Sacramento, CA…California Attorney General Xavier Becerra and New York Attorney General Letitia James today, leading a multistate coalition, filed a lawsuit challenging the Trump Administration’s unlawful final rule redefining the “waters of the United States” under the Clean Water Act. The final rule continues the Environmental Protection Agency’s (EPA) effort to weaken water quality protections under the Clean Water Act and to narrow the definition of “waters of the United States.” The new rule removes protections for all ephemeral streams, many wetlands, and other waters that were previously covered under the Act. In the lawsuit, the coalition argues that EPA’s rule directly conflicts with the text of the Clean Water Act, Supreme Court precedent, and the EPA’s own scientific findings.

“With this new rule, the Trump Administration is once again on the wrong side of history, the wrong side of science, and the wrong side of the law,” said Attorney General Becerra. “Clean water is a fundamental right. It is essential to preserving California’s biodiversity and protecting the health of our children and communities. We don’t intend to turn back the clock on clean waters. We’ll prove that in court.”

“Clearly, allowing water pollution to occur upstream will result in polluted drinking water and water for agriculture, and degraded habitat for fish and wildlife downstream,” said Jared Blumenfeld, Secretary for California’s Environmental Protection Agency. “Streams impacted by this rule provide drinking water sources, protect wildlife refuges, and promote sustainable agricultural and even recreational opportunities to millions of residents and visitors to this state. Today’s action coupled with the State Water Board’s adoption of its own Wetlands Policy last year demonstrate that California will not allow degradation of its resources due to roll-backs by the Trump Administration.”

The definition of “waters of the United States” under the Clean Water Act is critical to maintaining a strong federal foundation for water pollution control and water quality protection that preserves the integrity of our waters. While the Clean Water Act has resulted in dramatic improvements to water quality in the United States, its overriding objective has not yet been achieved. Many of the Nation’s waters remain polluted. The 2015 Clean Water Rule enacted during the Obama Administration provided much-needed clarity and consistency in federal Clean Water Act protections by specifically including within the scope of protected waters the headwaters of rivers and creeks as well as other non-traditionally navigable waters, which have significant impact on downstream water quality.

The 2020 rule narrows the definition of “waters of the United States” to eliminate federal protections for many of California’s waterways, including waters that the state relies on for drinking water, wildlife habitat, agriculture, and recreation. In the lawsuit, the coalition highlights that exclusion of these waters directly harms environmentally friendly states by increasing the risk of pollution from less-protective jurisdictions; incentivizing polluters to relocate to states with less stringent water quality protections; and disrupting state regulatory programs.

The coalition asserts that the 2020 rule is unlawful under the federal Administrative Procedure Act because it:

Contradicts the Clean Water Act’s objective of maintaining and restoring the integrity of the Nation’s waters and the EPA’s own scientific findings;
Arbitrarily and capriciously reduces and eliminates protections for ephemeral streams, tributaries, adjacent waters, wetlands and other important water resources that significantly affect downstream waters;
Fails to comply with controlling Supreme Court precedent established in Rapanos v. United States; and
Lacks a reasoned explanation or rational basis for changing long-standing policy and practice.
In filing the lawsuit, Attorneys General Becerra and James are joined by the attorneys general of Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington and Wisconsin, and the District of Columbia. The California State Water Resources Control Board, the North Carolina Department of Environmental Quality, and the City of New York also joined the coalition in filing the lawsuit.

Attorney General Becerra is committed to protecting California’s waterways from repeated attacks by the Trump Administration. In April, 2019, Attorney General Becerra filed a multistate comment letter urging the EPA and U.S. Army Corps of Engineers to withdraw a proposed rule that would significantly narrow Clean Water Act jurisdiction and exclude many of our nation’s waterways from the Act’s purview. The previous year, he and a coalition of state attorneys general filed a lawsuit against the agencies over their decision to suspend the 2015 Clean Water Rule, which protects California’s lakes, rivers, and streams from pollutants.

A copy of the lawsuit can be found here.

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