Attorney General Bonta Condemns Trump Administration’s Proposal to Dismantle Water Quality Regulations and Curtail State Authority

OAKLAND — California Attorney General Rob Bonta today co-led a multistate coalition of 18 attorneys general in sending a comment letter opposing a U.S. Environmental Protection Agency (EPA) proposed rule. The rule would rewrite water quality certification regulations to unlawfully curtail state authority under Section 401 of the Clean Water Act (CWA). The proposed rule limits the authority of California, other states, and Native American Tribes to review requests for Section 401 water quality certification and their ability to impose conditions on federal projects that may impact state waters. In the letter, Attorney General Bonta and the coalition assert that the Trump Administration’s attempt to diminish the states’ role under Section 401 will illegally disrupt the congressionally-mandated careful power balance between the federal government and the states, remove significant state water protections, and degrade water quality in California and nationwide.   

“The Trump Administration shows its fluency in the language of lawlessness with its continued illegal proposals to deprive our ecosystems and communities of vital protections,” said Attorney General Bonta. “This proposed rule is another attack on our environment and would result in a significant backslide in water quality, water protections, and state authority over federal projects that may degrade our waterways. As we continue to face threats to clean water, we must preserve and restore clean water resources across the country. While this Administration continues with its repeated attacks on our environment, my office will continue answering the call to defend it.”  

While the EPA is charged with administering much of the CWA, including its objective to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters, Congress recognized and preserved the important powers of states to safeguard their waters in Section 401. Under Section 401 of the CWA, a project requiring federal approval that may discharge pollutants into waters of the United States must obtain a water quality certification from the state where the discharge would originate. Under this certification process, the state (or authorized Tribe) has the authority to review the water quality impacts of the federal project. The state can then either approve the request for certification, impose conditions on the project, deny the certification request, or waive certification. Importantly, states may impose conditions requiring the applicant to follow appropriate state-law requirements. Unless the state or authorized Tribe approves the Section 401 certification request or waives its authority, the federal permit for the project may not be issued.

Since the passage of the CWA in 1972, the EPA has interpreted Section 401 to recognize states’ broad authority to review and approve, condition, or deny certifications for projects requiring federal permits. However, during the first Trump Administration, the EPA promulgated regulations for the first time which sought to drastically limit states’ certification authority. The EPA later modified its Section 401 regulations in 2023, to return to its previous long-standing position. Now, the agency again seeks to modify its regulations in order to limit state authority. 

The current proposed rule would unlawfully limit the authority of states or authorized Tribes to review a request for Section 401 certification so that they may only consider a project’s potential discharge into waters of the United States, rather than the broader water-quality impacts associated with the proposed activity. The rule would also impose restrictions on states’ authority by constraining the review period for certification requests, hampering states’ ability to modify existing certifications should conditions change, and limiting the types of conditions that states may impose in certifications. The proposed rule would also require federally recognized Tribes to develop a full water quality standards program before they could be treated as a certifying authority or as another affected state for Section 401 purposes. Together, these new onerous requirements will significantly curtail state certification authority, limit Tribal participation, and result in further water quality degradation. 

In the comment letter, Attorney General Bonta and the coalition assert that the proposed rule: 

• Is contrary to law because it conflicts with the CWA and applicable case law.
• Is arbitrary and capricious because the Agency failed to provide rational basis and reasoned explanation for its change in position from the 2023 Rule. 
• Is illegal because the CWA does not provide the EPA with authority to regulate Section 401.

Attorney General Bonta is committed to protecting the natural waterways in California and nationwide. He led a multistate coalition opposing the EPA’s attempt to severely limit the definition of waters of the United States, and joined a multistate coalition opposing the EPA’s proposal to weaken reporting requirements for manufacturers of PFAS, toxic “forever chemicals” found in many U.S. waterways. He also led a multistate coalition in supporting the Biden Administration EPA’s proposed rule to reduce water pollution from meat and poultry processing facilities and co-led a coalition to defend the Biden Administration’s rule under Section 401 of the CWA.  

In sending this letter, Attorney General Bonta co-leads with Washington Attorney General Nicholas W. Brown and New York Attorney General Letitia James. Joining them are the attorneys general of Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Wisconsin, and the District of Columbia.