Environmental Groups Petition EPA to End North Carolina’s NPDES Program

On August 28, 2024, Cape Fear River Watch, along with other non-profit public interest organizations, submitted a petition to the Administrator of the U.S. Environmental Protection Agency (“EPA”) under 40 C.F.R. § 123.64(b) (2024). Pet. Withdraw N.C.’s Nat’l Pollutant Discharge Elimination Sys. Permit Program, 1, 3, 5, 6, 60 (filed Aug. 28, 2024). The petition requested that the EPA initiate proceedings to determine whether to revoke its approval of North Carolina’s National Pollutant Discharge Elimination System (“NPDES”) permit program, which is delegated to the State under the Clean Water Act. Id. at 1.

The EPA's authority to withdraw North Carolina's control over its NPDES program primarily comes from Section 402(c)(3) of the Clean Water Act, 33 U.S.C. § 1342(c)(3). Pet. at 9, 11. The Clean Water Act provides that the Administrator of the EPA, currently Michael Regan, has the power to revoke North Carolina’s NPDES permit program if he determines that the state is not administering the program in accordance with the Clean Water Act. Id. at 11. Examples of such failures include failing to comply with the terms of the Memorandum of Agreement (“MOA”), actions by the state legislature that limit state authorities, and failure to regulate required activities. Id. The MOA is an agreement between the EPA and the state that outlines the terms, conditions, and agreements pertinent to the management and enforcement of the NPDES program. Id. at 9. North Carolina and the EPA created their MOA on October 15th, 2007. Id.

The petitioners present four arguments explaining why the EPA should withdraw North Carolina's control over its NPDES program. Id. at 1–2. First, the petitioners argue that the North Carolina legislature has intentionally blocked the North Carolina Department of Environmental Quality (“DEQ”) from effectively implementing its NPDES permit program, which is meant to protect North Carolina families from water pollution, including toxic industrial chemicals such as per- and polyfluoroalkyl substances (“PFAS”) and 1,4-dioxane—a toxic chemical that causes liver and kidney damage even at low levels. Id. at 1. Second, the petitioners assert that the state legislature has passed legislation granting the Office of Administrative Hearings final authority over NPDES permits. Id. at 2. In other words, this legislation effectively removes the DEQ and the state Environmental Management Commission (EMC) from their roles under the MOA and undermines the DEQ’s capacity to issue protective permits. Id.

Third, the petitioners allege that the legislature passed laws with specific permitting requirements for fish farm discharges and wastewater into small creeks and streams that improperly constrain the state environmental agencies’ ability to evaluate and issue permits based on the specific needs of both the discharger and the receiving waterbody. Id. Moreover, the laws limit public participation in the permitting process and violate the Clean Water Act’s backsliding provisions. Id. Lastly, the petitioners’ claim that for over a decade the state budget enacted by the legislature has consistently and systematically underfunded the DEQ, resulting in a backlog of expired NPDES permits and diminishing the agency's capacity to develop and enforce protective NPDES permits effectively. Id.

In support of all of these arguments, the petitioners cited evidence including, but not limited to: 1) companies contaminating the drinking water supply of North Carolinians; 2) the State issuing a fish consumption advisory indicating that no fish from the Cape Fear River are safe for children and women of childbearing age consumption; and 4) that North Carolina having some of the highest levels of 1,4-dioxane pollution in the country. Id. at 3, 4, 17.

After investing the claims, EPA will either work with the petitioners and North Carolina to resolve the issues raised or withdraw the state’s program. NPDES State Program Withdrawal Petitions, ENV’T PROT. AGENCY (Jul. 30, 2024).