Treading Water: How Citizens, States, and the Environmental Protection Agency Can Restore Proper Criminal Enforcement of the Clean Water Act\u27s National Pollutant Discharge Elimination System

Abstract

Upon the passage of the Clean Water Act (“CWA”) in 1972, primary responsibility for protecting the United States\u27 water quality and preventing water pollution shifted from the states to the Environmental Protection Agency (“EPA”). The program at the heart of the Clean Water Act, the National Pollutant Discharge Elimination System (“NPDES”), requires anyone who discharges pollutants into the waters of the United States to abide by the terms of a permit issued under the program. If a discharge occurs in violation of the permit or without a permit, and prosecutors are able to prove the responsible party acted with ordinary negligence, criminal charges can be brought under the statute. Forty-seven states have been authorized by the EPA to run and enforce an NPDES permit program within their own borders. Instead of adopting an intent standard of ordinary negligence as the federal statute and regulations require, many states have been authorized to run their programs with “gross” or “criminal” negligence intent standards. Litigation over Idaho’s recent program approval could force the EPA to assume responsibility over all approved state programs that are out of compliance with the CWA and the EPA’s regulations. This outcome could overload the EPA and put the NPDES program in jeopardy of complete failure. But, with a few regulatory changes, the EPA can prevent further litigation, comply with its non-discretionary duties laid out in the CWA, and ensure the proper level of criminal deterrence needed to protect water quality