Preserving the Right to Protect Our Own Waters

LCV Government Affairs Fellows Erin Keleske and Ryan Lou testified before the Environmental Protection Agency on July 18 to advocate for the restoration of State and Tribal authorities under Section 401 of the Clean Water Act. In powerful personal statements, Keleske and Lou drew upon their experiences living in California, Wisconsin and North Carolina to highlight the importance of local discretion in environmental decision-making.

As Keleske points out, state governments and Native Nations play a critical role in protecting our waters because they are acutely aware of their communities’ needs and the unique threats to their waterways. Lou cites examples from his home state of California where too many of the state’s lakes, wetlands, rivers and waterways are polluted. These water quality issues are more likely to affect rural, low-income and communities of color, exemplifying the need for federal, state, and tribal governments to work together to safeguard our waters. 

Read Keleske and Lou’s full testimonies on why the EPA must move quickly to finalize a strong Water Quality Certification Improvement Rule under Section 401 of the Clean Water Act:

 

Testimony in Support of the Clean Water Act Section 401: Water Quality Certification Improvement Rule

Erin Keleske, Government Affairs Fellow, League of Conservation Voters

July 18, 2022

Hello and thank you for the opportunity to speak today. My name is Erin Keleske, and I’m a Government Affairs Fellow with the League of Conservation Voters and a Master’s student at Duke University’s Nicholas School of the Environment.The League of Conservation Voters, or LCV, builds political power for people and the planet, influencing policy, holding politicians accountable, and winning elections. This is how we fight to build a better world with clean air, clean water, public lands, and a safe climate, protected by a just and equitable democracy. 

LCV urges the EPA to quickly restore State and Tribal authorities under Section 401 of the Clean Water Act. The Water Quality Certification Improvement Rule gives these certifying authorities the power to protect their most vital resources. This is not a novel power; it was expressly instilled by Congress when they wrote the Clean Water Act as part of the joint federal and state responsibility to safeguard our water resources. 

Our country’s waterways are as diverse as the communities that rely on them. I grew up in Wisconsin along the shores of Lake Michigan where our harbors are riddled with legacy pollutants that must be taken into consideration during permitting decisions. Severe droughts leave Western states desperate to protect fleeting water resources. Here in North Carolina, the State government is working to protect delicate coastal ecosystems and wetlands. And up north, Indigenous communities continue to fight against high-risk fossil fuel infrastructure that threatens the waters that have been sacred to their cultures for generations.

Cooperative federalism is deeply embedded in the Clean Water Act. This state and tribal autonomy has been a critical tool for restoring and protecting our waters over the last 50 years because they are the ones most acutely aware of the unique threats facing their waters. They know the pollutants of concern, how climate change is already impacting their region, and what needs to be done to protect the health and safety of their most vulnerable residents. We greatly appreciate EPA’s choice to respect their expertise by allowing them to take a more holistic range of potential harms into account as part of their review. For example, states and Tribes may consider the potential impacts to water quality of the entire proposed project, instead of being limited to considering the impacts of a particular potential discharge.

The EPA must also remember that states have varying capacities for review, as well. The Clean Water Act gives certifying authorities a “reasonable period of time” to complete the review process under Section 401, but some states and Tribes receive hundreds of Water Quality Certification requests every year. The amount of time given to act on an application must be sufficient for the certifying authority to holistically determine potential impacts. While each project will differ, we urge the EPA to expand the default time from 60 days to 120 days, and expand the list of events that would automatically extend the review period beyond the default.  

Section 401 of the Clean Water Act is an essential check and balance, helping protect our waters and the public from pollution. The intent of Congress is clear. We urge the agency to move quickly to finalize a strong Water Quality Certification Improvement Rule. Every moment without strong protections leaves our precious waterways and the communities that depend on them vulnerable to degradation and destruction. Thank you again for proposing this important rule and for your time today. 

 

Testimony in Support of the Clean Water Act Section 401: Water Quality Certification Improvement Rule

Ryan Lou, Government Affairs Fellow, League of Conservation Voters

July 18, 2022

Hello, my name is Ryan Lou and I am a Government Affairs Fellow at the League of Conservation Voters. I am also a rising junior at Duke University studying Public Policy and Environmental Policy and I live in Diamond Bar, CA in Los Angeles County. 

I am here today to thank the EPA for restoring state and tribal authority to protect water quality under Section 401 of the Clean Water Act. This proposed rule corrects the previous administration’s policy of limiting the ability of states and tribes to review proposed water projects. The Clean Water Act was written to give the federal government and the states joint responsibility for protecting our water quality, and restoring this authority to states and tribes allows them to protect the waters their communities, ecosystems, and economies rely on. 

The Clean Water Act was passed 50 years ago and has helped us make tremendous progress in cleaning up our waterways. However, there are still loopholes and exemptions to the law that hinder our ability to fully achieve the goals of the Act, which can be seen in my state. 95% of California’s lakes, wetlands, rivers, and waterways remain polluted by pesticides, bacteria, metals, and sediment that come from unregulated nonpoint sources. In addition, environmental racism is still an issue plaguing our communities. Small, rural, and low-income communities of color are more likely to face water quality problems, with systems serving less than 3,300 people making up the majority of systems failing to meet safety standards. One notable case is the Los Angeles River, with neighboring communities facing the highest pollution levels across the state. The river is often contaminated with extreme levels of e-coli caused by polluted stormwater drainage, roadways, agriculture, and illegal dumping. Clearly, we must continue to do more to expand the safeguards that ensure every community has access to clean water.  

Returning power to the hands of local indigenous tribes is crucial as well. For example, California’s water rights system was originally created without taking into account the historical importance and significance of these waters to tribal communities, and they were prohibited    from even owning land or water rights. This is, at heart, a system of racism and inequality. By reinstating the ability of Tribes to weigh in and protect their waters, the EPA’s proposed rule is recognizing the vast knowledge of tribal communities and their sovereignty, and respecting the significant role many of these waters play in their culture. 

I appreciate that the EPA is proposing to allow states and tribes to review all potential water quality impacts of a proposed water project when deciding on project requirements. As you look to finalize the rule, I encourage the EPA to also allow states and tribes to review actions that would cause non-point pollution, which, as I mentioned earlier, jeopardizes water quality.

Finally, I urge the agency to make finalizing this rule a top priority because states and tribes are currently bound by the Trump administration’s disastrous rule that limited their authority to safeguard their waters from pollution and destruction. I wholeheartedly support the proposed Clean Water Act Section 401 Water Quality Certification Improvement Rule and encourage the EPA to finish this rule quickly and efficiently to restore authority to the states and protect our waterways, our environment, and our communities. Thank you for your time and consideration.

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