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Executive Summary
The 1999 Clean Water Enforcement and Pollution Prevention Act
(CWEA) has improved Clean Water Act compliance dramatically in the
Bay-Delta region and across the state in its first few years. However,
a major loophole—the fact that CWEA does not penalize dischargers who
fail to report their discharges to the state— continues to compromise
the effectiveness of the law.
CWEA is one of the most powerful tools available to clean water
regulators to curb pollution of the state’s waterways. Passed by the
legislature in 1999, CWEA requires the State Water Resources Control
Board and its nine regional affiliates to impose mandatory
minimum penalties of $3,000 for serious and chronic violations of the
Clean Water Act
discharge permit program.
Improved Enforcement
A preliminary analysis of the first two years of CWEA implementation
from the San Francisco Regional Water Quality Control Board and the
State Water Resources Control Board demonstrates overall improved
compliance with the state’s clean water laws and decreased levels of
illegal pollution entering waterways.
1. The number of Clean Water Act permit violations in the San Francisco
region and across the state has decreased 57% and 56%, respectively,
since the passage of CWEA.
2. The number of enforcement actions
taken across the state rose by 46% and the number of enforcement
actions for all programs with penalties the San Francisco Bay Region
rose by 212%.
3. The dollar amount of penalties assessed by the
State Water Resources Control Board (SWRCB) has increased over $1
million in the San Francisco region and $6.5 million statewide.
Continued Weakness
Despite this apparent early success of CWEA in reducing violations of
the Clean Water Act, however, a loophole allowing reporting violations
to go unpenalized could undermine CWEA’s effectiveness.
Under
the federal Clean Water Act and the state Porter Cologne Water Quality
Act, facilities with permits to discharge into California waterways are
required to submit periodic discharge monitoring reports (DMRs) with
information about the quantity and quality of their effluent. These
reports, required monthly for most facilities, are at the heart of the
enforcement process. Because water enforcement programs rely on the
honesty of dischargers to monitor their own effluent and report
violations to the state, the frequent and accurate submittal of these
reports is crucial to the enforcement process.
Despite the
importance of DMRs, the mandatory minimum penalty provisions of CWEA,
the backbone of its enforcement power, do not mandate penalties against
dischargers who fail to submit mandatory discharge monitoring reports.
Thus, this loophole has likely allowed thousands of Clean Water Act
violations to go unreported and unpenalized. The consequence of this
loophole is to encourage dischargers not to report discharges to the
SWRCB in order to avoid mandatory minimum penalties for effluent and
other violations and to minimize the encouragement of those businesses
and facilities that institute effective pollution prevention measures.
Our analysis of CWEA enforcement data found that:
1. Reporting violations remain almost entirely unpenalized both in the San Francisco Region and across the state.
Statewide, only 1% of reporting violations were fined between 1999 and
2002. In the San Francisco region, none of the 56 reporting violations
committed by dischargers in the same three-year period have been fined.
2. Industrial and agricultural facilities commit more reporting violations than do municipal facilities.
Though municipal facilities commit more violations overall, industrial,
agricultural and other facilities have incurred 42% more reporting
violations than municipal dischargers: 2,391 compared to 1,680 since
CWEA went into effect. In the San Francisco Region, municipal
dischargers committed 13 reporting violations vs. 43 committed by other
types of dischargers.
3. Low-emitting facilities commit more reporting violations than do high-emitting facilities.
Low-emitting facilities can discharge up to a million gallons a day of
contaminated water and comprise the majority of regulated facilities in
the state. Across the state, low-emitting facilities committed 3,083
reporting violations, while high-emitting facilities committed only 993
reporting violations between July 1999 and September 2002. In the same
time period, low-emitting facilities in the San Francisco region
committed 35 reporting violations, compared with 17 by high emitting
facilities.
Policy Recommendations
In order to continue the trend toward greater enforcement of the
state’s clean water laws, the most important action for the San
Francisco Regional Water Quality Control
Board and the State Water Resources Control Board to take is to
penalize dischargers that do not submit required National Pollution
Discharge Elimination System (NPDES)
permit compliance reports with mandatory minimum penalties. Additional
actions to strengthen the enforcement of the 1999 Clean Water
Enforcement and Pollution Prevention Act should include:
• Full funding to implement a receiving and compliance checking system based
on the experience of the San Francisco Regional Water Quality Control Board
electronic monitoring system across the state.
• Full implementation of SB 72 to mandate the adoption of uniform statewide
reporting and monitoring standards for stormwater.
• The continued adoption of strong NPDES permits with specific numerical discharge
limits that protect the state’s waterways from dangerous pollution.
The adoption of these policy recommendations is particularly
important in this time of fiscal strain. Clean water is good for the
economy. California’s coastline and waterways generate billions of
dollars in tourist revenue each year. Furthermore, the California
Department of Finance estimates that penalizing reporting violations
with mandatory minimum penalties can generate an additional $2 million
a year in increased revenue for the State Water Resources Control
Board. Thus, as policy-makers contemplate the budget future for the
state, it is essential that funding for California’s Clean Water
Enforcement program be strengthened.
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