Imposing Federal Regulation and Enforcement

AuthorRobin Kundis Craig
par t o ne
Imposing Federal Regulation and Enforcement
Prior to 1972, states dominated water quality regulation in the United States, a
principle of local control long enshrined even in federal laws like the Federal
Water Pollution Control Act (FWPCA). In 1972, however, Congress restructured
the previous FWPCA in two signif‌icant ways. First, it expanded the roles of federal
agencies in water quality regulation, including granting them authority to impose
minimum federal requirements on dischargers and to enforce the revised Act’s
provisions. Second, it added signif‌icant roles for citizens, mandating opportunities
for citizen participation in standard setting and permitting and creating the second
major environmental citizen suit provision, modeled on the one Congress had
included in the 1970 Clean Air Act Amendments.
This part of The Clean Water Act and the Constitution deals with the consti-
tutional ramif‌ications of, and limitations upon, a federal statutory water quality
regime that divides regulatory authority between the United States and the states.
The U.S. Supreme Court has referred to this statutory balance as “cooperative fed-
eralism,”1 but the constitutional legitimacy of the Clean Water Act’s (CWA’s or the
Act’s) statutory scheme requires examination of several constitutional provisions
and principles. The Supremacy Clause has reinforced federal authority over water
quality regulation (Chapter 2), as has the United States’ constitutional authority over
interstate disputes (Chapter 3). However, when Congress chose to subject federal
facilities to the CWA’s requirements, including to state regulation, it stumbled over
the constitutional principle of federal sovereign immunity (Chapter 4)—a principle
that the CWA has still not fully addressed. Moreover, defendants have attacked
federal ascendancy in water quality regulation with Commerce Clause and Tenth
Amendment challenges (Chapter 5) and have sought to limit both federal and state
regulatory authority through the “takings” clauses of the Fifth and Fourteenth
Amendments (Chapter 6).
These constitutional intersections arise largely from the injection of the United
States into the FWPCA’s state-dominated regulatory scheme. Therefore, Part I
begins with a brief history of the FWPCA and an overview of the primary changes
that Congress made to the FWPCA in the 1972 Amendments.
1. United States v. Morrison, 529 U.S. 598, 661 (2000) (Stevens, J., dissenting); New York v. United
States, 505 U.S. 144, 167-68 (1992).
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