EPA Steps Up to the Plate on Clean Water Act Enforcement. Congress Needs to Step Up, Too

by Robert Glicksman

October 15, 2009

Just about a month ago, the New York Times published a story in which it documented an alarming failure on the part of federal and state officials to enforce the principal federal law designed to protect the quality of the nation’s surface waters, including rivers, lakes, and streams. According to that story, fewer than three percent of identified violations of the Clean Water Act result in fines or other significant punishments by state officials. These violations have the potential to threaten the health of people who use the affected waters drinking, swimming, fishing, and other purposes. Yet, the federal Environmental Protection Agency (EPA) has rarely stepped in to reclaim authority to administer the Act from states failing to fulfill their responsibilities to protect water quality through vigorous enforcement efforts.

EPA officials were well aware of these problems. This summer, less than six months after becoming President Obama’s EPA Administrator, Lisa Jackson ordered EPA’s Office of Enforcement and Compliance Assurance (OECA) to investigate federal and state enforcement programs under the Clean Water Act and take steps to strengthen the statute’s capacity for protecting water quality and the health of those who use the water. Today, OECA responded to that charge by releasing its Clean Water Enforcement Action Plan. The Plan forthrightly recognizes the appalling plethora of significant water quality problems that face too many of America’s communities and traces those problems, in significant part, to ineffective implementation and inadequate enforcement of the Clean Water Act by both federal and state authorities.

The Plan commits EPA to taking important steps that will enable the Clean Water Act to fulfill its potential for protecting the integrity of the nation’s waters. The Plan is designed to address concerns about high noncompliance and low enforcement rates, and troubling gaps in the information needed to identify the sources of significant water quality problems and effectively address those problems. These steps include identifying the sources responsible for the worst water quality problems and working with state environmental officials to initiate appropriate enforcement actions against those violating permit or other regulatory responsibilities. The Plan also promises that when EPA determines that a state is not taking sufficiently protective actions in issuing and enforcing permits, it will either divest the state of its authority to administer the Clean Water Act, force the state to regulate more effectively, or supplement state enforcement efforts. In addition, the Plan endorses the development by EPA of “performance metrics” for permitting and enforcement, which will enable the public to hold both EPA and the states accountable if they do not do their jobs in protecting water quality. CPR member scholars have long advocated exactly these kinds of accountability mechanisms. Finally, the Plan commits EPA to issuing regulations to require more comprehensive and effective reporting by regulated sources through a new electronic reporting tool called NetDMR. The use of electronic reporting will facilitate both coordination of state and federal enforcement strategies and public access to the latest information about water quality problems and agency enforcement activities.

All of these steps are long overdue and laudable means of reinvigorating the Clean Water Act — and government enforcement of that law — in order to provide the protection of water quality that the American public deserves. But even if the Plan is fully and effectively implemented, significant water quality problems will remain. The Plan itself points out three areas in which EPA lacks the ability to provide the necessary fixes to the nation’s surface water quality problems. First, both EPA and the states face resource shortages that prevent them from identifying the sources responsible for impaired water quality and pursuing them through vigorous enforcement actions. Second, the Supreme Court’s decisions in the SWANCC and Rapanos cases have created a welter of confusion about which bodies of water are protected under the Clean Water Act and which are not, hampering efforts to enforce the law. Third, the Clean Water Act does not allow EPA to require the nearly one million dispersed sources of water pollution (such as some animal feeding operations and agricultural and mining activities) that do not qualify as “point sources” to be subject to Clean Water Act permits. Because EPA lacks the means of remedying these problems on its own, the burden of doing so necessarily falls on Congress. Some pending bills would address these problems (such as the Clean Water Restoration Act, which directly addresses the second question).

The Action Plan just issued by EPA represents a clarion call for Congress to take steps to reinforce the Clean Water Act as the preeminent tool for protecting the nation’s surface water quality. Congress should take heed and follow EPA’s lead in committing itself to the achievement of cleaner and safer water. It should grant President Obama’s request to provide significantly enhanced funding for EPA. It should take seriously the Clean Water Act’s existing policy of providing both technical support and financial aid to states acting to prevent and reduce pollution by funneling grant money to the states for these purposes. It should dispel the confusion resulting from the Supreme Court’s opaque and splintered decision in SWANCC and Rapanos by adopting legislation that restores Clean Water jurisdiction over the full range of waters and wetlands with an impact on water quality. Finally, it should amend the Clean Water Act to enhance EPA’s authority to control (or require the states to control) pollution sources that generate runoff that to date have been largely exempt from effective control.

Update: And here's GAO's testimony from today, "Clean Water Act: Longstanding Issues Impact EPA’s and States’ Enforcement Efforts"

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Robert L. Glicksman is the J. B. and Maurice C. Shapiro Professor of Environmental Law at the George Washington University Law School. He is a member of the board of directors of the Center for Progressive Reform.

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