The New WOTUS Proposed Rule and the Myths of Clean Water Act Federalism

by Dave Owen

December 11, 2018

Originally published on Environmental Law Prof Blog.

This morning, the U.S. Army Corps of Engineers and EPA released a proposed new rule that would change the agencies' shared definition of "waters of the United States." That phrase defines the geographic scope of federal jurisdiction under the Clean Water Act. 

The proposed rule would narrow the scope of federal jurisdiction, primarily in two ways.  First, it would eliminate jurisdiction for "ephemeral" streams – that is, streams where water flows only during and shortly after precipitation events. Second, it would eliminate jurisdiction for wetlands that lack an intermittent or permanent surface connection to navigable-in-fact waterways and that are not directly adjacent to those waterways. In practice, this will mean removing protections for wetlands that are close to surface waterways and are connected to those surface waterways through groundwater flows.

In the rule itself, and in the rhetoric surrounding the rule, EPA, the Army Corps, and the rule's many political supporters have identified returning power to the states as a primary purpose of the rule.  The rule itself emphasizes the need for a "line between Federal and State waters," and much of the rhetoric likewise implies that where federal jurisdiction exists, state authority disappears. 

Those statements contain a little bit of truth and a lot of deception. In reality, federal jurisdiction does not eliminate state authority. Indeed, limiting federal jurisdiction will often limit states' roles.

Understanding why that is true requires understanding several principles about Clean Water Act federalism:

  1. The Clean Water Act does not preempt states' authority to protect their waterways. States cannot undermine Clean Water Act protections by imposing less stringent regulatory regimes, but they can require more extensive protection. 
  2. The Clean Water Act provides for extensive state involvement in implementing every major Clean Water Act regulatory program. Most states hold delegated authority to implement the National Pollutant Discharge Elimination System, which is one of the Clean Water Act's two primary permitting programs. States also can assume delegated authority to issue Clean Water Act section 404 permits for non-navigable-in-fact waterways. Only two states (Michigan and New Jersey) have chosen to assume that authority, but most states actively work with Army Corps offices to help shape permit terms, develop compensatory mitigation programs, and otherwise shape the day-to-day work of section 404 permitting. For waterways that are not jurisdictional, state regulators must work alone, if they provide protection at all. Many state regulators therefore have become heavily reliant on the federal program.
  3. The Clean Water Act gives states authority over federal permitting. Clean Water Act section 401 requires an applicant for a federal discharge permit to obtain a state certification that its activities will comply with state water quality protections. In practice, this gives states the ability, which they often use, to impose conditions on federal Clean Water Act permits. If a waterway ceases to be jurisdictional, states lose that activity.
  4. The Clean Water Act protects states from activities in other states. Water flows across state boundaries, and activities in one state can affect the amount and quality of water flowing downstream. That puts downstream states in vulnerable positions. The Clean Water Act assures these downstream states that they have some protection from upstream activities that would cause pollution. And because pollution problems often begin in ephemeral streams and seemingly isolated wetlands – an issue I've discussed in more detail here – even protecting very small waterways can have cross-boundary impacts. If those small waterways cease to be jurisdictional, downstream states lose some of that protection.
  5. The Clean Water Act does not preempt state authority to allocate water or regulate land use. As the quote above illustrates, much of the rhetoric suggests that when federal jurisdiction exists, traditional state authority ceases. That's just not true. States still retain primary authority to allocate waters within their boundaries, and most of the surface water they allocate comes from federal jurisdictional waterways. Similarly, state and local governments can enact land use regulations covering every non-federal inch of their territory, whether that territory is subject to federal Clean Water Act jurisdiction. Within one important exception, described below, state and federal authority can and do coexist.
  6. The Clean Water Act does preclude state authorities from authorizing unpermitted pollutant discharges into navigable waterways. Federal jurisdiction under the Clean Water Act does compromise state authority in one important way: If a waterway is jurisdictional, people cannot discharge pollutants into it without first obtaining a permit. Consequently, states that would like to allow unpermitted discharges lose that ability. And to be fair, that is a significant limitation on state authority, for many states would prefer to allow more construction-related filling or waste discharges in water features that federal law defines as jurisdictional. But that is the only major way in which federal jurisdiction under the Clean Water Act preempts state authority.
  7. States generally create water quality standards and TMDLs for jurisdictional waters. In addition to preempting one particular form of state activity, the Clean Water Act also requires water quality standards and total maximum daily loads (which are basically pollutant budgets) for jurisdictional waters. States aren't obligated to create water quality standards and TMDLs – they can let those tasks lapse to the federal government – but most states choose to handle both tasks themselves. That is not a trivial undertaking, and states are understandably concerned that if more waterways are jurisdictional, they will have more work to do. But, again, if the workload gets too heavy, they can let it default to the feds.

In summary, narrowing the scope of federal jurisdiction isn't primarily about enhancing state authority. States regulators actually would lose authority (they could get it back through new state legislation, but that would require not only passing new laws but also funding agency staff who could step into the voids created by a federal retreat). Instead, narrowing the scope of federal jurisdiction is primarily about limiting regulation of activities that would release pollutants into aquatic systems. Sometimes those deregulatory initiatives will align with state preferences. But to describe them as generally empowering states is deeply misleading.

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Dave Owen is a Professor of Law at the University of California, Hastings, College of the Law.

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