SACRAMENTO – California Attorney General Xavier Becerra, Washington Attorney General Bob Ferguson and New York Attorney General Letitia James, leading a coalition of 21 attorneys general, today filed a lawsuit challenging the U.S. Environmental Protection Agency’s (EPA) final rule unlawfully curtailing state authority under Section 401 of the Clean Water Act. For more than three decades, the EPA has consistently acknowledged and respected that Section 401 provides states with the authority to approve, impose conditions on, or deny certification for federally permitted projects. However, as directed by President Trump’s April 2019 executive order, the EPA issued a final rule radically altering its water quality certification regulations to restrict state authority under the Clean Water Act. In the lawsuit, the coalition argues that the final rule violates the Administrative Procedure Act and Clean Water Act and must be vacated.
“Once again, the Trump Administration is attempting to undermine the Clean Water Act – this time by limiting longstanding state authority to protect our waters from degradation tied to federally-approved projects,” said Attorney General Becerra. “President Trump fails to understand that he doesn’t get to rewrite the rules just because he doesn’t like them. We’re going to court to make sure the rules are followed. It’s a lesson most of us learned in grade school.”
“Today’s lawsuit is needed because the Trump Administration wants to take away California’s long-established right to protect rivers from the negative impacts of massive hydropower dams. Our rivers and streams are critical to California’s ecosystems and economy,” said Jared Blumenfeld, California Secretary for Environmental Protection. “Giving the federal government the ability to control California’s environmental future is not an option. We must remain vigilant against these never-ending attacks on common-sense environmental protections.”
“The EPA regulations break faith with the underlying balance of state and federal power in protecting the state's waters from all types of pollution,” said State Water Resources Control Board Chair E. Joaquin Esquivel. “Federal actions that allow discharges affecting our states waters have profound and lasting impact on California’s water resources. This lawsuit is necessary to ensure that the Clean Water Act’s protections can be fully realized.”
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 projects requiring Section 401 certification range from housing and commercial land development to hydropower and pipeline construction. This certification process ensures adequate assessment of the impacts of proposed projects and the imposition of necessary conditions to remedy these impacts.
On July 13, 2020, the EPA issued a final rule arbitrarily re-writing existing water quality certification regulations to limit state authority under the Clean Water Act. The rule will impair states’ ability to fully and efficiently review project proposals for water quality impacts and make it more difficult for states to fulfill their fundamental obligation to protect their waters and wetlands. The multistate coalition challenging the rule represents a substantial portion of the United States, including the entirety of the Pacific Coast from Mexico to Canada, large portions of the Atlantic Coast, the Great Lakes and Lake Champlain, the Chesapeake Bay, and the majority of the Columbia River.
In the lawsuit, the coalition argues that the EPA’s drastic curtailment of state authority under Section 401 is unlawful because it is contrary to:
In 2019, Attorneys General Becerra, Ferguson, and James led multistate coalitions in filing comment letters opposing the EPA’s unlawful guidance and proposed rule seeking to curtail state authority under Section 401 of the Clean Water Act.
In filing the lawsuit, Attorneys General Becerra, Ferguson, and James are joined by the attorneys general of Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Wisconsin, and the District of Columbia.
A copy of the lawsuit is available here.