Six AGs Submitted Comments Urging U.S. Army Corps of Engineers to Change Course on its Misapplication of Clean Water Act

Washington Attorney General Robert W. Ferguson led a coalition of six attorneys general in submitting comments stating concern over the U.S. Army Corps of Engineers’ (the Corps) disregard for state authority to protect state water quality. Under section 401 of the Clean Water Act, any federally-permitted project involving discharges into waters of the United States must obtain a certification from the relevant state that the project meets state water quality standards. In 2020, the Trump administration issued a rule shortening the time frame allowed for reviewing certification requests. After the Trump-era rule went into effect, the Corps requested that states issue section 401 certifications for over forty Nationwide Permits without giving sufficient time to review the projects. At the time the AGs submitted comments, these changes were under review by the EPA under an executive order signed by President Biden. The AGs expressed concern that, in its request that states issue permits, not only did the Corps rely on the rule that is under EPA review (and thus subject to possible revision), but it misapplied that rule. The AGs’ comments emphasized that the Corps’ actions “will cost jobs, millions of dollars in unnecessary delays, and [will result] in significant environmental degradation.”