EPA proposes limiting power of states and tribes to block major projects over water concerns

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WASHINGTON (AP) — The Environmental Protection Agency on Tuesday proposed limiting states’ and Native American tribes’ power to wield the Clean Water Act to block major projects like natural gas pipelines, advancing the Trump administration’s goal of accelerating the construction of new fossil fuel infrastructure and data centers.

The agency said new constraints on local water quality reviews for federally regulated projects will still allow states to protect their environment while preventing unnecessary delays. Successive administrations have seesawed on the scope of states’ power. President Donald Trump’s first administration reduced it, the Biden administration restored it and now the Trump administration is once again adding constraints to what’s called Section 401 of the Clean Water Act.

“When finalized, the proposed rule will increase transparency, efficiency and predictability for certifying authorities and the regulated community,” said Jess Kramer, EPA’s assistant administrator for water. “It will also ensure states and authorized tribes adhere to their Section 401 role.”

The Clean Water Act allows states and some authorized tribes to review what effect pipelines, dams and other federally regulated projects have on water quality within their borders. Pipelines, for example, might cross rivers, streams and wetlands — disruptions that states can scrutinize and that have caused holdups before. In 2017, for example, New York regulators rejected a permit for a pipeline, saying there weren’t sufficient protections for hundreds of streams and wetlands.

The proposed change is similar to EPA’s rule in Trump’s first term. They proposed a clear description of what applicants need to submit to states, strict deadlines for reviews and a requirement that states fully explain why any conditions were placed on a developer or why their permit was rejected.

In 2023, the Biden administration strengthened states’ and tribes’ authority to conduct water quality reviews. Activists at the time praised the change, saying it would help protect the local environment. The agency said then that states should be able to look beyond pollution that’s released directly into waters and instead “holistically evaluate” the impact of a project on local water quality.

The Trump administration wants to do away with that broader authority to focus reviews on direct releases to federally regulated waters. They are doing so at a time when fewer waters are federally regulated by the Clean Water Act. In 2023, the Supreme Court in Sackett v. EPA limited the federal government’s power to regulate millions of acres of wetlands.

Congress has said that when federally backed projects like oil pipelines or nickel mines affect water quality, fishing and drinking water, states and tribes get to review them and reject proposals that will do too much damage, according to Moneen Nasmith, director of national climate, fossil fuel infrastructure at the nonprofit Earthjustice.

“EPA’s claims that states and tribes are overreaching are baseless,” she said. “This proposed rule is trying to solve for a problem that does not exist.”

Under Administrator Lee Zeldin, the EPA expanded its traditional focus on the environment and public health to include several economic “pillars” like restoring America’s energy dominance — Trump’s shorthand for fossil fuels — and making the U.S. “the artificial intelligence capital of the world.” As demand for new data centers increases, some of these projects will need state water quality permits. Kramer said the update will make the rules for these reviews clear.

“This makes what we are doing in the 401 space crucial, right? Those projects, they need to be able to move forward with certainty,” said Kramer.

A final rule is expected in the spring after a public comment period.

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Associated Press writer Matthew Daly contributed.

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