AG Becerra Warns EPA: State Oversight Is Required by Law Under the Clean Water Act

SACRAMENTO, May 28, 2019 – California Attorney General Xavier Becerra, as part of a coalition of 16 states and four state environmental agencies, filed a comment letter warning the U.S. Environmental Protection Agency (EPA) that any attempt to roll back state oversight of federal projects under Section 401 of the Clean Water Act (CWA) would be unlawful. The letter responds to the EPA’s request for recommendations to revise existing guidance and regulations implementing Section 401. The statute preserves states’ authority to protect the quality of the waters within their borders. The EPA’s invitation begins the implementation of President Trump’s April 2019 Executive Order issued to undermine state authority recognized under the CWA.

“This rushed process 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. We won’t sit by quietly while the Trump Administration tries to rob us of our rights and degrade water quality for our people simply to benefit polluting industries.”

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The CWA 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 CWA, a project requiring federal approval that may result in discharges into the waters of the United States must obtain the state’s certification that the project meets state water quality standards and other appropriate state law requirements. This certification process includes adequately assessing the water quality impacts of proposed federal actions and imposing necessary conditions to remedy these impacts. States argue that there is no need for the proposed revisions to the statute, and that neither President Trump’s Executive Order nor the EPA’s guidance or policies can undermine the CWA.

In the comment letter, the coalition objects to any efforts to abbreviate the time-frame for states to complete the Section 401 water quality certification process and ensure compliance with state water quality standards. Furthermore, the group opposes any attempt to restrict the scope of states’ review and oversight of projects under Section 401. The EPA’s request for recommendations on future revisions to the existing Section 401 guidance and regulations is simply a step towards restricting state oversight. The comment period comes ahead of the agency’s revised guidance, which the Executive Order requires to be published just 17 days after the comment period ends. The speed of this process, and the EPA’s failure to disclose its proposed revisions ahead of the comment period, points to a process with a predetermined outcome. In the letter, the state attorneys general suggest that rather than make unnecessary changes to Section 401 guidance and regulations following a sham process, the EPA should simply continue applying its existing guidance and regulations.