WATER LAW
Preserving Federalism in Water Law By Robert S. Lynch conceived of as containing water, let alone containing it for any period of time. In other words, Arizona has been prepared since the 1970s to examine whether the section 402 permit program Arizona is now running needs to be expanded. With the federal definition clarified, only a simple legislative addition to the state law would be required to do so. If the WOTUS rule creates what some would consider a regulatory gap, I am quite confident that the Arizona legislature and ADEQ can examine what has happened and decide whether Arizona’s program needs to be expanded. I am likewise confident that the other states are equally Watson Lake in Prescott, Arizona. prepared to examine this issue and decide whether a change in the definition of veryone involved in western water is keenly aware of WOTUS at the federal level requires some expansion of the controversy surrounding clarifying the definition their point-source-discharge permit programs or dredgeof Waters of the United States (WOTUS) in the and-fill permit programs. Clean Water Act regulations. The U.S. Environmental The attacks on this process are nothing more than Protection Agency (EPA) has received over 13,000 attacks on the competency of the states. The law was comments on its proposal to do so. Many are attacks on passed to create a cooperative relationship between the the proposal, which, in my view, have to be considered federal government and the states. The delegation of attacks on the concept of federalism. Those who oppose the permit authority is the key to that relationship and has, clarification process the EPA is undertaking are essentially saying that the states are incompetent or unwilling to protect over the years, positioned the states to adequately address water quality issues under the act and its counterpart state their citizens and the quality of the water they receive and legislation. Veiled attacks on the competency or willingness use. It is my understanding that some 49 states have taken of the states to shoulder additional responsibility where delegation of the point-source-discharge permit program necessary are unjust in light of the track record of this law’s under section 402 of the Clean Water Act and a small number of states have taken delegation of the dredge and fill implementation and should be ignored. In short, Arizona can step up to the plate if necessary to permit program under section 404 of the Clean Water Act. add to its point-source-discharge program in a way that is To the best of my knowledge, delegation of these programs supported by evidence. There is no reason to believe that the as contemplated by Congress has been widely accepted and other states would ignore that responsibility, either. The EPA successfully implemented by the states. should stay the course and keep this exercise in cooperative If clarity is brought to the definition of WOTUS in EPA federalism on track. M regulations and results in some watercourses, impoundments, or other bodies of water not being federally jurisdictional, I am quite confident that the legislature in Arizona and our state Robert S. Lynch is an attorney practicing Department of Environmental Quality (ADEQ) can examine in Arizona. He can be contacted at those changes and decide whether to propose the expansion rslynch@rslynchaty.com or at of our state permit program to cover these water bodies. (602) 228-6355. Arizona’s definition of waters of the state has, since the 1970s, covered virtually everything in the state that could possibly be
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PHOTOS COURTESY OF KEVIN DOOLEY AND ROBERT LYNCH.
36 | MUNICIPAL WATER LEADER
