Friday, May 26, 2023
Yesterday was a bad day for people who care about water quality. The Supreme Court’s Sackett opinion gutted traditional Clean Water Act jurisdictional standards. Others have appropriately shredded the decision (examples here and here), and I’ve previously critiqued the shoddy textual analyses and the misunderstandings of environmental-law federalism that underpin both this latest decision and its problematic predecessors. But enough with the bad news, for now. This post is about progress in water quality regulation.
In a just-published article, I explore nonpoint source regulation by California’s North Coast Regional Water Quality Control Board, which governs the waters in a stunningly beautiful swath of land stretching from just north of the Bay Area to the California-Oregon border. I hope the article will be of interest to anyone hoping to improve nonpoint source regulation, which this country has traditionally done quite poorly with. It also may be of interest to environmental law professors who cover Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir. 2002), a commonly taught case, in their environmental law classes.
The study leads to several conclusions, each explained in more detail in the paper:
- Comprehensive nonpoint-source regulation is possible. It may seem like a mythical creature, but in the North Coast region, a comprehensive program is emerging.
- Familiar regulatory models can work. I found that many of the emerging regulatory programs draw on traditional Clean-Water-Act tools. There was some creativity involved, and a lot of work, but regulators generally were not inventing novel regulatory approaches.
- Nonpoint source regulation, though possible, is challenging. Everyone I spoke with agreed that nonpoint source regulation requires persistence and a lot of attention to the intricacies of both landscapes and human relationships.
- Complementary tools matter. Progress in protecting water quality—and there has been progress—has come through a combination water-quality regulation and other initiatives, including both governmental regulation and private initiatives.
- Nonpoint source regulatory programs can be phased in. We sometimes tend to think of environmental law being born or changed in moments of dramatic change. At the legislative level, that’s sometimes true. But environmental law doesn’t really take shape until it gets implemented, and implementation can involve the incremental but persistent development of regulatory programs. In California’s north coast region, that often has meant developing gentle first-cut regulatory programs, building familiarity and relationships with regulated entities, and then, in dialogue with those entities, ramping up requirements.
- Bigfoot sightings are more likely in northern Ohio than in northwestern California. This amazed me. But the internet says it’s true. Who am I to doubt?