AGs: Proposed Two-Year Suspension of “Clean Water Rule” Would Violate Federal Law and Rollback Decades of Clean Water Protections.
New York, NY - December 15, 2017 - Attorney General Eric T. Schneiderman, leading a coalition of 11 Attorneys General, challenged the legality of a Trump Administration proposed two-year suspension of the “Clean Water Rule,” a federal regulation that defines “waters of the United States” under federal law. In comments addressed to the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (ACOE), the coalition charges that the proposed suspension of the Clean Water Rule – which is designed to ensure the nation’s lakes, rivers, streams, and wetlands receive proper protection under the federal Clean Water Act – would violate federal law in multiple respects.
Click here to read the comments. Joining Attorney General Schneiderman in the comments are the Attorneys General of California, Hawaii, Maine, Maryland, Massachusetts, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia.
“Clean water is a basic right – fundamental to New Yorkers’ health, environment, and economy,” Attorney General Schneiderman said. “The Trump administration’s proposed suspension of the Clean Water Rule is clearly illegal, and would jeopardize the clean, healthy water on which New Yorkers rely. Attorneys General will fight back against this reckless ‘dirty water’ proposal, and the Trump administration’s continued assault on our nation’s core public health and environmental protections.”
A lake, river, stream, wetland, or any other kind of surface water is afforded protection under the Clean Water Act only if it is a “water of the United States.” Supreme Court decisions in 2001 and 2006, and ambiguity in regulations dating back to 1980, led to substantial uncertainty as to whether some waters – particularly, small, seasonal, or rain-dependent streams, wetlands, and tributaries – are considered waters of the United States. As a result, roughly 20,000,000 wetland acres and 2,000,000 miles of streams in the Continental United States were lost, or were placed in jeopardy of losing, their protections under the Clean Water Act. These at-risk streams help provide drinking water to 117 million Americans – including 56 percent of New Yorkers.
The uncertain protection of waters put at risk 60 percent of our nation’s streams – and at least 55 percent of New York’s stream miles – and millions of acres of wetlands nationwide of federal protection. This left these waters – and the downstream waters with which they connect – vulnerable to increased flooding, pollution, damage to hunting and fishing habitat, and fouling of the drinking water supplies.
The 2015 Clean Water Rule, which the Trump Administration wants to suspend, clarified what types of waters are covered by the Clean Water Act, thereby securing their protection. The Rule was based on over 1,200 peer-reviewed scientific studies that demonstrated how many waters are connected by networks of tributaries, intermittent streams, and wetlands. Because of this “interconnectivity,” physical, chemical, and biological pollution from wetlands and relatively small or infrequently-flowing upland streams often impact larger downstream waters, such as rivers, lakes, estuaries, and oceans. All of the lower 48 states have waters that are downstream of other states; New York, for example, is downstream of 13 states. As such, New York and other states are recipients of water pollution generated not only within their borders, but also from upstream sources outside their borders over which they lack jurisdiction.
On November 22, 2017, the EPA and ACOE proposed to suspend applicability of the Clean Water Rule for two years and reinstate the old and inadequate regulations – dating back to at least 1980 – that had been in place prior to the Clean Water Rule. It was these nearly 40-year-old rules, whose dated science and lack of clarity as to which waters are “waters of the United States,” that had led to years of confusing and inconsistent interpretations by agencies and federal courts. If the suspension rule is finalized, the outdated 1980 regulations would replace the Clean Water Rule.
In their comments, the coalition of Attorneys General state that EPA and ACOE are in “wholesale breach of foundational administrative law principles” and that the suspension rule is “in blatant violation” of federal law requirements, and is otherwise arbitrary, capricious, and exceeds the agencies’ legal authority. The coalition charges that, among other things, the agencies have:
Failed to provide a meaningful opportunity for public comment on the substance of the suspension rule – allowing only a 21-day comment period during the Thanksgiving/Christmas holiday season, and specifically rejecting any comments on the content, basis, or impact of the reinstated four-decade-old regulations – demonstrating that the agencies “lack the required flexible and open-minded attitude” necessary for a proper rulemaking;
Failed to consider important aspects of defining “waters of the United States,” including the “well-known ambiguities and inconsistencies that result from applying the 1980 regulations, and the further complications arising from Supreme Court and federal case law interpreting ‘water of the United States’,” and
Disregarded the voluminous scientific basis and factual findings supporting the Clean Water Rule, including that the 1980 regulations do not specifically address the interconnectivity of waters and thereby leave many floodplains, wetlands, and tributaries without certain protection under the Clean Water Act.
Further, the coalition notes that while EPA Administrator Scott Pruitt had pledged to recuse himself from the litigation he brought as Oklahoma Attorney General to repeal the Clean Water Rule, he has refused to recuse himself from this rulemaking involving the very same issues. Since becoming EPA Administrator, Pruitt has appeared in promotional videos for private organizations that have brought suit challenging the Clean Water Rule, and in those ads has clearly misstated the rule’s provisions. The coalition charges that Administrator Mr. Pruitt’s involvement in this rulemaking is “illegal” and “renders a final rule invalid due to his refusal to follow ethics review procedures [under federal law] in light of his lack of impartiality, and because the clear and convincing evidence demonstrates his closed mind on the matter in violation of due process.”
On September 27th, Attorney General Schneiderman, joined by the Attorneys General of California, Maine, Maryland, Massachusetts, Oregon, Vermont, Washington, and the District of Columbia, challenged the legality of a Trump Administration’s previous proposal to outright repeal the Clean Water Rule. The coalition charged that the proposal was “arbitrary and capricious and not in accordance with law.” They also charged that EPA Administrator Scott Pruitt’s involvement in the effort, after suing to negate the Clean Water Rule as Oklahoma Attorney General, was “illegal” and would render any repeal invalid. Click here to read these comments.
This matter is being handled for the Attorney General’s Environmental Protection Bureau by Assistant Attorneys General Philip Bein and Timothy Hoffman, Environmental Scientist Jennifer Nalbone, and Policy Analyst Jeremy Magliaro, under the supervision of Bureau Chief Lemuel M. Srolovic. The Enivronmental Protection Bureau is part of the Division of Social Justice, which is led by Executive Deputy Attorney General of Social Justice Alvin Bragg.