Attorney General Becerra Joins Lawsuit Challenging Repeal of Clean Water Rule

Trump Administration attempting to exclude waterways from protection

SACRAMENTO – California Attorney General Xavier Becerra today, as part of a multistate coalition, filed a lawsuit against the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Army Corps) challenging the agencies’ proposed rule repealing the current Clean Water Rule and excluding many of our nation’s waterways from vital federal protections (Recodification Rule). The Clean Water Rule enacted during the Obama Administration provided much-needed clarity and consistency in federal Clean Water Act protections by specifically including within the scope of protected waters the headwaters of rivers and creeks as well as other non-traditionally navigable waters, which have significant impact on downstream water quality. The Recodification Rule is the most recent 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 Attorney General 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, which does not comply with Supreme Court case law. The rule could eliminate federal protections for many 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 assert 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 and otherwise unlawful. The new rule violates the APA because it conflicts with case law.  In addition, the agencies failed to consider whether the new rule meets the key objective of the Clean Water Act 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. 

Filing the comments with Attorney General Becerra are 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 urge the court to vacate the Recodification Rule. A copy of the complaint is available here.