State Agencies Seeking to Protect Wetlands and Streams Face Hurdles — From Their Own State Laws

May 2013

The Environmental Law Institute (ELI) has released a new 50-state study (*) identifying laws that limit the ability of state agencies to protect wetlands, streams, and other water resources. The study finds that over two-thirds of all U.S. states still have laws that restrict the authority of state agencies to fully protect their own water bodies.

These findings are important because several U.S. Supreme Court decisions, handed down in the last decade, have cut back on the reach of the federal water law for water resources. Federal jurisdiction over certain wetlands and intermittent streams has been put into doubt by these cases. This has led to continuing confusion over which waters receive federal protection, and which do not. While federal Clean Water Act jurisdiction has been limited by these rulings, states still have the ability to “fill in the gap” to assure their own water resources are fully protected.

But ELI’s research shows that there are serious obstacles to states taking additional action. Twenty-eight states have laws that limit the authority of their agencies to regulate in a way that is more protective, or more stringent, than federal law. And 22 states have private property rights laws that further constrain the ability of state agencies to safeguard vulnerable wetlands and streams. Some states have both types of limitation. This study contains a detailed, state-by-state appendix describing the various kinds of provisions—which vary in their reach and effect.

Currently, half of all states do not protect waters more broadly than is required by federal law—and only a small handful of state legislatures have taken steps to fill the gap between federal and state jurisdiction. According to Bruce Myers, ELI Senior Attorney and a lead author, “our research highlights the real-world legal barriers faced by state regulators. Some of these state law constraints will essentially block regulators from asserting state authority over waters that have lost federal coverage. Many other laws, while not totally barring state action, can still make it more difficult, expensive, and time consuming for a state agency to act.”

ELI research also indicates that most states have not acted to broaden their water protection laws. “Although a state legislature can always pass a new law to protect vulnerable wetlands and streams, the reality is that they usually don?t,” said Myers. “Wherever one may come down on the debate over the reach of the CWA, this research suggests that a comprehensive, nationwide solution to the problem would be difficult to achieve under state law alone.”

(*) Download a one-page overview for your convenience.

Check out the latest from ELI Press: Food, Agriculture, and Environmental Law, an exploration of the challenging political and societal issues facing agricultural policy and modern food systems through the lens of environmental protection laws. Review copies available upon request.

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