November 24, 2020 - SACRAMENTO – California Attorney General Xavier Becerra and New York Attorney General Letitia James, leading a multistate coalition, filed a motion for summary judgment in their lawsuit challenging the Trump Administration’s unlawful final rule redefining “waters of the United States” under the Clean Water Act. Under the new rule, more than half of all wetlands and at least 18 percent of all streams are left without federal protections. Western states like California are even harder hit, with 35 percent of all streams deprived of federal protections as a result of the region’s dry climate. In the filing, the coalition argues that the rule is arbitrary and capricious, contrary to the text and primary objective of the Clean Water Act, and should be vacated. 

(Left) California Attorney General Xavier Becerra

“Over the past four years, the Trump Administration has been fighting the currents – largely unsuccessfully – in a damaging effort to dismantle the Clean Water Act and its protections,” said Attorney General Becerra. “But the Trump Administration can't stop the tides of fifty years of progress. We won't let them. Clean water is essential to sustaining life, communities, and habitats. It is a fundamental right, and one we are determined to protect.”

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 of California’s waterways, including waters that the state relies 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 it:

• 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.

On May 1, 2020, Attorneys General Becerra and James, leading a multistate coalition, filed a lawsuit in the Northern District of California challenging the rule.

Attorneys General Becerra and James are joined by the attorneys general of Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, 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 in filing the motion.

A copy of the motion for summary judgment can be found here.
Source: CA. DOJ