• Mark Ryan

Another 401 Cert. Complaint Filed

Today, a group of 19 states and the District of Columbia filed a complaint in the N.D. Cal. challenging the EPA's recently-promulgated 401 cert. regulations (No. 3:20-cv-04869). This is the second complaint I'm aware of challenging the new rule. See my July 15 blogpost on the Waterkeeper complaint filed in the E.D. Pa.

I was expecting at least some of the states to sue given that the new regs significantly trim the state's 401 cert. authorities. This group of states is dominated by Democratic administrations (California, Washington, New York, Colorado, Connecticut, Illinois, Maine, Maryland, Mass., Michigan, Minnesota, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Wisconsin and D.C.). I've been wondering if we would also see a complaint out of the Western Governor's Association, which is more right-leaning and which was critical of the proposed rule.

The 32-page complaint makes four primary allegations: (1) the new rule violates section 401 of the CWA and the Supreme Court's interpretation of 401 in Jefferson County PUD, (2) it disregards prior agency interpretations of 401 authority without explaining the change, (3) it fails to consider the CWA's objective of protecting water quality standards and (4) 401 and 501(a) do not authorize EPA to issue rules expressly reserved to the states. The last argument is an interesting one, should be watched. See. pages 26-27 of the complaint.

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