July 27, 2019 - SACRAMENTO – California Attorney General Xavier Becerra, leading a coalition of 14 states and the Pennsylvania Department of Environmental Protection, on Friday filed a comment letter denouncing the U.S. Environmental Protection Agency’s (EPA) guidance that attempts to roll back state involvement in the permitting of federal projects under Section 401 of the Clean Water Act. Section 401 and other provisions of the Clean Water Act preserve states’ authority to protect the quality of the waters within their borders. In the comment letter, Attorney General Becerra asserts that EPA’s guidance, which implements President Trump’s April 2019 Executive Order, is unlawful, directly contravenes both the language and intent of the Clean Water Act, and undermines state authority recognized under the Clean Water Act. 

“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 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 the waters of the United States must obtain state certification confirming that the project meets state water quality standards and other appropriate state law requirements. This certification process ensures adequate assessment of the water quality impacts of proposed federal actions and the imposition of necessary conditions to remedy these impacts. 

The multistate coalition argues that EPA’s guidance is improper. Specifically, the coalition objects to EPA’s disregard for the Clean Water Act, which provides states with a reasonable timeframe to complete the Section 401 water quality certification process. Furthermore, the group opposes EPA’s attempt to restrict the scope of states’ review of projects under Section 401 and to impose federal oversight over the states’ Section 401 decisions. The states request that EPA withdraw or revise the guidance to rectify the deficiencies identified in the comment letter.

Attorney General Becerra leads the Attorneys General of Connecticut, Maryland, Maine, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington; and Pennsylvania Department of Environmental Protection in filing the comment letter.

A copy of the filed comment letter can be found here.
Source: CA. DOJ