Press Release  AG Healey Leads Effort Challenging Trump Administration’s Rollback of Clean Water Protections

BOSTON — Massachusetts Attorney General Maura Healey today led a coalition of 15 attorneys general in filing a brief in support of a challenge to a regulation by the U.S. Environmental Protection Agency and the Army Corps of Engineers (agencies) that illegally strips away critical, longstanding federal water quality protections under the federal Clean Water Act. The regulation excludes more than half of the country’s wetlands and hundreds of thousands of streams, which were previously protected by the Act.

“This reckless regulation ignores common-sense and undisputable scientific evidence showing that this rollback will seriously degrade water quality in Massachusetts and across the country,” AG Healey said. “It will make it harder for states like ours to protect the water we drink and to preserve the health of the streams and wetlands that we rely on for recreation, agriculture, and wildlife habitats. We are urging the court to vacate this dangerous regulation.”

The brief, filed today in the U.S. District Court for the District of Massachusetts, supports a motion for summary judgment in a lawsuit brought by several organizations—led by the Natural Resources Defense Council and the Conservation Law Foundation—over the Trump Administration’s regulation that dramatically narrows the “waters of the United States” that are protected by the federal Clean Water Act. A broad definition of covered waters is critical to maintaining a strong federal foundation for water pollution control and water quality protection that preserves the integrity of the nation’s waters.

The regulation categorically excludes from the Act’s protections all ephemeral streams that flow in response to precipitation and all wetlands without specific types of surface-water connections to other waters. The newly excluded waters are integral to maintaining and restoring the nation’s water quality. Ephemeral streams, for example, compromise nearly 20 percent of all stream miles nationwide and include many of the critical headwaters for the country’s major rivers. Science shows that protecting wetlands without surface-water connections is critical to preventing substantial, negative impacts on downstream water quality. Wetlands perform many critical functions like filtering out pollution, stopping erosion, and storing floodwater that would otherwise damage and destroy public and private property.

The brief argues that the reasoning the agencies rely on to justify the regulation is contrary to the purpose of the Clean Water Act – restoring and maintaining the nation’s water quality. While the agencies assert that the regulation is necessary to protect states’ rights, it does precisely the opposite. The Clean Water Act was passed to protect downstream states from upstream states’ pollution and to prevent states from competing for economic development in a regulatory “race to the bottom.” The brief explains that the regulation upends the strong federal regulatory floor necessary to achieve those aims and unlawfully prioritizes upstream states’ decisions to allow pollution over downstream states’ rights to protect their water quality. And, in doing so, the regulation also deprives downstream states of their statutory right to object to activities in upstream states that will harm their water quality.

The brief further argues that the agencies ignored the significant harms that the regulation will inflict on states. The agencies declined to conduct a comprehensive review of the scope of waters that would be left unprotected by the new regulation, ignoring that the regulation’s massive reduction in federal protections will lead to serious degradation of ecological resources.

The regulation also creates numerous regulatory gaps even in states like Massachusetts, that have broadly protective state water and wetlands protection laws. In the short time that the regulation has been in effect, developers already have moved to take advantage of those gaps in ways that will permanently destroy and otherwise harm important water resources. Moreover, the agencies ignore the ways that the coalition states have invested significantly to align their state water protection programs with the prior longstanding federal law protections and fail to recognize that restructuring those programs will be difficult and costly and, in some cases, nearly impossible.

The Massachusetts AG’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 sole objective of protecting water quality. Robust federal protections also serve to reinforce the state’s own strong water quality protection laws, including the Massachusetts Clean Waters Act and the Massachusetts Wetlands Protection Act.

In May, Massachusetts joined a multistate lawsuit challenging the same regulation that is now pending in California federal court.

Joining AG Healey in filing today’s brief are the attorneys general of California, Connecticut, Illinois, Maine, Maryland, Michigan, New Mexico, New York, North Carolina, Oregon, Rhode Island, Virginia, and Washington, and the District of Columbia.

Representing Massachusetts in this matter are Special Assistant Attorney General David Frankel and Senior Appellate Counsel Seth Schofield of AG Healey’s Energy and Environment Bureau.

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