Washington, D.C. — New York Attorney General Letitia James led a multi-state coalition of 15 state attorneys general in filing comments yesterday opposing a proposed rule from the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers to narrow the federal agencies’ definition of “Waters of the United States” (WOTUS). The attorneys general noted that the Trump administration’s proposed “Dirty Water Rule” violates the Administrative Procedure Act, and is contrary to the Clean Water Act’s objective of “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation’s waters.”
“If the new rule is adopted, it will end federal legal protections for at least 15 percent of streams and over 50 percent of wetlands across the nation,” said Attorney General James. “We will continue to fight back against the persistent assault on our nation’s core environmental protections.”
In their comment letter, the coalition noted that the EPA’s proposed rule jeopardizes their states’ access to safe, healthy and clean drinking water. Under the Clean Water Act, states rely on federal regulators to set meaningful limits on pollution in “navigable waters” to ensure that pollution originating from sources outside of their jurisdiction does not prevent them from attaining federal water quality standards.
Given the interconnected nature of national water systems, the EPA previously extended Clean Water Act protections to wetlands and streams that have a tangible connection to navigable waters. The courts widely affirmed this regulatory authority under former Supreme Court Justice Anthony Kennedy’s “significant nexus” standard, which protects bodies of water that have a “significant nexus” to water quality in other protected bodies of water. The attorneys general strongly objected to the Trump administration’s decision to abandon this standard, noting that the EPA’s actions amount to a dereliction of the agency’s statutory responsibility under the law.
The AGs pointed to extensive scientific evidence demonstrating the importance of wetlands, tributaries and floodplains to water quality for downstream water systems — evidence which the attorneys general noted the Trump administration excluded from its analysis. The EPA’s unjustified refusal to consider the best science available in the formulation of its new WOTUS definition, and its failure to adequately address the substantial administrative record left behind by the Obama and Bush administrations is arbitrary and capricious under the Administrative Procedure Act, according to the multi-state coalition.
“The Trump administration continues to flout the rule of law with its decision to abandon Justice Kennedy’s ‘significant nexus’ standard, even though this standard has been upheld by the federal courts countless times already,” said David J. Hayes, Executive Director of the State Energy & Environmental Impact Center. “Instead, and without any scientific explanation or legal rationale, the Trump administration has ignored the regulatory precedent established by both the Obama and the Bush administrations – and in so doing, is jeopardizing millions of Americans’ access to clean and healthy drinking water.”
In addition to New York, the attorneys general of California, Connecticut, Maine, Maryland, Massachusetts, Michigan, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Virginia, Washington and Washington, D.C. joined the multi-state coalition.
President Trump first directed the EPA and Army Corps of Engineers to revise the existing WOTUS rule in an executive order issued in February 2017. The agencies released an interim rule in July 2017 that drastically scaled back Clean Water Act protections. New York led a coalition of nine state attorneys general in opposing this interim rule in comments submitted in September 2017.
In August 2018, former New York Attorney General Barbara Underwood led a coalition of 12 state attorneys general in comments requesting that the Trump administration withdraw its interim rule and reinstate the 2015 WOTUS rule, noting that the EPA and Army Corps of Engineers had violated the Administrative Procedure Act and produced an arbitrary and capricious standard.
In December 2018, the EPA and Army Corps of Engineers released its currently proposed replacement rule requiring wetlands to have a direct surface hydrological connection in order to receive federal Clean Water Act protections. The Trump administration’s new WOTUS definition further restricted federal protections to tributary systems that are surface water channels with a perennial or intermittent flow into a traditionally navigable water or territorial sea.
In February 2019, a representative of New York Attorney General Letitia James testified in opposition to the Trump administration’s proposed rule at a public hearing in Kansas City, Kansas. In its official testimony, the State of New York pointed to EPA analysis demonstrating that the Trump administration’s proposed WOTUS rule would significantly reduce the number of bodies of water protected under the Clean Water Act, and criticized the Trump administration’s abandonment of Justice Kennedy’s “significant nexus” standard.
ABOUT THE STATE ENERGY & ENVIRONMENTAL IMPACT CENTER
The State Energy & Environmental Impact Center is a non-partisan Center at the NYU School of Law that is dedicated to working with state attorneys general to protect and advance clean energy, climate change, and environmental values and protections. It was launched in August 2017 with support from Bloomberg Philanthropies. For more information, visit our website.