Slide in EPA clean water criminal enforcement continues under Obama

Criminal enforcement of federal water-pollution laws has continued a more than decadelong slide under the Obama administration, despite pledged improvements, according to U.S. EPA data.

The government reported 32 new Clean Water Act convictions during the fiscal year that ended in September, down from 42 in 2009. The number of criminal water pollution cases initiated by the agency fell from 28 last year to 21 this year.

Both figures have dropped nearly 60 percent since the late 1990s, their highest points in the past 20 years.

The numbers indicate that the Obama administration so far has been unable to reverse a trend that started under President George W. Bush, when EPA criminal enforcement activity dropped in conjunction with a 27 percent cut to U.S. EPA's overall budget, said William Andreen, an environmental law professor at the University of Alabama.

"There is plenty of work to be done in enforcement," said Andreen.


Even as general criminal enforcement activity has shown signs of improvement in the past two years, EPA data shows that Clean Water Act criminal enforcement has not shared in those gains.

The volume of cases and convictions on primarily Clean Water Act charges fell from 2009 to 2010, even though the numbers across all categories of environmental crimes rose. The portion of that caseload that centered on Clean Water Act crimes fell to 18 percent, the lowest percentage in two decades.

EPA provided the data in response to Greenwire's request for 20 years of end-of-year conviction counts in criminal cases with a lead charge of "33 USC 1319 -- Water Pollution -- Enforcement," a common reference to the enforcement section of the Clean Water Act. EPA officials noted that the data would not count cases that may involve water pollution in which the defendants were charged primarily under a different statute, or cases that were investigated by EPA and then handed off to a state environmental agency for eventual prosecution.

Under President Obama, EPA has pledged to toughen enforcement of the nation's water pollution laws by hiring more investigators, working to close legal loopholes and bringing more cases against polluters. Complicating that effort is a lack of progress in Congress to shore up the legal ambiguities that have increasingly dogged Clean Water Act enforcement.

The law explicitly protects all "navigable" waters, a vague term whose definition has spawned a glut of litigation and forced EPA to delay or drop hundreds of investigations, even as pollution rates of risen, officials have said. Repeated attempts to clarify the law by eliminating the word "navigable" have failed in past Congresses and once again appear stalled (E&E Daily, July 21).

Budgetary and personnel problems also have contributed to the slowdown in the agency's criminal enforcement. The total volume of EPA criminal enforcement activity in 2008 slowed to about half the level of the late '90s before beginning to rebound in 2009, according to data posted on EPA's website. The rebound corresponded to the 2008 start of a three-year hiring effort that raised the number of criminal investigators to 206 by the end of last month, a return to late '90s levels, according to an EPA official who spoke on the condition that he not be identified.

"There had been a decline in the number of criminal enforcement special agents," the official said. "It kind of peaked in the late '90s and early 2000s and then began to decline. Obviously, with fewer agents in the field, that does have an impact."

The agency's criminal enforcement office underwent a public shakeup last week. After a watchdog group leaked an internal memo concerning personnel changes, EPA announced that two top officials in the criminal enforcement office were leaving in the wake of an internal review that cited "arrogant and harsh" disciplinary treatment and poor communication. The review's harsh findings pointed to an unwelcoming work environment that has alienated employees (Greenwire, Oct. 21).

EPA touted other, more positive measures of its criminal environmental enforcement efforts, boasting that the agency launched 387 investigations in fiscal year 2009, more than in any of the previous five years. The agency also said the total number of defendants charged with environmental crimes in fiscal year 2010 will be the highest since 2005.

"This Agency has committed to make the most efficient use of resources by targeting the biggest crimes and worst offenders -- and therefore reducing the risks from those offenders that pose the most significant threats to Americans' health," EPA said in a prepared statement.

Andreen noted that conviction statistics do not necessarily measure the effectiveness of criminal enforcement efforts. For example, a strategic decision to pursue tougher, higher-quality cases would likely cause the number to come in lower. EPA said it has worked to pursue higher-quality cases. As an example, the agency increasingly has deferred to other law enforcement agencies in investigating methamphetamine laboratories.

Andreen hesitated to draw conclusions about the effectiveness of the new administration or current EPA leadership, noting that any recent reforms, no matter how effective, may take more time to bear fruit.

"This may reflect both the number as well as the quality of some of the cases that were opened in prior years," Andreen said. "But it is ample reason to keep a close eye on EPA's efforts to rejuvenate criminal enforcement of the Clean Water Act."

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