Attorney General Becerra Demands EPA Withdraw its Proposed Rule to Limit States’ Clean Water Act Oversight

SACRAMENTO – California Attorney General Xavier Becerra, leading a coalition of 23 attorneys general with New York Attorney General Letitia James and Washington Attorney General Bob Ferguson, filed a comment letter opposing the U.S. Environmental Protection Agency’s (EPA) proposed rule which would unlawfully curtail state authority under Section 401 of the Clean Water Act. In the Clean Water Act, Congress recognized and preserved states’ broad, pre-existing powers to protect their state waters. EPA has no statutory authority to limit state powers under Section 401. The proposed rule is an unlawful and misguided policy that would degrade water quality and infringe on states’ rights. Consistent with the plain language of the Clean Water Act and the clear legislative intent, EPA’s acknowledgement of state authority spans three decades and four administrations. The proposed rule is a dramatic departure from the prior agency position and the states demand that EPA withdraw it.

“EPA’s proposed rule is yet another reckless attempt by the Trump Administration to weaken Clean Water Act protections for Americans and our nation’s waters,” said Attorney General Becerra. “California has an inherent right under the Clean Water Act to evaluate whether projects comply with state water quality requirements and to deny or impose conditions on federal projects to protect our water resources. This is especially crucial as the Trump Administration continues to sell out our public health and environment for the benefit of polluters and special interests. The EPA must withdraw this unlawful attempt to strip states of their authority to regulate water quality.”

“The Trump Administration’s proposed rule would usurp state and tribal authority to regulate our waters, in violation of the law," said Washington Attorney General Ferguson. "This stunning federal power grab ignores binding Supreme Court precedent, the plain language of the Clean Water Act, and the fact that Washington and other states have successfully implemented clean water programs for half a century. Once again, the Administration has proven that it is willing to place corporate special interests above environmental protection. This time, the Administration is also trying to strip away state and tribal rights to protect waters that the federal government itself refuses to protect. Environmental issues are part of more than half of my office’s 50 cases against the Trump Administration, and more than half of our 24 wins. We haven’t lost a case yet. If the EPA finalizes this unlawful proposal, we’ll have no choice but to explore all legal options to defend Washington’s authority to protect our natural resources.”

In the letter, the coalition asserts that the proposed rule conflicts with the Clean Water Act’s language, Congressional intent, and applicable case law interpreting the Clean Water Act’s language. The proposed rule:

• Unlawfully limits the scope of state certification authority only to certain types of discharges;
• Illegally restricts state conditions on Section 401 certifications to a narrow set of EPA-approved water quality standards;
• Purports to authorize federal agencies to illegally disregard state-issued denials and conditions on certification applications; and
• Unlawfully restricts the timing and scope of state review of certification applications.

The EPA’s unlawful action is the product of President Trump’s April 2019 Executive Order issued to undermine state authority and not to protect water quality. The proposed rule violates the Administrative Procedure Act because it is contrary to law, arbitrary and capricious, and an abuse of discretion. The rule violates the plain language of Section 401 of the Clean Water Act. Moreover, the EPA fails to consider any water-quality related factors in its decision, fails to explain why it is changing its position from the prior Section 401 regulations and guidance, and fails to analyze the effects of the proposed rule on the states. Because the rule conflicts with Section 401 and limits state authority, EPA does not have the authority to issue it.

Attorney General Becerra stands strong to protect state authority to regulate water quality under the Clean Water Act. In April 2019, Attorney General Becerra joined a multistate comment letter to the U.S. Army Corps of Engineers, objecting to its directive to weaken state oversight of projects impacting water quality. The following month, he filed a comment letter warning the EPA that any attempt to roll back state oversight of federal protects would be unlawful. In July, Attorney General Becerra denounced the EPA’s guidance to limit state involvement in the permitting of federal projects under Section 401 of the Clean Water Act. In September, Attorney General Becerra filed a lawsuit against the EPA for its determination excluding the Redwood City Salt Ponds from Clean Water Act protections.

Attorney General Becerra filed the comment letter with the attorneys general of New York, Washington, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Wisconsin, Virginia, and the District of Columbia.

A copy of the comment letter on the EPA’s proposed rule can be found here.