Wisconsin joins states opposing proposed EPA rule

Attorneys general across the country are uniting to oppose proposed rule changes to the Clean Water Act by the Environmental Protection Agency (EPA). The proposed changes would allow federal agencies to circumvent or ignore state-issued regulations that protect water resources.

“At a time when we need to step up our efforts to safeguard access to clean water,” said Attorney General Josh Kaul, “the Trump Administration is trying to limit states’ ability to protect and improve water quality.”

He joins a coalition of counterparts from Michigan, California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and Virginia.

The attorneys general compiled a comment letter lambasting EPA Administrator Andrew Wheeler and Director of the Office of Wetlands, Oceans and Watersheds John Goodin for the policy move. “We have grave concerns over the proposed rule’s attempt to unlawfully curtail state authority under section 401 of the Clean Water Act,” the letter states.

Specifically, the letter highlights that the proposed rule changes:

– Unlawfully limit the scope of state certification authority only to certain types of discharges;

– Illegally restrict state conditions on Section 401 certifications to a narrow set of EPA-approved water quality standards;

– Purport to authorize federal agencies to illegally disregard state-issued denials and conditions on certification applications; and

– Unlawfully restricts the timing and scope of state review of certification applications.

It points out a key facet of the Clean Water Act, authorizing states to conduct independent reviews of water quality impacts that projects, which require federal permits, may have. “To those ends, Congress specifically prohibited federal agencies from approving projects if a state denied a water quality certification under section 401.” If the rules shift, federal agencies would effectively be able to “usurp state authority to protect the quality of waters within their borders,” the letter explains. “Every provision of the proposed rule appears designed to curtail state authority under section 401.”

Much of the proposed rule change neuters state power, despite the plain language in the Clean Water Act giving states sovereign regulatory power. The attorney general’s comment letter notes, for example, “the proposed rule would unlawfully limit state certification authority to point source discharges from proposed projects into navigable waters, even though the plain language of section 401, as interpreted by the Supreme Court, authorizes states to ensure that the proposed activity as a whole does not violate state water quality standards.”

The collective also filed a legal brief arguing the case for maintaining state regulatory independence and potency. “States have a strong interest in ensuring that their citizens (and the State itself) are compensated for injuries caused by releases of hazardous materials and in preserving their authority to address, respond to, and remediate harm from environmental contamination,” Kaul and his colleagues wrote. The brief argues that states “have an interest in ensuring that the Courts resolution of this case does not call into question actions taken by States as trustees of their natural resources, as well as ensuring that the appropriate balance of authority between the Federal Government and the States as independent sovereigns is maintained.”

Additionally, the EPA provided no alternatives to these proposed changes. “EPA has entirely failed to mention, let alone consider, a single alternative to its proposed rule.” Reads the comment letter. “This failure demonstrates that the agency is acting in a manner that is arbitrary and capricious and in violation of the [Administrative Procedure Act] APA.” It warns that, “EPA must veer from this course.”

Water quality has quickly become a major focus of the state legislature under Gov. Tony Evers. Across the state, but particularly in Milwaukee, citizens are demanding that access to uncontaminated drinking water becomes a guarantee and not a privilege.

“The EPA’s updates to water quality regulations limit the state’s water quality authority.” Raj Shuka, executive director at River Alliance of Wisconsin told Wisconsin Examiner. “River Alliance of Wisconsin is grateful that Wisconsin’s Attorney General Kaul has objected. The Clean Water Act was designed to allow the states, that know their waters best, to weigh in on federal projects to ensure our waters are protected. The EPA’s proposed changes put our waters at risk and set us back from the progress we’ve seen over the last 50 years. Locals should have a bigger say in how we protect rivers, lakes, and streams in Wisconsin.”

Beyond the familiar refrain of replacing lead service lines, the state is creating more creative solutions for tackling water pollution in general. From reducing prescription pill pollution, to PFAS (Per- and polyfluoroalkyl substances) chemicals, to giving private companies incentives to clean up their mess. These new EPA rule changes threaten to stifle even that progress. “We must maintain our ability to preserve our natural resources,” said Kaul.

This article has been updated from its original version to include comments from the Wisconsin River Alliance.