Association of State Wetland Managers - Protecting the Nation's Wetlands.

The Compleat Wetlander: The Clean Water Act and Cooperative Federalism: Lessons of the Founding Fathers

On  May 26, 2011  House Transportation and Infrastructure Committee Chairman John Mica (R-FL) and Ranking Member Nick Rahall (D-WV) introduced H.R. 2018, the “Clean Water Cooperative Federalism Act of 2011” http://www.govtrack.us/congress/billtext.xpd?bill=h112-2018.  On June 22nd the Committee approved the bill and sent it forward to the full House http://transportation.house.gov/news/PRArticle.aspx?
NewsID=1322
.

The purpose of the bill is to weaken some of the oversight authorities delegated to the U.S. Environmental  Protection Agency under the Clean Water Act by

a) restricting EPA’s ability to issue new water quality standards for a state without explicit state approval

b) prohibiting EPA from superseding a water quality certification granted by a state under Section 401

c) prohibiting EPA from  vetoing or withdrawing approval of a state water quality permit under Section 402 where EPA disagrees with the state’s interpretation of an approved standard

d) eliminating EPA’s ability to veto a Corps 404 permit under section 404(c) unless the state concurs with the veto

e) allowing a partial assumption of the Section 404 program by a state

f) shortening timelines for review of permits by EPA and the U.S. Fish and Wildlife Service from 90 to 30 days (with the possibility of a 60 day extension).

The bill is supported by the agriculture and coal mining industries. http://www.wvcoal.com/HR-2018/

It is opposed by conservation and environmental organizations. http://www.trcp.org/media/press-release/sportsmen-condemn-house-attempt-to-weaken-clean-water-act, http://www.cleanwateraction.org/files/publication/national/HR%20
2018%20opposition%20letter.pdf

The issue of finding the right balance between state and federal authority is something the nation has been wrestling with since its inception.  The first constitution – The Articles of Confederation and Perpetual Union failed because the federal government did not have sufficient authority.  http://en.wikipedia.org/wiki/Articles_of_
Confederation
The Confederation Congress could make decisions, but lacked enforcement powers.  Implementation of most decisions required the approval of all 13 state legislatures.  Further Congress was denied any powers of taxation; it could only request money from the states and it was not allowed to regulate either foreign trade or interstate commerce.   States did not provide funding requested and money printed by the Congress quickly became worthless.  The young nation could not protect its manufacturing and shipping.  The country could not protect its borders nor its frontier population.  This early constitution was used from 1777 until 1789—12 years.  It was difficult to convince the American public to adopt a new constitution providing Congress and the federal government with a much stronger role http://en.wikipedia.org/wiki/United_States_Constitution.  The Federalist papers were written to promote ratification of the new constitution and are to this day the “major primary source for interpretation of the U.S. Constitution.” http://en.wikipedia.org/wiki/
Federalist_papers
. But the debate over how to divide authority between state and federal government is ongoing and H.R. 2018 is a modern day example.

The purpose of H.R. 2018 is to strengthen the state’s role and weaken the federal government’s in carrying out the Clean Water Act.  If passed it would give the states more autonomy over water regulations within state borders.  But it would weaken the nation’s ability to address pollution problems that cross state borders.

For example recent reports have predicted that the dead zone in the Gulf of Mexico will reach record proportions this year http://www.global-adventures.us/2011/06/17/gulf-of-mexico-dead-zone/.  The dead zone is created by nutrients enrichment from the major farming states in the Mississippi watershed. http://serc.carleton.edu/microbelife/topics/deadzone/. The dead zone is an often cited example of why it is necessary for the federal government to have the authority to ensure states take action to address water quality problems that affect other states.

It is also true that there may be more than one successful answer to a problem.  There are times when a state or states and EPA disagree over the most appropriate course of action in carrying out the Clean Water Act and they may both be right.  For example EPA’s enforcement office has placed a high emphasis on formal enforcement while the states regularly use informal enforcement to ensure compliance with the Clean Water Act.  Both strategies have merit.  Deliberations over this issue led to adoption of a Clean Water Act Enforcement Action Plan in January of 2011. http://www.martenlaw.com/newsletter/20100120-cwa-enforcement-action-plan

Nowadays public debate on ‘who should be in charge’ is in danger of eclipsing ‘what should be done’  about pollution.  It is in effect ‘putting the cart before the horse.’  The first steps should be to get agreement on the problems that need to be addressed and then decide on the correct allocation of authority between federal and state government to achieve that goal. Just because one level of government or another has the authority to take a specific action does not mean it should do so, particularly when those decisions jeopardize long-term, successful partnerships.  All the legislation and rulemaking in the world cannot solve problems if governments and organizations do not come together to find solutions.

The way forward is not always clear.  Our founding fathers discovered this when they wrote the Articles of Confederation.  They learned from their mistakes and wrote our current Constitution along with the federalist papers to articulate their intent.  Maybe it is time for the equivalent of the Federalist Papers to be written about environmental protection.

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