In recent weeks the Environmental Protection Agency (EPA) has increased pressure on states to improve their enforcement of the Clean Water Act's permitting programmes, potentially indicating a new environmental priority for the Obama administration. Clean Water Act permitting is administered largely through programmes undertaken pursuant to authority delegated by the EPA to the states, including New York, with traditionally limited direct federal involvement.

In a July 2 memo, however, the EPA warned:

"The 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, the EPA has posted new data on the status of states' Clean Water Act enforcement online, along with reports assessing the effectiveness of these delegated programmes. 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, the EPA retains the authority to withdraw a state's permitting authority "where the state's enforcement program fails to comply with" federal requirements.(1) While federal revocation is a rare and extreme step, and the memo recognized the critical state role in Clean Water Act permitting, the EPA's increased attention may spur some states to step up their own enforcement efforts.

For further information on this topic please contact Ashley S Miller or Jonathan Kalmuss-Katz at Sive Paget & Riesel PC by telephone (+1 212 421 2150), fax (+1 212 421 2035) or email (amiller@sprlaw.com or jkalmuss-katz@sprlaw.com).

Endnotes

(1) 40 CFR § 123.63.

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