Blue Waves of Cooperation
What’s the proper balance of power between federal and state water agencies? It seems to ebb and flow over time. The U.S. Water Alliance hasn’t taken a position on recent House-passed legislation amending the federal Clean Water Act (CWA), but here’s my personal take on the controversy, as well as suggestions for meaningful progress on federal-state relations and environmental results.
H.R. 2018, the Clean Water Cooperative Federalism Act of 2011, is a strategic and significant shift in the balance of power between EPA and states under the CWA. In my view, the current version goes too far, too fast, and with too many questionable impacts on downstream states, communities, and ecosystems. It does, however, raise legitimate issues and, if channeled properly, may allow better partnerships to spring forth.
For starters, I admire the “strategic” drafting of the bill. It uses the “cooperative federalism” theme, a core principle under the CWA, as a way to revisit fed-state power sharing in the midst of several raging, highly relevant controversies. It uses a sharp scalpel to effectively remove or slice up EPA authority under a few very important Clean Water programs–largely in response to outrage over, among other things, EPA’s recent action on Florida’s phosphorus criteria and standards and recent veto of a previously-issued permit for mountain top removal mining of coal in West Virginia.
EPA and state water pollution control administrators continue to work on nutrient pollution strategies. Agriculture is also weighing in to find solutions. Many local utilities, developers, businesses, agricultural producers, and others, however, fear EPA has gone too far in its efforts to push state development of scientifically and legally defensible numeric criteria for nutrients.
On behalf of the Agency in early 2009, I made the legal determination that Florida’s efforts on phosphorus were insufficient under the CWA and that EPA needed to step in and begin the process of developing criteria. The key, of course, is how to move forward cooperatively and find the way as soon as possible to turn the keys back over to a highly sophisticated state agency fully capable of charting its own course.
States are also concerned about prescriptive EPA pollution diets on permitted and diffuse sources. The concern is understandable. It’s also hard work, expensive, and politically difficult for states to make progress in controlling nitrogen and phosphorus pollution, a leading cause of water quality impairment, without some assistance from EPA. To make progress, we need solid, enforceable numeric criteria, preferably set by states, to drive results and also create markets for trading and water quality upgrading.
Perhaps one of the best results would be to keep EPA’s hammer on the table, allowing the federal agency to step in and promulgate standards in lieu of a state’s, but only when necessary, to further a strong federal interest, and consistent with a state-friendly protocol. Of course, none of that is new; it’s more a question of how to define the conditions and build the trust along the way without violating the letter or spirit of the CWA. To prevent EPA from being able to step in and take action, however, would violate the spirit of the original CWA, in my view.
On wetlands, EPA’s use of the section 404(c) veto, a powerful tool, has been reserved for only the most extreme situations. It’s been used 13 times in the 39 year history of the CWA. On behalf of EPA, in 2008, I signed the 12th veto, to prevent the construction of the Yazoo Pumps flood control project in Mississippi. Hardworking state and local agencies strongly supported the project but EPA concluded it would have an unacceptable adverse effect on the environment. The decision, which was made only after an extensive, deliberative, public process, saved some of the richest wetlands and aquatic resources in the nation as well as millions of federal taxpayer dollars.
Perhaps a better approach to removing, or significantly weakening, the CWA federal veto is to increase state assumption of federal permitting programs. To date, only Michigan and New Jersey have assumed the controversial section 404 authority, with all other states resisting due, in part, to federal barriers, inadequate funding, and the risk of political headaches and controversies.
Again, this isn’t a new idea. For decades, policy makers have asked how to increase the role of states and tribes, considering money, regulatory barriers, and staff training. The good news: after over a year of collaboration, the Environmental Council of the States and the Association of State Wetland Managers, in collaboration with EPA, have developed a detailed handbook for state and tribal assumption with improved protection of wetland resources. The compilation has many good ideas for federal, state, and tribal policymakers and regulators.
Sometimes, it’s better to keep and refine collaboration tools than to throw them away. There’s also a need for an interstate umpire to step in from time to time to protect downstream interests and regional ecosystems.
What do you think?