States Fault Premise, Process For EPA Plan To Change CWA 401 Policy

摘要

Democratic attorneys general (AGs) from 16 states, along with two national organizations representing state water regulators, are urging EPA to refrain from scaling back the scope of states' review authority under section 401 of the Clean Water Act (CWA), saying the agency has failed to show changes are needed and failed to properly engage with states. "We urge EPA not to weaken its existing guidance and regulations," the AGs write in May 24 comments. "Section 401 explicitly preserves states' independent and broad authority to regulate the quality of waters within their borders. Neither the President's Executive Order nor EPA's guidance and regulations can contradict or undermine the plain language and congressional intent of section 401." The Association of Clean Water Administrators (ACWA), which represents state officials who implement the water quality programs of the Clean Water Act (CWA), and the Association of State Wetlands Managers (ASWM), which represents state and tribal officials who develop and implement wetland protection programs, make similar assertions in their separate comments. While the state groups stopped short of issuing explicit warnings about possible litigation, their comments hint at future litigation as they broadly argue that any changes EPA plans to make may not be adequately justified. CWA Section 401 generally gives states authority to review federal projects to ensure they do not undercut attainment of water quality standards. As such, states may place conditions on federal permits before certifying them or they may decline to certify them.