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Enforcement is Critical - Summer 2010 Issue

(by James Tierney, Assistant Commissioner for Water Resources)

The Clean Water Act and its New York State analogue contain powerful enforcement tools in which violators can accrue damaging penalties each day. Injunctive relief is readily available. Often, the remedial work required to correct a violation extends many years and involves millions in expenditures. Criminal penalties and jail time can be imposed for knowing violations.

The Clean Water Act also has back up enforcement provisions so that if an authorized or delegated state program is perceived as not doing its enforcement job, then the federal government can take action. There is also the well known citizen's groups, such as Riverkeeper and Pace University's School of Law environmental litigation clinic that exemplify this concept.

I am a big believer in training, technical assistance, compliance assistance and enforcement. Enforcement drives hard-pressed industries and municipalities to focus on keeping the water clean while balancing a host of other priorities. It is also critically important that non-compliers do not gain an economic or competitive advantage.

New York State Department of Environmental Conservation (NYSDEC) compliance activities steer municipalities to seek low interest loans and grants from the Environmental Facilities Corporation, the US Department of Agriculture Rural Development Program and NYSDEC grants under the State Environmental Protection Fund. Compliance orders set a binding time table for entities to actually deploy grants and loans.

NYSDEC Commissioner Peter Grannis has been a national leader in efforts to increase federal funding for clean water infrastructure. The New York Water Environment Association has been instrumental in this effort and our congressional delegation is highly supportive as well.

No matter the financial assistance, legal requirements remain. The best advice I have is to get out ahead of the problem. Hire engineers and professionals who have a track record of attaining compliance. Develop and implement management systems to understand your clean water infrastructure assets and set aside funds to keep them in good repair. NYSDEC and others have useful manuals on asset management to avoid the waste of enormous expenditures on infrastructure. Any municipality or industry that takes a "we'll fix it when it breaks" approach risks high emergency costs, along with heavy fines.

There is also a new EPA administration that is intently focused on heightened enforcement of the Clean Water Act. Recent articles in the New York Times have spotlighted enforcement, as have long-term compliance failures in major waters such as Chesapeake Bay.

I am proud of the extensive, common sense record of compliance assurance that NYSDEC has undertaken - often in conjunction with our partners in the Attorney General's Environmental Protection Bureau. Enforcement is no panacea, but it is fundamental to fulfilling the primary goal of the Clean Water Act: "to restore and maintain the chemical, physical and biological integrity of the Nation's waters."

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