CWA50: Cooperative Federalism, Section 401, and the MVP
Wild Virginia’s ongoing fight to stop the Mountain Valley Pipeline has showcased a key feature of the Clean Water Act: cooperative federalism. This legal principle supports the statute’s regulatory and enforcement structure, establishing a framework founded on “collaboration between the federal and state governments to achieve a common goal.” Specifically, to restore and maintain the chemical, physical, and biological integrity of our Nation’s waters.
How Cooperative Federalism Works
Cooperative federalism is an “inherent guiding principle” in American environmental law. Such frameworks exist not only in the Clean Water Act (CWA), but also in the Clean Air Act, the Safe Drinking Water Act, the Resource Conservation and Recovery Act, and other major federal environmental statutes. These statutes “split authority and responsibility for adopting, implementing, and enforcing environmental protection standards between the federal and state governments.” Under these laws, Congress delegates authority to federal government agencies (such as the EPA) for adopting minimum national standards for environmental protection. Congress also creates a major role for states “to implement [environmental protection] standards subject to EPA’s approval.”
Importantly, while each level of government has its own roles and responsibilities, federal and state governments must work together to achieve environmental protection goals. Regarding the Clean Water Act, the goal is “improved water quality nationwide.” The Act recognizes the critical need for a collaborative approach to addressing water pollution given the extent and complexity of the issue. The Act’s purpose statement emphasizes that:
It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources . . .
As such, EPA develops minimum national standards for water pollution, provides some financial resources, and oversees the states’ progress. The states “tailor national regulations to meet state-specific needs based on their ground-level knowledge of local watersheds.”
An Example: Water Quality Standards
The Clean Water Act’s Water Quality Standards (WQS) provision is one of the Act’s primary uses of its cooperative federalism model. There, EPA requires state and tribal governments to establish water quality standards. This means state and tribal governments set water quality goals for a water body that “describe the desired condition of [the] water body and the means by which that condition will be protected or achieved.” Water quality standards consist of three parts: (1) designated uses; (2) water quality criteria; and (3) antidegradation requirements. First, designated uses are the purposes for which humans and aquatic organisms use the water body, and for which the water quality will be protected. Examples of designated uses include swimming, fishing, boating, scenic enjoyment, and habitat for aquatic organisms.
Second, water quality criteria is either a numeric amount (e.g. the maximum pollutant concentration levels permitted in a water body) or a narrative description (e.g. a criterion that describes the desired conditions of a water body being “free from” certain negative conditions) that define the water pollution limits for a water body.
Third, antidegradation requirements “provide a framework for maintaining and protecting water quality that has already been achieved.” Once developed, states must submit their water quality standards to EPA for approval before the standards come into effect. EPA ensures the state standards meet or exceed the minimum national standards the agency has set for water quality. In this way, the federal and state governments partner to establish and implement water quality standards in order to improve and protect water quality nationwide.
Section 401 Water Quality Certification
Importantly, the cooperative partnership forged between the federal government and states to improve and protect water quality extends beyond establishing and implementing water quality standards. Under section 401 of the Clean Water Act, a federal agency may not issue a permit or license to conduct any activity that may result in any discharge into waters of the United States unless a Section 401 water quality certification is issued . . . A certification effectively affirms that the proposed activity will not degrade water quality and, consequently, violate the Clean Water Act. “This requirement aims to ensure that the proposed activity will not violate state and tribal water quality requirements . . . Section 401 recognizes that water quality standards are set at state and tribal levels; it provides a process for federal agencies to check in with states
and have [the states] certify that the project will not violate these standards and other requirements.” Notably, the section 401 certification requirement applies to a plethora of federal licenses and permits, including Federal Energy Regulatory Commission (FERC) licenses for natural gas pipelines.
Generally, states where the discharge would originate are responsible for issuing water quality certifications. Virginia possesses this authority, and the State Water Control Board (Board) is the interstate agency that issues Section 401 water quality certifications. Critically, during the certification process, the issuing state authority must take a hard look at water quality and the designated uses of the water bodies where the discharge may occur in order to ensure that the proposed activity will not degrade water quality nor endanger human or aquatic life.
Section 401 Cooperative Federalism in Action: the Mountain Valley Pipeline
At the end of 2021, the Virginia State Water Control Board voted 3-2 to approve a water quality permit for the Mountain Valley Pipeline. This permit constituted a Section 401 water quality certification under the Clean Water Act. The Section 401 requirement applied here because water body crossings and other discharges of “fill” are proposed for hundreds of waterbodies along the path of the Mountain Valley Pipeline. Therefore, the project requires a permit from the U.S. Army Corps of Engineers (Corps), under that agency’s own Clean Water Act authority. The Corps must review the activities under CWA section 404 but that permit can not be issued without a section 401 certification from Virginia (and from West Virginia). The Board based its decision to issue a 401 certification on the recommendation by the Department of Environmental Quality (DEQ) that neither construction nor operation of the Mountain Valley Pipeline would degrade the quality of Virginia’s waters.
Wild Virginia strongly disagrees. For this reason, we have filed a lawsuit requesting review of the Board’s decision to issue a Virginia Water Protection Program Permit/Section 401 water quality certification for the Mountain Valley Pipeline project. This lawsuit is ongoing. Additionally, we are strongly advocating that the Corps must not issue the permit for the Mountain Valley Pipeline despite Virginia’s 401 water quality certification. After all, the Clean Water Act’s cooperative federalism model not only establishes a collaborative federal-state partnership for improving and protecting water quality, but also a system of federal oversight and accountability for states’ failures to fulfill their obligations under the Clean Water Act.