For Immediate Release:
July 20, 2020
Contact: Matt Baca — (505) 270-7148
Santa Fe, NM—Attorney General Balderas today joined a coalition of 21 attorneys
general in filing a lawsuit challenging the U.S. Environmental Protection Agency’s (EPA)
final rule unlawfully curtailing state authority under Section 401 of the Clean Water Act.
For more than three decades, the EPA has consistently acknowledged and respected
that Section 401 provides states with the authority to review, impose conditions on, or
deny certification for federally permitted projects. However, as directed by President
Trump’s April 2019 executive order, the EPA issued a final rule radically altering its water
quality certification regulations to restrict state authority under the Clean Water Act. In the
lawsuit, the coalition argues that the final rule violates the Administrative Procedure Act
and Clean Water Act and must be vacated.
“The health and safety of New Mexican families, particularly our most vulnerable
populations, is being put at risk by this administration’s pollution of our environment,” said
Attorney General Balderas. “We will continue to fight to protect our environment and the
health and safety of our families.”
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. Under Section 401 of the statute, a project requiring federal
approval that may result in discharges into the 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 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 July 13, 2020, the EPA issued a final rule arbitrarily re-writing existing water quality
certification regulations to limit state authority under the Clean Water Act. The rule will
impair states’ ability to fully and efficiently review project proposals for water quality
impacts and make it more difficult for states to fulfill their fundamental obligation to protect
their waters and wetlands.
In the lawsuit, the coalition argues that the EPA’s drastic curtailment of state authority
under Section 401 is unlawful because it is contrary to:
• The plain language, structure, purpose, and legislative history of the Clean Water
Act;
• Binding Supreme Court precedent interpreting Section 401; and
• The EPA’s own guidance on Section 401, which spans decades and multiple
administrations.
In 2019, Attorney General Balderas joined multistate coalitions in filing comment letters
opposing the EPA’s unlawful guidance and proposed rule seeking to curtail state authority
under Section 401 of the Clean Water Act.
In filing the lawsuit, Attorney General Balderas joins the attorneys general of California,
Colorado, Connecticut, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada,
New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia,
Washington, and Wisconsin.