EPA Narrows CWA 401 Rule But Still Places Major Limits On States' Power

摘要

EPA in its recently signed rule aimed at speeding permitting of energy infrastructure projects modified some provisions from its proposal that were concerning to state regulators, but legal experts say the rule still contains significant limits on states' ability to require water quality protections for federally permitted or licensed projects. 'The final rule still represents a cut back of states' reach, but it is cut back less drastically than the proposal' in some areas, James McElfish of the Environmental Law Institute tells Inside EPA. The agency characterizes the changes in its Clean Water Act (CWA) section 401 rule as increasing clarity and regulatory certainty, compared to the proposal, although one of the changes avoids having the agency stake out a position contrary to judicial precedent. Nonetheless, the final rule retains limits on the scope of states' review to point source discharges rather than broadly assessing impacts from the permitted activity that could affect water quality - a position that some legal experts say is at odds with Supreme Court precedent and may be most vulnerable to legal challenge.