Office of the
Illinois Attorney General
Kwame Raoul

Chicago – Attorney General Kwame Raoul today joined a multistate coalition of 18 attorneys general in sending a comment letter opposing a U.S. Environmental Protection Agency (EPA) proposed rule that would rewrite water quality certification regulations to unlawfully curtail state authority under Section 401 of the Clean Water Act (CWA). The proposed rule would limit the authority of states and Native American tribes to review requests for Section 401 water quality certification and curtail their ability to impose conditions on federal projects that may impact state waters.

In their letter, Raoul and the coalition assert that the Trump administration’s attempt to diminish the states’ role under Section 401 will illegally disrupt the congressionally mandated, careful power balance between the federal government and the states, remove significant state water protections and degrade water quality nationwide.  

“States must have a role in ensuring the quality and safety of their waters and should be able to review projects that could impact water quality,” Raoul said. “The EPA’s proposal represents the latest attempt by the Trump administration to roll back longstanding rules that protect our environment and human health. That is why I am proud to join my colleagues in opposing this shortsighted rule that would restrict the ability of states like Illinois to protect our waterways.”

While the EPA is charged with administering much of the CWA, including its objective to restore and maintain the chemical, physical and biological integrity of the nation’s waters, Congress recognized and preserved the important powers of states to safeguard their waters in Section 401. Under Section 401 of the CWA, a project requiring federal approval that may discharge pollutants into waters of the U.S. must obtain a water quality certification from the state where the discharge would originate. Under this certification process, the state or authorized tribe has the authority to review the water quality impacts of the federal project. The state can then either approve the request for certification, impose conditions on the project, deny the certification request or waive certification. Importantly, states may impose conditions requiring the applicant to follow appropriate state-law requirements. Unless the state or authorized tribe approves the Section 401 certification request or waives its authority, the federal permit for the project may not be issued.

Since the passing of the CWA in 1972, the EPA has interpreted Section 401 to recognize states’ broad authority to review and approve, condition or deny certifications for projects requiring federal permits. However, during the first Trump administration, the EPA promulgated regulations for the first time which sought to drastically limit states’ certification authority. The EPA later modified its Section 401 regulations in 2023 to return to its previous long-standing position. Now, the agency again seeks to modify its regulations in order to limit state authority. 

The current proposed rule would unlawfully limit the authority of states or authorized tribes to review a request for Section 401 certification so that they may only consider a project’s potential discharge into waters of the U.S. rather than the broader water-quality impacts associated with the proposed activity. The rule would also impose restrictions on states’ authority by constraining the review period for certification requests, hampering states’ ability to modify existing certifications should conditions change, and limiting the types of conditions that states may impose in certifications. The proposed rule would also require federally recognized tribes to develop a full water quality standards program before they could be treated as a certifying authority or as another affected state for Section 401 purposes. Together, these new onerous requirements will significantly curtail state certification authority, limit tribal participation and result in further water quality degradation. 

In the comment letter, Raoul and the coalition assert that the proposed rule is contrary to law because it conflicts with the CWA and applicable case law, is arbitrary and capricious because the agency failed to provide rational basis and reasoned explanation for its change in position from the 2023 rule, and is illegal because the CWA does not provide the EPA with authority to regulate Section 401. 

Joining Raoul in sending the comment letter are the attorneys general of California, Colorado, Connecticut, the District of Columbia, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington and Wisconsin.