Friday, March 5, 2010


The 1972 Clean Water Act is proposed to be amended by replacing the term "navigable waters" to "waters of the United States" - thus giving EPA much, much more regulatory authority over water and water quality in the country.  State's have opposed this change because they fear the additional federal authority.  The environmental community is largely supporting the amendment because they feel the states have been lax and the federal government should step in an regulate more effectively.  One article I read (Marisa McNatt, author) said:

The ambiguity in the term’s meaning has allowed industries to pollute American waters and be free of jurisdiction.  In 2007, for instance, a pipe manufacturer in Alabama was convicted and fined millions of dollars for dumping oil, lead, zinc and other chemicals into a large creek.  Since the Supreme Court exempted the waterway from the Clean Water Act, an appellate court overturned the conviction and the fine, and the company agreed to pay a smaller amount and submit to probation.
The first question I have to ask is How is this example "free of jurisdiction"?  Granted they paid a smaller fine and got probation time, but this is hardly free of jurisdiction.  The article also never cites who prosecuted the pipe company.  If it was EPA, where was the state of Alabama in this case?  I think that if this pollution was such a travesty, Alabama should take responsibility for crafting laws and regulations that don't allow it.  If it was in fact Alabama that prosecuted it under the federal Clean Water Act, they should clearly realize the shortomings of this law and craft their own water quality and anti-pollution laws that are as restrictive as they wish.  The Alabama folks who are outraged at this situation should be pushing their state to assume authority and responsibility (primacy) for water pollution activity.
Simply handing this important responsibility over to the federal government is risky. Take whatever issue you want - if you don't like what's going on, would you rather fight the federal government or a state or local governement?  Which level of government would you rather work with to improve any environmental issue - state or federal?  It might look easy and convenient to allow the EPA to step in and regulate this obviously bad situation, but perhaps you should be careful of what you ask for.


  1. Mr. Bossert,

    As someone particularly interested in the Clean Water Restoration Act, I found this post interesting. There is clearly a great deal of commentary on the act from both the left and right that is less than entirely accurate.

    The left argues that the CWRA merely restores the Clean Water Act to its original scope. But the "restoration" act clearly greatly expands federal jurisdiction. The right argues that the CWRA will be the death of individual property rights. But again this is clearly more just a little overstated.

    On the more fundamental question of State vs. Federal regulation that you discuss, I think you need both. I absolutely agree that the states need to step up, but I also think federal action is needed for two primary reasons.

    First, neither water contamination nor the hydrologic cycle knows anything about state borders. Living as I do on the the Delaware River, I know that it does little good for Pennsylvania to pass draconian anti-pollution laws if New Jersey or even New York were to allow people to dump toxic waste in the river. Addressing that issue really requires federal action.

    My second reason for supporting federal action is that while lobbying is certainly endemic to Congress, I cannot help but feel that local authorities are far more vulnerable to local pressure. Maybe I am wrong about this, but my instinct is that a local factory will have far greater success lobbying a state or municipal legislative body than it would have lobbying Congress.

  2. Alex:

    Thanks for the insightful comments. While I completely agree with you that in the case you cited (Delaware River) all the riparian states need to be somewhat in concert with their protection levels, etc., I still don't see this as a federal responsibility. What precludes the states from forming a Delaware River Management Alliance and through cooperative efforts implement exactly what they want? They could even include EPA (or other federal agencies) as technical or fiscal partners - with very specific roles designated of course. This approach retains the majority control over any outcomes in the local and state venue - which is easier for the citizens to be involved in.

    Your second reason for supporting federal action is interesting. I had argued my original point from the position of all the environmentally active citizens who want different policy (either stricter or more leniant) than what a regulatory agency would put forth. In these cases I think they would rather argue their case with local and state governments than the federal guys. However, as you point out, the local and state guys are also far more likely to be influenced by the regulated community as well, which is often going to be at odds with the vocal and involved citizenry. I see your point.

    Weighing all the factors, I still have to support a non-federal cooperative, stakeholder approach involving state & local government, industry, the citizenry and others. I think if crafted correctly, this approach will find the better answer than a pure federal perscriptive solution most of the time.

    Perhaps the role of Congress should simply be instilling the will to address these problems in the state and local venues. Maybe the best of both worlds. Thanks again for your comments.