CHARLESTON — West Virginia Attorney General Patrick Morrisey has joined a coalition of 12 attorneys general in a comment letter to the U.S. Environmental Protection Agency taking issue with the agency’s proposed rule to modify requirements for water quality certification under the Clean Water Act.
The EPA had modified the requirements for water quality certifications under Section 401 of the act as recently as 2020. But in the new proposed rule issued on June 1, the Biden administration proposes to rescind many of the 2020 changes and slow down approval for key projects, such as energy pipelines. The coalition argues the proposed changes create confusion and can be ripe for abuse by certain states.
“At least until 2020, certain states have been known to abuse Section 401 certification — they would impose requirements that have nothing to do with the environment or slow-walk certification as a way of delaying necessary infrastructure,” Morrisey said. “Some states had even used their authority under the section to block projects in other states based on non-water quality issues."
Morrisey
Under the Clean Water Act’s Section 401, a federal agency may not issue a license or permit to conduct any activity that may result in a discharge into navigable waters unless the state where the discharge occurs either certifies the discharge will comply with certain state water quality standards or waives certification. The certifying authority could be a state, a territory, an authorized tribe or the EPA, depending on where the discharge originates.
“The EPA has not adequately explained why it wants to modify these rules for the second time in two years and it has not given adequate time for notice and comment,” Morrisey said. “The Biden administration wants to open Section 401 back up to allow the gamesmanship that pervaded the system in past years — this modification invites the same kind of abuse some states have engaged in before.”
Along with other states, West Virginia had intervened in ongoing litigation to defend the 2020 rule. After a federal district court vacated that rule, the U.S. Supreme Court granted a stay at the states’ behest.
Morrisey joined the August 8 comment letter with his counterparts in Alaska, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska and South Carolina.