LANSING – Michigan Attorney General Dana Nessel joined a multistate coalition in a comment letter urging the U.S. Environmental Protection Agency (EPA) to swiftly repeal or significantly revise a Trump-era rule curtailing state authority under Section 401 of the Clean Water Act. The changes to the rules made in 2020 have created uncertainty and confusion, complicating and delaying urgently needed action.

“Not only is this rule illegal, but it is harmful to our natural resources,” Nessel said. “Protecting Michigan’s water resources is crucial to the well-being of our residents and our environment. I urge the EPA to act quickly to repeal these misguided rule amendments.”

The Clean Water Act reflects Congress’ policy to “recognize, preserve, and protect the primary responsibilities and rights of states to prevent, reduce, and eliminate pollution” of waters within their borders in partnership with the federal government. Under Section 401 of the statute, a project requiring federal approval that may result in discharges into waters of the United States must obtain state certification confirming that the project meets state water quality standards and other appropriate state law requirements.

The 2020 revisions to the EPA’s Section 401 certification rule have significantly impacted the issuance of nationwide permits. Pursuant to the 2020 rule changes, the Army Corps of Engineers issued several decisions suddenly excluding states’ long used water quality certification conditions. The Army Corps also determined that states had waived their authority to certify certain nationwide permits. As a result, many states are forced to evaluate projects covered by nationwide permits individually, issue state certifications on a project-by-project basis, and adopt individual water quality certifications for dischargers at significant cost to the states and their taxpayers.

In the comment letter responding to the EPA’s notice of intention to reconsider and revise the rule, the coalition argues that the EPA must repeal the Trump-era revisions to the Section 401 certification rule and restore states’ broad authority to approve, impose conditions on, or deny Section 401 certifications for federally permitted projects, as expressly recognized by the Clean Water Act.

In 2019, Nessel was part of a coalition that opposed these rule changes when they were first proposed, and in July of last year, Nessel and the coalition of states filed a lawsuit challenging the EPA’s final rule.

Joining Attorney General Nessel in sending this letter are the attorneys general of California, Colorado, Connecticut, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, Pennsylvania, Virginia, and the District of Columbia.

A copy of the comment letter can be found here.

25 Attorneys General to National Council for State Authorization Reciprocity Agreements: Critical Reforms Are Necessary to Protect Against Unfair Practices and Other Risks   

LANSING – Michigan Attorney General Dana Nessel today joined a bipartisan coalition of 25 attorneys general in a letter to the National Council for State Authorization Reciprocity Agreements (NC-SARA) urging it to institute stronger consumer protection policies for the more than 3 million students enrolled in distance education courses offered by its 2,276 participating institutions.

NC-SARA provides leadership over reciprocity agreements joined by 49 states, the District of Columbia, Puerto Rico, and the Virgin Islands, and it controls the minimum standards and policies to which participating institutions must adhere. Currently, Michigan’s membership in NC-SARA allows participating institutions of higher education physically located in other states the ability to enroll students living in Michigan in online programs without having to comply with Michigan’s licensure and approval process. While this provides Michigan students with educational opportunities , it is important that Michigan is able to enforce consumer protection laws to protect its residents.

The attorneys general, citing examples of misconduct by schools participating in NC-SARA, express concerns that NC-SARA’s current policies do not adequately protect students against the unique risks that arise from distance learning, including unfair and deceptive admissions and financial aid practices. The attorneys general recommend NC-SARA improve its policies to provide critical student protections, including:

1. Removing language in its Policy Manual that prohibits states from enforcing their higher education consumer protection laws and instituting meaningful consumer protection standards that participating schools must follow;
2. Improving its procedures to protect current and prospective students at institutions with issues related to consumer protection or financial stability; and
3. Reconstituting its board of directors so that at least a majority of its membership is reserved for member states and territories and additional individuals with consumer protection expertise, such as state attorneys general.

“My colleagues and I call on NC-SARA to make several changes that will benefit the students in its member states—including Michigan. The proposed changes will allow us to more effectively protect those enrolled in distanced learning at one of NC-SARA’s participating institutions. While we want our students to have options, we must ensure there are adequate safeguards in place to protect students from unscrupulous practices,” Nessel said.

Joining Attorney General Nessel in today’s letter are the attorneys general of Maryland, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, Nebraska, Nevada, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin.

A copy of the attorneys general’s letter to NC-SARA is available here.