404 blog

Mens rea comment letter blog

Miami Waterkeeper, along with several other environmental advocacy organizations, joined an Earthjustice comment letter in opposition to U.S. Environmental Protection Agency’s (EPA’s) proposed rule regarding the Criminal Negligence Standard for State Clean Water Act (CWA) section 402 and 404 programs. The proposed rule would allow for state-assumed enforcement of CWA § 404 to be less stringent than federal enforcement, which is a violation of federal law.

Section 404 of the Clean Water Act oversees dredge and fill permitting programs. The state of Florida in December 2020 became the third state in the nation to assume § 404 authority from the U.S. Army Corps of Engineers after a hurried attempt by EPA to relinquish this federally mandated responsibility and authority. Now, EPA wants to raise the stakes by lowering its standards, directly contradicting the requirement that EPA authorize state assumption only if it will be at least as stringent as the federal program.

EPA’s proposed rule would change the negligence standard for violating CWA permitting programs from ordinary negligence to gross or culpable (criminal) negligence, which is a much higher bar. Essentially, the ordinary negligence standard according to the letter “provides for more robust criminal enforcement of permit violations – and therefore greater environmental protections – because it sets a lower bar the government must meet to bring and prevail in an enforcement action and promotes compliance through deterrence.”

As the comment letter states, “[t]he backstop of criminal enforcement is a critical safeguard and deterrent to ensure that permittees comply with permit conditions to minimize environmental degradation and maximize environmental protections as required by the Clean Water Act.” That’s why a codified enforcement provision within the Act establishes liability for negligent violations of CWA permits. By proposing a higher negligence standard, EPA proposes lowering the bar below the floor of minimum enforcement requirements, which is contrary to the intent of the Clean Water Act.

Miami Waterkeeper stands with Earthjustice, Conservancy of Southwest Florida, Sierra Club, Columbia Riverkeeper, Minnesota Center for Environmental Advocacy, St. Johns Riverkeeper, Center for Biological Diversity, and Environmental Confederation of Southwest Florida in opposing EPA’s proposed rule to lower the bar for protecting our wetlands by making it more difficult to hold those in violation of the Clean Water Act accountable.

Read the Earthjustice letter HERE.
Read the EPA’s request for comment HERE.
Read more about 404 permitting authority HERE.

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