Suit alleges suspension violates Clean Water Act, Administrative Procedure Act

OLYMPIA — Attorney General Bob Ferguson today filed a lawsuit to block the Environmental Protection Agency’s attempt to suspend a 2015 rule that defines what waters qualify for federal Clean Water Act regulation while the Trump Administration attempts to repeal it.

Today’s lawsuit represents Ferguson’s 21st legal challenge against the Trump Administration since January of 2017.

The “waters of the United States” rule provides much-needed clarity about which waters qualify for protection under the Clean Water Act. Before the rule, a patchwork of state and federal rules regulated runoff from some upstream bodies. This made pollution difficult to control. The rule particularly helps states like Washington that have waterways impacted by upstream sources in neighboring states.

The suit, filed with 9 other states and the District of Columbia, accuses the EPA of violating the Administrative Procedure Act and the Clean Water Act by suspending the rule after its effective date had already passed, and failing to provide a meaningful opportunity for public input on its decision.

“I won’t allow the Trump Administration to continue to ignore the law to try to undermine important environmental rules simply because it doesn’t like them,” Ferguson said. “This thoroughly vetted rule adds much-needed clarity to the laws that protect our waterways. If the Administration wants to change it, it must follow the law.”

“This Administration’s continual efforts to unilaterally roll back crucial protections for our nation’s beautiful spaces and the health and safety of all Americans will not go unchecked,” Gov. Jay Inslee said. “The people of Washington state have deep ties to our waterways. Our rivers, streams, lakes and coast are embedded in our culture, our economy and our quality of life. This is a legacy worth protecting, and we will pursue every available option to do so.”

The 2015 Clean Water Rule’s definition of “waters of the United States” clears up ambiguities in 1980s-era regulations by providing a clear definition of waters covered by the Clean Water Act.

As the Attorney General of Oklahoma, current EPA Administrator Scott Pruitt joined several state Attorneys General to challenge the “waters of the United States” rule in federal court. Ferguson and several other state Attorneys General intervened in the suit to defend the rule.

In July of 2017, the EPA, under Pruitt, published a proposed rule to repeal the “waters of the United States” definition, reverting to the pre-existing 1980s-era regulations.

The EPA proposed separately to suspend the “waters of the United States” rule for two years while it considers the repeal, but only allowed a short window for public comments on the proposed suspension. Today, the EPA issued a final rule suspending the “waters of the United States” rule. Consequently, Ferguson and other state Attorneys General are filing a legal challenge alleging a violation of the Administrative Procedure Act.

Ferguson is asking the U.S. District Court for the Southern District of New York to declare the EPA’s suspension unlawful and set it aside.

Senior Counsel Ronald Lavigne is leading the case for Washington state.

Ferguson has not lost a case brought against the Trump Administration. The Attorney General’s Office prevailed in five cases against the Trump Administration where there are no more appeals. Ferguson also successfully blocked the Administration’s ban on transgender individuals serving in the military. This case is still being litigated.

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The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.

Contacts:

Brionna Aho, Interim Communications Director, (360) 753-2727; brionna.aho@atg.wa.gov