• Mark Ryan

Another 401 Cert. Complaint Filed

A collection of environmental groups has filed a complaint in the District of South Carolina challenging the new EPA 401 cert. rule. See my July 21, July 15, and June 1 blogposts for more on the rule and other complaints challenging it.

The 47-page complaint has seven claims for relief, including that the rule: (1) narrows the scope of 401 cert. beyond the statutory language and SCOTUS precedent, (2) impermissibly narrowly reads the "any other appropriate requirement of state law" language in 401(d), (3) impermissibly restricts access to public notice and participation in the 401 cert. process, (4) unlawfully defines "certification request" to exclude information necessary for compliance with state law, (5) unlawfully gives EPA veto authority over state certs., (6) unlawfully restricts 401 certs to point source discharges into WOTUS (which has recently been narrowed), and (7) changes 50+ years of law without a proper explanation.

This complaint engages in a broader attack than the complaint filed by the states in the ND of California in July. I think the public notice and comment arguments are weaker than the challenges to the statutory authority to limit 401 cert. as narrowly as EPA has. As I've opined in the past, I see EPA's failure to adhere to clear Supreme Court precedent as a serious weakness in this rulemaking, and I would not be surprised to see the rule vacated.

The plaintiffs in this new complaint are the South Carolina Conservation League, the South Carolina Native Plant Society, Amigos Bravos, NRDC, Savannah Riverkeeper and the Waterkeeper Alliance. Here's a copy of the brief.

20200828 WKA 401 challenge - Complaint (
Download • 659KB

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