New Rule Takes Aim at State and Tribal Rights to Protect Clean Water

The Trump Administration is currently trying to dramatically reduce the streams, wetlands, and other waters protected from pollution and destruction under the Clean Water Act. At the same time, they’re also trying to restrict the right for states and tribes to protect waters within their boundaries. This all-out assault on the Clean Water Act would take us back to the days when rivers caught fire – threatening our drinking water supply and habitat for wildlife like salamanders and orca whales.

In order to ensure a strong state and tribal role in protecting local waters, the Clean Water Act gives states and tribes the authority to review federally licensed and permitted projects like dams, pipelines, and roads that will impact local water quality and certify that these projects comply with state water quality standards and state law. States can deny the certification – meaning the project cannot go forward without changes to protect waters. States can also condition projects to improve impacts to water quality, allow for fish passage, ensure adequate stream flow, preserve fish and recreational access, or other conditions to protect state waters. The law is clear that state conditions to protect waters must be a part of such permits or licenses and cannot be ignored.

The largest member of the dolphin family, orcas are highly intelligent and social animals, spending their lives in groups or pods where they hunt together and share responsibility for raising young and taking care of the sick or injured. Photo by Joe Schmitt/NWF Photo Contest

For nearly 50 years, this critical tool has allowed states and the federal government to cooperatively manage our nation’s water resources and ensured that local voices are not silenced along the way. It has stopped or helped improve bad projects that would damage water quality or fish and wildlife habitat across the nation. However, the Administration is proposing a new regulation that would undermine this longstanding state and tribal authority.

The administration’s proposal would dramatically narrow the scope of issues states and tribes can review or include as conditions on a permit for dams or infrastructure projects, putting these protections at risk. It would also let the federal government ignore state and tribal voices by allowing federal agencies to override a state or tribal decision. Additionally, the proposal limits the timeline that states and tribes have to complete review.

It would also limit the conditions that trigger this water quality protection process to only waters that the current administration considers to be a “water of the United States.” The Trump administration is currently trying to dramatically reduce the scope of “waters of the United States,” meaning that the ability for states and tribes to protect non-federal waters would be greatly undercut, and could even result in not requiring a 401 certification for federally licensed activities that impact state or tribal waters that are not considered “waters of the United States.”

Known by some as “wolves of the sea,” orcas hunt in packs, using their numbers to herd prey into a small or isolated area before attacking. An adult orca consumes an average of 500 pounds of food a day. Dwindling prey resources like Chinook salmon threaten these whales. Photo by Heather MacIntyre/NWF Photo Contest.

Orca Whales and Salmon Runs

In 2017, Washington’s Department of Ecology denied a Clean Water Act certification for a proposed coal export facility in Longview, Washington, due to harmful impacts to the Columbia River’s water quality, fisheries, tribal resources, and wetland habitat.

From high mountain streams to broad rivers, to estuaries and the ocean, salmon species like Chinook are our “canaries in the coalmine,” alerting us to the impact of climate change on the health of our entire ecosystem. Photo by BLMIdaho/Flickr.

The Columbia River Basin’s streams and rivers are critical to several types of trout and salmon, including Chinook, or king salmon, which swim thousands of miles from the ocean to freshwater spawning grounds in the Columbia River every year. Tiny salmon fry emerge from the gravel nests and begin their migration downstream to the estuary, where they adapt to the saltwater, before heading out into the open ocean. For generations, tribes have fished these salmon and steelhead runs, and salmon are a critical food source for endangered orca whales and many other animals along the journey. Without Section 401, the construction of the proposed coal export terminal – which would have been the largest in North America – and subsequent pollution, would have harmed everyone that depends on strong salmon runs for a living, including orca whales.

Chesapeake Blue Crabs

For decades, the Conowingo Dam, which is a major hydroelectric dam in Maryland, trapped nutrient and sediment pollution on the Susquehanna River, preventing it from flowing downstream into Chesapeake Bay. However the reservoir behind the dam is now full and more pollution flows downstream than the Chesapeake Bay cleanup plan originally accounted for, harming water quality and habitat for fish and wildlife, including the Chesapeake Bay’s iconic blue crab.

During the past century, agricultural nutrients and polluted urban runoff have tainted water quality and degraded thousands of acres of bay grasses, which provide critical hiding and foraging grounds for blue crabs. Photo by Will Parson/Chesapeake Bay Program

As part of the process to get a new 50 year operating license for the dam, Exelon had to request a water quality certification from Maryland. In 2018, Maryland certified the renewal, but with the condition that Exelon must reduce sediment and nutrient pollution that flows from behind the dam into Chesapeake Bay. It also requires Exelon to improve conditions for aquatic life, including controlling freshwater flows from the dam into the delicate Chesapeake Bay estuary as well as improving fish migration to spawning areas upstream. Although Exelon has since challenged this certification, limiting Section 401 authority could significantly undermine Maryland’s ability to place protective conditions on projects like Conowingo Dam to protect downstream water quality.


As proposed, the Constitution Pipeline would stretched nearly 100 miles through New York, cutting a 100-foot wide swath across hundreds of streams and creeks, including 85 trout streams, degrading wetlands and clearing out hundreds of acres of forest. New York State denied water quality certification for the pipeline, because the pipeline company failed to provide meaningful information demonstrating that the pipeline would comply with state water quality standards.

Salamanders are sensitive to water pollution because their permeable skin, which allows them to breathe underwater, also permits for easy entrance of toxins into their bloodstream. Photo by Ryan Hagerty/USFWS

Salamanders are particularly vulnerable to poor water quality, because of their permeable skin, which allows them to breathe underwater. The Constitution Pipeline would have cut across areas where salamanders live, degrading water quality and habitat.

A lot of salamander species do not have lungs and instead breathe through their skin. Because of this, they are highly susceptible to water pollution. Photo by Dick Bartlett/NWF Photo Contest.

Take Action

History has shown us that waters and wildlife benefit from strong state, tribal, and federal cooperation to ensure the needs of local communities, fish and wildlife, recreation, and traditions are met. Tell the Trump Administration that you oppose any attempt to silence local voices and changes to the longstanding state and tribal authority under the Clean Water Act to protect clean water.

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