EPA is now looking to change this approval process by decreasing states’ authority in granting these permits. The proposed changes target states like New York that have used the CWA to block or delay projects that may harm the environment.

Most notably, under the proposed changes, the EPA could overrule the states’ project certification decision. Currently, a denial of section 401 certification would have to be appealed by the project’s company to the applicable court of appeals. The proposed change would allow the EPA to review whether the state’s denial was reasonable. If the state’s authority is invalidated, permitting decisions would then be given to the Federal Energy Regulatory Commission. 

This limits how much control states have in protecting their own waters, creating an inherent tension between state-level efforts to preserve water quality and energy companies trying to build pipelines.

The proposed changes would also require that the section 201 certification review consider only water quality. This limits the states’ ability to protect their waterways from effects such as erosion and sedimentation by only allowing them to consider direct discharge into water from the project. For example, when Washington State rejected section 401 certification for a coal export facility in 2017, it cited several negative environmental effects like erosion and climate change. These effects wouldn’t be due to any discharge from the facility but could be just as harmful to the environment.

The proposed changes also limit the time states have to review the section 401 certification application to one year. Like in New York’s review of the Constitution pipeline, states usually take several years to do a complete review. According to NYU’s School of Law’s State Energy Department, the proposed changes can threaten the integrity of their review process because state agencies will be forced to hastily review the permits.

The changes follow an executive order President Trump issued in April directing his administration to accelerate the construction of pipelines and other energy infrastructure. However, according to studies by Auburn University, this comes at the cost of protecting wetlands and waterways, the exact resources the CWA was created to protect. It also can worsen global warming.

Polluted waterways aren’t an issue of the future, the risks they pose are ones we have the ability to prevent now. However, the changes to the Clean Water Act seem to turn a blind eye to these negative impacts.

EPA Administrator Andrew Wheeler signed a copy of the proposed rule changes on August 8th, initiating a 60-day public comment period.

To learn more about the public comment period and other public hearings on the changes visit

NYLCV will continue to advocate for policies that combat water pollution and help preserve water quality.