AG Mark Herring Joins Multistate Coalition Challenging Trump Administration’s Assault on Clean Water Act Protections

“Redefining ‘waters of the United States’ will have a detrimental effect on waters across the country,” said Attorney General Herring. “The Trump Administration has made it no secret that keeping water and air clean is not a priority and this rule change is just yet another way that they are shirking their responsibility to protect the environment. The Clean Water Act has made significant improvements in the health of our waters, but this rule change will reverse that progress, by making our waters dirtier and unhealthy.”

The definition of “waters of the United States” under the Clean Water Act is critical to maintaining a strong federal foundation for water pollution control and water quality protection that preserves the integrity of our waters. While the Clean Water Act has resulted in dramatic improvements to water quality in the United States, its overriding objective has not yet been achieved. Many of the nation’s waters fail to meet water quality standards. The 2015 Clean Water Rule enacted during the Obama Administration provided much-needed clarity and consistency in federal Clean Water Act protections. It specifically included within the scope of protected waters, the headwaters of rivers and creeks as well as other non-traditionally navigable waters, such as wetlands and ephemeral streams, which have significant impact on downstream water quality.

The 2020 rule narrows the definition of “waters of the United States” to eliminate federal protections for many waterways, including waters that states rely on for drinking water, wildlife habitat, agriculture, and recreation. In today’s filing, the coalition argues that the rule is arbitrary and capricious, and should be vacated because the rule:

• Contradicts the Clean Water Act’s objective of maintaining and restoring the integrity of the Nation’s waters and the EPA’s own scientific findings;
• Reduces and eliminates protections for ephemeral streams, tributaries, adjacent waters, wetlands and other important water resources that significantly affect downstream waters without basis;
• Fails to comply with controlling Supreme Court precedent established in Rapanos v. United States; and
• Lacks a reasoned explanation or rational basis for changing long-standing policy and practice.

Attorney General Herring joined a multistate coalition in filing a lawsuit on May 1, 2020 challenging a Trump Administration final rule narrowing the definition of “waters of the United States” to remove protections for all ephemeral streams, many wetlands, and other waters that were previously covered under the Clean Water Act. Under the new rule, more than half of all wetlands and at least 18 percent of all streams would be left without federal protections. Western states like California would be even harder hit, with 35 percent of all streams deprived of federal protections as a result of the region’s dry climate. On May 19, 2020, Attorney General Herring and his colleagues sought a preliminary injunction in this lawsuit arguing that the rule should be suspended pending the court’s decision on the coalition’s lawsuit in order to prevent widespread harm to national water quality and to avoid disruption to state and local water pollution control programs.

Joining Attorney General Herring in filing today’s motion for summary judgment are the attorneys general of California, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, New Jersey, New Mexico, New York, Carolina, Oregon, Rhode Island, Vermont, Washington and Wisconsin, and the District of Columbia, as well as the California State Water Resources Control Board, the North Carolina Department of Environmental Quality, and the City of New York.