Attorney General Becerra to Army Corps: Directive to Weaken State Oversight of Water Quality is Unlawful

SACRAMENTO – California Attorney General Xavier Becerra today joined a multistate comment letter objecting to the U.S. Army Corps of Engineers’ (Army Corps) directive to weaken states' oversight of projects impacting water quality. The Army Corps’ directive would drastically shorten timeframes for state water quality certifications under Section 401 of the Clean Water Act (CWA). This abbreviated timeframe would prevent states from adequately assessing the water quality impacts of proposed federal projects to ensure states’ water resources are protected.

“This directive is another egregious attempt by the Trump Administration to illegally weaken the protections afforded by the Clean Water Act,” said Attorney General Becerra. “California has an inherent right under the Clean Water Act to evaluate whether projects meet our water quality standards and to impose conditions to protect our waters.”

Under the CWA, a project requiring federal approval that may result in discharges into “waters of the United States” must obtain the state’s certification that the project meets state water quality standards. Under Section 401, a state must act on a request for certification within a reasonable period of time, not to exceed one year. If the state does not act within that period, the certification requirements are waived. The Army Corps’ directive seeks to drastically reduce the time period for state review from one year to 60 days, even if the request is incomplete or otherwise deficient. If implemented, the directive would deprive the nation’s waters of CWA protections, because California and other states will have insufficient time to ensure that projects comply with state water quality standards. 

The multistate comment letter argues that the directive conflicts with both the CWA and the Administrative Procedure Act. By imposing a shortened 60-day default time period for states to evaluate a project and ensure compliance with state water quality standards, the directive is inconsistent with the CWA’s primary objective to protect water quality.

Joining Attorney General Becerra in writing the comment letter are the Attorneys General of New York, Colorado, Connecticut, Maine, Maryland, Minnesota, New Jersey, North Carolina, Rhode Island, Vermont, and Washington, and the Commonwealths of Massachusetts and Virginia.

This letter builds on Attorney General Becerra’s previous efforts to safeguard California’s waterways. In February 2018, Attorney General Becerra, joined by 10 attorneys general, filed a lawsuit against the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers to protect the Clean Water Rule from suspension. In September and December, Attorney General Becerra filed opposition to the Trump Administration’s illegal attempt to repeal the 2015 Clean Water Rule. On April 15, 2019, Attorney General Becerra joined a multistate comment letter opposing the Trump Administration’s proposal to unlawfully replace the Clean Water Rule and narrow CWA jurisdiction and protections. 

A copy of the letter can be found here.