Under the Clean Water Act, a troubling regulatory gap exists wherein the federal government is unable to directly regulate diffuse sources of water pollution in interstate waters. This gap has left many of the nation’s most important watersheds flooded with nutrient pollution from agricultural runoff, contrary to the purpose of the statute. Working cooperatively with state and local jurisdictions, the Environmental Protection Agency was able to bridge this regulatory gap and develop a first-of-its-kind, federal pollution reduction scheme to protect the Chesapeake Bay from the nutrient pollution plaguing its treasured waters.
This Note discusses the American Farm Bureau Federation v. EPA decision upholding that plan, and examines the careful line the federal government must toe in order to respect the boundaries of federalism, while also carrying out its statutory mandate to restore and maintain the integrity of the nation’s waters. Using the Mississippi River Basin as a case study, this Note highlights the limits of the EPA’s federal pollution reduction strategy and the limited value of American Farm Bureau as precedent to protect other large interstate bodies of water. This Note concludes that a similar federal plan in the Mississippi River Basin is unlikely, given that the regulatory gap persists, as it always has, wherever states are unwilling to cooperate.
