Local or National? the Increasing Federalization of Nonpoint Source Pollution Regulation
56 Pages Posted: 6 Oct 2008 Last revised: 13 Feb 2014
Date Written: 2000
Since 1972, the Clean Water Act (CWA) has incorporated a basic division of regulatory authority between states and the federal government based on the source of the water pollution. In delineating state and federal regulatory responsibility on the basis of a point source/non point source distinction, the CWA establishes a scheme of statutory federalism -- a division of power between the national and more local levels of government.
Of course, federalism has a constitutional component, and were the state and federal spheres of regulatory authority always mutually exclusive, constitutional boundary drawing would be the only inquiry relevant to the interactions of the state and federal governments in environmental law. However, they are not, and statutes like the CWA thus embody Congress' political judgment as to how to best divide state and federal regulatory authority, not a fixed constitutional mandate.
From a federalism perspective, the division of federal and state regulatory authority along point source/non point source lines is not arbitrary. Comprehensive federal regulation of non point source pollution would arguably engage the federal government in land use regulation -- a type of regulation historical viewed as belonging almost exclusively to more local levels of government.
This article examines the increasing federalization of non point source pollution regulation under the CWA over time.
Keywords: Clean Water Act, nonpoint source, point source, federalism, Best Management Practice, land use
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