Issuing Violations Without Tangible Evidence: Computer Modeling for Clean Water Act Enforcement

• Author: Sara R. Reichenauer
• Position: J.D., The University of Iowa College of Law, 2009; B.A., The University of Iowa, 2006.
• Pages: 02

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I Introduction

Environmental regulation in the United States has a short history.¹Before the federal government enacted the Water Pollution Control Act ("WPCA") in 1948,² the federal government had not funded any state water-pollution-control programs.³ The WPCA marked the federal government's first serious attempt to address some of the country's water-pollution problems,⁴ authorizing the Surgeon General of the Public Health Service to produce plans to reduce or completely eliminate the nation's water pollution.⁵ The Act authorized federal funds for states and municipalities to construct sewage-treatment facilities, in order to prevent human waste from entering the nation's water sources.⁶

Though the WPCA set initial standards for water-pollution control, the American people and federal government demanded more regulation as they became increasingly aware of and educated about water pollution. To address these growing concerns, Congress first passed a series of amendments to the WPCA.⁷ Those concerns grew to crisis proportions by the 1970s when an ohio river burst into flames due to its level of oil and industrial waste and after Ralph Nader issued a report⁸ bringing to light the Page 1014 water-pollution problem's severity by examining individual pollution instances.⁹ All of this led to the Federal Water Pollution Control Act ("FWCPA")'s most substantial amendments in the 1970s, when the FWPCA became known as the Clean Water Act ("the Act" or "CWA").¹⁰

The CWA gave the EPA extensive enforcement authority¹¹ because the CWA never expressly articulated how the EPA should regulate it or what was required for the EPA to issue a violation.¹² Today, the Act states that an EPA administrator should make a citation-issuance determination based on "any information available to him,"¹³ but the Act does not stipulate appropriate types of evidence.¹⁴

One type of evidence that the EPA frequently uses to issue violations is computer modeling.¹⁵ This Note argues that the EPA inappropriately uses computer modeling as an enforcement tool for issuing violations under the Act, because computer modeling does not prove "actual discharge" violations as Waterkeeper Alliance, Inc. v. EPA requires.¹⁶ Computer modeling attempts to simulate reality based on a series of mathematical equations, but it cannot produce more than approximate results.¹⁷ Because the results may not be one-hundred-percent accurate,¹⁸ computer modeling fails to prove "actual discharge." Since computer modeling does not verify that a facility Page 1015 has, in ftac, discharged pollutants, the EPA violates the CWA each time it uses computer modeling as its sole enforcement tool.

Part II of this Note gives a brief history of the CWA and summarizes its requirements and restrictions. Part III describes two of the computer-modeling processes the EPA often uses to issue violations. Part III also addresses the benefits and disadvantages of using computer modeling for enforcement purposes. Part IV discusses the Waterkeeper case, which held that the CWA gave the EPA the authority to regulate only "actual discharge," and not potential or possible discharge.¹⁹ Part IV also discusses how Waterkeeper affects computer modeling as a CWA enforcement measure. Part V suggests that the EPA abandon its use of computer modeling for CWA enforcement purposes and Part VI provides potential enforcement alternatives.

II Understanding The Clean Water Act

A History

The Clean Water Act gave the EPA the authority to regulate pollution by creating wastewater standards and programs geared toward completely eliminating pollutants from the nation's navigable waters.²⁰ It also gave the EPA the power to issue National Pollutant Discharge Elimination System ("NPDES") permits-a major component of the EPA's CWA regulation- which regulate the discharging of pollutants into navigable waters²¹ in the United States.²² To decide whether a facility needs an NPDES permit, or to show that a facility has violated the guidelines in its NPDES permit,²³ the EPA often uses computer modeling to determine whether, and how much, a Page 1016 facility has discharged.²⁴ By using computer modeling to prove a CWA violation, the EPA uses computer modeling as a means of enforcement.

As noted in Part I, the CWA has its origins in the WPCA of 1948,²⁵which gave courts the power to grant relief in pollution cases.²⁶ Though the WPCA was the first time Congress addressed the water-pollution problem, it did not mark the last. Congress subsequently created a series of substantial amendments to the Act,²⁷ moving the law toward completely eliminating pollutants from the nation's navigable waters.²⁸ Today, the CWA is the leading regulating act governing water pollution.²⁹

Amendments in 1977 gave the EPA the authority to set wastewater standards and to create and apply pollution-control programs.³⁰ The changes also required that all people and businesses obtain a permit if a possibility exists that a source on their land might discharge pollutants³¹ into navigable waters.³²

Since 1977, the EPA has exercised its authority by creating and implementing several pollution-control programs and by setting water-quality standards for nearly every contaminant known to exist in U.S. navigable waters.³³ However, despite the EPA's efforts to rid the nation's waters of pollutants, recent data suggests that nearly forty percent of the nation's waters remain polluted.³⁴ The next two Sections address the EPA's Page 1017 attempt to reduce pollutant quantity through NPDES permits, specifically referencing agriculture operations.

B Regulating Through the National Pollutant Discharge Elimina tion System

The CWA ambitiously seeks to eliminate water pollution by prohibiting "any person" from discharging pollutants from any "point source"³⁵ into navigable waters,³⁶ unless the EPA or authorized agency has issued that person an NPDES permit.³⁷ The EPA manages the program and requires that "industrial, municipal, and other facilities" get a permit if their pollutant "discharges go directly to surface waters."³⁸

The CWA broadly defines "point source" as "any discernible, confined and discrete conveyance from which pollutants are or may be discharged."³⁹NPDES permits limit the amount a point source can discharge into navigable waters, based on pollutant type.⁴⁰ Congress likely intended the Act to encompass pollution sources of nearly every type of pollutant,⁴¹ but the Act's definition of point source does not include discharges that result from "agricultural storm water and irrigated agriculture return flows."⁴² However, as discussed below, a concentrated animal feeding operation does not meet Page 1018 the stor mwater or irrigation exception and, therefore, qualifies as a point source.⁴³ NPDES permits have played an essential role in enforcing the CWA, because they set forth CWA enforcement guidelines by capping effluent limitations and defining a point source's obligations and restrictions.⁴⁴

The EPA can delegate its power to administer NPDES permits to the states.⁴⁵ For the EPA to give this power to a state, a state must first meet several EPA requirements under 40 C.F.R. § 123.63(a); to satisfy the requirements, a state must have the resources and ability to administer the program, and a plan to give appropriate penalties for enforcement.⁴⁶ If a state does not meet the requirements, the EPA can revoke that state's NPDES authority; alternatively, a state may choose to withdraw its NPDES authority.⁴⁷ It is also important to note that the EPA can still enforce the CWA in states where it has delegated its enforcement power.⁴⁸ This means that the EPA can regulate any case that it so chooses-even if a state agency has the authority to regulate the case, and that state agency has already made plans to investigate or enforce an action in that case.⁴⁹

C Defining Concentrated Animal Feeding Operations

An important component in enforcing the CWA is defining what qualifies as a point source. The EPA and legislatures have focused most of their pollution-control programs on limiting pollution from specific point sources, even though pollution from nonpoint sources (meaning that there is more than one type of pollution source) is growing.⁵⁰ One of the largest contributors of pollution-for both nonpoint sources and point sources-is agriculture.⁵¹ Much of the CWA focuses on point sources, and because one of the biggest contributors of pollution is agriculture, this Note focuses on agricultural point sources.

Many EPA regulatory programs target agriculture because of its profound impact on the environment-agricultural runoff is the "single Page 1019 largest source of water pollution" in the nation's navigable waters.⁵² The EPA estimated in 2000 that nearly sixty percent of the pollutants found in U.S. navigable waters could be traced to agricultural practices.⁵³ Quite often, animal feeding operations ("AFOs") are the cause of this overwhelming contribution.⁵⁴

AFOs are facilities that keep and raise animals "in confined situations" and restrict the animals, their food, and their waste to small areas.⁵⁵ Studies suggest that AFOs account for sixteen percent of all agricultural pollution.⁵⁶Because AFOs contribute such a large amount of pollution, concentrated animal feeding operations ("CAFOs")-defined as either...