Enforcing the Clean Water Act in the Twenty-First Century: Harnessing the Power of the Public Spotlight

Abstract

This article examines enforcement of the Clean Water Act's (CWA) point source permitting (National Pollution Elimination Discharge System, or NPDES) program, in particular enforcement by the 45 states that have received federal delegation to implement the program. It first canvasses existing empirical evidence showing that state performance is often deficient, and that rates of significant noncompliance by major facilities with CWA permit requirements is consistently around 25%. The article then discusses the significant resource gap facing state NPDES programs. It reports on a survey that I conducted of all delegated state NPDES programs, which found that 11 of 17 responding states reported that their funding for enforcing the NPDES program is inadequate, with seven states reporting that the funding available for enforcement is 60 percent or less of what is necessary to comply with all federal and state mandates. Of the five states reporting that their funding is sufficient, most rely heavily on permit fee programs to fund their NPDES programs.

The article then discusses the debate that has raged in recent years about what type of enforcement approach best achieves compliance with environmental laws, a sanctions oriented, deterrence-based model, or a conciliatory, cooperative-based approach. It argues that a third model - a "spotlighting" approach that relies on mandatory disclosure of enforcement- and compliance-related data, and public accountability for enforcement agencies - has the potential to significantly improve the current performance gap in NPDES programs. The article proposes that federal and state agencies adopt three specific spotlighting strategies: (1) EPA and the states should spotlight the enforcement and compliance related records of regulated firms; (2) EPA should spotlight the performance of state NPDES programs in achieving compliance among regulated firms within their states; and (3) the Securities and Exchange Commission should spotlight polluting companies by expanding the mandatory environmental disclosure requirements for publicly-traded corporations.

Keywords: Environment, enforcement, Clean Water Act