New CPR Report Finds Maryland Failing to Enforce Clean Water Act

Today CPR releases a new report, Failing the Bay: Clean Water Act Enforcement in Maryland Falling Short. The report, which CPR Member Scholar Robert Glicksman and I co-authored, details the results of an investigation of the Clean Water Act (CWA) enforcement program at the Maryland Department of the Environment (MDE). CPR provided a copy of this report to MDE, and its response (and CPR’s follow-up) is included as an appendix to the report.

Overall, we found that state of Maryland is failing to enforce existing water pollution laws, allowing illegal pollution that damages Maryland waters and the Chesapeake Bay. The report focuses on three specific areas:

• Funding. MDE is drastically underfunded and is being tasked with greater responsibility despite overall decreases in funding. Between 2000 and 2009, the budget for the Water Management Administration (WMA) at MDE declined nearly 25 percent while the number of permits in effect doubled. The funding shortages are especially pronounced with respect to the enforcement workforce and the number of inspections. The number of inspectors has decreased by 25 percent, and in 2009 the Office of the Attorney General, which makes up MDE’s small legal staff, had a backlog of 325 cases. These funding and personnel shortages seriously undermine the effectiveness of any enforcement program.
• Program Design. Apart from these shortfalls, MDE has not designed its enforcement program to effectively deter polluters from violating the CWA and state water quality laws. MDE relies primarily on paper audits of facilities’ self-reports and assesses low penalties that have no deterrent effect. Between 2000 and 2009, the average penalty obtained by WMA per enforcement action was approximately $1,260, a fraction of what the Department is empowered to impose. Under Maryland law, for example, the maximum penalty for each single day of violation of the Clean Water Act is $10,000. Other water protection statutes enforced by MDE allow higher penalties. While MDE is required by state law to publish an annual enforcement and compliance report, these reports fail to provide a full picture of statewide enforcement activities by local governments or other delegated authorities.
• Citizen Suits. MDE fails to take advantage of citizen suits to supplement its own enforcement actions and to maximize its limited resources. Citizen suits are an essential component to any enforcement program because they serve as a backstop to catch violations that an agency cannot or will not address. Several current and former government officials and environmental groups told us that MDE’s skepticism toward citizen suits foments distrust between MDE and the public interest groups, potentially valuable allies in the effort to ensure federal and state water laws are enforced.

The report recommends a series of improvements to bolster MDE’s enforcement program, both actions that can be taken immediately as well as what could be done with increased funding. Some of the recommendations include:

• Increase Funding. The Maryland General Assembly should provide additional funding for enforcement. As part of this funding, the General Assembly should increase permitting fees, maximum penalty amounts, and nondiscretionary minimum penalty amounts.
• Revise Program Design. To reinvigorate the deterrent effect of MDE’s enforcement program, the agency should recover any economic benefit achieved by noncompliance from violators and should increase on-site monitoring and inspection activities.
• Embrace Citizen Suits. To employ its limited resources most effectively, MDE should, on a case-by-case basis, permit citizen suits to proceed in federal court to supplement its own enforcement. Allowing enforcement actions to proceed in federal courts would facilitate maximum penalty recovery and thus create maximum deterrent effect.

Since its passage in 1972, the Clean Water Act has gone a long way toward cleaning up the nation’s waterways. However, the Act alone provides merely the mechanism for cleaner waters. It is enforcement of the Act and its regulations that ultimately are the key drivers for cleaner waters. Without an effective enforcement program, the Act will languish on paper while the waters deteriorate. While Maryland is certainly not the only state in the Chesapeake Watershed that contributes pollution to the Bay, it is one of the states that stands to gain—or lose—the most from the Bay. Maryland must forcefully, publicly, and proudly reinvigorate its enforcement program, for the benefit of all current and future Marylanders and for the sake of the Bay, one of the greatest natural resources in the country.

CPR thanks The Abell Foundation for its generous support in commissioning this report.