Discerning Public Participation Requirements Under the US Clean Water Act

Abstract

To enhance water quality, environmental groups have challenged regulations that fail to allow them to participate in the development of effluent limitations under US National Pollutant Discharge Elimination System (NPDES) permits. The issue involves shielding applicants’ management plans that show how they plan to minimize pollutant discharges from public scrutiny. The absence of public input may be accompanied by less information about addressing pollution, limited dialogue on alternatives, and fewer enforcement actions. In response to a judicial ruling, the US Environmental Protection Agency issued revised NPDES permitting regulations for concentrated animal feeding operations in 2008. The new regulations clearly delineate an opportunity for public participation in the development of effluent limitations in individual permits and in notices of intent under general permits. Permitting regulations for other categories of point-source discharges under NPDES permits lack similar provisions on public participation. An analysis of public participation in the development of effluent limitations for NPDES permits suggests that the public is not accorded as many rights as Europeans are provided under the Aarhus Convention. Greater access to information and the ability for the public to participate in decision making offer mechanisms that may be important in enhancing water quality.