A bipartisan bill designed to accelerate federal approvals for major infrastructure projects would weaken a critical state tool for safeguarding water quality under the Clean Water Act. The Bipartisan American Affordability and Jobs Act (BAAJA) alters Section 401, which allows states to review and certify federal permits—such as those for dams, pipelines, or industrial discharges—before issuance.
Section 401 operates as one of the Clean Water Act’s most vital yet least recognized mechanisms. It empowers states to assess and certify federal permits, from hydropower licenses to Army Corps of Engineers approvals for dredging or wetland filling, before finalization. If a state objects, the project halts. More commonly, states attach requirements to ensure compliance with water quality standards. These reviews occur thousands of times annually, shaping outcomes across diverse projects.
The bill’s revisions would narrow state regulatory authority. Currently, states can impose conditions based on a project’s broader environmental impact, not just direct pollutant discharges. For example, a state might mandate minimum river flows for dam operators to protect fish habitats, even if the dam does not release pollutants. Under BAAJA, such protections would be eliminated. The legislation also raises the legal burden for state permit denials, demanding proof that objections represent the “least burdensome” solution, a far stricter standard than the existing “reasonable basis” requirement.
While some lawmakers frame the changes as targeting only “linear infrastructure” like pipelines, the text applies to all federal permits under Section 401. This includes hydropower projects, where states have leveraged 401 authority to push for dam removals, such as those on the Klamath River in California and the Penobscot and Kennebec Rivers in Maine. In these cases, Section 401 enabled states to demand flow adjustments that restored fish populations and reduced flood risks, often at minimal cost to energy producers.
How the Corps Loses a Key Partner
The Army Corps of Engineers has historically relied on Section 401 to collaborate with states on permitting. Research interviews with Corps staff revealed that state input through 401 helped tailor permits to local conditions, whether stricter limits on dredging in sensitive estuaries or expedited approvals for routine projects. One official described the process as a “hand-in-glove” partnership, where states and federal agencies negotiate conditions upfront to prevent delays. The bill’s changes risk disrupting this balance, forcing the Corps to issue permits without state input or face legal challenges.
Read Also: Democrats win big in Congress and states
Industry groups have long opposed Section 401, portraying it as a permitting obstacle. Natural gas pipelines have been the most visible conflict point, with states like New York and Vermont denying certifications over water crossings or cumulative environmental harm. The hydropower sector has faced similar disputes for decades. Dams alter river flows, disrupt fish migration, and increase downstream flood risks, areas where Section 401 has granted states a role. Under BAAJA, protections would be confined to water quality at the discharge point, ignoring broader ecological effects.
Waivers Risk Shifting Power to Weakest Protections
The bill also introduces a provision that could weaken federal oversight when states waive Section 401 authority. If a state declines to review a project, perhaps due to border proximity or political influence, the federal permitting agency would have no recourse to address water quality concerns. Courts may struggle to reconcile this with existing law, but the result could be final authority shifting to the least protective government.
Wetlands and rivers serve as natural flood barriers, and healthy aquatic ecosystems help regulate water flow, both increasingly critical as extreme weather intensifies. The bill’s changes would remove a state-led safeguard layer during a period when water infrastructure faces growing pressure from droughts, storms, and aging dams.
The proposed changes would also eliminate states’ ability to protect waters not covered by the Clean Water Act’s “waters of the United States” definition. Currently, states can use Section 401 to shield streams, wetlands, or groundwater systems that may not meet federal criteria but remain ecologically vital. For example, a state might require a developer to avoid filling a seasonal wetland even if the Army Corps of Engineers does not regulate it under Section 404. BAAJA would eliminate such protections, exposing these resources to unchecked development. The bill explicitly ties conditions to federal water-quality laws, preventing states from imposing safeguards on waters not classified as “discharges” under the Clean Water Act.