Eighteen Attorneys General File Lawsuit Challenging Narrowed Waters of the United States (WOTUS) Rule

Washington, D.C. — A coalition of 18 attorneys general led by California Attorney General Xavier Becerra and New York Attorney General Letitia James filed a lawsuit against the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers challenging the agencies’ unprecedented rollback of Clean Water Act (CWA) protections. In their complaint, the AGs ask the court to vacate the misnamed Navigable Waters Protection Rule that replaced the 2015 Clean Water Rule, a science-based regulation that protected key wetlands and upland waters that deliver clean drinking water for millions of Americans, while reducing flooding and sustaining wildlife.

“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.”

“Trump’s ‘Dirty Water Rule’ is a reckless rollback of clean water protections,” said Attorney General James. “EPA’s new rule ignores science and the law by stripping our waters of basic protections under the Clean Water Act, putting our communities and our wildlife at risk. My office will work with attorneys general from across the nation to challenge this illegal and harmful regulation and continue the fight for our environment.”

The Clean Water Act is the primary mechanism for establishing a federal floor for maintaining water quality and for protecting downstream states from the effects of out-of-state pollution. The law makes it unlawful to discharge pollutants into “waters of the United States” without a permit.

The AGs’ suit notes that the Trump administration’s radically narrowed definition of “waters of the United States” (WOTUS) “conflicts with the text of the CWA, contradicts the CWA’s objective, and overlooks the Agencies’ prior scientific findings and longstanding policy and practice, and the recommendations of the Agencies’ Science Advisory Board.” The AGs also contrast the Clean Water Act’s objective “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters” with the dramatic reduction of federal protections under the new WOTUS rule. The rule strips federal protections from as much as 51 percent of wetlands across the country, and from all ephemeral streams, which flow only after rainfall. Ephemeral streams account for more than 18 percent of waterways nationwide, and more than 80 percent of waterways in dry states such as California and Arizona.

“The whole point of the Clean Water Act was to clean up our nation’s waterways, and that requires a full and comprehensive application of the law,” said Connecticut Attorney General William Tong. “This revised rule, however, turns a blind eye to basic science, and will have disastrous implications for public health and the environment. The EPA ignored basic federal law in their rush to push through this damaging rule, and Connecticut joins with our partner states in defending the goals of the Clean Water Act in court.”

“The residents of Illinois rely on our state’s rivers, lakes and streams for safe water for drinking, agriculture and recreation,” said Illinois Attorney General Kwame Raoul. “I am committed to protecting our vital natural water sources, and I will continue to fight federal attempts to gut regulations that protect our residents from pollution.”

“New Mexico’s heritage, economy, and family safety relies on access to clean water in our State,” said New Mexico Attorney General Hector Balderas. “This attack on one of our most valuable and vulnerable resources is unacceptable, and I will continue to fight to protect New Mexican families.”

“North Carolinians deserve clean water. Our health, seafood industry, agricultural sector, and quality of life all depend on it,” said North Carolina Attorney General Josh Stein. “This Trump administration rule would reduce vital protections of wetlands and streams to their lowest levels since the 1980s. This is both absolutely unacceptable and contrary to law.”

“Repeated efforts by the EPA to weaken water quality protections threaten the health of our rivers, streams, and lakes — potentially rolling back decades of hard-fought progress in restoring the health of the Chesapeake Bay,” saidMaryland Attorney General Brian Frosh. “We will continue to fight back against this relentless assault on environmental protections.”

“President Trump’s illegal regulation goes against the advice of his own scientists and puts our country’s waters at risk for the benefit of his friends in the agribusiness and the oil and gas industries,” said Massachusetts Attorney General Maura Healey. “The Administration’s justification for this illegal rule is absurd. In fact, it will only make it harder for states like Massachusetts to protect our water. Once again, we are suing to defend federal law and our right to clean water.”

WOTUS Timeline

• June 2015 — The first WOTUS rule is finalized. Also called the Clean Water Rule, it clarified the scope of protections for American waters under the 1972 Clean Water Act. In particular, it confirmed that federal protection covers wetlands and upland waters, the regulatory authority being affirmed 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.
• February 2017 — Executive order directs the EPA and Army Corps of Engineers to revise the just-finalized WOTUS rule.
• July 2017 — Interim WOTUS rule proposed. The administration proposes to rescind the 2015 WOTUS rule and temporarily reestablish the previous definition of ‘‘waters of the United States,” and outlines a two-step “repeal and replace” strategy.
• December 2018 – Replacement WOTUS rule proposed.* The administration proposes a replacement for the 2015 WOTUS rule that dramatically narrows the definition of waters protected under the Clean Water Act. (*published February 2019)
• October 2019 — Interim WOTUS rule finalized. The administration completes the rescission of the 2015 WOTUS rule and reestablishes the 1986 regulatory definition of “Waters of the United States” to serve as the legal standard until it releases a final WOTUS rule.
• January 2020 — Replacement WOTUS rule finalized.* The administration completes its “repeal and replace” strategy by releasing a final WOTUS rule that significantly weakens protections for many of the nation’s waterways and injects more uncertainty and continued controversy over the reach of the Clean Water Act. (*published April 2020)

The attorneys general of Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, Wisconsin and Washington, D.C., and the City of New York, joined AG Becerra and AG James in filing the suit.

For more background and links to comments, testimony and litigation, visit the WOTUS page of our website.

###

About the State Energy & Environmental Impact Center:
The State Energy & Environmental Impact Center at NYU School of Law is a nonpartisan academic center at NYU School of Law. The Center is dedicated to working towards a healthy and safe environment, guided by inclusive and equitable principles. The Center studies and supports the work of state attorneys general (AGs) in defending, enforcing, and promoting strong laws and policies in the areas of climate, environmental justice, environmental protection, and clean energy.