New Mexico Attorney General Hector Balderas joined a coalition of 19 attorneys general, in filing a lawsuit Friday challenging the Trump Administration’s final rule redefining the "waters of the United States" under the Clean Water Act. Here is a statement from the office of the New Mexico Attorney General: The final rule continues the Environmental Protection Agency’s (EPA) effort to weaken water quality protections under the Clean Water Act and narrow the definition of “waters of the United States.” The new rule removes protections for all ephemeral streams, many wetlands, and other waters that were previously covered under the Act. In the lawsuit, the coalition argues that EPA’s rule directly conflicts with the text of the Clean Water Act, Supreme Court precedent, and the EPA’s own scientific findings.
“New Mexico’s heritage, economy, and family safety relies on access to clean water in our State,” said Attorney General Balderas. “This attack on one of our most valuable and vulnerable resources is unacceptable, and I will continue to fight to protect New Mexican families.”
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 obtained. Many of the Nation’s waters remain polluted. The 2015 Clean Water Rule enacted during the Obama Administration provided much-needed clarity and consistency in federal Clean Water Act protections by specifically including within the scope of protected waters the headwaters of rivers and creeks as well as other non-traditionally navigable waters, 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 states’ waterways, including waters that the state relies on for drinking water, wildlife habitat, agriculture, and recreation. In the lawsuit, the coalition highlights that exclusion of these waters directly harms states by increasing the risk of pollution from less-protective jurisdictions; incentivizing polluters to relocate to states with less stringent water quality protections; and disrupting state regulatory programs.
The coalition asserts that the 2020 rule is unlawful under the federal Administrative Procedure Act 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;
Arbitrarily and capriciously reduces and eliminates protections for ephemeral streams, tributaries, adjacent waters, wetlands and other important water resources that significantly affect downstream waters;
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.
In filing the lawsuit, Attorney General Balderas joins the attorneys general of California, Connecticut, Illinois, Maryland, Massachusetts, Michigan, New Jersey, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, Wisconsin, as well the California State Water Resources Control Board, the North Carolina Department of Environmental Quality, and the City of New York.