In recent weeks, EPA has increased pressure on states to improve their enforcement of the Clean Water Act’s permitting programs, potentially indicating a new environmental priority for the Obama Administration. Clean Water Act permitting is administered largely through programs undertaken pursuant to authority delegated by EPA to the states, including New York, with traditionally limited direct federal involvement.
In a July 2 memo, however, EPA Administration Lisa Jackson warned, “[t]he level of significant non-compliance with permitting requirements is unacceptably high and the level of enforcement activity is unacceptably low … We must make sure that strong and effective action is taken when serious violations of law threaten water quality, and we must boost EPA’s enforcement presence against serious violators.”
Following that memo, EPA has posted new data on the status of states’ Clean Water Act enforcement online, along with reports assessing the effectiveness of these delegated programs. New York had the second largest total number of non-compliant major facilities in 2008 (276), and its major facility non-compliance rate (82%) was higher than the national average (55%). Many of these violations were technical, however, and the rate of significant non-compliance for major New York facilities (19.5%) was lower than average (24.4%).
Under the Clean Water Act, EPA retains the authority to withdraw a state’s permitting authority “where the state’s enforcement program fails to comply with” federal requirements. 40 C.F.R. § 123.63. While federal revocation is a rare and extreme step, and Jackson’s memo recognized the critical state role in Clean Water Act permitting, EPA’s increased attention may spur some states to step up their own enforcement efforts.
