Michigan Attorney General Dana Nessel joined a multistate coalition in a comment letter urging the U.S. Environmental Protection Agency (EPA) to swiftly repeal or significantly revise a Trump-era rule curtailing state authority under Section 401 of the Clean Water Act. The changes to the rules made in 2020 have created uncertainty and confusion, complicating and delaying urgently needed action.
“Not only is this rule illegal, but it is harmful to our natural resources,” Nessel said. “Protecting Michigan’s water resources is crucial to the well-being of our residents and our environment. I urge the EPA to act quickly to repeal these misguided rule amendments.”
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 in partnership with the federal government. Under Section 401 of the statute, a project requiring federal approval that may result in discharges into waters of the United States must obtain state certification confirming that the project meets state water quality standards and other appropriate state law requirements.
The 2020 revisions to the EPA’s Section 401 certification rule have significantly impacted the issuance of nationwide permits. Pursuant to the 2020 rule changes, the Army Corps of Engineers issued several decisions suddenly excluding states’ long used water quality certification conditions. The Army Corps also determined that states had waived their authority to certify certain nationwide permits. As a result, many states are forced to evaluate projects covered by nationwide permits individually, issue state certifications on a project-by-project basis, and adopt individual water quality certifications for dischargers at significant cost to the states and their taxpayers.
In the comment letter responding to the EPA’s notice of intention to reconsider and revise the rule, the coalition argues that the EPA must repeal the Trump-era revisions to the Section 401 certification rule and restore states’ broad authority to approve, impose conditions on, or deny Section 401 certifications for federally permitted projects, as expressly recognized by the Clean Water Act.
In 2019, Nessel was part of a coalition that opposed these rule changes when they were first proposed, and in July of last year, Nessel and the coalition of states filed a lawsuit challenging the EPA’s final rule.
Joining Nessel in sending this letter are the attorneys general of California, Colorado, Connecticut, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, Pennsylvania, Virginia, and the District of Columbia.
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