Environmental criminal liability plays an important role in deterring corporate polluters and motivating regulatory compliance. Accordingly, the Clean Water Act (CWA) requires states to apply criminal enforcement standards at least as stringent as the federal standards. For decades, however, the U.S. Environmental Protection Agency (EPA) has been undermining CWA enforcement by approving state permit programs with weaker criminal liability provisions. This Note surveys the state codes of all 47 states with authorized permit programs and finds widespread noncompliance with the CWA: 34 states fail to authorize appropriate felony penalties for all knowing violations, and at least 33 states apply misdemeanor intent standards above ordinary negligence. These deficiencies erode the deterrent effect of environmental criminal liability.

EPA has neglected its nondiscretionary duty under the CWA to withdraw its authorizations of noncompliant state programs. Recent cases have alerted environmental groups that EPA has been violating the CWA and its own regulations for decades. As a result, a flood of litigation may be on the horizon. Now EPA has rewritten its regulations to allow weaker state standards, reversing its longstanding position since 1979 that states must apply criminal intent standards at least as stringent as the federal standards.

This Note argues that EPA’s new rule violates the text of the CWA and that EPA must bring state permit programs into compliance with the CWA. Specifically, EPA must require states to authorize (1) appropriate felony penalties for all knowing violations and (2) criminal liability for ordinary negligence. Only then can states serve as an effective backstop for clean water protection after Sackett v. EPA, a recent U.S. Supreme Court case that narrowed federal CWA jurisdiction. The stakes are enormous—not only for the environment and public health, but also for constitutional questions about the nondelegation doctrine and the proper scope of agency authority on criminal matters.