Lewis & Clark Law School Clean Water Act Permitting Integrity and the Avoidance of Regulatory Capture Melissa Powers Associate Professor Lewis & Clark Law School Portland, Oregon

Effective Aspects of Pollution Control Statute Permit terms: Clear and predictable Based on science and/or technological availability Not subject to modifications based on political pressure Public participation Monitoring/reporting: publicly available Enforcement: citizen + government Limited opportunity for governments to displace citizen enforcement

CWA Permitting Basics No person may discharge any pollutant into a water of the United States except as authorized pursuant to a permit 2 types of permits Discharge of pollutant = NPDES Discharge of dredged or fill material = 404 permit (often called a wetlands permit)

CWA Permitting Basics NPDES permits Substantive standards Technology-based Best available technology (best technology, mitigated by cost) No discharge expected for new sources Water quality-based – permit must insure compliance with water quality standards Procedural requirements Permits developed by states pursuant to federal rules Notice/comment on permits + judicial review

CWA Permitting Basics NPDES permits Monitoring and reporting Dischargers submit monthly discharge monitoring reports Available to public for inspection Failure to report = violation of Act Citizens can monitor, too

CWA Enforcement Basics NPDES permits Enforcement Citizens, states, and federal government may enforce Administratively (states/feds) Courts (all parties) Violations: discharge without permit/discharge in violation of permit Discharging more than allowed Failure to monitor/report Violations of order

Monitoring and Enforcement

Monitoring process

Monitoring results

Citizen suit preclusion Why would agencies want to preclude the suits? Regulatory capture Major industries bring political power Citizen enforcers usually small groups with little money and little political power

“David”

“Goliath”: Large Agricultural Operations

“Goliath”: Shipyards

“Goliath”: Pulp and paper mills

Citizen Suit Preclusion 2 main strategies State enforcement to preclude citizen enforcement = “friendly” enforcement Permit modification to preclude citizen enforcement

Citizen suit preclusion Preclusion – administrative enforcement action - before notice is sent or if citizens do not file suit within 120 days of notice If state/federal government has diligently prosecuted administratively for same violations for which violator has paid a penalty If state/federal government are diligently prosecuting administratively for same violations

Citizen suit preclusion Preclusion - administrative enforcement action – if citizens file suit after 60 days of sending notice and before 120 days of notice, no administrative preclusion i.e., no sweetheart deals between dischargers and states to keep citizens at bay

Citizen suit preclusion Preclusion –enforcement action in a court – If state/federal government has diligently prosecuted for same violations in a court

Citizen suit preclusion Preclusion dynamics “diligent prosecution” Action must be designed to achieve compliance with the permit/law Regulators must be acting like enforcers/not “pen pals” Opportunity for citizen participation Administrative hearing District court intervention Penalty assessed No penalty = no preclusion Amount: ideally based on recovery of economic benefit + amount to deter violations

Compliance schedules NPDES permits usually require immediate compliance with permit terms New permit terms may include “compliance schedules” to give discharges time to comply with the limits Only for technology-based standards Cannot exceed the life of the permit (5 years) Must include steps toward compliance

Compliance schedules Can agencies modify permits to extend the compliance schedule and thus preclude citizen enforcement? E.g., permit #1 = comply with limits by May 2011 Modification on April 30, 2011 – comply by April 2016

Mountaintop Mining Permits

Mountaintop Mining Permits

Mountaintop Mining Permits

Compliance schedules Can agencies modify permits to extend the compliance schedule? Probably not Anti-backsliding prohibition Permits generally cannot contain weaker terms than the earlier permits, unless the basis for the earlier technology-based limitations was faulty Permittees must attempt to use technology controls to meet limitations In no event may a compliance schedule result in violations of water quality standards

CWA Permitting as a Model? Permits with clear limits established through public process Enforcement actions by states/federal agencies must be public, diligent, and result in penalty to preclude citizen enforcement Agencies restricted from modifying or weakening permits so as to preclude citizen enforcement or allowed continued violations

Citizen Enforcement: Before and After