Dynamic Federalism and the Clean Water Act: Completing the Task

Abstract

The Clean Water Act of 1972 (CWA) has produced substantial progress in precisely the areas where Congress expanded the federal government’s role in 1972. In the view of Congress, many states had failed to adopt, implement, and enforce adequate standards despite years of federal financial and technical assistance. As a result, the CWA empowered the U.S. Environmental Protection Agency to take a more direct hand in regulating water pollution from industrial and municipal point sources. Although EPA is the senior partner in this new regulatory design, the states retain a significant role in its implementation, subject to EPA oversight. It is this dynamic form of federalism which has proven effective.

Unfortunately, Congress failed to apply this new model to two significant sources of water pollution – nonpoint source pollution (diffuse runoff from, for instance, agricultural fields and logging operations) and hydrologic modifications (flow altering activities such as water withdrawals, diversions, and impoundments). Both areas were left primarily in state hands, and most states have failed to deal adequately with either problem. As a result, nonpoint source water pollution is now responsible for over 75 percent of the rivers and streams that are water quality impaired. Meanwhile, natural stream flows have been altered on 86 percent of our rivers and streams, wreaking extensive ecological damage. The paper concludes with a number of proposals to increase federal authority over these areas in order to help fill the voids that remain at the heart of the CWA.

Keywords: environmental law, water pollution, clean water act, nonpoint source pollution, environmental flows, federalism