Toxic-Free Environment News Releases

As the new home of OSPIRG's environmental work, Environment Oregon can be contacted regarding this news release.

SAN FRANCISCO—A new state-by-state survey of Clean Water Act enforcement efforts by state environmental agencies reveals that the majority of states completing the survey are failing to adequately enforce key provisions of the federal Clean Water Act because they lack resources sufficient to achieve the task. The survey was conducted by Center for Progressive Regulation Member Scholar Clifford Rechtschaffen. Oregon reported that its budget was just 82 percent of what was needed to provide adequate enforcement of existing federal wastewater mandates.

“Three decades after the Clean Water Act was passed, the sorry truth is that the lack of enforcement by the states is undermining key provisions of the law,” said Rechtschaffen. “States aren’t investing sufficient resources in enforcement, and the result is high levels of noncompliance that threaten public health and the environment.” The 1972 Clean Water Act (CWA) was intended to protect the nation’s waterways from pollution, making lakes, rivers, and streams safe for swimming, fishing, and a host of other activities. Under current law, the federal government relies on state agencies to enforce key provisions of the law, including the National Pollutant Discharge Elimination System (NPDES) permit program, a system by which polluters are issued permits to emit specific quantities of pollution into waterways.

“Passing new laws to clean up the Willamette River and other waters of this state isn’t going to do a whole lot of good if we’re not even enforcing the laws we currently have on the books,” noted Rhett Lawrence, Environmental Advocate for OSPIRG (Oregon State Public Interest Research Group). “And without adequate funding, our state DEQ is simply unable to adequately perform its job of safeguarding Oregon’s waters.”

As Rechtschaffen writes in his report, Enforcing the Clean Water Act in the Twenty-First Century: Harnessing the Power of the Public Spotlight, “More than three decades after CWA became law, it is now clear that state enforcement of its NPDES provisions is inadequate. [The] survey of state environmental protection agencies reveals the extent of the failure of state enforcement and documents the barriers to adequate state enforcement. The survey . . . gathered data from agencies in 17 states – Alabama, Arizona, California, Delaware, Florida, Georgia, Hawaii, Maryland, Minnesota, Montana, North Carolina, New Jersey, Nevada, Oregon, Washington, West Virginia, and Wyoming.” The survey asked the environmental departments to describe their funding and staffing for NPDES enforcement for 2000 through 2002, including data on actual funding and on levels needed to enforce the law. Other states’ environmental departments were given the opportunity to be included, but failed to reply.

Key findings of the survey:
- Eleven of the 17 states report that their funding for enforcing the NPDES permits is inadequate.
- Seven of the states report that the funding available for enforcement is 60 percent or less of what is needed to do the job, with Wyoming’s funding calculated at 29 percent of what is required and Georgia’s at 20 percent.
- Just five states report funding that they deemed sufficient. These generally were more heavily supported by fees polluters paid to be allowed to discharge certain quantities of various pollutants. (One state did not report funding.)

In responding to Rechtschaffen’s survey, Oregon environmental officials noted that:
- A permanent cut of two positions from its NPDES permitting staff would cause delays in issuing permits for at least 25 smaller communities and 400 construction sites.
- 68 positions were required to comply with existing federal NPDES mandates, but that current funding supported only 56 positions – 82 percent of the needed staff.

Rechtschaffen cites existing research demonstrating that:
- At least in part because of funding shortfalls, state regulators are slow to renew NPDES permits. As a result, many facilities are operating with outdated and inadequate permit limits.
- Once permits are issued, state enforcement in many states is deficient. States too frequently fail to carry out inspections, fail to take timely and appropriate enforcement actions, and fail to obtain meaningful penalties for noncompliance, including penalties that recover the economic benefit of noncompliance. As a result, many permit-holders are significantly out of compliance with restrictions imposed as a condition of their permits.
- States are failing to adequately monitor the quality of the water in lakes, rivers, and streams within their borders, as required by the Clean Water Act.

The report offers several specific recommendations, among them:
- States should charge for permits to pollute, in order to fund enforcement and to make sure that polluters, not taxpayers, pay for the pollution they create.
- The federal Environment Protection Agency and the states should increasingly rely on “spotlighting”– mandatory disclosure of enforcement- and compliance-related data. The spotlighting approach should provide consumers (and voters) with information vital to protecting their families from water pollution, and provide them with data and information that will help them be informed voters and active citizens.

Specifically:
- EPA should spotlight the enforcement and compliance related records of regulated firms;
- EPA should spotlight the performance of state NPDES programs in achieving compliance among regulated firms within their states;
- The Securities and Exchange Commission should spotlight polluting companies by expanding the mandatory environmental disclosure requirements for publicly-traded corporations.

“By making public and private institutions accountable to the public for their efforts to reduce pollution,” Rechtschaffen writes, “we can effectively and inexpensively increase compliance with the Clean Water Act, and reduce pollution in the nation’s waterways.”

Rechtschaffen is Professor of Law and Director of the Environmental Law Program at Golden Gate University School of Law. He is also Co-Director of Golden Gate's Environmental Law and Justice Clinic and is a member scholar of the Center for Progressive Regulation. Founded in 2002, the Center for Progressive Regulation is a nonprofit research and educational organization of university-affiliated academics with expertise in the legal, economic, and scientific issues related to regulation of health, safety, and the environment. CPR supports regulatory action to protect health, safety, and the environment, and rejects the conservative view that government’s only function is to increase the economic efficiency of private markets.

OSPIRG (Oregon State Public Interest Research Group) is a statewide nonprofit, nonpartisan public interest advocacy organization with more than 25,000 members across Oregon.

Copies of the report are available on the website of the Center for Progressive Regulation, at http://www.progressiveregulation.org/articles/Enforcement_WP_Oct_2004.pdf. For copies of each state’s completed questionnaires, or to arrange interviews with Cliff Rechtschaffen, contact Matthew Freeman at mfreeman@progressiveregulation.org or at 301-762-8980. Visit CPR’s website at www.progressiveregulation.org.