Attorney General Bonta: As California Faces Devastating Drought, EPA Must Move Swiftly to Reverse Rule Curtailing States’ Clean Water Act Authority

Monday, August 2, 2021
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OAKLAND – California Attorney General Rob Bonta today, leading a multistate coalition with Washington Attorney General Bob Ferguson and New York Attorney General Letitia James, urged the U.S. Environmental Protection Agency (EPA) in a comment letter to swiftly repeal a Trump-era rule curtailing state authority under Section 401 of the Clean Water Act. California co-leads a similar coalition in a lawsuit challenging the rule, arguing that the rule unlawfully impedes California’s ability to protect its waters and wetlands. Already, the rule has created uncertainty and confusion, complicating and delaying urgently needed action to address the drought. 

“As drought conditions across the West grow increasingly dire, Californians are relying on state agencies to take necessary steps to address this unprecedented emergency,” said Attorney General Bonta. “Unfortunately, every day this unlawful Trump-era rule remains in effect puts our ability to safeguard this precious resource in further jeopardy. I urge the EPA to take swift action to restore California’s ability to protect its waters, which sustain the health and livelihoods of our communities.”  

The Clean Water Act reflects Congress’ policy to “recognize, preserve, and protect the primary responsibilities and rights of states to prevent, reduce, and eliminate pollution” of waters within their borders. Under Section 401 of the statute, a project requiring federal approval that may result in discharges into waters of the United States must obtain state certification confirming that the project meets state water quality standards and other appropriate state law requirements. The California State and Regional Water Resources Control Boards issue approximately one thousand such certifications each year, for projects ranging from housing and commercial land development to hydropower and pipeline construction. As Attorney General Bonta argued in a letter submitted to the U.S. Army Corps of Engineers (Army Corps) in May, the revisions to Section 401 have also had a significant impact on the issuance of nationwide permits, the Army Corps' issuance of several decisions excluding states' water quality certification conditions, or finding that states had waived their authority to certify certain Nationwide Permits. As a result, many states, including California, will be forced to evaluate projects covered by Nationwide Permits individually, and issue state certifications on a project-by-project basis and adopt individual water quality certifications for dischargers at significant cost to the states and their taxpayers.

In today’s comment letter, the coalition argues that the EPA must repeal the Trump-era revisions to Section 401 and restore states' broad authority to approve, impose conditions on, or deny Section 401 certifications for federally permitted projects, as expressly recognized by the Clean Water Act. 

Attorneys General Bonta, Ferguson, and James are joined by the attorneys general of New York, Washington, Colorado, Connecticut, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Pennsylvania, Virginia, and the District of Columbia.

A copy of the comment letter can be found here.

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