Lawmaker as Lawbreaker: Enforcement Actions against Municipalities for Failing to Comply with the Clean Water Act

The Clean Water Act makes it unlawful for anyone, including municipalities, to discharge a pollutant into navigable waters except as authorized by specific sections of the Act. To implement this prohibition, as well as the exceptions, the Act established a complex system regulating all discharges into the navigable waters of the United States. Under the Act, the discharge of pollutants without a permit or in violation of a permit condition may result in civil penalties and/or a criminal penalty per day per violation. While these penalties could be extremely costly for municipalities, the problem becomes even more severe because many times correcting the problem could cost millions and sometimes billions of dollars for municipalities.

If the municipalities do not have the money to correct the problems, the municipalities continue to violate the Clean Water Act, thereby subjecting themselves to astronomical fines. The purpose of this article is to outline the difficulties that municipalities face in meeting the legal discharge requirements, and to establish why subjecting municipalities to civil penalties which are ultimately deposited to the U.S. Treasury is an ineffective way of correcting municipal problems. Finally, this article seeks to provide an alternative solution that will not only ensure that municipal violations of the Clean Water Act will be corrected, but that such municipal violations will be corrected in a more efficient manner than the methods that are currently being used today.