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:
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 | 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 […]
Daniel Farber | December 10, 2018
Cross-posted from Legal Planet. In terms of regulatory policy, the second half of Trump's term is shaping up to look a lot like Obama's final two years in office. Congress won't be doing much to advance Trump's environment and energy agenda, as was the case with Obama. So, like Obama, Trump's focus will be on […]
Daniel Farber | December 6, 2018
Cross-posted from Legal Planet. This is the second of three posts assessing the first two years of the Trump administration. You can read the first post here. We all seem to be subscribed to the "All Trump News, All the Time" newsfeed. It may be helpful to step back a bit and compare Trump with […]
Daniel Farber | December 3, 2018
Cross-posted from Legal Planet. In September 2017 – that seems so long ago! – Eric Biber and I released a report assessing the state of play in environmental issues 200 days into the Trump administration, based on an earlier series of blog posts. As we end Trump's second year, it's time to bring that assessment […]
Lisa Heinzerling | November 30, 2018
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). In a mixed-bag ruling, a unanimous Supreme Court returned Weyerhaeuser Co. v. U.S. Fish and Wildlife Service to the U.S. Court of Appeals for the 5th Circuit to decide several questions not answered on the first […]
Sarah Krakoff | November 26, 2018
In 2017, President Trump signed a proclamation reducing by about 85 percent the size of Utah’s Bears Ears National Monument, a large landscape of pristine red rock canyons and culturally and historically significant Native American sites. He claimed that he had the authority to shrink this and any other national monument under the Antiquities Act […]
Alexandra Klass | November 20, 2018
Originally published in The Regulatory Review. Reprinted with permission. Like many areas of law, energy policy in the United States is both national and local. The boundary lines delineating federal and state authority are not always clear, leading to tension and disagreement between federal and state authorities. When tensions get too high, Congress can, and often […]
Alice Kaswan | November 19, 2018
Washington State has continued to try – unsuccessfully – to pass a carbon tax, with the latest effort, Initiative 1631, losing on November 6. The state's effort to control carbon is laudable, but Washington and other states contemplating how to fill the growing federal climate policy void should consider leading with a vision for a […]
Laurie Ristino | November 16, 2018
The midterm elections are over, and most of the races have been decided. The outcome will have consequences for a wide variety of policies and legislation, including the 2018 Farm Bill. So what's the status of the bill? What are its prospects for passage during what remains of the 115th Congress? And how will the […]