Michigan Attorney General Dana Nessel and 22 other attorneys general last week filed a comment letter opposing the U.S. Environmental Protection Agency’s (EPA) proposed rule which would unlawfully curtail state authority under Section 401 of the Clean Water Act. The attorneys general argue that the proposed rule is an unlawful and misguided policy that would degrade water quality and infringe on states’ rights.
In the Clean Water Act, Congress recognized and preserved individual states’ broad, pre-existing powers to protect their waters.
In their letter, the attorneys general argue the proposed rule is a dramatic departure from the prior agency position and, since it conflicts with Section 401 and limits state authority, the EPA does not have the authority to issue it.
“Retaining the right to protect Michigan’s water resources is crucial to the well-being of our residents and our environment,” said Nessel. “The rule proposed by the federal government not only threatens that right, but blatantly disregards the EPA’s own acknowledgment of state authority for the past three decades across four different administrations.”
In their comment letter, the attorneys general challenge the proposed rule as “arbitrary and capricious, and an abuse of discretion” under the Administrative Procedure Act. Furthermore, the EPA fails to consider any water-quality related factors in its decision, fails to explain why it is changing its position from the prior section 401 regulations and guidance, and fails to analyze the effects of the proposed rule on the states.
In a related action, last month, Nessel and a bi-partisan coalition of 21 states filed a brief in the U.S. Supreme Court in California Trout v. Hoopa Valley Tribe. The case seeks review of a D.C. Circuit Court decision that – like the proposed rule – would limit states’ ability under Section 401 to ensure their water quality standards are applied to projects needing federal licenses and permits.
In their letter, the attorneys general assert that the proposed rule conflicts with the Clean Water Act’s language, congressional intent, and applicable case law interpreting the Clean Water Act’s language. The proposed rule would:
• Unlawfully limit the scope of state certification authority only to certain types of discharges.
• Illegally restrict state conditions on Section 401 certifications to a narrow set of EPA-approved water quality standards.
• Purportedly authorize federal agencies to illegally disregard state-issued denials and conditions on certification applications.
• Unlawfully restrict the timing and scope of state review of certification applications.
Nessel joins the attorneys general of California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin, and Virginia in filing this comment letter.
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