State Attorneys General React to Release of Final Waters of the United States (WOTUS) Rule

Washington, D.C. — State attorneys general today denounced an unprecedented rollback of Clean Water Act protections by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers. The agencies’ misnamed Navigable Waters Protection rule narrows the definition of “Waters of the United States” (WOTUS), stripping federal protections from wetlands that lack a surface connection to waterways, which applies to a majority of wetlands in the country. Wetlands are valuable in mitigating flooding, filtering pollutants, sequestering carbon and sustaining biodiversity. The rule also excludes ephemeral streams — those that do not flow year round — which account for more than 18 percent of the nation’s waterways. In many dry states, the majority of streams are ephemeral — for example, 81 percent of streams in California and 84 percent of streams in Arizona are ephemeral.

“This irrational, ill-conceived rule is yet another attempt by the Trump Administration to dismantle the critical environmental protections upon which we all rely,” said California Attorney General Xavier Becerra. “Today’s announcement is an unlawful assault on the Clean Water Act and we’re prepared to take action. California is not interested in going back to the days when backroom deals and dirty water were the norm.”

“The Trump Administration’s pullback of environmental protections on our country’s water sources that have been in place for over thirty years is not only dangerous, it’s just plain wrong,” said Virginia Attorney General Mark Herring. “Keeping our waters clean is crucial to the economy and to the health and well-being of our people and our communities. We should be doing much more to protect them — not less.”

“The Trump Admin’s reckless ‘Dirty Water’ rule will result in more pollution, more flooding & more harm to wildlife in New York & across our nation,” said New York Attorney General Letitia James. “We will fight back against their continued assault on our nation’s core public health & environmental laws.”

“Against the pleas of his own scientists, the President’s new rule strips away decades-old federal protections for over HALF the nation’s wetlands and hundreds of thousands of streams,” said Massachusetts Attorney General Maura Healey. “Oil, gas, and golf course developers are celebrating.”

“Today’s rollback guts protections for clean water in Maryland and across the country, protects polluters, and endangers our wetlands and important wildlife habitat,” said Maryland Attorney General Brian Frosh.

“This unprecedented rule will destroy more clean water protections than any other single act in American history. Without a doubt, it is among the most flagrant steps taken by the Trump administration in their all-out assault on the environment and the Clean Water Act,” said Washington Attorney General Bob Ferguson. “Today’s action will decimate federal protections for more than half the nation’s wetlands and hundreds of thousands of miles of streams — protections that have been in place for decades, under both Republican and Democratic administrations. By allowing unfettered corporate pollution in our waters, EPA is willfully threatening the healthy waters necessary for thriving communities, fish and wildlife habitat, and our vital outdoor recreation economy. As with so many other actions, we know these impacts will be felt disproportionately by those already struggling with access to clean water. We demand better for our low-income and marginalized communities of color. Washington will not stand idly by as the Trump administration eviscerates critical protections for our natural resources and everything we hold dear. We are reviewing the final rule now and exploring all options to protect clean water for all Washingtonians.”

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. Its objective is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The statute makes it unlawful to pollute a “water of the United States” without a permit, but the definition of such a water has been the subject of litigation for many years.

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.

For additional background information and links to comments, testimony and court filings, visit the WOTUS page of our website.

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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.