Imposing Federal Regulation and Enforcement

• Author: Robin Kundis Craig
• Pages: 7-7

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.

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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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