Last month, the House Transportation & Infrastructure Committee (T&I) held a markup session to consider a package of bills related to project permitting under the Clean Water Act (CWA). The package, H.R. 3898, the Promoting Efficient Review for Modern Infrastructure Today (PERMIT) Act, includes more than a dozen bills introduced with the stated goal to “cut red tape, streamlining reviews, and provide greater regulatory certainty under Clean Water Act permitting processes, Much of the proposed legislation intends to reduce regulations surrounding project permits under sections 401 and 404 of the CWA. Section 401 allows states to deny permits for projects that produce discharges into waterways that would adversely affect water quality, while Section 404 requires project permits for the discharge of dredge and fill materials into waterways.
If signed into law, the bill would exempt waste treatment systems, groundwater, and ephemeral streams from CWA regulations; set parameters to limit states’ authority to deny Section 401 permits; require Section 404 permit applications to be fully reviewed before denial, and prohibit the withdrawal of a Section 404 permit once it has been approved; and establish a 60 day window to challenge Section 404 permit in court once it has been approved. The final package was approved along party lines by a vote of 34-30. More than 20 amendments to the package were offered, with nearly all also passing on party-line votes. While committee Republicans praised the package as an important step toward needed reforms to project permitting, Ranking Democrat Rick Larsen (D-WA) said that if enacted, it “put polluters over people by weakening Clean Water Act protections for the nation’s rivers, streams, lakes and wetlands.”
The PERMIT Act now awaits a vote by the full House of Representatives. The package represents the latest effort by Republicans in Congress and the Trump Administration to amend permitting provisions under the CWA to streamline project approval. In February, the House T&I Subcommittee on Water Resources and Environment dedicated its first hearing of the 119th Congress to CWA permitting reform. The subcommittee’s Chairman, Representative Mike Collins (R-GA), stated in that hearing that the law had been used to “slow or stop progress on important projects.” ASCE submitted a statement for the record to the subcommittee arguing for the importance of renewing the CWA and taking an aggressive approach to addressing non-point source pollution from discharges such as urban and road runoff and agricultural activity. In 2020, the first Trump Administration issued a final rule limiting the scope of state’s authority to certify water quality under CWA Section 401 permitting regulations. This rule was later revised by the Biden Administration in 2022.
Further attention to the CWA is expected in the coming weeks and months. In May, the Environmental Protection Agency (EPA) issued a memorandum outlining the administration’s view that states are only able to consider direct negative impacts to water quality when issuing CWA certifications for Section 401 permits. EPA has indicated that it will also address these issues through future guidance and rulemaking. This followed EPA Administrator Lee Zeldin’s announcement in March that the agency would soon issue a new rule revising the definition of “Waters of the United States” that governs which waterways are subject to CWA regulations. EPA stated this revised rule would “follows the law, reduces red-tape, cuts overall permitting costs, and lowers the cost of doing business in communities across the country while protecting the nation’s navigable waters from pollution.”
ASCE will continue to monitor ongoing developments surrounding the Clean Water Act, as well as reforms to the permitting policy for projects.