Rescission of Clean Water Rule and reinstatement of prior WOTUS definition will result in ambiguity and confusion at the expense of clear protections for California’s waterways

September 13, 2019 - SACRAMENTO – California Attorney General Xavier Becerra yesterday issued the following statement in response to the announcement by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers that they are issuing a final rule rescinding the Clean Water Rule and reinstating the prior confusing and ambiguous Waters of the United States (WOTUS) definition from the 1980s. The rescission rule is the most recent step in the Trump Administration’s plan to weaken pollution control measures under the Clean Water Act.

“California won’t stand for this latest environmental attack by the Trump Administration, which could threaten federal protections for the majority of our waters. Our oceans, lakes, and rivers are all connected – when pollution impacts one source, it impacts them all and affects our communities," said Attorney General Becerra. “While we don’t go looking for a fight, there’s too much at stake for us to let this go. We’re prepared to defend the Clean Water Rule.”

The rule would repeal the Clean Water Rule enacted during the Obama Administration and replace it with the outdated definition of “waters of the United States.” The 2015 Clean Water Rule sought to address significant issues with the prior definition of “waters of the United States.” For decades, the pre-2015 definition had been interpreted differently among the courts, leading to confusion, unpredictability, and inconsistent application of the Clean Water Act. The Clean Water Rule clarified the definition of “waters of the United States” to explicitly include waters in floodplains, riparian areas, and intermittent and ephemeral streams. This was an especially important development for the State of California, as the majority of California’s streams and rivers are intermittent or ephemeral. The Clean Water Rule provided a clear and predictable framework of federal Clean Water Act protections for many California wetlands, rivers, creeks, streams, and tributaries. Many of these California waters may be deprived of clear federal protections from pollution as a result of the rescission.

In September 2017 and August 2018, Attorney General Becerra, as part of a multistate coalition, filed comment letters urging the agencies to withdraw the rescission of the Clean Water Rule, asserting the rescission is inconsistent with and contradictory to the Clean Water Act, is unlawful under the Administrative Procedure Act, and would have a negative impact on the nation’s waters.
Source: CA. DOJ