Democratic Attorneys General Urge EPA To Repeal Trump-Era Rule Curtailing State Permitting Authority Under Clean Water Act

Lori Kalani, Bernard Nash
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  • A group of 19 Democratic AGs, led by California AG Rob Bonta, New York AG Letitia James, and Washington AG Bob Ferguson, sent a comment letter to the U.S. Environmental Protection Agency (“EPA”) urging it to repeal a Trump Administration rule curtailing state authority to deny permits for projects deemed harmful to state waterways under the Clean Water Act (“CWA”).
  • The letter argues that the CWA Section 401 Certification Rule is incompatible with Congress’s intent for passing the CWA, which was to allow the states to retain broad authority to protect water quality within their borders. Because the rule altered Section 401 to block states’ ability to refuse water permits for any reason other than direct pollution into state waters, states were no longer able to consider include such factors as climate change or harm to aquatic wildlife habitats in making their permitting decisions. The letter also argues that the rule infringes upon state administrative procedures for water permit applications by dictating the timing and scope of state review, among other things.
  • The AGs urge the EPA to abolish the rule quickly, arguing that it causes current and future harm by limiting states’ ability to take urgently needed action to address crises like the drought conditions in the West.

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