California Joins Lawsuit Against Fed’s Repeal of Clean Water Rule

SACRAMENTO – California today joined a multi-state coalition in filing suit against the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Army Corps). The lawsuit seeks to challenge the agencies’ proposed new rule which would repeal the current Clean Water Rule and exclude many of our nation’s waterways from vital federal protections. The new rule is known as the Recodification Rule.

The Clean Water Rule was enacted during the Obama Administration and provided much-needed clarity and consistency in federal Clean Water Act protections. The rule specifically included within the scope of ‘protected waters’ the headwaters of rivers and creeks as well as other non-traditionally navigable waterways, which have significant impact on downstream water quality. The suit claims that the new Recodification Rule is simply the latest step in the Trump Administration’s plan to dismantle pollution control measures under the Clean Water Act.

“Our waters are necessary to sustain life, communities, and habitats — they must be protected, not abandoned,” said state Attorney General Xavier Becerra. “We refuse to allow the backward policies of the Trump Administration to inflict lasting damage on our nation’s waterways. There is a legal way of doing business that President Trump has so far refused to learn.”

In addition to repealing the Clean Water Rule, the Recodification Rule reinstates the prior definition of ‘protected waters’, a definition which would seem to be at odds with Supreme Court case law. The new rule also seeks to eliminate federal protections for non-navigable wetlands, rivers, creeks, streams, and tributaries. Under the Recodification Rule, a large portion of California’s surface waters could be deprived of federal protection from polluted discharges.

In the lawsuit, the attorneys general argue that the Recodification Rule is inconsistent with and contradictory to the Clean Water Act, is unlawful under the Administrative Procedure Act (APA), and would have a negative impact on the nation’s waters. The complaint alleges that the agencies’ actions are arbitrary and capricious, are otherwise unlawful, and that the new rule violates the APA because it conflicts with current case law.

In addition, the suit claims the agencies failed to consider whether the new rule meets the key objective of the Clean Water Act which is to restore and maintain water quality, ignored the agencies’ previous findings and conclusions in the Clean Water Rule that were based on current peer-reviewed science, and failed to comply with notice and comment requirements for the rulemaking.

Attorney General Becerra is joined in filing the comments by the attorneys general of New York, Connecticut, Massachusetts, Maine, Maryland, Minnesota, Michigan, New Jersey, Oregon, Rhode Island, Virginia, Vermont, Washington, District of Columbia, and the City of New York.

The attorneys general are urging the court to vacate the Recodification Rule. The suit was filed today in the US District Court for the Southern District of New York. A copy of the complaint can be viewed here: https://oag.ca.gov/system/files/attachments/press-docs/Clean%20Water%20Rule%20-%2012.20.19.pdf