Attorney General Clark Joins Multistate Coalition to Oppose Trump Administration's Attempt to Further Dismantle Safeguards for Nation's Waters

Attorney General Charity Clark today joined multi-state coalition of 17 attorneys general in sending a comment letter opposing a proposed rule by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Army Corps) that would significantly reduce federal protections for streams and wetlands nationwide. The rule at issue - entitled the "Updated Definition of Waters of the United States" rule - would limit the scope of the "waters of the United States" that are subject to pollution discharge permits and other important safeguards under the Clean Water Act (CWA). In the comment letter, the multistate coalition asserts that the proposed rule is unlawful, represents a significant backslide in federal water quality regulation, and would result in further degradation of Vermont's waters and waters across the country.

The CWA was intended "to restore and maintain the chemical, physical and biological integrity of the Nation's waters" along with establishing uniform federal water quality protections applicable to all states, in recognition of the fact that waters cross state boundaries and downstream states often have no ability to regulate the pollution that may originate upstream. This is achieved through the CWA's core programs, including the prohibition on discharges of pollutants to "navigable waters" and "waters of the United States." For decades, EPA's and the Army Corps' regulations interpreted "waters of the United States" broadly to maximize federal protection of waters nationwide. Following the U.S. Supreme Court decision in Sackett v. EPA, which considered the scope of "waters of the United States" in relation to wetlands, the EPA and Army Corps promulgated in September 2023 a revised regulatory definition that conformed with the U.S. Supreme Court's opinion.

The current proposed rule seeks to unlawfully limit "waters of the United States" to deprive of protections many waters that are vitally important for water quality, creating ambiguity and confusion, rather than promoting a clear definition that is consistent with the CWA's purpose, science, and U.S. Supreme Court caselaw. If finalized, the proposed rule would harm states' water quality and protection programs by removing "interstate waters" as a category of "waters of the United States," and including irrational and legally-flawed definitions for other key terms that determine the law's applicability to different water bodies, including "relatively permanent," "continuous surface connection," and "ditches."

In the comment letter, the coalition asserts that the proposed rule:

• Conflicts with the Clean Water Act's objective and text and is inconsistent with applicable caselaw.
• Flouts the requirements of the Administrative Procedure Act because it is contrary to the law and proposes numerous revisions to the existing regulatory definition of "waters of the United States," including various terms in the definition that are arbitrary and capricious and without rational basis.

In sending this letter, Attorney General Clark is joined by the attorneys general of California, Colorado, Connecticut, Delaware, the District of Columbia, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, Oregon, Rhode Island, Washington, and Wisconsin, as well as the City of New York.

A copy of the comment letter is available on our website.

CONTACT: Amelia Vath, Senior Advisor to the Attorney General, 802-828-3171