With New Biden Rule Tribes Have More Authority to Block Projects That Affect Water

WASHINGTON D.C. – States and Native American tribes will now possess enhanced powers to halt energy projects, including natural gas pipelines, that might contaminate rivers and streams. This change comes as a result of a final rule announced on Thursday by the Biden administration.

Effective from November, this rule counteracts a previous directive from the Trump era that restricted states’ and tribes’ capacity to evaluate pipelines, dams, and other federally overseen projects on their lands. According to the Environmental Protection Agency, this updated regulation aims to bolster local authorities in safeguarding rivers and streams, while also promoting infrastructure projects that lead to job creation.

“We actually think this is going to be great for the country,” said Radhika Fox, assistant administrator for water. “It’s going to allow us to balance the Biden administration goals of protecting our water resources and also supporting all kinds of infrastructure projects that this nation so desperately needs.”

At a briefing, Fox confirmed that the water rule will undergo significant revisions compared to a previous draft, due to the Supreme Court’s decision which affected regulations safeguarding vast areas of wetlands. The verdict in the Sackett v. EPA case substantially curtailed the federal government’s oversight of wetlands, demanding a more evident linkage between wetlands and larger bodies of water, such as oceans and rivers. This May decision is projected by environmentalists to affect protections for tens of millions of acres of wetlands.

While Fox didn’t specify the count of water bodies that would be unprotected, she noted that the Sackett case “substantially restricts the number of waters we anticipate to fall under federal jurisdiction” once evaluations are carried out by the Army Corps of Engineers. On the implementation of the rule, she mentioned that while collaboration with states, tribes, and territories will be maintained, the distinction between jurisdictional and non-jurisdictional waters would rely on “very case-specific reviews” by the Corps.

The prior month witnessed another move by the Biden administration which relaxed regulations safeguarding vast swaths of wetlands, pointing to the Supreme Court ruling as the reason. The definition of the “Waters of the United States” demonstrates a significant policy deviation from decades-long federal guidelines regarding the country’s waterways.

However, the federal Clean Water Act allows states and tribes to assess the impacts of certain federally governed projects, like pipelines and dams, on their water quality. Efforts by the Trump administration aimed to expedite fossil fuel projects and made obstruction by local authorities more challenging. The rule introduced on Thursday aims to restore authority to states, tribes, and territories.

EPA Chief Michael Regan emphasized that the updated rule underscores the rights of states, territories, and tribes “to safeguard vital water resources while advancing federally sanctioned projects in an open, prompt, and foreseeable manner.”

This rule permits states and tribes to collaborate with federal entities to set the review duration—capped at a year. However, in situations where local and federal authorities cannot reach a consensus, a default period of six months is set.

The EPA promotes the idea that states ought to have a broader scope when considering pollution, allowing them to assess a project’s overall impact on local water quality. This updated guideline augments the influence of local regulators, ensuring they possess the necessary data before being compelled by deadlines to approve or reject a permit, as per the EPA.

Environmental organizations have posited that this revised rule will simplify the process for states and tribes to evaluate projects potentially detrimental to water quality.

According to Moneen Nasmith, senior attorney at Earthjustice, who defended tribes in Washington state, Nevada, and Alaska in a lawsuit against the 2020 rule, “this rule will help end the regulatory chaos states and tribes have operated under” since the rollback during the Trump administration.

“Now, state and tribal authorities can much more confidently exercise their authority to review and reject” or add conditions to projects that threaten water quality, Nasmith said.

Industry representatives expressed concerns that a rule proposed in the previous year might introduce undue delays for various infrastructure undertakings, encompassing pipelines, dams, and bridges.

Ex-President Donald Trump contended that states were misusing the Clean Water Act to obstruct essential fossil fuel initiatives. For instance, New York leveraged its review capacity to reject specific natural gas pipeline proposals. In 2017, Washington state declined to green-light a coal export terminal.

In 2020, officials from the EPA voiced that the Clean Water Act should not be a tool to stall infrastructure advancements and consequently introduced a rule that diminished the influence of states and tribes.

However, this regulation introduced during Trump’s tenure was overruled by a federal judge in 2021. This decision was later reversed by a split Supreme Court decision. The court’s trio of liberal justices, along with Chief Justice John Roberts, expressed disagreement. They argued that the rule’s proponents failed to demonstrate substantial harm resulting from the decision of the lower court.