Beyond Words of Exhortation: The Congressional Prescription for Vigorous Federal Enforcement of the Clean Water Act

After surveying the serious decline in enforcement at the US EPA that occurred during the early years of the Reagan administration this article takes a hard look at EPA's enforcement responsibilities under the Clean Water ActThe primary enforcement provision of the Clean Water Act section 309 contains a confusing mélange of mandatory and discretionary language The resolution of the apparent ambiguities found in section 309 requires a thorough consideration of the statute's legislative history to determine if possible what Congress intended to achieve through the use of this language In order to place that legislative material in its proper context however it is necessary to start with an examination of the problems with federal water pollution enforcement that Congress meant to cure in 1972 as well as the specifics of that cure The article therefore examines both the history of federal water pollution enforcement prior to 1972 and the contours of the enforcement scheme created in 1972 It then examines the legislative history of section 309 at lengthThe legislative history demonstrates that although Congress gave EPA complete discretion to institute civil enforcement Congress did impose a mandatory duty upon EPA to issue administrative compliance orders for particular violations of the Clean Water Act That duty however is not a rigid command Congress intended to infuse this mandatory duty with limited discretion first to determine whether the Act has been violated and second to establish appropriate priorities for federal enforcement based on the seriousness of the violation its relationship to national policy and whether in some instances a state agency has undertaken appropriate enforcement action While citizen suits are available to hear actions where EPA is alleged to have violated such a mandatory duty the article suggests a form of limited judicial review that should enable the courts to fulfill Congress's intent to ensure vigorous administrative enforcement within a framework that relies heavily upon the expert judgment and experience of EPA