Michigan Attorney General Dana Nessel

LANSING — Michigan Attorney General Dana Nessel joined a multistate coalition of 18 attorneys general in sending a comment letter opposing a U.S. Environmental Protection Agency (EPA) proposed rule, according to a press release on Tuesday.

Nessel claimed in the release that the rule would rewrite water quality certification regulations to unlawfully curtail state authority under Section 401 of the Clean Water Act (CWA). Nessel also said that the proposed rule limits the authority of states and Native American Tribes to review requests for Section 401 water quality certification and their ability to impose conditions on federal projects that may impact state waters.

The coalition stated in its letter that the Trump administration’s attempt to diminish the states’ role under Section 401 will illegally disrupt the congressionally mandated power balance between the federal government and the states, remove state water protections, and degrade water quality nationwide.

“The EPA proposed rule not only runs afoul of the Clean Water Act but upends the very role given to states to protect their own waters,” Nessel said in the release. “The federal government has worked side by side with states to ensure major projects don’t harm local rivers, lakes, and wetlands. This rule would only weaken this essential partnership and make it harder for Michigan to protect the water sources our families rely on.”

While the EPA is charged with administering much of the CWA, including its objective to restore and maintain the chemical, physical and biological integrity of the nation’s waters, Congress recognized and preserved the powers of states to safeguard their waters in Section 401, according to the release. Under Section 401 of the CWA, a project requiring federal approval that may discharge pollutants into waters of the United States must obtain a water quality certification from the state where the discharge would originate. Under this certification process, the state (or authorized Tribe) has the authority to review the water quality impacts of the federal project. The state can then either approve the request for certification, impose conditions on the project, deny the certification request, or waive certification. States may impose conditions requiring the applicant to follow appropriate state law requirements. Unless the state or authorized Tribe approves the Section 401 certification request or waives its authority, the federal permit for the project may not be issued.

According to Nessel, the passing of the CWA in 1972, the EPA has interpreted Section 401 to recognize states’ broad authority to review and approve, condition, or deny certifications for projects requiring federal permits. Nessel said in the release that during the first Trump administration, the EPA “promulgated regulations for the first time that sought to drastically limit states’ certification authority.”

“The EPA later modified its Section 401 regulations in 2023 to return to its previous long-standing position,” Nessel added. “Now, the agency again seeks to modify its regulations in order to limit state authority.”

Nessel claimed that the current proposed rule would “unlawfully limit the authority of states and authorized Tribes to review a request for Section 401 certification so that they may only consider a project’s potential discharge into waters of the United States, rather than the broader water-quality impacts associated with the proposed activity.”

Nessel also claimed that the rule would also impose restrictions on states’ authority by constraining the review period for certification requests, hampering states’ ability to modify existing certifications should conditions change, and limiting the types of conditions that states may impose in certifications. The proposed rule would also require federally recognized Tribes to develop a full water quality standards program before they could be treated as a certifying authority or as another affected state for Section 401 purposes.

“Together, these new onerous requirements will significantly curtail state certification authority, limit Tribal participation, and result in further water quality degradation,” Nessel said.

In the comment letter, the coalition claimed that the proposed rule:

– Is contrary to law because it conflicts with the CWA and applicable case law.

– Is arbitrary and capricious because the agency failed to provide rational basis and reasoned explanation for its change in position from the 2023 Rule.

– Is illegal because the CWA does not provide the EPA with authority to regulate Section 401.

In sending this letter, Attorney General Nessel is joined by the attorneys general of California, Colorado, Connecticut, the District of Columbia, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.