Which Way Federalism under Section 402?

FSU College of Law, Public Law Research Paper No. 246

Natural Resources & Environment, Vol. 22, No. 1, p. 20, Summer 2007

5 Pages Posted: 15 Jan 2007


Each of the three major opinions in the Supreme Court's June 2006 decision in Rapanos v. United States, - U.S. -, 126 S. Ct. 2208 (June 19, 2006), discussed (to a greater or lesser degree) the role of federalism in the Clean Water Act. In particular, Justice Scalia's plurality and Justice Stevens' dissent reaching diametrically opposite conclusions about the propriety of federal regulation of wetlands adjacent to human-created drains and ditches pursuant to Section 404 of the Clean Water Act. Section 404, however, is a peculiarly federal Clean Water Act regulatory program, and the Scalia-Stevens dialectic leaves many unresolved questions regarding the proper scope of the Clean Water Act's Section 402 National Pollutant Discharge Elimination System (NPDES) permit program - particularly in light of Justice Scalia's contortionist attempts to distinguish the jurisdictional scope and regulatory import of those two permit programs.

This article argues that, to fully analyze the future of NPDES permit program jurisdiction, readers of Rapanos need to remember that the Supreme Court unanimously decided S.D. Warren v. Maine Board of Environmental Protection, - U.S. -, 126 S. Ct. 1843 (May 15, 2006), only one month before it issued its fractured opinion in Rapanos. S.D. Warren helps to explain Justice Scalia's tortured juxtaposition of navigable waters and point sources and his attempts to distinguish dredge and fill material from other pollutants in Rapanos. Moreover, when read in conjunction with Rapanos, S.D. Warren elucidates a fundamental split in the Justices' relative prioritization of the first two of the Clean Water Act's many goals: (1) restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation's waters, 33 U.S.C. ยง 1251(a); and (2) recogniz[ing], preserve[ing], and protect[ing] the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution [and] to plan the development and use . . . of land and water resources . . . . 33 U.S.C. Sub-Section 1251(b). As was the case in S.D. Warren, the Section 402 permit program, as currently implemented, once again allows these two goals to align toward the same result, suggesting that the Rapanos dissenters will prevail should the Supreme Court ever decide a navigable waters issue in the context of the NPDES permit program instead of the Section 404 dredge and fill permit program.

Keywords: Clean Water Act, federalism, states' rights, water quality, Rapanos, S.D. Warren, Scalia, Stevens, Kennedy, Section 402, Section 404, wetlands, jurisdiction, navigable waters, waters of the United States

Suggested Citation

Craig, Robin Kundis, Which Way Federalism under Section 402?. FSU College of Law, Public Law Research Paper No. 246, Natural Resources & Environment, Vol. 22, No. 1, p. 20, Summer 2007 , Available at SSRN: https://ssrn.com/abstract=957151

Robin Kundis Craig (Contact Author)

USC Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States

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