Michigan Attorney General Dana Nessel has joined a coalition of 18 attorneys general to oppose 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 stating that the new rule would limit the authority of states and Native American Tribes to review requests for Section 401 water quality certification and reduce their ability to impose conditions on federal projects that could affect state waters.
According to the coalition, “The EPA proposed rule not only runs afoul of the Clean Water Act but upends the very role given to states to protect their own waters,” said Attorney General Nessel. “The federal government has worked side by side with states to ensure major projects don’t harm local rivers, lakes, and wetlands. This rule would only weaken this essential partnership and make it harder for Michigan to protect the water sources our families rely on.”
Under Section 401 of the CWA, projects requiring federal approval that may discharge pollutants into U.S. waters must obtain a water quality certification from the state where the discharge originates. States or authorized Tribes have authority to review these impacts and can approve, condition, deny, or waive certification requests. Unless approved or waived by the state or Tribe, federal permits cannot be issued.
Since 1972, EPA’s interpretation allowed states broad authority over certifications for federally permitted projects. During the first Trump administration, however, regulations were issued that limited this authority. In 2023, EPA reverted back to its earlier stance but is now proposing changes again that would restrict state powers.
The current proposal would narrow what states and Tribes can consider during reviews—focusing only on potential discharges rather than broader water-quality impacts—and set stricter time limits for reviews. It also makes it harder for states to modify existing certifications if circumstances change and limits conditions they can impose. Additionally, federally recognized Tribes would need a full water quality standards program before acting as certifying authorities.
The coalition argues in its letter that these changes are unlawful because they conflict with both the CWA and established case law; are arbitrary due to lack of rational explanation for changing positions since 2023; and exceed EPA’s legal authority under Section 401.
Attorney General Nessel was joined by counterparts from California, Colorado, Connecticut, District of Columbia, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.
Dana Nessel serves as Michigan’s 54th attorney general according to her official biography. The Michigan Department of Attorney General works statewide on public service initiatives and protection efforts across Michigan (source). The department has previously influenced policy through legislative efforts such as drafting laws related to expungement opportunities (source).
