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California Attorney General Xavier Becerra
California Attorney General Xavier Becerra. (Photo: Kevin Sanders for California Globe)

California, 19 Other States Sue EPA Due To Clean Water Act Changes

States’ ability to block federal water projects was greatly reduced last month

By Evan Symon, July 22, 2020 3:41 pm

On Tuesday, California joined with 19 other states and filed a lawsuit with the U.S. District Court for the Northern District of California against the Environmental Protection Agency (EPA) over changes to the Clean Water Act.

Clean Water Act updates challenged

The EPA updated the Clean Water Act last month and reduced state decisions over federal water projects. Under a new section 401 of the Act, states can no longer block major energy or infrastructure projects in their state except in cases of pollution into state waters.

President Donald Trump. (Photo: Kevin Sanders for California Globe)

While the update to the Act was only a recent development, the power to make the change had come over a year ago. In April 2019, President Donald Trump had signed an executive order allowing water statute changes, specifically giving states less authority in blocking federal water projects. The EPA only made the change to section 401 last month due to numerous other water laws being passed and fought against by states.

The EPA could not comment on Wednesday about any law changes currently under pending litigation, but did say in a statement that it was updating older laws.

“It reflects the first comprehensive analysis of the text, structure and legislative history of the Clean Water Act,” said the statement. “As a result, the agency’s final rule increases the transparency and efficiency of the section 401 certification process in order to promote the timely review of infrastructure projects while continuing to ensure that Americans have clean water for drinking and recreation.”

EPA Administrator Andrew Wheeler put it in layman’s terms last month during a press conference, noting that it would stop states from “holding our nation’s energy infrastructure projects hostage.”

California Attorney General Xavier Becerra, New York Attorney General Letitia James, and other state Attorney Generals have sued on behalf of their states due to the new changes ‘undermining’ states authority over such matters, allowing the federal government to largely build what it wants to water-wise within states.

“Once again, the Trump Administration is attempting to undermine the Clean Water Act. This time by limiting longstanding state authority to protect our waters from degradation tied to federally approved projects,” said California AG Becerra in a statement. “By reducing the scope and time for review, they make it very difficult for states to fully protect the rights that they have to protect the water that is in their boundaries. The Trump administration wants to clear the deck for fossil fuel infrastructure.”

“Trading thoroughness and preservation for speed and expansion”

The unprecedented law change and subsequent lawsuit have largely shook water project-related companies.

“It’s a mixed blessing,” explained concrete contractor Scott Romero in an interview with the California Globe. “My company often gets assigned to these projects. And we’ve faced wonky work schedules because of all the red tape holding some of these projects back, especially from the state level. A new drainage project we were counting on was held back for three years because of California reviewing it again and again.

“So in that regard, having the government reduce that would be really good.

“But at the same time it means less review of projects that can be environmentally sensitive, such as projects that could endanger wetlands or fishing spots. Projects can get surprisingly complicated when half your crew goes fishing to relax and finds out that the project they’re working on will make fishing worse for them. States helped smooth problems like that over and found solutions.

What we’re doing is trading thoroughness and preservation for speed and expansion. It’s a way around being overruled by California on that farmland diversion project.”

The lawsuit on Tuesday was only the latest battle between California and the federal government over water. A January ruling weakening California clean water laws has been upheld while a water diversion law signed by President Trump in California in February had a suit brought against it within 24 hours of the signing and was subsequently halted by a federal judge in May.

Tuesday’s suit is expected to go before a District Court judge in San Francisco within the next few months.

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