During the first of several listening sessions on the future of Waters of the U.S., state-level stakeholders had a clear message for the Environmental Protection Agency and the Army Corps of Engineers: Respect cooperative federalism, and work with the states and their unique needs.
“Rule No. 1 is for the federal government not to get into the way of, or complicate efforts on behalf of, the states’ environmental agencies,” said Ben Grumbles, executive director of the Environmental Council of the States.
“All of our members support the rule of law, the value of wetlands and small waters, and the need for cooperative federalism to help achieve the overall goals of the Clean Water Act.”
Cooperative federalism and state flexibility
Cooperative federalism refers to the fact the CWA gives states the right to set standards and issue permits if they meet federal requirements. Sections 101b and 510 of CWA address the concept of cooperative federalism. This provision recognizes the interconnected nature of the state- and federal-level efforts to protect waters of the U.S.
Most speakers stressed the importance of this concept in their comments, some very directly.
“The section 401 certification program is an embodiment of these cooperative federalism principles,” said Jennifer Congdon, director of federal affairs for New York Department of Environmental Conservation. She explained that federal agencies cannot issue a permit or license for an activity that could discharge into a water of the U.S. unless the state either allows it or waives the need.
“If more wetlands are excluded from WOTUS, then certain federal projects would not require a section 401 water quality certification by the states, and it could prevent New York from determining whether certain projects would impair water quality in our own state, thus violating the right to do so as enshrined in the Clean Water Act.”
Many commenters spoke less directly about cooperative federalism, instead stressing the need for flexibility considering each state’s unique hydrologic situation. Commenters speaking for arid southwestern states pointed to the ephemeral nature of flows and water quality concerns that come with desert environments, for example.
Megan Kernan, energy, water and major water projects division manager for Washington’s Department of Fish and Wildlife, highlighted the vast difference in the state’s hydrology from the coast, which gets roughly 120 inches of precipitation, to the east, which can see less than 10.
Gene McCabe, director of the division of water with Alaska’s Department of Conservation, pointed out his state has an ecosystem unique in the entire nation.
“Applying the Clean Water Act to Alaska’s permafrost wetland imposes unnecessary complexity and delay, forcing a framework designed for the lower 48 states onto an arctic ecosystem,” he said. “Alaska asserts the Clean Water Act, as it stands, is simply too blunt an instrument to manage these areas effectively.”
Kernan summarized many commenters’ statements on the need for flexibility, saying: “We understand the desire for clear and easy-to-administer protocols for implementing the WOTUS rule, but the reality is that ecological systems are diverse, highly nuanced and often difficult to neatly bin into rigid categories.”
While each representative from the different states made specific comments based on their state’s interests, all speakers shared several core themes:
- The agencies must use science-based, data-driven approaches to jurisdictional determinations.
- Definitions must allow for flexibility for the states
- States have rich, localized research and knowledge on water quality.
- Even non-jurisdictional waters are important to the states’ economies and environments.
Future listening sessions, engagement on WOTUS
The state-focused listening session was held April 29 and was the first of several the EPA and Corps are holding. The listening sessions are part of an effort to bring WOTUS into alignment with the U.S. Supreme Court’s 2023 Sackett decision.
“We all know we’ve been here on this WOTUS journey a long time, so our effort here is to provide a regulation that will stand the test of time, prioritizing practical implementation approaches,” said Stacey Jensen, director of the oceans, wetlands and communities division of EPA, who hosted the listening session.
Additional listening sessions will be held through May 6. More information on future listening sessions can be found online. The EPA and Corps are also accepting written federalism feedback from states, local governments and their representative organizations through June 2. Interested parties can email their comments to CWAwotus@epa.gov.
Jensen said the agency expects to solicit public comments on a forthcoming proposed rule. She encouraged members of the public to keep watch on the EPA’s WOTUS site and the Federal Register for that and submit written feedback when available.
Your next read:
