1. 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

2. 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

3. 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)

4. 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

5. 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

6. 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

7. Monitoring and Enforcement

8. Monitoring process

10. Monitoring results

11. 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

12. “David”

13. “Goliath”: Large Agricultural Operations

14. “Goliath”: Shipyards

15. “Goliath”: Pulp and paper mills

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

17. 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

18. 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

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

20. 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

21. 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

22. 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

23. Mountaintop Mining Permits

24. Mountaintop Mining Permits

25. Mountaintop Mining Permits

26. 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

27. 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

28. Citizen Enforcement: Before and After