Clean Water Action Section 401, Federalism and Department of Interior

August 13, 2018
As discussed at the CWAG Summer Meeting, there are a number of Congressional and administrative efforts to diminish a state’s authority under Section 401 of the Clean Water Act. CWAG attorneys general authorized Executive Director Karen White to add CWAG to a state organization sign-on letter expressing concern about these efforts to weaken state water quality authority. On August 9, 2018, the following state organizations in addition to CWAG sent the sign-on letter to Congress: Western Governors’ Association, Council of State Governments, Council of State Governments – West, Western States Water Council, Association of Clean Water Administrators, Association of Fish and Wildlife Agencies, Association of State Wetland Managers, Western Interstate Region of NACo, and Western Interstate Energy Board. 

The following proposals to modify Section 401 are currently pending before Congress. On August 16 th, the U.S. Senate Committee on Environment and Public Works will hold a hearing on S. 3304, the Water Quality Certification Improvement Act of 2018. If enacted, this bill would narrow the type of water quality requirements a state could impose on a project through its Section 401 certification authority. Other measures related to Section 401 pending before Congress are: 1) H.R. 3043, Hydropower Policy Modernization Act of 2017 (Passed House, Oct. 2017); 2) House Energy and Water Subcommittee and House Interior and Environment Subcommittee FY19 Appropriations Report language; and 3) S. 1460, Energy and Natural Resources Act of 2017. 

In addition to the proposed congressional actions, The Administrations’ Legislative Outline for Rebuilding Infrastructure in America calls for amending the Clean Water Act “to change the time period for issuance of a State 401 Certification by addressing the time periods for making a completeness determination and the time for a State decision . . ..”  Id. at 43. And, the Environmental Protection Agency is seeking comment on whether the Agency should promulgate rules for the Section 401 certification process. 

Staff will continue to monitor this issue and work with our sister organizations to protect state water quality authority under Section 401 of the Clean Water Act.
CWAG members approved the attached federalism resolution. Staff will transmit the resolution to the President and Congress. In addition, staff will work with sister organizations to develop proposals for improving the state-federal relationship consistent with the directives of the resolution
Secretary Zinke’s office, as a follow up to his Fireside Chat, sent links to the Fish and Wildlife Service’s withdrawal of its Mitigation Policy. 81 FR 83440 (November 21, 2016). The Mitigation Policy guided the Service’s recommendations for mitigating adverse impacts of land and water development on fish, wildlife, plants, and their habitat. The Mitigation Policy established a “net conservation gain” standard. The withdrawal notice concludes that the “net conservation standard” raises “serious questions of whether there is a sufficient nexus between the potential harm and the proposed remedy to satisfy constitutional muster.” The Service also withdrew its Endangered Species Act Compensatory Mitigation Policy concluding that “it does not have authority to require ‘net conservation gain’ under the ESA, and the policy is inconsistent with current Executive branch policy.”  
The maps Secretary Zinke referenced in his talk about reorganization of the Department of Interior are available here: