States Sue EPA Over Rollback of Clean Water Rules

McCloud River, Siskiyou County, California. (Michael Kahn / MK Library via Wikipedia)

SAN FRANCISCO (CN) — Seventeen states and two major cities sued the Trump administration Friday over a new rule that eliminates anti-pollution safeguards for a large portion of waterways in the United States.

The Navigable Waters Protection Rule finalized on April 21 revamps the prior “Waters of the United States” rule, enacted under the Obama administration in 2015, which included protections for wetlands, artificial lakes and ponds and ephemeral streams — critical waterways that carry stormwater runoff.

The new rule enacted by the U.S. Environmental Protection Agency and Department of the Army classifies those bodies of water as “nonjurisdictional” and exempts them from anti-pollution safeguards under the Clean Water Act.

“This rule opens the door to new and worse industry pollution that endangers our wildlife, dirties our drinking water and risks harmful contamination of our nation’s waterways,” California Attorney General Xavier Becerra said in a press call Friday.

Becerra and New York Attorney General Letitia James are leading a coalition of 17 states and two cities in challenging the regulatory rollback. They claim the Trump administration disregarded scientific evidence, failed to fully consider the impact on water quality and interpreted “waters of the United States” in a manner inconsistent with the Clean Water Act.

“This dirty water rule goes directly against the goal of the Clean Water Act, and it conflicts with the intent of the statute which is to protect the quality and integrity of the nation’s waters,” James said. “This country can’t afford to go backwards in the fight for clean water.”

The regulatory rollback follows a 2017 executive order by President Trump directing federal agencies to review clean water protections to ensure they keep navigable waters free from pollution “while at the same promoting economic growth” and “minimizing regulatory uncertainty.”

In announcing the proposed rule in January, EPA Director Andrew Wheeler said it would provide much needed regulatory certainty and predictability for American farmers, landowners and businesses.

“Our new Navigable Waters Protection Rule strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters, and it does so within the authority Congress provided,” Wheeler said.

In a 29-page lawsuit filed in the Northern District of California, the coalition of cities and states say the rule will eliminate protections for 18% of streams across the country that are considered “ephemeral,” or not filled with water 365 days a year.

Becerra said California and other western states will be hardest hit by the rule because 35% of streams in the West are considered ephemeral.

“We rely on these waterways for drinking water, wildlife habitat and recreation,” Becerra said.

The rule would also eliminate protections for 51% of wetlands in the United States, which endangered species like whooping cranes rely on for their survival.

James further argued the rule will incentivize industry polluters to relocate to states with weaker water quality protections. Though she declined to name specific states, the New York AG said many of those states are “upstream” from New York, meaning contaminants could run downstream into New York waters.

“Our waters are exposed to pollution by upstream jurisdictions that have less protection for their waters,” James said.

New Mexico Attorney General Hector Balderas, who also joined the coalition, added that 90% of waters in his state are connected to waterways exempt from anti-pollution safeguards under the new rule. 

Recalling how the Gold King Mine spill crippled a large part of New Mexico’s economy in 2015, Balderas said the agriculture and ecotourism industries rely on clean water.

The coalition alleges violations of the Administrative Procedure Act and seeks a court order invalidating the Navigable Waters Protection Rule.

The following cities and states joined California, New York and New Mexico as plaintiffs in the lawsuit: Connecticut, Illinois, Maine, Maryland, Michigan, New Jersey, North Carolina, Oregon, Rhode Island, Vermont, Washington, Wisconsin, Massachusetts, Virginia, the District of Columbia, and the city of New York.

Reached by email, an EPA spokesperson said the agency and Department of the Army “believe that the Navigable Waters Protection Rule will stand the test of time as it is securely grounded in the text of the Clean Water Act and is supported by legislative history and Supreme Court case law. Congress, in the Clean Water Act, explicitly directed the Agencies to protect ‘navigable waters.’ The Navigable Waters Protection Rule regulates these waters and the core tributary systems that provide perennial or intermittent flow into them.”

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