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States ask Biden to trash Trump-era Clean Water Act change

With shrinking reservoir levels and a summer of water shortages impending, drought-ridden California on Wednesday pressed the Biden administration for more control over future infrastructure projects planned in the Golden State.

California and a collection of states urged the federal government to drop a Trump-era rule that reduced states’ authority to deny permitting and licensing for things like new water infrastructure, oil pipelines, wastewater plants or development projects in wetland areas. The states claim the rule gives them little say over projects that could ultimately harm water quality and the environment.  

“As we find ourselves facing yet another drought, Californians are acutely aware of the value of water and its critical importance to sustaining our communities, ecosystems, and agriculture,” said new California Attorney General Rob Bonta in a statement. “By allowing projects to go forward without state water quality protections, the Army Corps endangers our ability to safeguard this precious resource.”

At issue is a rule change issued by former U.S. Environmental Protection Agency administrator Andrew Wheeler in 2020 intended to “curb abuses of the Clear Water Act.” The Trump administration cast the rule as a means to cut red tape and speed up badly needed infrastructure projects planned across the country.  

“Today, we are following through on President Trump’s executive order to curb abuses of the Clean Water Act that have held our nation’s energy infrastructure projects hostage, and to put in place clear guidelines that finally give these projects a path forward,” Wheeler said in announcing the final rule.

Under the new regulatory framework, the EPA no longer lets states and tribes consider a project’s impact on air emissions or road traffic congestion. The scope of review will be limited to water quality alone.

Additionally, states must take final action on water quality certification requests within one year and only the federal government can allow extensions. States and tribes must also provide more information explaining why conditions imposed on projects are necessary to ensure compliance with water quality standards.

However, critics accused then-President Doanld Trump of gifting the fossil fuel industry with a friendly new process that allows them to squash environmental concerns brought at the state level. More than 125,000 public comments were submitted in opposition to the rule, including many from attorneys general and influential environmental groups.

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Wheeler’s decision drew an immediate Clean Water Act lawsuit from environmentalists and later another filed by more than 20 states including California, Washington state, New York and Oregon. The lawsuits are pending in the Northern District of California.

While the attorneys general acknowledged the potential of the Biden administration reversing the rule change soon, they want the process sped up.

Despite the legality of the rule change in limbo, the states say the Army Corps of Engineers is nonetheless pressing them to rush decisions on pending permits affecting “tens of thousands” of projects nationwide. On its face, the letter is clearly requesting Biden to get directly involved in the permitting fight.

“We mince no words: the Corps’ actions will cost jobs, millions of dollars in unnecessary delays, and will allow some projects to go forward without any conditions to protect state water quality, resulting in significant environmental degradation,” the letter states. “Refusal to rectify the situation will result in significant harm to the environment, regulated parties, impacted industries, and impacted states. We look forward to your response.”

The Army Corps didn’t immediately respond to a request for comment Wednesday afternoon.

Considering California is once again mired in drought, the rule change could have a particularly strong impact as the state jointly operates with the feds a massive water system that supplies both a $50 billion agricultural industry and water for 30 million residents.

Currently both the state and federal government are figuring out how to keep enough water for farmers, fish and cities after a consecutive dreadful rainy seasons. Over 40 of California’s 58 counties are now under drought orders thanks to an unseasonable heat wave that melted an already meager snowpack months earlier than usual and caused record-low springtime stream and reservoir levels across the state.

As the drought stretches on, California wants to regain sway over in-state projects either through an act by the president or a federal judge.  

“California has a long history of working cooperatively with the Corps to effectively and efficiently protect our state’s water resources — a cooperative path undercut by the Trump Administration’s Section 401 Rule,” said State Water Resources Control Board chair Joaquin Esquivel. “The Corps’ adherence to the most expansive interpretation of that rule disrespects Californians’ right to say how clean our water should be and imposes costs we shouldn’t have to pay.”

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National Park Service

Water levels at Lake Mead have dropped by approximately 145 vertical feet in the last 20 years due to ongoing drought, causing a distinctive ring on the rocks.