Municipal Water Leader
Water Law

Preserving Federalism in Water Law By Robert S. Lynch

Everyone involved in western water is keenly aware of the controversy surrounding clarifying the definition of Waters of the United States (WOTUS) in the Clean Water Act regulations. The U.S. Environmental Protection Agency (EPA) has received over 13,000 comments on its proposal to do so. Many are attacks on the proposal, which, in my view, have to be considered attacks on the concept of federalism. Those who oppose the clarification process the EPA is undertaking are essentially saying that the states are incompetent or unwilling to protect their citizens and the quality of the water they receive and use. It is my understanding that some 49 states have taken delegation of the point-source-discharge permit program under section 402 of the Clean Water Act and a small number of states have taken delegation of the dredge and fill permit program under section 404 of the Clean Water Act. To the best of my knowledge, delegation of these programs as contemplated by Congress has been widely accepted and successfully implemented by the states.

If clarity is brought to the definition of WOTUS in EPA regulations and results in some watercourses, impoundments, or other bodies of water not being federally jurisdictional, I am quite confident that the legislature in Arizona and our state Department of Environmental Quality (ADEQ) can examine those changes and decide whether to propose the expansion of our state permit program to cover these water bodies. Arizona’s definition of waters of the state has, since the 1970s, covered virtually everything in the state that could possibly be conceived of as containing water, let alone containing it for any period of time. In other words, Arizona has been prepared since the 1970s to examine whether the section 402 permit program Arizona is now running needs to be expanded. With the federal definition clarified, only a simple legislative addition to the state law would be required to do so. If the WOTUS rule creates what some would consider a regulatory gap, I am quite confident that the Arizona legislature and ADEQ can examine what has happened and decide whether Arizona’s program needs to be expanded.

I am likewise confident that the other states are equally prepared to examine this issue and decide whether a change in the definition of WOTUS at the federal level requires some expansion of their point-source-discharge permit programs or dredge-and-fill permit programs.

The attacks on this process are nothing more than attacks on the competency of the states. The law was passed to create a cooperative relationship between the federal government and the states. The delegation of permit authority is the key to that relationship and has, over the years, positioned the states to adequately address water quality issues under the act and its counterpart state legislation. Veiled attacks on the competency or willingness of the states to shoulder additional responsibility where necessary are unjust in light of the track record of this law’s implementation and should be ignored.

In short, Arizona can step up to the plate if necessary to add to its point-source-discharge program in a way that is supported by evidence. There is no reason to believe that the other states would ignore that responsibility, either. The EPA should stay the course and keep this exercise in cooperative federalism on track. 

Robert S. Lynch is an attorney practicing in Arizona. He can be contacted at rslynch@rslynchaty.com or at (602) 228-6355.