Justin Park

October 19, 2007

"Troubled Waters," a U.S. Public Interest Research Group ("U.S. PIRG") report published this week, demonstrates that our nation's waters remain imperiled by routine and often egregious NPDES permit violations committed by the nation's major facilities. EPA records obtained through a Freedom of Information Act request revealed: (1) 57% (3600) of the U.S. major facilities exceeded their permit limits at least once in 2005; (2) 628 major facilities exceeded their permit limits in more than half of the submitted reports, and eighty-one major facilities exceeded permit limits in every reporting period.

New Mexico, Vermont, and Arizona top the list of highest average exceedances in 2005 with 1153.3%, 822.9%, and 821.6%, respectively. California, Pennsylvania, and Ohio had the largest number of six-fold (greater than 500%) exceedances with 194, 121, and 118, respectively.

Enforcement and protection declines are the most important factors in the failure to meet the goals and permit requirements of the CWA. The report cites 13% EPA budget cuts, large reductions in federal funding for local treatment systems, and, compared to a four-year period in the late 1990s, a startling 70% drop in Bush administration civil lawsuits against polluters between 2002 and 2006.

"The report reveals a serious breakdown in the enforcement process and underscores the role that citizen suits can play to ensure that polluters are not let off the hook," observes Pat Parenteau, Senior Counsel at the Environmental and Natural Resources Law Clinic.

The report also points to policy directives issued in 2003 and 2007 from the Bush administration that have decreased protection. The 2003 directive followed the Supreme Court's striking down of CWA jurisdiction over "isolated" waters used by migratory birds in SWANCC. The directive created a presumption against any waters that could be considered "isolated," thereby throwing federal jurisdiction thousands of miles of waters and large amounts of wetlands in doubt, including some 4,000 acres of wetlands in Florida and an entire 150 mile river basin New Mexico. Jim Murphy, Wetlands and Water Resource Counsel for the National Wildlife Federation, explains that without federal jurisdiction "states that are not already doing so will likely have to pick up these enforcement responsibilities for many waters. It is far from clear that they have the resources or the will to do so."

The 2007 policy directive, issued in the wake of the Supreme Court's fractured (4-1-4) decision in Rapanos v. United States, creates only more doubt in this area, although it is too soon to say to what extent. The case had no majority and no legal analysis embraced by both the plurality and Justice Kennedy, who concurred in the judgment. With no clear holding to apply, Corps and EPA jurisdictional decision-making has become uncertain and unpredictable. It is unclear how the subsequent policy guidance will do anything to clear things up. Murphy warns that "the present situation created by the Rapanos decision and the consequent Corps and EPA guidance only will make the situation much worse. Excluding Alaska, about 40% of NPDES permits are on streams that are at risk of losing protections." The report recommends that Congress pass legislation to clarify that the Clean Water Act broadly protects waters to eliminate this risk.

Thirty-five years after enactment of the Clean Water Act and twenty-seven years after Congress' deadline to eliminate pollutant discharges, this report offers alarming evidence that we remain far from achieving the promise to restore and maintain the integrity our nation's waters with no sign that things will improve anytime soon.

Sources:

U.S. PIRG Education Fund, Troubled Waters: An Analysis of 2005 Clean Water Act Compliance (Oct. 2007), http://www.uspirg.org/html/troubledwaters07/troubled_waters07.pdf.

Clean Water Act § 402, 33 U.S.C. § 1342 (2000).

Clean Water Act § 101(a), 33 U.S.C. 1251(a) (1972).

Email from Patrick Parenteau, General Counsel, Environmental and Natural Resources Law Clinic, Vermont Law School (Oct. 15, 2007, 13:41 EST) (on file with author).

Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of "Waters of the United States," App. A, Joint Memorandum, 68 Fed. Reg. 1991, 1995 (January 15, 2003).

Julie M. Sibbing, Down the Drain: The Destruction of Waters and Wildlife in the Southwest 1–2 (Nov. 2004).

EPA and Army Corps of Engineers Guidance Regarding Clean Water Act Jurisdiction after Rapanos, 72 Fed. Reg. 31,824 (June 8, 2007).

Rapanos v. United States, 126 S.Ct. 2208 (2006).

Email from James Murphy, Wetlands and Water Resources Counsel, National Wildlife Federation (Oct. 17, 2007, 16:56 EST) (on file with author).