Attorney General Charity Clark has joined a coalition of 18 attorneys general in opposing a proposed rule from the U.S. Environmental Protection Agency (EPA) that would change water quality certification regulations under Section 401 of the Clean Water Act (CWA). The group sent a comment letter to the EPA, stating that the proposal would reduce state and Tribal authority to review and impose conditions on federal projects that could affect state waters.
According to the coalition, “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.”
The Clean Water Act gives states and authorized Tribes an important role in protecting local water resources. Projects requiring federal approval that may discharge pollutants into U.S. waters must obtain certification from the relevant state or Tribe. This process allows them to review environmental impacts and either approve, deny, impose conditions on, or waive certification for these projects.
Since its enactment in 1972, Section 401 has generally been interpreted as giving broad authority to states over such certifications. During President Trump’s first term, however, EPA issued new rules limiting this authority for the first time. In 2023, those changes were reversed by returning to previous interpretations favoring more state control. The latest proposed rule seeks again to restrict what states can consider when reviewing applications—limiting their focus only to direct discharges rather than broader impacts—and imposes new constraints on timelines and modification powers.
Additionally, federally recognized Tribes would be required under this proposal to establish full water quality standards programs before being allowed similar certifying authority or participation rights as other affected states under Section 401.
“These new onerous requirements will significantly curtail state certification authority, limit Tribal participation, and result in further water quality degradation,” according to the coalition’s letter.
A copy of their letter is available on the Vermont Attorney General’s website.
