January 14, 2024 – OAKLAND – California attorney General Rob Bonta last Friday, co-leading a coalition of 18 states, filed a motion to intervene in a lawsuit that challenges the Biden administration’s regulation implementing Section 401 of the Clean Water Act (2023 Rule). The rule was issued by the U.S. Environmental Protection Agency (EPA) in September 2023, and went into effect in November 2023. The 2023 Rule replaced a 2020 regulation issued by the Trump administration, which significantly restricted states’ authority to protect their water resources under Section 401. The 2023 Rule, consistent with the text of the Clean Water Act, Congressional intent, and Supreme Court precedent reestablished broad state and tribal authority to protect waterways and wetlands that may be impacted by projects requiring federal permits, including oil and gas pipelines, and hydropower projects.
“The challenge to the 2023 Rule is an attempt to undermine the Clean Water Act and weaken regulations that seek to safeguard California’s ability to protect its waters from pollution and degradation,” said attorney General Bonta. “As we continue to face serious threats to clean water, from climate change driven droughts to contamination impacting our waterways, it is essential that we protect and restore water resources across the country. At the California Department of Justice, we remain committed to taking bold action to build a healthier, sustainable future for generations to come.”
In passing the Clean Water Act 50 years ago, Congress proclaimed its intent to “recognize, preserve, and protect the primary responsibilities and rights of states to prevent, reduce, and eliminate pollution” of waters within their borders. Under Section 401 of the statute, a project requiring federal approval that may result in discharges into waters of the United States must obtain a state certification confirming that the project meets state water quality standards and other appropriate state law requirements. Projects requiring Section 401 certification range from housing and commercial land development to hydropower and pipeline construction. This certification process ensures adequate assessment of the impacts of proposed projects and the imposition of necessary conditions to remedy these impacts.
On December 5, 2023, a group of 11 conservative states and energy industry groups challenged the Biden administration’s 2023 Rule, arguing that the EPA exceeded its authority by bolstering state and tribal power to approve or deny Section 401 water quality certifications over pipeline and other major infrastructure projects that may pollute their waterways, among other allegations.
In their motion today, the coalition seeks to support the EPA’s 2023 Rule by:
- Defending state and tribal authority to protect their water resources and review critical infrastructure projects.
- Highlighting the plain language, structure, purpose, and legislative history of Section 401 of the federal Clean Water Act, which envisions a state-tribal-federal partnership to restore and improve water quality.
In filing the motion to intervene, attorney General Bonta co-leads the attorneys general of Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and the District of Columbia.
A copy of the motion is available here.
Merced River in Mariposa County Credit: Sierra Sun Times file photo
Source: CA. DOJ
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