InsideEPA.Com: Activists’ Petitions Forcing Stricter EPA Oversight Of State Water Rules

Activists’ Petitions Forcing Stricter EPA Oversight Of State Water Rules

From InsideEPA.com

Tuesday, February 02, 2010 (InsideEPA.com) -- Environmentalists are increasingly petitioning EPA to withdraw states’ authority to administer the Clean Water Act (CWA) in a tactic that is already winning stricter agency oversight of some states’ water quality programs -- and may even bolster Obama administration vows to strengthen state programs.

EPA Region I officials earlier this month struck down a draft discharge permit issued by regulators for a facility in Vermont -- one of the states activists are targeting -- in the first such action by the region, possibly ever, sources say. The agency charged that the state permit relaxed allowable nitrogen pollution limits without considering downstream impacts on impaired waters in another state.

The region’s action comes in the wake of a slew of petitions environmentalists have filed urging EPA to withdraw states’ delegated authority. In the latest of these petitions, groups in Alabama Jan.14 urged EPA to withdraw the Yellowhammer State’s delegated authority to administer the water act, citing lax collection of monitoring data, delayed and inadequate permits and a failure to inspect major dischargers, the petition says.

The Alabama petition is the latest in a series of requests environmentalists have filed over the past 18 months that activists say are aimed not at removing the state’s authority to enforce the federal law but to prompt stronger federal oversight and stricter state rules. The Alabama petition follows similar actions in Alaska, Indiana, Illinois, Iowa, and last December, Maryland -- a state that is already subject to strict EPA oversight as part of the agency’s push to clean up the Chesapeake Bay.

The petitions -- which target states with delegated CWA programs -- focus on a diverse number of issues, with the groups in Illinois and Iowa concerned about inadequate state rules governing concentrated animal feeding operations (CAFOs), Indiana groups focused on antidegradation provisions, and activists in Alabama and Maryland concerned about inadequate state stormwater and other point source permits.

Seeking EPA Scrutiny

To address the concerns, the groups are seeking closer EPA scrutiny of the state programs as well as other measures to strengthen the state programs. For example, the petition against Maryland’s program urges EPA to require the state to increase permit fees, provide greater transparency and other measures.

The petitions are not coordinated efforts, activists say, but rather demonstrate a growing trend among groups to seek stronger oversight from EPA in state implementation of the CWA, particularly given Administrator Lisa Jackson’s vows to strengthen state programs.

Since taking office, the Obama administration has ramped up oversight of state programs, in the wake of an agency study that found significant flaws in state enforcement of the water act and other delegated programs. Last year, for example, Jackson unveiled an action plan to bolster state enforcement, a plan that Region I is citing as one reason for blocking the Vermont permit.

At the same time, Jackson has also said that she is willing to consider withdrawing states’ authority if states do not comply with agency efforts to strengthen their programs. “Many of these state programs are 20, 30 years old, and we might even need to hit the reset button and say, ‘OK, we’re going to hold you to a standard. If you’re doing your job, great, but if you’re not, we’re going to be here going inside until you are’,” the administrator told the New Orleans Times-Picayune last year. “We often say we’re partners, but we’re also delegating our authority to a state, and of course, ultimately that means your ultimate answer would be to take it back,” she said.

While some environmentalists admit that Jackson is more intensely focusing on state programs that the past administration, they believe that filing the petitions forces the agency to look at specific states and how they implement the CWA.

A source involved with the petition targeting Vermont’s program says that some of the petitions are aimed at rectifying problems that arose during the Bush administration when EPA was granting states too much deference. “I don’t think it’s surprising that after eight years of a hands-off approach that you’d see state programs have slipped,” the source says.

Region's Rejection

The source welcomed Region I’s recent objection to Vermont’s draft permit, saying the agency’s concerns echo concerns raised in activists’ petition seeking to withdraw the state’s authority. “Vermont is not responsive to the bottom line. I’m not surprised that things have gotten to the point with Vermont that EPA is taking formal action to say ‘yes, you’re out of compliance.’ There is going to have to be a dramatic change in the way Vermont implements the program,” the source says.

An environmentalist involved in the Maryland effort says petitioners do not expect EPA to actually withdraw the state authority -- an approach EPA has long opposed given the increased resource burden the agency would face if federal officials were to step in. “Realistically, if we get a strong reaction from EPA,” and perhaps an audit of the state program with either recommendations or mandates for change, “I would certainly be satisfied with that,” the source says.

“Ultimately we . . . took this action because we felt like there [were] Band-Aids put over these . . . problems,” the source says. The environmentalists “felt we needed to do something to say it’s more systemic than that.” Sources say there has been no formal response yet from EPA on the Maryland petition, and there is no legal timeline for response.

But such petitions give activists considerable leverage over both EPA and state programs and they are already bearing fruit.

In addition to Region I’s opposition to the Vermont permit, other states are also responding to the pressure. In Illinois, regulators last month revised the state’s permitting requirements for CAFOs that went beyond some EPA public participation requirements to comply with demands in a long-pending withdrawal petition filed by the Environmental Integrity Project and other groups. Environmentalists who filed the petition say that while they are pleased the state has strengthened its permit, they are leaving the petition in place to ensure the state implements its new CAFO permit. “We’re still pursuing the petition,” a source said.

And in North Carolina, activists succeeded in having EPA block a controversial state guidance for mitigating water quality harms from hydroelectric projects -- though without a formal petition seeking to withdraw the state’s delegated authority.

A state source agrees that it is unlikely EPA will remove authority from any of the states facing petitions, since “it will cost them double what they’re paying now, if not triple,” to implement the CWA. “And that is something that they’re going to have a very difficult time absorbing in very many places,” the source says.

“We feel like the states have a very strong role in these programs,” and that the “difficulties that we’re facing now are largely budget ones.” To that end, the source says that state agents recently met with EPA leadership and, in part, discussed problems that states are facing, particularly with budgeting shortfalls and implementation of new rules coming out of the agency.

For instance, the source says, Georgia has seen a 43 percent cut to its program over the last year. The source says that EPA and the states are hoping to work together in the future to discuss “process improvement programs” to better streamline state actions. -- Erica Martinson