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Interstate organizations governing water attempt to bridge the gap between the
hydrological system and the political systems that impact it. Those organizations
can take several forms. The most formal is the commission, which is governed by a
compact to which the federal government is a party. Examples include:
(a) The Delaware River Basin Commission (1961), which includes the states of
Delaware, New Jersey, Pennsylvania, and New York as well as the Army Corps
of Engineers as the federal representative;
(b) The Susquehanna River Basin Commission, (1970), which includes the states
of Maryland, Pennsylvania and New York and a representative from the federal
government;
(c) The Upper Colorado River Basin Commission (1948), which includes the states
of Colorado, Wyoming, Utah, and New Mexico, and an appointee from the
federal government.
One important interstate water organization not governed by a compact to which
the federal government is a party is the Upper Mississippi Basin Association (UMBA).
While the UMBA includes no formal representative from the federal government,
representatives from the U.S. Army Corps of Engineers, the Departments of
Agriculture, Transportation, and Interior, and the EPA all serve in advisory, non-voting capacities to inform the governance of the river basin. These institutions all have
their own particular missions and priorities that may differ for the river.
Advancing scientific understanding of hydrological connections, therefore, creates challenges for water rights and water pollution law. The interpretation of the
federal–state jurisdictional boundary is challenged, as seen in the heated negotiations over the legality and practical implications of the Clean Water Rule of 2015.
The debate over the extent of federal jurisdiction over water resources maps the
alternate interpretations by U.S. Supreme Court Justice Scalia and Justice Stevens
in the 2006 Rapanos v. the United States 547 U.S. 715 case. Justice Scalia found
that federal jurisdiction applied to “relatively permanent, standing or flowing bodies
of water,” but not “occasional,” “intermittent,” or “ephemeral” flows, and that a
“hydrological connection” between an intermittent body of water and a navigable
body of water was insufficient to confer federal jurisdiction on the former, and a
“continuous surface connection” with navigable waters was required to confer
federal jurisdiction over any non-navigable body of water.
The Obama Administration promulgated the Clean Water Rule of 2015, sometimes referred to as the WOTUS Rule (Waters of the USA). The Clean Water Rule of
2015 followed Justice Kennedy’s reasoning in Rapanos, in which Kennedy found that
federal jurisdiction reached any water body that had a “significant nexus” to navigable
waters or seas. The rule effectively expanded federal jurisdiction over water, particularly over wetlands, and spurred litigation around the country in attempts to define the
boundary between state and federal control in this area. The Trump Administration
stayed the application of the rule for 2 years, effectively reinstating the 1986 interpretation, which followed Scalia’s opinion in Rapanos. That stay was vacated (canceled)
by a federal judge in August 2018, impacting its interpretation in 26 states, but not in
the 24 states where other litigation over the rule is, as of January 2019, still pending.
8 US Governance
Interstate organizations governing water attempt to bridge the gap between the
hydrological system and the political systems that impact it. Those organizations
can take several forms. The most formal is the commission, which is governed by a
compact to which the federal government is a party. Examples include:
(a) The Delaware River Basin Commission (1961), which includes the states of
Delaware, New Jersey, Pennsylvania, and New York as well as the Army Corps
of Engineers as the federal representative;
(b) The Susquehanna River Basin Commission, (1970), which includes the states
of Maryland, Pennsylvania and New York and a representative from the federal
government;
(c) The Upper Colorado River Basin Commission (1948), which includes the states
of Colorado, Wyoming, Utah, and New Mexico, and an appointee from the
federal government.
One important interstate water organization not governed by a compact to which
the federal government is a party is the Upper Mississippi Basin Association (UMBA).
While the UMBA includes no formal representative from the federal government,
representatives from the U.S. Army Corps of Engineers, the Departments of
Agriculture, Transportation, and Interior, and the EPA all serve in advisory, non-voting capacities to inform the governance of the river basin. These institutions all have
their own particular missions and priorities that may differ for the river.
Advancing scientific understanding of hydrological connections, therefore, creates challenges for water rights and water pollution law. The interpretation of the
federal–state jurisdictional boundary is challenged, as seen in the heated negotiations over the legality and practical implications of the Clean Water Rule of 2015.
The debate over the extent of federal jurisdiction over water resources maps the
alternate interpretations by U.S. Supreme Court Justice Scalia and Justice Stevens
in the 2006 Rapanos v. the United States 547 U.S. 715 case. Justice Scalia found
that federal jurisdiction applied to “relatively permanent, standing or flowing bodies
of water,” but not “occasional,” “intermittent,” or “ephemeral” flows, and that a
“hydrological connection” between an intermittent body of water and a navigable
body of water was insufficient to confer federal jurisdiction on the former, and a
“continuous surface connection” with navigable waters was required to confer
federal jurisdiction over any non-navigable body of water.
The Obama Administration promulgated the Clean Water Rule of 2015, sometimes referred to as the WOTUS Rule (Waters of the USA). The Clean Water Rule of
2015 followed Justice Kennedy’s reasoning in Rapanos, in which Kennedy found that
federal jurisdiction reached any water body that had a “significant nexus” to navigable
waters or seas. The rule effectively expanded federal jurisdiction over water, particularly over wetlands, and spurred litigation around the country in attempts to define the
boundary between state and federal control in this area. The Trump Administration
stayed the application of the rule for 2 years, effectively reinstating the 1986 interpretation, which followed Scalia’s opinion in Rapanos. That stay was vacated (canceled)
by a federal judge in August 2018, impacting its interpretation in 26 states, but not in
the 24 states where other litigation over the rule is, as of January 2019, still pending.
8 US Governance