January 01, 2012

Emerging Trends In Clean Water Act NPDES Withdrawal Petitions

Erin A. Flannery

The Clean Water Act (CWA) requires that the U.S. Environmental Protection Agency (EPA) limit discharges to the nation’s water to only those permitted pursuant to the National Pollutant Discharge Elimination System (NPDES). EPA can delegate to states the authority to administer the NDPES program. See 33 U.S.C. § 1342(b). Although EPA has delegated its NPDES permitting authority to forty-six states and the U.S. Virgin Islands, several recent petitions ask EPA to withdraw this delegated authority.

There are several checks on how states administer NPDES programs. First, EPA retains oversight over state programs, and periodically reviews how states write and enforce NPDES permits. Second, citizens or environmental groups may petition EPA to investigate whether there are systemic problems within a state’s NPDES program such that the state has failed to comply with the requirements for state programs. See 40 C.F.R. § 123.63 (a), 123.64(b)(1). EPA’s regulations outline the criteria that the agency uses to determine whether to initiate withdrawing a program. For example, petitioners could allege that a state issued unlawful permits, failed to enforce permit terms, or failed to comply with the EPA-State Memorandum of Agreement. See 40 C.F.R. §§ 123.63 and 123.64. The CWA provides that EPA may withdraw a state’s authorized program for cause, after considering a petition to withdraw such authority and public input. See 33 U.S.C. § 1342(c)(3).

Some NPDES withdrawal petitions are encyclopedic complaints about many allegedly deficient aspects of a state program. In 2010, a group of Alabama environmental organizations filed a petition to withdraw Alabama’s NPDES program and alleged twenty-six problems ranging from failure to inspect dischargers to failure to timely prosecute permit violators. Other petitions may stem from public concern about high-profile environmental issues. The claims in a 2010 petition filed by environmental groups to withdraw Kentucky’s NPDES program included Kentucky’s alleged failure to implement and enforce water quality criteria for pollutants from mountaintop mining operations in mining permits and a claim that Kentucky did not have adequate administrative resources to handle the high volume of mining permits. A 2008 petition filed by the Illinois Citizens for Clean Air & Water asserted that Illinois was not properly implementing the NPDES program because it failed to regulate discharges from concentrated animal feeding operations (CAFOs).

Two withdrawal petitions filed in February 2011, in Maine and Florida, alleged a different sort of problem not directly related to permit limits or enforcement—they cited the CWA’s conflict of interest provision. Two separate citizens’ groups alleged, in separate petitions, that the newly appointed commissioners of both the Maine Department of Environmental Protection (MDEP) and the Florida Department of Environmental Protection (FDEP) had conflicts of interest that prevented both commissioners from serving and that put the validity of the states’ authorized NPDES programs in jeopardy. The petitioners both averred that both commissioners had received a significant portion of income from business entities in Maine and Florida that held NPDES permits. The CWA and EPA’s regulations require that “no state board or body that approves NPDES permits can include a person who receives, or has during the previous two years received, a significant portion of his income directly or indirectly from permit holders or applicants for a permit.” See 33 U.S.C. 1314(i)(2)(D); 40 C.F.R. § 123.25(c). The Maine petition was rendered moot when the commissioner of MDEP resigned his position on April 27, 2011, six months after his appointment. EPA denied the petition on September 7, 2011. The Florida petition is pending. Some state statutes require state water boards to have a diverse membership, including industry representatives. In addition, the expanding number of regulated entities has correspondingly reduced the pool of potential, conflict-free board members. This raises the possibility that the number of withdrawal petitions specifically alleging conflict of interest could increase.

Even though EPA has never withdrawn an authorized NPDES program, EPA’s ordinary course of responding to withdrawal petitions has involved a variety of methods for working with states to reshape and strengthen NPDES programs. For example, the 2008 petition alleging deficiencies with the Illinois regulation of CAFOs resulted in a cooperative work plan establishing benchmarks for improving Illinois’ CAFO permitting program. It is possible that this collaborative approach could serve as a model for addressing other pending petitions and similarly improving other states’ NPDES permit programs without EPA withdrawing authority for those programs. Thus, withdrawal petitions are one mechanism that the public can use to bring possible state program deficiencies to light, and may encourage EPA and states to establish additional collaborative ways to improve the overall administration of the NPDES program.

Erin A. Flannery

Erin A. Flannery works in the Office of Wastewater Management, U.S. Environmental Protection Agency, holds a J.D. from Pace University School of Law, and is a member of the Connecticut Bar. This work is not a product of the U.S. Government or the U.S. Environmental Protection Agency, and the author is not doing this work in any governmental capacity. The views expressed are those of the author only and do not necessarily represent those of the United States or the U.S. Environmental Protection Agency.