Postcards from the Edge: Perspective to Reinvigorate Clean Water Act Cooperative Federalism

Abstract

The Clean Water Act (“CWA”) was enacted to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” To achieve this goal, Congress adopted a cooperative federalism approach. From its opening provisions, the CWA directly addresses the delicate federal and state balancing act that lies at the heart of the legislation. Over time, as the CWA intended, the U.S. Environmental Protection Agency ("EPA") received state requests to administer the CWA in place of the federal government through delegation. This required states to continually adapt, expand, and change their delegated programs, as well as to carry out additional programs in order to comply with the CWA. This Article provides a detailed overview of the cooperative federal relationship intended under the CWA. Through examples of current rulemaking, settlements, case studies, and enforcement actions, this Article shows that the federal-state relationship is strained and is not working as effectively as it could. This Article recommends a cooperative federalism renaissance. Such a rebirth is essential to address the complex nature of the water impairment and management problems facing our nation’s waters today.

Keywords: water, federalism, states, environment