Pending Snowstorm; No In-Person Activities Sat, Jan. 29. Law Library will be closed. More info

October 22, 2019
Contact: Tom Lalley


23 State Attorneys General Assail EPA’s Proposal to Restrict States’ Rights to Protect Water Quality Within Their Borders

EPA’s proposed rule would dramatically restrict states' Section 401 water quality certification authority.

Washington, D.C. —  A coalition of 23 state attorneys general led by Washington Attorney General Bob FergusonCalifornia Attorney General Xavier Becerra and New York Attorney General Letitia James submitted comments to the Environmental Protection Agency (EPA) yesterday objecting to a proposed rule that unlawfully usurps states’ rights to protect the quality of waters within their borders, as authorized by Section 401 of the Clean Water Act. The EPA's proposed rule was developed in response to President Trump’s Executive Order 13,868, which purports to promote the development of new fossil fuel energy infrastructure.
"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,” said Washington Attorney General Bob Ferguson. “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.”
“EPA’s proposed rule violates the Clean Water Act and applicable case law interpretation of the Act’s clear statutory language,” wrote the AGs in their comments. “Moreover, the proposed rule represents bad policy that will create far more problems for project proponents than it purports to solve — all to the detriment of water quality and states’ rights.”
The Clean Water Act provides the states with broad authority to adopt the conditions and restrictions to protect state waters, so long as a state does not adopt standards that are less protective than federal standards. Section 401 of the Clean Water Act requires that federally-permitted projects involving discharges into waters of the United States must obtain a certification from the relevant state, and it prevents the federal government from using its licensing and permitting authority to approve projects that violate state water quality laws.
“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 California 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.”
In their comments, the AGs note that “every provision of the proposed rule appears designed to curtail state authority under section 401,” and warn the proposed rule would:

  • Unlawfully limit state certification authority to point source discharges from proposed projects into navigable waters;
  • Restrict state conditions to those necessary to ensure compliance with a narrow set of EPA approved water quality standards;
  • Allow federal agencies to disregard timely-issued denials and state-imposed conditions on certification applications and;
  • Dictate the timing and scope of state review of certification applications.

The attorneys general of Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Wisconsin and Washington, D.C. joined Washington, California and New York in filing the comments.


About the State Energy & Environmental Impact Center
The State Energy & Environmental Impact Center (State Impact Center) is a non-partisan Center at the NYU School of Law that is dedicated to helping state attorneys general fight against regulatory rollbacks and advocate for 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