On October 22, Attorney General Josh Shapiro and 22 other Attorneys General filed formal legal comments opposing the U.S. Environmental Protection Agency’s proposed rule that would unlawfully curtail state authority under Section 401 of the federal Clean Water Act.

The coalition argues that the proposed rule is an unlawful and misguided policy that would degrade water quality and infringe on states’ rights.

“The Clean Water Act unequivocally grants states the right to protect our waters, and the Environmental Protection Agency has recognized that right for three decades under both Republican and Democratic administrations,” said Attorney General Josh Shapiro. “Now, the EPA is attempting to undermine this authority. I’m proud to stand with my colleague Attorneys General in opposition to this attack on states’ rights and our environment. As Attorney General, I will do everything in my power to protect Pennsylvanians’ state constitutional right to clean air and pure water.”

In the federal Clean Water Act, Congress recognized and preserved states’ broad, pre-existing powers to protect their state waters. The EPA has acknowledged this authority over three decades and four administrations.

The proposed rule is a dramatic departure from the prior agency position. The states demand that EPA withdraw it.

In the letter, the coalition asserts that the proposed rule conflicts with the federal Clean Water Act’s language, Congressional intent, and applicable case law interpreting the 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.

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 Attorneys General assert that the EPA does not have the authority to issue it.

In addition to Pennsylvania, the Attorneys General of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, Wisconsin, Virginia, and the District of Columbia also signed onto the comment letter.

Click Here for a copy of the comments.

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[Posted: October 22, 2019]

10/28/2019