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Attorney General William Tong

10/22/2019

ATTORNEY GENERAL TONG OPPOSES EPA EFFORT TO UNDERMINE STATE ROLE IN PROTECTING CLEAN WATER

(Hartford, CT) -- Attorney General William Tong joined 22 other state attorneys general today in filing a comment letter expressing formal opposition to a U.S. Environmental Protection Agency (EPA) proposed rule to unlawfully limit state authority to protect our own water.

In the Clean Water Act, Congress recognized and preserved states’ broad, pre-existing powers to protect their state waters. EPA has no statutory authority to limit state powers under Section 401 of the Act. The proposed rule is an unlawful and misguided policy that would degrade water quality and infringe on state sovereignty. Consistent with the plain language of the Clean Water Act and the clear legislative intent, EPA’s acknowledgement of state authority spans three decades and four administrations. The proposed rule is a dramatic departure from the prior agency position and the states demand that EPA withdraw it.

Attorney General Tong has opposed this proposed rule at every step, also joining attorneys general in filing formal opposition last July when the proposal was in a "guidance" stage at EPA.

"This deeply flawed proposal strips states of our rights to protect our own water, and is an unacceptable threat to public health. Connecticut has some of the nation's most beautiful waterways, giving us unparalleled access to clean drinking water, amazing fishing and recreation, while also supporting diverse and healthy natural habitats for countless species. We aren't going to sit silently while EPA hands over our rights to protect our own waters to outside industry interests," said Attorney General Tong.

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

The EPA’s unlawful action is the product of President Trump’s April 2019 Executive Order issued to undermine state authority to refuse to certify projects that would impair water quality. The proposed rule violates the Administrative Procedure Act, and is contrary to law, arbitrary and capricious and an abuse of discretion. The proposed rule violates the plain language of Section 401 of the Clean Water Act. 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, EPA does not have the authority to issue it.

Attorney General Tong filed the comment letter as part of a coalition including the attorneys general of California, New York, Washington, Colorado, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Wisconsin, Virginia, and the District of Columbia. The coalition was led by California Attorney General Xavier Becerra, New York Attorney General Letitia James, and Washington Attorney General Bob Ferguson.

A copy of the comment letter on the EPA’s proposed rule can be found here.

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