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William L. Andreen

The Clean Water Act is an excellent example of a statute that utilizes overlapping and intertwined federal and state roles. In adopting this model, Congress expressed its frustration with a prior program that had relied almost exclusively upon state agencies to adopt and implement water quality standards. In Congress’s view, that earlier approach had failed due to the reluctance of many states to adopt acceptable standards notwithstanding years of federal assistance. In its place, Congress turned to the US Environmental Protection Agency (EPA) to promulgate technology-based effluent limitations, which would be implemented through a new permit program for point source discharges of water pollutants. States, however, retained important roles, subject to federal oversight. The state water quality standard program was not discarded, but strengthened to supplement technology-based limitations in cases where the uniform approach proved inadequate to meet water quality objectives. States, moreover, have obtained approval, in most instances, to administer the permit program. They also enjoy the freedom to establish regulatory requirements that are more protective of the environment than EPA would require. This dynamic strategy has produced a tremendous amount of progress. Nevertheless, more work remains to be done, and the biggest problems lie in two areas where the Clean Water Act left control primarily within state prerogative: the management of nonpoint source pollution and the establishment of adequate and variable instream flows to meet the needs of aquatic ecosystems. Nonpoint source pollution, as a result, has become our most significant source of water quality impairment while flow alterations place second on the list for impairing the quality of our rivers and streams. This chapter explores a number of ways in which EPA’s authority could be enhanced in both areas to enable the states and EPA, working as partners, to better protect the nation’s waters.

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William L Andreen

A common policy question confronting federal systems is how best to apportion environmental regulatory authority between the federal government and states. Whilst that power could theoretically be committed exclusively to one level of government, a common approach is a system of shared regulatory authority, often referred to as cooperative federalism. That term can apply to a wide variety of arrangements. One example would be a predominantly state-based system in which federal authority is limited to narrowly delineated areas, providing technical or financial support, or publishing non-binding guidelines to encourage harmonization. Another ‘classical’ form would encompass centrally enacted or promulgated standards, with permitting and enforcement left entirely to state authority. A more dynamic approach recognizes the strengths in a system in which authority is more closely intertwined and overlapping rather than kept within largely separate spheres. This chapter compares federal systems utilizing approaches that span the spectrum from classical to more dynamic, with a focus on regulation of water pollution as the organizing mechanism for exploring different forms of cooperative federalism.