SEATTLE — Attorney General Bob Ferguson filed a federal lawsuit recently against the Trump Administration for attempting to dismantle key environmental protections within the Clean Water Act. The new regulation undermines Washington’s right to keep its rivers, lakes and coastal waters clean by handcuffing the state’s ability to police a wide range of water pollution and related environmental damage.
On July 13, the U.S. Environmental Protection Agency (EPA) published final changes to rules implementing section 401 of the Clean Water Act regarding states’ certification of water quality. This section allows states and tribal nations to protect health and human safety within their geographic boundaries by making permitting decisions related to the discharge of waste into state waterways. The new rule takes effect on September 11, 2020 and will handicap states’ abilities to regulate water quality.
The Trump Administration’s final rule reverses fifty years of long-held and effective state and tribal water quality regulation.
The case, co-led by Washington, New York and California and joined by broad coalition of 17 other states and the District of Columbia, is filed in U.S. District Court for the Northern District of California. According to the states’ lawsuit, EPA’s new rule unlawfully violates the plain language, intent and established case law interpreting the Clean Water Act.
“Instead of protecting the environment, this administration is yielding to polluting industries and undermining a key tool states use to protect their water,” Ferguson said. “We will continue to advocate for a clean and healthy Washington and confront the powerful special interest groups that dictate this administration’s actions.”
“Washington will not stand idly by as President Trump tries to gut the Clean Water Act and strip states of our ability to protect our families and communities,” Washington Governor Jay Inslee said. “This rule is an unprecedented assault on the right and obligation of every state to protect our waters, and we will fight to uphold our clear authority under the law. I thank Attorney General Ferguson for challenging this illegal and reprehensible attack on Washington’s natural resources.”
The final rule forces states to issue permits based on an incomplete review of what effects industries will have on waterways. States will only be able to consider a narrow range of impacts these projects have on water quality, even when the consequences cause far-reaching and even irreversible environmental damage. The rule also limits the amount of information industry must provide, which unreasonably reduces the amount of time states have to make decisions or deny permits and attempts to grant the federal government oversight of projects rather than states.
Along with California and New York, Washington is also joined in the legal action by Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, and Wisconsin and also the District of Columbia. The states assert EPA has violated the Clean Water Act and the federal Administrative Procedure Act, which prevents federal agencies from adopting rules that are either against the law or made in an arbitrary or unreasoned manner.
Assistant Attorneys General Kelly Wood and Cindy Chang are leading the case for Washington.
History of the Clean Water Act
The objective of the Clean Water Act, passed in 1972, was “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” Congress intended to enhance the states’ and tribes’ authority to monitor their waterways. Congress maintained the act will “recognize, preserve and protect the primary responsibilities and rights of states to prevent, reduce and eliminate pollution.”
Congress specifically preserved state authority to regulate its own waters so long as the regulations were not more permissive than the act’s minimum standards. Further, the act allows state requirements to be more stringent on water quality than federal requirements. Courts have ruled states can block projects they deem harmful to their waterways even if they would otherwise receive federal approval. In other words, the act was intended as a floor, not a ceiling.
EPA’s own guidance, enhanced in 1989, bestowed broad and unqualified state and tribal review: “[A]ll of the potential effects of a proposed activity on water quality—direct and indirect, short and long term, upstream and downstream, construction and operation—should be part of a state’s certification review.” EPA updated its guidance in 2010 to assert that states and tribes had broad authority to determine their own permitting regulations to ensure adherence to the act and also to local laws and regulations.