Press Release  AG Healey Joins Coalition Challenging Legality of Trump Administration’s Rollback of Clean Water Protections

Boston — Attorney General Maura Healey joined a coalition of nine attorneys general in submitting comments to the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) challenging the legality of a proposal to repeal the Obama-era Clean Water Rule, which was designed to ensure the nation’s lakes, rivers, streams, and wetlands receive proper protection under the federal Clean Water Act. The proposal would also re-issue the outdated prior rules that the two agencies have acknowledged led to disparate and inefficient decision-making.

In the comments the attorneys general argue that the agencies’ proposed repeal of the Clean Water Rule is illegal and that EPA Administrator Scott Pruitt’s failure to recuse himself from the repeal rulemaking effort, after suing to invalidate the Clean Water Rule as Oklahoma Attorney General—the very rule he now seeks to repeal as EPA Administrator—would itself render any final rule that results from the repeal’s rulemaking process invalid.

“It is becoming crystal clear that Scott Pruitt has no intention of running an agency that protects the environment,” said AG Healey. “My office will continue to work with our colleagues in other states to challenge this administration’s reckless actions that jeopardize our environmental resources including our clean water.”

In April 2014, EPA and the Corps proposed the Clean Water Rule to define the “waters of the United States,” and made the rule available for an extended public comment period.  After receiving more than one million comments, most of which supported the rule, the agencies published the final Clean Water Rule in June 2015. Massachusetts was part of a coalition of seven states (New York, Connecticut, Hawaii, Oregon, Vermont and Washington) and the District of Columbia that successfully intervened to defend the Rule against challenges consolidated before the U.S. Court of Appeals for the Sixth Circuit.

The 2015 Clean Water Rule clarifies the scope of waters that are protected under the federal Clean Water Act. It protects waters with a “significant nexus” to downstream waters, such as tributary streams, wetlands, and open waters in floodplains and riparian areas, consistent with U.S. Supreme Court precedent. In drawing those lines, EPA and the Corps relied on a robust EPA science report that considered more than 1,200 peer-reviewed publications. The agencies also relied on an independent review of the science report by EPA’s Science Advisory Board. 

The Clean Water Rule enhances environmental protection benefits for states and the public by clearly defining the Act’s reach to include waters that significantly contribute to the quality of the nation’s waters. By clarifying the scope of the Clean Water Act, the Rule also benefits both regulators and the regulated community by reducing time-consuming, inefficient, and potentially inconsistent case-by-case jurisdictional determinations that have hampered effective implementation of the Act for years and led to significant, time-consuming litigation across the country.

The EPA and the Corps proposed repealing the Clean Water Rule on July 27, 2017 and reinstating regulations – adopted in 1977 – that had been in place prior to the Clean Water Rule. Ironically, while the agencies suggest that they are pursuing these regulatory changes to promote certainty, the outdated science underlying those 40-year-old rules and their lack of clarity on what waters are subject to the federal Clean Water Act’s protection led to years of confusing and inconsistent interpretations by agencies and federal courts. Once the repeal rule is finalized, the reinstated, outdated 1977 regulations could remain in place indefinitely. 

In their comments, the coalition of attorneys general state that EPA and Corps are in “wholesale breach of foundational administrative law principles and the repeal rule is arbitrary, capricious, and not in accordance with law.”  The coalition charges that, among other things, the agencies have failed to provide opportunity for public comment on the substance of repealing the rule, ignored important aspects of defining “waters of the United States,” and disregarded the scientific basis and factual findings supporting the Clean Water Rule that they seek to repeal. 

The Massachusetts Attorney General’s Office has long supported an interpretation of the term “waters of the United States” that follows the scientific evidence and thus best achieves the Act’s central water-quality-protection purpose as a means to reinforce Massachusetts’s own strong water quality protection laws, including the Massachusetts Clean Waters Act and the Massachusetts Wetlands Protection Act.

Joining AG Healey in filing the comments are the attorneys general of New York, California, Maine, Maryland, New York, Oregon, Vermont, Washington, and the District of Columbia.

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