Cooperative Federalism and the Clean Water Act: The States Finally Get their Due

by Michael C. Ford, Lucas J. Narducci and Patrick J. Paul

There is no shortage of dramatic, if not predictable, commentary in the wake of the Trump Administration’s release of its “Navigable Waters Protection Rule” (“Rule”) ranging from the indignant to the hyperbolic, and the outright inane:

This bulldozing of clean water protections would be among this administration’s dirtiest, most dangerous deeds.[1]

This sickening gift to polluters will allow wetlands, streams and rivers across a vast stretch of America to be obliterated with pollution … Destroying half of our nation’s streams and wetlands will be one of Trump’s ugliest legacies.[2]

It transfers the costs of pollution control and wetland protection from miners, oil and gas producers, and land developers — who will no longer be regulated — to downstream communities who will have to pay to protect themselves.  The new rule is scientifically indefensible and socially unjust.[3]

The president’s personal business stands to directly benefit from the overhaul, as it will ease restrictions on pesticide and fertilizer use at golf courses.[4]

Headline readers may understandably be left with the impression permitted dischargers are now free to tear up their NPDES and 404 permits, and prospective dischargers are free to bulldoze away or route their discharge pipes straight from the factory floor to the nearest creek.  Fear not – the sky is not actually falling and our children will still have clean water to drink tomorrow!

After decades of uncertainty, ambiguity and litigation, the Trump Administration has finally delivered in bringing clarity to the regulatory scheme, offering more than lip service to the principals of cooperative federalism expressed unambiguously in the Clean Water Act itself, and adhering to the Constitutional limits the Supreme Court has imposed on the reach of the Clean Water Act:

This final rule presents a unifying legal theory for federal jurisdiction over those waters and wetlands that maintain a sufficient surface water connection to traditional navigable waters or the territorial seas. This definition strikes a reasonable and appropriate balance between Federal and State waters and carries out Congress’ overall objective to restore and maintain the integrity of the nation’s waters in a manner that preserves the traditional sovereignty of States over their own land and water resources. The final rule also provides clarity and predictability for Federal agencies, States, Tribes, the regulated community, and the public. This final rule is intended to ensure that the agencies operate within the scope of the Federal government’s authority over navigable waters under the CWA and the Commerce Clause of the U.S. Constitution.[5]

The Rule’s critics (no doubt soon to be “plaintiffs”) have focused on the exclusion from jurisdiction of non-navigable wetlands and tributaries, including ephemeral washes as the harbingers of toxic doom and mass extinction.  However, there are at least two reasons the Rule is unlikely to significantly alter the regulatory playing field for these “waters,” much less trigger the dirty water Armageddon prophesied by the more rabid commentators.

First, pollutant discharges to non-navigable tributaries are likely to remain regulated as “indirect” discharges to navigable waters:

The agencies believe that a CWA section 402 permittee currently discharging to a jurisdictional water that becomes non-jurisdictional under this final rule would likely remain subject to the requirements of the Act. This specific concern was raised in Rapanos, that enforcement of section 402 could be frustrated by “polluters . . . evad[ing] permitting requirement . . . by discharging their pollutants into noncovered intermittent watercourses that lie upstream of covered waters.” Id. at 742-43. In the words of Justice Scalia, “That is not so.” Id. New or continuing discharges, whether illicit or not, could be subject to sections 301 and 402 of the Act if the discharge is conveyed from a point source to a “water of the United States.” The agencies view ephemeral features, such as arroyos or ditches, as potential conveyances of discharges of pollutants from point sources subject to NPDES permitting requirements. [6]

Second, and perhaps most importantly, states will exercise their authority over their lands and waters to address non federal waters as they deem appropriate.  Clean Water Act §101(a) contains perhaps the most quoted provision of the statute, stating the bold “objective of this chapter [] to restore and maintain the chemical, physical, and biological  integrity of the Nation’s waters.”  But §101(b) is no less important, despite getting little fanfare:  “It is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use … of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter.”  States now have a clear opportunity to tailor their regulatory programs for non-federal waters.

Arizona is one of many states that support the new Rule:  “The State supports the narrower definition in the Navigable Waters Protection Rule.  The waters of the state are unique, and ADEQ believes it best for Arizona to address Arizona waters locally in practical and pragmatic ways.”[7]  Arizona has long regulated “waters of the state.”  In anticipation of the new Rule, the state has already begun stakeholder meetings to determine any appropriate regulatory responses to bolster the state’s role in regulating non-federal waters, consistent with the “primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” envisioned by the Clean Water Act.  The Rule’s new clarity on which waters are subject to federal regulation and which are not, coupled with state implementation of the primary role in protecting non-federal waters, promises to result in a more effective and efficient regulatory program for all of the stakeholders involved.  At last.

[1] https://www.huffpost.com/entry/trump-wotus-water-rule-overhaul_n_5e291714c5b67d8874ac9a74.

[2] https://www.cbsnews.com/news/epa-regulations-on-water-announcement-today-2020-01-23/.

[3]  Id.

[4]  https://www.huffpost.com/entry/trump-wotus-water-rule-overhaul_n_5e291714c5b67d8874ac9a74.

[5] https://www.epa.gov/sites/production/files/2020-01/documents/navigable_waters_protection_rule_prepbulication.pdf, p.9.

[6] Id. p.253.

[7] https://azdeq.gov/wotus.

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