News | August 10, 2018

WGA Leads National Coalition Urging Congress To Reject Efforts To Diminish States' Authority To Manage Water Quality Under Section 401 Of Clean Water Act

The Western Governors’ Association (WGA) and nine other leading associations of state officials are urging Congressional leadership to reject current legislative and administrative efforts to diminish states’ authority to manage water quality within their boundaries under Section 401 of the federal Clean Water Act (CWA). 

States have primary legal authority over allocation, administration and protection of their water resources, which enables proper environmental management. As the outreach reminds: “To implement the CWA, Congress purposefully designated states as co-regulators under a system of cooperative federalism that recognizes state authority.”

A vital component of this cooperation is state authority to certify and condition federal permits of discharges into waters of the United States under CWA Section 401. The issue also has been addressed by the U.S. Supreme Court, which concluded: “State certifications under [Section] 401 are essential in the scheme to preserve state authority to address the broad range of pollution.” (S.D. Warren Co. v. Maine Board of Environmental Protection, 547 U.S. 370 (2006), citing 116 Cong. Rec. 8984, 1970.)

The August 9 letter was sent to House Speaker Rep. Paul Ryan and Minority Leader Rep. Nancy Pelosi, as well as Senate Majority Leader Sen. Mitch McConnell and Minority Leader Sen. Charles Schumer.

“States have responsibly executed their federally-delegated duties under Section 401 since the CWA’s enactment over 45 years ago,” said James Ogsbury, WGA Executive Director. “While Western Governors strongly support the development of critical infrastructure and streamlined permitting processes, such efforts must not be achieved at the expense of authority delegated to states under the CWA. The best way for Congress and the Administration to improve regulatory efficiency is to engage with states – through Governors – in early, ongoing and meaningful consultation."

Signatories joining the WGA-led coalition include: National Association of Counties – Western Interstate Region; Council of State Governments; Council of State Governments – West; Western States Water Council; Association of Clean Water Administrators; Association of State Wetland Managers; Western Interstate Energy Board; Conference of Western Attorneys General; Association of Fish and Wildlife Agencies.

Download the August 9 letter. Western Governors’ previously discussed Section 401 this year in outreach to the Senate Appropriations Subcommittee on Energy and Water Development in July.

A list of current legislative and administrative efforts to diminish states’ authority to manage water quality under CWA Section 401 follows. 

CWA Section 401: Congressional & Administration Efforts to Diminish State Authority

White House
Legislative Outline for Rebuilding Infrastructure in America
Cites Sec. 401 certification as a significant source of delay in federal permitting.

House of Representatives
House Committee on Energy and Commerce
H.R. 3043, Hydropower Policy Modernization Act of 2017 (Passed House, Oct. 2017). 
**See WGA May 1, 2017 Letter to House E&C Leadership

House Committee on Transportation and Infrastructure
Shuster Infrastructure Bill (Discussion Draft)

House Committee on Appropriations

Energy and Water Subcommittee
FY19 Appropriations Report Language

Interior and Environment Subcommittee
FY19 Appropriations Report Language

Senate Committee on Energy and Natural Resources
S. 1460, Energy and Natural Resources Act of 2017

Senate Committee on Environment and Public Works
Water Quality Certification Improvement Act of 2018

Environmental Protection Agency
Clarification of State Certification Procedures under Section 401 of the Clean Water Act
Appeared in Spring 2018 Regulatory Agenda