The New Attempt to Limit the Clean Water Act: Proposed Rule Change to Section 401

By Jonathan McKoy*

The goal of the Clean Water Act (CWA) is to protect the integrity of the nation’s waters.[i] The CWA empowers the states to properly mitigate pollution by providing the necessary legislative authority and funding for wastewater treatment and the maintenance of the United States’ bodies of water.[ii]

In early August, the Environmental Protection Agency (EPA) announced proposed rule changes to Section 401 of the CWA.[iii] These changes aim to streamline existing water quality certification regulations following President Trump’s Executive Order 13868—“Promoting Energy Infrastructure and Economic Growth.”[iv] The President has claimed that the EO’s ordered modernization of the CWA will accelerate infrastructure projects and improve American day-to-day life.[v]

The main changes proposed to Section 401 would reduce and narrow the scope of state power. States would lose the right to enforce non-water quality requirements for certifications and would only be able to require certifications for “waters of the United States.” Overall, the newly-configured law would present a lower bar than current standards, which requires certification for all discharges from a point source.[vi]  States would also cede the ability to veto certifications to the federal government.  Additionally, the certification review process timeline for a state would be capped to a maximum of one-year—it is currently uncapped.[vii] The Trump Administration’s proposed rule changes to Section 401 are unlawful. They amendments defy the legislative intent of the CWA and ignore the previous rulings by the Supreme Court on the issue.

The legislative intent of the CWA is clear. “It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources”.[viii] If the legislature did not intend for the states to be the final decision-maker in what are allowable water quality standards, why even state the  “right of the states” in the statute?

This ceding of power to the states by Congress was intentional. Rather than rely on the dictates of a particular administration or even on the EPA, the legislature left it to each state to determine its own best water management practices. A one-size-fits-all approach to best water management practices would be difficult if not totally impracticable to implement in a country whose topography and hydrology varies drastically state to state, and region to region. Narrowing of the allowed scope of state power runs against the original design of the legislation.

The Supreme Court’s interpretation of the proper application of the CWA is likewise clear. In PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, the Supreme Court held that “states could condition certification of a project on any limitations necessary to ensure compliance with state water quality standards,” and that States would not be limited on the theory that state certification interfered with Federal projects.[ix] A decade later, the Supreme Court doubled down on this ruling by clarifying the purpose of Section 401 in S.D. Warren Co. v. Maine Bd. of Environmental Protection. In this case, the Supreme Court ruled that Section 401 “was meant to “continu[e] the authority of the State…to act to deny a permit and thereby prevent a Federal license or permit from issuing to a discharge source within such State”.[x] Given these rulings, it is clear that the rule changes by the EPA go against the original design of the legislation. So, what then is the EPA’s justification which warrants this proposed narrowing of state power?

By purposefully choosing to diminish state authority over the regulation of water resources, the EPA preempts the established federal law. There is no legislative or judicial support for the EPA’s decision to subordinate states’ right of authority to preserve clean water. The proposed amendments to section 401 of the CWA are yet another poorly veiled power grab by the Trump administration and yet another unprecedented assault on environmental regulations. By using the EPA as a sort of puppet tool, President Trump intends to circumvent the preceding law in order to put corporate interests above the environment. For these reasons the proposed changes to section 401 cannot be allowed to pass as is.

*Jonathan McKoy is a Junior Editor on MJEAL. They can be reached via email at mckoy@umich.edu.

The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.


[i] 33 U.S.C. ch. 23 § 1151.

[ii] Id.

[iii] “EPA Takes Action to Implement President Trump’s Energy Infrastructure Executive Order.” EPA, Environmental Protection Agency, 10 Apr. 2019, www.epa.gov/newsreleases/epa-takes-action-implement-president-trumps-energy-infrastructure-executive-order.

[iv] Id.

[v] Id.

[vi] “Overview of the Updated Regulations on Water Quality Certification.” EPA, Environmental Protection Agency, 9 Aug. 2019, www.epa.gov/cwa-401/overview-updated-regulations-water-quality-certification.

[vii] Id.

[viii] Clean Water Act, 86 Stat. 877, 33 U.S.C. § 1341 (emphasis added).

[ix] PUD No. 1 of Jefferson Cty. v. Washington Dep’t of Ecology, 511 U.S. 700, 114 S. Ct. 1900, 128 L. Ed. 2d 716 (1994).

[x]  S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 126 S. Ct. 1843, 164 L. Ed. 2d 625 (2006).

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