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When Uncle Sam Spills: A State Regulator’s Guide to Enforcement Actions Against the Federal Government Under the Clean Water Act

By December 1, 2022January 17th, 2023No Comments

Abstract: The U.S. government is one of the largest polluters on the planet. With over 700 domestic military bases and countless more federal facilities and vessels operating within state borders, there exists an enormous potential for spills and discharges of pollutants into state waters. The regulatory burden for enforcing environmental laws against the federal government falls on the Environmental Protection Agency and state regulators. But enforcing laws and regulations against the federal government and its progeny is a daunting regulatory task.

Other scholarship addresses some of the vexing peculiarities involved when regulating Uncle Sam. Those works discuss the “confusing mess” that waivers of sovereign immunity in federal environmental statutes present, the “[l]imitations” of sovereign immunity under the Clean Water Act, and the challenges of regulating even just one action (vessel discharges) by one federal department (the Navy).

This Comment aims to help state regulators navigate the often-oily waters of the pseudo-regulatory relationship that exists between states and the federal actors operating within their borders. To accomplish this, the piece outlines a four-part framework to assess a state’s ability to regulate federal actors’ conduct. It then applies that framework to assess Washington State’s regulatory authority over point source pollution from federal facilities pursuant to the Clean Water Act. It concludes by offering recommendations and best practices to state regulators to facilitate state regulatory action against federal actors when necessary.

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