Eighteen AGs Filed Motion to Intervene Defending State & Tribal Authority under Section 401 of Clean Water Act

JANUARY 12, 2024

California Attorney General Rob Bonta and Washington Attorney General Bob Ferguson led 18 attorneys general in a motion to intervene defending states’ authority to protect state water quality under section 401 of the Clean Water Act. This authority, which requires applicants for federal permits to seek certification from the affected state that the activity will comply with water quality rules, had been weakened during the Trump administration, but was restored last year in a rule by the Environmental Protection Agency (EPA). After a coalition of states led by Louisiana challenged that rule, the California- and Washington-led coalition filed a motion to intervene, arguing the Clean Water Act clearly envisions a strong partnership between states and the federal government, with the expressly stated intent to “recognize, preserve, and protect the primary responsibilities of rights of States.” The AGs also emphasized that states had successfully exercised this authority for over 50 years before it was curtailed, a change that “represented a radical departure from the plain language and intent of the Clean Water Act.”