By: Zachary Mills

Nearly fifty years ago, a collection of amendments to the Federal Water Pollution Control Act of 1948 passed in Congress, forming what would later be known as the Clean Water Act.[i] The Clean Water Act gave the Environmental Protection Agency the authority to regulate water pollution by setting water quality standards, implementing monitoring regimes, and issuing permits for any discharge of pollutants into navigable waters.[ii] Since its passing, the Clean Water Act has seen revisions in the form of additional amendments and changes in administrative regulations.[iii] So, while the Act is approaching its fiftieth full year of implementation, it continues to evolve as a response to public pressure and changing presidential administrations.[iv]

The Clean Water Act requires federally issued licenses for any discharge of pollutants from a “point source,” like a drain pipe or ditch, into navigable waters.[v] Section 401 of the Clean Water Act designates state and tribal governments as “certifying authorities” for these licenses and provides the general criteria for approving or denying proposed projects.[vi] President Donald Trump issued Executive Order 13956 in October of 2020 with the stated goal of updating federal regulations concerning water resource management and water infrastructure to promote efficiency and cooperation between executive agencies.[vii] The Environmental Protection Agency subsequently issued the “Clean Water Act 401 Certification Rule,” which narrowed the criteria that state and tribal governments could consider in determining if proposed projects complied with state water quality standards.[viii] This rule change was intended to promote “efficient permitting” and reduce “regulatory uncertainties” by removing some of the barriers for project permitting.[ix]

However, the administrative efficiency gained came at the cost of no longer allowing state and tribal governments to consider a proposed project’s effects “on air emissions or traffic congestion.”[x] The rule change also prevented certifying authorities from requiring applicants to make concessions, such as building hiking trails or allowing fishing access, intended to offset the potential harm of pollutant discharge.[xi]

The implementation of this new rule brought about several legal challenges from environmental groups and a coalition of states including California, New York, and Mississippi.[xii] In late 2021, a California judge found that inconsistencies in the Environmental Protection Agency’s justification for the rule change suggested that the change was “an unreasonable interpretation that is not entitled to deference,” and vacated the new rule.[xiii] The case has since been appealed to the Ninth Circuit Court of Appeals.[xiv] Supporters of the rule change argue they will suffer irreparable economic harm if the lower court’s order is not stayed pending their appeal due to disruption of “regulators and regulatory entities” following the reversion to older EPA rules.[xv] Environmental advocacy groups, as well as a collection of states and Native American tribes, continue to support the lower court’s ruling, stating that the 2020 rule was likely invalid and has already allowed for “irreversible environmental impacts.”[xvi]

While the rule does not completely strip certification review power from tribes and state governments, it significantly limits this power.[xvii] If the 2020 rule is reinstated following the Ninth Circuit’s decision, certifying authorities will have to tailor their requirements to only water quality issues, leaving the door open for other types of pollution to occur without Section 401 certification and oversight.[xviii]

Industrial pollution has a particularly significant impact on Native American communities.[xix] Chronic pollutant exposure and the associated health consequences have been an issue in Native American communities since the mid-1800s.[xx] A 2017 article examining these ill effects and their causes found that Native Americans living near abandoned mines and other industrial sites have an increased likelihood of “developing multiple chronic diseases linked to their proximity to the mine waste.”[xxi] Waste from industrial operations contributes to water pollution as well as land and air pollution.[xxii] Because tribal lands have been eroded over time as the United States government has identified natural resources and allowed companies to exploit those resources, these communities tend to be more exposed to pollution from industrial projects.[xxiii]

While the Clean Water Act focuses on water pollution, the Section 401 certification process represents one of the only options Native American tribal governments have to prevent both soil and air pollution.[xxiv] Until a more robust regulatory scheme is put in place to allow the rejection of proposed projects’ certification on soil and air pollution grounds, Section 401 certification is essential to regulate industrial pollution on Native American lands. Should the Ninth Circuit reinstate the 2020 rule, the certification process will again be significantly limited, contributing to additional negative consequences on Native American communities.

[i] History of the Clean Water Act, U.S. Envtl. Protection Agency, https://www.epa.gov/laws-regulations/history-clean-water-act (last viewed Jan. 25, 2022) [https://perma.cc/3HCL-9465].

[ii] Id.

[iii] Id.

[iv] Id.; See Lisa Friedman & Coral Davenport, Trump Administration Rolls Back Clean Water Protections, N. Y. Times (Sept. 12, 2019), https://www.nytimes.com/2019/09/12/climate/trump-administration-rolls-back-clean-water-protections.html [https://perma.cc/X723-6AX2].

[v] Summary of the Clean Water Act, U.S. Envtl. Protection Agency, https://www.epa.gov/laws-regulations/summary-clean-water-act (last viewed Jan. 25, 2022) [https://perma.cc/RG9Q-89EX].

[vi] Overview of CWA Section 401 Certification, U.S. Envtl. Protection Agency, https://www.epa.gov/cwa-401/overview-cwa-section-401-certification (last viewed Jan. 25, 2022) [https://perma.cc/25VE-TET9].

[vii] Exec. Order No. 13,956, 85 Fed. Reg. 65,647 (Oct. 13, 2020).

[viii] Nicholas Iovino, EPA Limits States’ Power to Review Projects That Affect Water Quality, Courthouse News Serv. (July 13, 2020), https://www.courthousenews.com/epa-limits-states-power-to-review-projects-that-affect-water-quality/ [https://perma.cc/BV4V-9RKS].

[ix] Id.

[x] Id.

[xi] Id.

[xii] Victoria McKenzie, Trump-Era Clean Water Rule Hit With Death Blow, Law360 (Oct. 22, 2021, 8:10 PM), https://www.law360.com/articles/1433681/trump-era-clean-water-rule-hit-with-death-blow [https://perma.cc/WZ6S-JN28].

[xiii] Id.

[xiv] Juan Carlos Rodriguez, US, States Oppose Effort to Leave Trump Water Rule Intact, Law360 (Jan. 12, 2022, 3:46 PM), https://www.law360.com/articles/1454814 [https://perma.cc/3RQJ-XV9N].

[xv] Juan Carlos Rodriguez, States, Groups Ask 9th Circ. To Leave Trump Water Rule Intact, Law360 (Dec. 17, 2021, 4:49 PM), https://www.law360.com/articles/1449313 [https://perma.cc/BHW3-AZ9S].

[xvi] Rodriguez, supra note xiv.

[xvii] Bella Wolitz, EPA’s New Clean Water Act Section 401 Certification Rule Limits Tribal Water Permit Power, Brownstein Hyatt Farber Schreck (June 8, 2020), https://www.bhfs.com/blogs/water/epas-new-clean-water-act-section-401-certification-rule-limits-tribal-water-permit-power [https://perma.cc/Z4VA-UFDR].

[xviii] Id.

[xix] Tribal Communities at Risk, Clean Air Task Force, https://www.catf.us/wp-content/uploads/2018/05/Tribal_Communities_At_Risk.pdf (last viewed Feb. 1, 2021) [https://perma.cc/47KV-BY8A].

[xx] Johnnye Lewis et al., Mining and Environmental Health Disparities in Native American Communities, 4 Current Envtl. Health Rep. 130, 131-32 (2017).

[xxi] Id. at 130.

[xxii] Id.; See id. at 131.

[xxiii] Id. at 131.

[xxiv] History of the Clean Water Act, supra note i; Overview of CWA Section 401 Certification, supra vi.