As West Faces Drought, Attorney General Bonta Calls on Army Corps to Respect California's Authority to Protect State Waters

Wednesday, May 12, 2021
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SACRAMENTO – California Attorney General Rob Bonta joined a coalition of six states and the California State Water Resources Control Board in calling on the U.S. Army Corps of Engineers (Army Corps) to respect state authority under Section 401 of the Clean Water Act to approve, impose conditions on, or deny certification for federally permitted projects that may result in discharges into waters of the United States. In their letter, the attorneys general expressed concern over the Army Corps’ recent decisions excluding state water quality certification conditions or finding that states have waived their authority to review and certify Nationwide Permits proposed for reissuance. As a result, states, including California, will be forced to adopt individual water quality certifications for dischargers, to the detriment of water quality and at significant cost to the states and their taxpayers.

“As we find ourselves facing yet another drought, Californians are acutely aware of the value of water and its critical importance to sustaining our communities, ecosystems, and agriculture,” said Attorney General Bonta. “By allowing projects to go forward without state water quality protections, the Army Corps endangers our ability to safeguard this precious resource. We hope the Army Corps will engage with this coalition and reestablish its longstanding deference to state authority under the Clean Water Act.”

“California has a long history of working cooperatively with the Corps to effectively and efficiently protect our state’s water resources — a cooperative path undercut by the Trump Administration’s Section 401 Rule,” said California State Water Resources Control Board Chair Joaquin Esquivel. “The Corps’ adherence to the most expansive interpretation of that rule disrespects Californians’ right to say how clean our water should be and imposes costs we shouldn’t have to pay.” 

Last year, the Trump Administration finalized a rule unlawfully curtailing the broad authority granted to states under Section 401 of the Clean Water Act to protect their waters from pollution and other harmful discharges. The rule, challenged by a California, Washington, and New York-led coalition in July 2020, is currently under review by the U.S. Environmental Protection Agency (EPA). But despite the possibility that the EPA will choose to rescind or significantly revise the rule in the coming months, the Army Corps has cited it in issuing several decisions declining to rely on state certification conditions or concluding that states have waived their authority to issue Section 401 certifications for Nationwide Permits. 

In the letter, the coalition argues that the Army Corps’ decisions in these instances, based on the states’ alleged failure to comply with the Section 401 regulations, are illegal and unfounded. Nationwide Permits regulate discharges from tens of thousands of projects under the Clean Water Act’s dredge and fill program. Legal arguments aside, the Army Corps’ actions will cost jobs, millions of dollars in unnecessary delays, and likely result in significant environmental degradation.

Attorney General Bonta joins the attorneys general of Washington, Connecticut, Maryland, New Mexico, and Oregon, as well as the California State Water Resources Control Board, in sending the letter.

A copy of the letter can be found here.

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