November 01, 2016

State Courts vs. Federal Courts: Jurisdictional Battles over State Water Quality Standards

Roger Hanshaw

Since Congress adopted the Federal Water Pollution Control Act (Clean Water Act or CWA) in 1972 (33 U.S.C. § 1251–1387 (2012)), state and federal enforcement actions, along with citizen suits by private parties brought under the CWA, have done much to improve the quality of the nation’s waters. A key feature of the CWA is the system of cooperative federalism whereby states may voluntarily assume responsibility for enforcement of water pollution control laws under federally approved state programs. In order to exercise the primary jurisdiction for enforcement of water quality laws within its boundaries, a state must adopt a water quality permitting program and submit that program to the U.S. Environmental Protection Agency (EPA) for approval. After federal approval, the state environmental permitting and enforcement agency administers the federally approved program within the state’s borders with oversight from EPA. In order to gain federal approval, a state water quality program must have standards that are at least as stringent as those required by the federal government, but, importantly, a state may adopt a water quality program that is more stringent than required by federal law. When states choose to voluntarily demand greater protection for their waters than required by federal law, does the CWA still apply? And if it does, how far does the CWA authorize federal courts to go with respect to enforcing state-level standards?

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