Herring fights to preserve states’ authority to protect state waters

Attorney General Mark Herring, as part of a 23 state coalition, has filed a comment letter opposing a proposed EPA rule that would curtail state authority to protect their waters.

In the Clean Water Act, Congress recognized and preserved states’ broad, pre-existing powers to protect their state waters and the EPA has no statutory authority to limit state powers under Section 401 of the Act.

The proposed rule is an unlawful and misguided policy that would degrade water quality and infringe on states’ rights. Consistent with the plain language of the Clean Water Act and the clear legislative intent, the EPA’s acknowledgement of state authority spans three decades and four administrations. The proposed rule is a dramatic departure from the prior agency position and the states demand that the EPA withdraw it.

“Once again, the Trump Administration is trying to undermine the states’ ability to protect their environment, and in this case their water,” said Herring. “This proposed rule is not only illegal under the Clean Water Act but it infringes on the states’ authority and it would create dirtier water across the country. I will continue to join my colleagues in standing against the Trump Administration’s unlawful attempts to take power away from the states and especially in such important areas like protecting our environment.”

In the letter, the coalition asserts 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:

• Unlawfully limits the scope of state certification authority only to certain types of discharges;
• Illegally restricts state conditions on Section 401 certifications to a narrow set of EPA-approved water quality standards;
• Purports to authorize federal agencies to illegally disregard state-issued denials and conditions on certification applications; and
• Unlawfully restricts the timing and scope of state review of certification applications.

The EPA’s unlawful action is the product of President Trump’s April 2019 Executive Order issued to undermine state authority and not to protect water quality. The proposed rule violates the Administrative Procedure Act, because the rule is also contrary to law, arbitrary and capricious, and an abuse of discretion. The rule violates the plain language of the Section 401 and the Clean Water Act.

Moreover, 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. Because the rule conflicts with Section 401 and limits state authority, the EPA does not have the authority to issue it.

Herring filed the comment letter as part of a coalition including the attorneys general of California, New York, Washington, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Wisconsin, and the District of Columbia.