The Bipartisan American Affordability and Jobs Act (BAAJA) proposes significant modifications that could undermine protections under the Clean Water Act, especially its section 401. This provision grants states the power to assess whether federally approved projects involving water discharges comply with established state water-quality benchmarks.
Clean Water Act Protections
The bill would take that away. That change should worry any legislator who cares about water quality or states. Clean Water Act section 401 applies primarily in three settings. First, it applies when the Federal Energy Regulatory Commission licenses hydropower projects. Second, section 401 lets states influence the section 404 permitting done by the US Army Corps of Engineers. Third, section 401 lets states influence National Pollutant Discharge Elimination System (NPDES) permits issued by the federal government.
Clean Water Act Section 401
Section 401 gives states some authority to protect their waters from dams, which can be highly environmentally destructive. For example, dam-removal projects on the Klamath River in California and on the Kennebec and Penobscot Rivers in Maine have been successful in improving environmental and community benefits. Section 401 gives states some of that authority back, thus limiting FERC’s ability to ignore state goals for managing rivers.
Rather run their own permitting programs, many states have chosen to use section 401 as a basis for working collaboratively with the Corps. That collaborative relationship lets states condition projects in ways that make them more protective of state resources. As one Corps staffer explained, “When we develop a regional permit for any specific activity… [w]e work those out specifically with the state agencies and the federal agencies involved and [ask] ‘ok, if we’re going to develop this permit, are there any special conditions you’d like to see on it,’ and hammer those out just to make it easier to issue that permit in a way that the state’s good with it.”
Climate Adaptation Impacts
In the context of climate adaptation, protecting streams and wetlands is essential for public safety and managing floods. Water management is a key part of this effort, and limiting states’ ability to protect their water quality could have significant consequences. The changes to section 401 could undercut protection for downstream states and confer final authority on whatever level of government cares the least about water-quality protection.
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First, the bill would prevent states from imposing any condition that isn’t specifically focused on the water quality impacts of the discharge. This would be a change from the traditional approach, which is to allow states to impose conditions focused on the water-quality impacts of the applicant’s activities as a whole. The bill would also impose extraordinary burdens on a state that wishes to deny or attach conditions to a certification, requiring them to demonstrate by “clear and convincing evidence” that the denial or condition is necessary to prevent a violation of water quality standards.
Third, and conversely, the bill also may let states cut the federal government out of water quality protection. Section 1201(e)(1) says that if a state issues a waiver or a water quality certification, the federal government “shall consider water quality requirements satisfied for the purpose of considering the application for the Federal license or permit.” Thus, if a state does not care about a project’s water quality impacts-perhaps the project is located just upstream of a border-and the state waives its certification authority, the federal permitting authority could not address the resulting water-quality problems. Whether courts will interpret the new law this way is unclear, because section 401(b) of the existing statute seems to contradict section 1201(e)(1).
New Limitations on States
Section 1202(e)(2) limits the state to conditions protecting water quality, and section 1202(h)(3)(B) defines a water quality condition as “any Federal and State or Tribal laws (including regulations) implementing sections 301, 302, 303, 306, and 307 that are applicable to discharges into waters of the United States” (emphasis added). The combined effect is to take away the previous focus on the activities of the applicant as a whole. These provisions also eliminate states’ abilities to use section 401 to protect waters that the state considers important but that are not “waters of the United States.”
Implications of the Bill’s Changes
Piling on, the bill also exempts state decisions against using section 401 authority from judicial review. The basic message is that when the federal government might harm water quality, the states’ job is to get out of the way. But having two contradictory provisions in the same statute is confusing at best.