Press Release

Fifteen AGs Oppose EPA’s Unlawful “Dirty Water Rule” Removing Federal Protections from National Wetlands and Streams

The Trump administration has "failed to provide a rational basis" for its proposed Dirty Water Rule.

The EPA's own analysis shows that its proposed rollback would remove Clean Water Act protections from 51 percent of national wetlands and 18 percent of national streams.

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.

BACK­GROUND

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.