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Fourteen AGs Blast EPA Guidance Limiting State Clean Water Act Permitting Authority

The Trump administration is attacking states’ rights to protect the health and safety of their critical waterways in order to push new fossil fuel infrastructure projects. 

The EPA’s Guidance undermines the cooperative federalism framework of the Clean Water Act; “directly contravenes” the plain language of law and Congressional intent.


July 26, 2019
Contact: Christopher Gray

Washington, D.C. — California Attorney General Xavier Becerra led a coalition of 14 state attorneys general in submitting comments yesterday to the Environmental Protection Agency (EPA) objecting to the agency’s new guidance limiting state authority over water quality permits under Section 401 of the Clean Water Act. The EPA developed its “Clean Water Act Section 401 Guidance for Federal Agencies, States and Authorized Tribes” in response to President Trump’s Executive Order 13,868, which purports to promote the development of new fossil fuel energy infrastructure.

“EPA’s guidance is yet another reckless attempt by the Trump Administration to weaken Clean Water Act protections for the nation’s waters,” 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 on federal projects to protect our water resources. The EPA must withdraw this unlawful attempt to strip states of their authority to regulate water quality.”

The EPA’s new guidance imposes strict limitations on states’ abilities to collect complete information about a project’s expected impacts on water quality, and sets arbitrary and unreasonable time limits on the amount of time states have to complete reviews of water quality certification applications under Section 401 of the Clean Water Act.

In their comment letter, the attorneys general noted that the EPA’s new guidance directly contravenes the explicit text of Section 401 of the Clean Water Act, which “recognize[s], preserve[s] and protect[s] the primary responsibility of States to prevent, reduce and eliminate pollution” of protected waters within their borders. Additionally, the AGs noted that the guidance unlawfully restricts the incorporation of National Environmental Policy Act (NEPA) reviews of projects’ impacts on water quality, and allows federal agencies to disregard state decisions under certain circumstances. 

“The EPA’s new guidance runs counter to decades of regulatory precedent and the plain text of the law and is entirely inconsistent with any common understanding of cooperative federalism,” said Elizabeth Klein, Deputy Director of the State Energy & Environmental Impact Center at NYU School of Law. “State attorneys general will not stand idly by while this administration continues to trample on state authority to protect their residents from dangerous water pollution.”

The state attorneys general of Connecticut, Maryland, Maine, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington joined California in submitting the comments to the EPA.

The State Energy & Environmental Impact Center is a non-partisan Center at the NYU School of Law that is dedicated to working with state attorneys general to protect and advance clean energy, climate change, and environmental values and protections. It was launched in August 2017 with support from Bloomberg Philanthropies. For more information, visit our website.